Lumb, Moens & Trone, the constitution of the Commonwealth of Australia annotated [Ninth edition.] 9780409341423, 0409341428

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LUMB, MOENS & TRONE THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA ANNOTATED NINTH EDITION

Gabriël Moens JD (Leuven), LLM (Northwestern), PhD (Sydney), GCEd (Queensland), MBA (Murdoch), MAppL h.c. (COL), FCIArb, FAIM, FCL Emeritus Professor of Law, The University of Queensland Professor of Law, Curtin University Adjunct Professor of Law, Victoria University, Melbourne Adjunct Professor of Law, The University of Notre Dame Australia, Sydney

John Trone BA LLB, PhD (Queensland) Research Fellow, Curtin Law School, Curtin University

LexisNexis Butterworths Australia 2016

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National Library of Australia Cataloguing-in-Publication entry Author: Title:

Moens, Gabriel, 1948–. Lumb, Moens and Trone, The Constitution of the Commonwealth of Australia Annotated. Edition: 9th edition. ISBN: 9780409341423 (pbk). 9780409341430 (ebk). Notes: Includes index. Subjects: Australia. Constitution. Constitutional law — Australia. Other Authors/Contributors: Trone, John, 1970–. Dewey Number: 342.94023 © 2016 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition 1974; 2nd edition 1976; 3rd edition 1981; 4th edition 1986; 5th edition 1995; 6th edition 2001; 7th edition 2007; 8th edition 2012; 9th edition 2016. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Bembo and GillSans. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

FOREWORD TO EIGHTH EDITION __________________________ Chief Justice Robert French AC The Constitution of the Commonwealth of Australia provides the framework which defines the Australian Federation and the legislative, executive and judicial powers of the Commonwealth. The Constitution underpins every official act, be it legislative, executive or judicial. Constitutional law is not, therefore, a subject to be reserved for scholars and specialist practitioners in the field. It is something of which every law graduate and every legal practitioner should have at least a basic working knowledge. There is therefore real benefit in an annotation of the Constitution which is accessible to the student and the non-specialist practitioner, but pitched at a standard sufficiently high to render it a useful starting point for further inquiry. This book meets that requirement. The first edition of the Constitution of the Commonwealth of Australia Annotated appeared in 1974 and was produced by Professors Darrell Lumb and Kevin Ryan of the University of Queensland. They published the first three editions. Professor Lumb was alone responsible for the fourth edition. Professors Lumb and Moens collaborated on the fifth edition of the book. After Professor Lumb died, Professor Moens and Adjunct Professor Trone continued the text with the production of the sixth edition published in 2001, followed by the seventh edition in 2007. It is pleasing to be able to welcome the new eighth edition of Lumb, Moens & Trone The Constitution of the Commonwealth of Australia Annotated. The Introduction to the book provides an overview of topics not readily attached to particular provisions of the Constitution. There is a brief history of the making of the Federation and an overview of the structure of the Constitution. A number of general themes are then discussed. They include the federal nature of the Constitution, financial and trade relations, legislative, administrative and judicial co-operation, separation of powers, judicial power and constitutional interpretation. A number of matters described as Preliminary Issues are also covered, including the acquisition of sovereignty

over Australia, Australia’s constitutional relations with the United Kingdom, the role of precedent in constitutional cases and the concept of proportionality. Principles of locus standi in constitutional litigation are covered, as well as the role of intervenors and amici curiae. There are also brief but useful discussions of the effects of judicial review and the concept of severance. The text in relation to each provision of the Constitution sets out relevant references to textbook discussions and a synopsis of decisions of the High Court concerning each provision with a brief commentary. The references to the High Court’s decisions include brief analyses of the different judgments and short quotations from important passages in some of the judgments. I am pleased to be able to write this Foreword to what I regard as a very useful reference text for students and practitioners at all levels in the field of constitutional law. The Hon Chief Justice Robert French High Court of Australia 29 September 2011

PREFACE __________________________ A need has long been felt for a comprehensive text which would elucidate the Constitution section by section; one which would assist not only practitioners and law students, but also students in related disciplines, as well as those who are associated with the processes of government at all levels. In this work an attempt has been made to produce a commentary on the constitutional text, with due deference to the demands of space and relevance. It is no longer possible within the compass of one book to give an exhaustive statement of the law regarding all of the matters which are covered by the Constitution. This book concentrates upon the most important decisions concerning the Commonwealth Constitution. This ninth edition incorporates numerous changes that have occurred since publication of the previous edition, which was current to 7 September 2011. References to relevant cases, legislation, texts, journal articles and websites have been thoroughly updated. In this Preface only a few of these many changes can be mentioned. The Introduction incorporates several notable recent cases. In New South Wales v Kable (2013) 252 CLR 118; 298 ALR 144; [2013] HCA 26 the court considered the effect of a judicial order that was purportedly issued under constitutionally invalid legislation. In Kuczborski v Queensland (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 the court examined the principles regarding standing to seek a declaration of constitutional invalidity. New cases regarding proportionality and severance have also been incorporated into this chapter. Chapter I (The Parliament) has undergone significant revision. So far as the operation of the electoral system is concerned, in Australian Electoral Commission v Johnston (2014) 251 CLR 463; 305 ALR 489; [2014] HCA 5 the Court of Disputed Returns declared that the Western Australian Senate election in 2013 was void. The implied freedom of political communication was raised in many cases.

Most notably, the test for infringement of the implied freedom was further modified. In McCloy v New South Wales (2015) 325 ALR 15; 89 ALJR 857; [2015] HCA 34 a majority of the court reformulated the Lange test by introducing a three stage proportionality test. In Unions NSW v New South Wales (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58 the court upheld a State law that imposed restrictions upon political donations and election spending. Many of the implied freedom cases arose in a criminal law context. In Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 an evenly divided court upheld the offence of using the post in an offensive manner. In AttorneyGeneral (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; 259 ALR 197; [2013] HCA 3 the court rejected a challenge to a Council by-law that prohibited preaching in a pedestrian mall. In Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35 the court held that the implied freedom was not infringed by a State offence of consorting with convicted offenders. In Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1; [2012] HCA 2 the court upheld a restriction upon interviewing prisoners and a statutory power to impose parole conditions. As always, there are many new decisions concerning the scope of the Commonwealth legislative powers enumerated in s 51. In Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 the court upheld the validity of the Mineral Resources Rent Tax under the taxation power. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 318 ALR 1; 89 ALJR 434; [2015] HCA 11 the court held that Queensland Rail was a trading or financial corporation subject to the corporations power. In Commonwealth v Australian Capital Territory (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55 the court held that the marriage power would authorise the Commonwealth to extend the marriage relationship to persons of the same sex. In JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 the court held that the Commonwealth legislation that required the plain packaging of cigarettes did not constitute an acquisition of property. In Chapter II (The Executive Government) several important new cases have been added. In Williams v Commonwealth (No 1) (2012) 248 CLR 156;

288 ALR 410; [2012] HCA 23 the court restricted Commonwealth executive power to contract and spend without parliamentary authorisation. In Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 the court examined the validity of legislation that sought to provide statutory authorisation for the Commonwealth to enter into agreements that require the expenditure of public moneys. In CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1; 89 ALJR 207; [2015] HCA 1 several judges considered whether detention in border protection operations could be justified as an exercise of Commonwealth executive power. Chapter III (The Judicature) includes numerous significant new decisions. In TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; 295 ALR 595; [2013] HCA 5 the court held that the Commonwealth international commercial arbitration legislation did not impair the institutional integrity of the Federal Court. In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 317 ALR 279; 89 ALJR 382; [2015] HCA 7 the court held that, when considering whether to exercise its disciplinary powers, the broadcasting authority did not violate the separation of judicial power by determining that a radio station had engaged in conduct that constituted a criminal offence. In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 the court held that Commonwealth participation in the detention of asylum seekers by the Nauruan government did not infringe Chapter III. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) now sets out procedures for parliamentary commissions that investigate and report upon allegations of misbehaviour or incapacity on the part of a Commonwealth judge. Once again, the Kable principle was raised in many cases. In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 a narrow majority of the court held that the Kable principle was not infringed by the interpretation and declaration of inconsistent interpretation provisions of the Victorian Charter of Human Rights and Responsibilities. In Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 the court upheld a State law which empowered the Supreme Court to declare that an organisation was a criminal organisation based upon confidential criminal intelligence. In

Pollentine v Bleijie (2014) 253 CLR 629; 311 ALR 332; [2014] HCA 30 the court rejected a challenge to a State provision which provided that an offender who was convicted of sexual offences against children could be detained in an institution. In Kuczborski v Queensland (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 the court upheld offences which included an element that the offender was a member of an organisation that was declared to be a criminal organisation. Chapter IV (Finance and Trade) includes important recent judgments. In Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217; 286 ALR 221; [2012] HCA 12 the court stressed that protectionism is the criterion by which discriminatory laws will be regarded as violating the freedom of interstate trade guaranteed by s 92. The prohibition upon preferences between the States (s 99) was raised in Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 and Queensland Nickel Pty Ltd v Commonwealth (2015) 318 ALR 182; 89 ALJR 451; [2015] HCA 12. In Chapter V (The States) several important issues regarding the inconsistency of Commonwealth and State laws were raised in Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34. In Chapter VI (New States) the numerous changes which have resulted from the end of selfgovernment for Norfolk Island are accompanied by a detailed examination of the unique position that had existed prior to the abolition of self-government. In North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41 several judges considered whether the principle of the separation of judicial power restricts territorial legislative power. Several abbreviations used in this book should be noted. These are: HCATrans (High Court of Australia Transcript of Proceedings); HCASL (High Court of Australia Special Leave Dispositions); SL gr (special leave to appeal granted); SLR (special leave to appeal refused). Many people have offered support or assistance in bringing this new edition to completion. Most importantly of all, we thank our loyal and patient families for their constant support. This book benefited from the excellent work of our editor Felicia Gardner. At LexisNexis Butterworths many thanks are due to Commissioning Editor

for Academic Texts Pamela O’Neill. Her predecessor Serena Cubie was extremely helpful and considerate at all times. Serena patiently shepherded through to completion the eighth edition and much of this ninth edition. She was also very helpful in other publishing ventures over the years. Former Content Development Editor Rochelle Ransom was also patient and considerate. The Curtin Law School provided invaluable financial support for the preparation of this new edition. Curtin University Foundation Dean of Law Professor Paul Fairall and Law School Business Manager Tanya Talati supported this project unreservedly. James Gergely of the Australian Government Solicitor also provided very useful assistance. This edition discusses cases and commentary available as at 10 April 2016. Gabriël A Moens John Trone 10 April 2016

TABLE OF CASES __________________________ References are to paragraph numbers A v Hayden (1984) 156 CLR 532; 56 ALR 82 (ASIS Case) …. 488 Abbott, In the Marriage of (1995) 123 FLR 424 …. 804 Abbotto v Australian Electoral Commission (1997) 144 ALR 352; 71 ALJR 675 …. 184 Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; [1999] HCA 14 …. 586, 598 Aboriginal Legal Service of Western Australia Inc v Western Australia (1993) 9 WAR 297; 113 ALR 87 …. 30, 324 Ackroyd v McKechnie (1986) 161 CLR 60; 66 ALR 287 …. 680, 875 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169; 40 ALR 609 …. 203, 290 Adams v Charles Watson Pty Ltd (1938) 60 CLR 545 …. 609 Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 (Jehovah’s Witnesses Case) …. 251, 677, 800–801 Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; 218 ALR 677; [2005] HCA 38 …. 591 Ah Sheung v Lindberg [1906] VLR 323 …. 326 Air Calédonie International v Commonwealth (1988) 165 CLR 462; 82 ALR 385 …. 225, 432, 447, 449 Airlines of New South Wales Pty Ltd v New South Wales (No 1) (1964) 113 CLR 1 …. 770 Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 …. 205, 339, 770 Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; 167 ALR 392; [1999] HCA 62 …. 225, 346

Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; 234 ALR 618; [2007] HCA 23 …. 527 Alcock v Commonwealth (2013) 210 FCR 454; 298 ALR 487; [2013] FCAFC 36 …. 353 Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271; 69 ALR 631 …. 203, 309 Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124; [2004] HCA 37 …. 29, 284, 539–539A Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630; 140 ALR 189 …. 34A, 423 Alqudsi v Commonwealth (2015) 302 FLR 454; [2015] NSWCA 351; SLR [2016] HCATrans 32 …. 341 Alqudsi v Commonwealth (2015) 327 ALR 1; 90 ALJR 192; [2015] HCA 49 …. 601 Amalgamated Metal Workers Union, Re; Ex parte Shell Co of Australia Ltd (1992) 174 CLR 345; 108 ALR 229 …. 388 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (Engineers’ Case) …. 26–27, 202, 205, 212 Amann Aviation Ltd v Commonwealth (1988) 19 FCR 223; 81 ALR 710 …. 196 Amarantos Shipping Co Ltd v South Australia (2004) 87 SASR 528; 205 ALR 459; [2004] SASC 57 …. 723 AMS v AIF (1999) 199 CLR 160; 163 ALR 501; [1999] HCA 26 …. 29, 54, 705, 828 Anderson v Commonwealth (1932) 47 CLR 50 …. 36 Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 …. 665 Andrews v Howell (1941) 65 CLR 255 …. 369 Antill Ranger and Co Pty Ltd v Commissioner for Motor Transport (1955) 93 CLR 83; (1956) 94 CLR 177 …. 868 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44 …. 128B, 583, 705, 761

Armstrong v Victoria (No 2) (1957) 99 CLR 28 …. 867 Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; 263 ALR 193; [2010] HCA 3 …. 732 Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 …. 38 Ashbury v Ellis [1893] AC 339 …. 318 ASIS Case: see A v Hayden (1984). Aston v Irvine (1955) 92 CLR 353 …. 315, 317 Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1; 7 ALR 593 …. 29, 33, 122 —v Alinta Ltd (2008) 233 CLR 542; 242 ALR 1; [2008] HCA 2 …. 37, 523, 526, 533 —v Breckler (1999) 197 CLR 83; 163 ALR 576; [1999] HCA 28 …. 37, 533 —v R; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; (1957) 95 CLR 529 (Boilermakers’ Case) …. 23–24, 65, 393, 522, 541, 560, 827 —v Schmidt (1961) 105 CLR 361 …. 345–346 —v T & G Mutual Life Society Ltd (1978) 144 CLR 161; 19 ALR 385 …. 33 —v Tse Chu-Fai (1998) 193 CLR 128; 153 ALR 128; [1998] HCA 25 …. 489 Attorney-General (Northern Territory) v Chaffey (2007) 231 CLR 651; 237 ALR 373; [2007] HCA 34 …. 202, 347, 351 —v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 …. 35, 201, 346, 610, 610F, 827–828 —v Hand (1989) 25 FCR 345; 90 ALR 59 …. 825, 828A Attorney-General (NSW) v Collector of Customs for New South Wales (1908) 5 CLR 818 (Steel Rails Case) …. 756, 790–791 —v Commonwealth Savings Bank (1986) 160 CLR 315; 65 ALR 74 …. 590 —v Gray [1977] 1 NSWLR 406 …. 634 —v Homebush Flour Mills Ltd (1937) 56 CLR 390 …. 652

—; Ex rel McKellar v Commonwealth (1977) 139 CLR 527; 12 ALR 129 …. 38 —v Ray (No 3) (1989) 99 FLR 265; 90 ALR 263 …. 755 —; Ex rel Tooth & Co Ltd v Brewery Employees’ Union of NSW (1908) 6 CLR 469 (Union Label Case) …. 26, 204, 280 Attorney-General (Qld) v Riordan (1997) 192 CLR 1; 146 ALR 445 …. 382 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; 259 ALR 197; [2013] HCA 3 …. 124, 128D, 128G Attorney-General (United Kingdom) v Heinemann Publishers Pty Ltd (1988) 165 CLR 30; 78 ALR 449 …. 489 Attorney-General (Vic) v Andrews (2007) 230 CLR 369; 233 ALR 389; [2007] HCA 9 …. 29, 267, 270, 778 —; Ex rel Black v Commonwealth (1981) 146 CLR 559; 33 ALR 321 (DOGS Case) …. 29, 33A, 717, 796, 799, 826 —; Ex rel Dale v Commonwealth (1945) 71 CLR 237 (Pharmaceutical Benefits Case) …. 16, 36, 410, 626 —v Commonwealth (1935) 52 CLR 533 (Clothing Factory Case) …. 36, 243 —v— (1962) 107 CLR 529 (Marriage Act Case) …. 297, 301 Attorney-General (WA) v Marquet (2003) 217 CLR 545; 202 ALR 233; [2003] HCA 67 …. 25, 752 Auckland Harbour Board v R [1924] AC 318 …. 634 Austin v Commonwealth (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3 …. 211, 228–229, 450, 558 Australasian Coal and Shale Employees’ Federation v Aberfield Coal Mining Co (1942) 66 CLR 161 …. 586 Australasian Meat Industry Employees’ Union, Re; Ex parte Aberdeen Beef Co Pty Ltd (1993) 176 CLR 154; 112 ALR 35 …. 391 Australian Agricultural Co Ltd v Federated Engine Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 …. 34 Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77 …. 355, 362

Australian Assistance Plan Case: see Victoria v Commonwealth and Hayden (1975) Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311 …. 379 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; [2001] HCA 63 …. 38 Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88; 66 ALR 363 …. 378, 551 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; 108 ALR 577 …. 29, 123–125, 206, 237, 752, 826 Australian Capital Territory v Pinter (2002) 121 FCR 509; [2002] FCAFC 186 …. 828 Australian Coarse Grains Pool Pty Ltd v Barley Marketing Board (1985) 157 CLR 605; 59 ALR 641 …. 878 Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46 …. 212, 412, 723–724, 756 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 317 ALR 279; 89 ALJR 382; [2015] HCA 7 …. 527 Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party Case) …. 25, 201, 246–248, 414, 583 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; 237 ALR 512; [2007] HCA 38 …. 216 —v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292; 167 ALR 303; [1999] FCA 1151 …. 37 Australian Education Union, Re; Ex parte Victoria (1995) 184 CLR 188; 128 ALR 609 …. 210, 387 —v General Manager of Fair Work Australia (2012) 246 CLR 117; 286 ALR 625; [2012] HCA 19 …. 551 Australian Electoral Commission, Re; Ex parte Kelly (2003) 198 ALR 262; 77 ALJR 1307; [2003] HCA 37 …. 90 Australian Electoral Commission v Johnston (2014) 251 CLR 463; 305 ALR

489; [2014] HCA 5 …. 184 Australian Health Insurance Association v Esso Australia (1993) 41 FCR 450; 116 ALR 253 …. 270 Australian Insurance Staffs Federation v Atlas Assurance Co (1931) 45 CLR 409 …. 384 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330; 65 ALR 637 …. 771 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 …. 40, 219, 375, 860 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 …. 747 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; 177 ALR 329; [2001] HCA 1 …. 579, 611 —v Hellicar (2012) 247 CLR 345; 286 ALR 501; [2012] HCA 17 …. 579 Australian Steamships Ltd v Malcolm (1914) 19 CLR 298 …. 723 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; 112 ALR 53 …. 225, 278, 281, 347, 349, 447, 625, 629 Australian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 …. 581 Australian Workers Union v Pastoralists’ Federal Council (1917) 23 CLR 22 …. 383 Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council (2008) 171 FCR 102; 250 ALR 485, [2008] FCA 1268 …. 287 Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449; 269 ALR 298; [2010] FCAFC 69 …. 575 Babington v Commonwealth [2016] FCAFC 45 …. 260 Baker v Commonwealth (2012) 206 FCR 229; 293 ALR 635; [2012] FCAFC 121 …. 55 Baker v R (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 …. 537, 610A, 610H

Ballard v Wright (1955) 1 FLR 473 …. 827 Bank Nationalisation Case: Bank of New South Wales v Commonwealth (1948) 76 CLR 1; (1949) 79 CLR 497 …. 38, 40, 220, 266, 345, 347, 365, 578–579, 583, 681, 685, 705, 847, 858, 861–862, 864 Bankstown Handicapped Children’s Centre Association Inc v Hillman (2010) 182 FCR 483; 265 ALR 23; [2010] FCAFC 11 …. 287 Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182; 96 ALR 524 …. 698 Barton v Commissioner for Motor Transport (1957) 97 CLR 633 …. 868 —v Commonwealth (1973) 131 CLR 477; 3 ALR 70 …. 488 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 …. 212, 216 Bateman Project Engineering Pty Ltd v Pegasus Gold Australia Pty Ltd (2000) 10 NTLR 69; 155 FLR 354; [2000] NTSC 34 …. 591 Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411; 78 ALR 669 …. 693–694, 697A Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19 …. 203, 209, 212, 237, 770, 775 Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 …. 25, 33, 54 Beach v Wagner (1959) 101 CLR 604 …. 881 Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283 …. 687, 880 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; 208 ALR 271; [2004] HCA 36 …. 539A Bennett v Commonwealth (2007) 231 CLR 91; 235 ALR 1; [2007] HCA 18 …. 131, 824 Bernard (J) & Co Pty Ltd v Langley (1980) 153 CLR 650; 32 ALR 57 …. 785 Betfair Pty Ltd v Western Australia (2008) 234 CLR 418; 244 ALR 32; [2008] HCA 11 …. 35, 211, 697A

—v Racing New South Wales (2012) 249 CLR 217; 286 ALR 221; [2012] HCA 12 …. 699, 700 Bevelon Investments Pty Ltd v City of Melbourne (1976) 135 CLR 530; 12 ALR 391 …. 422, 790 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; 211 ALR 523; [2004] HCA 61 …. 25, 568 Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 …. 601 Bierton v Higgins (1961) 106 CLR 127 …. 858 Birch v R (1994) 12 WAR 292 …. 622 Bluett v Fadden (1956) 56 SR (NSW) 254 …. 576 Board of Examiners v Lawrence (2000) 100 FCR 255; 176 ALR 305; [2000] FCA 900 …. 401 Boath v Wyvill (1989) 85 ALR 621 …. 751 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114; [2007] HCA 14 …. 583, 585–586 Boilermakers’ Case: see Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1956), (1957) Boland v Hughes (1988) 83 ALR 673 …. 842 Bolton v Madsen (1963) 110 CLR 264 …. 656, 658, 665 Bond v George A Bond Ltd & Co (1930) 44 CLR 11 …. 608 Bond v R (2000) 201 CLR 213; 169 ALR 607; [2000] HCA 13 …. 773, 778 Bond Brewing Holdings Ltd v Crawford (1990) 1 WAR 517; 92 ALR 154 …. 812 Bonser v La Macchia (1969) 122 CLR 177 …. 260 Botany Municipal Council v Federal Airports Authority (1992) 175 CLR 453; 109 ALR 321 …. 775 Bourke v State Bank of New South Wales (1990) 170 CLR 276; 93 ALR 460 …. 267, 288, 294 Boyne Smelters Ltd, Re; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 446; 112 ALR 359 …. 385

Bradken Consolidated Ltd v Broken Hill Pty Co Ltd (1979) 145 CLR 107; 24 ALR 9 …. 737 Bradlaugh v Gossett (1884) 12 QBD 271 …. 190 Bradley v Commonwealth (1973) 128 CLR 557; 1 ALR 241 …. 336 Bradshaw v Commonwealth (1925) 36 CLR 585 …. 513 Brandy v Human Rights and Equal Opportunity Commission (1996) 183 CLR 245; 127 ALR 1 …. 339, 533 Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362 …. 33, 320, 594, 751, 810, 813, 814, 815, 825 Breen v Sneddon (1961) 106 CLR 406 …. 867 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123; 281 ALR 75; [2011] FCAFC 107; SLR [2012] HCATrans 193 …. 196 British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; 200 ALR 403; [2003] HCA 47 …. 25, 38, 581, 583, 613 British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 …. 528, 561 British Medical Association v Commonwealth (1949) 79 CLR 201 …. 308 Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) (2004) 221 CLR 178; 204 ALR 46; [2004] HCA 4 …. 771 Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207 …. 213, 216 Brown v Members of the Classification Review Board of the Office of Film and Literature (1998) 82 FCR 225; 154 ALR 67; SLR [1998] HCATrans 462 …. 128 —v R (1986) 160 CLR 171; 64 ALR 161 …. 608, 619 —v West (1990) 169 CLR 195; 91 ALR 197 …. 187, 483, 628 Brownlee v R (2001) 207 CLR 278; 180 ALR 301; [2001] HCA 36 …. 29, 34A, 621 Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117 …. 654, 658 Bryant, Re; Ex parte Guarino (2001) 178 ALR 57; 75 ALJR 478; [2001]

HCA 5 …. 615 Buchanan v Commonwealth (1913) 16 CLR 315 …. 443 Buck v Bavone (1976) 135 CLR 110; 9 ALR 481 …. 34, 873 Builders’ Labourers’ Case: see R v Commonwealth Court of Conciliation and Arbitration; Ex parte G P Jones (1914) Burns v Ransley (1949) 79 CLR 101 …. 414 Burton v Honan (1952) 86 CLR 169 …. 408, 411 Burwood Cinema Ltd v Australian Theatrical Employees’ Association (1925) 35 CLR 528 …. 383 Butler v Attorney-General (Vic) (1961) 106 CLR 268 …. 778 Buzzacott v Gray [1999] FCA 1525 …. 842 Byrnes v R (1999) 199 CLR 1; 164 ALR 520; [1999] HCA 38 …. 622, 773 CGU Insurance Ltd v Blakeley (2016) 327 ALR 564; 90 ALJR 272; [2016] HCA 2 …. 591 Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; 269 ALR 204; [2010] HCA 27 …. 488 Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (No 1) (1930) 42 CLR 527 …. 390 Cameron v Deputy Federal Commissioner of Taxation (1923) 32 CLR 68 …. 229 Campbell v Metway Leasing Ltd (2002) 126 FCR 14; 195 ALR 271; [2002] FCAFC 394 …. 276 Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248; 109 ALR 1 …. 419, 625, 642, 651, 693, 730, 783, 824, 826 —v— (No 2) (1993) 178 CLR 561; 118 ALR 1 …. 34, 666 Capital Issues Case: see Marcus Clark & Co Ltd v Commonwealth (1952) Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 …. 827 Carbone v Police (1997) 68 SASR 200 …. 131 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 …. 239, 424, 778

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; 67 ALR 553 …. 585 —v— (1990) 169 CLR 436; 90 ALR 371 …. 696–697 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207; 235 ALR 750; [2006] VSCA 284 …. 128C Ceil Comfort Insulation Pty Ltd v ARM Equipment Finance Pty Ltd (2001) 159 FLR 310; [2001] NSWSC 28 …. 806 Chau v Director of Public Prosecutions (1995) 37 NSWLR 639; 132 ALR 430 …. 726, 728 Cheatle v R (1993) 177 CLR 541; 118 ALR 1 …. 620–621 Cheedy v Western Australia (2011) 194 FCR 562; [2011] FCAFC 100 …. 796 Cheng v R (2000) 203 CLR 248; 175 ALR 338; [2000] HCA 53 …. 25, 619 Cheung v R (2001) 209 CLR 1; 185 ALR 111; [2001] HCA 67 …. 621 Chia Gee v Martin (1905) 3 CLR 649 …. 204 Chief Executive Officer of Customs v El Hajje (2005) 224 CLR 159; 218 ALR 457; [2005] HCA 35 …. 25 China Shipping (Australia) Agency Co Pty Ltd v DV Kelly Pty Ltd (2010) 79 NSWLR 650; [2010] NSWSC 1556 …. 607 Chiou Yaou Fa v Morris (1987) 46 NTR 1; 87 FLR 36 …. 260 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97 …. 283–284, 539, 548 Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; 49 ALR 65 …. 797 Clampett v Kerslake [2009] QCA 104; SLR [2010] HCASL 280 …. 264 Clampett v Attorney-General (Cth) (2009) 181 FCR 473; 260 ALR 462; [2009] FCAFC 151 …. 264 Clark King & Co Pty Ltd v Australian Wheat Board (1978) 140 CLR 120; 21 ALR 1 …. 876 Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272; 258 ALR 623; [2009] HCA 33 …. 228

Clodumar v Nauru Lands Committee (2012) 245 CLR 561; 288 ALR 208; [2012] HCA 22 …. 591 Clothing Factory Case: see Attorney-General (Vic) v Commonwealth (1935) Clough v Leahy (1904) 2 CLR 139 …. 488 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 …. 762, 771, 774 Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory (2013) 215 FCR 377; 300 ALR 476; [2013] FCA 154 …. 825 Cockle v Isaksen (1957) 99 CLR 155 …. 561 Coe v Commonwealth (1993) 118 ALR 193; 67 ALJR 110 …. 30 —v— [2001] NSWCA 36 …. 30 Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42 …. 33, 34A, 218, 673, 675–676, 689–692, 694, 697, 700–703, 847, 861, 867 Coleman v Power (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 …. 38, 128A, 128G Colina, Re; Ex parte Torney (1999) 200 CLR 386; 166 ALR 545; [1999] HCA 57 …. 619, 622 Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 …. 560, 591, 597 Colonel Aird, Re; Ex parte Alpert (2004) 220 CLR 308; 209 ALR 311; [2004] HCA 44 …. 245 Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1914) 17 CLR 644 …. 488 Combet v Commonwealth (2005) 224 CLR 494; 221 ALR 621; [2005] HCA 61 …. 455, 629, 634–635, 710, 721 Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47; 66 ALR 217 …. 776 Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 …. 33A Commissioner for the State Savings Bank of Victoria v Permewan Wright and Co Ltd (1914) 19 CLR 457 …. 266 Commissioner of Taxation v Clyne (1958) 100 CLR 246 …. 346, 729 Commonwealth Oil Refineries Ltd v South Australia (1926) 38 CLR 408 …. 652, 855

Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85; 248 ALR 494; [2008] FCAFC 104 …. 607 —v Arklay (1952) 87 CLR 159 …. 364 —v Australian Capital Territory (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55 …. 29, 33A, 296, 825 —v Australian Commonwealth Shipping Board (1926) 39 CLR 1 …. 243 —v Bogle (1953) 89 CLR 229 …. 758, 760 —v Burns [1971] VR 825 …. 634 —v Cigamatic Pty Ltd (1962) 108 CLR 372 …. 212, 757, 759–760 —v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 …. 484, 488 —v Davis Samuel Pty Ltd (No 7) (2013) 282 FLR 1; [2013] ACTSC 146 …. 634 —v Evans Deakin Industries Ltd (1986) 161 CLR 254; 66 ALR 412 …. 613 —v Hamilton [1992] 2 Qd R 257 …. 634 —v Huon Transport Pty Ltd (1945) 70 CLR 293 …. 353, 362–363 —v Mewett (1997) 191 CLR 471; 146 ALR 299 …. 25, 351, 578, 613 —v New South Wales (1923) 33 CLR 1 …. 367, 767 —v Queensland (1920) 29 CLR 1 …. 234, 756 —v Tasmania (1983) 158 CLR 1; 46 ALR 625 (Tasmanian Dam Case) …. 26–28A, 33A, 201–203, 205, 287, 290, 323–324, 338–339, 341, 347–348, 415, 732 —v Western Australia (1999) 196 CLR 392; 160 ALR 638; [1999] HCA 5 …. 215, 760, 777 —v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1; [1998] HCA 8 …. 281, 339, 347, 352 —v Wood (2006) 148 FCR 276; (2006) 227 ALR 631; [2006] FCA 60 …. 607 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 318 ALR 1; 89 ALJR 434; [2015] HCA 11 …. 202, 287–288

Communist Party Case: see Australian Communist Party v Commonwealth (1951) Community and Public Sector Union v Commonwealth (1995) 69 ALJR 667 …. 637 Concerned Citizens of Canberra v Chief Planning Executive (2014) 286 FLR 355; [2014] ACTSC 165; leave to appeal refused [2015] ACTCA 56 …. 804, 826 Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 …. 601CA–610D, 610H Conroy v Carter (1968) 118 CLR 90 …. 229 Construction, Forestry, Mining and Energy Union v Warren (1999) 85 FCR 599; [1999] FCA 312 …. 611 Cormack v Cope (1974) 131 CLR 432; 3 ALR 419 …. 38, 464, 475 Cormick v Cormick (1984) 156 CLR 170; 56 ALR 245 …. 299 Corporations Act Case: see New South Wales v Commonwealth (1990) Cosway v Commonwealth (1942) 65 CLR 628 …. 638 Coutts v Commonwealth (1985) 157 CLR 91; 59 ALR 699 …. 515 Cox v Journeaux (1934) 52 CLR 282 …. 581 CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1; 89 ALJR 207; [2015] HCA 1 …. 25, 336, 483, 488, 515 Cram, Re; Ex parte New South Wales Colliery Proprietors’ Association Ltd (1987) 163 CLR 117; 72 ALR 161 …. 388 —, Re; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140; 72 ALR 173 …. 527 Crampton v R (2000) 206 CLR 161; 176 ALR 369; [2000] HCA 60 …. 564 Crespin and Son v Colac Co-operative Farmers Ltd (1916) 21 CLR 205 …. 408 Crittenden v Anderson (1950) 51 ALJ 171 …. 804A Croome v Tasmania (1997) 191 CLR 119; 142 ALR 397 …. 36–36B, 575 Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; 62 ALR 1 …. 581

—v Commonwealth (1948) 77 CLR 339 …. 36 Crowe v Commonwealth (1935) 54 CLR 69 …. 22, 202, 221, 727 Crump v New South Wales (2012) 247 CLR 1; 286 ALR 658; [2012] HCA 20 …. 568 Cunliffe v Commonwealth (1994) 182 CLR 272; 124 ALR 120 …. 126, 201, 285, 704–705 Cusack, Re (1985) 66 ALR 93; 60 ALJR 302 …. 204 Dalton v NSW Crime Commission (2006) 227 CLR 490; 226 ALR 570; [2006] HCA 17 …. 316 Daly v Victoria (1920) 28 CLR 395 …. 582 Damjanovic and Sons Pty Ltd v Commonwealth (1968) 117 CLR 390 …. 34 Daniels v Deputy Commissioner of Taxation [2007] SASC 431 …. 37 Danielsen v Onesteel Manufacturing Pty Ltd (2009) 224 FLR 319; 253 ALR 661; [2009] SASC 56 …. 37 Dao v Australian Postal Commission (1987) 162 CLR 317; 70 ALR 449 …. 772 Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 …. 35, 280, 409, 415, 487, 628, 825 Dawson v Commonwealth (1946) 73 CLR 157 …. 240 De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640; 139 ALR 417 …. 339 Deacon v Mitchell (1965) 112 CLR 353 …. 880 DEF, Re (2005) 192 FLR 92; [2005] NSWSC 534 …. 812 Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257; 132 ALR 307 …. 346 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 …. 654, 659, 661–666 Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383; [1999] FCA 1580 …. 67 —v Richard Walter Pty Ltd (1995) 183 CLR 168; 127 ALR 21 …. 583 —v State Bank of New South Wales (1992) 174 CLR 219; 105 ALR 161 ….

790, 792 —v Truhold Benefit Pty Ltd (1985) 158 CLR 678; 59 ALR 431 …. 227 —v Warrick (No 2) (2004) 56 ATR 371; [2004] FCA 918 …. 37 Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd (1939) 61 CLR 735; (1940) 63 CLR 338 …. 229–230, 232, 718 Dickfoss v Director of Public Prosecutions (2012) 31 NTLR 16; 256 FLR 345; [2012] NTCA 1; SLR [2012] HCATrans 139 …. 346 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177; 2 ALR 460 …. 656, 661–662, 664–666 Dickson v R (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30 …. 770–772A, 774–775 Dietrich v R (1992) 177 CLR 292; 108 ALR 385 …. 336 Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188 …. 190 Dingjan, Re; Ex parte Wagner (1995) 183 CLR 323; 128 ALR 81 …. 40, 288, 291, 526 Director of Public Prosecutions v B (1998) 194 CLR 566; 155 ALR 539; [1998] HCA 45 …. 574 —, Re; Ex parte Lawler (1994) 179 CLR 270; 119 ALR 655 …. 260, 345–346 Ditfort, Re; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347; 83 ALR 265 …. 575 Ditchburn v Divisional Returning Officer (1999) 165 ALR 151; [1999] HCA 41 …. 123, 143 DJL v Central Authority (2000) 201 CLR 226; 170 ALR 659; [2000] HCA 17 …. 540B DOGS Case: see Attorney-General (Vic); Ex rel Black v Commonwealth (1981) Donohoe v Wong Sau (1925) 36 CLR 404 …. 327 Dougherty v Dougherty (1987) 163 CLR 278; 72 ALR 550 …. 300 Dowd v Dowd [1946] St R Qd 16 …. 313 Duncan v Independent Commission Against Corruption (2015) 324 ALR 1;

89 ALJR 835; [2015] HCA 32 …. 551, 610C, 610H —v New South Wales (2015) 318 ALR 375; 89 ALJR 462; [2015] HCA 13 …. 25, 549 —v Queensland (1916) 22 CLR 556 …. 679, 848–849 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; 177 ALR 436; [2001] HCA 7 …. 33, 353, 754 Dymond, Re (1959) 101 CLR 11 …. 446 East, Re; Ex parte Nguyen (1998) 196 CLR 354; 159 ALR 108; [1998] HCA 73 …. 336, 576 Eastgate v Rozzoli (1990) 20 NSWLR 188 …. 475 Eastman v R (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29 …. 29, 33A, 564 Edwards v Santos (2011) 242 CLR 421; 275 ALR 489; [2011] HCA 8 …. 584 Egan v Willis (1998) 195 CLR 424; 158 ALR 527; [1998] HCA 71 …. 189, 192, 488 Elbe Shipping SA v Ship ‘Global Peace’ (2006) 154 FCR 439; 232 ALR 694; [2006] FCA 954 …. 593 Elliott v Commonwealth (1936) 54 CLR 657 …. 229, 728–730 Emmerson v Director of Public Prosecutions (2013) 33 NTLR 1; 166 NTR 12; [2013] NTCA 4; reversed on different grounds (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 …. 828 Engineers’ Case: see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 …. 756, 790 Estate of Tamburin, Re (2014) 119 SASR 143; [2014] SASC 58 …. 812 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311; 52 ALR 401 …. 34A, 663

F, Re; Ex parte F (1986) 161 CLR 376; 66 ALR 193 …. 201, 300–301, 303 Fabre v Ley (1972) 127 CLR 665 …. 145 FAI Insurances Ltd v Winneke (1982) 151 CLR 342; 41 ALR 1 …. 506 Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 …. 28, 205, 225–226 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 …. 610B Farey v Burvett (1916) 21 CLR 433 …. 240, 242 Federal Commissioner of Taxation v Barnes (1975) 133 CLR 483; 8 ALR 631 …. 346 —v Clyne (1958) 100 CLR 246 …. 38, 229, 346, 729 —v Futuris Corporation Ltd (2008) 237 CLR 146; 247 ALR 605; [2008] HCA 32 …. 586 —v Munro (1926) 38 CLR 153 …. 446, 561 —v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 …. 758 Federal Roads Case: see Victoria v Commonwealth (1926). Federated Saw Mill &c Employees of Australasia v James Moore & Son Pty Ltd (1909) 8 CLR 465 …. 778 Federated Storemen and Packers Union of Australia, Re; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311; 84 ALR 80 …. 33, 385 Felicity, Re (2012) 84 NSWLR 25; [2012] NSWSC 494; LR (2013) 84 NSWLR 39; [2013] NSWCA 21 …. 398 Felton v Mulligan (1971) 124 CLR 367 …. 605 Fencott v Muller (1983) 152 CLR 570; 46 ALR 41 …. 287, 592 Ffrost v Stevenson (1937) 58 CLR 528 …. 605 Finemores Transport Pty Ltd v New South Wales (1978) 139 CLR 338; 19 ALR 289 …. 867 Fingleton v R (2005) 227 CLR 166; 216 ALR 474; [2005] HCA 34 …. 564 Firth, In the Marriage of (1988) 12 Fam LR 547 …. 804 Fish Board v Paradiso (1956) 95 CLR 443 …. 870

Fisher v Fisher (1986) 161 CLR 438; 67 ALR 513 …. 300, 563 Fittock v R (2003) 217 CLR 508; 197 ALR 1; [2003] HCA 19 …. 620 Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch) …. 32 Flaherty v Girgis (1987) 162 CLR 574; 71 ALR 1 …. 314 Foggitt, Jones & Co Ltd v New South Wales (1916) 21 CLR 357 …. 848 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; 229 ALR 223; [2006] HCA 44 …. 556, 608, 610A, 610C Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 …. 228–229, 671, 728, 730 Fountain v Alexander (1982) 150 CLR 615; 40 ALR 441 …. 298 Fox v Robbins (1909) 8 CLR 115 …. 673, 787, 848 Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 …. 40 Free v Kelly (1996) 185 CLR 296; 138 ALR 649 …. 171 Fringe Benefits Tax Case, First: Queensland v Commonwealth (1987) 162 CLR 74; 69 ALR 207 …. 791 —, Second: State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329; 73 ALR 161 …. 225, 446, 451 Fuller, Re; Wily v Fuller (1998) 86 FCR 85 …. 276 Gamogab v Akiba (2007) 159 FCR 578; 241 ALR 123; [2007] FCAFC 74 …. 575 Garnishee Case, First: New South Wales v Commonwealth (No 1) (1931) 46 CLR 155 …. 745, 747 —, Third: New South Wales v Commonwealth (No 3) (1932) 46 CLR 246 …. 747 Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227; 38 ALR 25 …. 412 General Practitioners Society of Australia v Commonwealth of Australia (1980) 145 CLR 532; 31 ALR 369 …. 308 George Hudson Ltd v Australian Timber Workers’ Union (1922) 32 CLR 413 …. 383

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; 119 ALR 629 …. 347, 351 Gill v Deputy Child Support Registrar (1993) 60 SASR 563 …. 625 Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 …. 22 Glennan v Commissioner of Taxation (2003) 198 ALR 250; 77 ALJR 1195; [2003] HCA 31 …. 586 Golden v Hotchkiss (1959) 101 CLR 568 …. 881 Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463; 120 ALR 605 …. 808, 815 Gosford Meats Pty Ltd v New South Wales (1985) 155 CLR 368; 57 ALR 417 …. 662 Gould v Brown (1998) 193 CLR 346; 151 ALR 395; [1998] HCA 6 …. 34A, 40 Governor, Goulburn Correctional Centre, Re; Ex parte Eastman (1999) 200 CLR 322; 165 ALR 171; [1999] HCA 44 …. 419, 824, 827, 836 Grace Bible Church v Reedman (1984) 36 SASR 376; 54 ALR 571 …. 796 Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269 …. 364 Graham v Paterson (1950) 81 CLR 1 …. 398–399 Grain Pool of WA Ltd v Commonwealth (2000) 202 CLR 479; 170 ALR 111; [2000] HCA 14 …. 29, 33A, 202, 279–280 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 …. 40, 687, 878, 880 Gratwick v Johnson (1945) 70 CLR 1 …. 702 Graziers’ Association of New South Wales v Labor Daily Ltd (1930) 44 CLR 1 …. 202 Green, Re (2011) 275 ALR 437; 85 ALJR 423; [2011] HCA 5 …. 184 Grollo v Palmer (1995) 184 CLR 348; 131 ALR 225 …. 545 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; 242 ALR 191; [2008] HCA 4 …. 25, 568, 610CA

H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; 156 ALR 563; [1998] HCA 54 …. 537A, 551, 610H H C Sleigh Ltd v South Australia (1977) 136 CLR 475; 12 ALR 449 …. 663, 879 Ha v New South Wales (1997) 189 CLR 465; 146 ALR 355 …. 33, 34A, 453, 652, 666, 708 Halliday v Commonwealth (2000) 45 ATR 458; [2000] FCA 950 …. 308 Hamsher v Swift (1992) 33 FCR 545 …. 196 Harding v Federal Commissioner of Taxation (1917) 23 CLR 119 …. 450 Harkianakis v Skalkos (1999) 47 NSWLR 302; [1999] NSWSC 505 …. 799 Harper v Minister for Sea Fisheries (1989) 168 CLR 314; 88 ALR 38 …. 653 —v Victoria (1966) 114 CLR 361 …. 657, 871 Harrington v Lowe (1996) 190 CLR 311; 136 ALR 42 …. 538 Harris v Caladine (1991) 172 CLR 84; 104 ALR 89 …. 538, 608 —v Harris [1947] VLR 44 …. 810, 812–813 Harris v Wagner (1959) 103 CLR 452 …. 881 Hartley v Walsh (1937) 57 CLR 372 …. 858 Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434; [2011] HCA 28 …. 38, 547, 549 Health Insurance Commission v Peverill (1994) 179 CLR 226; 119 ALR 675 …. 310, 352, 448 Heerey, Re; Ex parte Heinrich (2001) 185 ALR 106; [2001] HCA 74 …. 585 Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502; 277 ALR 332; [2011] FCAFC 62 …. 770 Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302; 74 ALJR 68; [1999] HCA 56 …. 54 Hematite Petroleum Pty Ltd v Victoria (1973) 151 CLR 599; 47 ALR 641 …. 668 Henry v Boehm (1973) 128 CLR 482; 1 ALR 181 …. 806–807 Herald and Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 ….

237 Higgins v Commonwealth (1998) 79 FCR 528; 160 ALR 175 …. 201, 310 Hilton v Wells (1985) 157 CLR 57; 58 ALR 245 …. 544 Hogan v Hinch (2011) 243 CLR 506; 275 ALR 408; [2011] HCA 4 …. 128C, 610C, 610H Holmdahl v Australian Electoral Commission (No 2) (2012) 277 FLR 101; [2012] SASCFC 110; SLR [2013] HCATrans 72 …. 145 Holmes v Angwin (1906) 4 CLR 297 …. 568 Home Benefits Pty Ltd v Crafter (1939) 61 CLR 701 …. 874 Hopper v Egg Pulp Marketing Board (1939) 61 CLR 665 …. 589 Horta v Commonwealth (1994) 181 CLR 183; 123 ALR 1 …. 204, 575 Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1 …. 682, 686, 871 Hoxton Park Residents’ Action Group Inc v Liverpool City Council (2010) 246 FLR 207; [2010] NSWSC 1312 …. 796, 799A —v — (2015) 294 FLR 254; [2015] NSWSC 136 …. 799A —v — (No 2) (2011) 256 FLR 156; [2011] NSWCA 363 …. 796 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 …. 204, 289, 523 Huddart Parker Ltd v Commonwealth (1931) 44 CLR 492 …. 202 Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203 …. 475 —v New South Wales (1953) 87 CLR 49 …. 864 —v New South Wales (No 1) (1954) 93 CLR 1 …. 737, 864 —v New South Wales (No 2) (1955) 93 CLR 127 …. 865–867 Hughes v Tasmania (1955) 93 CLR 113 …. 880 Hume v Palmer (1926) 38 CLR 441 …. 770 Hyde v Hyde (1866) LR 1 P & D 130 …. 296 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 …. 17, 25, 345, 347, 352–353, 369, 716, 719

Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647; [2008] HCA 40 …. 34 Incorporation Case: see New South Wales v Commonwealth (1990) Industrial Relations Act Case: see Victoria v Commonwealth (1996) Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 …. 578–579 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49 …. 549, 610A, 610F J & J Ward Pty Ltd v Williams (1969) 119 CLR 318 …. 881 Jacobsen v Rogers (1995) 182 CLR 572; 127 ALR 159 …. 214 Jaffarie v Director General of Security (2014) 226 FCR 505; 313 ALR 593; [2014] FCAFC 102; SLR [2015] HCATrans 13 …. 330 James v Commonwealth (1928) 41 CLR 442 …. 727, 856 —v— (1935) 52 CLR 570 …. 856 —v— (1936) 55 CLR 1 …. 674, 847, 853, 856, 869, 872 —v — (No 2) (1939) 62 CLR 339 …. 37 —v Cowan (1930) 43 CLR 386 …. 673, 872 —v— (1932) 47 CLR 386 …. 851, 856 —v South Australia (1927) 40 CLR 1 …. 851, 872 James Hardie & Co Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 …. 810 Jehovah’s Witnesses Case: see Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; 280 ALR 206; [2011] HCA 33…. [770]–[771] Jenkins v Commonwealth (1947) 74 CLR 400 …. 242 —v Territory Insurance Office (2001) 11 NTLR 121; 165 FLR 287; [2001] NTSC 92 …. 828 Jessup v Queensland Housing Commission [2002] 2 Qd R 270; [2001] QCA

312 …. 634 John Cooke & Co Pty Ltd v Commonwealth (1924) 34 CLR 269 …. 353 John Fairfax and Sons Ltd v New South Wales (1926) 39 CLR 139 …. 652 John Fairfax Publications v Doe (1995) 37 NSWLR 81; 130 ALR 488 …. 237 John Holland Pty Ltd v Victorian Workcover Authority (2009) 239 CLR 518; 260 ALR 95; [2009] HCA 45 …. 775, 778 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625; [2000] HCA 36 …. 38, 810, 815 Johnson v Minister of Health [1947] 2 All ER 395 …. 536 Johnston Fear & Kingham & Offset Printing Co Pty Ltd v Commonwealth (1943) 67 CLR 314 …. 356 Jones v Chief of Navy (2012) 205 FCR 458; 294 ALR 28; [2012] FCAFC 125 …. 622 Jones v Commonwealth (No 2) (1965) 112 CLR 206 …. 33A, 237 Joosse v Australian Securities and Investments Commission (1998) 159 ALR 260; 73 ALJR 232; [1998] HCA 77 …. 54 Joseph v Colonial Treasurer (NSW) (1918) 25 CLR 32 …. 515 JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 …. 40, 281, 345–348A Judd v McKeon (1926) 38 CLR 380 …. 90 Judiciary and Navigation Acts, Re (1921) 29 CLR 257 …. 574–575 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 …. 202, 386, 389 KS v Veitch (2012) 300 ALR 181; [2012] NSWCCA 186 …. 37 K W Thomas (Melbourne) Pty Ltd v Groves [1958] VR 189 …. 314 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577 …. 24, 560, 568, 610–610C, 762, 827 Kakariki, The: Victoria v Commonwealth (1937) 58 CLR 618 …. 771, 774 Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516;

[2005] FCAFC 248 …. 270 Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135; 119 ALR 305 …. 423 Karlsson v Sorbello (1998) 148 FLR 374 …. 237 Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 …. 29, 33, 202, 239, 322, 324, 842 Katsuno v R (1999) 199 CLR 40; 166 ALR 159; [1999] HCA 50 …. 621 Kean v Commonwealth (1963) 5 FLR 432 …. 782 Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268; 254 ALR 637; [2009] HCA 18 …. 560 Kerrison v Melbourne City Council (2014) 228 FCR 87; 314 ALR 241; [2014] FCAFC 130 …. 130 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471; [2009] HCA 4 …. 568, 607, 610, 610CA King v Jones (1972) 128 CLR 221 …. 33A, 165 Kingswell v R (1985) 159 CLR 264; 62 ALR 161 …. 618–619 Kiorgaard v Kiorgaard [1967] St R Qd 162 …. 804 Kirk v Industrial Relations Commission (2010) 239 CLR 531; 262 ALR 569; [2010] HCA 1 …. 560, 568, 810 Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461; 58 ALR 108 …. 571 Kithock Pty Ltd v Commissioner for Australian Capital Revenue (1999) 138 ACTR 1; [1999] ACTSC 85 …. 730 Kizon v Palmer (1997) 72 FCR 409; 142 ALR 488 …. 201 Kline v Official Secretary to the Governor General (2013) 249 CLR 645; 304 ALR 116; [2013] HCA 52….488 Koon Wing Lau v Calwell (1949) 80 CLR 533 …. 284, 329–330 Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417 …. 27, 202, 323, 338–339, 341, 762 Koroitamana v Commonwealth (2006) 227 CLR 31; 227 ALR 406; [2006] HCA 28 …. 283

Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 …. 10, 35, 38, 42, 130–131, 540, 550, 783, 796, 800, 803, 806, 813, 826–827, 839 Krygger v Williams (1912) 15 CLR 366 …. 801 Kuczborski v Queensland (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 …. 25, 36A–36B, 574, 610E, 610H Lamb v Cockatoo Docks & Engineering Co Pty Ltd (1960) 61 SR (NSW) 459 …. 778 Lamshed v Lake (1958) 99 CLR 132 …. 318, 825–826 Lane v Morrison (2009) 252 ALR 605; 83 ALJR 377; [2009] HCA 5 …. 37 Lane v Morrison (2009) 239 CLR 230; 258 ALR 404; [2009] HCA 29 …. 245, 515, 547 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 …. 10, 29, 34A, 38, 124, 127, 502, 560, 754, 810 Langer v Commonwealth (1996) 186 CLR 302; 134 ALR 400 …. 87, 123, 126, 145 Lansell v Lansell (1964) 110 CLR 353 …. 33A, 303 Le Leu v Commonwealth (1921) 29 CLR 305 …. 424 Le Mesurier v Connor (1929) 42 CLR 481 …. 482, 608 Leask v Commonwealth (1996) 187 CLR 579; 140 ALR 1 …. 35, 201, 264 Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543; 67 ALR 195 …. 802 Lee, Re; Ex parte Harper (1986) 160 CLR 430; 65 ALR 577 …. 209, 387 Lee v Commonwealth (2014) 220 FCR 300; [2014] FCA 432 …. 735 Lee v Commonwealth (2014) 229 FCR 431; 315 ALR 427; [2014] FCAFC 174; SLR [2015] HCATrans 123 …. 732, 735 Leeth v Commonwealth (1992) 174 CLR 455; 107 ALR 672 …. 42, 50, 54, 131, 550, 608, 806, 819 Levy v Victoria (1997) 189 CLR 579; 146 ALR 248 …. 37, 127–128 Lipohar v R (1999) 200 CLR 485; 168 ALR 8; [1999] HCA 65 …. 560, 578, 810

Local Government Association of Queensland (Inc) v Queensland [2003] 2 Qd R 354; [2001] QCA 517 …. 145 Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59; 12 ALR 484 …. 668 Lohe v Gunter [2003] QSC 150 …. 204 Lorenzo v Carey (1921) 29 CLR 243 …. 603 Love v Attorney-General (NSW) (1990) 169 CLR 307; 90 ALR 322 …. 521 Ludeke, Re; Ex parte Queensland Electricity Commission (1985) 159 CLR 178; 60 ALR 641 …. 381 Luton v Lessels (2002) 210 CLR 333; 187 ALR 529; [2002] HCA 13 …. 446, 526 M G Kailis Pty Ltd v Western Australia (1974) 130 CLR 245; 2 ALR 513 …. 662 MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28 …. 571, 585–586, 605 Mabo v Queensland (No 1) (1988) 166 CLR 186; 83 ALR 14 …. 762, 772 Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 …. 30 Macks, Re; Ex parte Saint (2000) 204 CLR 158; 176 ALR 545; [2000] HCA 62 …. 38, 777 McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530 …. 30, 219, 680, 847, 849–850, 854, 856, 869 McBain, Re; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1; [2002] HCA 16 …. 36, 575 McCarter v Brodie (1950) 80 CLR 432 …. 864 McClintock v Commonwealth (1947) 75 CLR 1 …. 38, 348 McCloy v New South Wales (2015) 325 ALR 15; 89 ALJR 857; [2015] HCA 34 …. 35, 124, 128G, 491 McClure v Australian Electoral Commission (1999) 163 ALR 734; 73 ALJR 108; [1999] HCA 31 …. 124, 128, 184 MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622; 52

ALR 53 …. 227, 346 McDonald v Director of Public Prosecutions (2010) 26 VR 242; [2010] VSCA 45 …. 30 McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 …. 29, 32, 34, 87, 103, 123, 129, 202, 395, 491, 502, 753–754 McGlew v New South Wales Malting Co Ltd (1918) 25 CLR 416 …. 314 McGuinness v Attorney-General for Victoria (1940) 63 CLR 73 …. 488 McJannet, Re; Ex Parte Minister for Employment Training and Industrial Relations (Qld) (1995) 184 CLR 620; 132 ALR 198 …. 584 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; 104 ALR 257 …. 814–815 McKenzie v Commonwealth (1984) 57 ALR 747; 59 ALJR 190 …. 106 McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 335; 74 ALJR 1000; [2000] HCA 27 …. 67 McLean, Ex parte (1930) 43 CLR 472 …. 774 McWaters v Day (1989) 168 CLR 289; 89 ALR 83 …. 776 Magaming v The Queen (2013) 252 CLR 381; 302 ALR 461; [2013] HCA 40 …. 537 Maguire v Simpson (1977) 139 CLR 362; 18 ALR 469 …. 212, 579, 759 Mann v Carnell (1999) 201 CLR 1; 168 ALR 86; [1999] HCA 66 …. 828A Mansell v Beck (1956) 95 CLR 550 …. 874 Manufacturing Grocers Employees Federation of Australia and Association of Professional Engineers, Australia, Re; Ex parte Australian Chamber of Manufacturers and Victorian Employers’ Federation (1986) 160 CLR 341; 65 ALR 461 …. 388 Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177 (Capital Issues Case) …. 248 Marine Board of Launceston v Minister of State for the Navy (1945) 70 CLR 518 …. 362–363 Maritime Union of Australia, Re; Ex parte CSL Pacific Inc (2003) 214 CLR 397; 200 ALR 39; [2003] HCA 43 …. 203, 220

Marks v Commonwealth (1964) 111 CLR 549 …. 488 Marriage Act Case: see Attorney-General (Vic) v Commonwealth (1962) Mason v New South Wales (1959) 102 CLR 108 …. 38 Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44; [2008] HCA 38 …. 770 Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171; [2000] NSWSC 975 …. 576 Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 …. 225, 653–654, 668 Mauger v Mauger [1967] St R Qd 62 …. 804 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (State Banking Case) …. 205, 207, 266–267, 762 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; 104 ALR 89 …. 563, 574 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538; [2002] HCA 58 …. 30 Merwin Pastoral Company Pty Ltd v Moolpa Pastoral Co Ltd (1932) 48 CLR 565 …. 813 Metal Trades Employers’ Association v Amalgamated Engineering Union (1935) 54 CLR 387 …. 383 Meyerhoff v Darwin City Council (2005) 16 NTLR 222; [2005] NTCA 8 …. 128 Mickelberg v R (1989) 167 CLR 259; 86 ALR 321 …. 564 Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 …. 871 Milk Board (NSW) v Metropolitan Cream Pty Ltd (1939) 62 CLR 116 …. 858 Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; 67 ALR 321 …. 40, 688 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; 75 ALR 218; SLR (1987) 165 CLR 668 …. 575 Minister for Employment and Workplace Relations v Gribbles Radiology Pty

Ltd (2005) 222 CLR 194; 214 ALR 24; [2005] HCA 9 …. 379 Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373; 71 ALR 578 …. 796, 802 —v Teoh (1995) 183 CLR 273; 128 ALR 353 …. 336 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Ame (2005) 222 CLR 439; 218 ALR 483; [2005] HCA 36 …. 285, 829 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; 206 ALR 130; [2004] HCA 20 …. 336 —v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 …. 284, 330 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 …. 586 —, Re; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 …. 336 —, Re; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 …. 583, 586 —, Re; Ex parte Te (2002) 212 CLR 162; 193 ALR 37; [2002] HCA 48 …. 283–284 Minister of State for the Army v Dalziel (1944) 68 CLR 261 …. 347, 354 —v Parbury Henty & Co Ltd (1945) 70 CLR 459 …. 357 Minister of State for the Navy v Rae (1945) 70 CLR 339 …. 358 Mitchell v Bailey (No 2) (2008) 169 FCR 529; 250 ALR 130; [2008] FCA 692 …. 184 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; 189 ALR 161; [2002] HCA 27 …. 568 Mok v Director of Public Prosecutions (NSW) [2016] HCA 13 …. 314, 621, 778 Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 …. 40, 568, 582–583, 610, 610G, 770, 772A, 774–775, 777

Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 …. 25, 40, 124, 128G Morgan v Commonwealth (1947) 74 CLR 421 …. 724, 726, 731 Muldowney v Australian Electoral Commission (1993) 178 CLR 34; 114 ALR 513 …. 184 —v South Australia (1996) 186 CLR 352; 136 ALR 18 …. 126, 754 Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209 ALR 582; [2004] HCA 41 …. 38, 92, 103, 123, 128B, 130, 145 Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 …. 33, 789–790 Murphy v Lush (1986) 65 ALR 651; 60 ALJR 523 …. 557 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; 9 ALR 199 …. 28, 201, 203, 221, 226 Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155; 119 ALR 577 …. 227, 346–347, 349, 373, 613, 640 —v Federal Commissioner of Taxation (1992) 173 CLR 450; 104 ALR 545 …. 452–453 NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; 307 ALR 90; [2014] FCAFC 39 …. 284 NZA v Minister for Immigration and Citizenship (2013) 59 AAR 294; 140 ALD 555; [2013] FCA 140 …. 57 Naracoorte Transport Co Pty Ltd v Butler (1956) 95 CLR 455 …. 881 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681 …. 35, 40, 125, 201, 393, 408, 703–704 Native Title Act Case: see Western Australia v Commonwealth (1995) Nelson v Fish (1990) 21 FCR 430; 92 ALR 187 …. 799, 804 Nelson, Ex parte (No 1) (1928) 42 CLR 209 …. 258, 762, 785, 852 Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 …. 359, 361 New v New, High Court of Australia, Special Leave Application, 5 March 1982 …. 796

New South Wales v Bardolph (1935) 52 CLR 455 …. 582 —v Commonwealth (1908) 7 CLR 179 …. 14, 710 —v— (1915) 20 CLR 54 (Wheat Case) …. 569, 734–735, 739, 848, 851 —v— (1975) 135 CLR 337; 8 ALR 1 (Seas and Submerged Lands Case) …. 30, 260, 340, 343, 491, 493, 765 —v— (1990) 169 CLR 482; 90 ALR 355 (Corporations Act Case/Incorporation Case) …. 28A, 33, 205, 288, 293 —v— (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 (Work Choices Case) …. 25–27, 28A–29, 33, 202–203, 288, 292, 377, 749, 762, 778, 846 —v— (No 1) (1931) 46 CLR 155 (First Garnishee Case) …. 745, 747 —v— (No 3) (1932) 46 CLR 246 (Third Garnishee Case) …. 747 —v Kable (2013) 252 CLR 118; 298 ALR 144; [2013] HCA 26 …. 38 Newcastle and Hunter River Steamship Co Ltd v Attorney-General (Commonwealth) (1921) 29 CLR 357 …. 723 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; 147 ALR 42 …. 29, 204, 339, 783, 826 Ng v R (2003) 217 CLR 521; 197 ALR 10; [2003] HCA 20 …. 620–621 Ngurampaa Ltd v Balonne Shire Council [2014] QSC 146 …. 30 Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161 …. 34 Nicholas v R (1998) 193 CLR 173; 151 ALR 312; [1998] HCA 9 …. 551 Nile v Wood (1988) 167 CLR 133; 76 ALR 91 …. 172, 174–175 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134; 121 ALR 577 …. 281, 346, 350 Nolan, Re; Ex parte Young (1991) 172 CLR 460; 100 ALR 645 …. 39, 245, 547 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; 80 ALR 561 …. 33A, 48, 283 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41 …. 25, 522, 540, 610, 610B, 610H, 827 North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR

146; 206 ALR 315; [2004] HCA 31 …. 610, 610C, 827 North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559; 7 ALR 433 …. 683–684, 858 North Ganalanja Aboriginal Corp v Queensland (1996) 185 CLR 595; 135 ALR 225 …. 574 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555; 112 ALR 87 …. 443, 629, 634 Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; [1999] HCA 8 …. 591, 770, 825, 827 O’Donoghue v Ireland (2008) 234 CLR 599; 244 ALR 404; [2008] HCA 14 …. 25, 211, 607 O’Flaherty v City of Sydney Council (2014) 221 FCR 382; 314 ALR 75; [2014] FCAFC 56; SLR [2014] HCATrans 232 …. 130 O Gilpin Ltd v Commissioner for Road Transport and Tramways (NSW) (1935) 52 CLR 189 …. 854, 856, 865 O’Meara v Commissioner of Taxation (2003) 128 FCR 376; [2003] FCA 217 …. 451 O’Sullivan v Miracle Foods (SA) Pty Ltd (1966) 115 CLR 177 …. 871 —v Noarlunga Meat Ltd (1954) 92 CLR 565 …. 221, 770 O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; 96 ALR 1 …. 34A, 392, 563 Oates v Attorney-General (Cth) (2003) 214 CLR 496; 197 ALR 105; [2003] HCA 21 …. 483 Olbers Co Ltd v Commonwealth (2004) 136 FCR 67; 205 ALR 432; [2004] FCA 229; affd (2004) 143 FCR 449; 212 ALR 325; [2004] FCAFC 262; SLR [2005] HCATrans 228 …. 260 Ontario English Catholic Teacher’s Association v Ontario (Attorney-General) [2001] 1 SCR 470; 196 DLR (4th) 577 …. 19A Osborne v Canada (Treasury Board) [1991] 2 SCR 69; 82 DLR (4th) 321 …. 19A —v Commonwealth (1911) 12 CLR 321 …. 428, 443, 445–446

Owen v Deputy Commissioner of Taxation (1995) 30 ATR 456 …. 264 Owen v Menzies [2013] 2 Qd R 327; 293 ALR 571; [2012] QCA 170; SLR [2013] HCATrans 18 …. 607 Owners of SS Kalibia v Wilson (1910) 11 CLR 689 …. 723 Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404; 125 ALR 1 …. 593 P v P (1994) 181 CLR 583; 120 ALR 545 …. 301, 773 P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 …. 353, 719 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; 290 ALR 681; [2012] HCA 33 …. 341 Pacific Coal Pty Ltd, Re; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; 172 ALR 257; [2000] HCA 34 …. 38, 201–202, 392 Paisio, In the Marriage of (1978) 36 FLR 1; 26 ALR 132 …. 804 Paliflex Pty Ltd v Chief Commissioner of State Revenue (2003) 219 CLR 325; 202 ALR 376; [2003] HCA 65 …. 423 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 …. 16, 33, 36B, 202, 221, 227, 339–341, 410, 414–415, 485, 487–488, 629A–630, 634, 710, 721 Paphos Providores Pty Ltd v Ladha (2014) 291 FLR 300; [2014] NSWSC 1788 …. 280 Parkin v James (1905) 2 CLR 315 …. 568 Parton v Milk Board (Vic) (1949) 80 CLR 229 …. 655–657 Pasini v United Mexican States (2002) 209 CLR 246; 187 ALR 409; [2002] HCA 3 …. 537A Paterson v O’Brien (1978) 138 CLR 276; 18 ALR 31 …. 782–783, 832, 834 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 …. 25, 33A, 283, 491, 505, 583 Pavlekovich-Smith v Australian Electoral Commission (1993) 115 ALR 641;

67 ALJR 711 …. 184 Payroll Tax Case: see Victoria v Commonwealth (1971) Peanut Board v Rockhampton Harbour Board (1933) 48 CLR 266 …. 851 Pearson, Re; Ex parte Sipka (1983) 152 CLR 254; 45 ALR 1 …. 165 Pemberton v Commonwealth (1933) 49 CLR 382 …. 424 Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317 …. 298 Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 …. 22, 33, 34A, 421, 423, 446, 451, 453, 726, 730 Permewan Wright Consolidated Pty Ltd v Trewhitt (1980) 145 CLR 1; 27 ALR 182 …. 680, 684 Perre v Pollitt (1976) 135 CLR 139; 9 ALR 387 …. 858, 873 Perrett v Attorney General (Cth) (2015) 232 FCR 467; 326 ALR 718; [2015] FCA 834 …. 22 Peterswald v Bartley (1904) 1 CLR 497 …. 652–653, 667 Petroleum and Minerals Authority Case: see Victoria v Commonwealth (1975) Petroulias v R (2007) 73 NSWLR 134; [2007] NSWCCA 134 …. 621 Pharmaceutical Benefits Case: see Attorney-General (Vic); Ex rel Dale v Commonwealth (1945) Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465 …. 592 Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399; 87 ALR 193 …. 664 Phillips, Re; Ex parte Aboriginal Development Commission (1987) 13 FCR 384; 72 ALR 508 …. 30 Phonographic Performance Company of Australia Ltd v Commonwealth (2012) 246 CLR 561; 286 ALR 61; [2012] HCA 8 …. 346 Pidoto v Victoria (1943) 68 CLR 87 …. 40 Pilkington v Frank Hammond Pty Ltd (1974) 131 CLR 124; 2 ALR 563 …. 880

Pinkstone v R (2004) 219 CLR 444; 206 ALR 84; [2004] HCA 23 …. 621 Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460; 43 ALR 449 …. 532 Pirrie v McFarlane (1925) 36 CLR 170 …. 575, 756 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; 292 ALR 243; [2012] HCA 46 …. 34A Plaintiff M61/2010E v Commonwealth (2010) 246 CLR 319; 272 ALR 14; [2010] HCA 41 …. 583, 585 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 …. 36B, 284, 335, 483, 488, 539B Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; 304 ALR 135; [2013] HCA 53 …. 25, 284, 539A Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; 312 ALR 537; [2014] HCA 34 …. 539A Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 …. 36B Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; 309 ALR 29; [2014] HCA 22 …. 35, 203, 284 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 …. 25, 583, 585–586 Pochi v MacPhee (1982) 151 CLR 101; 43 ALR 261 …. 48, 283–284 Polites v Commonwealth (1945) 70 CLR 60 …. 204 Pollentine v Bleijie (2014) 253 CLR 629; 311 ALR 332; [2014] HCA 30 …. 610B, 610H Polyukhovich v Commonwealth (1991) 172 CLR 501; 101 ALR 545 (War Crimes Act Case) …. 201–202, 243, 252, 340–341, 522, 548 Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; 88 ALR 12 …. 33, 204, 403–405, 752 Port of Portland Pty Ltd v Victoria (2010) 242 CLR 348; 272 ALR 449; [2010] HCA 44 …. 488

Potter v Minahan (1908) 7 CLR 277 …. 327 Poulton v Commonwealth (1953) 89 CLR 540 …. 361 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317 …. 526–527 Prices Regulation Case: see Victorian Chamber of Manufacturers v Commonwealth (1943) Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment (2012) 250 CLR 343; 293 ALR 450; [2012] HCA 58 …. 610C Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; 289 ALR 1; [2012] HCA 25 …. 568 Pudig, Re [1990] 2 Qd R 551 …. 807 Putland v R (2004) 218 CLR 174; 204 ALR 455; [2004] HCA 8 …. 131 Pye v Renshaw (1951) 84 CLR 58 …. 36, 353 Qantas Airways Ltd v Lustig (2015) 228 FCR 148; 323 ALR 374; [2015] FCA 253 …. 607 Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530; 281 ALR 671; [2011] HCA 40 …. 225, 653, 826 Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 …. 24, 535, 615 Queensland v Commonwealth (1977) 139 CLR 585; 16 ALR 487 (Second Territorial Senators Case) …. 12, 34, 82, 190, 830 —v— (1987) 162 CLR 74; 69 ALR 207 (First Fringe Benefits Tax Case) …. 791 —v— (1989) 167 CLR 232; 86 ALR 519 (World Heritage List Case) …. 339 —v Congoo (2015) 320 ALR 1; 89 ALJR 538; [2015] HCA 17 …. 201 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192; 61 ALR 1 …. 208, 209 Queensland Nickel Pty Ltd v Commonwealth (2015) 318 ALR 182; 89 ALJR

451; [2015] HCA 12 …. 730 Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 …. 621 R v Anderson; Ex parte Ipec Air Pty Ltd (1965) 113 CLR 177 …. 687 —v Anning (2013) 65 MVR 72; [2013] QCA 263 …. 30 —v Archdall; Ex parte Carrigan (1928) 41 CLR 128 …. 617 —v Bamford (1901) 1 SR (NSW) 337 …. 767 —v Barger (1908) 6 CLR 41 …. 204, 226, 229 —v Bernasconi (1915) 19 CLR 629 …. 827 —v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23 …. 771, 778 —v Brislan; Ex parte Williams (1935) 54 CLR 262 …. 33A, 236 —v Burgess; Ex parte Henry (1936) 55 CLR 608 …. 222, 337, 339, 341 —v Buzzacott (2004) 154 ACTR 37; [2004] ACTSC 89, affd [2005] ACTCA 7 …. 30 —v CAZ [2012] 1 Qd R 440; [2011] QCA 231; SLR [2012] HCATrans 244 …. 622 —v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297; 47 ALR 225 …. 202, 386, 387 —v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways’ Board (1962) 108 CLR 166 …. 392 —v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 …. 588, 591 —v—; Ex parte Brisbane Tramways Co Ltd (1914) 18 CLR 54 …. 560, 583 —v—; Ex parte G P Jones (1914) 18 CLR 224 (Builders’ Labourers’ Case) …. 380, 389 —v—; Ex parte Holyman and Sons Ltd (1914) 18 CLR 273 …. 383 —v—; Ex parte Ozone Theatres Ltd (1949) 78 CLR 389 …. 586 —v—; Ex parte Victoria (1942) 66 CLR 488 …. 250

—v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (1960) 103 CLR 368 …. 542 —v Connare; Ex parte Wawn (1939) 61 CLR 596 …. 874 —v Cook and Maxwell; Ex parte C (1985) 156 CLR 249; 60 ALR 661 …. 299 —v Corbett [2004] 1 Qd R 146; [2002] QCA 340; SLR sub nom Parker v Director of Public Prosecutions (Cth) [2003] HCATrans 848 …. 400 —v Credit Tribunal (SA); Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545; 14 ALR 257 …. 775 —v Davison (1954) 90 CLR 353 …. 523–524 —v Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CR 369; 8 ALR 233 …. 330 —v Donyadideh (1993) 115 ACTR 1; 114 FLR 43 …. 576–577 —v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535; 49 ALR 19 …. 17 —v Federal Court of Australia; Ex parte WA National Football League Inc (1979) 143 CLR 190; 23 ALR 439 …. 287, 584 —v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 …. 276 —v Findlay; Ex parte Victorian Chamber of Manufacturers (1950) 81 CLR 537 …. 384 —v Foster; Ex parte Rural Bank of New South Wales (1949) 79 CLR 43 …. 252 —v—; Ex parte Commonwealth Steamship Owners’ Association (1953) 88 CLR 549 …. 770 —v—; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 …. 55, 220 —v Giannakopoulos (2013) 116 SASR 262; [2013] SASCFC 50; SLR [2013] HCATrans 324 …. 418 —v Gorton [2001] QCA 43 …. 796 —v Governor of South Australia (1907) 4 CLR 1497 …. 116

—v Hibble; Ex parte BHP Ltd (1920) 28 CLR 456 …. 584 —v Hickman (1945) 70 CLR 598 …. 586 —v Holmes (1988) 93 FLR 405 …. 422 —v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22 …. 17, 39, 221, 415 —v Hush; Ex parte Devanny (1932) 48 CLR 487 …. 202, 414 —v Huston (2011) 255 FLR 143; [2011] QCA 349 …. 621 —v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1979) 142 CLR 113; 23 ALR 69 …. 584 —v Kelly; Ex parte Victoria (1950) 81 CLR 64 …. 379 —v Kidman (1915) 20 CLR 425 …. 202, 548–549, 579 —v L (1991) 174 CLR 379; 103 ALR 577 …. 777 —v LK (2010) 241 CLR 177; 266 ALR 399; [2010] HCA 17 …. 621 —v Macfarlane; Ex parte O’Flanagan (1923) 32 CLR 518 …. 327 —v Martin; Ex parte Wawn (1939) 62 CLR 457 …. 874 —v Murphy (1985) 158 CLR 596; 61 ALR 139 …. 416, 607 —v— (1986) 5 NSWLR 18; 64 ALR 498 …. 196 —v Murray; Ex parte Commonwealth (1916) 22 CLR 437 …. 584 —v ONA (2009) 24 VR 197; [2009] VSCA 146 …. 777 —v Phillips (1970) 125 CLR 93 …. 11, 421, 762, 768, 770 —v Poole; Ex parte Henry (1939) 61 CLR 634 …. 339 —v Porter (2001) 53 NSWLR 354; [2001] NSWCCA 441; SLR [2003] HCATrans 592 …. 422 —v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 …. 391 —v Public Vehicles Licensing Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 …. 202, 397, 399 —v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1; 16 ALR 569 …. 24, 537A —v Railways Appeal Board (NSW); Ex parte Davis (1957) 96 CLR 429 ….

778 —v Registrar of Titles for Victoria; Ex parte Commonwealth (1915) 20 CLR 379 …. 579 —v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 …. 189, 194, 199 —v Scouller [1997] 1 Qd R 415; SLR [1995] HCATrans 266 …. 728 —v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta [1982] QB 892; [1982] 2 All ER 118 …. 48 —v Sharkey (1949) 79 CLR 121 …. 341, 414, 817 —v Smithers; Ex parte Benson (1912) 16 CLR 99 …. 848 —v Spicer; Ex parte Builders Labourers’ Federation (1957) 100 CLR 277 …. 542 —v—; Ex parte Truth and Sportsman Ltd (1957) 98 CLR 48 …. 596 —v—; Ex parte Waterside Workers’ Federation of Australia (No 2) (1958) 100 CLR 324 …. 584 —v Tang (2008) 237 CLR 1; 249 ALR 200; [2008] HCA 39 …. 339 —v Tilley (1991) 56 SASR 140 …. 551, 749 —v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 …. 536 —v Turnbull; Ex parte Taylor (1968) 123 CLR 28 …. 819 —v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411 …. 723 —v University of Sydney; Ex parte Drummond (1943) 67 CLR 95 …. 250 —v Vizzard; Ex parte Hill (1933) 50 CLR 30 …. 854, 856, 865 —v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 557 …. 584 —v Wilkie (2005) 64 NSWLR 125; [2005] NSWCA 311; SLR [2005] HCATrans 849 …. 621 —v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528 …. 220 Radar Holdings Pty Ltd v Western Australia (2004) 185 FLR 466; [2004] WASC 251 …. 777

Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170 …. 202 Rahim v Crawther (1996) 17 WAR 559 …. 810 Rahman v Dubs (No 2) [2012] FCA 1081; SLR [2013] HCASL 23 …. 276 Railways Standardization Case: South Australia v Commonwealth (1962) 130 CLR 130 …. 782 Ranger Uranium Mines Pty Ltd, Re; Ex parte Federated Miscellaneous Workers Union (1987) 163 CLR 656; 76 ALR 36 …. 388, 527 Ravenor Overseas Inc v Readhead (1998) 152 ALR 416; 72 ALJR 671; [1998] HCA 17 …. 239 Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194 …. 222 Reference re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753; 125 DLR (3d) 1 …. 19A Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 …. 583–586 Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145; 117 ALR 27 …. 792 Reid, Re; Ex parte Bienstein (2001) 182 ALR 473; [2001] HCA 54 …. 557 Remitter Case: see MZXOT v Minister for Immigration and Citizenship (2008) Renton v Renton (1918) 25 CLR 291 …. 312, 314, 320 Resch v Federal Commissioner of Taxation (1942) 66 CLR 198 …. 450 Residential Tenancies Tribunal of New South Wales, Re; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495 …. 33, 424, 517, 760, 762, 777, 789 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; 172 ALR 366; [2000] HCA 33 …. 25, 38 Richard Foreman & Sons Pty Ltd, Re; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 …. 757 Richardson v Forestry Commission (1987) 164 CLR 261; 73 ALR 589 …. 585 —v— (1988) 164 CLR 261; 77 ALR 237 …. 34A, 201, 338

Ridgeway v R (1995) 184 CLR 19; 129 ALR 41 …. 488, 551 Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327 …. 38, 737, 741, 859, 864 Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 …. 29, 38, 87, 123, 143, 165 Roadair Pty Ltd v Williams (1968) 118 CLR 644 …. 881 Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37; 284 ALR 222; [2011] HCA 54 …. 37 Roberts v Bass (2002) 212 CLR 1; 194 ALR 161; [2002] HCA 57 …. 38, 128 Robertson v Australian Electoral Commission (1993) 116 ALR 407; 67 ALJR 818 …. 103, 184 Robinson v Western Australian Museum (1977) 138 CLR 283; 16 ALR 623 …. 724 Robtelmes v Brenan (1906) 4 CLR 395 …. 284 Roche v Kronheimer (1921) 29 CLR 329 …. 202 Rochford v Dayes (1989) 84 ALR 405; 63 ALJR 315 …. 581 Rockman v Smallridge (2012) 33 NTLR 56; [2012] NTSC 56 …. 825 Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 …. 530–531 Ronen v R (2004) 211 FLR 320; [2004] NSWCCA 320 …. 621 Roughley v New South Wales (1928) 42 CLR 162 …. 762 Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 …. 38, 87, 96, 123, 145, 201, 583 Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448; (2010) 268 ALR 232; [2010] FCAFC 52; affd (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 3 …. 305 —v— (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 …. 201, 225, 305, 346, 445, 488, 625, 653 Ruddock v Vadarlis (2001) 110 FCR 491; 183 ALR 1; [2001] FCA 1329; SLR [2001] HCATrans 625 …. 483

Rudolphy v Lightfoot (1999) 197 CLR 500; 167 ALR 105; [1999] HCA 61 …. 103 Ruhani v Director of Police (2005) 222 CLR 489; 219 ALR 199; [2005] HCA 42 …. 343, 560, 591 Russell v Russell (1976) 134 CLR 495; 9 ALR 103 …. 298, 301, 303, 608 Samuels v Reader’s Digest Association Pty Ltd (1969) 120 CLR 1 …. 871 Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213 …. 634 Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 …. 747, 770, 842 Saraceni v Jones (2012) 246 CLR 251; 291 ALR 188; [2012] HCA 38 …. 543 Scriven v Sargent [2015] 2 Qd R 140; 309 ALR 191; [2014] QCA 133; SLR [2015] HCASL 95 …. 353 Seamen’s Union v Matthews (1956) 96 CLR 529 …. 541 Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120; 22 ALR 291 …. 33, 203, 671 Seas and Submerged Lands Case: see New South Wales v Commonwealth (1975) Secession of Quebec, Reference re [1998] 2 SCR 217; 161 DLR (4th) 385 …. 844A Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; 106 ALR 385 …. 301 Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 …. 751 SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51; 188 ALR 241; [2002] HCA 18 …. 29, 789–790 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72 …. 34A, 283, 806 Shell Company of Australia Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153; (1930) 44 CLR 530 …. 317, 529, 556 Shoard v Palmer (1989) 98 FLR 402 …. 812

Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181; 205 ALR 43; [2004] HCA 9 …. 610F Silk Brothers Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 …. 250, 535 Simandl v Deputy Commissioner of Taxation (2008) 167 FCR 501; [2008] FCA 450 …. 615 Siminton v Australian Prudential Regulation Authority (No 2) (2008) 168 FCR 122; 248 ALR 34; [2008] FCAFC 88; SLR [2008] HCATrans 280 …. 266 Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 …. 25, 33A, 283 Skyring, Re (1985) 58 ALR 629; 59 ALJR 561; app dism (1985) 160 CLR 695 …. 264 —, Re (1994) 68 ALJR 618 …. 204 —, Re [2004] FCA 827 …. 264 —v Commissioner of Taxation (2007) 244 ALR 505; [2007] FCA 1526 …. 264 —v Federal Commissioner of Taxation (1991) 23 ATR 84 …. 264 Slipper v Magistrates Court of the ACT (2014) 179 ACTR 1; 285 FLR 78; [2014] ACTSC 85 …. 196 Sloan v Pollard (1947) 75 CLR 445 …. 242 Smith v ANL Ltd (2000) 204 CLR 493; 176 ALR 449; [2000] HCA 58 …. 347, 351 —v Australian Electoral Commission (2009) 175 FCR 523; [2009] FCAFC 43 …. 561 —v Capewell (1979) 142 CLR 509; 26 ALR 507 …. 871 —v Oldham (1912) 15 CLR 355 …. 92 —v St James (1996) 135 FLR 296 …. 307, 397 Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194; 103 ALR 117 …. 562 Snowdon v Dondas (1996) 188 CLR 48; 139 ALR 475 …. 165

Solomons v District Court of New South Wales (2002) 211 CLR 119; 192 ALR 217; [2002] HCA 47 …. 413 SOS (Mowbray) Pty Ltd v Mead (1972) 124 CLR 529 …. 683, 870 Soulitopoulos v La Trobe University Liberal Club (2002) 120 FCR 584; [2002] FCA 1316 …. 341 South Australia v Commonwealth (1942) 65 CLR 373 (First Uniform Tax Case) …. 15, 38, 227, 230, 250, 715–716, 718 —v— (1962) 130 CLR 130 (Railways Standardization Case) …. 782 —v— (1992) 174 CLR 235; 105 ALR 171 …. 792 —v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 …. 523, 568, 583, 608, 610, 610A, 610D, 610H —v Victoria (1911) 12 CLR 667 (State Boundaries Case) …. 575, 580 Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; 286 ALR 404; [2012] HCA 13 …. 40, 699A, 700, 771, 828 Spratt v Hermes (1965) 114 CLR 226 …. 419, 617, 827, 836 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; 49 ALR 193 …. 592 Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; [2012] HCA 52 …. 300 State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253; 140 ALR 129 …. 580, 582 State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579; 53 ALR 625 …. 579 —v Commonwealth Savings Bank of Australia (1986) 161 CLR 639; 67 ALR 535 …. 579 State Banking Case: see Melbourne Corporation v Commonwealth (1947) State Boundaries Case: see South Australia v Victoria (1911) State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329; 73 ALR 161 (Second Fringe Benefits Tax Case) …. 225, 446, 451 State Public Services Federation, Re; Ex parte Attorney-General (WA) (1993)

178 CLR 249; 113 ALR 385 …. 209, 382, 387 State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282; 44 ALR 1 …. 288 Steel Rails Case: see Attorney-General (NSW) v Collector of Customs for New South Wales (1908) Stenhouse v Coleman (1944) 69 CLR 457 …. 201, 240 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80 …. 126 Stevens v Head (1993) 176 CLR 433; 112 ALR 7 …. 34, 815 Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 …. 775 Stoneham v Ryan’s Removals Pty Ltd (1978) 143 CLR 79; 23 ALR 1 …. 881 Storey v Lane (1981) 147 CLR 549; 36 ALR 129 …. 276 Street v Queensland Bar Association (1989) 168 CLR 461; 88 ALR 321 …. 10, 29, 33A, 806–807 Stretton v Minister for Immigration and Border Protection (No 2) (2015) 231 FCR 36; 327 ALR 251; [2015] FCA 559 …. 196 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 …. 205, 289 Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 …. 31–32, 67, 73, 171, 173, 182, 184, 405–406, 482, 537A, 543, 571, 752, 829, 838 Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330; 26 ALR 99 …. 790 Svikart v Stewart (1994) 181 CLR 548; 125 ALR 554 …. 33, 423, 783, 836 Sweedman v Transport Accident Commission (2006) 226 CLR 362; 224 ALR 625; [2006] HCA 8 …. 806 Swiss Aluminium Australia Ltd v Federal Commissioner of Taxation (1987) 163 CLR 421; 73 ALR 584 …. 563 Sykes v Australian Electoral Commission (1993) 115 ALR 645; 67 ALJR 714 …. 175, 184 —v Cleary (No 1) (1992) 107 ALR 577; 66 ALJR 577 …. 184 —v Cleary (No 2) (1992) 176 CLR 77; 109 ALR 577 …. 67, 169, 171, 173,

176 —v Governor-General (1995) 69 ALJR 884 …. 67 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; 295 ALR 595; [2013] HCA 5 …. 533, 610H Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35 …. 40, 124, 128DA, 130, 336 Tampa Case: see Ruddock v Vadarlis (2001) Tasmania v Commonwealth (1904) 1 CLR 329 …. 33 —v Victoria (1935) 52 CLR 157 …. 36, 785, 852 Tasmanian Dam Case: see Commonwealth v Tasmania (1983) Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210; 243 ALR 1; [2008] HCA 7 …. 352, 366A —v Worthing (1999) 197 CLR 61; 161 ALR 489; [1999] HCA 12 …. 771, 774 Teori Tau v Commonwealth (1969) 119 CLR 564 …. 826 Territorial Senators Case, First: Western Australia v Commonwealth (1975) 134 CLR 201; 7 ALR 159 …. 12, 82, 460, 471, 830 —, Second: Queensland v Commonwealth (1977) 139 CLR 585; 16 ALR 487 …. 12, 34, 82, 190, 830 Texas v White 74 US (7 Wallace) 700, 19 L Ed 227 (1869) …. 844A Theophanous v Commonwealth (2006) 225 CLR 101; 226 ALR 602; [2006] HCA 18 …. 187, 345–346 —v Herald & Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1 …. 29, 33, 126, 768 Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 …. 28A, 201, 239, 243, 339–341, 397, 487, 526, 540A, 575, 583, 817 —v Quarmby (1982) 63 FLR 402 …. 819 Thorpe v Commonwealth (No 3) (1997) 144 ALR 677; 71 ALJR 767 …. 575

Toben v Jones (2003) 129 FCR 515; 199 ALR 1; [2003] FCAFC 137 …. 339 Tracey, Re; Ex parte Ryan (1989) 166 CLR 518; 84 ALR 1 …. 201, 206, 244, 546–547, 755 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397; 26 ALR 185 …. 348, 353, 369 Tramways Case: see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (1914) Trower v Commonwealth (1923) 32 CLR 585 …. 638 Trust Co of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; 234 ALR 398; [2006] NSWCA 185 …. 607 Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (2000) 200 CLR 591; 169 ALR 616; [2000] HCA 11 …. 36, 575 Tyler, Re; Ex parte Foley (1994) 181 CLR 18; 121 ALR 153 …. 34, 245, 547, 622 Uebergang v Australian Wheat Board (1980) 145 CLR 266; 32 ALR 1 …. 877 Uniform Tax Case, First: South Australia v Commonwealth (1942) 65 CLR 373 …. 15, 227, 230, 250, 715–716 —, Second: Victoria and New South Wales v Commonwealth (1957) 99 CLR 575 …. 227, 715–716 Union Label Case: see Attorney-General (NSW); Ex rel Tooth & Co Ltd v Brewery Employees’ Union of NSW (1908) Unions NSW v New South Wales (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58 …. 124, 128F, 211 United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497; 315 ALR 460; [2015] FCAFC 1 …. 287 United Mexican States v Cabal (2001) 209 CLR 165; 183 ALR 645; [2001] HCA 61 …. 568 University of Wollongong v Metwally (1984) 158 CLR 447; 56 ALR 1 …. 770, 778 Ure v Commonwealth (2015) 323 ALR 164; [2015] FCA 241 …. 575

Vacuum Oil Co Pty Ltd v Queensland (1934) 51 CLR 108 …. 855 Vardon v O’Loghlin (1907) 5 CLR 201 …. 103 Vasiljkovic v Commonwealth (2006) 227 CLR 614; 228 ALR 447; [2006] HCA 40 …. 339, 540, 540B Victoria v Commonwealth (1926) 38 CLR 399 (Federal Roads Case) …. 715 —v— (1937) 58 CLR 618 (‘The Kakariki’) …. 771, 774 —v— (1957) 99 CLR 575 (Second Uniform Tax Case) …. 227, 715–716 —v— (1971) 122 CLR 353 (Payroll Tax Case) …. 208, 228, 756 —v— (1975) 134 CLR 81; 7 ALR 1 (Petroleum and Minerals Authority Case) …. 12, 77, 82, 438, 441, 459, 466 —v— (1996) 187 CLR 416; 138 ALR 129 (Industrial Relations Act Case) …. 27–28A, 35, 40, 201–202, 210, 336, 338–341, 377, 385, 387 —v Commonwealth and Hayden (1975) 134 CLR 338; 7 ALR 277 (Australian Assistance Plan Case) …. 16, 36, 410, 415, 485, 627, 630, 634, 710 —v MacBean (1996) 138 ALR 456 …. 341 Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 335 (Prices Regulations Case) …. 250 Victorian Stevedoring & General Contracting Co Ltd v Dignan (1931) 46 CLR 73 …. 22–23, 65, 202, 481, 522 Victorian WorkCover Authority v Andrews (2005) 217 FCR 129; [2005] FCA 94 …. 267 Viro v R (1978) 141 CLR 88; 18 ALR 257 …. 34, 202 Viskauskas v Niland (1983) 153 CLR 280; 47 ALR 32 …. 771 Visnic v Australian Securities and Investments Commission (2007) 231 CLR 381; 234 ALR 413; [2007] HCA 24 …. 526, 579 W R Carpenter Holdings Pty Ltd v Federal Commissioner of Taxation (2008) 237 CLR 198; 248 ALR 256; [2008] HCA 33 …. 227 Wacando v Commonwealth (1981) 148 CLR 1; 37 ALR 317 …. 30

Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 …. 25, 40, 128C, 130, 568, 610, 610A, 610D, 610H Wake v Northern Territory (1996) 5 NTLR 170; 109 NTR 1; appeal adjourned [1996] HCATrans 462 …. 828 Wakim, Re; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 …. 17, 19, 33, 34A, 410, 591, 592, 611 Walker v New South Wales (1993) 182 CLR 45; 126 ALR 321 …. 30 —v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700 …. 30 Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440 …. 771 Walsh and Johnson, Ex parte; In re Yates (1925) 37 CLR 36 …. 284, 328, 601 War Crimes Act Case: see Polyukhovich v Commonwealth (1991) Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462; 119 ALR 557 …. 828A Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 …. 393, 525, 541, 556 Watson v Lee (1979) 144 CLR 374; 26 ALR 461 …. 264 Webster v Deahm (1993) 116 ALR 223; 67 ALJR 781 …. 184 —, Re (1975) 132 CLR 270; 6 ALR 65 …. 178 Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 …. 667 —v Commonwealth (1975) 134 CLR 201; 7 ALR 159 (First Territorial Senators Case) …. 12, 82, 460, 471, 830 —v— (1995) 183 CLR 373; 128 ALR 1 (Native Title Act Case) …. 205, 209, 211, 323–324, 428, 543, 762, 772, 778 —v Hamersley Iron Pty Ltd (No 1) (1969) 120 CLR 42 …. 667 —v Ward (2002) 213 CLR 1; 191 ALR 1; [2002] HCA 28 …. 825 Western Interstate Pty Ltd v Madsen (1961) 107 CLR 102 …. 881 Wheat Case: see New South Wales v Commonwealth (1915) White v Director of Military Prosecutions (2007) 231 CLR 570; 235 ALR

455; [2007] HCA 29 …. 245, 515, 547 Wilcox Mofflin Ltd v New South Wales (1952) 85 CLR 488 …. 872 Willard v Rawson (1933) 48 CLR 316 …. 853 Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 …. 33, 36, 202, 435, 483, 485–488, 505, 627, 629A–630, 710, 717, 804A —v— (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 …. 11, 17, 25, 40, 292, 307, 486A, 629A Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; 138 ALR 220 …. 21, 522, 545 Winstone v Kelly (1987) 46 SASR 461; 75 ALR 293 …. 621 Winton Transport Pty Ltd v Horne (1966) 115 CLR 322 …. 881 Wong v Commonwealth (2009) 236 CLR 573; 252 ALR 400; [2009] HCA 3 …. 29, 33, 34, 308 Wood, Re (1988) 167 CLR 145; 78 ALR 257 …. 103, 105–106, 171, 185 Woolley, Re; Ex parte Applicants M276/2003 (2004) 225 CLR 1; 210 ALR 369; [2004] HCA 49 …. 35, 539A Work Choices Case: see New South Wales v Commonwealth (2006) World Heritage List Case: see Queensland v Commonwealth (1989) Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 …. 421, 425 Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1; [2012] HCA 2 …. 124, 128D, 128G Wragg v New South Wales (1953) 88 CLR 353 …. 222, 869 Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 …. 25, 37, 347, 352, 366A, 826 Wynbyne v Marshall (1997) 7 NTLR 97; 117 NTR 11; SLR [1998] HCATrans 191 …. 828B XYZ v Commonwealth (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25 …. 202, 340–341 X7 v Australian Crime Commission (2013) 248 CLR 92; 298 ALR 570;

[2013] HCA 29 …. 621 Yougarla v Western Australia (2001) 207 CLR 344; 181 ALR 371; [2001] HCA 47 …. 770

TABLE OF CONSTITUTIONAL PROVISIONS __________________________ References are to paragraph numbers

Commonwealth of Australia Constitution Act (Covering Clauses) Preamble …. 41, 843–844A s 1 …. 45 s 2 …. 10, 47–48 s 3 …. 49–50 s 4 …. 51 s 5 …. 10, 53–55, 399 s 6 …. 56 s 7 …. 58–59 s 8 …. 10, 60–61 s 9 …. 10, 62, 844

Constitution s 1 …. 21, 31, 63–65, 127, 428 s 2 …. 31, 64, 66, 69, 482, 494, 497 s 3 …. 70, 395, 634 s 4 …. 72–73, 143, 165, 838 s 5 …. 68, 74, 77, 139, 441, 482, 493, 497–498

s 6 …. 77, 79, 127 s 7 …. 81–83, 94, 123–124, 127, 129, 137, 395, 830 s 8 …. 86–87, 127 s 9 …. 88, 92 s 10 …. 91, 145 s 11 …. 93 s 12 …. 95–96, 780 s 13 …. 85, 97, 99, 101, 127, 441 s 14 …. 100 s 15 …. 102–103, 106, 780 s 16 …. 104–105, 143 s 17 …. 107 s 18 …. 109 s 19 …. 103, 111 s 20 …. 103, 113 s 21 …. 115 s 22 …. 94, 117 s 23 …. 119 s 24 …. 29, 87, 121–124, 127, 129, 133, 137, 145, 395, 464, 822 s 25 …. 127, 132–133 s 26 …. 134 s 27 …. 136 s 28 …. 77–78, 127, 138–139, 482 s 29 …. 140–141, 395 s 30 …. 87, 127, 142–143, 395 s 31 …. 141, 395 s 32 …. 77, 146–147, 482, 497–498 s 33 …. 148 s 34 …. 150, 395

s 35 …. 152 s 36 …. 154 s 37 …. 103, 156 s 38 …. 103, 158 s 39 …. 160 s 40 …. 120, 162–163 s 41 …. 164 s 42 …. 166 s 43 …. 168–169 s 44 …. 32, 96, 123, 170–171, 173, 175–176, 178, 185, 804 s 45 …. 96, 103, 179–180 s 46 …. 171, 181, 395, 543 s 47 …. 183–184, 191, 543 s 48 …. 186–187 s 49 …. 127, 188, 199 s 50 …. 163, 190, 198, 413 s 51 …. 10–11, 25, 27, 35, 200–205, 207, 338, 398, 410, 412, 415, 418, 423, 425, 540, 752, 762, 764, 770, 826 s 51(i) …. 201, 204, 217–218, 220–222, 377, 412, 674, 676–678, 689, 692, 700, 723–724, 726, 732, 737, 764, 784, 849, 856 s 51(ii) …. 13, 28, 201, 223–224, 229–230, 349, 423, 517, 650, 730, 764 s 51(iii) …. 231, 650–651 s 51(iv) …. 201, 233–234, 763 s 51(v) …. 201, 235, 237 s 51(vi) …. 28, 201, 238–240, 244, 317, 424, 437, 764, 789 s 51(vii) …. 253–254, 764 s 51(viii) …. 255, 764 s 51(ix) …. 257, 764 s 51(x) …. 259–260, 764

s 51(xi) …. 261, 764 s 51(xii) …. 201, 263–264, 317, 794 s 51(xiii) …. 264–265, 288, 293–294, 365, 764 s 51(xiv) …. 269, 764 s 51(xv) …. 271, 764 s 51(xvi) …. 273, 764 s 51(xvii) …. 275, 346, 764 s 51(xviii) …. 277, 346, 764 s 51(xix) …. 201, 282–285, 330, 763–764, 829 s 51(xx) …. 28A, 268, 286, 288–289, 292, 294, 377, 764–765 s 51(xxi) …. 295, 299–301, 303, 764 s 51(xxii) …. 298, 300–303, 764 s 51(xxiii) …. 304, 307, 310, 410, 627, 764 s 51(xxiiiA) …. 33, 201, 306–310, 352, 410, 626, 627, 764 s 51(xxiv) …. 201, 311, 315, 317–318, 763 s 51(xxv) …. 319, 763, 810, 813 s 51(xxvi) …. 321, 324, 763–764 s 51(xxvii) …. 284, 325, 764 s 51(xxviii) …. 332, 764 s 51(xxix) …. 28A, 201, 260, 334, 336–339, 377, 764–765 s 51(xxx) …. 201, 342, 763 s 51(xxxi) …. 10, 281, 344–353, 360–365, 369, 373, 640, 719, 763, 826, 828, 836 s 51(xxxii) …. 370, 764 s 51(xxxiii) …. 201, 372–373, 375, 763 s 51(xxxiv) …. 374–375, 764 s 51(xxxv) …. 28, 201, 209, 292, 376, 379, 386–387, 390, 393, 764 s 51(xxxvi) …. 145, 201, 394–395 s 51(xxxvii) …. 17, 303, 396–399, 764

s 51(xxxviii) …. 31, 201, 260, 402–405, 752, 754, 763 s 51(xxxix) …. 21, 68, 239, 266, 393, 407–408, 410, 412–415, 485, 486A–487, 537, 608, 615, 626, 721, 763–765 s 52 …. 10–11, 201, 398, 417–418, 749, 762, 826 s 52(i) …. 419–423, 730, 763, 767, 825 s 52(ii) …. 239, 424, 650, 763 s 53 …. 224, 426, 428, 431, 433, 435, 438, 439–441, 443, 446–447, 449, 464, 470, 507 s 54 …. 224, 428, 435, 442–443, 447, 449 s 55 …. 224, 428, 444, 446–450, 452, 453 s 56 …. 454–455, 635 s 57 …. 11, 64, 68, 77, 96, 428, 438–441, 456, 458–460, 462–472, 482, 493, 498, 507 s 58 …. 64, 68, 473, 475, 482 s 59 …. 64, 476–477, 482 s 60 …. 64, 478–479, 482 s 61 …. 10, 21, 32, 35, 64, 68–69, 187, 409, 414–415, 480, 482–483, 487–488, 493, 628, 749, 761 s 62 …. 10, 68, 127, 490–492, 503 s 63 …. 10, 68, 496, 498 s 64 …. 10, 64, 68, 127, 176, 439, 481, 484, 486, 491–493, 497–499, 502, 504–505, 509, 518 s 65 …. 10, 504, 508 s 66 …. 10, 510 s 67 …. 10, 315, 482, 497, 512 s 68 …. 10, 68, 239, 482, 497, 514–515 s 69 …. 10, 239, 254, 424, 483, 516–517, 519, 637–638, 640, 642, 650, 749, 763 s 70 …. 10, 68, 239, 482–483, 518, 749 s 71 …. 21, 23–24, 520–523, 525, 530, 538, 541, 584, 603, 827

s 72 …. 24, 71, 482, 530, 541, 554, 556–557, 827 s 73 …. 529, 553, 559–564, 566, 568, 603, 610 s 74 …. 9, 64, 570–571 s 75 …. 416, 564, 572–573, 574, 576, 580, 583, 586, 591–592, 594, 596, 599–600, 603–605, 607, 611, 613 s 75(i) …. 576 s 75(ii) …. 577 s 75(iii) …. 578–579, 583, 613 s 75(iv) …. 580–581, 594 s 75(v) …. 392, 576, 583–586 s 76 …. 416, 573–574, 583, 587, 589, 591–592, 596, 603–605, 607, 611, 613 s 76(i) …. 588–590, 594, 601 s 76(ii) …. 588, 591–592, 604–605 s 76(iii) …. 593, 604–605 s 76(iv) …. 594, 604–605 s 77 …. 10–11, 24, 416, 573, 591–592, 595, 598, 603, 611, 749 s 77(i) …. 591–592 s 77(ii) …. 599, 601–602, 606 s 77(iii) …. 19, 315–316, 416, 553, 602, 607–608, 610–611 s 78 …. 416, 578, 612–613 s 79 …. 614–615 s 80 …. 10, 29, 607, 616, 618–622, 827 s 81 …. 10, 410, 623, 625–630, 721, 765 s 82 …. 10, 631, 634 s 83 …. 10, 127, 626, 628–629, 633–635, 721 s 84 …. 10, 636–638 s 85 …. 10, 639–640 s 86 …. 10, 625, 641–642 s 87 …. 10, 14, 642–644, 708, 714

s 88 …. 10, 13, 224, 645, 650, 679 s 89 …. 10, 642, 647–648, 679, 708, 710, 714 s 90 …. 10, 15, 28, 224, 418, 425, 589, 642, 649–652, 658, 660, 665, 671, 679, 763, 783, 826 s 91 …. 10, 670–671 s 92 …. 10, 13, 33A, 54, 204, 218, 650, 672–674, 676–694, 696–705, 735, 737, 785, 787, 828, 847–849, 851–878, 880–881 s 93 …. 10, 642, 648, 666, 679, 707–708, 714 s 94 …. 10, 14, 642, 648, 679, 709–710 s 95 …. 10, 711–712 s 96 …. 10, 15, 230, 353, 435, 486, 713, 715–716, 718, 765 s 97 …. 10, 720–721 s 98 …. 10, 722–724, 732, 737 s 99 …. 10, 13, 224, 724–730 s 100 …. 10, 724, 731–732 s 101 …. 10, 724, 733–734 s 102 …. 10, 724, 736–737, 741 s 103 …. 10, 738 s 104 …. 10, 740–741 s 105 …. 10, 742–743 s 105A …. 10, 234, 743–744, 746–747 s 106 …. 11, 69, 748, 751–755 s 107 …. 11, 107, 204–205, 749, 761–762, 770 s 108 …. 11, 108, 749, 766–768, 770 s 109 …. 10–11, 36, 54, 201, 212, 398–400, 425, 575, 605, 749, 756, 760, 762, 764, 768–771, 773–774, 778, 825 s 110 …. 779 s 111 …. 425, 763, 781, 783, 829, 832, 834, 836 s 112 …. 784–785

s 113 …. 786–787 s 114 …. 224, 239, 763, 788–789, 791–792 s 115 …. 264, 425, 763, 793 s 116 …. 10, 29, 204, 795–796, 798–804, 826 s 117 …. 10, 29, 805–808 s 118 …. 320, 751, 809, 811, 812, 813, 814, 815 s 119 …. 239, 816 s 120 …. 818–819 s 121 …. 820–821, 834 s 122 …. 35, 82, 317, 419, 540, 561, 651, 730, 763, 782–783, 823–824, 826–827, 829–830 s 123 …. 831–832, 834 s 124 …. 821, 832–834 s 125 …. 419, 783, 835 s 126 …. 73, 837–838 s 127 …. 10, 839 s 128 …. 32, 42, 163, 840, 843–844A

TABLE OF STATUTES __________________________ References are to paragraph numbers

Australia Commonwealth A New Tax System (Managing the GST Rate and Base) Act 1999 …. 15 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 545 Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 …. 845 Acts Interpretation Act 1901 …. 25, 40, 775, 841 Admiralty Act 1988 …. 593 Air Navigation Act 1920 …. 337 Airports Act 1996 …. 775 Anti-Money Laundering and Counter-Terrorism Financing Act 2006 …. 545 Appropriation Act 1974 …. 627 Audit Act 1901 …. 721 Audit (Transitional and Miscellaneous) Amendment Act 1997 …. 721 Auditor-General Act 1997 …. 211, 721 Australia Council Act 2013 …. 415 Australian Capital Territory (Self-Government) Act 1988 …. 789, 794, 825, 828–828B Australian Crime Commission Act 2002 …. 545 Australian Curriculum, Assessment and Reporting Authority Act 2008 …. 415 Australian Human Rights Commission Act 1986 …. 366A

Australian Institute of Marine Science Act 1972 …. 415 Australian Nuclear Science and Technology Organisation Act 1987 …. 415 Australian Postal Corporation Act 1989 …. 828 Australian Security Intelligence Organisation Act 1979 …. 128G, 545 Banking Act 1947 …. 365–366 Banking Act 1959 …. 266, 366A Bankruptcy Act 1924 …. 524 Bankruptcy Act 1966 …. 180, 197, 608 Bills of Exchange Act 1909 …. 274, 775 Biosecurity Act 2015 …. 258, 366A, 730 Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 …. 258 Broadcasting Services Act 1992 …. 128G Census and Statistics Act 1905 …. 828 Charter of Budget Honesty Act 1998 …. 635 COAG Reform Fund Act 2008 …. 15 Coast Defence Appropriation Act 1908 …. 710 Coastal Waters (State Powers) Act 1980 …. 260, 404 Coastal Waters (State Title) Act …. 260 Common Informers (Parliamentary Disqualifications) Act 1975 …. 182 Commonwealth Electoral Act 1918 …. 82–83, 85, 90, 94, 103, 105, 122, 128B, 141, 143, 145, 147, 151, 184–185, 830 Commonwealth Electoral Act (No 2) 1973 …. 471 Commonwealth Franchise Act 1902 …. 165 Commonwealth Grants Commission Act 1933 …. 14 Commonwealth Grants Commission Act 1973 …. 14 Commonwealth Places (Application of Laws) Act 1970 …. 422, 768 Commonwealth Places (Mirror Taxes) Act …. 423 Communist Party Dissolution Act 1950 …. 247, 414

Commonwealth Public Service Act 1902 …. 513 Competition and Consumer Act 2010 …. 17, 366A, 545, 775 Comprehensive Nuclear Test-Ban Treaty Act 1998 …. 366A Conciliation and Arbitration Act 1904 …. 591 Constitution Alteration (Senate Casual Vacancies) 1977 …. 102 Constitution Alteration (Simultaneous Elections) 1977 …. 102 Coordinator-General for Remote Indigenous Services Act 2009 …. 211 Copyright Act 1968 …. 278, 447 Corporations Act 2001 …. 366A, 775 Crimes Act 1914 …. 545, 747, 775 Crimes (Internationally Protected Persons) Act 1976 …. 576 Crimes at Sea Act 2000 …. 17 Criminal Code Act 1995 …. 128G, 397, 540A, 545, 772 Customs Act 1901 …. 366A, 411, 545 Dairy Produce Act 1986 …. 730 Defence Act 1903 …. 371, 817 Defence Force Discipline Act 1982 …. 546, 776 Designs Act 1906 …. 279 Designs Act 2003 …. 279 Disability Discrimination Act 1992 …. 366A Do Not Call Register Act 2006 …. 128G Dried Fruits Act 1928 …. 856 Education Services for Overseas Students Act 2000 …. 545 Enhancing Online Safety for Children Act 2015 …. 128G Environment Protection (Alligator Rivers Region) Act 1978 …. 415 Environment Protection and Biodiversity Conservation Act 1999 …. 366A, 730, 775 Evidence Act 1995 …. 17, 197, 320, 810, 812 Excise Act 1901 …. 545

Export Control Act 1982 …. 545 Fair Work Act 2009 …. 366A, 377–378 Family Court of Australia Act 1975 …. 566 Family Law Act 1975 …. 298–300, 412, 538, 553, 777, 804 Family Law Rules …. 538 Federal Circuit Court of Australia Act 1999 …. 553, 558, 566, 615 Federal Court of Australia Act 1976 …. 553, 558, 561–562, 566, 591, 596 Federal Financial Relations Act 2009 …. 15, 714 Financial Agreement Act 1994 …. 18, 746 Financial Agreements Enforcement Act 1932 …. 747 Financial Management and Accountability Act 1997 …. 721 First Home Saver Accounts Act 2008 …. 545 Fisheries Management Act 1991 …. 366A Fisheries Management Act 1991 …. 366A Food Standards Australia New Zealand Act 1991 …. 17 Foreign States Immunities Act 1985 …. 341 Fringe Benefits Tax Assessment Act 1986 …. 225 Governor-General Act 1974 …. 71 Health Insurance Act 1973 …. 828 High Court of Australia Act 1979 …. 416, 552, 554 House of Representatives (Quorum) Act 1989 …. 161 Immigration Act 1901 …. 328 Imperial Defence Act 1888 …. 4 Income Tax Act 1942 …. 227 Income Tax Assessment Act 1936 …. 828 Industrial Relations Act 1988 …. 381 Industry Commission Act 1989 …. 569, 735 Inspector of Transport Security Act 2006 …. 545 Interactive Gambling Act 2001 …. 128G

International Arbitration Act 1974 …. 775 Inter-State Commission Act 1975 …. 735 Jervis Bay Territory Acceptance Act 1915 …. 782 Judges’ Pensions Act 1968 …. 635 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 …. 366A, 557 Judiciary Act 1903 …. 316, 392, 555, 574, 583 s 19 …. 552 s 20 …. 552 s 21 …. 552 s 23 …. 128E, 552, 615 s 27 …. 565 s 30 …. 589, 601, 604 s 34 …. 565 s 35 …. 562, 568 s 35A …. 562 s 38 …. 573, 575–576, 579, 582, 599–600, 602 s 39 …. 553, 567, 582, 590, 599, 602–606, 609, 615 s 39A …. 553, 606 s 39B …. 600 s 40 …. 590, 601 s 44 …. 575, 579, 600 s 56 …. 578 s 58 …. 582 s 64 …. 212, 578 s 68 …. 416 s 70A …. 621 s 78AA …. 37 s 78A …. 37

s 78B …. 37 s 79(1) …. 613, 758–759 s 80 …. 613, 758 Judiciary Legislation Amendment Act 2006 …. 615 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 19 Lake Eyre Basin Intergovernmental Agreement Act 2001 …. 17 Lands Acquisition Act 1989 …. 366A Legislation Act 2003 …. 22, 481 Life Insurance Act 1995 …. 366A Major Sporting Events (Indicia and Images) Protection Act 2014 …. 128G Maritime Powers Act 2013 …. 775 Marriage Act 1961 …. 296–297 Migration Act 1958 …. 283–284, 366A, 447, 483, 586, 828 Ministers of State Act 1952 …. 509, 511 Ministers of State Regulation 2012 …. 511 National Consumer Credit Protection Act 2009 …. 366A, 775 National Disability Insurance Scheme Act 2013 …. 775 National Film and Sound Archive of Australia Act 2008 …. 415 National Health Act 1953 …. 828 National Land Transport Act 2014 …. 415 National Measurement Act 1960 …. 545 National Security (General) Regulations 1941 …. 347, 357, 362 National Security (Subversive Associations) Regulations …. 800 National Security (Wheat Acquisition) Regulations …. 359 Native Title Act 1993 …. 324, 543 Nauru Independence Act 1967 …. 829 Norfolk Island Act 1979 …. 789, 794, 824, 828–828B Norfolk Island Legislation Amendment Act 2015 …. 789, 794, 828

Northern Territory Acceptance Act 1910 …. 782 Northern Territory (Administration) Act 1910 …. 828 Northern Territory (Self-Government) Act 1978 …. 828–828B Northern Territory (Self-Government) Regulations 1978 …. 828A Old Age Pensions Appropriation Act 1908 …. 710 Olympic Insignia Protection Act 1987 …. 128G Omnibus Repeal Day (Autumn 2014) Act 2014 …. 211 Papua New Guinea Independence Act 1975 …. 829 Parliamentary Allowances Act 1952 …. 187, 483 Parliamentary Commission of Inquiry Act 1986 …. 557 Parliamentary Papers Act 1908 …. 189 Parliamentary Presiding Officers Act 1965 …. 108, 153 Parliamentary Privileges Act 1987 …. 189, 191, 193–195, 197, 469 Parliamentary Proceedings Broadcasting Act 1946 …. 189, 193 Personal Property Securities Act 2009 …. 775 Petroleum and Minerals Authority Act 1974 …. 465–466, 470 Petroleum Revenue Act 1985 …. 730 Pharmaceutical Benefits Act 1944 …. 410 Plant Variety Rights Act 1987 …. 279 Plant Breeder’s Rights Act 1994 …. 279 Primary Industries Levies and Charges Collection Act 1991 …. 730 Proceeds of Crime Act 2002 …. 545, 775 Productivity Commission Act 1998 …. 211 Public Governance, Performance and Accountability Act 2013 …. 721 Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 …. 721 Public Interest Disclosure Act 2013 …. 775 Quarantine Act 1908 …. 258, 545 Racial Discrimination Act 1975 …. 323, 337, 533, 772–773

Referendum (Machinery Provisions) Act 1984 …. 846 Remuneration Tribunal Act 1973 …. 187, 483, 511, 558, 635 Representation Act 1973 …. 471 Representation Act 1983 …. 101 Royal Style and Titles Act 1973 …. 48 Sales Tax Assessment Act (No 3) 1930 …. 270 Screen Australia Act 2008 …. 415 Seafarers Rehabilitation and Compensation Act 1992 …. 775 Seamen’s Compensation Act 1911 …. 723 Seas and Submerged Lands Act 1973 …. 260, 340 Seat of Government Acceptance Act 1909 …. 782 Senate (Quorum) Act 1991 …. 118 Senate (Representation of Territories) Act 1973 …. 471 Service and Execution of Process Act 1901 …. 312–318 Service and Execution of Process Act 1992 …. 312, 314, 316–317 Social Security Act 1991 …. 635, 828 Spam Act 2003 …. 128G State and Territorial Laws and Records Recognition Act 1901 …. 320, 810, 812 Succession to the Crown Act 2015 …. 406 Surplus Revenue Act 1908 …. 14, 708, 710 Surplus Revenue Act 1910 …. 644 Surveillance Devices Act 2004 …. 545 Tax and Superannuation Laws Amendment (Norfolk Island Reforms) Act 2015 …. 828 Telecommunications Act 1997 …. 128G Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 …. 128 Tobacco Plain Packaging Act 2011 …. 40, 128G

Tourism Australia Act 2004 …. 415 Trade Marks Act 1995 …. 280 Trade Practices Act 1974 …. 216, 290, 348, 575, 592 War Crimes Act 1945 …. 548 Water Act 2007 …. 366A, 726, 732, 775 Women’s Employment Act 1942 …. 530 Workplace Relations Act 1996 …. 377, 393, 553 World Heritage Properties Conservation Act 1983 …. 323, 348, 732

New South Wales Australasian Federation Enabling Act 1895 …. 7 Business Names (Commonwealth Powers) Act 2011 …. 401 Commonwealth Powers (De Facto Relationships) Act 2003 …. 401 Commonwealth Powers (Family Law — Children) Act 1986 …. 401 Commonwealth Powers (Meat Inspection) Act 1983 …. 401 Commonwealth Powers (Poultry Processing) Act 1993 …. 401 Commonwealth Powers (State Banking) Act 1992 …. 401 Competition Policy Reform (New South Wales) Act 1995 …. 17 Corporations (Commonwealth Powers) Act 2001 …. 17 Credit (Commonwealth Powers) Act 2010 …. 401 Crimes at Sea Act 1998 …. 17 Defamation Act 2005 …. 193 Evidence Act 1995 …. 17 Fair Trading Act 1987 …. 17 Food Act 2003 …. 17 Health Practitioner Regulation (Adoption of National Law) Act 2009 …. 17 Industrial Relations (Commonwealth Powers) Act 2009 …. 401 Interpretation Act 1987 …. 40

Moratorium Act 1932 …. 775 Mutual Recognition (New South Wales) Act 1992 …. 401 National Electricity (New South Wales) Act 1997 …. 17 National Gas (New South Wales) Act 2008 …. 17 Occupational Licensing (Adoption of National Law) Act 2010 …. 17 Occupational Licensing National Law Repeal Act 2015 …. 17 Personal Property Securities (Commonwealth Powers) Act 2009 …. 401 Senators’ Elections Act 1903 …. 90 Statute Law (Miscellaneous Provisions) Act 1997 …. 401 Statute Law (Miscellaneous Provisions) Act (No 2) 1997 …. 401 Succession to the Crown (Request) Act 2013 …. 406 Terrorism (Commonwealth Powers) Act 2002 …. 401 Trans-Tasman Mutual Recognition (New South Wales) Act 1996 …. 401 Vocational Education and Training (Commonwealth Powers) Act 2010 …. 401 Water (Commonwealth Powers) Act 2008 …. 401

Queensland Acts Interpretation Act 1954 …. 40 Business Names (Commonwealth Powers) Act 2011 …. 401 Commonwealth Powers Act 1943 …. 398 Commonwealth Powers (Air Transport) Act 1950 …. 401 Commonwealth Powers (De Facto Relationships) Act 2003 …. 401 Commonwealth Powers (Family Law — Children) Act 1990 …. 401 Competition Policy Reform (Queensland) Act 1996 …. 17 Corporations (Commonwealth Powers) Act 2001 …. 401 Credit (Commonwealth Powers) Act 2010 …. 401 Crimes at Sea Act 2001 …. 17

Defamation Act 2005 …. 193 Electricity–National Scheme (Queensland) Act 1997 …. 17 Fair Trading Act 1989 …. 17 Fair Work (Commonwealth Powers) and Other Provisions Act 2009 …. 401 Food Act 2006 …. 17 Health Practitioner Regulation National Law Act 2009 …. 17 Lake Eyre Basin Agreement Act 2001 …. 17 Mutual Recognition (Queensland) Act 1992 …. 401 National Gas (Queensland) Act 2008 …. 17 Personal Property Securities (Commonwealth Powers) Act 2009 …. 401 Profiteering Prevention Act 1948 …. 398 Queensland Coast Islands Declaratory Act 1985 …. 772 Senate Elections Act 1960 …. 90 Succession to the Crown Act 2013 …. 406 Terrorism (Commonwealth Powers) Act 2002 …. 401 Trans-Tasman Mutual Recognition (Queensland) Act 2003 …. 401 Vocational Education and Training (Commonwealth Powers) Act 2012 …. 401 Water (Commonwealth Powers) Act 2008 …. 401

South Australia Acts Interpretation Act 1915 …. 40 Beverage Containers Act 1975 …. 696–697 Business Names (Commonwealth Powers) Act 2012 …. 401 Commonwealth Powers (De Facto Relationships) Act 2009 …. 401 Commonwealth Powers (Family Law) Act 1986 …. 401 Competition Policy Reform (South Australia) Act 1996 …. 17 Corporations (Commonwealth Powers) Act 2001 …. 401

Credit (Commonwealth Powers) Act 2010 …. 401 Crimes at Sea Act 1998 …. 17 Defamation Act 2005 …. 193 Election of Senators Act 1903 …. 90 Fair Trading Act 1987 …. 17 Fair Work (Commonwealth Powers) Act 2009 …. 401 Food Act 2001 …. 17 Health Practitioner Regulation National Law (South Australia) Act 2010 …. 17 Lake Eyre Basin (Intergovernmental Agreement) Act 2001 …. 17 Mutual Recognition (South Australia) Act 1993 …. 401 National Electricity (South Australia) Act 1996 …. 17 National Gas (South Australia) Act 2008 …. 17 Northern Territory Surrender Act 1907 …. 782 Personal Property Securities (Commonwealth Powers) Act 2009 …. 401 Succession to the Crown (Request) Act 2014 …. 406 Terrorism (Commonwealth Powers) Act 2002 …. 401 Trans-Tasman Mutual Recognition (South Australia) Act 1999 …. 400–401 Trans-Tasman Mutual Recognition (South Australia) (Removal of Sunset Clause) Act 2004 …. 400 Vocational Education and Training (Commonwealth Powers) Act 2012 …. 401 Water (Commonwealth Powers) Act 2008 …. 401

Tasmania Acts Interpretation Act 1931 …. 40 Australian Consumer Law (Tasmania) Act 2010 …. 17 Business Names (Commonwealth Powers) Act 2011 …. 401 Commonwealth Powers (Air Transport) Act 1952 …. 401

Commonwealth Powers (De Facto Relationships) Act 2006 …. 401 Commonwealth Powers (Family Law) Act 1987 …. 401 Competition Policy Reform (Tasmania) Act 1996 …. 17 Corporations (Commonwealth Powers) Act 2001 …. 401 Credit (Commonwealth Powers) Act 2009 …. 401 Crimes at Sea Act 1999 …. 17 Criminal Code Act 1924 …. 36 Defamation Act 2005 …. 193 Electricity — National Scheme (Tasmania) Act 1999 …. 17 Evidence Act 2001 …. 17 Food Act 2003 …. 17 Health Practitioner Regulation National Law (Tasmania) Act 2010 …. 17 Industrial Relations (Commonwealth Powers) Act 2009 …. 401 Mutual Recognition (Tasmania) Act 1993 …. 401 National Gas (Tasmania) Act 2008 …. 17 Personal Property Securities (Commonwealth Powers) Act 2010 …. 401 Sea Fisheries Regulations 1962 …. 690 Senate Elections Act 1935 …. 90 Succession to the Crown (Request) Act 2013 …. 406 Terrorism (Commonwealth Powers) Act 2002 …. 401 Trans-Tasman Mutual Recognition (Tasmania) Act 2003 …. 401 Vocational Education and Training (Commonwealth Powers) Act 2011 …. 401

Victoria Australian Consumer Law and Fair Trading Act 2012 …. 17 Business Franchise (Tobacco) Act 1974 …. 693 Business Names (Commonwealth Powers) Act 2011 …. 401

Charter of Human Rights and Responsibilities Act 2006 …. 610G Commonwealth Powers (De Facto Relationships) Act 2004 …. 401 Commonwealth Powers (Family Law — Children) Act 1986 …. 401 Commonwealth Powers (Industrial Relations) Act 1996 …. 401 Competition Policy Reform (Victoria) Act 1995 …. 17 Corporations (Commonwealth Powers) Act 2001 …. 397, 401 Credit (Commonwealth Powers) Act 2010 …. 401 Crimes at Sea Act 1999 …. 17 Defamation Act 2005 …. 193 Evidence Act 2008 …. 17 Fair Work (Commonwealth Powers) Act 2009 …. 401 Food Act 1984 …. 17 Health Practitioner Regulation National Law (Victoria) Act 2009 …. 17 Interpretation of Legislation Act 1984 …. 40 Mutual Recognition (Victoria) Act 1998 …. 401 National Electricity (Victoria) Act 2005 …. 17 National Gas (Victoria) Act 2008 …. 17 Personal Property Securities (Commonwealth Powers) Act 2009 …. 401 Senate Elections Act 1958 …. 90 Succession to the Crown (Request) Act 2013 …. 406 Terrorism (Commonwealth Powers) Act 2003 …. 401 Trans-Tasman Mutual Recognition (Victoria) Act 1998 …. 401 Transport Regulation Act 1933 …. 864 Water (Commonwealth Powers) Act 2008 …. 401

Western Australia Business Names (Commonwealth Powers) Act 2012 …. 401 Child Support (Adoption of Laws) Act 1990 …. 401

Commonwealth Powers (De Facto Relationships) Act 2006 …. 401 Competition Policy Reform (Western Australia) Act 1996 …. 17 Constitution Act 1889 …. 126 Corporations (Commonwealth Powers) Act 2001 …. 401 Credit (Commonwealth Powers) Act 2010 …. 401 Crimes at Sea Act 2000 …. 17 Defamation Act 2005 …. 193 Election of Senators Act 1903 …. 90 Fair Trading Act 2010 …. 17 Food Act 2008 …. 17 Health Practitioner Regulation National Law (WA) Act 2010 …. 17 Interpretation Act 1984 …. 40 Mining Act 1978 …. 215 Mutual Recognition (Western Australia) Act 2010 …. 401 National Gas Access (WA) Act 2009 …. 17 Succession to the Crown Act 2015 …. 406 Terrorism (Commonwealth Powers) Act 2002 …. 401 Trans-Tasman Mutual Recognition (Western Australia) Act 2007 …. 401

Australian Capital Territory Civil Law (Wrongs) Act 2002 …. 193 Civil Unions Act 2006 …. 828 Competition Policy Reform Act 1996 …. 17 Electricity (National Scheme) Act 1997 …. 17 Evidence Act 2011 …. 17 Fair Trading (Australian Consumer Law) Act 1992 …. 17 Food Act 2001 …. 17 Gene Technology (GM Crop Moratorium) Act 2004 …. 828

Health Practitioner Regulation National Law (ACT) Act 2010 …. 17 Human Rights Act 2004 …. 828B Legislation Act 2001 …. 40 Mutual Recognition (Australian Capital Territory) Act 1992 …. 401 National Gas (ACT) Act 2008 …. 17 Personal Property Securities (Commonwealth Laws) Act 2011 …. 401 Plant Diseases Act 2002 …. 828 Retirement Villages Act 2012 …. 828 Trans-Tasman Mutual Recognition Act 1997 …. 401 Utilities Act 2000 …. 828

Norfolk Island Absentee Landowners Levy Act 1976 …. 828 Census and Statistics Act 1961 …. 828 Cheques (Duty) Act 1983 …. 828 Customs Act 1913 …. 828 Defamation Act 2006 …. 193 Departure Fee Act 1980 …. 828 Fair Trading Act 1995 …. 828 Fuel Levy Act 1987 …. 828 Goods and Services Tax Act 2007 …. 828 Healthcare Act 1989 …. 828 Healthcare Levy Act 1990 …. 828 Immigration Act 1980 …. 828 Land Valuation Act 2012 …. 828A Postal Services Act 1983 …. 828 Social Services Act 1980 …. 828 Supreme Court Act 1960 …. 828B

Northern Territory Business Names (National Uniform Legislation) Request Act 2011 …. 17 Competition Policy Reform (Northern Territory) Act 1996 …. 17 Constitutional Convention (Election) Act 2011 …. 821 Consumer Affairs and Fair Trading Act 1990 …. 17 Corporations (Northern Territory Request) Act 2001 …. 401 Crimes at Sea Act 2000 …. 17 De Facto Relationships (Northern Territory Request) Act 2004 …. 401 Disability Services Act 1993 …. 828 Environment Protection (Beverage Containers and Plastic Bags) Act 2011 …. 828 Evidence (National Uniform Legislation) Act 2011 …. 17 Food Act 2004 …. 17 Health Practitioner Regulation (National Uniform Legislation) Act 2010 …. 17 Heritage Act 2011 …. 828 Interpretation Act 1978 …. 40 Lake Eyre Basin Intergovernmental Agreement Act 2009 …. 17 Mutual Recognition (Northern Territory) Act 1992 …. 401 National Gas (Northern Territory) Act 2008 …. 17 Succession to the Crown (Request) (National Uniform Legislation) Act 2013 …. 406 Supreme Court Act 1979 …. 828B Terrorism (Northern Territory) Request Act 2003 …. 401 Tobacco Control Act 2002 …. 828 Trans-Tasman Mutual Recognition Act 1998 …. 401

United Kingdom

27 Geo III, c 13 (1787) …. 625 Australia Act 1986 (1986, c 2) …. 31–32, 844, 844A Australian Colonies Duties Act 1873 (36 & 37 Vic, c 22) …. 2 Bill of Rights 1689 (1 Will & Mar sess 2, c 2) …. 195, 204, 469 Colonial Boundaries Act 1865 (58 & 59 Vict, c 34) …. 60–61 Colonial Laws Validity Act 1865 (28 & 29 Vict, c 63) …. 404 Federal Council of Australasia Act 1885 (48 & 49 Vict, c 60) …. 3–4, 58–59, 260, 285, 318, 333, 343, 397 Imperial Defence Act 1888 (51 & 52 Vict, c 32) …. 4 Magna Carta 1215 (25 Edw 1) …. 204 Statute of Westminster 1931 (22 Geo V, c 4) …. 55, 844

United States 49 USC 1302 …. 735 Constitution of the United States (1787) …. 798, 804A, 817 ICC Termination Act of 1995, Pub L 104–88, 29 December 1995, 109 Stat 803 …. 735 Interstate Commerce Act of 1887, ch 104, 4 February 1887, 24 Stat 379 …. 735 Surface Transportation Board Reauthorization Act of 2015, Public Law 114– 110, 18 December 2015, 129 Stat 2228 …. 735 Wilson Act of 1890, ch 728, 8 August 1890, 26 Stat 313, 27 USC 121 …. 787

International Treaties Convention on the Civil Aspects of International Child Abduction, The Hague, 25 October 1980, 1343 UNTS 89; [1987] ATS 2 …. 540A Convention for the Protection of the World Cultural and Natural Heritage, Paris, 23 November 1972, 1037 UNTS 151; [1975] ATS 47 …. 338–339

International Convention on the Elimination of All Forms of Racial Discrimination, New York, 7 March 1966, 660 UNTS 195; [1975] ATS 40 …. 338 International Convention to Suppress the Slave Trade and Slavery, Geneva, 25 September 1926, 60 LNTS 253; [1927] ATS 11 …. 339 UNCITRAL Model Law on International Commercial Arbitration, as revised at New York, 7 July 2006, [2006] Uniform Law Review 866; A/61/17 p 56 …. 533, 610H United Nations Convention on Contracts for the International Sale of Goods, Vienna, 11 April 1980, 1489 UNTS 3; [1988] ATS 32 …. 17

CONTENTS __________________________ Foreword to Eighth Edition Preface Table of Cases Table of Constitutional Provisions Table of Statutes

Introduction Commonwealth of Australia Constitution Act (Covering Clauses) 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

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

Appendix Bibliography Commonwealth of Australia Constitution Act Index

[page 1]

INTRODUCTION __________________________ OUTLINE 1 This chapter discusses four main areas which do not readily fall into the section by section annotation of the Constitution which comprises the greater part of this work. First, the history of the adoption of the Constitution is outlined. Second, the structure of the Constitution is briefly outlined by way of introduction to the annotations that follow. Third, a number of general themes such as federalism, separation of powers and constitutional interpretation are briefly examined. Fourth, this chapter covers a number of other preliminary issues which cannot be conveniently included within the main body of the text.

THE MAKING OF FEDERATION 2 The first steps towards a Federation of the Australian colonies were taken as far back as 1849. The Secretary of State for the Colonies, Earl Grey, had referred the question of the future government of the colonies to the Committee for Trade and Plantations (a sub-committee of the Privy Council). In its report, the Committee had recommended that an intercolonial uniform tariff be established. The tariff would be subject to amendment by a general assembly which would be representative of the colonies. The assembly, in addition to its power over customs, would also have the power to deal with matters affecting relations between the colonies, such as posts, lighthouses, weights and measures, and harbour dues. It would also have the power of creating an Australian Supreme Court as well as appropriating

revenue in relation to the powers conferred upon it. The text of the report appears in Williams, 2005, pp 7–9. The Constitution Bill 1850, which provided for the separation of New South Wales and Victoria, included provisions along these lines, but because of opposition in England and Australia the provisions were dropped from the Bill. The first attempt to create a federal system had failed. Nevertheless, an initiative was taken to introduce some coordination of executive powers when the Governor of New South Wales was appointed as Governor-General of all the Australian colonies (the governors of the other colonies becoming lieutenant-governors). The scheme did not last for long and the title was discontinued in 1861. Within the colonies themselves, various moves were made to promote the federal cause. For example, in New South Wales and Victoria Select Committees were appointed to consider the matter. However, intercolonial jealousies and opposition stymied these moves. In one vital area — tariffs — some attempt had to be made to coordinate the policies of the colonies. As early as 1855 certain ‘free trade’ arrangements had been made with respect to goods crossing the Murray, although these arrangements were not to last. However, there was a legal fetter which prevented the colonies from granting concessions to one another which were denied to goods imported from abroad. This was the existence of Imperial legislation which prohibited differential tariffs. The Australian Colonies Duties Act 1873 opened the way for such preferential arrangements: s 3. See LaNauze (1948) 24 [page 2] Economic Record 218 at 223–4. However, the trade policies of Victoria and New South Wales were in conflict, with protectionism flourishing in Victoria, and therefore the possibility of a customs union or free trade area permitted by the Imperial Act was not realised. 3 In the 1870s external affairs and defence were issues that took root in the Australian consciousness. European colonisation in the Pacific Islands near the

Australian coastline had raised fears in Australian politicians. In 1883, Queensland purported to annex New Guinea, only to find its action overridden by the Imperial authorities. A Victorian Royal Commission stressed the need for a united defence policy to deal with the dangers from military involvement in the region. During this period there were a number of conferences of representatives of the colonies to consider the matters on which uniform Imperial legislation might be requested, but with little result. As Moore pointed out, such conferences had no corporate legal status and the dissent of one colony prevented Australia from speaking with one voice to the Imperial Government. See Moore, 1910, pp 35–6. In 1883 a convention of the colonies was held in Sydney. On its agenda was the question of the Federation of the Australasian colonies. From this convention came a recommendation for a limited federal authority which would have power in relation to certain matters of common concern. In the following year the Australasian colonies (with the vital exception of New South Wales but including Fiji) requested the Imperial authorities to adopt the recommendation. In 1885 the Federal Council of Australasia Act was enacted. 4 The Act constituted a Council consisting of representatives nominated by the colonies: s 5. It was to meet at least once every two years: s 4. When not in session, a Standing Committee was to carry out executive functions on its behalf: s 24. The limited legislative powers of the Council comprised the following matters: (a) relations of Australia with the islands of the Pacific; (b) prevention of the influx of criminals; (c) fisheries in Australian waters beyond Territorial limits; (d) service and execution of process beyond a colony; (e) enforcement of intercolonial judgments; (f) extradition and criminal process beyond the confines of a colony; (g) custody of offenders on board colonial ships outside Territorial limits; (h) matters referred to it by the Queen on the request of the colonies; and (i) matters referred to it at the request of two or more of the colonial

Legislatures: s 15. The importance of the Act was to be seen in its provision for a body to legislate with regard to matters of common concern. One defect was the lack of provision for an executive body (cabinet) or a court. Another major defect was that membership was voluntary. New South Wales never became a member. The Council could be described as a ‘confederal’ rather than a federal institution. It was therefore not surprising that as time went on other forms of intercolonial cooperation (for example, Premiers’ Conferences) overshadowed the work of the Council. In all, only 10 Acts were passed by the Council. (See the discussion under cl 7 of the Constitution Act.) For histories of the Council, see Quick and Garran, 1901, pp 109–15 (Revised ed, 2015, pp 108– 13); Hunt, 1930, pp 39–44; McMinn, 1979, pp 96–102; Else-Mitchell (1985) 59 ALJ 666; Kaye (1996) 1 Newcastle LR 57; Williams, 2005, pp 15–21. The passage of the Imperial Defence Act 1888 was another important event. The Act ratified an agreement reached between the Australian colonies and the Imperial Government [page 3] under which a contribution was made by the colonies towards the formation of an Australasian squadron. The basis for a common defence system was thereby established. 5 The time was now ripe to push ahead with more ambitious plans for Federation. Sir Henry Parkes, the New South Wales Premier, gave his support to the federal cause. In 1890 a conference of the seven colonies (including New Zealand) was held. The conference recommended that a national Australasian convention be convened. See Sharwood in Craven, Debates, 1986, vol VI, pp 41–73. The convention opened in Sydney on 2 March 1891. Seven representatives attended from each of the Australian colonies (appointed pursuant to resolutions passed by the Houses of Parliament of each colony). Three

representatives from New Zealand also attended. The convention approved resolutions embodying the following principles: (a) ‘the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government’; (b) ‘trade and intercourse between the federated colonies, whether by means of land carriage or coastal navigation, shall be absolutely free’; (c) ‘the power and authority to impose customs duties shall be exclusively lodged in the Federal Government and Parliament, subject to such disposal of the revenues thence derived as shall be agreed upon’; and (d) ‘the military and naval defence of Australia shall be entrusted to federal forces, under one command’. See Quick and Garran, 1901, p 125 (Revised ed, 2015, p 123). The convention approved the framing of a federal constitution establishing: (a) ‘A parliament, to consist of a senate and a house of representatives, the former consisting of an equal number of members from each province, to be elected by a system which shall provide for the [periodical] retirement of one-third of the members …, so securing to the body itself a perpetual existence combined with definite responsibility to the electors, the latter to be elected by districts formed on a population basis, and to possess the sole power of originating and amending all bills appropriating revenue or imposing taxation’; (b) ‘A judiciary, consisting of a federal supreme court, which shall constitute a high court of appeal for Australia’; (c) ‘An executive, consisting of a governor-general and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the house of representatives, expressed by the support of the majority’. See Quick and Garran, 1901, p 125 (Revised ed, 2015, pp 123–4). 6 Three committees were established to frame a Constitution embodying these principles: one dealing with constitutional functions, the second with

finance and the third with the judiciary. A drafting committee consisting of Sir Samuel Griffith, Andrew Inglis Clark, Sir Edmund Barton and Charles Kingston prepared a draft incorporating the work of those committees. The draft Bill was then considered in full committee and reported to the convention, where it was adopted. Quick and Garran (1901, pp 135–6; Revised ed, 2015, pp 133–4) commented that: … in the first draft of 1891 the whole foundation and framework of the present Constitution was contained. Its general characteristics, as compared with the Constitution as it now stands, may be summed up in a few words. In the first place — as is natural in a first draft — it followed more closely, in substance and in language, the literary models — American, Canadian, and Australian — which were available to the Convention. In the next place, it was in some few

[page 4] respects less essentially democratic in its basis — a circumstance which is also natural, in view both of the continuous development of democratic ideas, and of the more completely popular impulse of the later stages of the federal movement. And lastly, it was less definite and less elaborate in its treatment of some of the vexed problems — problems which had not yet been the subject of exhaustive discussion, and some of which had only been mooted in vague and general terms. The peculiarities of our railway development, the unique characteristics of our river system, the special difficulties arising out of our tariff policies and requirements, had not yet been adequately studied.

The learned authors (p 136; Revised ed, p 134) went on to point out that: … [t]he constitutional problem of reconciling the representation of State interests with British principles of legislation and finance — of bringing into harmony the conflicting elements of State rights and interests on the one hand and of national rights and interests on the other — in short, of securing responsible government, legislative finality, and the general predominance of the House of Representatives, without “killing federalism”, was as yet incompletely solved.

Before concluding its session the convention recommended that the Parliaments of the colonies make provision for the adoption of the draft Constitution by the people of the colonies and for subsequent approval by the Imperial Government. However, the Bill was ultimately ‘shelved’. The Parkes Ministry lost office in New South Wales, and the other colonies dealt with the Bill in a dilatory fashion. There was as yet insufficient support for the Federation cause among the citizens of the colonies.

The opportunity to arouse greater support came with the holding of a conference promoted by an influential body, the Australian Natives Association, at Corowa in 1893. On the motion of Dr John Quick a plan was adopted for popular election of delegates to a new convention. The conference produced a ‘groundswell’ in favour of the federal movement. In 1895 a Premiers’ Conference supported the proposal for a new convention. According to the program approved, the convention was to consist of 10 delegates from each colony, directly chosen by the electors. The draft Bill emanating from the convention was to be submitted to the electors at a referendum; if adopted in three or more colonies it was to be submitted to the Imperial government for ratification. 7 An enabling Bill along these lines was drafted. This Bill in its essential features was passed by four colonial legislatures (New South Wales, Victoria, South Australia and Tasmania). However, in Western Australia there was a substantial departure from the scheme: in place of popular election, the delegates were to be selected by both Houses sitting together. In Queensland the Bill was lost due to a lack of consensus between the northern, central and southern regions of the colony. The text of the Australasian Federation Enabling Act 1895 (NSW) is reproduced in Williams, 2005, pp 471–4. The elections for the convention were duly held and the delegates took their seats at the first session of the convention which commenced in Adelaide in March 1897. Charles Kingston was elected president and Sir Edmund Barton became leader of the convention. Initially it was necessary to decide whether to adopt the 1891 Bill as the basis for discussion or to start afresh on a new draft. It was decided that as the delegates had been chosen by the people to frame a constitution it would be better to start afresh. However, the draft Bill was ‘[b]y common consent … taken as the foundation of the work of the Convention’. See Moore, 1910, p 47. 8 As with the first convention, three committees were appointed. Their work was to be submitted to a drafting committee consisting of Sir Edmund Barton, Richard Edward O’Connor and Sir John Downer. The draft was duly completed and submitted to the convention in April 1897. After discussion, the convention was adjourned to allow the

[page 5] colonial legislatures to consider the Bill. The legislatures sat and a number of amendments were suggested. The second session of the convention was held in Sydney in September 1897 and some amendments were made. The third session was held in Melbourne, commencing in January 1898. At this session, compromises were reached on the vexed question of financial relations between the Commonwealth and the States. This session saw the introduction of the Braddon clause providing for payment to the States of a certain proportion of the revenue from customs and excise duties. Agreement was also reached on a deadlock clause for resolving disputes between the House of Representatives and the Senate. The Bill was revised by the drafting committee and adopted by the convention in March 1898. Under the terms of the enabling legislation, the Bill was now to be submitted to the electors in each colony. Referenda were held in only four colonies. Queensland had not been represented. Western Australia took no steps at this stage to hold a referendum. The Bill was approved by majorities in Victoria, Tasmania and South Australia. However, in New South Wales significant opposition was encountered. This opposition was directed particularly against the clauses providing for equality of representation in the Senate, and the financial clauses which were thought to favour the smaller States. There was also concern about the location of the seat of government. The Bill failed to secure the minimum number of votes required by the New South Wales legislation. In the light of the agreement of the Premiers’ Conference in 1895 that approval by three of the colonies was sufficient; theoretically it would have been possible to submit the Bill to the Imperial government. But the absence of approval from the largest colony had clearly jeopardised the scheme and it would not have been practicable to have gone ahead at this stage. After a parliamentary election in that colony, certain modifications to the draft Bill were suggested by the Legislative Assembly. All six colonies participated in a Premiers’ Conference held in Melbourne in January 1899. The Conference agreed upon several amendments to the draft Bill. In June 1899 New South Wales, Victoria, South Australia and Tasmania

approved the terms of the revised Bill. In September, Queensland finally gave its approval. No action was taken in Western Australia which hoped for concessions in favour of its special interests. 9 The next step was that the five colonial legislatures adopted addresses requesting the Bill’s enactment by the Imperial Parliament. Delegates from the colonies went to England to confer on the Bill with the Law Officers and the Colonial Office. Minor amendments were made by the Imperial authorities to the covering clauses. The substantial matter in dispute was the question of appeals to the Privy Council. Under the original clauses the jurisdiction of the Privy Council over appeals from the High Court was limited to questions involving the public interest affecting another part of Her Majesty’s Dominions. (Earlier versions of s 74 are to be found in La Nauze, 1972, pp 303–4.) This clause was not acceptable to the Imperial authorities. Ultimately a compromise was reached and the present wording of s 74 was agreed upon. The Bill received the Royal Assent on 9 July 1900, which is now designated as Constitution Day. The Bill was to come into force upon the making of a proclamation by the Queen. A referendum was held in Western Australia and a majority of the electors in that colony accepted the Bill. Following this referendum the Western Australian Parliament requested that it be included as an original State. Although provision was made for New Zealand to become an original State, that did not occur. For the background, see La Nauze, 1972, pp 14, 21, 250, 259–60; Smith in Irving, 1999, pp 400–5. [page 6] On 17 September 1900, a proclamation was issued proclaiming that the Commonwealth of Australia was to come into existence on 1 January 1901. For histories of the Federation movement and the drafting of the Constitution, see Quick and Garran, 1901, pp 79–252 (Revised ed, 2015, pp 79–246); Moore, 1910, pp 17–64; Hunt, 1930; Martin, 1969; Bennett, 1971; La Nauze, 1972; Crisp, 1990; Irving, 1996; Twomey in The Constitution Papers, 1996, pp 1–43; Irving, 1997; Matthews, 1999; Irving, 1999; Headon and Williams, 2000; Thomson (2000) 23, 2 UNSWLJ 345; Ward, 2001; La

Nauze, 2001, pp 86–110; McGrath, 2003; Clark (2004) 7 Const L & Pol’y Rev 1; Aroney, 2009. The various draft Bills are collected in Williams, 2005.

STRUCTURE OF THE CONSTITUTION 10 The Commonwealth of Australia Constitution Act consists of nine sections which are referred to as the covering clauses of the Constitution. These clauses are mainly of a formal nature, although cll 2 and 5 (and possibly cl 8) have some continuing substantive effect. The Constitution itself is contained in cl 9 of the Act. It is divided into eight Chapters consisting of 128 sections. (Section 127 was repealed by a constitutional referendum held in 1967, while s 105A was inserted by a referendum in 1929.) Chapter I of the Constitution is headed ‘The Parliament’ and consists of five Parts. Part I is of a general nature and deals, inter alia, with the sessions of the Parliament. Parts II and III contain provisions relating to the Senate and House of Representatives respectively. Matters such as method of election, legislative terms and voting procedure are to be found in these Parts. Part IV consists of provisions which relate to both Houses (for example, qualifications and disqualifications of members and parliamentary privilege). Part V is the most important of the Parts in Chapter I. It contains s 51, which consists of 40 paragraphs relating to Commonwealth heads of power, most of which are concurrent powers. The word ‘placita’ has been used to describe the paragraphs of s 51, though that practice has diminished. See Dixon, 1965, p 133; Carney (2015) 89 ALJ 331 at 343–4. The following section, s 52, contains a small list of powers which are expressly designated as exclusive powers of the Commonwealth Parliament. Other sections in Part V deal with the relationship between the Houses and assent to Bills. Chapter II of the Constitution deals with ‘The Executive Government’. In this Chapter are to be found provisions relating to the appointment of Ministers of the Crown (s 64) and other matters relating to the administration of the affairs of the Commonwealth. Chapter III is entitled ‘The Judicature’ and consists of 10 sections. However, the size of this Chapter does not give a true indication of its importance. This Chapter is the foundation for the elaborate structure of

judicial review by the courts and the strict separation of judicial power from the legislative and executive powers. The High Court is established both as a court of appeal from State Supreme Courts and other courts exercising federal jurisdiction. The court also acts as a tribunal of original jurisdiction in constitutional and various federal matters, with the power of declaring invalid Commonwealth, State or Territory laws that transgress the limitations imposed by the Constitution. The role of the State courts in these matters is recognised by s 77 which empowers the Commonwealth Parliament to invest State courts with federal jurisdiction. Chapter IV is headed ‘Finance and Trade’. Some of these sections were of a temporary nature, expiring within a short period of Federation. However, s 92 protects freedom of [page 7] trade, commerce and intercourse between the States. This Chapter also confers upon the Commonwealth Parliament the power to make grants to the States: s 96. This power has turned out to be a vital basis for Commonwealth– State financial relations. Chapter V is entitled ‘The States’. It contains important sections relating to State Constitutions and legislative power: ss 106–107. It also provides for Commonwealth paramountcy where there is a conflict between Commonwealth and State legislative power: s 109. This Chapter also includes several provisions protecting individual freedoms: ss 116, 117. These sections, together with a few others (for example, ss 51(xxxi) and 80), are the only sections in the Constitution that protect individual freedoms. There is no comprehensive Bill of Rights such as is to be found in most national Constitutions. See Kruger v Commonwealth (1997) 190 CLR 1 at 61; 146 ALR 126; cf Street v Queensland Bar Association (1989) 168 CLR 461 at 521–2; 88 ALR 321. However, the High Court has held that the Constitution embodies an implied freedom of communication in relation to political and public affairs. See Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 559; 145 ALR 96.

The remaining Chapters VI, VII and VIII contain only a small number of sections. Chapter VI, entitled ‘New States’, provides for the method of establishing new States (ss 121, 124), for the government of Territories (s 122) and for the alteration of State boundaries: s 123. Chapter VII is a miscellaneous chapter of little importance except that it established the location of the seat of government: s 125. Chapter VIII consists of one section detailing the manner in which the Constitution may be amended: s 128.

GENERAL THEMES The federal nature of the Constitution 11 The federal nature of the Constitution is proclaimed in the first paragraph of the preamble to the Constitution Act, which refers to the agreement on the part of the people of the colonies to unite in ‘one indissoluble Federal Commonwealth’. In terms of the political structure, it is supported by the establishment of a bicameral legislature, of which the upper House (the Senate) is composed of persons directly chosen by the electors of each State. It is also supported by the requirement that the original States shall have equal representation, and by the prohibition of a dissolution of the Senate except under the conditions laid down in s 57. As to legislative powers, the federal principle is worked out in detail. Commonwealth legislative powers are specified in ss 51 and 52. State Constitutions (s 106) and powers (ss 107, 108) are preserved. The paramountcy of Commonwealth legislation is established: s 109. Windeyer J pointed out that the theory of Australian federalism is, in particular, based on these last three sections. See R v Phillips (1970) 125 CLR 93 at 116. The federal structure also extends to executive power and to judicial power. The general rule is that executive power follows legislative power. Commonwealth executive power to contract and spend is that of a federal system not that of a unitary state. See Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 at [82]–[83]. An elaborate jurisprudence has been constructed to distinguish the judicial power which can only be exercised by federal courts (or State courts invested with federal jurisdiction under s 77) and other categories of power

(administrative, legislative) which must be exercised by organs of government separate from the courts. [page 8]

Place of the Senate in the legislative structure 12 The fundamental place of the Senate in the legislative structure was affirmed by the High Court in Victoria v Commonwealth (PMA case) (1975) 134 CLR 81 at 121, 143, 168, 185; 7 ALR 1. It was also affirmed in the reasons given by the Governor-General (Sir John Kerr) in withdrawing the Commission of the Prime Minister (Gough Whitlam) in November 1975, after the Appropriation Bill had not been passed by the Senate. On the other hand, the role of the Senate as a States’ House was diminished slightly by the decisions of the High Court upholding the validity of giving Territory senators the same capacities and voting rights as State senators. See Western Australia v Commonwealth (1975) 134 CLR 201; 7 ALR 159 and Queensland v Commonwealth (1977) 139 CLR 585; 16 ALR 487.

Financial and trade relations 13 Federalism not only implies a distribution of power between national and State organs of authority. It also implies some control of legislative and executive practices discriminating between the States which might adversely affect the concept of basic equality which is the foundation of the federal system. This means, in particular, that the finance and trade powers of the Commonwealth must be strictly controlled to prevent any discrimination or preference between States which would distort the federal relationship. One of the main objects of Federation was to eliminate the economic rivalry between the Australian colonies which was hampering the development of the continent. Another object was to ensure that this rivalry would not be rejuvenated by a combination of State interests pushing discriminatory legislation through the federal Parliament. Consequently, the

prohibitions attached to the financial and revenue clauses are designed to ensure that this does not occur. The Commonwealth may not in any taxation law discriminate between States or parts of States: s 51(ii). Duties on the production or importation of goods must observe the norm of uniformity: ss 88, 90. No trade or revenue measure may give preference to one State or part thereof over another State or part thereof: s 99. 14 Financial relations between the Commonwealth and States during the early period of Federation were regulated by elaborate provisions relating to the distribution of revenue. The Braddon clause (s 87) provided for the return to the States of a proportion of the revenue which the Commonwealth raised from excise and customs duties. Section 94 provided for the payment to the States of the surplus revenue of the Commonwealth. The inadequacy of this latter section was demonstrated when the Surplus Revenue Act 1908 was passed and upheld in a subsequent judicial challenge. See New South Wales v Commonwealth (1908) 7 CLR 179. The effect of this Act was to ‘debit’ Commonwealth expenditure in relation to social services and coastal defence by appropriation to trust accounts of moneys required for these purposes, thus ensuring that there was no constitutional excess to be distributed. In 1910, when the Braddon clause expired, a per capita system of State grants was established. This continued until 1927 when the Financial Agreement was concluded. Under this Agreement a Loan Council was created to coordinate governmental borrowing. A concomitant aspect of the scheme was the taking over by the Commonwealth of State debts with a contribution by the Commonwealth towards their repayment as well as towards the redemption of future debts. Apart from making per capita grants to the States under s 96, the Commonwealth also assisted States in special difficulties. In 1933 this assistance was placed on a more formal basis [page 9] with the establishment of the Commonwealth Grants Commission to assess

the needs of so-called ‘claimant’ States. See Commonwealth Grants Commission Act 1933, later replaced by the Commonwealth Grants Commission Act 1973 (Cth). 15 In 1942 the First Uniform Tax case was decided. See South Australia v Commonwealth (1942) 65 CLR 373. The High Court upheld the power of the Commonwealth to make grants to the States on the condition that they abstained from levying their own income taxes. Having lost de facto power to levy such tax, the States became dependent upon annual Commonwealth grants (which until 1959 were described as ‘reimbursement grants’) for a large proportion of their revenue. A new basis for allocating revenue to the States was agreed upon in 1959. There was also a significant increase in the special purpose or ‘tied’ grants made by the Commonwealth to the States. The formulation of recommendations in relation to such grants (for example, in the education area) was in some cases entrusted to advisory bodies which reported to departments or the government. In 1976 a new structure of Commonwealth–State financial relationships was formulated as Commonwealth policy. The structure became known as the ‘New Federalism’. Under Stage I, the States were to be guaranteed a fixed share of personal income tax revenue which was subject to periodic review. Stage II permitted a State to levy a surcharge or to grant a rebate in relation to its entitlement. No State took advantage of this arrangement and it was terminated. In 1985 tax sharing arrangements were replaced by financial assistance grants to the States. In 1994 a new Financial Agreement replacing most of the earlier Agreement was negotiated. The current Commonwealth–State financial arrangements were adopted from 2008 onwards. Under the COAG Reform Fund Act 2008 (Cth) the purpose of the Fund is to grant financial assistance to the States and Territories: s 6. The terms and conditions relating to a grant are to be contained in a written agreement between the Commonwealth and the State or Territory concerned: s 7(2). The Federal Financial Relations Act Act 2009 (Cth) provides that each State and Territory is to receive a goods and services tax revenue grant adjusted for its population: s 5. The Commonwealth may provide general

purpose financial assistance to the States and Territories: s 9(1). These payments may be spent for any purpose: s 3(a). National specific purpose payments may be provided for expenditure in relation to skills and workforce development (s 12), disability services (s 13) and housing services (s 14). These payments must be spent in the specific sector for which they are allocated: s 3(b). The Minister may determine that a State should receive an assistance payment for expenditure in accordance with the National Health Reform Agreement: s 15A. National partnership payments may be made to assist the States and Territories to complete specific projects or to undertake reforms or to reward the making of reforms: s 16(1). The Act reduced the conditionality attached to national specific purpose payments, while leaving non-national payments subject to conditionality. See Webb, 2009, p 15. In providing financial assistance the Commonwealth Minister must have regard to the Intergovernmental Agreement on Federal Financial Relations that came into effect on 1 January 2009: ss 4, 21. The rate and base of the goods and services tax are not to be modified unless each State or Territory agrees to the change. See A New Tax System (Managing the GST Rate and Base) Act 1999 (Cth) s 11. Northern Territory and the Australian Capital Territory participate in these financial arrangements. [page 10] For histories of Commonwealth–State financial relations, see Saunders in Craven, 1992, pp 101–30; Saunders (2000) 11 Public LR 99; James in Lindell and Bennett, 2001, pp 210–48; Wilkinson, 2006; Hanks, Gordon and Hill, 2012, pp 359–61; Williams, Brennan and Lynch, 2014, pp 279–84. In contrast with the prohibitions attaching to the trade and taxation powers, there is nothing in s 96 to prevent the Commonwealth from giving special assistance to one or more States which is not given to all the States. However, the absence of a prohibition in s 96 against discrimination actually promotes the federal principle as it enables the Commonwealth to equalise the

geographical, economic and other disabilities of the various States when special assistance is required. See Hannan in Else-Mitchell, 1961, p 257. Another constitutional provision of significance is s 90, which grants to the Commonwealth Parliament exclusive power to levy excise taxes and customs duties. 16 Financing of activities that do not fall directly within a Commonwealth power would be possible under an expansive interpretation of s 81 of the Constitution. That provision states that all Commonwealth revenues form a Consolidated Revenue Fund to be appropriated for the purposes of the Commonwealth. The Pharmaceutical Benefits case (Attorney-General (Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237) did not express a concluded opinion as to the meaning of the term ‘purposes of the Commonwealth’. The Commonwealth subsequently acted on the basis that the appropriation power was not tied to specific legislative powers. The appropriation power came under judicial scrutiny again in Victoria v Commonwealth (1975) 134 CLR 338; 7 ALR 277. In this case a challenge by a State to the appropriation of moneys by the Commonwealth on the ground that they were not for Commonwealth purposes was rejected. No single interpretation of the phrase ‘purposes of the Commonwealth’ commended itself to a majority of the judges. However, the case broadened the concept of Commonwealth purposes. The High Court has ultimately settled for a narrowed interpretation of s 81. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 the court held that s 81 is not a substantive spending power. The power to spend must be found in other provisions of the Constitution or in statutes enacted under the Constitution.

Legislative cooperation 17 In R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535; 49 ALR 19 the High Court decided that the Constitution did not prevent the Commonwealth and States from exercising their powers in a cooperative manner which would remedy the deficiencies in power of each

level of government: at 552, 559–64, 566, 579–82, 589–92. See similarly, R v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22 at [46], [72]. However, the Commonwealth and the States cannot accomplish as an exercise in ‘cooperative federalism’ what the Constitution prohibits either level of government from doing. See Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 at [2], [19]–[21], [54]–[55], [113]; R v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22 at [78]–[79]. For discussions of constitutional limits to cooperative federalism, see Hill (2000) 24 MULR 478; McConvill and Smith (2001) 29 FL Rev 75; Hill (2002) 13 Public LR 205; Guy, 2013, pp 112–6. Executive agreements may not provide federal power where legislative cooperation is required. The court has held that ‘[c]onsultation between the Commonwealth and States coupled with silent, even expressed, acquiescence by the States does not supply otherwise [page 11] absent constitutional power to the Commonwealth’. See Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 at [74], [99]. The Commonwealth may not circumvent a constitutional limitation such as the acquisitions power by entering into an agreement that a State would acquire property without providing just terms. See ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 at [29]. The Constitution itself requires certain forms of cooperation (for example, in the areas of railway construction, borrowing of moneys and imprisonment of offenders against Commonwealth laws). The Constitution also empowers the Commonwealth Parliament to make laws with respect to matters which are referred to it by the legislature of one or more States: s 51(xxxvii). There have been some significant references in recent years. The most notable of these references was that relating to corporations law, which provided a basis for the enactment of the Corporations Act 2001 (Cth). See Govey in Jones and Macmillan, 2003, pp

130–44. Other important references have concerned industrial relations, consumer credit, personal property securities, terrorism, business names and the waters of the Murray-Darling Basin. A common form of legislative cooperation is to be seen in the joint exercise of legislative powers (often referred to as ‘mirror’ legislation). For example, the Vienna International Sales Convention was implemented by legislation enacted by all States and Territories. See Trone, 2001, p 59. All States and Territories have enacted uniform legislation concerning defamation and electronic transactions. See Turner and Trone, 2015, pp 306, 774. Most jurisdictions have enacted uniform evidence legislation based upon the Evidence Act 1995 (Cth). See ALRC, 2006, pp 37–40, 49–55; Evidence Act 1995 (NSW), 2001 (Tas), 2004 (NI), 2008 (Vic), 2011 (ACT). A cooperative scheme concerning crimes at sea is given the force of law by Commonwealth, State and Territory legislation. See Crimes at Sea Act 1998 (NSW); 1998 (SA); 1999 (Tas); 1999 (Vic); 2000 (Cth); 2000 (NT); 2000 (WA); 2001 (Qld). In several cases the States and Territories apply a law that is set out in a Commonwealth Act. For example, statutes enacted by the Commonwealth and each State and Territory apply the Australian Consumer Law as a law of the jurisdiction. See Fair Trading Act 1987 (NSW) s 28(1); 1987 (SA) s 14(1); 1989 (Qld) s 16(1); 2010 (WA) s 19(2); Consumer Affairs and Fair Trading Act 1990 (NT) s 27(1); Fair Trading (Australian Consumer Law) Act 1992 (ACT) s 7(1); Competition and Consumer Act 2010 (Cth) ss 131(1), 140– 140K; Australian Consumer Law (Tasmania) Act 2010 (Tas) s 6(1); Australian Consumer Law and Fair Trading Act 2012 (Vic) s 11(1). The Australian Consumer Law is set out in Schedule 2 of the Commonwealth Act. A similar legislative procedure was adopted for the Competition Code. See Competition Policy Reform (New South Wales) Act 1995 (NSW); 1995 (Vic); 1996 (SA); 1996 (NT); 1996 (Qld); 1996 (WA); 1996 (Tas); 1996 (ACT). The Code is contained in Schedule 1 of the Competition and Consumer Act 2010 (Cth) (see s 150C of the Commonwealth Act). State and Territory Acts give effect to the Australia New Zealand Food Standards Code. See Food Standards Australia New Zealand Act 1991 (Cth);

Food Act 1984 (Vic); 2001 (SA); 2001 (ACT); 2003 (NSW); 2003 (Tas); 2004 (NT); 2006 (Qld). In other cases the States and Territories apply a law that is set out in a State Act. For example, a statute enacted by each State and Territory applies the Health Practitioner Regulation National Law as the law of that jurisdiction. See Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) s 4; Health Practitioner Regulation National [page 12] Law (Victoria) Act 2009 (Vic) s 4; 2009 (Qld) s 4; 2010 (ACT) s 6; 2010 (SA) s 4; 2010 (Tas) s 4; 2010 (WA) s 4; Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT) s 4. The National Law is set out in the Schedule to the Queensland Act. A similar procedure was adopted for the National Gas Law. See National Gas (New South Wales) Act 2008 (NSW) s 7; 2008 (Qld) s 7; 2008 (SA) s 7; 2008 (Tas) s 7; 2008 (Vic) s 7; 2008 (ACT) s 8; 2008 (NT) s 7; National Gas Access (WA) Act 2009 (WA) s 7 (consistent legislation). The National Law is set out in the Schedule to the South Australian Act. Other National Laws have been adopted by some but not all States and Territories, including the Community Housing Providers National Law, the Electronic Conveyancing National Law, the Heavy Vehicle National Law, the Marine Safety (Domestic Commercial Vessel) National Law, the National Energy Retail Law, the Occupational Licensing National Law, and the Rail Safety National Law. Cooperative arrangements need not involve the participation of all jurisdictions. Queensland, South Australia and Western Australia have not enacted the uniform evidence legislation. Western Australia and the Northern Territory did not adopt the National Electricity Law. See National Electricity (New South Wales) Act 1997 (NSW) s 6; 1996 (SA) s 6; 2005 (Vic) s 6; Electricity–National Scheme (Queensland) Act 1997 (Qld) s 6; 1999 (Tas) s 6; 1997 (ACT) s 5. A participating jurisdiction may withdraw from participation in a

cooperative scheme. New South Wales withdrew from participation in the Occupational Licensing National Law. See Occupational Licensing (Adoption of National Law) Act 2010 (NSW), repealed by the Occupational Licensing National Law Repeal Act 2015 (NSW) s 4. The management of Lake Eyre is regulated by an intergovernmental agreement between the Commonwealth, Queensland, South Australia and the Northern Territory. See Lake Eyre Basin (Intergovernmental Agreement) Act 2001 (Cth), 2001 (SA), 2009 (NT); Lake Eyre Basin Agreement Act 2001 (Qld). For discussions of legislative cooperation, see Bankes (1991) 29 Alberta LR 792; Twomey, 2004, pp 840–3; Carney, 2006, p 18; Lynch and Williams (2008) 31 UNSWLJ 395 at 414–21; Gastaldon, 2011; Williams, Brennan and Lynch, 2014, pp 265–74; Stellios, 2015, pp 410–13.

Administrative cooperation 18 There are also various administrative arrangements between the Commonwealth and the States which involve coordination of policies. The Loan Council was established by the Financial Agreement. It determines the amount and distribution of moneys to be raised by way of borrowing by both Commonwealth and States. See Webb, 2002. The 1994 Financial Agreement fundamentally amended the previous Agreement. See the Financial Agreement Act 1994 (Cth). Mention may also be made of Ministerial Councils which involve regular meetings of Commonwealth and State Ministers and officials. Unlike the Loan Council, these bodies of Ministers are merely consultative bodies. They have no power to reach binding decisions. For a discussion of Ministerial Councils, see Victorian Parliament Federal–State Relations Committee, 1998, pp 63–5. In May 1992 the Prime Minister, Premiers and the Head of the Australian Local Government Association agreed upon the establishment of a Council of Australian Governments (COAG). This Council meets at least once a year with the Prime Minister in

[page 13] the Chair. It is a consultative forum which is responsible for the effective coordination of governmental efforts: (a) to increase cooperation among governments in the national interest; (b) to facilitate cooperation among governments on reforms to achieve an integrated, efficient national economy and single national market; (c) to continue structural reform of government and review of relationships among governments consistent with the national interest; and (d) to provide a forum for consultation on major issues such as treaties which affect the States and Territories, major initiatives of one government which are likely to have an impact on other governments, and ‘wholeof-government’ issues arising out of Ministerial Councils. See Intergovernmental News, Vol 4 No 4, p 2. For discussions of COAG, see Painter (Spring 1996) 26, 2 Publius 101; Victorian Parliament Federal–State Relations Committee, 1998, pp 58–61; Victorian Parliament Federal–State Relations Committee, 1999, pp 203–5; Carney, 2006, pp 22–3; Anderson (2008) 31 UNSWLJ 493; Griffith, 2009; Kildea and Lynch (2011) 39 FL Rev 103; Blayden, 2013; Department of the Prime Minister and Cabinet, 2015, pp 1–8. In October 2006 the Council for the Australian Federation was formed. The Council was established pursuant to an intergovernmental agreement between the States and Territories. The Commonwealth is not party to the agreement. Among other tasks, the Council will ‘formulate positions to advance in negotiations with the Commonwealth’. See note (2006) 17 Public LR 323. For discussions of the Council, see Tiernan (2008) 67 Aust J Public Admin 122; Menzies in Kildea, Lynch and Williams, 2012, pp 53–72; Chordia and Lynch (2015) 43 FL Rev 339. For general discussions of executive cooperation, see Twomey, 2004, pp 836–40; Carney, 2006, pp 24–5; Twomey and Withers, 2007, pp 28–31; Twomey (2008) 20 Upholding the Australian Constitution 64 (electronic); Guy, 2013, pp 110–12; Chordia, Lynch and Williams (2013) 37 MULR 189 at 218– 21.

Cooperation in the judicial sphere 19 The Constitution itself specifically provides for the investment of State courts with federal jurisdiction: s 77(iii). However, it does not mention the investment of federal courts with State jurisdiction. With the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) the Commonwealth Parliament invested particular State courts with certain federal jurisdiction, while State Acts invested particular federal courts with certain State jurisdiction. The vesting of State jurisdiction in federal courts was held invalid in Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27. For a discussion of judicial cooperation, see Twomey, 2004, pp 843–4.

Constitutional conventions 19A The operation of the Constitution is facilitated by the evolution of constitutional conventions observed by political actors. These are rules of political practice that are not enforceable by the courts as rules of law unless they are embodied in a statute. See Reference re Resolution to Amend the Constitution of Canada [1981] 1 SCR 753 at 880; 125 DLR (3d) 1; Osborne v Canada (Treasury Board) [1991] 2 SCR 69 at 87; 82 DLR (4th) 321; Ontario English Catholic Teacher’s Association v Ontario (Attorney-General) [2001] 1 SCR 470 at [63]; [page 14] 196 DLR (4th) 577. While these rules are not judicially enforceable, they nevertheless exercise an important stabilising influence in political life. For discussions of constitutional conventions, see Hanks in Evans, 1977, pp 184–7; Sawer, 1977, pp 174–81; Brazier and Robilliard [1982] Public Law 28; Renfree, 1984, pp 6–11; Craven, Secession, 1986, pp 142–7; Sampford (1987) 7 Oxford J Leg Stud 369; Republic Advisory Committee, 1993, Vol 2, pp 281– 95; Booker, Glass and Watt, 1998, pp 141–4; McGarvie, 1999, pp 46–75; Twomey (2004) 78 ALJ 798; Tiernan and Menzies, 2007; Killey, 2009;

Clarke, Keyzer and Stellios, 2013, pp 27–33; Williams, Brennan and Lynch, 2014, pp 70–4.

Separation of powers 20 In the British constitutional tradition the doctrine of the separation of powers does not involve a strict allocation of specific powers to defined functionaries. Rather it constitutes a general framework within which it is appropriate that: (a) general powers of legislation should be exercised by the legislature; (b) administration of the law and affairs of State should be undertaken by the executive; and (c) interpretation of the law should be undertaken by independent courts. As to the relationship between the legislature and the executive, the development of the doctrine of responsible government in the 18th and 19th centuries involved a ‘fusion’ of personnel. Members of the government were required to hold seats in either House, with primary responsibility to the popularly elected House. This in turn meant that delegation of law-making power to the executive was not regarded as being in breach of the doctrine, provided that the general authority of the legislature was not compromised in the sense that there was no abdication of power as such, or delegation on matters of substance. In this respect, the concept of the rule of law provides an important conventional basis for determining the types of activity appropriate to the Parliament and the executive. See Dicey, 1959, pp 183–205. 21 The absence of a written constitution in England allowed for flexibility in terms of various aspects of the relationship between Parliament and the executive, and it is in this respect that we find a fundamental difference between the position in Britain and that under the federal Constitution. In the Commonwealth Constitution, a general separation of powers is effected by the structure of the Constitution, and by specific sections. Thus legislative power is vested in the Parliament (s 1); executive power is vested in the Queen and is exercisable by the Governor-General (s 61); and judicial power is vested in the courts: s 71.

In Wilson v Minister for Aboriginal and Islander Affairs (1996) 189 CLR 1 at 10–11; 138 ALR 220, the High Court stated: The Constitution reflects the broad principle that, subject to the Westminster system of responsible government, the powers in each category — whose character is determined according to traditional British conceptions — are vested in and are to be exercised by separate organs of government. The functions of government are not separated because the powers of one branch could not be exercised effectively by the repository of the powers of another branch. To the contrary, the separation of functions is designed to provide checks and balances on the exercise of power by the respective organs of government in which the powers are reposed.

Australia therefore has a written Constitution which allocates ‘governmental’ power between these organs. To what extent does this distribution require that a particular part of [page 15] a power (whether it be legislative, executive or judicial) be exercised only by the organ in which the general power is vested? It has always been recognised that the doctrine of incidental powers enables a body to exercise ancillary powers which, though not partaking of the qualities of the main power, are nevertheless attracted to it for the purpose of facilitating its exercise. Among the examples that are often cited are the power of the courts to make rules of court, the power of the legislature to punish contempt of Parliament, and the power of the executive to use quasi-judicial methods in the performance of its executive functions. Section 51(xxxix) implicitly recognises the validity of such ‘associations’ of power. 22 Apart from this issue, it is necessary to determine whether a particular organ can in any circumstances exercise the broad power which is allocated to another organ. In Victorian Stevedoring & General Contracting Co v Dignan (1931) 46 CLR 73 the High Court was called upon to determine the validity of a statutory provision which empowered the Governor-General to make regulations with respect to the employment of transport workers. Various regulations had been made under the Act. The Act was challenged on the ground that it infringed the separation of powers. Previous decisions of the High Court had upheld the right of the legislature

to delegate to the executive a broad law-making authority in particular areas. But the effect of the provision under challenge here was even greater. In the words of Dixon J (at 100): It gives the Governor-General in Council a complete, although, of course, a subordinate power, over a large and by no means unimportant subject, in the exercise of which he is free to determine from time to time the ends to be achieved and the policy to be pursued as well as the means to be adopted. Within the limits of the subject matter, his will is unregulated and his discretion unguided. Moreover, the power may be exercised in disregard of other existing statutes, the provisions of which concerning the same subject matter may be overridden.

However, Dixon J was not prepared to hold that even this wide grant of power infringed the doctrine of separation. A statute, which conferred upon the executive a power to legislate on some matter contained within one of the heads of legislative power conferred upon the Commonwealth Parliament, was to be characterised as a law with respect to that subject matter. The distribution of legislative, executive and judicial powers did not prevent the Parliament from enacting such a law: at 101. Evatt J pointed out that the doctrine of responsible government qualified the doctrine of the separation of powers. The close relationship between the legislature and the executive had to be borne in mind in any examination of the power of the legislature to delegate. If it were recognised that the legislature had no power to vest in the executive a rule-making power, effective government would be impossible: at 117. The question arises as to whether there are any limits on the power of the Parliament to delegate. Dixon J considered that an invalid delegation might occur where there was ‘such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power’: at 101. Evatt J thought that an abdication by the Parliament of its powers constituted a violation of the principle. A law passed by the 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 th[is] test’: at 121. The court has since reiterated that the Commonwealth Parliament may not

abdicate its legislative power. See Crowe v Commonwealth (1935) 54 CLR 69 at 94; Giris Pty Ltd [page 16] v Federal Commissioner of Taxation (1969) 119 CLR 365 at 373; Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 at [77]. In the last resort, there is no ultimate conflict between the delegation of legislative power and the doctrine of the separation of powers. The reason is that: ‘Parliament retains ultimate legislative control. The enabling Act may be repealed at any time. If it is repealed the executive loses its subordinate legislative power and any regulations made under that power cease to have the force of law. Even while it remains unrepealed the executive must keep within its terms. Regulations going beyond the scope of the enabling Act are invalid’. See Howard, 1985, p 234. Moreover, wherever an Act confers power on the executive to make regulations, then, unless a contrary intention appears, such regulations must be laid before both Houses, which have a power of disallowance. A new regulation that is “the same in substance” as the disallowed regulation may not be made for a period of six months after the disallowance. See Legislation Act 2003 (Cth) ss 38, 42, 48; Perrett v Attorney General (Cth) (2015) 232 FCR 467; 326 ALR 718; [2015] FCA 834 at [28]–[29].

Judicial power 23 When we turn to the place of the judicial power in the constitutional scheme we find that the doctrine of the separation of powers operates in full vigour. A strict separation is required between the judicial power, on the one hand, and the legislative and executive powers, on the other hand. The High Court has consistently held that the judicial power of the Commonwealth is exercisable only by the courts mentioned in s 71. These are the High Court, other federal courts and State courts invested with federal

jurisdiction. The result is that there is an asymmetry between the interpretation of the legislative and executive powers as compared with the judicial power. See Victorian Stevedoring & General Contracting Co v Dignan (1931) 46 CLR 73 at 101. The stated justification for this strict separation of the judicial power from the other powers was explained by the Privy Council in Attorney-General (Commonwealth) v R; Ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529 (the Boilermakers’ case) as being that ‘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’: at 540. 24 The two most common situations in which it has been found necessary to draw a distinction between judicial and non-judicial power are: (a) where some authority appointed otherwise than in accordance with the requirements of Chapter III is empowered by the Parliament to exercise a power which is judicial; and (b) where the federal Parliament confers a power on a court which is nonjudicial in nature. As to (a), it has been held that the combined effect of ss 71 and 72 is that judicial power can only be vested in bodies which are either federal courts or State courts exercising federal jurisdiction. Judicial power itself involves the exercise of an interpretative function by a tribunal which has the power of reaching a conclusive decision (which will usually, but not invariably, mean that the tribunal can enforce its decision). On the other hand, quasi-judicial power can be exercised by bodies composed of personnel who are not appointed under s 72. [page 17] Further, the decision in the Boilermakers’ case prohibits a mingling of judicial and administrative power. A federal court cannot, therefore, be invested with non-judicial power, except to the extent that that power is incidental to the exercise of its judicial power. However, there has been a tendency to blur the distinction between judicial

power and quasi-judicial power so that particular powers may either be conferred on a federal court or on an administrative body depending on the nature of the process which the Parliament decides is appropriate in relation to the area. See R v Quinn; Ex parte Consolidated Foods Corp (1977) 138 CLR 1; 16 ALR 569. Alternative methods of review of administrative action by a court and/or administrative tribunal may also be established by the Parliament. As to (b), it has been held that the Commonwealth Parliament can only invest State courts with federal jurisdiction under ss 71 and 77. Federal jurisdiction has been equated with the exercise of the judicial power of the Commonwealth and, therefore, it is not competent to invest State courts with any non-judicial power. See Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 152. The court has also guarded against State laws that compromise the independence or impartiality of State courts that exercise federal jurisdiction. See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577.

Constitutional interpretation: the High Court and judicial review 25 Australian courts possess the power to declare void (unconstitutional) any Commonwealth or State law that violates the Constitution. This power is referred to as ‘judicial review’. All federal and State courts have jurisdiction to exercise judicial review. See Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 at 1125, 1136; ALRC, 2001, pp 256–63; Sexton (2007) 30 Aust Bar Rev 33 at 34–5. In Australia the existence of the power of judicial review has always been regarded as ‘axiomatic’. See Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 262–3; Commonwealth v Mewett (1997) 191 CLR 471 at 547; 146 ALR 299; Attorney-General (WA) v Marquet (2003) 217 CLR 545; 202 ALR 233; [2003] HCA 67 at [66]; Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 at [7]. For historical accounts, see Thomson in Craven, Debates, 1986, Vol VI, pp 173–202; Galligan, 1987, pp 42–70; Foley (2007) 6 Wash U Global Studies LR 281 at 285–9. The validity of a statute is determined as at the date of its assent. See

Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 192, 207, 268, 275. The High Court will not decide a case on constitutional grounds unless that is necessary to determine the matter between the parties. See Cheng v R (2000) 203 CLR 248; 175 ALR 338; [2000] HCA 53 at [58]; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [249]–[252]; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; 200 ALR 403; [2003] HCA 47 at [38]; BHP Billiton Ltd v Schultz (2004) 221 CLR 400; 211 ALR 523; [2004] HCA 61 at [94], [134], [177], [202]; Chief Executive Officer of Customs v El Hajje (2005) 224 CLR 159; 218 ALR 457; [2005] HCA 35 at [28]; O’Donoghue v Ireland (2008) 234 CLR 599; 244 ALR 404; [2008] HCA 14 at [14]; Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 at [355]; ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 at [141]; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; 304 ALR 135; [2013] HCA 53 at [148]; Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 at [36], [51], [55]; Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35 at [173]; Kuczborski v Queensland [page 18] (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 at [273]; CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1; 89 ALJR 207; [2015] HCA 1 at [335]; Duncan v New South Wales (2015) 318 ALR 375; 89 ALJR 462; [2015] HCA 13 at [52]. The court will interpret legislation in conformity with the Constitution wherever that is possible. See Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; 172 ALR 366; [2000] HCA 33 at [28]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [71]; New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [355], [361]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; 242 ALR 191; [2008] HCA 4 at [11]; Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 at [97];

Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 at [327]. Gageler J has adopted a more restrictive formulation of this principle of interpretation. See North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41 at [76]–[79]. The Acts Interpretation Act 1901 (Cth) provides that ‘[e]very Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth’: s 15A. For discussions of the ascertainment of facts in constitutional cases, see Brazil (1970) 4 FL Rev 65; Antieau, 1985, pp 71–90; Constitutional Commission, 1988, Vol 2, pp 1099–1114; Kenny (1990) 1 Public LR 134; Selway (2001) 20 U Tas LR 129 at 135; Edelstein (2002) 24 Syd LR 57 at 69– 70; Heydon (2011) 23 Upholding the Australian Constitution 85 (electronic); Stellios, 2015, pp 682–94. The ascertainment of facts has often been of particular importance in the context of the defence power. 26 The High Court’s approach to judicial review may be illustrated by its approach to two matters: first, the ‘characterisation’ question and second, the interpretation of constitutional guarantees of individual rights and freedoms. Characterisation is the approach which the court takes to the question whether a Commonwealth law is within a power conferred by s 51 as being a law with respect to a subject matter. It can be said that the High Court has always been keenly aware of its vital role as the interpreter of the Constitution, and also aware of the inherent rigidity of a written constitution. While recognising it as a statutory instrument and applying to it the canons of statutory interpretation, the court has been concerned to make it work as an instrument of government. In Attorney-General (NSW); Ex rel Tooth & Co Ltd v Brewery Employees’ Union of NSW (1908) 6 CLR 469 at 612 Higgins J expressed this concern when he said that the High Court interprets ‘a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be’ (emphasis omitted). And in Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 298 Starke J said: ‘The Constitution must not, therefore, be cut down by “a narrow and technical construction” but be given a “large and liberal interpretation”’. The need to give a broad and liberal construction to a provision conferring legislative power upon the Commonwealth was strongly affirmed in

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 151 (the Engineers’ case). However, different judges are likely to have different views as to how far the liberal approach should be pressed in particular cases. Callinan J somewhat colourfully referred to the Engineers’ case as a ‘monument to the demolition of state power’. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [764]. 27 Some judges have subscribed to a doctrine of ‘federal balance’, arguing that the court must not give to a particular Commonwealth legislative power a construction which would make a ‘mockery’ of the distribution of powers effected by the Constitution. For example, [page 19] in dissenting opinions Gibbs CJ espoused such a doctrine. See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 198; 39 ALR 417; Commonwealth v Tasmania (1983) 158 CLR 1 at 100; 46 ALR 625. Callinan J also advanced that doctrine in a dissenting judgment. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [777], [781], [797]. The decisions of the High Court in relation to the external affairs and corporations powers have been inconsistent with any judicial doctrine of ‘federal balance’. See Commonwealth v Tasmania (1983) 158 CLR 1 at 126, 129, 222; 46 ALR 625; Victoria v Commonwealth (1996) 187 CLR 416 at 485; 138 ALR 129; New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [183], [195]–[196]. In the Work Choices case five Justices of the High Court emphatically rejected such a doctrine as misconceived. They stated: References to the “federal balance” carry a misleading implication of static equilibrium, an equilibrium that is disturbed by changes in constitutional doctrine such as occurred in the Engineers’ Case, and changes in circumstances as a result of the First World War. The error in implications of that kind has long been recognized. [New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [54]].

Some judges have regarded such a doctrine as a reincarnation of the doctrine of State reserved powers rejected in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. See, for example,

Commonwealth v Tasmania (1983) 158 CLR 1 at 169; 46 ALR 625. For a discussion of this suggested doctrine, see Gageler in Appelby et al, 2012, pp 27–38. 28 Many of the heads of power contained in the Constitution present no great difficulty of interpretation, for example the copyright and bankruptcy powers. They represent fairly well-recognised commercial or legal categories, though there may be a doubt as to the ‘penumbra’ or borderline areas covered by the particular category. But several powers, such as the defence power (s 51(vi)), raise more difficult questions. This is because the court must look not only at the terms of the legislation but also at its purpose in advancing the defence of the country, and that purpose may vary in the light of the changing circumstances in which the Commonwealth may find itself. Defence in time of war encompasses quite different activities compared with defence in peacetime, although what has been described as the ‘secondary aspect of the defence power’ also operates in peacetime. The defence power extends to providing constitutional support for the enactment of federal anti-terrorism legislation. See Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33. It is not only the defence power which is seen to encompass an expanding or potential area of operation which may be adapted to the needs of the times. The history of the arbitration power (s 51(xxxv)) shows how the court fashioned that power to become a potent source for the settlement of industrial disputes, particularly in relation to the extended meaning given to the words ‘industrial’, ‘dispute’ and ‘interstate’ which are requisite elements to the operation of the Commonwealth power. Although ‘taxation’ is a well-recognised type of governmental action, it raises special difficulties in the constitutional sphere because of the many ways in which it may be imposed and of the many indirect results which it may be used to produce. For example, business activity may be directly affected by company taxation (s 51(ii)) or excise duties: s 90. Customs and excise duties may be designed not merely to raise revenue but to protect local industries from overseas competition. [page 20]

It is clear that an economic power such as taxation may be used to promote governmental purposes beyond the particular subject matter which is subject to regulation, for instance to promote investment in governmental securities. See Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 13, 16, 18, 19. Likewise, the power over interstate and overseas commerce may be used in such a way as to promote environmental goals, to control foreign investment and for other purposes which may relate to matters which are within State legislative competence. See Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 14, 21; 9 ALR 199. 28A The external affairs and corporations powers also offer room for differing interpretations. The interpretation of the external affairs power witnessed the most significant division among the members of the court for many decades. See Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1; 46 ALR 625. A majority of the court (Mason, Murphy, Brennan and Deane JJ) favoured a broad interpretation of the power which did not confine it to the implementation of treaties that dealt with matters of ‘international concern’: at 127, 171, 219, 258–9. A minority (Gibbs CJ, Wilson and Dawson JJ) rejected such an interpretation, considering that it would impair the division of legislative powers effected by the Constitution: at 99–101, 197–8, 306. In their view some limiting concept had to be utilised to determine what type of treaty could be implemented by Commonwealth legislative action. Since this decision the court has applied the wider interpretation. See, for example, Victoria v Commonwealth (1996) 187 CLR 416 at 484–5; 138 ALR 129. The High Court decision upholding the Commonwealth’s Work Choices legislation under the corporations power produced another notable division of opinion between the justices of the court. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52. A majority of five judges upheld the laws, with Kirby and Callinan JJ vigorously dissenting. The majority accepted that the corporations power supports laws that ‘single out constitutional corporations as the object of statutory command’: at [198]. In dissent, Kirby J suggested that the majority view would ‘have profound consequences for the residual legislative and governmental powers of the states in this country’, given the ‘number, variety and activities’ of corporations: at

[451]. He gave an extensive catalogue of areas that might become subject to increased federal regulation if this view of the corporations power was accepted: at [539]. He suggested that the Commonwealth Parliament could enact laws upon almost any subject by making a law on that subject that was addressed to corporations: at [543]. He warned that the States could ‘be reduced, in effect, to service agencies of the Commonwealth’: at [549]. Also in dissent, Callinan J opined that the majority view might lead to an unprecedented contraction of State legislative power. ‘The reach of the corporations power, as validated by the majority, has the capacity to obliterate powers of the state hitherto unquestioned. This Act is an Act of unconstitutional spoliation’: at [794]. The corporations power has thus enabled the Commonwealth to exercise significantly greater authority over industrial relations than would have been possible under the conciliation and arbitration power. One limit which has emerged is that the corporations power does not extend to the incorporation of companies. See New South Wales v Commonwealth (1990) 169 CLR 482 at 498; 90 ALR 355. The court’s decision holding that an anti-terrorism law fell within the defence power also gave rise to a bitter dissent. In Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 the majority of the court upheld the validity of anti-terrorism legislation providing [page 21] for the making of interim control orders against individuals. In dissent Kirby J suggested that the court was in a ‘constitutional era of laissez faire’ and that future generations would ‘look back with regret and embarrassment at this decision’: at [386], [387]. For discussions of dissenting opinions, see Blackshield, Coper and Williams, 2001, pp 216–18; Lynch in Dixon and Williams, 2015, pp 58–76. 29 In decades past many writers contrasted the judicial style of the High Court with that of the United States Supreme Court. In the American Supreme Court, broad considerations of policy often influence decision-

making, particularly in the interpretation of the Bill of Rights, the content of which is value-oriented. In contrast, there are only a small number of individual rights enshrined in the Commonwealth Constitution and until recently the High Court’s interpretation of these rights was narrow rather than generous. The court tended not to adopt the same liberal attitude to construction of constitutional guarantees as was adopted towards affirmative grants of power. The apparent protection of the right of trial by jury (s 80) turned out to be minimalist. The protection against discrimination on the basis of State residence (s 117) remained ineffective under the then prevailing interpretation. The prohibition against ‘establishing any religion’ (s 116) has received a narrower interpretation than that given to the similar clause in the United States Constitution. The High Court thus held that financial grants may be made to religious schools without infringing this prohibition. See AttorneyGeneral (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559; 33 ALR 321. The High Court also refused to find in s 24 a requirement of equality in relation to numbers of persons or electors in House of Representatives electoral divisions, thus rejecting the ‘one person, one vote, one value’ interpretation of the section. However, the court has interpreted that section as requiring that the number of members in each State shall be in proportion to the population of that State. See Attorney-General for Australia; Ex rel McKinlay v Commonwealth (1975) 135 CLR 1; 7 ALR 593. In McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 it was held that the Commonwealth Constitution does not require that State elections observe a ‘one vote one value’ principle. In more recent years the approach of the court has begun to change, becoming closer to that of the Supreme Court of the United States. See Pierce, 2006, pp 157–77; Foley (2007) 6 Wash U Global Studies LR 281 at 305–36. For example, the court has implied into the Constitution a freedom of political communication. See Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; 108 ALR 577; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96. Similarly, in Street v Queensland Bar Association (1989) 168 CLR 461; 88 ALR 321 the court reversed its previously restrictive interpretation of the

guarantee against discrimination on the basis of State residence (s 117), giving that section a far wider operation. While the court has become somewhat reluctant to further extend these principles, these decisions continue to stand. See Pierce, 2006, pp 245–61. Proposals have often been made for the adoption of a constitutionally entrenched or statutory Bill of Rights at the federal level. So far such proposals have been unsuccessful. See the history in Electoral and Administrative Review Commission, 1992, pp 66–76. In the light of the experiences of other nations, if a constitutionally entrenched Bill of Rights were adopted it is likely that the courts would be required to determine many politically controversial issues. For discussions of a constitutional bill of rights, see Wilcox, 1993; Moens in Stephenson and Turner, 1994, pp 233–56; Moens (2002) 42 Loyola LR 411; Williams, 2007. In [page 22] those circumstances the approach to constitutional interpretation adopted by the High Court would assume even greater significance. The justices of the High Court have adopted varying approaches to constitutional interpretation. Some judges have advocated an ‘originalist’ theory of interpretation, based upon a search for the intention of the framers of the Constitution. For example, Callinan J argued for such an approach. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [775]; Attorney-General (Vic) v Andrews (2007) 230 CLR 369; 233 ALR 389; [2007] HCA 9 at [173]. McHugh J argued for a different form of originalism, based not upon the subjective intention of the framers, but upon their intentions as objectively revealed in the Constitution itself. See Eastman v R (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29 at [146]–[147]. By contrast, some judges have been prepared to adopt a progressivist approach to interpretation. Notably, in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1 Deane J articulated such a theory, treating the Constitution as a ‘living force’: at 167–73. Toohey J took a similar

view. See McGinty v Western Australia (1996) 186 CLR 140 at 200; 134 ALR 289. Kirby J considered that ‘the text of the Constitution must be given meaning as its words are perceived by succeeding generations of Australians’ and ‘constitutional expressions must be given contemporary meaning’. See Brownlee v R (2001) 207 CLR 278; 180 ALR 301; [2001] HCA 36 at [105], [123]. He strongly rejected an originalist approach to interpretation. See Grain Pool of WA Ltd v Commonwealth (2000) 202 CLR 479; 170 ALR 111; [2000] HCA 14 at [110]–[118]; Eastman v R (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29 at [242]–[245]. He insisted that ‘the Constitution is not a time capsule of history, to be uncovered and disclosed intermittently to later generations’. See Wong v Commonwealth (2009) 236 CLR 573; 252 ALR 400; [2009] HCA 3 at [97]. In a joint opinion French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ cast doubt upon the utility of ‘originalism’ in an Australian context: ‘Debates cast in terms like “originalism” or “original intent” (evidently intended to stand in opposition to “contemporary meaning”) with their echoes of very different debates in other jurisdictions are not to the point and serve only to obscure much more than they illuminate’. See Commonwealth v Australian Capital Territory (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55 at [14]. Kirby J also argued that international law is a legitimate influence upon the interpretation of the Constitution. See Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 657–61; 147 ALR 42; Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 at [166]– [167]; Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124; [2004] HCA 37 at [171]–[193]; Wong v Commonwealth (2009) 236 CLR 573; 252 ALR 400; [2009] HCA 3 at [133]–[135]. Other judges of the High Court have not accepted this approach. See Kartinyeri at [95]–[101]; AMS v AIF (1999) 199 CLR 160; 163 ALR 501; [1999] HCA 26 at [50]; Al-Kateb at [62]–[73]; Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 at [181]. Some other Justices have argued that the court should not attempt to apply a single all-encompassing theory of interpretation. For example, French CJ and Gummow J suggested that ‘diverse and complex questions of construction

of the Constitution are not answered by adoption and application of any particular, all embracing and revelatory theory or doctrine’. See Wong v Commonwealth (2009) 236 CLR 573; 252 ALR 400; [2009] HCA 3 at [20]; [page 23] see also SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51; 188 ALR 241; [2002] HCA 18 at [41]. For a survey of the varying approaches to constitutional interpretation taken by individual judges, see New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [737]. See also Zines in Corcoran and Bottomley, 2005, pp 64–82; Kenny in Gotsis, 2007, pp 45–80; Sackville (2008) 10 Const L & Pol’y Rev 22. Theories of constitutional interpretation have been the subject of extensive academic debate in Australia. For examples, see Thomson (1982) 13 MULR 597; Craven (1990) 1 Public LR 166; Dawson (1990) 6 Aust Bar Rev 93; Craven in Lee and Winterton, 1992, pp 1–32; Rich (1994) 12 U Tas LR 150; Sampford (1994) 3 Griffith LR 268; Stokes (1994) 16 Syd LR 250; Patapan (1997) 25 FL Rev 211; Goldsworthy (1997) 25 FL Rev 1; Stoljar (1998) 20 Adel LR 29; Kirk (1999) 27 FL Rev 323; Glass (1999) 2 Const L & Pol’y Rev 28; Kirby (2000) 24 MULR 1; Hill (2000) 11 Public LR 159; Goldsworthy (2000) 24 MULR 677; Meagher (2002) 24 Syd LR 141; Meagher (2002) 7, 2 Deakin LR 261; Craven (2003) 31 FL Rev 87; Selway (2003) 14 Public LR 234; Gray, 2008; Goldsworthy in Lee and Gerangelos, 2009, pp 245–68; Ratnapala and Crowe, 2012, pp 238–58; Heydon in Perram and Pepper, 2012, pp 132–71; Gerangelos et al, 2013, pp 1358–452; Joseph and Castan, 2014, pp 39–53; Williams, Brennan and Lynch, 2014, pp 170–229.

PRELIMINARY ISSUES Acquisition of sovereignty over Australia 30 The basic doctrine of Australian law is that the acquisition of sovereignty over the Australian continent by Britain was an act of state which

is not susceptible to judicial review. See New South Wales v Commonwealth (1975) 135 CLR 337 at 388; 8 ALR 1; Wacando v Commonwealth (1981) 148 CLR 1 at 11, 21; 37 ALR 317; Coe v Commonwealth [2001] NSWCA 36 at [6]–[7]; Ngurampaa Ltd v Balonne Shire Council [2014] QSC 146 at [13]–[17]. The High Court accepted this doctrine in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. The court stated that the acquisition of sovereignty over Australia by the Crown could not be challenged in an Australian court: at 15, 31–2, 78–9. Furthermore, the court did not disturb the traditional doctrine that Australia was a ‘settled’ rather than a ‘conquered’ or ‘ceded’ colony. See, for example, at 79. See similarly, Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; 194 ALR 538; [2002] HCA 58 at [37]. In Coe v Commonwealth (1993) 118 ALR 193; 67 ALJR 110 Mason CJ rejected in unequivocal terms a challenge to the sovereignty of the Crown. He stated (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 recognised by the laws of the Commonwealth, the State of New South Wales and the common law.

See also Gray (1993) 2 Griffith LR 39; R v Buzzacott (2004) 154 ACTR 37; [2004] ACTSC 89 at [14], affd [2005] ACTCA 7 at [10], [12]; Walker v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700 at [43]–[47]. It is within the legislative competence of the Commonwealth and State Parliaments to make laws affecting the rights of Aboriginal people. See Re Phillips; Ex parte Aboriginal [page 24] Development Commission (1987) 13 FCR 384 at 387; 72 ALR 508; Walker v New South Wales (1993) 182 CLR 45 at 48; 126 ALR 321; Aboriginal Legal Service of Western Australia Inc v Western Australia (1993) 9 WAR 297 at 321;

113 ALR 87; McDonald v Director of Public Prosecutions (2010) 26 VR 242; [2010] VSCA 45 at [4]–[6], [13], [18]–[20]; R v Anning (2013) 65 MVR 72; [2013] QCA 263 at [41], [53].

Relations with the United Kingdom 31 The monarchical principle is recognised in a number of sections of the Constitution. The Queen is the apex of the legislative structure: s 1. She is also the Chief Executive: s 61. In both cases her powers are exercisable by the Governor-General: ss 2, 61. Consequently, in respect of the duties associated with the governmental structure, the Governor-General, acting in most cases on the advice of the Executive Council, is the repository of federal executive authority. So far as Australia is concerned, the Queen occupies a dual role as Head of the Commonwealth of Nations and Head of State of the Commonwealth of Australia. With the enactment of the Australia Acts 1986 a historic step in the evolution of Imperial links was taken. In 1985 and 1986 the State, Commonwealth and United Kingdom Parliaments enacted legislation terminating a variety of Imperial links that had become anachronistic. It was decided that two alternative methods would be used to achieve the goal of severing these links. One method was by request and legislation of all the States with the Commonwealth Parliament requesting and consenting to the enactment by the United Kingdom Parliament of a scheduled Bill containing the substantive provisions relating to the Imperial links. The other method, identical in substance, was for a Bill to be enacted by the Commonwealth Parliament at the request of all State Parliaments under s 51(xxxviii) of the Constitution. Each State Parliament passed an Act entitled the Australia Acts (Request) Act requesting the Commonwealth Parliament to legislate in the form of the Scheduled Bill and requesting and consenting to the enactment by the United Kingdom Parliament and the Commonwealth Parliament of the Scheduled Bill (the Australia Bill). The Commonwealth Parliament legislated under s 51(xxxviii) to enact the Australia Bill and passed request legislation directed to the United Kingdom Parliament. The United Kingdom Parliament enacted

the Australia Act 1986 as so requested by the Commonwealth and State Parliaments. It was considered appropriate that both methods be utilised because of uncertainty regarding the scope of the power in s 51(xxxviii). In Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 Gleeson CJ, Gummow and McHugh JJ indicated that s 1 of the Australia Act had been validly enacted by the Commonwealth Parliament under s 51(xxxviii): at [63]. 32 The Australia Act has these substantive effects. In the legislative arena, it terminates the power of the United Kingdom Parliament to legislate for the Australian States, and State Parliaments may legislate contrary to United Kingdom legislation of ‘paramount’ force. State Parliaments are recognised as having full power to make laws having an extra-territorial operation. In the executive arena, the Australia Act has an effect similar to that which s 61 of the Constitution has in relation to Commonwealth executive power. The powers and functions of Her Majesty in State matters are now vested in the State Governors (although they may be exercised by the Queen when she is personally present in a State). This does not apply to the appointment of Governors. That power continues to be exercised by the Monarch but now on [page 25] advice tendered by the Premier rather than through the Foreign and Commonwealth Office. Procedures for reservation or disallowance of State Acts are abolished. In the judicial arena, all appeals to the Privy Council whether by special leave or as of right are terminated: s 11. Repeal or amendment of the Australia Act 1986 may only be effected by legislation of the Commonwealth Parliament passed at the request or with the concurrence of all the State Parliaments: s 15. This does not prevent an amendment under s 128 of the Constitution conferring powers upon the federal Parliament. In McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 McHugh J stated that since the Australia Act ‘the sovereignty of the Australian

nation has ceased to reside in the Imperial Parliament and has become embedded in the Australian people’: at 237. In Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 the High Court held that, at least since the Australia Acts, the United Kingdom had become a foreign power under s 44(i) of the Constitution: at [63]–[64]. See also McConvill (2000) 4, 2 Deakin LR 151. For discussions of the Australia Acts, see Goldring [1986] Public Law 192; Lindell (1986) 16 FL Rev 29; Lee (1988) 14 Mon ULR 298; Gilbert (1989) 5 QUTLJ 55; O’Brien in Ellinghaus et al, 1989, p 337; Thomson (1990) 20 UWALR 409; Tate (2001) 27 Mon ULR 21; Twomey, 2004, pp 92–111; Carney, 2006, pp 66–74; Twomey in Winterton, 2006, pp 267–97; Twomey, 2010; Clarke, Keyzer and Stellios, 2013, pp 44–51; Williams, Brennan and Lynch, 2014, pp 121–5; Stellios, 2015, pp 456–63. For the position prior to the Australia Acts, see Finnis (1983) 9 Adel LR 91. In Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch) the English High Court held that Australia is an independent state. The court stated: ‘As soon as Australia became independent, the [Constitution] ceased to have any effect as an exercise of sovereign power of the United Kingdom, and whatever effect it then and thereafter had was as part of the law of the sovereign state of Australia’: at [16]. For discussions of the attainment of Australian independence, see Twomey in Stone and Williams, 2000, pp 77–108; Winterton in French, Lindell and Saunders, 2003, pp 31–50, Lindell in ibid, pp 51–9. In 1998 a Constitutional Convention was held upon the question of whether Australia should become a republic. See Constitutional Convention, Report of the Constitutional Convention, 1998. A referendum seeking to establish a republican system of government was rejected in November 1999. See note (1999) 10 Public LR 305.

Use of historical materials in constitutional interpretation 33 Prior to 1988 the High Court did not permit the use of the Convention debates to determine directly the meaning of a phrase or concept in the

Constitution. See Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 at 213; Brazil (1961) 4 UQLJ 1 at 16–21; Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 17, 47; 7 ALR 593; AttorneyGeneral (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 at 577–8, 603; 33 ALR 321; Burmester in Craven, Debates, 1986, Vol VI, pp 25–39. However, in Cole v Whitfield (1988) 165 CLR 360 at 385; 78 ALR 42 the High Court unanimously held that reference to historical materials: … may be made, not for the purpose of substituting for the meaning of the words used the scope and effect … 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 was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

[page 26] In that case the court traced the historical materials relating to the development of s 92. The court was strongly influenced by this historical background when it adopted a reformulated interpretation of that section. The Convention debates are now commonly referred to by the High Court. See, for example, Port MacDonnell Professional Fishermen’s Association v South Australia (1989) 168 CLR 340 at 376; 88 ALR 12; New South Wales v Commonwealth (1990) 169 CLR 482 at 501; 90 ALR 355; Ha v New South Wales (1997) 189 CLR 465 at 495–6, 514; 146 ALR 355; Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 at [56], [60], [64]; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [68]–[77], [115]–[121], [298]–[305]; Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [42]–[49], [346]–[347]. A note of caution has been sounded by several judges. Deane and McHugh JJ argued that the Convention debates should not be relied upon to constrict the meaning of the language used in the Constitution. See Breavington v Godleman (1988) 169 CLR 41 at 132–3; 80 ALR 362; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 329; 84 ALR 80; New South Wales v Commonwealth (1990) 169 CLR

482 at 504, 511; 90 ALR 355; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 197; 124 ALR 1. Reference to the draft Bills as an aid to interpretation has always been permitted. See Tasmania v Commonwealth (1904) 1 CLR 329 at 333, 350–1; Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1114–15; Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120 at 144; 22 ALR 291; Attorney-General (Cth) v T & G Mutual Life Society Ltd (1978) 144 CLR 161 at 176, 186–7; 19 ALR 385; New South Wales v Commonwealth (1990) 169 CLR 482 at 501; 90 ALR 355; Svikart v Stewart (1994) 181 CLR 548 at 558; 125 ALR 554; Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410 at 435–6; 146 ALR 495. In several cases the court has also examined the history of various amendments to the Constitution. In Wong v Commonwealth (2009) 236 CLR 573; 252 ALR 400; [2009] HCA 3 the court considered the history of the adoption of the 1946 amendment that enabled the Commonwealth to provide medical and dental services other than by civil conscription (s 51(xxiiiA)). French CJ and Gummow J stated that this history was significant because of the absence of any clear meaning of ‘civil conscription’, though it was not determinative of the interpretation of the amended provision: at [23]. Kirby J also reviewed this history, but also emphasised that ‘historical materials do not control the meaning of the constitutional language’: at [74], see also at [99]. Hayne, Crennan and Kiefel JJ were of the view that history assisted in interpreting the expression ‘civil conscription’ since it revealed the issues to which that exception was directed: at [172]. In Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 Kirby J traced the history of the 1967 amendment to the race power: at [137]–[147]. The relevance of a referendum that rejected a proposed expansion of a head of federal legislative power was considered in New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52. The States argued that the construction of the corporations power should be confined in the light of the failure of several referendums seeking an expansion of its scope: at [125]. The majority questioned the relevance of these failed referendums as an aid

to interpreting the power. To be useful, it would have to be shown that the failed proposal was identical in [page 27] scope to the challenged legislation. If the proposal was broader than the legislation at issue, it was impossible to draw any conclusions about the intention of the electors regarding such an exercise of legislative power: at [131]. Furthermore, the rejection of referendum proposals was heavily influenced by party politics, and did not necessarily represent an ‘informed choice’ by voters about alternative proposals regarding the scope of federal legislative power: at [132]. In dissent Kirby J argued that the rejection at a referendum of a proposed expansion of a Commonwealth power counselled against holding that the power already included the rejected expansion of power: at [468]. See also Callinan J at [731]; Twomey (2008) 27 UQLJ 47. In Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; 177 ALR 436; [2001] HCA 7 at [64] Kirby J similarly argued that the court may have regard to the ‘history and purpose’ of an unsuccessful constitutional amendment. He cautioned against importing into the Constitution a restriction upon legislative power similar to the one that had been rejected at a referendum: at [65]. For discussions of the use of historical materials in constitutional interpretation, see Thomson (1982) 5 UNSWLJ 309; McQueen (1990) 19 FL Rev 245; Craven (1990) 1 Public LR 166 at 171–3, 183–5; Schoff (1994) 5 Public LR 253 at 260–68; McCamish (1996) 70 ALJ 638; Patapan (1997) 25 FL Rev 211; Lane, 1997, pp 906–7; McMonnies (1999) 27 FL Rev 471; McGrath (2001) 13 Upholding the Australian Constitution 1; Selway (2001) 20 U Tas LR 129 at 142 ff; Williams and Hume, 2013, pp 91–9; Irving (2013) 41 FL Rev 95. 33A The High Court has drawn a distinction between the connotation and denotation of the words of the Constitution. The connotation (meaning) of those words remains the same, but their denotation (those things that come

within that meaning) may expand or contract. See Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 at 458; Lansell v Lansell (1964) 110 CLR 353 at 366, 370; King v Jones (1972) 128 CLR 221 at 229, 265; AttorneyGeneral (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 at 578; 33 ALR 321; Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 186; 80 ALR 561; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [108]–[111]; Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 at [132]. Or as McHugh J pithily defined it, the distinction is between ‘meaning and application’. See Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 at [42]. Dawson J consciously reversed the usual legal meaning of these words, based upon their popular usage. However, he later adopted their conventional legal meaning. See Commonwealth v Tasmania (1983) 158 CLR 1 at 302–3; 46 ALR 625; Street v Queensland Bar Association (1989) 168 CLR 461 at 537–8; 88 ALR 321. The distinction between connotation and denotation is most readily seen where the words of the Constitution accommodate developments in technology. The High Court has held that both the telegraphic and patents powers contemplate future technological advances in those fields, and such advances will come within those powers. See R v Brislan; Ex parte Williams (1935) 54 CLR 262 at 280; Jones v Commonwealth (No 2) (1965) 112 CLR 206 at 219; Grain Pool of WA Ltd v Commonwealth (2000) 202 CLR 479; 170 ALR 111; [2000] HCA 14 at [18]. While the connotation of those words remains the same, their denotation may expand over time. Similarly, McHugh J explained that the connotation of the words ‘internal carriage’ in s 92 is ‘any method of inland transport’. In 1900 the denotation of those words was transportation by carriage or train, but now they extend to air transport. See Eastman v R (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29 at [143]. [page 28] In Commonwealth v Australian Capital Territory (2013) 250 CLR 441; 304

ALR 204; [2013] HCA 55 the court unanimously held that the marriage power is not confined to the institution of marriage as it existed at Federation: at [16]. The legal status of marriage and its attendant rights and obligations have never been immutable: at [16], [19]. At Federation Christian monogamous marriage was the ‘central type’ of marriage under the marriage power, but that was not the ‘circumference of the power’: at [20]. For discussions of the distinction between connotation and distinction, see Chin (2000) 24 MULR 609; Birch (2003) 23 Aust Bar Rev 296; Gerangelos et al, 2013, pp 1452–4; Williams, Brennan and Lynch, 2014, pp 197–9; Aroney, Gerangelos, Murray and Stellios, 2015, pp 143–9; Stellios, 2015, pp 23–31.

Precedent 34 So far as precedent in constitutional cases is concerned, several High Court judges have adopted almost diametrically opposed approaches. At one end of the spectrum, Gibbs J stated: No 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 …. 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 opinion in preference to an earlier decision of the Court. [Queensland v Commonwealth (1977) 139 CLR 585 at 599; 16 ALR 487]

See also the statements by McHugh J in Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 38; 121 ALR 153; McGinty v Western Australia (1996) 186 CLR 140 at 235; 134 ALR 289; Carroll (2013) 4 Western Australian Jurist 163. At the other end of the spectrum, Murphy J stated that ‘[t]he task [of the court] is to apply the Constitution, not the judicial decisions’. See Buck v Bavone (1976) 135 CLR 110 at 137; 9 ALR 481; Queensland v Commonwealth (1977) 139 CLR 585 at 610; 16 ALR 487. Similarly, Isaacs J famously argued that: Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right. [Australian Agricultural

Co Ltd v Federated Engine Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 278]

Barwick CJ expressed similar views. See Damjanovic and Sons Pty Ltd v Commonwealth (1968) 117 CLR 390 at 396; Queensland v Commonwealth (1977) 139 CLR 585 at 593–4; 16 ALR 487. So too did Deane J. See Stevens v Head (1993) 176 CLR 433 at 461–2; 112 ALR 7. The High Court has always taken the view that it is not bound by its own decisions. See Viro v R (1978) 141 CLR 88 at 135; 18 ALR 257; Nguyen v Nguyen (1990) 169 CLR 245 at 269; 91 ALR 161; Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647; [2008] HCA 40 at [45]. However, in practice the court is usually very reluctant to overturn one of its prior decisions intepreting the Constitution. For instance, in Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561; 118 ALR 1 the majority gave several reasons [page 29] for declining to reconsider two of the court’s prior decisions. Governments had acted on the basis of those prior decisions and had adopted longstanding financial arrangements in reliance upon them: at 593. Considerations of certainty were also a factor weighing against reconsideration: at 593. Finally, those decisions had been followed by the court itself on many occasions: at 592. 34A On the other hand, where the interpretation of a section has been confused and/or contradictory, the court has been prepared to adopt a new approach to its interpretation. Hence in Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42 the court unanimously adopted a new interpretation of s 92, in effect reversing many of its previous decisions. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 the unanimous court indicated that it ‘should reconsider a previous decision only with great caution and for strong reasons’: at 554. The court also stated that it would reconsider a decision if it concerns a question of ‘vital constitutional importance’ and is ‘manifestly wrong’: at 554. In this case the

court took a very narrow view of one of its prior holdings, effectively overruling that decision: at 554–6. Where a decision has been reached by an equally divided court it has no authority as a precedent. In Gould v Brown (1998) 193 CLR 346; 151 ALR 395; [1998] HCA 6 the validity of the cross-vesting scheme was upheld. However, the court was evenly divided so the decision did not establish any precedent and the question raised in that case remained open. For this reason the question raised was open to be reconsidered in Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 at [1], [33], [100]. In Re Wakim the court held that the scheme was invalid. Sometimes the court will overrule one holding of a decision, while leaving intact the other holdings in the case. See, for example, Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72 at [39], [190]. The High Court has unanimously held that it has no power to overrule prospectively one of its prior decisions. See Ha v New South Wales (1997) 189 CLR 465 at 503–4, 515, 146 ALR 355; Campbell (2003) 29 Mon ULR 49 at 70–1. The High Court will only hear a challenge to one of its prior decisions by leave. See Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 316; 52 ALR 401; Richardson v Forestry Commission (1988) 164 CLR 261 at 322; 77 ALR 237; O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 267; 96 ALR 1; Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 at 673; 140 ALR 189. Kirby J argued that leave is not necessary. See Brownlee v R (2001) 207 CLR 278; 180 ALR 301; [2001] HCA 36 at [101]–[107]; Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 at [178]–[180]; Wong v Commonwealth (2009) 236 CLR 573; 252 ALR 400; [2009] HCA 3 at [111]–[112]. Heydon and Bell JJ suggested that the requirement for leave remained an open question. See Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; 292 ALR 243; [2012] HCA 46 at [350], [533]. For discussions of precedent in constitutional cases, see Bennett (1978) 52 ALJ 664; Howard, 1985, pp 14–17; Keyzer (1999) 2 Const L & Pol’y Rev 13;

Boeddu and Haigh (2003) 31 FL Rev 167; Lynch (2007) 29 Syd LR 195; Carroll (2013) 4 Western Australian Jurist 163; Keyzer, 2013, pp 38–45; Clarke, Keyzer and Stellios, 2013, pp 144–50; Joseph and Castan, 2014, pp 53–6; Williams, Brennan and Lynch, 2014, pp 480–8. [page 30]

Proportionality 35 In recent decades the concept of proportionality has often been advanced as a touchstone of constitutional validity. In Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 the court utilised proportionality as a criterion of validity in relation to the incidental power. The incidental power will support legislation in furtherance of the executive power in s 61. As the executive power extended to the incorporation of a body to promote the Bicentenary of European settlement in Australia, the incidental power would support legislation regulating that body’s procedures, giving it certain powers and protecting its name and symbols: at 95, 99. Proportionality became an issue because the legislation went further than this, prohibiting the use of common expressions in everyday use, though there was no conceivable prejudice to the commemoration of the Bicentenary from their use. The court held that the prohibition was ‘grossly disproportionate’ to the legitimate objectives of protecting the commemoration and the corporation: at 100. The court concentrated upon the detrimental impact of the prohibition upon freedom of expression, which went beyond what was necessary to achieve the object within the executive power: at 99–100. Brennan J said that ‘it cannot be incidental to the organization of the commemoration of the Bicentenary to prohibit, under criminal sanctions, the peaceful expression of opinions about the significance of the events of 1788’: at 117. The concept of proportionality was again applied in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681. Mason CJ and McHugh J held that statutory provisions which prohibited the making of statements calculated to bring the Industrial Relations Commission or any of its members into

disrepute were invalid as going beyond what was reasonably necessary for the protection of the commission or its members. These provisions allowed none of the defences available at common law in proceedings for contempt of court. The provisions sought to confer an immunity from criticism greater than that enjoyed by the courts: at 31, 33, 102–4. Mason CJ distinguished between the incidental aspect of each power and the incidental power: at 26–7. He held that the challenged provision was not within the incidental aspect of the conciliation and arbitration power, because it was not reasonably and appropriately adapted to the pursuit of an end within that power: at 30–1. In Leask v Commonwealth (1996) 187 CLR 579; 140 ALR 1 the court rejected proportionality as a general test for whether a law is within a head of Commonwealth power under s 51 of the Constitution. Members of the court argued that the concept of proportionality was relevant in only two contexts. The first context was in determining whether a law falls within a purposive power: at 593, 605–6, 617, 624. The concept is thus of no application to nonpurposive powers, as are most of the Commonwealth’s legislative powers. The second context was in determining whether a constitutional limitation has been infringed by a law: at 593–5, 600–2, 606, 614, 617. Note also the additional context suggested at 616–17. Several judges expressed the concern that if proportionality became a general test for whether a law was within a head of power, the court would be required to make policy judgments regarding the desirability of laws: at 605, 616, 624. Proportionality has been used in determining whether a law infringes a constitutionally protected freedom. In McCloy v New South Wales (2015) 325 ALR 15; 89 ALJR 857; [2015] HCA 34 a majority of the court reformulated the test for infringement of the implied [page 31] freedom of political communication by introducing a three stage proportionality test: at [2]. Proportionality has also been employed in determining whether a law violates freedom of interstate trade. See Betfair Pty

Ltd v Western Australia (2008) 234 CLR 418; 244 ALR 32; [2008] HCA 11 at [101]–[102], [110]. In other contexts the court has not adopted proportionality as a test of validity. In Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 several judges rejected proportionality as a touchstone for deciding whether a law falls within the territories power in s 122: at 53, 79. One judge suggested that s 122 has a purposive element: at 103. In Victoria v Commonwealth (1996) 187 CLR 416; 138 ALR 129 five Justices criticised the use of reasonable proportionality as a general touchstone for determining the limits of the treaty implementation aspect of the external affairs power: at 488. In Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; 210 ALR 369; [2004] HCA 49 McHugh J rejected the concept of proportionality as a touchstone of validity under Chapter III of the Constitution: at [80]. In Attorney-General (Northern Territory) v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 the court upheld the statutory forfeiture of all assets of convicted drug traffickers, including property that had not been obtained as a result of criminal activity: at [2], [8]. It was ‘irrelevant’ and ‘wrong’ to consider whether this punishment was proportionate to the legislative objective: at [75]. The majority expressed reservations about whether proportionality would constrain Territorial legislative power, indicating that proportionality ‘may not be applicable’ to non-purposive legislative powers: at [80]. In Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; 309 ALR 29; [2014] HCA 22 it was argued that proportionality ‘inform[ed] the question’ of whether there was a sufficient connection to the aliens power: at [28]. The unanimous court commented that the relevance of proportionality to the test of connection to the aliens power was ‘not immediately apparent’: at [27]. The court also observed that the Leask decision provided no support for this argument: at [36]. For discussions of proportionality, see Fitzgerald (1993) 12 U Tas LR 263; Lee in Lindell, 1994, pp 126–49; Selway (1996) 7 Public LR 212; Lane, 1997, pp 139–42; Kirk (1997) 21 MULR 1; Loftus (1999) 3 Southern Cross ULR 30; Ratnapala and Crowe, 2012, pp 294–8; Williams and Hume, 2013, pp 135–

41; Gerangelos et al, 2013, pp 1467–72; Joseph and Castan, 2014, pp 83–91, 558–67; Williams, Brennan and Lynch, 2014, pp 788–801; Stellios, 2015, pp 56–60.

Standing 36 Many challenges to the constitutionality of legislation brought in the original jurisdiction of the High Court are actions for a declaration that the impugned legislation is invalid. It is therefore necessary to establish what interest is required in order for a party to institute proceedings. A State has standing to challenge the validity of Commonwealth legislation that affects its sphere of legislative authority, the distribution of powers under the Constitution or the rights of its residents under the distribution of powers. See Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533 at 556; Attorney-General (Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237 at 247– 8, 264, 272–3, 277; Victoria v Commonwealth (1975) 134 CLR 338 at 381, 283, 389–90, 401–2; 7 ALR 277; Johnston in Stein, 1979, pp 173–201. [page 32] The States also have standing to challenge a purported exercise of Commonwealth executive power as beyond power. See Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [112]. Likewise, the Attorney-General of the Commonwealth or a State has a sufficient interest for the purposes of instituting proceedings on behalf of the political community that they represent. See Tasmania v Victoria (1935) 52 CLR 157 at 171. Thus in Attorney-General (Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237 at 272 it was said: It is the traditional duty of the Attorney-General to protect public rights and to complain of excesses of a power bestowed by law and in our Federal system the result has been to give the Attorney-General of a State a locus standi [standing] to sue for a declaration wherever his public is or may be affected by what he says is an ultra vires act on the part of the Commonwealth or of another State.

The basis for the suit is that the Attorney-General is protecting the rights of the general public within the body politic whose interest they represent, or is intervening to protect the rights of the State or Commonwealth Crown as the case may be. See Wynes, 1976, pp 448–9. The action may be instituted by the Attorney-General in their own name or as an ex relatione action at the request of a member of the public. There is no obligation for the Attorney-General to give their fiat at the request of a member of the public. See Knowles (2003) 6 Const L & Pol’y Rev 1; Clarke, Keyzer and Stellios, 2013, pp 1123–4. In practice, few constitutional cases have been brought with the fiat of the Attorney-General. See Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1; [2002] HCA 16 at [156]. In Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 the plaintiff challenged the Commonwealth executive’s expenditure of money for a school chaplaincy program: at [111]. Gummow and Bell JJ held that the question of the plaintiff’s standing could be ‘put to one side’ as State governments had intervened in support of this part of the plaintiff’s case: at [112]. Hayne J agreed with Gummow and Bell JJ on this point: at [168]. If a member of the public wishes to challenge the constitutionality of legislation, they must show that a private or group interest has been infringed, or will be infringed, by the legislation. See Crouch v Commonwealth (1948) 77 CLR 339 at 349, 354, 358–9. General ‘taxpayer’ actions are therefore not sustainable without the fiat of the Attorney-General. See Anderson v Commonwealth (1932) 47 CLR 50 at 51–2; Pye v Renshaw (1951) 84 CLR 58 at 83. The issue of standing to challenge an appropriation Act is canvassed in the discussion of s 81 of the Constitution. It is necessary to show ‘a sufficient interest which is not abstract or hypothetical’. See Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (2000) 200 CLR 591; 169 ALR 616; [2000] HCA 11 at [103]. Where a person engages in conduct that is prohibited by statute, the possibility of criminal prosecution for that offence can afford a sufficient interest to support standing to challenge that law. In Croome v Tasmania (1997)

191 CLR 119; 142 ALR 397 the plaintiffs had engaged in conduct prohibited by the State Criminal Code but had not been charged with that offence. They challenged the State law as inconsistent with a Commonwealth law under s 109 of the Constitution. The State conceded the issue of standing: at 121, 127. Brennan CJ, Dawson and Toohey JJ indicated that the plaintiffs had standing to challenge the law because they had engaged in conduct which it prohibited: at 127. Gaudron, McHugh [page 33] and Gummow JJ stated that where the issue in a case is whether there is a ‘matter’ under s 76, that issue subsumes the issue of standing: at 132–3. 36A By contrast, in Kuczborski v Queensland (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 the possibility of future criminal prosecution was too speculative to support standing. In that case the plaintiff was a member of the Hells Angels Motorcycle Club. The club had been declared to be a criminal organisation under State law: at [19]. The plaintiff challenged the validity of three sets of statutory provisions that were directed against criminal organisations: sentencing provisions, bail provisions and offence provisions. Under the sentencing provisions various existing offences under other laws were punishable by longer sentences when committed by members of criminal organisations: at [10], [26], [134]. However, the plaintiff had not been charged with any relevant offence when he challenged these provisions: at [16], [29]. The court held that the plaintiff did not have standing to challenge the sentencing provisions: at [16], [100], [151], [177]. Crennan, Kiefel, Gageler and Keane JJ held that the sentencing provisions had no ‘material affect’ upon the plaintiff. He was not charged with any offence that would trigger their operation. He did not claim that he had committed or intended to commit such an offence: at [151]. If the plaintiff was charged with a relevant offence he would have standing to challenge the sentencing provisions: at [185]. In the Croome case the challenged law affected the plaintiff’s freedom of

action. In this case the sentencing provisions imposed no additional restrictions upon the plaintiff’s freedom of action: at [178]. In Croome the challenged laws criminalised the plaintiff’s relationships with other people: at [180]. In this case the sentencing provisions did not criminalise the plaintiff’s relationships with other club members: at [181]. French CJ also pointed out that the plaintiff did not argue that he had committed or was likely to commit an offence that would trigger the sentencing provisions: at [29]. The sentencing provisions themselves did not restrict his freedom to act: at [17], [30]. The increased punishments would only apply upon conviction of offences that arose under other laws: at [17]. The plaintiff would have standing to challenge the sentencing provisions if he was charged with an offence to which they applied: at [17], [30]. The mere possibility that the plaintiff would be convicted of such an offence was not a ‘sufficiently concrete’ basis for declaratory relief: at [19]. Hayne J also contrasted the Croome case. Unlike the plaintiffs in Croome, the plaintiff in this case did not argue that he intended to commit an offence that would be subject to the sentencing provisions. If the Croome challenge succeeded the prohibited conduct would become lawful. In this case, if the plaintiff’s challenge to the sentencing provisions succeeded, the associated offences would remain unlawful: at [97]. The plaintiff’s challenge had to be dismissed for lack of standing or the absence of a ‘matter’ or for both of those defects: at [100]. Bell J distinguished the Croome decision. In Croome the plaintiffs had a ‘real interest’ in ascertaining the validity of the statute as the government did not deny that offences had been committed: at [282]. In this case a declaration that the sentencing provisions were invalid would not affect the plaintiff’s obligation not to commit the offences to which they related: at [283]. The court also held that the plaintiff lacked standing to challenge the bail provisions. These provisions reversed the presumption in favour of bail where the applicant was a member of a criminal organisation: at [32], [136]. [page 34]

Crennan, Kiefel, Gageler and Keane JJ held that the plaintiff lacked standing to challenge the bail provisions as they did not have any ‘material application’ to him: at [151]. He had not committed any offence and had not applied for bail. A finding of invalidity would not affect his legal position: at [259]. French CJ, Hayne and Bell JJ reached the same conclusion: at [34], [100], [283]. Some of the offence provisions limited the freedom of movement and association of members of criminal organisations: at [1], [35]. Other offence provisions prohibited wearing the insignia of such organisations in licensed premises: at [135]. The State conceded that the plaintiff had standing to challenge the offence provisions: at [36], [96], [153], [277]. Crennan, Kiefel, Gageler and Keane JJ indicated that the plaintiff possessed a sufficient interest to found standing: at [153]. The plaintiff wished to attend the clubhouse, associate with other members in public, wear the club’s insignia on licensed premises and promote the club: at [152]. 36B In federal jurisdiction the issue of standing is subsumed within the requirement that there must be a ‘matter’ between the parties. See Croome v Tasmania (1997) 191 CLR 119 at 132–3; 142 ALR 397; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [50]–[51], [152], [272]–[273]; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 at [68]; Kuczborski v Queensland (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 at [5], [278]. The association of standing with the requirement for a ‘matter’ means that the dispute must not have become hypothetical. In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 the plaintiff asylum seeker had travelled to Australia by boat. She was taken by Commonwealth officers to Nauru, where she was detained in a regional processing centre for refugee claimants: at [1], [8]. The plaintiff was temporarily brought to Australia and was liable to be sent back to Nauru: at [14]. In the High Court the plaintiff claimed an injunction and writ of prohibition directed against officers of the Commonwealth: at [16]. Shortly before the hearing, the Nauruan government announced that asylum seekers

would have freedom of movement on the island: at [19]. The plaintiff also sought a declaration that her prior detention on Nauru had been unlawful: at [20]. The plaintiff did not seek damages for her detention: at [23], [109]. The court held that the abolition of the detention regime had removed the basis for the issue of an injunction or prohibition: at [19], [63]. However, the plaintiff had standing to seek the declaration, as it would determine whether her future detention would be lawful if the Nauruan government reintroduced a detention regime: at [23], [64], [235]. The change of policy did not make the declaration ‘hypothetical’ or ‘moot’: at [23], [64], [112], [350]. Several judges held that the past interference with the plaintiff’s liberty conferred standing even without a showing of further legal consequences: at [235], [349]. For discussions of standing, see Taylor in Stein, 1979, pp 143–72; Burmester in Lee and Winterton, 1992, pp 148–79; Lane, 1997, pp 502–5; Burmester in Opeskin and Wheeler, 2000, pp 245–54; Zines, 2002, pp 16–20; Evans and Donaghue in Moens and Biffot, 2002, pp 53–108; Mantziaris (2004) 25 Adel LR 211; Leeming (2006) 1 J of Equity 3; Johnston (2010) 22 Bond LR 16; Evans (2010) 22 Bond LR 38; Keyzer (2010) 22 Bond LR 60; Hanks, Gordon and Hill, 2012, pp 644–6; Pyke, 2013, pp 46–8; Clarke, Keyzer and Stellios, 2013, pp 1113–17; Williams, Brennan and Lynch, 2014, pp 455–64. [page 35]

The role of interveners and amici curiae 37 The High Court has power to permit intervention by non-parties to a constitutional case. See Levy v Victoria (1997) 189 CLR 579 at 600–5, 650–2; 146 ALR 248. Such interveners become party to the proceedings. Section 78A(1) of the Judiciary Act 1903 provides that the Commonwealth and State Attorneys-General may intervene in any court proceeding that arises under the Constitution or involves its interpretation. Under s 78B(1) of the Act, when a pending court proceeding concerns a

matter arising under the Constitution or involving its interpretation, the court is under a duty not to proceed until notice has been given to the Commonwealth and State Attorneys-General. (‘State’ is defined to include the Northern Territory and the Australian Capital Territory: s 78AA.) If the court perceives that the case involves a ‘real and substantial’ constitutional issue, the court must not proceed, notwithstanding that the parties have not raised the issue. See Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292; 167 ALR 303; [1999] FCA 1151 at [22]. However, the duty not to proceed may not apply to a point which is ‘trivial, unarguable or concluded’: at [14]. See similarly, Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371; [2004] FCA 918 at [103]; Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [17]–[19]; Danielsen v Onesteel Manufacturing Pty Ltd (2009) 224 FLR 319; 253 ALR 661; [2009] SASC 56 at [30]–[31]. The constitutional issue must also be raised in good faith. See KS v Veitch (2012) 300 ALR 181; [2012] NSWCCA 186 at [37]–[38]. The notice must describe the ‘nature of the matter’. However, the notice does not need to incorporate detailed arguments about the matter. See Lane v Morrison (2009) 252 ALR 605; 83 ALJR 377; [2009] HCA 5 at [4]. After notice has been given, the court must wait for a reasonable time before proceeding, to allow the Attorneys to consider whether to intervene: s 78B(1). For a discussion of intervention by the States and Territories in constitutional cases, see Aleksov (2012) 86 ALJ 555. The court also has power to permit a non-party to offer assistance to the court as an amicus curiae (friend of the court), without becoming party to the proceedings. See Levy v Victoria (1997) 189 CLR 579 at 604–5, 650–2; 146 ALR 248; Attorney-General (Cth) v Breckler (1999) 197 CLR 83; 163 ALR 576; [1999] HCA 28 at [102]–[109]; Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 at [260]–[263]; Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37; 284 ALR 222; [2011] HCA 54 at [4], [6]. The court granted leave for the appearance of an amicus curiae in the unusual circumstance where no party now challenged the validity of the Commonwealth law that had been held invalid by the court below. In that case the role of the amicus was to contest the Commonwealth’s arguments in

support of validity. See Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; 242 ALR 1; [2008] HCA 2 at [1], [9], [63], [68], [104], [148]–[149]. For discussions of these issues, see Kenny (1998) 20 Adel LR 159; Owens (1998) 20 Adel LR 193; Campbell (1998) 9 Public LR 255; Williams (2000) 28 FL Rev 365; ALRC, 2001, pp 265–90; Evans and Donaghue in Moens and Biffot, 2002, pp 93–6; Maxwell (2002) 13 Public LR 283; Pierce, 2006, pp 93– 108; Willheim (2009) 20 Public LR 104; Walker (2010) 22 Bond LR 111; Willheim (2010) 22 Bond LR 126; Keyzer, 2010, pp 98–122. [page 36]

Effect of judicial review 38 The court has treated unconstitutional laws as void ab initio, that is, void from the moment of their purported enactment. See Federal Commissioner of Taxation v Clyne (1958) 100 CLR 246 at 267; Cormack v Cope (1974) 131 CLR 432 at 464–5; Attorney-General (NSW); Ex rel McKellar v Commonwealth (1977) 139 CLR 527 at 550, 560; 12 ALR 129; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; 172 ALR 366; [2000] HCA 33 at [55]–[56]; Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; 172 ALR 257; [2000] HCA 34 at [170]; Coleman v Power (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 at [133]. ‘A pretended law made in excess of power is not and never has been a law at all.’ See South Australia v Commonwealth (1942) 65 CLR 373 at 408. When the court declares invalid an amendment to a statute, the text of the Act thus remains as it stood prior to the purported amendment. See Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 at [25], [96]–[97]; Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 at [86], [323]. For discussions of the consequences of unconstitutionality, see Fitzgerald (1994) 1 Canberra LR 205; Campbell in Lindell, 1994, pp 90–125; Campbell (2003) 29 Mon ULR 49; Pyke, 2013, pp 48–9; Williams, Brennan and Lynch, 2014, pp 470–3.

Remedies under the general law may be available for unconstitutional governmental actions. A judicial declaration that a statute is ultra vires is, in effect, a declaration that it is not a law. It follows that any action taken under or in reliance upon that statute is not, to that extent, authorised by law. The making, or the administration of, an invalid ‘law’ does not in itself give rise to a cause of action at law on the part of any person who claims to be adversely affected. However, in so far as action taken in reliance upon the law constitutes a legal wrong for which a remedy is available in the absence of lawful justification, the invalidity of the ‘law’ destroys the defence open to the person acting under the invalid law. See Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327 at 342; James v Commonwealth (No 2) (1939) 62 CLR 339 at 359; Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 at 64; McClintock v Commonwealth (1947) 75 CLR 1 at 19; Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 231. However, legal authority for the act may be sometimes found in another (valid) source of power. In New South Wales v Kable (2013) 252 CLR 118; 298 ALR 144; [2013] HCA 26 a State Supreme Court ordered the detention of a prisoner due to be released. This order was purportedly issued under a State law that was subsequently held to be unconstitutional: at [1]. The prisoner later sued for false imprisonment since the State law had been void. The High Court held that the prisoner had no action for false imprisonment as the judicial order constituted legal authority for the detention: at [11]. The order was not void ab initio: at [41]. An order of a superior court of record is valid until set aside, even where the order transgresses constitutional limitations: at [32]. The authority for the detention did not derive from the invalid law but from the ‘status or nature’ of a superior court of record: at [36]. For a discussion of this case, see Churches (2013) 36 UNSWLJ 894. Moneys exacted pursuant to an unconstitutional statute may sometimes be recoverable in restitution. For example, in Mason v New South Wales (1959) 102 CLR 108 the plaintiffs had paid moneys to State officials for vehicle permits that were held to violate s 92 of the Constitution in their application to interstate trade: at 113–14, 137. If the plaintiffs had failed to make the payments they faced the prospect of being prevented from continuing

[page 37] on their journeys: at 116. On numerous occasions the plaintiffs had stated that the moneys were paid under protest: at 132, 137. The court held that these unlawfully exacted moneys were paid under compulsion and were recoverable as money had and received: at 117, 129–30, 133, 146. For a very useful discussion of restitution in such circumstances, see Butler in Moens, 2000, pp 127–50; see also Brock (2000) 5, 1 Deakin LR 127; Mason, Carter and Tolhurst, 2008, pp 789–96; Wong (2011) 85 ALJ 597; Bateman (2012) 34 Syd LR 721 at 745–9; Mason (2016) 90 ALJ 120 at 131–8. The Constitution itself does not create private rights enforceable by an action for damages. See Kruger v Commonwealth (1997) 190 CLR 1 at 46, 93, 125–6, 146–8; 146 ALR 126; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; 200 ALR 403; [2003] HCA 47 at [40]; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209 ALR 582; [2004] HCA 41 at [180]. Several judges did not decide that issue. See Kruger at 73, 144. Kirby J supported the availability of a private right of action for a violation of the Constitution. See British American Tobacco at [134]. The United States doctrine recognising ‘constitutional tort’ actions has not been adopted in Australia. However, actions under the general law (such as tort or contract) may apply to particular acts or omissions in breach of constitutional guarantees. See British American Tobacco at [59], [63]. In several cases the High Court has upheld Commonwealth and State legislation that ‘“deem[ed]” constitutionally defective acts to be treated “as if” no constitutional defect existed’. See Bateman (2012) 34 Syd LR 721 at 722. In Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434; [2011] HCA 28 the retrospective operation of such legislation was upheld. See Bateman at 738–9. Where a common law rule is inconsistent with the Constitution, the common law must be developed so that it is consistent with the Constitution. See Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 563–4; 145 ALR 96; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625;

[2000] HCA 36 at [34], [67]; Roberts v Bass (2002) 212 CLR 1; 194 ALR 161; [2002] HCA 57 at [65]–[66], [130], [144], [160]. Kirby J argued that the rules of equity must similarly conform to the Constitution. See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; [2001] HCA 63 at [140], [192], [194]. The effect of the Constitution upon the common law is discussed in Keyzer (2000) 30 Aust Bar Rev 87; Taylor (2000) 11 Public LR 274; Stone (2001) 12 Public LR 9; Taylor (2002) 30 FL Rev 69; Stone (2002) 26 MULR 646; Taylor (2002) 26 MULR 623; Foley (2003) 31 FL Rev 131; Sexton in Jones and Macmillan, 2003, pp 79–96; Gummow (2005) 79 ALJ 167; Tate (2008) 30 Syd LR 121.

Severance 39 When part only of a statute or other instrument is held invalid, the question arises whether the remainder of the instrument can be severed from the invalid portions and continue to operate. This question arises in two distinct types of cases. In the first type of case a provision expressed in general terms is invalid because it includes within its operation a subject matter, area or class of persons which is beyond the power of the legislature, but would be valid if it was limited to a subject matter, area or class of persons [page 38] within the power of the legislature. In this situation the problem is to read down a provision so as to confine its operation within the powers of the legislature. In the second type of case a provision is ultra vires whether read as applying generally or only to particular matters, areas or persons but is associated with other provisions within constitutional power. In this situation the problem is whether the invalid provisions can be separated from what remains of the law so as to make the remainder a valid law.

40 The general presumption was formerly that a statute was intended to have effect as a whole so that if part of it was held to be invalid, the whole was invalid. However, the general presumption against severability has been reversed in practically all situations by virtue of severability provisions. See Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 71; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 61; 108 ALR 681; JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 at [261]. Under such severability provisions, Commonwealth, State and Territory statutes are to be construed as valid to the extent to which they are not beyond power. See Acts Interpretation Act 1901 (Cth) s 15A; Acts Interpretation Act 1915 (SA) s 22A; Acts Interpretation Act 1931 (Tas) s 3; Acts Interpretation Act 1954 (Qld) s 9; Interpretation Act 1978 (NT) s 59; Interpretation of Legislation Act 1984 (Vic) s 6; Interpretation Act 1984 (WA) s 7; Interpretation Act 1987 (NSW) s 31; Legislation Act 2001 (ACT) s 120. Invalidity may be avoided by reading down a statutory provision. A severability provision may be ‘applied to read down a provision expressed in general terms’. See R v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22 at [43]; see also Re Nolan; Ex parte Young (1991) 172 CLR 460 at 485; 100 ALR 645; Victoria v Commonwealth (1996) 187 CLR 416 at 502; 138 ALR 129; Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 at [329]–[330]. For a discussion of reading down, see Hume (2014) 37 MULR 620 at 629–37. In Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 a statute provided that the Commonwealth had power to enter into a contract for the payment of public money where the contract was listed in the regulations: at [15]. The court held that while this provision could be read to purport to authorise a contract which the Commonwealth did not have constitutional power to conclude, the provision should be read down to authorise only contracts that are within constitutional power: at [36], [99]. If the remainder of a statute is to be upheld, the invalid provisions must be able to be separated from what remains of the law. The valid provisions must constitute a complete intelligible law capable of execution as they stand; otherwise the whole must fail. Severability provisions only raise a presumption

of the independence and severability of the provisions of a statute. This presumption is rebuttable if ‘some positive indication of interdependence appears from the text, context, content or subject matter of the provisions’. See Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 at 127; Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 at 92; Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 75–6; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 568, 631; 67 ALR 321. A severability provision cannot validate a provision if the effect would be to change the meaning of the remainder of the law. See Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 371; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 348; 128 ALR 81; Victoria v Commonwealth (1996) 187 CLR 416 at 502; 138 ALR 129; Gould v Brown (1998) 193 CLR 346; 151 ALR 395; [1998] HCA 6 at [84], [237]; Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 at [102]; Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 at [189], [280], [399]. Such a provision cannot validate ‘a law [page 39] expressed in general terms if it appears that “the law was intended to operate fully and completely according to its terms, or not at all”’. See Victoria v Commonwealth at 502. The court may not redraft a provision to save it from invalidity. See Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35 at [170]. If there are several different limiting interpretations that would save a statute from invalidity, the statute will still be invalid if the law does not provide any reason for choosing which of those interpretations should be adopted. See Pidoto v Victoria (1943) 68 CLR 87 at 111; Victoria v Commonwealth at 502; Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 at [76]; Tajjour at [52]. Sometimes a severability provision may be specific in its operation. See JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 at [9], [99]. For example, the Commonwealth law that requires the

plain packaging of cigarettes provides that if the restrictions it imposes upon the use of trade marks on cigarette packaging would result in an acquisition of property, trade marks may be used on tobacco packaging. See Tobacco Plain Packaging Act 2011 (Cth) s 15(2). Finally, severability provisions are not concerned with the resolution of inconsistencies between otherwise constitutionally valid laws. See Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; 286 ALR 404; [2012] HCA 13 at [13]. For discussions of severance, see Opinion No 1849 of 24 January 1949; Nicholas, 1952, pp 344–7; Sawer, 1967, pp 112–16; Wynes, 1976, pp 47–55; Howard, 1985, pp 28–37; Lane, 1997, pp 914–24; Booker, Glass and Watt, 1998, pp 72–4; Pyke, 2013, pp 70–4; Keyzer, 2013, pp 45–7; Gerangelos et al, 2013, pp 1472–5; Williams, Brennan and Lynch, 2014, pp 473–6; Williams, N, 2014, pp 100–16.

[page 41]

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT __________________________ (63 & 64 Victoria, Chapter 12) An Act to constitute the Commonwealth of Australia [9th July 1900]

PREAMBLE 41 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:

See Quick and Garran, 1901, pp 282–301 (Revised ed, 2015, pp 289–314); Bennett, 1971, pp 104–11; Ely, 1976, pp 31–5, 69–75; Attorney-General’s Department, 1980, pp 1–3; Craven, Secession, 1986, pp 25–30, 83–91; Constitutional Commission, 1988, Vol 1, pp 101–10; Republic Advisory Committee, 1993, Vol 1, pp 135–6; Lane, 1997, pp 5–8; Ely (2001) 75 ALJ 36; McKenna, Simpson and Williams (2001) 24 UNSWLJ 382; McGrath, 2003, pp 95–6; Twomey, 2004, pp 760–1; Twomey (2008) 10 Const L & Pol’y Rev 31. 42 The preamble of the Constitution Act refers to the referenda held in five of the six original colonies which approved the new Commonwealth

Constitution. The Republic Advisory Committee noted that ‘[i]n omitting any reference to Western Australia, the preamble was historically inaccurate by the time the Constitution came into effect on 1 January 1901’. This was because Western Australia had agreed to federate on 31 July 1900, after Royal Assent had been given to the Constitution Act. See Republic Advisory Committee, 1993, Vol 1, p 138. On another historical note, since 1927 the British royal title no longer refers to the ‘United Kingdom of Great Britain and Ireland’. See Winterton in Stephenson and Turner, 1994, pp 27 and 32 n 55; Faulkner and Orr, 2013, p 162 (no 1423). The reference in the preamble to an ‘indissoluble Federal Commonwealth’ raises the question whether an amendment to the Constitution which purported to abolish its federal nature would be valid. The general rule of statutory interpretation is that the preamble is not part of an Act and can only be used as an aid to interpretation and in resolving ambiguities in the text. [page 42] The Republic Advisory Committee argued that the preamble’s description of Australia as ‘under the Crown’ is no barrier to the creation of an Australian republic. It gave two reasons. First, it is ‘part of a statement of historical fact and not a prescriptive provision’: Republic Advisory Committee, 1993, Vol 1, p 135. Second, it is possible to amend the covering clauses. However, there is a possibility that the preamble has some substantive effect. See Republic Advisory Committee, 1993, Vol 1, p 136. In Leeth v Commonwealth (1992) 174 CLR 455; 107 ALR 672 Deane and Toohey JJ referred to the preamble in support of their view that the Constitution contains an implied guarantee of equality: at 486. Cf Brennan J at 475. See also Kruger v Commonwealth (1997) 190 CLR 1 at 97; 146 ALR 126. The Constitutional Commission recommended against any alteration to the preamble or its repeal. See Constitutional Commission, 1988, Vol 1, pp 104– 9. The current preamble appears within the Constitution Act. In 1999 a proposal to include another preamble within the Constitution itself was

rejected at a referendum. See McKenna (1999) 10 Public LR 163; McKenna, 2000.

ENACTING WORDS 43 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:—

See Quick and Garran, 1901, pp 301–10 (Revised ed, 2015, pp 315–27); Constitutional Commission, 1988, Vol 1, pp 78–9; Joint Select Committee on the Republic Referendum, 1999, pp 94–5. 44 The Republic Advisory Committee expressed the opinion that the enacting words are not a constitutional barrier to Australia becoming a republic, being only a historical statement, since the Parliament of the United Kingdom no longer has any legislative authority over Australia. See Republic Advisory Committee, 1993, Vol 1, p 118. The Constitutional Commission recommended the repeal of the enacting words. See Constitutional Commission, 1988, vol 1, p 80.

SHORT TITLE 45

Section 1. This Act may be cited as the Commonwealth of Australia Constitution Act.

See Quick and Garran, 1901, pp 311–20 (Revised ed, 2015, pp 327–39); Lane, 1997, p 8. 46 The Imperial Act establishing the Constitution consists of nine clauses called the covering clauses, the ninth of which contains the Constitution itself. See McGrath, 2003, pp 89–94. The name ‘Commonwealth’ is a general political term which, as Quick and Garran pointed out, became associated with the terms ‘state’, ‘realm’, ‘community’, ‘republic’ and ‘nation’. They added that ‘some authorities have described it as synonymous with league, alliance, coalition, confederacy, and confederation’. Applied to Australia, it describes ‘the new political community created by the union of the people

and of the colonies of Australia’. See Quick and Garran, 1901, p 312 (Revised ed, 2015, p 329); see also La Nauze, 2001, pp 158–72. [page 43]

ACT TO EXTEND TO THE QUEEN’S SUCCESSORS 47 Section 2. The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.

See Quick and Garran, 1901, pp 320–8 (Revised ed, 2015, pp 340–50); Constitutional Commission, 1988, Vol 1, pp 79–80; Republic Advisory Committee, 1993, Vol 2, p 297; Lane, 1997, pp 8–9; Twomey [2011] Public Law 378 at 390–2; Stellios, 2015, pp 469–74. 48 This section gives recognition to the constitutional practice that the Crown is a corporation sole and therefore the provisions referring to the Monarch of the time (Queen Victoria) apply to her heirs and successors (whether male or female). See Lagassé and Bowden (2014) 23, 1 Constitutional Forum 17 at 18–20. The Crown is divisible. There is a separate Crown for each independent nation that acknowledges the Queen as its head of state. There is thus a Queen of the United Kingdom, a Queen of Australia and a Queen of Canada. See R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta [1982] QB 892 at 916–17, 921, 928; 2 All ER 118; Selway (2003) 32 Common Law World Rev 248. The Queen of Australia is the Australian head of state. See Winterton (2004) 7 Const L & Pol’y Rev 65. Australian citizens owe allegiance to the Queen of Australia, not the Queen of the United Kingdom. See Pochi v Macphee (1982) 151 CLR 101 at 109; 43 ALR 261; Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 186; 80 ALR 561; Cameron v Beattie [2001] QSC 115 at [9]. The royal style and titles for

Australia refer to the ‘Queen of Australia and Her other Realms and Territories, Head of the Commonwealth’. See Royal Style and Titles Act 1973 (Cth) Sch; Twomey, 2004, pp 591–7. The Constitutional Commission recommended the removal from this clause of references to the United Kingdom and the substitution of ‘Australia’. This would give recognition to the evolution of the constitutional practice that the Monarch is the Queen of Australia. See Constitutional Commission, 1988, Vol 1, p 80. The Acting Solicitor-General of the Commonwealth suggested that cl 2 would become redundant if an Australian republic were established. See Republic Advisory Committee, 1993, Vol 2, p 297. The Republic Advisory Committee argued that the reference to the Queen in cl 2 is no barrier to the creation of an Australian republic, for this clause is merely a definitions section. It was of the view that, if provisions in the Constitution referring to the Queen were amended to remove these references, cl 2 would no longer have any effect. See Republic Advisory Committee, 1993, Vol 1, p 118.

PROCLAMATION OF COMMONWEALTH 49 Section 3. 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.

[page 44] See Quick and Garran, 1901, pp 328–43 (Revised ed, 2015, pp 350–69); Bevan and Mitchell, 1981, p 397; Craven, Secession, 1986, pp 91–7; Constitutional Commission, 1988, Vol 1, p 119; Lane, 1997, pp 9–12. 50 This section draws attention to the approval of the Constitution by referenda, though with a very restricted franchise. See Cass and Rubenstein

(1995) 17 Adel LR 3 at 28–9; Twomey in The Constitution Papers, 1996, p 3; Irving, 1999, pp 374–5. After approval of the Constitution by voters in Western Australia the six colonies were united as the Commonwealth of Australia on 1 January 1901. This date was appointed by a Royal proclamation issued on 17 September 1900. The text of this proclamation appears in Moore, 1910, pp 669–70 and Aitken, 2002, pp 223–4. In Leeth v Commonwealth (1992) 174 CLR 455 at 486; 107 ALR 672 Deane and Toohey JJ expressed the view that s 3 showed that ‘the conceptual basis of the Constitution … 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’. In contrast, Mason CJ, Dawson and McHugh JJ considered that no general principle of nondiscrimination or uniform operation of laws could be drawn from the Constitution: at 467–8. In further contrast, the Acting Solicitor-General suggested that the effect of cl 3 is now spent. See Republic Advisory Committee, 1993, Vol 2, p 297. The Republic Advisory Committee agreed: Vol 1, p 118.

COMMENCEMENT OF ACT 51 Section 4. 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.

See Quick and Garran, 1901, pp 343–5 (Revised ed, 2015, pp 369–71); Attorney-General’s Department, 1980, p 4; Craven, Secession, 1986, pp 91–7; Constitutional Commission, 1988, Vol 1, pp 119–20; Lane, 1997, pp 12–13. 52 The Commonwealth was established on the date appointed and the Constitution took effect at the same time. The appointed date was 1 January 1901. See Attorney-General’s Department, 1980, p 4. The effect of this provision is now spent.

OPERATION OF THE CONSTITUTION AND LAWS 53 Section 5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and 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.

[page 45] See Quick and Garran, 1901, pp 345–63 (Revised ed, 2015, pp 372–96); Opinion No 1790 of 15 November 1946; Constitutional Commission, 1988, Vol 1, pp 112–13; Republic Advisory Committee, 1993, Vol 2, p 297; Attorney-General’s Department, 1980, pp 4–7; Lane, 1997, pp 13–15; Leeming, 2011, pp 25–30. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State

54 This part of cl 5 affirms the supremacy of the Constitution and laws made under it throughout the Commonwealth. In association with other sections (for example, s 109) it embodies the doctrine that provisions of State Constitutions and State laws are inoperative to the extent to which they are inconsistent with the Commonwealth Constitution and laws made under it. Note that the question of inconsistency between Commonwealth and State laws is always argued under s 109 rather than cl 5. See Hanks, 1996, p 258. Clause 5 identifies the law to be applied by Australian courts. See Joosse v Australian Securities and Investments Commission (1998) 159 ALR 260; 73 ALJR 232; [1998] HCA 77 at [18]–[19]; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302; 74 ALJR 68; [1999] HCA 56 at [18].

The duty of obedience is cast on citizens and officials throughout the Commonwealth. State and federal courts are invested with the jurisdiction to declare unconstitutional any legislation (from whatever source) that contravenes the Constitution. See Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 at 1125, 1136; ALRC, 2001, pp 256–63; Sexton (2007) 30 Aust Bar Rev 33 at 34–5. In Leeth v Commonwealth (1992) 174 CLR 455 at 486; 107 ALR 672 Deane and Toohey JJ sought to draw support for a general principle of equality from the presence of cl 5, arguing that it enacted a principle of the ‘common law doctrine of legal equality’. In AMS v AIF (1999) 199 CLR 160; 163 ALR 501; [1999] HCA 26 at [158] Kirby J invoked cl 5 in support of the contention that s 92 may be infringed by a court order as well as by legislation. 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.

55 In R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 309 Windeyer J expressed the view that the only effect of cl 5 after the Statute of Westminster 1931 was to aid in the interpretation of Commonwealth legislation. The Constitutional Commission recommended the repeal of this part of cl 5. See Constitutional Commission, 1988, Vol 1, p 112. The Acting SolicitorGeneral of the Commonwealth echoed these concerns in advice to the Republic Advisory Committee. See Republic Advisory Committee, 1993, Vol 2, p 297. [page 46]

DEFINITIONS 56 Section 6. “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.

See Quick and Garran, 1901, pp 363–76 (Revised ed, 2015, pp 396–413); Attorney-General’s Department, 1980, pp 7–8; Constitutional Commission, 1988, Vol 1, p 120; Republic Advisory Committee, 1993, Vol 2, p 297; Lane, 1997, pp 15–16. 57 The effect of this clause is self-explanatory. It distinguishes a class of political entities of the Federation, called ‘States’, from others called ‘Territories’. The section also distinguishes ‘original States’ from those which may, at some future time, be admitted to the Federation as States. This clause does not list the present Australian States, but only those colonies that were thought might chose to become States at the time of Federation. See NZA v Minister for Immigration and Citizenship (2013) 59 AAR 294; 140 ALD 555; [2013] FCA 140 at [64]. It was open to New Zealand to choose to become a part of the Commonwealth, as the reference in this section indicates. For the background, see La Nauze, 1972, pp 14, 21, 250, 259–60; Smith in Irving, 1999, pp 400–5; La Nauze, 2001, pp 90–1. The ‘northern territory of South Australia’ is now the Northern Territory.

REPEAL OF FEDERAL COUNCIL ACT [48 & 49 Vict c 60] 58 Section 7. 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.

See Quick and Garran, 1901, pp 376–7 (Revised ed, 2015, pp 414–5); Attorney-General’s Department, 1980, p 7; Constitutional Commission, 1988, Vol 1, pp 113–14; Republic Advisory Committee, 1993, Vol 2, p 297; Lane, 1997, p 16.

59 This section repealed the Federal Council of Australasia Act 1885. That Act is reproduced in Knowles, 1936, pp 119–23. The Federal Council passed some 10 Acts. The Council’s Acts are reproduced in Knowles, 1936, pp 4–5, 124–41. All of these Acts became inoperative by lapse of time or were expressly or impliedly repealed. A list of the repealing Acts appears in Aitken and Orr, 2002, p 215 n 4. [page 47] The Constitutional Commission recommended the repeal of cl 7. See Constitutional Commission, 1988, Vol 1, p 113.

APPLICATION OF COLONIAL BOUNDARIES ACT [58 & 59 Vict c 34] 60 Section 8. 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.

See Quick and Garran, 1901, pp 378–9 (Revised ed, 2015, pp 415–17); Attorney-General’s Department, 1980, pp 8–9; Constitutional Commission, 1988, Vol 1, pp 115–18; Republic Advisory Committee, 1993, Vol 2, p 297; Lane, 1997, pp 16–17. 61 In 1993 the Acting Solicitor-General of the Commonwealth suggested that cl 8 ‘is a “dead letter” as a matter of constitutional practice, if not also as a matter of law’. See Republic Advisory Committee, 1993, Vol 2, p 297. The Constitutional Commission recommended the repeal of cl 8. See Constitutional Commission, 1988, Vol 1, p 115.

CONSTITUTION 62

Section 9. 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: 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.

[page 49]

CHAPTER I THE PARLIAMENT __________________________

PART I — GENERAL LEGISLATIVE POWER 63 Section 1. 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 herein-after called “The Parliament”, or “The Parliament of the Commonwealth”.

See Quick and Garran, 1901, pp 384–7 (Revised ed, 2015, pp 424–8); Attorney-General’s Department, 1980, pp 11–13. 64 Section 1 deals with the legislative power. This power is to be exercised by a bicameral legislature which is defined as consisting of the Queen, the House of Representatives and the Senate. In accordance with British and colonial constitutional practice it is specifically recognised that the Queen is a constituent part of Parliament. The Queen’s participation in legislation is formal only. Her powers are exercised by the Governor-General (ss 2, 61) who assents in Her name to Bills passed by both Houses (or, in the case of a deadlock, follows the procedure laid down in s 57). Such assent is, in the light of the doctrine of responsible government, given on the advice of the Ministry: see s 64. One type of Bill is required to be reserved for the Royal Assent (see s 74), but this is a purely formal requirement: see ss 58, 60. The Queen may disallow a Bill assented to by the Governor-General (s 59), but this power must be regarded as moribund. See Proceedings of the Australian Constitutional Convention (Adelaide Session), 1983, Vol 2, p 40. 65 The conferral of legislative power upon the Parliament does not prevent that body from delegating part of its power to the executive or to a subordinate law-making body. See Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 83–4, 86, 101, 117; Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529 at 545. The conferral of wide law-making powers upon the executive, provided that it does not amount to an abdication of power, is justified in the light of

the operation of the doctrine of responsible government. Those who exercise the power will be held answerable to Parliament for any abuse of such power. See Dignan’s case (1931) 46 CLR 73 at 121. Consequently, the doctrine of separation of powers has a significant practical operation only in respect of the separation of judicial from legislative and executive power. See further para [22]. For discussions of the delegation of legislative power, see Winterton, 1983, pp 85–92; Malcolm (1992) 66 ALJ 247; Lane, 1997, pp 36–8, 423–6; Meyerson (2003) 11 Aust J Admin [page 50] L 45; Ng (2010) 38 FL Rev 205; Moens and Trone (2012) 24 Giornale di Storia Costituzionale 133; Ratnapala and Crowe, 2012, pp 123–30; Hanks, Gordon and Hill, 2012, pp 556–60; Pyke, 2013, pp 132–4; Clarke, Keyzer and Stellios, 2013, pp 107–13; Gerangelos et al, 2013, pp 61–3, 368–76; Williams, Brennan and Lynch, 2014, pp 397–406; Stellios, 2015, pp 199–211; Appleby and Howeb (2015) 15 Oxford U Cth LJ 3.

GOVERNOR-GENERAL 66 Section 2. A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

See Quick and Garran, 1901, pp 387–400 (Revised ed, 2015, pp 428–45); Attorney-General’s Department, 1980, pp 13–14; Winterton, 1983, pp 51–2; Renfree, 1984, pp 142–3, 422–6; Howard, 1985, pp 110–21; Constitutional Commission, 1988, Vol 1, pp 312, 337–40, 342–3, 345–6; Lane, 1997, pp 55–7; Craven (2004) 32 FL Rev 281; Winterton (2004) 7 Const L & Pol’y Rev 65; Winterton in Groves, 2005, pp 44–58; Waugh (2006) 17 Public LR 49; Stellios, 2015, pp 371–2. 67

The Governor-General is appointed by commission on the advice of the

Australian Prime Minister. See Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [74]. For examples of commissions that appointed a Governor-General, see Commonwealth of Australia Gazette, No S309, 11 August 2003; No S181, 10 September 2008; No C2014G00545, 1 April 2014. In 1983 the Australian Constitutional Convention recognised and declared that certain practices should be observed as conventions in relation to the appointment of the Governor-General. These conventions were formulated as follows: The Governor-General is appointed by the Queen … after informal consultation on the appointment between the Queen and the [Australian] Prime Minister. United Kingdom Ministers are not concerned in the appointment. [Proceedings of the Australian Constitutional Convention (Adelaide Session), 1983, Vol 1, p xxxii.]

See also Sykes v Governor-General (1995) 69 ALJR 884 at 885. Since 1965 an Australian has invariably been appointed as GovernorGeneral. See Aitken and Orr, 2002, p 40; Smith, 2005, pp 29–30. The first Australian-born Governor-General was appointed in 1931. See Waugh (2012) 23 Public LR 50. A list of Governors-General appointed since 1901 appears at http://www.gg.gov.au. Being an appointment ‘at pleasure’, the appointment of the GovernorGeneral may be terminated at any time by the Queen on the advice of the Australian Prime Minister. See Evatt, 1967, p 197; Sawer, 1977, pp 171, 184; Kerr, 1978, pp 15, 258; Crisp, 1983, p 400; cl II, Letters Patent Relating to the Office of Governor-General, Commonwealth of Australia Gazette, No S179, 9 September 2008. The commission of the Governor-General does not expire upon the death of the appointing Monarch. The Governor-General continues in office. See Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383; [1999] FCA 1580 at [27], [29]–[30]; McKewins Hairdressing and Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 335; 74 ALJR 1000; [2000] HCA 27 at [6]–[7]. [page 51]

Similarly, the Letters Patent Relating to the Office of Governor-General do not expire upon the death of the Monarch who promulgated them. See McKewins at [7]. The current Letters Patent were promulgated in 2008. The text of the previous Letters Patent as originally adopted in 1984 appears in Aitken and Orr, 2002, pp 225–8. The 2003 amendment appears in Commonwealth of Australia Gazette, No S151, 15 May 2003. 68 The Governor-General’s powers are derived from three sources: those vested in the Governor-General by the Constitution, those deriving from the common law, and those derived from statute. We are not concerned here with the last category, except to indicate that there are numerous statutory sources of both subordinate legislative power and executive power which are exercised by the Governor-General in Council. The Constitution confers a number of powers upon the Governor-General. The Governor-General has the formal powers of, inter alia, fixing the times for holding parliamentary sessions and proroguing and dissolving the House of Representatives (s 5), dissolving both Houses in the event of a deadlock (s 57) and assenting to Bills: s 58. The Governor-General exercises the executive power of the Commonwealth (s 61), appoints Ministers (s 64) and is Commander-in-Chief of the armed forces: s 68. The Governor-General is also responsible for other matters which, in accordance with the federal division of power, were transferred from the Governors of the colonies on Federation: s 70. The Constitution also confers powers on the Governor-General in Council. These powers are not prerogative powers, but are exercised by the GovernorGeneral acting with the advice of the Federal Executive Council: s 63. Consequently, the decision taken in this manner is through the procedure of Executive Council consideration and ratification: see s 62. As to prerogative powers which do not have a constitutional source, a number of ancient powers derived from the common law must be regarded as vested in the Governor-General by virtue of ss 61, 51(xxxix) and other sections of the Constitution. Some prerogative powers have been absorbed by Commonwealth statute, while others have been overridden by constitutional interpretation or statutory enactment. See Wynes, 1976, p 457. 69

The question arises as to whether there are certain prerogative powers

which are still inherent in the Monarch and which have not been conferred upon the Governor-General either by delegation under s 2 or by implication under s 61. An affirmative answer to this question is probably required, although much depends upon the interpretation given the phrase ‘the executive power of the Commonwealth’ in s 61. A further question is whether, under s 2, a full assignment of Royal powers is possible. If all Royal prerogatives were conferred upon the GovernorGeneral, the Governor-General would be able to deal with matters affecting the State constitutional system. It may be that such complete powers cannot be assigned. The phrase ‘subject to this Constitution’ which appears in s 2 would include s 106, which protects the State constitutional structure. The Australian Constitutional Convention affirmed the practice as follows: Assignments by the Queen of powers or functions to the Governor-General under section 2 of the Constitution are made on the advice of the Prime Minister of Australia. Any assignment in a matter of exclusively state concern is not advised or made except at the request of the States concerned. [Proceedings of the Australian Constitutional Convention (Adelaide Session), 1983, Vol 1, p xxxii.]

See now Australia Act 1986 s 7 (Cth). A list of assignments of various powers and functions appears in Attorney-General’s Department, 1980, pp 13–14. [page 52]

SALARY OF GOVERNOR-GENERAL 70 Section 3. There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. The salary of a Governor-General shall not be altered during his continuance in office.

See Quick and Garran, 1901, pp 400–2 (Revised ed, 2015, pp 445–8); Attorney-General’s Department, 1980, p 14; Constitutional Commission, Vol 1, pp 337–40; Lane, 1997, p 58; Manthorpe, 2003; Smith, 2005, pp 329–31. 71

The independence of the Governor-General is supported by the

requirement in the second paragraph of this section that the GovernorGeneral’s salary shall not be altered during his or her continuance in office. It is significant that the word ‘altered’ is used (as compared to the word ‘diminished’ used in relation to the salary of a federal judge: see s 72). This means that the salary of a Governor-General cannot be increased or diminished during his or her term of office. See Kerr, 1978, p 15. The salary, therefore, can only be altered following the retirement of one Governor-General and prior to the new incumbent taking up office; or, if it is altered during the term of one Governor-General, can only take effect after their retirement. Where the salary is altered the change thus applies to the next Governor-General but not the incumbent. The salary is thus generally altered shortly before the appointment of the next Governor-General takes effect. See House of Representatives Hansard, 24 June 2003, pp 17318–9; 18 June 2008, p 5137. During the Great Depression, the Governor-General voluntarily accepted a lower salary than that payable by law. See AttorneyGeneral’s Department, 1980, p 14. The salary of the Governor-General is set by the Governor-General Act 1974 (Cth) s 3.

PROVISIONS RELATING TO GOVERNORGENERAL 72 Section 4. 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.

See Quick and Garran, 1901, pp 402–3 (Revised ed, 2015, pp 448–50); SG Opinion No 1783 of 29 August 1946; Attorney-General’s Department, 1980, p 15; Renfree, 1984, p 145; Lane, 1997, p 58; Lindell (2003) 6 Const L & Pol’y Rev 73; Wright, 2012, p 3. 73 This section envisages the appointment of a federal administrator under Royal Commission who would exercise the full powers of the GovernorGeneral during his or her absence or incapacity (unless a deputy is appointed under s 126). Such a person cannot receive the salary attaching to any other

Commonwealth office, thus fettering the power to select a Commonwealth judge or officer to act as administrator. For examples of Commissions appointing an administrator, see Commonwealth of Australia Gazette, No C2014G01600, 24 September 2014; No C2015G00883, 5 June 2015. [page 53] An administrator is appointed in the following situations: the absence from Australia, death, incapacity, removal, or temporary absence from office of the Governor-General. See cl III(b), Letters Patent Relating to the Office of Governor-General, Commonwealth of Australia Gazette, No S179, 9 September 2008. An example of the temporary absence from office of a Governor-General occurred in May 2003. A plaintiff in a civil lawsuit alleged that she had been raped by the Governor-General (Peter Hollingworth). The Governor-General announced that he would stand aside from his position until the allegation was resolved. The former Letters Patent were amended to authorise the appointment of an administrator ‘in the event of the Governor-General having absented himself temporarily from office for any reason’. The most senior State Governor was appointed as administrator. After the death of the plaintiff, the court dismissed the lawsuit. The Governor-General resigned soon afterwards because of ongoing controversy regarding his handling of child sexual abuse by priests when he had been Archbishop of Brisbane. For the background, see Smith, 2005, pp 75–80. In appointing an administrator the Monarch acts on the advice of the Australian Prime Minister. See Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [74]. The practice in relation to the appointment of administrators was formulated by the Australian Constitutional Convention as follows: Commissions to administrators under section 4 of the Constitution are issued and withdrawn on the advice of the Prime Minister of Australia and are issued only to State Governors. Where it is necessary for an administrator to act under his commission, the most senior available holder of a dormant commission assumes duty, seniority amongst State Governors being determined according to the dates of their appointment as State Governors. [Proceedings of the Australian Constitutional Convention (Adelaide Session), 1983, Vol 1, p xxxii.]

SESSIONS OF PARLIAMENT, PROROGATION AND DISSOLUTION 74 Section 5. 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.

SUMMONING PARLIAMENT 75 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 76 The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.

[page 54] See Quick and Garran, 1901, pp 404–10 (Revised ed, 2015, pp 450–9); Renfree, 1984, pp 156–60; Constitutional Commission, 1988, Vol 1, pp 168– 175; O’Brien (1990) 1 Public LR 17; Wyk in Papers on Parliament No 2, 1993, pp 20–1; O’Brien (1993) 4 Public LR 81; Marsh in The Constitution Papers, 1996, pp 177–80; Lane, 1997, pp 59–61; Miller (2009) 20 Public LR 100; Evans (2011) 22 Public LR 251; Olivier (2012) 40 FL Rev 69; Hanks, Gordon and Hill, 2012, pp 60–3; Evans and Laing, 2012, pp 177, 189–91; Wright, 2012, pp 228–31. 77 The powers of the Governor-General in relation to Parliament are set out in this section. Acting on the advice of the Ministry, the GovernorGeneral fixes the time for holding the sessions of Parliament. Under s 6 one session must be held in each year of the Parliament’s life, which is restricted to

a maximum of three years: s 28. The session is usually divided into biannual sittings. The one restriction upon the power of fixing the time of opening of Parliament is found in the second paragraph. After a general election (an election for all the members of the House of Representatives) the Parliament shall be summoned to meet not later than 30 days after the return of the writs. As s 32 provides that writs for the election of members shall be issued within 10 days from the expiry of a House or proclamation of its dissolution, an inordinate period of time cannot elapse between the end of one House and the beginning of the new Parliament. Section 5 empowers the Governor-General to prorogue Parliament, that is, to formally adjourn Parliament at the end of a session. This power is exercised on ministerial advice. See The Practices and Precedents of Recall of Parliament Following Prorogation, 21 March 2016 at [9], [23]–[31], available at http://www.gg.gov.au/prorogation-parliament. Since 1993 Parliament has been prorogued when the House of Representatives was dissolved. See, for example, Commonwealth of Australia Gazette, No S358, 30 August 2004; No S204, 15 October 2007; No S208, 17 October 2007; No S136, 19 July 2010; No G1196, 5 August 2013; Evans and Laing, 2012, p 190; Wright, 2012, pp 229, 812. On 29 occasions Parliament has been prorogued and recalled for a new session. The most recent occasions on which this was done were in February 1977 and March 2016. See Wright, 2012, p 811; Practices and Precedents at [15]; Commonwealth of Australia Gazette, No G380, 21 March 2016. This section also empowers the Governor-General to dissolve the House of Representatives. The only way in which the Senate can be dissolved is under s 57. See Victoria v Commonwealth (1975) 134 CLR 81 at 155; 7 ALR 1. 78 Under s 28 it is provided that the House of Representatives shall continue for three years from the first meeting of the House but may be sooner dissolved by the Governor-General. Consequently, a Prime Minister having the support of the House may request a dissolution before the threeyear period has elapsed. But it appears that the Prime Minister should supply the Governor-General with adequate grounds where the dissolution is obviously ‘premature’, that is, sought before mid-term.

The Prime Minister does not need to show that the Parliament has become unworkable in the sense that the legislative business is being adversely affected, for instance, because of a small majority for the government in the House. In 1977, the request for a premature dissolution was based on the ground of the need to synchronise elections for both Houses. See Dissolution of the House of Representatives by His Excellency, the Governor-General, on 10th November, 1977, Cth PP 1979 No 16; note (1977) 51 ALJ 739. In 1984, the Prime Minister was granted a dissolution on similar grounds. See note (1985) 59 ALJ 131; Lindell in McCormack and Saunders, 2007, pp 44–5. The reasons given for the various dissolutions six months or more before the end of term are summarised in Wright, 2012, pp 8–10. [page 55] The question has arisen as to what extent the Governor-General has any reserve power to refuse a request for dissolution from a government defeated on the floor of the House on a vote of confidence. It appears that in relation to requests for dissolution the Governor-General will ordinarily act on the advice of the Ministry. See Evatt, 1967, pp 50–4, 234–7; Crisp, 1983, pp 401– 2. Nevertheless, the availability of an alternative government is a factor to which the Governor-General may have regard in considering a request from a Prime Minister defeated on the floor of the House. See Hanks, Gordon and Hill, 2012, p 244. No government has been defeated in the House on a direct vote of confidence in the government. However, eight governments have resigned or advised that the House be dissolved after being defeated in the House on other matters. See Wright, 2012, p 324–5. Following the dismissal of the Whitlam government by the Governor-General on 11 November 1975 the House of Representatives passed a motion of no confidence in the newly commissioned Prime Minister Malcolm Fraser. The motion asked the Speaker to advise the Governor-General to call upon Gough Whitlam to form a new government. The Governor-General dissolved the House shortly before keeping a scheduled appointment with the Speaker. See Kerr, 1978, pp 368–9, 374;

Whitlam, 1979, pp 113–16, Kelly, 1995, p 270–3; Smith, 2005, pp 255–6; Wright, 2012, pp 326, 481–3.

YEARLY SESSION OF PARLIAMENT 79 Section 6. 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.

See Quick and Garran, 1901, pp 410–11 (Revised ed, 2015, pp 459–60); Sawer, 1956, p 179; Attorney-General’s Department, 1980, pp 15–16; Lane, 1997, p 62. 80 The guarantee in this section of an annual session of Parliament is essential for the appropriation of revenue for the public service and for providing a regular forum for the ‘redress of grievances’, that is, allowing members to effectively represent their electorates.

[page 56]

PART II — THE SENATE THE SENATE 81 Section 7. 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.

See Quick and Garran, 1901, pp 411–23 (Revised ed, 2015, pp 460–76); Attorney-General’s Department, 1980, pp 16–17; Howard, 1985, pp 86–94; Constitutional Commission, 1988, Vol 1, pp 177, 179; Lane, 1997, pp 63–71; Aroney in Moens, 2000, pp 30–5; Swenden, 2004, pp 72–83, 108–17; Hanks, Gordon and Hill, 2012, pp 50–4, 84–5; Williams, Brennan and Lynch, 2014, pp 656–60, 693–8. 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.

82 The Senate is to be chosen by popular election with the people of the State voting, until the Parliament otherwise provides, as one electorate. The number of the members of the Senate may be increased or diminished, subject to compliance with the requirement of a minimum of six senators for each original State, as well as maintaining equal representation for these States. The term of a senator is six years. It appears that it was the intention of the framers of the Constitution that

the Senate be a ‘State’s House’. See Quick and Garran, 1901, p 414 (Revised ed, 2015, pp 463–4). It has often been argued that the development of the party system has militated against the conception of the Senate as a State’s House. See Crisp, 1983, p 327; Swenden, 2004, pp 155–67, 187–92, 225–82. In any event, the Senate has today become an important House of revision and review, at least where the government of the day does not have a majority in the upper House. The place of the Senate in the legislative structure was discussed by Barwick CJ in Victoria v Commonwealth (1975) 134 CLR 81; 7 ALR 1. He described the legislative role of the Senate as follows (at 121–2): It is evident from the terms of the Constitution that the Senate was intended to represent the States, parts of the Commonwealth, as distinct from the House of Representatives which represents the electors throughout Australia. It is often said that the Senate has, in this respect, failed of its purpose. This may be so, due partly to the party system and to the nature of the

[page 57] electoral system: but even if that assertion be true it does not detract from the constitutional position that it was intended that proposed laws could be considered by the Senate from a point of view different from that which the House of Representatives may take. The Senate is not a mere house of review: rather it is a house which may examine a proposed law from a stand-point different from that which the House of Representatives may have taken.

Nevertheless, Senate representation of the people of Australia need not be restricted to people living in States. In Western Australia v Commonwealth (1975) 134 CLR 201; 7 ALR 159 by a 4–3 majority the High Court upheld Commonwealth legislation providing for Senate representation of the Territories. The majority held that s 7 does not exclusively define the composition of the Senate and that under s 122 of Senate representation could be given to the Territories: at 233–4, 269–70, 275, 281–3. In 1977 by a 5–2 majority the court declined to overrule this decision. See Queensland v Commonwealth (1977) 139 CLR 585 at 600, 603, 607, 608, 610; 16 ALR 487. Today the Australian Capital Territory and the Northern Territory are represented by two senators each. See Commonwealth Electoral Act 1918 (Cth) s 40.

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.

83 This paragraph provides that if Queensland became an original State (which it did) the Parliament of Queensland could make provision for dividing the State into divisions which could be represented by different senators. However, the Queensland Parliament was only to have this power until the Commonwealth Parliament had ‘otherwise provide[d]’. The Commonwealth Electoral Act 1918 (Cth) now provides that ‘Senators for the State of Queensland shall be directly chosen by the people of the State voting as one electorate’: s 39(1). The Act also provides that the State Parliament may not make laws under s 7 of the Constitution dividing the State into divisions: s 39(2). 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.

84 The effect of this paragraph is to establish the principle of equality of representation for the original States and thus to emphasise State representation in the Senate as compared with population representation in the House of Representatives. The number of such members can be changed subject to this limitation and to the requirement of a minimum of six senators for each original State. However, this section does not require equality of representation for subsequently admitted States. If a Territory were admitted as a State, the Commonwealth Parliament could fix a lower number of senators to represent that new State. Currently there are 76 senators, comprising 12 senators for each State and four Territory senators (two from each mainland Territory). 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.

[page 58] 85 The term for each State senator is six years taking account of the rotation principle laid down in s 13. The Territory senators are elected for terms which are tied to elections for the House of Representatives. See Commonwealth Electoral Act 1918 (Cth) ss 42, 43. This means that their terms will not exceed three years.

QUALIFICATION OF ELECTORS 86 Section 8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

See Quick and Garran, 1901, pp 423–5 (Revised ed, 2015, pp 476–8); Attorney-General’s Department, 1980, p 17; Lane, 1997, p 71; Hanks, Gordon and Hill, 2012, p 82. 87 The effect of this section is to ensure that the qualifications of electors for the Senate are the same as those for electors of the House of Representatives: see s 30. The latter part of this section was designed to prevent plural voting, which was common in the colonial electoral systems. See McGinty v Western Australia (1996) 186 CLR 140 at 281–2; 134 ALR 289; Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 at [47], [70]; Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 at [122], [345]–[346], [352]–[353]. In McGinty Toohey, Gaudron and Gummow JJ argued that universal suffrage was now required by the system of representative government or democracy embodied in the Constitution: at 201, 221–2, 286–7. In Langer v Commonwealth (1996) 186 CLR 302; 134 ALR 400 McHugh J argued that ‘the people’ in s 24 must now include women, and that it would not be open to Parliament to impose a property qualification for the franchise: at 342. See also Brennan CJ in McGinty at 166–7. On the other hand, in McGinty Dawson J suggested that less than universal suffrage would be permissible under ss 8 and 30: at 183.

In Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 Gleeson CJ considered that universal adult suffrage was now required by ss 7 and 24 of the Constitution: at [6]–[7]. Gummow, Kirby, Hayne and Crennan JJ held that ss 8 and 30 authorised the Commonwealth Parliament to provide for the disenfranchisement of certain categories of voters: at [41], [151]. (However, that authority is subject to limitations discussed below under s 24 of the Constitution.) In Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 French CJ indicated that universal adult suffrage was part of the content of the choice by the people that is protected by ss 7 and 24. While that content may be adjusted, it may not be reduced: at [18]. Crennan J stated that ss 7 and 24 would prohibit disenfranchisement based upon gender or race: at [356], [367].

METHOD OF ELECTION OF SENATORS 88 Section 9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

[page 59]

TIMES AND PLACES 89 The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

See Quick and Garran, 1901, pp 425–7 (Revised ed, 2015, pp 478–81); Attorney-General’s Department, 1980, pp 18–19; Constitutional Commission, 1988, Vol 1, pp 211–15; Lane, 1997, pp 71–2; Twomey, 2004, pp 823–7. 90 It is within the power of the federal Parliament to prescribe the method of choosing senators, but that method cannot vary between the States. Under

s 9 compulsory voting is a permissible method of choosing senators. See Judd v McKeon (1926) 38 CLR 380 at 383, 385, 390. A State Parliament also has the power to deal with this matter, subject to the overriding power of the federal Parliament. The ‘method of choosing senators’ includes matters usually found in an electoral Act, including the issue and return of electoral writs, nomination of candidates, electoral rolls, qualifications of electors, the mode of voting and the mode of counting votes (the ‘scrutiny’). See Quick and Garran, 1901, p 426 (Revised ed, 2015, p 480). These matters are dealt with in the Commonwealth Electoral Act 1918 (Cth). See ss 151–161, 283–286 (writs), ss 162–181 (nominations), ss 81–92 (rolls), ss 93–97 (qualifications of electors), Pts XV, XVA, XVB (postal, pre-poll and electronically-assisted voting), Pt XVI (polling), ss 263–282 (scrutiny). A State Parliament may also make laws for determining the times and places of elections of senators for the State. This State legislative power is an exclusive one. See Re Australian Electoral Commission; Ex parte Kelly (2003) 198 ALR 262; 77 ALJR 1307; [2003] HCA 37 at [13]. State Acts deal with the time and places of holding elections and the times to be observed in relation to the issue of writs. See Senators’ Elections Act 1903 (NSW); Senate Elections Act 1960 (Qld); Election of Senators Act 1903 (SA); Senate Elections Act 1935 (Tas); Senate Elections Act 1958 (Vic); Election of Senators Act 1903 (WA). Repealed State laws regarding Senate elections are listed in Aitken and Orr, 2002, pp 215–6 n 6. The views of the Australian Constitutional Convention regarding the procedures for holding Senate elections appear in Proceedings of the Australian Constitutional Convention (Adelaide Session), 1983, Vol 1, p lxxx.

APPLICATION OF STATE LAWS 91 Section 10. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.

See Quick and Garran, 1901, pp 427–8 (Revised ed, 2015, pp 482–3);

Attorney-General’s Department, 1980, p 19; Constitutional Commission, 1988, Vol 1, pp 211–15; Lane, 1997, pp 72–3; Twomey, 2004, p 823. [page 60] 92 This section provided for the application of State laws until the Commonwealth Parliament enacted legislation relating to the election of senators. The words ‘until the Parliament otherwise provides’ give the Commonwealth Parliament a much wider power than that conferred by s 9. The power conferred by this section extends to ‘elections’, not merely the method of choosing senators. This power supported a law requiring the signing of articles about election issues published at the time of an election. See Smith v Oldham (1912) 15 CLR 355 at 358, 362. See also the Mulholland case, discussed below under s 31.

FAILURE TO CHOOSE SENATORS 93 Section 11. The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.

See Quick and Garran, 1901, pp 428–9 (Revised ed, 2015, pp 483–4); Attorney-General’s Department, 1980, p 19; Constitutional Commission, 1988, pp 211–15; Lane, 1997, p 73. 94 This section must be read in conjunction with s 22 which provides that the presence of 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. This section is designed to ensure the prompt return of senators of the States. See Quick and Garran, 1901, p 429 (Revised ed, 2015, p 484). It is difficult to see how any State could fail to provide for its representation in the Senate in so far as the Commonwealth Electoral Act 1918 (Cth) and State Senate Elections Acts regulate procedural steps to be taken in the election of senators. Presumably this might occur if the Governor of a State

failed to certify the successful candidates under s 7, but it is difficult to envisage such an occurrence.

ISSUE OF WRITS 95 Section 12. The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution.

See Quick and Garran, 1901, pp 429–30 (Revised ed, 2015, pp 484–6); Brazil in Evans, 1977, pp 212–13; Sawer, 1977, pp 29–31; Attorney-General’s Department, 1980, p 20; Brazil and Mitchell, 1981, pp 367, 424–5 (nos 297, 333); Constitutional Commission, 1988, pp 211–15; Lane, 1997, p 73; Twomey, 2004, p 823; Evans and Laing, 2012, p 118. 96 The power to issue writs for the Senate is vested in the Governor of a State. No time is fixed for the issue of writs except in the case of a dissolution of the Senate (see s 57), when they must be issued within 10 days from the proclamation of the dissolution. The practice is that the Governor sets the same date and polling places as those for the election of the House of Representatives. See Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 at [92]. The issue of the writ by a State Governor would be an act taken by the State Governor acting formally on the advice of the State Executive Council but at the request of the Governor-General (acting on the advice of the federal Ministry). [page 61] In April 1974 the Queensland Governor, acting on the advice of the State Executive Council, issued writs for the election of senators at the normal periodical Senate election which was due before 1 July 1974. It appeared that the dates of nomination, polling and return were those requested by the federal government but that the writs were issued before the due date of issue of writs for other States.

The Commonwealth government disputed the issue of the writs for five senators instead of six, arguing that a sixth Senate vacancy had occurred in Queensland before the issue of the writs because of the disqualification of a Queensland senator (Senator Gair) under s 44(iv) or s 45(iii) of the Constitution. See Senate Hansard, 4 April 1974, pp 681–701; 8 April 1974, pp 721–51; Sawer, 1977, pp 29–35; Hanks in Evans, 1977, pp 191–4. This question was never determined as the periodical Senate election was overtaken by a double dissolution of both Houses. The Australian Constitutional Convention formulated the practice in relation to the issue of writs as follows: ‘The Governors issue writs for Senate elections pursuant to section 12 of the Constitution in time for the elections to be held on the agreed date’. See Proceedings of the Australian Constitutional Convention (Adelaide Session), 1983, Vol 1, p lxxx.

ROTATION OF SENATORS 97 Section 13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall 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 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 July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election. [s 13 altered, Act No 1 of 1907 s 2]

See Quick and Garran, 1901, pp 430–4 (Revised ed, 2015, pp 486–90); Attorney-General’s Department, 1980, pp 20–1; Constitutional Commission, 1988, Vol 1, pp 198, 209–10; Lane, 1997, pp 73–5; Ratnapala and Crowe, 2012, pp 87–8; Hanks, Gordon and Hill, 2012, p 59; Evans and Laing, 2012, pp 129–30. 98 This section gives effect to the principle that the Senate is a continuous body, the members of which, although they have a term of six years (namely,

twice that of a member of the House), must submit themselves for re-election at periodic intervals. To this end, the section institutes a system of rotation under which the places of one-half of the number of senators are vacated at three-yearly intervals. The first paragraph provided for the initial division of the Senate into two classes, the first class retiring at the end of the third year from the beginning of their term of service, the second group retiring at the end of the sixth year. In 1901 the Senate determined that [page 62] the senators representing each State should be allocated to two classes according to the number of votes received at the elections. The senators in the first class would retire at the end of their sixth year of service, and the senators in the second class at the end of their third year of service. See Moore, 1910, p 113. This practice has been followed by the Senate after double dissolutions. See Hanks, Gordon and Hill, 2012, p 59. 99 The term of a senator commences on 1 July following the date of their election. If the election is held near the end of the previous year the senators elected will not take their places until 1 July of the following year, the vacancies actually occurring on 30 June. The one exception is the case of a double dissolution when the term of service of a senator elected subsequent to such dissolution commences on 1 July preceding the date of their election. When such a dissolution occurs, the Senate must divide the senators so elected (that is, all the members of the Senate) into two classes in order to preserve the rotation principle laid down in the first paragraph. The term of the senators in one class will expire three years from 1 July of the year preceding the date of the ‘double dissolution’ election. Periodical elections must be held to fill the vacancies occurring at threeyearly intervals, the requirement under the second paragraph of s 13 being that they shall be held within one year before the places are to become vacant. This allows some leeway for the Ministry in making a decision as to the actual

date of a Senate election. It can take place at any time between 1 July preceding the time when the places of the senators are to become vacant and a date prior to 30 June of the following year. The actual date chosen must allow for compliance with prescribed electoral procedures in relation to the return of writs and the certification of the successful candidates. In recent years periodical Senate elections have been held at the same time as House of Representatives elections, though this is not constitutionally required.

FURTHER PROVISION FOR ROTATION 100 Section 14. Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation.

See Quick and Garran, 1901, p 434 (Revised ed, 2015, pp 490–1); Attorney-General’s Department, 1980, p 22; Lane, 1997, pp 73–5. 101 The number of senators for each State was increased to 12 by the Representation Act 1983 (Cth) s 3. A transitional provision of that Act also dealt with the manner in which places were to be vacated to maintain the rotation principle: s 5. The requirement of a division into two classes (Constitution, s 13) does not apply in this situation. However, in order to achieve regular rotation, the Parliament may diminish or extend the tenure of one or more of the senators.

CASUAL VACANCIES 102 Section 15. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting [page 63] 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 (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 a State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State had become vacant after that commencement. A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, 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) [page 64] 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 — (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. [s 15 substituted, Act No 82 of 1977 s 2.]

See Quick and Garran, 1901, pp 434–8 (Revised ed, 2015, pp 491–6); Attorney-General’s Department, 1980, pp 22–3; Crawford (1980) 7 Adel LR 224; Constitutional Commission, 1988, Vol 1, pp 191–4; Thomson (1992) 3 Public LR 149; Lane, 1997, pp 75–9; Newman, 1997; Round (1998) 7 Griffith LR 297; Twomey, 2004, p 265; Nethercote (2005) 17 Upholding the Australian Constitution 60 (electronic); Evans and Laing, 2012, pp 130–6; Faulkner and Orr, 2013, pp 523–6 (no 1624). 103 This section provides for the filling of casual vacancies in the Senate. These are vacancies occurring because of death, retirement, or other instances provided for by the Constitution (for example, absence under s 20). Its purpose is to save the time and expense of holding a Statewide election for the vacancy. This section allows the vacancy to be filled by a vote of both Houses (where applicable) of the Parliament of the State in which the vacancy occurs, the Houses sitting together. If the Houses are not in session then the right of appointment is conferred on the Governor of the State acting with the advice of the State Executive Council (that is, the State Cabinet). Such an appointment is temporary, and subject to ratification by the Houses of the State Parliament within 14 days from the beginning of the next session of Parliament. This power of the Governor exists only when Parliament is not in session. When Parliament is adjourned, can it be said to be not in session? In 1992 the Western Australian government took the view that during an adjournment the Parliament was nevertheless in session, though not sitting, so Parliament alone could make the appointment of a replacement senator. See Thomson (1992) 3 Public LR 149 at 150; Evans and Laing, 2012, pp 135–6.

In Vardon v O’Loghlin (1907) 5 CLR 201 it was held that a popular election was required to fill a vacancy occurring when the place of a senator was declared vacant because of irregularities in the election. The Court of Disputed Returns had found an election for senators in South Australia to be void. The Houses of Parliament of that State had purported to fill the vacancy under s 15: at 206. It was held that this action was a nullity. Section 15 did not apply to a vacancy occurring when an election was found to be void. The court held that in such a case a by-election must take place: at 211–12. In Re Wood (1988) 167 CLR 145; 78 ALR 257 the court held that where a candidate unqualified for election under s 16 is subsequently elected, that election is void. This does not give rise to a casual vacancy under s 15 because the candidate never validly began a term of service as senator: at 168. The use of the expression ‘becomes vacant’ in ss 19, 20, 37, 38 [page 65] and 45 clearly referred to a vacancy caused by a supervening event: at 168. The place of an unqualified candidate did not become vacant because of any supervening event — it was vacant because it had never been filled: at 169. The vacancy was to be ‘filled by the further counting or recounting of ballot papers cast for candidates’ in the election: at 169. Where a vacancy occurs in other ways, for example by death or resignation of a senator, then s 15 applies and empowers the State authorities to appoint a person to hold the place until the expiration of the term. In 1975 State Parliaments filled two casual vacancies with replacements who were not members of the same political party as the senators who had resigned. See note (1975) 49 ALJ 153; Hanks in Evans, 1977, pp 183–90; Sawer, 1977, pp 135–9. Following these incidents, s 15 was altered by constitutional amendment in 1977. The second paragraph of s 15 now requires that the person chosen or appointed shall belong to the same political party as that to which the former senator belonged when they were chosen, unless there is no member of that party available to be chosen or appointed.

However, there is no express requirement that the State authorities choose a particular nominee of a political party. See House Magazine, 29 August 1987, pp 7–15; Evans and Laing, 2012, pp 134–5. It may be possible for a State to require a panel of names to be submitted. The circumstances in which complete freedom of choice may be exercised by the State authorities are rare, and include a vacant place which had been occupied by an Independent or by a member of a political party which no longer exists. This provision contains the only reference within the Constitution to political parties. See Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209 ALR 582; [2004] HCA 41 at [216]. In that case Kirby J invoked this provision in support of the recognition of an implied freedom of association, at least in relation to the formation of political parties: at [285]. The amended wording of s 15 recognises that the State Parliaments may be unicameral or bicameral. See McGinty v Western Australia (1996) 186 CLR 140 at 292; 134 ALR 289. Challenges to the choice or appointment of a replacement senator pursuant to s 15 must be filed within 40 days of the notification of that choice or appointment. No proceedings may be brought after this time. See Commonwealth Electoral Act 1918 (Cth) ss 355(e)(iii), 358(1); Rudolphy v Lightfoot (1999) 197 CLR 500; 167 ALR 105; [1999] HCA 61 at [10]–[12]. The Act does not provide for the granting of an extension of time. See Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 408–9; 67 ALJR 818. The referendum proposal referred to in the last paragraph of s 15 was defeated, so this paragraph has no operation. See Aitken and Orr, 2002, p 217 n 10. The Constitutional Commission recommended the repeal of the last four paragraphs of s 15, which are transitional only. See Constitutional Commission, 1988, Vol 1, p 194. A list of casual vacancies since 1977 appears in Evans and Laing, 2012, pp 881–3. The Commonwealth Electoral Act 1918 (Cth) provides for the filling of casual vacancies of Territorial senators: s 44.

QUALIFICATIONS OF SENATOR

104 Section 16. The qualifications of a senator shall be the same as those of a member of the House of Representatives.

[page 66] See Quick and Garran, 1901, pp 439–40 (Revised ed, 2015, pp 496–7); Lane, 1997, p 79. 105 This section prevents the federal Parliament from differentiating between the qualifications of a senator and those of a member of the House of Representatives. The qualifications of senators and members are set out in Commonwealth Electoral Act 1918 (Cth) s 163(1). Under this provision a senator or member must be at least 18 years old, be an Australian citizen and entitled (or qualified) to vote at a federal election. In Re Wood (1988) 167 CLR 145; 78 ALR 257 it was stated that s 16 makes the qualifications laid down in the Commonwealth Electoral Act 1918 the qualifications of a senator, so that whatever the Parliament provides has the force of a constitutional requirement: at 162. This constitutional requirement is not fulfilled by the election of an unqualified candidate. The election and return of an unqualified candidate cannot confer upon that person the status of senator: at 163. It is not possible to validate retrospectively the election of a candidate who does not possess the qualifications required by s 16: at 164. 106 What are the consequences of such a void election? In Re Wood the court pointed out that the return must of necessity be treated as having some effect: at 162–3. It held that a Senate election is incomplete when an unqualified candidate is returned: at 164. A voting preference for an unqualified candidate is a nullity. However, the other preferences of those who voted for an unqualified candidate are valid. ‘It is as though the unqualified candidate were deceased’: at 166. A voting preference for an unqualified candidate is simply counted to the candidate next in order of preference. The election is ‘completed’ by a recount of ballot papers: at 169. The court rejected three alternative methods of election as inappropriate to the case of an unqualified senatorial candidate. A supplementary election

would be unsuitable because it would essentially involve preferential voting for a single member constituency, in contrast to the Senate’s proportional voting for a multiple member constituency: at 166. A new election for all senators in the State was inappropriate because there was no question as to the other senators’ qualifications to sit: at 167. The provision for casual vacancy in s 15 was not relevant because the candidate had never validly begun to serve as a senator: at 167. The ballot papers for Senate elections allow voters to choose a party group or to allocate preferences for all Senate candidates. Section 16 does not prohibit ‘the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket’. See McKenzie v Commonwealth (1984) 57 ALR 747 at 749; 59 ALJR 190.

ELECTION OF PRESIDENT 107 Section 17. 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.

See Quick and Garran, 1901, pp 440–1 (Revised ed, 2015, pp 498–9); Lane, 1997, p 79; Evans and Laing, 2012, pp 139–43. 108 Under this section the Senate has the power of selecting its President. The President must be an existing member. The President may be removed by vote of the Senate, and may resign their office in the prescribed manner. [page 67] A President who resigns is deemed to continue in office until a new President is chosen. See Parliamentary Presiding Officers Act 1965 (Cth) s 3. A President who ceases to be a senator because their term has expired is

deemed to continue as President until a new President is chosen: s 4 of the Act.

ABSENCE OF PRESIDENT 109 Section 18. Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.

See Quick and Garran, 1901, pp 441–2 (Revised ed, 2015, pp 499–500); Lane, 1997, p 79. 110

This section is self-explanatory.

RESIGNATION OF SENATOR 111 Section 19. A senator may, by writing addressed to the President, or to the GovernorGeneral if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

See Quick and Garran, 1901, p 442 (Revised ed, 2015, pp 500–1); Attorney-General’s Department, 1980, pp 24–5; Lane, 1997, pp 79–80; Evans and Laing, 2012, pp 130–2, 139; Faulkner and Orr, 2013, p 512 (no 1617). 112 A person is not constitutionally obliged to remain as a senator for the period for which they are elected. A senator may resign in the manner laid down by this section.

VACANCY BY ABSENCE 113 Section 20. 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.

See Quick and Garran, 1901, pp 442–3 (Revised ed, 2015, p 501); Lane, 1997, pp 79–80; Evans and Laing, 2012, pp 132, 174. 114

This is one of the ways in which the seat of a senator can become

vacant: absence for two consecutive months in the one session (unless they have obtained the permission of the Senate).

VACANCY TO BE NOTIFIED 115 Section 21. Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

[page 68] See Quick and Garran, 1901, p 443 (Revised ed, 2015, p 501); AttorneyGeneral’s Department, 1980, p 25; Lane, 1997, pp 79–80. 116 The procedure for notifying vacancies occurring in the Senate is laid down by this section. In so far as the State Governor issues the writs for a new election, the duty is imposed upon the President (or in their absence, the Governor-General) to notify the Governor of the vacancy. Such a vacancy may occur as a result of death, resignation, absence without leave, disqualification or as a result of a void election. See R v Governor of South Australia (1907) 4 CLR 1497 at 1509.

QUORUM 117 Section 22. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.

See Quick and Garran, 1901, p 443 (Revised ed, 2015, p 502); Lane, 1997, p 80; Evans and Laing, 2012, p 195–7. 118 This section set the quorum of the Senate at one-third of the whole number of the senators. This quorum was subject to parliamentary amendment. Parliament has now set the quorum at one-quarter of the whole number of senators. See Senate (Quorum) Act 1991 (Cth) s 3.

VOTING IN THE SENATE 119 Section 23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

See Quick and Garran, 1901, p 444 (Revised ed, 2015, pp 502–3); Lane, 1997, p 81; Evans and Laing, 2012, pp 142–3, 277; Faulkner and Orr, 2013, pp 598–9 (no 1656). 120 The method of voting is determined by a simple majority of members present and voting. The President is entitled to an ordinary vote but has no casting vote. The object of giving the President, unlike the Speaker, an ordinary vote is to ensure that the State which the President represents shall not ‘be deprived of its benefit of the constitutional privilege of equal representation. He is not given a casting vote as well, because that would give his State more than equal representation’. See Quick and Garran, 1901, p 444 (Revised ed, 2015, p 503). The Commonwealth Solicitor-General observed that, in contrast to the position of the Speaker of the House under s 40 of the Constitution, the President of the Senate thus exercises a deliberative vote but not a casting vote. See SG No 37 of 2010, 22 September 2010 at [37], available at http://resources.news.com.au/files/2010/09/22/1225928/018212-100922solicitor-general-opinion.pdf.

[page 69]

PART III — THE HOUSE OF REPRESENTATIVES CONSTITUTION OF HOUSE OF REPRESENTATIVES 121 Section 24. 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 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 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.

See Quick and Garran, 1901, pp 445–55 (Revised ed, 2015, pp 504–17); Attorney-General’s Department, 1980, pp 26–9; Howard, 1985, pp 77–86; Constitutional Commission, 1988, p 179; Lindell (1988) 11, 2 UNSWLJ 102; Lane, 1997, pp 82–8; Aroney in Moens, 2000, pp 35–41; Twomey (2000) 28 FL Rev 125; Gray (2007) 7 QUTLJJ 178; Ratnapala and Crowe, 2012, pp 89– 91, 93–102; Hanks, Gordon and Hill, 2012, pp 84–5, 96–101; Williams and Hume, 2013, pp 230–55; Clarke, Keyzer and Stellios, 2013, pp 728–37, 743– 57; Williams, Brennan and Lynch, 2014, pp 656–60, 664–88; Stellios, 2015, pp 550–2, 601–8. 122 This section determines the composition of the House of Representatives. It enshrines the principle that the House is both a national and democratic chamber by stipulating that it shall consist of members directly

chosen by the people of the Commonwealth. But a balance or nexus between the members of the House and the Senate is preserved by the requirement that the number of members of the House shall be, as nearly as practicable, twice the number of the senators. At present there are 148 members of the House and 76 senators. The second paragraph of s 24 contains a constitutional requirement that the number of members chosen in the several States shall be in proportion to the respective numbers of their people. This is designed to ensure that there shall be a relationship between State population and State representation. However, the High Court has held that s 24 does not require that State electoral divisions have the same number of electors. [page 70] In Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1; 7 ALR 593 it was held that the system of representative democracy embodied in the first paragraph of s 24 required that the members of the House be directly chosen by the people (rather than by an electoral college). However, that paragraph did not guarantee equal numbers of electors (or even persons) in the electoral divisions: at 21, 44, 56. The court considered that the effect of the second paragraph was to require a method of determination of the number of members in each State which ensured that such numbers were proportionate to the populations of the respective States. There is a minimum constitutional requirement of five members for each original State. This is an exception to the principle that the States should be represented in proportion to population. In McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 Gummow J observed that this requirement ‘effectively denied the possibility of “one vote, one value” at federation by arbitrarily boosting the value of votes in the smallest States’: at 276. The remainder of s 24 deals with the manner in which the number of members for each State is to be determined. This part is subject to parliamentary amendment. This matter is now dealt with by the Commonwealth Electoral Act 1918 (Cth).

Under the Act the Electoral Commissioner has the duty of determining the number of members of the House to be chosen in the several States and Territories at a general election: s 48(1). This determination is made one year after the first meeting of the House: ss 46(1)–(1A). It is based on the ascertainment of the numbers of people of the Commonwealth, the States and Territories in accordance with the latest statistics of the Commonwealth: s 46(1), (1B). The procedure for determining the number of members of each State is as follows: (a) a quota is ascertained by dividing the number of people of the Commonwealth, ascertained in the manner laid down, by twice the number of senators for the States; and (b) the number of people of the State is then divided by the quota: s 48(2). If on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State: s 48(2)(b). The Act also provides for the distribution of each State into electoral divisions: s 56. There is one member for each electoral division: s 57. Separate provision is made regarding the procedure for determining the number of members for the Territories: ss 48(2)–(2G). The Act provides for a special procedure known as a mini-redistribution, where a redistribution following on a new determination cannot be implemented in time for the due election: ss 76, 76A. 123 In McKinlay’s case, a majority of the High Court held that s 24 required that a new determination of members be made, on the basis of upto-date statistics, before each regular election for the House: at 29, 32, 52, 63. Where the House continued for its normal term of three years, the determination was to be made within that period. In so far as the Commonwealth Electoral Act 1918 (Cth) did not impose a duty to redistribute, namely an obligation to increase, decrease and to rearrange the State’s electoral divisions, a redistribution might be postponed indefinitely; and consequently, a determination under the Representation Act might not take effect. The Parliament could provide that a redistribution was to take effect following a determination, provided that it was ensured that the redistribution would follow directly upon the determination. See generally Williams, Brennan and Lynch, 2014, pp 677–88.

[page 71] In McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 Brennan CJ found it unnecessary to consider the correctness of the McKinlay decision: at 175. Dawson J described the reasoning in McKinlay as ‘compelling’: at 188–9. Toohey J distinguished McKinlay on the ground that most of the judgments in that case had considered the compatibility of inequality of voting power with s 24 of the Constitution, but not with the system of representative democracy embodied in the Constitution: at 205. Gaudron J considered that McKinlay was ‘not authority for the proposition that the Constitution provides general authority for continuing significant malapportionment between electorates’: at 219. Gummow J held that McKinlay remained authoritative in its interpretation of s 24: at 279. In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; 108 ALR 577 McHugh J instanced as ‘blatant’ infringements of ss 7 and 24 the introduction of an electoral college to elect the House of Representatives and the Senate or a prohibition upon the election of members of lawful political parties to Parliament: at 227–8. He further commented (at 230–1): The “share in the government which the Constitution ensures” would be but a pious aspiration unless ss 7 and 24 carried with them more than the right to cast a vote. The guarantees embodied in ss 7 and 24 could not be satisfied by the Parliament requiring the people to select their representatives from a list of names drawn up by government officers.

In Langer v Commonwealth (1996) 186 CLR 302; 134 ALR 400 a statutory requirement of full preferential voting was held to be consistent with s 24: at 317, 333, 340–2, 349. Brennan CJ stated that s 24 ‘does not limit the Parliament’s selection of the method of voting by which a voter’s choice is made known so long as the method allows a free choice’: at 317. McHugh and Gummow JJ held that s 24 did not guarantee voters a ‘personal right’ to vote for the candidate of their choice: at 341, 343, 349. For discussions of this case, see Walker and Dunn (1996) 20 MULR 909; Twomey (1996) 24 FL Rev 201. See similarly, Ditchburn v Divisional Returning Officer (1999) 165 ALR 151; [1999] HCA 41 at [7]. In Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209

ALR 582; [2004] HCA 41 the Commonwealth Electoral Act provided (firstly) that a political party would only be registered if it had at least 500 members or a representative in the federal Parliament. Secondly, the Act also provided that no two or more political parties could use the same person in satisfying the 500 member requirement, that is, the membership could not overlap: at [1]. Registration of a party ensured federal funding and the inclusion of the party name on ballot papers. A representative of the Democratic Labor Party challenged these two legislative requirements as violating the constitutional command that Parliament be directly chosen by the people. It was argued that these legislative requirements impaired the making of an informed choice by voters and unreasonably discriminated between electoral candidates: at [17]. Gleeson CJ indicated that the constitutional requirement of a direct choice was broader than simply precluding choice by an indirect method such as an electoral challenge. However, Parliament has a wide discretion in determining the electoral system. Both legislative requirements were consistent with a direct choice: at [26]. McHugh J held that the legislative requirements assisted the free choice of electors by protecting them against misleading party registrations: at [80]. Gummow and Hayne JJ held that these requirements protected the system of federal funding of political parties by preventing the registration of ‘front’ parties with tiny memberships: at [162]. [page 72] Kirby J also held that the direct choice requirement prohibited more than election by electoral college: at [218]. By contrast, Callinan appeared to suggest that ss 7 and 24 were primarily directed to ensuring that elections were not conducted through an electoral college: at [325]. Heydon J stated that the two legislative requirements assisted the making of an informed choice by voters: at [351]. For discussions of this case, see Head (2006) 10 U W Syd LR 171; Williams, Brennan and Lynch, 2014, pp 688–93. In Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007]

HCA 43 the court considered the validity of the disenfranchisement at federal elections of all sentenced prisoners. Between 2004 and 2006 prisoners who were serving a sentence of three or more years were disenfranchised. In 2006 the electoral law was amended so that anyone serving any term of imprisonment was disenfranchised: at [9], [74]. By a 4–2 majority the court held that the 2006 amendment was invalid. Gleeson CJ stated that the Constitution allows Parliament to determine exceptions to universal adult suffrage, but its scope of choice is not unlimited. The words ‘chosen by the people’ require that disenfranchisement of ‘any group of adult citizens’ must be justified by a ‘substantial reason for exclusion’: at [7]. The definition of the disenfranchised group must ‘have a rational connection with the identification of community membership or with the capacity to exercise free choice’: at [8]. Such a rational connection could include ‘conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civil right’: at [8]. Those of unsound mind or those who commit treason are examples of justified reasons for disenfranchisement: at [9]. There was no necessary inconsistency between imprisonment and voting. Unsentenced prisoners awaiting trial retained the franchise. Exclusion from the federal franchise could not be justified as a further punishment for a breach of State law: at [10]. A heavy fine does not lead to disenfranchisement: at [11]. Committing a serious offence may justify temporary disenfranchisement: at [12]. Disenfranchisement of those serving a sentence of three or more years was constitutionally valid: at [19], [25]. Section 44 of the Constitution disqualifies from membership of the Senate or House of Representatives any person serving a sentence of one year or longer. By so providing, s 44 indicates that sentence to a term of imprisonment, no matter what the offence or length of sentence, does not in every case show serious criminal misconduct. Under the 2006 amendments the qualifications for a voter were more demanding than those for being a member of Parliament: at [20]. The link between serious criminality and imprisonment is missing in the case of short-term prisoners. Many such prisoners may not have had the advantage of non-custodial sentencing alternatives: at [23]. By ‘abandoning any attempt’ to limit disenfranchisement to those who had committed serious

crimes, the 2006 amendments lacked the rational connection required to justify the disenfranchisement under the constitutional requirement that the Parliament be ‘chosen by the people’: at [24]. Gummow, Kirby and Crennan JJ stated that imprisoned citizens remained members of the Australian community. Imprisonment does not extinguish their interest in and duties towards society and its government: at [84]. Disenfranchisement must be for a ‘substantial reason’. Such a reason must be ‘reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government’: at [85]. Disenfranchisement of those of unsound mind passes this test since it ‘protect[s] the integrity of the electoral process’: at [88]. [page 73] The 2006 amendments applied irrespective of the offence committed, length of sentence or personal circumstances of the prisoner. The disenfranchisement applied irrespective of culpability. The criteria for disenfranchisement of electors was stricter than those for disqualification of Parliamentarians: at [90]. Many prisoners are sentenced to short terms. Poor, homeless and mentally ill prisoners have lesser access to alternative non-custodial sentencing options: at [91]. The 2006 amendments disenfranchised prisoners with no regard to the shortness of their term, mandatory sentencing or offences of strict liability: at [93]. The disenfranchisement of all those sentenced to any term of imprisonment was not ‘reasonably appropriate and adapted … to the maintenance of representative government’: at [95]. However, the disenfranchisement of those serving terms of three years or longer was valid: at [98]. It differentiated between serious criminality and less serious criminal misconduct: at [102]. For discussions of this case, see Gray (2007) 7 QUTLJJ 178; Williams, Brennan and Lynch, 2014, pp 664–9. In Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 amendments to the electoral law provided that those who sought

enrolment as an elector were required to enrol by the day that writs were issued for a federal election. Those who had changed address were required to transfer their enrolment details before the closure of the rolls for the federal election: at [3], [52]. The rolls were closed three working days after the issue of the writs: at [53]. Those who did not meet these deadlines were not entitled to vote at that election. Prior to these amendments the electoral law had provided a seven day grace period in which to enrol or transfer enrolment. Under the amendments the grace period for enrolment disappeared and the grace period for change of enrolment was considerably shortened: at [3], [61]. Before the amendments a large number of people had enrolled or transferred their enrolment during the seven day grace period: at [63]. By a 4–3 majority the court held that the amendments were invalid. French CJ held that denial of enrolment to those qualified as electors will only be valid ‘if it serves the purpose of the constitutional mandate’ of direct choice by the people: at [1]–[2]. A law will be invalid if its adverse impact upon the exercise of the right to vote is disproportionate to its furtherance of the constitutional mandate: at [2], [25]. The challenged law affected the exercise of the right to vote: at [24]. The court considers the effect of the change made by the amendment: at [25]. The amendments did not address any existing problem of electoral fraud. Prior to the amendments the Electoral Commission had been able to process enrolments within the grace period and had actually encouraged enrolment during that period: at [75]. The legal effect of the amendments was to reduce the opportunities for enrolment and transfer of enrolment. The practical effect of the amendments was to prevent a large number of persons from voting at a federal election. That was a considerable detriment to the constitutional mandate: at [78]. ‘[T]he heavy price imposed by the Amendment Act in terms of its immediate practical impact upon the fulfilment of the constitutional mandate was disproportionate to the benefits of a smoother and more efficient electoral system to which the amendments were directed’: at [78]. Gummow and Bell JJ held that the words ‘chosen by the people’ mean ‘the share of individual citizens in political power by the means of a democratic franchise’: at [121]. The choice of a system of voting and the safeguards for the efficacy of that system are ‘not an end in itself.’ They are the ‘means to the

end of making elections as expressive of the will of the majority of the community as proper practical considerations permit’: at [132]. [page 74] Failure to fulfil the requirements for enrolment led to denial of the right to vote at the election. Otherwise qualified electors were disqualified from participation at the election. The amendment failed as a means to the end of making elections as expressive of the majority will as practically possible: at [154]. A substantial reason for the disqualification must be shown: at [157]. There must be a rational connection between the disqualification and the constitutional imperative of choice by the people: at [161]. Seeking to prevent electoral fraud in the absence of any prior systemic problem was not a substantial reason for the disqualification: at [167]. Crennan J held that the amendments excluded otherwise qualified persons from the right to vote at a federal election. Maintaining the integrity of the electoral roll was a purpose that was consistent with the choice by the people protected by ss 7 and 24: at [381]. There was also no evidence that eliminating the previous 7 day grace period had reduced electoral fraud: at [382]. It had not been demonstrated that the amendments were necessary or appropriate for maintaining the integrity of the electoral rolls. The Electoral Commission had been able to process enrolments during the previous grace period. There was no evidence of systemic electoral fraud. Discouraging late enrolments by disqualification did not accord with the importance of the franchise for the citizen’s participation in the political process of the nation. The risk of systematic fraud had not been substantiated. The purported justification for the amendments was not a substantial reason for the disqualification of a large number of electors: at [384]. For discussions of this case, see Orr (2011) 22 Public LR 83; Twomey (2012) 31 UQLJ 181; Williams, Brennan and Lynch, 2014, pp 669–77.

The implied freedom of political communication

123A See Winterton (1986) 16 FL Rev 223; Donaghue (1996) 24 FL Rev 133; Goldsworthy (1997) 23 Mon ULR 362; Rosenberg and Williams [1997] Sup Ct Rev 439; Aroney, 1998; Stone (1998) 26 FL Rev 219; Stone (1999) 23 MULR 668; Taylor (2000) 11 Public LR 274; Kirk (2000) 24 MULR 645; Stone in Stone and Williams, 2000, pp 1–20; Kirk (2001) 25 MULR 24; Stone (2001) 25 MULR 374; Meagher (2004) 28 MULR 438; Aroney (2005) 28 UNSWLJ 833; Meagher (2005) 28 UNSWLJ 30; Lee in Groves, 2005, pp 59–81; Jackson (Winter 2006) Bar News (NSW) 28; Buss (2006) 34 FL Rev 421; Meagher (2008) 29 Adel LR 175; Goldsworthy (2011) 30 UQLJ 9; Meagher (2011) 30 UQLJ 119; Stone (2011) 30 UQLJ 79; Ratnapala and Crowe, 2012, pp 412–23; Twomey (2012) 35 UNSWLJ 625; Hanks, Gordon and Hill, 2012, pp 623–35; Williams and Hume, 2013, pp 161–218; Pyke, 2013, pp 466–81; Keyzer, 2013, pp 317–42; Clarke, Keyzer and Stellios, 2013, pp 94–5, 1210–62; Gerangelos et al, 2013, pp 973–1101; Joseph and Castan, 2014, pp 478–524; Williams, Brennan and Lynch, 2014, pp 1259– 1336; Aroney, Gerangelos, Murray and Stellios, 2015, pp 355–76; Stellios, 2015, pp 552–96. 124 The High Court has recognised that the Constitution embodies an implied freedom of political communication. The court has often emphasised that this freedom is not absolute. See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561; 145 ALR 96; Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; 259 ALR 197; [2013] HCA 3 at [210], [222], [224]; Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 at [103]–[104], [267], [274], [324]; McCloy v New South Wales (2015) 325 ALR 15; 89 ALJR 857; [2015] HCA 34 at [69], [121], [305]. The freedom is not a personal right of individuals, but a limitation upon the exercise of legislative and executive powers in curtailment of the freedom. See Lange at 560; McClure [page 75] v Australian Electoral Commission (1999) 163 ALR 734; 73 ALJR 108; [1999] HCA 31 at [28]; Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1; [2012] HCA 2 at [54], [80]; Attorney-General (SA) at [166], [220], [222], [224]; Monis

at [266], [273], [324]; Unions NSW v New South Wales (2013) 252 CLR 530; 304 ALR 266; 88 ALJR 227; [2013] HCA 58 at [30], [36], [109], [119], [166]; Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35 at [104], [198]; McCloy at [29]–[30], [119], [317]. In determining whether a law infringes the implied freedom, the focus of inquiry is ‘how the provision affects the freedom generally, rather than a particular person’. See Tajjour at [104]; see also Unions NSW at [36]. In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; 108 ALR 577 the High Court first implied a freedom of communication in relation to political affairs from the system of representative democracy which the Constitution creates, particularly through ss 7 and 24. Mason CJ, Deane, Toohey, Gaudron and McHugh JJ invalidated a federal statute prohibiting political advertising on television and radio during election campaigns as an infringement of this implied freedom: at 145–6, 174–5, 220– 1, 238–41. Brennan J largely upheld the law, arguing that it was proportionate to the legitimate aim of reducing corruption in the political process: at 161–2. Dawson J upheld the law in its entirety, recognising only a very limited implication: at 187. Several different rationales for making such an implication emerged from the judgments of the majority. Most of the Justices referred to a miscellany of sections as establishing the system of representative democracy from which a freedom of communication in relation to that system was necessarily implied. The clearest statement of a definite textual basis for making such an implication came from McHugh J (at 227): … [t]he proper conclusion to be drawn from the terms of ss 7 and 24 of the Constitution is that the people of Australia have constitutional rights of freedom of participation, association and communication in relation to federal elections.

He went on to say that the vote of the electors which the Constitution requires is an informed vote, which necessitates freedom of communication: ‘subject to necessary exceptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or the House of Representatives’: at 232. As the reference to necessary exceptions make clear, these rights are not absolute: see also at 234–5. Mason CJ was less precise regarding the source of these rights. He said (at

139): Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.

Gaudron J argued that ss 7 and 24 ‘predicate and, in turn, are predicated upon a free society governed in accordance with the principles of representative parliamentary democracy’: at 210. Like McHugh J, Gaudron J also discerned several implied freedoms (at 212): The notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and, perhaps, freedom of speech generally. But, so far as free elections are an indispensable feature of a society of that kind, it necessarily entails, at the very least, freedom of political discourse.

125 The Australian Capital Television case must be read in conjunction with Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681, as this latter case contained the major statement of the views of Brennan, Deane, and Toohey JJ regarding the implied freedom. In the Nationwide News case, Brennan, Deane, Toohey and Gaudron JJ relied upon the implied [page 76] freedom to strike down a prohibition upon the making of statements calculated to bring the Industrial Relations Commission or any of its members into disrepute: at 52–3, 78–9, 94–5. The other Justices (Mason CJ, Dawson and McHugh JJ) struck down the law on other grounds: at 34, 91, 103. Brennan J (at 48–9) grounded the implication in the essential elements of representative democracy: … [w]here 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 recognised 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.

Deane and Toohey JJ made similar remarks, founding their implication in the doctrine of representative government. They said that ‘there is to be discerned in the doctrine of representative government which the

Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth’: at 72–3. 126 Many cases on the implied freedom followed in quick succession. In Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1 a 4–3 majority held that the implied freedom included discussion of the conduct and performance of politicians and of their suitability for parliamentary office. The freedom could be pleaded as a defence in defamation actions brought by politicians and others engaged in public debate, and to this extent it overrode State defamation laws: at 137, 140–1, 187–8. In Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80 it was recognised that the freedom extended to the discussion of State political and public affairs: at 232, 257. The implied freedom also had a counterpart in the provisions relating to representative government in the Western Australian Constitution Act 1889: at 233–4, 236. In Cunliffe v Commonwealth (1994) 182 CLR 272; 124 ALR 120 the court upheld a law requiring the registration of persons who provided immigration assistance for reward. Under the law unregistered persons were prohibited from charging for the giving of such assistance. While it was recognised that the freedom protects communications relating to public affairs (including administration and adjudication), the court held that the freedom was subject to appropriate regulation under the aliens power: at 328–9, 363–5, 380–4, 395. In Langer v Commonwealth (1996) 186 CLR 302; 134 ALR 400 it was held that a prohibition upon the publication of material with the intention of encouraging informal voting did not infringe the implied freedom: at 318–19, 333–5, 340, 349–51. For discussions of this case, see Walker and Dunn (1996) 20 MULR 909; Twomey (1996) 24 FL Rev 201. In Muldowney v South Australia (1996) 186 CLR 352; 136 ALR 18 the court held that a similar, though not identical, provision in State legislation would not infringe any implied freedom of political communication under the State Constitution: at 366–7, 374, 377–8, 381, 387–8.

The Lange test 127 The formulation of the implied freedom was modified by the unanimous joint judgment of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96. The court argued that the Constitution creates a system of representative and responsible government: at 557. The major features of the system of representative government are provided for in ss 1, 7, 8, 13, 24, 25, 28 and 30 of the [page 77] Constitution: at 557. Responsible government is provided for in ss 6, 49, 62, 64 and 83 of the Constitution: at 558–9. Referring to ss 7 and 24, the court held that ‘[f]reedom of communication on matters of government and politics is an indispensable incident’ of the system of representative government which is created by the Constitution: at 559. The court stated (at 560): … ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.

The implied freedom of communication is not restricted to the election period, and extends to the period between elections: at 561. The implied freedom is not absolute: at 561. It will not be infringed by a law enacted to secure a legitimate end if the law fulfils two conditions: at 561. The first condition is that ‘the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’: at 561–2. The second condition is that ‘the law is reasonably appropriate and adapted to achieving that legitimate object’: at 562. Both statute law and common law must conform to the Constitution: at 566. The Constitution gives effect to the system of representative government ‘only to the extent that the text and structure of the Constitution establish it’:

at 566–7. In determining whether a statute or the common law infringes the implied freedom two questions are asked. First, does the law under challenge ‘effectively burden freedom of communication about government or political matters either in its terms, operation or effect’? Second, if so ‘is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’?: at 567. The implied freedom is infringed if the answer to the first question is yes and the answer to the second question is no: at 568. (Note that in subsequent cases the court reformulated the second question: see paras [128A] and [128G] below. The two questions also became known as the first and second ‘limbs’ of the test). The court held that the Australian common law and New South Wales statute law regarding defamation effectively burdened freedom of communication about government and political matters: at 568. The common law regarding defamation constituted an ‘unreasonable restraint’ upon freedom of communication about government and political matters: at 570. Qualified privilege at common law should be developed to accommodate constitutional requirements: at 570–1. A ‘communication made to the public on a government or political matter’ would now be a category of qualified privilege: at 571. The defendant must establish that their conduct in publishing the material was reasonable in the circumstances: at 573–4. The court has distinguished the implied freedom from a right of political communication. In Levy v Victoria (1997) 189 CLR 579 at 622; 146 ALR 248 McHugh J summarised the distinction as follows: The freedom protected by the Constitution is not … a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. … our Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters. But, as Lange shows, that right or privilege must exist under the general law.

[page 78]

128 In Levy v Victoria (1997) 189 CLR 579; 146 ALR 248 the High Court examined the constitutional validity of a Victorian regulation which prohibited entry into hunting areas by persons who did not hold a game licence. A protester against hunting argued that this regulation violated the implied freedom of political communication. The court held that conduct that expresses an idea about federal politics and government falls within the implied freedom of communication: at 594–5, 613, 622–3, 638, 641. The court further held that the regulation was constitutionally valid since it was reasonably appropriate and adapted to the protection of public safety. The protection of public safety is a legitimate object for which freedom of communication may be restricted: at 599, 609, 614–15, 619, 627, 647–8. For a discussion of this case, see Twomey (1997) 19 Syd LR 76. Similarly, the implied freedom does not provide immunity for trespass to government property. See Meyerhoff v Darwin City Council (2005) 16 NTLR 222; [2005] NTCA 8 at [23]. In Brown v Members of the Classification Review Board of the Office of Film and Literature (1998) 82 FCR 225; 154 ALR 67; SLR [1998] HCATrans 462 an article about shoplifting methods had been refused censorship classification because it provided instruction in criminal activity. The majority of the Federal Court held that an article about shoplifting was not political in character: at 246, 258. Applying Lange, the court unanimously held that the refusal of classification did not infringe the implied freedom because the censorship classification law under challenge was compatible with representative government and was reasonably appropriate and adapted to the achievement of a legitimate end, the prevention of crime: at 238–9, 246, 258. In McClure v Australian Electoral Commission (1999) 163 ALR 734; 73 ALJR 108; [1999] HCA 31 it was held that the implied freedom is a freedom from governmental action. There is no positive duty on the part of government (or others) to provide the means of communication: at [20]. In Roberts v Bass (2002) 212 CLR 1; 194 ALR 161; [2002] HCA 57 the court considered the law of defamation as applied to communications during an election campaign. Gaudron, McHugh and Gummow JJ held that the implied freedom required that common law qualified privilege applies to communications by electors, candidates and their campaign workers to the

electorate regarding the suitability of a candidate for State parliament: at [73]. In particular, the implied freedom required that campaign workers distributing how to vote cards be protected by qualified privilege though they have no positive belief in the truthfulness of the statements in the electoral material: at [100], [102]. For a discussion of this case, see Lindell (2003) 14 Public LR 201. 128A In Coleman v Power (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 the court modified the Lange test: at [93], [196], [211]. The second question was reformulated as follows: ‘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?’ In the new formulation, the words ‘in a manner’ replaced the words ‘the fulfillment of’. The reformulated test better expresses the necessity that both the end and manner are compatible with representative and responsible government: at [93]–[96]. The court declined to reformulate the implied freedom in the manner supported by several State governments: at [100], [196], [212]. These States had argued for a more deferential test, so that legislation would be upheld if it was ‘reasonably capable of being seen as appropriate and adapted’, rather than the more demanding test of actually being ‘reasonably appropriate and adapted’: at [87]. [page 79] In this case the appellant distributed pamphlets that contained allegations of police corruption: at [1]. He was arrested on a charge of using insulting language in a public place: at [3]. The court upheld the validity of the statute under which he had been charged. Gleeson CJ pointed out that the right of a person to air their grievances in public may conflict with the right of others to peacefully enjoy a public place. A balance must be drawn between these two interests. The prohibited activity constituted an interference with the right of others to use the public place and the law validly protected public order: at [32]. Gummow and Hayne JJ construed the challenged provision as prohibiting

insults likely to provoke violence. The aim of preventing violence in public places was compatible with representative and responsible government: at [198]. If the provision was not construed in that way, the provision would not pass the second limb of the Lange test: at [199]. Kirby J also construed the provision as prohibiting insults likely to provoke violence, that is, ‘fighting words’. Construed in this manner, the statute did not infringe the implied freedom. The provision would foster a climate where debate can occur free from threats of violence: at [256]–[257]. Callinan J indicated his skepticism about Lange: at [289]. He held that the legislation protected peaceful movement and expression in public places free from insult and abuse: at [297]. The provision did not threaten freedom of political communication: at [298]. Insulting words in public places did not ‘throw light’ upon political matters: at [299]. He suggested that, as in a defamation case, the defendant must be required to show that it was reasonable to have made the statements that were sanctioned. Insulting words in a public place were inherently unreasonable: at [300]. Heydon J held that using insulting words in a public place was inconsistent with an ordered democratic society: at [324]. The outcome sought by the legislation enhanced constitutional government by seeking to deter insults in public places: at [325]. Citizens were free to use insults in private, and could debate in public provided they refrained from insult: at [326]. Very often more than one legislative solution will satisfy the ‘reasonably appropriate and adapted’ standard. The test does not require that the law be the best solution. It only requires that the law be a ‘reasonably adequate attempt’ to address the problem: at [328]. Insulting words damage the political process: at [332]. For discussions of this case, see Douglas (2005) 16 Public LR 23; Arcioni (2006) 33 FL Rev 333. 128B In Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209 ALR 582; [2004] HCA 41 the Commonwealth Electoral Act provided that a political party could only be registered if it had at least 500 members or a representative in the federal Parliament. No two or more political parties could use the same person in satisfying the 500 members requirement, that is, their memberships could not overlap: at [1]. Registration of a party ensured federal funding and the inclusion of the party name on ballot papers.

A representative of the Democratic Labor Party challenged these requirements as infringing the implied freedom. Gleeson CJ pointed out that the communication of the party name on ballot papers was done at the request of a registered party. He held that the law burdened freedom of communication about political matters: at [30]. Parliament legitimately concluded that federal funding of political parties necessitated party registration and that some minimum level of support for a party should be required. The no overlap rule was intended to prevent circumvention of the 500 members requirement: at [41]. These requirements were consistent with the implied freedom. McHugh J held that the ballot paper was a communication about political matters: at [94]. The communication of candidate affiliation on the ballot paper was made at the request of [page 80] political parties. It was thus a communication between the candidate and electors: at [97]. The implied freedom could only be infringed if it burdened a freedom of communication that existed independently of the challenged statute: at [107]. Here the right for a political party to be listed on the ballot paper arose solely from the Act. It was not a right that otherwise existed under legislation or common law: at [105], [110]. The implied freedom was thus not violated: at [112]. Gummow and Hayne JJ noted that representative government was an evolving institution, as was indicated by the frequent use within the Constitution of the phrase ‘until the Parliament otherwise provides’: at [155]. They also held that the implied freedom could only be infringed if the law burdened a freedom that existed independently of the impugned law: at [184]. The right to be listed on the ballot paper did not exist independently of the challenged Act: at [186]–[187]. Kirby J held that the burden upon freedom of political communication was constitutionally permissible: at [274]. The requirements protected voters against deception and deterred the formation of front political parties: at [292].

Callinan J held that the right to be listed on the ballot paper derived only from the statute. The implied freedom was thus not violated: at [337]. Heydon J took a similar view, holding that the right arose solely from the challenged law: at [354]. He also held that the ballot paper did not constitute a political communication: at [355]. In any event, the law satisfied the second limb of the Lange test: at [357], [362]. For discussions of this case, see Head (2006) 10 U W Syd LR 171; Arcioni (2006) 33 FL Rev 333. In APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44 the court upheld a State regulation prohibiting advertising of legal services regarding personal injury actions. Gleeson CJ and Heydon J held that the regulations prohibited commercial advertising, not communications about political issues: at [28]. Such restrictions did not infringe the implied freedom: at [29]. McHugh J held that the implied freedom did not extend to the exercise of the federal judicial power: at [63]–[64]. The courts do not take part in the system of representative and responsible government. The advertising of legal services thus did not concern governmental matters, and did not violate the implied freedom: at [66]. Gummow J also held that the advertising of legal services did not concern political or governmental matters: at [214], [216], [220]. If an advertisement also included political commentary, the advertisement would be prohibited not for its political content but for its advertising content: at [218]–[219]. Hayne J held that the prohibited communications did not relate to political or governmental matters: at [376]. The laws controlled an activity (advertising). The laws did not restrict political communication about whether that activity should be controlled: at [380]. A political comment could be made about personal injury claims provided it contained no advertising content: at [382]. Callinan J held that the advertising of legal services was not a communication about governmental or political matters: at [453], [457]. In general commercial speech will not be protected by the implied freedom: at [460]. 128C In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207; 235 ALR 750; [2006] VSCA 284 a majority of the Victorian Court

of Appeal considered that a State law prohibiting the incitement of religious hatred did not infringe the implied freedom. Nettle JA noted that it was unnecessary to decide the point, but did so in case the decision was appealed: at [111]. The statute did not burden discussion about political matters. Even if [page 81] this conclusion was incorrect, the Act was appropriate and adapted to serve the legitimate end of preventing incitement of religious hatred and was consistent with the maintenance of the constitutional systems of representative and responsible government: at [113]. Neave JA reached a similar conclusion: at [203], [210]. In Hogan v Hinch (2011) 243 CLR 506; 275 ALR 408; [2011] HCA 4 a radio host identified released sex offenders in breach of suppression orders that had been issued under a State law: at [1], [56]–[57]. Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed that the exercise of the judicial power stands apart from the system of representative and responsible government: at [92]–[93]. The defendant had argued that his communications concerned the actions of the executive and legislature as well as the judiciary: at [94]. These Justices accepted that the suppression order provision effectively burdened freedom of communication about political matters: at [94]–[95]. However, the burden imposed was incidental rather than direct: at [95]. The suppression order provision was justified under the second limb of the Lange test. The provision was ‘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’: at [97]. It assisted the extended supervision of released offenders. The burden upon political communication would depend upon the width of a suppression order made in the light of the particular circumstances. The provision did not create an offence of strict liability: at [98]–[99]. French CJ pointed out that given the level of intergovernmental cooperation within Australia, it was difficult to identify subjects that would not be capable of giving rise to political discussion as matters of interest to the

federal government: at [48]. In the present case the offenders concerned had been listed on a national register set up under an intergovernmental agreement: at [48]. On some occasions the identity of an offender may be important in making a point about the supervision of released sex offenders. It is thus possible for a suppression order to burden political communication. However, the provision for suppression orders passed the second limb of the Lange test. The purpose of the law was community protection and the rehabilitation of offenders. In deciding whether to make a suppression order the court must take into account the public interest including freedom of expression: at [50]. In Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 a State law provided that if a Supreme Court judge was satisfied that members of an organisation associated for the purpose of serious criminal activity and that the organisation was a risk to public safety and order, the judge could declare the organisation to be a declared organisation: at [13]. The Supreme Court was authorised to issue control orders in relation to members of a declared organisation: at [16]. The High Court held that the law did not infringe the implied freedom of political communication. Gummow, Hayne, Crennan and Bell JJ pointed out that the challenged law was not concerned with political communication or association. The Act permitted the adjustment of control orders so as not to unreasonably burden freedom of political communication. No such adjustment was permitted for interim control orders. However, if a burden was placed upon political communication in such a case, the question would be whether the law ‘nevertheless … served a legitimate end of protection against the activities of criminal organisations and their members’: at [113]. French CJ and Kiefel J agreed with Gummow, Hayne, Crennan and Bell JJ: at [72]. [page 82] Heydon J stated that there was no ‘general freedom of communication’ under the Constitution, only that which was necessary for the system of

representative and responsible government. The challenged law was concerned with criminal activity not political communication: at [186]. 128D In Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1; [2012] HCA 2 the plaintiff had been convicted of rioting after an Aboriginal man died in police custody on Palm Island: at [4]. The parole legislation provided that a prisoner could be released on parole subject to conditions that the parole board ‘reasonably considers necessary (a) to ensure the prisoner’s good conduct; or (b) to stop the prisoner committing an offence’: at [12]. The plaintiff was released on parole subject to the conditions that he not attend public meetings on the island without the approval of his parole officer and that he receive no payment for speaking to the media: at [16]. Another statute provided that it was an offence to interview a prisoner, including a prisoner who had been released on parole. The plaintiff would commit an offence if he aided an interviewing journalist. The corrections authorities could grant permission for an interview: at [17]. The plaintiff challenged these statutory provisions. French CJ, Gummow, Hayne, Crennan and Bell JJ stated that all discretionary powers conferred by statute must be exercised in accordance with the Constitution: at [9]–[10]. However, they did not consider the validity of the parole conditions imposed upon the prisoner, which could be challenged in administrative law proceedings: at [24], [32]–[33]. The discussion of indigenous affairs fell within the implied freedom: at [26]. The first limb of the Lange test was satisfied: at [29]. Under the second limb of the test, the purpose of the prohibition upon interviewing prisoners was the ‘containment, supervision and rehabilitation of offenders’. In exercising its power to grant or refuse permission for an interview, the corrections authorities were required to have regard to the need to exercise their discretionary power in accordance with the Constitution: at [31]. The power to impose parole conditions was also to be exercised having regard to constitutional restraints: at [32]. The statutory provisions that prohibited interviewing prisoners and allowed for the imposition of parole conditions were valid: at [33]. Kiefel J agreed that the validity of the parole conditions should not be considered in this case, as they could be challenged in administrative law

proceedings: at [74]. The challenged provisions did not infringe the implied freedom: at [75]. The prohibition upon interviewing prisoners regulated the method by which the media could obtain interviews with prisoners. In deciding whether to grant permission the correctional authorities must take into account the implied freedom. A refusal of permission was subject to judicial review: at [88]. The burden upon the freedom was ‘not excessive’: at [90]. The provision that allowed the imposition of parole conditions was subject to a proportionality requirement and was not excessive: at [91]. Heydon J considered that a law did not effectively burden the freedom if the burden it imposed was ‘insubstantial’: at [54]. In his view the challenged provisions did not constitute a burden under the first limb of the Lange test: at [55]. He also upheld the parole conditions. The parole condition regarding public meetings applied only in a particular location. The plaintiff was free to communicate his message in other locations: at [59]. The parole condition regarding payment for media interviews did not prevent the plaintiff from making unpaid statements: at [60]. In Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; 259 ALR 197; [2013] HCA 3 a street preacher wished to preach and distribute religious literature in a pedestrian mall. A by-law prohibited preaching or distributing literature on a road without [page 83] the written permission of the local authority: at [1], [26], [28], [71]. The pedestrian mall was regarded as a road under State law: at [73], [165]. The court held that the by-law did not violate the implied freedom. French CJ held that the by-law effectively burdened freedom of political communication. Religious preaching could have a political content: at [67]. However, the by-law was reasonably appropriate and adapted to achieve a legitimate end. It was directed against unsolicited speech. Disapproval of the content of the speech was not a permissible ground for refusing permission to speak. The law permitted the distribution of literature by candidates during an election period: at [68].

Hayne J held that the challenged by-law effectively burdened freedom of political communication: at [133]. Applying the second limb of the Lange test, the objective of the law was to prevent obstruction of the roads: at [134]. That objective was compatible with the maintenance of the system of representative and responsible government: at [136]. The by-law was reasonably appropriate and adapted to achieving that object. Any impact upon freedom of political communication was limited to the location where it could take place and was necessary for ensuring unobstructed use of the roads: at [141]. Exercise of the power to grant or deny permission could only be based upon the likelihood of obstruction of the road: at [140]. Crennan and Kiefel JJ held that the permission requirement effectively burdened freedom of political communication: at [209]. Under the second limb of the Lange test, the by-law had a legitimate objective (protection of the ‘safety and convenience’ of road users): at [203]. That objective was compatible with the system of representative and responsible government: at [221]. The challenged law must be proportionate to its purposes: at [210]. No ‘equally practicable’ alternative measures had been shown: at [207]. The objective of the law could only be achieved by a permission system for speakers: at [208]. The challenged measure must also be ‘proportionate in its effects upon the system of representative government’: at [210]. Some burden upon the freedom was permissible. Only ‘undue’ burdens were prohibited: at [210], [220]. The by-law only affected freedom of political communication on roads: at [212]. The denial of permission could only be based upon the likelihood of obstruction of the road: at [208], [219]. A denial of permission was reviewable in administrative law proceedings: at [213]. The by-law was not directed against political communication. It contained an exemption for campaigning by election candidates. Any impact upon political communication was indirect. An ‘incidental’ limitation of freedom of political communication was ‘more likely’ to be constitutionally permissible: at [217]. Unrestricted political communication upon the roads would not be ‘equally practicable’ to the permission system in preventing the obstruction of

roads: at [218]. Bell J agreed with Crennan and Kiefel JJ on these points: at [224]. Heydon J found it unnecessary to consider the implied freedom: at [162]. 128DA In Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35 a statute provided that it was an offence to ‘habitually consort with two or more convicted offenders after being warned by a police officer that they are convicted offenders and that consorting with a convicted offender is an offence’: at [1], [20]. Consorting included contact by ‘electronic or other form of communication’: at [22]. The court held that the consorting offence did not infringe the implied freedom. Crennan, Kiefel and Bell JJ held that the provision effectively burdened freedom of political communication: at [108]. Applying the second limb of the Lange test, the objective [page 84] of the provision was the prevention of crime. The objective of the provision was legitimate. Restriction of association between convicted offenders may inhibit criminal activity. The provision was rationally connected to its objective: at [111]–[112]. In considering the proportionality of the measure, the court must determine ‘whether there are alternative, reasonably practicable means which are capable of achieving that [legislative] purpose and which are less restrictive in their effect upon the freedom’: at [113]. Any alternative needed to be as effective in achieving the legislative purpose as was the challenged provision: at [114]. No such alternative means was available here. If the provision had contained a defence for political communication, that defence would ‘create a gap which is readily capable of exploitation’: at [121]. A provision with such a defence would not be as effective in achieving the legislative purpose as was the challenged provision: at [119], [121]. Hayne J held that the ‘legal and practical effect’ of the consorting provision was to effectively burden freedom of political communication: at [71]. The object of the provision was the prevention of crime, which was a legitimate

end: at [77]. By prohibiting consorting the provision inhibited the opportunities for convicted offenders to plan future crimes. The provision was thus ‘rationally connected’ to the legitimate end of preventing crime: at [78]. It had been argued that the provision went beyond what was necessary in order to achieve its objective: at [79]. However, a law which excused consorting in certain circumstances would not be as effective as the provision as it stood: at [90]. The provision did not prohibit the expression of political views, but prohibited association between specified persons. The provision was only a restriction upon the occasions at which political communications could be made among those persons: at [91]. Keane J held that the provision did not prohibit communications about political matters since such communications did not constitute consorting as they did not have the characteristic of ‘personal intimacy’: at [185]–[186], [215]. If political communications were made on an occasion that otherwise constituted consorting, that would not excuse the act of consorting. It was the consorting that would be punished, not the political communications: at [187], [229]. The provision did not effectively burden freedom of political communication: at [241]. Gageler J held that the provision should have contained a defence for association for the purpose of political communication: at [166]. However, he held that the provision could be read down so as not to apply to consorting for that purpose: at [178]. In dissent, French CJ held that the provision violated the implied freedom and could not be read down to save it from invalidity: at [52]. For a discussion of this case, see Wesson (2015) 40 UWALR 102. 128E In Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 the appellant had written letters to relatives of soldiers who had been killed in the war in Afghanistan. In highly provocative and insulting terms the letters criticised that war and the deceased soldiers themselves: at [78], [238]. The appellant was charged with using the post ‘in a way … that reasonable persons would regard as being, in all the circumstances, … offensive’: at [1], [5]. The High Court was evenly divided regarding the validity of this provision. Where the High Court is evenly divided in an appeal from a lower court, the decision of the court appealed from is affirmed. See Judiciary Act 1903 (Cth) s

23(2)(a). The decision of the New South Wales Court of Criminal Appeal that had upheld the provision was thus affirmed. Crennan, Kiefel and Bell JJ held that the challenged provision was valid. The fact that offensiveness was determined by an objective standard rather than the standard of the [page 85] individual recipient was relevant to the question of whether the provision went further than was reasonably necessary, since it limited the range of prohibited communications: at [288]. If the provision was limited to communications at the higher range of offensiveness, the provision would pass the Lange test: at [290], [301]. The provision should be read down ‘so that it goes no further than is necessary in order to achieve its protective purpose’: at [334]. Limiting the provision to the higher range of offensiveness reduced the number of political communications that would be prohibited by the section: at [340]. Applying the first limb of the Lange test, the challenged provision effectively burdened freedom of political communication. However, a law that had only a ‘slight’ and ‘inconsequential’ effect upon freedom of political communication would not effectively burden the freedom: at [343]. Applying the second limb of the Lange test, the objective of protecting persons from being sent ‘seriously offensive material’ at their home or place of work was compatible with the maintenance of the system of representative and responsible government: at [348]–[349]. Some burden upon freedom of political communication was constitutionally permissible: at [350]. The provision was not directed against political communication. Its effect upon political communication was incidental: at [350], [352]. Such a law was more likely to pass the second limb of the Lange test: at [342]. Since the provision was limited to ‘seriously offensive’ communications, its impact upon freedom of political communication was not ‘extensive’: at [352]. So construed, the provision was valid: at [353]. In separate judgments, French CJ, Hayne and Heydon JJ held that the

legislation was invalid. French CJ considered that the challenged provision was not limited to the delivery of mail to private homes and businesses, so it was difficult to determine what purpose it served with such a wide scope. The provision might apply to offensive communications sent to persons who wished to receive them: at [29]. Applying the first limb of the Lange test, the provision imposed an effective burden upon freedom of political communication: at [64], [71]. Australian political debate often includes ‘unreasonable, strident, hurtful and highly offensive communications’. The impact of the provision was not limited to the ‘outer fringes of political discussion’: at [67]. Applying the second limb of the Lange test, the provision was too wide for its purpose to be the protection of the post or maintenance of public confidence in the post. The purpose of the provision was simply to prevent the conduct it prohibited. That was not a legitimate end: at [73]. That purpose was too broad and could not be limited to the ‘outer fringes’ of political communication: at [74]. Hayne J held that ‘abuse and invective are an inevitable part of political discourse’: at [85]. ‘The very purpose of the freedom is to permit the expression of unpopular or minority points of view’: at [122]. Communications are not usually less ‘offensive’ merely because of their political content. Political communications are frequently intended to be offensive: at [166], [209]. Applying the first limb of the Lange test, the provision imposed an effective burden upon freedom of political communication: at [93]. A law would effectively burden the freedom even if it was only a ‘little’ burden: at [115]– [116]. Applying the second limb of the Lange test, the object of the provision was the prevention of the use of the post to give offence: at [95], [178]. Protection of mail recipients from offence was not a legitimate object: at [97], [214], [220]. The protection of recipients from [page 86]

harm was not the object of the provision as it did not require proof of any harm to the recipient: at [180]. The prevention of violent reactions to an offensive communication was not the object of the provision as it made no reference to the likelihood of violence: at [182], [202]. The provision did not promote the ‘integrity of the post’ as it was not concerned with the ‘safety, efficiency or reliability’ of postal delivery: at [184]. Since the provision was not directed towards fulfilling a legitimate end, the proportionality of the means employed thus did not need to be considered: at [98]. However, the law was not ‘narrowly tailored’ since the provision would prohibit communications that would be protected by the defences of truth or qualified privilege under defamation law: at [88], [100], [213]. If the provision were valid, communications could be subject to criminal sanction even though under the implied freedom it could not be subject to civil liability. That would be an inconsistent operation of the implied freedom: at [215]. Heydon J held that the implied freedom prevented the criminal punishment of the appellant’s conduct: at [236]. ‘That is an outcome so extraordinary as to cast doubt, and perhaps more than doubt, on the fundamental assumption and the chain of reasoning which led to it’: at [237]. In his view, the imprecision of the implied freedom meant that its operation was subject to the individual views of every judge: at [244]. 128F In Unions NSW v New South Wales (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58 French CJ, Hayne, Crennan, Kiefel and Bell JJ held that the implied freedom applied to State laws that limited freedom of political communication regarding State elections. They pointed out that ‘political communication at a State level may have a federal dimension’: at [21]. Political issues often overlap between the State and federal levels: at [22]. The major political parties operate at both levels of government: at [24]. State, Territory and local politics may influence the choice of voters in federal elections: at [25]. ‘[P]olitical communication cannot be compartmentalised to either that respecting State or that respecting federal issues’: at [27]. In that case a State electoral law prohibited a political party or candidate from accepting a donation from any person not on the electoral roll or from any corporation or organisation: at [10]–[11]. The court unanimously held that this provision was invalid.

French CJ, Hayne, Crennan, Kiefel and Bell JJ held that the first limb of the Lange test was concerned only with whether the freedom was ‘in fact burdened’. The extent of the burden was not relevant to the first limb of the test: at [40]. They held that the provision effectively burdened freedom of political communication by restricting the potential sources of funds that could be used to pay for electoral communications. Public campaign funding was less than the permitted spending limits, and political parties would need to make up the shortfall: at [38]. Under the second limb of the Lange test, the anti-corruption purpose of the Act was legitimate. However, the challenged provision did not promote that legitimate purpose. The freedom was burdened ‘without a justifying purpose’: at [51]. The purpose of the provision was simply to prohibit what it prohibited: at [51]–[52]. The provision was ‘selective in its prohibition’, but with no apparent justification for that selectivity: at [53]. The State had sought to justify the provision as directed against corporations, but the provision was not limited to prohibiting donations by corporations. It went much further than that: at [55]. Persons who were not on the electoral roll, corporations and other organisations might have legitimate reasons for making donations to parties or candidates. It had not been shown how this wide exclusion furthered an anti-corruption purpose: at [56]. The second limb of the Lange test could not be satisfied since a purpose for the provision that furthered [page 87] the anti-corruption purpose of the Act had not been shown: at [60]. In a separate judgment Keane J also held that this provision was invalid: at [70]. The law also capped electoral communication expenditure during State elections. Expenditure over that limit was prohibited: at [4]. A provision of the law aggregated the expenditure of a party and its affiliated organisations for the purpose of the cap upon expenditure: at [12]. An affiliated organisation was defined as an organisation that had the right under party rules to appoint delegates to the party’s governing body: at [13]. This provision was challenged

by unions that had the right to appoint delegates to the Labor Party’s annual party conference: at [14]. The court unanimously held that the aggregation provision was also invalid. French CJ, Hayne, Crennan, Kiefel and Bell JJ held that the aggregation provision effectively burdened the freedom by limiting the amount that a political party could spend on electoral communications: at [61]. Applying the second limb of the Lange test, the purpose of the aggregation provision was to limit the spending of a political party and its affiliated organisations. It had not been shown how that purpose furthered the anti-corruption purpose of the Act: at [64]. The second limb could not be satisfied. The provision violated the implied freedom: at [65]. In a separate judgment Keane J also held that the provision was invalid: at [70]. For discussions of this case, see Cucinotta (2013) 25 Bond LR 70; Twomey (2014) 16 U Notre Dame Aust LR 178.

The reformulated test for proportionality 128G On several occasions the court stated that the Lange test as modified in Coleman v Power (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 was now ‘settled’. See Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1; [2012] HCA 2 at [25]; Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; 259 ALR 197; [2013] HCA 3 at [67], [131]; Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 at [61], [106]. However, in McCloy v New South Wales (2015) 325 ALR 15; 89 ALJR 857; [2015] HCA 34 a majority of the court reformulated the second limb of the Lange test. French CJ, Kiefel, Bell and Keane JJ divided the second limb into two separate questions: compatibility testing and proportionality testing. The compatibility test is the familiar test of the compatibility of the purpose and means with the system of representative government. If the answer to the compatibility question is ‘no’ the law infringes the implied freedom. If the answer to the compatibility question is ‘yes’ the proportionality test must be considered. The proportionality test elaborates upon the ‘reasonably appropriate and adapted’ test. The new three-stage test is based upon three criteria: the suitability, necessity and adequacy in the balance of the law. If the

law does not meet these three criteria, the law will infringe the implied freedom: at [2]. The suitability criterion ‘requires that there be a rational connection between the provision in question and the statute’s legitimate purpose, such that the statute’s purpose can be furthered’: at [80]. The necessity criterion enquires whether there are ‘other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom and which are obvious and compelling’. If such equally practicable alternatives exist, the challenged measure will be beyond power: at [81]. The adequacy in the balance criterion involves a ‘value judgment’ about the ‘balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom’: at [2], [89]. The greater the restriction, the ‘more important’ the purpose must be to satisfy the test: at [87]. [page 88] Gageler J did not adopt the majority’s ‘standardised proportionality analysis’: at [98]. In his view it was unnecessary to decide in this case whether the ‘reasonably appropriate and adapted’ formulation or the proportionality test should be adopted: at [139]–[140]. He expressed reservations about the ‘one size fits all’ approach of the ‘standardised’ proportionality test: at [142]. Nettle J applied the previously accepted formulation of the Lange test: at [220]. He considered that it was unnecessary to consider the applicability of ‘strict proportionality’: at [222]. Gordon J pointed out that no party or intervener in this case had sought the modification of the Lange test: at [308]. The Lange test had been ‘applied without apparent difficulty’: at [310]. She applied the previously accepted test: at [310]–[311]. In this case a State law set an annual cap on political donations by donors. Political parties and candidates were prohibited from accepting donations that exceeded that cap: at [11]. The law also prohibited ‘indirect contributions’ such as the provision of office space or equipment for free or for ‘inadequate consideration’: at [14]. It was argued that implied freedom protected the right of donors to ‘build and assert political power’: at [25].

In response, French CJ, Kiefel, Bell and Keane JJ quoted a statement by Harrison Moore that the ‘great underlying principle’ of the Constitution was that individual rights were protected by ensuring each person ‘an equal share in political power’: at [27]. That principle would be negated by guaranteeing a few individuals the right to make large political donations so as to obtain preferential access to those with political power: at [28]. However, the annual cap effectively burdened the implied freedom: at [24]. Applying the compatibility test, the cap had an anti-corruption purpose and might reduce perceptions of corruption in government: at [33]–[34]. One form of corruption was ‘clientelism’, where decisions may be made on the basis of the wishes of political donors rather than the public interest: at [36]. The capping of political donations was compatible with the system of representative government: at [46]–[47]. Applying the proportionality test, the provisions were ‘suitable’ for achieving the anti-corruption purpose of the Act. There was a rational connection to that purpose: at [56]. Under the ‘necessity’ test, it was necessary to consider whether there was any equally practicable alternative that would be less restrictive of the freedom: at [57]. The plaintiffs argued that the prohibition of donations above the cap should have been limited to those that had a corrupt purpose and that the disclosure requirements under the Act should have been increased: at [59]. However, stronger disclosure requirements would not have been as effective as the capping provisions in achieving the Act’s anti-corruption purpose: at [61]. The difficulty of detecting and proving that a donation was motivated by a corrupt purpose meant that such a system was not a ‘reasonable alternative’ to the annual cap upon donations: at [62]. Addressing the appearance of corruption could be a valid justification for limiting the freedom: at [65]. Applying the adequacy in the balance criterion, the provisions did not affect the ability of anyone to communicate about politics or to influence politicians by means other than the payment of large amounts of money. On the one hand, a reduction in the funds available for political campaigns would affect the volume of political advertising. On the other, addressing the risk and appearance of corruption was an important public interest. ‘The restriction on the freedom is more than balanced by the benefits sought to be achieved’: at [93].

Gageler J held that this restriction was ‘reasonably necessary’ in furtherance of a ‘compelling’ objective of preventing corruption: at [98]. The prevention of ‘clientelism’ was a legitimate objective that could justify a limitation of the implied freedom: at [181]. The prevention of ‘preferential access’ to government that resulted from political donations was [page 89] a ‘compelling legislative objective’: at [184]. If the legislation focussed only on eliminating ‘payment for favours’, that would not address the ‘corrupting influence that inequality of access based on money may have on the pursuit of public duties by elected public officials’: at [186]. Increased transparency would be insufficient to achieve the anti-corruption purpose of the legislation: at [187]. The indirect contributions provision was ‘reasonably necessary’ to support the efficacy of the annual cap: at [199]. Nettle J held that the prohibition of large political donations was directed towards preventing corruption in government. It was consistent with the implied freedom ‘that wealthy donors not be permitted to distort the flow of political communication according to the size of their political donations’: at [227]. The implied freedom permitted a ‘levelling [of] the playing field’ in political donations: at [249]. The burden upon freedom of political communication was ‘not great’ and the restriction was rationally connected to the object of preventing corruption. The annual cap and the prohibition upon indirect contributions were valid: at [256]. Gordon J held that there was ‘no constitutionally protected right that permits an individual to “build and assert” political power’. Such a right would be inconsistent with the Constitution’s ‘underlying principle’ that individual rights were protected by ensuring each person ‘an equal share in political power’: at [318]. The annual cap did not infringe the implied freedom: at [345]. The State law also prohibited the making or acceptance of political donations by property developers: at [15]. French CJ, Kiefel, Bell and Keane JJ held that this provision effectively burdened the implied freedom: at [24].

While this provision was unique to New South Wales, there was a recent history of corruption in planning decisions in that State: at [50]–[51]. The provision sought to address that corruption: at [53]. The purpose and means adopted by the provision were legitimate: at [53]. Applying the proportionality test, the provision was ‘suitable’ for achieving the anti-corruption purpose of the Act. There was a rational connection to that purpose: at [56]. So far as the ‘necessity’ of the provision was concerned, there were no equally practicable alternatives: at [5], [63]. Applying the ‘adequacy in the balance’ criterion, the provision did not affect the ability of anyone to communicate about politics or to influence politicians other than by donating large amounts of money. On the one hand, a reduction in the funds available for political campaigns would affect the volume of political advertising. On the other, addressing the risk and appearance of corruption was an important public interest. ‘The restriction on the freedom is more than balanced by the benefits sought to be achieved’: at [93]. Gageler J held that this restriction was ‘reasonably necessary’ in furtherance of a ‘compelling’ objective of preventing corruption: at [98]. Property developers were in a business that depended upon the exercise of discretionary powers by public servants and ministers. Developers had a strong incentive to seek to influence the exercise of those discretions: at [193]. There was a recent history of corruption in planning decisions in the State: at [194]. While other types of business might also have incentives for corrupting the exercise of discretionary powers, Parliament was not required to address every form of corruption in order to address any: at [197]. Gordon J held that there was a rational connection between the prohibition and its anti-corruption objective: at [355]. The value of land was affected by zoning decisions made by government: at [354]. The provision was not a ‘significant burden’ upon freedom of political communication. It did not directly prohibit political communications. Property developers were free to express their views about candidates in other ways: at [364]. The provision was ‘reasonably appropriate and adapted to achieve its legitimate purpose’: at [369]. [page 90]

In dissent on this point, Nettle J considered that this provision was invalid: at [272]. Burdens that discriminate against a specific part of the community ‘require strong justification’: at [251]. In his view there was insufficient justification for this discriminatory provision: at [257]. He argued that requiring the disclosure of all donations would be just as effective in preventing corruption: at [260]. For a discussion of this case, see Carter (2015) 26 Public LR 245. Several Commonwealth statutes provide that they do ‘not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication’. See Australian Security Intelligence Organisation Act 1979 s 34ZS(13); Olympic Insignia Protection Act 1987 s 73; Broadcasting Services Act 1992 s 61BG; Criminal Code Act 1995 Sch ss 102.8(6), 390.3(8); Telecommunications Act 1997 s 138; Interactive Gambling Act 2001 s 61BB(4); Spam Act 2003 s 44; Do Not Call Register Act 2006 s 43; Tobacco Plain Packaging Act 2011 s 16; Major Sporting Events (Indicia and Images) Protection Act 2014 s 57; Enhancing Online Safety for Children Act 2015 (Cth) s 100.

Other implied freedoms? 129 Before the development of the implied freedom of communication, Murphy J identified a large number of implied rights and freedoms. See Coper, 1988, pp 324–31; Williams in Coper and Williams, 1997, pp 58–63. Apart from freedom of political communication, other implied rights and freedoms have not yet been clearly established by the High Court. However, the possibility of other implied rights has been raised by individual judges. In McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 the plaintiffs challenged the laws which provided for the distribution of electorates in the Western Australian lower and upper Houses: at 164. The effect of the laws was that non-metropolitan electorates contained significantly less voters than metropolitan electorates: at 165, 179. The court held that the Constitution did not contain an implied limitation restricting disparities in voting power among electors for State Parliaments: at 175, 188, 243, 293. Brennan CJ stated that ‘[n]o implication can be drawn from the

Constitution which is not based on the actual terms of the Constitution, or on its structure’: at 168. The principle of representative government could be given effect only so far as the text and structure of the Constitution permitted: at 170. The system of representative government created by the Constitution related to the Commonwealth Parliament, not the State Parliaments: at 175. Dawson J argued that much of the operation of representative government, including the distribution of electorates, was left to the Commonwealth Parliament: at 183. ‘There can be no implication that a particular electoral system, of the many available, is required by the Constitution’: at 184. Sections 7 and 24 did not require numerical equality between electorates: at 185. The Constitution made only ‘minimal’ provision for the system of representative government: at 188. There was no implication embodying the principle of ‘one vote, one value’: at 188. McHugh J held that the Constitution did not require equality of voting power and equality of electorate size in relation to either Commonwealth or State elections: at 229–30. Instead, inequality of voting power was a ‘striking feature’ of the Constitution: at 236. Since the Constitution did not require equality of voting power for Commonwealth elections, it followed that the Constitution did not require such equality for State elections: at 251. Gummow J pointed out that the Constitution did not require equality of voting power at referendums concerning proposals for its amendment: at 275. Section 24 was directed to equality of voting power between States, not equality of voting power between people: at 277. [page 91] Equality of voting power was not an essential feature of representative government at the time of Federation: at 284. The constitutional system of representative government did not prescribe a specific form of voting system: at 285. Toohey J argued that the system of representative democracy embodied in the Constitution required equality of voting power: at 204. However, the implication of equality of voting power applied only to elections for the

Commonwealth Parliament, not to elections for the State Parliaments: at 210. While Toohey J rejected the challenge under the Commonwealth Constitution, he argued that an implication in the State Constitution was infringed by the wide disparity in electorate size at issue in this case: at 210– 15. Gaudron J agreed with Toohey J on this point: at 216. For discussions of this case, see Carne (1997) 25 FL Rev 351; Gerangelos in Winterton, 2006, pp 416–47. 130 As regards an implied freedom of movement and association, in Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 three members of the court expressed support for such a limitation upon Commonwealth legislative power. Toohey J argued that the Constitution embodies an implied freedom of association and movement: at 90–1. Gaudron J argued that freedom of communication entails freedom of association which itself entails freedom of movement: at 115. Freedom of movement and association must give way to laws validly enacted pursuant to powers which clearly authorise restrictions upon these freedoms: at 121. McHugh J indicated support for a freedom of association and movement for the purpose of participating in the system of representative government: at 142. Gummow J held that there was no implied freedom of association ‘for political, cultural and familial purposes’: at 156–7. Brennan CJ and Dawson J did not decide whether there was an implied freedom of association and movement: at 45, 70. See also Byers (1997) 8 Public LR 224; Joseph (1998) 24 Mon ULR 486. In Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209 ALR 582; [2004] HCA 41 Gummow, Hayne and Heydon JJ held that the Constitution did not embody separate implied freedoms of association and ‘privacy of political association’, but freedom of association might be part of the freedom of political communication: at [148], [364]. Callinan J rejected the concept of an implied freedom of association: at [334]–[335]. McHugh and Kirby JJ held that there was an implied freedom of association: at [114], [284]–[285]. Gleeson CJ did not decide the issue: at [42]. In Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 a State law provided that if a judge was satisfied that members of an

organisation associated for the purpose of serious criminal activity and the organisation was a risk to public safety and order, the judge may declare the organisation to be a declared organisation: at [13]. It was an offence for members of a declared organisation to associate with one another: at [17]. The High Court rejected an argument that the law infringed an implied freedom of association. Gummow, Hayne, Crennan and Bell JJ observed that any implied freedom of association would be only a ‘corrollary to the implied freedom of political communication’ and would have the same test for infringement: at [112]. French CJ and Kiefel J agreed with Gummow, Hayne, Crennan and Bell JJ: at [72]. Heydon J pointed out that the law allowed the Supreme Court to permit association between those subject to control orders where good reasons were shown: at [186]. In Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35 Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ held that there was no ‘free-standing’ implied freedom of association: at [95], [126], [134], [143], [242]. French CJ found it [page 92] unnecessary to consider this issue: at [4]. However, he noted that the court had rejected the argument in recent cases: at [46]. Freedom of assembly issues have been argued under the implied freedom of political communication. Several decisions have concerned the ‘Occupy’ protests. In O’Flaherty v City of Sydney Council (2014) 221 FCR 382; 314 ALR 75; [2014] FCAFC 56; SLR [2014] HCATrans 232 a city notice prohibited camping in Martin Place, a pedestrian mall in Sydney: at [1]. The Full Federal Court held that the issue of the notice did not infringe the implied freedom of political communication. Applying the first limb of the Lange test, the notice was neutral on its face. The prohibition was directed against conduct rather than speech, though expressive conduct falls within the implied freedom. The prohibition applied only to a particular location. People

could come and go to express their views, but they had to leave afterwards: at [17]. Applying the second limb of the Lange test, the appellant had argued that the objective of the legislation could have been achieved by ‘less drastic means’: at [22]. The court held that its task was not to determine whether one regulatory scheme was ‘slightly preferable’ to another scheme, but only to consider whether the challenged scheme was ‘unreasonably greater than is achievable by other means’: at [25]. The prohibition was reasonably appropriate and adapted to achieving its objective. The protesters retained the right to occupy the site other than by camping so they were free to express their views in alternative ways: at [26]. The same considerations applied to any implied freedom of association: at [29]. In Kerrison v Melbourne City Council (2014) 228 FCR 87; 314 ALR 241; [2014] FCAFC 130 municipal legislation prohibited camping in public gardens: at [25]. The legislation further provided for enforcement by the issue of notices to comply with the prohibition upon camping where there was a reasonable suspicion of prohibited conduct: at [30]. The appellant did not challenge the prohibition upon camping, but argued that the enforcement provision infringed the implied freedom of political communication where no prohibited conduct may have occurred: at [123], [125]. The Full Federal Court held that the enforcement provision did not constitute a separate burden upon freedom of communication beyond that arising from the prohibition of camping, which the appellant had accepted as valid: at [130]. Even if the enforcement provision did constitute a separate burden, it was reasonably appropriate and adapted to its objective of protecting the equitable use of the gardens: at [133]. 131 Among the other implied rights which have been suggested is the right to equality before the law. In Leeth v Commonwealth (1992) 174 CLR 455; 107 ALR 672 the court considered whether any general guarantee of individual equality could be ascertained within the Constitution. Mason CJ, Dawson and McHugh JJ thought not: ‘There is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth’: at 467. Hence the Commonwealth could

vary the application of its own laws by reference to the laws of the States: at 468. Brennan J considered that it was impermissible to sentence offenders against Commonwealth law to different maximum terms according to the State in which they are tried: at 475. But discrimination as to minimum term of imprisonment on the basis of the State of confinement was necessary to secure prison discipline so that there was some parity between Commonwealth and State prisoners in the one State prison: at 479. By contrast, Deane and Toohey JJ discerned a constitutional guarantee of equality before the law. This guarantee is not violated by laws discriminating upon grounds that are ‘reasonably capable’ of providing a rational basis for the disparate treatment: at 489. The guarantee is also [page 93] not infringed if the particular Commonwealth power is such as to deny the presumption that discrimination is unsupported by the power: at 489. Gaudron J did not decide whether there was such a general implication: at 501. The view that federal laws need not have a uniform operation throughout the Commonwealth was applied in Putland v R (2004) 218 CLR 174; 204 ALR 455; [2004] HCA 8 at [25], [59], [122]. In Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 the court rejected the existence of an implied guarantee of legal equality restricting Commonwealth legislative power. Brennan CJ, Dawson, McHugh and Gummow JJ held that several sections of the Constitution contemplate inequality, negating the existence of such a guarantee: at 44–5, 64, 142, 155. Dawson and McHugh JJ also argued that where the Constitution requires equality it expressly provides for it: at 64, 142. Toohey J reiterated his earlier view that the Constitution embodies an implied guarantee of legal equality: at 97. Gaudron J held that there was no implied guarantee of legal equality beyond the limited guarantee of equality before the courts implied from Chapter III: at 112–13. For a discussion of the legal equality decisions, see Williams, Brennan and Lynch, 2014, pp 619–27.

The Constitution does not prohibit the Commonwealth Parliament from discriminating on the ground of Australian citizenship. See Bennett v Commonwealth (2007) 231 CLR 91; 235 ALR 1; [2007] HCA 18 at [38]. Finally, in Carbone v Police (1997) 68 SASR 200 the South Australian Full Court rejected an argument that the Constitution contains an implied freedom from interference with property by State governments: at 209.

PROVISION AS TO RACES DISQUALIFIED FROM VOTING 132 Section 25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

See Quick and Garran, 1901, pp 455–6 (Revised ed, 2015, pp 517–8); Attorney-General’s Department, 1980, p 29; Brazil and Mitchell, 1988, pp 637–9 (no 1049); Constitutional Commission, 1988, Vol 1, pp 155–7; Lane, 1997, p 89; Galligan and Chesterman (1997) 8 Public LR 45 at 53–4; Twomey (2000) 28 FL Rev 125; Costar in Chesterman and Philips, 2003, pp 89–99; Twomey (2012) 23 Public LR 125; Lino and Davis (2012) 23 Public LR 231; Arcioni (2012) 40 FL Rev 287; Clarke, Keyzer and Stellios, 2013, pp 205–7. 133 This section was designed to penalise any State (in respect of its federal representation) which prevented the persons of any race from participating in State elections for the more numerous House, the Lower House. See Quick and Garran, 1901, p 456 (Revised ed, 2015, p 518). It provides that for the purpose of determining the population of that State (which affects the number of members to be chosen for the State under s 24), the people of the excluded race shall not be counted. State electoral laws are no longer racially discriminatory. Writing extra-judicially, Kirby J expressed the view that ‘[t]his is a frankly racist provision. It is elliptically worded, but it carries nineteenth century notions that Chinamen in the gold fields and Aboriginals in the remote outback might, by reference to their race, be disqualified

[page 94] from voting in a State, and therefore in federal Commonwealth, elections’. See Kirby (2012) 15 Southern Cross ULR 3 at 13. The Constitutional Commission recommended the repeal of s 25, describing it as ‘archaic’ and ‘outmoded’: See Constitutional Commission, 1988, Vol 1, p 157. The Expert Panel on Recognising Aboriginal and Torres Strait Islanders in the Constitution and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples also recommended that s 25 be repealed. See Expert Panel, 2012, pp 142–4; Joint Select Committee, 2014, pp 2–3; Joint Select Committee, 2015, p 21.

REPRESENTATIVES IN FIRST PARLIAMENT 134 Section 26. Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election shall be as follows: — New South Wales … twenty-three; Victoria … twenty; Queensland … eight; South Australia … six; Tasmania … five; 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.

See Quick and Garran, 1901, pp 456–60 (Revised ed, 2015, pp 519–23); Lane, 1997, p 89. 135 These numbers were based upon statistics agreed upon at a conference of statisticians held in 1900 to determine the population of Australia. See Quick and Garran, 1901, p 457 (Revised ed, 2015, p 520). This section also

enabled Western Australia to become an original State with a fixed representation in the House of Representatives.

ALTERATION OF NUMBER OF MEMBERS 136 Section 27. Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of members of the House of Representatives.

See Quick and Garran, 1901, p 460 (Revised ed, 2015, pp 523–4); Lane, 1997, p 90. 137 The Commonwealth Parliament has power to increase or diminish the number of members of the House of Representatives subject to the constitutional requirements. [page 95] Under s 24 an increase in the number of members of the House must be in the ratio of two to every one senator. Consequently, any increase in the number of members of the House must be accompanied by an increase in the number of senators in this ratio. Moreover, s 7 imposes equality of representation for the six original States. Therefore, apart from the case where new States are admitted, the membership of the House must increase by 12 (twice the number of the original States) or a multiple of 12 (with some leeway allowed by the words ‘as nearly as practicable’). Currently there are 150 members of the House.

DURATION OF HOUSE OF REPRESENTATIVES 138 Section 28. 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.

See Quick and Garran, 1901, pp 461–4 (Revised ed, 2015, pp 524–9); Attorney-General’s Department, 1980, p 30; Lane, 1997, pp 90–1.

139 The House of Representatives has a limited existence, determined by this section. The House cannot continue more than three years from its first meeting. If it has not been dissolved by the Governor-General at this time it expires by effluxion of time. In accordance with the requirements of s 5, the first meeting after a general election shall be not later than 30 days after the day appointed for the return of the writs. Section 28 also specifically recognises that the House may be dissolved before the three year period has expired. In 1910 the third Parliament expired by effluxion of time. See Wright, 2012, pp 224–5. The Constitutional Commission recommended that s 28 be amended to provide for maximum four year terms for the House of Representatives, with a three year qualified minimum term. See Constitutional Commission, 1988, vol 1, pp 195, 206. In 1988 a proposal for four year terms was defeated at a referendum. See House of Representative Standing Committee, Select Sources, 1997, pp 110–11. In 2005 a federal Parliamentary Committee recommended the introduction of four year terms. See Joint Standing Committee on Electoral Matters, 2005, p 181.

ELECTORAL DIVISIONS 140 Section 29. Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States. In the absence of other provision, each State shall be one electorate.

See Quick and Garran, 1901, pp 465–6 (Revised ed, 2015, pp 529–32); Lane, 1997, pp 91–3; Aroney in Moens, 2000, pp 41–4; Aitken and Orr, 2002, p 217 n 11; Hanks, Gordon and Hill, 2012, pp 96–7. [page 96] 141 The initial words of this section granted the Commonwealth power to divide the States into electoral divisions for the purpose of House of

Representatives elections. This section enables the federal Parliament to determine the divisions, subject to the limitation that a division cannot be formed out of parts of different States. The power to choose the number of members for a division implies a power to create multi-member electorates as well as single-member electorates. Part IV of the Commonwealth Electoral Act 1918 (Cth) is an exercise of the power conferred by s 29. Under the Act only one member of the House can be elected for each division: s 57.

QUALIFICATION OF ELECTORS 142 Section 30. 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.

See Quick and Garran, 1901, pp 467–70 (Revised ed, 2015, pp 532–7); Attorney-General’s Department, 1980, p 31; Lane, 1997, pp 94–5. 143 This section enables the Parliament to determine the qualifications of electors of members of the House (which apply also to the Senate: s 16), subject to any limitations arising from s 41. The qualifications of persons entitled to enrol and to vote are set out in the Commonwealth Electoral Act 1918 (Cth) s 93. Plural voting is prohibited by the final paragraph of s 30. The preferential voting system does not constitute plural voting. See Ditchburn v Divisional Returning Officer (1999) 165 ALR 151; [1999] HCA 41 at [7], [11]. The question of universal suffrage is canvassed under the discussion of s 8. The drafting history of s 30 is traced in Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 at [122]–[125].

APPLICATION OF STATE LAWS 144 Section 31. 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 in the State of members of the House of Representatives.

See Quick and Garran, 1901, pp 471–2 (Revised ed, 2015, pp 538–9); Attorney-General’s Department, 1980, p 32; Lane, 1997, pp 95–6. 145 This section empowers the federal Parliament to regulate the method of electing members of the House. This power authorises provisions relating to the preparation of electoral rolls, enrolment of voters, writs for elections, nomination, polling, scrutiny (counting of votes), return of writs and ancillary matters. All of these matters are now dealt with by the Commonwealth Electoral Act 1918 (Cth). See Parts VI, VIII, XIII, XIV, XVI, XVIII, XIX and XXIII respectively. [page 97] In Fabre v Ley (1972) 127 CLR 665 the court upheld a statutory requirement for the payment of a deposit by electoral candidates. The enactment of a Commonwealth electoral law was authorised by ss 31 and 51(xxxvi) (‘matters in respect of which th[e] Constitution makes provision until the Parliament otherwise provides’). In particular, those provisions authorise the enactment of provisions concerning the nomination of electoral candidates, including a deposit requirement: at 669. In Langer v Commonwealth (1996) 186 CLR 302; 134 ALR 400 Brennan CJ, McHugh and Gummow JJ held that a statutory requirement of full preferential voting fell within the power conferred by s 31: at 315–16, 339, 348–9. Brennan CJ described the power under s 31 as ‘plenary’: at 317. McHugh J held that this power supported provisions that were directed against practices that undermined the voting system determined by Parliament: at 339. Gummow J held that the power authorised laws that ‘regulate[d] the conduct of persons in relation to … elections’: at 349. In dissent, Dawson J considered that this power was ‘not at large’: at 324. He argued that the power was a purposive one, the purpose being the implementation of the direct choice of the members of the House of Representatives by the people as required by s 24 of the Constitution: at 324–5. In Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209 ALR 582; [2004] HCA 41 the Commonwealth Electoral Act provided that a

political party would only be registered if it had at least 500 members or a representative in the federal Parliament. No two or more political parties could use the same person in satisfying the 500 member requirement, that is, the membership could not overlap: at [1]. The court held that these requirements were supported by ss 10 and 31, in conjunction with s 51(xxxvi) of the Constitution: at [46], [71], [140]–[143], [211], [256]. In Holmdahl v Australian Electoral Commission (No 2) (2012) 277 FLR 101; [2012] SASCFC 110; SLR [2013] HCATrans 72 it was held that compulsory voting for House of Representatives and Senate elections was supported by ss 10, 31 and 51(xxxvi) of the Constitution: at [1], [33], [38], [73]. The Commonwealth Parliament’s power to make laws regarding federal elections is now an exclusive power. See Local Government Association of Queensland (Inc) v Queensland [2003] 2 Qd R 354; [2001] QCA 517 at [12], [72]; Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 at [8]. This power derives from ss 10 and 31 of the Constitution, in conjunction with s 51(xxxvi).

WRITS FOR GENERAL ELECTION 146 Section 32. The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives. After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

See Quick and Garran, 1901, pp 472–3 (Revised ed, 2015, pp 539–40); Lane, 1997, pp 96–7. 147 The writ is the direction of the Governor-General issued to the Electoral Commissioner commanding the Commissioner to take steps for the election of a member to represent the particular division. The writ is issued on the advice of the Ministry. The form of the writ is regulated by ss 151–161 of the Commonwealth Electoral Act 1918 (Cth). [page 98]

The postponement of an election after the House has come to an end is prevented by the requirement in the second paragraph of s 32 that the writs be issued within 10 days of that event.

WRITS FOR VACANCIES 148 Section 33. Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.

See Quick and Garran, 1901, p 473 (Revised ed, 2015, pp 540–1); Brazil and Mitchell, 1988, pp 543–4 (no 979); Lane, 1997, pp 96–7. 149 The procedure for issuing a writ when a casual vacancy occurs is laid down in this section. In this case it is the Speaker who has the duty of issuing the writ although, if they are absent from Australia, the Governor-General in Council takes the necessary steps.

QUALIFICATIONS OF MEMBERS 150 Section 34. 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.

See Quick and Garran, 1901, pp 474–8 (Revised ed, 2015, pp 541–7); Constitutional Commission, 1988, Vol 1, pp 282–4; Irving, 1996, pp 62, 133; Lane, 1997, pp 97–8. 151 The qualifications of a member are laid down in the Commonwealth Electoral Act 1918 (Cth) s 163. Under this provision a member must be at least 18 years old, be an Australian citizen and entitled (or qualified) to vote at a federal election.

ELECTION OF SPEAKER 152 Section 35. 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.

[page 99] See Quick and Garran, 1901, pp 479–80 (Revised ed, 2015, pp 548–9); Brazil and Mitchell, 1981, pp 211–12 (no 174); Lane, 1997, pp 98–9; Andrew in Macintyre and Williams, 2003, pp 273–90. 153 This section provides for the appointment of the presiding officer of the House, who will supervise the activities of the House and enforce the Standing Orders. The Speaker must be appointed at the commencement of the life of the House before any other business is transacted. If, during the life of the House, the office becomes vacant, the election of a successor would take precedence over other business. The Speaker shall cease to hold office if they cease to be a member (by death, retirement or disqualification). They may also resign the office and may be removed by vote of the House. A Speaker who resigns is deemed to continue in office until a new President is chosen. See Parliamentary Presiding Officers Act 1965 (Cth) s 3.

ABSENCE OF SPEAKER 154 Section 36. Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.

See Quick and Garran, 1901, p 480 (Revised ed, 2015, pp 549–50); Brazil and Mitchell, 1988, pp 678–9 (no 1078); Lane, 1997, pp 98–9; Wright, 2012, p 181. 155 To allow for occasions when the Speaker is ill or absent and to allow them some respite from continuously presiding over the House, particularly when its sittings are extended over a large part of the day, a deputy may be chosen to perform the Speaker’s duties. The deputy Speaker can exercise the full powers of the Speaker while presiding in the House.

RESIGNATION OF MEMBER

156 Section 37. 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.

See Quick and Garran, 1901, p 481 (Revised ed, 2015, pp 550–1); Lane, 1997, p 99; Wright, 2012, pp 154–5. 157 Under this section resignation is open to a member of the House of Representatives by the simple method of notification in writing to the Speaker (or, in the Speaker’s absence, to the Governor-General).

VACANCY BY ABSENCE 158 Section 38. 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.

[page 100] See Quick and Garran, 1901, pp 481–2 (Revised ed, 2015, pp 551–2); Lane, 1997, p 99; Wright, 2012, p 155. 159 This is one of the ways in which the place of a member of the House is vacated: absence for two consecutive months during any parliamentary session, without the consent of the House.

QUORUM 160 Section 39. 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.

See Quick and Garran, 1901, pp 482–3 (Revised ed, 2015, pp 552–3); Lane, 1997, pp 99–100; Wright, 2012, p 270. 161 The quorum of the House was by this section set at one-third of the whole number of members of the House. However, Parliament is given

power to ‘otherwise provide’. Parliament has now set the quorum as at least one-fifth of the whole number of members. See House of Representatives (Quorum) Act 1989 (Cth) s 3.

VOTING IN HOUSE OF REPRESENTATIVES 162 Section 40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

See Quick and Garran, 1901, p 483 (Revised ed, 2015, pp 553–4); Lane, 1997, p 100; Wright, 2012, pp 182–6; Faulkner and Orr, 2013, pp 450–1, 598–9 (nos 1586, 1656). 163 Unlike the President of the Senate, the Speaker does not have a deliberative but only a casting vote (that is, when the numbers are equal). It can be argued that this section refers only to voting at full sessions of the House. There are indeed precedents which accept the position that the Speaker has a deliberative vote in committee. See Sawer, 1956, p 125; Wright, 2012, p 186. However, the meaning of s 40 must remain a matter of doubt. Under an informal ‘pairing’ arrangement between two members of opposing political parties, where one member will be absent from the House the other member refrains from voting. See Wright, 2012, p 282. In 2010 the Commonwealth Solicitor-General gave the opinion that s 40 would not be violated by a pairing arrangement between the Speaker and a member of the House from an opposing political party. However, this view was subject to two qualifications. First, the Speaker may not have a deliberative vote and may not be deprived of a casting vote. Secondly, observance of the arrangement by the member of the opposing party must be voluntary. See SG No 37 of 2010, 22 September 2010 at [3], [39]–[40], available at http://resources.news.com.a‐ u/files/2010/09/22/1225928/018212-100922-solicitor-general-opinion.pdf The Solicitor-General advised that s 40 is expressed in mandatory terms and may not be overridden by a formal or informal arrangement between members. The House may not

[page 101] make rules or orders that are inconsistent with s 40: at [18]. The Speaker may not exercise a deliberative vote since s 40 provides that the Speaker may not vote unless the numbers are equal. The Speaker also has a duty to exercise a casting vote: at [34], [39]. Observance of a pairing arrangement must be voluntary and may not be enforced by the House: at [40]. Ultimately the proposed pairing arrangement did not eventuate. See Horne, 2010, p 6. For most questions a simple majority of votes is required. A simple majority is one-half plus one of the members present and voting. See Wright, 2012, p 341; Evans and Laing, 2012, p 277. However, an absolute majority of the whole number of members is required for constitutional amendment Bills under s 128. An absolute majority is a majority of the entire membership of the House. See Wright, 2012, p 341; Evans and Laing, 2012, p 277. A majority government has the support of an absolute majority of the House of Representatives. There are currently 150 members of the House, so an absolute majority is 76 members. See Horne, 2010, p 4. The August 2010 federal election resulted in a ‘hung Parliament’ where neither the Australian Labor Party nor the Liberal-National Party coalition had an absolute majority of seats in the House. The Labor Party eventually formed government by securing the support of three independents and a member of a minor party. This support was limited to questions of confidence and supply. See Horne, 2010, pp 2, 4, 6. The September 1940 federal election also resulted in a hung Parliament. See Souter, 1988, p 329; Horne, 2010, p 10. Pursuant to its power to make Standing Orders regulating its procedure under s 50, it would appear that the House may require certain types of majorities for determining the passage of certain motions.

[page 102]

PART IV — BOTH HOUSES OF THE PARLIAMENT RIGHT OF ELECTORS OF STATES 164 Section 41. No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

See Quick and Garran, 1901, pp 483–7 (Revised ed, 2015, pp 554–9); O’Neill (1987) 17 FL Rev 85 at 116–18; Constitutional Commission, 1988, Vol 1, p 129; Coper, 1988, pp 309–13; Brooks (1993) 12 U Tas LR 208; Grimshaw in Irving, 1996, pp 77–97; Lane, 1997, p 102; Galligan and Chesterman (1997) 8 Public LR 45; Twomey (2000) 28 FL Rev 125; McGrath, 2003, pp 139–58; Hanks, Gordon and Hill, 2012, pp 82–4; Williams and Hume, 2013, pp 222–30; Clarke, Keyzer and Stellios, 2013, pp 723–7; Gerangelos et al, 2013, pp 880–6; Crowe and Stephenson (2014) 36 Syd LR 205; Williams, Brennan and Lynch, 2014, pp 135–6, 660–4. 165 This section has been narrowly construed by the High Court. The right guaranteed in s 41 is limited to ‘adult’ persons. In King v Jones (1972) 128 CLR 221 the court unanimously held that the word ‘adult’ was to be given the meaning which it had in 1900, that is, persons of a minimum age of 21: at 239, 244, 250, 254, 261, 268. Furthermore, in Re Pearson; Ex parte Sipka (1983) 152 CLR 254; 45 ALR 1 the court held that s 41 ‘preserves only those rights which were in existence before the passing of the Commonwealth Franchise Act 1902’: at 264. The purpose of this section was merely to ‘ensure that those who enjoyed the constitutional franchise should not lose it when the statutory franchise was granted’: at 279. Thereafter, the statute was to determine the Commonwealth franchise: at 279. Thus, the ‘practical effect of s 41 is spent’: at 280. See similarly, Snowdon v Dondas (1996) 188 CLR 48 at 72; 139 ALR 475. In

Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 Gummow, Kirby and Crennan JJ referred to s 41 as ‘somewhat delphic’ but added that its effect is ‘now spent’: at [70]. On the historical background of s 41, see also Galligan and Chesterman (1997) 8 Public LR 45 at 54–6. The Constitutional Commission recommended the repeal of s 41, describing it as a ‘dead letter’. See Constitutional Commission, 1988, Vol 1, p 129. However, doubts are occasionally expressed about whether s 41 is in fact outmoded and hence ought to be repealed. For example, the Report of the Republic Advisory Committee (1993, Vol 2, p 316) stated: The dilemma … is that, in contrast to other provisions, it is not readily apparent from the language of the section itself that it is expended. This raises the issue of whether it can truly be regarded as expended if there is any room for argument that a future High Court may reverse its approach and give the section more room for operation.

[page 103]

OATH OR AFFIRMATION OF ALLEGIANCE 166 Section 42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.

See Quick and Garran, 1901, pp 487–8 (Revised ed, 2015, pp 559–60); Brazil and Mitchell, 1981, pp 27–8 (no 17); Lane, 1997, pp 102–3; Evans and Laing, 2012, p 167; McKeown, 2013, pp 12–15. 167 The oath or affirmation sworn by parliamentarians is set out in the Schedule to the Constitution. This oath must be distinguished from that sworn by members of the Federal Executive Council (s 62), the form of which is not prescribed by the Constitution. The oath of Federal Executive Councillors is determined by the government of the day. See McKeown, 2013, pp 20–3. For the text under the

Howard government, see House of Representatives Hansard, 16 August 2005, p 207. Federal Ministers also swear an oath of office. Once again this oath is not prescribed by the Constitution. See McKeown, 2013, p 16. For example, in April 1993 the Keating government introduced a republican ministerial oath that did not make reference to the Queen. See Constitutional Convention, 1998, Vol 3, p 408. A monarchical oath was reintroduced by the Howard government between 1996 and 2007. For its text, see House of Representatives Hansard, 2 December 1998, p 1264. In December 2007 the Rudd ministry swore a republican oath of office. Prime Minister Kevin Rudd pledged that he would ‘well and truly serve the Commonwealth of Australia, her land and her people in the Office of Prime Minister’. See Sydney Morning Herald, 8 December 2007, p 35. The Gillard ministry swore a slightly amended oath. In September 2013 Prime Minister Tony Abbott swore allegiance to the ‘Queen of Australia’. See McKeown, 2013, pp 19–20.

MEMBER OF ONE HOUSE INELIGIBLE FOR OTHER 168 Section 43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.

See Quick and Garran, 1901, p 448 (Revised ed, 2015, pp 560–1); Attorney-General’s Department, 1980, pp 37–8; Constitutional Commission, 1988, Vol 1, pp 287, 301; Lane, 1997, p 103; Carney, 2000, pp 23–5. 169 This section is self-explanatory. It prevents both a senator and a member of the House of Representatives from being elected to or sitting in the other House. Consequently, a senator who becomes a candidate for an election to the House of Representatives must resign their seat before the date of election. In Sykes v Cleary (No 2) (1992) 176 CLR 77; 109 ALR 577 Mason CJ, Toohey and McHugh JJ indicated that the words ‘incapable of being chosen’ in s 43 refer to the process

[page 104] of being chosen. They said that it could ‘scarcely have been intended’ that a member of one House of Parliament could stand for election to the other House while still retaining their membership of the other House, resigning after the votes are counted but just prior to the declaration of the poll: at 100.

DISQUALIFICATION 170

Section 44. Any person who —

(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 (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 sub-section 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.

See Quick and Garran, 1901, pp 489–94 (Revised ed, 2015, pp 561–7); Opinions No 1787 of 11 November 1946, No 1809 of 8 July 1947, 1899 of 4 September 1950; Evans (1975) 49 ALJ 464; Hanks in Evans, 1977, pp 190– 200, 207; Attorney-General’s Department, 1980, pp 38–40; Senate Standing Committee on Constitutional and Legal Affairs, 1981; Constitutional Commission, 1988, Vol 1, pp 275–6, 283–304; Lane, 1997, pp 104–11; House of Representatives Standing Committee, Aspects of Section 44, 1997; Carney (1999) 11 Bond LR 245; Lindell (2000) 3 Const L & Pol’y Rev 30;

Shaw (2000) 11 Public LR 83; Carney, 2000, pp 18–23, 28–43, 51–3, 60–84, 91–3, 97–113, 143–5; Kalokerinos in Papers on Parliament No 36, 2001, pp 85– 115; Barnett, 2002; Hanks, 2004, pp 222–7; Rogers (2004) 29 Alternative LJ 239; Orr, 2010, pp 105–16; Wright, 2012, pp 134–8; Hanks, Gordon and Hill, 2012, pp 70–6; Evans and Laing, 2012, pp 157–63; Clarke, Keyzer and Stellios, 2013, pp 714–8; Williams, Brennan and Lynch, 2014, pp 698–706. 171 The five categories of disqualification for membership of Parliament are set out in this section. A person who falls within any of these categories is prohibited from being chosen or sitting in either House. Consequently, if a candidate is subject to any of these disqualifications at the date of their election and they are ‘elected’ to a seat, that ‘election’ is null and void. [page 105] The House may take appropriate action to have the election set aside and the vacancy filled. The ‘common informer’ action is also available under s 46. Successfully disputed Senate elections have not been declared absolutely void, and recounts have been considered appropriate. See Re Wood (1988) 167 CLR 145 at 165–6; 78 ALR 257; Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [1], [177]–[178]. In Sykes v Cleary (No 2) (1992) 176 CLR 77; 109 ALR 577 the High Court declined to adopt a ‘special count’ method where House of Representatives candidates had been ‘elected’ despite being disqualified under s 44. To do so would distort the electors’ true intentions because of the differences between the Houses as regards the method of election. Instead the entire election for the seat was declared void: at 102. A new election was subsequently held. See also Free v Kelly (1996) 185 CLR 296 at 303–4; 138 ALR 649. (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

172 This ground of disqualification would disqualify a person who, although formally an Australian citizen, has transferred their loyalty to a foreign country. This would usually be attested by the fact that the person has

taken out foreign citizenship, but there would be cases where de facto allegiance is given without becoming a citizen of that country, for example by accepting a foreign passport or by serving in the armed forces of the foreign country. The act must be one which clearly establishes allegiance to the foreign country. To act as an ‘honorary’ consul would not be of this nature, nor would acceptance of a foreign award or honour. In Nile v Wood (1988) 167 CLR 133; 76 ALR 91 the court rejected a claim that a senator’s participation in protests against the naval vessels of a friendly nation showed allegiance to a foreign power. These facts were ‘clearly insufficient’ to establish foreign allegiance: at 140. Speaking obiter, the court suggested that this disqualification applied ‘only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgment’: at 140. 173 The second part of this paragraph covers cases where an Australian citizen formally takes on foreign citizenship (even without renouncing their own citizenship), or where an Australian naturalized citizen voluntarily retains the privileges or rights attaching to their former citizenship. In Sykes v Cleary (No 2) (1992) 176 CLR 77; 109 ALR 577 the court held that assumption of Australian citizenship by a foreign citizen was not necessarily sufficient to shed that foreign nationality. Mason CJ, Toohey and McHugh JJ held that the foreign citizen must comply with the laws of the foreign country as to the renunciation of citizenship: at 107. However, a foreign State’s absolute prohibition of relinquishment of its citizenship would not absolutely debar a citizen from election. The disqualification would not apply to ‘an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance’: at 107. The test of Dawson J was similar: at 131. Brennan J also considered that in general the relevant law was that of the foreign power: at 110, 112. He added certain caveats as to situations in which the foreign law should not be recognised: at 113. He considered that the disqualification was avoidable through the taking of all reasonable steps under the foreign law to discharge foreign nationality: at 114. [page 106]

In Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 a majority of the court held that the United Kingdom is now a foreign power under s 44(i). Gleeson CJ, Gummow and Hayne JJ noted that Australian courts were not required to give effect to exercises of legislative, executive and judicial power by United Kingdom authorities: at [59], [65]–[66], [82], [96]. Gaudron J also concluded that the United Kingdom is now a foreign power: at [164]–[165], [171]–[172]. The remaining judges did not determine this issue: at [248], [282], [297]. For a discussion of this case, see McConvill (2000) 4, 2 Deakin LR 151. The Constitutional Commission recommended the repeal of s 44(i). See Constitutional Commission, 1988, Vol 1, pp 283, 287–9. A House Committee also recommended the repeal and substitution of this subsection. See House of Representatives Standing Committee, Aspects of Section 44, 1997, p 43. (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

174 Conviction for treason is the major crime which would disqualify an Australian citizen from membership of Parliament. As to other crimes, it is provided that a convicted person who is still under sentence or subject to be sentenced for a crime punishable under Commonwealth or State law by imprisonment for one year or longer is incapable of being chosen or of sitting as a member of Parliament. If such a person has served their sentence, the disqualification is at an end. See Nile v Wood (1988) 167 CLR 133 at 139; 76 ALR 91. (iii) Is an undischarged bankrupt or insolvent

175 A person who has not been discharged after being declared bankrupt is disqualified from membership of Parliament. In Nile v Wood (1988) 167 CLR 133; 76 ALR 91 it was stated that the adjective ‘undischarged’ appearing before the word ‘bankrupt’ also qualifies the word ‘insolvent’. Thus the test for disqualification is not insolvency in a financial sense. The test is whether a court has declared a person insolvent and that person has not been discharged

from their insolvency: at 139. Dawson J followed this approach in Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 650; 67 ALJR 714. The Constitutional Commission recommended the repeal of s 44(iii). See Constitutional Commission, 1988, Vol 1, pp 293–4. (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 But sub-section 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.

[page 107] 176 The holding of an office of profit under the Crown is a traditional form of disqualification for membership of Houses of Parliament established on the British pattern. Employment by the Crown or in the public service was regarded as affecting the independence of the member. However, there is an exception in the case of Ministers of the Crown. This principle is embodied in s 44(iv). In so far as the doctrine of responsible government reflected in s 64 requires them to be members of Parliament, they are entitled to receive the emoluments attaching to ministerial office. Incapacity also attaches to persons who receive a Commonwealth pension payable during the pleasure of the Crown. In Sykes v Cleary (No 2) (1992) 176 CLR 77; 109 ALR 577 Mason CJ, Toohey and McHugh JJ stated that s 44(iv) clearly excluded public servants, including school teachers, from holding office: at 95, 97. The disqualification extends to State public servants: at 98. Public servants must resign their position to contest a federal election. The mere taking of unpaid leave will not avoid the disqualification. ‘The person remains the holder of an office, notwithstanding that he or she is not in receipt of pay during the period of leave’: at 97–8. When does the disqualification begin to operate? In Cleary the candidate

had resigned his office of profit after nominating and after the holding of the election, but before the declaration of the poll. It was held that the incapability of being chosen related to the whole process of being chosen including nomination, rather than merely to the act of choosing (that is, the election): at 100. A House Committee recommended the repeal and substitution of this subsection. See House of Representatives Standing Committee, Aspects of Section 44, 1997, p 93. The Committee also recommended the repeal of the exemptions for State Ministers and Imperial military personnel: at 100. (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

177 This section was based upon the traditional English prohibition which was designed to diminish the power of the Crown to exert corrupt influence over Parliament. Government contractors, that is, persons who deal with the public service by providing goods or services, are disqualified. However, the phrase ‘pecuniary interest’ implies that the agreement between the member and the Crown or public service must be for valuable consideration. Performance of services without payment is not covered. The paragraph does not apply to the situation where a member of Parliament indirectly benefits from a government grant, for example as a member of an agricultural body which receives government assistance. See Sawer, 1956, p 249. If the member of Parliament is a member of a company (consisting of more than 25 persons) which deals with the public service, they are not disqualified. The requirement of 25 persons would be aimed at a small proprietary company which could be used by an intending candidate as a ‘front’ for carrying on business activities with the public service after being elected. 178 In Re Webster (1975) 132 CLR 270; 6 ALR 65 a Senator was a member and director of a company which had commercial dealings with government departments. Barwick CJ held that s 44(v) applied only to executory contracts which had ‘a currency for a substantial

[page 108] period of time’: at 279–80. The contracts must be such that the ‘Crown could conceivably influence the contractor in relation to parliamentary affairs by the very existence of the agreement, or by something done or refrained from being done in relation to the contract or its subject matter, whether or not that act or omission is within the terms of the contract’: at 280. Furthermore, Barwick CJ expressed the view that the interest of the person in the agreement ‘must be pecuniary in the sense that through the possibility of financial gain by the existence or performance of the agreement, that person could conceivably be influenced by the Crown in relation to Parliamentary Affairs’: at 280. The particular transactions in this case were not of this nature and therefore Senator Webster was not ineligible to hold his seat: at 288. See Hanks in Evans, 1977, pp 195–8. In June 1999 the Webster case was discussed in the House of Representatives in relation to the alleged disqualification of one of its members. The government relied upon the interpretation adopted in that case. See House of Representatives Hansard, 10 June 1999, pp 6725–6. The House adopted a motion determining that the member had not been disqualified: at 6224, 6233.

VACANCY ON HAPPENING OF DISQUALIFICATION 179

Section 45. If a senator or member of the House of Representatives —

(i) Becomes subject to any of the disabilities mentioned in the last preceding section: or (ii) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or (iii) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State: his place shall thereupon become vacant.

See Quick and Garran, 1901, pp 494–5 (Revised ed, 2015, pp 567–9); SG Opinion No 1809 of 8 July 1947; Evans (1975) 49 ALJ 464; Hanks in Evans,

1977, pp 190–200, 207–8; Attorney-General’s Department, 1980, pp 40–1; Lane, 1997, pp 111–12; Carney, 2000, pp 133–8; Barnett, 2002; Orr, 2010, pp 114–15; Wright, 2012, pp 138–9. 180 This section deals with members who, while qualified at the time of election, subsequently become subject to disqualification. When the disqualifying event occurs, the place of the member becomes vacant. The categories of what might be called supervening disqualification are those set out in the preceding section together with the addition of two further categories: (a) taking the benefit whether by assignment, composition or otherwise of any law relating to bankrupt or insolvent debtors; (b) receiving, or agreeing to receive, payment by way of fee or honorarium for services rendered to the Commonwealth or for services rendered in the Parliament to any person or State. The first category covers the case where the member is not made bankrupt for inability to pay their debts but takes advantage of the alternative procedure laid down in the Bankruptcy [page 109] Act 1966 (Cth) by entering into an arrangement with their creditors. Under the Act there are two types of such agreements: Debt Agreements (Pt IX) and Personal Insolvency Agreements (Part X). The second category covers cases where a member receives fees for services rendered to the Commonwealth government, although this does not prevent a member from receiving allowances for services rendered to the Parliament or its committees. See Sawer, 1956, p 151. This category also prevents a member from receiving payments for ‘lobbying’ in Parliament on behalf of any person or on behalf of a State. It does not prevent a member of Parliament from receiving a gift of moneys raised by public subscription for ‘public services’. See Sawer, 1956, p 215. The Constitutional Commission recommended the repeal of s 45(ii). See

Constitutional Commission, 1988, Vol 1, p 293.

PENALTY FOR SITTING WHEN DISQUALIFIED 181 Section 46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives 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.

See Quick and Garran, 1901, p 495 (Revised ed, 2015, p 569); AttorneyGeneral’s Department, 1980, p 41; Lane, 1997, pp 112–13; Carney, 2000, pp 145–7; Rogers (2004) 29 Alternative LJ 239; Orr, 2010, pp 230–1; Hanks, Gordon and Hill, 2012, pp 76–7; Evans and Laing, 2012, p 165. 182 This section preserves the ‘common informer’ suit whereby a private individual may sue the disqualified member who continues to sit for the penalty laid down, that is, £100 for each day during which the member sits subsequently to the occurrence of the disqualification. The section is subject to the Parliament ‘otherwise providing’. Under the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth), the penalty recoverable from a disqualified member shall be a sum ‘equal to the total of (a) $200 in respect of his having so sat on or before the day on which the originating process in the suit is served on him or her; and (b) $200 for every day, subsequent to that day, on which he or she is proved in the suit to have so sat’: s 3(1). The High Court has exclusive jurisdiction in such a suit: s 5. See also Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [118]. For the background to this Act, see Meiklejohn, 2011, p 168.

DISPUTED ELECTIONS 183 Section 47. Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, 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.

See Quick and Garran, 1901, pp 495–8 (Revised ed, 2015, pp 569–73);

Attorney-General’s Department, 1980, pp 41–2; Lane, 1997, pp 113–15; Walker (1997) 20 [page 110] UNSWLJ 257; Carney, 2000, pp 147–50; Orr and Williams (2001) 23 Syd LR 53; ALRC, 2001, pp 121–30; Barnett, 2002, pp 18–20; Hanks, Gordon and Hill, 2012, pp 76–7; Evans and Laing, 2012, pp 74–5, 164–5; Faulkner and Orr, 2013, pp 726–7 (no 1726). 184 Under the law and custom of Parliament each House has control over its members and may decide questions as to their qualifications, elections, and other matters affecting the proceedings of Parliament. However, s 47 allows the Parliament to adopt a different procedure for determining these questions. In enacting the Commonwealth Electoral Act 1918 (Cth) the Parliament has ‘otherwise provided’ under s 47. See Sykes v Cleary (No 1) (1992) 107 ALR 577 at 579; 66 ALJR 577; Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [5]. Under the Commonwealth Electoral Act 1918 (Cth), the High Court sits as the Court of Disputed Returns. However, the High Court may refer a matter to the Federal Court for trial: s 354(1). See, for example, Mitchell v Bailey (No 2) (2008) 169 FCR 529; 250 ALR 130; [2008] FCA 692 at [2]. The Court of Disputed Returns has the jurisdiction to decide the validity of an election or return: s 353(1). Section 374 would seem to make the court’s decision mandatory, for it provides: Effect shall be given to any decision of the Court as follows: (i) If any person returned is declared not to have been duly elected, the person shall cease to be a Senator or Member of the House of Representatives; (ii) If any person not returned is declared to have been duly elected, the person may take his or her seat accordingly; (iii) If any election is declared absolutely void a new election shall be held.

The Act provides that decisions of the Court of Disputed Returns ‘shall be final and conclusive and without appeal, and shall not be questioned in any way’: s 368. The High Court nevertheless retains its remedial jurisdiction

under s 75(v) of the Constitution. See Re Green (2011) 275 ALR 437; 85 ALJR 423; [2011] HCA 5 at [35]. Under s 355(c) of the Act petitioners may challenge in the Court of Disputed Returns only the election for the electorate or State in which they were enrolled, not the entire general election. See Muldowney v Australian Electoral Commission (1993) 178 CLR 34 at 42; 114 ALR 513; Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 408; 67 ALJR 818; Pavlekovich-Smith v Australian Electoral Commission (1993) 115 ALR 641 at 642; 67 ALJR 711; Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 646; 67 ALJR 714; Abbotto v Australian Electoral Commission (1997) 144 ALR 352 at 353; 71 ALJR 675; McClure v Australian Electoral Commission (1999) 163 ALR 734; 73 ALJR 108; [1999] HCA 31 at [19]. Under s 355(a) the petition must ‘set out the facts relied on to invalidate the election or return’. In Webster v Deahm (1993) 116 ALR 223; 67 ALJR 781 Gaudron J held that under s 355(a) the ‘very minimum assertion’ which could invalidate an election was one raising facts likely to have affected the election, that is, relating to the casting or counting of votes: at 225. A mere allegation that the electoral roll contained names of persons ineligible to vote is not sufficient — a petition must further allege that persons not entitled to vote did vote: at 231. In Australian Electoral Commission v Johnston (2014) 251 CLR 463; 305 ALR 489; [2014] HCA 5 the election of two Senators for Western Australia was disputed. When the votes were recounted 1370 ballot papers were unable to be found. The winners of the recount were different from those indicated by earlier counting: at [1]. [page 111] The Act provided that in declaring an election void, the court must be satisfied that the loss of the ballot papers was likely to have affected the result of the election: s 362(3). The Act also provided that if a voter was prevented from voting by an error by an electoral official, the court could not admit

evidence of the voter’s voting intentions when it determined whether the result of the election had been affected: s 365. The court held that voters who had cast the lost ballots were prevented from voting by the error of an electoral official: at [63], [78]. The court was unable to admit evidence derived from the earlier counting when it determined whether the result had been affected: at [57], [98]. The number of lost ballots was greater than the gap between the candidates at the point in the count which would have determined the result for the final two Senate places, so the result of the election had been affected: at [11], [104]. The court declared that the entire Western Australian Senate election was void: at [122]. A special election for six Senators for Western Australia was subsequently held. 185 In Re Wood (1988) 167 CLR 145; 78 ALR 257 the court noted that while the Commonwealth Electoral Act 1918 (Cth) transferred the Parliament’s jurisdiction over disputed elections to the Court of Disputed Returns, it did not transfer each House’s jurisdiction over the qualifications of its members or over vacancies: at 161. Each House retained that jurisdiction: at 162. The House in which the question arises may refer the matter to the Court of Disputed Returns. See Commonwealth Electoral Act 1918 (Cth) s 376. This means that in these matters each House retains the power to decide whether to deal with the matter itself or to refer it to the court. As these are essentially legal questions it is to be expected that they will be referred to the court. Nevertheless, in June 1999 the House of Representatives debated a motion seeking to refer to the Court of Disputed Returns the question of whether the place of one of its members had become vacant under s 44(v). This motion was not adopted. Instead, the House adopted a motion determining that the place of the member had not been vacated. See House of Representatives Hansard, 10 June 1999, pp 6727–33; Votes and Proceedings, No 45, 10 June 1999, pp 594–8; note (1999) 10 Public LR 229; Wright, 2012, p 138.

ALLOWANCE TO MEMBERS 186

Section 48. 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.

See Quick and Garran, 1901, pp 498–500 (Revised ed, 2015, pp 573–6); Brazil and Mitchell, 1981, pp 58–60 (no 48); Constitutional Commission, 1988, Vol 1, pp 262–3; Harders (1993) 67 ALJ 109; Lane, 1997, p 115; Meagher (1999) 6, 2 E Law; Evans and Laing, 2012, pp 173–4. 187 Under the Remuneration Tribunal Act 1973 (Cth), the Remuneration Tribunal is given power to inquire into and determine the allowances (including the rate of annual salary) payable to members of Parliament and Ministers: s 7(1)–(2). Such determinations are subject to disapproval by either House of Parliament: s 7(8). In Brown v West (1990) 169 CLR 195; 91 ALR 197 a parliamentarian challenged a ministerial decision to raise parliamentary postal allowances above the level determined by the Remuneration Tribunal. Because this case essentially turned upon s 61, the court largely avoided consideration of s 48: at 201–2. [page 112] Section 48, in combination with s 51(xxxvi), authorises the enactment of legislation providing for the payment of superannuation to members of the House of Representatives. See Theophanous v Commonwealth (2006) 225 CLR 101; 226 ALR 602; [2006] HCA 18 at [7], [37]. Provision for forfeiture of those superannuation benefits following conviction of an offence of corruption also falls within those sections: at [10], [14], [68]. Although the latter words of s 48 provide that the allowance is to be reckoned from the day on which the member takes their seat, the Parliament has ‘otherwise’ provided under the initial words of the section. Payment is now to be ‘reckoned’ from the date of the member’s election in the case of a member of the House of Representatives. See Parliamentary Allowances Act 1952 (Cth) s 5A(1). In the case of a senator chosen at the election after a dissolution of the Senate, payment is reckoned from the date of the election. In the case of a senator chosen to fill a place which is to become vacant in

rotation, payment is reckoned from the 1 July following the election. See Parliamentary Allowances Act 1952 (Cth) s 5(1). For the Constitutional Commission’s recommendations regarding amendment of s 48, see Constitutional Commission, 1988, Vol 1, p 262.

PRIVILEGES ETC OF HOUSES 188 Section 49. 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.

See Quick and Garran, 1901, pp 500–6 (Revised ed, 2015, pp 576–84); Sawer (1971) 7 UQLJ 226; Constitutional Commission, 1988, Vol 1, pp 263– 74; Evans (1988) 11, 2 UNSWLJ 31; Harders (1993) 67 ALJ 109; O’Brien (1995) 25 QLSJ 569; Lane, 1997, pp 115–18; Campbell (1999) 27 FL Rev 367; Campbell (1999) 10 Public LR 196; Carney in Moens, 2000, pp 54–97; Campbell, 2000; Campbell (2000) 26 Mon ULR 312; Carney, 2000, pp 169– 96, 207–43; Carney in Jones and Macmillan, 2003, pp 145–68; Campbell (2003) 22 UQLJ 173; Campbell, 2003, pp 233–8; Evans in Lee and Winterton, 2003, pp 145–59; Ratnapala and Crowe, 2012, pp 227–8; Wright, 2012, pp 15–16, 667–70, 732–4, 739–41, 747–8; Begbie, 2012; Evans and Laing, 2012, pp 39–92, 647–9; Hanks, Gordon and Hill, 2012, pp 113–19; Clark, 2013, pp 134–50; Clarke, Keyzer and Stellios, 2013, pp 757–63; Williams, Brennan and Lynch, 2014, pp 654–6. 189 The effect of this section is to empower the federal Parliament to define the powers, privileges and immunities attaching to the Senate and the House of Representatives, their committees and members. In the absence of such definition, the privileges etc shall be those of the House of Commons and of its members and committees as at 1 January 1901 (the date of the establishment of the Commonwealth). The Commonwealth Parliament has not enacted a comprehensive code relating to parliamentary privilege but has merely dealt with aspects thereof by legislation enacted pursuant to s 49. See, for example, Parliamentary Papers Act 1908 (Cth) (publication of parliamentary papers) and Parliamentary

Proceedings Broadcasting Act 1946 (Cth) (broadcasting of parliamentary sittings). [page 113] The Parliamentary Privileges Act 1987 (Cth) both clarifies and modifies the law and custom of Parliament. The Act continues the powers, privileges, and immunities of each House as they were under s 49 immediately before the Act commenced, except in cases where the Act expressly provides otherwise: s 5. The consequence is that the major source of the law of parliamentary privilege is that applying to the House of Commons in 1901. The courts may decide whether Parliament possesses a privilege, but Parliament itself is the judge of the ‘occasion and manner’ of the exercise of an ‘undoubted privilege’. See R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162; Egan v Willis (1998) 195 CLR 424; 158 ALR 527; [1998] HCA 71 at [27], [66]. It is usual to classify parliamentary privileges into two groups according to whether they are inherent in the House themselves (corporate privileges) or are primarily held by the members themselves (individual privileges). However, it should be noted that the privileges held by the members are related to the fact that they are members of a corporate body.

Corporate privileges Control of internal proceedings 190 Each House has full control over its proceedings. This is recognised in s 50 of the Constitution which enables each House to make standing orders for the conduct of its business. These standing orders embody some, but by no means all, of the law relating to parliamentary privilege. The courts will not question the regularity of the application of standing orders or of any ad hoc resolution of the House dealing with internal proceedings, except to the extent to which the Constitution or legislation of

the Commonwealth otherwise provides. See Bradlaugh v Gossett (1884) 12 QBD 271 at 275, 278, 285–6; Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188 at 205. However, the courts may determine the validity of an Act of Parliament relating to the composition of the Houses of Parliament. See Queensland v Commonwealth (1977) 139 CLR 585 at 596, 605; 16 ALR 487. For discussions of the control of internal proceedings, see Carney, 2000, pp 180–1; Campbell, 2003, pp 112–23.

Control of members 191 The House of Commons traditionally maintained the right to inquire into and determine the validity of elections of its members. The Australian Constitution expressly authorises the federal Parliament to deal with such matters: s 47. Each House of the Commonwealth Parliament has the right to suspend a member from the service of the House for disorderly conduct on being ‘named’ by the House Speaker or the Senate President. The suspension power is exercised to punish persistent interjectors or for refusal to withdraw an offensive remark made about another member after a request to do so by the presiding officer. See Campbell, 2003, pp 210–12. In the past in extreme cases a member could be expelled. Federal Parliament exercised this power on a single occasion. See Barnett, 2002, pp 15–16; Wright, 2012, p 157. However, s 8 of the Parliamentary Privileges Act 1987 (Cth) now stipulates that a ‘House does not have power to expel a member from membership of a House’. See Carney, 2000, pp 178–80; Campbell, 2003, pp 210–19; Evans and Laing, 2012, pp 74–5. [page 114]

Inquisitorial power 192

Each House has the right to summon non-members (as well as

members) to attend upon it or any of its committees to give evidence or to produce documents. See note (1975) 49 ALJ 556. In Egan v Willis (1998) 195 CLR 424; 158 ALR 527; [1998] HCA 71 the High Court held that either House of the New South Wales Parliament had power to order the production of non-privileged documents by the executive: at [50], [106], [151]. Both Houses of the Commonwealth Parliament may have a similar power. See Kerr (1999) 19 Aust Bar Rev 67; Keith (2000) 28 FL Rev 549. In 2002 a Senate Committee took the view that former Ministers and ministerial advisers did not possess immunity from compulsory attendance before Parliamentary Committees. However, the Committee decided not to compel attendance, partly on the ground that it would be unjust to compel the attendance of ministerial advisers who had been ordered by the Minister not to appear, as that would leave the adviser at risk of being found in contempt. See Senate Select Committee on a Certain Maritime Incident, 2002, pp 180–3, 347 ff. For discussions of the inquisitorial power, see Carney, 2000, pp 181–6; Campbell, 2003, pp 152–76; Evans and Laing, 2012, pp 75– 9.

Publication of debates and documents 193 Each House has complete control over the publication of its proceedings, and over the admission of non-members to the House, including journalists. The publication of reports and proceedings is a privilege — representatives of the press can be excluded from either House. This has happened during wartime when a debate has been held or a report has been made to Parliament in secret. See Souter, 1988, pp 331–2; Wright, 2012, p 243. The authorised Hansard reports of proceedings and parliamentary committee reports are the subject of absolute privilege so far as the law of defamation is concerned. See Civil Law (Wrongs) Act 2002 s 137 (ACT); Defamation Act 2005 s 27 (NSW); Defamation Act 2005 s 27 (Qld); Defamation Act 2005 s 27 (SA); Defamation Act 2005 s 27 (Tas); Defamation Act 2005 s 27 (Vic); Defamation Act 2005 s 27 (WA); Defamation Act 2006 s 24 (NT).

Under s 10(1) of the Parliamentary Privileges Act 1987 (Cth) it is a defence to a defamation action ‘that the defamatory matter was published by the defendant without any adoption by the defendant of the substance of the matter, and the defamatory matter was contained in a fair and accurate report of proceedings at a meeting of a House or a committee’. Broadcast and rebroadcast of parliamentary proceedings is regulated by the Parliamentary Proceedings Broadcasting Act 1946 (Cth).

Punishment for contempt or breach of privilege 194 Each House has the right to punish any person for disobedience to its lawful orders, or for interference with it in the course of its business, or with members in the performance of their duties, or for contempt of the House generally. The form of punishment may be admonition by the Speaker or President, reprimand or committal to custody. The practice of imposing fines is obsolete. An offence is usually purged by apology to the House. A determination by the House as to a breach of privilege is usually preceded by an inquiry conducted by a Committee on Privileges. [page 115] Section 7(1) of the Parliamentary Privileges Act 1987 (Cth) now provides that a House ‘may impose on a person a penalty of imprisonment for a period not exceeding 6 months for an offence against that House determined by that House to have been committed by that person’. Under s 7(2) a penalty of imprisonment ‘is not affected by a prorogation of the Parliament or the dissolution or expiration of a House’. Section 4 limits the scope of contempt by providing that ‘[c]onduct (including the use of words) does not constitute an offence against a House unless it amounts … to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties’. In R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 two journalists were sentenced to jail for three months, or earlier prorogation or dissolution of the House of Representatives, for conduct found by the House

to be a breach of privilege: at 158. The committal in this case was by means of a general warrant for contempt of the House and did not specify the actual conduct which was regarded as constituting the breach or privilege: at 162, 164. However, s 9 of the Parliamentary Privileges Act 1987 (Cth) now requires that a warrant set out the particulars of the matter. The punitive power of Parliament has been criticised. It has been argued that it is preferable for the matter to be determined by a court and not by the House affected, which is acting as ‘judge in its own cause’. See Campbell, 2003, p 192. For discussions of this punitive power, see Pearce (1969) 3 FL Rev 241; Twomey (1997) 8 Public LR 88; Campbell (1999) 10 Public LR 196; Carney, 2000, pp 186–95; Campbell, 2003, pp 189–207; Wright, 2012, pp 749–66; Evans and Laing, 2012, pp 80–92.

Individual privileges Freedom of speech 195 The absolute privilege which attaches to official reports of parliamentary proceedings also attaches to the speeches of the members themselves. This privilege is based upon the idea that only if members are immune from the possibility of suit for defamation for their statements in Parliament will they be able to speak their minds freely regarding public affairs. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 the unanimous court stated the freedom of speech in Parliament and the power to coerce the executive to provide information were among the ‘means for enforcing the responsibility of the Executive to the organs of representative government’: at 559. This principle was established by Article 9 of the Bill of Rights 1689 (Imp), which provides that ‘[t]he freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. Article 9 of the Bill of Rights is ‘declared and enacted’ by s 16 of the Parliamentary Privileges Act 1987 (Cth), which may go further than the traditional protection of Article 9. Section 16 is not limited to defamation proceedings. It covers judicial proceedings and inquiries of any kind which

involve the questioning of a member of either House as to statements made by them in the House. 196 Section 16(2) of the Parliamentary Privileges Act 1987 (Cth) defines ‘proceedings in Parliament’ as ‘all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee’. This provision also gives specific examples of parliamentary proceedings, such as the giving of evidence before a House or committee, preparation of submissions to a House or committee and publication of a document by order of a House or committee. [page 116] In Slipper v Magistrates Court of the ACT (2014) 179 ACTR 1; 285 FLR 78; [2014] ACTSC 85 the Australian Capital Territory Supreme Court held that not every activity undertaken by a parliamentarian in the course of their vocation constitutes an act done for the purposes of transacting parliamentary business under s 16(2): at [48]–[50]. ‘What engages the provisions of s 16 are words spoken or acts done for particular purposes, being the transacting of the business of a House’: at [49]. In that case a Commonwealth parliamentarian was charged with a criminal offence relating to his alleged use of travel entitlements to visit wineries while not engaged on parliamentary business: at [7], [10]. The court held that where a parliamentarian visited a winery for personal reasons, that would not constitute ‘proceedings in Parliament’ under s 16(2): at [53]. Section 16(3) of the Parliamentary Privileges Act 1987 (Cth) further provides: In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament … for the purpose of — (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings …; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing … inferences or conclusions wholly or partly from anything forming part of those proceedings …

In Hamsher v Swift (1992) 33 FCR 545 the Federal Court held that the privilege embodied in s 16(3) cannot be waived by an individual parliamentarian since this is an ‘absolute prohibition’: at 564. In Amann Aviation Ltd v Commonwealth (1988) 19 FCR 223; 81 ALR 710 it was held that under s 16(3) the tender of evidence of a question and answer from Hansard was prohibited where it was done for the purpose of proving some contentious matter: at 230–1. Tender of evidence from Hansard regarding a non-contentious matter would be permissible: at 231. A court may examine the tendered material to determine whether its admission is prohibited: at 232. The intention of Parliament in enacting s 16(3) was to overturn the effect of the decision in R v Murphy (1986) 5 NSWLR 18 at 39; 64 ALR 498, which had permitted cross-examination of a witness regarding their evidence before a Parliamentary committee: at 229–30. In British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123; 281 ALR 75; [2011] FCAFC 107; SLR [2012] HCATrans 193 a government reponse to a Parliamentary committee report was tabled in the Senate and published on a government website. The Full Federal Court held that the tabling of the response in the Senate was protected under s 16(3): at [48]–[49]. However, publication of the response on a government website did not fall within s 16(3): at [50]–[51]. In Slipper v Magistrates Court of the ACT (2014) 179 ACTR 1; 285 FLR 78; [2014] ACTSC 85 the Australian Capital Territory Supreme Court held that s 16(3) did not prevent the courts from receiving evidence in order to determine whether a claim of privilege has been established: at [46], [49], [52]. In Stretton v Minister for Immigration and Border Protection (No 2) (2015) 231 FCR 36; 327 ALR 251; [2015] FCA 559 it was argued that the Ministerial Second Reading Speech for an amendment Bill showed that the Minister had exercised his discretion under the unamended law as if the amendments had already entered into force: at [46]. It was held that s 16(3)(b) and (c) prohibited such a use of a Second Reading Speech: at [47]. However, use of [page 117]

parliamentary materials for the purpose of statutory interpretation is specifically permitted by the Act: s 16(5). For discussions of freedom of speech in Parliament, see Carney, 2000, pp 207–43; Campbell, 2003, pp 10–29; Wright, 2012, pp 735–41; Evans and Laing, 2012, pp 45–56.

Freedom from arrest 197 Members of the House of Commons were traditionally privileged from arrest in civil proceedings while the House was in session and for a period of 40 days before and after a session. There was no protection from arrest on a criminal charge for an indictable offence. It seems to be generally agreed that members have no protection from arrest in respect of nonindictable offences, nor from arrest for contempt of court of a criminal nature. A member of Parliament is not compellable to give evidence before a federal court if that would prevent the member from attending a sitting of the House or the meeting of a Committee of which they are a member. See Evidence Act 1995 (Cth) s 15(2). A member of either House is not required to attend before a court or a tribunal, and may not be arrested or detained in a civil cause, on any day on which the House or Committee of which they are a member meets or within five days before or after that day. See Parliamentary Privileges Act 1987 (Cth) s 14(1). As arrest in civil proceedings is now rare, this particular privilege is no longer of great importance. Furthermore, the Bankruptcy Act 1966 (Cth) specifically applies to members of Parliament: s 7(1). Members and Senators are thus not privileged from arrest in bankruptcy proceedings where arrest is authorised by the Act: ss 78, 264B, 267E. For discussions of the freedom from arrest, see Carney, 2000, pp 195–6; Campbell, 2003, pp 144–51; Wright, 2012, pp 747–9; Evans and Laing, 2012, pp 73–4.

RULES AND ORDERS 198 Section 50. 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.

See Quick and Garran, 1901, pp 507–8 (Revised ed, 2015, pp 585–6); Attorney-General’s Department, 1980, p 44; Lane, 1997, p 118; Wright, 2012, pp 16, 341–2; Evans and Laing, 2012, pp 34–7. 199 The first part of this section enables each House to deal with procedural matters relating to its privileges (for example, formalities to be observed in summoning members or non-members to the House and its committees, procedure for determining breach of privilege). The second part enables each House to make rules and orders regulating the conduct of its business. These rules may be either standing orders or by way of ad hoc resolutions. They concern (among others) matters relating to the sitting of the House, the conduct of its business (including the procedures for debating Bills), and the establishment of committees. Section 50 is ‘ancillary’ to s 49 of the Constitution. See R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 169.

[page 118]

PART V — POWERS OF THE PARLIAMENT LEGISLATIVE POWERS OF THE PARLIAMENT 200 Section 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: —

See Quick and Garran, 1901, pp 508–15 (Revised ed, 2015, pp 586–95); Attorney-General’s Department, 1980, pp 44–8; Lane, 1997, pp 125–48. 201 The main grant of legislative power to the federal Parliament is to be found in s 51. Section 51 does not distinguish between exclusive and concurrent powers, although s 52 and certain other sections of the Constitution make particular Commonwealth powers exclusive to the federal Parliament. However, there are some matters covered by s 51 which by their nature are exclusive to the federal Parliament, for example s 51(iv), (xxiv), (xxv), (xxx), (xxxi), (xxxiii), (xxxvi) and (xxxviii). But apart from these matters the powers conferred upon the federal Parliament are not exclusive of State powers: they are concurrent with continuing powers of the States over the same matters. However, if there is any inconsistency between a valid exercise of power by the Commonwealth and a valid exercise of power by a State, the Commonwealth exercise of power prevails under s 109 of the Constitution. Most of the legislative powers conferred by s 51 relate to a subject matter. A few legislative powers relate to a purpose. A statute enacted under a purposive legislative power ‘is directed to a purpose or end’. See Lane, 1997, p 148. Very few of the Commonwealth legislative powers conferred by s 51 are purposive in nature. See Stenhouse v Coleman (1944) 69 CLR 457 at 471; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27, 89; 108 ALR 681; Cunliffe v Commonwealth (1994) 182 CLR 272 at 296, 323, 353–5; 124 ALR

120; Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; 172 ALR 257; [2000] HCA 34 at [204]. The defence power (s 51(vi)) is a purposive power. See Stenhouse v Coleman (1944) 69 CLR 457 at 471; Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 201, 253, 273; Commonwealth v Tasmania (1983) 158 CLR 1 at 232, 260; 46 ALR 625; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 596– 7; 84 ALR 1; Polyukhovich v Commonwealth (1991) 172 CLR 501 at 697; 101 ALR 545; Leask v Commonwealth (1996) 187 CLR 579 at 591, 605–6; 140 ALR 1; Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 at [135], [221], [227], [425], [597]; Queensland v Congoo (2015) 320 ALR 1; 89 ALJR 538; [2015] HCA 17 at [73]. Some judges have suggested that the conciliation and arbitration power (s 51(xxxv)) is a purposive one. See Re F; Ex parte F (1986) 161 CLR 376 at 388; 66 ALR 193; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27, 94; 108 ALR 681. Other judges have rejected this view. See Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; 172 ALR 257; [2000] HCA 34 at [204]. Gummow and Bell JJ argued that in its application to federal elections the power with respect to ‘matters in respect of which this Constitution makes provision until the Parliament [page 119] otherwise provides’ (s 51(xxxvi)) was purposive ‘in the sense of facilitating the method of choice by qualified electors’. See Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 at [163], see also at [166]. The courts have often given examples of powers which are not purposive in nature. These include the following powers: the external affairs power (s 51(xxix)) (Richardson v Forestry Commission (1988) 164 CLR 261 at 325–6; 77 ALR 237; Victoria v Commonwealth (1996) 187 CLR 416 at 487, 572; 138 ALR 129); the trade and commerce power (s 51(i)) (Murphyores Inc Pty Ltd v

Commonwealth (1976) 136 CLR 1 at 11; 9 ALR 199); the taxation power (s 51(ii)) (Leask v Commonwealth (1996) 187 CLR 579 at 591; 140 ALR 1; Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 at [15]); the marriage power (s 51(xxi)) (Re F; Ex parte F (1986) 161 CLR 376 at 388–9; 66 ALR 193); the aliens power (s 51(xix)) (Cunliffe v Commonwealth (1994) 182 CLR 272 at 323; 124 ALR 120); the currency power (s 51(xxii)) (Leask v Commonwealth (1996) 187 CLR 579 at 591, 606, 624; 140 ALR 1); the social services power (s 51(xxiiiA)) (Higgins v Commonwealth (1998) 79 FCR 528 at 532; 160 ALR 175); the telephonic services power (s 51(v)) (Kizon v Palmer (1997) 72 FCR 409 at 442; 142 ALR 488). The distinction between purposive and non-purposive powers is important in assessing whether a Commonwealth law is supported by a head of federal legislative power. The concept of proportionality is used in determining the validity of a law that is said to be supported by a purposive power. By contrast, the concept of proportionality is of no application to non-purposive powers. See Leask v Commonwealth (1996) 187 CLR 579 at 593, 605–6, 617, 624; 140 ALR 1; but cp Attorney-General (Northern Territory) v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 at [80]. The Parliament shall … have power to make laws for the peace, order, and good government of the Commonwealth with respect to …

202 It is clear that the power to make laws for the peace, order and good government of the Commonwealth is plenary in the sense that the federal Parliament may delegate to a subordinate law-making body. See Roche v Kronheimer (1921) 29 CLR 329 at 337; Victorian Stevedoring and General Contracting Co Ltd v Dignan (1931) 46 CLR 73 at 84, 86, 101, 118–19; Huddart Parker Ltd v Commonwealth (1931) 44 CLR 492 at 506, 512, 518;

Crowe v Commonwealth (1935) 54 CLR 69 at 83, 85, 91, 94; Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170 at 179. Moreover, laws enacted under s 51 may have a retrospective operation, there being no prohibition against passing ex post facto laws. See R v Kidman (1915) 20 CLR 425 at 442–3, 451–4, 461–3; Polyukhovich v Commonwealth (1991) 172 CLR 501 at 714–15, 717–20; 101 ALR 545. If the Commonwealth Parliament has power to enact a law it also has power to repeal that law. See Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA [page 120] 22 at [13]–[15]; Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; 172 ALR 257; [2000] HCA 34 at [30], [184]; Attorney-General (Northern Territory) v Chaffey (2007) 231 CLR 651; 237 ALR 373; [2007] HCA 34 at [3], cp at [53]–[55]. The Commonwealth Parliament may enact criminal laws relating to subjects within federal legislative power. See R v Kidman (1915) 20 CLR 425 at 433–4, 441, 448–50, 459–60; Graziers’ Association of New South Wales v Labor Daily Ltd (1930) 44 CLR 1 at 8; R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 518; Viro v R (1978) 141 CLR 88 at 161; 18 ALR 257; Polyukhovich v Commonwealth (1991) 172 CLR 501 at 644; 101 ALR 545; Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [135]. The need to give a broad and liberal construction to a provision that confers legislative power upon the Commonwealth was strongly affirmed in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 151, and has generally been recognised by the High Court since that decision. The heads of Commonwealth legislative power are to be interpreted ‘with all the generality which the words used admit’. See R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225–6; Victoria v Commonwealth (1996) 187 CLR 416 at 485; 138 ALR 129; Grain Pool of WA Ltd v Commonwealth (2000) 202 CLR

479; 170 ALR 111; [2000] HCA 14 at [16]; New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [142]. The court has cautioned that the heads of federal legislative power ‘should not be given a meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application to future laws’. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [188]. See also Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 at [87]–[88]; XYZ v Commonwealth (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25 at [39]. In a much cited passage, O’Connor J stated that ‘[w]here the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose’. See Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 368. This statement should be quoted in its entirety, since it may be relied upon in support of either a broader or a more restrictive interpretation of a head of federal power. See Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [413]–[416]. O’Connor J’s statement has often been quoted with approval. See, for example, Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 227–8; 39 ALR 417; R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 at 314; 47 ALR 225; Commonwealth v Tasmania (1983) 158 CLR 1 at 127–8; 46 ALR 625; McGinty v Western Australia (1996) 186 CLR 140 at 231; 134 ALR 289; XYZ v Commonwealth (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25 at [43], [83]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 318 ALR 1; 89 ALJR 434; [2015] HCA 11 at [63]. 203 A law enacted under s 51 must be a law with respect to one of the heads of power listed in that section. ‘Characterisation’ is the approach which the court takes to the question whether a Commonwealth law is within a power conferred by s 51 as being a law with respect to a subject matter.

[page 121] There must be a connection between the law and a head of Commonwealth legislative power. ‘If a connection exists between the law and the relevant head of power the law will be “with respect to that head of power” unless the connection is “so insubstantial, tenuous or distant that it cannot sensibly be described as a law with respect to that head of power”’. See Re Maritime Union of Australia; Ex parte CSL Pacific Inc (2003) 214 CLR 397; 200 ALR 39; [2003] HCA 43 at [35]. ‘[O]nce a federal law has an immediate operation within a field assigned to the Commonwealth as a subject of legislative power, that is enough’. See Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; 309 ALR 29; [2014] HCA 22 at [25]. A law may be upheld as being with respect to a subject matter under s 51 even though it also concerns matters falling within State residuary power. See Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 22; 9 ALR 199; Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120 at 154; 22 ALR 291; Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 184, 193–4; 40 ALR 609; Commonwealth v Tasmania (1983) 158 CLR 1 at 151, 270; 46 ALR 625; Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271 at 279; 69 ALR 631; Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19 at [27], [92]. ‘If a law fairly answers the description of being a law with respect to two subject-matters, one a subject-matter within s 51 and the other not, it is valid notwithstanding there is no independent connection between the two subjectmatters’. See Grain Pool of WA Ltd v Commonwealth (2000) 202 CLR 479; 170 ALR 111; [2000] HCA 14 at [16]; New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [142]. The joint judgment of five Justices of the High Court in New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [51] well summarised the court’s approach to the characterisation of federal laws: … a law may be characterised as a law with respect to more than one of the subject-matters set out in s 51. To describe a law as “really”, “truly” or “properly” characterised as a law with

respect to one subject-matter, rather than another, bespeaks fundamental constitutional error. That error is compounded if the conclusion which is reached about the one “real” or “true” or “proper” character of a law proceeds from a premise which assumes, rather than demonstrates, a particular division of governmental or legislative power.

For discussions of characterisation, see Zines in Lee and Winterton, 1992, pp 33–59; Lane, 1997, pp 134–9; Guy, 2013, pp 259–66; Keyzer, 2013, pp 32–8; Clarke, Keyzer and Stellios, 2013, pp 138–41; Gerangelos et al, 2013, pp 1455–67; Joseph and Castan, 2014, pp 63–91; Williams, Brennan and Lynch, 2014, pp 760–88; Aroney, Gerangelos, Murray and Stellios, 2015, pp 136–43; Stellios, 2015, pp 19–70. … subject to this Constitution …

204 Commonwealth legislative power is not subject to the Bill of Rights 1689 or the Magna Carta. See Chia Gee v Martin (1905) 3 CLR 649 at 653; Re Cusack (1985) 66 ALR 93 at 95; 60 ALJR 302; Re Skyring (1994) 68 ALJR 618 at 619; Clark (2000) 24 MULR 866 at 875–80; Lohe v Gunter [2003] QSC 150 at [4]; Clark (2015) 89 ALJ 730 at 733–4. Nor is it subject to international law. See Polites v Commonwealth (1945) 70 CLR 60 at 69, 74, 75, 77–8, 79, 81; Horta v Commonwealth (1994) 181 CLR 183 at 195; 123 ALR 1. [page 122] However, the legislative power of the Commonwealth Parliament is conferred ‘subject to this Constitution’. This phrase emphasises that the legislative powers in s 51 are restricted by express and implied constitutional prohibitions, such as freedom of religion, the implied freedom of political communication and implied restrictions arising from the federal system. In Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; 147 ALR 42 McHugh J stated that where a power is conferred ‘subject to this Constitution’, where that power conflicts with another provision that is not qualified by the same words, the unqualified provision prevails: at 577. If there is a conflict, the provisions should not be reconciled and priority should be given to the unqualified provision: at 577. If there is no conflict between the

provisions, these words have no effect. If there is a conflict between the provisions, these words show which provision is to prevail: at 580. Gummow J noted that this phrase appears in many sections of the Constitution (ss 2, 10, 27, 31, 51, 52, 58, 106, 108): at 606. He suggested that the powers in s 51 would be subject to constitutional prohibitions even if the words ‘subject to this Constitution’ had not been included in s 51: at 606. Kirby J suggested that the use of those words in s 51 is ‘superfluous’, since the Constitution is to be ‘read as a whole’: at 653. Both s 106 and s 51(xxxviii) are expressed to be ‘subject to this Constitution’. In Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; 88 ALR 12 the court held that in the event of a conflict between these two provisions s 51(xxxviii) should prevail as it ensures the overall plenitude of Australian legislative power. Thus the protection of State Constitutions afforded by s 106 is subject to the power in s 51(xxxviii): at 381. One question which has been before the High Court in a number of notable cases is to what extent the Commonwealth may, by legislating under a head of power contained in s 51, interfere with the powers of a State or a State instrumentality. In the early cases the High Court espoused the doctrine of immunity of instrumentalities. This was a doctrine which operated reciprocally to protect Commonwealth and State instrumentalities from control or interference by one another. See Parkinson (2002) 13 Public LR 26. Associated with this doctrine was another doctrine which became known as the reserved powers doctrine. Under this doctrine the High Court took a narrow view of Commonwealth power in order to preserve what was considered to be State residuary power under s 107 of the Constitution. See R v Barger (1908) 6 CLR 41 at 69; Attorney-General (NSW); Ex rel Tooth & Co Ltd v Brewery Employees’ Union (1908) 6 CLR 469 at 108; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 354; Aroney (2008) 32 MULR 1; Williams, Brennan and Lynch, 2014, pp 248–53; Gerangelos et al, 2013, pp 1111–16; Aroney, Gerangelos, Murray and Stellios, 2015, pp 118–32; Stellios, 2015, pp 4–8. 205 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (the Engineers’ case) spelt the demise of these doctrines. So far as the

doctrine of immunity of instrumentalities was concerned, the actual decision in this case was that a Commonwealth award could bind State instrumentalities. As to the reserved powers doctrine, it was pointed out that s 107 could not be regarded as ‘reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in 51, as that grant is reasonably construed, unless that reservation is as explicitly stated’: at 154. For discussions of this case, see Goldsworthy (2009) 37 FL Rev 364; Mason (2010) 12 Const L & Pol’y Rev 41; Ratnapala and Crowe, 2012, pp 276–84; Evans (2012) 24 Giornale di Storia Costituzionale 65; Clarke, Keyzer and Stellios, 2013, pp 54–61; Gerangelos et al, 2013, pp 1117–30; Williams, Brennan and Lynch, 2014, pp 253–61; Stellios, 2015, pp 8–18. [page 123] The reserved powers doctrine has now been ‘exploded’. See Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 66; Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 79; Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 12, 14; Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 485; Commonwealth v Tasmania (1983) 158 CLR 1 at 280–1; 46 ALR 625; New South Wales v Commonwealth (1990) 169 CLR 482 at 507; 90 ALR 355; Western Australia v Commonwealth (1995) 183 CLR 373 at 478; 128 ALR 1. The question of the extent to which an intergovernmental immunity doctrine still remained part of the constitutional framework was one which was attended by some uncertainty. Subsequent cases suggest the following limitations upon the power of the Commonwealth Parliament to bind the States by legislation enacted under s 51.

Constitutions of the States 206 The Commonwealth Parliament cannot impair the Constitution of a State (including the judicial power of a State). See Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 547; 84 ALR 1.

In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; 108 ALR 577 Brennan and McHugh JJ invalidated the Commonwealth government’s prohibition upon electoral advertising concerning State elections on the ground that it impaired State electoral processes: at 162–4, 241–4. According to McHugh J, the immediate object of the legislation was ‘to control the States and their people in the exercise of their constitutional functions’: at 241. He argued that the continuance of the States as independent legal entities with their own Constitutions and Parliaments necessitated that Commonwealth legislative power did not extend to interference in the electoral processes of the States, subject to a clear contrary intention in the Constitution: at 242–3.

Discriminatory legislation and laws affecting the capacity of a State or States to function 207 In Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (the State Banking case) the Commonwealth had attempted by legislation to deprive the States of the freedom to choose the banking institutions with which they would bank. The High Court held that this legislation was invalid as a serious interference with the constitutional powers of the States. Latham CJ applied the characterisation test and considered the legislation to be legislation with respect to State government powers and hence not within any head of power in s 51: at 61. Dixon J based his decision upon the ground that the legislation discriminated against the States. He wrote (at 83): … unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority. In whatever way it may be expressed an intention of this sort is, in my opinion, to be plainly seen in the very frame of the Constitution.

Both Rich and Starke JJ considered that the law interfered with essential functions of government. They were of the opinion that even a nondiscriminatory law would violate the constitutional limitations: at 66, 74. Starke J considered that ‘neither federal nor State Governments may destroy the other nor curtail in any substantial manner the exercise of its powers or “obviously interfere with one another’s operations”’: at 74.

[page 124] 208 In Victoria v Commonwealth (1971) 122 CLR 353 (the Pay-roll Tax case) a majority of the court held that there was no principle which exempted the States from Commonwealth taxation laws. Nevertheless they considered that federal implications limiting Commonwealth legislative power over the States arose from the federal nature of the Constitution: at 387, 403, 410, 417–18. A law which discriminated against the States would be invalid as being contrary to a fundamental federal premise. Several judges expressed the view that this federal premise extended beyond the realm of discriminatory laws. A law of general application could infringe the principle: at 392, 410–11, 423–4. Although the formulation of the principle was vague, it would seem that a Commonwealth law of general application which interfered in some substantial or basic manner with the functions of a State government might infringe this principle. In Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192; 61 ALR 1, the Melbourne Corporation principle was reaffirmed. Mason J stated (at 217–18): Three comments should be made in relation to the prohibition as it has been expressed. 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, … the principle … protects legislatures as well as executive governments. Thirdly, it does not follow that every law which deprives a State of a right, privilege or benefit which it enjoys will amount to discrimination in the sense already discussed. A law which deprives a State of a right, privilege or benefit not enjoyed by others, so as to place the State on an equal footing with others, is not a law which isolates the State from the general law … 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 organised State governments.

209 Until 2003 the implied limitation was expressed as consisting of two limbs: (a) A Commonwealth Act which discriminateed against the States or a State or an agency of a State by placing a special disability or burden on them was invalid.

(b) A Commonwealth Act of general application which operated ‘to destroy or curtail the continued existence of the States or their capacity to function as governments’ was invalid. See Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 217; 61 ALR 1. If the law was of general application it could affect State governmental rights and functions if it fell within an enumerated Commonwealth head of power provided that it did not amount to such a burden upon the States as to be invalid under the criterion stated in (b) above. What the Melbourne Corporation prohibition does not do was elaborated upon in Re Lee; Ex parte Harper (1986) 160 CLR 430; 65 ALR 577. Mason CJ, Brennan and Deane JJ observed that the implied prohibitions do not protect the States from the exercise of Commonwealth powers that envisage their application to the States: at 453. This observation was approved by six members of the court in both Western Australia v Commonwealth (1995) 183 CLR 373 at 477; 128 ALR 1 and Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19 at [31], [100]. In Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249; 113 ALR 385 Mason CJ, Deane and Gaudron JJ clarified this observation. The statement ‘that [page 125] the implied limitations must be read subject to the express provisions of the Constitution, should not be understood as excluding consideration of implications derived from the Constitution until the scope of [the conciliation and arbitration power in] s 51(xxxv) is ascertained by reference to its terms alone’: at 271–2. Thus the method of interpretation is a ‘holistic’ one: the subject matter and structure (including implications) are all to be taken into account. 210 In Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188; 128 ALR 609 the court examined the operation of the implied limitation in some depth. In a joint judgment Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ noted that the implied limitation had two limbs.

The first limb was the prohibition against laws which placed special burdens or disabilities upon the States. The second limb was the prohibition against generally applicable laws which destroyed or impaired the continued existence of the States or their capacity to function as governments: at 231. The court rejected an argument based upon the first limb because the legislation under challenge was general in application: at 239. Whether a law discriminates against a State is not to be determined according to the subjective motives of Commonwealth Parliamentarians: at 239–40. Rather, the court examines the ‘substance and actual operation of the law in the circumstances to which it applies’: at 240. The court also elaborated upon the second limb at some length. A law which sought to ‘control the States’ would infringe this limb: at 232. This decision was applied in Victoria v Commonwealth (1996) 187 CLR 416 at 498–503, 518–21; 138 ALR 129. The scope of the second limb in relation to State employees is further discussed at para [387]. 211 So far as the first limb of the limitation was concerned, in Western Australia v Commonwealth (1995) 183 CLR 373; 128 ALR 1 the court held that the fact that a law had a greater practical effect upon a particular State did not mean that the law discriminated against that State: at 478. So far as the second limb of the limitation was concerned, the court held that the question was not whether the exercise of State powers was made more complicated or was ‘effectively restricted’ by the federal law. The question was whether the federal law affected the ‘existence and nature’ of the States: at 480. ‘A Commonwealth law cannot deprive the State of the personnel, property, goods and services which the State requires to exercise its powers and cannot impede or burden the State in the acquisition of what it so requires’: at 480. In Austin v Commonwealth (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3 the court applied the Melbourne Corporation principle to invalidate a Commonwealth law that taxed the surchargeable superannuation contributions of State Supreme Court judges. Gaudron, Gummow and Hayne JJ questioned the characterisation of the Melbourne Corporation limitation as having two limbs. They suggested that there was only ‘one limitation, though the apparent expression of it varies with the form of the legislation under consideration’: at [124]. They also stated that ‘invalidity does not necessarily attend any federal law which requires a State in the performance of its functions to bear a burden or to suffer a disability to which others are not

subject’: at [139]. McHugh J strongly disagreed with the contention that there was only one limitation. He cited extensive authority which showed that the prohibition has two elements: at [219]–[223]. For a discussion of this case, see Simpson (2004) 32 UWALR 44. See also the discussion of this case under s 51(ii). In Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272; 258 ALR 623; [2009] HCA 33 French CJ, Gummow, Heydon, Kiefel and Bell JJ accepted that the Melbourne Corporation principle consists of only one limitation: at [16], [28], [66]. [page 126] In O’Donoghue v Ireland (2008) 234 CLR 599; 244 ALR 404; [2008] HCA 14 the appellants argued that the Commonwealth may not unilaterally impose a duty upon the holder of a State statutory office without the consent of the State Parliament: at [12]–[13]. The majority found it unnecessary to decide this issue: at [14], [20], [57], [68]. In Betfair Pty Ltd v Western Australia (2008) 234 CLR 418; 244 ALR 32; [2008] HCA 11 six Justices indicated by way of obiter dictum that the words ‘subject to this Constitution’ in s 51 provide some textual support for the Melbourne Corporation principle: at [88]. In Unions NSW v New South Wales (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58 French CJ, Hayne, Crennan, Kiefel and Bell JJ held that the Melbourne Corporation principle did not prevent the operation of the implied freedom of political communication in relation to State laws that regulated State elections: at [34]. Some Commonwealth statutes expressly accommodate the implied limitation. For example, several statutes provide that their provisions do ‘not enable a power to be exercised to the extent that it would impair the capacity of a State to exercise its constitutional powers’. See Auditor-General Act 1997 s 56A(2); Productivity Commission Act 1998 (Cth) s 56(4). See also the variant in Coordinator-General for Remote Indigenous Services Act 2009 s 13, repealed by Omnibus Repeal Day (Autumn 2014) Act 2014 Sch 8 item 1 (Cth).

For discussions of the Melbourne Corporation principle, see Douglas (1985) 16 UWALR 105; Dixon (1993) 9 QUTLJ 1; Lane, 1997, pp 864–900; Blackshield, Mason and Kenny in Coper and Williams, Cauldron, 1997, pp 59–79; Twomey (2003) 31 FL Rev 507; Twomey, 2004, pp 829–36; Simpson (2004) 32 UWALR 44; Ratnapala and Crowe, 2012, pp 285–9; Hanks, Gordon and Hill, 2012, pp 264–75; Guy, 2013, pp 205–20; Keyzer, 2013, pp 55–64; Clarke, Keyzer and Stellios, 2013, pp 508–38; Gerangelos et al, 2013, pp 1130–77; Williams, Brennan and Lynch, 2014, pp 1084–113; Joseph and Castan, 2014, pp 302–21; Aroney, Gerangelos, Murray and Stellios, 2015, pp 256–71; Stellios, 2015, pp 476–503.

Indivisibility of the Crown and presumptions relating to the effect of legislation upon the Crown 212 Reference must be made to one other aspect of the matter: the doctrine of the indivisibility of the Crown (that is, that the Crown is a single entity). The judgment in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 proclaimed the view that the Crown was one and indivisible (although acting in different jurisdictions and on the advice of different Ministers): at 152. However, the course of judicial interpretation demonstrates the separate structure of the Commonwealth and the States referred to as the Crown in right of the Commonwealth and the Crown in right of the States. Nevertheless, the doctrine continues to have some significance in relation to the question of whether a Commonwealth statute binds a State Crown. The Commonwealth Parliament may grant immunity to the Commonwealth Crown from the operation of its own legislation while binding State Crowns (subject to express and implied principles concerning discrimination). Likewise legislation establishing a Commonwealth instrumentality may exempt that instrumentality from State laws that would affect its operations. In this situation s 109 renders inoperative the State legislation in its application to the instrumentality. See Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46 at 53, 58, 61, 71; Bayside

City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19 at [35], [91]. [page 127] The Commonwealth Parliament may also qualify, abolish or modify the immunity which it has by nature of its status in the constitutional system as the executive government of the Commonwealth. See Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372. Section 64 of the Judiciary Act 1903 (Cth) provides: ‘In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same … as in a suit between subject and subject.’ In Maguire v Simpson (1977) 139 CLR 362; 18 ALR 469 it was held that s 64 had the effect of abolishing certain Commonwealth immunities thus making the Commonwealth Crown subject to certain State legislation: at 373, 377. However, a Commonwealth statute enacted subsequent to s 64 may of course be inconsistent with the earlier section, thus expressly or impliedly repealing s 64. See Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [31]–[32]. 213 In Bropho v Western Australia (1990) 171 CLR 1 at 22; 93 ALR 207 Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated that: … considerations of principle preclude recognition of an inflexible rule that a statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by “necessary implication” … If such a legislative intent appears when the relevant legislative provision is construed in a context which includes the presumption against the Crown and its instrumentalities or agents being so bound, that legislative intent must, as a matter of principle, prevail. That being so, earlier judicial statements to the effect that it must be manifest from the very terms of the statute itself that it was the legislative intent that the general words of a statute should bind the Crown, or that it must be apparent that the purposes of the statute would be wholly frustrated unless the Crown were bound, should be read as applying to the context of the particular statutory provisions involved in the cases in which they were made. Such statements should no longer be seen as precluding the identification of such a legislative intent in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context.

214

In Jacobsen v Rogers (1995) 182 CLR 572; 127 ALR 159 Mason CJ,

Deane, Dawson, Toohey and Gaudron JJ indicated that the presumption that a Commonwealth statute is not intended to bind the Crown also extends to the Crown in right of the various States: at 585. The presumption ‘extends beyond the Crown in right of the enacting legislature to the Crown in right of the other polities forming the Federation’: at 585. In that case a Commonwealth statute authorised the granting of search warrants in relation to the investigation of federal offences. The section was not expressed to bind the Crown: at 586. The provision at issue concerned the investigation of crime: at 587. If a search warrant could not be granted in respect of Crown premises the investigation of crime might be frustrated: at 588. The court decided that this provision extended to the granting of warrants to search Commonwealth premises, binding the Commonwealth executive. ‘Once it is seen that the Commonwealth intended … to bind its own executive government, there is no reason to suppose that it did not intend to bind the executive governments of the States’: at 591. It was thus held that this section bound the Crown in right of the Commonwealth and of the States: at 591. Thus the section extended to the grant of a search warrant authorising the search of State government premises: at 591. 215 In Commonwealth v Western Australia (1999) 196 CLR 392; 160 ALR 638; [1999] HCA 5 it was held that the Mining Act 1978 (WA) did not apply to land sold or leased to the Commonwealth. Gleeson CJ and Gaudron J indicated that the presumption that [page 128] a statute does not bind the Crown would be better formulated as a presumption that a statute which regulates the rights and conduct of individuals does not apply to members of the executive government of the Commonwealth or States: at [33]. They considered that the question in this case was whether a State Act applied to Commonwealth property, rather than whether a State Act bound the Commonwealth: at [31]. There is a presumption that a statute (Commonwealth or State) does not affect

government property: at [34]. This presumption applies to the property of all the polities in the federation, as well as to property of the enacting government: at [36]. 216 In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 the issue was whether the word ‘person’ in ss 6(3) and 75B(1) of the Commonwealth Trade Practices Act 1974 (Cth) included a State. This was a matter of textual construction rather than the application of the presumption discussed in Bropho: at [19]. Nevertheless, six members of the court stated (at [17]–[18]) that: … [historical] considerations and the nature of our federal system make expressions such as “shield of the Crown”, “binding the Crown” and, more particularly, “binding the Crown in right of the Commonwealth” and “binding the Crown in right of the States” inappropriate and potentially misleading when the issue is whether the legislation of one polity in the federation applies to another. Where the legislative provisions in question are concerned with the regulation of the conduct of persons or individuals, it will often be more appropriate to ask whether it was intended that they should regulate the conduct of the members, servants and agents of the executive government of the polity concerned, rather than whether they bind the Crown in one or other of its capacities. In other legislative contexts, slightly different questions may emerge. Thus, for example, where legislation regulates the use of land or other property, it will usually be more pertinent to ask whether the legislation was intended to apply to land or property owned by or on behalf of the polity in question.

In Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1; 237 ALR 512; [2007] HCA 38 the court held that under the Trade Practices Act 1974 (Cth) a corporation that contracted with a Crown authority did not possess an immunity derived from the immunity of that authority. The court determined the issue as a matter of statutory interpretation: at [2]. The Act provided that the prohibitions of misuse of market power and exclusive dealing applied to the Crown only when it was carrying on a business: at [36]–[37], [43], [63]. It would be ‘remarkable’ if a corporation enjoyed an immunity when carrying on its business when the Crown itself would not not have such an immunity when carrying on a business: at [64]. For discussions of these presumptions, see Thomson (1990) 20 UWALR 710; Berry (1993) 14 Statute L Rev 204; Katz (1994) 11 Aust Bar Rev 222; Lane, 1997, pp 883–6; Seddon (2000) 28 FL Rev 549; Taylor (2000) 24 MULR 77; ALRC, 2001, pp 503–23; Lee (2002) 6 U W Syd LR 39; Zines in

Groves, 2005, pp 1–17; Hanks, Gordon and Hill, 2012, pp 259–62; Gerangelos et al, 2013, pp 1107–11.

SPECIFIC LEGISLATIVE POWERS 217

(i) Trade and commerce with other countries, and among the States:

See Quick and Garran, 1901, pp 515–48 (Revised ed, 2015, pp 595–640); SG Opinion No 1798 of 10 April 1947; Constitutional Commission, 1988, Vol 2, pp 775–89; Lane, 1997, [page 129] pp 149–63; Williams, 1998, pp 126–45; Moeller and McKay (2000) 17 Environmental and Planning LJ 294; McCann (2004) 26 Syd LR 75; Lindell (2005) 16 Public LR 271; Gray (2008) 36 Aust Bus LR 29; Puig and Wood (2008) 82 ALJ 789; Ratnapala and Crowe, 2012, pp 316–9; Hanks, Gordon and Hill, 2012, pp 375–87; Guy, 2013, pp 417–44; Pyke, 2013, pp 181–7; Keyzer, 2013, pp 101–17; Clarke, Keyzer and Stellios, 2013, pp 239–62; Gerangelos et al, 2013, pp 439–76; Williams, Brennan and Lynch, 2014, pp 802–15; Gray (2015) 43 Aust Bus LR 101; Stellios, 2015, pp 71–99. 218 Section 92 of the Constitution provides that trade and commerce among the States shall be absolutely free. There is thus an apparent anomaly in the coexistence within the Constitution of a provision conceding power to the Commonwealth to make laws with respect to trade and commerce among the States, and a further provision guaranteeing absolute freedom of trade and commerce among the States. This question was resolved in Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42 by holding that s 92 does not prohibit all Commonwealth regulation of interstate trade but only invalidates discriminatory burdens of a protectionist kind: at 394. Since the High Court’s decision in Cole the trade and commerce power has taken on a far greater significance. As the court observed in Cole, ‘s 51(i) is a plenary power on a topic of fundamental importance’: at 398. The conferral of

a power to legislate with respect to trade and commerce among the States weighed against an absolutist interpretation of the freedom conferred by s 92: at 398. Trade and commerce

219 In McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530 the High Court rejected an argument that trade and commerce among the States was confined to the act of transportation of goods across a State border. Knox CJ, Isaacs and Starke JJ stated (at 546–7): “Trade and commerce” between different countries … has never been confined to the mere act of transportation of merchandise over the frontier. That the words include that act is, of course, a truism. But that they go far beyond it is a fact quite as undoubted. All the commercial arrangements of which transportation is the direct and necessary result form part of “trade and commerce”. 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”.

In McArthur’s case the court was concerned to emphasise that trade and commerce were not limited to interstate transportation. In Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 the court was faced with the contrary argument that interstate transportation was not itself included within the category of interstate trade and commerce. The court made it clear that all interstate transportation, at least when conducted for reward, fell within the concept of interstate trade and commerce: at 56, 71, 76–7, 82–3, 107. In this case it was also argued that the power of the Commonwealth was only to regulate interstate trade and commerce, and not to undertake them. The High Court rejected this suggested limitation: at 59, 71, 76, 81, 112. As Dixon J said (at 81): … [a] law authorizing the government to conduct a transport service for inter-State trade, whether as a monopoly or not, appears to me to answer the description, a law with respect to trade and commerce amongst the States. It is only by importing a limitation into the descriptive words of the power that such a law can be excluded.

[page 130]

220 Legislation regulating the persons who might engage in interstate or overseas trade and commerce would also appear to be within s 51(i). In R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 Windeyer J expressed the view that by virtue of the trade and commerce power Parliament could regulate the conditions of work of persons engaged in interstate or overseas trade and commerce: at 309. In R v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528 the court upheld the validity of a statutory provision which enabled a federal court to prescribe conditions of employment in the stevedoring industry: at 544. In Re Maritime Union of Australia; Ex parte CSL Pacific Inc (2003) 214 CLR 397; 200 ALR 39; [2003] HCA 43 a foreign crew employed by a foreign company operated a foreign registered vessel in Australian waters: at [4], [6]. The ship was chartered to an Australian company: at [2], [5]. It was held that the engagement of the employees in interstate and overseas trade was sufficient to attract the power. It was not necessary that their employer was also present within Australia: at [37]–[39]. In Bank of New South Wales v Commonwealth (1948) 76 CLR 1 the High Court held that banking is part of trade or commerce. The majority held that the term ‘trade and commerce’ covered intangibles as well as the movement of goods: at 284, 306, 380. The majority opinion was upheld on appeal to the Privy Council. See (1949) 79 CLR 497 at 632. with other countries

221 The power given by s 51(i) clearly authorises prohibition of the export of any commodity, or prohibition except upon compliance with prescribed conditions. See Crowe v Commonwealth (1935) 54 CLR 69 at 96. A law which imposes a conditional prohibition upon export (that is, a prohibition which may be relaxed according to the exercise of a discretion) is dealing with the export of goods 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. See Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 19–20; 9 ALR 199. In that case the validity of the law in question was not affected by the consideration that the Minister was entitled, in deciding whether to approve the export of a mineral, to take into

account the likely effect upon the environment of the extraction of that mineral. In O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 the power of the Commonwealth to control exports was held to extend beyond the mere authorisation or refusal of permission to export. It embraces ‘all matters which may affect beneficially or adversely the export trade of Australia in any commodity produced or manufactured in Australia … Such matters include … anything at all that may reasonably be considered likely to affect an export market by developing it or impairing it … the power of the Commonwealth extended to the supervision and control of all acts or processes which can be identified as being done or carried out for export’: at 598. Though the decision in O’Sullivan related to the scope of the trade and commerce power in relation to overseas trade, the reasoning of that decision is equally applicable to interstate trade and commerce. In some circumstances the effective regulation of interstate or overseas trade may justify legislation controlling activities prior to the stage when commodities are put into the course of trade and commerce. As the court said, it may be necessary ‘even to enter the factory or the field or the mine’: at 598. But the court declined to lay down any rule as to how far back the Commonwealth might go, beyond saying that it ‘must in any [page 131] case depend on the particular circumstances attending the production or manufacture of particular commodities’: at 598. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 a Commonwealth statute provided for the payment of ‘tax bonuses’ to certain categories of taxpayers as an economic stimulus measure during an international financial crisis: at [35]–[36]. The majority (French CJ, Gummow, Crennan and Bell JJ) did not need to decide whether the making of these payments could be supported by the trade and commerce power: at [136], [256]. A minority of the court (Hayne, Kiefel and Heydon JJ) considered that the law authorising the payments was not a law with respect to

trade and commerce with other countries or among the States: at [378], [448]. For a discussion of this aspect of this case, see Appleby and McDonald (2012) 37 Mon ULR 162 at 186–8. The making of investments in foreign nations comes within s 51(i) as trade or commerce with other countries. See R v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22 at [42]. and among the States

222 Dixon CJ observed that ‘[t]he distinction which is drawn between inter-State trade and the domestic trade of a State … may well be considered artificial and unsuitable to modern times. But it is a distinction adopted by the Constitution 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’. See Wragg v New South Wales (1953) 88 CLR 353 at 385–6. In Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194 at 221 Menzies J stated: Commonwealth power over trade and commerce can only extend to such intra-State trade and commerce as is inseparably connected with inter-State trade and commerce, but full acceptance of this limitation is quite consistent with according to the Commonwealth power to prohibit or regulate acts which relate to intra-State trade and commerce if they relate to inter-State or overseas trade and commerce as well … It is true that the constitutional distinction between overseas and inter-State trade and other trade would enable a person engaged in trade to make arrangements relating to his intra-State trade free from control under Commonwealth legislation but it does not enable such a person, by making arrangements relating to trade generally, to put these arrangements beyond Commonwealth control if they do relate to inter-State or overseas trade.

However, the High Court has refused to accept the proposition that where interstate or overseas trade and commerce and intrastate trade and commerce are intermingled, the Commonwealth has power under s 51(i) to deal with intrastate trade and commerce. In R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 672 Dixon J stated: The express limitation of the subject matter of the power to commerce with other countries and among the States compels a distinction however artificial it may appear and whatever interdependence may be discovered between the branches into which the Constitution divides

trade and commerce. This express limitation must be maintained no less steadily in determining what is incidental to the power than in defining its main purpose.

In that case the court rejected the Commonwealth’s argument that its power to legislate with respect to interstate trade extended to all aircraft engaged solely in intrastate trade because of the ‘commingling’ of intrastate and interstate air traffic. However, it was emphasised that while the Commonwealth did not by virtue of the commingling of interstate and [page 132] intrastate trade obtain any power to make laws with respect to any aspects of intrastate trade and commerce, there could be occasions where a Commonwealth law might validly include intrastate activities as part of its regulation of interstate trade: at 677. 223

(ii) Taxation; but so as not to discriminate between States or parts of States:

See Quick and Garran, 1901, pp 549–56 (Revised ed, 2015, pp 640–50); Opinion No 1807 of 1 July 1947; Rose in Zines, 1977, pp 193–210; Constitutional Commission, 1988, Vol 2, pp 814–19; Johnston (1993) 23 UWALR 362; Saunders in Lindell, 1994, pp 214–28; Lane, 1997, pp 164–83; Hanks, 1999, pp 603–27; Saunders in Lee and Winterton, 2003, pp 62–84; Stewart and Walker (2007) 15 Michigan State J Int’l L 193 at 211–7; McLeod (2010) 32 Syd LR 123 at 138–9; Ratnapala and Crowe, 2012, pp 336–43, 348–9; Hanks, Gordon and Hill, 2012, pp 313–33; Gordon (2013) 36 MULR 1037; Pyke, 2013, pp 227–31; Guy, 2013, pp 477–96; Keyzer, 2013, pp 135– 53; Clarke, Keyzer and Stellios, 2013, pp 262–83; 590–600; Gerangelos et al, 2013, pp 698–725; Simpson (2014) 25 Public LR 93; Williams, Brennan and Lynch, 2014, pp 1010–27; Gray (2014) 42 FL Rev 67 at 76–85. 224 The grant to the Commonwealth of a power to tax, though expressed in a completely general form, is subject to certain express qualifications. First, s 51(ii) itself provides that laws with respect to taxation must not discriminate between States or parts of States. Second, s 99 provides that 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. Third, s 88 requires that duties of customs shall be uniform. Fourth, s 114 prohibits the imposition by the Commonwealth of any tax on property of any kind belonging to a State. Sections 53–55 contain provisions about the manner in which tax laws may be enacted. The Commonwealth and the States have concurrent powers of taxation, but the power of the Commonwealth Parliament to impose duties of customs and of excise is made exclusive by s 90. Taxation

225 The cases which have raised the issue of the definition of taxation have often arisen from challenges to the validity of State or Territory Acts on the ground that they imposed duties of excise. A measure imposing excise duties must necessarily be a tax. The High Court has never laid down a test of what is taxation. In Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 Menzies J stated that the court would not look at the motives of the Parliament in passing the legislation nor the economic consequences of the legislation, but if the true character of the legislation was taxation then the legislation dealt with taxation: at 17–18. In Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 a levy imposed upon producers of chicory by a statutory marketing board was held to be taxation. Latham CJ defined taxation as ‘a compulsory exaction of money by a public authority for public purposes, enforceable by law, and … not a payment for services rendered’: at 276. In Air Calédonie International v Commonwealth (1988) 165 CLR 462; 82 ALR 385 the Commonwealth argued that an ‘immigration clearance fee’ to be applied to people entering Australia was a fee for services and hence was not a tax. The court held that because Australian citizens had a right to enter Australia anyway, they received nothing in return for the fee, so [page 133]

it was a tax rather than a fee for services: at 469. The court held that immigration clearance procedures were not services rendered at the request or direction of Australian citizens: at 470. If the fee had been imposed only upon non-citizens it might not have been a tax: at 468–9. The court expanded considerably upon Latham CJ’s definition of taxation in Matthew’s case. The unanimous joint judgment of the court suggested that taxation could be by ways other than by exaction of money. It also suggested that compulsory exaction under statutory authority by non-public authorities for non-public purposes could be taxation. Furthermore, a compulsory ‘fee for services’ may be a tax where a person is given no choice about whether to acquire the services and where its amount bears no apparent connection to the value of the ‘services’: at 467. In Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; 167 ALR 392; [1999] HCA 62 a statutory authority charged airlines fees for the provision of services and facilities at airports. The fee structure reflected the total cost to the authority of providing the services and facilities. Some users paid more than others for the same services, based upon the capacity to pay of individual users: at [452]. The users with a greater capacity to pay thus subsidised those with a lesser capacity to pay: at [134], [453]. The court held that the charges were fees for services rather than taxation. Gleeson CJ and Kirby J identified several factors which showed that the charges were not taxation. The charges did not have the purpose of raising revenue and were charged for the provision of services. They were charged in order to recover the cost of providing those services to all users. The charges for particular services were ‘reasonably related’ to the costs of providing those services: at [92]. Gaudron J observed that the services were provided to the particular person charged for the service: at [133]. Only the users of the services were subject to the charges and all users were charged. There was a ‘commercial justification’ for the difference in pricing: at [141]. Callinan J agreed with Gaudron J: at [516]. McHugh J pointed out that if the fee charged to an individual user must be related to the cost of the particular services provided to that user, the authority could not recover all of its costs: at [307]. Charges imposed by public

authorities providing a monopoly service on a ‘user pays’ basis should not be regarded as taxation: at [309]. The price differential was a ‘reasonably and appropriately adapted means of achieving a legitimate public purpose’ apart from raising revenue: at [314]. Gummow J stated that the redistribution of the cost burden for the services took place only within the group of users and as part of payment for the services provided: at [455]. In the present context it was not necessary to demonstrate a relationship between the particular charge and the particular service to the individual user: at [457]. In State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329; 73 ALR 161 the court noted that, although the Fringe Benefits Tax Assessment Act 1986 (Cth) may also have had the purpose of discouraging the provision of fringe benefits, its true character was to impose a tax. Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ doubted the necessity for a connection between the subject and the object of the tax. In any case, they considered that such a connection existed in the provision of a benefit to an employee in respect of their employment: at 354–5. Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; 112 ALR 53 concerned an amendment to the Copyright Act 1968 (Cth) which purported to impose a ‘blank tape royalty’ payable by the seller who first sold or otherwise distributed a [page 134] blank cassette tape. The court held by majority that the so-called ‘blank tape royalty’ was not a royalty because the payment was not made in respect of a right granted. The ‘royalty’ was a tax as the seller did not receive any benefit or advantage in consideration for the payment. Mason CJ, Brennan, Deane and Gaudron JJ also pointed out that an exaction could be a tax even if it is not paid into the Consolidated Revenue Fund: at 503. In Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 the court held that the Superannuation Guarantee Charge was a tax: at [43]. Under the Charge scheme, if an

employer failed to provide a specified minimum level of superannuation benefits for its employees, the employer was liable to pay the shortfall to the Commissioner of Taxation: at [3]. The Commissioner was to pay the shortfall into a superannuation account for the benefit of the employee. Those payments by the Commissioner were drawn from the Consolidated Revenue Fund: at [9]. The effect of the scheme was to encourage employers to provide the minimum level of superannuation to their employees and thus reduce their liability to pay the Charge: at [3]. While direct superannuation contributions were tax-deductible, payment of the Charge was not deductible: at [57]. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ made several observations regarding Latham CJ’s definition of a tax in the Matthews decision. The phrase ‘public purposes’ did not mean ‘public benefit’: at [19]. If the concept of a tax was extended beyond exactions by a public authority, that would represent a ‘large and controversial’ extension of the definition. However, it was unnecessary to decide that issue in this case: at [37]. The Charge was a tax though its purpose of raising revenue was less significant than the achievement of another legislative aim: at [48]. The Charge was also a tax even though it provided employees with a ‘private and direct benefit’. The payment of the Charge into the Consolidated Revenue Fund established that it was imposed for ‘public purposes’, though not all moneys paid into the Fund were derived from taxes: at [49]. Heydon J agreed in a separate judgment. The encouragement of employers to make superannuation contributions had the ‘public purpose’ of reducing the government’s pension liabilities: at [57], [62]. Any ‘private and direct benefit’ to employees thus had a public purpose: at [62]. The pursuit of ‘public purposes’ and the provision of ‘private and direct benefits’ were not mutually exclusive: at [67]. The fact that the raising of revenue was secondary to another legislative aim did not prevent the Charge from being a tax: at [62]. It was unnecessary to decide whether the concept of a tax extended to exactions than were not made by a public authority: at [68]. In Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530; 281 ALR 671; [2011] HCA 40 the court held that a tax is extracted from the governed. The ‘internal financial arrangements of the government’ do not constitute a tax: at [19], [46], [59]. In that case the Australian Capital Territory

water corporation was subject to water licence fees and an infrastructure charge imposed by the Territory government: at [13], [16]. The court held that these charges were not duties of excise because they were not taxes upon the governed. The water corporation was controlled by the Territory government: at [37], [57].

The scope of the taxation power 226 A Commonwealth law will be supported under the taxation power only if it is a law ‘with respect to’ taxation. In R v Barger (1908) 6 CLR 41 the Act under challenge imposed duties of excise on agricultural implements, but excepted goods manufactured under certain [page 135] labour conditions. The majority of the court held that the Act was beyond power because it was not an Act imposing taxation, but was one to regulate labour conditions: at 78. In Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 the appellants heavily relied upon Barger’s case. Three members of the court (Barwick CJ, Menzies and Windeyer JJ) asserted that a law relating to exemption from income tax did not lose its character as a law with respect to taxation simply by reason of its likely consequences upon investment or because of the motives of the legislature in enacting it. At the same time, they conceded that there might be laws ostensibly imposing tax which were not to be truly characterised as laws with respect to taxation: at 17. None of these judgments commented upon Barger’s case. The other two members of the court (Kitto and Taylor JJ) emphasised that the decision in Barger’s case was based in large measure upon the ‘exploded doctrine’ of State reserved powers: at 12, 14. In Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; 9 ALR 199 Mason J commented that the Fairfax decision had ‘swept away the last vestigial remnants of Barger’s Case’: at 23. 227

The scope of the taxation power was most fully examined in the two

Uniform Tax cases. In South Australia v Commonwealth (1942) 65 CLR 373 (the First Uniform Tax case) the Commonwealth relied upon the taxation power to support two out of the four Acts enacted to give effect to the scheme. The court unanimously held that the Income Tax Act 1942 (Cth) was a valid exercise of the taxation power: at 412, 436, 440, 451, 463. All except McTiernan J held that the taxation power supported a Commonwealth provision that gave priority to the liability to pay Commonwealth income taxation over the liability to pay State income taxation: at 434–5, 436, 440–1, 465. In this context, Starke J observed (at 441): … [t]he taxing power gives the Commonwealth authority to make its taxation effective and to secure to it the full benefit thereof. In my opinion, there is no distinction in principle between the Commonwealth giving itself priority in the administration of assets in bankruptcy and in giving itself priority in payment of the personal obligations imposed by an income tax.

In Victoria v Commonwealth (the Second Uniform Tax case) (1957) 99 CLR 575 Dixon CJ, McTiernan and Kitto JJ decided that on the priorities point the First Uniform Tax case should not be followed. Dixon J said that for the priority provision under challenge to be upheld, ‘it must be said to be incidental to the federal power of taxation to forbid the subjects of a State to pay the tax imposed by the State until that imposed upon them by the Commonwealth is paid and, moreover, to do that as a measure assisting to exclude the States from the same field of taxation. This appears to me to go beyond any true conception of what is incidental to a legislative power’: at 614. On the other hand, Williams, Webb and Fullagar JJ considered that the decision in the First Uniform Tax case was correct and should be followed: at 629, 644, 655. Taylor J took a different line, holding that the issue was distinguishable from that which arose in the First Uniform Tax case: at 659. His Honour observed that the earlier case was concerned with a temporary measure designed to deal with a very special wartime situation: at 661. The present case concerned a permanent measure which applied to every taxpayer whatever their financial circumstances might be, and which failed ‘to specify as a condition of its operation the existence of any circumstance relevant to the exercise by the Commonwealth of a legislative power to protect its revenues’: at 660. In MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622; 52

ALR 53 Gibbs CJ, Wilson, Deane and Dawson JJ held that a tax must be distinguished from an ‘arbitrary exaction’. The criteria by which liability to pay the tax is imposed must not be applied in an ‘arbitrary and capricious manner’: at 640. The taxation power does not authorise the imposition of an ‘incontestable tax’. The taxpayer must be entitled to contest their alleged [page 136] obligation to pay a tax: at 641. See also W R Carpenter Holdings Pty Ltd v Federal Commissioner of Taxation (2008) 237 CLR 198; 248 ALR 256; [2008] HCA 33 at [9]. In Deputy Commissioner of Taxation v Truhold Benefit Pty Ltd (1985) 158 CLR 678; 59 ALR 431 the court held that recoupment tax legislation was not arbitrary because the imposition of the tax was not dependent upon an administrative decision unrelated to criteria set out in the legislation: at 684. The tax was payable where the Commissioner formed an opinion that it was unreasonable that the taxpayer pay another type of tax because of criteria specified in the Act. As a matter of substance it was the section, not the Commissioner, which determined liability: at 684–5. In Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155; 119 ALR 577 it was held that the taxation power authorised the enactment of a statute which extinguished the liability of the Commonwealth to refund moneys which had been paid under a constitutionally invalid statute: at 166–7, 181, 182–3, 204–5, 224. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 a Commonwealth statute provided for the payment of ‘tax bonuses’ to certain categories of taxpayers as an economic stimulus measure during an international financial crisis: at [35]–[36]. Gummow, Crennan and Bell JJ observed that counsel for the Commonwealth had not sought to support the payments under the taxation power in situations where an individual would be entitled to payment of an amount that was greater than their adjusted tax liability for the year: at [246]. However, the Act could not be read down in the manner proposed by the

Commonwealth. The plaintiff who challenged the Act was entitled to the benefit of this concession by the Commonwealth, so the law was not supported by the taxation power: at [251]–[252]. While the taxation power authorises laws relating to the imposition and collection of taxation, the tax bonuses were not rebates of income taxation: at [255]. Heydon J held that the law was not concerned with tax liabilities. It did not alter ‘any right, duty, power or privilege’ relating to taxation: at [453]. The law could not be read down so as to fall within the taxation power: at [457]. Hayne and Kiefel JJ were prepared to read down the law so that it applied only to the payment of amounts less than or equal to an individual’s adjusted tax liability for the year: at [379]. If the law was read down in that manner it was authorised by the taxation power: at [393]. The law could not be supported under the taxation power to the extent that it provided for the payment of an amount greater than an individual’s adjusted tax liability for the year: at [384], [392]. There was no ‘direct connection’ in all cases between the tax paid and the amount of the tax bonus payment: at [387]. French CJ did not find it necessary to consider whether the law was supported by the taxation power: at [136]. For a discussion of this aspect of this case, see Appleby and McDonald (2012) 37 Mon ULR 162 at 180–4.

Commonwealth taxation and the operations of the States 228 In Victoria v Commonwealth (the Payroll Tax case) (1971) 122 CLR 353 the whole court held that the Commonwealth Parliament may include the Crown in right of a State in the operation of a law imposing tax. However, two other issues divided the court. The first issue was whether the taxation power authorised the imposition of a tax upon any essentially governmental activity of a State. The second issue was whether the fact that a Commonwealth tax Act discriminated against the States made it unconstitutional. Barwick CJ held that undue interference by Commonwealth legislation with the performance of what were clearly functions of government was not a ground for invalidity,

[page 137] and that the discriminatory character of legislation was only relevant in determining whether it was a law with respect to a head of Commonwealth power: at 383. Owen J agreed with Barwick CJ: at 405. On the other hand, Menzies J recognised that a law which interfered with the performance by the States of their governmental functions might be invalid. He also considered that a law which discriminated against States was invalid, even though it was a law with respect to a subject matter within Commonwealth legislative power: at 391–2. Walsh J agreed substantially with Menzies J: at 406. Gibbs J considered that ‘[a] general law of the Commonwealth which would prevent a State from continuing to exist and function as such would in my opinion be invalid’: at 424. Windeyer J thought that ‘a law, although it be with respect to a designated subject matter, cannot be for the peace, order and good government of the Commonwealth if it be directed to the States to prevent their carrying out their functions as parts of the Commonwealth’: at 403. In Austin v Commonwealth (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3 the court applied the Melbourne Corporation principle to invalidate a Commonwealth law which taxed the surchargeable superannuation contributions of State Supreme Court judges. Gleeson CJ held that the taxation power does not authorise the imposition of a special burden upon State judges, since that would be a prohibited interference with the capacity of the States to function as governments. Such a tax is invalid because of its interference with the State scheme for judicial remuneration. That interference has the potential to adversely ‘affect recruitment and retention of judges to perform an essential constitutional function of the State’. State judges are subject to non-discriminatory taxes: at [28]. Gaudron, Gummow and Hayne JJ stated that a federal taxation law that does not infringe s 114 of the Constitution may violate the Melbourne Corporation prohibition: at [142]. They observed that the challenged tax was not imposed upon the States, but upon State judges: at [149], [158]. The States may decide the remuneration of their judges: at [155]. The tax at issue was not one of general application: at [162]. The tax was invalid as applied to

the plaintiff Supreme Court judge ‘on the ground of the particular disability or burden placed upon the operations and activities of’ the State: at [174]. McHugh J held that State judges may be validly subjected to general taxation. However, they may not be subjected to taxation that discriminates against State judges ‘unless the discrimination is such that it has no practical impact on the relationship between the State and the judicial officer’: at [228]. The challenged tax discriminated against State judges by imposing a special burden that did not apply to other citizens: at [229]. The tax inhibited the capacity of the State to retain its judges, since its operation made it more attractive for judges to choose early retirement. The tax also discouraged prospective judicial appointees from accepting the office: at [232]. The law thus infringed the Melbourne Corporation principle: at [234]. For a discussion of this case, see Simpson (2004) 32 UWALR 44. In Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272; 258 ALR 623; [2009] HCA 33 a member of the South Australian Parliament was subject to a superannuation contribution surcharge in relation to his entitlements under State superannuation schemes. That surcharge was imposed by federal laws: at [2]–[3]. The court held that the federal Acts were invalid as they applied to the appellant’s membership of these State superannuation schemes. French CJ held that the surcharge placed a significant burden upon the exercise of the State’s power to determine the remuneration payable to its Parliamentarians: at [36]. The Acts singled out State funds. The tax was imposed specifically upon State Parliamentarians. The Acts burdened the superannuation entitlements of State Parliamentarians. The laws were [page 138] targeted at the remuneration of State Parliamentarians, unlike generally applicable taxation laws such as income taxation. The impact of the federal laws could be seen in the State Parliament’s enactment of a commutation in relation to the surcharge: at [35]. Gummow, Heydon, Kiefel and Bell JJ held that the federal Acts were not laws of general application: at [61]. State Parliamentarians are ‘at the higher

levels of government’ and it was essential to the State’s capacity to function that it have the power to determine their remuneration: at [62], [69], [74]. The freedom of action of the States in determining that remuneration was impaired by the laws: at [75]. Hayne J agreed with Gummow, Heydon, Kiefel and Bell JJ: at [90]. The federal laws were not of general application. They singled out persons ‘at the high levels of government’. Such persons were subjected to special regulation that did not apply to other superannuation recipients: at [97]. The Acts imposed a ‘special disability or burden’ upon the exercise of the State’s powers. The States alone determine the remuneration to be paid to their Parliamentarians. The States were effectively compelled to ‘adopt the method of providing retirement benefits that will enable parliamentarians to meet the tax liability specially imposed on them’: at [101]. In Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 the court held that the Mineral Resources Rent Tax legislation did not infringe the Melbourne Corporation principle. Hayne, Bell and Keane JJ observed that the Melbourne Corporation principle asks whether the challenged legislation is directed at the States: at [130]. In this case the challenged law was not aimed at the States. It did not impose any special disability upon the States that curtailed their capacity to function as governments. The law did not prevent the States from setting mineral royalty rates and imposed no burden upon a State’s decision to increase or decrease the royalty rate. If the legislation impacted upon a State’s options for using the royalty rate as an investment incentive, that did not ‘limit or burden’ the State ‘in the exercise of its constitutional functions’: at [137]. French CJ, Kiefel and Crennan JJ agreed with Hayne, Bell and Keane JJ on this point: at [6], [145], [229]. but so as not to discriminate between States or parts of States

229 Section 51(ii) expressly provides that laws with respect to taxation must not discriminate between States or parts of States. In R v Barger (1908) 6 CLR 41 the court considered the validity of a statutory provision which exempted from taxation goods manufactured by any person in any part of the Commonwealth under certain labour conditions.

Griffith CJ, Barton and O’Connor JJ considered that this fact resulted in the invalidity of the Act because it discriminated between States or parts of States. They stated (at 78): The words “States or parts of States” must be read as synonymous with “parts of the Commonwealth” or “different localities within the Commonwealth”. The existing limits of the States are arbitrary, and it would be a strange thing if the Commonwealth Parliament could discriminate in a taxing Act between one locality and another, merely because such localities were not coterminous with States or with parts of the same State.

Isaacs J adopted a narrower construction of the constitutional prohibition (at 107–8): … the treatment that is forbidden, discrimination or preference, is in relation to the localities considered as parts of States, and not as mere Australian localities, or parts of the Commonwealth considered as a single country … the pervading idea is the preference of locality merely because it is locality, and because it is a particular part of a particular State.

[page 139] Isaac J’s statement was quoted with approval in Cameron v Deputy Federal Commissioner of Taxation (1923) 32 CLR 68 at 72, 79; Elliott v Commonwealth (1936) 54 CLR 657 at 673; and Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd (1940) 63 CLR 338 at 348. Subsequently, in Commissioner of Taxation v Clyne (1958) 100 CLR 246 Dixon CJ confessed that he found himself ‘unable to appreciate the distinction between the selection by an enactment of an area in fact forming part of a State for the bestowal of a preference upon the area and the selection of the same area for the same purpose “as part of the State”’: at 266. A law with respect to taxation does not discriminate contrary to s 51(ii) ‘if its operation is general throughout the Commonwealth even though, by reason of circumstances existing in one or more of the States, it may not operate uniformly’. See Conroy v Carter (1968) 118 CLR 90 at 101; Austin v Commonwealth (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3 at [117]; Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 at [155]. In Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 the Mineral Resources Rent Tax made allowance

for liability to pay mining royalties under State law. State mining royalties varied between the States: at [1]. A reduction in State royalties would result in a corresponding increase in liability to the Commonwealth tax: at [53], [152]. The court unanimously held that the tax did not discriminate between States or parts of States: at [6], [116], [121], [175], [222]. Hayne, Bell and Keane JJ pointed out that the rate of the Commonwealth tax was the same in each State: at [99]. Section 51(ii) prohibits laws which ‘make differences in the nature, burden, incidence and enforcement of taxing law’: at [105]. A law with respect to taxation may not itself create a distinction between States or parts of States: at [113]. The fact that a law has different consequences between different states does not necessarily infringe this limitation: at [109]. The amount of mining tax payable varied between States because of different conditions in those States, in particular the differences between their mining royalty laws: at [107]. A law does not discriminate between States merely because it has ‘a different practical operation in different States because those States have created different circumstances to which the federal Act will apply by enacting different State legislation’: at [117]. French CJ held that non-discrimination clause of s 51(ii) does ‘not prevent the … Commonwealth from enacting uniform laws which have different effects in different States because of differences in the circumstances to which they apply, including different State legislative regimes’: at [5]. Crennan J held that the ‘differential or unequal operation’ of a taxation law did not necessarily establish discrimination under s 51(ii): at [162]. Differences in mining royalties formed part of the business conditions within which mining companies must work: at [172]. The tax operated generally throughout Australia, with the same rate of taxation applying throughout the country. Any differential operation of the tax was not due to the Commonwealth law. That differential operation was due to ‘different business conditions’ in the States, caused by the differences in mining royalties: at [174]. Kiefel J held that the discrimination prohibited by s 51(ii) is ‘discrimination on account of locality’: at [199]. This limitation does not restrict discrimination based upon other grounds such as business circumstances: at

[201]. Discrimination is prohibited only if it is caused by the Commonwealth law, and not if it is caused by a State law: at [202]. The Commonwealth Act did not apply a ‘State-based standard’ in calculating the mining tax. Any variation in the mining tax payable was due to royalties paid under State law: at [211]. Differences in the [page 140] amount that was deductible for the payment of State royalties were the result of State law, not the federal Act: at [224]. The inequality was the result of State law, not Commonwealth law: at [225]. The Commonwealth also argued that a taxation law could be saved from invalidity where the differential treatment was the result of a ‘distinction which [was] appropriate and adapted to the attainment of a proper objective’: at [116], [161]. Hayne, Bell, Keane, Crennan and Kiefel JJ found it unnecessary to consider this argument: at [116], [175]. Only one judge considered this argument. French CJ held that the nondiscrimination clause of s 51(ii) is not violated by differences between the States in the application of a law, where those differences are ‘based upon a distinction which is appropriate and adapted to the attainment of a proper objective’: at [5], [49]. The objective of the mining tax was to provide the community with an adequate return for its mineral assets, considering their value, non-renewable character and the liability of mining companies to pay royalties: at [2]. That was a proper objective. The challenged provisions were appropriate and adapted to the attainment of that objective: at [50]. For a discussion of this case, see Lynch (2014) 38 Aust Bar Rev 183. 230 In some cases it has been argued that the prohibition against discrimination in taxation has been breached through a legislative scheme which brought about discrimination, though not through the machinery of a taxing Act. In Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd (1939) 61 CLR 735 (HC); (1940) 63 CLR 338 (PC), Commonwealth and State legislation gave effect to a scheme under which a uniform federal excise duty was imposed upon flour. The revenue received by the Commonwealth

was paid in grants to the States upon condition that they used it to assist wheat growers. However, the grant to Tasmania was made without conditions, but on the understanding that the State would use it to pay back to Tasmanian millers the flour tax they had paid: at 737–40. The court held that the legislation did not infringe the prohibition in s 51(ii). The federal taxation Acts did not discriminate between States, and the special treatment accorded to Tasmania did not arise from discrimination in a law with respect to taxation: at 757, 767, 775, 809. The Privy Council affirmed the decision, but warned that a grant under s 96 of the Constitution might be used for the purpose of effecting discrimination in regard to taxation under the guise or pretence of assisting a State with money: at 350. However, in South Australia v Commonwealth (1942) 65 CLR 373, Latham CJ said of this warning: ‘it will not be easy to find a case where it can properly be held that an appropriation Act making grants to States is invalid because it involves an infringement of the provision that Acts with respect to taxation shall not discriminate between States or parts of States’: at 428. 231 (iii) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:

See Quick and Garran, 1901, pp 556–9 (Revised ed, 2015, pp 650–3); Opinions No 1842 of 3 September 1948 and No 1900 of 8 September 1950; Wynes, 1976, pp 373–4; Rose in Zines, 1977, pp 210–15; Attorney-General’s Department, 1980, pp 72–3; Brazil and Mitchell, 1988, pp 323–4 (no 825); Constitutional Commission, 1988, Vol 2, pp 814–17; Lane, 1997, pp 184–6; Faulkner and Orr, 2013, pp 590–1 (no 1651). 232 It is essential to the concept of a bounty that a grant or allowance is made for or on behalf of a State or an authority under a State. In Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd (1939) 61 CLR 735 (HC); (1940) 63 CLR 338 (PC) it was argued [page 141] that certain statutory provisions involved a bounty on the production or

export of goods which was not uniform throughout the Commonwealth. The contention was rejected on the ground that the provisions granted no bounties, but were grants of financial assistance to the States upon condition that the amount granted was distributed to wheat growers in the specified manner: at 761, 774. 233

(iv) Borrowing money on the public credit of the Commonwealth:

See Quick and Garran, 1901, pp 558–9 (Revised ed, 2015, pp 653–4); Wynes, 1976, pp 362–3; Attorney-General’s Department, 1980, pp 73–4; Lane, 1997, pp 186–7. 234 In Commonwealth v Queensland (1920) 29 CLR 1 Isaacs and Rich JJ stated that the power to make laws with respect to Commonwealth borrowing included ‘the power to fix the terms of the bargain between the Commonwealth and the lenders, and to ensure by appropriate and paramount legislation that the terms it provides shall be enforced’: at 21. Agreements made pursuant to s 105A of the Constitution are binding upon the Commonwealth notwithstanding anything in the Commonwealth Constitution. The powers accorded to the Commonwealth by s 51(iv) are subject to the provisions of the Financial Agreement or any variation thereof. 235

(v) Postal, telegraphic, telephonic, and other like services:

See Quick and Garran, 1901, pp 559–60 (Revised ed, 2015, pp 654–6); Miller (1973) 4 U Tas LR 70; Wynes, 1976, pp 139–40; Attorney-General’s Department, 1980, p 74; Constitutional Commission, 1988, Vol 2, pp 650–6; Lane, 1997, pp 187–9; Gamertsfelder (1999) 3 Macarthur LR 69; Chin (2000) 24 MULR 609; La Nauze, 2001, pp 147–57; Raiche (2001) 20, 1 Communications L Bull 14; Hanks, Gordon and Hill, 2012, pp 421–4; Faulkner and Orr, 2013, pp 202–3, 232–3 (nos 1453, 1475). 236 Under this head of power the Commonwealth Parliament has power to control communications of the nature specified both within Australia and between Australia and other countries. In R v Brislan; Ex parte Williams (1935) 54 CLR 262 Latham CJ considered

that the common characteristics of postal, telegraphic and telephonic services were to be found in the services which they perform: ‘[t]hey are … communication services … If a new form of communication should be discovered, it too might be made the subject of legislation as a “like service”’: at 280. Rejecting the notion that this power was restricted to services providing communication between individuals, Rich and Evatt JJ went on to describe radio broadcasting as telephonic in nature. From the point of view of the public it was a public service by which listeners could receive words and music for the purposes of information and entertainment: at 282–3. 237 In Jones v Commonwealth (No 2) (1965) 112 CLR 206 the court held that television fell within s 51(v) even though it was a completely new form of communication which was unknown to the drafters of the Constitution: at 218–19, 222–3, 226, 228, 229, 237, 243–4. Barwick CJ considered that the basic characteristic of telegraphic and telephonic services was to be found in the ‘organized communication of messages from a distance, as well as the communication of messages by an organized means from a distance’: at 219. The power [page 142] covered the provision of programs as well as the means of conveying those programs to a listening or viewing audience physically separated from the point of origin of the programs: at 219. While Barwick CJ considered that television was a ‘telephonic’ service, McTiernan J took the view that it was a ‘like’ service: at 222. The result is the same whether one treats the form of communication as being within the specific part of the genus or within the genus itself. In Herald and Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 the court upheld statutory limitations upon the ownership or control of commercial television stations: at 432, 436, 442. Menzies J stated that the power ‘extends to determining the description of those who will or may obtain licences to conduct television services’: at 439. The power also ‘extends to control relationships through which some power to influence companies providing television services can be exercised’: at 442.

In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; 108 ALR 577 the plaintiffs accepted that s 51(v) extended to the prohibition of political advertising on radio and television, including those regarding State and local government elections. The members of the court appear to have agreed: at 156, 170, 187, 243–4; but see at 218–19 per Gaudron J. The court held that the legislation under challenge was invalid because it infringed the implied freedom of political communication, not because it was beyond this head of power. In Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19 the court held that this power supported a law protecting licensed telecommunications carriers from State legislation discriminating against specific, some or all carriers. The power supports federal laws granting telecommunications carriers powers and immunities in relation to their telecommunication services. In particular, granting an immunity from discriminatory burdens imposed by State laws had a direct connection with the power: at [26], [90]. This power also authorises the enactment of a law prohibiting the interception of telecommunications. See John Fairfax Publications v Doe (1995) 37 NSWLR 81 at 89, 107; 130 ALR 488. Section 51(v) is not an exclusive Commonwealth power. See Karlsson v Sorbello (1998) 148 FLR 374 at 379 (ACT SC). 238 (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:

See Quick and Garran, 1901, pp 561–5 (Revised ed, 2015, pp 656–61); Sawer (1946) 20 ALJ 295; Sawer (1949) 23 ALJ 255; Menzies in ElseMitchell, 1952, pp 132–55; Nicholas, 1952, pp 110–28; Sawer (1953) 6 Res Judicatae 214; Derham in Else-Mitchell, 1961, pp 157–91; Wynes, 1976, pp 199–230; Attorney-General’s Department, 1980, pp 74–89; Gilbert (1980) 18 Osgoode Hall LJ 307; Howard, 1985, pp 472–81; Johnston (1990) 20 UWALR 73; Lane, 1997, pp 190–203; Duxbury (2007) 18 Public LR 233; Lindell (2008) 10 Const L & Pol’y Rev 42; Moore (2009) 4 U New Eng LJ 53; Ratnapala and Crowe, 2012, pp 360–5; Hanks, Gordon and Hill, 2012, pp 456–74; Pyke, 2013, pp 212–9; Guy, 2013, pp 525–38, 548–52; Clarke,

Keyzer and Stellios, 2013, pp 375–94; Gerangelos et al, 2013, pp 651–70; Williams, Brennan and Lynch, 2014, pp 845–84; Stellios, 2015, pp 336–43. 239 The powers and duties of the Commonwealth in relation to defence are derived from numerous sections of the Constitution: ss 51(vi), 68, 52(ii), 69, 70, 114 and 119. The defence power extends to defence against hostile warlike action (actual or potential) from some external source. [page 143] However, there is also an internal security aspect of the defence power. For example, the interim control order provisions of the Commonwealth antiterrorism legislation were upheld under the defence power. See Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33. It had formerly been considered that Commonwealth power concerning internal security derived primarily from s 61 (the executive power) and s 51(xxxix) (the incidental power). In Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 at [144] Gummow and Crennan JJ argued that this view was the result of a ‘restrictive’ interpretation of the defence power. The words ‘naval and military defence’ are now regarded as including an air force. See Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 at [156]; see also Faulkner and Orr, 2013, pp 113–14 (no 1396). There is no constitutional objection to the enforcement of Commonwealth fisheries legislation by members of the Australian Defence Force. See Li Chia Hsing v Rankin (1978) 141 CLR 182 at 192, 195, 196, 203; 23 ALR 151; Ravenor Overseas Inc v Readhead (1998) 152 ALR 416; 72 ALJR 671; [1998] HCA 17 at [2]. The defence power is not exclusive to the Commonwealth. See Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 571. However, some parts of the defence power are by their nature exclusive to the Commonwealth or have been made so by other sections of the Constitution. Such exclusive powers include the raising of armed forces (s 114), the control of the armed forces and the Defence Department (s 69, 52(ii)) and the Royal

prerogative of making war and peace. On the other hand, the economic aspects or conditions arising from war (such as the control of prices and housing) are within the legislative power of the States as well as the Commonwealth.

Elastic nature of the defence power and problems of judicial review 240 In Farey v Burvett (1916) 21 CLR 433 the court held that the words ‘naval and military’ as used in s 51(vi) were words of extension not limitation. The court held that these words were merely illustrative of the purposes for which the defence power can be used and did not exhaust its content. Consequently the defence power extended to matters beyond the merely physical methods of defence by armies and navies: at 440, 466. In Stenhouse v Coleman (1944) 69 CLR 457 Dixon J pointed out that the defence power could be defined only in terms of purpose: at 471. In this respect it differed from other powers which depended upon characterisation of subject matter. This means that a court, when considering the validity of any measure from the point of view of defence, is inevitably required to look at the purpose of the measure and to determine whether it could be considered to assist in the defence of the Commonwealth. On the other hand, this does not mean that the court sits in judgment upon legislative policy. It has been repeatedly emphasised by the High Court that its function is not to decide whether any measure is appropriate for the purposes of the defence of the Commonwealth. However, the court must be satisfied that there is a real connection between the law in question and the defence of Australia. In Dawson v Commonwealth (1946) 73 CLR 157 at 173 Latham CJ stated: … it is not the duty or the function of the Court itself to consider whether in its opinion such Regulations are “necessary” for defence purposes. Questions of legislative policy are determined by the legislature, not by the Courts. If it can reasonably be considered that there is

[page 144]

a real connection between the subject matter of the legislation and defence, the Court should hold that the legislation is authorized by the power to make laws with respect to defence.

The inquiry whether there is a real connection between a law and the subject matter of defence cannot ignore altogether questions of governmental policy. If the defence plan is simple little difficulty is likely to be encountered. However, an elaborate plan of defence will necessarily entail the enactment of many laws which taken by themselves may not seem to accomplish much in the way of increasing the efficiency of the armed forces or in the defence of the Commonwealth. The government may take the view, quite genuinely, that as a policy every such law is essential to the whole plan. But this would not be conclusive upon the court, which may hold that it can see no real connection between some particular law and defence. 241 The extent of the defence power varies according to the degree and nature of the danger of external or internal aggression at a given period of time. In a period of stable and amicable international relations the extent of the power is small. But at a period of international discord the danger of the Commonwealth becoming involved in war may be great and additional measures to prepare for such an eventuality would be justified. There may be genuine and fundamental differences of opinion as to the imminence of the danger or as to the direction in which it lies. In its search for a real connection between a law and defence the court is bound to come to some conclusion on these matters, and its conclusion will not necessarily be the same as that of the government. 242 It is obvious that in determining whether a law is within the defence power, judges are required to have a very wide knowledge of human affairs outside the narrow confines of the law. As economics are a vital factor in war and defence today judges must have a broad knowledge of economic matters. They may also be required to have some knowledge of international defence strategy and foreign affairs. The question arises as to the source from which the judges are to obtain their knowledge of these matters. Traditionally they have relied simply on general knowledge. The doctrine of judicial notice, whereby the courts require no evidence of matters which are so notorious that evidence of their existence is deemed unnecessary, has been very broadly applied. For example, in Farey v Burvett (1916) 21 CLR 433 Griffith CJ took judicial notice of the fact that the

previous season’s wheat harvest was abundant, that a great surplus was awaiting export, and that shipping for that purpose was scarce. These facts justified Commonwealth control over the disposition and pricing of basic food resources: at 442–3. Because of the vagueness and imprecision associated with the doctrine of judicial notice, some commentators have claimed that evidence should be admitted in order to support a claim of constitutionality. See Holmes (1949) 23 ALJ 235. In fact in certain cases the High Court has admitted evidence to show the requisite degree of connection between the needs of defence and the concrete provisions of a particular Act. See Jenkins v Commonwealth (1947) 74 CLR 400 at 402; Sloan v Pollard (1947) 75 CLR 445 at 459–60, 474.

The power in peacetime 243 One has to distinguish between times of profound peace and times of international uncertainty. Since the Second World War the international situation has not become so stabilised that one could refer to a long period of profound peace. These are facts of which a court must take judicial notice and, to the extent to which judicial notice is applied, Commonwealth measures in peacetime may receive more favourable consideration than they would have if the international situation were ignored. However, it is also true that [page 145] the nature of the threat or hostilities will qualify the nature of the controls which may be imposed. When the reaction is merely to a ‘threat’, the scope for judicial notice will be narrower. In Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1 it was held that a Commonwealth Shipping Authority could not constitutionally enter into an agreement with a local council to sell certain machinery. This period, the mid-1920s, could be characterised as one of profound peace, and the court was not prepared to accept the argument that

the defence power allowed the establishment of governmental businesses for ordinary trade purposes: at 9. However, this case may be contrasted with Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533 (the Clothing Factory case). The Commonwealth had established factories for the manufacture of service uniforms. In the tenser period of the mid-1930s the Commonwealth entered into agreements to sell non-military clothing to various State authorities and private firms: at 555. It was argued that this ‘outsider’ trade was necessary in order to keep the Commonwealth factories in operation and in a state of preparation in case war broke out: at 536. The court held that this was a valid exercise of the defence power: at 558, 562. In Polyukhovich v Commonwealth (1991) 172 CLR 501; 101 ALR 545 the Act under challenge applied only to war crimes committed in the European theatre of the Second World War. Brennan J considered that laws enacted under the defence power during peacetime must pass a test of reasonable proportionality. He stated: ‘In times of peace, an abridging of … freedoms — in this case, freedom from a retrospective criminal law — cannot be supported unless the Court can perceive that the abridging of the freedom in question is proportionate to the defence interest to be served’: at 593. The retroactive criminality and selective scope of the Act meant that it lacked proportionality: at 593. Toohey J agreed: at 684. Gaudron J held that the defence power could not support the prosecution of conduct committed during a war that ended forty five years earlier: at 697. The other judges did not need to consider this issue: at 531, 599. In Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 the counter-terrorism provisions of the Commonwealth Criminal Code provided for the making of interim control orders that placed restrictions upon the activities of individuals. Gleeson CJ held that the defence power extended beyond aggression by other nations and by forces external to Australia. The power is not limited to war between nations. It is not restricted to the protection of governments but also extends to the protection of the public at large: at [7]. The legislative connection between the interim control orders and the protection of the public from terrorism brought the provisions within the defence power: at [9]. Gummow and Crennan JJ held that the defence power was not restricted to

external threats to the government from foreign nations, but extended to internal threats: at [139]–[141]. The power was not limited to threats against the Commonwealth and State governments, but extended to threats to the public at large: at [142]. The control order provisions were authorised by the defence power: at [146]. Hayne J stated that the ‘central purpose’ of the defence power was protection against ‘external enemies’: at [437]. However, the defence power was not confined to threats from foreign states: at [434]–[435]. Destructive power is now wielded by armed groups: at [438]. The line between peace and war had blurred: at [439]. It was not useful to distinguish between the protection of the Commonwealth and State governments and the protection of the Australian public: at [439]. The challenged provisions were supported by the defence power because in this case they were directed at preventing the use of force against persons within Australia with the aim of changing Australian foreign policy: at [444]. [page 146] Callinan J held that threats to the Commonwealth may be internal or external: at [583]. The clear distinction between peacetime and wartime in relation to the scope of the defence power was difficult to maintain: at [589]. The challenged provisions fell within the defence power: at [590]. Heydon J agreed that the defence power was not restricted to external threats: at [611]. The control order provisions were supported by the defence power: at [649]. For discussions of this case, see Pintos-Lopez and Williams (2008) 27 U Tas LR 83; Lynch (2008) 32 MULR 1182 at 1189–96; Roos (2008) 15 James Cook ULR 169. 244 Most modern cases concern the discipline of members of the defence forces in peacetime. In Re Tracey; Ex parte Ryan (1989) 166 CLR 518; 84 ALR 1 the court upheld legislation that adopted the criminal law of the Australian Capital Territory as service law for all members of the defence forces inside and outside the Territory. Mason CJ, Wilson, Brennan, Dawson and Toohey JJ held that the defence power extended to the creation of a

disciplinary code outside Ch III of the Constitution with those administering it required to act judicially. Mason CJ, Wilson and Dawson JJ said that this is because ‘the proper organization of a defence force requires a system of discipline which is administered judicially, not as part of the judicature erected under Ch III, but as part of the organization of the force itself’: at 541. They noted that ‘it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law even where the only connexion between the offences and the defence force is the service membership of the offender’: at 543. They approved such an approach because it was not possible to make a clear division between offences with a military character about them and offences which did not have such a character: at 544. ‘It is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member’: at 545. It was for the Parliament to decide what was necessary for proper discipline, and that decision would not be disturbed by the court unless it bore no sufficient connection with discipline of the defence forces: at 545. Although the Constitution did not expressly provide for service discipline, that was necessarily implied because naval and military defence demanded a disciplined force: at 540. However, this authority was not contained in the phrase ‘the control of the forces’ (at 540): Notwithstanding that it might be thought that the second clause of s 51(vi) is relevant to the question of military discipline by reason of the phrase “the control of the forces” we doubt whether that is so. It seems to us that the content of that phrase relates to the work of law enforcement. It is not the ordinary function of the armed services to “execute and maintain the laws of the Commonwealth”.

Brennan and Toohey JJ held that the defence power ‘does not support a jurisdiction standing outside Ch III of the Constitution except to the extent that the jurisdiction serves the purpose of maintaining or enforcing service discipline’: at 571. They stated that ‘the power conferred by s 51(vi) to provide for a permanent defence force prima facie includes a power to create a military jurisdiction to discipline members of that defence force’: at 564. They also held that the defence power did not extend to the conferral of an

immunity from prosecution in State courts subsequent to prosecution in the military courts for what was essentially the same offence. The conferral of such an immunity by the Commonwealth would constitute an interference with the general criminal jurisdiction of the States: at 574–6. 245 In Re Nolan; Ex parte Young (1991) 172 CLR 460; 100 ALR 645 the disciplinary aspect of the defence power was raised once again. By a 4–3 majority the court upheld the [page 147] constitutionality of the service offences legislation. Mason CJ and Dawson J reiterated that it was ‘open to parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member’: at 474. They further stated that they could not understand how it could be said that the prohibition of certain conduct by members of the defence forces was not for the discipline of the forces when the same conduct when committed by members of the public was prohibited for the good order of society: at 474–5. Brennan and Toohey JJ felt that the defence power would support the creation of service offences ‘only if the proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline’: at 477. They also stated: ‘the purpose for which the power to make a law relating to discipline of the Defence Force of the Commonwealth is conferred is to maintain the operational efficiency of the Force and to ensure that the standing Force, as an organized entity, is a buttress of, rather than a threat to, internal security’: at 482. They further stated that the Commonwealth cannot rely upon the defence power to create a law inconsistent with State criminal law. It may only enact laws supplementary to the general criminal law: at 483. In Re Tyler; Ex parte Foley (1994) 181 CLR 18; 121 ALR 153 the High Court confirmed once again that provision for the trial of service offences by court martial fell within the defence power: at 25–6, 29–30. In Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308; 209 ALR 311;

[2004] HCA 44 the Defence Force Discipline Act 1982 (Cth) punished certain acts committed by Australian soldiers outside Australia, including while on leave. The acts prohibited were defined by reference to the law of Jervis Bay Territory: at [3]. A soldier serving overseas was charged with rape allegedly committed while on recreational leave: at [1]. By a 4–3 majority the court held that the defence power extended to the punishment of such an offence since it maintained service discipline and morale: at [5], [42], [49], [69], [156]. As McHugh J put it, it ‘is central to a disciplined defence force that its members are not persons who engage in uncontrolled violence’: at [42]. He added: ‘A soldier who rapes another person undermines the discipline and morale of his army. He does so whether he is on active service or recreation leave’: at [45]. Gummow and Hayne JJ agreed with McHugh J: at [49], [156]. For a discussion of this case, see Guy and Hocking (2008) 13, 2 Deakin LR 177. In White v Director of Military Prosecutions (2007) 231 CLR 570; 235 ALR 455; [2007] HCA 29 Gleeson CJ stated that under the defence power the Commonwealth could confer upon military officers disciplinary powers to be exercised in a judicial manner. These disciplinary powers were not part of federal judicial power: at [14]. In Lane v Morrison (2009) 239 CLR 230; 258 ALR 404; [2009] HCA 29 the Commonwealth established an Australian Military Court which was independent of the command structure of the armed forces: at [13], [75]. The High Court held that the Australian Military Court had been invalidly established as did not comply with Chapter III of the Constitution despite being established outside of the command structure: at [51], [79], [98]. French CJ and Gummow J held that the defence power did not authorise the creation of a court that was outside of the chain of command of the armed forces: at [13], [60], [62].

Preparation for war 246 The range of matters which can be brought within the scope of the defence power expands and contracts according to the degree of apprehension

of the danger of external aggression. It follows that legislation may be justified under the power at a time of imminent [page 148] danger of war or disturbed international conditions which would not be justified under ordinary conditions of peace. Two particular questions arise in this context: (a) Can the defence power be as wide in such a case as in time of actual war? (b) How is the existence of the imminent danger of war to be determined? These questions were considered by the High Court in Australian Communist Party v Commonwealth (1951) 83 CLR 1 (the Communist Party case).

247 The Communist Party Dissolution Act 1950 (Cth) was an attempt by the federal Parliament to arrogate to itself conclusive power to determine the justification for legislation in the interests of defence and internal security. The Act began with a long preamble which contained a legislative indictment of the Australian Communist Party. The preamble sought to provide the necessary connection between the Act and defence: at 133–4, 226. By a 6–1 majority the court held that Parliament could not take away from the courts the power to determine whether the necessary nexus existed: at 205–6, 211, 221–2, 224, 264, 272–3. As Fullagar J put it, Parliament could not ‘recite itself into a field which was closed to it’: at 264. The court considered that, at any rate in time of peace, legislation must provide scope for the court to test it against the Constitution. The operation of the law must be made to depend on the objective existence of some fact or course of conduct, for example, by forbidding certain descriptions of conduct or establishing objective standards or tests of liability: at 183, 201, 220, 225–6, 252–3. Those objective facts or standards could then be examined by the courts to see if they provided the necessary connection between the law and the defence power. Parliament could not assume the power to determine conclusively the existence of the facts necessary to support the banning of the Communist Party as an exercise of the defence power. The decision in the Communist Party case thus marks an unequivocal rejection by the High Court of any general policy of judicial restraint in respect of the defence power, that is, of a policy of bowing to Parliament’s determination of the needs of defence. However, all of the majority judges, with the apparent exception of Kitto J, indicated that they were prepared to adopt such a policy in time of actual war as, in effect, the High Court had done during the Second World War: at 202, 206, 208, 223, 227, 258. A majority of the court were prepared to concede that this policy was not limited to time of actual war and would apply in times of imminent danger of war in order to allow the government to make what preparations it deemed fit: at 195, 199, 202, 254. However, in this case the court was satisfied that there was no such imminent danger of war that would justify the Act: at 196, 202–3, 207–8, 268, 277. How is the existence of such an imminent danger to be determined?

The majority of the court were quite definite that the decision must rest ultimately with the court itself; and normally (although Fullagar J said ‘always’: at 255) a decision must depend upon the court being able to take judicial notice of the fact: at 267. For a discussion of this case, see Anderson (1951) 1, 3 UQLJ 34. 248 It might have been thought, on the basis of Australian Communist Party v Commonwealth (1951) 83 CLR 1, that the High Court was adopting an attitude to the defence power which would have inhibited the Commonwealth’s power to organise the country in preparation for war. Such a view was dispelled by a case decided in the following year. In Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177 (the Capital Issues case) the challenged legislation allowed the Treasurer to prohibit new share issues in companies. The legislation was upheld. The court distinguished the Communist Party case on the ground that the legislation in this case provided objective standards on which the legislative and executive action was made to depend, and in which the necessary connection with defence could be seen: at 215–16. But it [page 149] must be noted that the objective standards were nothing more than ‘defence preparations’ as very widely described in the preamble to the legislation. However, the court took judicial notice of the fact that such economic controls were the normal practice for a country going on a war footing: at 230, 249, 255.

Defence power in time of war 249 Although the general test of validity remains the same in war as in peace, the courts are more ready to uphold defence legislation in time of war. In wartime it is easier to see a real connection between defence and laws which regulate ordinary civil activity. The courts recognise that reasons of

security may prevent them in wartime from being fully informed of the facts upon which the legislation is based. During the Second World War hardly an aspect of commercial or social life remained untouched by Commonwealth legislation. However, on several occasions the High Court struck down defence legislation, making it clear that the existence of war did not mean that the Commonwealth had unlimited powers. 250 In the early part of the war, the First Uniform Tax case (South Australia v Commonwealth (1942) 65 CLR 373) upheld the right of the Commonwealth to take over State taxation offices and personnel under the defence power: at 436–8, 458–9, 468–71. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488 the court declared invalid national security regulations which regulated the working conditions of State public servants who were not engaged in war work: at 508–10, 515, 532–4. In Silk Brothers Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 legislation controlling the cost of rental housing throughout Australia was upheld. It was held that the control of housing was a matter which was associated with the prosecution of the war: at 17, 18, 20, 23. In R v University of Sydney; Ex parte Drummond (1943) 67 CLR 95 national security regulations controlling admission to universities were invalidated: at 105, 108–9, 114–5. In the words of Starke J (at 109): In truth, in taking power to determine the total number of students who may be enrolled in any faculty or course of study in the universities of Australia, the Commonwealth is seeking to control education in the universities of Australia, which is wholly beyond its power.

In the Prices Regulations case (Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 335) provisions controlling the prices of goods sold in Australia were upheld. As was pithily stated in that case, ‘[i]n modern times all countries in time of war have found it necessary to deal with profiteering and inflation’: at 339. In the Women’s Employment Regulations case (Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 347) Latham CJ stressed the concept of the ‘war-created problem’. Legislation dealing with war-created problems fell within the defence power: at 357–8. 251 In Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 national security regulations provided that the Governor-General

could declare unlawful any body which in his opinion was prejudicial to the war effort. The property of the declared body would become the property of the Commonwealth: at 134. The Commonwealth was also permitted to enter into possession of the premises of the declared organisation and to seize the property found therein: at 141. Another regulation prohibited the publication of unlawful doctrines, which was defined to include any doctrine advocated by declared bodies: at 143. The court recognised that Parliament had the right to protect the nation against subversion: at 132–3, 137, 156–7. But a number of the regulations were held invalid. [page 150] In particular, fault was found with the provision that the Commonwealth could enter into occupation of the premises of a declared organisation, as long as there remained within those premises property of the organisation. The criterion on which the Commonwealth’s right to occupy the premises depended was the presence of the property of the organisation — it did not depend on unlawful use: at 141, 148, 150, 153–4, 157, 166–7. It therefore fell outside the defence power. The regulation prohibiting the publication of unlawful doctrines was also invalid: at 143–4, 150, 153–4, 157, 164–5. Latham CJ pointed out that such doctrines could include the Ten Commandments. The criterion of illegality was that the doctrines were being advanced by a declared body, not that they were inherently prejudicial to the defence of the Commonwealth: at 144. McTiernan J agreed with Latham CJ: at 156–7. Williams J observed that the effect of this provision was that advocacy of the doctrines of Christianity would become unlawful: at 165. Rich J agreed with Williams J: at 150. The Jehovah’s Witnesses case must be set aside from the other cases discussed. In those cases where wartime regulations failed, they failed because there was no real connection between the matter regulated and the defence power. In this case there was no doubt that the Commonwealth could suppress

subversion. The fault was that the methods sought to be used went a great deal further than that. They went far beyond defence requirements.

The defence power after the conclusion of hostilities 252 Under the defence power the Commonwealth may legislate for the orderly transition from hostilities to peace. How long does this transition period last? The answer depends upon the nature of the legislation in question. See Connolly (1948) 1, 1 UQLJ 60; Sawer (1949) 23 ALJ 255. Legislation relating to certain matters (such as the provision of war service homes) might well be a valid exercise of the defence power for an indefinitely prolonged period after the war. Repatriation provisions relating to war-caused injuries continue indefinitely. In R v Foster; Ex parte Rural Bank of New South Wales (1949) 79 CLR 43 at 82–3 the High Court pointed out that the defence power did not extend to every consequence of a past war: The Constitution does not confer upon the Commonwealth Parliament any power in express terms to deal with the consequences of war, but there are some consequences which undeniably fall within the scope of the legislative power with respect to defence. Repatriation and rehabilitation of soldiers is an obvious case. Rebuilding of a city which had been destroyed or damaged by bombing would be another case. Laws relating to such matters would, however, be valid not merely because they dealt with consequences of a war, but because such laws can fairly be regarded as involved incidentally in a full exercise of a power to make laws with respect to defence. The effects of the past war will continue for centuries. The war has produced or contributed to the changes in nearly every circumstance which affects the lives of civilized people. If it were held that the defence power would justify any legislation at any time which dealt with any matter the character of which had been changed by the war, or with any problem which had been created or aggravated by the war, then the result would be that the Commonwealth Parliament would have a general power of making laws for the peace, order and good government of Australia with respect to almost every subject.

In Polyukhovich v Commonwealth (1991) 172 CLR 501; 101 ALR 545 Brennan J considered that a law enacted in 1988 which criminalised war crimes occurring in Europe during the Second World War was not a valid law with respect to defence. Given the distance in time from the events in question, the Act was unlikely to have a deterrent effect against future murderous conduct: at 592. Toohey J agreed with Brennan J: at 604. Gaudron

J argued that it is ‘very difficult to see any connexion at all’ between the national defence and a law [page 151] criminalising conduct that took place during a war that ended forty five years earlier: at 697. The other members of the court did not address this issue: at 531, 599. 253

(vii) Lighthouses, lightships, beacons and buoys:

See Quick and Garran, 1901, pp 565–6 (Revised ed, 2015, pp 661–3); Wynes, 1976, p 141; Renfree, 1984, p 486; Lane, 1997, p 205. 254 Section 69 of the Constitution provides that on a date to be proclaimed by the Governor-General certain departments of the public service including lighthouses, lightships, beacons and buoys should be transferred to the Commonwealth. However, there was no specific department of the colonies with this title, these matters falling within the general administration of marine and navigation departments. The Commonwealth power under s 51(vii) is thus not exclusive. See Wynes, 1976, p 141. 255

(viii) Astronomical and meteorological observations:

See Quick and Garran, 1901, p 566 (Revised ed, 2015, pp 663–4); Wynes, 1976, p 141; Lane, 1997, p 205. 256 Astronomical observation is a matter which is more appropriately regulated by Commonwealth than State law, particularly because of the huge expenses associated with the manufacture of radio telescopes. Nevertheless, this power is concurrent not exclusive. The Commonwealth may also make laws with respect to meteorological observations. 257

(ix) Quarantine:

See Quick and Garran, 1901, p 566 (Revised ed, 2015, pp 664–6); Wynes,

1976, p 141; Attorney-General’s Department, 1980, p 90; Brazil and Mitchell, 1981, pp 661–2 (no 516); Lane, 1997, pp 205–7; Reynolds (2004) 12 J L & Medicine 166; Faulkner and Orr, 2013, pp 406–7, 414–17, 637 (nos 1565, 1569, 1680); Gray (2015) 22 J L & Medicine 788 at 803–4. 258 Quarantine was defined by the Quarantine Act 1908 (Cth) s 4(1) as including: … measures … (a) for … (i)

the examination, exclusion, detention, observation, segregation, isolation, protection, treatment and regulation of vessels, installations, human beings, animals, plants or other goods or things; or (ii) the seizure and destruction of animals, plants, or other goods or things; or (iii) the destruction of … buildings or other structures when treatment of these premises is not practicable; and (b) having as their object the prevention or control of the introduction, establishment or spread of diseases or pests that … cause significant damage to human beings, animals, plants, other aspects of the environment or economic activities.

That Act was repealed by the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (Cth) s 3 and Sch 1. The Biosecurity Act 2015 (Cth) does not contain a similar definition. [page 152] This power is a concurrent one. See Ex parte Nelson (No 1) (1928) 42 CLR 209 at 217, 249. However, so far as the States are concerned there is a much wider control vested in them over health matters generally and they are not restricted to passing laws that fall within the narrower category of quarantine. 259

(x) Fisheries in Australian waters beyond territorial limits:

See Quick and Garran, 1901, pp 568–72 (Revised ed, 2015, pp 666–71); Opinions No 1847 of 13 January 1949 and No 1907 of 28 September 1950; Wynes, 1976, pp 147–8; Attorney-General’s Department, 1980, pp 90–1; Lane, 1997, pp 207–9. 260

The meaning of the phrase ‘territorial limits’ has been the subject of

fierce controversy. Bonser v La Macchia (1969) 122 CLR 177 considered this issue but with inconclusive results. If the territory of the colonies in 1900 ended at the low-water mark (the coastline) rather than the three-mile limit, then territorial waters were from 1900 not within the territory of the newly established States. Consequently, any power which they had over the adjacent seas was an extra-territorial power liable to be defeated by an exercise of paramount power by the Commonwealth Parliament. Two judges (Barwick CJ and Windeyer J) took this view of Commonwealth power: at 184, 218. Two other judges (Kitto and Menzies JJ) seem to have accepted that the States’ territorial competence extended to the three-mile limit: at 201, 209. On this view territorial limits were not the low-water mark but the three-mile limit. In the Seas and Submerged Lands Act 1973 (Cth) the Parliament declared and enacted that sovereignty over territorial waters was vested in the Crown in right of the Commonwealth: s 10. In New South Wales v Commonwealth (1975) 135 CLR 337; 8 ALR 1 (the Seas and Submerged Lands case) by a 5–2 majority the High Court upheld the validity of this provision as falling within the external affairs power (s 51(xxix)). In the view of the majority, territorial waters were not within the boundaries of the colonies at Federation. They were consequently geographically external to the continent of Australia: at 372, 378–9, 467, 484, 505. In 1979 the Commonwealth and States reached an agreement on the division of legislative and executive powers in the maritime areas adjacent to Australia. This became known as the ‘offshore constitutional settlement’. Under the settlement, the practical effect of the Seas and Submerged Lands case was revised. Henceforth, the States were to exercise a general legislative power over matters, persons and events associated with the territorial sea while the Commonwealth was to exercise legislative power outside that limit. The settlement was accomplished by the Coastal Waters (State Powers) Act 1980 (Cth). That Act was enacted under s 51(xxxviii) ‘at the request of the States directly concerned’. This was accompanied by legislation vesting proprietary rights and title in respect of the territorial seabed in the States. See Coastal Waters (State Title) Act 1980 (Cth). For discussions of the offshore settlement, see note (1980) 54 ALJ 517; Cullen, 1990, pp 104–29; White and Gaskell (2011) 85 ALJ 504. In Babington v Commonwealth [2016] FCAFC 45

the Full Federal Court held that the fisheries power is not exclusive to the Commonwealth: at [32]–[34], [40]. In Bonser v La Macchia (1969) 122 CLR 177 Kitto and Menzies JJ considered that the Commonwealth fisheries power commenced at the threemile limit: at 201, 209. Barwick CJ also took the view that (Imperial) territorial limits in 1900 extended to the three-mile limit and that the Commonwealth fisheries power must therefore be taken to operate outside that limit: at 190–2. Only Windeyer J considered that the fisheries power covered the waters within the three-mile limit: at 226–31. [page 153] In Chiou Yaou Fa v Morris (1987) 46 NTR 1; 87 FLR 36 Asche J held that Commonwealth power extended over the Australian Fishing Zone as proclaimed under the Fisheries Act 1952 (Cth). He stated that ‘an area of no more than 200 miles outwards from Australia and external territories and subject to the territorial limits of another country would be well within the power’: at 34. In Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270; 119 ALR 655 the court held that the fisheries power authorised the enactment of a law that provided for the forfeiture of property used in the commission of a fisheries offence. Such a law was within power even where the owner of the property was not involved in the commission of the offence: at 276, 281, 286, 291–2, 294. See similarly, Olbers Co Ltd v Commonwealth (2004) 136 FCR 67; 205 ALR 432; [2004] FCA 229 at [85], affd (2004) 143 FCR 449; 212 ALR 325; [2004] FCAFC 262 at [25]–[27]; SLR [2005] HCATrans 228. Section 15(c) of the Federal Council of Australasia Act 1885 (Imp) contained a power similar to that in s 51(x). 261

(xi) Census and statistics:

See Quick and Garran, 1901, p 572 (Revised ed, 2015, p 671); SG Opinion

No 1775 of 25 July 1946; Wynes, 1976, p 141; Brazil and Mitchell, 1981, pp 345–6 (no 286); Lane, 1997, p 209. 262 The Oxford Dictionary defines the census as ‘[a]n official enumeration of the population of a country or district, with various statistics relating to them’. See Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989, Vol II, p 1031. Statistics are numerical facts systematically collected. 263

(xii) Currency, coinage, and legal tender:

See Quick and Garran, 1901, pp 572–6 (Revised ed, 2015, pp 671–6); Wynes, 1976, pp 148–50; Attorney-General’s Department, 1980, p 91; Renfree, 1984, pp 487–91; Lane, 1997, p 210. 264 The Commonwealth has power to make money both by converting metal into money and by issuing paper money. Once this money is in existence it may be transferred from person to person. ‘Currency’ connotes such circulation. In Watson v Lee (1979) 144 CLR 374; 26 ALR 461 it was held that controls upon bringing foreign currency into Australia fell within s 51(xii): at 382, 397–400, 409–10. A statute imposing an obligation to report major cash transactions was also held to be within the currency power. See Leask v Commonwealth (1996) 187 CLR 579 at 595, 609–10, 616, 617, 623–4; 140 ALR 1. ‘Coinage’ is ‘concerned with coins as money’. Legal tender means ‘that which is [prescribed] … to be a lawful mode of payment’. See Watson v Lee (1979) 144 CLR 374 at 398; 26 ALR 461. This concept means that paper money as well as coins may be used for the payment of debts and the fulfilment of other financial obligations. In numerous cases it has been held that the Commonwealth has power to issue paper money as legal tender. See Re Skyring (1985) 58 ALR 629 at 633; 59 ALJR 561; app dism (1985) 160 CLR 695 (note); Skyring v Federal Commissioner of Taxation (1991) 23 ATR 84 at 87; Owen v Deputy Commissioner of Taxation (1995) 30 ATR 456 at 457; Re Skyring [2004] [page 154]

FCA 827 at [2]; Skyring v Commissioner of Taxation (2007) 244 ALR 505; [2007] FCA 1526 at [24]; Clampett v Kerslake [2009] QCA 104; SLR [2010] HCASL 280; Clampett v Attorney-General (Cth) (2009) 181 FCR 473; 260 ALR 462; [2009] FCAFC 151 at [95]–[96]. See also s 51(xiii), which refers to the issue of paper money. Coinage and legal tender are exclusive Commonwealth legislative powers. See the discussion under s 115. 265 (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:

See Quick and Garran, 1901, pp 576–82 (Revised ed, 2015, pp 677–84); SG Opinions No 1792 of 17 February 1947, No 1807 of 1 July 1947, No 1875 of 21 February 1950; Nicholas, 1952, pp 191–200; Wynes, 1976, pp 150–5; Attorney-General’s Department, 1980, pp 92–3; Brazil and Mitchell, 1988, pp 98–9, 178, 286–7, 437–8 (nos 630, 696, 795, 904); Smith (1990) 64 ALJ 13; Lane, 1997, pp 211–15; Hanks, Gordon and Hill, 2012, pp 424–8; Faulkner and Orr, 2013, pp 273–6, 750–9 (nos 1498–1499, 1737, 1739); Pyke, 2013, pp 196–7. 266 In Commissioner for the State Savings Bank of Victoria v Permewan Wright and Co Ltd (1914) 19 CLR 457 at 470–1 the essential characteristics of the business of banking were described as ‘the collection of money by receiving deposits upon loan, repayable when and as expressly or impliedly agreed upon, and the utilization of the money so collected by lending it again’. It was held that the fact that a bank did not as part of its services provide a cheque service did not prevent it from carrying on the business of banking. A bank could be merely a ‘savings bank’ providing for payment of depositor’s funds by presentation of a bank book: at 471, 481, 487. It would seem that today the label ‘bank’ can be applied to financial institutions that offer a variety of services. It also appears that the creation of credit is not the essential feature of banking as compared with other financial activities. Other types of financial institutions such as finance companies regularly lend money. In Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (HC); (1949) 79 CLR 497 (PC) Commonwealth legislation purported to create a federal government monopoly of banking (apart from State banking) and

excluded private banks from continuing to carry on banking transactions by expropriation of their assets. The plaintiffs argued that the words ‘State banking extending beyond the limits’ of any one State coloured the other words of the paragraph. It was argued that these words denoted that at least a minimum requirement of the power was the continuance of banking, and that prohibition of banking was beyond power: at 37, 44, 120, 301, 330–1. The majority of the High Court held that such a restriction could not be read into the power. The banking power thus extends to the prohibition of private banking: at 197–8, 301–2, 333–4, 392–3. See similarly, Melbourne Corporation v Commonwealth (1947) 47 CLR 31 at 69. In Siminton v Australian Prudential Regulation Authority (No 2) (2008) 168 FCR 122; 248 ALR 34; [2008] FCAFC 88; SLR [2008] HCATrans 280 the Banking Act 1959 (Cth) prohibited an individual from carrying on a banking business or from using words such as banking in relation to a financial business: at [21]. The Full Federal Court held that these provisions fell within the banking power: at [24]. The Act also authorised a judge to issue an injunction where a person had engaged in conduct that contravened the Act: at [20]. The court held that the power to issue an injunction was authorised by the banking power and the incidental power (s 51(xxxix)): at [24]. [page 155]

State banking 267 Subject to the qualifications noted below, banks which have been established as State instrumentalities are excepted from the Commonwealth power over banking. In Melbourne Corporation v Commonwealth (1947) 74 CLR 31 the court rejected the argument that State banking meant the banking of State moneys by private banks. It meant banking business carried on by a State as banker and not as customer: at 51, 86, 97. See also Victorian WorkCover Authority v Andrews (2005) 217 FCR 129; [2005] FCA 94 at [39]–[50]; issue not discussed on appeal (2007) 230 CLR 369; 233 ALR 389; [2007] HCA 9. In Bourke v State Bank of New South Wales (1990) 170 CLR 276; 93 ALR 460 the High Court unanimously held that the limiting words ‘other than

State banking’ require that when the Commonwealth enacts a law that can be characterised as with respect to banking, it cannot ‘touch or concern State banking, except to the extent that any interference with State banking is so incidental as not to affect the character of the law as one with respect to banking other than State banking’: at 288–9. If the interference is significant the legislation will certainly be invalid: at 290. The exclusion of ‘state banking’ does not limit only the banking power, but also limits the scope of other Commonwealth legislative powers: at 285–6. Where State banking extends beyond the limits of any one State, the Commonwealth power of regulation comes into operation. None of the States currently runs a state bank. See Victorian WorkCover Authority v Andrews (2005) 217 FCR 129; [2005] FCA 94 at [51].

Incorporation of banks 268 Under this paragraph, the Commonwealth is given the power to create its own statutory corporation to carry on the business of banking, as well as the power of imposing conditions for the incorporation of private banks. The presence of this express power may be contrasted with the absence of a similar power in the corporations power: s 51(xx). 269 (xiv) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:

See Quick and Garran, 1901, pp 582–4 (Revised ed, 2015, pp 684–7); SG Opinion No 1792 of 17 February 1947; Wynes, 1976, pp 155–6; AttorneyGeneral’s Department, 1980, p 94; Lane, 1997, pp 215–17; Bennett (2007) 28 Adel LR 79 at 89–93; Tate (2007) 28 Adel LR 96; Hanks, Gordon and Hill, 2012, pp 428–32; Faulkner and Orr, 2013, pp 159–61, 189–90, 205–7, 217, 543–51 (nos 1421, 1442, 1456, 1462, 1630, 1632, 1633). 270 Insurance may be defined as the act of providing against loss or damage caused by a contingent event. See Quick and Garran, 1901, p 582 (Revised ed, 2015, p 685). This head of legislative power could extend to all types of insurance apart from intrastate insurance activities carried on by States or State governmental instrumentalities. The scope of the power includes not only the

act of insurance itself but also incidental matters such as the limitation of risk and dividends. On the analogy of the banking power, the Commonwealth itself could, under the insurance power, set up a Commonwealth insurance instrumentality to engage in all fields of insurance. In Australian Health Insurance Association v Esso Australia (1993) 41 FCR 450; 116 ALR 253 the Federal Court interpreted a statute that defined ‘insurance’ by reference to the constitutional definition. Black CJ and Sheppard J emphasised that a broad rather than a [page 156] narrow construction of ‘insurance’ should be adopted in such a context: at 456, 492. Thus, the insurance power extends to transactions which otherwise bear all the characteristics of an insurance transaction but in which the premium is not proportionate to the risk. Furthermore, the paragraph includes ‘state insurance’ extending beyond the limits of any one State, which may be funded from financial resources other than premiums, including public revenue: at 456–7. In Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd (1953) 89 CLR 78 Fullagar J stated that the insurance power ‘must include power to prescribe conditions upon which any person, natural or artificial, may carry on an insurance business of any kind’. He added that ‘the whole relation of insurer and insured is within the scope of the power, and the power must extend to providing for the enforcement of contractual obligations and for the creation and enforcement of further obligations’. As a recognised category of insurance, life insurance fell within the insurance power: at 87. This power supported a law that empowered the Australian Prudential Regulation Authority to disqualify a person who was not fit and proper from holding office as a director or senior manager of a general insurer. See Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516; [2005] FCAFC 248 at [54]. State insurance that does not operate beyond the limits of the State

concerned is expressly excluded from the scope of the insurance power. Like the exclusion of State banking from the banking power, the exclusion of State insurance operates as a limitation upon all Commonwealth legislative powers, not merely the insurance power. In Attorney-General (Vic) v Andrews (2007) 230 CLR 369; 233 ALR 389; [2007] HCA 9 a Commonwealth statute provided that a statutory authority could grant a licence to an ‘eligible corporation’. The Act provided that a licensee would be subject to a Commonwealth compensation scheme, not a State workers compensation scheme: at [1], [3]. The telecommunications carrier Telstra operated under the Commonwealth scheme. Optus was a competitor of Telstra. Optus anticipated that it would make substantial cost savings if it operated under the Commonwealth scheme, rather than under a State scheme: at [24]. Optus argued that a ‘level playing field’ would be created if both providers operated under the same compensation scheme: at [40]. Optus was granted a licence: at [21]. A 5–2 majority of the High Court upheld the Commonwealth provisions. The court confirmed that a law enacted under the corporations power is subject to the exclusion with respect to State insurance if the law may also be characterised as a law with respect to insurance: at [12], [79]. The insurance power does not confer upon the States an exclusive legislative power over State insurance: at [11], [78]. If the federal law is not a law with respect to insurance, the law is not subject to a limitation that it may not ‘touch or concern’ State insurance: at [88]. The Commonwealth provisions were not laws with respect to insurance, ‘let alone’ State insurance: at [83], [87]. They concerned insurance only in an incidental manner: at [18], [83]. The federal provisions were supported by the corporations power: at [4], [82], [87]. 271

(xv) Weights and measures:

See Quick and Garran, 1901, p 585 (Revised ed, 2015, pp 687–8); Wynes, 1976, p 156; Attorney-General’s Department, 1980, p 95; Renfree, 1984, p 491; Lane, 1997, p 217; Faulkner and Orr, 2013, pp 94, 199–200 (nos 1381, 1450).

[page 157] 272 Under this head of power, the Commonwealth may prescribe national standards of weights and measures. 273

(xvi) Bills of exchange and promissory notes:

See Quick and Garran, 1901, pp 585–6 (Revised ed, 2015, pp 688–9); Wynes, 1976, pp 156–7; Attorney-General’s Department, 1980, p 95; Lane, 1997, pp 218–19. 274 The Bills of Exchange Act 1909 (Cth) defines a bill of exchange as ‘an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer’: s 8(1). A promissory note is defined as ‘an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person, or to bearer’: s 89(1). 275

(xvii) Bankruptcy and insolvency:

See Quick and Garran, 1901, pp 586–93 (Revised ed, 2015, pp 689–98); Wynes, 1976, pp 157–60; Attorney-General’s Department, 1980, pp 95–7; Lane, 1997, pp 219–20; Faulkner and Orr, 2013, pp 363–8 (no 1546). 276 The underlying rationale of bankruptcy and insolvency laws involves a State supervised appropriation of the assets of the debtor, a distribution of these assets among the creditors and a discharge of the debtor from any future liability in respect of their then existing debts. The bankruptcy power thus supports the enactment of provisions authorising the sequestration of the assets of a bankrupt debtor. See Rahman v Dubs (No 2) [2012] FCA 1081 at [12], [14]; SLR [2013] HCASL 23. Various incidental matters are covered by Commonwealth bankruptcy legislation, for example the requirement of keeping books of account. This

type of provision was upheld in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556. Latham CJ pointed out that since failure to keep books was a common cause of bankruptcy it came within the head of power: at 571. Starke J considered that this was a matter traditionally included within bankruptcy legislation, and was therefore within the power by definition: at 574. The bankruptcy power supports provisions regulating the continuation or cessation of litigation commenced by a bankrupt prior to bankruptcy. See Campbell v Metway Leasing Ltd (2002) 126 FCR 14; 195 ALR 271; [2002] FCAFC 394 at [45]. The power also supports the enactment of a provision that confers upon the courts the power to discharge a debtor from imprisonment for non-payment of provable debts. See Storey v Lane (1981) 147 CLR 549 at 555, 558, 564; 36 ALR 129. This power authorises the conferral of jurisdiction upon the courts to determine whether particular property vests in the Trustee in Bankruptcy, and whether such property exists. See Re Fuller; Wily v Fuller (1998) 86 FCR 85 at 89. 277

(xviii) Copyrights, patents of inventions and designs, and trade marks:

[page 158] See Quick and Garran, 1901, pp 593–9 (Revised ed, 2015, pp 698–707); Wynes, 1976, pp 160–1; Attorney-General’s Department, 1980, p 97; Constitutional Commission, 1988, Vol 2, pp 666–9; Williams (1995) 6 Aust Int Prop J 133; Lane, 1997, pp 221–3; Chin (2000) 24 MULR 609; Lawson (2006) 17 Aust Int Prop J 243; Clarke (2012) 17 Media & Arts LR 23; Hanks, Gordon and Hill, 2012, pp 433–8; Faulkner and Orr, 2013, pp 141, 494–5 (nos 1416, 1610).

Copyrights 278 The Copyright Act 1968 (Cth) defines the nature of copyright in an original literary, dramatic or musical work as encompassing exclusive rights of

reproduction in a material form, publication, performance in public, communication of the work to the public, and making an adaptation: s 31(1) (a). Provision is also made for rights in relation to artistic works: s 31(1)(b). The Act provides for a commercial rental right for sound recordings and computer programs: s 31(1)(c)–(d). Authors and performers have various moral rights in relation to their work: ss 193, 195ABA, 195AC, 195AHA, 195AI. In Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; 112 ALR 53 the High Court held that a provision to the effect that copyright in a sound recording was not infringed by copying on private premises for domestic use was not a law with respect to the acquisition of property. It was a law with respect to copyright. So too was provision for a blank tape royalty to compensate copyright owners for this use: at 495, 520, 528.

Patents and designs 279 A patent has been defined as ‘a legal privilege granted by the Crown to an individual, and conveying to him the sole right to make, use, or dispose of some invention of a new and useful mechanism, appliance, or process in science, art, or industry for a specified period of time’. See Quick and Garran, 1901, p 596 (Revised ed, 2015, p 703). In the light of the restrictive interpretation adopted with respect to trade marks, ‘patents’ might be given a similar interpretation. For instance, the Commonwealth could not legislate for the recognition of a patent irrespective of novelty. On the other hand the Commonwealth may legislate to grant patents with respect to new forms of material unknown in 1900, such as ‘plant’ patents. In Grain Pool of WA Ltd v Commonwealth (2000) 202 CLR 479; 170 ALR 111; [2000] HCA 14 the High Court unanimously upheld the validity of the Plant Variety Rights Act 1987 and Plant Breeder’s Rights Act 1994 (Cth) as laws with respect to patents of invention. In a joint judgment Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ held that the concept of ‘invention’ in this provision

contemplated future technological developments: at [18]. The reach of these words is not ascertained solely by determining the specific content of a patent under the law of 1900: at [23]. The Commonwealth may create ‘fresh rights’ of copyright, patents, designs and trade marks: at [41]. An ‘invention’ does require ‘novelty’, but that concept is variable rather than fixed, so different legislative schemes are able to satisfy that requirement: at [64]. A patentable invention need not demonstrate both novelty and inventiveness: at [53]. Kirby J upheld the Acts in a separate judgment: at [89]–[90], [137]. The Designs Act 1906 (Cth) defined a design as ‘features of shape, configuration, pattern or ornamentation applicable to an article, being features that, in the finished article, can be judged by the eye, but does not include a method or principle of construction’: s 4. The [page 159] Designs Act 2003 (Cth) now provides that ‘design, in relation to a product, means the overall appearance of the product resulting from one or more visual features of the product’: s 5.

Trade marks 280 Quick and Garran defined a trade mark as ‘some name, symbol, or device, consisting in general of a picture, label, word, or words, which is applied or attached to a trader’s goods so as to distinguish them from the similar goods of other traders, and to identify them as his goods, in the business in which they are produced or put forward for sale’. See Quick and Garran, 1901, p 598 (Revised ed, 2015, p 706). The Trade Marks Act 1995 (Cth) defines a trade mark as ‘a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’: s 17. ‘Sign’ is defined as including ‘any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent’ or a combination of these things: s 6.

In Attorney-General (NSW); Ex rel Tooth & Co Ltd v Brewery Employees’ Union (1908) 6 CLR 469 the majority held that the term ‘trade mark’ must be interpreted in the light of its meaning in 1900: at 501, 521, 535. It was held that a ‘workers trade mark’ (indicating that goods had been manufactured by union labour) was not within the genus so understood. In Grain Pool of WA Ltd v Commonwealth (2000) 202 CLR 479; 170 ALR 111; [2000] HCA 14 the court preferred the approach taken by the dissenting judgment of Higgins J in that case. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ quoted Higgins J: ‘trade marks usage in 1900 “gives us the central type; it does not give us the circumference of the power”’: at [19] See also Kirby J at [119]. In Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 the High Court unanimously held that the trade marks power would not support a prohibition upon the use of the expression ‘200 years’. Mason CJ, Deane and Gaudron JJ thought that the power might sustain a prohibition of the use of the name and symbols of the Bicentennial Authority: at 96. But it would not support the prohibition of common words and expressions which were not distinguishing features associated with the Authority: at 97. A trade mark has to distinguish the good or service and the proprietor of the trade mark has to be connected with the good or service: at 96. They commented that ‘the concept of a trade mark now extends to a mark that distinguishes services as well as goods’: at 96. Wilson, Brennan and Dawson JJ agreed with Mason CJ, Deane and Gaudron JJ: at 101, 117. The trade marks power supported a provision that authorised a magistrate to order the destruction of seized property if there were reasonable grounds to suspect that the property would be used in a serious offence against the trade mark legislation if it was returned to the person from whom it had been seized. See Paphos Providores Pty Ltd v Ladha (2014) 291 FLR 300; [2014] NSWSC 1788 at [23], [30], [82]–[83]. This particular holding was not challenged on appeal. See Paphos Providores Pty Ltd v Ladha [2015] NSWCA 353 at [24].

Acquisition of property issues

281 Intellectual property rights may detract from the proprietary rights of third parties in infringing articles. That effect does not infringe s 51(xxxi), the acquisitions power. See Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160–1; 121 ALR 577. However, intellectual property rights themselves are property and are protected by s 51(xxxi). See Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR [page 160] 480 at 499–500, 527; 112 ALR 53; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1; [1998] HCA 8 at [184]; JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 at [30], [35], [105], [137], [192], [209], [267], [276]. 282

(xix) Naturalization and aliens:

See Quick and Garran, 1901, pp 599–604 (Revised ed, 2015, pp 707–14); Wynes, 1976, pp 302–4; Attorney-General’s Department, 1980, pp 97–8; Constitutional Commission, 1988, Vol 1, pp 160–5; Wells (1996) 19 UQLJ 45; Lane, 1997, pp 223–5; Curtin (2005) 27 Syd LR 355; Tilmouth (2005) 26 Aust Bar Rev 193; Prince, 2005; Martin (2006) 6 QUTLJJ 1; Schultz (2012) 21 Griffith LR 36 at 54–8; Gray (2013) 20 Aust J Admin L 89; Gerangelos et al, 2013, pp 91–100; Williams, Brennan and Lynch, 2014, pp 945–85. 283 The legislative power of the Commonwealth Parliament with respect to naturalization is a power to regulate the process by which an alien becomes an Australian national. See Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162; 193 ALR 37; [2002] HCA 48 at [115]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72 at [2]; Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 at [196]. The naturalization power authorises the Commonwealth Parliament to ‘create and define the concept of Australian citizenship’. See Te at [31], [109]– [110]; Koroitamana v Commonwealth (2006) 227 CLR 31; 227 ALR 406; [2006] HCA 28 at [48]; Singh at [4], [196]. In Koroitamana v Commonwealth

(2006) 227 CLR 31; 227 ALR 406; [2006] HCA 28 the court held that birth in Australia does not automatically confer citizenship: at [14], [61]. There is no concept of ‘constitutional citizenship’: at [48], [61]. The Constitution does not expressly refer to Australian citizenship, which is a creation of statute law. See Wishart (1986) 15 MULR 662; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 54; 110 ALR 97; Rubenstein (1997) 25 FL Rev 295; Rubenstein, 2002, pp 24–46; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [3], [132], [263], [267]; Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162; 193 ALR 37; [2002] HCA 48 at [53]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72 at [79]; Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 at [311]; Koroitamana v Commonwealth (2006) 227 CLR 31; 227 ALR 406; [2006] HCA 28 at [54]– [55]; cp Ebbeck (2004) 25 Adel LR 137; Irving (2008) 30 Syd LR 133; Schultz (2012) 21 Griffith LR 36; Pillai (2013) 30 Mon ULR 568. The power in s 51(xix) also extends to ‘aliens’. In Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; 80 ALR 561 Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ defined an ‘alien’ as a person born out of Australia of parents who were not Australian citizens and who has not been naturalized under Australian law. It also included a person who has ceased to be a citizen by an act or process of denaturalization: at 183. In this case legislation authorised the Minister to order the deportation of a non-citizen who had been convicted in Australia of an offence and sentenced to one year or more imprisonment. The Act applied to those who were not Australian citizens at the time of committing the offence and had been present in Australia as permanent residents for less than 10 years. A citizen of the United Kingdom challenged the legislation in its application to British citizens, arguing that British citizens were not ‘aliens’. [page 161] The High Court rejected this challenge. By a 6–1 majority the court held

(at 184) that in its application to a non-citizen who was a British citizen the law was valid under the aliens power: The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject … could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an “alien”.

An alien was a ‘person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian’ or a person who has ceased to be a citizen through denaturalization: at 185. It was further submitted that references in the Constitution to ‘subjects of the Queen’ in the Constitution precluded a finding that any ‘subject of the Queen’ could be an alien. The majority stated that these references should now be taken to mean subjects of the Queen in right of Australia: at 186. The decision in Nolan was briefly overruled in relation to certain British subjects in Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51. However, the Nolan approach was quickly revived in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72. In the Shaw case the Minister for Immigration cancelled the visa of a citizen of the United Kingdom who had lived in Australia since he was a baby: at [3]. The British subject had committed a number of serious offences in Australia: at [6]. By a 4–3 majority, the court held that British subjects came within the aliens power, and were thus subject to deportation under the Migration Act. Gleeson CJ, Gummow and Hayne JJ held that pursuant to the aliens power the Commonwealth Parliament could define those persons who would be categorised as aliens: at [2]. However, the Parliament’s power to define those who were aliens was not ‘at large’: at [9]. The Constitution envisaged changes in the constitutional relationship between Australia and the United Kingdom. There was thus no restriction upon the aliens power that prevents the recognition of United Kingdom citizens as aliens: at [27]. British subjects are within the scope of the aliens power: at [32]. Heydon J agreed with these Justices: at [190]. In Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 a child had been born in Australia to non-citizen parents. The child had automatically received Indian citizenship at birth, since she was born to Indian

citizens: at [2]. By a 5–2 majority the court held that the child was an alien: at [32], [144], [205], [272]. Gummow, Hayne and Heydon JJ held that the ‘central characteristic’ of alienage was owing allegiance to another nation: at [154], [200]. The child in this case owed allegiance to India: at [154]. There was no fixed meaning of alienage at the time of Federation: at [157], [200]. Kirby J pointed out that in 1901 national laws determined citizenship based upon either birth in the country or descent from citizens. At that time British law based citizenship upon birth in the country. However, given that citizenship by descent was a widely used criteria for citizenship in many other nations, it was implausible that the Commonwealth was limited to applying the birthright criterion: at [250]–[251]. Gleeson CJ also concluded that the child was an alien: at [32]. Parliament has power to determine which categories of person shall be treated as aliens. See Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 at [4], [30]. However, its discretion is limited by the constitutional concept of alienage: Singh at [36], [49], [153], [253], [310]. That is, Parliament cannot simply deem anyone it likes to be an alien. In Pochi v Macphee (1982) 151 CLR 101; 43 ALR 261 Gibbs CJ stated that ‘the Parliament cannot, simply by giving its own definition of “alien”, expand the power under s 51(xix) to [page 162] include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word’: at 109. Many judges have cited this statement with approval. See Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162; 193 ALR 37; [2002] HCA 48 at [31], [159]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72 at [9]; Singh v Commonwealth (2004) 222 CLR 322; 209 ALR 355; [2004] HCA 43 at [4]; Koroitamana v Commonwealth (2006) 227 CLR 31; 227 ALR 406; [2006] HCA 28 at [12], [81]. Stateless persons fall within the aliens power. See Koroitamana at [15], [38].

284 It is clear that the aliens power could be used in conjunction with, or alternatively to, the immigration power in order to exclude aliens from the country, to prescribe the conditions under which they may enter the country and to deport them. Parliament thus has power under s 51(xix) to enact a law for the deportation of aliens. See Robtelmes v Brenan (1906) 4 CLR 395 at 404, 415, 418–19; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 117, 132–3; Koon Wing Lau v Calwell (1949) 80 CLR 533 at 555, 558; Pochi v Macphee (1982) 151 CLR 101 at 106, 113; 43 ALR 261. In Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; 309 ALR 29; [2014] HCA 22 the migration legislation provided that the Minister may designate a country as a regional processing country: at [11]. The Act also provided that departmental officers must transfer unauthorised maritime arrivals to a regional processing country: at [9]. These provisions brought about the removal of aliens from Australia: at [25]. The court unanimously held that laws regarding the removal of aliens ‘deal[] with the very subject matter’ of the aliens power: at [24]. The detention of aliens for the purpose of their removal has also been upheld. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97 Mason CJ, Brennan, Deane, Dawson, Toohey and McHugh JJ held that s 51(xix) authorised a law which conferred upon the executive authority to detain aliens in order that could may be deported or expelled. This authority was an incident of executive power: at 10, 26, 46, 64–5. Brennan, Deane and Dawson JJ stated (at 25–6): The legislative power conferred by s 51(xix) with respect to “aliens” is expressed in unqualified terms. It prima facie encompasses the enactment of a law with respect to non-citizens generally. It also prima facie encompasses the enactment of a law with respect to a particular category or class of non-citizens, such as non-citizens who are illegal entrants or non-citizens who are in Australia without having presented a visa or obtained an entry permit. Such a law may, without trespassing beyond the reach of the legislative power conferred by s 51(xix), either exclude the entry of non-citizens or a particular class of non-citizens into Australia or prescribe conditions upon which they may be permitted to enter and remain; and it may also provide for their expulsion or deportation.

Toohey J referred to the power as ‘plenary’ and took the view that ‘under this power the Parliament can validly enact a law for the deportation of aliens … for whatever reason it thinks fit’: at 44–5. McHugh J also adopted a wide

view of the power, agreeing that the power was limited only by its subject matter (at 64): If a law of the Parliament can be characterized as a law with respect to aliens, it is valid whatever its terms, provided that the law does not infringe any express or implied prohibition in the Constitution. Subject to any relevant constitutional prohibitions, Parliament can make laws imposing burdens, obligations and disqualifications on aliens which could not be imposed on members of the community who are not aliens.

[page 163] Gaudron J did not consider that the power authorised the detention of aliens merely because they were aliens: at 55. Another comment by Gaudron J suggested a preference for a confined rather than a plenary interpretation of the power: ‘There is … no decision of this Court that compels the conclusion that a law which operates on or by reference to aliens … is, on that account, a valid law with respect to aliens’: at 55. She also suggested that the power did not authorise denaturalization in the absence of default in compliance with the requirements of naturalization or a relevant change in the relationship of the naturalized person to Australia. The power ‘certainly does not authorize the transformation of a non-alien into an alien by statutory redefinition of citizenship or by repeal or amendment of legislative provisions dealing with citizenship’: at 54. In Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124; [2004] HCA 37 the court held that the mandatory administrative detention of asylum seekers, pending determination of their asylum applications or their removal from Australia, was supported by the aliens power: at [4], [39], [43], [139], [245], [255], [303]. See similarly, Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; 304 ALR 135; [2013] HCA 53 at [130], [202], [207]. In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 the plaintiff asylum seeker had travelled to Australia by boat. She was taken by Commonwealth officers to Nauru, where she was detained in a regional processing centre for refugee claimants: at [1], [8]. A retrospective Commonwealth statute provided that if

the Commonwealth entered into an arrangement for the establishment of a regional processing centre for asylum seekers, the Commonwealth may take any action or make payments in relation to regional processing functions. ‘Action’ was defined to include detaining a person: at [15]. French CJ, Kiefel and Nettle JJ held that this provision was authorised by the aliens power as it concerned the regional processing functions of the place where the aliens were taken: at [42]. However, if the provision had authorised Commonwealth participation in a system of detention which went beyond what was reasonably necessary for regional processing purposes, the question would arise whether the provision was beyond the aliens power: at [46]. Bell J held that actions and payments relating to regional processing functions were closely connected to the processing of asylum claims by aliens and hence fell within the aliens power: at [77]. Gageler J upheld the provision as it was incidental to the assessment of asylum claims made by aliens who had been transferred from Australia: at [182]. Keane J held that the provision was supported by the aliens power since it was directed towards ensuring the removal of aliens from Australia and their transfer to a country that was willing to accept them while their asylum claims were processed: at [259]. The aliens power also extends to laws that set the conditions upon which aliens may remain in Australia, such as setting a character test which allows the refusal of a visa to aliens who have committed criminal offences. See NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; 307 ALR 90; [2014] FCAFC 39 at [8], [102]–[104]. Persons may pass beyond the reach of the immigration power (s 51(xxvii)) once they have become absorbed into the community. In Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162; 193 ALR 37; [2002] HCA 48 the court held that no doctrine of ‘absorption’ limits the aliens power: at [26], [42], [58], [90], [134]–[135], [210]. As Gummow J put it, at some point the process of immigration will be completed and the immigrant will be beyond the immigration power. By contrast, the aliens power is [page 164]

concerned with a legal status, not a process that will be completed: at [107], [109]. Kirby and Callinan JJ did not rule out the possibility that absorption could apply in an ‘extreme’ case, but found it unnecessary to decide the point: at [201], [229]. The court also held that an alien who has been absorbed into the community remains an alien. An alien may lose that status only by the operation of legislation providing for the naturalization of non-citizens: at [56]–[58], [90], [116], [210]. Since 1983 the Migration Act 1958 (Cth) has been based upon the aliens power rather than the immigration power. See Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 at [10], [101]. This change in the constitutional basis for the Act bypassed the doctrine of absorption under the immigration power. 285 In Cunliffe v Commonwealth (1994) 182 CLR 272; 124 ALR 120 the majority held that the aliens power supported a system for the registration of persons who provided immigration assistance or made immigration representations: at 315–6, 357–8, 374–5, 393–5. The dissenting judges also considered that the aliens power would have supported the registration system: at 294–5, 333–4, 387. However, the dissenters considered that the law was invalid as an infringement of the implied freedom of political communication. The operation of the aliens power in relation to former Australian territories is examined under s 122. See the discussion of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439; 218 ALR 483; [2005] HCA 36. A power similar to that in s 51(xix) appeared in s 15(i) of the Federal Council of Australasia Act 1885. The Constitutional Commission recommended the addition of the words ‘nationality’ and ‘citizenship’ to s 51(xix): Constitutional Commission, 1988, Vol 1, p 160. 286 (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

See Quick and Garran, 1901, pp 604–8 (Revised ed, 2015, pp 714–18);

Constitutional Commission, 1988, Vol 2, pp 776–7, 789–94; Corcoran (1994) 5 J Legal Hist 131; Lane, 1997, pp 226–44; Williams, 1998, pp 104–25; Moeller and McKay (2000) 17 Environmental and Planning LJ 294; McGrath, 2003, pp 282–7; Gouliaditis (2008) 19 Public LR 110; Glover (2009) 20 Public LR 5; Orr and Johnston (2011) 39 FL Rev 71; Williams and Pillai (2011) 30 UQLJ 287 at 295–302; Ratnapala and Crowe, 2012, pp 319–29; Tran (2012) 37 Mon ULR 12; Hanks, Gordon and Hill, 2012, pp 387–410; Pyke, 2013, pp 187–95; Guy, 2013, pp 444–57; Keyzer, 2013, pp 165–83; Clarke, Keyzer and Stellios, 2013, pp 283–326; Gerangelos et al, 2013, pp 505–602; Joseph and Castan, 2014, pp 93–121; Williams, Brennan and Lynch, 2014, pp 815– 44; Aroney, Gerangelos, Murray and Stellios, 2015, pp 173–82; Stellios, 2015, pp 100–32. 287 What are trading, financial and foreign corporations? There is extensive authority regarding the meaning of ‘trading corporations’. In R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190; 23 ALR 439 a 4–3 majority held that football associations engaged in the organisation and promotion of sporting activities were trading corporations: at 209–11, 234–5, 237, 240. In Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625, the majority held that the Hydro-Electric Commission of Tasmania was a trading corporation: at 155–7, 179, 240, 293. Mason J considered that the fact that the commission sold electricity was sufficient to [page 165] regard it as a trading corporation. Even though it conducted public undertakings such as the construction of dams and generating plants, such an instrumentality was not deprived of its character of a trading corporation: at 156. In Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council (2008) 171 FCR 102; 250 ALR 485; [2008] FCA 1268 Spender J held that a shire council was not a trading corporation: at [155]. Where the predominant activity of a corporation is trading, the corporation is a trading

corporation: at [78]–[79]. The activities of the council that were alleged to be trading were run at a loss and were done in the public benefit. These activities were insignificant compared to the main function of the council: at [152]. In Bankstown Handicapped Children’s Centre Association Inc v Hillman (2010) 182 FCR 483; 265 ALR 23; [2010] FCAFC 11 the Full Federal Court held that an incorporated association that provided disability and childcare services was a trading corporation: at [3], [56]. The association was mostly funded by government: at [23], [25]. The prices the association charged for its services were primarily intended to recover costs: at [32]. The court held that paid public welfare services were a substantial part of the activities of the association: at [53]. The association sold its welfare services to the government, which purchased those services: at [54]. The fact that the association provided public welfare services did not take away the ‘essentially commercial’ nature of its relationship with government. Many incorporated charitable associations were trading corporations: at [55]. In United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497; 315 ALR 460; [2015] FCAFC 1 the Full Federal Court held that the Victorian Country Fire Authority was a trading corporation: at [140]. The Authority’s income from trading activities constituted 2.7% of its total income, and almost $13 million in dollar terms: at [29]. These trading activities were ‘substantial’ or ‘not insubstantial’: at [134]. The Authority was a trading corporation since these activities formed a ‘sufficiently significant proportion’ of its activities: at [135]. While the Authority was a ‘volunteer and community based’ organisation, the purpose of the corporation was not the major criterion, and the courts ‘looks beyond’ its predominant activity: at [134], [136]. If a corporation’s trading activities are significant, it will constitute a trading corporation even though its non-trading activities are more significant: at [137]. On the facts, income received by the Authority from the rental of properties to its employees at concessional prices derived from trading activity since it was carried out for financial return: at [119], [121]. Charges for road accident rescue services also derived from trading activity. There was no statutory duty to perform those services: at [126]. Those fees were bargained

between the parties, which was indicative of commercial activity: at [127]. The fees were not limited to cost recovery: at [129]. Charges for the giving of advice concerning dangerous goods also derived from trading activity. The Authority was permitted to set its own charges for this service. These charges resulted from trading activity even though the Authority had chosen to limit its charges to recovery of its costs in providing the service: at [130]–[131]. Several sources of income were also conceded to derive from trading activities (charges for fire equipment maintenance, sale of fire safety equipment and charges for consultancy services): at [114]–[115], [122]–[123]. A number of sources of income did not derive from trading activities. The Authority had a statutory right to contributions from insurance companies: at [81]. There was no commercial link between these contributions and specific services rendered by the Authority: at [95]. The Authority charged prescribed fees for attending false alarms. These fees were chargeable [page 166] under a legislative policy that those responsible for false alarms should bear their cost. The fees were not charged in order to generate income: at [102]. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 318 ALR 1; 89 ALJR 434; [2015] HCA 11 Queensland Rail was a labour hire company for its wholly owned subsidiary, the State railway operator: at [3]. A State Act provided that Queensland Rail was ‘not a body corporate’: at [2]. The court held that Queensland Rail was a trading or financial corporation under s 51(xx): at [5]. Queensland Rail was a corporation. It was a separate entity that had legal rights and duties. It endured despite changes in the persons who controlled its operations: at [38]. More specifically, Queensland Rail was a trading corporation organised to make a profit. It was required to act as a ‘commercial enterprise’ and to pay dividends to the State government: at [41]. Its function as a labour hire company was a trading activity, even

though it was done for a related entity and was not carried out for a profit: at [42]. The concept of corporations under s 51(xx) was not limited to those which were organised in the way that corporations were organised at Federation: at [19], [22]. The corporations power was not limited to regulating corporations which were described as such by State Parliaments: at [23]. No satisfactory line could be drawn between ‘corporations’ and ‘other artificial legal entities’ that are not bodies politic: at [26]. The constitution of a corporation consists of its memorandum and articles of association. These documents are relevant to the characterisation question as they disclose the purposes of the corporation. A shelf company with objects and purposes appropriate to a trading or financial corporation was held to be such a corporation even though it had not engaged in any trading or financial activities. See Fencott v Muller (1983) 152 CLR 570 at 601–2; 46 ALR 41. It should be noted that a corporation is no longer required to have a constitution. 288 Financial corporations will be next considered. In State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282; 44 ALR 1 the plaintiff board provided superannuation benefits to retired public servants and invested moneys for financial gain. The majority held that the board was a financial corporation. The activities of the board relating to investment were a substantial and not insignificant part of its established operations. It was accepted that the approach to the characterisation of a financial corporation should be the same as the approach to the characterisation of a trading corporation. It was also recognised that the two classes were not exclusive: a corporation could be a financial as well as a trading corporation: at 303–5. A corporation which engages in trading or financial activities does not cease to engage in those activities because they are entered into in the course of or for the purpose of carrying on a primary or dominant undertaking not described by reference to trade: at 304. In Bourke v State Bank of New South Wales (1990) 170 CLR 276; 93 ALR 460 the court held that a ‘financial corporation’ includes a State bank the banking activities of which do not extend beyond the limits of the State. The limitation in s 51(xiii) upon Commonwealth legislation with respect to such

State banking does not confine the definition of ‘financial corporation’. Instead, it operates as a limitation upon the power conferred by s 51(xx) in the same way as the requirement of just terms in respect of acquisitions operates in relation to other Commonwealth powers: at 291. ‘Foreign corporations’ are corporations incorporated outside Australia which carry on business within Australia. See New South Wales v Commonwealth (1990) 169 CLR 482 at 497–8; 90 ALR 355; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 365; 128 ALR 81; New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [55]; [page 167] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 318 ALR 1; 89 ALJR 434; [2015] HCA 11 at [20], [22]. 289 The modern law relating to the scope of the corporations power began with Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468. All of the judges in the Concrete Pipes case disagreed with the Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 interpretation of the corporations power in relation to intrastate trade. In refusing to allow the corporations power its full operation in relation to intrastate trade practices, the majority in Huddart, Parker had applied the discredited reserved powers doctrine: at 488–9, 499, 510–13, 515, 522. In the Concrete Pipes case there was not much discussion of the full ambit of the power. The effect of the case was restricted to upholding the power of the Commonwealth under s 51(xx) to make laws with respect to the restrictive trade practices of corporations which affect, inter alia, the sale and distribution of goods: at 489, 511–13. 290 However, it is clear that the corporations power has a much wider operation and may affect other activities of corporations. In Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169; 40 ALR 609 a provision of the Trade Practices Act 1974 (Cth) penalised acts of third parties that caused loss or damage to the business of a corporation. The court upheld this provision. It was accepted that the corporations power

extended to both the regulation and protection of the trading activities of trading corporations: at 183, 192–5, 204–6, 211–12, 217–20. This interpretation was confirmed in Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1; 46 ALR 625 where the majority of the court upheld the validity of a statutory provision which prohibited certain acts of trading corporations done for the purposes of their trading activities. Three of the majority Justices (Mason, Murphy and Deane JJ) considered that the power extended beyond the regulation of trading activities. They were prepared to uphold statutory provisions which regulated the non-trading activities of corporations: at 147–8, 179, 268–71. Brennan J left the matter undetermined: at 241. Mason J was prepared to adopt a wide interpretation in holding that the power was not to be restricted to trading activities. He rejected (at 148) the view that the scope of the power must be ascertained: … by reference to those matters, whatever they may be, as are relevant to the trading character of a trading corporation. Thus, it might be said that the power extends to, but does not travel beyond, such aspects of a trading corporation’s structure, business and affairs, as have relevance to its character as a trading corporation. This view of the power would, if accepted, enable Parliament to enact legislation regulating (and prohibiting) acts and activities engaged in by a trading corporation for the purpose of engaging in its trading activities.

291 In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323; 128 ALR 81 by a 4–3 majority the court held that the corporations power did not support a law that conferred upon the Australian Industrial Relations Commission the power to set aside or vary unjust contracts which were entered into between natural persons and which related to the business of a corporation. The majority (Brennan, Dawson, Toohey and McHugh JJ) expressed different rationales for this conclusion. Brennan J argued that to be supported by the corporations power a law must discriminate between 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’: at 336. The corporations power is not a power to make laws with respect to ‘things relating to corporations’ or with respect to ‘things relating to the businesses of corporations’: at 339 (italics omitted). [page 168]

Dawson J considered that to be a 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’: at 346. The corporations power is not a power to make laws with respect to matters related to the business of corporations: at 347. Toohey J emphasised that the corporations power is a plenary power: at 352–3. The connection between a law and corporations ‘must be substantial, not merely tenuous’: at 353. In particular, the law must display a ‘sufficient connection’ between the law and corporations, and it is beyond power to merely ‘identify corporations as a reference point so as to affect the activities of others’: at 353. McHugh J also stressed that the corporations power is a ‘plenary grant of power’: at 368. The corporations power does not authorise a law that merely operates upon the conduct that relates to the business of a corporation: at 368. The law must have ‘significance for the corporation’ in its legal or practical operation: at 369. A law will be within the power if it ‘regulates the activities, functions, relationships or business’ of a corporation. However, a law will not be within power if it ‘merely refers to or operates upon the existence of a corporate function or relationship or a category of corporate behavior’: at 369. Where a law operates upon the conduct of natural persons that conduct must have ‘significance’ for corporations: at 370. Mason CJ, Deane and Gaudron JJ dissented. Mason CJ emphasised the plenary nature of the corporations power: at 333–4. He also argued that a law may be within the corporations power though its direct legal operation is not upon corporations, provided that there is a ‘substantial or sufficient connection’ with corporations: at 334. Gaudron J also stressed the plenary nature of the power: at 364. The corporations power ‘extends to the business functions, activities and relationships’ of corporations: at 365. The power also extends to persons through whom corporations carry out business functions and activities or who enter into business relationships with corporations: at 365. The law under challenge fell within this description: at 365–6. Deane J agreed with Gaudron J: at 342. 292

The breadth of the corporations power was amply illustrated in New

South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52. Under amendments to the federal industrial relations legislation, the primary basis for the Act shifted from the conciliation and arbitration power to the corporations power: at [1]. The Act defined an employee as an individual employed by an ‘employer’, which was defined as a constitutional corporation, that is, a corporation within the meaning of s 51(xx) of the Constitution: at [8]–[9]. The amendments effected dramatic changes to the industrial relations system that had applied since Federation. The conciliation and arbitration powers of the Australian Industrial Relations Commission came to an end: at [13]. Responsibility for setting minimum wages was transferred to a new body, the Australian Fair Pay Commission: at [14]–[16]. The Act provided that it would apply to the exclusion of State and Territory industrial relations laws: at [346]. The new basis for the Act meant that most Australian employees now came under the federal system rather than the State system: at [45], [126], [800]. The State industrial relations systems became effectively redundant under the new system. The court upheld the challenged provisions in their entirety: at [456]. The States argued that the corporations power extended only to dealings by corporations with external parties, but not to internal dealings with their own employees: at [53], [57]. The majority rejected this argument as an inappropriate transplantation of a choice of law concept into the very different context of the construction of a head of federal legislative power: at [91]–[92]. Such a concept drew no support from the drafting history of the corporations power, which was [page 169] quite sparse: at [121], [124]. In any event, the corporation’s relations with its employees was better viewed as an external relationship: at [66]. The States also argued that the corporations power only authorises laws that dealt with matters that are peculiar to corporations. They argued that the fact

that the corporation is a constitutional corporation should be ‘significant’ in the way that a law operates in relation to it: at [57], [140]. The majority commented that to treat the scope of the corporations power as based upon the character of the three types of corporations included therein ‘produces awkward results’. Doing so would treat the power with respect to trading and financial corporations as based upon their activities (trading and finance), but the power with respect to foreign corporations as based upon their status (foreignness): at [145]. In any event, the words of the corporations power were not restricted to the trading activities of trading corporations or the financial activities of financial corporations: at [169]. Treating the power with respect to foreign corporations as restricted to laws about their status would be a ‘very narrow’ interpretation of the power: at [170]. The majority accepted that the corporations power supports laws that ‘single out constitutional corporations as the object of statutory command’. It also supports laws ‘which are directed to protecting constitutional corporations from conduct intended and likely to cause loss or damage to the corporation’: at [198]. Laws that regulate the relationship between a corporation and its employees fall within the power: at [198]. The States also argued that the corporations power should be read down so that the Commonwealth could not circumvent the limitations of the conciliation and arbitration power by resort to the corporations power: at [53], [57]. The majority acknowledged that the corporations power would be restricted by the limitations in the conciliation and arbitration power if those limitations constituted a ‘positive prohibition or restriction’ like those in the taxation, banking, insurance, and social services powers: at [220]. However, the limitations of the conciliation and arbitration power were not of that character. There was no ‘positive prohibition or restriction’: at [221]. In dissent, Kirby and Callinan JJ accepted the argument that the corporations power could not be used to circumvent the limitations of the conciliation and arbitration power: at [471], [482], [583], [822], [892]. Kirby J suggested that to do otherwise would make the conciliation and arbitration power ‘otiose, or at least optional for most purposes’: at [445]. For discussions of this case, see Roth and Griffith, 2006; Blackshield (2007) 31 MULR 1135; Teo (2007) 9 Const L & Pol’y Rev 62; Roos (2007) 11 Southern Cross ULR 81; Stokes (2015) 39 MULR 175.

In Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 French CJ, Hayne, Kiefel, Bell and Keane JJ held that a school chaplaincy program could not be supported under the corporations power. The challenged provision did not regulate any act by a corporation or the corporation’s capacity to make an agreement to receive payment for the chaplaincy services: at [50]. Crennan J agreed with the joint opinion on this point: at [99]. For a discussion of this case, see Olijnyk (2015) 39 UWALR 418. 293 One important limitation upon the corporations power which has emerged relates to incorporation. In New South Wales v Commonwealth (1990) 169 CLR 482; 90 ALR 355 six members of the High Court held that the corporations power did not allow the Commonwealth to legislate for the incorporation of trading and financial corporations. The majority held that the words ‘formed within the limits of the Commonwealth’ were words of limitation upon the power. They reasoned that ‘formed’ meant corporations already [page 170] formed, that is, a corporation had to be formed, in accordance with State law, before the Commonwealth could legislate with respect to it. Therefore the power did not extend to the process of incorporation itself: at 498. The court also noted that the incorporation of banking was specifically provided for in the banking power, yet the corporations power contained no such reference: at 499. It also noted that since the Commonwealth could hardly legislate for the creation of foreign corporations, the fact that the corporations power did not distinguish between foreign and trading or financial corporations as to incorporation suggested that the Commonwealth had no power over incorporation of corporations: at 498. The majority also relied upon history in support of its conclusion: at 501–2. For discussions of this case, see Kennett (1990) 19 FL Rev 223; Carney (1990) 2 Bond LR 79; McQueen (1990) 19 FL Rev 245. 294

In Bourke v State Bank of New South Wales (1990) 170 CLR 276; 93

ALR 460 the court unanimously held that the limiting words ‘other than State banking’ in s 51(xiii) (the banking power) restrict the scope of the corporations power so that a law enacted under the corporations power cannot extend to State banking where that law can also be characterised as a law with respect to banking: at 285–6. But if a law is not with respect to banking it is not subject to the limitation: at 289. The court noted that a State bank engaged in banking not extending beyond the limits of its State is a ‘financial corporation’ for the purposes of s 51(xx). The limitation on Commonwealth power in s 51(xiii) does not confine the definition of ‘financial corporation’, but operates as a limitation upon the corporations power in the same way as the just terms requirement in respect of acquisitions operates in relation to other Commonwealth powers: at 291. 295

(xxi) Marriage:

See Quick and Garran, 1901, pp 608–9 (Revised ed, 2015, pp 718–21); Lane (1978) 52 ALJ 121; Jessep and Chisholm (1985) 8 UNSWLJ 152; Lane, 1997, pp 245–57; Brock and Meagher (2011) 22 Public LR 266; Zimmermann (2013) 27 BYU J Public L 465; Young, 2013, pp 138–44; Dickey, 2014, pp 21–37; Pillai and Williams (2015) 29 Aust J Fam L 65. 296 Before Federation Lord Penzance defined marriage as ‘the voluntary union for life of one man and one woman, to the exclusion of all others’. See Hyde v Hyde (1866) LR 1 P & D 130 at 133. That definition is incorporated in the Marriage Act 1961 (Cth) s 5(1). In Commonwealth v Australian Capital Territory (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55 the High Court unanimously held that the Commonwealth Parliament is not limited to legislating in accordance with that definition. The court held that the marriage power would authorise the Commonwealth to extend the marriage relationship to marriages between persons of the same sex: at [38]. The legal status of marriage and its attendant rights and obligations have never been immutable: at [16], [19]. The marriage power is not confined to the status and social institution of marriage as it existed at Federation: at [16]. At the time of Federation the availability of divorce by judicial decree had already changed the institution of marriage as a union for life: at [17]. At that

time the legal development of marriage had a ‘long and tangled’ history: at [18]. This evolution has continued and the concept of marriage has become ‘more complex’: at [35]. Same sex and polygamous marriages are recognised in many nations: at [35]. The word ‘marriage’ in the marriage power means ‘a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a [page 171] union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations’: at [33]. For a discussion of this case, see Parkinson and Aroney (2014) 28 Aust J Fam L 160. 297 The constitutional validity of the legitimation and bigamy sections of the Marriage Act 1961 (Cth) was challenged in Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 (the Marriage Act case). The major legitimation provisions provided for the legitimation of a child whose parents were not married to each other at the time of birth but who had subsequently married each other. A 4–3 majority (Kitto, Taylor, Menzies and Owen JJ) held that the legitimation provisions were within Commonwealth legislative power as being incidental to the subject matter of marriage legislation: at 554, 570, 573–4, 601–2. Kitto J said (at 554): … a law which makes the legitimation of a child — perhaps one might more appropriately say the legitimation of the parents as such — an inevitable legal consequence of the inter-marrying of the parents seems to me to be a law directly and squarely upon the subject of what marriage amounts to in law, and therefore upon the subject of marriage.

That did not mean that all legitimation provisions would be valid. For example, the Commonwealth could not make laws on legitimacy generally which took as the basis for legitimation some fact other than marriage. The court unanimously sustained the validity of the provision prohibiting bigamy as a matter intrinsically related to the validity of a marriage: at 547, 551, 557– 60, 575, 600–1.

298 In Russell v Russell (1976) 134 CLR 495; 9 ALR 103 a 3–2 majority of the High Court held that under the marriage power the Commonwealth Parliament could declare the rights and obligations of the parties to a marriage to each other and to their children (natural or adopted). Consequently, Parliament had the power to create a jurisdiction with respect to matters such as custody, marriage and property which was not ancillary to proceedings for principal relief: at 529, 539–40, 550. However, such a jurisdiction was restricted to proceedings involving a party or parties to the marriage, and (in relation to custody) the natural or adopted children of the marriage: at 540–1. In other areas custody would be covered by State law. The definition of matrimonial cause in s 4(1) of the Family Law Act 1975 (Cth) has been a major issue in the case law. The characterisation of a proceeding as a matrimonial cause will determine whether the proceeding can be taken in the Family Court of Australia (which has exclusive jurisdiction) or in a State court. If a matter coming before a State court is characterised as a ‘matrimonial cause’, the State court is deprived of jurisdiction in the matter. See Perlman v Perlman (1984) 155 CLR 474 at 499–500; 51 ALR 317. Some difficulty arose in relation to proceedings for custody of children where only one of the parties to the marriage was involved, the other party being a ‘third party’. In certain circumstances it is possible for a third party to seek custody of a child to the marriage against the surviving parent. A matrimonial jurisdiction may be validly created in these circumstances. See Fountain v Alexander (1982) 150 CLR 615 at 625, 631–3, 638, 646–7; 40 ALR 441. In providing for the adjudication of conflicting claims to the custody of a child of the marriage by a party to the marriage and a third party, Parliament is regulating a right arising out of the marriage relationship. 299 In Cormick v Cormick (1984) 156 CLR 170; 56 ALR 245 the definition of a ‘matrimonial cause’ had been amended to encompass maintenance, property and custody matters in a diversity of circumstances. This case involved a dispute between a mother and her daughter [page 172]

concerning the custody of the daughter’s ex-nuptial child. The court held that this type of dispute did not come within s 51(xxi): at 176, 178, 182–3. Gibbs CJ stated (at 175–6): It is now well settled that “marriage” in s 51(xxi) includes the relationship or institution of marriage and, since the protection and nurture of the children of the marriage is at the very heart of the relationship, that the power to make laws with respect to marriage enables the Parliament to define and enforce the rights of a party to the marriage with respect to the custody and guardianship of a child of the marriage.

He added (at 176): There is already authority for the view that the Parliament could not, in the exercise of the marriage power, make provision for the adjudication of a dispute concerning the custody of a child of a marriage, when the parties to the dispute are strangers to the marriage, and the adjudication has nothing to do with the adjustment or termination of the rights of the parties to the marriage … It is even more clear that the Parliament cannot, under the marriage power, enact a law which provides for the adjudication of a dispute between persons who are not and never have been married, when the child whose custody or guardianship is in issue is not a child of any marriage.

(A child can become a child of the marriage by legitimation or adoption.) 300 In Re F; Ex parte F (1986) 161 CLR 376; 66 ALR 193 it was held that the Family Court had no jurisdiction under either s 51(xxi) or (xxii) to make orders defining the rights and duties of the parties to a marriage with respect to an ex-nuptial child merely because that child was an ordinary member of the family home: at 383, 397, 400, 404. With respect to property matters, the position is somewhat less clear but it would appear that, in the absence of proceedings for principal relief, an application of a party in respect of property must arise out of, or have a sufficient connection with, the marriage relationship. In Dougherty v Dougherty (1987) 163 CLR 278; 72 ALR 550 the court held that the power conferred by the Family Law Act to alter the property interests of the parties to a marriage could validly extend only to proceedings arising out of the marriage relationship. An independent adult son of the marriage could intervene seeking an order altering the property interests of the marriage in his favour as this arose out of the marriage relationship: at 287–8, 299, 301. In Fisher v Fisher (1986) 161 CLR 438; 67 ALR 513 the High Court allowed a legal personal representative to continue his deceased mother’s property-distribution application. The Family Law Act provided that where a

party to proceedings concerning matrimonial property died before their completion, the Family Court could permit the personal representative to continue the proceedings: at 444. The court held that this provision had sufficient connection with the matrimonial relationship to be valid: at 449, 452, 457–8, 462. The provision referred to the death of either party to the proceedings, but the Parliament could validly provide for the situation where both parties to the proceedings had died: at 454, 458, 462. This decision was applied in Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; [2012] HCA 52 at [30], [32]. 301 In Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; 106 ALR 385 the court held that the Family Court had jurisdiction to authorise the sterilisation of an intellectually disabled girl, a matter relating to the welfare of a child of a marriage. Mason CJ, Dawson, Toohey and Gaudron JJ stated that ‘a question of sterilization of a child of a marriage arises out of the marriage relationship and … the sterilization of a child arises from the custody or guardianship of a child’: at 261. [page 173] In P v P (1994) 181 CLR 583; 120 ALR 545 the court confirmed the power of the Family Court to make orders authorising sterilisation. The majority identified one source of support as the marriage power. ‘The authorization of medical treatment of an incapable child of a marriage … is something which is directly related to the protection and welfare of the particular child and which arises out of, and is itself an aspect of, the relevant marriage relationship’: at 600. They also identified the matrimonial causes power (s 51(xxii)) as another source of power. The challenged provisions were ‘directly concerned with parental rights and the custody and guardianship of infants in relation to divorce or matrimonial causes’: at 601. The marriage power is not restricted by any implications flowing from s 51(xxii), the matrimonial causes power. See Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 at 560, 572; Russell v Russell (1976) 134

CLR 495 at 528, 539, 550; 9 ALR 103; Re F; Ex parte F (1986) 161 CLR 376 at 387; 66 ALR 193; P v P (1994) 181 CLR 583 at 600; 120 ALR 545. Finally, the question of possible inconsistency between federal and State laws has often arisen in this area. An order of the Family Court can displace guardianship powers exercised under a State law relating to the guardianship of incapacitated persons. See P v P (1994) 181 CLR 583 at 604–5; 120 ALR 545. 302 (xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:

See Quick and Garran, 1901, pp 609–12 (Revised ed, 2015, pp 721–4); Lane (1978) 52 ALJ 121; Jessep and Chisholm (1985) 8 UNSWLJ 152; Constitutional Commission, 1988, Vol 2, pp 669–90; Lane, 1997, pp 258–60; Young, 2013, pp 144–77; Dickey, 2014, pp 15–21. 303 Under this head of power, the Commonwealth Parliament may legislate with respect to the dissolution of marriage by divorce or annulment. The Commonwealth may also legislate with respect to other actions associated with marriage, such as petitions for judicial separation and restitution of conjugal rights. The Commonwealth may also legislate with respect to ancillary matters associated with divorce proceedings, that is, custody, maintenance and property settlements. This power does not extend to ‘all proceedings between spouses’. See Lansell v Lansell (1964) 110 CLR 353 at 367–8, 370; Re F; Ex parte F (1986) 161 CLR 376 at 383–4, 407; 66 ALR 193. The words ‘matrimonial cause’ in s 51(xxii) refer to relief of a principal nature and do not include proceedings in relation to maintenance and property in a non-divorce separation. This would mean that their validity depends upon the scope given to the marriage power: s 51(xxi). See Russell v Russell (1976) 134 CLR 495 at 538; 9 ALR 103. The reference to ‘infants’ in this power is limited to children of a marriage. See Re F; Ex parte F (1986) 161 CLR 376 at 384, 397, 400, 408; 66 ALR 193. However, references of power to the Commonwealth Parliament in relation to the maintenance, custody and guardianship of children have been made by all States other than Western Australia. This would include exnuptial children.

All States except Western Australia have enacted references concerning de facto relationships. Western Australian enacted a much narrower reference that was limited to the superannuation aspects of the breakdown of de facto relationships. The Western Australian legislation has not come into force. See Young, 2013, pp 184–6; Dickey, 2014, pp 37–9. These reference laws are listed in the discussion of s 51(xxxvii). [page 174]

304

(xxiii) Invalid and old-age pensions:

See Quick and Garran, 1901, pp 612–13 (Revised ed, 2015, pp 724–6); Sackville (1973) 5 FL Rev 248; Wynes, 1976, pp 141–2; Crommelin and Evans in Evans, 1977, pp 37–9; Attorney-General’s Department, 1980, pp 102–3; Lane, 1997, pp 261–2. 305 The two traditional forms of social service benefits in existence at the time of Federation were assistance to those who were ill and assistance to those who were in a state of advanced age. Consequently it was understandable that the founders would consider that the federal Parliament should be given power to make laws with respect to these types of social services. This power is a concurrent one. In Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448; (2010) 268 ALR 232; [2010] FCAFC 52 the Full Federal Court held that the Superannuation Guarantee Charge was authorised by the pensions power: at [100]. Pensions need not be provided by the Commonwealth to fall within this power: at [101]–[102]. This aspect of the Federal Court’s decision was not challenged on appeal to the High Court. See Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 at [10]. 306 (xxiiiA) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances: [Inserted, Act No 81 of 1946 s 2]

See Sackville (1973) 5 FL Rev 248; Opinions No 1886 of 26 May 1950, No 1893 of 14 August 1950, No 1921 of 21 November 1950; Kennan (1975) 49 ALJ 261; Wynes, 1976, pp 142–7; Crommelin and Evans in Evans, 1977, pp 37–9; Attorney-General’s Department, 1980, p 102; Constitutional Commission, 1988, Vol 1, pp 626–8, Vol 2, pp 690–2; Wheelwright (1995) 21 Mon ULR 53; Lane, 1997, pp 262–6; Mendelson (1999) 23 MULR 308; Williams and Hume, 2013, pp 321–4. 307 Pursuant to a constitutional amendment adopted in 1946, the Commonwealth was given power to provide a great number of social services additional to those listed in s 51(xxiii). The following types of aid are provided for in s 51(xxiiiA): (a) maternity allowances; (b) widows’ pensions; (c) child endowment; (d) unemployment, pharmaceutical, sickness and hospital benefits; (e) medical and dental services (but not so as to authorise any form of civil conscription); (f) benefits to students; and (g) family allowances. The concept of ‘benefits to students’ was considered in Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23. French CJ, Hayne, Kiefel, Bell and Keane JJ held that a school chaplaincy program could not be supported as a ‘benefit to students’ under s 51(xxiiA). They acknowledged that the program benefitted some students in the sense of providing an ‘advantage or good’: at [43]. [page 175] However, the concept of ‘benefit’ in s 51(xxiiA) was narrower. In this context the word meant ‘material aid given pursuant to a scheme to provide for human wants … under legislation designed to promote social welfare or

security’: at [43]. Material aid may include the payment of money or the provision of goods or services: at [43], [46]. ‘Benefits to students’ means ‘material aid provided against the human wants which the student has by reason of being a student’: at [46]. Benefits are provided to identified persons: at [44]. The chaplaincy program did not ‘provide material aid to provide for the human wants of students’: at [47]. No material aid was provided to any identified student. The service rendered was ‘not directed to the consequences of being a student’: at [47]. In a separate judgment Crennan J also held that the program could not be supported as a ‘benefit to students’: at [110]. The former AUSTUDY payment to students was an example of a ‘benefit to students’ provided under this provision. See Smith v St James (1996) 135 FLR 296 at 311. 308 The prohibition of ‘civil conscription’ is directed only to the provision of medical and dental services. See Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271 at 279; 69 ALR 631; Halliday v Commonwealth (2000) 45 ATR 458; [2000] FCA 950 at [11]; Wong v Commonwealth (2009) 236 CLR 573; 252 ALR 400; [2009] HCA 3 at [119]. The concept of ‘civil conscription’ was considered by the High Court in British Medical Association v Commonwealth (1949) 79 CLR 201. Legislation which required that medical practitioners use a particular Commonwealth prescription form as part of a scheme to provide pharmaceutical benefits was invalid as a form of civil conscription. Latham CJ argued that civil conscription included not only legal compulsion to engage in particular conduct but also the imposition of a duty to perform work in a particular way: at 251–3. Williams J considered that the prohibition would be ineffective if it did not cover the method of performing the service: at 290. Webb J pointed out that the writing of a prescription was part of the physician’s function: at 293–4. In General Practitioners Society of Australia v Commonwealth (1980) 145 CLR 532; 31 ALR 369 Commonwealth legislation imposed certain obligations upon medical practitioners. One section provided that pathologists must be approved by the authorities before medical benefits were payable for their

pathology services: at 539. It was held that these provisions did not amount to civil conscription. The majority of the court agreed with the view in the earlier case that practical compulsion as distinct from legal compulsion was enough to constitute ‘civil conscription’: at 550, 556, 565. However, they differed from the majority in the earlier case by holding that civil conscription did not refer to compulsion to do, in a particular way, some act in the course of carrying on a practice where there was no compulsion to carry on the practice. The legislation under challenge did not create compulsion of this nature either legally or from the practical aspect: at 577. In Wong v Commonwealth (2009) 236 CLR 573; 252 ALR 400; [2009] HCA 3 a medical practitioner who engaged in ‘inappropriate practice’ could be disqualified from participating in Medicare: at [2]. A general practitioner had engaged in ‘inappropriate practice’ if a Professional Services Committee could ‘reasonably conclude’ that their conduct in rendering medical services ‘would be unacceptable to the general body of medical practitioners’: at [56]– [57]. Other provisions of the Act provided for the entitlement to Medicare benefits, payment of benefits to patients and the assignment of benefits to medical practitioners: at [6]. [page 176] Hayne, Crennan and Kiefel JJ stated that civil conscription cannot be defined in the abstract but must be worked out in the context of actual situations: at [193]. It was unlikely that a doctor could carry on a successful practice without participating in Medicare, so there was practical compulsion to take part in that scheme: at [207]. However, that form of practical compulsion did not establish that there was civil conscription. Under the challenged provisions there was no legal or practical compulsion upon a medical practitioner to carry out any service. The provisions did not impose ‘compulsory service’: at [209]. A medical practitioner remained free to choose whether or not to practise, whether to practise alone or as an employee, and where to practise: at [226]. The

definition of inappropriate practice was similar to the professional standards that had already applied to medical practitioners: at [224]. French CJ and Gummow J held that civil conscription was ‘compulsion or coercion, in the legal or practical sense, to carry out work or provide services’: at [60]. Civil conscription need not involve control of the entirety of professional activities if there is legislative compulsion or coercion: at [62]. Requiring medial practitioners not to engage in inappropriate practice did not conscript them: at [65]. The definition of inappropriate practice was drawn from prior rules concerning the professional responsibility of medical practitioners: at [64]. Those prior rules were designed to ensure the professionalism of the conduct of medical practitioners: at [65]. The provisions of the Act concerning payment and assignment of benefits placed conditions upon eligibility to participate in Medicare. They did not constitute practical compulsion to carry out professional services: at [68]. Kirby J held that the purpose of prohibiting civil conscription was to ensure that the relationship between medical practitioner and patient was governed by contract where that is the intention of both parties: at [125]. The prohibition maintains the provision of medical services by individuals rather than exclusively through a government run health service: at [126]. Detailed regulation of the provision of medical services does not in itself amount to civil conscription: at [140]. The very large aggregate sums of federal expenditure and the very numerous small individual payments involved necessitate a high degree of supervision of such payments: at [146]. The test for whether civil conscription has been imposed is ‘whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of “medical and dental services” and the individual recipients of such services’: at [151]. The challenged provisions did not compel any practitioner to perform any medical service on behalf of the Commonwealth. The Act respected the ‘individual and personal character’ of the relationship between doctor and patient: at [155]. For a discussion of this case, see Tran (2011) 13 Const L & Pol’y Rev 76. 309 In Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271; 69 ALR 631 the court upheld legislation which controlled fees charged to nursing home patients in approved nursing homes for the purposes

of eligibility for receipt of Commonwealth financial benefits. The control of fees charged to qualified patients was a reasonable ingredient of a statutory scheme designed to effectuate the provision of sickness and hospital benefits to such patients. So too were provisions relating to the keeping of accounts and inspection of the homes: at 283–4. Merely establishing that the law was one with respect to nursing homes, a subject over which the Commonwealth had no legislative power, would not result in a finding of invalidity. A law could possess more than one character and it would be valid provided one of these characters fell within a head of Commonwealth power: at 279. [page 177] The court stated (at 279–80) that three points were ‘settled’ about s 51(xxiiiA): First, the reference to “the provision” of the relevant benefits is to be confined to the provision of benefits by the Commonwealth … Secondly, the prohibition contained in the words “but not so as to authorize any form of civil conscription” in s 51(xxiiiA) applies only to the reference in the paragraph to the provision of “medical and dental services”. The words of that prohibition, however, are not irrelevant to the scope of the other matters described in the paragraph at least to the extent that whenever medical or dental services are provided pursuant to a law with respect to the provision of some other benefit, eg, sickness or hospital benefits, “the law must not authorize any form of civil conscription of such services” … Thirdly, the concept intended by the use in the paragraph of the word “benefits” is not confined to a grant of money or some other commodity. It may encompass the provision of a service or services.

310 Section 51(xxiiiA) is not a purposive power. See Higgins v Commonwealth (1998) 79 FCR 528 at 532; 160 ALR 175. The power includes the power to set qualifications and disqualifications for the receipt of benefits: id. The Commonwealth may alter or repeal benefits provided under this power without infringing the acquisition power. See Health Insurance Commission v Peverill (1994) 179 CLR 226 at 262; 119 ALR 675. Some of the particular heads in s 51(xxiiiA) refer to money payments, whether lump sum or periodical, while other parts of the list refer to the provisions of benefits. This means that some benefits will include both monetary payments and the supply of goods and services, while others will consist only of financial assistance.

311 (xxiv) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:

See Quick and Garran, 1901, pp 613–20 (Revised ed, 2015, pp 726–35); Attorney-General’s Department, 1980, pp 103–5; Constitutional Commission, 1988, Vol 2, pp 698–702; Lane, 1997, pp 266–9. 312 This paragraph enables the Commonwealth to legislate to provide that State court processes (whether initiating or executing) and judgments have an Australia-wide operation. In reliance upon this power, the Commonwealth Parliament enacted the Service and Execution of Process Act 1992 (Cth) to provide for the service of process (Part 2), the execution of warrants (Part 5) and the enforcement of judgments and fines of the courts of one State in other States (Parts 6–7). The 1992 Act repealed a 1901 statute of the same name. This power is a concurrent one. See Renton v Renton (1918) 25 CLR 291 at 298. Under the 1901 Act, problems arose concerning the inter-relation of the provisions of the federal Act with the provisions made in the rules of various State courts for the service of civil process beyond the boundaries of their respective States. State courts had within their rules provisions to the effect that service out of the (territorial) jurisdiction of the court may be allowed by the court or a judge in certain specified cases. Once service had been achieved the defendant had to enter an appearance, either unqualified or conditional (that is, subject to a challenge to the court’s jurisdiction). If a defendant ignored the process served upon them, they risked a default judgment. 313 It might seem that this would be an example of paramount Commonwealth legislation. That is to say, the Commonwealth having legislated with respect to the service and execution of process, the pre-existing State rules should be inoperative to the extent of [page 178] the inconsistency. However, this was not the case under the 1901 Act. In Dowd v Dowd [1946] St R Qd 16 at 17–18 Philp J discussed the relation of the two sets of rules: … the federal Act and the relevant State law form separate codes in relation to service of a writ

issued in one State on a person in another State and to the circumstances in which the issuing court has jurisdiction in default of appearance. If one of these codes be complied with, the rights and jurisdiction provided by that code arise and there is no necessity to comply with the requirements of the other code.

314 The possibility of inconsistency was raised directly in K W Thomas (Melbourne) Pty Ltd v Groves [1958] VR 189. O’Bryan J (at 192) set out the relationship of the federal and State Acts in this way: There is … nothing either in the terms, nature or subject-matter of the Service and Execution of Process Act [1901] to suggest that the Commonwealth Parliament intended to cover the whole field in relation to service of process of one State outside that State but within Australia, or to abrogate the existing State legislation whereby process might be served outside the State. … The Commonwealth Statute is wholly enabling and gives complementary or additional facilities to those already existing under State law.

In Flaherty v Girgis (1987) 162 CLR 574; 71 ALR 1 the High Court held that there was no inconsistency between the 1901 Act and the New South Wales Supreme Court Rules concerning service out of the jurisdiction. The majority held that the federal Act was not intended to ‘cover the field’. There was no clear intention to ‘legislate completely or exhaustively upon the subject of extraterritorial service of process within the Commonwealth’: at 594–5. Rather, the federal legislation was facultative only. The federal Act allowed service within the Commonwealth under its own provisions or under State Rules: at 581. By contrast, the 1992 Act covers the field. See Mok v Director of Public Prosecutions (NSW) [2016] HCA 13 at [11]. The Act expressly states that it ‘applies to the exclusion of’ State laws regarding interstate service and execution of process. See Service and Execution of Process Act 1992 (Cth) s 8(4)(a). In McGlew v New South Wales Malting Co Ltd (1918) 25 CLR 416 the 1901 Act empowered the issuing court to order a plaintiff to give security for costs upon application for leave to issue a writ for service in another State. The court held that this provision was valid as incidental to the purpose of the Act: at 420. The 1992 Act also provides that a court may order a plaintiff to give security for costs, and may order that the proceedings be stayed until security is provided: s 19.

Criminal process 315 Warrants may be executed beyond the issuing State: Pt 5 of the 1992 Act. The validity of the 1901 warrant provisions (ss 18 and 19) was challenged in Aston v Irvine (1955) 92 CLR 353 on the basis that, by authorising the manner in which the officers of one State should handle criminal process issuing from another, it constituted an interference with the executive government of the former State. The court considered that the critical act in the scheme was the endorsement of the warrant by the magistrate or Justice of the peace of the State in which it is executed. Referring to the power to issue warrants, the court said (at 364): The magistrates, justices of the peace and other officers … [who have] power to issue warrants for apprehension of persons under the law of a State exercise that power under the authority of the law, which reposes it directly in them. They are not agents vicariously exercising an authority derived from the executive government of the State as a principal. To give them the power in question involves no interference with the functions of the executive government of the State.

[page 179] This meant that the magistrates were conforming with Commonwealth law, exercising a purely ministerial function vested in them by the exercise of Commonwealth legislative power under s 51(xxiv). It was also argued that this constituted an exercise of the executive power of the Commonwealth contrary to s 67 of the Constitution: at 358, 364–5. The court responded (at 365): s 18 confers specific legal powers upon the magistrates, justices of the peace and officers authorized by State law to issue warrants of apprehension. The use of these powers involves an independent responsibility and does not involve the executive power of the Commonwealth.

316 Subsections 18(3) and (6) of the 1901 Act empowered the magistrate to order the return of the apprehended person to the State, grant bail or discharge the person: at 354. It was also argued that these provisions were invalid for conferring federal judicial power not upon a ‘State court’ but upon the magistrate as a designated person. In this role, the magistrate was not

strictly speaking acting in a judicial capacity. The court conceded that it was arguable that judicial power was involved. They answered this contention by saying (at 365): But the scheme of s 18 and s 19 seems to be to treat the magistrate or the justice as exercising a preliminary discretion to grant, so to speak, process ministerially and then to submit for judicial review by a judge of the Supreme Court the whole question of the liability of the person apprehended to be returned to the State originating the proceeding.

Section 19 of the 1901 Act allowed the accused person to bring the matter before a judge of the Supreme Court for review, whereupon the judge could confirm or quash the order of the magistrate: at 354–5. At first sight, this appears to be a similar power to that exercised by the magistrate: at least, the result is the same. And the magistrate’s power was described as ministerial. If this were so, the provision would be invalid, since non-judicial authority would have been conferred upon the Supreme Court. The High Court rejected this argument. Once the matter was referred to the Supreme Court, it was necessary for that court to treat the question as a matter arising under federal law within the federal jurisdiction conferred upon it by the Judiciary Act 1903 (Cth) in accordance with s 77(iii) of the Constitution: at 366. In Dalton v NSW Crime Commission (2006) 227 CLR 490; 226 ALR 570; [2006] HCA 17 the court held that s 51(xxiv) included the service of process of a State investigative body, the New South Wales Crime Commission. Section 51(xxiv) empowers the making of laws with respect to the ‘service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States’. The service and execution of civil and criminal processes need not be those of State courts, but need only be the process of a State. The power supports the service and execution of the processes of non judicial bodies: at [34]. By contrast, where provision is made for the service and execution of judgments, those must be the judgments of State courts: at [30]. The types of process that may come within s 51(xxiv) may change over time, so that new types of process may come within the power: at [48]. In any event, the service at issue was analogous to the investigative functions of the courts in 1900: at [49], [53]. 317 The constitutional validity of the Service and Execution of Process Act 1901 (Cth) survived challenge. Its successor Act also seems likely to survive challenge. But Aston v Irvine (1955) 92 CLR 353 illustrates how carefully

Commonwealth legislation must be drawn to avoid the pitfalls of the doctrine of separation of judicial power. The juristic basis of the system of the Act in its criminal aspect was not dissimilar from that contained in the income tax legislation which was upheld in Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530. [page 180] 318 The 1901 Act spoke of ‘States or parts of the Commonwealth’. Under s 5(1) of the 1992 Act each Territory is to be regarded as a State. The question has been raised as to how the power in s 51(xxiv) interrelates with the power given by s 122. This question was adverted to in Lamshed v Lake (1958) 99 CLR 132. Dixon CJ said (at 145–6): I am disposed to think that the provisions of the Service and Execution of Process Act 1901– 1950 relating to the process of the territories must be justified under s 122. At all events s 51(xxiv) does not extend to the service in the States of process issuing from the Territories.

Williams J said (at 151): There is no reason in my opinion why the Northern Territory should not like the States be subject to federal laws which the Commonwealth Parliament is empowered to make for the government of the whole area of the Commonwealth. For instance, to laws made under s 51 pars (vi), (xxii) or (xxiv) of the Constitution.

Powers similar to those in s 51(xxiv) appeared in the Federal Council of Australasia Act 1885 (Imp) s 15(d) and (f). 319 (xxv) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:

See Quick and Garran, 1901, pp 620–1 (Revised ed, 2015, pp 735–7); Wynes, 1976, pp 173–6; Attorney-General’s Department, 1980, p 105; Constitutional Commission, 1988, Vol 2, pp 702–7; Lane, 1997, pp 269–70; ALRC, 2001, pp 564–5; Nygh and Davies, 2002, p 14; Lindell and Mason (2010) 38 FL Rev 391 at 408–9. 320 This section looks to interstate recognition of the legislation, records and curial processes of each State. The Commonwealth has legislated to

provide for the recognition throughout the Commonwealth of State and Territorial public acts, records and judicial proceedings. Section 185 of the Evidence Act 1995 (Cth) provides: All public acts, records and judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, and in every public office in Australia, such faith and credit as they have by law or usage in the courts and public offices of that State or Territory.

This provision relates to ‘public acts, records, and judicial proceedings’, which must be proved or authenticated under the Act. The words ‘public acts’ in this provision do not refer to State or Territory statutes, which do not require proof or authentication. See Breavington v Godleman (1988) 169 CLR 41 at 80, 94–5, 115, 166; 80 ALR 362; Evidence Act 1995 (Cth) s 143. A similar provision appeared in s 18 of the repealed State and Territorial Laws and Records Recognition Act 1901 (Cth). See also the discussion of s 118 of the Constitution — the ‘full faith and credit clause’. This power is a concurrent one. See Renton v Renton (1918) 25 CLR 291 at 298. 321

(xxvi) The people of any race for whom it is deemed necessary to make special laws:

[Altered, Act No 55 of 1967 s 2]

See Quick and Garran, 1901, pp 622–3 (Revised ed, 2015, pp 737–8); Sadler (1985) 10 Syd LR 591; Constitutional Commission, 1988, Vol 2, pp 707–20; Williams and Bradsen (1997) 17 Adel LR 95; Detmold (1997) 8 Public LR 244; Lane, 1997, pp 271–3; Senate Legal [page 181] and Constitutional Legislation Committee, 1997, pp 159–87; Johnston and Edelman (1998) 1 Const L & Policy Rev 41; Williams, Gageler and Lindell (1998) 9 Public LR 265; Malbon (1999) 21 Syd LR 80; Reilly (1999) 23 MULR 476; Malbon (2002) 6 Flinders J L Reform 41; French in Lee and Winterton, 2003, pp 190–212; McGrath, 2003, pp 159–93; Pritchard (2011) 15, 2 Aust Indigenous LR 44; Twomey (2012) 40 FL Rev 413; Clarke, Keyzer

and Stellios, 2013, pp 211–24; Keyzer, 2014, pp 185–96; Dixon and Williams (2014) 25 Public LR 83; Brennan and Davis (2014) 23 Griffith LR 79; Williams, Brennan and Lynch, 2014, pp 896–1009; Joseph and Castan, 2014, pp 529–42. 322 Under this head of power the Commonwealth can legislate with regard to specific classes of people who fall within the category of a race. Until 1967 the Aboriginal race was expressly excluded from this paragraph. Following a constitutional amendment approved in that year the Commonwealth Parliament now has power to make laws for the Aboriginal race. This amendment has ended any doubts which may have existed as to the power of the Commonwealth to enact laws for the benefit of Aborigines. For histories of this power as originally drafted and as amended, see Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 at [133]– [147]; Summers in Lindell and Bennett, 2001, pp 151–2, 206–9; Williams, 2005, p 260. 323 In Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417 it was held that two sections of the Racial Discrimination Act 1975 (Cth) were not supported by the race power. One section made it unlawful to do any act involving a distinction based upon race: s 9. The other section prohibited discrimination in relation to the exercise of a discretion to consent to the transfer of property: s 12. The court held that a law which applied equally to the people of all races was not a special law for the people of any particular race: at 186–7, 210–11, 245, 261. As Stephen J put it (at 210): To be within power under par. (xxvi) a law must be special in the sense that it is the particular race, or races, for whom it legislates that gives rise to the occasion for its enactment.

However, a law may be ‘special’ even though it confers a benefit upon society or humanity generally, if the benefit is of special significance to a particular race. See Commonwealth v Tasmania (1983) 158 CLR 1 at 158, 180, 244–5, 273–4; 46 ALR 625; Western Australia v Commonwealth (1995) 183 CLR 373 at 461; 128 ALR 1. 324 In Western Australia v Commonwealth (1995) 183 CLR 373; 128 ALR 1 six members of the court held that with the exception of one provision, the main provisions of the Native Title Act 1993 (Cth) were supported by the race power. Whether it is ‘deemed necessary’ to make a special law for a race

is a matter for Parliament, subject to the possibility of a ‘manifest abuse’ of this power of judgment by Parliament: at 460, 462. The law is a ‘special law’ if it ‘confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race’: at 461. The Native Title Act was a ‘special law’ in that it ‘confers uniquely on the Aboriginal and Torres Strait Islander holders of native title a … benefit protective of their native title’: at 462. The High Court has not yet decided whether the race power will support laws which discriminate against the race dealt with by the special law or whether it is confined to laws which benefit the race with which the special law is concerned. In Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 an amending Act was challenged as beyond the race power on the ground that the power authorised only beneficial legislation. Brennan CJ and McHugh J did not decide this question: at [20]. They held that since the original Act had been within power, it was within the power of the Parliament to repeal what it had enacted: at [13]. [page 182] Gaudron J held that the deletion of the words ‘other than the Aboriginal race in any State’ by the 1967 referendum placed the Aboriginal race in the same position under the race power as that of any other race: at [29], [31]. The deletion of these words expanded rather than reduced this power: at [32]. Nonetheless, the words ‘for whom it is deemed necessary to make special laws’ operate as a limitation upon the race power: at [34]. The necessity for the law is primarily a matter for Parliament, but there must be some material upon which the Parliament might reasonably conclude that there was a difference between the race at issue and other races which would justify a special law regarding that race: at [39]. While the power may embrace adversely discriminatory as well as beneficial laws, at present it is unlikely that a law disadvantaging a race will be within power: at [44]. Gummow and Hayne JJ held that it was for Parliament to judge whether it was ‘deemed necessary’ to make a special law: at [82]. However, a law enacted in ‘manifest abuse’ of Parliament’s power of judgment might be beyond power: at [82]. They rejected an argument that the 1967 amendment to the

race power had the consequence that laws enacted under the race power must be beneficial in operation so far as they concerned indigenous people: at [90]– [94]. In dissent, Kirby J argued that the race power does not authorise laws discriminating against any race, including the Aboriginal race: at [152]. An argument that s 51(xxvi) gave rise to a ‘special relationship’ between the Commonwealth and the Aboriginal people was rejected in Aboriginal Legal Service of Western Australia Inc v Western Australia (1993) 9 WAR 297 at 321; 113 ALR 87. The Constitutional Commission, the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples all recommended that the race power be repealed and replaced by an express power to make laws with respect to Aboriginal and Torres Strait Islander peoples. See Constitutional Commission, 1988, Vol 2, p 707 (‘Aborigines and Torres Strait Islanders’); Expert Panel, 2012, pp 144–52; Joint Select Committee, 2014, pp 4–10; Joint Select Committee, 2015, p 22. 325

(xxvii) Immigration and emigration:

See Quick and Garran, 1901, pp 623–9 (Revised ed, 2015, pp 738–46); SG Opinions No 1766 of 2 April 1946, No 1830 of 21 February 1948, No 1861 of 8 June 1949, No 1863 of 6 September 1949; Malor (1950) 24 ALJ 3; Ryan in O’Connell, 1966, pp 465–71; Lane (1966) 39 ALJ 302; Coper (1976) 50 ALJ 351; Wynes, 1976, pp 304–11; Attorney-General’s Department, 1980, pp 106–12; Renfree, 1984, pp 119–23; Wood (1986) 16 FL Rev 288; Wells (1996) 19 UQLJ 45; Lane, 1997, pp 274–81; Williams, Brennan and Lynch, 2014, pp 930–45. 326 The term ‘immigration’ has often been associated with the entry by a person into a country for the purpose of settling in that country. However, the interpretation given to the term ‘immigration’ by the courts has tended to separate the concept of entry from that of settlement, so that the immigration power is regarded as extending to those who have entered into Australia even though they have not been accepted as settlers. This was pointed out in Ah Sheung v Lindberg [1906] VLR 323. Cussen J

stated that ‘[i]n its ordinary meaning immigration implies leaving an old home in one country to settle in a new home in another country, with a more or less defined intention of staying there permanently, or for a considerable time’. He further observed out that the meaning of immigration had been extended in the Australian context to cover the influx of persons for temporary purposes (for example, work) without the intention of settling: at 332–3. [page 183] 327 From an early period, the question arose as to how far the power would permit legislation bearing upon the status of ‘immigrants’, not as persons taking part in the physical act of immigration, but as persons who, having done so, had been to a greater or lesser extent absorbed into the Australian community. The widest view of the power was that stated by Isaacs J: ‘Once an immigrant always an immigrant’. See R v Macfarlane; Ex parte O’Flanagan (1923) 32 CLR 518 at 555. This view implied that the Commonwealth power was an extensive one with a more or less permanent attachment to persons who had ‘settled’ in Australia. On the other hand, the more restrictive view of the immigration power was that it did not permit the Commonwealth to legislate with regard to persons who had settled in Australia and had been absorbed into the community. In the early case of Potter v Minahan (1908) 7 CLR 277 it was held that the immigration power did not extend to Minahan, who was born in Australia but had been taken to China by his father at the age of five. He remained in China for a period of 26 years after which he returned to Australia: at 279, 287, 312. Griffith CJ considered that the fact of birth in Australia set up a presumption that Australia was ‘home’ and that the facts associated with the respondent’s conduct were consistent with his continuing to regard Australia as home. He regarded Minahan’s return from China as not amounting to immigration, and so Minahan was outside the scope of the immigration power: at 289. Barton and O’Connor JJ also held that Minahan was not an immigrant: at 298–9, 307. However, a different view was taken in Donohoe v Wong Sau (1925) 36 CLR 404. The respondent was born to Chinese parents in New South Wales

in 1883. The family returned to China in 1889. In 1924 the respondent arrived back in Australia where she was treated by the immigration authorities as a prohibited immigrant: at 405. This action was challenged in the High Court, which held that she was not returning to Australia as her home. She was therefore subject to the immigration power: at 407–9. These two cases might perhaps be reconciled in terms of legal principle but distinguishable in terms of the evidence before the courts. Minahan’s greater attachment to Australia could be demonstrated by the lesser period of time which he spent in China compared with Wong Sau’s longer sojourn in that country. 328 In Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 the court considered the validity of the detention in custody pending deportation of two persons of British nationality who had entered Australia from abroad. The Immigration Act 1901 (Cth) provided that where the Governor-General had made a proclamation that serious industrial disturbance threatened, the Minister of Immigration could call upon persons who in his opinion were fomenting such trouble, not being persons who were Australian-born, to show cause why they should not be deported: at 58–9. Walsh was born outside Australia but had migrated here in 1893. Johnson was born outside Australia but had migrated here in 1910: at 65. The High Court held that the detention of both parties was invalid. In the case of Walsh, the central fact was that he had been admitted to Australia prior to Federation and was therefore beyond the reach of the immigration power: at 83, 111, 127. However, the case of Johnson was more difficult. In light of the fact that the immigration power extended to persons who had arrived in Australia after Federation, the question was whether the power could be exercised over persons who had been ‘absorbed’ into the community. The majority held that the challenged provisions applied to immigrants who had completed the process of immigration and were therefore beyond the reach of the immigration power. [page 184]

The absorption test was stated by Starke J in this way (at 137): … those who “originally associated themselves together to form” the Commonwealth and those who are “afterwards admitted to membership” cannot thereafter, upon entering … Australia, from abroad, be regarded as immigrating into it unless in the meantime they have in fact abandoned their membership. They have never been within, or else have passed beyond, the range of the power: it has never operated, or else has become exhausted.

Knox CJ and Higgins J expressed similar views: at 65, 109–11. In dissent, Isaacs and Rich JJ adopted the wider interpretation (once an immigrant always an immigrant). They considered that the immigration power extended to persons who had settled in Australia for a long period after Federation. It was therefore quite permissible for the Commonwealth to revoke permission for an immigrant to remain in Australia or to attach conditions to an immigrant’s entry which, having been broken, justified deportation: at 80, 127–8. The difference between the majority and minority centred upon whether those persons who had been unconditionally absorbed could be brought back within the power by retrospective operation. 329 A similar difference of viewpoint occurred in Koon Wing Lau v Calwell (1949) 80 CLR 533. This case related to the revocation of permission to stay which had been granted to non-Australians brought to Australia during the Second World War. Latham CJ, McTiernan and Webb JJ adopted the wider interpretation: at 561–2, 567, 583, 593–4. Rich and Williams JJ adopted the narrower interpretation: at 569, 587–8. (Rich J departed from his earlier view.) Latham CJ pointed out that immigration involved two elements: entry into Australia and absorption into the community. Both elements may be regulated under the immigration power: at 561. The power of deportation could be exercised over an immigrant until that person had been accepted into the community. The view of the minority was concisely put by Williams J: ‘a law with respect to immigrants cannot apply to persons who are no longer immigrants, and persons are no longer immigrants who have entered and completed their settlement in accordance with the immigration laws in force prior to this completion’: at 589. 330 The view of Dixon J is interesting. He seems to have regarded as acknowledged that, with respect to persons who belong to the Australian

community, a law preventing them from entering into the Commonwealth or authorising expulsion was not a law with respect to immigration. However, he stated that the test of absorption or belonging was a vague one and did not prevent the Commonwealth from attaching conditions to a permit to enter into the country or to remain therein: at 576–7. The consensus in the cases was expressed by a commentator in this way: ‘whereas the Commonwealth Parliament may impose conditions on an immigrant at the moment of his entrance into the Commonwealth, or any time before he has completed the process of being absorbed into the community, for breach of which he may be deported, it is not within its competence to deport for breach of a condition imposed after a person has become a member of the community’. See Ryan in O’Connell, 1966, p 471. See also R v Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CR 369 at 372–4, 383; 8 ALR 233. The immigration power extends to measures directed against people smuggling and for border protection purposes. See Jaffarie v Director General of Security (2014) 226 FCR 505; 313 ALR 593; [2014] FCAFC 102 at [61]; SLR [2015] HCATrans 13. Since 1983 the constitutional basis for Commonwealth migration law has shifted to the aliens power, s 51(xix). See Minister for Immigration and Multicultural and Indigenous Affairs [page 185] v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 at [10], [101]. The aliens power has a less restricted scope than that of migration power, since it is not limited by the doctrine of absorption that applies to the migration power.

Emigration 331 Under this power the Commonwealth Parliament may regulate the act of voluntarily leaving the Commonwealth to take up a permanent home in

another country. As such the term would not include deportation, which is comprehended under the ‘immigration’ section of this power and under the aliens and defence powers. See Wynes, 1976, p 295. 332

(xxviii) The influx of criminals:

See Quick and Garran, 1901, pp 629–31 (Revised ed, 2015, pp 747–9); Wynes, 1976, p 311; Renfree, 1984, pp 136–7; Lane, 1997, pp 281–2. 333 The nature of this power requires little comment. It is within the jurisdiction of any government to prevent the entry of persons who have committed offences abroad. A similar power appeared in s 15(b) of the Federal Council of Australasia Act 1885 (Imp). 334

(xxix) External affairs:

See Quick and Garran, 1901, pp 631–7 (Revised ed, 2015, pp 749–57); Constitutional Commission, 1988, Vol 2, pp 731–49; Blackshield in Sornarajah, 1983, pp 60–76; Winterton in Alston & Chiam, 1995, pp 29–51; Saunders (1995) 17 Syd LR 150; Senate Legal and Constitutional References Committee, 1995, pp 45–95; Donaghue (1995) 17 Adel LR 213; Howard (1995) 5 Upholding the Australian Constitution 1; Winterton (1995) 5 Upholding the Australian Constitution 17; Coper (1995) 5 Upholding the Australian Constitution 47; Marlin (1996) 24 FL Rev 71; Twomey/Rothwell in Opeskin and Rothwell, 1997, pp 69–131; Victorian Parliament Federal–State Relations Committee, 1997; Lane, 1997, pp 283–308; Twomey in Lindell and Bennett, 2001, pp 37–92; Trone, 2001, pp 21–3, 32–9, 87–91, 121, 143–6, 151–4; Twomey (2006) 17 Public LR 256; Edson (2008) 29 Adel LR 269; Ratnapala and Crowe, 2012, pp 365–75; Rothwell (2012) 29 Environmental and Planning LJ 268; Hanks, Gordon and Hill, 2012, pp 474–99; Pyke, 2013, pp 146–9, 205–12; Guy, 2013, pp 561–86; Keyzer, 2013, pp 197–215; Clarke, Keyzer and Stellios, 2013, pp 90–3, 326–75; Gerangelos et al, 2013, pp 603–51; Joseph and Castan, 2014, pp 123–49; Williams, Brennan and Lynch, 2014, pp 896–929; Aroney, Gerangelos, Murray and Stellios, 2015, pp 182–95; Stellios, 2015, pp 417–47.

The treaty-making power of the executive 335 In Australia the Governor-General exercises the executive power of the Commonwealth in relation to the making of treaties with other countries. The Australian States do not possess international personality and cannot enter into treaties. See Trone, 2001, p 32. Commonwealth entry into non-binding memorandums of understanding with other nations is also authorised by the executive power. See Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 at [54], [68], [178]. [page 186]

The requirement for implementing legislation 336 Treaties which affect the private rights of citizens, which involve any modification of the common law or statute, which require the vesting of additional powers in the Crown, or which impose additional financial obligations upon the Crown, do not become part of domestic law except by legislative enactment. See Bradley v Commonwealth (1973) 128 CLR 557 at 582–3; 1 ALR 241; Dietrich v R (1992) 177 CLR 292 at 305, 359–60; 108 ALR 385; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286–7, 298, 304, 315; 128 ALR 353; Victoria v Commonwealth (1996) 187 CLR 416 at 480; 138 ALR 129; Re East; Ex parte Nguyen (1998) 196 CLR 354; 159 ALR 108; [1998] HCA 73 at [19], [68]; Tajjour v New South Wales (2014) 254 CLR 508; 313 ALR 221; [2014] HCA 35 at [96]; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 at [99]; Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; 206 ALR 130; [2004] HCA 20 at [220]; CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1; 89 ALJR 207; [2015] HCA 1 at [490]; Trone, 2001, pp 70–2. So called ‘political’ treaties, particularly treaties involving military obligations in respect of Australia’s relations with other countries, do not need

to be implemented by legislative action if appropriation of money is not involved, or if the rights of Australian citizens are not directly affected. It is to the legislative implementation of treaties that s 51(xxix) is particularly directed. However, s 51(xxix) is not expressed so as to give the Commonwealth exclusive power to implement treaties. The Commonwealth has sometimes adopted a practice that where a treaty requires implementing legislation in a field in which the States have residuary power, the State legislatures would be requested to enact the necessary legislation. See Trone, 2001, pp 37–8, 59–62.

The legislative implementation of treaties 337 The critical issue in this area is the legislative implementation of treaties that require changes in domestic law that would be beyond the power of the federal Parliament to effectuate under any other legislative power granted to it by the Constitution. In R v Burgess; Ex parte Henry (1936) 55 CLR 608 the High Court discussed the nature and scope of the external affairs power in great detail, and rejected the view that s 51(xxix) was limited to the external aspects of matters covered by the other paragraphs of s 51. The particular issue was the validity of regulations made under the Air Navigation Act 1920 (Cth) which in turn had been enacted for the purpose of giving effect to an international convention. Air navigation is not a specific head of Commonwealth legislative power. Latham CJ rejected the proposition that s 51(xxix) should be restricted to a power to make laws only with respect to the external aspects of the other subjects mentioned in s 51. He stated (at 643): The regulation of relations between Australia and other countries, including other countries within the Empire, is the substantial subject matter of external affairs. Such regulation includes negotiations which may lead to an agreement binding the Commonwealth in relation to other countries, the actual making of such an agreement as a treaty or convention or in some other form, and the carrying out of such an agreement.

In his view it was ‘impossible to say a priori that any subject is necessarily such that it could never properly be dealt with by international agreement’: at 641.

[page 187] Evatt and McTiernan JJ also adopted a broad view of the power. They said (at 681): In truth, the King’s power to enter into international conventions cannot be limited in advance of the international situations which may from time to time arise. And in our view the fact of an international convention having been duly made about a subject brings that subject within the field of international relations so far as such subject is dealt with by the agreement.

Latham CJ, Evatt and McTiernan JJ constituted a majority of the court on this issue. The minority view regarding this issue was that of Dixon and Starke JJ. Dixon J said (at 699): If a treaty were made which bound the Commonwealth in reference to some matter indisputably international in character, a law might be made to secure observance of its obligations if they were of a nature affecting the conduct of Australian citizens. On the other hand, it seems an extreme view that merely because the Executive Government undertakes with some other country that the conduct of persons in Australia shall be regulated in a particular way, the legislature thereby obtains a power to enact that regulation although it relates to a matter of internal concern which, apart from the obligation undertaken by the Executive, could not be considered as a matter of external affairs.

Starke J found value in the suggestion of an American jurist that the power was limited to cases where the matter was ‘of sufficient international significance to make it a legitimate subject for international co-operation and agreement’: at 658. 338 The broader interpretation of the power in this case has been followed in later decisions. In Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417 the High Court upheld the validity of certain provisions of the Racial Discrimination Act 1975 (Cth) which gave effect to the International Convention on the Elimination of All Forms of Racial Discrimination. Mason, Murphy and Brennan JJ adopted a wide view of the power: at 222, 236, 253. In their view the existence of the treaty determined the existence of the matter of international concern and therefore made it an appropriate subject matter for federal legislative power under s 51(xxix). Stephen J upheld the challenged sections, but argued that the subject matter of the treaty must be of international concern or international in nature: at 217.

The three dissenting judges (Gibbs CJ, Aickin and Wilson JJ) invoked a doctrine of federal balance as a means for delimiting the scope of federal heads of power: at 198, 243–4. They rejected the doctrine that the mere existence of a treaty would bring the subject matter of that treaty within s 51(xxix): at 187, 243–4. After Koowarta, it was arguable that there were limitations upon the scope of the external affairs power based upon characterisation of the subject matter of the treaty as a matter of international concern. However, the broader view was once again adopted by a majority (Mason, Murphy, Brennan and Deane JJ) in Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625 (the Tasmanian Dam case). By a 4-3 majority the court upheld legislation that implemented the World Heritage Convention. Mason J stated that ‘s 51(xxix) was framed as an enduring power in broad and general terms enabling the Parliament to legislate with respect to all aspects of Australia’s participation in international affairs and of its relationship with other countries in a changing and developing world and in circumstances and situations that could not be easily foreseen in 1900’: at 127. International concern is demonstrated by entry into a treaty: at 125. The court would face an ‘invidious task’ if it attempted to discern whether a treaty related to a subject matter of international concern: at 125. The external affairs power is not restricted to the implementation of the provisions of a treaty that impose an international obligation: at 123, 130. [page 188] Murphy J emphasised that ‘Australia’s external affairs may also be internal affairs’: at 170. The external affairs power ‘extends to the execution of treaties by discharging obligations or obtaining benefits’: at 170–1. Brennan J adhered to the broad view he had expressed in Koowarta: at 218– 9. Even if Stephen J’s international concern test was followed, that was not a difficult test to pass: at 219. A breach of Australia’s international obligations under a treaty was a matter of international concern: at 219. The external

affairs power was not limited to the implementation of international obligations: at 222. Deane J pointed out that the broad view had been supported by a majority of the court in the Burgess decision: at 257. The discussion of the power in the Koowarta case had not persuaded him that the majority view in Burgess was incorrect: at 258. A treaty need not impose an international obligation to be capable of implementation under the external affairs power: at 258–9. In dissent, Gibbs CJ, Wilson and Dawson JJ applied Stephen J’s international concern test from Koowarta: at 99–101, 197–8, 306–7. However, they expressed reservations about Stephen J’s test. Gibbs CJ stated that he would have ‘preferred a more precise test’: at 101. Wilson J described the test as ‘somewhat elusive’ and stated that he did not regard it as a ‘satisfactory interpretation’: at 198. The dissenting judges considered that the World Heritage Convention did not deal with a matter of international concern. Gibbs CJ and Wilson J considered that the Convention did not impose relevant obligations: at 106, 193–4. Dawson J assumed that the Convention imposed obligations: at 308. Gibbs CJ argued that the Convention dealt with ‘matters entirely domestic’: at 101. Wilson J acknowledged that the Racial Discrimination Convention imposed an ‘obligation of undeniable international importance’. He considered that the World Heritage Convention did not represent anywhere near the same level of international concern: at 187, 194. Dawson J also argued that there was insufficient international concern to bring the protection of the world natural heritage within the external affairs power: at 308. Subsequent decisions have continued the broad interpretation of the power. In Richardson v Forestry Commission (1988) 164 CLR 261; 77 ALR 237 the court held that the external affairs power will support laws calculated to discharge not only Australia’s existing international obligations, but also Australia’s reasonably apprehended international obligations under a treaty: at 295. In that case the Commonwealth had initiated an inquiry into whether land in Tasmania was of World Heritage status. Pending the outcome of the inquiry the Commonwealth legislated to freeze development on the land. The court held that the Convention imposed an obligation to identify land which

might potentially be listed as world heritage as well as to protect land that had already been listed. The interim regime of protection which the Commonwealth imposed could reasonably be considered appropriate to the attainment of the objective of conservation of the world natural heritage: at 290. The court said that it was only by taking interim measures of protection that the risk of failing to discharge the obligations imposed by the Convention could be avoided: at 295. In Victoria v Commonwealth (1996) 187 CLR 416; 138 ALR 129 five members of the court applied the majority view from the Tasmanian Dam case: at 484–5. Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ rejected an argument that Stephen J’s view in Koowarta should be preferred: at 484. The court upheld most provisions of a Commonwealth industrial [page 189] relations law that implemented treaties concerning termination of employment, minimum wages, equal remuneration for work of equal value, workplace discrimination and the right to strike.

Limitations upon the power 339 What limitations apply to the external affairs power? Any exercise of the external affairs power is subject to express and implied constitutional guarantees and prohibitions. See R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642–3, 658, 687; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1; Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 533, 560, 568–9, 601, 661–2; 147 ALR 42; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1; [1998] HCA 8 at [62], [257]; Trone, 2001, p 121; Vasiljkovic v Commonwealth (2006) 227 CLR 614; 228 ALR 447; [2006] HCA 40 at [37], [103], [173], [222]. The treaty implementation aspect of the external affairs power will not support the implementation of a treaty which was entered into as a mere

device to obtain legislative power. See R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642, 687; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 200, 216–17, 231, 260; 39 ALR 417; Commonwealth v Tasmania (1983) 158 CLR 1 at 122, 218–19, 259; 46 ALR 625; Trone, 2001, p 150. In Queensland v Commonwealth (1989) 167 CLR 232; 86 ALR 519 the Commonwealth submitted an area of Queensland rainforest for listing in the World Heritage List. The World Heritage Committee accepted the area for inclusion on the List: at 237. The Commonwealth proclaimed the area’s protection under a federal statute that implemented the World Heritage Convention: at 235. Queensland argued that the proclamation was invalid and that the property was not properly part of the List: at 238. The court held that the inclusion of the area in the World Heritage List was conclusive evidence of its status in the eyes of the international community: at 241. The determination of whether a property was of world heritage quality was a technical question and the best evidence of its status available to the international community was a determination by the Committee: at 240. There was therefore an international obligation upon Australia to protect and conserve the area: at 237–8. The proclamation gave effect to this duty: at 239. No suggestion of bad faith in the nomination or listing had been made: at 242. It has long been recognised that laws enacted pursuant to the treaty implementation aspect of the external affairs power must conform to the treaty being implemented. See R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 645–6, 659–60, 674–5, 688; R v Poole; Ex parte Henry (1939) 61 CLR 634 at 644, 647–8, 655–6; Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 86, 125–6, 136; Trone, 2001, pp 143–6. The actual decision in the Burgess case was that the challenged regulations had departed from the strict terms of the treaty and were therefore invalid: at 654, 674, 695. After this decision, the regulations were amended. In the Poole case the court held that the changes brought about the result that the regulations were in conformity with the treaty: at 644–5, 655–6, 664. In that case there was a shift of ground and it was accepted that legislation giving substantial effect to a treaty might be upheld even though there was not exact compliance with the treaty in matters of detail: at 644, 647–8, 662. The formulation of the conformity requirement which is now accepted by

the High Court is that stated in Victoria v Commonwealth (1996) 187 CLR 416 at 487; 138 ALR 129: [page 190] … 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.

In R v Tang (2008) 237 CLR 1; 249 ALR 200; [2008] HCA 39 the court upheld the prohibition of slavery by the Commonwealth Criminal Code. Gleeson CJ observed that the Code definition of slave was based upon that in an international anti-slavery Convention: at [21], [33]. The statutory definition was not identical to that in the Convention: at [33]. The Convention prohibited both slavery imposed by law and de facto slavery: at [25]. The Code definition was limited to de facto slavery since Australian law did not recognise any status of slavery: at [33]. The Code provisions were reasonably capable of being considered to be appropriate and adapted to implementing the anti-slavery Convention: at [34]. The other Justices agreed with Gleeson CJ: at [60], [84], [132], [169]–[171]. In Victoria v Commonwealth (1996) 187 CLR 416 at 486; 138 ALR 129 the majority introduced a further requirement. The treaty being implemented must direct with ‘sufficient specificity’ what is required for its implementation: … [w]hen a treaty is relied on … 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.

This specificity criteria has been applied in several dissenting judgments. In dissent, Kirby J held that a United Nations Security Council resolution did not possess ‘sufficient specificity’ to support the challenged provisions. See Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 at [283]–[290]. In another dissenting judgment Heydon J held that an international declaration adopted by the G-20 lacked sufficient specificity to be capable of implementation under the external affairs power. See Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA

23 at [476]. The other Justices did not need to decide this issue: at [136], [256], [371]. For a discussion of this aspect of this case, see Appleby and McDonald (2012) 37 Mon ULR 162 at 184–6. The conformity requirement applies only to the treaty implementation aspect of the external affairs power, not to the geographical externality aspect of the power. See De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 650; 139 ALR 417. Partial implementation of a treaty is not in itself an objection to validity, but the law may be beyond power if the deficiency in implementation is so substantial as to deny the law the character of an implementation of the treaty. See Victoria v Commonwealth (1996) 187 CLR 416 at 488–9, 524; 138 ALR 129; Toben v Jones (2003) 129 FCR 515; 199 ALR 1; [2003] FCAFC 137 at [18], [50], [142].

Other exercises of the power 340 It seems to have been recognised from an early date that the external affairs power gave to the Commonwealth Parliament some legislative authority over matters occurring extra-territorially. This interpretation of the scope of the external affairs power was upheld by the High Court in New South Wales v Commonwealth (1975) 135 CLR 337; 8 ALR 1, sustaining the validity of the Seas and Submerged Land Act 1973 (Cth). That Act had the effect of vesting sovereign rights over the territorial sea and the continental shelf in the Crown in right of the Commonwealth. Several members of the court considered that, quite apart from a treaty, the external affairs power enabled the federal Parliament to deal with [page 191] things, matters and events external to Australia: at 360, 497, 503–4. The power thus supported legislation with respect to maritime areas outside the continent of Australia bounded by the low water mark. In Polyukhovich v Commonwealth (1991) 172 CLR 501; 101 ALR 545 the

Commonwealth Parliament had enacted legislation that provided for the trial of Australian citizens accused of committing war crimes in Europe during the Second World War. One of those accused contested the validity of the legislation. When the offence was alleged to have been committed, the accused had no connection with Australia. A majority of the court held that the legislation was supported by the external affairs power. Five Justices (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ) held that a law dealing with a matter, thing or relationship outside Australia was a law with respect to external affairs: at 528–31, 599– 604, 632, 696, 712–14. For example, Deane J propounded a very broad view of the power. He said (at 599) that the reference in s 51(xxix) to ‘external affairs’ was unqualified: The paragraph does not refer to “Australia’s external affairs”. Nor does it limit the subject matter of the grant of power to external affairs which have some special connexion with Australia. The word “external” means “outside”. As a matter of language, it carries no implication beyond that of location. The word “affairs” has a wide and indefinite meaning. It is appropriate to refer to relations, matters or things.

He said that if a narrower construction were adopted, there would be lacunae in the totality of Commonwealth and State legislative power, for there would be many matters abroad over which the States could not exercise legislative authority: at 602. By contrast, Brennan and Toohey JJ indicated that there must be some connection between Australia and the act, person or thing regulated: at 550–1, 654. In Victoria v Commonwealth (1996) 187 CLR 416; 138 ALR 129 five members of the court (including Brennan CJ and Toohey JJ) stated that the broader view of Mason CJ, Deane, Dawson, Gaudron and McHugh JJ in Polyukhovich ‘must now be taken as representing the view of the Court’: at 485. A majority of the court maintained the same view in XYZ v Commonwealth (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25. Gleeson CJ, Gummow, Hayne and Crennan JJ adopted the broader view expressed in Polyukhovich: at [10], [30], [49]. They considered that the broader view was necessary to prevent any gap in the legislative powers of the Australian Parliaments, since the States would not have competence to enact some types

of extraterritorial laws: at [16]. The broad view does not pose any danger to the legislative powers of the States: at [18], [92]. The court upheld a statute that criminalised sexual acts by Australian citizens with children outside Australia: at [20], [31]. Kirby J upheld the law on different grounds: at [117], [128]. He expressed reservations about the broad view of geographical externality. He suggested that there may need to be some further connection with relationships with other countries or international organisations: at [114], [116]. In dissent Callinan and Heydon JJ strongly rejected the geographical externality aspect of the external affairs power: at [206]. In Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 Gleeson CJ, Gummow and Crennan JJ held that an interim control order system for the prevention of terrorism related to a matter or thing that was geographically external to Australia (the intimidation of a foreign government or foreign public): at [6], [153]. Hayne, Callinan and Heydon JJ did not need to consider the external affairs power: at [407], [582], [601], [650]. [page 192] In dissent, Kirby J considered that most of the challenged provisions could not be supported as a regulation of matters or things that were geographically external to Australia: at [291]. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 the Commonwealth argued that the global financial crisis was an external matter or thing. The majority (French CJ, Gummow, Crennan and Bell JJ) found it unnecessary to address this issue: at [136], [256]. Hayne and Kiefel JJ held that the challenged Act provided stimulus only for the Australian economy and was ‘not a law with respect to any matter or thing external to Australia’: at [369]. Heydon J held that a law concerning matters within Australia would not be supported by the external affairs power ‘simply because a cause of the perceived need to regulate those Australian matters and things arose outside Australia’: at [465]. The challenged law did not address

the ‘external causes’ of Australian economic conditions, but only stimulated demand within the domestic economy: at [466]. 341 The external affairs power also extends to giving effect to rules of customary international law which apply to Australia. See Commonwealth v Tasmania (1983) 158 CLR 1 at 171–2, 258; 46 ALR 625; Polyukhovich v Commonwealth (1991) 172 CLR 501 at 558–9, 656–7; 101 ALR 545; Victoria v MacBean (1996) 138 ALR 456 at 463. Matters related to the conduct of foreign relations fall within the external affairs power. In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; 290 ALR 681; [2012] HCA 33 French CJ, Gummow, Hayne and Crennan JJ stated that the subject matter of the immunity provisions of the Foreign States Immunities Act 1985 (Cth) ‘relates to the conduct of foreign relations’ and is thus authorized by the external affairs power: at [13]. A number of international organisations issue formal international instruments styled as ‘Recommendations’. It has long been suggested that the external affairs power authorises the enactment of laws giving effect to nonbinding international recommendations. See R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687; Commonwealth v Tasmania (1983) 158 CLR 1 at 171–2, 258–9; 46 ALR 625. In Victoria v Commonwealth (1996) 187 CLR 416; 138 ALR 129 the court did not decide whether ILO Recommendations could ‘of themselves … support an exercise of the external affairs power’: at 509. But compare Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [479]. There is a body of obiter dicta which suggests that the external affairs power supports the enactment of legislation dealing with any matter of ‘international concern’. See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 234; 39 ALR 417; Commonwealth v Tasmania (1983) 158 CLR 1 at 129–32, 171–2, 222, 258–9; 46 ALR 625. These dicta were applied in Soulitopoulos v La Trobe University Liberal Club (2002) 120 FCR 584; [2002] FCA 1316 at [29]. In a dissenting judgment Callinan and Heydon JJ cast doubt upon the availability of ‘international concern’ as a source of legislative power. See XYZ v Commonwealth (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25 at

[217], [225]. The other judges did not find it necessary to consider this issue: at [18], [53], [127]. See also Murray (2007) 35 FL Rev 317. In another dissenting judgment Heydon J held that the existence of ‘international concern’ did not enliven the exercise of the external affairs power. See Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [471]–[473]. In that case the majority of the court (French CJ, Gummow, Crennan and Bell JJ) found it unnecessary to consider this issue: at [136], [256]. In Alqudsi v Commonwealth (2015) 302 FLR 454; [2015] NSWCA 351; SLR [2016] HCATrans 32 the New South Wales Court of Appeal considered that ‘international concern’ was not a ‘separate aspect of the external affairs power’: at [3], [147], [171]. [page 193] The protection of comity between nations is an aspect of external affairs. The power thus supports the enactment of laws which punish acts done within Australia which are in violation of international comity. See R v Sharkey (1949) 79 CLR 121 at 136–7, 149, 157, 163; Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 at [6], [151]. In Thomas v Mowbray Gummow and Crennan JJ held that the external affairs power authorised the interim control order provisions in so far as the government subject to terroristic threat was a foreign one and the public threatened was that of another country: at [149]–[150]. The prevention of terrorist acts was a matter of comity with foreign nations: at [151]. Gleeson CJ agreed with Gummow and Crennan JJ: at [6]. The legislative connection between the interim control order and the protection of the public from terrorism brought the provisions within the external affairs power: at [10]. Hayne, Callinan and Heydon JJ did not need to consider the external affairs power: at [407], [582], [601], [650]. In dissent, Kirby J did not specifically consider the comity issue: at [292]. 342

(xxx) The relations of the Commonwealth with the islands of the Pacific:

See Quick and Garran, 1901, pp 637–40 (Revised ed, 2015, pp 757–61); Wynes, 1976, pp 301–2; Attorney-General’s Department, 1980, p 116; Lane, 1997, p 308. 343 The scope of this power falls entirely within that of the external affairs power. See New South Wales v Commonwealth (1975) 135 CLR 337 at 471; 8 ALR 1; Wynes, 1976, pp 301–2; Lane, 1997, p 308. In Ruhani v Director of Police (2005) 222 CLR 489; 219 ALR 199; [2005] HCA 42 Gummow, Hayne and Kirby JJ indicated that this power supported legislation that allowed for ‘appeals’ to the High Court from the Supreme Court of Nauru: at [103], [201], [219]. A similar power appeared in s 15(a) of the Federal Council of Australasia Act 1885 (Imp). 344 (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:

See Quick and Garran, 1901, pp 640–2 (Revised ed, 2015, pp 761–4); Constitutional Commission, 1988, Vol 1, pp 600–9; Cox (1994) 19 MULR 768; Lane, 1997, pp 309–30; Seddon (1999) 27 FL Rev 165; Evans (2000) 11 Public LR 183; Allen (2000) 22 Syd LR 351; Evans (2001) 29 FL Rev 121 at 138–32; Brennan (2004) 28 MULR 28; Dixon (2005) 27 Syd LR 639; Ostler (2009) 28 U Tas LR 211; Winnett (2010) 33 UNSWLJ 776; Birch (2011) 13 Const L & Pol’y Rev 58; Glacken (2012) 23 Public LR 167; Brock (2012) 21 Aust Property LJ 180; Hsieh (2011) 32 Adel LR 287; Evans and Bosland in Voon, Mitchell and Liberman, 2012, pp 48–80; Clarke (2012) 17 Media & Arts LR 23; Ratnapala and Crowe, 2012, pp 387–400; Hanks, Gordon and Hill, 2012, pp 567–90; Williams and Hume, 2013, pp 284–309; Pyke, 2013, pp 251–69; Guy, 2013, pp 303–25; Keyzer, 2013, pp 217–32; Clarke, Keyzer and Stellios, 2013, pp 1130–63; Gerangelos et al, 2013, pp 886–933; Joseph and Castan, 2014, pp 425–50; Williams, Brennan and Lynch, 2014, pp 1230– 57; Aroney, Gerangelos, Murray and Stellios, 2015, pp 287–310. 345 Under this head of power the Commonwealth Parliament may legislate to acquire property from either a State or a person. However, the acquisition must be related to Commonwealth purposes (derived from other sections of the Constitution). The acquisition law must also provide just terms to the dispossessed owner.

[page 194] In Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349–50 Dixon J explained that s 51(xxxi) serves a double purpose: It provides the Commonwealth Parliament with a legislative power of acquiring property: at the same time as a condition upon the exercise of the power it provides the individual or the State, affected with a protection against governmental interferences with his proprietary rights without just recompense … In requiring just terms s 51(xxxi) fetters the legislative power by forbidding laws with respect to acquisition on any terms that are not just.

In Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371–2 Dixon CJ explained how s 51(xxxi) operated as a constitutional limitation: … when you have, as you do in par (xxxi), an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that as inconsistent with any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification.

As Deane and Gaudron JJ explained: ‘to the extent that s 51(xxxi) confers legislative power, it also abstracts power with respect to the acquisition of property from the other paragraphs of s 51’. See Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 283; 119 ALR 655; quoted with approval by five Justices in Theophanous v Commonwealth (2006) 225 CLR 101; 226 ALR 602; [2006] HCA 18 at [55]. The same five Justices also emphasised that s 51(xxxi) is ‘not to be given a pedantic or narrow construction’. See Theophanous at [60]. Other judges have said that the provision is to be given a ‘liberal’ interpretation. See JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 at [41], [169], [263]. The acquisitions power is often described as a constitutional guarantee. See the examples collected in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 at [185]. 346 Some legislative ‘acquisitions’ are not restrained by s 51(xxxi). Some ‘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’. See Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160;

121 ALR 577; see also Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; 167 ALR 392; [1999] HCA 62 at [98], [147]–[148], [325], [486]. An obvious example is the taxation power. See Commissioner of Taxation v Clyne (1958) 100 CLR 246 at 263; Federal Commissioner of Taxation v Barnes (1975) 133 CLR 483 at 494–5, 500; 8 ALR 631; MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 at 638; 52 ALR 53; Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 197–8, 224; 119 ALR 577; Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 at [15]. In Mutual Pools Dawson and Toohey JJ explained the special position of the taxation power as follows (at 197–8):

Taxation must lie outside the ambit of s 51(xxxi). If the imposition of a tax were an acquisition of property requiring just terms, it would defeat the very purpose of the taxation power … which is to raise money for public purposes. To treat the exaction of money as the acquisition of property and to require just terms would require the money to be repaid at the same time as it was exacted and clearly that cannot have been an intended result of s 51(xxxi), having regard to the express power to make laws with respect to taxation in s 51(ii). If taxation lies outside the ambit of s 51(xxxi), it is crucial to distinguish between taxation and the acquisition

[page 195] of property. The distinction is between the acquisition of money or value, which is a tax, and the acquisition of specific property, which is not.

The bankruptcy power (s 51(xvii)) is another such power. See AttorneyGeneral (Cth) v Schmidt (1961) 105 CLR 361 at 372. So too is the copyright power (s 51(xviii)). See Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 161; 121 ALR 577; JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 at [335]; but contrast Phonographic Performance Company of Australia Ltd v Commonwealth (2012) 246 CLR 561; 286 ALR 61; [2012] HCA 8 at [96], [110]. See also the examples given in Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 170–71, 177–8, 187–8, 199–200; 119 ALR 577. Section 51(xxxi) is not violated by the imposition of a forfeiture of property as a penalty for unlawful activity. See Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 276, 278, 285, 289, 293; 119 ALR 655; Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257 at 272; 132 ALR 307; Dickfoss v Director of Public Prosecutions (2012) 31 NTLR 16; 256 FLR 345; [2012] NTCA 1 at [59]–[63]; SLR [2012] HCATrans 139; Attorney-General (Northern Territory) v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 at [75], [84]. For example, in Theophanous v Commonwealth (2006) 225 CLR 101; 226 ALR 602; [2006] HCA 18 the court upheld the statutory forfeiture of the superannuation entitlement of a federal parliamentarian who had been convicted of corruption offences: at [14], [64]. The forfeiture denied to corrupt parliamentarians the benefits that the public provided to encourage honesty: at [63].

Similarly, in Attorney-General (Northern Territory) v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 the court upheld the statutory forfeiture of all assets of convicted drug traffickers, including property that had not been obtained as a result of criminal activity: at [2], [8]. Forfeiture as a punishment for crime did not constitute an acquisition without just terms since provision of just terms would be ‘incompatible with the very nature of the exaction’: at [84]. (This case was decided under the statutory equivalent to s 51(xxxi) in the Northern Territory self-government legislation.) The acquisition of property

347 The High Court has given a broad construction to the word ‘property’ in this provision. The court has held that ‘property’ includes ‘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’. See Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290; Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 at 509; 112 ALR 53; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 303; 119 ALR 629; Attorney-General (Northern Territory) v Chaffey (2007) 231 CLR 651; 237 ALR 373; [2007] HCA 34 at [21]; Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 at [87], [294], [356]; ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 at [131], [189]. ‘Property’ may include ‘innominate and anomalous interests’. See Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349; Commonwealth v Tasmania (1983) 158 CLR 1 at 145, 246–7, 282–3; 46 ALR 625; Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 at 509, 528; 112 ALR 53; Mutual Pools & Staff Pty Ltd v Commonwealth [page 196] (1994) 179 CLR 155 at 172, 184–5, 200; 119 ALR 577; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at

303, 314, 319–20; 119 ALR 629; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1; [1998] HCA 8 at [144], [237], [250]; JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 at [263], [366]. Rights of action in tort or contract constitute property. See Georgiadis at 306, 311–12, 314, 319–20; Smith v ANL Ltd (2000) 204 CLR 493; 176 ALR 449; [2000] HCA 58 at [3], [20], [57], [80], [117], [195]. A leasehold interest constitutes property. In Minister of State for the Army v Dalziel (1944) 68 CLR 261, the Minister took possession of the defendant’s land under national security regulations. The defendant was a week-to-week tenant of the land. The majority of the court held that the acquisition of a leasehold interest amounted to an acquisition of property and therefore came within the operation of s 51(xxxi). The word ‘property’ signified any tangible or intangible thing which the law protected under the name of property: at 285, 290, 295, 299. As Rich J pointed out ‘[i]t would … be wholly inconsistent with the language of the placitum [paragraph] to hold that, whilst preventing the legislature from authorizing the acquisition of a citizen’s full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession, indefinitely, on any terms it chooses, or upon no terms at all’: at 286. 348 If the effect of the instrument authorising ‘acquisition’ is not directly to vest a right of ownership or possession in the Commonwealth but to require a person to deliver goods at a specified price either to the Commonwealth or to persons authorised by the Commonwealth to receive the goods, such a ‘forced sale’ would amount to an acquisition of property. In McClintock v Commonwealth (1947) 75 CLR 1 growers of pineapples were directed to deliver part of their crop to a committee that acted as agent for a Commonwealth department. Payment for the pineapples was determined by another committee associated with the scheme. In the view of Starke J this transaction amounted to an acquisition of property by the ‘purchaser’ as agent for the Commonwealth: at 24. The phrase ‘acquisition of property’ extends to the expropriation of both real and personal property for a temporary, indefinite or permanent period of

time, effective control of the property passing to the acquirer. Such expropriation may take the form of a direct transfer of title (resumption), or rights of control and use (requisition) or it may take the form of a compulsory purchase for money consideration. In Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397; 26 ALR 185, a provision of the Trade Practices Act 1974 (Cth) treated a refusal to renew a lease in certain circumstances as an exclusive dealing prohibited by the Act: at 401. Gibbs, Stephen and Murphy JJ held that this provision was not a law relating to the acquisition of property: at 407, 416, 434. Mason J considered that the provision could result in an acquisition of property, but it had not been argued that just terms would not be provided: at 433. In Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625 a provision of the World Heritage Properties Conservation Act 1983 (Cth) prohibited the development of sites that were declared to be of special significance to Aboriginals: at 74–5. Deane J regarded this provision as an acquisition of property: at 287. He considered that the acquisition of a proprietary interest was not an essential element of an acquisition of property: at 286. No other judge agreed with Deane J on these points. Three other judges (Gibbs CJ, Wilson and Dawson JJ) held that this section was invalid on other grounds and did not [page 197] consider the acquisition issue: at 119–20, 204, 323. The remaining judges (Mason, Murphy and Brennan JJ) were of the view that the challenged provision did not effect an acquisition of property: at 145–6, 181–2, 247–8. Mason J held that an acquisition of property required the acquisition of an ‘interest in property, however slight or insubstantial it may be’: at 145. In JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 French CJ, Gummow, Hayne, Bell and Crennan JJ expressly disapproved of Deane J’s view that the acquisition of a proprietary interest was not an essential element of an acquisition of property: at [42], [131]–[132],

[172], [303]. In dissent, Heydon J agreed with Deane J’s view: at [196]–[197], [200]. 348A For there to be an ‘acquisition’ of property the interest or benefit obtained by the Commonwealth or another person must be a proprietary one. In JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 Commonwealth legislation provided that cigarettes could only be sold in plain packaging. Packets had to be a drab brown in colour and have a matt finish. The use of trade marks on cigarette packaging was prohibited, with the exception of the use of the brand name in a standard size and font: at [5], [62]. A tobacco company challenged the law as an acquisition of its trade marks and packaging. The court held that the operation of the Act did not constitute an acquisition of property. French CJ distinguished between a taking and an acquisition of property: at [41]. A taking was a deprivation of property from its owner, but an acquisition was a receipt of property rights from the owner. An extinguishment of property rights did not necessarily constitute an acquisition. An acquisition of property required the receipt of a proprietary interest or benefit. The Commonwealth had not acquired a proprietary benefit from the operation of the legislation: at [42]. There was no expansion in the Commonwealth’s proprietary rights that tracked the restrictions imposed upon the use of the plaintiff’s trade marks: at [43]. Gummow J pointed out that the acquisitions power did not protect the ‘general commercial and economic position’ of traders: at [47]. He also observed that ‘rights of property may be extinguished without being acquired’: at [100]. An acquisition of property required the acquisition of an ‘interest in property’: at [118]. While the restrictions imposed by the Act constituted a ‘taking’ of the plaintiff’s intellectual property rights, that did not constitute an ‘acquisition’ of those rights: at [141], [143]. Regulation of the appearance of tobacco packaging did not give the Commonwealth any proprietary right over the packets themselves: at [150]. Hayne and Bell JJ also held that the acquisitions power did not protect the ‘general commercial and economic position’ of traders: at [167]. To constitute an acquisition, there must be an acquisition of some interest in property: at [169]. The plaintiff argued that the Commonwealth had acquired the property

in cigarette packets. However, the restrictions imposed by the Act were similar to legislation which required that warning labels be fixed to packages: at [181]. The tobacco companies retained ownership of the packages: at [182]. The Commonwealth obtained no proprietary interest in the packets: at [183]. The ‘benefit or advantage’ that the Commonwealth obtained through its regulation was not proprietary in nature: at [188]. Crennan J held that acquisition of property required the acquisition of a proprietary interest: at [277]–[278]. The legislation did not transfer the plaintiff’s property in its trade marks or its packets: at [279]. The plaintiff retained the ability to use its brand names on its packaging: at [294]. The challenged legislation might reduce the sales of cigarettes and the value of tobacco trade marks, but the acquisitions power ‘is not directed to preserving the value of a commercial business or the value of an item of property’: at [295]. [page 198] Manufacturers of products did not have an unrestricted right to control what appeared on their packaging. There were many statutory requirements for the placement of warning labels on products: at [301]. To constitute an acquisition of property, the benefit or advantage acquired must be proprietary: at [305]. While the restrictions imposed by the legislation were ‘severe from a commercial viewpoint’, they did not constitute an acquisition of property: at [306]. Kiefel J observed that the plaintiff retained ownership of its trade marks, though their use was subject to far-reaching limitations: at [354]. The Commonwealth’s control of the use of tobacco packaging did not give it a proprietary benefit or advantage: at [369]. Loss of business as a result of legislative regulation did not constitute an acquisition. The acquisitions power protected ‘proprietary interests … not … the commercial position of traders’: at [357]. The harm to the plaintiff’s business from the operation of the legislation did not constitute an acquisition of property: at [372]. In dissent, Heydon J argued that it was ‘not necessary for the

Commonwealth or some other person to acquire an interest in property for s 51(xxxi) to apply’: at [200]. The legislation deprived the plaintiffs of the control of their intellectual property and the benefits of exercising that control: at [212]. While the plaintiffs retained their property in form, in substance they had been ‘deprived … of everything that made the property worth having’: at [216]. He considered that the legislation was wholly invalid: at [242]. 349 In Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; 112 ALR 53 a distinction was drawn between termination or extinguishment of rights and acquisition: at 499–500. The distinction between extinguishment and acquisition of rights was, subject to qualifications, also supported by Mason CJ in Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 172–3; 119 ALR 577. This case involved a challenge to legislation which effectively extinguished any liability on the part of the Commonwealth to refund an invalid tax. Mason CJ held that the legislation could be supported as a ‘law that relates to the imposition of taxation and as a law that involves the adjustment of competing claims and obligations of individuals’ and, therefore, ‘it stands outside the constitutional conception of a law with respect to the acquisition of property’: at 172. See also Deane and Gaudron JJ at 191. Dawson and Toohey JJ drew a distinction between the acquisition of value and the acquisition of property: at 196. They stated that ‘[i]f one person loses property rights, it does not necessarily follow that they are acquired by another’: at 194. Brennan J said that ‘a law may contain a valid provision for the acquisition of property without just terms where such an acquisition is a necessary or characteristic feature of the means which the law selects to achieve its objective and the means selected are appropriate and adapted to achieving an objective within power, not being solely or chiefly the acquisition of property’: at 180–1. McHugh J held that since the law was authorised by the taxation power, s 51(ii), it could not infringe s 51(xxxi). ‘What is validly within s 51(ii) is outside s 51(xxxi), for the two powers are mutually exclusive’: at 224. 350

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

121 ALR 577 six members of the High Court affirmed that ‘a law which is not directed towards the acquisition of property as such but which is concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity is unlikely to be susceptible of legitimate characterization as a law with respect to the acquisition of property’: at 161. [page 199] 351 Several decisions have concerned the legislative alteration of common law and statutory rights of action. In Georgiadis v Australian and Overseas Telecommunications Corp (1994) 179 CLR 297; 119 ALR 629 the High Court in a 4–3 decision held that a statutory provision which purported to extinguish a right to sue for common law damages violated s 51(xxxi). Mason CJ, Deane and Gaudron JJ stated that the concept of ‘acquisition’ includes ‘the extinguishment of a vested cause of action, at least where the extinguishment results in a direct benefit or financial gain (which, of course, includes liability being brought to an end without payment or other satisfaction) and the cause of action is one that arises under the general law’: at 305. Brennan J held that the right extinguished was proprietary in nature and hence property: at 311– 12. Dawson, Toohey and McHugh JJ dissented. Dawson and Toohey JJ argued that there was no acquisition of a proprietary right by the defendant: at 315, 320. McHugh J considered that even on the most liberal construction of s 51(xxxi) ‘it is difficult to see how the retrospective abolition of an element of a cause of action can constitute an acquisition of property’: at 328. Applying Georgiadis, in Commonwealth v Mewett (1997) 191 CLR 471; 146 ALR 299 the court held that the statutory extinguishment of a common law right of action constituted an acquisition of property: at 491, 503–5, 509, 512, 530–3, 552, 557. In Smith v ANL Ltd (2000) 204 CLR 493; 176 ALR 449; [2000] HCA 58 a statute barred an employee’s common law right to sue their employer for damages for personal injury sustained during employment: at [33]. As a

transitional measure, the statute permitted an action to be brought within six months after the commencement of the Act: at [71]. The appellant did not bring his action until after the expiry of the six month transitional period: at [34]. The court held that the effect of the statute upon the appellant’s existing right of action was an acquisition of property without just terms. Gleeson CJ indicated that a modification of the right to bring an action that brought an advantage to the defendant in the action would usually constitute an acquisition of property: at [7]. The guarantee thus went beyond merely protecting against the extinguishment of a right of action: at [7]. To modify an existing right of action by providing that it may only be brought within a much shorter period of time would work to the advantage of the defendant: at [7]. The six months transitional period was not full compensation for the loss of the right to bring the action: at [10]. Gaudron and Gummow JJ made clear that they cast no doubt upon the valid operation of the Act in relation to personal injuries sustained after the commencement of the statute: at [43]. Section 51(xxxi) would not prevent the Commonwealth from enacting a limitation law with a prospective operation: at [52]. Their decision concerned only the effect of the law upon rights existing at the time of its commencement: at [53]. The modification of the right to bring the action gave an important benefit to the defendant: at [46]. The statute did not provide just terms: at [42]–[43]. The six months transitional period did not constitute just terms since it was too brief and ‘capricious’ in its operation: at [50]. Kirby J rejected the argument that there was no acquisition because, strictly speaking, the right of action remained the property of the appellant, though the appellant now had no right to proceed with that action: at [88]–[89]. He commented that what remained of the action was ‘an empty shell’: at [90]. The deprivation of the appellant’s right to proceed constituted an acquisition: at [91]. The modification of the right to proceed gave an ‘identifiable and measurable’ advantage to the other party: at [96]. ‘Reducing the time diminishes the value of the right’: at [96]. The Commonwealth could validly enact a limitations law with a

[page 200] prospective operation: at [105]. The present law’s invalidity lay in its retrospective operation: at [106]. Callinan J observed that the appellant’s right of action prior to the statute was ‘considerably more ample’ than that which remained after the enactment of the law: at [194]. He described the truncated period in which the action could be brought as ‘an extinction of the extended right’ to bring the action, which constituted an acquisition: at [195]. The statute did not make provision for compensation for the acquisition of that interest: at [195], [198]. The statute did not provide just terms, which must be ‘approximately equivalent’ to what had been lost, that is, the value of the personal injury action: at [111]. The statute did not even provide for an extension of the transitional period where the time had passed without the fault of the employee: at [112]. In Attorney-General (Northern Territory) v Chaffey (2007) 231 CLR 651; 237 ALR 373; [2007] HCA 34 a statute provided for the payment by employers of compensation to injured workers. The Act provided that the regulations could specify the amount of compensation that would be payable: at [9]. Under the Act compensation was calculated by reference to the ‘remuneration’ of the worker: at [10]. The Northern Territory Supreme Court held that ‘remuneration’ included superannuation contributions. The Territory Parliament then retrospectively amended the Act to exclude superannuation contributions from the definition of remuneration: at [11]–[12]. Gleeson CJ, Gummow, Hayne and Crennan JJ emphasised the nature of the ‘property’ concerned. By express provision at the time of its creation, the content of the entitlement to workers compensation was dependent upon the will of the legislature: at [25]. The entitlement to compensation was inherently liable to variation by the legislature: at [30]. The ‘property’ at issue had ‘no existence apart from statute’: at [23]. These Justices did not need to consider whether the Act was not an ‘acquisition’ but an adjustment of competing interests: at [32]. Callinan J agreed with these Justices: at [52]. Kirby J held that the amending Act was an adjustment of competing interests as it sought to restore a previously assumed interpretation of the principal Act: at [46]. The history of workers compensation was one of

constant adjustment of the interests of both employers and employees: at [47]. The Act contained numerous indications of the ‘impermanency’ of the entitlement to compensation. That entitlement was inherently susceptible to variation. It did not constitute ‘property’ under s 51(xxxi): at [49]. The Smith decision was clearly distinguishable. In Smith there was an acquisition through the abolition of an existing common law right. In this case there was an ‘adjustment and variation’ of entitlements that existed only by statute: at [50]. Heydon J held that the entitlement to compensation was inherently liable to variation so there was no ‘acquisition’: at [59]. Given that the history of workers compensation was one of constant amendment, employers and employees will not ordinarily have any expectation that the system will be free from amendments that affect existing rights: at [60]. The Act itself accommodated the frequent adjustment of interests in its entitlements: at [66]– [67]. (This case was decided under the equivalent to s 51(xxxi) in the Northern Territory self-government legislation.) 352 Many decisions have concerned alterations to purely statutory rights, which are inherently susceptible to legislative variation or extinguinshment. In Health Insurance Commission v Peverill (1994) 179 CLR 226; 119 ALR 675 it was held that s 51(xxxi) was not infringed by the reduction of Medicare benefits through retrospective legislation. Brennan J held (at 243–4) that the applicant’s entitlement was not ‘property’ within s 51(xxxi): [page 201] The right so conferred on assignee practitioners is not property: not only because the right is not assignable … 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 right to be paid Medicare benefits did not create a debt but was a statutory right to claim a benefit. The distinction between a debt and a statutory right ‘is the difference between something owned and something expected, the fulfilment of the expectation being dependent on the continued will of the Parliament’: at 245. Mason CJ, Deane and Gaudron JJ approved of

this view when they said that statutory entitlements, since they are not based on antecedent proprietary rights, ‘are inherently susceptible of variation’: at 237. Dawson J considered that a medical practitioner voluntarily accepts the assignment of a Medicare benefit in full payment for their professional services and that s 51(xxxi) ‘is confined to the compulsory acquisition of property’: at 249–50. Toohey J held that no property had been acquired by the Commonwealth: at 256. He also held that the law did not infringe s 51(xxxi) because it was a law regulating benefits paid for the services specified in s 51(xxiiiA): at 256. McHugh J held that the benefits were granted subject to the condition that they could be modified or revoked at any time: at 263. A law giving effect to this condition did not infringe s 51(xxxi): at 263. In Commonwealth v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1; [1998] HCA 8 by a 4–2 majority the court held that a law which reduced the area covered by a statutory exploration permit did not constitute an acquisition of property. Brennan CJ held that where a ‘purely statutory right is by nature susceptible of modification or extinguishment’, such modification or extinguishment does not constitute an acquisition of property: at [16]. However, the extinguishment or modification of a purely statutory property right will constitute an acquisition of property if a reciprocal liability owed by the Commonwealth is also thereby extinguished: at [16]–[17]. However, in this case the Commonwealth’s position was unaffected by the modification: at [17]. Gaudron J argued that generally a purely statutory right is by nature susceptible to modification or extinguishment: at [78]. However, where extinguishment or modification will confer an advantage or benefit upon another party, that can constitute an acquisition of property: at [79]. In this case the Commonwealth did not gain an advantage or benefit from the modification: at [84]–[85]. McHugh J characterised s 51(xxxi) as a power subject to conditions rather than a constitutional guarantee: at [126]. A purely statutory right is inherently liable to extinguishment or modification: at [134]. There is no acquisition even though the Commonwealth may benefit from that extinguishment or modification: at [134]. The right at issue was a purely statutory right and was

inherently liable to extinguishment or modification by a subsequent statute: at [145]. Gummow J held that the exploration permit conferred an immunity from the operation of the criminal law: at [189]. Reduction of the area of the permit (and the immunity) did not constitute an acquisition of a proprietary interest: at [189]. Toohey and Kirby JJ dissented: at [59], [64], [247], [257]. In Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210; 243 ALR 1; [2008] HCA 7 the public switched telephone network (‘the network’) included ‘local loops’ of copper wire that ran from households to a telephone exchange. Telstra owned the network, loops and numerous exchanges: at [1], [16]. The network was vested in Telstra when that carrier [page 202] was publicly owned: at [16]–[17]. At that time telecommunications carriers were given a right of access to the network and services of other carriers: at [18]. Other carriers thus had a right of access to Telstra’s network and services, and Telstra had a right of access to their networks and services: at [19]. Under trade practices legislation the competition commission was empowered to declare a carriage service to be a declared service. Such a declaration required a carrier to fulfill standard access obligations for the declared service. The commission declared the local loops to be declared services: at [23]. The standard access obligations required Telstra to supply to other providers access to the local loops so that the other providers could provide carriage services: at [27]. The court unanimously stated that the legislative amendment or abolition of statutory rights and interests is not in every case outside the operation of the acquisitions power: at [49]. On the facts, the network was originally publicly owned. When ownership of the network was vested in Telstra, its competitors were given a right of access to the network. Telstra was fully owned by the Commonwealth when the network was vested in Telstra: at [51]. Telstra’s ‘bundle of rights’ in the network was always subject to the access rights of its competitors: at [52]–[53]. The standard access obligations under the trade

practices legislation did not impair Telstra’s bundle of rights in a way that was sufficient to constitute an acquisition of property: at [52]. In Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 the Northern Territory intervention laws granted the Commonwealth five year leases over Aboriginal lands held under federal land rights legislation: at [5], [27], [29]. The Commonwealth was required to pay ‘a reasonable amount of rent’: at [32], [193]. French CJ held that the grant of the five year leases was an acquisition of property: at [103]. Gummow and Hayne JJ also held that an acquisition of property had taken place: at [171]–[173]. Kirby J reached the same conclusion. He held that the grant of the leases was not an extinguishment of rights but was an expansion of the Commonwealth’s rights over the land and a contraction of the landowner’s rights: at [298]. The interests of the Aboriginal land owners were not ‘inherently susceptible to abolition or modification’: at [299]. Kiefel J held that the grant of the leases effected an acquisition of property: at [452]. Heydon J did not decide whether there had been an acquisition of property: at [318]. In dissent, Crennan J held that the grant of the leases did not constitute an acquisition of property. The statutory Aboriginal land rights in the Northern Territory were susceptible to an adjustment such as the grant of the leases: at [441]. It was inherent in the statutory land rights regime that ‘limited’ adjustments could be made for the purpose of ‘supporting’ the traditional owners: at [443]. Under federal land rights legislation Aborigines had a right to enter, use and occupy Aboriginal land in accordance with traditional rules regarding their access to that land: at [24]. The intervention legislation preserved rights and interests in land that had existed prior to the creation of the five year leases: at [30]. French CJ held that the rights to enter, use and occupy Aboriginal land had been preserved so there had been no acquisition of these rights: at [13], [113]– [114]. Gummow and Hayne JJ held that these rights were interests in land that were preserved by the intervention legislation: at [155]–[156]. There was thus no acquisition of property in relation to these rights: at [157]. Crennan J

agreed with Gummow and Hayne JJ: at [408], [440]. Kiefel J also held that the rights of entry, use and occupation were preserved: at [455]. Heydon J did not [page 203] decide whether there had been an acquisition of property: at [318]. For discussions of this case, see Brennan (2009) 33 MULR 957; Stubbs (2011) 33 Syd LR 119. In ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 bore licences were replaced by aquifer access licences with a greatly reduced entitlement to take groundwater: at [6]. French CJ, Gummow and Crennan JJ held that the licensees did not have private rights in the groundwater. The State had the power to restrict the taking of a natural resource. Exercising that power did not constitute an ‘acquisition’ of property: at [84]. Hayne, Kiefel and Bell JJ held that since groundwater was vested in the State, restricting its taking was not an acquisition of property: at [108]. Bore licenses were statutory rights which were inherently susceptible to modification or termination: at [144]. Groundwater was not property until it was ‘reduced to possession’: at [145]. There could not be an ‘acquisition’ of property unless another person acquired ‘some identifiable or measurable advantage’ by reason of the reduction in water entitlements: at [147]. The State had ‘gained no identifiable or measurable advantage’ from the reduction: at [149]. For a discussion of this case, see Macintosh and Cunliffe (2012) 29 Environmental and Planning LJ 297. on just terms

353 Section 51(xxxi) requires that any acquisition of property from a person or State for the purposes of the Commonwealth must be accompanied by just terms. This requirement involves the payment of fair compensation to the expropriated owner. Where the Commonwealth pays no compensation when it acquires property it certainly does not acquire on just terms.

Section 51(xxxi) is concerned with compulsory acquisition, not acquisition by agreement. See John Cooke & Co Pty Ltd v Commonwealth (1924) 34 CLR 269 at 282. Where the Commonwealth acquires property through agreement with the owner, the terms agreed are assumed to be ‘just terms’. See Commonwealth v Huon Transport Pty Ltd (1945) 70 CLR 293 at 304; Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 417; 26 ALR 185.

Wartime acquisitions 354 The interpretation of the phrase ‘just terms’ involved numerous obstacles for the High Court, especially in relation to the exercise by the Commonwealth in wartime of its acquisition powers for defence purposes. The cases show that the courts are faced with great difficulties in deciding what ‘just terms’ are in a particular case. In so far as the general economy in time of war undergoes a profound transformation, the determination of a precise value of property must take account of a number of fluctuating and contingent factors. In Minister of State for the Army v Dalziel (1944) 68 CLR 261 a national security regulation empowered the Minister to make ‘basis of compensation’ orders which were to bind the court: at 287–8, 295. An order was made which precluded compensation for loss of profits or occupation when the Commonwealth took possession of land: at 307. A majority of the court held that just terms had not been provided: at 289, 296, 308–9. The regulation was invalid as it was based upon the assumption that a taking of possession did not have to comply with the constitutional standard: at 296. 355 The antipathy of the court to any conclusive assessment of compensation by a ministerial or Board decision is exemplified by Australian Apple and Pear Marketing Board v Tonking (1942) [page 204] 66 CLR 77. In that case a regulation stipulated that a grower whose produce

had been acquired by the Board administering the scheme should be paid such compensation as was determined by the Minister acting on the recommendation of the Board: at 97. Latham CJ and Rich J held that this provision did not provide the only method by which compensation could be assessed. If this provision had been intended to be exhaustive, it would not have provided just terms: at 99, 105. 356 What are the principles which guide a court in determining whether just terms have been provided? In Johnston Fear & Kingham & Offset Printing Co Pty Ltd v Commonwealth (1943) 67 CLR 314 a printing press had been acquired under national security regulations: at 316–7. The regulations provided that the remuneration for the loss of goods was to be determined in default of agreement by arbitration but was not in any case to exceed the maximum price for such goods fixed by the Commonwealth Prices Commissioner: at 320. The court held that this method did not provide just terms. As a general rule the money price, if it were related to the characteristics of the property and its market value, would be fair compensation: at 322, 333. However, there were occasionally special circumstances which ought to be taken into account, for instance, the possibility of replacing the goods: at 322. In the present case the property was not easily replaceable. By ignoring this factor the regulations did not provide just terms: at 323–4, 327, 330, 334. 357 As far as land was concerned, it was necessary to take into account not only the value of the land as such, but any loss or damage that followed as a direct and natural consequence from the expropriation of the land, as distinct from that which affected the owner personally or indirectly in their business operations on the land. As Latham CJ put it in Minister of State for the Army v Parbury Henty & Co Ltd (1945) 70 CLR 459, compensation for the taking of possession of land under the National Security Regulations was not limited to the mere saleable value of the land. It might also include compensation for loss of business or goodwill, costs of removal and the value of fixtures, although these matters were theoretically to be taken into account to determine the value of the land to the owner. However, the manner of trading after dispossession was to be

excluded from consideration as this was an indirect effect of the acquisition: at 492. 358 In Minister of State for the Navy v Rae (1945) 70 CLR 339 Dixon J discussed some techniques for assessing compensation for the acquisition of items of property (such as ships) which were of special value during wartime and for which there was no specific market value. The general starting point was that the court should take into account alternative methods of assessing compensation in order to determine what was the just method in the circumstances. In the case of the requisition of a ship the following courses might be adopted: (a) ascertaining the items of capital expenditure incurred by the owner depreciated according to the physical condition of the vessel, keeping in mind that the ship constitutes a going concern used in the earning of profits; (b) ascertaining the cost of replacement or reinstatement taking into account war conditions; or (c) determining the pre-war value to which would be added an appropriate percentage to represent the increase in the cost of production and generally the value of the craft: at 344–7. With necessary changes, such methods would also be appropriate to other types of property used for the production or distribution of goods which have a special value in wartime. [page 205]

Pooling and compulsory marketing 359 During the Second World War the Commonwealth established a number of marketing schemes which involved the compulsory pooling of goods. The compensation payable to the owner was generally determined on the basis of the dividends received for the sale of the goods less administration expenses. If the sale of the goods under such a scheme is looked at in isolation from

the surrounding circumstances such as the administrative policies of the government and the economic state of the country, it would seem that the proceeds received by the grower or producer would not amount to just terms in that they would not be getting the monetary equivalent of their goods. However, it seems that the court will take into account the surrounding circumstances in determining the question of just terms. In Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 the National Security (Wheat Acquisition) Regulations provided that the Minister had power to issue an order for the acquisition of wheat. Compensation payable to the owner was to be determined by the Minister, acting on the recommendation of a Board. The basis of compensation was to be the rates per bushel arrived at by reference to the surplus proceeds from the disposal of the wheat, subject to deductions for administrative and transport expenses: at 528–9. While the court did not express any final view of the constitutionality of pooling schemes, there were dicta which suggested that at least certain types of pooling schemes fulfilled the constitutional requirement of just terms: at 566–9. 360 Several members of the court attempted to define the concept of just terms. Dixon J (at 569) stated that a judgment as to whether such a scheme involves just terms: … rests on the somewhat general and indefinite conception of just terms, which appears to refer to what is fair and just between the community and the owner of the thing taken. … the disposal of the wheat, whether for the uses of the Commonwealth or for domestic consumption, must be in return for a recompense to the pool which is honestly fixed or estimated as a fair and reasonable value. …. Unlike “compensation”, which connotes full money equivalence, “just terms” are concerned with fairness.

Dixon J was willing to take into account the effect of an acquisition scheme not merely on the expropriated owner but also on the community as a whole. The distinction he drew between just terms and compensation implies that the proceeds returnable to the grower need not necessarily amount to money equivalence. However, in this case the owner had disputed the amount of compensation payable to him under the scheme, so it was necessary to determine compensation on general principles. The task of the court was to recompense the owner for their loss, so it was necessary to determine the value of the wheat to the owner. Such value could not be less than the money

value to which they might have converted their property had they not been deprived of it by the law: at 571. Latham CJ also felt obliged to assess compensation on general principles. This meant that ‘the assessing tribunal should endeavour to ascertain the price which a willing purchaser would give to 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’: at 540. However, in assessing compensation the court could take into account the interests of the community such as the need to satisfy local needs before exporting the surplus of the commodity. In the present case, the fixing of a price for bread was a factor to be taken into account in assessing the value of the wheat to the owner: at 541–2. 361 In Poulton v Commonwealth (1953) 89 CLR 540 regulations provided for the compulsory acquisition of wool under a scheme where values were determined according to appraisals [page 206] made by skilled appraisers. To these values was added a proportionate share of the returns derived from the disposal of the wool on the overseas market without identification of the sale price of each lot in that market. The court held that the regulations provided just terms. The terms prescribed for an acquisition were not unjust merely because they departed from established principles relating to the acquisition of property. The scheme on its face was quite reasonable in that the determination of the appraised price was in the hands of impartial and skilled experts. Provision was made for the addition of a sum which was determined on the basis of the volume of sales of the commodity in the overseas market: at 574. Whether a pooling scheme provides just terms depends upon the actual terms of the scheme. Some schemes may provide for a return to the owner of a sum which virtually amounts to the money equivalent of the property acquired, even if this involved subsidisation by the government. Sschemes which do not involve money equivalence are not necessarily invalid. As

Latham CJ pointed out in Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495, the just terms required by s 51(xxxi) involve justice to the community as well as to the individual: at 541.

Interest 362 Section 51(xxxi) does not in all cases require that interest be awarded from the date the property was acquired until the date when compensation is paid. However, the court has a discretion to award interest on the sum payable. This principle arises from several wartime cases. For example, interest was awarded in Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77 at 90, 110. In Commonwealth v Huon Transport Pty Ltd (1945) 70 CLR 293 the court held that the company was not entitled to interest from the date of the requisition of the goods: at 304, 315, 326, 328–9. If interest was payable from the date of requisition of the goods, that would give compensation not for the goods themselves but for the time occupied in ascertaining their value: at 326. By contrast, in Marine Board of Launceston v Minister of State for the Navy (1945) 70 CLR 518 it was held that the court had power to order the payment of interest from the date of the acquisition to the date when the compensation was paid. One of the regulations empowered the Minister to award interest for a period commencing three months after the date of acquisition until the date of payment. It was held that this clause did not exclude the right of the court at its discretion to grant interest in the manner in which it thought fit: at 527, 533, 534–5, 537. 363 The differing views regarding the question of interest were summed up by Latham CJ and Rich J in these cases. The view of Latham CJ in Marine Board of Launceston v Minister of State for the Navy (1945) 70 CLR 518 was that the dispossessed owner was only entitled to compensation for the losses directly flowing from the acquisition. The award of interest for the lapse of time between acquisition and payment was not compensation for the acquisition of property but compensation for delay in payment: at 525–6. By contrast, in Commonwealth v Huon Transport Pty Ltd (1945) 70 CLR 293 at 307

Rich J considered that just terms required the payment of interest for the time during which compensation had not yet been paid. The better view is that s 51(xxxi) does not automatically require the payment of interest but the court has (in the absence of contrary statutory provision) a discretion whether or not to award interest. In Marine Board of Launceston v Minister for the Navy (1945) 70 CLR 518 at 534 Dixon J considered that such an award would constitute an exceptional case. It might [page 207] be suggested that where there is some deliberate or unjustifiable delay in payment by the acquiring authority or where the dispossessed owner is gravely prejudiced by the delay, s 51(xxxi) would require the award of interest to the owner.

Acquisition of land in peacetime 364 In Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269 at 279– 80 Latham CJ summed up the general approach taken by the High Court to Commonwealth lands acquisition legislation: I do not think that the terms of s 51(xxxi) entitle the Court to declare a statute providing a general method for the acquisition of property invalid because in particular cases it was possible to devise a more just scheme. The Court should not … hold such legislation to be invalid unless it is such that a reasonable man could not regard the terms of acquisition as being just.

Latham CJ stated that just terms must be interpreted in the light of what was just to the community as well as to the individual: at 280. He recognised that the Commonwealth was entitled to exclude from consideration of the tribunal assessing compensation the enhancement which could occur to the acquired property from the carrying out of the public purposes for which the land was acquired. In assessing compensation the task of the court was to examine the physical state of the land including its actual and potential uses: at 280–1. In Commonwealth v Arklay (1952) 87 CLR 159 the court indicated that it

was not bound by the price which the land would fetch in the market when government price controls were in operation. It could look forward to see what the land would bring in a free market when controls had been lifted: at 162–4. There was a difference between compensation for the acquisition of land and compensation for the acquisition of goods. In the case of goods the property was usually intended for immediate sale or consumption so that the fixed price might well provide fair compensation. Perishable goods would have no ‘retention value’ for their owners. Land was in a different position. It was a ‘permanent asset’ which survived temporary financial vicissitudes: at 174.

Acquisition of personal property in peacetime 365 Bank of New South Wales v Commonwealth (1948) 76 CLR 1 is the major authority on the power of the Commonwealth to acquire personal property in peacetime. The Banking Act 1947 (Cth) provided for the Commonwealth Bank to acquire shares in private banks, either by purchase or by compulsory acquisition: at 165–6. The Act empowered the Commonwealth Bank to appoint directors to the private banks with the power to dispose of their businesses: at 168–9. The Act also empowered the Commonwealth Bank to take over the businesses of the private banks including both their assets and liabilities: at 170. Claims for compensation for the acquisition of shares or businesses were to be determined by a Federal Court of Claims: at 174. The High Court held that s 51(xxxi) extended to the acquisition of a business as a going concern. The acquisitions power did not necessarily entail the modification of the rights pertaining to that property which were derived from the laws of the States. The power did not necessarily entail novation of the debts of the acquired bodies: at 204–16. As Latham CJ pointed out, the Commonwealth may acquire a factory or machinery but it ‘has no power, because it acquires a man’s factory or machinery, to provide that he shall be released from his trade or other debts’: at 214. A power to acquire property from one person did not include

[page 208] a power to modify the rights of the creditors of that person unless this was justified under another head of Commonwealth power. The legislation foundered on the just terms requirement of s 51(xxxi). The Act provided that Commonwealth-appointed directors of the banks had the power to dispose of the businesses of the banks. These provisions did not provide just terms. The nominees of the acquiring authority were vested with a discretion as to what amount would be demanded for the sale of the businesses. In such a case, the body determining the compensation was the representative of one party only: at 216–18. The decision of the court shows that an acquisition of property takes place where the management of the property is altered so as to vest in the new management power to sell the property. 366 The Banking Act provided that the Commonwealth was to pay fair and reasonable compensation for the acquisition of the shares and businesses of the private banks. The High Court held that the conferral of an exclusive jurisdiction on a Federal Court of Claims to determine claims for compensation had invalidly ousted the jurisdiction of the High Court to determine suits which involved the Commonwealth as a party: at 275–6, 323, 368. The majority held that just terms are provided even though the machinery for providing compensation might create inflation in the economy: at 221. When property such as a large banking business is acquired, it is quite likely that the amount needed to recompense the owners can only be found by the issue of government money or bonds, a factor that may be conducive to inflation. However, Dixon J pointed out that the constitutional requirement would not be fulfilled if the terms of an acquisition necessarily involved the valuation of assets in terms of money which would lose its value as a result of the very transaction involved in compensating the owners. It would be necessary to prove by legal, factual and economic evidence that the very transaction involved a substantial depreciation of the money in which compensation was to be expressed: at 340–1. The court divided evenly on the

question whether just terms required the payment of interest on compensation.

Statutory provision for compensation 366A Many Commonwealth statutes make specific provision for the payment of compensation where their operation would result in an acquisition of property. Some statutes provide that if the operation of the Act would result in an acquisition of property that is not on just terms, the Commonwealth must pay a ‘reasonable’ amount of compensation for the acquisition. See Customs Act 1901 s 4AB; Migration Act 1958 s 3B; Banking Act 1959 s 69E; Fisheries Management Act 1991 s 167A; Life Insurance Act 1995 s 251; Comprehensive Nuclear Test-Ban Treaty Act 1998 s 61; Environment Protection and Biodiversity Conservation Act 1999 s 519; Water Act 2007 s 254; Competition and Consumer Act 2010 ss 139F, 152ELD; Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 s 43(1); Biosecurity Act 2015 (Cth) s 27(1). In Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210; 243 ALR 1; [2008] HCA 7 the court unanimously held that such a provision satisfied the just terms requirement of s 51(xxxi): at [36], [42]. In Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 the Northern Territory intervention legislation provided for the payment of a reasonable amount of compensation if its operation led to an acquisition of property. If the parties could not reach agreement an action for compensation could be brought in the courts: at [37], [195], [321]. Gummow and Hayne JJ described the compensation provision as a ‘prudent anticipation’ of the possibility that the intervention law might lead to an acquisition of property: at [196]. This provision satisfied the just terms requirement: at [197]. [page 209] Heydon J held that just terms were provided. A right to compensation was

not ‘contingent’ simply because it needed to be enforced through the courts: at [326]. The law was able to compensate for losses where there was no market for what was lost or where its importance lay in non-economic reasons. For example, it was possible to provide just terms for the extinguishment of native title rights: at [337]. French CJ agreed with Heydon J: at [104], [108]. Kiefel J held that the provision satisfied the just terms requirement: at [463]. One of the intervention laws provided that in determining compensation the court should consider any rent paid to the Land Councils and any Commonwealth funded improvements to the land. This provision did not affect the payment of reasonable compensation. These were matters which the Commonwealth could have pleaded in a compensation action whether or not there was an express provision to that effect: at [465]. The right to compensation was not contingent as the compensation process did not impose long delays for the award of compensation: at [465]–[466]. In dissent, Kirby J observed that just terms requires fairness: at [305], [308]. He considered that monetary compensation would be sufficient for ordinary commercial interests: at [304]. However, the interests of Aboriginals in their lands was central to their culture. Such interests would not be satisfied by simply providing for monetary compensation: at [308]. Other statutes provide that the Commonwealth must pay ‘such compensation … as is necessary to ensure that the acquisition is made on just terms’. See, for example, Australian Human Rights Commission Act 1986 s 49C; Lands Acquisition Act 1989 s 93; Disability Discrimination Act 1992 (Cth) s 131. Some Acts provide that their provisions do not apply to the extent to which they would result in an acquisition of property other than on just terms. See Corporations Act 2001 s 1491; National Consumer Credit Protection Act 2009 s 336; Fair Work Act 2009 (Cth) s 39. from any State or person

367 The Commonwealth has power to acquire property from either a State or a person (corporate or natural). In Commonwealth v New South Wales (1923) 33 CLR 1 it was held that an acquisition of land from the State of New South Wales carried with it the rights to minerals under the land. An acquisition of

alienated State land was freed from any rights, royalties or obligations owed to the State: at 20–1, 31, 64. No stamp duty was payable on a memorandum of transfer of land so acquired by the Commonwealth. However, stamp duty was payable where the Commonwealth was transferring land to a private individual. for any purpose in respect of which the Parliament has power to make laws

368 The Constitution permits the Commonwealth to acquire property ‘for any purpose in respect of which the Commonwealth has power to make laws’. The Commonwealth can therefore acquire land in order to carry out these executive functions which under the Constitution are associated with a head of legislative power. During the Second World War the Commonwealth acquired a number of freehold and leasehold properties for the purpose of providing accommodation for troops and administrative personnel. The Commonwealth also requisitioned personal property for the use of its armed forces. Judicial decisions established that the power was not limited during wartime to what might be termed direct military purposes. Various national security [page 210] regulations provided for the acquisition of agricultural products and manufactured goods which were designed to ensure that the civilian population would be adequately supplied with goods and services at reasonable prices which would otherwise have been inflated owing to war conditions. 369 Acquisitions by persons other than the Commonwealth or a Commonwealth agent may constitute acquisitions within the scope of s 51(xxxi). In Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397; 26 ALR 185 several Justices considered that s 51(xxxi) applied to acquisitions by persons other than the Crown in right of the Commonwealth or a Commonwealth instrumentality: at 403, 407, 427, 452. In ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51

French CJ, Gummow and Crennan JJ confirmed that the acquisitions power is not limited to acquisitions by the Commonwealth or its instrumentalities: at [42]. Hayne, Kiefel, Bell and Heydon JJ stated that s 51(xxxi) can apply where property is acquired by natural or legal persons other than the Commonwealth: at [133], [190]. 369A The acquisitions power limits Commonwealth but not State legislative power. See Durham Holdings Pty Ltd v New South Wales (2011) 205 CLR 399; 177 ALR 436; [2001] HCA 7 at [56]; Alcock v Commonwealth (2013) 210 FCR 454; 298 ALR 487; [2013] FCAFC 36 at [44], [51], [82]; Scriven v Sargent [2015] 2 Qd R 140; 309 ALR 191; [2014] QCA 133 at [29], [48]–[49]; SLR [2015] HCASL 95. This raises the question whether the Commonwealth may evade the just terms requirement by agreement with the States. In P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 legislation authorised the Commonwealth to enter into an agreement with the State of New South Wales. Under the agreement, the State of New South Wales would compulsorily acquire land for returned ex-servicemen at below market value: at 398, 421, 424–5, 428. The court decided that this Act was a law ‘with respect to … the acquisition of property’ and, therefore, it had to provide ‘just terms’ to the person whose property was acquired: at 403, 406, 424, 429. Compensation at below market value violated the ‘just terms’ requirement: at 403, 406, 419, 429. The Act violated s 51(xxxi) even though under the agreement the property was to be acquired by the State of New South Wales, which was not subject to the constitutional requirement of ‘just terms’. Williams J pointed out that s 51(xxxi) did not require the property to be acquired by the Commonwealth. A Commonwealth law ‘with respect to … the acquisition of property’ for a Commonwealth purpose is subject to s 51(xxxi) even if the law provides for acquisition by a State. He wrote (at 423): … the paragraph applies to all Commonwealth legislation the object of which is to acquire property for a purpose in respect of which the Commonwealth Parliament has power to make laws. It is immaterial whether the acquisition is to be made by the Commonwealth or some body authorized to acquire property by the Commonwealth or by a State by agreement with the Commonwealth.

However, in Pye v Renshaw (1951) 84 CLR 58 the High Court held that a

Commonwealth grant under s 96 to New South Wales to enable it to acquire property for returned ex-servicemen was not subject to s 51(xxxi). Section 96 empowered the Commonwealth to offer moneys to the States for the purpose of inducing them to exercise their powers: at 83. In ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 French CJ, Gummow and Crennan JJ explained the Pye decision. In the Pye case all legislative references to any agreement relating to the acquisition of property had been repealed: at [39]. There was only an informal agreement between the Commonwealth and [page 211] the States: at [37]. The constitutional restrictions applicable to s 96 are concerned only with the terms and conditions of the grant not their ‘underlying purpose’: at [36]. In ICM the Commonwealth argued that Magennis should be overruled: at [33]. The majority affirmed the continuing authority of that decision. French CJ, Gummow and Crennan JJ held that Magennis was correct and should not be reconsidered: at [40]. A grant to a State under s 96 may not be made upon the condition that the State acquire property without providing just terms: at [46]. Heydon J agreed with French CJ, Gummow and Crennan JJ: at [174]. Hayne, Kiefel and Bell JJ did not find it necessary to decide this issue: at [141]. For a discussion of this case, see Macintosh and Cunliffe (2012) 29 Environmental and Planning LJ 297. 370 (xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:

See Quick and Garran, 1901, pp 642–3 (Revised ed, 2015, pp 764–5); Moore, 1910, pp 581–2; Wynes, 1976, p 170; Attorney-General’s Department, 1980, pp 123–4; Lane, 1997, pp 331–2; Faulkner and Orr, 2013, pp 516–17 (no 1620). 371 Under this power the Commonwealth may assume control of State railways for defence transportation purposes. The Defence Act 1903 (Cth)

allows the Governor-General to assume such control: ss 64, 124(1)(m). The Act also obligates State railway officials to provide transportation for military personnel and goods: s 65. 372 (xxxiii) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:

See Quick and Garran, 1901, pp 643–4 (Revised ed, 2015, pp 765–7); Wynes, 1976, p 170; Attorney-General’s Department, 1980, pp 124–5; Lane, 1997, p 332; Fletcher, 2002, p 270. 373 Under this power, the Commonwealth can acquire ownership of State railways pursuant to any arrangements made with a particular State or all States. To this extent this paragraph qualifies the general acquisition power contained in s 51(xxxi). In Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 170; 119 ALR 577 Mason CJ stated that ‘the very terms of s 51(xxxiii) … indicate that an acquisition of State railways stands outside s 51(xxxi)’. These arrangements with the States may provide for the compensation to be payable in respect of the acquisition. 374

(xxxiv) Railway construction and extension in any State with the consent of that State:

See Quick and Garran, 1901, p 645 (Revised ed, 2015, pp 767–8); Wynes, 1976, p 170; Attorney-General’s Department, 1980, pp 124–5; Lane, 1997, p 333; Fletcher, 2002, pp 261, 265, 267, 289. 375 Under this power the Commonwealth may assist the States in the construction and extension of their railway systems. In Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 at 59 Latham CJ explained the power as follows: [page 212] In the United States of America it has been held that Congress can, under the commerce power, provide for the incorporation of a bridge company to build a bridge between two States … or to construct railways across States … Such decisions were doubtless responsible for the grant of power to the Commonwealth Parliament to make laws with respect to the acquisition and

construction of railways by the Commonwealth but subject to an express limitation requiring the consent of the State concerned: see Constitution, s 51(xxxiii) and (xxxiv). If this limitation had not been introduced, the Commonwealth Parliament would have been able to create corporations to construct and operate inter-State railways in Australia as it thought proper. 376 (xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:

See Quick and Garran, 1901, pp 645–7 (Revised ed, 2015, pp 768–71); Constitutional Commission, 1988, Vol 2, pp 794–803; Lane, 1997, pp 334– 57; Williams, 1998, pp 43–85; Creighton (2000) 24 MULR 839; Buchanan and Neil (2001) 20 Aust Bar Rev 256; Williams and Gotting (2001) 20 Aust Bar Rev 264; Frazer in Lindell and Bennett, 2001, pp 93–148; Zimmerman (2009) 12 Int Trade & Bus LR 185; Williams and Hume in Lee and Gerangelos, 2009, pp 105–25; Blackshield and Williams, 2010, pp 994–1020; Ratnapala and Crowe, 2012, pp 329–33; Hanks, Gordon and Hill, 2012, pp 410–20; Keyzer, 2013, pp 233–51. 377 Since this power is stated to be conciliation and arbitration for the prevention and settlement of certain types of industrial disputes it cannot authorise legislation laying down general or particular rules to regulate industrial relations at large. However, it must be pointed out that other sections of the Constitution can be used as a basis for Commonwealth legislation over industrial matters, such as ss 51(i), (xx) and (xxix). Indeed, the corporations power became the primary constitutional basis for the amended Workplace Relations Act 1996 (Cth), not the conciliation and arbitration power. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [1]. In that case the High Court held that the broad scope of the corporations power in industrial relations matters enabled the Commonwealth Parliament to overcome the limitations of the conciliation and arbitration power. The 1996 Act’s successor, the Fair Work Act 2009 (Cth), is based upon the corporations power and references of power by the State Parliaments: ss 14(1)(a), 30A–30S. The power extends to both the ‘prevention’ and ‘settlement’ of interstate industrial disputes. The preventive aspect of the power ‘extends to a situation that is likely to give rise to an interstate industrial dispute’. See Victoria v Commonwealth (1996) 187 CLR 416 at 497; 138 ALR 129.

Conciliation and arbitration

378 This power is restricted to the passing of laws setting up machinery for the settlement of industrial disputes by conciliation and arbitration. In 1904 the federal Parliament established a specialised tribunal for this purpose, the Commonwealth Court of Conciliation and Arbitration. After 1956 the arbitral function was committed to a Commonwealth Conciliation and Arbitration Commission (later renamed the Australian Industrial Relations Commission). The judicial function was committed to the Commonwealth Industrial Court (and later exercised by the Federal Court). [page 213] In 2005 the role of the Australian Industrial Relations Commission dramatically changed. Its role as a compulsory arbitrator ended and it became a voluntary conciliation body. The Commission no longer determined minimum wages, which were set by an Australian Fair Pay Commission. See Roth and Griffith, 2006, p 4. In 2009 the Australian Industrial Relations Commission and the Australian Fair Pay Commission ceased operation. Some of their previous functions are now undertaken by the Fair Work Commission, a workplace relations tribunal created by Part 5-1 of the Fair Work Act 2009 (Cth). The Fair Work Commission has functions in relation to, among others, minimum national employment standards (Part 2-2), ‘modern awards’ (Part 23), enterprise agreements (Part 2-4), industrial action (Part 3-3), minimum wages (Part 2-6), equal pay (Part 2-7), unfair dismissal (Part 3-2), and termination of employment (Part 6-4): s 576(1). Fair Work Australia may seek the settlement of disputes through conciliation, mediation or the making of recommendations: s 595(2). It may arbitrate a dispute only where it is expressly authorised to do so by the Act: s 595(3). Section 51(xxxv) refers to ‘conciliation and arbitration’. Conciliation is the process whereby a third party offers their services in order to bring about an agreement or resolution of a dispute through discussion between the two

parties. Arbitration may be defined as an impartial adjudication by an independent third party of a dispute between an employer and an employee group. The process of conciliation is more appropriate to the prevention of industrial disputes. Arbitration is more appropriate to the settlement of a dispute which has already occurred. However, there is no doubt that both processes may be used in relation to any type of dispute. Arbitration was often used for a dispute which was impending, while conciliation was frequently used for a dispute that had already occurred. In Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 it was decided that a decision arrived at by a body after private discussion was not conciliation or arbitration because the body performing the function was not separate from the contending parties: at 384–5. The power that enabled the Parliament to provide for the registration of industrial organisations equally enabled it to legislate for cancellation of the registration of those organisations. In Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88; 66 ALR 363 the High Court observed that registration of industrial organisations is an essential element of the system of conciliation and arbitration. ‘It follows that a law which cancels or withdraws the registration of such an organization, like a law which authorizes the registration of an organization, is a law which operates on the subject-matter of the power, notwithstanding that its consequence is to deny to the particular organization a capacity to participate in the system’: at 94. disputes

379 To satisfy the requirements of s 51(xxxv), a party seeking to invoke the Commonwealth power must show that a dispute exists with respect to an industrial matter, as between itself and the respondent party or parties. This is a most important limitation on Commonwealth power since it negates the making of a common rule, that is, the general regulation of industrial matters made antecedently to any dispute, and binding upon all who participate in the industrial relations so regulated.

[page 214] In Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311 the High Court held that where an award had been made against certain employers in the boot industry, it was beyond the power of the Arbitration Court to order that the award be made a common rule for the industry binding upon all employers in the industry, whether or not they had been parties to the proceedings: at 317–18, 323–4, 329, 342–3. One is bound by being a party to the proceedings: this may be a wider or narrower class than the parties to the actual dispute. Griffith CJ said (at 317–18): … the term “dispute” connotes the existence of parties taking opposite sides … the word “arbitration” connotes the same idea … If … there are no ascertainable parties between whom an ascertainable difference capable of being composed exists the basis of arbitration is wanting.

The decision in Whybrow’s case has continued to be applied. See R v Kelly; Ex parte Victoria (1950) 81 CLR 64 at 82; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; 214 ALR 24; [2005] HCA 9 at [50], [113]. However, in practice this basic limitation was overcome by the use of procedural devices. 380 The notions of ‘dispute’ and ‘parties to the dispute’ are closely related. Expansive interpretation of both allowed awards to be made which were in effect common rules for whole industries. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte G P Jones (1914) 18 CLR 224 the majority held that a demand refused satisfied the requirement of the section. In this case the respondents admitted that the demand had been absolutely refused, which made the task of the court easier. As Isaacs J carefully pointed out (at 246): … it must never be supposed that this is a decision which asserts that a mere demand and refusal in all cases constitutes an industrial dispute, which is very different from saying that a regular and formal demand for altered conditions and a distinct refusal is prima facie evidence of such a dispute.

Following this reasoning, the courts found in proper cases that disputes were shams and were not constitutional disputes. Sometimes unions have sought to obtain a favourable award by putting up a non-existent dispute with one or more employers, seeking to gain a point in a demarcation dispute with other unions.

In such a circumstance, the employer may attack the plaint on three successive grounds. First, on the ground that there is no dispute between the union and the employer. Second, if they fail on the first, on the ground that the dispute is not an industrial dispute. Third, if they fail on the second, on the ground that the dispute does not extend beyond the limits of any one State. 381 It is settled law that the refusal of a demand made with respect to some aspect of an industrial relation between the parties is prima facie evidence of the existence of an industrial dispute between them. As was said in Re Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181; 60 ALR 641: Because disagreement rather than disturbance or dislocation of industrial relations is the essential characteristic of an industrial dispute, a “paper dispute” evidenced by delivery and nonacceptance of a log of claims is sufficient to create such a dispute. But from the beginning it has been recognised that the dispute must be real and genuine, the formal demand being viewed prima facie as real and genuine, the prosecutor bearing the onus of clearly establishing the contrary.

382 In Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249; 113 ALR 385 a log of claims sought a minimum wage of $5000 per week and an additional minimum allowance of $2500 per week for all employees. These figures were [page 215] to be adjusted quarterly in line with the Consumer Price Index. As to the genuineness of these demands, Mason CJ, Deane and Gaudron JJ said that if read according to their terms, these demands were ‘fanciful’. They were contrary to established principles of wage fixation and could not be explained as an ambit claim allowing for inflation as they were to be periodically increased to account for inflation. They could, however, be seen as a claim for increased wages and allowances as determined by the commission. Such a claim did not give rise to an industrial dispute as defined under the then Act, because the commission was not a general regulatory body and because the

response of the employer to the union’s demands was irrelevant to what the union sought: at 269–70. Their comments (at 268) about ‘paper disputes’ are interesting: Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or “paper disputes”, it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand. Generally speaking … a demand, as to the wages or conditions of employees made by an organization of employees … will be treated as a genuine demand unless it is plainly fanciful or unless it appears that the demand was made merely to dress up some other claim which, on its own, would not constitute a dispute as defined in [the former Act].

In Attorney-General (Qld) v Riordan (1997) 192 CLR 1; 146 ALR 445 the court held that apparent extravagance in a log of claims will not prevent a finding that there is an industrial dispute, provided that the claims are genuine in that they are being seriously pursued in the process of conciliation or arbitration: at 18, 20, 22, 27, 42–3. 383 Another line of development from the early cases concerns the notion of ‘parties to the dispute’. The arbitral principle is based upon the concept of organisations representing individual employers and employees. At an early stage, the question arose whether an employer could be said to have a dispute with a union, when the employer’s staff, who were members of the union, said that they had no dispute with their employer. This was answered in the negative in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Holyman and Sons Ltd (1914) 18 CLR 273. This view denied the union the status of disputant in its own right. Not surprisingly, the issue was later decided the other way. In Australian Workers’ Union v Pastoralists’ Federal Council (1917) 23 CLR 22 Higgins J held that a union, as a party to a dispute, could secure an award binding on employers, irrespective of the attitude of their own employees: at 25. In Burwood Cinema Ltd v Australian Theatrical Employees’ Association (1925) 35 CLR 528 logs of claims had been served by the union on numerous employers in the theatrical industry. An objection was taken to the jurisdiction of the Arbitration Court on the ground that there could be no dispute where the individual members of the union were in fact content. The court held that the employers were in a dispute with the union: at 538, 546, 548, 551. The error in Holyman’s case was that a contractual relationship

was being sought instead of an industrial relationship: at 541. Starke J stated (at 551): An organization registered under the Arbitration Act is not a mere agent of its members: it stands in their place, and acts on their account and is a representative of the class associated together in the organization.

The court also held that a dispute could exist between a union and an employer who employed only non-unionists: at 535–6, 544–6, 548, 551. That point was directly in issue in Metal Trades Employers’ Association v Amalgamated Engineering Union (1935) 54 CLR 387. An award binding on an employer of non-union [page 216] labour could effectively regulate the working conditions of such employees, even though they could neither enforce, nor be bound by, the award: at 405, 419, 441–3. Five devices were utilised to overcome the bar on a common rule: (a) by the joinder of all possible parties on both sides; (b) by the binding of employers of non-union labour as in the Metal Trades’ case; (c) by the formation of associations of employers, the members of which are bound where the association has been made a party to the dispute; (d) by the decision in George Hudson Ltd v Australian Timber Workers’ Union (1922) 32 CLR 413 that awards bind the employers’ successors in business: at 437, 452, 455; and (e) by the inclusion of ‘sub-contract’ clauses in awards. 384 An important limitation upon the commission’s power to make an award was that the terms of the award must fall within the ambit of the dispute, as must the terms of any subsequent variation of the award. This was well illustrated by Australian Insurance Staffs Federation v Atlas Assurance Co (1931) 45 CLR 409. The logs served by the employees and their employers had claimed a £265 versus £220 annual salary respectively: at 410. The parties

agreed to a rate of £225, and this was included in the award: at 411. During the Great Depression the employers sought a variation of the award. The Arbitration Court reduced the annual salary by 10 per cent to £202: at 412. It was held that the court had no power to do that, since this sum was outside the area of the original dispute: at 423–4, 429, 438–9, 448. The question of compulsory unionism turned upon this point. In R v Findlay; Ex parte Victorian Chamber of Manufacturers (1950) 81 CLR 537 the union claimed that no employer in the clothing trade should employ any employee who was not a member of the Clothing and Allied Trades Union. The commission refused to accede to the claim for compulsory unionism. Instead it included in the award an elaborate scheme to provide preference for unionists. The scheme was invalidated by the High Court. Latham CJ observed (at 545–6): A person upon which the log was served would not … have any conception that by not taking part in the arbitration proceedings he exposed himself to an award in anything like the terms of clause 61. … preference to unionists is different in kind from a monopoly of employment for unionists.

The claim for compulsory unionism contained in the log could not be relied upon to support an award for preference to unionists: at 544, 550, 554. 385 The ambit of the dispute was also decisive in Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311; 84 ALR 80. In 1986 the union lodged a log of claims that demanded that termination of employment would be made only with its consent and that six months’ notice would be given: at 323. In 1988 an employer that operated solely within Victoria terminated the employment of one of its workers with one week’s pay in lieu of notice: at 313, 323. The High Court held that the 1988 dispute was not within the ambit of the 1986 dispute. A claim for conditions relating to termination did not encompass a claim relating to a specific individual’s termination of employment: at 324. In addition there was no interstate element to the 1988 dispute. The Wooldumpers’ case was distinguished in Re Boyne Smelters Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1993) 177 CLR 446; 112 ALR 359. This case involved a demand by a union for security of employment in the aluminium industry located in different

States: at 448–9. In October 1990 the commission recorded the existence of a dispute in terms of the demand. In April 1991 an employer in the industry [page 217] retrenched a number of employees. The union claimed that the dispute relating to the retrenchments was part of the original demand for security of employment: at 449. Brennan, Deane, Toohey and Gaudron JJ held that the union’s application for the reinstatement of the employees fell within the ambit of the original dispute: at 456. McHugh J stated that the Wooldumpers’ case was good authority for the proposition that a dispute regarding the reinstatement of particular employees did not come within the ambit of a dispute concerning the establishment of a regime relating to the security of employment and dismissal generally: at 466. In Victoria v Commonwealth (1996) 187 CLR 416 at 502; 138 ALR 129 Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ stated that it was ‘well settled that the terms of an award must be “‘relevant’ or ‘reasonably incidental’ or ‘appropriate’ to the settlement of the differences constituting the interstate dispute … or… [have] a ‘natural or rational tendency to dispose of the question at issue”’: at 527. The ambit doctrine was an aspect of this wider principle: at 527–8. industrial

386 Not only must there be a dispute: it must be an industrial dispute. A fundamental reassessment of the meaning of ‘industrial dispute’ occurred in R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297; 47 ALR 225. The court held that a dispute between an organisation of social workers and their employees under a community youth support scheme was industrial in nature. The court adopted a wide interpretation by accepting the ‘popular’ meaning of industrial disputes as including disputes between employees and

employers about the terms of employment and the conditions of work: at 312. It said (at 312): Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective “industrial” imports some restriction which confines the constitutional conception of “industrial disputes” to disputes in productive industry and organized business carried on for the purpose of making profits.

Basically, as the definition of the court indicates, an industrial dispute relates to employer– employee relations. The ‘popular’ meaning ‘no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern’: at 312–13. The court suggested that the administrative services of the States might be immune from federal power, being protected by implied constitutional limitations: at 313. 387 The operation of the implied limitations has been raised in several cases. In Re Lee; Ex parte Harper (1986) 160 CLR 430; 65 ALR 577 it was held that the conciliation and arbitration power extended to disputes to which state school teachers were a party. Teaching was an ‘industry’. Mason, Brennan and Deane JJ argued that it was ‘manifestly clear’ that state school teachers did not form part of the administrative services of the States: at 450. They did not find it necessary to express a concluded opinion upon the wider question whether persons employed in the administrative services of a State were subject to the power. However, they thought that the implied limitations did not protect the States from the exercise of a power which contemplates its application to the States: at 453. In Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 271–2; 113 ALR 385 Mason CJ, Deane and Gaudron JJ stated: [page 218] … we should point out that the statement made in Re Lee; Ex parte Harper, that the implied limitations must be read subject to the express provisions of the Constitution, should not be understood as excluding consideration of implications derived from the Constitution until the scope of s 51(xxxv) is ascertained by reference to its terms alone. Rather, the scope of that

provision must be ascertained not only by reference to its text but also to its subject matter and the entire context of the Constitution, including any implications to be derived from its general structure.

In Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188; 128 ALR 609 in a joint judgment Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ held that a law which sought to ‘control the States’ would infringe the second limb of the implied limitation: at 232. Among those matters which are essential to the capacity of the States to function as governments are a State government’s right to determine the number and identity of its employees, their term of employment, and the number and identity of employees to be dismissed as redundant: at 232. However, a federal award concerning minimum wages and working conditions would not necessarily infringe this limitation. Other matters which are essential to the capacity of the States to function as governments are determining the terms and conditions upon which employees at the ‘higher levels of government’ are employed, as well as their number and identity: at 233. Hence the commission would be precluded from fixing minimum wages and working conditions in respect of such State employees: at 233. This decision was applied in Victoria v Commonwealth (1996) 187 CLR 416; 138 ALR 129. The challenged legislation was read down so as not to apply to the States in a manner that would infringe the implied limitation: at 503, 520– 1. It was also held that Commonwealth provisions regarding the setting of minimum wages did not discriminate against a State that did not have a compulsory industrial arbitration system. The provisions were of ‘general application’ and did not necessarily have a ‘different impact’ upon that State: at 500–1. 388 The High Court held that claims for employer contributions of superannuation benefits during the currency of an award are within the concept of ‘industrial matter’ and thus capable of being the subject of an ‘industrial dispute’ under the former Act. See Re Manufacturing Grocers Employees Federation of Australia and Association of Professional Engineers, Australia; Ex parte Australian Chamber of Manufacturers and Victorian Employers’ Federation (1986) 160 CLR 341 at 356–7; 65 ALR 461. A dispute between an employer and its employees regarding the form that a superannuation scheme should take may be the subject matter of an industrial dispute. See Re

Amalgamated Metal Workers Union; Ex parte Shell Co of Australia Ltd (1992) 174 CLR 345 at 354–9; 108 ALR 229. The methods of recruitment utilised by employers and staffing levels are also matters which can be the subject of an industrial dispute. Such matters are now recognised as directly connected with the employment relationship. See Re Cram; Ex parte New South Wales Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 at 133; 72 ALR 161. The mere fact that a matter can be described as managerial does not take it outside the concept of industrial: at 135–6. In Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers Union (1987) 163 CLR 656; 76 ALR 36 a mining company purported to dismiss some of its employees. The union and a society of engineers notified the commission of a dispute. At a hearing before the commission the union and the society sought a variation of the award or the making of a new award that provided for the reinstatement of the employees. The commission held that it had no jurisdiction: at 659. The High Court held that the dispute was able to be resolved by the commission’s arbitral power, and doing so would not involve any assumption of judicial power by the [page 219] commission: at 662, 666. It was an ‘industrial dispute’ capable of resolution by conciliation and arbitration: at 666. The question was whether the dispute pertained to the relations between an employer and (continuing) employees, not merely the relationship between an employer and former employees: at 661. extending beyond the limits of any one State

389 The Constitution envisages that the dispute must involve more than one State. This limitation has not had the same restrictive effect as the other limitations because of the development of federally organised industrial

organisations representing employers and employees. At an early stage it was emphasised that it was the dispute which had to extend beyond one State as distinct from the industry. It is therefore not necessary that any one of the employers have a business which extends to more than one State. Nor is it a disqualifying factor that the industry is one determined by local State conditions in which interstate competition in its products does not exist. Local limitations of the union do not prevent a dispute in which it is engaged from being an interstate dispute. In Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 it was held that a union could be engaged in an industrial dispute, even though it was a purely State union with a field of operations limited to the State, by cooperating with a union in other States to create an opposition in a dispute which could be extended over both States, subject to the qualification that the dispute must not be a ‘sham’: at 336–7, 352–3. It is possible for a dispute to arise locally — in one pit or shop — and to spread from there not only throughout the Commonwealth in that industry, but to other industries as well. This raises the point posed by Isaacs J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte G P Jones (1914) 18 CLR 224 at 243: They [disputes] may originate in one part or several parts of the Commonwealth, just as a physical eruption may originate in one or several portions of the body and spread, or they may originate — as in the present case — by a synchronous growth all over the area affected.

390 The analogy with physiological disease is a useful one. When is the dispute/disease still able to be discerned as present in itself alone; when do the symptoms and consequences reach such proportions as to take on separate identities? To illustrate this, the Caledonian Collieries’ case may be considered (Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (No 1) (1930) 42 CLR 527). As a result of attempts by employers to have wages reduced in the northern New South Wales collieries, bitter unrest broke out, which culminated in the closing of the mines in mid-1929. The New South Wales government re-opened one of the mines with non-union labour who accepted reduced rates. On the same day the Chief Judge of the Commonwealth court summoned a compulsory conference: at 538.

As at that date, Queensland and Victorian miners were involved to a certain extent. Since the selling price of New South Wales coal affected that of Queensland and Victorian coal, a reduction in the price of the former would affect the latter. A consequent reduction of wages in New South Wales would be followed by immediate demands for reduction in Queensland and Victoria: at 539. The union, through its federal organisation, had arranged that its members in the rest of New South Wales and in Queensland and Victoria should contribute twelve and half per cent of their wages to support the outof-work miners: at 553. [page 220] One other important fact was later urged to import the necessary interstate quality to the dispute. Telegrams were sent to miners in Wonthaggi (Victoria) and in Queensland urging them to strike in sympathy, which they did: at 554. The Chief Judge assumed jurisdiction, and made an interim award: at 551. The majority of the High Court (Gavan Duffy, Rich, Starke and Dixon JJ) drew a distinction between a dispute proper and the consequences of the dispute. The dispute between the northern New South Wales employees and their employers certainly existed — it was a dispute about the reduction of wages. But there was no such dispute between Victorian miners and Victorian coal owners, nor between their Queensland counterparts. Indeed, so long as the New South Wales mines remained closed, all the other mines would benefit, and no reduction was remotely likely. That is to say, the dispute was in New South Wales, and the strikes in Victoria and Queensland did not in any way enlarge the dispute proper. The consequence was that the dispute did not fall within s 51(xxxv): at 553–6. 391 In Re Australasian Meat Industry Employees’ Union; Ex parte Aberdeen Beef Co Pty Ltd (1993) 176 CLR 154; 112 ALR 35 the union served a log of claims upon employers in the meat processing industry operating in various parts of Australia. Six locations were in Queensland, one was in South Australia and the rest were in New South Wales. The commission found that the employers’ rejection of the demands gave rise to a single industrial dispute: at 157.

In the High Court the employers argued that there were a number of multiple disputes, only a few of which extended beyond the limit of any one State: at 158. The court held that the existence of a single industry (here the meat processing industry) could be used as the nexus between a number of demands made on behalf of a number of employees to a number of employers which enabled them to be dealt with as a single dispute: at 159. The employers also impugned the genuineness of the dispute: at 161. The court held that while one reason why the South Australian and Queensland employers were served was undoubtedly to ensure that there was an interstate element to the dispute, that was not inconsistent with the demands being genuinely made: at 162. An argument that the relatively small number of employers outside New South Wales proved that the log was not genuine was rejected. The mere fact that the dispute outside New South Wales was smaller than the dispute within that State did not mean that the dispute was not genuine: at 162. Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ quoted (at 162–3) Latham CJ in R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at 432: This Court would soon find itself in grave difficulties if it were to hold that the jurisdiction of the Arbitration Court depended, not merely upon the extension of an industrial dispute from one State to another State, but also upon the size of the dispute in each or some particular State.

There were a ‘significant’ number of employees outside New South Wales, and no inference was able to be made that the union did not intend to pursue its demands on behalf of those employees: at 163. 392 The question whether an award was constitutionally valid (or, more correctly, whether the former Act, in so far as it authorised the award, was constitutionally valid) was a matter usually determined by an application for a writ of prohibition under s 75(v) of the Constitution. It was a matter for the original jurisdiction of the High Court which was made exclusive to the court by the Judiciary Act 1903 (Cth). In such a proceeding the High Court could review all of the questions on which the jurisdiction of the commission constitutionally depended, such as the factual question whether the dispute was in fact of an

[page 221] interstate character. See R v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways’ Board (1962) 108 CLR 166 at 170. In O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; 96 ALR 1 Deane, Gaudron and McHugh JJ acknowledged that it would be impossible to confer upon awards made by the Commission an absolute immunity from constitutional challenge. On the other hand the Parliament could legislate that awards were binding unless overturned by constitutional challenge: at 290. They said: ‘Indeed, a conciliation and arbitration system under which longstanding awards … which had been accepted and acted upon by both employees and employers, could be challenged years after the time when they were made on the basis of a factual assertion that no industrial dispute had existed at that time would represent a prescription for uncertainty and a potential source of injustice and industrial chaos’: at 290. They also stated (at 289): … assuming circumstances exist which could constitute an industrial dispute … it may be within the legislative competence of the Commonwealth Parliament … to make the opinion of a specialist and expert tribunal as to a threatened, impending, probable or likely dispute otherwise immune from challenge … [Then the] relevant inquiry would … be, not whether a dispute in the defined sense existed, but whether the circumstances were such that the Commission could find that it existed.

The conciliation and arbitration power permits the Commonwealth to regulate the extent to which an existing or future award will have legal effect, including denying legal recognition to part of an existing award. See Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; 172 ALR 257; [2000] HCA 34 at [22], [26], [205], [221], [302]–[303].

Nature of the arbitral function and the exercise of judicial power 393

The arbitral function, in the sense that it creates new rights, is

legislative, although the High Court has taken the view that it is not the arbitrator who legislates, but Parliament. See Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463–4. Though the power is legislative or at least ancillary to the legislative function, the arbitral tribunal is under a duty to proceed judicially. It is on this ground that the prerogative writ of prohibition lies. The power to make laws for the enforcement of awards results from a combination of s 51(xxxv) and (xxxix). In itself the enforcement process is a judicial function and so can only be exercised by a court. Since the decision in Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (HC); (1957) 95 CLR 529 (PC), such a court cannot be constituted to perform arbitral functions as well. Between 1956 and 2005 the power of arbitration was therefore vested in the Commonwealth Conciliation and Arbitration Commission (later renamed the Australian Industrial Relations Commission). The power of performing various judicial functions was conferred upon the Commonwealth Industrial Court (and later exercised by the Federal Court). In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681 the court invalidated a provision of the 1988 Act that made it an offence to bring a member of the commission into disrepute. Mason CJ noted that the law did not fall squarely within the power conferred by s 51(xxxv) because it extended to parties who were outside the conciliation and arbitration process, such as journalists and publishers: at 27. It was thus necessary to examine whether the provision could be supported by the incidental power in s 51(xxxix). It could not because [page 222] the means used by the Commonwealth were more restrictive than was necessary. But, subject to the means employed being proportionate to the objective of preserving the reputation of the commission, it was possible to shield it from criticism of the nature specified: at 31. However, the provision reached too far.

Deane and Toohey JJ indicated that on its own s 51(xxxv) could support the law, but the law was invalid as an infringement of the implied freedom of political communication: at 68. Gaudron J stated that the provision was incidental to the conciliation and arbitration power as it had a purpose connected with the main purpose of that power: at 94–5. However, the law violated the implied freedom: at 94–5. 394 (xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:

See Quick and Garran, 1901, pp 647–8 (Revised ed, 2015, pp 771–2); Wynes, 1976, p 171; Attorney-General’s Department, 1980, pp 152–3; Lane, 1997, pp 358–9. 395 In the Constitution there are a number of sections which provide for a temporary regulation of a matter ‘until the Parliament otherwise provides’. Under this power the Parliament may at any time regulate the subject matter so covered. Such provisions of the Constitution include s 3 (salary of the GovernorGeneral), s 7 (election of senators), s 24 (election of members of the House of Representatives), s 29 (electoral matters), s 30 (qualifications of electors), s 31 (elections), s 34 (qualifications of members) and s 46 (disqualifications of members). For a full list of such provisions, see McGinty v Western Australia (1996) 186 CLR 140 at 281; 134 ALR 289. Section 51(xxxvi) is to be regarded as a blanket provision conferring on the Commonwealth legislative power with regard to matters listed in these and other sections of the Constitution. Most of these matters relate to the parliamentary structure. The Parliament has enacted legislation in relation to most of these matters, thereby ‘otherwise providing’ and so modifying the original constitutional scheme. In McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 Gummow J argued that the phrase ‘until the Parliament otherwise provides’ ‘accommodate[s] the notion that representative government is a dynamic rather than a static institution’, which is capable of evolution by legislative provision: at 280–1.

396 (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:

See Quick and Garran, 1901, pp 648–9 (Revised ed, 2015, pp 772–4); SG Opinions No 1776 of 25 July 1946 and No 1777 of 1 August 1946; Johnson (1973) 9 MULR 42; Attorney-General’s Department, 1980, pp 153–5; Atherton (1989) 3 Aust J Fam L 236; Craven (1990) 1 Public LR 285; Thomson (1993) 4 Public LR 153; Bini (1997) 72 ALJ 696; Lane, 1997, pp 359–62; Dickey (1999) 73 ALJ 868; Rose (2000) 29 UWALR 180; Rose and Lindell (2000) 3 Const L & Pol’y Rev 21; Lane (2001) 75 ALJ 289; Govey and Manson (2001) 12 Public LR 254; Saunders (2001) 12 Public LR 274; Selway (2001) 12 Public LR 288; Rose (2002) 14 Bond LR 26; French (2003) 31 UWALR 19; Twomey, 2004, pp 806–15; [page 223] Carney, 2006, pp 14–17; Aroney, 2009, pp 326–9; Lynch (2010) 32 Syd LR 363; Lynch (2011) 24 Aust J Labour L 1; Lynch in Kildea, Lynch and Williams, 2012, 193–209; Faulkner and Orr, 2013, pp 693–710 (nos 1713– 1716); Williams, Brennan and Lynch, 2014, pp 274–7. 397 What is the nature of the reference which forms the subject matter of this power? The view was expressed that the reference should be quite precise in its terms; so precise indeed that the States must agree upon a draft Bill, which the Commonwealth might then enact. See the opinion discussed in Anderson (1951) 2 UWALR 1 at 4. This view presumably had its origins in ideas current during the period of the Federal Council, the constituting Act of which contained a similarly worded provision. See Federal Council of Australasia Act 1885 (Imp) s 15(h), (i). However, it seems clear that the use of the word ‘matters’ allows the subject of the references to be expressed in general terms. The phrase ‘which afterwards adopt the law’ specifically permits another method of accomplishing the end result, namely by State legislation adopting the Commonwealth enactment. As was stated in R v Public Vehicles Licensing

Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207, this phrase does not relate to the reference by a State or States, but refers ‘to the law made by the Parliament of the Commonwealth in pursuance of a reference of a matter’: at 225. Reference legislation may contain express limitations upon the scope of the matter referred. For example, the reference statutes relating to corporations law expressly state that they do not extend to industrial relations matters. See, for example, Corporations (Commonwealth Powers) Act 2001 (Vic) s 1(2). (However, industrial relations was the subject of a later series of reference laws.) A Commonwealth statute enacted pursuant to a reference of power must keep within the scope of the reference. See Smith v St James (1996) 135 FLR 296 at 311. In Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 the counter-terrorism provisions of the Commonwealth Criminal Code provided for the making of interim control orders that placed restrictions upon the activities of individuals. The Commonwealth argued that these provisions were supported by a reference of power by the States. A majority of the court (Gleeson CJ, Gummow, Crennan, and Heydon JJ) found it unnecessary to consider whether the provisions were supported by the reference power: at [6], [154], [650]. A minority of the court (Kirby, Hayne and Callinan JJ) considered the reference power. Kirby J held that the challenged provisions were not supported by the reference as they were not an ‘express amendment’ as authorised by the reference law: at [203]–[205]. Hayne J held that the control order provisions were an express amendment under the reference law: at [446]–[455]. One provision of the Commonwealth Act subjected an express amendment of the counter-terrorism provisions to approval by both a majority of the States and mainland Territories and a majority of the States: at [447]. Hayne J held that this provision invalidly attempted to fetter the exercise of legislative power by a future Commonwealth Parliament: at [456]. Callinan J also expressed the ‘tentative view’ that this provision was invalid on the ground that a State may not ‘renounce or forgo its power in the future to a majority decision’ of the other States and Territories: at [605], [607]. For a discussion of this aspect of this case, see Lynch (2008) 32 MULR 1182 at 1198–1200.

398 The question arises as to whether a State Parliament retains any power to legislate on a particular subject matter once the reference has been made to the federal Parliament. The answer would appear to be that the Commonwealth Parliament may cover the field, and consequently, by virtue of s 109 exclude inconsistent State legislation. Until the [page 224] Commonwealth does so, State legislation would continue to operate. See Re Felicity (2012) 84 NSWLR 25; [2012] NSWSC 494 at [42]–[46]; LR (2013) 84 NSWLR 39; [2013] NSWCA 21. In Graham v Paterson (1950) 81 CLR 1 a baker was prosecuted under the Profiteering Prevention Act 1948 (Qld), for having sold bread above a fixed price. By the Commonwealth Powers Act 1943 (Qld), the Parliament of Queensland had referred to the Commonwealth ‘the matter of profiteering and prices’ for a period lasting five years after the end of the war. Latham CJ stated (at 19): … [s]ection 51(xxxvii) does not provide that any power of the Parliament of a colony which becomes a State should become exclusively vested in the Commonwealth Parliament or be withdrawn from the Parliament of the State. It is s 52, and not s 51, which gives exclusive powers to the Commonwealth Parliament. Therefore the powers of the State Parliament are not diminished when an Act is passed to refer a matter under s 51(xxxvii).

The Queensland Act was thus still in operation. 399 The most important question is whether a reference is revocable, that is, whether the State legislature, once having legislated, may take back its control over the subject matter. Wynes expressed the view that ‘[a] reference once made would clearly be revocable until acted upon by the Commonwealth, but not afterwards, since an Act passed in accordance with this paragraph becomes binding in respect of the referring or adopting State as a law of the Commonwealth to which supremacy and binding force are attached by s 109 and clause V of the Covering Clauses of the Constitution’. See Wynes, 1976, p 171. However, one must distinguish certain types of reference. The reference

may be unqualified as to time or scope. On the other hand, it may be expressed as being for a limited period. At the far extreme, it may be expressed to be irrevocable, or its demise may be contingent upon the occurrence of some event. In Graham v Paterson (1950) 81 CLR 1 at 18 Latham CJ stated: It has sometimes been suggested that a reference under s 51 (xxxvii) must be an irrevocable reference for all time — that while the matter referred must necessarily be described by reference to its attributes or qualities, yet the reference cannot be limited by reference to a quality or attribute of a temporal character. Such a contention would involve the proposition that a State Parliament can pass an unrepealable statute, or at least that any attempt to repeal an Act referring a matter under s 51 (xxxvii) would necessarily produce no result. The result of the adoption of such a suggestion would be that one State Parliament could bind all subsequent Parliaments of that State by referring powers to the Commonwealth Parliament.

Latham CJ did not find it necessary to express an opinion on this suggestion. In R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 the court upheld as effective a State law referring power over air navigation to the Commonwealth Parliament for an indefinite period, subject to withdrawal by proclamation of the State Governor: at 226. 400 It is therefore clear that a State Parliament may refer a matter to the Commonwealth Parliament for a fixed period, or for an indefinite period of time or without any period of time specified. However, there is considerable doubt as to whether the reference may be in terms specifically irrevocable as this would constitute an infringement of the basic constitutional principle that a State Parliament cannot bind its successor. It may also be that a reference of power made for an indefinite period may be repealed by a State Parliament at any time. In this situation the Commonwealth would enact legislation upon such a foundation at its own peril. Once the basis for the reference of power has ceased, there can be no valid legislation to which the Commonwealth Act may refer. [page 225] On the other hand, if a temporal limitation is contained in the State referring Act, and this is adopted in the Commonwealth enacting statute, then

it could be that any State legislation repealing the referring Act before the period of time has expired would be invalid as inconsistent with Commonwealth legislation, and therefore inoperative under s 109 of the Constitution. Nevertheless, there are difficulties here. How does one distinguish a referring Act of a State expressed to continue for, say, a 100 year period from an Act purporting to make the reference irrevocable? The legislative history of the Trans-Tasman Mutual Recognition (South Australia) Act 1999 (SA) provides examples of the adoption of a federal law for both a fixed and an indefinite period of time. The Act originally contained a sunset clause, which provided that the adoption would terminate five years after the Act came into operation: s 4(2). A 2004 amendment repealed the sunset clause: Act No 38 of 2004. Following the amendment the Act provides that the adoption will terminate on a day to be appointed by the Governor: s 4(2), (3). The Queensland Court of Appeal has held that, like other federal legislative powers, legislation enacted pursuant to a reference of power may have a retrospective operation. See R v Corbett [2004] 1 Qd R 146; [2002] QCA 340 at [20]–[21]; SLR sub nom Parker v Director of Public Prosecutions (Cth) [2003] HCATrans 848. 401 Examples of existing reference legislation include: Commonwealth Powers (Air Transport) Act 1950 (Qld), 1952 (Tas); Commonwealth Powers (Family Law — Children) Act 1986 (NSW), 1986 (Vic), 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA), 1987 (Tas); Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), 2003 (Qld), 2006 (Tas), 2004 (Vic), 2006 (WA), 2009 (SA); Commonwealth Powers (State Banking) Act 1992 (NSW); Mutual Recognition (New South Wales) Act 1992 (NSW), 1992 (Qld); Trans-Tasman Mutual Recognition (New South Wales) Act 1996 (NSW); Corporations (Commonwealth Powers) Act 2001 (NSW), 2001 (Qld), 2001 (SA), 2001 (Tas), 2001 (Vic), 2001 (WA); Terrorism (Commonwealth Powers) Act 2002 (NSW), 2002 (Qld), 2002 (SA), 2002 (Tas), 2002 (WA), 2003 (Vic); Water (Commonwealth Powers) Act 2008 (NSW), 2008 (Qld), 2008 (SA), 2008 (Vic); Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld); Fair Work (Commonwealth Powers) Act 2009 (Vic), 2009 (SA); Industrial Relations (Commonwealth Powers) Act 2009 (NSW), 2009 (Tas);

Personal Property Securities (Commonwealth Powers) Act 2009 (NSW), 2009 (Qld), 2009 (SA), 2010 (Tas), 2009 (Vic); Personal Property Securities (Commonwealth Laws) Act 2011 (WA) s 8; Credit (Commonwealth Powers) Act 2010 (NSW), 2010 (Qld), 2010 (SA), 2009 (Tas), 2010 (Vic), 2010 (WA); Vocational Education and Training (Commonwealth Powers) Act 2010 (NSW); Business Names (Commonwealth Powers) Act 2011 (NSW), 2011 (Qld), 2011 (Tas). Examples of repealed reference legislation include: Commonwealth Powers (Meat Inspection) Act 1983 (NSW), repealed by Statute Law (Miscellaneous Provisions) Act (No 2) 1997 s 4 and Sch 4; Commonwealth Powers (Poultry Processing) Act 1993 (NSW), repealed by Statute Law (Miscellaneous Provisions) Act 1997 s 4 and Sch 5; Commonwealth Powers (Industrial Relations) Act 1996 (Vic), repealed by Fair Work (Commonwealth Powers) Act 2009 s 8. A list of repealed or expired reference legislation appears in Attorney-General’s Department, 1980, pp 154–5. The texts of some repealed reference statutes appear in Knowles, 1936, pp 145–63. Examples of existing adoption legislation include: Child Support (Adoption of Laws) Act 1990 (WA); Mutual Recognition (South Australia) Act 1993 (SA), 1993 (Tas), 1998 (Vic), 2010 (WA); Trans-Tasman Mutual Recognition (Victoria) Act 1998 (Vic), 1999 (SA), 2003 (Qld), 2003 (Tas), 2007 (WA); Personal Property Securities (Commonwealth Powers) [page 226] Act 2010 (Tas) s 6; Personal Property Securities (Commonwealth Laws) Act 2011 (WA) s 6; Business Names (Commonwealth Powers) Act 2011 (Vic), 2012 (SA), 2012 (WA); Vocational Education and Training (Commonwealth Powers) Act 2011 (Tas), 2012 (Qld), 2012 (SA). The mutual recognition scheme was enacted by a combination of references and adoptions. A reference by two States was followed by adoptions by the other States. See Board of Examiners v Lawrence (2000) 100 FCR 255; 176 ALR 305; [2000] FCA 900 at [14], [18]. The Territorial legislatures have sometimes enacted legislation that applies a

Commonwealth law as a law of the Territory. See Trans-Tasman Mutual Recognition Act 1998 (NT) s 5(1). Territorial legislatures have also requested that the Commonwealth Parliament enact a law in specified terms. See Mutual Recognition (Australian Capital Territory) Act 1992 (ACT) s 5(1), 1992 (NT) s 5(1); Trans-Tasman Mutual Recognition Act 1997 (ACT) s 5(1); Corporations (Northern Territory Request) Act 2001 (NT) s 3; Terrorism (Northern Territory) Request Act 2003 (NT) s 3; De Facto Relationships (Northern Territory Request) Act 2003 (NT) s 4; Business Names (National Uniform Legislation) Request Act 2011 (NT) s 4. Section 51(xxxvii) relates only to the States, not the Territories, so these provisions are not a reference or adoption under that provision. These request provisions were enacted to express the Territory’s political support for the State references of power. See Australian Capital Territory Legislative Assembly, Hansard, 8 May 1997, pp 1111–12; Northern Territory Legislative Assembly, Parliamentary Record, 6 June 2001, p 7953. 402 (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:

See Quick and Garran, 1901, pp 650–1 (Revised ed, 2015, pp 774–6); Winterton (1982) 5 UNSWLJ 327; Craven, Secession, 1986, pp 176–90; Moshinsky (1990) 64 ALJ 42 at 52–3; Cullen (1990) 16 Mon ULR 128; Lane, 1997, pp 362–6; Twomey, 2004, pp 119–27, 815–22; Aroney, 2009, pp 329– 32; Ratnapala and Crowe, 2012, pp 440–1; Williams, Brennan and Lynch, 2014, pp 277–9; Stellios, 2015, pp 463–8. 403 The meaning of this paragraph was rather obscure until the judgment of the High Court in Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; 88 ALR 12. The unanimous joint judgment of the court was that the words ‘at the establishment of this Constitution’ refer to the point in time immediately before the establishment of the Constitution rather than the point immediately after, particularly since the Federal Council of Australasia referred to in the section would cease to exist upon Federation. Thus the scope of the power conferred by s 51(xxxviii) is not limited by (though it may include) the heads of power in s 51: at 376.

There were three classes or categories of power which, at the time of the establishment of the Constitution, could be exercised by the Imperial Parliament. See Quick and Garran, 1901, p 650 (Revised ed, 2015, p 775); Wynes, 1976, p 173. 404 The first class was the power to amend Imperial legislation extending to the colonies by paramount force. At the time when the Constitution Act was enacted in 1900 it was understood that the Commonwealth Parliament would continue to be bound by the Colonial Laws Validity Act 1865 (Imp), in particular its repugnancy provision: s 2. See Quick and Garran, 1901, pp 651–2 (Revised ed, 2015, pp 775). [page 227] The second class was the power to enact extra-territorial legislation. The express words ‘within the Commonwealth’ might seem to suggest that the power conferred was intended to have an intra-territorial operation, that is to say, to have a territorial connection with the Australian continent and, therefore, would not extend to extra-territorial matters such as navigation and shipping on the high seas. In legislating for the pivotal piece of the off-shore package — the Coastal Waters (State Powers) Act 1980 (Cth) — the Commonwealth and State Parliaments acted on the basis that the limitation is merely a formal one, requiring that the power be exercised within Australia (that is, by the federal Parliament at the seat of government). In Port MacDonnell the High Court upheld the legislation on the basis of such an interpretation. It held that the words ‘within the Commonwealth’ do not import a territorial limitation upon the power in s 51(xxxviii). Laws passed under this paragraph may have an extra-territorial operation: at 376. Rather, ‘the words refer to the location of the exercise of legislative power … and not to the area of operation of the laws made by the exercise of such power’: at 378. The third class was the power to legislate with respect to matters excepted from State control by the Constitution Acts of the colonies (States), or subject to a manner and form procedure laid down in those respective Constitutions.

Some of the Constitution Acts of the Colonies contained certain classes of matters which were excepted from colonial, and therefore, State control. Control over these matters has now passed to the Commonwealth under various heads of power contained in the Constitution. There are other classes, for example constitutional amendment Bills, which could only be passed in a certain manner and form. It might be that s 51(xxxviii) was intended to permit legislation on these matters to the extent to which they were still embodied in the constitutional legislation of the States which derived its validity from Imperial enactment. However, most of the constitutional legislation of the States now has an indigenous force (that is, it is dependent on local enactment). 405 Since Port MacDonnell it is clear that this power is of great importance. Two significant passages from the judgment illustrate this point. The court said (at 378): Shortly stated, the effect of s 51(xxxviii) is to empower the Commonwealth Parliament to make laws with respect to the local exercise of any legislative power which, before federation, could not be exercised by the legislatures of the former Australian colonies.

Furthermore the court stated that it is clear that one of the functions which s 51(xxxviii) was intended to serve was that of plugging gaps which might otherwise exist in the overall plenitude of the legislative powers exercisable by Commonwealth and State Parliaments under the Constitution. Indeed, it could properly be seen as leading to an enhancement of State legislative powers: at 379. These views were quoted with approval by Gleeson CJ, Gummow and McHugh JJ in Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [62]. Section 51(xxxviii) requires the concurrence of all the State Parliaments directly concerned. In so far as these classes of matters are part of the legal system of most if not all of the States, there is some doubt as to whether a request for amendment from one State alone would justify an exercise of legislative power if requests from other States were not forthcoming. In other words, legislative action on the part of the Commonwealth under this section may, in the interests of uniformity, be predicated upon the consent of all the States whose legal systems contain a particular type of provision in respect of which a request for amendment has been made.

406 The settlement between the Commonwealth and States terminating Imperial links (the Australia Acts) was based upon the utilisation of two alternative methods: request and [page 228] consent legislation directed to the United Kingdom Parliament, and this paragraph. Because of doubts about the scope of s 51(xxxviii) it was considered that reliance upon both methods was a better procedure to follow. All of the State Parliaments made the necessary requests which led to the enactment of the Australia Acts 1986 (UK and Cth). In Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 Gleeson CJ, Gummow and Hayne JJ expressed the view that s 1 of the Australia Act had been validly enacted by the Commonwealth Parliament under s 51(xxxviii): at [63]. All State Parliaments passed laws requesting that the Commonwealth Parliament enact a law under s 51(xxxviii) to amend the law relating to succession to the throne and royal marriages. See Succession to the Crown (Request) Act 2013 (NSW), 2014 (SA), 2013 (Tas), 2013 (Vic); Succession to the Crown Act 2013 (Qld), 2015 (WA). Following these requests the Commonwealth enacted the Succession to the Crown Act 2015 (Cth). The amended rules of succession are discussed in Parpworth (2013) 76 Modern LR 1070. One of the Territorial Parliaments also requested the enactment of such legislation. See Succession to the Crown (Request) (National Uniform Legislation) Act 2013 (NT) s 4. While the Chief Minister acknowledged that the Territorial request legislation was ‘not constitutionally necessary’, the Territory government ‘considers it desirable to ensure so far as possible, that arrangements in place in the Northern Territory mirror those in place between the Commonwealth and the states’. See Northern Territory Legislative Assembly, Parliamentary Record, 28 August 2013. It has also been argued that s 51(xxxviii) confers upon the Commonwealth power to amend the covering clauses of the Constitution, although this is a

matter of dispute. See Winterton (1982) 5 UNSWLJ 327; Craven (Spring 1992) 8, 3 Policy 33; Republic Advisory Committee, 1993, Vol 2, p 308. 407 (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.

See Quick and Garran, 1901, pp 651–5 (Revised ed, 2015, pp 776–81); Wynes, 1976, pp 363–71; Attorney-General’s Department, 1980, pp 155–66; Rumble (1982) 13 FL Rev 182; Lane, 1997, pp 367–79; Zines, 2002, pp 198– 9; Saunders (2005) 16 Public LR 294; Williams, Brennan and Lynch, 2014, pp 786–8; Stellios, 2015, pp 48–50. Matters incidental to the execution of any power vested by this Constitution in the Parliament

408 With a grant of legislative power to the legislature of a political community, it might be said that any matters incidental to the effectuation of the legislative purposes stated come within the major grant. The incidental power in s 51(xxxix) should be distinguished from the application of other Commonwealth powers to matters that are incidental to their subject matters. As Dixon J put it, ‘everything which is incidental to the main purpose of a power is contained within the power’. See Burton v Honan (1952) 86 CLR 169 at 177. By contrast, s 51(xxxix) is concerned with matters arising in the execution of Commonwealth legislative, executive [page 229] and judicial powers: at 177–8. See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 85, 92; 108 ALR 681. In Crespin and Son v Colac Co-operative Farmers Ltd (1916) 21 CLR 205 at 212 Griffith CJ stated: ‘[L]aws with respect to taxation necessarily include many provisions besides the imposition of taxes, and all such provisions as are reasonably incidental to the exercise of the power of taxation are, irrespective of the express provisions of sec 51, pl xxxix, authorized by the express grant’.

This seems to suggest that s 51(xxxix), in relation to its operation on legislative power, was inserted out of excessive caution. In the same case Barton J said: ‘Though the incidental power would have been exercisable without this express grant, the sub-section [s 51(xxxix)] makes assurance doubly sure’: at 214. 409 More recent cases have signalled that important limitations are to be placed upon the scope of the incidental power. In Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 the court established proportionality as a criterion of validity. The incidental power will support legislation in furtherance of the executive power in s 61. As the executive power extended to the incorporation of a body to promote the Bicentenary, the incidental power would support legislation regulating that body’s procedures, giving it certain powers and protecting its name and symbols: at 95, 99. Proportionality became an issue because the legislation went further than this, prohibiting the use of common expressions in everyday use, though there was no conceivable prejudice to the commemoration of the Bicentenary from their use. The court held that this prohibition was ‘grossly disproportionate’ to the legitimate objectives of protecting the commemoration and the corporation: at 100. The court concentrated upon the detrimental impact of the prohibition upon freedom of expression, which went beyond what was necessary to achieve the object within the executive power: at 99–100. Brennan J stated that ‘it cannot be incidental to the organization of the commemoration of the Bicentenary to prohibit, under criminal sanctions, the peaceful expression of opinions about the significance of the events of 1788’: at 117. 410 An attempt to justify the exercise of an incidental power as relating to or supporting an attempted exercise of a head of Commonwealth power which has been declared to be invalid will not succeed. This is illustrated by the Pharmaceutical Benefits’ case (Attorney-General (Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237). In that case the Pharmaceutical Benefits Act 1944 (Cth) established a scheme of free pharmaceutical benefits for persons resident in Australia. Constitutional authority for the Act was sought in ss 81 (appropriation) and 51(xxxix) of the Constitution. But in so far as s 81 could not justify the application of moneys for such wide purposes, the various

sections inserted in the Act to allow the achievement of these Commonwealth purposes were equally invalid: at 250, 258, 264, 266, 268. However, in Victoria v Commonwealth (1975) 134 CLR 338; 7 ALR 277, differing views were expressed concerning the relationship between ss 51(xxxix) and 81. This case concerned the appropriation of moneys for a community-based social service program called the Australian Assistance Plan. Under the Plan moneys could be expended on various types of social services extending beyond those specified in s 51(xxiii) and (xxiiiA). Jacobs J considered that appropriation and expenditure of moneys might be made by the Commonwealth for purposes in respect of matters incidental to the execution of the legislative power to appropriate and the executive power to expend for purposes comprehended within other subject matters of power. Consequently, expenditure was justified in areas of social welfare related to the specified Commonwealth social services powers: at 413–15. Murphy J adopted a similar view: at 423–4. McTiernan J considered that the regional councils (which were established to administer the program) were executive bodies within the Department [page 230] of Social Security so that their creation did not involve the performance of functions beyond the province of the Federal Executive Council: at 370. On the other hand, Barwick CJ, Gibbs and Mason JJ adopted an interpretation of these sections which did not permit the incidental power to be used to stretch the executive power of the Commonwealth beyond the range of the legislative powers enumerated in s 51 and other sections of the Constitution or which were inherent in the Commonwealth as a national government: at 363–3, 374–5, 397–8. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 a Commonwealth statute provided for the payment of ‘tax bonuses’ to certain categories of taxpayers as an economic stimulus measure during an international financial crisis: at [35]–[36]. French CJ held that the incidental power supported legislation giving effect to this exercise of an

executive power of expenditure pursuant to parliamentary authorisation: at [134]. Gummow, Crennan and Bell JJ also held that the challenged statute was authorised by the incidental power in execution of the executive power: at [213], [243]. In Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 the High Court held that the acceptance by the federal Parliament of the vesting of State judicial power in federal courts by the State Parliaments was not a valid exercise of the incidental power in execution of the federal judicial power: at [24], [52], [70]–[71], [118]–[119]. As Gleeson CJ put it, what was attempted was ‘a substantial addition to the power, and an attempt to circumvent the limitations imposed upon the power by the Constitution’: at [24]. Gummow and Hayne JJ pointed out that what was sought to be vested was the judicial power of the States, not of the Commonwealth: at [119]. 411 The importance of the incidental power is seen in terms of legislation that purports to penalise conduct or gives a power of seizure to a governmental authority in relation to breaches of legislation. In Burton v Honan (1952) 86 CLR 169 the forfeiture provisions of the Customs Act 1901 (Cth) were challenged. It was argued that the power to prohibit imports did not carry with it a power to make the prohibition effective by means of seizure and forfeiture after the goods had passed through customs. The court rejected this argument. Dixon CJ said (at 179): These matters of incidental powers are largely questions of degree, but in considering them we must not lose sight of the fact that once the subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the Legislature and not for the Judiciary.

McTiernan, Webb and Kitto JJ agreed with Dixon CJ: at 181–2. 412 In most cases the High Court has not distinguished between the major head of power and s 51(xxxix) when upholding an ancillary provision of an Act in relation to a valid exercise of a Commonwealth head of power. In other words the exercise of power has been justified under either source. In Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46 Dixon CJ said (at 54): Section 51(xxxix) authorizes the Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament and this has been

treated (somewhat unnecessarily or superfluously, as I think …) as including not only what attends, or arises in, the exercise of legislative power but also what is incidental to the subject matter of each of the powers conferred by the other paragraphs of s 51.

McTiernan J held that a provision that exempted a Commonwealth statutory corporation from State stamp tax was authorised by the incidental power. It was incidental to the exercise of the trade and commerce power (s 51(i)) to establish the commission and to regulate [page 231] its affairs. The legislative power conferred by s 51(xxxix) was ‘not necessarily coincident with the concomitants of the other specified powers respectively. If the prevention of the application of State laws imposing taxation to the Commission is not incidental as far as s 51(i) is concerned it does not follow that this is not a proper matter of legislative power under s 51(xxxix)’: at 59. In Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227; 38 ALR 25 the Family Law Act 1975 (Cth) provided that ‘[a] maintenance agreement … [executed] in accordance with an order under this Part is not subject to any duty or charge under any law of a State’: at 231. By a 3–2 majority the court held that immunity from State stamp duty could not be justified by reference to the incidental power in s 51(xxxix): at 240, 244, 272. Gibbs CJ stated that ‘in considering whether a law is incidental to the subject matter of a Commonwealth power it is not always irrelevant that the effect of the law is to invade State power; that of course would not be relevant if the law were clearly within the substantive power expressly granted’: at 240. The bulk of judicial opinion therefore favours the proposition that the incidental power has its main operation in relation to the executive and judicial powers and that, so far as the exercise of legislative power is concerned, it affirms in a clear manner what would otherwise be a matter of implication. or in either House thereof

413

Each House of Parliament has power to make rules and standing orders

relating to their business and privileges: s 50. This part of s 51(xxxix) affirms the power of Parliament to legislate with respect to matters incidental to those matters. or in the Government of the Commonwealth … or in any department or officer of the Commonwealth.

414 Under this part of s 51(xxxix), the Parliament may legislate with respect to matters incidental to the exercise of the executive power and with respect to other administrative matters (for example, the public service). Such a power extends to the enactment of legislation punishing conduct directed against the Commonwealth and its organs of government. Likewise, an authority may be established to investigate crimes against federal law. The incidental power would authorise the establishment of commissions and councils which give advice to, or provide a forum for discussion by, the federal government and representatives of the community. The incidental power also authorises freedom of information legislation. An important aspect of the power to legislate with respect to matters incidental to the executive power is the power to legislate with respect to internal security. See R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 506; Burns v Ransley (1949) 79 CLR 101 at 109–10; R v Sharkey (1949) 79 CLR 121 at 134–8, 148–9; Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 259–61; Renfree, 1984, pp 447–9; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [290], [498], [509]. Dixon and Fullagar JJ considered that the internal security power was necessarily inherent in the idea of government, and that it was not necessary to invoke an express power in the Constitution to support its exercise. See Burns at 116; Communist Party case at 187–8. [page 232] Hayne and Kiefel JJ appear to have taken the same view. See Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at

[364]. Other judges in the cases relating to internal security derived the power from a combination of ss 51(xxxix) and 61. In Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 Gummow and Crennan JJ argued that the view that the internal security power derived from the executive power and the incidental power was a consequence of a restrictive interpretation of the defence power: at [144]. In that case Gleeson CJ, Gummow, Crennan and Heydon JJ held that the defence power extended to protection against internal threats against the public at large: at [7], [142], [611]. Hayne J considered that it was unnecessary to consider whether the defence power applied to entirely internal threats since this case concerned threats made by groups outside Australia: at [419]. However, the ‘central purpose’ of the defence power is protection against ‘external enemies’: at [437]. Callinan J held that threats to the Commonwealth may be internal or external: at [583]. Australian Communist Party v Commonwealth (1951) 83 CLR 1 illustrates that the internal security power is complementary to the defence power. The Communist Party Dissolution Act 1950 (Cth) relied upon both the defence power and the internal security power. The court held that the Act was invalid as an exercise of the internal security power for the same reasons that it was invalid as an exercise of the defence power. 415 However, the doctrine of implied incidental powers extends beyond the subject matter of internal security. As Mason J put it in Victoria v Commonwealth and Hayden (1975) 134 CLR 338 at 397; 7 ALR 277: … 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.

See also at 362, 397–8, 412–13. In Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625 it was argued that the implied nationhood power authorised legislation that provided for the protection of World Heritage properties. A majority of the court rejected this argument. Gibbs CJ held that environmental conservation was not a subject that was peculiarly appropriate to be dealt with by the federal government: at 109. Wilson J considered that upholding a coercive law that was not enacted

pursuant to a specific head of power would be ‘subversive of the Constitution’: at 203–4. Deane J stated that the further one travelled from the core of the Commonwealth’s inherent powers, the more likely it was that such powers would be restricted to areas where there was ‘no real competition with the States’: at 252. The ‘drastic restrictions’ imposed with respect to protected areas could not be supported by the implied nationhood power: at 253. Dawson J expressed some scepticism about the existence of such a power: at 322. The fact that a matter is of national interest does not make it a subject of Commonwealth legislative power: at 323. Mason, Murphy and Brennan JJ found it unnecessary to consider the implied nationhood power: at 182. In Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 the court considered the extent to which the Commonwealth possesses implied powers beyond its enumerated legislative powers, including the incidental power. Mason CJ, Deane and Gaudron JJ thought that the Commonwealth possesses ‘such powers as may be deduced from the establishment and nature of the Commonwealth as a polity’: at 93. In contrast, Wilson and Dawson JJ were [page 233] concerned about the impact that the use of the incidental power could have upon the federal distribution of powers: at 101. Toohey J tentatively agreed with Wilson and Dawson JJ: at 117. He did not consider that there was any implied power arising only from the establishment of the Commonwealth as a polity, beyond that necessary to preserve its existence: at 119. This inherent power is often described as the ‘implied nationhood’ power. It does not give the Commonwealth a wide-ranging power to regulate the affairs of the nation irrespective of the specific grants of power in s 51. In other words, it is not a ‘peace, welfare and good government’ power. In R v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22 six Justices stated that while s 51(xxxix) empowers the Commonwealth to legislate in execution of the executive power, that does not mean that the

Commonwealth has the power to legislate regarding any subject that the federal executive considers to be of ‘national interest and concern’: at [39]. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 the Commonwealth argued that an economic stimulus law was supported by an implied legislative ‘nationhood power’: at [491]. A majority (French CJ, Gummow, Crennan and Bell JJ) found it unnecessary to consider this issue: at [133], [136]. Heydon J pointed out that the mere fact that a matter is one of national interest does not mean that it necessarily falls within an implied nationhood power: at [504]. The Commonwealth possessed numerous powers that authorised various forms of response to economic problems. The existence of these specific powers negated the existence of a broader general power: at [509]. More particularly, the Commonwealth argued that it possessed an implied ‘legislative power with respect to the national economy’: at [358]. Hayne and Kiefel JJ rejected the existence of such a power: at [359]–[361]. Despite the apparent intention to create a national market, the Commonwealth had not been granted such an express head of power: at [362]. The concept of the national economy was also quite uncertain: at [363]. Heydon J rejected the existence of an executive power to manage the national economy: at [547]– [552]. Several Commonwealth statutes authorise particular Commonwealth bodies to perform their functions ‘for purposes for which it is appropriate for the Parliament as the national Parliament of Australia to authorise [them] to perform functions’. See Australian Institute of Marine Science Act 1972 s 9(2) (b); Environment Protection (Alligator Rivers Region) Act 1978 ss 5B(2)(b), 24B(2)(b); Australian Nuclear Science and Technology Organisation Act 1987 s 5(5)(b); Tourism Australia Act 2004 s 7(4)(n); Australian Curriculum, Assessment and Reporting Authority Act 2008 s 4(b); National Film and Sound Archive of Australia Act 2008 s 6(b); Screen Australia Act 2008 s 6(6) (b); Australia Council Act 2013 (Cth) s 6(b). See also National Land Transport Act 2014 (Cth) s 4A(10) (in relation to the provision of Commonwealth funding). For discussions of the implied nationhood power, see Winterton, 1983, pp 40–4; Renfree, 1984, pp 452–5; Saunders (1984) 14 FL Rev 267; Howard, 1985, pp 19–21; Hanks 1996, pp 167–8; Lane, 1997, pp 130–1; Spaull (May

2001) 4, 1 Change: Transformations in Education 104; Twomey (2010) 34 MULR 313 at 327–42; Chordia, Lynch and Williams (2013) 37 MULR 189 at 221–4; Joseph and Castan, 2014, pp 168–82; Williams, Brennan and Lynch, 2014, pp 379–97; Aroney, Gerangelos, Murray and Stellios, 2015, pp 195–9; Stellios, 2015, pp 447–56; Hanna (2015) 39 UWALR 327. or in the Federal Judicature

[page 234] 416 The real force and effect of the incidental power vested in the Parliament is seen in relation to the judicial power. Many of the provisions of the Judiciary Act 1903 (Cth) and the High Court of Australia Act 1979 (Cth) have been enacted pursuant to this power read with the Judicature chapter of the Constitution (for example, ss 75, 76, 77 and 78). The Judiciary Act is concerned with the jurisdiction and powers of the High Court, the federal courts and State courts exercising federal jurisdiction. The High Court of Australia Act is concerned mainly with the formal structure of the High Court. Section 68(2)(b) of the Judiciary Act 1903 (Cth) concerns the exercise of federal criminal jurisdiction by State courts, including the power to commit for trial which was not per se an exercise of judicial power. In R v Murphy (1985) 158 CLR 596; 61 ALR 139 the court suggested that s 68(2)(b) might be supported by the incidental power, although s 77(iii) standing ‘alone would confer sufficient power’: at 614. The incidental power cannot be called in aid by the Commonwealth to support legislation reconstituting a State court exercising federal jurisdiction, nor to support legislation extending the jurisdiction of the High Court beyond the limits laid down in ss 75 and 76 of the Constitution.

EXCLUSIVE POWERS OF THE PARLIAMENT 417

Section 52. 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 — (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.

See Quick and Garran, 1901, pp 656–62 (Revised ed, 2015, pp 782–90); Ewens (1951) 25 ALJ 532; Attorney-General’s Department, 1980, pp 166–75; Howard, 1985, pp 220–2, 546–64; Constitutional Commission, 1988, Vol 1, pp 357–63, Vol 2, pp 749–53; Lane, 1997, pp 380–91; Hopper (1999) 73 ALJ 181; Twomey, 2004, pp 176–9; Lindell (2004) 15 Public LR 265; Burmester (2004) 15 Public LR 275; Carney, 2006, pp 399–402; Brown (2007) 28 Adel LR 113; Hanks, Gordon and Hill, 2012, pp 305–7; Pyke, 2013, pp 324–7; Keyzer, 2013, pp 65–7; Clarke, Keyzer and Stellios, 2013, pp 574–6. 418 Unlike s 51 which confers mainly concurrent powers upon the Commonwealth Parliament, s 52 grants exclusive power over three specified areas. It also refers to other matters declared by the Constitution to be within exclusive power. The three areas covered by s 52 are: (a) authority over the seat of government of the Commonwealth; (b) authority over all places acquired by the Commonwealth for public purposes; and (c) authority over matters relating to any department of the public service transferred by the Constitution to the Commonwealth. The interconnection between the heads of power is obvious. For example, not only does the Commonwealth have exclusive power over customs and excise (s 90), it also has [page 235] exclusive control over the Customs Department and customs buildings whether in Canberra or elsewhere. This power is expressed to be ‘subject to this Constitution.’ The power is

thus ‘subject to the generally applicable express and implied [constitutional] limitations’ that restrict Commonwealth legislative power. See R v Giannakopoulos (2013) 116 SASR 262; [2013] SASCFC 50; SLR [2013] HCATrans 324 at [6], [11], [65]–[66]. (i) The seat of government of the Commonwealth

419 The location of the seat of government is determined by s 125 of the Constitution. Section 52(i) gives the Commonwealth Parliament exclusive authority with respect to the seat of government. Section 122 of the Constitution grants to the federal Parliament authority over Territories, whether surrendered by a State or otherwise acquired by the Commonwealth. The Australian Capital Territory consists of territory surrendered by the State of New South Wales. There are two component parts of the Australian Capital Territory. There is the Territory itself, the area delineated by boundaries which were described in the legislation of New South Wales and that of the Commonwealth dealing with the surrender of the area and its acceptance by the Commonwealth. There is also the seat of government which is located within this Territory, that is, in Canberra. Although this distinction may have some effect upon the judicial administration of the Territory and possibly upon the application of certain constitutional prohibitions, for our present purposes there is no significance in the distinction. Where legislation is restricted to internal organisation (for example, where it applies to buildings, personnel or the administrative structure) support for that legislation will be found in s 52(i). A law regulating the times of employment of Commonwealth public servants in Canberra would be supportable under s 52(i) and not under s 122. Laws for the government of the Australian Capital Territory derive their support from s 122 rather than s 52(i). See Spratt v Hermes (1965) 114 CLR 226 at 257–8, 262–4, 278, 281–2, 291–2; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; 165 ALR 171; [1999] HCA 44 at [14], [24], [82]. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177

CLR 248; 109 ALR 1 Brennan, Deane and Toohey JJ suggested that s 52(i) constrained the scope of the Territories power in s 122: at 273. Section 52(i) appears to preclude the Australian Capital Territory from becoming a new State. However, Mason CJ, Dawson and McHugh JJ stated that it was ‘open to question’ whether the Australian Capital Territory could be admitted as a new State: at 266. Of course, as s 52(i) deals only with the seat of government it does not operate as a bar to the achievement of statehood by the Northern Territory: at 273. and all places acquired by the Commonwealth for public purposes

420 Under the second paragraph of s 52(i), the Commonwealth Parliament has exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to all places acquired by the Commonwealth for public purposes. [page 236] The question arises as to whether this means that the Commonwealth Parliament has exclusive authority for all purposes over any area of the State which has come under Commonwealth ownership by acquisition, or in any other way. The alternative suggestion is that the exclusive power of the Commonwealth relates merely to proprietary control, or at least to political control that is limited to the aspects of places acquired as places, that is, as public property. 421 The matter arose for determination by the High Court in Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89. By a 4–3 majority, the court adopted the wider view of the power. This case concerned the application of State building regulations to Commonwealth property located within the State. The regulations were made under State legislation enacted after 1901 and were therefore not within the operation of s 108. The regulations were made after the land had been acquired by the Commonwealth. Barwick CJ, Menzies and Windeyer JJ considered that the type of legislation which s 52(i) made exclusive to the Commonwealth was not

legislation applying specifically to Commonwealth places. In their view s 52(i) constituted the Commonwealth Parliament as the sole authority to exercise legislative power over places acquired by the Commonwealth and consequently the States had no legislative authority over such places: at 102–3, 120, 129–31. State legislation would be invalid in its application to Commonwealth places even though it was of a general nature. However, one of the majority judges (Walsh J) suggested that the type of law to which s 52(i) applied must be characterised as a law with respect to places, that is, as having ‘such a direct and substantial connexion with the places therein described that it can be said to be a law made with respect to them’: at 136. He had no difficulty in holding that the State law regulating building was such a law and therefore outside State power. In Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 the court refused an application to re-open this decision: at [5]. In R v Phillips (1970) 125 CLR 93 the High Court held that a State criminal law of general application, which was enacted prior to the acquisition of a Commonwealth place, did not apply to that Commonwealth place: at 101–3, 105, 108, 120–1. The effect of this decision is that the characterisation question is no longer relevant. All State laws enacted since 1901, whether general or not, and whether enacted prior to or subsequent to the date of the acquisition of the place by the Commonwealth, cannot by their own force operate in Commonwealth places. 422 Because of the grave problems raised by these decisions, the Commonwealth Parliament enacted the Commonwealth Places (Application of Laws) Act 1970 (Cth). This Act provides that State law is to operate in Commonwealth places within that State: s 4(1). The Commonwealth has thus exercised its power under s 52(i) by a general law assimilating the State law (except to the extent that the State law is inconsistent with Commonwealth legislation). However, a State law may operate in relation to an incidental matter pertaining to the place where the obligation relates not to the place, but is imposed upon a person having some relation with the place. See Bevelon Investments Pty Ltd v Melbourne City Council (1976) 135 CLR 530 at 535; 12 ALR 391.

In R v Holmes (1988) 93 FLR 405 the South Australian Court of Criminal Appeal upheld s 4 of the Commonwealth Places (Application of Laws) Act as a valid exercise of the power under s 52(i). Applying State law as Commonwealth law is not a relinquishment or abdication of legislative power to the State Parliaments: at 407, 412. The New South Wales Court of Criminal Appeal applied this decision in R v Porter (2001) 53 NSWLR 354; [2001] NSWCCA 441 at [27]; SLR [2003] HCATrans 592. [page 237] 423 In Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630; 140 ALR 189 McHugh, Gummow and Kirby JJ rejected an argument that a State law dealing with stamp duty did not infringe s 52(i) in its application to a Commonwealth place because the law concerned instruments not a place: at 675–6. A law which is general in operation may be a law with respect to a Commonwealth place: at 676. The power to make laws with respect to Commonwealth places pursuant to s 52(i) is independent of the powers in s 51 of the Constitution, and so is not subject to the restrictions which apply to s 51(ii), the taxation power: at 679. Gaudron J agreed with these three judges: at 661–2. Following this decision the Commonwealth enacted the Commonwealth Places (Mirror Taxes) Act 1998 (Cth). That Act applies certain State tax laws to Commonwealth places: s 6(2). The Act also empowered State treasurers to modify the application of State taxing laws: s 8(2). In Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 the court held that this provision was not an abdication of the exclusive legislative power over Commonwealth places since the federal Parliament retained the power to repeal or amend the federal statute: at [76]– [77]. It is arguable that the leasing of property by the Commonwealth for its own use does not amount to an acquisition of a place. This must be distinguished from the lease to another party by the Commonwealth of a property acquired by the Commonwealth.

In Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135; 119 ALR 305 a majority of the Queensland Court of Appeal considered that it was sufficient for the operation of s 52(i) that land was acquired by the Commonwealth for a public purpose and that it remained the property of the Commonwealth notwithstanding the granting by the Commonwealth of a lease on the land: at 140. A place does not cease to be a Commonwealth place if part of the place is leased to another party for a purpose that is incidental to the acquisition. See Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 at 675; 140 ALR 189. Federal power over a Commonwealth place is exclusive while the place is owned by the Commonwealth, but not after that ownership ends. See Paliflex Pty Ltd v Chief Commissioner of State Revenue (2003) 219 CLR 325; 202 ALR 376; [2003] HCA 65 at [46]–[47]; Barnett and Kulevski (2003) 6 Const L & Pol’y Rev 49. So far as the Territories are concerned, s 52(i) does not apply to places within the Northern Territory that the Commonwealth has acquired for public purposes. See Svikart v Stewart (1994) 181 CLR 548 at 560–1, 563, 566; 125 ALR 554. (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

424 This section makes explicit what otherwise would be implicit: the control of the administration of departments of the public service transferred from the States to the Commonwealth under s 69 is subject to the exclusive power of the Commonwealth Parliament. As Quick and Garran pointed out, matters relating to any department would clearly include ‘all matters relating to the organization, equipment, working, and management of the department, the appointment, classification, and dismissal of officers, and all the general body of law relating to its conduct and administration; … but it does not seem to cover the whole of the principal and substantive law dealing with the matters controlled or controllable by the department’. See Quick and Garran, 1901, p 660 (Revised ed, 2015, pp 787–8).

[page 238] The exclusive power conferred by s 52(ii) is conferred subject to the Constitution. Certain limitations upon the power are to be found in other sections of the Constitution, such as ss 84 and 85. See Le Leu v Commonwealth (1921) 29 CLR 305 at 314; Pemberton v Commonwealth (1933) 49 CLR 382 at 389, 397; Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 571–2. In Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495 Dawson, Toohey and Gaudron JJ held that s 52(ii) applied only to departments transferred to the Commonwealth under s 69, not to departments established under s 64, as was the Defence Department: at 435–6. Brennan CJ, McHugh and Gummow JJ agreed: at 424, 449, 462. The court treated s 52(ii) as a ‘mere transitional provision’. See Williams, Brennan and Lynch, 2014, p 1124. The Constitutional Commission recommended the repeal of s 52(ii). See Constitutional Commission, 1988, Vol 1, p 357. (iii) Other matters declared by this Constitution to be within the exclusive power of the Parliament.

425 Under this power, the Commonwealth has power to legislate with respect to matters declared to be exclusive by various sections of the Constitution. See Quick and Garran, 1901, pp 661–2 (Revised ed, 2015, pp 789–90). Section 90 gives the Commonwealth exclusive power over customs. Section 111 gives the Commonwealth Parliament exclusive power over a part of a State surrendered to the Commonwealth. There are other matters which are within exclusive power because of constitutional prohibitions directed against the States. For example, the coining of money is prohibited to the States: s 115. The effect of this prohibition is that the Commonwealth has exclusive power over coinage. In addition, there are other matters which by their nature are exclusive to the Commonwealth as being outside colonial power before Federation and therefore not having been vested in State Parliaments after Federation. Examples are the acquisition of property for Commonwealth purposes,

borrowing on the public credit of the Commonwealth, and certain of the railway powers. Most of the remaining powers conferred by s 51 and other sections are concurrent. Where the Commonwealth legislates under such a head of power it may, by virtue of s 109 of the Constitution, render inoperative pre-existing State law. In Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 Menzies J commented that this paragraph was ‘no doubt added for logical completeness’: at 120.

POWERS OF THE HOUSES IN RESPECT OF LEGISLATION 426 Section 53. 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. [page 239] 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.

See Quick and Garran, 1901, pp 662–73 (Revised ed, 2015, pp 790–805); SG Opinions No 1878 of 13 April 1950 and No 1881 of 21 April 1950; Richardson (1976) 50 ALJ 273; O’Brien (1976) 3 Mon ULR 8; Howard and Saunders/Ellicott/Eggleston in Evans, 1977, pp 262–8, 288–91, 297–301; Sawer, 1977, pp 107–40; Pearce in Zines, 1977, pp 119–49; Winterton, 1983,

pp 7–11; Constitutional Commission, 1988, Vol 1, pp 218–25, 243; Papers on Parliament No 19, 1993; Twomey, 1994; House of Representatives Standing Committee on Legal and Constitutional Affairs, 1995; Leeming (1995) 6 Public LR 131; Schoff (1996) 24 FL Rev 43; Senate Procedure Committee, 1996; Lane, 1997, pp 392–7; Clark (2006) 10 Legal History 145 at 180–4; Lawson (2008) 32 MULR 879 at 911–13; Appleby and Williams (2009) 20 Public LR 194; Wright, 2012, pp 420–2, 449–62; Evans and Laing, 2012, pp 343–6, 356–9, 364–8, 381–3, 389–402; Hanks, Gordon and Hill, 2012, pp 129–35; McClelland (2013) 24 Public LR 161; Arcioni (2013) 87 ALJ 784; Faulkner and Orr, 2013, pp 715–17 (no 1720); Pyke, 2013, pp 172–5; Clarke, Keyzer and Stellios, 2013, pp 781–3; Gerangelos et al, 2013, pp 671–6. 427 This section deals with the relationship between the Upper and Lower Houses in relation to money Bills. It provides that certain classes of Bills (those appropriating revenue or moneys or imposing taxation) shall not originate in the Senate. It classifies the types of financial Bills which are not included in the designation of money Bills. As to the amending power of the Senate, this section sets out three classes of money Bills which are not subject to amendment. However, the section recognises the right of the Senate to return such Bills requesting their amendment. Finally, it provides that in all other respects the Senate and the House shall have equal powers in relation to proposed laws. Proposed laws

428 The phraseology ‘proposed laws’ is significant. Its use in the first paragraph of s 53 and also in s 54 contrasts with the wording used in other sections, such as s 55 (laws). This phraseology imports a contrast between parliamentary control of Bills which are in the process of passing through Parliament and which are therefore subject to exclusive control by the Houses themselves, and the completed Act of Parliament which may be subject to judicial review if it does not comply with constitutional requirements. The controls that will be exercised to ensure that there is compliance with the first paragraph of s 53 are a vigilant president and the body of senators as a whole. If a Bill appropriating revenue or imposing taxation were introduced, it would be the duty of the

[page 240] Senate to reject any consideration of it ab initio. If the Bill happened to pass through the Senate and reach the House of Representatives, and a point of order were taken, it would be the duty of the Speaker of the House to uphold the point of order. See Quick and Garran, 1901, p 664 (Revised ed, 2015, p 792). However, if the Bill through some mischance were then passed by the Lower House, it would be beyond the cognisance of the courts to intervene, as they would then be dealing with what is parliamentary procedure cognisable according to the traditional view by the Houses of Parliament alone. See Osborne v Commonwealth (1911) 12 CLR 321 at 336, 352, 356. Apart from the special context of s 57, the High Court will not interfere with the intra-mural activities of Parliament, with which s 53 is concerned. See Western Australia v Commonwealth (1995) 183 CLR 373 at 482; 128 ALR 1. However, it is possible that the last paragraph of s 53 (read with s 1 establishing the Senate’s right to participate in the making of legislation) may be justiciable and in this respect may be comparable to the requirements of 55. Two classes of proposed Bills are prohibited from being introduced in the Senate: Bills appropriating moneys or imposing taxation. appropriating revenue or moneys

429 ‘An appropriation of revenue or moneys is the setting apart, assigning, or applying to a particular use or to a particular person a certain sum of money. It is an application of money already raised or an authority to spend money already available’. See Quick and Garran, 1901, p 665 (Revised ed, 2015, p 794). A distinction is drawn between revenue in the form of taxation and fees for services which the government receives and which is paid into the Consolidated Revenue Fund, and moneys which are raised by way of loan. Any money received from any of these sources can only be appropriated by an Act of Parliament. or imposing taxation

430 Laws imposing taxation are those by which money is raised by the imposition of financial charges or burdens on the community or part thereof. Such Bills cover a wide range of financial exactions such as income tax, customs and excise duties, and succession or estate duties. shall not originate in the Senate.

431 The purpose of this part of s 53 is to adopt a basic principle of British constitutional law: that Bills dealing with the appropriation of revenue or imposing taxation shall originate only in the Lower House. See Odgers, 1991, p 564. The formulation of the revenue requirements for the financial year is therefore to be determined by the government of the day, with the formulation of the Budget being the primary responsibility of the Treasurer, who will inevitably be a member of the Lower House. It is therefore clear that it was not to be the task of the Senate to take the initiative in formulating such basic proposals of government. See Evans and Laing, 2012, p 390. [page 241]

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.

432 The effect of these words is that certain classes of money Bills are excepted from the prohibition of origination in the Senate: Bills dealing with fines and other penalties and Bills dealing with fees for licences or services. Bills providing for the imposition of fines would include Bills which imposed a monetary penalty for the breach of their provisions. This would be the case of a great number of Acts which regulate a specific subject matter within Commonwealth power and provide for enforcement of obligations by way of monetary penalty for their contravention. Proposed Bills relating to fees for licences and services are those which

require some payment on the part of the citizen for a right conferred by a Commonwealth Act or for services performed by a Commonwealth body or instrumentality. In its unanimous joint judgment in Air Calédonie International v Commonwealth (1988) 165 CLR 462; 82 ALR 385 the High Court said that ‘the reference to “fees for services” in s 53 should … be read as referring to a fee or charge exacted for particular identified services provided or rendered individually to, or at the request or direction of, the particular person required to make the payment’: at 469–70. Although it was argued in the Convention Debates that the right of the Senate to initiate this type of Bill whittled away the originating power of the House of Representatives, it seems clear that the power of the Senate in relation to initiation of these classes of Bills would not provide an onerous burden upon governmental policies. If the Senate’s power were restricted in this respect it would automatically follow that its power of amendment would also be greatly reduced. When the responsible Minister in relation to a Bill is a senator it is possible for the Bill to be originated in the Senate without an appropriation clause and when it reaches the House of Representatives to be amended by inclusion of an appropriation clause. This would allow initiation in the Senate without infringing the prohibition in relation to revenue and taxation Bills. See Odgers, 1991, pp 567–8. (Of course, the amended Bill must be returned to the Senate.) The Senate may not amend proposed laws imposing taxation

433 Under the second paragraph of s 53, the Senate may not amend Bills imposing taxation or Bills appropriating revenue or moneys for the ordinary annual services of the government. This part of s 53 gives recognition to the superior authority of the government in relation to revenue policy to the extent that the second chamber is not authorised to make any amendments to Bills of the categories specified. However, not all appropriation Bills are excluded from amendment by the Senate. A distinction is drawn between appropriation Bills dealing with the ordinary annual services of the government and those which are not of this nature (such as those dealing with ‘extraordinary’ appropriations).

or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

[page 242] 434 Quick and Garran pointed out that public expenditure may be considered under three separate headings: (a) the costs and expenses of maintaining the ordinary annual services; (b) fixed charges or permanent appropriations; and (c) extraordinary charges and appropriations. See Quick and Garran, 1901, p 669 (Revised ed, 2015, p 799). The first category, comprising recurring expenditure for ordinary administrative purposes, is the basic form of appropriation. Votes in the estimates contain the allocation of expenditure under the headings of various departments of the Commonwealth and statutory authorities. The second category consists of charges of a permanent nature, that is, which extend beyond a particular year. These appropriations are made in some cases by the Constitution (for example, the salary of the Governor-General), and in other cases by specific Acts of Parliament. As to the third category, Quick and Garran defined extraordinary charges as ‘appropriations of revenue or loan money for the construction of public works and buildings, and for the application of revenue or loan money to public purposes of a special character’. See Quick and Garran, 1901, p 670 (Revised ed, 2015, p 801). It is this last class of expenditure to which some difficulty of classification attaches in the light of the involvement of government in establishing public works and services. The traditional viewpoint would demand that all these votes for works and services should be included in a special appropriation Bill which would be subject to amendment by the Senate. However, taking account of modern governmental policies, the appropriation for public works and buildings might fall within the category of ordinary annual services and therefore be excluded from amendment by the Senate. However, the early

practice of the Senate had tended to confirm the view that expenditure Bills of this nature are amendable. See Odgers, 1991, pp 575–6, 582.

435 The annual appropriations required by ss 53 and 54 may be subdivided into two main categories. The first category are those ‘for the service of the year’, that is, for the annual services of government, contained in Appropriation Bill (No 1). See Brown v West (1990) 169 CLR 195 at 207; 91 ALR 197. This Bill provides for ‘continuing expenditure by government agencies on services for existing policies’. See Wright, 2012, p 428. The second category are those ‘in respect of the year’: the Appropriation Bill (No 2). This Bill appropriates moneys for capital works, s 96 grants, and new policies not authorised by special legislation. See Brown at 207; Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [472]. Since 1999 the annual appropriations do not expire at the end of the financial year. See Wright, 2012, p 428. The various Appropriation Bills are summarised in Webb, 2007 and Harris, 2012, pp 423–37. The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

436 This provision operates to prevent amendments being made to a Bill passed by the House of Representatives in such a way that the appropriation of money needed for fulfilling the purposes of the Bill is increased. Such amendments would have the effect of increasing the burden upon citizens through a higher taxation burden or other measures. See Sawer, 1956, pp 30– 1; Sawer, 1963, p 65. However, the Senate can still amend such money Bills so as to reduce the total amount of expenditure or ‘to change the method, object, and destination of the expenditure, but not to increase the total [page 243] expenditure originated in the House of Representatives’. See Quick and Garran, 1901, p 671 (Revised ed, 2015, p 802). In 1995 a Parliamentary committee recommended that both Houses conclude a compact concerning the application of this paragraph. See House of Representatives Standing Committee on Legal and Constitutional Affairs, 1995, pp 157–65.

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.

437 The power of the Senate to request amendments to any proposed law which it may not amend is a potent weapon in effecting reconsideration by the House of Representatives of provisions with which the Senate does not agree. The question to be determined is whether the Senate can press its requests and, by doing so, thwart the passage of a Bill already passed by the House, or whether it is limited to one request and on this being rejected by the House, is required to proceed with the passage or rejection of the Bill. One view is that the words ‘at any stage’ imply the former interpretation of the power, and the Convention debates support this view. On the other hand, if the words ‘at any stage’ are interpreted in a ‘technical parliamentary sense’ as referring to any stage of the passage of a Bill, it could be said that the words do not authorise more than one request by the Senate which may be made at any of these stages. See Odgers, 1991, p 615. Quick and Garran took the view that if a request of the Senate is not complied with, the Senate must take the full responsibility for accepting or rejecting the Bill as it stands. See Quick and Garran, 1901, p 671 (Revised ed, 2015, p 803). On the other hand, on a number of occasions the Senate has taken the view that a request can be pressed. See Sawer, 1956, pp 80, 214; Pearce in Zines, 1977, pp 126–30; Wright, 2012, pp 457–62. This view means that the difference between the power of requesting amendments and the power of amendment becomes a purely formal one if the Senate decides to insist on its request. The House of Representatives has considered reiterated requests on several occasions. See Wright, 2012, p 457. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

438 The overall effect of the concluding paragraph of s 53 was summarised by Quick and Garran, 1901, p 673 (Revised ed, 2015, p 805) as follows: Subject to the exceptions of (1) its inability to originate Bills appropriating revenue or money, or imposing taxation, (2) its inability to amend Bills imposing taxation, and (3) its inability to amend

an annual appropriation Bill, and subject also to the limitation that in amending other appropriations, it cannot increase the charges or burdens on the people, it is declared by the Constitution that the Senate shall have equal powers with the House of Representatives in respect to all proposed laws. The Senate has co-ordinate power with the House of Representatives to pass all Bills or to reject all Bills. Its right of veto is as unqualified as its right of assent. But though the veto power of the Senate, so far as this section is

[page 244] concerned, may be absolute, it is subject to be reviewed by the procedure provided for in the deadlock clause (s 57).

The basic powers of the Senate under this section were affirmed by a majority of the judges in dicta in Victoria v Commonwealth (1975) 134 CLR 81; 7 ALR 1. Barwick CJ stated (at 121): The Senate is a part of the Parliament and, except as to laws appropriating revenue or money for the ordinary annual services of the Government or imposing taxation, is co-equal with the House of Representatives. Bills may originate and do originate in the Senate. Section 53 of the Constitution makes it abundantly clear that the Senate is to have equal powers with the House of Representatives in respect of all laws other than those specifically excepted. The only limitations as to the equality of the powers of the Senate with those of the House of Representatives are those imposed by the first three paragraphs of that section, to the terms of which the limitations must be confined.

Gibbs J expressed the following opinion (at 143): The power of the Senate to reject a proposed law — a power implicit in its position as one of the chambers of a bicameral legislature — is left untouched by s 53 so that the Senate may reject any proposed law, even one which it cannot amend. Moreover, under the Constitution the House of Representatives has no power to control the Senate in the exercise of its functions and in particular cannot compel the Senate to give immediate or prompt consideration to any particular measure.

Stephen J also affirmed the role of the Senate in similar terms (at 168): The Senate, except as to money Bills, possesses legislative power in no way inferior to the House. It has full power of initiation, rejection and amendment of Bills coming from the House and even in the case of money Bills has the right freely to request amendments or to reject outright. These powers, unusual in a modern upper House, reflect the federal character of our polity.

Finally, Mason J (at 185) stated that: In the exercise of its power under s 53 the Senate deliberates upon proposed laws initiated by the House; its power to pass or reject them is unconfined by s 53 or any other provision of the

Constitution; and its power to otherwise deal with them is also unconfined save in so far as contrary provision is made by the exceptions.

The 1975 double dissolution 439 In October and November 1975 the government did not have a majority in the Senate. On several occasions the Senate passed a motion to defer appropriation Bills which had been passed by the House of Representatives ‘until the Government agrees to submit itself to the judgment of the people’. The Senate did so in evident reliance upon the final paragraph of s 53 of the Constitution which granted it equal power with the House of Representatives (except in relation to three restrictions upon its powers laid down in previous paragraphs of the section). The government argued that by convention the Senate did not have the power to act in this way in relation to an appropriation Bill. Money was running out for the basic services of government. The government argued that the means were available to find additional sums of money to carry on. On 11 November the Governor-General (Sir John Kerr), acting under s 64 of the Constitution, withdrew the Commission of the Prime Minister (Gough Whitlam). The Governor-General commissioned the Opposition Leader (Malcolm Fraser) to form a caretaker government on the understanding that Supply would be granted and that a dissolution would be recommended. The appropriation Bills were then passed by the Senate. [page 245] In the House of Representatives a motion of no confidence in the new caretaker Prime Minister and his government was passed before the double dissolution was proclaimed. The double dissolution was granted to the new Prime Minister on the basis of some 21 Bills which had fulfilled the requirements of s 57. 440 The following extract is taken from the Governor-General’s statement of the reasons for his decision to dismiss the government:

The deadlock which arose was one which, in the interests of the nation, had to be resolved as promptly as possible and by means which are appropriate in our democratic system. In all the circumstances which have occurred the appropriate means is a dissolution of the Parliament and an election for both Houses. No other course offers a sufficient assurance of resolving the deadlock and resolving it promptly. Parliamentary control of appropriation and accordingly of expenditure is a fundamental feature of our system of responsible government. In consequence it has been generally accepted that a government which has been denied supply by the Parliament cannot govern. So much at least is clear in cases where a ministry is refused supply by a popularly elected Lower House. In other systems where an Upper House is denied the right to reject a money bill denial of supply can occur only at the instance of the Lower House. When, however, an Upper House possesses the power to reject a money bill including an appropriation bill, and exercises the power by denying supply, the principle that a government which has been denied supply by the Parliament should resign or go to an election must still apply — it is a necessary consequence of Parliamentary control of appropriation and expenditure and of the expectation that the ordinary and necessary services of government will continue to be provided. The Constitution combines the two elements of responsible government and federalism. The Senate is, like the House, a popularly-elected chamber. It was designed to provide representation by States, not by electorates, and was given by s 53, equal powers with the House with respect to proposed laws, except in the respects mentioned in the section. It was denied power to originate or amend appropriation bills but was left with power to reject them or defer consideration of them. The Senate accordingly has the power and has exercised the power to refuse to grant supply to the Government. The Government stands in the position that it has been denied supply by the Parliament with all the consequences which flow from that fact. There have been public discussions about whether there is a convention deriving from principles of responsible government that the Senate must never under any circumstances exercise the power to reject an appropriation bill. The Constitution must prevail over any convention because, in determining the question how far the conventions of responsible government have been grafted on to the federal compact, the Constitution itself must in the end control the situation. Section 57 of the Constitution provides a means, perhaps the usual means, of resolving a deadlock between the Houses with respect to a proposed law. But the machinery which it provides necessarily entails a considerable time lag which is quite inappropriate to a speedy resolution of the fundamental problems posed by the refusal of supply. Its presence in the Constitution does not cut down the reserve powers of the Governor-General. [Simultaneous Dissolution, 1979, pp 3–4; Sawer, 1977, pp 209–10; Kelly, 1995, pp 348–9]

The Governor-General also indicated that he would have rejected advice for a half-Senate election. He considered that if such an election had been held while Supply was denied, that would not have led to a resolution of the deadlock ‘in accordance with proper principles’. 441 The Governor-General’s decision may be taken as affirming the fundamental position of the Senate in the Australian parliamentary system. In

particular, the following conclusions may be derived from his decision and the reasons given in his statement: [page 246] (a)

(b) (c) (d)

(e)

(f)

(g)

It accords with the prior dicta expressed in the Petroleum and Minerals Authority case (Victoria v Commonwealth (1975) 134 CLR 81; 7 ALR 1) that under s 53 the Senate may reject a Bill appropriating moneys for the annual services of government. In the language of s 57 the action may take the form of a positive rejection in the sense of a negative vote on a motion for a second reading or a vote having similar effect or it may take the form of a ‘failure to pass’. Section 53 therefore prevails over any alleged convention that the Senate would abstain from exercising its power to reject or defer such a Bill. The rationale for the exercise of this power by the Senate is founded on the basis that it is a popularly-elected States House. The convention of responsible government requires that the government will be chosen from the party or parties having the majority of members in the House of Representatives. The federal principle from which the powers of the Senate are derived imports a responsibility on the part of the government to the Upper House in exercising its legislative powers under s 53. The principle of responsible government requires a government which is denied moneys for the annual services of government by the House of Representatives either to resign or advise an election. A combination of the principles of responsible government and federalism requires a government which is denied such moneys by the Senate either to resign or advise an election. If the Prime Minister does not adopt this course of action, the GovernorGeneral may exercise a reserve power of dismissal of the Prime Minister and the government, and commission an alternative government with caretaker status to secure the appropriation of moneys and to advise a dissolution with a consequent election.

(h) If the conditions exist in relation to any Bill for advising a double dissolution under s 57, the election will be for both Houses after the proclamation of a double dissolution. (i) If such conditions do not exist, the House of Representatives alone would be subject to dissolution under s 5. A half-Senate election may also be held if such an election is due under s 13. There is no power to dissolve the Senate except under s 57. See Goldring (1975) 49 ALJ 521 at 527.

APPROPRIATION BILLS 442 Section 54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.

See Quick and Garran, 1901, pp 673–4 (Revised ed, 2015, pp 805–6); Sawer, 1956, p 30; Attorney-General’s Department, 1980, pp 178–9; Twomey, 1994; Lane, 1997, pp 392–7; Evans and Laing, 2012, pp 346–7; Hanks, Gordon and Hill, 2012, pp 134–5; Clarke, Keyzer and Stellios, 2013, pp 781–3. 443 The purpose of this section is to forbid tacking, that is to say the attachment to the annual appropriation Bill of matter foreign to the ordinary annual services of the government. In so far as the Senate is, under s 53, forbidden to amend ordinary appropriation Bills, this section strengthens the position of the Senate in this regard. It prevents the Senate from being subjected to a situation whereby a Bill contains not only appropriations for ordinary annual services but certain other types of appropriations. [page 247] Nothing is said in s 54 as to the effect of a proposed law which does contain foreign matter. In so far as the phrase ‘proposed law’ is used in this section in the same way as it is used in s 53, it would appear that if the Bill were enacted into law it would not be subject to invalidation by a court. See Osborne v

Commonwealth (1911) 12 CLR 321 at 336, 352, 356, 373; Buchanan v Commonwealth (1913) 16 CLR 315 at 329; Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 at 578; 112 ALR 87. ‘The objection must be taken in the Senate before that chamber gives its assent to the proposed law’. See Quick and Garran, 1901, p 674 (Revised ed, 2015, p 806).

TAX BILL 444 Section 55. 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.

See Quick and Garran, 1901, pp 674–9 (Revised ed, 2015, pp 807–13); Opinion No 1910 of 5 October 1950; Attorney-General’s Department, 1980, pp 179–85; Twomey, 1994; Lane, 1997, pp 397–404; Sharp (2005) 33 FL Rev 569; Marinac (2006) 34 FL Rev 355; Wright, 2012, pp 438–41; Evans and Laing, 2012, pp 346–7, 374–5, 384–8; Hanks, Gordon and Hill, 2012, pp 136–42; Faulkner and Orr, 2013, pp 314–15, 545, 717–19 (nos 1521, 1631, 1721); Pyke, 2013, pp 231–9; Keyzer, 2013, pp 154–5; Clarke, Keyzer and Stellios, 2013, pp 783–93; Gerangelos et al, 2013, pp 671–98; Spadijer (2014) 43 Aust Tax Rev 204; Wilson-Rogers (2015) 44 Aust Tax Rev 242. Laws imposing taxation shall deal only with the imposition of taxation

445 As with the previous section, the intention of the founders in relation to this paragraph was that the Senate should not be required to consider a Bill which included not only the imposition of taxation but also other foreign matter. In other words this section was designed to prevent the tacking of extraneous provisions onto a law imposing taxation. It was the view of the Convention delegates that in so far as the Senate was prevented from amending taxation Bills, it was desirable to prevent the government of the day from tacking onto a tax Bill other matters in such a way as to prevent the

Senate from amending the Bill as a whole. See Quick and Garran, 1901, pp 675–7 (Revised ed, 2015, pp 808–10). There has been considerable discussion of the meaning of the phrase ‘laws imposing taxation’. In the early case of Osborne v Commonwealth (1911) 12 CLR 321, a Land Tax Assessment Act contained provisions for the assessment and collection of tax. Barton J stated: ‘It is not every Statute dealing with the imposition of taxation that is a taxing law. In terms the Assessment Act does not purport to be such a law. It certainly is “An Act relating to”, that is, it “deals with”, “the Imposition, Assessment and Collection of a Land Tax”. That does not make it a law imposing taxation’: at 349. The learned judge went on to point out that the powers for assessment and collection were proper to an Act not imposing taxation: at 350. [page 248] The opinion that assessment and machinery provisions relating to taxation are properly dealt with together, but separately from the Act imposing taxation, without infringing the constitutional requirement, has been accepted by successive Commonwealth governments. As the High Court pointed out in State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329; 73 ALR 161, as a result of ss 53 and 55 the Commonwealth passes a separate Income Tax Act which imposes taxation and a separate Assessment Act that provides for its assessment and collection: at 341. See similarly Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 at [5]. 446 In Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 186–7 Isaacs J said that the provisions of an Assessment Act dealing with the definition of taxable income did not constitute a law imposing taxation. In the course of his judgment he rejected three arguments concerning the meaning of s 55: (1) that no enactment is a “law” imposing taxation within the meaning of the Constitution unless it directly or by reference completely provides for subject matter, rates and persons liable;

(2) that a law still deals only with the “imposition” of taxation if it also enacts provisions regulating the assessment, levy, collection and enforcement of the tax, with penalties, including creation of tribunals and the investment of judicial power; and (3) that if an Act imposing taxation incorporates an existing Assessment Act, the independent Assessment Act thereby itself becomes a law imposing taxation. In Re Dymond (1959) 101 CLR 11 it was stated that ‘provisions for administration and machinery, the appointment and powers and duties of a commissioner of taxation, the making of returns and assessments, the determination of questions of law and fact relating to liability, the collection and recovery of tax, [and] the punishment of offences … cannot be said to deal with the imposition of taxation’: at 21. In Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 the challenged legislation was not divided into separate taxing and assessment laws: at [51]. The majority held that the first limb of s 55 permitted the inclusion in the taxing statute of provisions that are ‘incidental … to the assessment and collection of the tax’: at [68]–[70]. They also stated that only the statute imposing the tax is subject to the first paragraph of s 55: at [40]. A law that does not have the ‘purpose or effect of raising revenue’ for the government does not impose taxation. In Luton v Lessels (2002) 210 CLR 333; 187 ALR 529; [2002] HCA 13 the court held that the system for the collection and registration of child support maintenance did not impose taxation: at [9], [79]. It was a system for the ‘creation and adjustment of private rights and liabilities’: at [14], [79]. The payments were to be made between private parties, not to the Commonwealth. The system enforced those private obligations by extinguishing the obligation to pay another private party, and replacing it with an obligation to pay the Commonwealth the same amount: at [60], [177]. While the moneys collected were paid into the Consolidated Revenue Fund, that did not conclusively establish that the system imposed a tax: at [55], [80], [111]. Not every amount paid into Consolidated Revenue is a tax: at [58]. The scheme was a ‘mechanism for the enforcement of a pre-existing

private liability’: at [14], [79]. The Commonwealth collected the payments on behalf of the parent who was to be paid child support. The Commonwealth paid these moneys to the parent and received no revenue from the arrangement: at [7], [79], [177]. The system thus did not have the ‘purpose or effect of raising revenue’ for the government: at [16], [79], [119]–[121], [177]. [page 249] 447 The position of an amending Act has been examined in several cases. In Air Calédonie International v Commonwealth (1988) 165 CLR 462; 82 ALR 385 a ‘fee for immigration clearance’ was introduced into the Migration Act by an amending Act. The court unanimously invalidated the amendment. It had been argued that s 55 applied only to the amending Act not to the principal Act as amended. Because the Migration Act dealt with matters other than taxation, the purported insertion of a tax into the Act was invalid: at 471. Section 55 ‘requires that both an amending Act imposing taxation and the amended principal Act deal only with the imposition of taxation’: at 471–2. In Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; 112 ALR 53 the majority invalidated an amending Act dealing with taxation on the ground that the principal Act dealt with other matters. An amending Act had sought to insert a blank tape royalty into the Copyright Act 1968 (Cth). Such an Act levying a ‘tax to be applied for the benefit of a particular group in the community’ imposed taxation for the purposes of s 55: at 507. The majority commented that it ‘is essential to the validity of a law or proposed law “imposing taxation” for the purposes of ss 53–55 of the Constitution that the moneys raised by such a law shall form part of the Consolidated Revenue Fund whence they shall be appropriated by law “for the purposes of the Commonwealth”’: at 506. Dawson, Toohey and McHugh JJ dissented. They considered that the blank tape royalty was not a tax for the purposes of s 55. Taxes were raised for public purposes or public revenue: at 524, 529. 448 In 1993 the Senate engaged in a constitutional dispute with the House of Representatives regarding an ‘omnibus’ Bill which combined various types of tax Bills which amended rates set in earlier Acts. The House considered that

the Bills were not Bills imposing taxation (the imposition being effected by the earlier ‘rates’ Acts). The Senate argued to the contrary. After a Senate Committee presented a report upholding the Senate position, the government split the ‘omnibus’ Bill into several separate Bills. See Senate Legal and Constitutional Affairs Committee, 1993, pp 277, 321; note (1994) 5 Public LR 60; Senate Hansard, 27 September 1993, pp 1183–1214; Evans and Laing, 2012, pp 385–6. In Health Insurance Commission v Peverill (1994) 179 CLR 226; 119 ALR 675 it was held that s 55 was not infringed by the reduction of Medicare benefits through retrospective legislation because no tax had been imposed: at 237–8, 246, 251–3, 256, 268. This reduction did not impose any obligation to make any payment to the Commonwealth or a statutory authority: at 237. and any provision therein dealing with any other matter shall be of no effect.

449 In contrast to the language used in ss 53 and 54 (proposed laws), the language of s 55 leaves no doubt as to the effect of non-compliance with the requirements set out in the first paragraph. The offending clause or clauses are invalid. The provisions dealing with the imposition of taxation still stand. See Quick and Garran, 1901, pp 676–7 (Revised ed, 2015, pp 809–10). In Air Calédonie International v Commonwealth (1988) 165 CLR 462; 82 ALR 385 the amending Act alone was invalid, leaving the principal Act unaffected: at 472. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only

[page 250] 450 The requirement that a Bill deal with one subject of taxation only means that Acts imposing taxation (excluding laws imposing duties of excise and customs) must not impose separate and independent taxes. The purpose of this paragraph is to preserve the Senate’s right to reject specific types of taxes if it so desires, without rejecting a tax Bill as a whole. See Quick and Garran,

1901, p 678 (Revised ed, 2015, p 812). Thus a taxing Act cannot combine provisions imposing taxes on both income (income tax) and sales (sales tax). In a number of cases the High Court has been faced with the question of whether a particular tax Bill dealt with only one subject of taxation. In Harding v Federal Commissioner of Taxation (1917) 23 CLR 119 the Act in question provided that the income of any person should, for the purposes of the Income Tax Act, include five per cent of the capital value of land and improvements used for the purpose of residence by the taxpayer. It was held that this did not deal with a subject of taxation other than income (land). Only one subject (income) was dealt with by the Act: at 141, 142. Isaacs J said (at 135): The test … is whether, looking at the subject matter which is dealt with as if it were a unit by Parliament, it can then, in the aspect in which it has been so dealt with, be fairly regarded as a unit, or whether it then consists of matters necessarily distinct and separate.

In Resch v Federal Commissioner of Taxation (1942) 66 CLR 198 Dixon J said that ‘the expression “one subject of taxation” appears to imply that some recognized classification of taxes exists according to subject matter’. He continued (at 223): But in fact that was never so. Economists and lawyers have for their different purposes referred taxes to categories, the one for their incidence and economic consequences and the other for the legal mechanism employed to secure their collection and for their operation upon the creation, transfer and devolution of rights. But these are not the considerations to which s 55 is directed. It is concerned with political relations, and must be taken as contemplating broad distinctions between possible subjects of taxation based on common understanding and general conceptions, rather than on any analytical or logical classification.

In Resch’s case an income tax provision imposing a tax on profits of a capital nature was not regarded as contravening the second paragraph of s 55 as being combined with a tax on profits in the nature of income: at 210–11, 213, 225– 6, 231. The effect of these decisions is that an income tax Act might select as a criterion for the imposition of taxation the receipt of money, or the possession of land or chattels, and may provide for the calculation of the tax in such a way that it is not restricted to ordinary annual income. See also Austin v Commonwealth (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3 at [199]. 451

In State Chamber of Commerce and Industry v Commonwealth (1987) 163

CLR 329; 73 ALR 161 Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ stated that the test of whether a law deals with a single matter of taxation only is whether the matter dealt with by the law is to be regarded as a unit or as a series of distinct and separate matters: at 344. The court’s standard of review is somewhat deferential — it gives weight to Parliament’s own assessment that the Act deals with one subject of taxation only. The court will interfere with Parliament’s judgment only in a clear case: at 344. It had been argued that the Act’s subject was fringe benefits taxation on private sector employment. It was argued that the Act was invalid as it dealt with other types of fringe benefits as well. The court disagreed, finding that the Act dealt only with a single subject of fringe benefits taxation: at 349–50. In O’Meara v Commissioner of Taxation (2003) 128 FCR 376; [2003] FCA 217 the Goods and Service Tax imposition law was challenged as dealing with more than one subject of taxation, as it dealt with the taxation of both goods and services: at [17]. The Federal Court [page 251] held that the Act dealt with a single subject of taxation. That single subject of taxation was ‘private final consumption’: at [24]. In Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 a Commonwealth law provided for the application of State taxing laws to Commonwealth places: at [16]. The statute was challenged as dealing with more than one subject of taxation. The court rejected the challenge, holding that the subjects dealt with by the statute constituted a unit rather than a series of disparate subjects: at [54]. This paragraph of s 55 is not merely directory and total invalidity is the fate of any law that does not comply with it. See State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 342; 73 ALR 161. Partial invalidity is not possible as there is no way to identify which is the offending subject of taxation: at 343. 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.

452 The meaning of this paragraph is obvious. It prevents the combination of duties of excise with duties of customs but it does not prevent any number of tariff items being dealt with in an excise or customs Bill. However, the paragraph requires that such laws deal only with duties of customs or duties of excise in the particular law. See Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation (1992) 173 CLR 450 at 471; 104 ALR 545. It must be pointed out that nothing is said in the second paragraph of s 55 as to the effect of non-compliance with the section. Quick and Garran suggested that ‘[w]here the Constitution intends that one portion of an Act only shall be of no effect and the rest operative it is so expressed. The only conclusion is that an Act embodying a plurality of taxes would be absolutely and completely ultra vires’. See Quick and Garran, 1901, p 679 (Revised ed, 2015, p 813). 453 In Ha v New South Wales (1997) 189 CLR 465; 146 ALR 355 the majority argued that the ‘criterion of inland taxes on goods serves to identify clearly duties of excise for the purposes of s 55’: at 497. An excise statute was challenged in Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation (1992) 173 CLR 450; 104 ALR 545. The court held that s 55 was infringed by a provision in an excise law which deemed swimming pools constructed on site to be manufactured goods liable for sales tax: at 460–1, 464. The court considered that this was a tax upon land rather than a tax on goods. Since s 55 required that a law imposing an excise could deal only with duties of excise, it was violated by the inclusion of this nonexcise tax in the law. The relevant provision was of no effect: at 471. Dawson, Toohey and Gaudron JJ said that the better view was that noncompliance with the second paragraph of s 55 led to total invalidity: at 470. However, they found that where the requirement that laws imposing duties of excise may deal only with duties of excise had been infringed, ‘that situation is closer to that dealt with by the first paragraph and, although the words “and any provision therein dealing with any other matter shall be of no effect” do not appear at the end of the second paragraph, we think that it should be read in an appropriate case as if they do’: at 471. Mason CJ, Brennan and McHugh JJ agreed: at 453.

Finally, a law enacted under s 52(i) of the Constitution (exclusive lawmaking power over Commonwealth places) must comply with s 55. See Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 at [36]–[37]. [page 252]

RECOMMENDATION OF MONEY VOTES 454 Section 56. 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.

See Quick and Garran, 1901, pp 679–83 (Revised ed, 2015, pp 813–8); Constitutional Commission, 1988, Vol 1, pp 243–7; Lane, 1997, pp 404–5; Wright, 2012, pp 399–400, 454–5; Hanks, Gordon and Hill, 2012, pp 134–5; Evans and Laing, 2012, pp 347–8, 397; McClelland (2013) 24 Public LR 161; Clarke, Keyzer and Stellios, 2013, pp 781–3. 455 This section is designed to strengthen the control by the executive over the expenditure of moneys by requiring that no action shall be taken to pass a Bill, whether in the House or the Senate, unless the purpose of the appropriation has been approved by it. Consequently, a motion from the floor of either House for the appropriation of moneys could not be passed, either as a resolution or as a Bill, unless the executive had approved the purpose of the appropriation. The executive thus initiates the process of appropriating moneys. See Combet v Commonwealth (2005) 224 CLR 494; 221 ALR 621; [2005] HCA 61 at [143], [227]. While no appropriation Bill for the ordinary annual services of the government can originate in the Senate, Bills appropriating moneys derived from fines or penalties may do so. This clause is directed against passage of any Bill appropriating moneys whether it originates in either the House of Representatives or the Senate. The following opinion regarding s 56 was given by the Solicitor-General, Sir Kenneth Bailey, in the 1950s:

The effect of this provision in regard to an Appropriation Bill would seem to be that the Governor-General must address a message to the House of Representatives recommending the granting of supply to cover the detailed estimates of expenditure attached to the message. This message must be received by the House before the law which will make the appropriation is passed by the House. Those are the only requirements for section 56. Presumably it is politically desirable that the Governor-General’s message, making known to the House the details of the Estimates prepared by the Executive Government, should be received by the House before it proceeds to debate the details of the proposed expenditure. [Odgers, 1991, p 588]

The Constitutional Commission recommended that the words ‘GovernorGeneral in Council’ be substituted for the words ‘Governor-General’ in s 56 so as to ‘make it clear that the Crown’s financial initiative is exercisable by the Governor-General only on Ministerial advice’. See Constitutional Commission, 1988, Vol 1, p 243.

DISAGREEMENT BETWEEN THE HOUSES 456 Section 57. 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 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 [page 253] 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.

See Quick and Garran, 1901, pp 683–8 (Revised ed, 2015, pp 818–24); Opinions No 1905 of 27 September 1950 and No 1908 of 2 October 1950; Richardson (1962) 1 U Tas LR 706; Lane (1974) 48 ALJ 515; Bullock (1976) 43 The Table 10; Sawer (1976) 8 FL Rev 45; Zines/Reid/Bayne in Evans, 1977, pp 217–50; Sawer, 1977, pp 42–64; Diplock (1977) 8 Syd LR 223; Attorney-General’s Department, 1980, pp 185–9; Renfree, 1984, pp 161–9; Howard, 1985, pp 98–110; Comans (1985) 15 FL Rev 241; Constitutional Commission, 1988, Vol 1, pp 247–62; Carney (1989) 18 FL Rev 178; Lane, 1997, pp 406–19; Williams/Evans (1998) 1 Const L & Pol’y Rev 35, 39; Healy, 2000; Richardson in Lindell and Bennett, 2001, pp 291–332; Mason in Lee and Winterton, 2003, pp 213–28; McGrath, 2003, pp 109–36; Lindell in McCormack and Saunders, 2007, pp 45–51; Ratnapala and Crowe, 2012, pp 74–81; Wright, 2012, pp 470–92; Evans and Laing, 2012, pp 348–9, 693–704, 736–42; Hanks, Gordon and Hill, 2012, pp 150–9; Faulkner and Orr, 2013, pp 234–5 (no 1477); Clarke, Keyzer and Stellios, 2013, pp 805–17, 848–51; Williams, Brennan and Lynch, 2014, pp 706–20. 457 Deadlocks between the two Houses of Parliament may be resolved in the manner prescribed by this section. It envisages a staggered procedure involving a dissolution of both Houses in the event of a repeated disagreement between the two Houses. If the Bill is recommitted by the government after the elections for both Houses and disagreement still exists, then a joint sitting of both Houses may be held when voting on the Bill takes place. 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 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.

[page 254] 458

The purpose of s 57 is to allow for the resolution of conflicts between

the Houses, which continue for a specified period of time, by dissolution of both Houses. The first paragraph of s 57 imposes the following requirements for the setting in motion of the dissolution procedure. The Bill must be rejected by, or fail to pass in the Senate, or amended by the Senate in a way that is unacceptable to the House of Representatives. An interval of three months must elapse and then the House of Representatives must again pass the proposed law with or without the amendments made by the Senate. If the Senate again rejects or fails to pass the Bill, or passes it with amendments that are unacceptable to the House, the Governor-General may dissolve both Houses. However, such a dissolution cannot take place within six months before the date of expiry of the House of Representatives by effluxion of time (that is, after a period of two and a half years from the first meeting of the House). Some authorities have argued that the deadlock procedure should only be used when the constitutional machine is prevented from properly working, as for example, when an appropriation Bill has been held up. However, it is now accepted that the double dissolution procedure can be invoked in the case of any proposed law. The double dissolution procedure has been invoked on six occasions: in 1914, 1951, 1974, 1975, 1983 and 1987. In 1914 it was invoked in connection with a public service employment Bill. Although not a vital issue, this Bill became the occasion for the request by Prime Minister Joseph Cook that both Houses should be dissolved. The Governor-General acceded to this request. See Double Dissolution, 1914; Sawer, 1956, pp 115–17, 121–4; Beasley in Else-Mitchell, 1961, pp 65–6; Wright, 2012, pp 472–4; Evans and Laing, 2012, pp 704–7. 459 The second double dissolution took place in 1951. A dissolution was granted to Prime Minister Robert Menzies on a Commonwealth Bank Bill. The Senate had not rejected the Bank Bill outright but had referred the Bill to a select committee. The Solicitor-General advised that the words ‘fails to pass’ involved a ‘suggestion of some breach of duty, some degree of fault’, and ‘to import, as a minimum, that the Senate avoids a decision on the bill’. He said that this could occur where the Bill was delayed by being referred to a select committee or being repeatedly adjourned. See Beasley in Else-Mitchell, 1961, pp 66–8; Richardson (1962) 1 U Tas LR 706 at 713; Wright, 2012, p 476;

Evans and Laing, 2012, pp 710–11. However, it is clear that, in the light of comments made in the Petroleum and Minerals Authority case (Victoria v Commonwealth (1975) 134 CLR 81; 7 ALR 1) that the Senate must be given time to consider a Bill and mere referral to a Select Committee does not amount to a failure to pass: at 122, 146–8, 186. In 1951 the Solicitor-General also considered the date from which the three month interval was to be determined. The time period was not to be dated from the passing of the Act by the House of Representatives but from the negative action of the Senate. Where the Senate rejected or failed to pass a Bill, the interval was to be determined from that date. The Solicitor-General was also of the opinion that where the Senate amended a Bill, time ran from that date and not from the subsequent action of the House of Representatives in disagreeing with the Senate’s amendment. However, on this point dicta in the Petroleum and Minerals Authority case appears to be contrary to that view. In any case, the 1951 double dissolution precedent indicates that the matter is one which will be evaluated by the government of the day and advice given to the Governor-General accordingly. The question arises as to whether the Governor-General may reject that advice. On the two occasions mentioned, the Governor-General accepted the advice of the Prime Minister. In 1951 the Prime Minister took the view that, while the Governor-General was not bound to follow his advice in respect of the existence of the conditions of fact set out [page 255] in s 57, once those conditions of fact were accepted the Governor-General was under an obligation to follow the advice of the Prime Minister. See Documents Relating to Simultaneous Dissolution, 1957. 460 In April 1974 Prime Minister (Gough Whitlam) sought a double dissolution following the defeat of a government procedural motion in the Senate to bring on a vote on the Supply Bills. The Prime Minister requested that the Governor-General dissolve both Houses on the basis of six Bills which had become the subject of disagreement between the two Houses. The

Governor-General (Sir Paul Hasluck) agreed to the request on the basis that Supply would be granted. The Supply Bills were passed by the Senate and the Governor-General signed a proclamation of dissolution on the basis that the requirements of the first paragraph of s 57 had been fulfilled with respect to them. See Lane (1974) 48 ALJ 515; note (1974) 48 ALJ 161; Simultaneous Dissolution, 1976; Bennett, 2004; Wright, 2012, pp 477–8; Evans and Laing, 2012, pp 712–19. In November 1975 the Governor-General (Sir John Kerr) withdrew the commission of the Prime Minister (Gough Whitlam) following the Senate’s failure to pass the appropriation Bills of that year. The Governor-General appointed a new Prime Minister (Malcolm Fraser) on a ‘caretaker basis’ to guarantee Supply and to recommend a double dissolution. The appropriation Bills were passed by the Senate. The new Prime Minister advised a double dissolution on the basis of some 21 Bills which had fulfilled the requirements of the first paragraph of s 57. The Governor-General signed the proclamation of dissolution and elections were subsequently held. See note (1975) 49 ALJ 645; Simultaneous Dissolution, 1979; Wright, 2012, pp 478–83; Evans and Laing, 2012, pp 719–30. The unusual feature of the 1975 double dissolution was that the advice came from a ‘successor’ government which had opposed the 21 Bills which were promoted by the dismissed government. Western Australia v Commonwealth (1975) 134 CLR 201; 7 ALR 159 established that Bills which form the basis of a double dissolution need not be the subject of a current disagreement between the Houses and may have been ‘stored up’ for a period of time: at 233, 236–8, 251, 265, 277, 288–9. 461 The fifth double dissolution occurred in February 1983. Prime Minister Malcolm Fraser advised Governor-General Sir Ninian Stephen to grant a dissolution on the basis of 13 Bills which the Senate had rejected or failed to pass. The Governor-General acceded to this request. See O’Brien (1983) 14 MULR 37; note (1983) 57 ALJ 193; Simultaneous Dissolution, 1984; Wright, 2012, pp 486–7; Evans and Laing, 2012, pp 730–3. At the ensuing election, the Fraser government was defeated. The incoming Hawke government did not proceed with the Bills in the new Parliament. The sixth double dissolution occurred in May 1987. It was triggered by the

Australia Card legislation. The history of the legislation suggests support for the interpretation that the Bill passed again by the House of Representatives must be identical to that originally passed by it, save for amendments ‘made, suggested or agreed upon by the Senate’. See note (1987) 61 ALJ 677; Documents Relating to Simultaneous Dissolution, 1987; Carney (1989) 18 FL Rev 178; Wright, 2012, pp 487–8; Evans and Laing, 2012, pp 733–6. The texts of the six proclamations appear in Richardson in Lindell and Bennett, 2001, pp 322–9. 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 [page 256] 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.

462 When the new Parliament meets after a double dissolution and the deadlocked Bill is again passed by the House of Representatives but again suffers its earlier fate at the hands of the Senate, the Governor-General may convene a joint sitting of the members of the Senate and the House of Representatives to resolve the matter. The Bill will be taken as being carried if passed by an absolute majority of the total number of members of the Senate and the House of Representatives. The final part of s 57 provides that the joint sitting may vote upon ‘amendments … which have been made … by one House and not agreed to by the other’. Carney points out that this seems to suggest the possibility of amendments to the proposed law by the House of Representatives, which may be at odds with the ‘identical Bills’ interpretation. When may such

amendments be made by the House of Representatives? See Carney (1989) 18 FL Rev 178 at 183–4. If amendments made at any stage of the Bill’s legislative history may be voted upon at the joint sitting, the Senate’s power to reject Bills may be weakened since the senators would constitute a minority in the joint sitting of the House of Representatives and the Senate. If amendments made after the third rejection but before the joint sitting are those which may be voted upon at the joint sitting, the Senate’s power is also eroded. Carney suggests a third interpretation: the House may make amendments at the stage of the third passage of the proposed law, which may then be put to the joint sitting: p 184. These issues have yet to be resolved. A further interesting point Carney makes is that where the House is faced with a hostile Senate, the Senate may defeat the operation of legislation enacted at a joint sitting through its power of disallowance of regulations. The only way the House can avoid this possibility is by reducing or eliminating the Bill’s dependence upon regulations: pp 185–6.

The 1974 joint sitting and subsequent litigation 463 At the elections following the 1974 double dissolution, the government obtained a majority of seats in the House of Representatives but not in the Senate. It was clear that at a joint sitting of both Houses the government would have a small majority for the passage of the deadlocked Bills. In accordance with the requirements of the second paragraph of s 57 the six Bills were reintroduced and were rejected by the Senate. Subsequently [page 257] the Governor-General (Sir John Kerr) issued a proclamation convening a joint sitting. The proclamation stated: I, Sir John Robert Kerr, the Governor-General of Australia, do by this my Proclamation convene a joint sitting of the members of the Senate and of the House of Representatives, to commence in the House of Representatives Chamber at Parliament House, Canberra at 10.30

o’clock in the morning on 6 August 1974, at which they may deliberate and shall vote together upon each of the … proposed laws as last proposed by the House of Representatives.

At this stage proceedings were commenced by two senators for an injunction and a declaration in relation to the passing of the six Bills at the joint sitting.

Cormack v Cope 464 In Cormack v Cope (1974) 131 CLR 432; 3 ALR 419 the High Court refused the relief sought. The court divided on the question whether a court had jurisdiction to intervene in the legislative process before the Bill had received Royal Assent. Barwick CJ and Gibbs J favoured the view that such jurisdiction existed: at 454–5, 466. McTiernan J considered that the grounds of the action were an internal parliamentary matter and not subject to the jurisdiction of the courts: at 461. Menzies and Stephen JJ considered that intervention would be proper in cases (if there were any) in which the jurisdiction to deal effectively with the legislation when enacted would be defeated: at 465–6, 472. One major question was whether more than one Bill could be passed at a joint sitting. It was argued for the plaintiffs that to permit a ‘multiple Bill’ interpretation of s 57 would involve a diminution of the powers of the Senate. They argued that allowing the ‘stockpiling’ of Bills would affect the very basis of the bicameral system of government. If the previous government were returned to office at the elections and proceeded with the Bills, they could be passed by a majority of members at a joint sitting, where the senators would be in a minority, due to the constitutional requirement in s 24 limiting the numbers of senators to half the number of members of the House of Representatives. The court rejected the ‘single Bill’ interpretation of s 57 and held that the words ‘proposed law’ should be interpreted in the light of ordinary principles of statutory interpretation to include the plural. More than one Bill could therefore be passed at a joint sitting: at 455–6, 461, 462, 468, 469–70, 474. However, a majority of the court found fault with a portion of the Governor-General’s proclamation convening the joint sitting which referred to the number of Bills to be voted upon at the sitting. They held that it was

not the function of the Governor-General under the third paragraph of s 57 to specify the particular Bills that were to be debated. The Governor-General’s task was merely to convene the joint sitting: at 458–9, 462–3, 468, 471. However, the procedural defect in the proclamation was treated by the majority as surplusage that did not affect the basic validity of the proclamation. 465 One of the six Bills was the Petroleum and Minerals Authority Bill. A specific question had arisen in relation to this Bill as to whether the requisite three month period had elapsed between its rejection or ‘failure to pass’ by the Senate and its subsequent reintroduction to the House of Representatives. Two Justices expressed doubts as to the validity of this particular Bill: at 456– 9, 470–1. However, since a declaration of invalidity could be sought by a State after the Bills had been passed at the joint sitting and had received the Royal Assent, it was not necessary to consider the validity of the Bill at this stage. At the later stage, the court would be able to consider whether the procedural steps laid down in s 57 had been complied with in relation to any Bill. [page 258] The six Bills were passed at the joint sitting and received the GovernorGeneral’s assent. Several States then challenged the validity of several Bills passed at the sitting. In two separate cases the court considered the operation of the deadlocks clause.

The Petroleum and Minerals Authority case 466 In Victoria v Commonwealth (1975) 134 CLR 81; 7 ALR 1 the Petroleum and Minerals Authority Bill was passed by the House on 12 December 1973: at 112. The Bill was introduced into the Senate on 13 December: at 113. On that date, the Senate adjourned debate on the Bill by resolving that the debate should be resumed and made an order of the day for the first sitting day in February 1974: at 115. On 13 December the Senate went into recess for the summer vacation. On 14 February 1974 the Governor-General prorogued Parliament until 28 February. On 7 March the

House of Representatives resolved to request that the Senate resume its consideration of the Bill. On 19 March the Senate resumed consideration of the Bill. On 2 April the motion for a second reading was rejected by the Senate. On 8 April the Bill was again passed by the House of Representatives and sent back to the Senate on the same day. On 10 April the Bill was rejected by the Senate by way of a procedural resolution for a six month deferral: at 116. A 4–2 majority of the High Court held that the requirements of the first paragraph of s 57 had not been satisfied in relation to the Bill. Consequently the Bill could not have been validly passed at a joint sitting under the third paragraph of s 57. The crucial issues regarding the validity of the Bill were: (a) whether the Senate had failed to pass the Bill when it adjourned debate on 13 December; and (b) whether the required interval of three months had elapsed before its representation to the House of Representatives. The majority were of the opinion that the action taken by the Senate on 13 December was not a failure to pass: at 123–4, 148, 172–3, 188. The Senate had the right to give proper consideration and full debate to any proposed law. The Senate was not obliged to pass a Bill as soon as it was received from the House. Time for consideration beyond a mere day was appropriate. The circumstances surrounding the Senate’s dealing with the Bill indicated that its failure to deal with the Bill on 13 December was not a failure to pass. On that very day the Senate adjourned for the Christmas recess, which normally lasted until February. After the Christmas recess the House of Representatives requested that consideration of the Bill be resumed. The Senate resumed consideration and disposed of the Bill for the first time on 2 April. As Gibbs J pointed out (at 146): … neither the nature nor length of the adjournment was such as to enable it to be said that what purported to be an adjournment was in truth a rejection of the Bill: since 13th December was the last day on which the Senate sat during 1973, the order that the resumption of the debate be an order of the day for the first sitting in February 1974 did not put off the debate for any unreasonable period, if that be relevant.

467

It had also been argued that the three month interval was to be

determined from the date when the Bill was first passed by the House of Representatives and not from the date when the Senate took action regarding the Bill. It was argued that the critical date was 12 December when the House of Representatives had passed the Bill and that the three month period had elapsed between that date and the date of the second passage through the House on 8 April. [page 259] The majority considered that the interval of three months was to be dated from the action taken by the Senate with respect to the Bill and not the date of its first passage through the House: at 124–5, 154–5, 174–5, 187. Barwick CJ stated (at 124): … the purpose behind the section, it seems to me, is to fix a period of time after the Senate had considered the law and taken up a definitive position with respect to it, during which the House of Representatives should have time to consider, no doubt in the light of what has been said in debate in the Senate, whether the law should go forward again.

This interpretation was confirmed by the presence in s 57 of a further alternative stipulation of conduct on the part of the Senate which would amount to a negative attitude towards the Bill, that is, the making of amendments to the Bill with which the House of Representatives did not agree. This would point to the fact that time should be available for compromises to be reached between the two Houses: at 155, 169. Such a compromise might be the acceptance of the Bill by the Senate, further Senate amendments which were acceptable to the House, or acceptance of the Senate amendments by the House. 468 The majority again held that the court could determine whether the legislative procedure prescribed by s 57 had been followed: at 118, 164, 180, 181. A proceeding in Parliament is ordinarily not examinable by a court; but if the validity of a law is made dependent upon such a proceeding then the court may determine and adjudicate upon the proceeding in order to test the validity of the law. Gibbs J stated (at 164): Section 57 does not merely prescribe a procedure to be observed within Parliament; it bears no analogy to the Standing Orders of the two Houses with whose enforcement the courts are not

concerned. It provides for a special mode of legislating which may, subject to certain conditions, be used as an alternative to the passing of laws through Parliament.

This reasoning meant that the court was empowered to scrutinise the action of the Senate to determine whether it had failed to pass the proposed law, and to determine and adjudicate on the parliamentary dealings with the Bill at subsequent stages in order to ascertain whether the parliamentary interval prescribed for the reconsideration of the Bill had been complied with. 469 An associated question was whether the procedure embodied in s 57 was of a directory or mandatory nature. Three members of the court (Barwick CJ, Gibbs and Mason JJ) inclined to the view that the procedure was mandatory. Compliance with the procedure was therefore essential to the validity of the Bill as it emerged from the process: at 119–20, 155–62, 182–3. Consequently, if the Senate had not failed to pass a Bill, or an interval of three months had not elapsed before the House of Representatives reconsidered the Bill, the procedure for turning the Bill into law at the joint sitting would not have been followed. Another member of the court (Stephen J) did not decide whether the provision was mandatory or directory. In his view even if the provision was to be characterised as a directory provision there had not been substantial compliance with the general object which s 57 aimed to achieve. He said (at 179–80): The requirement of s 57 calling for an interval of three months clearly cannot be treated as relatively unimportant; it plays an important part in the constitutional compromise to which s 57 gives effect. However, it is a requirement which is capable of degrees of non-compliance and if it were to be given a directory construction it would then be necessary to examine the particular facts so as to decide whether there had been substantial compliance with the general object of the statutory provision. In the present case the result of such an examination would, I think, be a foregone conclusion, no question of substantial compliance could arise; instead of an interval of three months there is an interval of only a few days and the purpose which the interval of time stipulated for is designed to serve in the general scheme of s 57 has been frustrated.

[page 260] Mason J pointed out that in terms of a constitutional law-making procedure the occurrence of a provision as a directory provision would be rare: ‘when it

eventuates it is attributable to powerful considerations in the context which subdue the ordinary sense of the words’: at 183. Section 16(5) of the Parliamentary Privileges Act 1987 (Cth) expressly excludes legal proceedings concerning s 57 from the operation of the privilege originally contained in Article 9 of the Bill of Rights 1689 (Imp) (now s 16(1) of the Act) (freedom of speech in Parliament). See the discussion under s 49. 470 In summary, the High Court’s conclusion that the Petroleum and Minerals Authority Act was invalid was reached by the following steps: (a) The Senate’s participation in the legislative procedure was subject to the provisions of s 53 which preserved an equality, subject to three limitations, between the Senate and the House of Representatives. (b) Section 57 provided for the method of resolving a deadlock over a Bill or Bills which involved a double dissolution and a subsequent joint sitting. (c) The procedure embodied in s 57 was mandatory. There had not been substantial compliance with the procedure in the passing of the Petroleum and Minerals Authority Act. (d) The court could take cognisance of the steps involved in the particular procedure to see whether there had been compliance. (e) The Senate had not failed to pass the law when it adjourned the Bill on 13 December. (f) An interval of three months had not elapsed between the time of the first negative dealing with the Bill by the Senate and its reconsideration by the House of Representatives.

First Territorial Senators case 471 Western Australia v Commonwealth (1975) 134 CLR 201; 7 ALR 159 involved a challenge to three other Bills passed at the joint sitting: the Commonwealth Electoral Act (No 2) 1973, the Representation Act 1973 and the Senate (Representation of Territories) Act 1973 (Cth). It was argued that each of these Bills had not been passed because of noncompliance with the first paragraph of s 57. The two main grounds for the challenge were:

(a) that the period of time which had elapsed between the second rejection in the Senate and the proclamation of the double dissolution was such that they had become ‘stale’ Bills and were an invalid basis for invoking the double dissolution and the subsequent joint sitting procedure; and (b) the prorogation of Parliament in February 1974, which occurred between the time they had been finally dealt with by the Parliament and the proclamation of the double dissolution, had interrupted the continuity of parliamentary procedure requisite for their ultimate valid passage at a joint sitting. Barwick CJ was inclined to favour the view that there was some temporal limitation on the ‘stockpiling’ of Bills, additional to the limitation that a double dissolution cannot take place within six months before the date of expiry of the House of Representatives by effluxion of time. He framed the temporal limitation in this way: ‘the bill must have twice not been passed by the Senate … and the second occasion on which the bill has not been passed must be so related in point of time to the date of the dissolution as to form part of the same current situation between the House and the Senate’: at 221. [page 261] Applying this test he found that the Representation Act and the Senate (Representation of Territories) Act had complied with the criteria: at 224. With some difficulty he also found that despite the lapse of seven months between its second rejection by the Senate and the double dissolution, the Electoral Act was also of this nature: at 224–5. 472 Other members of the court considered that the Bills had been validly passed at the joint sitting. They did not favour the test espoused by Barwick CJ. In their view there was no implied time limit in respect of the Senate’s second rejection of a proposed law and the double dissolution: at 237–8, 251– 2, 265–6, 276–8, 288–9. It was pointed out that the recognition of any time limitation in relation to the procedure would prevent further discussion between the two Houses on a proposed law and would tend to induce the government to invoke the double

dissolution procedure, perhaps hastily. As Gibbs J put it, ‘[i]t cannot be supposed that the framers of the Constitution intended to put pressure on His Excellency’s advisers to seek a double dissolution rather than attempt to reach agreement, by persuasion or compromise, as to the proposed law’: at 237. All members of the court were agreed that the prorogation (and the ensuing opening of a new session of Parliament) had no effect on the procedure: at 223–4, 238–9, 253–5, 266, 278, 289–91. While it was true that all incomplete Bills on the parliamentary notice paper lapsed with a prorogation (subject to being revived in a new session under Standing Orders) the Bills in question had finished their course through Parliament. The words of s 57 were contrary to any interpretation that the double dissolution must take place in the same session during which they were rejected. Consequently, although there was an express limitation that a double dissolution could only take place within a fixed period during the life of the House of Representatives in which the Bills were dealt with, it could be invoked in respect of Bills passed in a session prior to the one in which the dissolution occurred. For the Constitutional Commission’s recommendations regarding amendment of s 57, see Constitutional Commission, 1988, Vol 1, p 247.

ROYAL ASSENT TO BILLS 473 Section 58. 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 474 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.

See Quick and Garran, 1901, pp 688–92 (Revised ed, 2015, pp 824–9); Opinion No 1774 of 19 July 1946; Attorney-General’s Department, 1980, pp 190–1; Winterton, 1983, pp 18–19; Renfree, 1984, p 172; Constitutional

Commission, 1988, Vol 1, pp 82–4; Katz (1992) 66 ALJ 505; Lane, 1997, pp 420–1; Young (2000) 74 ALJ 125; Campbell (2003) 14 Public LR 9; [page 262] Taylor (2008) 36 FL Rev 83 at 107–16; Lindell (2009) 11 Const L & Pol’y Rev 126; Meikeljohn, 2011, p 82; Wright, 2012, pp 407–8; Hanks, Gordon and Hill, 2012, pp 123–4; Faulkner and Orr, 2013, p 735 (no 1731); Clarke, Keyzer and Stellios, 2013, pp 772–3. 475 This first paragraph of s 58 is a form of provision common to colonial Constitutions at the time of Federation. In 1900 it was recognised that the Governor-General might, in terms of Imperial interest, withhold assent to a Bill. However, it is clear today that any discretion on the part of the Governor-General in terms of assent to Bills is merely a formal one. In December 1976 assent was mistakenly granted to a Bill which had not been passed by both Houses. The Bill did not become an Act through this mistaken assent, for the requirement of passage by both Houses is mandatory. See notes (1977) 51 ALJ 61, 800; Wright, 2012, p 408. Except in perhaps the most exceptional circumstances, the High Court will not issue an injunction restraining presentation of a Bill for the Royal Assent. See Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203 at 204; Cormack v Cope (1974) 131 CLR 432 at 465–6, 467, 472, 474; 3 ALR 419; Eastgate v Rozzoli (1990) 20 NSWLR 188 at 199, 205. Relief against enforcement of an unconstitutional statute should be sought after assent. The second paragraph of s 58 refers to a message from the GovernorGeneral returning a Bill and requesting amendments. This would envisage a situation where the Cabinet might, after the passage of a Bill, find some drafting error or discrepancy in the Bill. Instead of the Bill being recommitted in all its stages, the power of recommending amendment might be used to speed up the passage of the Bill, with the amendment being made to the particular clause where the error existed. This power has been exercised on 14 occasions, most recently in 1986. See Young (2000) 74 ALJ 125. A list of Bills reserved or returned appears in Wright, 2012, p 855.

The Constitutional Commission recommended that s 58 be amended to abolish the power of the Governor-General to reserve Bills for the Queen’s personal assent. See Constitutional Commission, 1988, Vol 1, p 83.

DISALLOWANCE BY THE QUEEN 476 Section 59. 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 Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

See Quick and Garran, 1901, pp 692–3 (Revised ed, 2015, pp 829–31); Renfree, 1984, pp 172–3; Constitutional Commission, 1988, Vol 1, pp 82–4; Lane, 1997, p 421; Hanks, Gordon and Hill, 2012, p 125; Faulkner and Orr, 2013, pp 774–5 (no 1743); Clarke, Keyzer and Stellios, 2013, p 773. 477 The power of disallowance is now a dead letter. This section is among the inoperative sections of the Constitution. The Constitutional Commission recommended the repeal of s 59. See Constitutional Commission, 1988, Vol 1, 1988, p 83. [page 263]

SIGNIFICATION OF QUEEN’S PLEASURE ON BILLS RESERVED 478 Section 60. 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.

See Quick and Garran, 1901, pp 693–8 (Revised ed, 2015, pp 831–7); Attorney-General’s Department, 1980, p 192; Renfree, 1984, pp 173–4; Constitutional Commission, 1988, Vol 1, pp 82–4; Lane, 1997, p 421.

479 This section no longer has any effect. The Constitutional Commission recommended the repeal of s 60. See Constitutional Commission, 1988, Vol 1, p 83.

[page 265]

CHAPTER II THE EXECUTIVE GOVERNMENT __________________________ EXECUTIVE POWER 480 Section 61. 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.

See Quick and Garran, 1901, pp 701–2 (Revised ed, 2015, pp 839–42); Richardson in Zines, 1977, pp 50–77; Gurry (1977) 11 MULR 189; Winterton, 1983, Chs 4 and 5; Renfree, 1984; Constitutional Commission, 1988, Vol 1, pp 345–6, 354–7; Spry in The Constitution Papers, 1996, pp 45– 77; Lane, 1997, pp 422–43; Lindell (2002) 5 Const L & Pol’y Rev 46; Mantziaris in French, Lindell and Saunders, 2003, pp 125–70; Winterton (2003) 31 FL Rev 421; Hill (2003) 31 FL Rev 445; Selway (2003) 31 FL Rev 495; Saunders (2005) 16 Public LR 294; White (2005) 28 UNSWLJ 438 at 440–2; Zines (2005) 16 Public LR 279; French (2010) 12 Const L & Pol’y Rev 5; Kerr (2011) 13 Const L & Pol’y Rev 22; Gerangelos (2012) 12 Oxford U Cth LJ 97; Ratnapala and Crowe, 2012, pp 44–8, 113–21; Hanks, Gordon and Hill, 2012, pp 213–23, 560–1; Lindell (2013) 39 Mon ULR 348; Appleby and McDonald (2013) 35 Syd LR 253; Pyke, 2013, pp 100–7; Clark, 2013, pp 199–208; Keyzer, 2013, pp 253–69; Clarke, Keyzer and Stellios, 2013, pp 919–27, 931–54; Gerangelos et al, 2013, pp 256–90; Joseph and Castan, 2014, pp 154–68; Williams, Brennan and Lynch, 2014, pp 365–79, 397–414; Appleby, Reilly and Grenfell, 2014, pp 168–97; Saunders (2015) 38 MULR 873 at 888–94; Aroney, Gerangelos, Murray and Stellios, 2015, pp 426–93; Stellios, 2015, pp 370–413; Hanna (2015) 39 UWALR 327; Condylis (2015) 39 MULR 385. 481

In keeping with the general structure of the Constitution which

distributes legal powers between the various organs of government, this section vests the executive power in the Queen but also provides that such power is exercisable by the Governor-General as the Queen’s representative. The doctrine of separation of powers, so far as it concerns the relationship of executive and legislative power, must be viewed in the light of the operation of the doctrine of responsible government. See para [22]. The executive (that is, the Ministry) is not confined to the mere execution and administration of the laws made by Parliament. Its members participate in the legislative power both in the making of direct legislation (as members of Parliament) and in the making of subordinate legislation by delegation of Parliament. There is thus a fusion of legislative and executive personnel. Some protection against abuse of this power lies in the fact that by their membership of Parliament the Ministers are subject to its control, both in terms of their rule-making functions and in terms of their administrative functions. See Victorian Stevedoring & General [page 266] Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 121. Regulations made by the executive must be tabled in Parliament, which may disallow them. See Legislation Act 2003 (Cth) ss 38, 42. The doctrine of responsible government ensures that Ministers are responsible to Parliament for their actions. This doctrine receives at least implicit recognition in succeeding sections of Chapter II of the Constitution, especially in s 64. According to s 64, a Minister of State shall be or become, within a period of three months, a member of either House. 482 Section 61 locates the source of executive power in the Crown. Various other sections confer specific powers upon the Governor-General or Governor-General in Council. See, for example, ss 2, 5, 28, 32, 57, 58, 59, 60, 67, 68, 70 and 72. Subject to the exceptional case of the reserve powers, all such powers are exercised on the advice of the Ministry. See Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [70]. The structure of the executive government in the broad sense encompasses

not only the Queen, Governor-General and Her Majesty’s Ministers but also the members of the public service and various authorities, boards and tribunals associated with the day-to-day administration of the affairs of the Commonwealth, although these bodies may not be within the shield of the Crown. The content of the executive power is not exhaustively defined by s 61 and its specific limits have to be determined aliunde (from elsewhere). See Le Mesurier v Connor (1929) 42 CLR 481 at 514. A portion of it is to be found in the Constitution itself, whether express or implied. The content of the power is limited by the federal nature of the Constitution. As a consequence of the federal structure of government, there is a need to allocate the executive functions of government pertaining to the Commonwealth and States’ spheres of responsibility. Section 61 (in conjunction with ss 69 and 70) effects in a broad fashion this allocation, which follows the division of constitutional powers between the Commonwealth and the States. This is true particularly of the routine matters of administration which fall within the competence of a Commonwealth department. In general, the federal executive power involves the implementation, enforcement or administration of laws dealing with subject matters that fall within the legislative power of the Commonwealth. 483 A federal statute may limit the scope of the executive power, or attach conditions to its exercise. See Brown v West (1990) 169 CLR 195 at 202; 91 ALR 197; Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [579]; Saunders (2013) 41 FL Rev 363; CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1; 89 ALJR 207; [2015] HCA 1 at [277]–[279]; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 at [122], [128]. However, a ‘statute will not be held to have abrogated [a prerogative] power unless it does so by express words or necessary implication’. See Oates v Attorney-General (Cth) (2003) 214 CLR 496; 197 ALR 105; [2003] HCA 21 at [37]. In Brown v West (1990) 169 CLR 195; 91 ALR 197 a parliamentarian challenged the Minister’s decision to increase members’ postal allowances above the amount that the Remuneration Tribunal had determined: at 199. He argued that the executive power did not extend to the making of such an increase: at 196–7. Mason CJ, Brennan, Deane, Dawson and Toohey JJ

upheld this contention. The executive power ‘is susceptible of control by statute’: at 202. The Remuneration Tribunal Act 1973 (Cth) and the Parliamentary Allowances Act 1952 (Cth) limited the scope of the executive power: at 202. The court’s unanimous joint judgment stated: ‘It is a necessary implication of a statutory fixing of the amount of total expenditure that there is no residual executive power to increase [page 267] it’: at 205. The court also mentioned that: ‘it may be that our Constitution provides such a separation of powers as would preclude any exercise of the executive power which takes the form of the discretionary conferring of benefits having a pecuniary value on individual members of the Parliament, not being mere facilities for the functioning of Parliament’: at 202. The court suggested that there was ‘much to be said’ for the notion that Parliament alone could do this: at 201. In Ruddock v Vadarlis (2001) 110 FCR 491; 183 ALR 1; [2001] FCA 1329; SLR [2001] HCATrans 625 the Commonwealth government successfully invoked the executive power to justify its actions in relation to the Norwegian ship MV Tampa. At the request of the Australian coast guard the Tampa rescued asylum seekers from a boat sinking in the Indian Ocean: at [131]. The captain of the ship sought permission to dock at Christmas Island: at [132]. The Australian government refused permission: at [134]. When the ship entered Australian territorial waters the government ordered Australian soldiers to board the ship to prevent the ship from docking: at [136]. The aim of the government was to prevent the asylum seekers from reaching the Australian migration zone: at [204]. By majority the Full Federal Court held that the government actions fell within the executive power. French and Beaumont JJ held that the executive power included the power to prevent non-citizens from entering Australia: at [193]. The executive power allowed the Commonwealth executive to deny

entry to the Australian migration zone by preventing the ship from entering Australian waters and compelling it to leave those waters: at [197], [204]. The majority held that the executive power in this area was not displaced by the Migration Act provisions relating to the entry and removal of noncitizens. A clear intent to displace the executive power must be apparent from the statute: at [184]. Where an executive power relates to national sovereignty, it is even less probable that the legislature intended to abolish the power without ‘clear words or inescapable implication’ to that effect: at [185]. The provisions in the Migration Act were ‘facultative’ only: at [202]. These provisions conferred rather than denied executive power: at [202]. Statutes may also authorise executive action that might otherwise be beyond executive authority. In CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1; 89 ALJR 207; [2015] HCA 1 an Indian vessel carrying asylum seekers was intercepted by an Australian ship near Christmas Island: at [1]. The Australian ship detained the asylum seekers and began to take them to India: at [2]. A majority (French CJ, Crennan, Gageler and Keane JJ) held that this detention was authorised by statute: at [14], [229], [392], [513]. In dissent, Hayne, Bell and Kiefel JJ held that there was no statutory authority for the detention: at [135], [323]. It was also argued that the detention was justified as an exercise of Commonwealth executive power. Having found that statutory authority existed, most of the majority Justices (French CJ, Crennan and Gageler JJ) found it unnecessary to decide this question: at [42], [54], [228], [336], [393]. Keane J also found it unnecessary to decide this issue: at [476]. Nevertheless, by way of obiter dicta he indicated that the executive power provided authority to detain aliens in these circumstances: at [465], [478]. He specifically approved the decision in Ruddock v Vadarlis that the Migration Act did not abrogate the executive power to prevent the entry of aliens: at [482]– [483], [489], [492]. Having found an absence of statutory authority, the dissenting Justices found it necessary to consider the executive power argument. Hayne and Bell JJ characterised the Commonwealth’s argument as an attempt to enter through the back door when entry through the front door was denied. To allow that would be a ‘strange’ result: at [141]. The executive power did

[page 268] not itself provide authority to detain a person: at [147]–[148]. The executive power was so limited both inside and outside Australian territory: at [149]– [150]. Kiefel J held that even if at the time of Federation there had been an executive power to detain aliens for the purpose of expulsion, statutes have long since provided authority for such detention. Any executive power had thus been ‘lost or displaced’: at [277]. ‘When a matter is directly regulated by statute, the executive government derives its authority from the Parliament and can no longer rely on a prerogative power’: at [279]. The statute at issue provided that the Act did not limit the executive power of the Commonwealth: at [40]. The judges who expressed an opinion about this provision took a narrow view of its scope. French CJ stated that this section did not preserve ‘unconstrained an executive power the exercise of which is constrained by the’ Act: at [41]. Hayne and Bell JJ suggested by way of obiter dicta that this provision ‘should be read as saying no more than that no negative inference should be drawn about the ambit of executive power from the enactment of the… Act’: at [141]. Kiefel J stated that this provision did not have the effect that the executive had a ‘complete discretion’ as to the exercise of its powers, despite the Act’s regulation of the scope of those powers. The provision merely preserved other executive powers that could be exercised in conformity of the Act: at [283]. In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 an asylum seeker had travelled to Australia by boat. Commonwealth officers took her to Nauru, where she was detained under Nauruan law in a Commonwealth-funded regional processing centre for refugee claimants: at [1], [8]. She argued that the Commonwealth’s participation in her detention was beyond the executive power. Most of the court found it unnecessary to consider whether the executive power provided authority for the challenged executive actions. French CJ, Kiefel, Bell, Keane and Nettle JJ all held that the Commonwealth’s participation in the plaintiff’s detention was authorised by statute. It was

therefore unnecessary to consider whether s 61 of the Constitution would have authorised the plaintiff’s detention: at [41], [66], [242], [265]. Gageler J considered that s 61 did not authorise the executive to detain persons without statutory authority: at [162]. Power to detain may be conferred upon the executive by statute: at [163]. The Commonwealth’s participation in the plaintiff’s detention would be unlawful in the absence of statutory authority: at [174]–[175]. However, in this case there was statutory authority for this participation: at [180]. In dissent, Gordon J also argued that the executive power did not confer upon the executive the power to detain persons without statutory authority: at [372]. 484 The cases in which the Commonwealth executive power has been discussed show certain limitations arising by virtue of the Constitution and by virtue of certain principles of the common law. As to constitutional limitations, it is clear that the Commonwealth has no right to enter into a contract in respect of a matter which is not conferred upon the Commonwealth either expressly or impliedly by the Constitution. In Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421, relying upon various war regulations, the executive had purported to enter into an agreement with a company. Under this agreement consent was given to the company to sell wool tops in return for a share of profits or on the basis that the manufacture of wool tops would be carried on by the company as agent for the Commonwealth in return for receiving a yearly payment from the Commonwealth: at 432. It was accepted that the war regulations in question did not confer upon the Commonwealth power to enter into such an agreement: at 452, 461, 475. It therefore had to [page 269] be determined whether the contract was in execution of or in maintenance of any provision in the Constitution. The court held that no power was to be found in the Constitution to authorise such an arrangement, nor did the

subject matter of the contract fall within the area of responsibility of a Commonwealth department under s 64: at 432, 443, 454, 461. The power of the Commonwealth executive to enter into contracts was also raised in the Williams cases, which are discussed below at para [486]. For discussions of Commonwealth contracts, see MacLean (2012) 11 Canberra LR 150; Chordia, Lynch and Williams (2013) 37 MULR 189; Seddon, 2013, pp 59–86; Stellios, 2015, pp 380–99; Chordia, Lynch and Williams (2015) 39 MULR 306. 485 Several cases have considered the executive power in relation to the expenditure of public moneys. In Victoria v Commonwealth (the Australian Assistance Plan case) (1975) 134 CLR 338; 7 ALR 277 differing opinions were expressed as to whether the executive power of spending moneys appropriated by Parliament was tied to the distribution of legislative powers effected by the Constitution. Barwick CJ, Gibbs and Mason JJ held that the executive power (including the power to expend moneys) followed the constitutional division of powers between the Commonwealth and the States and therefore the Commonwealth could not expend moneys in areas that fell outside its express or implied legislative powers: at 362–3, 373–4, 397–9. On the other hand, Murphy J considered that the executive power of expenditure could draw its force and validity from an appropriation Act that appropriated moneys for the purposes of the Commonwealth: at 423–4. McTiernan J also adopted a wide view of the exercise of power based upon a departmental performance of functions: at 370. Jacobs J called in aid the incidental power (s 51(xxxix)) to support a broad Commonwealth involvement in social service activities: at 406. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 a Commonwealth statute provided for the payment of ‘tax bonuses’ to certain categories of taxpayers as an economic stimulus measure during an international financial crisis. The majority of the court held that the executive power extended to economic stimulus spending in response to a global financial crisis since the Commonwealth alone possessed the necessary financial resources. French CJ held that the executive power encompassed short term spending directed at combatting negative economic conditions that affected the entire

nation where such spending is ‘peculiarly within the capacity and resources of the Commonwealth’: at [133]. This executive power is dependent upon parliamentary appropriation of the moneys to be spent. The statute giving effect to this exercise of executive power was supported by the incidental power: at [134]. Gummow, Crennan and Bell JJ observed that the executive power expressly extends to the maintenance of the Constitution, which ‘conveys the idea of the protection of the body politic or nation of Australia’: at [215]. Only the Commonwealth had the financial resources to undertake stimulus spending on this scale and with such speed: at [241]–[242]. The challenged statute was authorised by the incidental power in execution of the executive power: at [213], [243]. In dissent, Hayne and Kiefel JJ considered that the executive power to spend is not limited to expenditures under a statute enacted pursuant to an enumerated head of Commonwealth legislative power: at [343]. However, Commonwealth executive power is that of ‘a polity of limited powers’: at [335]. The executive power in relation to spending is ‘not unbounded’ or ‘unlimited’: at [336], [343]. This power is not ‘limited only by the need to obtain parliamentary [page 270] approval for the proposed expenditure’: at [357]. The impugned spending could not be supported as an exercise of the executive power merely by showing that it was undertaken in response to a national economic emergency: at [345]. However, the challenged law could be read down to be supportable under the taxation power rather than the incidental power: at [393]. In dissent, Heydon J held that the executive power did not include the power to manage the economy during a national economic emergency: at [549]. Such a power would carry considerable potential for abuse and might over time become available for virtually constant use: at [551]. For discussions

of this case, see Twomey (2010) 34 MULR 313 at 315–27; McLeod (2010) 32 Syd LR 123 at 132–8. 486 In Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 the Commonwealth had entered into a contract with a religious organisation for the provision of chaplaincy services in state schools: at [2]. No statute empowered the Commonwealth to contract and expend public moneys in this manner: at [2], [39], [72], [88], [451]. The only parliamentary involvement was an appropriation: at [90], [172]. The funding was not provided by a grant made under s 96 of the Constitution: at [88], [451], [532]. The court held that the chaplaincy contract and associated expenditure were beyond the Commonwealth’s executive power. The Commonwealth sought to uphold this spending on either a ‘narrow’ or ‘broad’ view of the executive power. Under the ‘broad’ view the Commonwealth executive could spend money without limitation apart from the need for parliamentary appropriation: at [177]. The court rejected the broad view of executive power. In support of this broad view of executive power, the Commonwealth argued that, where no interference with the rights and duties of others was involved, its contractual and spending powers were those of a legal person: at [62], [150]. The court rejected this argument. French CJ held that the contractual capacity of the Commonwealth was not that of a private corporation or natural person: at [38]. Gummow and Bell JJ held that the contracting and spending power of the Commonwealth differed from that of a corporation or natural person because the Commonwealth spent public money, while corporations and natural persons spent their own money: at [151]. The legal personality of the Commonwealth was not simply that of the executive, but was also that of the legislature as well: at [154]. Hayne J similarly emphasised that the executive was spending public money, not its own money: at [173], [216]. He described the Commonwealth’s argument as ‘anthropomorphism writ large’: at [204]. The Commonwealth executive did not have the same contracting and spending powers as a private individual: at [217]. Crennan J held that the Commonwealth executive’s contracting and

spending powers were different from those of private individuals or nongovernmental legal persons: at [516], [518]. Public moneys were involved and were subject to Parliament’s power of appropriation: at [519]. Public money must be spent for governmental purposes: at [520]. The Commonwealth’s contracting and spending powers were able to be exercised to regulate private activity: at [521]. In rejecting the broad view of executive power many of the judges were influenced by concerns about federalism and parliamentary control of expenditure. French CJ rejected the broad view: at [27]. An unlimited Commonwealth executive spending power in areas of State executive jurisdiction may diminish State jurisdiction. While not a ‘criterion of invalidity’, that potential effect counselled against acceptance of the broad view: at [37]. [page 271] Hayne J rejected the broad view of Commonwealth executive power: at [253]. He emphasised that the Commonwealth Parliament ‘controls the raising and expenditure of public moneys’: at [173], [218]. That control is inconsistent with the notion that the executive can spend public money as it wishes: at [216]. The legislative power of the Commonwealth Parliament is limited by the distribution of power between the Commonwealth and States: at [173]. The executive power is also limited by ‘federal considerations’: at [198]. The recognition that the Commonwealth Parliament possesses limited legislative powers requires the conclusion that Commonwealth spending power is also limited: at [251]. The broad view of Commonwealth executive power would also make ‘otiose’ the grants power in s 96 of the Constitution: at [243], [247]. Crennan J rejected the broad view of executive power to contract or spend: at [534]. The Commonwealth executive did not possess an unlimited power to contract and spend without statutory authority: at [524]. Commonwealth contracting and spending will often require statutory authorisation as well as appropriation: at [534].

The established exceptions to the requirement for statutory authorisation for Commonwealth contracting and spending did not apply in this case: at [534]. For example, the Commonwealth executive did not require statutory authority to enter into contracts and spend money in relation to the administration of Commonwealth government departments: at [484]. In this case there was also nothing that indicated that the program was peculiarly appropriate for action by the Commonwealth executive: at [503]. Kiefel J stated that the broad view of executive power would allow the Commonwealth executive to intrude upon areas of State legislative jurisdiction: at [581]. School chaplaincy services were not an area that was ‘peculiarly adapted’ to national regulation: at [589], [594]. There was an obvious competition with State jurisdiction in this case: at [590]. The State government funded its own chaplaincy program in its schools: at [591]. The broader view would render the grants power in s 96 ‘otiose’: at [593]. ‘The Executive is not authorised by the Constitution to expand its powers by contract’: at [595]. The Commonwealth also sought to uphold the spending on a ‘narrow’ view of the executive power. Under this ‘narrow’ view the Commonwealth executive could enter into contracts or spend money in relation to any subject within Commonwealth legislative power: at [176], [567]. A majority (French CJ, Gummow, Bell and Crennan JJ) rejected the narrow view of the executive power. French CJ held that the executive power did not allow the Commonwealth to enter into contracts and spend money in relation to any subject within Commonwealth legislative power: at [4], [26]–[27]. To give the executive a contracting and spending power over any matter within Commonwealth legislative power would undermine the role of the Senate in the federal system: at [60]. The executive had power under s 64 of the Constitution to enter into contracts in relation to the administration of government departments: at [34], [74]. However, this contract did not fall within that power. It did not fall within the prerogative aspect of the executive power, or a statutory power, or the executive power deriving from the Commonwealth’s status as a national government. The subject of the contract fell within State legislative power. ‘The character of the Commonwealth government as a national government

does not entitle it, as a general proposition, to enter into any such field of activity by executive action alone’: at [83]. Gummow and Bell JJ observed that the form of contracting adopted in this case affected the positions of both the States and the Commonwealth Parliament: at [89]–[90]. [page 272] The executive does not have a power to spend in relation to every subject that falls within federal legislative power: at [135]. No natural disaster or economic crisis was involved in this case. The States have the capacity to establish a school chaplaincy program: at [146]. Crennan J held that the narrow view of the executive power to contract or spend should be rejected as it ignored the relationship between Parliament and the executive regarding spending and would resemble a prerogative power: at [544]. Two judges (Hayne and Kiefel JJ) found it unnecessary to decide whether the narrow view was correct. Hayne J held that the chaplaincy spending could not be justified under the narrow view of executive power. It had been argued that Commonwealth Parliament could have authorised the spending under its corporations and benefits to students powers: at [254], [270]. However, such legislation would not have fallen within either power: at [272]–[273]. The spending was thus beyond the executive power. The contract for chaplaincy services was also beyond power and unenforceable: at [286]. Kiefel J stated that it was clear that the executive could spend public moneys where authorised to do so by statute or the Constitution: at [558]. The narrow view of executive power could not be established in this case because the corporations and benefits to students powers would not have supported legislation authorising this contract and expenditure: at [569]. For a discussion of this case, see Saunders (2012) 23 Public LR 153. 486A The Commonwealth Parliament swiftly enacted legislative amendments that sought to provide statutory authorisation for the

Commonwealth to enter into agreements that require the expenditure of public moneys. In Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 this amended statutory provision was challenged in its application to the school chaplaincy program. The amended section provided that the Commonwealth had power to enter into a contract for the payment of public money where the contract was listed in the regulations: at [15]. The school chaplaincy scheme was listed in the regulations: at [16]. French CJ, Hayne, Kiefel, Bell and Keane JJ held that the authorising provision was supportable by every head of legislative power that could provide authority for Commonwealth contracting for the expenditure of public money: at [35]. In this case it was only necessary to consider the provision’s validity in relation to the chaplaincy program: at [36]. The provision could not validly authorise the chaplaincy program because the program did not fall within the Commonwealth legislative powers relied upon to support its validity: at [90]. Commonwealth executive power is not as broad as that of the British Crown: at [78]. The British common law background may be of assistance in determining the scope of Commonwealth executive power: at [81]. However, Commonwealth executive power to contract and spend is that of a federal system not that of a unitary state: at [82]–[83]. The Commonwealth also argued that the authorising provision was incidental to the executive power to spend and contract: at [85]. However, the executive power does not extend to ‘any and every’ expenditure or contract for that expenditure: at [87]. Crennan J agreed with the joint opinion on all of these points: at [99]. For discussions of this case, see Twomey (2014) 33 UQLJ 9; Lynch (2015) 26 Public LR 83. 487 An important issue is the extent to which the executive power extends beyond the enumerated powers of the Commonwealth. In Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 the High Court unanimously held that the executive power extended to providing for the commemoration of the Bicentenary of European settlement in Australia: at 94, 104, 114, 119. Mason CJ, Deane and Gaudron JJ described this matter as ‘preeminently the business and the concern of the Commonwealth’: at 94. The court

[page 273] also upheld the incorporation of a company charged with organising the commemoration: at 94, 104, 113–14, 119. Wilson and Dawson JJ commented that allowing the Commonwealth to commemorate the Bicentenary did not affect the federal distribution of powers: at 104. Mason CJ, Deane and Gaudron JJ observed that s 61 vested the Crown with all the prerogative powers of the British Crown save those which may only be exercised by the States or are precluded by the Constitution itself: at 93. Thus, beyond those areas expressly made subjects of Commonwealth legislative power, the reach of Commonwealth executive power is most likely to be ‘clearest’ where there is no ‘real competition’ with State legislative or executive power: at 94. Brennan J took a very wide view of the scope of the executive power (at 110–11): 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 would deny to the Australian people many of the symbols of nationhood — a flag or anthem, eg — or the benefit of many national initiatives in science, literature and the arts.

The view that Commonwealth executive power will be ‘clearest’ where there is no ‘real competition’ with State legislative or executive power has been approved in later cases. See Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [131], [239]; Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [144], [256], [588]. One important aspect of Commonwealth executive power is the protection of the constitutional organs of government (the executive itself as well as the legislature and judiciary). A police force may be established to carry out this function, as well as to enforce the laws of the Commonwealth, either directly or by coming to the aid of the judicial power. In Davis v Commonwealth (1988) 166 CLR 79 at 110–11; 82 ALR 633 Brennan J stated that the executive power of the Commonwealth extended to

the protection of the nation against subversive forces. It had long been considered that Commonwealth power concerning internal security derived primarily from s 61 in conjunction with s 51(xxxix) (the incidental power). However, in Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 at [144] Gummow and Crennan JJ argued that this view was the result of a ‘restrictive’ interpretation of the defence power. In that case the court held that the interim control order provisions of the Commonwealth anti-terrorism legislation were supported by the defence power. In 1978 the Commonwealth relied upon s 61 when the Governor-General issued an order calling out the Defence Force when, because of terrorist activity in New South Wales, he deemed such action necessary for purposes of national security. See Commonwealth of Australia Gazette, No S 30, 14 February 1978 (reproduced in Hocking, 1993, p 201); Winterton, 1983, p 228 n 57; Renfree, 1984, pp 467–8; Hocking, 1993, pp 101, 104–5; Head, 2009, pp 49–55. 488 Part of the executive power is derived from the prerogative. In Barton v Commonwealth (1973) 131 CLR 477; 3 ALR 70 the court upheld the power of the executive to request the extradition of an accused person from Brazil, which had no extradition treaty with Australia and was therefore not covered by the extradition legislation: at 488, 501, 508. Mason J concluded that the executive power of the Commonwealth under s 61 ‘enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by [page 274] the Constitution’. He went on to say that ‘[i]t includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law’: at 498. See similarly, Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; 269 ALR 204; [2010] HCA 27 at [86]; CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1; 89 ALJR 207; [2015] HCA 1 at [42].

The power to order the armed forces into hostilities and the power to declare war are generally regarded as falling within the executive power as prerogative powers. The exercise of these powers is not conditional upon the approval of Parliament. For example, the participation of Australian military forces in the invasion of Iraq in 2003 was supported by the House of Representatives but opposed by the Senate. See McKeown and Jordan, 2010, pp 7, 39–41. For discussions of constitutional issues relating to the Iraq conflict, see Lindell (2002) 5 Const L & Pol’y Rev 46; Williams (2004) 15 Public LR 5; Sampford and Palmer (2009) 18 Griffith LR 350; Omar (2006) 9 Yearbook of New Zealand Jurisprudence 71; Williams, Brennan and Lynch, 2014, pp 378–9. The royal prerogative as to war is exclusive to the Commonwealth government. See Joseph v Colonial Treasurer (NSW) (1918) 25 CLR 32 at 47, 51. However, some prerogative powers are, by their very nature, shared by both Commonwealth and State governments. A large part of the executive power is derived from Commonwealth legislation enacted under the various heads of Commonwealth power. The grant of honours now falls within the executive power. It was formerly regarded as a prerogative power. See Kline v Official Secretary to the Governor General (2013) 249 CLR 645; 304 ALR 116; [2013] HCA 52 at [11]. An important limitation upon the executive power is that the executive has no power to ‘dispense with obedience to the law’. See Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [227]; see also A v Hayden (1984) 156 CLR 532 at 562, 580, 588, 591–2; 56 ALR 82; Ridgeway v R (1995) 184 CLR 19 at 54, 73 n 197, 81; 129 ALR 41; Port of Portland Pty Ltd v Victoria (2010) 242 CLR 348; 272 ALR 449; [2010] HCA 44 at [9], [13]; Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [135], [399], [521]; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 at [136]. Some limitations upon the executive power arise in specific contexts. For example, the exaction of taxation requires statutory authority. The executive power does not include the power to impose a tax. See Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 433–4, 444, 460; Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244

CLR 97; 281 ALR 205; [2011] HCA 35 at [13]; Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [135], [398]. The Crown cannot compel military service without statutory authority. See Marks v Commonwealth (1964) 111 CLR 549 at 574. Royal commissions of inquiry which involve compulsory powers (such as the power to summon witnesses or to order the production of documents) must be supported by a valid legislative enactment. See Clough v Leahy (1904) 2 CLR 139 at 158–9; Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1914) 17 CLR 644 at 655; McGuinness v Attorney-General for Victoria (1940) 63 CLR 73 at 83, 90, 98–9, 106; Egan v Willis (1998) 195 CLR 424; 158 ALR 527; [1998] HCA 71 at [92]; Aroney (2014) 25 Public LR 99. 489 The degree of deference which the courts should give to executive certificates has been raised in several cases. In Attorney-General (United Kingdom) v Heinemann Publishers Pty Ltd (1988) 165 CLR 30; 78 ALR 449 the court refused to grant an injunction to a foreign [page 275] State that sought to restrain publication of a book containing information pertaining to that State’s security interests. The High Court held that the courts were not competent to assess the friendliness or otherwise of a foreign State. An executive certificate would not change matters because the enforceability of a claim by a foreign State would depend upon the decision of the executive, which would subvert the role of the judiciary: at 47. In Attorney-General (Cth) v Tse Chu-Fai (1998) 193 CLR 128; 153 ALR 128; [1998] HCA 25 the court held that an executive certificate cannot compel a court to adopt an interpretation of a statute that the court considers to be incorrect. However, an executive certificate may be of assistance to the court in interpreting a statute concerning the conduct of foreign relations: at [55].

FEDERAL EXECUTIVE COUNCIL

490 Section 62. 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.

See Quick and Garran, 1901, pp 703–7 (Revised ed, 2015, pp 842–7); Sawer 1977, pp 91–106; Hasluck, 1979, pp 17–20, 35–42; Attorney-General’s Department, 1980, pp 200–1; Renfree, 1984, pp 190–6; Brookfield (1986) 12 NZ Univ LR 204; Constitutional Commission, 1988, Vol 1, pp 86–9, 332–7; Republic Advisory Committee, 1993, Vol 1, pp 85–6, Vol 2, pp 229–40; Lane, 1997, pp 444–5; Lindell in McCormack and Saunders, 2007, pp 39–40; Hanks, Gordon and Hill, 2012, pp 211–12; Clarke, Keyzer and Stellios, 2013, pp 904–7. 491 The powers of the Governor-General are to be exercised on the advice of the Federal Executive Council. The members of the Federal Executive Council are chosen by the Governor-General and hold office during his or her pleasure. As such, s 62 accords with the 19th century executive pattern under which the Queen’s representative was to exercise their powers on the advice of a local Executive Council. It is not stipulated in this section that the members of the Executive Council are to be chosen from those persons who have the support of the majority of the members of the Lower House. However, s 64 provides that the Queen’s Ministers of State shall be members of the Executive Council and requires that the Ministers shall be members of Parliament. Consequently, the doctrine of responsible government receives some constitutional recognition. See New South Wales v Commonwealth (1975) 135 CLR 337 at 364–5; 8 ALR 1; McGinty v Western Australia (1996) 186 CLR 140 at 269; 134 ALR 289; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [220]; McCloy v New South Wales (2015) 325 ALR 15; 89 ALJR 857; [2015] HCA 34 at [105]–[106]. The practical result is that executive power is placed in the hands of a parliamentary committee called the Cabinet. The ‘real head’ of the executive is not the Queen but the Chair of the Cabinet, that is, the Prime Minister. See Quick and Garran, 1901, p 703 (Revised ed, 2015, p 843). A list of Australian Prime Ministers since 1901 may be found at http://primeministers.naa.gov.au.

Basic decisions are taken by the Cabinet, and the Executive Council exists mainly to put into an official form (by way of orders in council, proclamations, notices, etc) decisions [page 276] which have been arrived at elsewhere. This does not mean that the Executive Council can only ratify decisions which have previously been approved by Cabinet. Matters may come to the Executive Council via departments and Ministers but the Governor-General would have a discretion to determine that any such matter should have the approval of the Prime Minister or the Cabinet before receiving final approval. See Kerr (1975) 17 Journal of the Indian Law Institute 1. 492 The quorum for the Executive Council is the Governor-General (or Vice-President of the Executive Council) and two Ministers. In 1983 Crisp stated that there were rarely more than two or three Commonwealth Ministers present at its meetings. See Crisp, 1983, p 351. In December 1972 a ‘two-person’ government was in existence for a period of about two weeks. See Lloyd and Reid, 1974, pp 14–22; Whitlam, 1985, pp 17–19. It would appear that the plural ‘members’ in this section and in s 64 would require a constitutional minimum of two Ministers. The wording of s 62 preserves the traditional form to be found in the constitutional instruments vesting executive power in the vice-regal representatives in the colonies by providing that the Governor-General is ‘advised’ by the Executive Council. In substance, of course, the decisions are those of the Ministry although the Governor-General may question whether proposals are within constitutional power and authorised by law, or may defer a final decision until more information is available. 493 The question arises as to whether there are any circumstances in which the Governor-General may act independently by rejecting the ‘advice’ of the Ministers. In other words, does the Governor-General have any ‘reserve powers’? Reference has already been made to this question in the discussion of requests for a dissolution of the House of Representatives, and for a

dissolution of both Houses. See under ss 5 and 57. The general principle is that the Governor-General will act on the advice of the ministry and will leave disputed constitutional questions to be resolved by litigation in the courts. However, there are ‘most exceptional circumstances’ in which such advice may be rejected. See New South Wales v Commonwealth (1975) 135 CLR 337 at 365; 8 ALR 1. Such circumstances would justify the withdrawal of the commission of the Prime Minister and the government under s 64 of the Constitution (that is, exercising a reserve power of dismissal) and the commissioning of a ‘caretaker’ Prime Minister who would, by virtue of the fact that they do not have a majority in the Lower House, be required to recommend a dissolution of Parliament. The words ‘and extends to the execution and maintenance of this Constitution’ in s 61 may be regarded as providing a constitutional basis for the exercise by the Governor-General of reserve powers. 494 The circumstances which would justify the dismissal of a Prime Minister are drawn from two precedents, one in the State area and the other in the federal area. These precedents are the dismissal of the Premier of New South Wales (Jack Lang) by the Governor (Sir Phillip Game) in 1932 and the dismissal of the Prime Minister (Gough Whitlam) by the Governor-General (Sir John Kerr) in 1975. These circumstances may be classified under the two categories of (a) illegal action; and (b) breaches of basic provisions or conventions of the Constitution. There has been much discussion regarding the basis for Jack Lang’s dismissal for ‘illegal conduct’ associated with his defiance of the High Court and the Commonwealth over the enforcement of the financial agreement in relation to New South Wales’ obligation to pay interest upon its debts. See Evatt, 1967, pp 157–74; Kerr, 1978, pp 69–82; Twomey in Winterton, 2006, pp 129–60. [page 277] Likewise, controversy has raged about the basis for Sir John Kerr’s decision

to withdraw Gough Whitlam’s commission where the Prime Minister failed to recommend an election where the Senate had failed to pass the Appropriation Bill. The principle involved in this situation was that the government could not govern without appropriation passed by both Houses of Parliament. In both cases the controversy has centred not so much on the formal existence of the power as its timing and method of execution. The 1975 dismissal is discussed by Howard and Saunders in Evans, 1977, pp 270–85; Sawer, 1977, pp 141–72, 203–11; Kerr, 1978; Whitlam, 1979; Barwick, 1983; Constitutional Commission, 1988, Vol 1, pp 92–5, Vol 2, pp 241–73; Republic Advisory Committee, 1993, Vol 1, pp 88–92; Marsh in The Constitution Papers, 1996, pp 170–7; Lane, 1997, pp 415–19, 447–8; McGarvie, 1999, pp 145–206; Paul (1999) 25 Mon ULR 17; Coper (2000) 11 Public LR 251; Winterton in Lee and Winterton, 2003, pp 229–61; Smith, 2005, pp 239–313; Hanks, Gordon and Hill, 2012, pp 249–54; Williams, Brennan and Lynch, 2014, pp 359–65; Hocking, 2015; Kelly and Bramston, 2015. For useful collections of relevant documents, see Hall and Iremonger, 1976, pp 184–216; Kelly, 1995, pp 318–52. 495 In 1931 Governor-General Sir Isaac Isaacs affirmed the duty of the Governor-General to act on the advice of the ministry. At that time there was a conflict between the House of Representatives and the Senate concerning delegated legislation. Certain regulations had been proclaimed by the Governor-General. A motion for their disallowance had been passed by the Senate. They were promulgated again on the advice of the government. The Senate protested that it was illegal for the government to make regulations in the same session of Parliament which were in substance the same as those which had been disallowed. The Governor-General affirmed that constitutional practice required that he act on the advice of the government. See Evatt, 1967, pp 185–9; Williams, Brennan and Lynch, 2014, pp 399–400. It must be noted that the GovernorGeneral was satisfied that ‘plain illegality’ was not involved. If a Minister were to advise such a course of conduct, the Governor-General would be entitled to withhold approval to the proposed action until the courts had determined the matter or new advice was tendered. Governors-General have occasionally consulted the Chief Justice of the

High Court. See Kerr, 1978, pp 83–8, 339–44; Barwick, 1983, pp 76–7, 87– 94; Kelly, 1995, pp 222–9; Markwell (1999) 10 Public LR 280; French (2009) 33 MULR 647; Twomey (2012) 23 Public LR 241. Most controversially, in 1975 Sir John Kerr sought the advice of Barwick CJ in relation to the use of his reserve power to dismiss the Whitlam government. Barwick’s letter of advice is reproduced in Sawer, 1977, pp 203–4; Kerr, 1978, pp 342–4; Kelly, 1995, pp 343–4. Mason J indicated his agreement with this advice. See Kelly, 1995, pp 226–7; Henderson, 1998, pp 241–3. For a discussion of legal advice provided to Governors-General by crown law officers, see Twomey (2015) 26 Public LR 193.

PROVISIONS REFERRING TO GOVERNORGENERAL 496 Section 63. 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.

See Quick and Garran, 1901, p 707 (Revised ed, 2015, pp 847–8); Attorney-General’s Department, 1980, p 201; Constitutional Commission, 1988, Vol 1, pp 332–7; Lane, 1997, pp 445–6. [page 278] 497 Reference has previously been made to the formal distinction between the vesting of a power in the Governor-General as distinct from the Governor-General in Council: see s 2. The historical reason for the distinction appears to be that the powers vested in the Governor-General personally are those that were part of the Monarch’s prerogative at common law, such as command of the military forces (s 68), appointment of Ministers (s 64) and dissolution of Parliament (s 5). Therefore, it was considered proper that, in vesting these powers in the vice-regal representative, the older form should be recognised.

Those powers vested in the Governor-General in Council are the ones which had come under the control of statute law, such as the issue of writs (s 32) and the appointment of public servants (s 67). It was therefore considered proper to specify that they were exercisable by the Governor-General in Council. See Quick and Garran, 1901, p 707 (Revised ed, 2015, p 848); Sawer, 1977, p 151. All of these powers are controlled by the Constitution and therefore are predicated upon the operation of the doctrine of responsible government, although reference may still be made to the common law to determine the scope of some of the prerogative powers. An important exercise of a prerogative power occurred in 1978 when the Governor-General issued an order calling out the Defence Force for national security purposes. See Commonwealth of Australia Gazette, No S 30, 14 February 1978, reproduced in Hocking, 1993, p 201; Winterton, 1983, p 228 n 57; Renfree, 1984, pp 467– 8; Head, 2009, pp 49–55. 498 The distinction between the two categories of powers (namely, those exercisable by the Governor-General and those exercisable by the GovernorGeneral in Council) is one of form. Those exercisable by the GovernorGeneral in Council issue in the form of orders in council, proclamations, notices etc, made on the advice of the Executive Council. Those exercisable by the Governor-General alone may be exercised without the formality of Executive Council ratification. See Moore, 1910, p 167. Consequently, where a power is conferred upon the Governor-General a proclamation is issued by the Governor-General alone rather than ‘in Council’. Examples of such powers include dissolution of the House of Representatives (s 5) or a double dissolution (s 57). The advice would be tendered by the Prime Minister. A document bearing the Governor-General’s signature is ordinarily countersigned by a Minister. However, where the reserve power of dismissal is exercised under s 64 (as in 1975) the document would not be ‘countersigned’. However, it is necessary in such a case for the incoming ‘caretaker’ Prime Minister to take responsibility ex post facto, that is, by recommending the dissolution which would be followed by the issue of writs by the Governor-General in Council under s 32. See Sawer, 1977, p 142. The result is that the Governor-General could not, on his or her own initiative, complete the steps necessary for the full exercise of a reserve power

where such final steps involve an exercise of power by the Governor-General in Council, as s 63 requires the advice of the Council to take such an action.

MINISTERS OF STATE 499 Section 64. 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.

[page 279]

MINISTERS TO SIT IN PARLIAMENT 500 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.

See Quick and Garran, 1901, pp 708–11 (Revised ed, 2015, pp 848–53); Campbell, Howard and Saunders in Evans, 1977, pp 147–50, 273–80; Attorney-General’s Department, 1980, pp 201–2; Brazil and Mitchell, 1981, pp 573–4 (no 441); Constitutional Commission, 1988, Vol 1, pp 86–9, 323– 30; Waugh (1991) 2 Public LR 160; Lane, 1997, pp 446–9; Barnett, 2002, pp 23–7; Waugh in French, Lindell and Saunders, 2003, pp 28–30; Hanks, Gordon and Hill, 2012, pp 208–9; Faulkner and Orr, 2013, p 247 (no 1485). 501 This section is the cornerstone of the various sections that make up Chapter II. It recognises the existence of a group of persons called the ‘Queen’s Ministers of State for the Commonwealth’ who individually will superintend the various government departments and statutory authorities subject to their control, or for which they are accountable, and who collectively will administer the affairs of the Commonwealth. A Minister shall not hold office for a period longer than three months unless they become a Senator or a member of the House of Representatives. This requirement seems to leave it open for a person who is not a member of

Parliament to be appointed to a ministerial office, provided he or she obtains a seat within three months of the appointment. The practice has been for ministerial appointments to be made from existing members of Parliament. Convention would also require the Prime Minister and the majority of Ministers to hold seats in the Lower House. An unusual precedent was established in 1968 when Senator John Gorton was appointed Prime Minister after a ‘caretaking’ period by the Deputy Prime Minister (John McEwen). This was after the previous Prime Minister, Harold Holt, had died while in office. Senator Gorton resigned his place in the Senate and was elected to a seat in the House of Representatives. See Wright, 2012, p 61; Evans and Laing, 2012, pp 582–3; Blackham and Williams (2012) 40 FL Rev 253. 502 The institution of responsible government has been described as ‘encompass[ing] “the means by which Parliament brings the executive to account” so that “the Executive’s primary responsibility in its prosecution of government is owed to Parliament”’: Egan v Willis (1998) 195 CLR 424; 158 ALR 527; [1998] HCA 71 at [42]. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 the unanimous court identified the following constitutional underpinnings of responsible government: Parliament must sit annually, Parliament controls supply, Ministers must be members of Parliament, there is freedom of speech in Parliament and the legislature has the power to compel the giving of information: at 559. Section 64 embodies one of these underpinnings of responsible government: the requirement that a Minister be a Senator or member of the House of Representatives. See McGinty v Western Australia (1996) 186 CLR 140 at 269; 134 ALR 289. However, s 64 does not explicitly recognise a central tenet of the doctrine of responsible government, namely that the Ministry must have the support of the majority of members of the House of Representatives, nor does it recognise the duty of a Ministry defeated at an election to resign. But it is clear that this is the basis for the formation of a government, and therefore the choice of Ministers is inextricably bound up with the triennial elections for the [page 280]

House of Representatives. The result of the poll will indicate the return or defeat of the previous government. If the previous government is defeated, the Prime Minister will tender the resignation of the government to the Governor-General who will call upon the leader of the party which has secured the majority of seats in the new House or, if there is a coalition of parties, the leader of the coalition. This person will then be commissioned to form a government. When the members of the new Ministry have been selected, the Governor-General commissions them as the Queen’s Ministers of State, the portfolios being allocated on the advice of the Prime Minister. If the old government is returned, the Prime Minister will continue in office but may request a new commission from the Governor-General, particularly if they intend to restructure the Ministry. The August 2010 federal election resulted in a ‘hung Parliament’ in which neither the Labor Party nor the Liberal-National Party coalition had an absolute majority of seats in the House of Representatives. The GovernorGeneral’s daughter was married to a parliamentary secretary in the previous government. The Commonwealth Solicitor-General advised that GovernorsGeneral are not constitutionally inhibited by reason of perceived bias from exercising their own deliberative judgement in extraordinary circumstances relating to the formation of a government. Such a constitutional inhibition would undermine the constitutional functions of the office of GovernorGeneral. See SG No 33 of 2010, 26 August 2010 at [3], available at https://www.gg.gov.au/sites/default/files/files/media/2010/SG_Letter_26_8_2010.pdf For discussions of ‘hung parliaments’, see Gerangelos (2010) 12 Const L & Pol’y Rev 39; Twomey (2011) 22 Public LR 52. For discussions of responsible government, see Evatt, 1967, pp 12–29; Winterton, 1983, pp 1–13, 71–85; Lumb, 1983, pp 66–72; Renfree, 1984, pp 57–63; Byers (1985) 1 Aust Bar Rev 233; Constitutional Commission, 1988, Vol 1, pp 84–99; Ward (1993) 15 Adel LR 165; McDonald (1994) 5 Public LR 160 at 163–73; Lindell in Finn, 1995, pp 75–93; Lane, 1997, pp 446–7; McGrath, 2003, pp 75–80; Lindell, 2004; Carney in Winterton, 2006, pp 298–330; Ratnapala and Crowe, 2012, pp 51–5, 63–6; Hanks, Gordon and Hill, 2012, pp 223–30, 244–5; Gerangelos et al, 2013, pp 36–42, 291–314; Williams, Brennan and Lynch, 2014, pp 414–20; Aroney, Gerangelos, Murray and Stellios, 2015, pp 407–25; Stellios, 2015, pp 368–70.

503 The Prime Minister may lose that position by a vote of the federal parliamentary members of the governing party or of the governing coalition party with the more numerous representation in the House of Representatives. In recent decades this party has been either the Labor Party or the Liberal Party. Such votes have occurred on many occasions. In March 1971 John Gorton was replaced as Prime Minister by William McMahon following a vote of the Liberal Party members of the Commonwealth Parliament. See Souter, 1988, p 495; Grattan, 2000, p 321. In December 1991 Paul Keating replaced Bob Hawke as Prime Minister through a vote of the parliamentary Labor Party. See Grattan, 2000, pp 405, 422. In June 2010 Prime Minister Kevin Rudd did not contest a ballot that challenged his leadership of the Labor Party. At the ballot Julia Gillard was elected leader of the party and was appointed Prime Minister. In June 2013 Julia Gillard was defeated in a leadership ballot and Kevin Rudd was once again appointed Prime Minister. In September 2015 Prime Minister Tony Abbott lost a ballot for the leadership of the Liberal Party. The new leader, Malcolm Turnbull, was commissioned as Prime Minister. For discussions of Prime Ministerial resignations and the appointment of their successors, see Twomey (2011) 39 FL Rev 329; Twomey (2013) 24 Public LR 289. [page 281] Vacancies in the Ministry may be filled at any time by the GovernorGeneral on the advice of the Prime Minister, who may also relieve a Minister of their portfolio by transferring them to another portfolio or by advising the Governor-General to terminate their commission. The latter may arise where the Minister is no longer capable of exercising their duties, is in a state of public dissension with their ministerial colleagues or refuses to resign from their portfolio when so requested. However, it would appear that if a Prime Minister wishes to ‘reconstruct’ a Ministry by replacing a number of Ministers they should return their commission to the Governor-General and request a fresh commission.

504 The words ‘during the pleasure of the Governor-General’ provide the basis for the exercise by the Governor-General of a reserve power of dismissal of a Ministry. (See the discussion of s 62.) Section 64 provides that the Commonwealth departments are established by the Governor-General in Council. New portfolios may therefore be created at any time subject to the limitation upon the number of Ministers (s 65). Duties may be allocated among the portfolios by decision of the Prime Minister. 505 The question has arisen as to whether assistant or junior Ministers or ‘parliamentary secretaries’ may be appointed. In Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 the High Court held that s 64 did not require that only one Minister may administer each Department of State: at [17], [66], [210]–[211], [320], [380]. (However, Gaudron J indicated that where two Ministers were appointed, it must be a joint appointment: at [66].) Sections 64 and 65 did not prevent the appointment of a Parliamentary Secretary as a Minister: at [18]–[19], [61], [221], [320]. The institution of responsible government created by the Constitution was flexible, to allow for its evolution and development over time: at [15], [211], [320]. As Gleeson CJ put it, the ‘characteristics of responsible government are not immutable’: at [17]. See similarly, Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [79], [516]. 506 As Murphy J pointed out in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 373; 41 ALR 1: ‘[t]he Cabinet, which has no place in the formal Constitution, is a committee of Ministers of the ruling parliamentary party or parties’. Up to the end of 1972 a distinction within the Ministry was made between those who were members of the Cabinet at that time and those who were outside the Cabinet. There is no constitutional requirement that the Prime Minister call to the Cabinet all the Ministers of State to advise on affairs affecting the government of the country as a whole as distinct from matters falling within their individual portfolios. Consequently, the size of Cabinet is a matter to be determined by the Prime Minister. Even in terms of consultation of the Cabinet, the Prime Minister seems to possess some flexibility in terms of the matters which he or she may bring before it. The ‘traditional absence of definition of the office and its powers

and its underpinnings has favoured rather than delimited the development of the office in authority and influence’. See Crisp, 1983, p 357. Clearly, the Prime Minister has the constitutional authority to choose Ministers and to allocate portfolios, even though in a political sense they may be chosen by the caucus of the party to which they belong. 507 Once the Ministry has been formed, is it in accordance with constitutional practice for the major executive (that is, prerogative) powers to be exercised by the Prime Minister without reference to the Cabinet? Crisp suggested that whether a Prime Minister consults the entire Cabinet in relation to a proposed request for dissolution of the House of Representatives (s 53) is the Prime Minister’s ‘own affair’. See Crisp, 1983, p 369. [page 282] Certainly this is a matter upon which the Prime Minister alone is entitled to advise the Governor-General. But such advice would normally be given only after consultations with ministerial colleagues. This would conform to the doctrine of collective responsibility. As Crisp pointed out, the principle of the corporate unity and solidarity of the Cabinet requires that the Cabinet should have one harmonious policy, both in administration and in legislation. Furthermore, the advice tendered by the Cabinet to the Crown should be unanimous and consistent; the Cabinet should stand and fall together. See Crisp, 1983, pp 354–5.

NUMBER OF MINISTERS 508 Section 65. 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.

See Quick and Garran, 1901, p 712 (Revised ed, 2015, pp 853–4); Constitutional Commission, 1988, Vol 1, pp 330–1; Lane, 1997, p 449. 509 The number of Ministers set by this provision had effect until the Parliament ‘otherwise provide[d]’. Parliament did so in the Ministers of State

Act 1952 (Cth). The Act provides that the number of Ministers designated as Parliamentary Secretary shall not exceed 12 and the number of those not so designated shall not exceed 30: s 4. The allocation of portfolios is made by the Governor-General on the advice of the Prime Minister: see s 64. A Minister may be dismissed or transferred from one portfolio to another.

SALARIES OF MINISTERS 510 Section 66. 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.

See Quick and Garran, 1901, p 712 (Revised ed, 2015, p 854); AttorneyGeneral’s Department, 1980, p 203; Constitutional Commission, 1988, Vol 1, pp 331–2; Lane, 1997, p 449. 511 The Ministers of State Act 1952 (Cth) provides that the annual sum payable under s 66 shall not exceed $3,500,000 in a financial year, though this amount may be increased by regulation: s 5. (This amount has been increased to $5,000,000 by the Ministers of State Regulation 2012 r 4). The Ministers of State Act does not itself appropriate funds for Ministerial salaries, which is done by an appropriation Act. See Coombs, 2010, p 4. The Ministers may also be paid allowances which are in addition to their salaries: s 6. Under the Remuneration Tribunal Act 1973 (Cth), ministerial salaries and allowances are subject to determination by the Tribunal established by the Act: s 7(2). These determinations are subject to disapproval by either House of Parliament: s 7(8). [page 283]

APPOINTMENT OF CIVIL SERVANTS 512

Section 67. 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 GovernorGeneral in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority.

See Quick and Garran, 1901, pp 712–13 (Revised ed, 2015, pp 854–5); Attorney-General’s Department, 1980, pp 203–4; Brazil and Mitchell, 1981, pp 56, 81 (nos 45, 65); Lane, 1997, p 450. 513 The appointment of members of the public service is by this section vested in the Governor-General in Council but it may be delegated to another authority. All Commonwealth public service appointments prior to the commencement of the Commonwealth Public Service Act 1902 (Cth) were made pursuant to this section. See Meikeljohn, 2011, p 26. This vesting of power is subject to legislative amendment since this section operated ‘until the Parliament otherwise provides’. The Commonwealth otherwise provided in legislation regulating the public service. See Bradshaw v Commonwealth (1925) 36 CLR 585 at 590, 597, 598.

COMMAND OF NAVAL AND MILITARY FORCES 514 Section 68. The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

See Quick and Garran, 1901, pp 713–14 (Revised ed, 2015, pp 855–6); Attorney-General’s Department, 1980, p 204; Brazil and Mitchell, 1981, pp 669–70 (no 522); Winterton, 1983, p 23; Renfree, 1984, pp 180–4; Stephen (1984) 14 MULR 563; Constitutional Commission, 1988, Vol 1, pp 346–50; Republic Advisory Committee, 1993, Vol 1, pp 86–8; Lane, 1997, p 450; Joint Select Committee on the Republic Referendum, 1999, pp 57–8; White (2005) 28 UNSWLJ 438 at 442–4; Lindell in McCormack and Saunders, 2007, p 36; Jones (2009) 16 Aust J Admin L 82; Moore (2009) 4 U New Eng LJ 53; Head, 2009, pp 72–3, 129–32; Faulkner and Orr, 2013, pp 172–3 (no 1431). 515 This section operates within the system of responsible government. The overall command of the armed forces is placed in the hands of the

executive government (that is, the Cabinet). The role of the GovernorGeneral as Commander-in-chief has thus been described as ‘a titular one’. See Brazil and Mitchell, 1981, p 670 (no 522); Coutts v Commonwealth (1985) 157 CLR 91 at 109; 59 ALR 699; CPCF v Minister for Immigration and Border Protection (2015) 316 ALR 1; 89 ALJR 207; [2015] HCA 1 at [361]. In Lane v Morrison (2009) 239 CLR 230; 258 ALR 404; [2009] HCA 29 French CJ and Gummow J described the Governor-General’s role as ‘nominal’ in the light of the operation of responsible government: at [58]– [59]. In that case Hayne, Heydon, Crennan, Kiefel and Bell JJ found it unnecessary to deal with s 68: at [116]. The Republic Advisory Committee commented: ‘It appears that section 68 has very little content other than the conferral of the [page 284] title on the Governor-General for ceremonial purposes, and to emphasise civilian control of the military’. See Republic Advisory Committee, 1993, Vol 1, p 87. In White v Director of Military Prosecutions (2007) 231 CLR 570; 235 ALR 455; [2007] HCA 29 Callinan J considered that s 68 refuted the argument that military judicial power was exercisable only by Chapter III courts. Command and the discipline that goes with it are part of the executive power, though that disciplinary power should be exercised in a judicial manner as far as possible: at [240]. The Constitutional Commission recommended that s 68 be amended to read as follows: ‘The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative, acting with the advice of the Federal Executive Council’. See Constitutional Commission, 1988, Vol 1, p 346.

TRANSFER OF CERTAIN DEPARTMENTS 516

Section 69. 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.

See Quick and Garran, 1901, pp 714–16 (Revised ed, 2015, pp 856–60); SG Opinion No 1816 of 28 July 1947; Attorney-General’s Department, 1980, p 205; Brazil and Mitchell, 1981, pp 398, 589–90 (nos 317, 455); Constitutional Commission, 1988, Vol 1, pp 357–63; Lane, 1997, pp 450–1. 517 This section permits the transfer of certain departments of the public services of the States to the Commonwealth. The customs and excise departments were transferred on 1 January 1901. The proclaimed dates for the transfer of posts, etc and naval and military defence were 14 and 25 February 1901. See Moore, 1910, p 171. No transfer was made of lighthouses, etc or quarantine. Indeed, these were merely areas of responsibility within larger colonial departments which continued to operate after Federation (State marine departments, health departments). See Wynes, 1976, p 141. These are areas of concurrent power and are also within the responsibility of Commonwealth departments (for example, shipping and transport, health). In Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495 the High Court held that s 52(ii) only applies to departments transferred pursuant to s 69, not to departments established pursuant to s 64: at 424, 435–6, 449, 462. The Constitutional Commission recommended the repeal of s 69: Constitutional Commission, 1988, Vol 1, p 357. [page 285]

CERTAIN POWERS OF GOVERNORS TO VEST IN GOVERNOR-GENERAL 518 Section 70. 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.

See Quick and Garran, 1901, pp 716–18 (Revised ed, 2015, pp 861–3); Attorney-General’s Department, 1980, p 206; Lane, 1997, pp 451–2. 519 This section, in conjunction with ss 64 and 69, operated to provide for the transfer of executive powers from the governments of the colonies to the Commonwealth government in relation to those matters within the exclusive power of the Commonwealth (even though the departments which administered them may not have been transferred to the Commonwealth). They comprised both prerogative as well as statutory powers.

[page 287]

CHAPTER III THE JUDICATURE __________________________ JUDICIAL POWER AND COURTS 520 Section 71. 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.

See Quick and Garran, 1901, pp 719–28 (Revised ed, 2015, pp 864–75); Constitutional Commission, 1988, Vol 1, pp 391–8; Crock and McCallum (1995) 6 Public LR 187; de Meyrick (1995) 69 ALJ 106, 189; Wheeler (1996) 7 Public LR 96; Lane, 1997, pp 454–527; Walker (1997) 8 Public LR 153; Roberts (1997) 8 Public LR 170; Leeming (1997) 8 Public LR 143; Wheeler (1997) 23 Mon ULR 248; Handsley (1998) 20 Syd LR 183; Campbell (2000) 26 Mon ULR 312; Saunders in Opeskin and Wheeler, 2000, pp 1–36; Wheeler (2001) 20 Aust Bar Rev 283; McHugh (2001) 21 Aust Bar Rev 235; Lacey (2003) 31 FL Rev 57; Meyerson (2003) 4 Oxford U Cth LJ 181; Duxbury (2007) 18 Public LR 233; Gray, 2008, pp 139–258; Mantziaris (2008) 10 Const L & Pol’y Rev 65; Bateman (2009) 31 Syd LR 411; Buss (2009) 33 MULR 718; Wheeler in Lee and Gerangelos, 2009, pp 222–44; Kennedy (2010) 34 MULR 558; Stellios, 2010, pp 67–117, 127–221, 275–305; Stellios (2011) 22 Public LR 113; Ratnapala and Crowe, 2012, pp 148–81, 191–3; Appleby (2012) 31 UQLJ 265; Gray and Elmore (2012) 22 J Judicial Admin 37 (Part 1); (2013) 23 id 58 (Part 2); Hanks, Gordon and Hill, 2012, pp 501–41; Campbell and Lee, 2013, pp 50–61; Hemming (2013) 22 J Judicial Admin 224; Wheeler (2013) 24 Public LR 125; Welsh (2013) 39 Mon ULR 66; Guy, 2013, pp 125–63; Pyke, 2013, pp 424–51; Clark, 2013, pp 82–7, 94–102; Keyzer,

2013, pp 343–95; Clarke, Keyzer and Stellios, 2013, pp 967–1007, 1262–86; Gerangelos et al, 2013, pp 63–6, 1208–353; Joseph and Castan, 2014, pp 187– 219, 245–64; Appleby, Reilly and Grenfell, 2014, pp 260–97; Williams, Brennan and Lynch, 2014, pp 490–523, 531–40; Aroney, Gerangelos, Murray and Stellios, 2015, pp 553–89; Ananian-Welsh and Williams (2015) 43 FL Rev 119; Stellios, 2015, pp 211–68, 300–31. 521 The judicial power referred to in s 71 is the judicial power of the Commonwealth. In Love v Attorney-General (NSW) (1990) 169 CLR 307; 90 ALR 322 it was pointed out that while the separation of powers limitation does not apply to courts not exercising federal judicial power, the cases under Chapter III are relevant in determining what are the ‘principles governing the exercise of judicial power generally’: at 319. The judicial power of the Commonwealth

[page 288]

The separation of powers 522 With respect to the judicial power the doctrine of the separation of powers operates in full vigour. A strict separation is required between the judicial power, on the one hand, and the legislative and executive powers, on the other hand. It has been consistently held by the High Court that the judicial power of the Commonwealth is exercisable only by the courts mentioned in s 71. These are the High Court, other federal courts and State courts invested with federal jurisdiction. The result is that there is an asymmetry between the interpretation of the legislative and executive powers in comparison with the judicial power. See Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73 at 101. The stated justification for the strict separation of the judicial power from the other powers was explained by the Privy Council as being that ‘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’. See Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529 at 540; see also North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41 at [177]. The creation of checks and balances is an additional rationale for the separation of powers. In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; 138 ALR 220 Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ stated that ‘the separation of functions is designed to provide checks and balances on the exercise of power by the respective organs of government in which powers are reposed’: at 11. See also Polyukhovich v Commonwealth (1991) 172 CLR 501 at 684–5; 101 ALR 545.

The concept of judicial power 523 The classic statement of judicial power, from which nearly all decisions have proceeded, is that of Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357: … the words “judicial power” as used in sec 71 of the Constitution mean the power which every sovereign authority 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.

Griffith CJ’s definition of judicial power thus refers to three elements of the concept: (a) a controversy; (b) impact upon life, liberty, or property; and (c) conclusiveness of the decision. However, one must heed the warning issued in R v Davison (1954) 90 CLR 353 at 366 that ‘[m]any attempts have been made to define judicial power, but it has never been found possible to frame a definition that is at once exclusive and exhaustive’. More recently, Hayne J emphasised that ‘no single combination of necessary or sufficient factors identifies what is judicial power’. See Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; 242 ALR 1;

[2008] HCA 2 at [93]; South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 at [220]. Gleeson CJ and Gummow J agreed with Hayne J: Alinta at [2], [9].

Controversy 524 It would seem that the controversy would ordinarily be a dispute between parties. However, there are some instances where there is only one direct party to the proceedings [page 289] and yet the power could be regarded as being judicial. R v Davison (1954) 90 CLR 353 is such a case. The power given to a bankruptcy registrar to make a sequestration order upon a debtor’s petition was held to be an exercise of the judicial power of the Commonwealth. The decision of the court was based to some extent on an examination of the exercise of curial jurisdiction in such matters by English courts. Dixon CJ and McTiernan J observed that voluntary sequestration had for a long time been an appropriate subject of judicial power, although they accepted that this would not prevent the legislature from devising a different kind of procedure for determining the legal consequences of such an application: at 365. A typical example of the exercise of judicial power where only one party was directly involved was the administration of assets or of a trust by a Court of Chancery: at 368. Kitto J pointed out that the controversy need not be a real one. There was the potentiality for a dispute as to whether a sequestration order should be made. Since rights and duties were reciprocal, even a voluntary petition created a notional opposition between the persons whose reciprocal positions were affected: at 383. The majority of the court held that the power was judicial in nature and had thus been invalidly conferred upon the registrar. For the legislative response to this decision, see Meiklejohn, 2011, p 126.

Pre-existing standards 525 One discernible characteristic of the judicial approach to the resolution of disputes is that the disputes are conceived of as being resolved in accordance with antecedent legal principles, whether they be embodied in statute, or derived from the general law. This should be contrasted with another method of resolving disputes, namely, by creating a set of rules which are not antecedent to the resolution of the dispute. These rules are intended to be the basis of the legal relations of the disputants in future, and which themselves may subsequently be the subject of judicial interpretation. The legislative and administrative functions, as they involve the creation of new rights, are not subject to the requirements of s 71. This analysis affects hybrid powers such as industrial arbitration, which involves the making of awards, the fixing of rates of pay and conditions of work. In Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 Isaacs and Rich JJ pointed out that an industrial dispute was a claim by one of the disputants that existing relations should be altered, along with a claim by the other party that the industrial claim should not be conceded. There was thus a claim for new rights and its settlement by an industrial award was not an exercise of judicial power: at 462. 526 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317 made it clear that the exercise of judicial power involves the adjudication of a dispute arising solely from the operation of the law upon past events and conduct. Judicial power thus involves a decision on a question in the light of a pre-existing standard: at 190. If the decision is not as to what rights and obligations are in existence, but as to what rights and obligations should be created, the decision is not an exercise of judicial power: at 189. Similarly, in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323; 128 ALR 81 it was held that the vesting in a non-judicial tribunal of a power to create new rights and obligations was not a vesting of judicial power in a nonjudicial body: at 333, 341–2, 355, 360–1. In Luton v Lessels (2002) 210 CLR 333; 187 ALR 529; [2002] HCA 13 a federal statute authorised the Child Support Registrar to administratively assess a parent’s liability to pay child support maintenance. The liability to pay child

support was a debt recoverable in court: at [6]. If the liability was registered under the Act, the liability to pay the parent ended and was replaced by a requirement to pay the child support moneys to the Commonwealth: at [7]. [page 290] The court held that the Registrar created new rights and obligations, rather than conclusively determining existing rights and obligations as a court would do: at [22], [68], [76], [126], [131], [187]. The new rights and obligations created were the right of the parent to have the Commonwealth collect the child support moneys on their behalf, and the obligation of the other parent to pay those moneys to the Commonwealth: at [201]. As Gaudron and Hayne JJ put it, the assessment created the debt, but did not ‘determine a question about the existence of any right or obligation’: at [67]. As Gleeson CJ pointed out, while the Registrar applied legal criteria in determining liability to pay, that is a characteristic of both administrative and judicial decision makers: at [21], see also [66]. The Registrar had no power to enforce the assessment: at [23], [67]. The assessment was not conclusive (at [24], [26], [127], cp [63]) and could be contested in court: at [76], [201]. The significance of policy considerations in a body’s decision-making process may be indicative of non-judicial power. In Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317 the unanimous court held that it is the way in which a function is to be exercised that determines whether it is part of judicial, administrative or executive power. Thus, if the taking of a decision involves policy considerations as well as the application of the law to the facts it will not be an exercise of judicial power, though, of course, policy considerations may play a part in judicial determination: at 189. The court further stated that ‘where … the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal … is entrusted with the exercise of judicial power’: at 191. In Visnic v Australian Securities and Investments Commission (2007) 231 CLR

381; 234 ALR 413; [2007] HCA 24 both the courts and the Australian Securities and Investments Commission (ASIC) were empowered to disqualify a person from managing corporations: at [2]–[3]. The court held that conferring powers of disqualification upon both the courts and ASIC did not confer judicial power upon an administrative body: at [12]–[13]. The criteria to be applied by the courts and ASIC were different. ASIC could have regard to the public interest, whereas the court was not authorised to apply such a criterion: at [13], [15]. The court had also previously upheld such a dual conferral of power: at [13]. In Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; 242 ALR 1; [2008] HCA 2 the Takeovers Panel was empowered to make a declaration that unacceptable circumstances existed in relation to the affairs of a company. The Panel could only make or refuse to make such a declaration ‘if it considers that doing so is not against the public interest after taking into account any policy considerations that the Panel considers relevant’: at [52]. The court held that the Panel did not exercise judicial power in making or refusing to make such a declaration. Crennan and Kiefel JJ observed that the judicial power resolved questions about existing rights and obligations in contrast to creating new rights and obligations: at [152]. The rights and obligations of the parties ‘exist independent of, and prior to, the exercise of judicial power’: at [153]. By contrast, the legislative, executive and arbitral functions do not have the purpose of determining existing rights and obligations: at [155]. Adjudication of a dispute is not a decisive indication of judicial power as that task is commonly performed by administrative tribunals: at [161]. The Panel was required to consider the public interest and policy considerations: at [166]. Where policy considerations are subjective and vaguely defined in the legislation, that is an indication of a non-judicial [page 291] function: at [168]. The matters of policy to be considered in making or refusing a declaration were indicative of a non-judicial function: at [169].

Hayne J held that the role of policy in the Panel’s task suggested that the Panel created new rights and obligations: at [88]. The Panel’s task went beyond determining whether there had been a contravention of the Act: at [90]. If the Panel considered that the Act had been contravened, it must consider whether that gave rise to unacceptable circumstances. In making an order in response to a declaration the Panel created rights and obligations as a consequence of the declaration: at [96]. Gleeson CJ agreed with the reasons of Hayne J and the separate reasons of Crennan and Kiefel JJ. He held that the Panel was required to consider matters ‘to which the judicial process is ill-adapted’: at [2]. The Panel did not exercise judicial power: at [7]. Gummow J also agreed with the reasons of Hayne J, and those of Crennan and Kiefel JJ: at [9]. He emphasised that the requirement to consider matters of policy was not a conclusive indicator of non-judicial power: at [14]. In this case, a telling indication of non-judicial power was the creation of new rights and obligations by reference to matters of policy which were vaguely set out in the legislation: at [14]. Kirby J held that the wide policy considerations to which the Tribunal was required to have regard were an indication of non-judicial power: at [40]. The Panel created new rights and obligations: at [42]. Where the Panel determined existing rights and obligations, that was done so only as a basis for determining future rights and obligations: at [43]. The separation of judicial power does not prohibit all consideration of policy by the courts. In Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 Gummow and Crennan JJ pointed out that ‘[w]here 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’. The separation of powers does not inhibit the consideration of policy in that context: at [81]. 527 The forming of an opinion as to legal rights and obligations is not an exclusively judicial function. In Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317 the unanimous court observed that as well as being an element of judicial power, the forming of an opinion as to the legal rights

and obligations of the parties may also be an element of administrative or legislative power: at 189. In Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140; 72 ALR 173 the court pointed out that while the making of binding determinations of existing rights is an aspect of judicial power and hence cannot be undertaken by arbitrators, arbitrators must form opinions as to existing rights in the course of their work in order to determine what new rights and obligations should be created. The opinion formed as to existing rights did not act as a binding determination of existing rights: at 149. In Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers Union (1987) 163 CLR 656; 76 ALR 36 the court noted that while a dispute as to the existence or enforcement of a legal right or breach of a legal obligation involved the exercise of judicial power, arbitral power could include the creation of legal rights and obligations, even where that is done in settling a dispute over past events: at 663. The court contrasted the differences between judicial and arbitral power as follows: ‘The purpose of the [Industrial Relations] Commission’s inquiry is to determine whether rights and obligations should be created. The purpose of a court’s inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty [page 292] should attach to the breach.’ The mere forming of an opinion by the commission as to the present legal position of the parties did not involve an exercise of judicial power because such an opinion did not bind the parties: at 666. In Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; 234 ALR 618; [2007] HCA 23 a statute empowered a disciplinary board to cancel or suspend a liquidator’s registration: at [5]. Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ held that in determining whether to cancel or suspend the registration the board did not ascertain or enforce an ‘existing right or liability’

with respect to an offence: at [21]. Where the board formed an opinion as to the existing rights of a liquidator, that was only a step in the process of deciding whether the liquidator’s functions had been undertaken ‘adequately and properly’: at [28]. In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 317 ALR 279; 89 ALJR 382; [2015] HCA 7 the media authority exercised disciplinary powers over the holders of broadcasting licences. For example, the authority had the power to suspend or cancel a commercial radio licence for breach of a licence condition: at [11]. One of the licence conditions was that the broadcaster did not use the service to commit an offence against federal or State law: at [1], [6]. A radio station had recorded a prank call without the consent of the person who took the call: at [12]–[13]. In deciding whether to take enforcement action the authority determined that the radio station had engaged in conduct that constituted a criminal offence under State law and had thus breached a condition of its licence: at [14]. French CJ, Hayne, Kiefel, Bell and Keane JJ held that an administrative body may determine whether an offence has been committed as a step in deciding whether to begin disciplinary action: at [33]. Making such a finding as part of the enforcement process did not adjudge or punish criminal guilt: at [49]. The finding did not decide a dispute about ‘pre-existing rights or obligations’. It was a step in determining whether a licence condition had been breached and formed the basis for enforcement action: at [58]. A function ‘may be judicial or administrative depending upon the manner of [its] exercise’. The authority would not exercise judicial power by investigating whether a licence condition had been breached and exercising its disciplinary powers against a breach: at [59]. Gageler J held that making a conclusive determination of criminal guilt was an exercise of judicial power. However, when an administrative body investigated and determined whether an offence had been committed, that was not a conclusive determination of criminal guilt: at [63]. An administrative body that exercised a power of investigation and determination could validly express an opinion about a legal right or obligation: at [64]. The authority would not exercise judicial power in cancelling or suspending a licence based upon its finding that an offence had been committed. That enforcement action did not impose punishment for an

offence: at [79]. Only a court could conclusively determine that an offence had been committed: at [80]. The authority’s finding that an offence had been committed ‘would bind no one and conclude nothing’. The cancellation or suspension of a licence was an administrative action: at [81].

Conclusiveness of the decision 528 At the outset it must be noted that the words ‘final’ or ‘binding and authoritative’ have occasionally been substituted for the word ‘conclusive’ in this context. A decision may be an interpretative decision, it may be given by a person or tribunal in accordance with pre-existing standards and yet it may lack the finality that attaches to a judicial decision. [page 293] It may be in effect a mere administrative determination which cannot be enforced by the person or tribunal without a curial decision ordering its execution or enforcement. Or, to put it in another way, it may be a decision which may be reopened in collateral proceedings, that is, proceedings to enforce the decision or in some other way. In British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 the Taxation Board of Appeal was empowered to review decisions of the Income Tax Commissioner. These provisions were challenged on the ground that they constituted an invalid conferment of judicial power upon the board. In so far as the questions raised were not solely questions of law, a taxpayer could request that their case be referred to the High Court, a Supreme Court or the board: at 436. The board could make such orders as it thought fit and these were to be final and conclusive on matters of fact: at 437. The board was obliged to state a case for the opinion of the High Court on any question that the board considered to be a question of law: at 437. An appeal could also be taken to the High Court in its appellate jurisdiction from any order of the board, except in relation to one involving a question of fact: at 437.

The High Court held that judicial power had been conferred upon the board. The board had power to determine questions of law. Through the appeal structure the board was associated with the Supreme Court and the High Court: at 432. In so far as its members were appointed for a term of years, it was invalidly exercising judicial power: at 433, 435, 437, 444. 529 The Commonwealth amended this legislation in order to remedy its constitutional defects. The three essential changes were: (a) the decisions of a Board of Review in reviewing a determination were to take the place of the Income Tax Commissioner’s decision; (b) the determination of the question whether an issue was a question of law was to be made by the court and not by the board; and (c) the decisions of the board on questions of fact were expressly stipulated not to be final. In Shell Company of Australia Ltd v Federal Commissioner of Taxation (the Shell case) (1926) 38 CLR 153 (HC); (1930) 44 CLR 530 (PC) the High Court and the Privy Council both held that the changes had cured the defects found to exist in the earlier legislation. The board was now a review tribunal that reassessed a taxpayer’s return. There were two possible alternatives open to the taxpayer who sought a review of the Commissioner’s decision. They could have an administrative reassessment by the board, the decision of which was not conclusive, or they could have the assessment decided or reviewed on a legal point by the High Court in its original jurisdiction. If having chosen the board, they then wished to challenge its determination, they could appeal to the High Court in its original jurisdiction. This reassessment would be limited to questions which, in the view of the High Court, were questions of law. Under s 73 of the Constitution an appeal might be taken to the High Court in its appellate jurisdiction from a decision of the High Court in original jurisdiction in such matters. The company argued that the new board was the old board in camouflage. The Privy Council held that there were real differences between the two boards. There were tribunals with many of the trappings of a court which nevertheless were not courts in the strict sense of exercising judicial power:

1. 2. 3.

A tribunal is not necessarily a Court in this strict sense because it gives a final decision. Nor because it hears witnesses on oath. Nor because two or more contending parties appear before it between whom it has to decide. [page 294]

4. 5. 6.

Nor because it gives decisions which affect the rights of subjects. Nor because there is an appeal to a Court. Nor because it is a body to which a matter is referred by another body. [(1930) 44 CLR 530 at 544] Of course this comment is a negative one and has the vice of playing down the importance of the ‘trappings’ which often surround the judicial decision. There is no doubt that the different decisions reached in these two cases depended to a large extent on the setting of the two bodies within the appeal structure. The courts have traditionally distinguished between judicial and quasi-judicial power (which has some of the trappings of judicial power). The latter falls outside the requirements of s 71. 530 Another question which has arisen is whether a power to make a conclusive decision on a question of fact is judicial. In Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 the Women’s Employment Regulations established a Women’s Employment Board to decide whether specific work could be performed by women, and to determine conditions of employment and rates of pay. An employer who proposed to employ women was required to make an application to the board for approval of the proposal. The board was given power to decide whether the nature of the employment fell within a certain category, and if so, whether women could be employed on the work: at 194. The board’s decision was binding upon the specified employers and employees: at 195. Committees of reference were established to determine whether women were employed by an employer in work that had been specified in a decision of the board. A determination

made by a committee was declared to bind both the employers and the women specified in that determination: at 195. The Regulation was challenged on the ground that it was an invalid conferral of judicial power upon a tribunal which was not constituted in accordance with s 72 of the Constitution. It was argued that a committee of reference was given power to determine the precise questions which might in other proceedings have to be determined by the court and the committee was therefore being substituted for the court in the exercise of judicial power. 531 The High Court held that the function was not a judicial one. Latham CJ held that the committee had no power to determine jurisdictional facts: at 196. The decision of the committee was part of the decision of the board and they formed a juristic unit. Decisions on a question of fact by the committee bound parties just as the awards of the board bound the parties: at 197. However, it was not the binding quality of the determination which was conclusive as to the presence of judicial power; it was whether or not the decision created an instant liability: at 198–9. The determination of the committee bound as a matter of evidence, but of itself created no instant liability: at 199–200. McTiernan J agreed with Latham CJ. He added that in his opinion the determination was in the nature of an administrative award: at 213. Starke J considered that the power given to the committee was essentially one of identification of fact rather than of interpretation. ‘No-one doubts that the ascertainment or determination of facts is part of the judicial process, but that function does not belong exclusively to the judicial power’: at 211. On the basis of the authorities one may infer that the power to make conclusive determinations of fact is not by that fact alone an exercise of judicial power. A determination of such a nature may occur ancillary to the process of making an administrative decision. In Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 Latham CJ stated that where an instant liability is created, the power conferred will be characterised as judicial: at 199. But there are situations where the establishment of liability may depend upon steps in [page 295]

a chain of approvals involving a non-judicial tribunal and a court. It is arguable that in such cases a fact-determining power vested in the tribunal which leads to a future liability after curial decision may be characterised as part of the judicial power. 532 The word ‘conclusive’ does not necessarily mean final in the sense that no appeal is possible. It means a decision which cannot be reopened with the purpose of trying the issues again in collateral or consequential proceedings. The power to make a decision which has binding force or to impose a penalty is not necessarily the exercise of judicial power. Administrators or administrative tribunals may validly exercise such powers as in the case of powers conferred on the Income Tax Commissioner and Comptroller-General of Customs. A power to order the production of documents or to furnish information may be administrative. In Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460; 43 ALR 449 Gibbs CJ said: ‘An inquiry into facts which are the subject of pending proceedings is not necessarily an exercise of judicial power. Inquiries may be made for executive or for legislative purposes’: at 467. The High Court cannot be deprived of its ultimate jurisdiction to decide whether a tribunal formed under Commonwealth legislation has jurisdiction to determine a particular matter. Consequently a statutory provision purporting to vest in such a body a conclusive power to determine the jurisdictional fact would be invalid. 533 If a tribunal has power to enforce its own decisions by some process of execution, then its decisions must almost inevitably be conclusive as to fact and law and its power would be regarded as judicial. In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1 the Racial Discrimination Act 1975 (Cth) provided that determinations of a nonjudicial body (the Commission) could be registered in the Federal Court and would thereby take effect as a Federal Court order: at 259–60. The court unanimously held that these provisions were invalid. Deane, Dawson, Gaudron and McHugh JJ noted that enforceability of decisions is a hallmark of judicial power: at 268. The registration provisions provided for the enforcement of the Commission’s non-judicial determinations: at 269. The review provisions were not automatic, and a determination by the

Commission might take effect as a court order without review by the Federal Court: at 270. Mason CJ, Brennan and Toohey JJ held that the Commission exercised executive power while the process of registration was an administrative function: at 260. Together they could not create an order which took effect as an exercise of judicial power: at 260. An order which takes effect as an exercise of judicial power must be preceded by a judicial determination: at 260. Provisions relating to review by the Federal Court of the determination of the Commission did not save the law from invalidity. The review process was not a hearing de novo (a new hearing from the beginning): at 263. For a discussion of this case, see Henderson (1995) 17 Syd LR 581. Brandy was distinguished in Attorney-General (Cth) v Breckler (1999) 197 CLR 83; 163 ALR 576; [1999] HCA 28. The court held that a determination by the Superannuation Complaints Tribunal was an arbitration of a superannuation dispute according to procedures and criteria provided by the trust instrument. It was not an exercise of sovereign power: at [43]. The application of the relevant Act was the result of an election given to the trustees: at [44]. The governing Acts took the existence of the Tribunal’s determination as a criterion for the imposition of legal norms and their enforcement. Judicial power is not necessarily exercised where a determination is the factum by reference to which a law confers judicially enforceable rights and liabilities. In this case the Tribunal’s determination was given effect by an independent exercise of judicial power: at [45]. See also Perry in Stone and Williams, 2000, pp 148–77. [page 296] In Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; 242 ALR 1; [2008] HCA 2 the Takeovers Panel was empowered to make a declaration that unacceptable circumstances existed in relation to the affairs of a company: at [52]. Crennan and Kiefel JJ held that the absence of a power in the panel to enforce its own orders was an indication of non-judicial power: at [175]. Gummow J agreed with Crennan and Kiefel JJ: at [9]. Hayne J emphasised that the panel did not have power to enforce its orders. The courts had power

to make orders to enforce an order of the panel: at [91]. Gleeson CJ held that the panel created new rights and obligations which would be enforced by an ‘independent exercise of judicial power’: at [2]. Kirby J also considered that it was significant that the panel had no power to enforce its orders: at [44]. 534 Private arbitral power must be distinguished from public judicial power. Judicial enforcement of awards rendered by private arbitral tribunals was upheld in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; 295 ALR 595; [2013] HCA 5. In that case Commonwealth legislation provided for the judicial enforcement of awards issued under the UNCITRAL Model Law on International Commercial Arbitration: at [43], [52]. A court had no power to refuse enforcement of an award on the ground of error of law: at [53]. Hayne, Crennan, Kiefel and Bell JJ observed that Commonwealth judicial power was an exercise of public authority. Where parties agreed to submit their disputes to a private arbitral tribunal, the tribunal exercised private arbitral power not public judicial power: at [75]. The finality of an arbitrator’s determination of questions of law was not a delegation of judicial power to the arbitrator. A private arbitrator’s determination of a dispute was not an exercise of public power: at [107]. The finality of the arbitrator’s determination of issues of law was the result of agreeing to submit the dispute to arbitration. The original rights and obligations of the parties were replaced by new obligations created by the award: at [108]. French CJ and Gageler J also drew a distinction between public judicial power and private arbitral power. Commonwealth judicial power was a coercive governmental power that was not exercised by mutual agreement between the parties: at [28]. By contrast, private arbitral power arose from a voluntary agreement between the parties: at [29]. The making of an arbitral award was not an exercise of Commonwealth judicial power since the authority to make the award derived from the agreement between the parties: at [31]. Judicial enforcement of an arbitral award was an exercise of Commonwealth judicial power: at [32].

Constitutive versus interpretative power

535 The courts may be influenced by the width of the discretion granted to a body. Generally speaking, the wider the discretion the more likely it is that the power conferred upon the body will be treated as a power to create new rights (that is, as constitutive and not interpretative). In Silk Brothers Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 the court held that the power of Fair Rents Boards to determine applications by landlords for recovery of their premises was judicial in nature: at 9, 18, 21, 23. The power of ordering ejectment was similar to that conferred upon courts under summary ejectment Acts. It was a controversy between subject and subject in accordance with definite criteria. It involved an assessment of the respective claims of landlord and tenant. The decision of the board was binding and could lead to an order that premises be vacated: at 9. However, the power of fixing fair rents was not an exercise of judicial power: at 13, 18, 23. The circumstances which the board could take into account were not similar to those to be [page 297] taken into account in determining an action for the recovery of premises. The board could take into account economic and other discretionary factors. The board’s decision led to the creation of new rights, such as the right of a landlord to a higher rent. In Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 a State court that exercised federal jurisdiction was given power to decide whether an employer had refused to employ a person who, under rehabilitation legislation, was entitled to preference in employment: at 149. It was held that this power was non-judicial. The function of the court in exercising jurisdiction appeared to be entirely administrative. It was the same as the function of the employer in considering an application for employment. The decision was a typically administrative decision with the tribunal reviewing the discretion of the employer to decide whether preference was required by the legislation in the circumstances of the

particular case. No antecedent rights were to be ascertained, determined or enforced: at 151. Consequently, non-judicial power had been invalidly conferred upon State courts: at 152. No doubt the distinction between a constitutive and an interpretative function might be difficult to draw in particular cases. Judicial decisions often contain a certain creative or discretionary element. On the other hand, decisions made by administrative bodies must be made within the limits set by the law and this involves interpretation by those administrative authorities of their legal limits. 536 This distinction was discussed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361. If the Trade Practices Tribunal was satisfied that an examinable agreement existed or an examinable practice was being engaged in, it should make a determination recording its findings and determine whether the restrictions in the agreement were contrary to the public interest: at 373. The court held that neither the decision as to the existence of the conditions for the tribunal’s jurisdiction nor the decision that an agreement was contrary to the public interest were judicial. In the words of Kitto J (at 376): The Act requires the Tribunal in considering the question of the public interest to make a basic assumption and to take certain matters into consideration …, but the question upon which it has to pronounce is not as to whether the relevant restriction or practice satisfies an ascertained standard but as to whether it satisfies a description the content of which has no fixity — a description which refers the Tribunal ultimately to its own idiosyncratic conceptions and modes of thought.

If the decision involves nothing more than interpretation, then it may be judicial. The interpretative element is usually only one step in reaching a decision. See Johnson v Minister of Health [1947] 2 All ER 395 at 397. The greater the element of discretion and the wider that discretion, the more likely it is that a court will say that the decision is non-judicial. 537 In Baker v R (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 a State law provided that a prisoner serving a life sentence could apply to the Supreme Court for the determination of a minimum term to be served and an additional term during which they could be paroled: at [1]. Where the sentencing judge had stated that the prisoner should never be released, the prisoner could only be granted a minimum or additional term if special reasons

for doing so were shown: at [2]. A majority of the court held that while the concept of ‘special reasons’ created a wide discretion, broad discretions were also consistent with judicial power: at [13], [42], [173]. Furthermore, using a non-release recommendation as a criterion for eligibility for release was not inconsistent with judicial power: at [24]. In Magaming v The Queen (2013) 252 CLR 381; 302 ALR 461; [2013] HCA 40 the simple offence of people smuggling consisted of organising or facilitating the bringing [page 298] of an unlawful non-citizen into Australia. The aggravated offence of people smuggling consisted of organising or facilitating the bringing of five or more unlawful non-citizens into Australia: at [1]. The simple offence was not subject to a mandatory minimum penalty. This offence was punishable to a mandatory minimum sentence of five years imprisonment. An offender who smuggled five or more persons could be prosecuted for either offence: at [2]. French CJ, Hayne, Crennan, Kiefel and Bell JJ noted that the court had already held that the judicial power was not infringed by identical offences subject to different punishments: at [34]–[35]. In this case the elements of the offences were not identical. They ‘overlapped’ but were not ‘coextensive’: at [17], [36]. Existing authority supported the validity of the provisions and should be followed: at [37]. The judicial power is not infringed by prosecutorial discretion as to whether to charge an accused person with the simple or aggravated form of an offence: at [38]. The presence of a mandatory minimum penalty for the aggravated offence but not for the simple offence did not affect this conclusion. That was similar to the prosecutorial choice between a summary proceeding or by way of indictment, which often had a significant effect upon penalty: at [39]. The prosecutorial discretion here did not violate the separation of judicial and prosecutorial functions and was not inconsistent with the institutional integrity of the courts: at [40]. The judiciary requires yardsticks for sentencing. A mandatory minimum

sentence is such a yardstick. A mandatory minimum sentence of imprisonment does not infringe the judicial power: at [48]. The appellant had argued that the mandatory punishment was disproportionate to an offence at the lower end of the scale: at [50]. However, the harshness of a mandatory sentence did not result in its invalidity: at [52]. Keane J agreed with French CJ, Hayne, Crennan, Kiefel and Bell JJ, while adding some further observations regarding proportionality in sentencing: at [100].

Repository of power 537A Some powers may be administrative when conferred upon an administrative body, but judicial in nature when conferred upon a court. The court makes a binding enforceable decision. See H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; 156 ALR 563; [1998] HCA 54 at [15]; Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [39], [134], [140]; Pasini v United Mexican States (2002) 209 CLR 246; 187 ALR 409; [2002] HCA 3 at [12], [63]. For example, in R v Quinn; Ex parte Consolidated Foods Corp (1977) 138 CLR 1; 15 ALR 569 jurisdiction to remove a trade mark from the register was vested in the High Court or the Registrar of Trade Marks. The court held that the power conferred upon the registrar was not part of the judicial power. The power was not one which by its nature or by its association with traditional curial processes constituted the essential nature of judicial power: at 9–10. When exercised by an administrator it could be characterised as an exercise of non-judicial power. In Pasini v United Mexican States (2002) 209 CLR 246; 187 ALR 409; [2002] HCA 3 the federal extradition legislation provided that if a magistrate determined that a person was eligible for surrender to another national government, the Federal Court would review the magistrate’s determination. The High Court held that the Act did not confer administrative power upon the Federal Court. Under this procedure the functions of the magistrate and the Federal Court were different: at [14]. The magistrate undertook an administrative task, whereas the Federal Court’s power was a judicial one. The

Federal Court would determine the correctness of the magistrate’s decision and would decide what decision should have [page 299] been made. In so doing, the court exercised judicial power by determining the rights and liabilities of the parties: at [18]. The court thereby ‘declares and enforces the law’: at [16].

Delegation of federal judicial power 538 The extent to which federal courts may delegate their powers was raised by Harris v Caladine (1991) 172 CLR 84; 104 ALR 89. The Family Law Act 1975 (Cth) empowered the judges of the Family Court to make rules of court delegating to the registrar many of the powers of the court. The registrar’s exercise of these powers was deemed to be an exercise of the power by the court: at 99. The delegation of these powers did not prevent the court itself from exercising these powers. When a registrar exercised these powers a party could apply to the court for a review of this exercise. The Family Law Rules also delegated to registrars certain powers, including the power to make consent orders: at 101. A court reviewing an exercise of these powers was conducting a hearing de novo but could have regard to the proceedings before the registrar: at 96, 98. A majority of the court held that the legislation was valid. Mason CJ and Deane J pointed out that prior authority permitted functions which were exercises of judicial power to be undertaken by the officers of Chapter III courts, not just by the judges themselves: at 92. It had also been held that officers of State courts invested with federal jurisdiction could perform such a function. ‘It makes little sense either as a matter of logic or policy to require that the power be exercised solely by federal judges to the exclusion of officers of a court when, in the case of invested federal jurisdiction, the power may be exercised by officers of State courts’: at 93. They made clear that two conditions must be met for such a delegation to be

valid. The delegation cannot be such that the judges no longer manage the more important aspects of contested matters. The exercise of the delegated power must also be subject to review by the judges themselves: at 95. Dawson J stated the question succinctly: ‘whether a court consisting of justices, or judges, may perform functions which involve the exercise of judicial power by, or through, persons who are not judges’: at 116. He indicated that merely because a court is composed of judges did not mean that it could not perform its responsibilities with the assistance of its officers: at 121. But the court must supervise the exercise by its officers of the functions that had been delegated to them: at 122. The legislation provided an effective measure of control over the exercise of these delegated functions: at 123. Gaudron J observed: ‘There is nothing incongruous in the notion that particular powers, although conferred on a court, might be exercised by some person or persons not constituting the court, provided, of course, that they are exercised in a manner consonant with the exercise of judicial power’: at 145. Given the investiture of similar powers in officers of State courts exercising federal jurisdiction, s 71 was not infringed by the investiture of similar functions in the officers of federal courts: at 148. Chapter III imposed limitations upon the delegation of the functions of courts, but those limits were not exceeded here: at 149, 152. It was essential that there be judicial supervision of the exercise of these delegated functions: at 151. McHugh J formulated the necessary supervision as review by a hearing de novo by a judge of the court. Appellate review would not suffice: at 164. See also Harrington v Lowe (1996) 190 CLR 311 at 321; 136 ALR 42.

The power to detain 539 In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97 Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ [page 300]

held that power could be conferred upon the executive to detain a noncitizen for the purposes of expulsion without infringing Chapter III. Brennan, Deane and Dawson JJ indicated that excepting military justice, contempt of Parliament, committal awaiting trial and detention on health grounds, ‘the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth’: at 28–9. Had the legislation in question not been limited to non-citizens, it would have been ‘plainly’ invalid: at 29. Executive detention of non-citizens is constitutionally permissible: at 32. It is a part of the executive power and does not infringe the judicial power: at 32. Gaudron J agreed generally with Brennan, Deane and Dawson JJ: at 53. However, she indicated that their identification of the exceptions to the constitutional immunity might not be exhaustive: at 55. In dissent, Mason CJ also agreed with Brennan, Deane and Dawson JJ that authority could be conferred upon the executive to detain a non-citizen without infringing Chapter III: at 10. For a discussion of this case, see Crock (1993) 15 Syd LR 338. In Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124; [2004] HCA 37 the migration legislation provided that immigration detention would end if the detained alien was removed from Australia at their own request: at [1]. A stateless person held in detention requested his removal from Australia. However, no country would accept him. The Federal Court held that there was no realistic possibility that he would be able to be removed from Australia within the foreseeable future: at [2]. The High Court upheld the continued detention of the appellant, notwithstanding that there was little likelihood of his removal in the foreseeable future. McHugh J held that the detention was non-punitive where its purpose was to ensure that the alien was available for deportation or to prevent their entry into the community: at [45]. Hayne J observed that the statute gave the executive no discretion about detention, which was mandatory. The decision-making about detention thus did not have the characteristics of an exercise of judicial power: at [254]. Since it has been held that mandatory detention of unlawful entrants does not

violate Chapter III, unlawful entrants may be detained without judicial process: at [258]. The prolonged detention of the appellant after he requested removal was not done for any punitive purpose: at [261]. The detention of asylum seekers was distinguishable from detention for punishment in that immigration detention was not imposed as punishment for an offence: at [266]. Heydon J agreed with Hayne J: at [303]. Callinan J held that the detention of aliens was of a non-punitive nature and was compatible with Chapter III: at [291]. While dissenting on different grounds, Gleeson CJ also held that the detention was not punitive in nature, and thus did not infringe Chapter III: at [4]. For a discussion of this case, see Curtin (2005) 27 Syd LR 355. 539A In Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; 210 ALR 369; [2004] HCA 49 Gleeson CJ held that a statute may empower the executive to detain noncitizens without infringing Chapter III, provided that the exercise of the power of detention is an ‘incident of executive power’: at [23], [25]. Where an alien is detained for exclusion or removal, the detention is not punitive: at [24]. The severity of the effect of detention upon some individuals or groups did not render the detention punitive: at [29]. An adult detainee could end the detention by requesting their removal from Australia: at [30]. Some children would not have legal capacity to request removal. However, that would not affect the validity of the detention: at [30]. [page 301] McHugh J suggested that detention of citizens in peacetime would not invariably be punitive, even allowing for the established exceptions: at [57], [59]–[60]. The purpose of the detention is the key to determining whether it is punitive: at [60]. Detention which has a non-punitive purpose but a punitive effect will not infringe Chapter III: at [82]. Detention for nonpunitive purposes does not infringe Chapter III: at [77]. For example, detention for protective purposes will not violate the separation of powers: at [61]–[62]. The immigration detention legislation was not invalid for failing to provide for a maximum period of detention: at [95]. The fact that a detainee could request their removal from Australia (and hence from detention) was an

indication that the detention had a non-punitive purpose: at [95]. The detention of children did not have a punitive purpose. The detention did not become punitive merely because some children lacked the capacity to request removal: at [102]. The child’s parents would have capacity to request removal. (The facts did not raise the question of unaccompanied children: at [104].) Gummow J held that since a child in detention was under the authority of their parents, the parental authority to request removal meant that the child was not deprived of their liberty to any greater degree than an adult with the power to request their own removal: at [159]–[160]. Kirby J stated that the ‘imposition of punishment is a judicial function, not an administrative one’: at [181]. However, the detention of aliens was an exception to the normal principle that executive detention was punitive: at [182]. The applicants had not provided sufficient evidence that their own conditions of imprisonment were inhumane: at [189]–[190]. Hayne J held that immigration detention was not punitive but was done for the purpose of exclusion from the community: at [222]. The decision-making process regarding detention was administrative rather than judicial in character: at [224]. A detained child’s parents had the capacity to end the detention by requesting removal: at [226]. The length of time an asylum seeker was detained could not cause the detention to become punitive: at [227]. Heydon J agreed with Hayne J: at [270]. Callinan J noted that administrative detention for non-punitive purposes had been regarded as compatible with Chapter III: at [261]. Immigration detention of aliens had a non-punitive purpose: at [262]. The detention of alien children stood in no different position: at [263]. In Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; 208 ALR 271; [2004] HCA 36 three judges (Gleeson CJ, Hayne and Callinan JJ) held that the harsh conditions at an immigration detention centre did not make the executive detention of the aliens held therein an unconstitutional exercise of judicial power: at [21], [167]–[176], [218]. Three other judges (McHugh, Gummow and Heydon JJ) decided the case on statutory interpretation grounds, holding that harsh conditions did not affect the legality of the detention: at [53]. The correctness of the decision in Al-Kateb v Godwin (2004) 219 CLR 562;

208 ALR 124; [2004] HCA 37 remains controversial. In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; 304 ALR 135; [2013] HCA 53 French CJ, Hayne, Crennan, Bell, and Gageler JJ declined to reconsider the constitutional holding in Al-Kateb: at [31], [136]. A majority (French CJ, Crennan, Bell and Gageler JJ) found it unnecessary to consider the correctness of Al-Kateb: at [31], [137], [149]. A minority (Hayne, Kiefel and Keane JJ) indicated that Al-Kateb was correctly decided: at [129], [204]–[205]. The authority of the Al-Kateb decision was undermined by obiter dicta of the unanimous bench in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR [page 302] 219; 312 ALR 537; [2014] HCA 34. In that case French CJ, Hayne, Crennan, Kiefel and Keane JJ stated that immigration detention of non-citizens can only take place for three purposes: for removal from Australia, for deciding a visa application or for deciding whether to permit a non-citizen to apply for a visa: at [26]. These purposes must be carried out ‘as soon as reasonably practicable’: at [28]. These appear to be constitutional limitations. See Chia (2015) 38 UNSWLJ 628 at 649–51. 539B In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; 90 ALJR 297; [2016] HCA 1 the plaintiff asylum seeker had travelled to Australia by boat. Commonwealth officers took her to Nauru, where she was detained under Nauruan law in a Commonwealth-funded regional processing centre for refugee claimants: at [1], [8]. French CJ, Kiefel and Nettle JJ held that the Commonwealth had not detained the plaintiff: at [36]. The plaintiff had been detained under Nauruan law, not Commonwealth law: at [34]. The question for the court was the lawfulness of the Commonwealth’s participation in the plaintiff’s detention by the Nauru government: at [28], [37]. While the Commonwealth had funded the plaintiff’s detention, the Commonwealth did not authorise or control that detention: at [39].

Bell J held that the Commonwealth ‘caused and effectively controlled’ the plaintiff’s detention on Nauru. The Commonwealth funded the detention centre and contracted for its security, cleaning and catering: at [12], [93]. The detention of an alien by the executive under statutory authorisation will not violate Chapter III provided that the detention is ‘limited to that which is reasonably capable of being seen as necessary for the purposes of deportation or for the purposes of enabling an application by the alien to enter and remain in Australia to be investigated and determined’: at [98]. If not so limited the detention is punitive and beyond power: at [98]. These principles also applied where the Commonwealth caused and effectively controlled the detention of an alien taken from Australia to another country: at [99]. However, the plaintiff’s detention did not violate these principles: at [99]. While the regional processing system may have had the purpose of deterring unauthorised boat arrivals, that purpose did not make the detention punitive: at [100]. Gageler J indicated that a law conferring upon the executive the power to detain would be punitive unless ‘the duration of the detention [was] reasonably necessary to effectuate a purpose which is identified in the statute … and which is capable of fulfilment’ and that duration ‘must also be capable of objective determination by a court at any time’: at [184]. However, these conditions were satisfied in this case: at [185]. Keane J considered that previously identified restrictions upon detention related only to detention by the Commonwealth: at [238]. The plaintiff had been detained by the Nauruan government under Nauruan law: at [239]. The plaintiff’s detention thus did not violate Chapter III: at [241]. The deterrent effect of the statute did not make the detention punitive: at [263]. In dissent, Gordon J argued that Chapter III had been infringed: at [388]. 540 In Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 the court held that a 1918 law that authorised the removal and detention of Aboriginal children by an administrative authority did not infringe upon the judicial power. It had been argued that the law infringed an implied freedom from removal or detention except in accordance with due process of law in the exercise of the judicial power under Chapter III. Brennan CJ held that the law was authorised by s 122, which was immune from any such implication: at 44.

Dawson J held that the Constitution ‘contains no general guarantee of the due process of law’: at 61. McHugh J agreed with Dawson J: at 142. [page 303] Toohey J held that the power of involuntary detention was usually an aspect of judicial power: at 84. However, when judged by the standards of the time the non-punitive character of this law meant that it did not infringe upon the judicial power: at 84–5. Gaudron J was of the view that the immunity of a citizen from detention except in the exercise of judicial power did not arise from Chapter III but arose because the powers in s 51 did not authorise such detention, with several possible exceptions: at 111. Since no such immunity arose from Chapter III, the law was not invalid as infringing upon the judicial power: at 111. The power to order involuntary detention was not exclusively judicial in character: at 112. Gummow J held that the power to order punitive detention was part of the judicial power: at 161–2. However, the power at issue was not punitive in nature: at 162. In Vasiljkovic v Commonwealth (2006) 227 CLR 614; 228 ALR 447; [2006] HCA 40 the court upheld the detention of an Australian citizen while their eligibility for extradition to another nation was determined. The extradition regulations at issue were based upon the ‘no evidence’ model adopted in most civil law nations, rather than the ‘prima facie’ model applied in common law systems: at [14]. The court held that detention is a necessary part of the extradition process: at [35], [110]. Gleeson CJ stated that the extradition process involved no determination of guilt or innocence, but concerned the transfer of a person to another jurisdiction where that issue would be determined: at [34]. Extradition was an exception to the general immunity of citizens from executive detention during peacetime: at [37]. The decision to allow a person to be surrendered to another nation was properly an executive rather than a judicial one: at [38]. The ‘no evidence’ model was a constitutionally permissible criterion for eligibility for surrender: at [39]–[40]. Gummow and Hayne JJ observed that a magistrate exercises an

administrative function when determining a person’s eligibility for surrender to another nation: at [58], [104]. The Australian courts do not determine the guilt or innocence of the person, so there is no ‘matter’ under Chapter III: at [105]–[106]. Detention of a person pending determination of their eligibility for surrender stood outside the general prohibition under Chapter III of detention other than as part of the process of adjudication of an offence: at [107]–[108]. The detention stood outside Chapter III since there was no determination of guilt by an Australian court and the detention did not occur pursuant to an Australian trial process: at [116]. They characterised extradition as standing outside Chapter III, rather than as an exception to its requirements: at [116]. Heydon J agreed with Gummow and Hayne JJ, but reserved his opinion as to the validity of an extradition procedure that was not accompanied by the present system of judicial review: at [222]. For a discussion of this case, see Morrell (2007) 29 Syd LR 321. In North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41 a Territory law provided that a police officer who had arrested a person for an infringement notice offence had power to detain that person for up to four hours or until the detainee was no longer intoxicated. The detainee could be released without conditions, released with an infringement notice, released on bail or brought before a court for an offence: at [16]. The court held that the separation of judicial power had not been breached since this form of detention was not punitive in nature. French CJ, Kiefel, Bell, Gageler, Nettle and Gordon JJ all accepted the general principle that detention of a citizen is punitive and is permissible only as part of the judicial power of judging and punishing crime. The most important exception to this principle is that the arrest and detention of a person accused of a crime is not punitive in character or exclusively judicial in character: at [37], [94], [97], [236]. [page 304]

French CJ, Kiefel and Bell JJ held that the challenged provision did not have a ‘punitive purpose’: at [36]. The provision was valid since it fell within the exception for the detention of persons accused of crime. However, if the period of detention had been ‘significantly greater’, the provision might have been punitive in nature: at [38]. Nettle and Gordon JJ held that the provision could be construed so as to fall within the exception for the detention of persons accused of crime: at [237]. Gageler J considered that the challenged provision was punitive in nature: at [103]. Keane J found it unnecessary to decide whether the challenged system of detention was punitive: at [145], [153]. For discussions of the power to detain, see McDonald (2007) 35 FL Rev 25; Keyzer (2008) 30 Syd LR 101; Stellios, 2010, pp 221–32, 261–72; Gerangelos et al, 2013, pp 1242–60; Williams, Brennan and Lynch, 2014, pp 554–74, 589–600.

Other preventive restrictions upon individuals 540A Chapter III does not prohibit the legislature from authorising the judicial imposition upon individuals of preventive restrictions that fall short of detention. In Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 the counter-terrorism provisions of the Commonwealth Criminal Code empowered a Federal Magistrate to issue an interim control order that imposed restrictions upon the activities of individuals: at [8]. The court had to be satisfied that the restrictions imposed were ‘reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act’: at [9]. By a 5-2 majority the High Court held that these provisions did not infringe Chapter III. Gleeson CJ held that the power to impose preventive restrictions upon an individual’s liberty both restricted existing rights and created new obligations. However, such powers had been exercised by the courts and were not inherently non-judicial: at [15]. Bail and apprehended violence orders were examples of such judicial tasks: at [16]. It had been argued that the power to impose such restrictions was punitive in nature and could only be imposed as part of criminal punishment: at [18].

However, such restrictions upon personal liberty were not limited to those that were a consequence of conviction of an offence: at [18]. It was also argued that the power to issue a control order was repugnant to the judicial function: at [19]. The standard of ‘reasonably necessary and reasonably appropriate and adapted’ was an established one that was not too ambiguous to be susceptible of judicial application: at [27]. The courts already frequently determined whether individuals posed a risk to the public. There was no difference in kind between doing so in a terrorism context and doing so in a domestic violence context: at [28]. The issuance of interim control orders was not performed in a manner that was inconsistent with judicial power. Applications were presented in open court and were subject to the rules of evidence. The court was not a ‘mere instrument of government policy’. Orders were issued through the judicial process, with its emphasis upon impartiality and individualised justice: at [30]. Gummow and Crennan JJ pointed out that widely expressed legislative criteria were capable of judical application: at [58]. It had been argued that the challenged provisions conferred non-judicial power upon a federal court: at [63]. However, the provisions contained ‘adequate legal standards or criteria’ for their application: at [72]. The restrictions that an interim control order might impose were similar to those that were already imposed for the purpose of preventing future violence: at [79]. The courts were to apply the interim control order provisions in a judicial manner: at [95]. [page 305] They rejected the argument that the challenged provisions required the courts to act inconsistently with their ‘essential character’ or ‘with the nature of judicial power’: at [111]. Ex parte applications were not unusual: at [112]. Chapter III did not prevent the legislature from setting the standard of proof for such proceedings, in this case proof on the balance of probabilities: at [113]. The courts had power to impose non-custodial preventive restrictions upon individuals before Federation: at [116], [121]. Callinan J agreed with Gummow and Crennan JJ: at [600]. He held that the

issues in an interim control order proceeding were suitable for judicial decision. The issuance of orders for the prevention of violence was a common judicial task: at [595]. The interim control order proceedings were accompanied by the ‘usual indicia’ of judicial power, such as the rules of evidence and legal representation. The courts would apply orthodox legal methodology to the task at hand: at [599]. Heydon J agreed with the separate judgments of Gleeson CJ, Gummow and Crennan JJ and Callinan J: at [651]. In dissent, Kirby and Hayne JJ held that non-judicial power had been conferred upon a federal court: at [361], [517].

Removal from Australia 540B In Vasiljkovic v Commonwealth (2006) 227 CLR 614; 228 ALR 447; [2006] HCA 40 the constitutionality of the extradition of Australian citizens to another nation was upheld. Gummow and Hayne JJ held that the Constitution did not guarantee Australian citizens any general immunity against removal from Australia pursuant to federal law: at [48], [82]. The operation of the Hague Child Abduction Convention provides another example where the removal of an Australian citizen to another nation was upheld. See DJL v Central Authority (2000) 201 CLR 226; 170 ALR 659; [2000] HCA 17 at [21], [137]–[138].

Combination of judicial and non-judicial powers 541 In Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 it was held that the power of enforcing decisions of the Arbitration Court could not be vested in that body as its members were not appointed for life in accordance with s 72. After this decision the statute was amended to provide for the life appointment of its members. The court then proceeded on the basis that it could not only make awards but it could also give effect to those awards; that is to say, it combined the exercise of judicial power with quasi-legislative power. However, in Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (HC); (1957) 95 CLR 529 (PC) (the

Boilermakers’ case) it was held that judicial powers could not be validly conferred upon a body that was established with the principal purpose of performing non-judicial functions even though it might be constituted on the same basis as that of a federal court. Judicial power could not be combined with other types of powers. As a consequence the judicial power conferred upon the Arbitration Court to enforce awards and to punish for contempt was invalid. Of course the power of enforcement was pre-eminently judicial. Therefore, its combination with the arbitral powers was not within the constitutional competence of the Commonwealth Parliament. (It was recognised that some administrative power could be conferred upon a court so long as it was merely incidental to the exercise of the judicial power.) [page 306] The effect of s 71 was to demarcate the judicial power as an independent power which could not be tied to other powers. It was impossible to escape the conviction that: Chapter III does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial power of the Commonwealth by a body established for purposes foreign to the judicial power, notwithstanding that it is organized as a court and in a manner which might otherwise satisfy ss 71 and 72, and that Chap. III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it. [(1956) 94 CLR 254 at 296]

Following this decision, Parliament reorganised the arbitration system. An Arbitration Commission was established to exercise the arbitral powers of the old Arbitration Court. A new Industrial Court would exercise the judicial powers of the old court. In Seamen’s Union of Australia v Matthews (1956) 96 CLR 529 it was held that the Industrial Court was a federal court validly established under Chapter III and capable of exercising the judicial power of the Commonwealth: at 535. 542 The allocation of powers to one or other of these bodies was attacked in subsequent cases. In R v Spicer; Ex parte Builders Labourers’ Federation (1957) 100 CLR 277 the power conferred upon the Industrial Court to disallow rules

of a trade union on the basis that they were tyrannical or oppressive to members was held to be invalid: at 291, 296, 304, 311. The grounds on which the court might decide that rules were oppressive were indeterminate so its decision was more in the nature of a restructuring of legal relationships rather than an interpretative decision: at 293. After this case, the Commonwealth Parliament amended the legislation to make provision for the grounds on which the power of disallowance should be exercised, although the changes made were more procedural than substantive. The new amendments were upheld in R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (1960) 103 CLR 368. Fullagar J pointed out that the power which was interpreted in the Builders Labourers’ case was ‘not a power of determination, but a general supervisory power’ which might be exercised by the Industrial Court on its own motion and according to a discretion based upon ‘purely industrial or administrative considerations’: at 375. However, under the new section the court was not entitled to entertain an application of its own motion — it could only act once an application was made to it by a member of an organisation. The fundamental difference between the old provision and the new one could be expressed by saying that ‘under the old section the Court by its own act — the act of “disallowance” — nullifies the rule, whereas under the new section it determines judicially whether the rule is antecedently nullified by subs. (1)’: at 376–7. This decision suggests that, particularly in the industrial arena, if the legislature lays down a sufficiently defined procedure for the court to follow, the power will not be struck down merely because the criteria to be taken into account in exercising that power are broad and closely related to social policy. Conversely, an administrative or arbitral body may be held to exercise non-judicial power where the criteria employed in reaching a decision are personal or subjective or creative of new rights. 543 In Western Australia v Commonwealth (1995) 183 CLR 373; 128 ALR 1 a provision of the Native Title Act 1993 (Cth) was held invalid. That section relevantly provided: ‘the common law of Australia in respect of native title has … the force of a law of the Commonwealth’: at 484. The law was susceptible of varying constructions, and the court considered each. One possible

construction of the law prompted the court to point out that federal law cannot confer legislative power upon the judiciary, nor confer judicial power upon the Parliament: at 485. [page 307] In Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 a majority of the court held that the vesting in the High Court of jurisdiction as the Court of Disputed Returns did not violate the separation of powers. Gleeson CJ, Gummow and Hayne JJ held that ‘[t]here is nothing in the nature of the resolution of disputed elections which places such controversies necessarily outside the exercise of the judicial power of the Commonwealth’: at [37]. They argued that this conclusion was supported by ss 46 and 47 of the Constitution and the legislative conferral of this jurisdiction very soon after Federation: at [37]. Gaudron J held that the power to determine disputed elections was not inherently legislative as it was ‘not a law-making power’: at [133]. In Saraceni v Jones (2012) 246 CLR 251; 291 ALR 188; [2012] HCA 38 the corporations legislation provided that the receiver of a corporation could apply to a court for an order for the mandatory examination of a person regarding the examinable affairs of the corporation: at [2]. Gummow, Hayne and Bell JJ held that the conferral of this power did not infringe the separation of judicial power. By 1900 the making of such an order had become accepted as a judicial function and thus fell within the concept of judicial power as understood by the Framers of the Constitution: at [2]–[3].

Persona designata rule 544 Federal judges may occupy non-judicial posts if they do so as ‘designated persons’ not as members of their court. Hilton v Wells (1985) 157 CLR 57; 58 ALR 245 is a good example. The court held that a provision that conferred upon a Federal Court judge the power to issue a warrant authorising interception of telephone calls (an administrative function) did not

infringe the separation of powers, because the power was conferred not upon the Federal Court but upon its judges individually as ‘designated persons’: at 57. Gibbs CJ, Wilson and Dawson JJ said (at 68): Although the Parliament cannot confer non-judicial powers on a federal court, or invest a State court with a non-judicial power, there is no necessary constitutional impediment which prevents it from conferring non-judicial power on a particular individual who happens to be a member of a court.

Mason and Deane JJ dissented in relation to the construction of the Act. They accepted the concept of ‘designated person’, but considered that the Act infringed the separation of powers because it conferred the power upon the judge as a judge, not in their personal capacity: at 77–8, 80–1. 545 In Grollo v Palmer (1995) 184 CLR 348; 131 ALR 225 the High Court upheld Commonwealth legislation which conferred power to issue telecommunications interception warrants upon any federal judge who consented to receiving the power. Brennan CJ, Deane, Dawson and Toohey JJ held that this power must be exercised judicially, but that did not make the power part of the judicial power: at 359–60. They declined to discard the persona designata rule: at 363. They identified (at 364–5) two limitations upon the conferral of non-judicial functions pursuant to the rule: … 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.

In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; 138 ALR 220 the court held that the function of reporting to the Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was incompatible with the [page 308] office of a Chapter III judge. Applying Grollo, they held that this function was inconsistent with the second limitation upon the persona designata rule: at 14. Under the statute a reporter must make decisions that are ‘political in

character’: at 17–19. Such a function was incompatible with holding office as a Chapter III judge: at 20. Numerous Commonwealth statutes provide that a power conferred upon a judge by the Act is conferred in a personal capacity and not as a member of a court. Some of these provisions also provide that the judge need not accept the power that is conferred. See Customs Act 1901 s 214BA(1); Excise Act 1901 s 107GA(1); Quarantine Act 1908 s 66AT(4); Crimes Act 1914 ss 3CA(1), 3ZQQ(1)–(2); National Measurement Act 1960 s 18MZC(1)–(2); Australian Security Intelligence Organisation Act 1979 s 34ZM(2); Export Control Act 1982 s 11J(4); Criminal Code s 105.18(2) (Sch to Criminal Code Act 1995); Education Services for Overseas Students Act 2000 s 111(1)–(2); Proceeds of Crime Act 2002 s 324(1)–(2); Australian Crime Commission Act 2002 ss 22(14), 23(8); Surveillance Devices Act 2004 s 12(2), (4); Anti-Money Laundering and Counter-Terrorism Financing Act 2006 s 160(1)–(2); Inspector of Transport Security Act 2006 s 78(2), (5); First Home Saver Accounts Act 2008 s 87(3); Competition and Consumer Act 2010 (Cth) ss 136B(1)–(2), 154ZA(1). For discussions of this issue, see Carney (1997) 13 QUTLJ 175; Wheeler in Opeskin and Wheeler, 2000, pp 456–70; Campbell (2000) 7 Aust J Admin L 109; Stellios, 2010, pp 387–94; Ratnapala and Crowe, 2012, pp 206–12; Hanks, Gordon and Hill, 2012, pp 524–7; Guy, 2013, pp 168–76; Campbell and Lee, 2013, pp 194–8; Keyzer, 2013, pp 407–11; Gerangelos et al, 2013, pp 1287–302; Clarke, Keyzer and Stellios, 2013, pp 1047–53; Williams, Brennan and Lynch, 2014, pp 523–31; Stellios, 2015, pp 269–75.

Judicial power over service personnel 546 The Commonwealth Parliament may validly establish military tribunals that stand altogether outside the operation of Chapter III. Though these tribunals exercise judicial power, it has been held that they do not exercise the judicial power of the Commonwealth. In Re Tracey; Ex parte Ryan (1989) 166 CLR 518; 84 ALR 1 the Defence Force Discipline Act 1982 (Cth) empowered service tribunals to hear charges of service offences allegedly committed by members of the defence forces.

Service offences included acts which would constitute an offence under the law of the Australian Capital Territory: at 535. Service tribunals were closely modelled on the civil courts: at 536. A majority of the court (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ) held that service tribunals stood outside the operation of Chapter III: at 541, 573. While a service tribunal exercised judicial power, it did not exercise the judicial power of the Commonwealth: at 536, 572. They stated that ‘it is not possible to draw a clear and satisfactory line between offences committed by defence members which are of a military character and those which are not’: at 544. Deane J said that service tribunals could be given jurisdiction only over purely disciplinary offences committed in Australia in peacetime without infringing Chapter III: at 585–6. Gaudron J considered that service tribunals could only be invested with jurisdiction over offences concerning conduct outside Australia or that were not the same as or substantially similar to civil offences: at 601–3. For discussions of this case, see Brown (1989) 13 Crim LJ 263; Johnston (1990) 20 UWALR 73. 547 The issue was argued again in Re Nolan; Ex parte Young (1991) 172 CLR 460; 100 ALR 645. By a 4–3 majority, the court held that a service tribunal had jurisdiction in this area. Mason CJ and Dawson J applied their view in Re Tracey that service tribunals stood outside the operation of Chapter III: at 475. They stated that ‘it is open to Parliament to provide that [page 309] any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member’: at 474. Brennan and Toohey JJ considered that if service offences were characterised as offences against Commonwealth law, there would be no possibility of a ‘parallel system’ of military criminal law because of Chapter III’s requirement that jurisdiction to hear charges of offences against Commonwealth law could be vested only in Chapter III courts: at 480. Service offences were sui generis and were not simply offences against Commonwealth law: at 481. They were not criminal offences: at 481.

Gaudron J thought that the vesting of jurisdiction in service tribunals to hear charges of service offences occurring within Australia and which were the same or substantially the same as offences under the general law was invalid as vesting criminal jurisdiction other than in a Chapter III court: at 498–9. Deane J adhered to his view in Re Tracey: at 489–90. A service tribunal not established as a court under Chapter III could only determine service offences of a purely disciplinary nature or service offences that were the disciplinary aspect of conduct constituting an offence under the civil law: at 489. McHugh J agreed with Deane J: at 499. The issue was raised again in Re Tyler; Ex parte Foley (1994) 181 CLR 18; 121 ALR 153. Mason CJ and Dawson J adhered to their view that service tribunals stood outside the operation of Chapter III: at 26. Brennan and Toohey JJ reached a similar conclusion: at 29. McHugh J felt bound by precedent to follow Re Tracey and Re Nolan: at 39. In dissent, Deane and Gaudron JJ maintained their earlier views: at 34–5. In White v Director of Military Prosecutions (2007) 231 CLR 570; 235 ALR 455; [2007] HCA 29 it was argued that Re Tracey should be overruled: at [1]. In the alternative it was argued that service tribunals could only validly exercise jurisdiction over purely disciplinary offences: at [15], [64]–[65]. The court rejected both arguments. Gleeson CJ declined to overrule Re Tracey: at [1]. Under the defence power the Commonwealth could confer upon military officers disciplinary powers to be exercised in a judicial manner. These disciplinary powers were not part of federal judicial power: at [14]. It is difficult to distinguish purely disciplinary offences from civil offences. There is no ‘neat distinction’ between the ‘service-related’ and the ‘general community aspects’ of misconduct: at [19]. Gummow, Hayne and Crennan JJ held that service tribunals were a long recognised exception to the general principle that criminal guilt is determined by the judicial power. That system had long operated by reference to both offences against military discipline and those against the civil law: at [52]. The discipline of military personnel had never been ‘within the exclusive operation’ of Chapter III: at [58]. Those who serve in the defence forces undertake ‘additional responsibilities’ which must be enforced by ‘more than the application’ of the civil law by the

courts: at [70]. Those additional responsibilities may give to the rules of the civil law a ‘distinct and emphatic operation’ which it is appropriate to enforce through service tribunals: at [73]. The proposed distinction between purely disciplinary offences and civil offences overlooked the overlap between those two categories: at [75]. Callinan and Heydon JJ held that the plaintiff’s arguments were ‘foreclosed’ by the court’s prior decisions: at [238], [246]. For a discussion of this case, see Kennett (2008) 36 FL Rev 231. In Lane v Morrison (2009) 239 CLR 230; 258 ALR 404; [2009] HCA 29 Parliament established an Australian Military Court (AMC) that was not a Chapter III court. The Act described the AMC as a ‘court of record’ but also treated it as a service tribunal: at [4]. The judges of the AMC were not appointed in accordance with s 72 and did not have the tenure required by that section: at [5], [9], [32], [65]. The decisions of the AMC were subject to appeal to the Defence Force Discipline Appeal Tribunal: at [92]–[93]. The AMC was independent of [page 310] the command structure of the armed forces: at [13], [75]. The High Court held that the AMC had been invalidly established as it did not comply with Chapter III of the Constitution despite being established outside of the command structure: at [51], [79], [98]. Hayne, Heydon, Crennan, Kiefel and Bell JJ held that the independence of the AMC from the command structure was the key difference between the AMC and the previous system of service tribunals: at [75], [79]. Court-martial verdicts and sentences had been subject to confirmation within the chain of command: at [86], [89]. The decision of the court-martial was not final. The final decision was taken by an officer within the command structure: at [90], [97]. By contrast, the decisions of the AMC were binding and were not subject to review within the command structure: at [95], [97]. The AMC thus exercised federal judicial power: at [98]. Furthermore, the AMC also exercised judicial power because it had power to make binding decisions concerning factual and legal issues at trial and

imposition of punishments upon offenders: at [112]–[113]. As it was not a Chapter III court, the AMC could not validly exercise federal judicial power: at [114]. French CJ and Gummow J held that the AMC exercised judicial power other than in accordance with Chapter III: at [10]. Parliament had sought to borrow the judiciary’s reputation for impartiality: at [11]. The appellate jurisdiction of the High Court would prohibit an appeal from a federal court to an administrative tribunal such as the Defence Force Discipline Appeal Tribunal: at [35]. While the AMC possessed some attributes of a court, it had not been created as a Chapter III court: at [36]. The ‘only judicial power’ permitted by the Constitution was that exercised by Chapter III courts: at [48]. For discussions of this case, see Mitchell (2010) 21 Public LR 9; Burmester (2011) 39 FL Rev 195. In Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434; [2011] HCA 28 the Commonwealth Parliament adopted an interim response to the Lane decision. Parliament did not seek to validate convictions by the Australian Military Court. Punishments imposed by the Australian Military Court were instead replaced by disciplinary sanctions of identical severity: at [3], [8]. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that the Act did not ‘usurp’ the judicial power: at [24]. The Lane decision had not held that punishment of service personnel may only be imposed by a Chapter III court: at [22]. The declaration of the rights and liabilities of service personnel by the Act would only usurp the judicial power if such punishment could only be imposed by a Chapter III court. The court’s decisions regarding service tribunals showed that the punishment of service personnel need not be imposed by a Chapter III court: at [25]. For discussions of judicial power over service personnel, see Mitchell and Voon (1999) 27 FL Rev 499; Tracey (2005) 28 UNSWLJ 426; Moore (2009) 4 U New Eng LJ 53; Stellios, 2010, pp 233–59; Ratnapala and Crowe, 2012, pp 212–25; Crowe and Ratnapala (2012) 40 FL Rev 161; Guy, 2013, pp 538– 60.

Parliamentary interference with a court’s judicial

discretion 548 Judicial power extends to the release of persons who are illegally detained by the executive, and Parliament cannot order the courts not to exercise that power. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97 the majority held that Chapter III was infringed by a law which stated that a court could not order the release of a detained non-citizen who had arrived by boat: at 37, 53. [page 311] The minority were prepared to read down this provision so that it did not apply to persons who were illegally detained: at 12, 50–1, 68. In Polyukhovich v Commonwealth (1991) 172 CLR 501; 101 ALR 545 a war crimes statute retrospectively declared certain past conduct during the Second World War to be a criminal offence. A majority of the court (Mason CJ, Dawson, Toohey and McHugh JJ) held that the Act did not infringe Chapter III. Deane and Gaudron JJ dissented. Brennan J did not have to consider the issue: at 547–8. Mason CJ pointed out that the Constitution contains no specific prohibition upon the enactment of retrospective criminal laws, in contrast to the United States Constitution: at 535–6. But laws imposing retroactive criminality will be invalid if they infringe the separation of powers principle. There will be no interference with judicial power ‘if the law, though retrospective in operation, leaves it to the courts to determine whether the person charged has engaged in the conduct complained of and whether that conduct is an infringement of the rule prescribed’: at 536. The decision in R v Kidman (1915) 20 CLR 425 was ‘plainly correct’: at 539. That decision upheld an ex post facto criminal law and did not involve a Bill of Attainder: at 540. A Bill of Attainder would infringe the separation of powers: at 539. In contrast, an ex post facto law was not a ‘trial by legislature’ because the courts

retained the jurisdiction of determining guilt or innocence that they had under a prospective law: at 540. Dawson J noted that the Act was an ex post facto law rather than a Bill of Attainder: at 642, 648. It did not substitute legislative judgment for judicial judgment: at 649. It was not directed at identified individuals: at 649. There was ample authority for the proposition that the Commonwealth is able to enact retrospective legislation, including ex post facto laws: at 643–4. Though there is no express prohibition of Bills of Attainder in the Constitution, such laws usurp the judicial power. ‘In designating conduct — whether in the future or in the past — as criminal, a law does not intrude upon the judicial function. It is when the legislature itself, expressly or impliedly, determines the guilt or innocence of an individual that there is an interference with the process of the court’: at 649. Toohey J also held that Bills of Attainder and Bills of Pains and Penalties infringed the separation of powers: at 685–6. The legislation in question was not a Bill of Attainder: at 686. Ex post facto laws did not inevitably infringe the separation of powers. They were only contrary to Chapter III if they required a court to act contrary to the requirements of judicial power: at 689. The Act did not do this: at 690. He was not prepared to overrule Kidman: at 690. McHugh J took Kidman as authority that retrospective laws did not infringe Chapter III: at 717. Kidman was ‘correctly decided’: at 721. However, Bills of Attainder or Bills of Pains and Penalties violate Chapter III: at 721. ‘A law which creates a criminal offence but operates retrospectively is not the same as a Bill of Attainder or a Bill of Pains and Penalties’: at 721. The legislation here did not infringe Chapter III: at 722. In dissent, Deane J conceded that legislation that retrospectively altered or extinguished civil liabilities did not infringe the separation of powers: at 608. However, Parliament could not enact a legislative determination of criminal guilt in place of trial by a Chapter III court: at 609. He considered that not merely Bills of Attainder but all ex post facto criminal laws were prohibited: ‘if the specified act was not prohibited by … law when done, such a statutory provision is a retroactive legislative declaration of past criminal guilt when in fact there was none’: at 612. It infringed judicial power ‘in that, once it is established that the accused has committed the past act, the question whether

that act constituted a criminal contravention of the law is made simply irrelevant. To that extent, curial determination of criminal guilt is [page 312] ousted by legislative decree’: at 613. In Kidman, the issue of the separation of powers was not argued: at 620, 622. Deane J considered that the Act was an ex post facto criminal law and hence invalid: at 631. 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’: at 631. Also in dissent, Gaudron J pointed out that when Kidman was decided, conspiracy to defraud the Commonwealth was already an offence at common law. Hence the decision ‘is authority only for what it actually decided, namely, that it is within the legislative power of the Parliament to create a statutory offence taking effect prior to its enactment if it merely gives statutory form to an earlier common law offence’: at 706. Ex post facto criminal laws infringed the separation of powers, and if Kidman was authority to the contrary it should be overruled: at 707. The Act in question infringed the separation of powers: at 708. 549 In International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49 a State provision authorised the making of an ex parte restraining order prohibiting dealings with the suspected proceeds of crime: at [7]. The court unanimously rejected an argument that this provision constituted a Bill of Pains and Penalties. Gummow and Bell JJ held that the provision did ‘not operate independently of a judicial determination of liability’: at [99]. French CJ, Hayne, Crennan and Kiefel JJ agreed with Gummow and Bell JJ: at [60], [137]. Heydon J held that the provision did not impose punishment without a judicial trial. The restraining order provided for a judicial trial not a legislative imposition of punishment: at [167]. In Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434; [2011] HCA 28 Commonwealth legislation provided that punishments imposed by the constitutionally invalid Australian Military Court were replaced by

disciplinary sanctions of identical severity: at [3], [8]. It was argued that the Act was a Bill of Pains and Penalties: at [25]. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that the issue was not whether a law was a Bill of Pains and Penalties, but whether the law possessed those features of a Bill of Pains and Penalties that would intrude upon the judicial power. The argument against the law rested upon the unwarranted assumption that only a Chapter III court could punish service personnel: at [25]. In any event, the challenged Act did not possess the prohibited features of a Bill of Pains and Penalties: at [26]. The Act did not impose any punishment upon service personnel as the punishments were subject to a right of review within the chain of command: at [27]. The law was not a legislative determination of guilt and did not retrospectively create any criminal offence: at [33]. In Duncan v New South Wales (2015) 318 ALR 375; 89 ALJR 462; [2015] HCA 13 a State anti-corruption commission found that the grant of three mining exploration permits had been tainted by corruption: at [1], [15]. The commission recommended the legislative cancellation of those permits: at [18]. State legislation cancelled the permits without the payment of compensation: at [25]–[26]. The High Court unanimously held that the legislation did not constitute a Bill of Pains and Penalties. In a joint judgment the court reaffirmed that the ‘determination and punishment of criminal guilt’ was an exclusively judicial power: at [41]. However, the challenged legislation had none of the usual characteristics of an exercise of judicial power. It settled no dispute between parties. It did not foreclose any future judicial determination of previous criminal liability. It did not determine any existing right or liability: at [42]. A Bill of Pains and Penalties involved a legislative determination that a person had breached the criminal law and imposed punishment for that breach. The challenged law had neither of those features: at [43]. The statute did not adopt the Commission’s specific findings [page 313]

regarding individuals, who remained subject to the operation of the criminal law: at [44]. The Act expressed Parliament’s satisfaction that the grant of the permits had been tainted by corruption and determined that their cancellation was in the public interest: at [45]. The cancellation of the permits was not an imposition of punishment following a determination of criminal guilt: at [46]. The Act’s declared purpose of deterring corruption was directed towards encouraging integrity in public administration, not punishment: at [47]. 550 In Leeth v Commonwealth (1992) 174 CLR 455; 107 ALR 672 Mason CJ, Dawson and McHugh JJ held that the separation of powers is not infringed by requiring a court to sentence prisoners in accordance with a minimum term differing from State to State, for this is ‘as clear an example of the exercise of judicial power as is possible’: at 470. In contrast, Deane and Toohey JJ thought that a doctrine of legal equality before the law and before the courts was implicit in the separation of powers: at 486. At the heart of the duty to act judicially ‘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’: at 487. Deane and Toohey JJ did not deal with the submissions regarding Chapter III: at 493. Gaudron J held that it was impermissible to require a court invested with federal judicial power to exercise a power by reference to criteria which would result in discrimination on the basis of the State in which an event occurred: at 502. See also Kruger v Commonwealth (1997) 190 CLR 1 at 112; 146 ALR 126. 551 The retrospective alteration of the rights and obligations of parties in pending litigation has also been raised in several cases. In Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88; 66 ALR 363 the Conciliation and Arbitration Commission had declared that a union had engaged in certain conduct. This declaration empowered the Minister to order the union’s deregistration: at 91. The union sought to quash this declaration in the High Court: at 92. Prior to the hearing of this action in the High Court, Commonwealth legislation that cancelled the union’s registration came into operation. The legislation also prevented the union from seeking re-registration for a specified period: at 92–3. The court held that this legislation did not involve an exercise of judicial

power nor did it interfere with judicial power. There was a distinction between interference with the rights at issue in litigation and an interference with the judicial process itself. It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution … It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings. [at 96]

This principle has been reiterated in relation to challenges to State laws for alleged infringment of the Kable principle. See H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; 156 ALR 563; [1998] HCA 54 at [19]–[20]; Duncan v Independent Commission Against Corruption (2015) 324 ALR 1; 89 ALJR 835; [2015] HCA 32 at [26]–[27]. In R v Tilley (1991) 56 SASR 140 the South Australian Parliament had enacted legislation which had been given differing interpretations by the South Australian Supreme Court and the High Court on appeal. The South Australian Parliament subsequently passed amending legislation which provided that the interpretation of the Supreme Court would henceforward apply: at 142. The South Australian Supreme Court upheld this legislation. The amending legislation did not purport to affect the authority of the High Court’s decision as between the parties [page 314] or to retrospectively change the interpretation of the earlier legislation as it had been applied prior to the amending legislation: at 143, 146. King CJ pointed out that it amended the legislation so that while the legislation previously bore the interpretation given by the High Court, prospectively it would operate with a different meaning: at 143. In Nicholas v R (1998) 193 CLR 173; 151 ALR 312; [1998] HCA 9 a federal statute reversed the effect of the High Court’s decision in Ridgeway v R (1995) 184 CLR 19; 129 ALR 41. In the Ridgeway decision the court had decided that evidence of illegal narcotics importation obtained by means of

illegal ‘controlled operations’ should be excluded: at [8]–[9]. A federal law subsequently authorised controlled operations: at [3]–[4]. A provision of this law also provided that evidence obtained in a controlled operation prior to the law’s commencement was not to be excluded because of the illegality of the controlled operation: at [5]. This provision was challenged as an infringement of judicial power. The majority held that the law concerned only the reception of evidence, and left it to the judicial system to determine the guilt or innocence of an offender: at [26], [53], [156], [249]. The fact that the law would impact upon only a small number of pending cases was no objection to its validity, since the law was directed generally at alleged offences of illegal importation rather than specifically at these particular offenders: at [28], [57], [164], [249]; cf [83]. In Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; 286 ALR 625; [2012] HCA 19 the Full Federal Court held that an employee association’s registration was invalid because the association’s rules failed to provide for the ‘purging’ of members who were no longer eligible for membership because they were no longer employed in the field: at [3]. The Commonwealth Parliament enacted legislation that validated such invalid registrations. The amendment provided that if an association’s registration had been invalid for non-compliance with the purging rule, the registration was to be treated as having always been valid: at [2]. A union argued that the effect of the amendment was to ‘dissolve or reverse’ the order of the Full Federal Court that had held that the registration was invalid: at [47]. French CJ, Crennan and Kiefel JJ acknowledged that the Commonwealth Parliament may not direct courts exercising federal jurisdiction ‘as to the manner and outcome of the exercise of their jurisdiction’: at [48]. However, the challenged amendment did not give such a direction: at [48]. Parliament has power to enact a law that affects rights at issue in pending litigation: at [49]. If a court hands down a decision that interprets a statute or the common law, Parliament may amend the law that was declared in that decision, including with retrospective effect: at [50]. Parliament had no power to set

aside the court’s decision. However, Parliament can enact a law that attaches different legal consequences to a circumstance than those which had been declared by the court. The amendment assumed that the Federal Court decision was correct. Parliament had power to amend the law both generally and for that particular case: at [53]. Gummow, Hayne and Bell JJ held that the Federal Court decided the legality of the registration according to the law that applied at the time of decision. The amendment did not alter the court’s decision regarding the law as it stood at the time: at [89]. The legislation did not ‘dissolve or reverse’ the Federal Court’s order as the amendment did not determine any question of law at issue in those proceedings: at [90]. The provision assumed the correctness of the Federal Court’s decision. The amendment did not ‘intersect’ with any pending litigation at the time it entered into force: at [96]. While the amendment deprived the union of the advantage of the Federal Court decision, that did not violate the vesting of judicial power: at [97]. [page 315] Heydon J held that the legislation assumed that the reasoning of the Federal Court and the orders it made were correct. The amendment did not affect the Federal Court’s order based on the law as it stood at the time, but ‘simply created a new legal regime’: at [116]. The amendment accepted that the registration had been ineffective, but changed the law so that the registration would be effective: at [117]. For discussions of this issue see Kirk in Stone and Williams, 2000, pp 119– 41; Gerangelos (2002) 30 FL Rev 1; Gerangelos (2008) 30 Syd LR 61; Gerangelos, 2009; Stellios, 2010, pp 283–92.

Communications about legal services 551A In APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44 the court held Chapter III was not violated by a State regulation which prohibited the advertising of legal services

regarding personal injury actions. Gleeson CJ and Heydon J held that the provision of legal services was necessary for the exercise of the judicial power. However, the challenged regulations inhibited only the advertising of legal services, not their provision: at [30], [34]. Nothing in Chapter III prevented the prohibition of the advertising of legal services: at [33]. Gummow J also held that Chapter III did not necessitate advertising by lawyers. The prohibition did not restrict the provision of legal services: at [248]. Hayne J similarly rejected the Chapter III argument: at [384]. The advertising of legal services preceded the invocation of federal judicial power, and was too remote from the exercise of judicial power: at [396]. Callinan J held that the regulations did ‘nothing to prevent the recognition and enforcement of rights under federal law or against the Commonwealth Executive’: at [473]. In dissent, McHugh and Kirby JJ held that the regulations infringed Chapter III: at [81], [365]. shall be vested in a Federal Supreme Court, to be called the High Court of Australia … The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes

552 The judicial power vested in the High Court may be either original or appellate. The structure and functions of the High Court are regulated by the Judiciary Act 1903 (Cth) and the High Court of Australia Act 1979 (Cth) (and rules made under those Acts). Various provisions of the Judiciary Act 1903 (Cth) regulate the composition of the court for different types of cases. The minimum composition of a Full Court is two Justices: s 19. Appeals from a Justice of the High Court exercising original jurisdiction or from most courts exercising federal jurisdiction are heard by a Full Court: s 20. In an appeal from the Full Court of a State Supreme Court the Full High Court shall consist of no less than three judges: s 21(2). Where not all of the Justices sit in a case concerning the constitutional powers of the Commonwealth, a decision shall not be given unless at least three judges concur in the decision: s 23(1). The content of the original and appellate jurisdiction of the High Court will be discussed later.

and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction

[page 316] 553 It is provided in s 73 that the appellate jurisdiction of the High Court extends to appeals from other federal courts. At present there are three federal courts: the Federal Court of Australia, the Family Court of Australia, and the Federal Circuit Court of Australia. The Federal Court was established by the Federal Court of Australia Act 1976 (Cth) s 5. The Family Court was established by the Family Law Act 1975 (Cth) s 21. The Federal Circuit Court continues in existence under the Federal Circuit Court of Australia Act 1999 (Cth) s 8. This court was formerly named the Federal Magistrates Court. For histories of the various federal courts, see French in Opeskin and Wheeler, 2000, pp 132–58; Zines, 2002, pp 108–15; Black (2004) 30 Mon ULR 1; Ellicott (2008) 82 ALJ 700. Under s 77(iii) of the Constitution, the Commonwealth Parliament has power to invest any court of a State with federal jurisdiction. Under s 39(2) of the Judiciary Act 1903 (Cth), the various State courts have been vested with federal jurisdiction in certain matters subject to conditions and restrictions set out in that section. Investment may also take place under specific Acts: s 39A.

JUDGES’ APPOINTMENT, TENURE, AND REMUNERATION 554 —

Section 72. The Justices of the High Court and of the other courts created by the Parliament

(i) Shall be appointed by the Governor-General in Council: (ii) Shall not be removed except by the Governor-General 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. 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. 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. [page 317] 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. [s 72 altered, Act No 83 of 1977 s 2]

See Quick and Garran, 1901, pp 728–34 (Revised ed, 2015, pp 875–83); Thomson [1984] Aust Current Law 36033, 36055; Evans (1987) 2, 2 Legislative Studies 17; Winterton (1987) 16 MULR 185; Coper, 1988, pp 124–8; Constitutional Commission, 1988, Vol 1, pp 398–406; Lee and Morabito [1992] Sing J Legal Stud 40; Thomson in Winterton and Lee, 1992, pp 251– 73; Lane, 1997, pp 528–35; Moens (1997) 8 Upholding the Australian Constitution 17; Campbell (1999) 22 UNSWLJ 325; Blackshield in Opeskin and Wheeler, 2000, pp 400–41; Spry in Lindell and Bennett, 2001, pp 419– 53; Blackshield, Coper and Williams, 2001, pp 19–23, 594–8, 604–5; Zines, 2002, pp 115–17; Williams (2008) 30 Syd LR 163; Ratnapala and Crowe, 2012, pp 181–3; Wright, 2012, pp 20–2; Evans and Laing, 2012, pp 655–85; Campbell and Lee, 2013, pp 116–31; Williams, Brennan and Lynch, 2014, pp 432–7.

(i) Shall be appointed by the Governor-General in Council

555 The appointment of federal judges is a matter for the federal Ministry (recommendations being made by the Attorney-General). The Commonwealth must consult the State Attorneys-General regarding the appointment of High Court Justices. See High Court of Australia Act 1979 (Cth) s 6. Formal ratification of the appointments is made by the Federal Executive Council. Various conditions of office are dealt with in the Judiciary Act 1903 and in the legislation establishing the specialised federal courts. The present Justices of the High Court are listed at http://www.hcourt.gov.au/justices/about-the-justices. Former Justices are listed at http://www.hcourt.gov.au/justices/former-justices. (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

Tenure of Justices of federal courts 556 Prior to the amendment of s 72 in 1977, Justices of the federal courts could not be appointed for any term less than life. See Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 442, 457, 469, 486; Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 at 545–6. Since the constitutional amendment approved in 1977, the tenure of Justices of federal courts is now regulated in the way set out below. The appointment of a Justice of the High Court shall be for a period expiring upon their attaining 70 years. The appointment of a judge of a court created by Parliament is [page 318]

for a period expiring upon their attaining the age that is, at the time of appointment, the maximum age for judges of that court. Section 72 provides that the maximum age for the judges of such courts is 70 years but allows Parliament to fix a lower age as the maximum age. By its express terms, s 72 applies only to federal judges and has no application to State judges. See Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; 229 ALR 223; [2006] HCA 44 at [38], [65], [178], [255].

Method of removal 557 The removal procedure of an address of the Houses of Parliament is the usual form of removal provided for in the State Constitutions and has been followed on the federal level. If the removal of a judge were challenged before the High Court, would the court require that a certain burden of proof be satisfied before the judge could be removed? For example, in relation to an alleged criminal offence, would proved misbehaviour require proof of the commission of the offence beyond reasonable doubt by conviction in a court of law? The alternative interpretation is that the requirement of proof is a matter which is within the sole jurisdiction of the Houses of Parliament and the Governor-General in Council, which may be satisfied with proof on the balance of probabilities. It is more likely that this latter interpretation would be adopted and that, apart from the case of a clearly politically-motivated removal where there was no evidence of misbehaviour or incapacity, the High Court would be unlikely to interfere with a proposed removal which had complied with the procedure laid down in s 72. What type of conduct would justify removal on the ground of misbehaviour? It is considered that such conduct would be commission of a criminal offence of sufficient gravity, or conduct which, though not criminal, would render the Justice unfit to carry out the duties of office. In 1984 the Senate appointed committees to inquire into the behaviour of a High Court Justice (Murphy J) in relation to allegations that he had attempted to pervert the course of justice. Criminal proceedings were subsequently

instituted against the judge. At the initial trial, he was convicted. His conviction was set aside on appeal and a new trial ordered. At this trial, he was acquitted. In May 1986 legislation was passed by the Parliament to establish a commission of inquiry in relation to the conduct of the Justice. See Parliamentary Commission of Inquiry Act 1986 (Cth); Murphy v Lush (1986) 65 ALR 651; 60 ALJR 523. The Commissioners took the view that ‘misbehaviour’ in s 72 was not limited to criminal misconduct. See Parliamentary Commission of Inquiry, ‘Re the Honourable Mr Justice Murphy. Ruling on Meaning of “Misbehaviour”’ (1986) 2 Aust Bar Rev 203 at 209, 221, 230; also in Cth PP 1986 No 443. Each Commissioner adopted their own interpretation of misbehaviour. Sir George Lush stated that if a judge’s ‘conduct, even in matters remote from their work, is such that it would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or to undermine their authority as judges or the standing of their courts, it may be apppropriate to remove them’: at 210. Sir Richard Blackburn defined misbehaviour as ‘such misconduct, whether criminal or not, and whether or not displayed in the actual exercise of judicial functions, as, being morally wrong, demonstrates the unfitness for office of the judge in question’: at 221. Andrew Wells QC considered that misbehaviour ‘extend[s] to conduct of the judge in or beyond the execution of his [or her] judicial office, that represents so serious a departure [page 319] from standards of proper behaviour by such a judge that it must be found to have destroyed public confidence that he [or she] will continue to do his [or her] duty under and pursuant to the Constitution’: at 230. When it became clear that Murphy J was dying the commission ceased its investigation. See generally Blackshield in Scutt, 1987, pp 230–57; Blackshield, Coper and Williams, 2001, pp 486–9, 594–6; Lindell in Lee and Winterton, 2003, pp 280–311; Evans and Laing, 2012, pp 671–83.

The courts cannot order the presiding officer of a House of Parliament to initiate proceedings for the removal of a federal judge. To do that would be an unconstitutional invasion of the internal affairs of Parliament. See Re Reid; Ex parte Bienstein (2001) 182 ALR 473; [2001] HCA 54 at [25]–[26]. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) provides that a commission is to investigate and report upon allegations of misbehaviour or incapacity on the part of a federal judge, so that Parliament may be ‘well-informed’ in its decision whether the judge should be removed from office: s 3(1). The Act indicates that it does not imply that such a commission is necessary in order for the Parliament to be ‘well-informed’ in making such a decision: s 3(2). A Commission will be established if each House of the Commonwealth Parliament passes a resolution to that effect in the same session: s 9(1). A Commission has three members: s 13(1). The members are nominated by the Prime Minister after consulting the Leader of the Opposition: s 13(2). At least one member must be a former Commonwealth judge or a former State or Territory Supreme Court judge: s 13(3). A serving judge may not be appointed: s 14(2). The members are appointed by resolutions passed by each House of Parliament: s 14(1). The Commission decides questions by a majority decision: s 18(2). It is not bound by the rules of evidence: s 19(1). However, the Commission is bound by the rules of natural justice: s 20(1). The Commission must inform the judge of the allegation and provide the judge with a reasonable opportunity to respond to the allegation: s 20(2)(a). The judge must be given access to documents acquired by the Commission during its investigation: s 20(2)(b). The Commission must draw no inference from a failure by a judge to give evidence: s 20(2)(c). Before making its report, the Commission must provide the judge with a draft and afford an opportunity to respond to the draft: s 20(2)(d). The Commission must consider the outcome of any previous inquiry or investigation into the allegation: s 19(2). This includes royal commissions, prosecution decisions and Federal Police investigations: s 19(6). Commission hearings must be held in public, though it has the power to hold closed sessions: s 23(1). The judge under investigation has the right to legal

representation at a Commission hearing: s 24(4). The Commonwealth must pay for the ‘reasonable costs’ of such representation: s 45(1). The Commission may summon witnesses: s 25(1). Evidence may be taken on oath or affirmation: s 25(3). A witness who fails to appear in response to a summons without reasonable excuse commits an offence punishable by imprisonment for six months: s 51. A witness may not refuse to answer a question on the ground of self-incrimination: s 54(1). The Commission may also issue search warrants: s 28(1). The Commission’s report must state its view of whether there is evidence that would be sufficient for Parliament to conclude that misbehaviour or incapacity had been proven: s 48(3)(c). For a discussion of this legislation, see Senate Legal and Constitutional Affairs Legislation Committee, 2012. [page 320]

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

558 The Parliament has power to determine the salaries and allowances payable to federal judges. Under the Remuneration Tribunal Act 1973 (Cth), the Remuneration Tribunal has power to inquire into and determine the remuneration payable to the Justices of the High Court and the judges of other federal courts: s 7(5B). The requirement in s 72(iii) that the remuneration of judges should not be reduced during their tenure of office is designed to prevent any parliamentary or executive attempt to reduce salaries in order to undermine judicial independence. This does not prevent salaries from being subjected to higher taxation increases in accordance with the general increases in taxation that affect the community as a whole. Several Justices of the High Court have suggested by way of obiter dicta that the remuneration protected by s 72 includes the pension entitlements of judges. See Austin v Commonwealth (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3 at [3], [72].

In Baker v Commonwealth (2012) 206 FCR 229; 293 ALR 635; [2012] FCAFC 121 Federal Magistrates were excluded from the pension scheme that applied to other federal judges: at [9]. This exclusion took place before any Federal Magistrates were appointed: at [10]. Federal Magistrates had a contributory superannuation pension which was subject to market fluctuations: at [23]. Other Commonwealth judges received a non-contributory defined benefit salary-based pension: at [6], [47]. The financial differences between the two schemes were significant. The pension of Federal Magistrates was 15-25% of their pre-retirement salary. The pension of other federal judges was 60% of their pre-retirement salary: at [23]. The Full Federal Court held that there was no breach of s 72(iii). Keane CJ and Lander J held that no judicial salary had been diminished during a judge’s continuance in office because at the time the exclusion was enacted no Federal Magistrates had been appointed: at [42]. A ‘reasonable well-informed lay observer’ would not believe that the independence and impartiality of Federal Magistrates was imperilled by their pension arrangements, when their salaries and institutional safeguards were taken into account: at [49]. Parliament was not required to set the same or ‘broadly equivalent’ remuneration for all federal judges: at [58]. For a discussion of the remuneration of High Court judges, see Blackshield, Coper and Williams, 2001, pp 596–8. Provisions similar to s 72(iii) appear in several of the statutes that establish the various federal courts. See Federal Court of Australia Act 1976 (Cth) s 9(3); Federal Circuit Court of Australia Act 1999 (Cth) Sch 1 cl 9H.

APPELLATE JURISDICTION OF HIGH COURT 559 Section 73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, 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: [page 321]

(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.

See Quick and Garran, 1901, pp 734–47 (Revised ed, 2015, pp 883–901); Attorney-General’s Department, 1980, pp 224–39; Constitutional Commission, 1988, Vol 1, pp 385–8; Lane, 1997, pp 536–48; Stellios, 2010, pp 495–515; Ratnapala and Crowe, 2012, pp 195–6; Hanks, Gordon and Hill, 2012, pp 548–51; Keyzer, 2013, pp 415–18; Clarke, Keyzer and Stellios, 2013, pp 1100–9; Williams, Brennan and Lynch, 2014, pp 437–9; Aroney, Gerangelos, Murray and Stellios, 2015, pp 518–23. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals … 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.

560 The High Court has treated ss 73, 75 and 76 of the Constitution as an ‘exhaustive statement’ of federal jurisdiction. See Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270; Ruhani v Director of Police (2005) 222 CLR 489; 219 ALR 199; [2005] HCA 42 at [3], [288]. Under s 73 the High Court is at the apex of the Australian judicial system. By its rulings the court finally establishes the common law of Australia. There is only one common law of Australia: there is not a separate common law for each State. See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 112; 138 ALR 577; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563; 145 ALR 96; Lipohar v R (1999) 200 CLR 485; 168 ALR 8; [1999] HCA 65 at [43]–[46], [179]; Selway (2003) 29 Mon ULR 30; Leeming (2007) 18 Public LR 186 at 188–90; Kirk v Industrial Relations Commission

(2010) 239 CLR 531; 262 ALR 569; [2010] HCA 1 at [99]; Boyle (2015) 27 Bond LR 27. The High Court’s jurisdiction under s 73 is limited to the jurisdiction or capacity of the court from which the appeal is brought. See Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268; 254 ALR 637; [2009] HCA 18 at [39], [42]–[47]. Section 73 confers upon the High Court appellate jurisdiction from specified types of curial decisions (‘judgments, decrees, orders and sentences’): (a) of the High Court in its original jurisdiction; (b) of federal courts; (c) of courts exercising federal jurisdiction; [page 322] (d) of State Supreme Courts; and (e) of the Inter-State Commission; subject to regulations and exceptions prescribed by the Parliament. At the outset it must be determined whether Parliament may except from the appellate jurisdiction of the High Court whole classes of matters (for example, matters arising under State legislation), or is limited to the prescription of exceptions which depend upon some feature of the judgment appealed from (for example, if it is below a prescribed monetary amount). The former view is supported by a dictum of Isaacs J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (1914) 18 CLR 54 at 76. The question was also discussed in Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529. In that case the majority opinion was that ‘it would be surprising if [the section] extended to excluding altogether one of the heads specifically mentioned by s 73’ thus suggesting that at least one of these broad divisions could not be excluded: at 544. However, Taylor J in the same case tended to favour the view that the exceptions must be dependent upon some characteristic of the judgment appealed from, that is, they must be concerned with the inherent character of the judgment (for example, the fact

that the order was interlocutory or the amount involved was insubstantial): at 558. 561 In Cockle v Isaksen (1957) 99 CLR 155 the High Court considered the validity of a statutory provision which gave the Commonwealth Industrial Court jurisdiction to hear and determine appeals from State magistrates’ courts in matters involving offences against the Act, but forbade further appeal from the Industrial Court to the High Court: at 161–2. It was held that this was a valid exercise of the legislative power to provide exceptions to the appellate jurisdiction of the High Court conferred by s 73: at 166, 169, 174, 175–6. What the Parliament was doing was excepting from the appellate jurisdiction of the High Court judgments of an inferior Commonwealth court to which an appeal had already been taken from State courts. This was not a case where a general category of s 73 was excepted (that is, all appeals from the Industrial Court) but merely part of the jurisdiction or class of subject matter dealt with by the Industrial Court. In so holding Dixon CJ, McTiernan and Kitto JJ stated that Parliament’s power to determine exceptions may not be exercised ‘so as to destroy the general rule, in relation to any court or tribunal … comprised within s 73, that an appeal shall lie from its judgments decrees orders or sentences’: at 165. See similarly, Smith v Australian Electoral Commission (2009) 175 FCR 523; [2009] FCAFC 43 at [10]–[12], [38]–[39]. Wynes summarised the position as follows: ‘the power does not extend to a wholesale abolition of all appeals, [and] it is equally clear that the power is not limited to exceptions based upon the usual criteria, as to amount, nature of judgment, and the like. In terms, [the exception clause in] s 73 would appear to be unlimited, but this interpretation does not accord with common sense and the limitation (if any) must be sought in general principle’. See Wynes, 1976, p 507. Conversely, it is recognised that apart from legislation relating to appeals to the High Court from Territory courts which come under s 122, the Parliament cannot extend the appellate jurisdiction of the High Court beyond the terms of s 73. See British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 at 437; Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 174.

Regulation of appeals from Supreme Courts 562 In s 35 of the Judiciary Act 1903 (Cth) the Commonwealth Parliament has provided for the regulation of appeals from the Supreme Courts of the States to the High Court. [page 323] Under s 35 there is no appeal as of right to the High Court from a State Supreme Court. The appeal must be brought by special leave granted by the High Court: s 35(2). The criteria for granting special leave are: (a) whether the proceedings involve a question of law ‘that is of public importance, whether because of its general application or otherwise’, or ‘in respect of which a decision of the High Court … is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law’; and (b) ‘whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates’: s 35a. In Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194; 103 ALR 117 the High Court upheld s 35(2) of the Judiciary Act and s 33(3) of the Federal Court of Australia Act 1976 (Cth). The combined effect of these sections was that an appeal could not be brought to the High Court from a State Supreme Court or any other State court or the Federal Court unless special leave was granted. The High Court’s unanimous judgment was that this was a ‘regulation’ of the High Court’s jurisdiction. Imposition of a special leave requirement did not prevent the High Court from hearing an appeal: at 217. Parliament had not delegated to the High Court its power of prescribing ‘exceptions’ under s 73: at 217. The granting or refusal of special leave was an exercise of judicial power, though such a power need not be exercised by a Full Bench: at 218. For discussions of special leave to appeal, see Pierce, 2006, pp 214–23; O’Brien, 2007, pp 5–27. from all judgments, decrees, orders, and sentences

563 Appeals can only be taken to the High Court from other courts in matters where the judicial power is involved and which have reached finality. A matter which has not reached finality is not covered by the four types of curial process mentioned in s 73. The law in this area has evolved. The reasoning in two earlier cases, Swiss Aluminium Australia Ltd v Federal Commissioner of Taxation (1987) 163 CLR 421; 73 ALR 584 and Fisher v Fisher (1986) 161 CLR 438; 67 ALR 513, was later disapproved by the High Court. In the Swiss Aluminium case a determination by the Federal Court under the Freedom of Information Act 1982 (Cth) that a document was not an exempt document was held not to be a judgment, decree or order under s 73. There was no finality in deciding the rights of the parties because under the legislation it was still to be determined by the Administrative Appeals Tribunal whether the document contained any matter other than exempt matter. The Federal Court did not decide that there was no right of access to the document: at 426. In Fisher v Fisher the High Court unanimously held that answers given by the Full Bench of the Family Court to questions of law that were not in themselves determinative of the rights of the parties were not ‘judgments, decrees, orders and sentences’ under s 73: at 450, 454, 459, 462–3. In Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; 104 ALR 89 it was held that an opinion given by the Court of Criminal Appeal on a point of law that arose at a trial in which an accused was acquitted or discharged was a judgment, decree or order under s 73. Mason CJ, Deane, Dawson, Gaudron and McHugh JJ pointed out that, the ‘anomalous’ position of the Inter-State Commission aside, judgments, decrees, orders and sentences relate to judicial determinations in the exercise of judicial power: at 300. Because it arose out of actual criminal proceedings, the opinion of the Court of Criminal Appeal was not ‘abstract’, [page 324] ‘hypothetical’ or ‘academic’: at 304–5. In a criminal context this procedure for correcting errors of law is necessary to avoid double jeopardy. At common

law the Crown cannot appeal against acquittal: at 305. The Court of Criminal Appeal is able to correct an error of law so the proceedings are an exercise of judicial power and the opinion it gives is a judgment or order under s 73: at 305. In O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; 96 ALR 1 the court held that, unless answers given to questions in a stated case in the Federal Court finally determined the rights of the parties, no appeal could be brought to the High Court under s 73 because they did not constitute a judgment, decree or order: at 244, 280–1, 300–3, 309. 564 Appeals do not lie directly from a general verdict of a jury or a judgment of a court founded on that verdict, although they do lie from a decision of the Supreme Court of a State ordering a new trial. The judge and jury below who saw the witnesses and heard the cross-examination are the best judges of the weight of evidence. In the absence of any misdirection, a superior court will not interfere to set aside a verdict or grant a new trial on the ground that the verdict was against the weight of evidence, unless there has been a miscarriage of justice. In Mickelberg v R (1989) 167 CLR 259; 86 ALR 321 the High Court held that it cannot receive fresh evidence when it is hearing an appeal under s 73 from a decision of a State court exercising State jurisdiction. This is because the reception of fresh evidence is not part of the appellate jurisdiction of the High Court: at 266. To do so would virtually amount to original jurisdiction: at 298. Furthermore, as Mason CJ pointed out, s 73 ‘contains nothing to suggest that the Court is “to go beyond the jurisdiction or capacity of the Court appealed from”’: at 269. In Eastman v R (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29 the court extended this principle to appeals under s 73 from federal courts and other courts exercising federal jurisdiction, so that the court cannot receive further evidence in such appeals: at [16], [69], [160], [190], [290]. As Gummow J put it: ‘The “appeals” provided in s 73 were plainly intended to have the same character regardless of the identity of the particular court, among those enumerated, from which the appeal was brought’: at [190]. Several judges stated that if the court exercised such a power, the jurisdiction under s 73 would no longer be purely appellate, but would have

an element of original jurisdiction: at [14], [105], [164]. Some of the judges suggested that the Commonwealth Parliament could enact legislation authorising reception of further evidence by the High Court in appeals from other courts: at [14], [70]; but see [100], [163] (more tentative), [196] (negative). While further evidence cannot be received, in exceptional circumstances a new point of law may be raised based on the record in the lower courts. Section 73 does not prevent the High Court from hearing an appeal based upon a ground that is raised for the first time in the High Court proceedings. Nonetheless, special leave to make such an appeal will only be granted in exceptional circumstances. See Crampton v R (2000) 206 CLR 161; 176 ALR 369; [2000] HCA 60 at [10], [47], [51], [57], [113]–[114], [122], [148], [155]– [156]; Fingleton v R (2005) 227 CLR 166; 216 ALR 474; [2005] HCA 34 at [6], [62], [144]–[145], [195]. The word ‘sentences’ in s 73 has been subject to little consideration. The possible meanings of this word are canvassed in Kirby (2002) 76 ALJ 97. (i) Of any Justice or Justices exercising the original jurisdiction of the High Court

[page 325] 565 Section 34(1) of the Judiciary Act 1903 (Cth) provides that the High Court, except as provided in that Act, has jurisdiction to hear and determine appeals from all judgments whatsoever of any Justice or Justices exercising the original jurisdiction of the High Court. An exception lies with respect to decisions concerning costs: s 27. (ii) Of any other federal court

566 Appeals to the High Court from the Federal Court of Australia and the Family Court of Australia are regulated by the Acts establishing those courts. See Federal Court of Australia Act 1976 (Cth) s 33 and Family Court of Australia Act 1975 (Cth) s 95. An appeal from the Federal Circuit Court may

not be brought directly to the High Court. See Federal Circuit Court of Australia Act 1999 (Cth) s 20(1). Territorial courts are not treated as federal courts, so appeals from these courts to the High Court do not come under s 73. or court exercising federal jurisdiction

567 The Judiciary Act 1903 (Cth) invests State courts with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction may be conferred upon it: s 39(2). Under s 39 the conditions and restrictions attaching to the grant of federal jurisdiction are: (a) no decision of a State court may be appealed to the Privy Council; and (b) the High Court may grant special leave to appeal from a decision of any State court exercising a federal jurisdiction, notwithstanding that State law prohibits any appeal from that court: s 39(2). Section 39(2) has an ambulatory operation and would apply to grants of federal jurisdiction by legislation passed subsequent to 1903. 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

568 Under this section appeals may be taken to the High Court from the Supreme Courts of the States in both federal and non-federal matters. Section 35(2) of the Judiciary Act 1903 (Cth) requires that special leave be granted by the High Court. In Parkin v James (1905) 2 CLR 315 it was said that the phrase ‘Supreme Court’ as used in this part of s 73 meant the court which at the time of the establishment of the Commonwealth was known as the Supreme Court in any particular State, which was not necessarily the court of ultimate appeal in the State: at 329–30. An appeal, therefore, may be from a single Justice of the Supreme Court to the High Court, bypassing the full Supreme Court, subject to limitations prescribed by the Judiciary Act. One question which has arisen is whether an appeal lies from a judge or judges of the Supreme Court exercising a power conferred by State legislation as persona designata, that is to say, as a body constituted as a special tribunal for the purpose of determining proceedings arising under a particular Act. In

Holmes v Angwin (1906) 4 CLR 297 it was held that a Supreme Court of a State constituted as a Disputed Elections Tribunal was not the Supreme Court within the meaning of s 73 and, therefore, no appeal lay from its decision to the High Court: at 306–7. [page 326] It is otherwise in cases where an appeal has been taken to a full Supreme Court from such a tribunal and leave is then sought to appeal from the Full Supreme Court to the High Court. A State law providing that there is no appeal against a decision of a State court is ‘ineffective to curtail’ the appellate jurisdiction of the High Court under s 73(ii). See BHP Billiton Ltd v Schultz (2004) 221 CLR 400; 211 ALR 523; [2004] HCA 61 at [55], [127]; see also Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; 242 ALR 191; [2008] HCA 4 at [20]. However, s 73 does not require that all State Supreme Court decisions be appealable to the High Court, since State courts are able to exercise nonjudicial powers. Section 73 is limited to appeals from decisions exercising judicial power. See Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; 189 ALR 161; [2002] HCA 27 at [20], [63], [66]. In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 French CJ held that the declaration section of the Victorian Charter of Human Rights and Responsibilities was a non-judicial function and was not incidental to judicial power. The High Court thus had no appellate jurisdiction under s 73 to hear an appeal so far as it concerned a declaration under the Charter: at [101]. Crennan and Kiefel JJ stated that a ‘matter’ could not arise under the declaration provision alone. The making of a declaration was not an exercise of judicial power: at [584]. In Crump v New South Wales (2012) 247 CLR 1; 286 ALR 658; [2012] HCA 20 the court held that an amendment to a State parole law did not violate the appellate jurisdiction of the High Court under s 73 in their application to a specific prisoner. The plaintiff was sentenced to life

imprisonment with a recommendation that he never be released: at [1]–[2]. Under later sentencing legislation the plaintiff applied for a determination of a minimum term after which he would be eligible for parole: at [8], [46]. A Supreme Court judge made a determination setting such a minimum term: at [14], [48]. After the Supreme Court decision the parole legislation was amended so that serious offenders subject to non-release recommendations were not to be released upon parole unless they faced imminent death or were so physically incapacitated that they could not harm others: at [21], [54]. The plaintiff argued that in its application to him the amended parole legislation violated s 73 by altering the Supreme Court decision that determined the minimum term: at [26]. Gummow, Hayne, Crennan, Kiefel and Bell JJ held that the Supreme Court’s determination constituted a ‘judgment, decree, order or sentence’ under s 73: at [47], [56], [58]. The determination did not create a right to release on parole and ‘had no operative effect’. The amendment to the parole legislation did not ‘impeach, set aside or vary’ the sentence to which the plaintiff was subject: at [60]. French CJ held that the amendment did not alter the decision of the Supreme Court. The amendment did not affect the legal effect of the Supreme Court’s determination: at [35]. Once the determination of a minimum term was made the plaintiff’s parole application was subject to the parole legislation in force at the time of the application: at [34]. The availability of parole was subject to amendment or abolition: at [36]. Heydon J also held that the amendment did not alter the effect of the Supreme Court determination: at [71], [74]. The reference in s 73(ii) to the High Court’s appellate jurisdiction from decisions of the State Supreme Courts has the consequence that a State Parliament may not abolish the State Supreme Court. See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 111–12, 139; 138 ALR 577; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471; [2009] HCA 4 at [152], [206], [239]–[240]; Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 at [46].

[page 327] Furthermore, the State Supreme Courts have an entrenched jurisdiction to grant relief for jurisdictional error. In Kirk v Industrial Relations Commission (2010) 239 CLR 531; 262 ALR 569; [2010] HCA 1 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that s 73(ii) required that there be a Supreme Court for each State. The State Parliaments do not have power to ‘alter the constitution and character’ of the Supreme Court in a manner that would prevent it from satisfying that ‘constitutional description’: at [96]. At Federation a privative clause did not prevent the exercise of the power of a colonial Supreme Court to grant certiorari for jurisdictional error: at [97]. The power of the Supreme Courts to grant prohibition, certiorari, mandamus and habeas corpus is a ‘defining characteristic of those courts’: at [98]. Depriving the Supreme Court of its jurisdiction to enforce limitations upon executive and judicial power would ‘create islands of power immune from supervision and restraint’: at [99]. A State privative clause that purports to deny the power of the Supreme Court to grant relief for jurisdictional error is invalid. However, a State privative clause may validly deny to the Supreme Court the power to grant relief for non-jurisdictional error: at [100]. Heydon J agreed with these holdings: at [113]. The court thus now interprets State privative clauses as ineffective to displace the Supreme Court’s entrenched jurisdiction to grant relief for jurisdictional error. See South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 at [26], [128], [193], [268]; Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 at [15], [89]; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; 289 ALR 1; [2012] HCA 25 at [16], [35], [60]. In Duncan v Independent Commission Against Corruption (2015) 324 ALR 1; 89 ALJR 835; [2015] HCA 32 the applicant brought proceedings in a State court challenging an anticorruption Commission’s findings against him. While those proceedings were under appeal, the High Court held in another case that the anti-corruption Commissions’s investigative powers did not extend to conduct of the kind that it had investigated in relation to the applicant: at [3].

The Commission’s investigation into the applicant had thus been affected by jurisdictional error: at [7]. The State Parliament then enacted retrospective legislation that validated the Commission’s investigation: at [4]. French CJ, Kiefel, Bell and Keane JJ held that the Kirk principle ‘did not deny the competence of State legislatures to alter the substantive law to be applied’ by State agencies and courts: at [29]. The validation law amended the substantive law to be applied in the proceedings but did not deprive the State court of its jurisdiction to hear the case: at [29]. For discussions of the Kirk principle, see Spigelman (2010) 21 Public LR 77; Lacey (2010) 34 MULR 641; Finn (2010) 21 Public LR 92; Gouliaditis (2010) 34 MULR 870; Knackstredt (2011) 18 Aust J Admin L 203; Vial (2011) 32 Adel LR 145; Ford (2011) 2 NTLJ 28; Young and Murray (2011) 11 Oxford U Cth LJ 117; Groves (2011) 39 FL Rev 399; Fearis (2012) 3 Western Australian Jurist 61; Beck (2012) 34 Syd LR 295; Ratnapala and Crowe (2012) 36 MULR 175; Williams, Brennan and Lynch, 2014, pp 649–52; Roos (2015) 26 Public LR 111; Stellios, 2015, pp 294–9; Kowtal (2015) 22 Aust J Admin L 253. For a detailed examination of jurisdictional error, see Leeming, 2012, pp 45–74. In Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 French CJ and Kiefel J stated that the general duty of a State Supreme Court to give reasons for its decisions ‘has a constitutional character’ in view of the High Court’s appellate jurisdiction under s 73: at [57]. [page 328] Apart from the Supreme Courts, the only other court from which an appeal lay to the Privy Council at Federation was the Local Court of Appeal of South Australia. See Lane, 1997, p 541. Under s 73 the High Court has power to grant bail in a criminal or extradition case. This power is an incident of the court’s appellate jurisdiction, not an inherent jurisdiction. When the court’s appellate jurisdiction is invoked, the court has power to stay an order for imprisonment. See United Mexican States v Cabal (2001) 209 CLR 165; 183 ALR 645; [2001] HCA 61 at [37]–[38].

(iii) Of the Inter-State Commission, but as to questions of law only

569 Under this subsection, an appeal on questions of law may be taken from the Inter-State Commission to the High Court in its appellate jurisdiction. The Inter-State Commission is no longer in operation. The Commission was a non-judicial body rather than a court. Legislation conferring judicial power upon the Commission was therefore invalid. See New South Wales v Commonwealth (1915) 20 CLR 54 at 65, 92–3, 106, 110.

APPEAL TO QUEEN IN COUNCIL 570 Section 74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. 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.

See Quick and Garran, 1901, pp 748–64 (Revised ed, 2015, pp 901–21); Opinions No 1833 of 18 August 1948 and No 1846 of 1 January 1949; Blackshield, 1978, pp 130–3; Attorney-General’s Department, 1980, pp 240– 53; note (1985) 59 ALJ 359; Constitutional Commission, 1988, Vol 1, pp 388–9; Coper, 1988, pp 14–17, 98–106; Goldring, 1996, pp 73–80, 196–200; Lane, 1997, pp 549–52; Goldring in Coper and Williams, Three Cheers, 1997, pp 16–32; Gleeson (2002) 14 Upholding the Australian Constitution xiii; Stellios, 2010, pp 9–50; Hanks, Gordon and Hill, 2012, p 124; Keyzer, 2013, pp 418– 19; Clarke, Keyzer and Stellios, 2013, pp 1109–11; Aroney, Gerangelos, Murray and Stellios, 2015, pp 505–18. 571 Since the enactment of the Australia Acts, the only avenue for appeal to the Privy Council is that provided by s 74. However, the High Court

regards this jurisdiction as obsolete. See Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461 at 465; 58 ALR 108; Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [66]; MZXOT [page 329] v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28 at [36]. The Constitutional Commission recommended the repeal of s 74. See Constitutional Commission, 1988, Vol 1, p 385.

ORIGINAL JURISDICTION OF HIGH COURT 572

Section 75. In all matters —

(i) Arising under any treaty: (ii) Affecting consuls or other representatives of other countries: (iii) In which the Commonwealth, or a person suing or being sued on 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.

See Quick and Garran, 1901, pp 764–88 (Revised ed, 2015, pp 921–53); Campbell (1971) 6 Syd LR 309; Katz (1976) 5 U Tas LR 188; AttorneyGeneral’s Department, 1980, pp 253–65; Renfree, 1984, pp 334–45; Aitken (1986) 16 FL Rev 370; Constitutional Commission, 1988, Vol 1, pp 373–8, 414–21; Aitken (1992) 15 UNSWLJ 483; Opeskin (1995) 46 South Carolina 765; Lane, 1997, pp 553–94; Leeming (1999) 10 Public 173; Kneebone (2001) 12 Public LR 95; Zines in Opeskin and Wheeler, 2000, pp 268–80, 284–8; Zines, 2002, pp 7, 21–65, 85–105; Evans (2003) 5 Const L & Pol’y Rev 61; Cavanough in Jones and Macmillan, 2003, pp 65–78; Kirk (2004) 12 Aust J Admin L 64; Campbell and Grives (2004) 4 Oxford U Cth LJ 51; Laforgia (2006) 10 Southern Cross ULR 201; Leeming (2006) 1 J of Equity 3; O’Donnell (2007) 28 Aust Bar Rev 291; Barnett (2007) 81 ALJ 195; Jones (2007) 18 Public

LR 94; Sofronoff (2007) 14 Aust J Admin L 145; French (2010) 35 UWALR 35; Stellios, 2010, pp 76–9, 119–26, 307–10, 323–52; Groves (2011) 22 Public LR 3; Stellios (2011) 34 UNSWLJ 70; Ratnapala and Crowe, 2012, pp 196–9; Hanks, Gordon and Hill, 2012, pp 614–9; Leeming, 2012, pp 206–23, 231–5, 241–4, 246–56, 266–73; Boughey and Weeks (2013) 36 UNSWLJ 316; Keyzer, 2013, pp 419–26; Clarke, Keyzer and Stellios, 2013, pp 1015–22, 1036–9; Spencer (2014) 21 Aust J Admin L 98; Williams, Brennan and Lynch, 2014, pp 420–7, 439–41; Aroney, Gerangelos, Murray and Stellios, 2015, pp 528–36. 573 Section 75 specifies five categories of matters in which the High Court has original jurisdiction. The following section, s 76, specifies four additional categories in respect of which original jurisdiction may be conferred upon the High Court by the Commonwealth Parliament. In one case the jurisdiction is entrenched by the Constitution: s 75. In the other case it is conferred by legislative enactment which may be repealed: s 76. The jurisdiction conferred by ss 75 and 76 is not necessarily exclusive to that of the State courts, that is, it may be a concurrent jurisdiction. However, legislation may be passed under s 77 making any of the categories mentioned in ss 75 and 76 exclusive to the High Court. Certain categories have, in fact, been made exclusive by the Judiciary Act 1903 (Cth) subject to remittal (in most cases) by the High Court: ss 38, 44. In all matters

[page 330] 574 Under both ss 75 and 76 jurisdiction only exists or may be conferred in respect of ‘matters’. Originally the Judiciary Act 1903 (Cth) contained a provision which permitted the Governor-General to seek from the High Court an advisory opinion as to the validity of an Act of Parliament. In Re Judiciary and Navigation Acts (1921) 29 CLR 257 the court held that ‘matter’ means ‘the subject matter for determination in a legal proceeding’, not the legal

proceeding itself: at 265. There could be no matter within the meaning of s 76 unless ‘there is some immediate right, duty or liability to be established by the determination of the Court’: at 265. The court could not make a declaration of law separate from the adjudication of a legal question and, therefore, it had no power to deliver an advisory opinion: But we can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved. [at 267]

It was thus not a matter in which the court had jurisdiction. Since this decision the High Court has affirmed on many occasions that it has no power to give advisory opinions either in its original or appellate jurisdiction. See Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 300, 303, 305, 314, 316–19; 104 ALR 89; North Ganalanja Aboriginal Corp v Queensland (1996) 185 CLR 595 at 612; 135 ALR 225; Director of Public Prosecutions v B (1998) 194 CLR 566; 155 ALR 539; [1998] HCA 45 at [25]; Kuczborski v Queensland (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 at [6], [187], [278]. For discussions of advisory opinions, see Crawshaw (1977) 51 ALJ 112; Williams (1996) 7 Public LR 205; Burmester in Opeskin and Wheeler, 2000, pp 235–45; Zines, 2002, pp 15–16, 20–1; Irving (2004) 4 Macquarie LJ 105; Zines (2010) 22 Bond LR 156; Williams (2010) 22 Bond LR 169; Stellios, 2010, pp 119–26. The Constitutional Commission and a Senate Committee both recommended that the Constitution be amended to invest the High Court with an advisory jurisdiction. See Senate Standing Committee on Constitutional and Legal Affairs, 1978; Constitutional Commission, 1988, Vol 1, p 414. 575 In Croome v Tasmania (1997) 191 CLR 119; 142 ALR 397 it was held that a challenge to the validity under s 109 of the Constitution of a provision of a State Criminal Code could constitute a ‘matter’ though no prosecutions under that law were pending or threatened against the plaintiffs. The court explained its prior statement in Re Judiciary and Navigation Acts. Brennan CJ, Dawson and Toohey JJ argued that where a declaration of constitutional invalidity is sought the law that is administered in such proceedings is the Constitution not the impugned law itself: at 126. Gaudron, McHugh and Gummow JJ similarly argued that the court’s earlier statement did not mean

that a citizen was unable to seek a declaration of invalidity against a State criminal law as inconsistent under s 109 unless the State had actually brought criminal proceedings under that law against the citizen: at 136. In Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (2000) 200 CLR 591; 169 ALR 616; [2000] HCA 11 the court upheld the validity of s 80(1) of the Trade Practices Act 1974 (Cth). In essence, that section provided that any person could apply to the Federal Court for an injunction against a contravention of certain parts of the Act. It was held that a ‘matter’ could arise even though the applicant claimed no direct or special interest in enforcing the law: at [20], [44], [76], [176], [183], [214]. In Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1; [2002] HCA 16 a doctor had obtained a Federal Court judgment against the State of Victoria that a State law was inconsistent with federal anti-discrimination legislation: at [page 331] [9], [15]. The Bishops were heard as an amicus curiae in the Federal Court case, and were not a party to the case: at [14]. The parties did not appeal the Federal Court decision: at [1]. The Bishops then sought to quash the Federal Court decision on the ground that it was wrong in law: at [245]. It was not alleged that the Federal Court judge acted in excess of jurisdiction: at [1], [245]. The Commonwealth Attorney-General also sought the same relief in a relator action: at [48]. By a 4–3 majority the court held that there was no ‘matter’ between the parties. As Gleeson CJ put it (at [26]): … for one citizen to say that a judge wrongly decided a case in favour of another citizen does not give rise to a matter. Nor does a complaint by the Attorney-General of the Commonwealth that a law of the State of Victoria has been held invalid, by a decision which is accepted by, and binds, the State of Victoria, … give rise to a matter.

Gaudron and Gummow JJ noted that no party to the Federal Court proceedings sought any relief, and no appeal had been brought against that decision: at [41]. There was no controversy between the Bishops and either

the doctor or the Federal Court judge: at [63]. The Bishops asserted no ‘right, title, privilege or immunity under the Constitution’: at [68]. Hayne J pointed out that an attempt by a person to litigate the rights, duties or liabilities of others will often fall short of a matter where that person has a merely theoretical interest in the outcome: at [243]. This case was an attempt by third parties to challenge a judicial determination of the rights of two other parties: at [246]. This did not constitute a ‘matter’ — ‘each application seeks only to enliven the subject matter of a controversy between others which has already been quelled by the application of judicial power’: at [246]. The word ‘matter’ includes every issue or aspect of the controversy before the court, not only the constitutional issue or aspect. In Pirrie v McFarlane (1925) 36 CLR 170 at 198 Isaacs J said: … looking at sec 75, the “matter” would not necessarily be simply that part of the controversy depending on the construction or effect of a treaty, or that part of the controversy relating to a consul or the Commonwealth. There might be other necessary parties and other essential questions, all of which would be factors constituting the “matter”. The controversy is not intended to be decided piecemeal by different tribunals, State and Federal.

For discussions of the concept of ‘matters’, see Leeming, 2012, pp 84–113; Clarke, Keyzer and Stellios, 2013, pp 1008–9; Williams, Brennan and Lynch, 2014, pp 441–55. Under the Judiciary Act the High Court has power to remit any matter to a federal court, State court or Territory court ‘that has jurisdiction with respect to the subject-matter and the parties’: s 44(1). The court also has power to remit to the Federal Court or any State or Territory court a matter referred to in s 38(a), (b), (c) or (d) of the Act which is pending in the High Court: s 44(2). The federal courts will only decide issues that are justiciable, that is, subject to resolution by legal, as distinct from political, criteria. See South Australia v Victoria (1911) 12 CLR 667 at 675, 714, 721. Gummow and Crennan JJ described ‘non-justiciable’ as ‘a slippery term of indeterminate reference’. See Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 at [105]. The courts have sometimes indicated that certain issues are non-justiciable. For example, the conduct of foreign relations is generally non-justiciable. See Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR

274 at 307–8; 75 ALR 218, SLR (1987) 165 CLR 668; Horta v Commonwealth (1994) 181 CLR 183 at 195–6; 123 ALR 1; Thorpe v Commonwealth (No 3) (1997) 144 ALR 677 at 691, 693; 71 ALJR 767; Gamogab v Akiba [page 332] (2007) 159 FCR 578; 241 ALR 123; [2007] FCAFC 74 at [31]; Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449; 269 ALR 298; [2010] FCAFC 69 at [1], [99], [124]; Ure v Commonwealth (2015) 323 ALR 164; [2015] FCA 241 at [30]–[40]; cp Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 367–73; 83 ALR 265. However, the courts have jurisdiction to decide whether an issue is non-justiciable. Deciding that issue does not involve deciding the non-justiciable question itself. See Ditfort at 369. For discussions of justiciability, see Lindell in Lee and Winterton, 1992, pp 180–250; Thomson in Coper and Williams, Power, 1997, pp 56–67; Lane, 1997, pp 506–8; Lindell in Opeskin and Rothwell, 1997, pp 161–5; Burmester in Opeskin and Wheeler, 2000, pp 254–61; Stellios, 2010, pp 200– 5; Clarke, Keyzer and Stellios, 2013, pp 1111–13; Williams, Brennan and Lynch, 2014, pp 464–70. (i) Arising under any treaty

576 The purpose of this paragraph is to confer upon the High Court jurisdiction in matters arising under treaties. Section 38(a) of the Judiciary Act 1903 (Cth) makes exclusive to the jurisdiction of the High Court ‘matters arising directly under any treaty’, thereby implying that matters arising indirectly under a treaty are within the concurrent jurisdiction of the State courts as well as the High Court. See Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171; [2000] NSWSC 975 at [65], [76]. Wynes commented that ‘[i]t is not easy to envisage a matter arising under a treaty which would not at the same time arise under a Commonwealth or State law’. See Wynes, 1976, p 451. He went on to point out that, in English law, treaties do not of their own force affect private rights.

In Bluett v Fadden (1956) 56 SR (NSW) 254 McLelland J held that s 75 referred to cases where the decision of the case depended upon the interpretation of the treaty: at 261. So far as s 38 of the Judiciary Act was concerned, where rights had been conferred by legislation implementing a treaty, the matter could not be said to arise directly under the treaty: at 261. In R v Donyadideh (1993) 115 ACTR 1; 114 FLR 43 it was held that a prosecution brought under legislation implementing an international convention was not a matter arising under a treaty. Mere recourse to a treaty in deciding the matter did not mean that it arose under a treaty: at 6. In Re East; Ex parte Nguyen (1998) 196 CLR 354; 159 ALR 108; [1998] HCA 73 the majority of the High Court found it unnecessary to determine the meaning of s 75(v) because the case at hand raised no justiciable controversy arising under a treaty: at [18]. In dissent, Kirby J approved the interpretation adopted in Bluett v Fadden: at [71]–[72]. (ii) Affecting consuls or other representatives of other countries

577 At the time of Federation, Australia’s diplomatic relations with other countries were under the control of the Imperial government. It was not envisaged at the time that Australia would have its own Foreign Affairs Department conducting diplomatic relations with other countries. See Zines in Opeskin and Wheeler, 2000, p 287. In those circumstances it was natural that consuls who were agents conducting commercial and various other relations with [page 333] foreign countries would receive primary recognition in the category to be set out in s 75(ii). Nevertheless it is clear that ambassadors and diplomatic representatives would be regarded as falling within the phrase ‘other representatives of other countries’. Therefore, matters affecting these representatives would be within the jurisdiction of the High Court. The word ‘affecting’ means touching or concerning a consul or diplomatic

representative in respect of their status or actions. It may be a matter that affects them in terms of the operation of the criminal law of a State or Territory, or it may be a matter affecting them in terms of the civil law. The question arises as to whether the effect of s 75(ii) is to give the High Court original jurisdiction in any matter affecting consuls, or only when the consul or other diplomatic representative is involved in their official capacity as plaintiff or defendant. Quick and Garran considered that this clause applies only to consuls and other representatives in their official capacity. See Quick and Garran, 1901, p 771 (Revised ed, 2015, pp 930–1). On this view, when any litigation concerns one of these representatives, and no claim is made that the action of the representative giving rise to liability has occurred in the performance of official duties or that they are entitled to diplomatic immunity, then it would seem that the High Court would not have original jurisdiction. But the language of the section invites a contrary interpretation. In R v Donyadideh (1993) 115 ACTR 1; 114 FLR 43 it was held that a prosecution under the Crimes (Internationally Protected Persons) Act 1976 (Cth) was within s 75(ii) because the alleged victims of the offences were representatives of another country: at 6–7. The jurisdiction of the High Court under s 75(ii) is not exclusive of the jurisdiction of the State courts unless the matter is one which also directly arises under a treaty. (iii) In which the Commonwealth or a person suing or being sued on behalf of the Commonwealth, is a party

578 It was natural that the founders would wish to confer upon the High Court original jurisdiction in matters involving the new juristic entity created by the Constitution — the Commonwealth of Australia. See Zines, 2002, p 34. Indeed, it appears that the State courts may not have had jurisdiction over the Commonwealth as a defendant to an action without some positive grant of jurisdiction by the Constitution or under Commonwealth legislation. In Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (the Bank Nationalisation case) Dixon J affirmed that ‘[t]he purpose of s 75(iii) obviously was to ensure that the political organization called into existence under the name of the Commonwealth and armed with enumerated powers and

authorities, limited by definition, fell in every way within a jurisdiction in which it could be impleaded and which it could invoke’: at 363. In another case Barwick CJ suggested that the purpose of this subsection was that the Commonwealth ‘should not be compelled to pursue its rights in the courts of the States’. See Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 335. Section 56(1) of the Judiciary Act 1903 (Cth) provides that a person making a claim against the Commonwealth, whether in contract or tort, may bring a suit against the Commonwealth in various specified courts. Section 64 of the same Act provides that in ‘any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same … as in a suit between subject and subject’. For discussions of s 64, see Kneebone (1996) 24 FL Rev 93; Hill (2006) 29, 3 UNSWLJ 1; Stellios, 2010, pp 483–8; Hanks, Gordon and Hill, 2012, pp 262–3. [page 334] In Commonwealth v Mewett (1997) 191 CLR 471; 146 ALR 299 three judges held that s 75(iii) precluded the operation of Crown immunity in an action to recover damages in a common law cause of action: at 491, 551. This liability is recognised but not created by ss 56 and 64 of the Judiciary Act: at 491, 551. One judge argued that the Constitution precludes Crown immunity except under legislation preventing liability in respect of acts done in the exercise of federal legislative power: at 531. Three judges held that the liability of the Crown in tort and contract was created by s 56 or s 64 of the Judiciary Act, and that s 75(iii) did not remove Crown immunity: at 496, 500–1, 513, 532. See also Lipohar v R (1999) 200 CLR 485; 168 ALR 8; [1999] HCA 65 at [52]. 579 It should be noted that it is not only where the Commonwealth is named as a direct party to an action that the original jurisdiction can be invoked. It may also be invoked where a Commonwealth official is a party and is being sued in their representative capacity. It has been held that original jurisdiction is conferred by s 75(iii) where the Commonwealth commences ex parte proceedings in mandamus and also where the Commonwealth is acting

as a prosecutor in respect of offences against the laws of the Commonwealth. See R v Registrar of Titles for Victoria; Ex parte Commonwealth (1915) 20 CLR 379 at 387–90; R v Kidman (1915) 20 CLR 425 at 438, 444. There is also the case where a Commonwealth agency or instrumentality is being sued. In Bank of New South Wales v Commonwealth (1948) 76 CLR 1 it was pointed out that an agency such as the government owned Commonwealth Bank would fall within this category: at 276, 321–2, 362. In the view of several judges, the test applied in determining whether a body is within the shield of the Crown could be applied in this area, and an examination of the powers of the Commonwealth Banking Corporation showed that it was an agency of the Commonwealth. However, Dixon and Starke JJ considered that the authority did not have to be within the shield of the Crown in the strict sense in order to be sued under s 75(iii) of the Constitution.

In Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 it was held that the Commonwealth Trading Bank could be sued under s 75(iii). Kitto and Windeyer JJ took the view that the bank was being ‘sued on behalf of the Commonwealth’: at 342. Barwick CJ favoured the view that the Commonwealth was a direct party: at 336. In dicta in Maguire v Simpson (1977) 139 CLR 362; 18 ALR 469 two judges regarded the bank as the Commonwealth: at 397–8, 407. Another judge opted for the view that the bank was ‘suing … on behalf of the Commonwealth’: at 368. In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; 177 ALR 329; [2001] HCA 1 the court held that ASIC was ‘the Commonwealth’ under s 75(iii). Gleeson CJ, Gaudron and Gummow JJ held that ASIC was a corporation established by federal law that fell within the phrase ‘the Commonwealth’: at [40]. Hayne and Callinan JJ agreed: at [214]. McHugh J also held that ASIC was the Commonwealth, as ASIC was a Commonwealth authority that was required by federal law to carry out Commonwealth functions under ministerial direction: at [126]. See similarly, Visnic v Australian Securities and Investments Commission (2007) 231 CLR 381; 234 ALR 413; [2007] HCA 24 at [18]; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; 286 ALR 501; [2012] HCA 17 at [149]. The Bank Nationalisation case (1948) 76 CLR 1 decided that the original jurisdiction of the High Court could not be shut out by Commonwealth legislation that conferred upon another court exclusive jurisdiction to determine matters arising under the legislation: at 276, 322–3, 368. Under the law, a Court of Claims had exclusive jurisdiction to determine [page 335] the value of shares and property of the private banks which were to be compulsorily acquired under the nationalision legislation: at 223. Under s 38(c) and (d) of the Judiciary Act 1903 (Cth), suits by the Commonwealth against a State, or a State against the Commonwealth, or persons suing or being sued on their behalf, are exclusive to the High Court

vis-a-vis the jurisdiction of State courts. A State Bank through which the State carried on banking was treated as the State under s 38(c). See State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 652; 67 ALR 535. Under s 44(2) of the Judiciary Act a matter pending in the High Court may be remitted to the Federal Court or a State or Territory court. Section 44(2a) specifically permits a matter in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party, to be remitted to the Federal Court. See State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579 at 583–4; 53 ALR 625. For a discussion of the remittal of cases from the High Court, see ALRC, 2001, pp 239–52; Blackshield, Coper and Williams, 2001, pp 593–4; Zines, 2002, pp 81–4. (iv) Between States, or between residents of different States, or between a State and a resident of another State

Between States 580 It is fitting that the High Court should be invested with original jurisdiction where two or more States of the Commonwealth are involved in litigation. Section 75(iv) affords a forum where a determination of such an interstate dispute can take place without regard to particular State interests which otherwise might carry undue weight if the Supreme Court of a particular State had jurisdiction in such matters. There have been few examples of actions between States in the original jurisdiction of the High Court. An early example is a case dealing with the question of the determination of the boundaries of South Australia and Victoria. It was held that the High Court would have jurisdiction over such interstate disputes if they were justiciable, that is, subject to resolution by legal, as distinct from political, criteria. See South Australia v Victoria (1911) 12 CLR 667 at 675, 714, 721; Webster and Williams (2012) 29 Environmental and Planning LJ 281 at 285–9. In State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253; 140 ALR 129 Gummow and McHugh JJ argued

that the State Authorities Superannuation Board of New South Wales was an instrumentality which was a ‘State’ under s 75(iv): at 284, 293.

Between residents of different States 581 This has been described as ‘diversity jurisdiction’. An example of this jurisdiction would be where a New South Wales resident sued a Queensland resident for an injury occurring in either New South Wales or Queensland. In such a case the plaintiff has the option of suing in the High Court in its original jurisdiction or in the Supreme Court of one of the States. It must be established that the parties were residents of different States at the time when the action was brought. The residence of a natural person would be determined on the basis of the location of their dwelling house, occupation, period of time spent in the area and the like. By contrast, [page 336] a juristic person such as a company cannot dwell in or inhabit a particular place or State although for the purposes of particular legislation, for example taxation, such residence may be attributed to it. A company is not treated as a resident for the purposes of s 75(iv). See Australian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 296, 329, 334; Cox v Journeaux (1934) 52 CLR 282 at 285; Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 at 24, 27, 34; 62 ALR 1; Rochford v Dayes (1989) 84 ALR 405 at 406; 63 ALJR 315; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; 200 ALR 403; [2003] HCA 47 at [37], contrast at [108]–[110]. Where the parties are natural persons and a company, the proceeding does not come within s 75(iv).

Between a State and a resident of another State

582 In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 the trial of a Queensland resident in a Victorian court for an offence under Victorian law was an exercise of federal jurisdiction. That arose from the operation of s 75(iv) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth): at [9], [99], [134], [136], [139], [594]. Under s 75(iv) the High Court has original jurisdiction in all matters between a State and a resident of another State. Under s 39(2) State courts are ‘invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction’. Actions were brought in the High Court under this head of jurisdiction in Daly v Victoria (1920) 28 CLR 395 and New South Wales v Bardolph (1935) 52 CLR 455. Section 58 of the Judiciary Act provides for the enforcement of a right of a private person against a State (in matters where the High Court has original jurisdiction). Under s 38(b) of the Judiciary Act, ‘suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State’, are exclusive to the High Court vis-a-vis the jurisdiction of State courts. See State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 271–2; 140 ALR 129. However, under s 44(2) of the Judiciary Act such matters may be remitted to the Federal Court or a State or Territory court. (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth

583 Dixon J pointed out that the High Court’s entrenched jurisdiction in s 75(v) made it ‘constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power’. See Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 363. Gleeson CJ thus emphasised the importance of s 75(v) as a ‘basic guarantee of the rule of law’: … the effect of [this] provision is that no one is above the law. Thus government officials must exercise their powers according to law. If they do not, then, in the last resort, the High Court may order them to do so. The Constitution … itself declares that the government must obey the law, and gives the High Court the jurisdiction to compel such obedience. That jurisdiction cannot be removed or modified except by constitutional amendment. Parliament, if acting

within the limits of the powers assigned to it by the Constitution, may change the law. But the executive government must obey the law. [Gleeson, 2000, pp 67–8.]

[page 337] Other judges have also characterised this paragraph as a guarantee of the rule of law. See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [208]; Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [64], [321]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [5], [103]; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; 200 ALR 403; [2003] HCA 47 at [113]. It has also often been said that the Constitution itself was framed upon the assumption of the rule of law. See Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44 at [30]; Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 at [61]; South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 at [61], [131], [232]–[233], [423]; Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 at [120]; Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 at [563], [593]. In Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114; [2007] HCA 14 the court emphasised the fundamental importance of s 75(v). The remedies in s 75(v) have ‘high constitutional purposes’. These purposes are the protection of ‘the rights of all natural and corporate persons affected [and] the position of the States as parties to the federal compact’: at [37]. In the light of these ‘high constitutional purposes’, the court described the remedies in s 75(v) as ‘constitutional writs’ rather than ‘prerogative writs’: at [37]. This provision confers upon the High Court a constitutionally guaranteed jurisdiction to ‘restrain officers of the Commonwealth from exceeding Federal power’: at [45]. The jurisdiction in s 75(v) constitutes ‘an entrenched minimum provision of judicial review’ of administrative action: at [46]. For a discussion of constitutional writs, see Jackson (2004) 12 Aust J Admin L 22.

In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 the court upheld a statutory provision that conferred a power upon a Minister but provided that the Minister need not consider whether to exercise the power. The court held that this provision did not conflict with s 75(v). Enforcement of the limits of the powers of officers of the Commonwealth did not require that consideration of whether to exercise the power must be enforceable. Enforcing the limits of those powers did not require that the discretion to exercise the power be interpreted as necessary if certain conditions were satisfied: at [57]. If the power was exercised, s 75(v) would be available to enforce the limits of the power. The provision did not create an ‘island of power’ beyond judicial supervision: at [59]. Section 75(v) gives jurisdiction in cases where specific types of remedies are sought against a Commonwealth officer. By contrast, the other grants of jurisdiction in s 75 depend either on subject matter or on the classification of the parties to an action. The question may be raised whether there is any need for specification in this paragraph of these three types of remedies as falling within the High Court’s original jurisdiction. On more general principles, they would seem to fall within the ordinary jurisdiction of the High Court either under its inherent jurisdiction or jurisdiction derived from sections of the Judiciary Act 1903 (Cth) to grant remedies in respect of any matters falling within the limits of the judicial power (which are delimited by ss 75 and 76). See Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 179, 204, 221, 231; 127 ALR 21. This paragraph is a source of jurisdiction not substantive rights. See Richard Walter at 178, 205, 232; Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [156]. [page 338] Section 75(iii) confers jurisdiction where a person being sued on behalf of the Commonwealth is a party. In the case of mandamus and prohibition, the Crown is always named as a party to the proceedings, and the private citizen who wishes to seek such a remedy sues ex parte. However, a writ of prohibition or an injunction may be brought against a named person

performing some function under Commonwealth law who, although a Commonwealth officer, could not be shown to be a person who is being sued on behalf of the Commonwealth. It would seem therefore that the ground covered by s 75(iii) is much narrower than the ground covered by s 75(v) and that, therefore, there is a need for the extension of jurisdiction with respect to the grant of remedies against an officer of the Commonwealth, which is the purpose of s 75(v). In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (1914) 18 CLR 54 it was held that the term ‘officer of the Commonwealth’ was not restricted to non-judicial officers, that is, to members of the Commonwealth public service. It included members of a ‘judicial’ body such as the Arbitration Court, but not a judge of a State court exercising federal jurisdiction: at 62, 67, 81, 83, 85–6. It was also not restricted to specific individuals but could comprise corporations whether sole or aggregate. 584 Prohibition is a ‘a judicial proceeding in which one party seeks to restrain another from usurping or exceeding jurisdiction’. See R v Murray; Ex parte Commonwealth (1916) 22 CLR 437 at 446; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [142], [159]. Prohibition will lie to judges of federal courts, such as the Federal Court and the Family Court. See R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, 267; 9 ALR 557; R v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1979) 142 CLR 113 at 123; 23 ALR 69; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 203, 221, 237; 23 ALR 439; Re McJannet; Ex Parte Minister for Employment Training and Industrial Relations (Qld) (1995) 184 CLR 620 at 643–4, 652; 132 ALR 198. The writ of prohibition was the normal method of challenging excesses of jurisdiction by the Australian Industrial Relations Commission, which was not a court within s 71. The writ would also be available against other quasijudicial bodies. It is not available against bodies which merely fulfil an administrative function, for example of advising a Minister, without having any power to enforce an obligation. It has been held that prohibition is available not only to prevent a body

acting in excess of jurisdiction at a stage before final judgment, but even after final judgment is reached, provided that the judgment of that body has a continuing effect upon the rights and duties of the persons affected by its order. In R v Hibble; Ex parte BHP Ltd (1920) 28 CLR 456 it was said that ‘so long … as a judgment or order made without jurisdiction remains in force so as to impose liabilities upon an individual, prohibition will lie to correct the excess of jurisdiction’: at 463. See similarly, R v Spicer; Ex parte Waterside Workers’ Federation of Australia (No 2) (1958) 100 CLR 324 at 341. 585 The writ of mandamus has two uses. Its primary use is to enforce the carrying out of a duty by a public official where that public official has neglected to do so. Its secondary use depends on the thesis that an improper exercise of jurisdiction is wholly ineffective and, therefore, mandamus should lie to compel the correct exercise of that jurisdiction. See Re Heerey; Ex parte Heinrich (2001) 185 ALR 106; [2001] HCA 74 at [20]. Mandamus is available against purely administrative officials as well as against inferior judicial bodies. Where there is no duty for a Minister to exercise a statutory power, mandamus is not available to compel the Minister to exercise that power. See Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 at [59]. [page 339] Injunctions are available under s 75(v) against federal officers to prevent them from acting contrary to statute or in an unconstitutional manner. The requirements for the grant of an interlocutory injunction were well summarised by Mason CJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153; 67 ALR 553. A plaintiff must establish: (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

See similarly, Richardson v Forestry Commission (1987) 164 CLR 263 at 274– 6; 73 ALR 589.

It must be noted that s 75(v) does not exhaust the remedies that are available to the High Court which otherwise arise from its inherent or statutory jurisdiction. Some doubts existed as to the availability of the writ of certiorari (which is not mentioned in s 75(v)) to challenge a decision of a lower tribunal which is alleged to have acted contrary to statutory provisions. See Aitken (1986) 16 FL Rev 370; Zines, 2002, pp 51–7; Gummow (2014) 42 FL Rev 241; Burton (2014) 42 FL Rev 253. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 Gaudron, Gummow and Kirby JJ stated that the High Court had power to grant certiorari where necessary for the ‘effective exercise’ of its constitutional jurisdiction to issue prohibition and mandamus: at [14], [152]. Hayne J agreed that the High Court could grant certiorari, but considered that its jurisdiction to do so did not arise from s 75(v): at [156]– [157]. In Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114; [2007] HCA 14 six Justices confirmed that the court may grant certiorari as a remedy ancillary to the grant of the principal remedies of prohibition and mandamus: at [62], [64]. See similarly, MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28 at [9]; Edwards v Santos (2011) 242 CLR 421; 275 ALR 489; [2011] HCA 8 at [1], [53]. Certiorari may also be issued in the exercise of the jurisdictions in ss 75(iii) and 76(i). However, the availability of certiorari in those jurisdictions may be excluded by legislation. See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [80]–[81]. Other remedies which a superior court of record has in the exercise of its jurisdiction are, of course, available in the High Court, for example the right to make a declaratory judgment. 586 It has been held that the jurisdiction exercisable by the High Court under s 75(v) cannot be taken away by the Commonwealth Parliament. A privative clause purports to exclude judicial review of administrative action. However, such a clause cannot deprive the High Court of its jurisdiction to entertain an action against an officer of the Commonwealth if that officer has acted in excess of constitutional power. See Australasian Coal and Shale

Employees’ Federation v Aberfield Coal Mining Co (1942) 66 CLR 161 at 176, 178, 192–3; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres Ltd (1949) 78 CLR 389 at 399. In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 a privative clause in the Migration Act provided that an administrative decision made under the Act was final and conclusive. The clause further stated that such a decision was ‘not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account’: at [48]. The High Court held that this provision did not purport to exclude its constitutionally guaranteed jurisdiction under s 75(v). [page 340] The court interpreted the privative clause in the light of its prior cases regarding the interpretation of such clauses: at [19], [22], [55]–[56]. A privative clause could validly prohibit judicial review of decisions taken within jurisdiction, but not decisions affected by jurisdictional error (made in excess of jurisdiction): at [57], [73], [75]. A decision taken within jurisdiction was a decision under the Act, and therefore subject to the privative clause. The Act could validly exclude the remedies in s 75(v) in such a case: at [74], [76]. A decision affected by jurisdictional error was not a decision under the Act, and was not subject to the privative clause. The remedies in s 75(v) applied to such a decision, and they could not be validly excluded in that case: at [38], [57], [75]–[76], [83]. A statute cannot confer upon a non-judicial body ‘the power to conclusively determine the limits of its own jurisdiction’, for that would be an infringement of judicial power: at [9], [73], [75]. For a discussion of this case, see McDonald (2010) 21 Public LR 14. In Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114; [2007] HCA 14 another section of the Migration Act provided that an application to the High Court for the remedies in s 75(v) in relation to a migration decision was subject to a time limitation: at [17]. The High Court was prohibited from granting an extension of time for the making of an application beyond an 84-day period: at [9], [16].

In a joint judgment Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ held that the time limitation was invalid: at [60]. In considering whether a time limitation infringes the guarantee of jurisdiction under s 75(v), the court examines the ‘substance or practical effect’ of the limitation: at [54]. The provision was invalid because the court was prohibited from considering highly relevant circumstances (such as corruption or bias) that became known only after the end of the 84-day period: at [56]. Another relevant circumstance was where the failure to apply within time was not due to the fault of the applicant, but resulted from the fault of the applicant’s migration adviser or a supervening physical incapacity: at [57]. The challenged provision dealt with such circumstances by applying an inflexible rule regarding timeliness, when these circumstances could be considered in exercising the discretion whether to grant the constitutional writ: at [59]. The provision ‘subvert[ed] the constitutional purposes’ of the remedies in s 75(v): at [58]. Callinan J agreed with the other Justices on these points: at [79]–[80]. For a discussion of privative clauses, see Guy and Hocking (2008) 16 Aust J Admin L 21. In MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28 a statute provided that the Federal Magistrates Court was the only court to which the High Court could remit a matter relating to a migration decision. The statute also prohibited the High Court from remitting a migration matter to the Federal Magistrates Court unless that court had jurisdiction in the matter. The Federal Magistrates Court did not have jurisdiction in relation to the matter in this case, so only the High Court had jurisdiction to determine this matter: at [13], [52], [191]. It was argued that the High Court possessed an implied power to remit matters to other courts. Gleeson CJ, Gummow and Hayne JJ held that the grant of original jurisdiction in s 75 carried with it powers that were ‘incidental and necessary to the exercise of the jurisdiction’: at [32]. Such powers would include the power to punish contempt, stay orders and to deal with an abuse of process: at [33]. The ‘text and structure’ of Chapter III did not support the existence of an implied power of remittal: at [39]. In relation to the matters listed in ss 75 and 76 Parliament determines the jurisdiction of the federal courts and the federal jurisdiction of State courts: at [41]. The High Court had never

suggested that it possessed a non-legislative power to remit matters within its exclusive jurisdiction: at [47]. [page 341] Heydon, Crennan and Kiefel JJ held that the effective discharge of the court’s jurisdiction did not require the implication of a power of remittal: at [192]. Such an implied power would be inconsistent with Parliament’s power to define jurisdiction under s 77. The court did not have power to prevent a litigant from invoking its jurisdiction. Existing implied powers such as the power to punish contempt were ‘distinct from the power of remitter’: at [197]. The court may not remit a matter to a court where Parliament has not invested that court with jurisdiction: at [198]. Kirby J held that the necessity for a non-legislative power of remittal had not been demonstrated in the present circumstances: at [59], [119]. Such a power would be effective only if another court possessed jurisdiction under the Constitution or statute: at [68]. However, if the burden upon the court became too great an implied power of remittal might come into play: at [118], [137]. For a discussion of this case, see Burton (2009) 16 Aust J Admin L 115. With the enactment of restrictions upon Federal Court review of decisions of the Refugee Review Tribunal, many unsuccessful applicants for refugee status sought relief through the High Court’s constitutionally entrenched jurisdiction under s 75(v). As a result the number of refugee matters brought before the High Court markedly increased. See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [7]–[8]; Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; [1999] HCA 14 at [50]; ALRC, 2001, pp 116–20. Section 75 is not limited to a grant of prohibition on constitutional grounds. It is also available where a Commonwealth officer, on whom has been imposed the duty of acting in a judicial manner, has exceeded the jurisdiction conferred upon them by the empowering statute. See R v Hickman (1945) 70 CLR 598 at 606–7. The High Court may grant relief under s 75(v) for an administrative

decision rendered in excess of jurisdiction because of a denial of procedural fairness. See Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [5], [17], [41], [142], [170]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [26], [102], [148], [213]. However, a statute may exclude the application of the rules of natural justice. See Aala at [41]; Miah at [102], [126]. The grant of relief under s 75(v) is discretionary. See Aala at [5], [54], [147]–[148], [172], [217]; Glennan v Commissioner of Taxation (2003) 198 ALR 250; 77 ALJR 1195; [2003] HCA 31 at [17]; Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; 247 ALR 605; [2008] HCA 32 at [10], [88]–[92], [130]; Alderton (2015) 23 Aust J Admin L 15.

ADDITIONAL ORIGINAL JURISDICTION 587 Section 76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter — (i) Arising under this Constitution, or involving its interpretation: (ii) Arising under any laws made by the Parliament: (iii) Of Admiralty and maritime jurisdiction: (iv) Relating to the same subject-matter claimed under the laws of different States.

[page 342] See Quick and Garran, 1901, pp 789–801 (Revised ed, 2015, pp 954–70); Attorney-General’s Department, 1980, pp 265–72; Ying (1981) 12 FL Rev 236; Constitutional Commission, 1988, Vol 1, pp 373–82, Vol 2, p 665; Aitken (1988) 14 Mon ULR 158; Aitken (1990) 19 FL Rev 31; Katz (1991) 2 Public LR 228; Opeskin (1995) 46 South Carolina LR 765; Lane, 1997, pp 595–612; ALRC, 2000, pp 45–51, 72–7; Zines in Opeskin and Wheeler, 2000, pp 281–3, 288–90; Zines, 2002, pp 22–3, 65–77, 238–42; Cremean (2009) 21 Bond LR 25; Stellios, 2010, pp 307–23, 351–2; Leeming, 2012, pp 199–206, 223–30; Clarke, Keyzer and Stellios, 2013, pp 1016–7, 1023–5; Williams, Brennan and Lynch, 2014, pp 439–41.

(i) Arising under this Constitution or involving its interpretation

588 Section 76(i) refers to jurisdiction in any matter arising under the Constitution or involving its interpretation, while s 76(ii) refers to jurisdiction arising under any laws made by the Parliament. The differences between the two sections were discussed by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154: The terms of par (i) show that a matter may arise under the Constitution without involving its interpretation, and that a case may involve the interpretation of the Constitution without arising under the Constitution. Paragraph (ii) is limited to matters arising under Federal statutes, and does not extend to matters involving the interpretation of such statutes if they do not arise thereunder.

589 Section 30(a) of the Judiciary Act 1903 (Cth) confers original jurisdiction upon the High Court in matters covered by s 76(i). Under s 30(c), the High Court also has original jurisdiction in trials of indictable offences against Commonwealth laws. It is quite clear that s 76 is designed to allow the Commonwealth Parliament to invest the High Court with a jurisdiction in constitutional matters, whether these matters arise in a specific suit claiming relief by virtue of a constitutional provision, or in some other suit which on its facts or pleadings does not depend for relief upon a constitutional provision but which will involve the interpretation of one or other section of the Constitution. In both cases the matter would be covered by s 76(i). In Hopper v Egg Pulp Marketing Board (1939) 61 CLR 665 questions arose as to whether a particular fee imposed by a Victorian Marketing Board under State legislation constituted an excise duty prohibited by s 90 of the Constitution. It was argued that, once the constitutional issue had been disposed of, the case could no longer proceed in federal jurisdiction but would have to be remitted to a State court for a decision on the non-constitutional issues. The court rejected the argument: at 673–4, 681, 687. Latham CJ said that the fact that the constitutional objection had failed did not deprive the court of jurisdiction provided that the facts relied upon were raised bona fide and were such as to raise a constitutional question: at 673–4.

Once the constitutional matter is disposed of, the High Court can thus determine the whole case even though it involves merely the interpretation of a State statute or the principles of the common law. 590 State courts are invested under s 39(2) of the Judiciary Act 1903 (Cth) with a concurrent jurisdiction to decide cases arising under the Constitution or involving its interpretation, subject to the removal provisions: ss 40–44. Section 40(1) provides for removal into the [page 343] High Court of a pending action in a State, Territory or federal court if it arises under the Constitution or involves its interpretation. In Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315; 65 ALR 74 Mason, Wilson, Brennan, Deane and Dawson JJ held that the word ‘matter’ in s 76(i) includes legal disputes at both first instance or on appeal: at 323. It therefore extends to conferring original jurisdiction upon the High Court in such a matter when it arises in proceedings in another court, whether at the trial or appellate level: at 323. Under s 76(i) a matter involves the interpretation of the Constitution if it appears that it can be resolved by deciding a question of constitutional interpretation, even if it may also be possible to decide the matter on other grounds without reaching the constitutional issue: at 327. (ii) Arising under any laws made by the Parliament

591 A matter arises under federal law ‘if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law’. See R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; CGU Insurance Ltd v Blakeley (2016) 327 ALR 564; 90 ALJR 272; [2016] HCA 2 at [28]. A matter also arises under federal law if a party raises an ‘immunity or defence’ based upon a federal law. See Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; 218 ALR 677; [2005] HCA 38 at [32].

The High Court had occasion to examine s 76(ii) in a number of cases where the validity of Commonwealth legislation defining the jurisdiction of federal courts other than the High Court (under s 77(i)) was in issue. The legislative power conferred by s 77 is limited to matters mentioned in the previous two sections (ss 75 and 76). This means that the Parliament cannot confer upon any inferior federal court jurisdiction wider than that permitted by ss 75 and 76. Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 considered the validity of the conferral upon the Arbitration Court of appellate jurisdiction in proceedings arising under the Conciliation and Arbitration Act or involving the interpretation of that Act, as well as in proceedings arising under an award or order of the court or involving the interpretation of that order or award: at 537. The initial proceedings in this case involved a prosecution under a State Industrial Act. The defence in this prosecution was that the State Act was inconsistent with an award made by the Arbitration Court: at 536. The matter did not arise under a Commonwealth Act even though the interpretation of the Act and the award was in issue. The High Court held that the conferral of jurisdiction upon the Arbitration Court could not be upheld as a conferral of jurisdiction in a matter arising under federal legislation. Authority could not be ‘found in the operation of s 76(ii) … upon s 77(i)’: at 540. See also Zines, 2002, pp 66–7. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 the Conciliation and Arbitration Act authorised the Commonwealth Arbitration Court to order members of a union to observe the rules of the union: at 149. The applicant sought a writ of prohibition in respect of a decision by an Arbitration Court judge concerning elections to a union: at 149. It was argued that since all that was in issue was a disputed union election, there was no specific law made by the Parliament under which the matter could be said to arise. It was further argued that the provision authorising the Arbitration Court to order observance of union rules was therefore not a valid conferral of original federal jurisdiction in terms of s 77: at 150.

[page 344] The High Court held that the union rules provision vested jurisdiction over matters arising under the Act relating to the enforcement of union rules — a matter which was incidental to the prevention and settlement of industrial disputes. It was therefore a matter arising under a law made by Parliament under s 76(ii): at 155–6, 158, 160, 165, 171. In conjunction with s 77(i), s 76(ii) authorises the Commonwealth Parliament to confer federal jurisdiction upon federal courts in matters arising under laws enacted under the Territories power. See Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; [1999] HCA 8 at [91], [132], [258]; Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 at [25], [29], [82], [175], [232], [312]. It is within the power of a Territory Parliament to confer jurisdiction upon the Federal Court in relation to Territory law. See Bateman Project Engineering Pty Ltd v Pegasus Gold Australia Pty Ltd (2000) 10 NTLR 69; 155 FLR 354; [2000] NTSC 34 at [8]. In Ruhani v Director of Police (2005) 222 CLR 489; 219 ALR 199; [2005] HCA 42 the High Court held that s 76(ii) supported legislation that allowed for ‘appeals’ to the High Court from the Supreme Court of Nauru: at [6], [14], [106]. The majority held that these ‘appeals’ were actually an exercise of the court’s original jurisdiction, the terminology in the Act notwithstanding: at [9], [38], [41], [110], contrast [152], [176], [282]–[283]. These ‘appeals’ fell within s 76(ii) since they arose under the federal statute providing for the ‘appeal’: at [8], [64], [115], [218]. The High Court exercised original jurisdiction under the Commonwealth Act since it was the first invocation of federal jurisdiction: at [10], [39], [51]–[52], [108]. As Gleeson CJ put it, so far as federal jurisdiction was concerned, when the ‘appeal’ was lodged, it was a ‘new matter’: at [10]. The Commonwealth law could not have been enacted under s 73, which constituted an ‘exhaustive statement’ of the High Court’s appellate jurisdiction: at [3], [109]. The law to be applied was that of Nauru, which the federal Act adopted by reference. There was no constitutional impediment to this adoption by reference: at [8], [64], [113]. See also Dale (2007) 56 ICLQ 641.

In Clodumar v Nauru Lands Committee (2012) 245 CLR 561; 288 ALR 208; [2012] HCA 22 it was held that since an ‘appeal’ from Nauru was an exercise of original jurisdiction, in such cases the High Court was not subject to the restriction that applies to its appellate jurisdiction (which limits the court to hearing an appeal in the strict sense): at [28]. The High Court could thus receive fresh evidence in an ‘appeal’ from Nauru: at [34].

Accrued jurisdiction 592 The High Court has developed a doctrine known variously as accrued or pendent jurisdiction. The jurisdiction of the Federal Court is defined by legislation enacted under s 77(i) of the Constitution. This jurisdiction extends, inter alia, to various matters arising under s 76(ii). Under the doctrine of accrued jurisdiction, the Federal Court is recognised as having a jurisdiction to determine non-federal (that is, State or common law) issues which are associated with the federal claim or which arise out of common transactions and facts. In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465 an action under the Trade Practices Act 1974 (Cth) was joined with a claim for passing off. It was held that the claim for ‘passing off’ could be dealt with by the Federal Court. Section s 32(1) of the Federal Court of Australia Act 1976 (Cth) provides: ‘To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters … in which the jurisdiction of the Court is invoked’. The majority held that s 32(1) was to be read to confer jurisdiction [page 345] in respect of matters associated with those enumerated in ss 75 and 76 of the Constitution: at 495, 516. It did not give any wider jurisdiction to the Federal Court. In Fencott v Muller (1983) 152 CLR 570; 46 ALR 41 a 4–3 majority held

that the word ‘matter’ in ss 76 and 77 referred to justiciable controversies, and encompassed all claims made within the scope of the controversy, including causes of action arising under non-federal law. A good test was whether the claim arose out of common transactions and facts (not necessarily identical facts). The federal claim must, however, be substantial, although in the end it was a matter of ‘impression’ and ‘practical judgment’ whether the two claims were part of the one controversy: at 610. The reasoning in these cases was followed in Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; 49 ALR 193. By a 4–3 majority the court held that s 86 of the Trade Practices Act 1974 (Cth) conferred jurisdiction upon the Federal Court to determine the non-federal aspects of a single justiciable controversy of which the issues raised under the Act formed an integral part: at 290. However, it was also pointed out that while the federal claim was made exclusive to the Federal Court by s 86, the subject matter of the accrued jurisdiction was concurrent with the Supreme Court. This accrued jurisdiction exercisable by the Federal Court was discretionary, not mandatory: at 294–5. With the invalidation of major parts of the cross-vesting scheme, the issue of accrued jurisdiction is of importance once again. In Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 Gummow and Hayne JJ applied the approach taken in the Stack decision: at [135]. The issue was whether there was a ‘single justiciable controversy’: at [136]. There is a single matter if the claims arise from a ‘common substratum of facts’: at [140]. There is also a single matter if the claims are so closely ‘related that the determination of one [claim] is essential to the determination of the other’: at [140]. They held that the Federal Court had accrued jurisdiction. The three proceedings at issue arose from a single set of events: at [147]. There was a single claim for damages against each of the three parties sued: at [147]. There was thus a ‘common substratum of facts’ in each of the proceedings: at [147]. Gleeson CJ and Gaudron J agreed with Gummow and Hayne JJ: at [25], [26]. For discussions of this doctrine, see Lane, 1997, pp 509–15; Zines in Opeskin and Wheeler, 2000, pp 290–5; Zines, 2002, pp 137–47; Stellios,

2010, pp 354–69; Leeming, 2012, pp 113–4; Young, 2013, pp 178–84; Clarke, Keyzer and Stellios, 2013, pp 1025–36. (iii) Of Admiralty and maritime jurisdiction

593 In Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404; 125 ALR 1 the High Court unanimously held that the word ‘maritime’ in s 76(iii) extends federal jurisdiction beyond the Admiralty jurisdiction of 1901: at 424. The grant of jurisdiction in s 76(iii) ‘extends to matters of the kind generally accepted by maritime nations as falling within a special jurisdiction, sometimes called Admiralty and sometimes called maritime jurisdiction, concerned with the resolution of controversies relating to marine commerce and navigation’: at 424. The lists of proprietary maritime claims and general maritime claims in s 4 of the Admiralty Act 1988 (Cth) do not exhaust the scope of the admiralty and maritime jurisdiction in [page 346] s 76(iii) the Constitution. See Elbe Shipping SA v Ship ‘Global Peace’ (2006) 154 FCR 439; 232 ALR 694; [2006] FCA 954 at [52], [57]. (iv) Relating to the same subject matter claimed under the laws of different States

594 There is great uncertainty as to the meaning of this paragraph. In Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362 Deane J referred to this subsection but did not elucidate its meaning: at 122. It is clear that in disputes between States, the High Court has jurisdiction under s 75(iv). Consequently, it might well be that the section is intended to cover a jurisdiction where private parties are involved in a dispute in which the subject matter may fall under two different systems of State law. An example would be where a deceased person died in one State, their property was located in another State and it must be determined which State has the right to impose estate duties.

By contrast it could be said that State and federal courts are entitled to apply such rules (being rules of common law) in any suit in which they have jurisdiction. A number of such cases have been dealt with by the High Court on appeal from State courts. Where the parties are residents of different States original jurisdiction is conferred by s 75(iv). It would seem that more practical political reasons lay behind the inclusion of s 76(iv) than solicitude for the rules of private international law. An analysis of the Convention Debates seems to indicate that the thought uppermost in the minds of the framers was the possibility of a conflict between Victoria and New South Wales over the waters of the River Murray. On this view the subject matter referred to in s 76(i) could be water or land which might be the subject of a boundary dispute between States. But it is difficult to imagine a case where a dispute would arise over such a matter which did not involve States or residents of different States. Note Katz (1991) 2 Public LR 228 at 240–1. Therefore, the operative effect of s 76(iv) is negligible in the light of the existing jurisdiction of the High Court under s 75. The Commonwealth Parliament has taken no steps to legislate pursuant to s 76(iv).

POWER TO DEFINE JURISDICTION 595 Section 77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws — (i) Defining the jurisdiction of any federal court other than the High Court: (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.

See Quick and Garran, 1901, pp 801–4 (Revised ed, 2015, pp 970–3); Attorney-General’s Department, 1980, pp 272–80; Constitutional Commission, 1988, Vol 1, pp 389–90; Opeskin (1995) 46 South Carolina LR 765; Lane, 1997, pp 613–35; Hill (1999) 27 FL Rev 547; ALRC, 2000, pp 89–101; Lovric (2000) 19 Aust Bar Rev 237; Zines, 2002, pp 129–35, 194–6, 201–9, 217–24; Hill (2006) 13 Aust J Admin L 106; Kennett (2009) 20 Public LR 152; Stellios, 2010, pp 377–87, 394–408; Ratnapala and Crowe, 2012, pp 183–7; Clarke, Keyzer and Stellios, 2013, pp 1039–44, 1059–61.

[page 347]

With respect to any of the matters mentioned in the last two sections the Parliament may make laws — (i) Defining the jurisdiction of any federal court other than the High Court

596 The effect of this paragraph is to empower the Commonwealth Parliament to confer jurisdiction upon federal courts (excluding the High Court) in respect of matters listed in ss 75 and 76. The power extends to the conferral of both original and appellate jurisdiction on such courts. The word ‘jurisdiction’ means power to adjudicate. It implies that a federal court would have the right to inquire into and grant relief in respect of any matter that is contained in the previous two sections. The qualifications to be noted are that it is not possible under this section for the federal Parliament to confer upon an inferior federal court an appellate jurisdiction from decisions of State courts exercising their ordinary State jurisdiction. There are dicta to the effect that it is not permissible for the federal Parliament to create any appellate tribunal over a State Supreme Court. See, for example, R v Spicer; Ex parte Truth and Sportsman Ltd (1957) 98 CLR 48 at 61. However, the legislative practice of the Parliament has been to the contrary, at least where the appeal is from a single judge of the Supreme Court, as distinct from a Full Court or Court of Appeal. 597 In Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 the Conciliation and Arbitration Act conferred appellate jurisdiction upon a federal court in relation to proceedings arising under or involving the interpretation of the Act, or arising under or involving the interpretation of an award made by the Arbitration Court: at 537. The court considered that ‘proceedings’ were not necessarily synonymous with ‘matters’: at 540. It was the appeal and not the original proceeding which must contain a matter arising under the federal law: at 541. One reason for this was that: ‘In a “proceeding under the Act” in the primary court the whole matter so far as it rests on the Act may be confessed and reliance may be placed wholly on matter in avoidance which has nothing to do with the Act or an order or

award and to that alone the appeal may be addressed’: at 541. Such a matter would not be within federal jurisdiction. Moreover, it was only part of the particular section under discussion in this case which could be said to encompass matters within federal jurisdiction, that is, matters arising under the Arbitration Act. The other types of proceedings were not covered by s 76(ii) (although it was true that some matters arising under an award might sometimes be considered to arise under the Act). The High Court held that this was an invalid attempt to define the jurisdiction of the federal court under s 77(i): at 540. 598 In Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; [1999] HCA 14 the High Court held that in defining the jurisdiction of a federal court other than the High Court with respect to a matter the Commonwealth Parliament need not give the court authority to decide every legal issue between the parties and need not give the court every remedy which might be available to resolve the issue: at [26]–[28], [227], [280]. See Crock (2000) 24 MULR 190. (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

[page 348] 599 In so far as s 75 does not confer an exclusive original jurisdiction upon the High Court, it was necessary to give power to the Commonwealth Parliament to define those matters within the jurisdiction of the High Court and other federal courts which were exclusive to those bodies and therefore withdrawn from the jurisdiction of State courts. Enacted under the power conferred by s 77(ii), the Judiciary Act 1903 (Cth) defines the matters which are exclusive to the High Court vis-a-vis the courts of the States and matters which, while still within the jurisdiction of State courts, are nevertheless in the federal jurisdiction of those courts. The two major sections are ss 38 and 39 of the Act. Section 38 of the Judiciary Act lists the following matters as within the

exclusive jurisdiction of the High Court: (a) matters arising directly under any treaty; (b) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State; (c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State; (d) suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth; (e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. 600 The effect of s 38 is reduced by s 44 of the Judiciary Act. Section 44(2) provides that the High Court may remit any pending matter under s 38(a), (b), (c) or (d) of the Judiciary Act to the Federal Court or a State or Territory court. A matter under s 38(e) cannot be remitted. Under s 39B(1) of the Judiciary Act the Federal Court is invested with original jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The Federal Court’s original jurisdiction also includes any matter in which the Commonwealth is seeking an injunction or declaration, any matter ‘arising under the Constitution, or involving its interpretation’ and any matter ‘arising under any laws made by the Parliament’, other than criminal matters: s 39B(1A). A judge of the Family Court of Australia is not an ‘officer of the Commonwealth’ for this purpose: s 39B(2). To summarise, what one might call the more national jurisdictional matters covered by s 75 are vested in the High Court in its exclusive original jurisdiction (but subject to remittal with some exceptions). While matters arising directly under the treaty are within the federal jurisdiction, matters that only indirectly arise under treaty are left to concurrent jurisdiction. Matters affecting consuls or other representatives of foreign nations remain within concurrent jurisdiction.

Commonwealth–State or State–State disputes are (vis-a-vis State courts) within the exclusive jurisdiction of the High Court, while suits in which the Commonwealth and a private individual are parties are within the concurrent jurisdiction of federal and State courts. Finally, jurisdiction in respect of the writs of mandamus or prohibition against an officer of the Commonwealth is (vis-a-vis State courts) exclusively vested in the High Court while injunctions remain within concurrent jurisdiction. Most matters within ‘exclusive’ jurisdiction may be remitted to other specified courts. 601 Section 40(1) of the Judiciary Act 1903 (Cth) provides that any cause arising under the Constitution or involving its interpretation, pending in a federal, State or Territory court, may be removed into the High Court by order of the High Court. In Bienstein v Bienstein [page 349] (2003) 195 ALR 225; [2003] HCA 7 McHugh, Kirby and Callinan JJ emphasised that this power was to be exercised only in urgent cases. Removal denies the High Court the benefit of a reasoned decision by the lower court and bypasses the requirements for leave or special leave to appeal. The removal power is not ‘a general supervisory jurisdiction over lower courts’: at [45]. The court is reluctant to interrupt the progress of a pending criminal trial with an order for removal. See Alqudsi v Commonwealth (2015) 327 ALR 1; 90 ALJR 192; [2015] HCA 49 at [22]. Matters which are covered by s 76(i) of the Constitution have by virtue of s 30 of the Judiciary Act been vested in the High Court. Such matters still remain within the concurrent jurisdiction of the State courts. However, provision is made by s 40 for the cause to be removed to the High Court so that a decision by the highest court in the country can be given on any constitutional matter without it having to go through the curial structure of the State system. Section 40 was upheld by the High Court as an exercise of jurisdiction under s 77(ii) of the Constitution. See Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 57–8, 72–3, 125, 128. For a discussion of removal of causes into the High Court, see ALRC, 2001, pp 291–8; Blackshield, Coper and Williams, 2001, pp 593–4; Zines, 2002, pp 10–13.

602 Section 39 of the Judiciary Act 1903 (Cth) is a complex provision involving an exercise of power by the Commonwealth Parliament under both s 77(ii) and (iii). The first subsection of s 39 provides that the ‘jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any court of a State by virtue of’ s 38, is deemed to be exclusive ‘except as provided in this section’: s 39(1). The second subsection of s 39 provides that ‘[t]he several courts of the States shall … be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction’ may be conferred upon the High Court, other than the exclusive jurisdiction under s 38 of the Act. This investment of federal jurisdiction is subject to two conditions. The first condition is that every decision of a State court shall not be subject to appeal to the Privy Council. The second condition is that the ‘High Court may grant special leave to appeal from any decision’ of a State court notwithstanding that State law ‘may prohibit any appeal’: s 39(2). The effect of these conditions is as follows. First, appeals from State courts exercising federal jurisdiction may not be taken to the Privy Council but must go directly to the High Court, and they cannot go beyond the High Court. Second, the High Court may grant special leave even where State law prohibits such an appeal, thus allowing an appeal to be brought straight to the High Court, bypassing other courts in the State structure. 603 A portion of s 39 of the Judiciary Act was challenged in Lorenzo v Carey (1921) 29 CLR 243 on the ground that it was not competent for the Commonwealth Parliament under s 77(ii) to attach conditions to a grant of federal jurisdiction. This argument was rejected by the High Court on the ground that a conferral of jurisdiction could be absolute or subject to conditions. Even without a grant of federal jurisdiction by investment, before the enactment of the Judiciary Act (in 1903) State courts had jurisdiction under their own Constitutions and laws in respect of a number of matters listed in ss 75 and 76 of the Constitution. In other words, they had a pre-existing State jurisdiction. Section 39 of the Judiciary Act was intended to divest them of this State jurisdiction in a number of matters and to replace this jurisdiction with a federal jurisdiction subject to the conditions already mentioned: at 251.

Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ stated: ‘[t]he phrase “Federal jurisdiction” as used in secs. 71, 73 and 77 of the Constitution means jurisdiction derived from the Federal Commonwealth. [page 350] It does not denote a power to adjudicate in certain matters, though it may connote such a power’: at 252. It denoted ‘the power to act as the judicial agent of the Commonwealth, which must act through agents if it acts at all’: at 252. Consequently, in respect of the matters within pre-existing State jurisdiction and in respect of additional matters covered by ss 75 and 76, the State courts had become judicial ‘agents’ of the Commonwealth. 604 However, it is to be noted that s 39, after stating that the jurisdiction of the High Court shall be exclusive of that of the State courts subject to the conditions outlined, purports to confer jurisdiction upon those courts in all matters in which the High Court has original jurisdiction under ss 75 or 76 by virtue of investing legislation or in which the High Court may have a jurisdiction conferred upon it by a future legislative enactment of the federal Parliament (so-called potential jurisdiction). There is a certain lack of conformity between the divesting and investing paragraphs of s 39. The High Court has original jurisdiction under all five paragraphs of s 75 by the force of the Constitution. The Commonwealth Parliament has conferred federal jurisdiction upon the High Court in matters arising under the Constitution or involving its interpretation. See Judiciary Act 1903 (Cth) s 30. However, in respect of the great bulk of matters covered by s 76(ii), there has been no conferral of jurisdiction upon the High Court. That is, mere interpretation of Commonwealth statutes remains a matter for the State courts. Moreover, no conferral upon the High Court exists in respect of matters covered by s 76(iii) and (iv) (‘Admiralty and maritime jurisdiction’ and matters ‘relating to the same subject-matter claimed under the laws of different States’). 605 The effect of s 39 appears to be that with respect to all the matters of s 75 and those matters in s 76 that were already within the original jurisdiction

of the High Court by federal legislative enactment, the State courts were divested of their State jurisdiction and invested with federal jurisdiction alone. With respect to matters falling within s 76(ii) which had not been vested in the High Court and the matters covered in s 76(iii) and (iv), the State courts were also invested with federal jurisdiction. But it remained uncertain whether they also retained their pre-existing State jurisdiction. In Ffrost v Stevenson (1937) 58 CLR 528 at 573 Dixon J stated: ‘It has always appeared to me that, once the conclusion was reached that Federal jurisdiction was validly conferred, then under sec 109 it was impossible to hold valid a State law conferring jurisdiction to do the same thing, whether subject to no appeal or subject to appeal in a different manner or to a different tribunal or tribunals, or otherwise producing different consequences’. On this view, State jurisdiction is rendered inoperative by a paramount exercise of authority by the Commonwealth and, therefore, federal jurisdiction alone exists. This view is now regarded as the correct one. See Felton v Mulligan (1971) 124 CLR 367 at 373, 393, 411–2; MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28 at [23]–[24], [180]. 606 The federal jurisdiction conferred upon State courts by s 39 is given subject to the limits as to subject matter and locality of those courts, unless these are changed by specific Commonwealth legislation: s 39(2). Section 39 is an ambulatory provision, that is to say, it applies to the jurisdiction of the State courts as it exists from time to time and is not restricted to the jurisdiction existing when Judiciary Act was enacted (1903). Consequently, any amendments to State jurisdiction by State legislation passed subsequently will extend the corresponding limits of federal jurisdiction. Under s 39A(1) of the Judiciary Act 1903 (Cth), the investment of State courts with federal jurisdiction by any Act (or any provision of the Judicary Act other than s 39) is made according to the conditions laid down in s 39 (subject to any contrary provision in that Act). [page 351]

(iii) Investing any court of a State with federal jurisdiction

607 Federal jurisdiction granted by this section is either original or appellate jurisdiction. But such investment must be with respect to matters listed in ss 75 and 76. Consequently any conferral of jurisdiction in respect of nonjudicial power is beyond the jurisdiction of the federal Parliament. For example, the High Court held that where a Commonwealth law conferred upon State magistrates an administrative function that conferral was not an investment of federal jurisdiction under s 77(iii). See O’Donoghue v Ireland (2008) 234 CLR 599; 244 ALR 404; [2008] HCA 14 at [40]. However, where the power is incidental to the judicial power (such as the power of a Magistrates Court to commit for trial after a preliminary hearing) the power may be conferred upon a State court. See R v Murphy (1985) 158 CLR 596 at 614; 61 ALR 139. Section 77(iii) constitutes an exclusive source for investment of State courts with federal jurisdiction. There is some difference of opinion on the question whether State courts exercising federal jurisdiction remain State courts or for this purpose are treated as part of the federal judicature. See Zines, 2002, pp 198–200. The better view is that they remain State courts. Federal jurisdiction may only be vested in a ‘court of a State’. In KGeneration Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471; [2009] HCA 4 the High Court held that the South Australian Liquor Licensing Court was a ‘court of a State’ under s 77(iii): at [85], [114], [218]. Gummow, Hayne, Heydon, Crennan and Kiefel JJ emphasised several factors in reaching this conclusion. The court was a court of record. It consisted of a District Court judge: at [115]. The judge was not subject to arbitrary removal: at [116]. While the court did not itself have power to punish contempt, that did not prevent it being a ‘court of a state’: at [130]–[131]. French CJ agreed with these Justices: at [86]. Kirby J suggested that s 77(iii) would usually apply to any body that was described as a court under State law: at [213], [219]. The fact that the court was a court of record, the appointment of District Court judges and the availability of an appeal to the Supreme Court were other indications that the Licensing Court was a ‘court of a State’: at [221]. There is no unanimity as to whether State administrative tribunals are State courts under s 77(iii). It was held that the New South Wales Administrative Decisions Tribunal was not a ‘court of a State’ since it was not composed of judges. See Trust Co of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77;

234 ALR 398; [2006] NSWCA 185 at [59], [65], [79], [84]. Similar conclusions were reached with respect to the Victorian Civil and Administrative Tribunal and the New South Wales Consumer Trade and Tenancy Tribunal. See Qantas Airways Ltd v Lustig (2015) 228 FCR 148; 323 ALR 374; [2015] FCA 253 at [68]–[73]; China Shipping (Australia) Agency Co Pty Ltd v DV Kelly Pty Ltd (2010) 79 NSWLR 650; [2010] NSWSC 1556 at [12]–[13]. There are conflicting decisions regarding the status of the Tasmanian AntiDiscrimination Tribunal. In Commonwealth v Wood (2006) 148 FCR 276; (2006) 227 ALR 631; [2006] FCA 60 at [82] it was held that the Tribunal was a court of a State. In Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85; 248 ALR 494; [2008] FCAFC 104 at [234], [240] one member of the Full Court held that the Tribunal was not a court of a State. The Queensland Court of Appeal held that the Queensland Civil and Administrative Tribunal was a court of a State as it was a court of record and possessed sufficient independence and impartiality. See Owen v Menzies [2013] 2 Qd R 327; 293 ALR 571; [2012] QCA 170 at [19]–[20], [49]–[52], [100]– [101]; SLR [2013] HCATrans 18. For discussions of the concept [page 352] a ‘court of a State’, see Campbell (1998) 17 U Tas LR 19; Kerr (2007) 31 MULR 622; Stellios, 2010, pp 447–9. 608 When conferring federal jurisdiction upon State courts, the Commonwealth Parliament must take the State courts ‘as it finds them’ and may not alter their ‘constitution or organisation’. See Russell v Russell (1976) 134 CLR 495 at 516–17, 530, 535, 554; 9 ALR 103; Brown v R (1986) 160 CLR 171 at 198; 64 ALR 161; Harris v Caladine (1991) 172 CLR 84 at 138, 143, 158; 104 ALR 89; Leeth v Commonwealth (1992) 174 CLR 455 at 469; 107 ALR 672; South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 at [67]–[68], [88]. Hence in conferring federal jurisdiction upon a State court the federal Parliament cannot alter the structure of that court. See Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; 229 ALR 223; [2006] HCA 44 at [61].

This is illustrated by Le Mesurier v Connor (1929) 42 CLR 481. A Commonwealth law provided that registrars in bankruptcy were officers of the State courts that were invested with bankruptcy jurisdiction by the Act: at 494. This provision altered the existing structure of the State court. In holding the section invalid the majority of the court (Knox CJ, Rich and Dixon JJ) said (at 496): [T]he power is to confer additional judicial authority upon a Court fully established by or under another legislature. Such a power is exercised and its purpose is achieved when the Parliament has chosen an existing Court and has bestowed upon it part of the judicial power belonging to the Commonwealth. To affect or alter the Constitution of the Court itself or of the organization through which its jurisdiction and powers are exercised is to go outside the limits of the power conferred and to seek to achieve a further object, namely, the regulation or establishment of the instrument or organ of Government in which judicial power is invested, an object for which the Constitution provides another means, the creation of Federal Courts.

It is therefore clear that s 77(iii) does not enable the Commonwealth Parliament to make a Commonwealth officer a functionary of a State court and authorise them to act on its behalf and administer part of its jurisdiction. The incidental power (s 51(xxxix)) could not be regarded as a basis for authorising this conferral. After the decision in Le Mesurier v Connor, the Act was amended. Under the amendments the registrar, while being at the court’s disposal, was not part of the State court structure. In Bond v George A Bond Ltd & Co (1930) 44 CLR 11 it was held that these amendments had cured the previous defects. As Rich and Dixon JJ put it (at 20): Instead of forming part of its official system and exercising the authority of an office in the Court, the Registrar is now to be a stranger to the Court and its organization. But the Registrar is, nevertheless, to be amenable to the Court’s orders and directions, if it choose to give him any.

609 Section 39(2) of the Judiciary Act 1903 (Cth) refers to the exercise of federal jurisdiction by a State court within the limits imposed as to locality and subject matter. This means that, unless the Commonwealth Parliament has otherwise provided, the locality and subject matter restrictions will continue to exist. However, this does not prevent the Parliament from modifying such incidents of curial structure. It is well recognised that the federal Parliament has power to determine the nature and limits of the jurisdiction which it confers on State courts, and therefore federal jurisdiction may differ from that

exercised by the State court exercising its own State jurisdiction. This principle is illustrated by Adams v Charles Watson Pty Ltd (1938) 60 CLR 545. A federal taxation Act conferred jurisdiction to institute proceedings of a criminal nature at any time: at 552. This conferral was upheld even though under State law prosecutions had to be instituted within a particular time limit: at 553–5, 558–61. There is also no objection to the federal Parliament modifying the area over which a particular court has jurisdiction. [page 353] For example, a Melbourne Magistrates’ Court might be given jurisdiction over an offence occurring in a rural area of Victoria. Likewise, there would seem to be no reason why the Parliament should not modify the monetary limits of particular State courts. 610 The judicial power of the Commonwealth can only be exercised by courts, whether federal courts or State courts invested with federal jurisdiction. Chapter III of the Constitution creates an ‘integrated national judicial system’. See K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471; [2009] HCA 4 at [87], [210]; South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 at [4], [69], [201], [425], [438]; Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 at [44], [105]; Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 at [93]. One consequence of that system is that the Constitution restricts the functions that State Parliaments may confer upon State courts that are vested with federal jurisdiction. These restrictions also limit the functions that Territory legislatures may confer upon Territory courts that are invested with federal jurisdiction. See North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146; 206 ALR 315; [2004] HCA 31 at [28]–[29]; AttorneyGeneral (Northern Territory) v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 at [42]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41 at [41], [115]– [117], [182].

These restrictions were first articulated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577. In that case a prisoner had been convicted of the manslaughter of his wife. While in prison he had written threatening letters to her relatives: at 68. The State Parliament enacted legislation which provided that the State Supreme Court was empowered to make orders for the detention of this named prisoner: at 52. Toohey J held that in exercising federal jurisdiction a State court may not act in a manner contrary to Chapter III of the Constitution: at 94. Since the appellant challenged the legislation under the Commonwealth Constitution at first instance and on appeal, the State Supreme Court had exercised the judicial power of the Commonwealth: at 95. The function conferred upon the Supreme Court by the impugned legislation was a non-judicial function of such a nature that public confidence in the integrity of the Supreme Court would be diminished: at 98. He added a caveat: had federal jurisdiction not been exercised by the Supreme Court in this case, ‘the judicial power of the Commonwealth might not be involved’: at 99. Gaudron J indicated that the Constitution requires that each State maintain a court upon which federal jurisdiction may be vested: at 103. Chapter III requires that State Parliaments cannot confer upon State courts functions which are ‘repugnant to or incompatible with’ the exercise of federal judicial power: at 103. Non-judicial powers that are not ‘repugnant to or incompatible with’ the exercise of federal judicial power may be conferred upon State courts: at 106. The proceedings undertaken pursuant to the Act did not have the character of legal proceedings: at 106. The power conferred by the Act was not a judicial function: at 107. This power compromised the integrity of the State Supreme Court as a court exercising federal jurisdiction: at 107. McHugh J considered that the Constitution requires that each State maintain a system of courts with a Supreme Court at its apex: at 110–11. It is beyond the power of any State Parliament to enact laws which undermine the exercise of federal judicial power by State courts: at 116. Judges of federal courts must be (and be seen to be) independent of the legislature and the executive: at 116. A similar requirement applies to State courts invested with federal jurisdiction: at 116. The impugned Act was incompatible with this requirement: at 121–2, 124.

[page 354] Gummow J also considered that the Constitution (especially s 73) requires that each State maintain a Supreme Court: at 139. The State law under challenge was ‘repugnant to the judicial process in a fundamental degree’: at 132. The Act compromised the appearance of impartiality of the State Supreme Court and was invalid: at 134. For discussions of this case, see Griffith, 1996; Handsley (1997) 25 FL Rev 171; Hardcastle (1998) 3, 1 Newcastle LR 13; Johnson and Hardcastle (1998) 20 Syd LR 216. 610A The High Court has only infrequently applied the Kable principle to invalidate a State law. However, it need no longer be feared that the Kable principle would be ‘a constitutional guard-dog that would bark but once’. See Baker v R (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 at [54]. The court has held that the principle was infringed by several State laws. See International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49; South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39; Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24. In Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 McHugh J observed that it was likely that the Kable principle would rarely need to be applied. The statute in Kable ‘was almost unique in the history of Australia’: at [43]. However, he suggested that the principle may find more frequent application in relation to the appointment of State judges or the conferrral of non-judicial functions upon State judges: at [43]. Gummow J stated that the infrequency of the application of a constitutional principle does not mean that it is a ‘dead letter’: at [104]. See also South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 at [264]. 610B The power to detain prisoners after the end of their sentence arose again in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46. In that case a State law provided that if the Supreme Court was satisfied that a prisoner serving a sentence for a serious sexual offence was a serious danger to the community, the court could order that the prisoner be detained indefinitely. ‘Serious danger’ was defined as an unacceptable risk that

the prisoner would commit a serious sexual offence if released: at [6]. The court held that this Act did not infringe the Kable principle. The Act under challenge had important differences from the legislation invalidated in Kable. For one, it was not directed at a specific individual: at [34], [44]. Several of the judges described the statute in Kable as ‘ad hominem’ (‘against the man’): at [16], [23], [33], [233]. The majority judges pointed out that the challenged statute contained numerous safeguards that were absent from the Kable law. The court had a broad discretion regarding the orders that could be made: at [19], [34]. The Attorney-General bore the onus of proving that the prisoner should be detained: at [19]. Ordinary evidential rules would apply: at [19], [34]. The ‘unacceptable risk’ must be established ‘to a high degree of probability’: at [6], [34], [44], [223]. The prisoner could appeal against a detention order: at [19]. Hearings regarding the making of an order were to be held in public: at [19]. Detention orders would be regularly reviewed by the court: at [112]–[113]. In exercising this jurisdiction the Supreme Court did not act under the instructions of the executive or legislature: at [115]–[116]. The statute under challenge did not jeopardise the ‘institutional integrity’ of the Supreme Court: at [35]. McHugh J suggested that the State Parliament had conferred this jurisdiction upon the Supreme Court because it was the most appropriate institution to exercise these powers: at [44]. Gummow J pointed out that the system of detention operated with respect to prisoners who were serving sentences for committing offences of the type for which the detention scheme sought to prevent recidivism. There was thus ‘a connection between the operation of the Act [page 355] and anterior conviction by the usual judicial processes’: at [108]. The use of some other criterion might have jeopardised the validity of the Act: at [108], [114]. In Pollentine v Bleijie (2014) 253 CLR 629; 311 ALR 332; [2014] HCA 30 a

State law provided that if an offender was convicted of sexual offences against children, the judge had the power to direct that medical practitioners report upon whether the offender was ‘incapable of exercising proper control over his sexual instincts’: at [4]. If the medical practitioners reported that the offender was incapable of exercising such control, the judge could declare that the offender must be detained in an institution: at [5]. If such a declaration was made, the offender would not be released until the Governor in Council was ‘satisfied on the report of two … medical practitioners’ that it was ‘expedient to release’ the offender: at [7]. This procedure was challenged as a delegation of the sentencing function to the executive: at [43]. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ held that the procedure was not repugnant to the institutional integrity of the courts. The court was not bound to order the detention of the offender: at [44]. The duration of the detention was ‘not at the unconfined discretion of the Executive’ but was based upon medical opinion. Continuation of the detention was based upon protection of the community not punishment. The procedure had thus not delegated the function of determining the punishment of an offender: at [45]. It was also argued that different criteria applied to ordering detention and deciding upon release, so that the continued detention of an offender was ‘cloaked in the neutral colours of judicial action’: at [46]. However, the decision whether to release an offender was made on the advice of the Minister. There was no appearance that the decision about release was made by a court: at [47]. Finally, the institutional integrity of State courts was not undermined where the decision about the release of a detained offender was made by the executive: at [51]. In a separate judgment Gageler J also upheld the procedure. The purpose of the detention was not punitive: at [64]. Its purpose was ‘wholly protective’: at [73]. The different criteria for detention and release were not indicative of an ‘unconstrained executive power of detention’: at [75]. For a discussion of this case, see Solomons (2015) 37 Syd LR 607. The validity of detention following arrest was considered in North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41. In that case a Territory law provided that a police officer who had arrested a person for an infringement notice offence had power to

detain that person for up to four hours or until the detainee was no longer intoxicated. The detainee could be released without conditions, released with an infringement notice, released on bail or brought before a court for an offence: at [16]. Most infringement notice offences were minor: at [18]. It was argued that this provision undermined the institutional integrity of Territory courts: at [5]. It was also argued that this provision had effectively withdrawn judicial supervision of the power of detention: at [10], [41]. French CJ, Kiefel and Bell JJ held that the provision did not deprive the courts of the power to supervise the exercise of the power of detention. The Kable principle was not infringed: at [44]. Keane J held that the provision did not violate the Kable principle since it did not impair the institutional integrity of Territory courts: at [148]. The provision did not involve the courts in the work of the executive. It did not require the courts to depart from judicial processes. The courts were not deprived of any judicial function, nor were they subject to any direction in the exercise of judicial functions: at [186]. Nettle and Gordon JJ held that the provision should be interpreted so that it did not authorise detention for ‘longer than is reasonably necessary to bring the person before a justice or court’: at [237]. The provision did not interfere with the judicial power of a [page 356] Territory court since it thus did not provide for detention longer than that which applied under the general power to arrest without warrant: at [239]. In dissent, Gageler J considered that a law that made a court part of a scheme of ‘punitive executive detention’ conferred a function on that court that was ‘repugnant to the judicial process in a fundamental degree’: at [128]. The challenged provision was punitive in nature: at [103], [131]. If a person who was detained under the provision was later prosecuted, they would have already been punished by the prior executive detention: at [133]. The courts were thus mere ‘support players’ in this system of punitive executive detention: at [134].

610C Other statutes have been challenged as impairments of judicial independence or impartiality. In North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146; 206 ALR 315; [2004] HCA 31 a Northern Territory statute provided that magistrates would be paid the remuneration as determined ‘from time to time’ by the Territory Administrator. A Chief Magistrate was appointed until the age of 65. The Administrator determined the Chief Magistrate’s remuneration for the first two years of office, and later determined the remuneration payable beyond that time: at [19]–[21]. Six Justices delivered a joint judgment. A State or Territory court that may exercise federal judicial power must ‘be and appear to be an independent and impartial tribunal’: at [29]. The court interpreted the statute as requiring that a fresh determination be made upon the expiry of a determination: at [56]. To interpret the statute otherwise would leave the Chief Magistrate at the mercy of the executive in an important aspect of judicial independence: at [56]. If necessary, the Administrator could be compelled by judicial process to make a determination. The power to make determinations did not damage the independence and impartiality of the magistracy. If anything, the ability to frequently revise judicial salaries upwards would enhance judicial independence and impartiality: at [65]. In Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; 229 ALR 223; [2006] HCA 44 the High Court held that the appointment of acting judges to a State Supreme Court did not necessarily infringe the Kable principle. Gleeson CJ held that Chapter III required that a State Supreme Court must always satisfy the description of a court by meeting ‘minimum standards of independence and impartiality’: at [41]. Those standards were not inevitably violated by the appointment of acting judges: at [42]. Callinan J agreed with Gleeson CJ: at [238]. Gummow, Hayne and Crennan JJ held that the independence and impartiality of State Supreme Courts did not require that they be composed only of permanent judges: at [65]. However, the institutional integrity of the Supreme Courts would be jeopardized by acting appointments ‘if a significant element of its membership stood to gain or lose from the way in which the duties of office were executed’: at [93]. They suggested that the Kable principle might be violated if the proportion of acting appointments became so high as to overwhelm the full time permanent character of the court: at

[97]. To challenge a system of acting appointments it was necessary to examine more than the number of acting judges appointed. Other significant matters would need to examined: ‘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’: at [101]. In this case no such evidence had been adduced. Based upon an extensive historical survey, Heydon J concluded that Chapter III envisaged the appointment of acting judges to State Supreme Courts: at [277]. A challenge to such appointments as violating the independence and impartiality of the Supreme Court needed to be based on more than numbers alone: at [277]. [page 357] The High Court upheld a provision that required the State Industrial Relations Commission to give effect to ‘government policy’ in making an award, since that policy had been enacted as law by regulation. In Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment (2012) 250 CLR 343; 293 ALR 450; [2012] HCA 58 State legislation provided that, when making an award or order, the Industrial Relations Commission was required to give effect to any policy that was declared by the regulations to be ‘government policy’ to which the Commission must give effect: at [1], [16]. The Commission also sat as the Industrial Court, constituted by the judicial members of the Commission: at [7], [50]. Hayne, Crennan, Kiefel and Bell JJ held that the declaration of ‘government policy’ by regulation was an exercise of legislative power. It did not constitute executive interference in the Commission’s non-judicial power to make an award: at [55]. The regulation giving effect to government policy was part of the law to be applied by the Commission in its arbitral role. The institutional integrity of the Industrial Court was unaffected where its members applied the law while carrying out their non-judicial functions: at [58]. French CJ held that the term ‘policy’ in the statute did not include a

direction regarding the outcome of a specific case: at [40]–[41]. A regulation declaring ‘government policy’ became part of the law to be applied by the Commission: at [43]. The word ‘policy’ did not change the legislative character of the regulation: at [44]. The Commission was not subject to executive direction when it applied ‘government policy’ declared by regulation: at [45]. Heydon J held that once ‘government policy’ was given legal force by regulation it was part of the law: at [69]. The challenged provision was ‘no more’ than a power to make regulations: at [70]. He also expressed doubts about the correctness of the Kable principle: at [63], [71]. The Kable principle is not infringed by retrospective legislative modification of the substantive rights applicable to pending litigation. In Duncan v Independent Commission Against Corruption (2015) 324 ALR 1; 89 ALJR 835; [2015] HCA 32 the applicant challenged an anti-corruption Commission’s findings against him. While those proceedings were under appeal, the High Court held in another case that the anti-corruption Commissions’s investigative powers did not extend to conduct of the kind that it had investigated in relation to the applicant: at [3]. The State Parliament then enacted retrospective legislation that validated the Commission’s investigation: at [4]. French CJ, Kiefel, Bell and Keane JJ held that the validation law did not infringe the Kable principle. A statute may modify rights at issue in pending litigation: at [26]. The validation law did not confer any power upon the court. The law did not purport to direct the court to regard as valid an act that had not been validated by the legislature: at [27]. For a discussion of this case, see Dziedzic (2007) 35 FL Rev 129. The Kable principle is not violated by statutory authorisation of the grant of suppression orders by the courts. In Hogan v Hinch (2011) 243 CLR 506; 275 ALR 408; [2011] HCA 4 a radio host identified released sex offenders in breach of suppression orders that had been issued under a State law: at [1], [56]–[57]. Under the Act a court could issue a suppression order prohibiting identification of released offenders who had been placed under supervision orders: at [6]. The court rejected a challenge to this provision. Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ held that the

provision did not invalidly impair the independent and impartial character of State courts: at [80]. It had also been argued that the provision violated an open court principle applicable to State courts: at [85]. However, the suppression order provision would have been valid if it had been enacted by the [page 358] federal Parliament, so it did not infringe the narrower Kable principle. The provision did not ‘deny an essential characteristic of a court exercising federal jurisdiction’: at [91]. French CJ held that the open court principle was part of the requirement that courts with federal jurisdiction must be independent and impartial tribunals: at [20], [46]. However, Parliament may authorise courts to prohibit publication of parts of their proceedings: at [27]. The challenged provison was not ‘repugnant to or incompatible with the judicial function’: at [46]. 610CA Several cases have concerned statutes that required the judiciary to protect the confidentiality of criminal intelligence. In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; 242 ALR 191; [2008] HCA 4 a State Corruption and Crime Commission law allowed those subject to a fortification removal notice to apply to the Supreme Court for a limited review of the notice: at [26]. The challenged provision stated that the Commissioner of Police could ‘identify any information provided to the court for the purposes of the review if its disclosure might prejudice the operations of the Commissioner’. Such information was not to be disclosed to any person: at [30]. The High Court rejected the argument that this provision impaired the institutional integrity and impartiaity of the Supreme Court. Gummow, Hayne, Heydon and Kiefel JJ held that on the proper interpretation of the provision the Supreme Court was not bound by the Commissioner’s decision in relation to confidentiality: at [31]. The Supreme Court was able to determine the claim of confidentiality on the basis of the evidence. A claim of confidentiality had to rest upon there being an actual

possibility of prejudice to police operations, not merely that the Commissioner held that opinion. If the legislation had provided that a claim of confidentiality rested upon the opinion of the Commissioner, that opinion would need to be based upon reasonable grounds: at [33]. The Supreme Court was thus not subject to executive constraint in its review of a fortification removal notice: at [34]. A statute that ‘direct[ed] the courts as to the manner and outcome of the exercise of their jurisdiction’ would impair the impartiality and independence of the courts: at [39]. Crennan J held that the Supreme Court had power to determine whether there was a possibility of prejudice to police operations, so there was no executive interference with the judicial process: at [169]–[170]. The challenged provision did not dictate the procedure for determining a claim of confidentiality. The provision also did not permit the Commissioner to ‘give directions to the court’: at [174]. Gleeson CJ agreed with Crennan J: at [1]. He also agreed with Gummow, Hayne, Heydon and Kiefel JJ that the challenged provision did not allow the Commissioner to ‘dictate anything’ to the court. It merely allowed the Commissioner to make a claim that certain information must be kept confidential: at [7]. For a discussion of this case, see Leith (2008) 36 FL Rev 251. In K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471; [2009] HCA 4 a statute provided that the Liquor Licensing Court must ‘take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties … and their representatives’: at [139]. The court unanimously upheld this provision. Gummow, Hayne, Heydon, Crennan and Kiefel JJ held that the provision empowered but did not compel the court to receive evidence or hear argument in the absence of the parties and their representatives: at [147]. The court was able to question the reliability of the criminal intelligence: at [148]. The confidentiality provision did not deprive the Licensing [page 359]

Court of its character as an independent and impartial tribunal: at [149]. Outside the realm of federal jurisdiction, the States may confer judicial powers upon non-judicial bodies and confer non-judicial powers upon courts. However, the States may not deprive a ‘court of a State’ of the constitutionally required minimum level of institutional independence and impartiality: at [153]. French CJ held that while the challenged provision infringed upon open justice and procedural fairness, it did not impair the institutional integrity of the court or its suitability to exercise federal jurisdiction: at [10]. Properly construed, the provision did not prevent judicial disclosure of criminal intelligence to the parties: at [67]. The provision authorised the court to exclude a party’s legal representative from a confidential part of the hearing, but did not require that course: at [73], [97]. The court was able to verify whether the Police Commissioner’s claim for confidentiality was justified on objective grounds: at [94]. The confidentiality provision did not make the court subject to executive direction: at [98]. The provision did not impair the institutional integrity of the court: at [99]. Kirby J held that the confidentiality provision was consistent with the ‘institutional independence and integrity of the courts’: at [159]. The court was able to assess whether the claim that material was criminal intelligence was justified. The prohibition of disclosure did not apply to the court itself. The court was required to ‘take steps’ to maintain the confidentiality of the information. The court could permit a party’s legal representative to have access to a redacted version of the evidence. The court had the power to exclude the confidential evidence if fairness to a party required exclusion: at [257]. The provision did not amount to an executive instruction to the court regarding a specific case: at [258]. For a discussion of this case, see Churches and Milne (2010) 18 Aust J Admin L 29. In Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 the police sought a declaration that a motorcycle club was a criminal organisation: at [8]. State law provided that a court hearing such an application must hold a closed session when criminal intelligence was to be considered. An informant who had provided criminal intelligence could not be called to give evidence at the hearing: at [13], [33], [91]. The court also had the power to declare that particular information was

criminal intelligence. Where an application was made for a declaration that information was criminal intelligence, notice of the application was not to be given to any person or organisation to whom the information related. The application had to be heard in a closed session: at [32]. Hayne, Crennan, Kiefel and Bell JJ held that the institutional integrity of the Supreme Court required that the court retain its ‘capacity to act fairly and impartially’: at [167]. In considering whether to make a declaration that information was criminal intelligence, the court was permitted to consider potential unfairness to the respondent organisation: at [162]. While a respondent was not permitted to know how the police intended to prove their case, the respondent was permitted to know the nature of the allegation against them: at [163]. The court thus retained the capacity to act fairly and impartiality: at [167]. The retention of that capacity indicated the validity of the challenged provisions: at [169]. French CJ held that a court hearing an application in the absence of a party had an inherent power to prevent an abuse of the procedure by calling relevant witnesses of its own accord: at [44]. The courts had an inherent power to hold closed hearings, which suggested that a statutory equivalent to that power would not necessarily impair the defining characteristics of the court: at [46]. The more procedural unfairness and secrecy that pervaded a judicial process, the more likely that the process impaired the defining characteristics of the court: at [64]. However, in [page 360] making a criminal intelligence declaration the court was not directed as to the result of the application. The court also possessed inherent powers to prevent abuses. This process was thus not an impermissible impairment of the defining characteristics of the Supreme Court: at [78]. The closure of a hearing of an application for a declaration that an organisation was a criminal organisation was an inroad into procedural fairness and the open court principle. However, once again the court was not directed

as to the outcome of the application. The court had the power to reduce the unfairness to those against whom an application was made: at [88]. This provision did not invalidly impair the defining characteristics of the court: at [89]. Where information was provided by a confidential informant, the court had the power to reject that information or accord it ‘little weight’. That provision did not impair the defining characteristics of the court: at [92]. Gageler J considered that under Chapter III of the Constitution procedural fairness was a mandatory feature of the State Supreme Courts: at [177], [188], [194]. ‘A procedure is unfair if it has the capacity to result in the court making an order that finally alters or determines a right 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’: at [177]. In his view the challenged provisions were saved from invalidity only because the court had the power to stay an application for manifest unfairness: at [178], [212]. 610D Several cases have related to legislation directed against criminal organisations. In South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 a State law empowered the Attorney-General to make a declaration in relation to an organisation if they were satisfied that members of the organisation associated for the purpose of serious criminal activity and that the organisation was a risk to public safety and order: at [12]. If a declaration was made, the Commissioner of Police could apply to the Magistrates Court for a control order against a member of the organisation. A control order prohibited association and communication between the member and other members of the organisation. An order could also impose restrictions upon communication and association between the member and specified non-members: at [18]. Breach of a control order was an offence: at [19]. The Magistrates Court was required to issue a control order if it was satisfied that the person was a member of the organisation: at [17]. The High Court held that the provision requiring the magistrate to issue a control order was invalid. French CJ held that the provision ‘requires the Magistrates Court to make a decision largely pre-ordained by an executive declaration for which no reasons need be given, the merits of which cannot be questioned in that Court and which is based on executive determinations of criminal conduct committed by

persons who may not be before the Court’: at [4]. The making of orders that have such broad effects upon personal freedom is normally the responsibility of the judicial power: at [76]. The challenged provision impaired the institutional integrity of the courts. The judiciary was drawn into a primarily executive process to give an appearance of neutrality to an executive decision. The ‘decisional independence’ of the court was undermined in relation to matters that affected personal freedom and criminal liability. The executive conscripted the court to impose restraints upon individuals chosen by the executive: at [82]. The provision deprived the court of its ‘appearance of independence and impartiality’: at [83]. Gummow J observed that the executive itself had already made the declaration upon which the court was required to act. The court need only be satisfied of the person’s membership of the organisation. There was no requirement that the person had committed a crime or was likely to commit a crime: at [139]. The Magistrates Court was conscripted to give effect [page 361] to the executive declaration: at [142]. The court was required to act at the instruction of the Attorney-General ‘to an impermissible degree’ and thus to act in a manner that was inconsistent with its institutional integrity and the exercise of federal judicial power: at [149]. Hayne J held that the control order created new obligations: at [218]. That is an essentially legislative function: at [220]. In issuing a control order the court did not declare an existing right or liability, which was the usual judicial function. The order created ‘new and particular’ restrictions upon association and communication. Those restrictions were particular to the person subject to the order and were not related to a general legislative prohibition of association between the members of the organisation. The court was required to make an order without considering the past or likely future acts of the member: at [222]. The challenged provision was incompatible with the institutional integrity

of the court. The court was ‘enlisted, by the Executive, to make it a crime, for particular persons upon whom the Executive fixes, to associate together when, but for the Court’s order, the act of association … would not be a crime’: at [226]. The executive required the court to create new restrictions that applied to individuals who were members of a class selected by the executive. This was to be done on the ground that the executive had decided that some members of the class associated for criminal purposes. The courts may not create new restrictions upon an individual’s conduct without considering the past and likely future actions of that individual: at [226]. Those subject to control orders were subject to restriction ‘not for what they have done or may do … but because the Executive has chosen them’: at [236]. Crennan and Bell JJ pointed out that the power to issue a control order was not subject to any judicial consideration of whether the member was a risk to public safety. The power was not subject to any judicial consideration of whether the member engaged in serious criminal activity or whether an order would assist in preventing the member from engaging in such activity: at [434]. The court had no discretion whether to make the order if the person was a member of the organisation: at [435]. The judicial process involved in making a control order was ‘so confined’ and so dominated by the executive’s declaration that it was an impermissible departure from the judicial process of an independent and impartial court. The court was required to give effect to the executive declaration without any independent consideration of the basis for making the order. The court was treated as ‘an instrument of the Executive’. The challenged provision was incompatible with the institutional integrity of the court and the exercise of federal judicial power: at [436]. Kiefel J contrasted the very limited role of the court with the very broad role of the Attorney-General in the control order process. The appearance of judicial involvement in the process was obviously regarded as important: at [445]. The only determination of fact regarding criminal activity was made by the Attorney-General. The court did not have power to determine whether the member was involved in criminal activity: at [450], [453]. The court’s only task was to determine membership: at [457].

The legislature and executive may not borrow the judiciary’s reputation for impartiality: at [479]. The challenged provision ‘involves the enlistment of the Court to give effect to legislative and executive policy’. The provision impaired the institutional integrity of the court by undermining its independence: at [481]. For a discussion of this case, see Southwood (2011) 22 Public LR 89. In Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 the State Commissioner of Police could apply to an eligible judge for a declaration that an [page 362] organisation was a declared organisation. The Attorney-General could declare a Supreme Court judge to be an eligible judge with that judge’s consent: at [9]. An eligible judge could make a declaration if satisfied that members of the organisation associated for the purpose of serious criminal activity and that the organisation was a risk to public safety and order: at [13]. Members of the organisation were able to make submissions at a hearing at which the making of a declaration would be considered: at [10]. The hearing was not required to observe the rules of evidence. The Act expressly stated that an eligible judge was not required to give reasons for their decision: at [96], [99]. The judge’s decision could not be appealed: at [15]. The declaration was a precondition for the making of control orders by the Supreme Court: at [14]. The High Court held that the declaration provisions were invalid. Gummow, Hayne, Crennan and Bell JJ outlined several principles that were decisive for the outcome of this case. Public confidence in the judiciary depended upon the courts ‘acting openly, impartially and in accordance with fair and proper procedures’: at [94]. Where a court operates in public and gives reasons for its decisions, there will be no appearance that it is subject to influence by the political branches of government. Functions may not be conferred upon judges as individuals if those functions would reduce public confidence in the judiciary: at [94].

The declaration provisions were invalid because of the exclusion of a duty to give reasons: at [104]. A declaration without reasons was ‘opaque’. These provisions sought 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’: at [109]. French CJ and Kiefel J observed that an eligible judge could make a declaration without applying the rules of evidence and without giving reasons. The Act thus utilised judges in a process that would be inconsistent with the judicial function if it were undertaken by a court: at [6]. A State may not confer upon its judges non-judicial functions that are incompatible with the functions of their courts. Where such a power is conferred upon a judge as an individual, the connection with the court may be sufficiently close to raise the question of whether the function impairs the ‘defining characteristics’ of the court: at [47]. The validity of a State law conferring a non-judicial function upon a judge does not depend upon whether the function is conferred upon the judge as a designated person: at [49]–[50]. The exclusion of a duty to give reasons contrasted with the usual duty of Supreme Court judges to give reasons for their decisions: at [53]. The duty to give reasons was central to the judicial function: at [54]. Despite the broad restrictions imposed by a control order, there was no duty to give reasons for the making of a declaration: at [67]. The lack of a duty to give reasons meant that the declaration function was ‘lacking an essential incident of the judicial function’: at [68]. The non-judicial function of making a declaration was ‘closely connected’ to the jurisdiction of the Supreme Court. The making of a declaration was a pre-condition to the Supreme Court’s jurisdiction to issue a control order: at [66], [68]. The making of a declaration without reasons would be subject to Supreme Court review only on the very limited ground of jurisdictional error, making the declaration ‘effectively unexaminable’: at [69]. For discussions of this case, see Gavin (2012) 34 Syd LR 395; Wheeler (2015) 37 Syd LR 301. In Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013]

HCA 7 a State law provided that before declaring that an organisation was a criminal organisation the [page 363] Supreme Court had to be satisfied that the organisation was ‘an unacceptable risk to the safety, welfare or order of the community’: at [20]. The motorcycle club argued that this provision conferred a non-judicial power: at [21]. Hayne, Crennan, Kiefel and Bell JJ pointed out that the Kable principle did not require that State courts maintain the strict separation of judicial power that was required for federal courts by Chapter III of the Constitution: at [124]. Nevertheless, the provision was suitable for judicial determination. ‘Courts are often called on to make predictions about dangers to the public’: at [143]. French CJ also observed that the conferral of a non-judicial power upon a State Supreme Court did not necessarily infringe the Kable principle. However, this provision was not a non-judicial power: at [22]. The imprecision of the criteria to be applied under the provision did not make it a non-judicial power: at [24]. Gageler J agreed with French CJ on this point: at [175]. 610E In Kuczborski v Queensland (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 the State Criminal Code prohibited three or more members of a criminal organisation from knowingly being together in public. The plaintiff’s motorcycle club had been declared to be a criminal organisation: at [39]. Members of criminal organisations were also prohibited from entering a prescribed place or attending a prescribed event. The plaintiff’s clubhouse was a prescribed place: at [195], [287]. It was also an offence for members of a criminal organisation to recruit new members. It was a defence to these offences to prove that the declared organisation did not have criminal activity as one of its purposes: at [35], [88], [191]–[197], [286]–[289]. The court held that these offences did not infringe the institutional integrity of the State judiciary. Crennan, Kiefel, Gageler and Keane JJ stated that the purpose of the Kable principle was to ‘preserve the integrity of the judicial function’: at [217]. The

challenged provisions did not make reference to the ‘performance of any judicial function’: at [218]. The provisions did not enlist the judiciary in giving effect to a legislative intention to prohibit the organisations: at [219]. The courts were not required to create ‘new norms of conduct’. The provisions only required the courts to determine facts and impose punishment for violations of rules of conduct that had already been laid down by legislation, which were orthodox judicial functions: at [224]–[225]. The provisions did not ‘cloak’ executive and legislative actions with the ‘neutral colours of judicial action’. Any harshness of the legislation was clearly the responsibility of the legislature and executive: at [229]. The judicial role under these laws was limited to the ordinary criminal trial process: at [230]. The declaration of an organisation did not decide criminal guilt and did not ‘usurp’ the judicial power: at [234]. The challenged provisions did not prohibit membership of the organisation: at [155]. Declaration of an organisation only established an element of the offences. It remained necessary to prove that the offences had been committed: at [235]. The declaration did not conclusively determine the nature of the organisation since it was open to a defendant to prove that the organisation did not have criminal activity as one of its purposes: at [238]–[239]. French CJ held that the declaration of an organisation as a criminal organisation was not a direction to the judiciary. The declaration merely created a factual element that had legal consequences: at [40]. The courts remained free to determine whether a person was a member of a criminal organisation and whether that person had committed an offence: at [41]. Bell J held that the provisions did not recruit the judiciary to an executive process: at [295]–[196]. Participation in a criminal organisation was an element of the offences. The court’s powers at a trial of those offences were the same as for other offences: at [296]. [page 364] The plaintiff argued that the prosecution could ask the court to take judicial notice of an executive declaration that an organisation was a criminal

organisation: at [297]. In that case the court did not determine whether the organisation was a criminal organisation: at [299]. However, that missed the point. The liability to punishment was based upon participation in a declared organisation, not upon the ‘criminality of the organisation’: at [302]. Provided that it did not authorise the executive to direct the content of judicial decision making, Parliament could choose whatever factual circumstance it wished to be an element of a criminal offence: at [303]. In dissent, Hayne J considered that the offence provisions impaired the institutional integrity of the State judiciary: at [115], [127]. The liquor laws prohibited the wearing of symbols of criminal organisations on licensed premises: at [48], [60], [250]–[251]. Crennan, Kiefel, Gageler and Keane JJ held that the Kable principle did not restrict the competence of the legislature to enact generally applicable laws that establish criminal offences. These provisions were of general application. The criminal organisation itself was relevant only in establishing which symbols were prohibited: at [254]. French CJ held that these offences did not involve an executive direction to the judiciary: at [49]. Hayne J held that the provisions did not ‘assimilate’ legislative or executive judgment with judicial judgment. They merely prohibited conduct defined by reference to a link between the conduct and an organisation: at [131]. Bell J also held that these were offences of general application and were subject to the normal trial process: at [305]. For a discussion of this case, see Ananian-Welsh (2015) 34 UQLJ 47. 610F Several cases have involved challenges to statutes that provided for the confiscation of the assets of convicted criminals. In Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181; 205 ALR 43; [2004] HCA 9 the court upheld a Western Australian law that provided for the confiscation of the profits of crime. The statute provided that upon conviction of a serious offence a court could make an order for the forfeiture of property or the imposition of a pecuniary penalty: at [3]. However, a person was deemed to have committed an offence if the person was charged but absconded before the charge was determined. A person was deemed to have absconded if they died following the issue of an arrest warrant: at [4]. The law was challenged on the ground that it did not permit the court to make ‘sufficient inquiry’ whether the dead person had committed the offence: at [7].

The court rejected this challenge, noting that the law required that a court making a forfeiture order must be satisfied beyond reasonable doubt that the deceased person had committed the offence: at [8]. A pecuniary penalty order could be made on the balance of probabilities, but it was still open to the deceased person’s lawyers to argue that the offence had not been committed: at [11]. There was no legislative determination of guilt or conviction: at [13]. In International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49 a State law authorised the Crime Commission to apply to the Supreme Court for a restraining order in relation to the property of a person who was suspected of having committed a serious criminal offence: at [1]. The order restricted dealings in that property: at [7]. Notice of the application need not be given to the person concerned: at [2]. If an affidavit stated that the person was suspected of having committed a serious criminal offence and set out reasons for this suspicion, the court was required to issue the restraining order if it considered that this suspicion was based upon reasonable grounds: at [2]. A person whose property was subject to a restraining order could apply for an order excluding certain property from the order. Property would only be excluded if the person proved that the [page 365] property was not illegally acquired: at [14], [94]. By a 4–3 majority the court held that the restraining order provision was invalid. French CJ pointed out that whether a person was given notice of the application was at the discretion of the Crime Commission. Where the application proceeded without notice procedural fairness was infringed as the person could not contest the accuracy of the affidavit: at [45]. Procedural fairness is central to the exercise of judicial power: at [54]. Through this provision the executive was able to direct the court as to how it could exercise its jurisdiction: at [55]. The court lost the power to decide whether procedural fairness required the giving of notice. This was an

‘essential incident of the judicial function’. The institutional integrity of the court was impaired by the provision: at [56]. Gummow and Bell JJ observed that excluding property from a restraining order ‘requires the negating of an extremely widely drawn range of possibilities of contravention’ of State and Commonwealth legislation and common law: at [96]. The restraining order ‘conscripted’ the court ‘for a process which requires 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’. Furthermore, ‘release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity’: at [97]. Heydon J held that the provision was ‘repugnant to the judicial process in a fundamental degree’ since those subject to an order obtained without notice were unable to apply to the court for the revocation of the order when they learnt of its existence: at [155], [159]–[160]. In dissent, Hayne, Crennan and Kiefel JJ adopted a more benign interpretation of the legislation: at [128], [134]. In Attorney-General (Northern Territory) v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 the court upheld a scheme for the statutory forfeiture of all assets of convicted drug traffickers. Under the scheme the Director of Public Prosecutions could apply to the Supreme Court for a declaration that an offender was a drug trafficker. If the offender had been convicted of three drug offences within a ten year period, the Supreme Court was empowered to declare them a drug trafficker. All of the offender’s property was thereby forfeited to the Territory government: at [2]. The High Court held that the Supreme Court was not required to give effect to an executive decision: at [56]. A legislature could validly empower a court to make an order if specific factual conditions existed, including where the order was made on application by the executive: at [57]. In the absence of contrary legislative intention, it will be assumed that if such a power is conferred upon the Supreme Court, the power will be exercised according to ordinary judicial processes: at [58]. The discretion of the DPP in deciding whether to seek an order did not infringe the independence of the Supreme Court: at [61]. For a discussion of this case, see Johnston (2014) 25 Bond LR 3.

610G In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 the interpretation section of the Victorian Charter of Human Rights and Responsibilities provided that ‘[s]o far as it [was] possible to do so consistently with their purpose’, all Victorian statutes were ‘to be interpreted in a way that [was] compatible with [the] human rights’ that were set out in the Charter: at [2], [526]. By a 6–1 majority the High Court held that this provision did not infringe the Kable principle. Gummow J pointed out that the ‘purpose’ referred to in this provision was the legislative intention ascertained by applying the rules of statutory interpretation. Under those established rules the court could depart from the literal meaning of a provision in order to [page 366] give effect to the purpose of the statute or the presumption that in the absence of clear words the legislature did not intend to impinge upon common law rights and freedoms: at [170]. The provision was valid: at [171]. Hayne J agreed with Gummow J on this issue: at [280]. Crennan and Kiefel JJ held that the interpretation provision was no different from the ordinary process of statutory interpretation: at [565]. The provision did not instruct the courts to ‘strain’ the language of a statute to make it consistent with Charter rights. An inconsistent statute remained valid: at [566]. French CJ observed that the courts already interpreted statutes to avoid or reduce their impact upon common law rights and freedoms wherever that was possible: at [43]. This provision was similar to that common law rule, though with a somewhat ‘wider field of application’: at [51]. Bell J held that the court’s task under the interpretation provision was ‘one of interpretation and not of legislation’: at [684]. In dissent, Heydon J considered that the interpretation provision was invalid: at [456]. In his view the provision went ‘well beyond’ the established rules of statutory interpretation: at [450]. He argued that the provision required the court to ‘remake’ rather than to apply statutory provisions, which was ‘an act of legislation’: at [450].

The declaration section of the Charter provided that if it was not possible to interpret a statute in a way that was compatible with a human right, the court could make a declaration to that effect. That declaration did not affect the validity of the statute: at [3]. A declaration gave rise to a Ministerial duty to prepare a response for tabling in Parliament: at [78]. By a 4–3 majority the High Court held that this provision did not violate the Kable principle. French CJ pointed out that the declaration had no effect upon the rights and liabilities of the parties or the operation of the statute. Its only legal effect was to trigger the political response process: at [88]. Making such a declaration was not a judicial function. When a declaration was made the rights and liabilities of the parties had already been determined. A declaration did not provide guidance for the decision of future cases: at [89]. The declaration was also not incidental to judicial power: at [90]–[91]. However, this non-judicial function did not affect the Supreme Court’s judicial function or the court’s relationship with the legislature or executive: at [95]. The declaration was an indication of the constitutional limitations upon the Supreme Court’s powers and the legislature’s power to decide whether statutes should be compatible with human rights: at [96]. The power to make a declaration thus did not infringe the Kable principle since by emphasising the constitutional limits of the court’s role it strengthened the institutional integrity of the Supreme Court: at [97]. Bell J agreed with French CJ on this issue: at [661]. Crennan and Kiefel JJ held that the declaration was not an exercise of judicial power. It was not an advisory opinion. A declaration was a formal statement that arose from the court’s application of the interpretation provision: at [584]. ‘The purposes of a declaration do not involve the administration of the law, but rather its possible alteration’: at [586]. However, the making of a declaration arose out of the court’s process of statutory interpretation. The declaration was thus ‘incidental to an exercise of judicial power’. It was not a declaration regarding a ‘hypothetical matter’: at [589]. The making of a declaration was discretionary and was not subject to ‘instruction’ by the legislature or executive: at [597]. Judges often make suggestions for law reform in their judgments, which was incidental to the exercise of judicial power: at [600].

In dissent on this point, Gummow J considered that the declaration was not a declaration of right, but ‘a declaration of the absence of right’: at [178]. The declaration constituted formal judicial advice to the executive: at [181]. The provision worked a ‘significant change’ to the [page 367] relationship between the judiciary and the political branches of government: at [183]. It was not a judicial function to formally begin the process of considering whether a statute should be amended: at [184]. The declaration provision was invalid as it was ‘incompatible with the institutional integrity of the Supreme Court’: at [188]. Hayne J agreed with Gummow J on this point: at [280]. Also in dissent, Heydon J considered that the declaration provision was invalid. The declaration was not an exercise of judicial power and was ‘merely advisory’. The power took the Supreme Court ‘outside the constitutional conception of a “court”’: at [457]. For a discussion of this case, see Bateman and Stellios (2012) 36 MULR 1. 610H A State law will not infringe the Kable principle if a Commonwealth law enacted in similar terms would not have infringed Chapter III. See H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; 156 ALR 563; [1998] HCA 54 at [14]; Baker v R (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 at [22], [24], [51]; Hogan v Hinch (2011) 275 ALR 408; 85 ALJR 398; [2011] HCA 4 at [91]; Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 at [126]; Duncan v Independent Commission Against Corruption (2015) 324 ALR 1; 89 ALJR 835; [2015] HCA 32 at [17]–[18]. This is because the Kable principle is ‘less stringent’ than the requirements of Chapter III. See Baker at [51]. The Kable principle is not derived from the separation of powers. See South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 at [201], [221]; Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 at [43], [45], [52]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41 at [115],

[187]. The principle thus does not replicate the strict separation of judicial power required for Commonwealth courts. See Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 at [22], [124]–[125]; Pollentine v Bleijie (2014) 253 CLR 629; 311 ALR 332; [2014] HCA 30 at [42]; Kuczborski v Queensland (2014) 254 CLR 51; 314 ALR 528; [2014] HCA 46 at [103]–[104]. In TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; 295 ALR 595; [2013] HCA 5 the plaintiff sought to invoke the Kable principle in relation to Commonwealth legislation that conferred a power upon the Federal Court: at [100]. Commonwealth legislation provided for the judicial enforcement of awards issued under the UNCITRAL Model Law on International Commercial Arbitration: at [43], [52]. A court had no power to refuse enforcement of an award on the ground of error of law: at [53]. The plaintiff argued that the legislation impaired the institutional integrity of the Federal Court: at [100]. It argued that judicial independence was impaired by the absence of judicial review of an award for error of law: at [101]. Hayne, Crennan, Kiefel and Bell JJ expressed reservations about whether it was correct to ‘apply directly’ the Kable principle to a Commonwealth court: at [102]. They did not need to determine that question since the enforcement process did not impair the institutional integrity of the Federal Court: at [102]. Under the Model Law the court had power to refuse to enforce an award for many reasons, including where the award conflicted with Australian public policy. The power to refuse enforcement was protective of the institutional integrity of the court: at [103]. The court enforced the obligations created by the award, which replaced the obligations that had previously applied between the parties: at [79], [104]. The common law jurisdiction to review an arbitral award for an error of law was not an essential element of judicial independence or a ‘defining characteristic’ of a court: at [104]. French CJ and Gageler J held that the absence of a power to refuse to enforce an award on the ground of error of law did not impair the institutional integrity of the enforcing court. [page 368]

Enforcement of the award was an enforcement of the agreement of the parties to submit their disputes to arbitration. It was not an enforcement of the rights and obligations that had been at issue in the arbitrated dispute. An order for enforcement was not an endorsement of the correctness of the award: at [34]. The power to set aside an arbitral award for error of law was not analogous to the jurisdiction to review whether an exercise of executive or judicial power was affected by jurisdictional error: at [39]. For discussions of the Kable principle, see Zines, 2002, pp 242–6; Meagher (2005) 16 Public LR 182; Carney, 2006, pp 349–76; Taylor, 2006, pp 444–57; Lee in Winterton, 2006, pp 390–415; Gogarty and Benedict (2009) 32 UNSWLJ 75; Stellios, 2010, pp 408–47; Ratnapala and Crowe, 2012, pp 135– 7, 143–6, 193–5; Murray (2012) 24 Giornale di Storia Costituzionale 145; Hanks, Gordon and Hill, 2012, pp 541–7; Clark, 2013, pp 88–94; Campbell and Lee, 2013, pp 61–5, 198–201; Keyzer, 2013, pp 395–407; Clarke, Keyzer and Stellios, 2013, pp 1062–1100; Gerangelos et al, 2013, pp 188–252; Del Villar (2013) 25 Upholding the Australian Constitution 62 (electronic); Joseph and Castan, 2014, pp 220–36; Appleby, Reilly and Grenfell, 2014, pp 297– 315; Appleby (2014) 40 Mon ULR 673; Williams, Brennan and Lynch, 2014, pp 500–2, 543–54, 574–89, 632–49; Aroney, Gerangelos, Murray and Stellios, 2015, pp 591–605; Mason (2015) 22 Aust J Admin L 177; Stellios, 2015, pp 275–94. 611 The Full Federal Court has held that jurisdiction conferred pursuant to s 77(iii) need not be accepted by State legislation to be effective. See Construction, Forestry, Mining and Energy Union v Warren (1999) 85 FCR 599; [1999] FCA 312 at [9]. Under the cross-vesting scheme each State Supreme Court, the Federal Court and the Family Court possessed the civil jurisdiction of the others, while still retaining its own jurisdiction. In Re Wakim; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 the purported vesting of the jurisdiction of the State Supreme Courts in the Federal Court and the Family Court was held to be invalid. By a 6–1 majority the High Court held that the State Parliaments had no power to vest federal courts with State jurisdiction and the Commonwealth Parliament had no power to consent to the vesting of such jurisdiction: at [3], [26], [39].

Gummow and Hayne JJ noted that it had long been accepted that the Commonwealth Parliament may only confer original jurisdiction upon the High Court in relation to a ‘matter’, since s 76 is the exclusive source of power regarding the High Court’s original jurisdiction: at [111]. Since s 76 is the exclusive source of power to confer original jurisdiction upon the High Court, ss 75 and 76 exclusively define the jurisdiction which may be conferred upon federal courts pursuant to s 77: at [111]. Furthermore, only the Commonwealth government can confer jurisdiction upon a federal court: at [111]. Gieeson CJ and Gaudron J agreed with Gummow and Hayne JJ: at [3], [26]. McHugh J held that State jurisdiction is not one of the ‘matters’ with which federal courts may be vested under ss 75 and 76: at [51]. Chapter III exhaustively defines the ‘matters’ with which federal courts may be vested, whether by Commonwealth or State legislation: at [57]–[58]. Given the express authorisation in s 77(iii) of the vesting of federal judicial power in State courts, ‘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’: at [56]. Kirby J dissented: at [187]. For discussions of this decision, see Hill (1999) 27 FL Rev 547; Turley (2000) 4, 2 Deakin LR 159; Rose in Stone and Williams, 2000, pp 186–215; Zines, 2002, pp 154–5; Ratnapala and Crowe, 2012, pp 189–91. [page 369] In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; 177 ALR 329; [2001] HCA 1 Gleeson CJ, Gaudron and Gummow JJ summarised the effect of Wakim as follows: ‘While the Constitution expressly enables the conferral of federal jurisdiction on State Courts, the converse does not apply’: at [8].

PROCEEDINGS AGAINST COMMONWEALTH OR STATE

612 Section 78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

See Quick and Garran, 1901, pp 804–7 (Revised ed, 2015, pp 974–7); Aitken (1994) 68 ALJ 690; Kneebone (1996) 24 FL Rev 93; Lane, 1997, pp 636–41; Leeming (1998) 17 Aust Bar Rev 214; ALRC, 2000, pp 306–13, 318– 20; ALRC, 2001, pp 446, 462, 469–70, 498–500; Hill (2006) 30 MULR 716; Stellios, 2010, pp 482–4; Leeming, 2012, pp 232–4, 244–6, 255–8; Clarke, Keyzer and Stellios, 2013, pp 962–5. 613 The effect of this section is to allow the Commonwealth Parliament to legislate with respect to suits against the Commonwealth or a State in matters of federal jurisdiction including matters covered by ss 75 and 76. It has done so in Pt IX of the Judiciary Act 1903 (Cth). In Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254; 66 ALR 412 Gibbs CJ, Mason, Wilson, Deane and Dawson JJ stated that there could be ‘no doubt’ that the Commonwealth had ‘full power’ to make laws concerning its liability, but it was not necessary to decide whether s 78 was the only source of this power: at 263. In Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155; 119 ALR 577 McHugh J indicated that under s 78 it ‘would not be open to the federal Parliament to bar the right to proceed against the Commonwealth in respect of the scope of its constitutional powers’: at 217. In Commonwealth v Mewett (1997) 191 CLR 471; 146 ALR 299 Dawson J expressed agreement with this statement, but noted that Crown liability in contract and tort posed no such question: at 497. Brennan CJ, Gummow and Kirby JJ held that s 75(iii) precluded the operation of Crown immunity in an action to recover damages in a common law cause of action: at 491, 551. They indicated that under s 78 a ‘law which confers jurisdiction with respect to matters arising under a law made by the Parliament … may give a new substantive right against the Commonwealth or a State’: at 551. In British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; 200 ALR 403; [2003] HCA 47 the appellant brought an action for moneys had and received, seeking the recovery of moneys paid under a constitutionally invalid State tax. McHugh, Gummow and Hayne JJ held that

the action arose under the Constitution because there would be no requirement to repay the moneys apart from the violation of the Constitution: at [39], [41]. A State could not legislate to validate a State tax that violated the Constitution: at [42]. The ‘combined operation’ of the common law and the Constitution provided a cause of action in tort or contract even without Commonwealth legislation enacted under s 78: at [59], [63]. A matter arises under the Constitution where a State is a party to the action: at [62]. Callinan J agreed with these Justices: at [172]. [page 370] Gleeson CJ held that the Constitution implied a right to proceed in respect of matters concerning the scope of Commonwealth and State powers or the observance of constitutional provisions by those governments: at [15]–[16], [23]. However, it was open to the Commonwealth to regulate that right to proceed: at [19]. Kirby J also held that the Constitution implied a cause of action for the recovery of an unconstitutionally imposed tax: at [120], [134], [154]. Section 78 was a ‘facultative’ provision: at [115]. It extended to the creation of both substantive and procedural rights: at [116]. Under s 79(1) of the Judiciary Act 1903 (Cth) State legislation shall apply to suits in federal jurisdiction. The law to be applied by a federal court or a State court exercising federal jurisdiction, will be the law in force from time to time in the State in which the matter is heard. This is subject to any contrary constitutional provision or federal statute. Section 79(1) will not pick up part only of a State Act, if that would change the meaning of the State law. See Commonwealth v Mewett (1997) 191 CLR 471 at 556; 146 ALR 299; Solomons v District Court of New South Wales (2002) 211 CLR 119; 192 ALR 217; [2002] HCA 47 at [24], [60], [62]. Section 79(1) applies only to federal courts and State courts exercising federal jurisdiction, not the State executive. See Solomons at [25], [57]. The common law is also to apply to suits in federal jurisdiction, subject to modification by the Constitution or federal legislation. See Judiciary Act 1903 (Cth) s 80; Hill (2006) 34 FL Rev 75. For discussions of the application of State legislation

under the Judiciary Act, see Stellios, 2010, pp 467–81; McGill (2012) 1 J Civil Litigation & Practice 131.

NUMBER OF JUDGES 614 Section 79. The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

See Quick and Garran, 1901, p 807 (Revised ed, 2015, p 977); AttorneyGeneral’s Department, 1980, p 282; Lane, 1997, p 642; Zines, 2002, pp 209– 13. 615 Under this section the Commonwealth Parliament may control the number of judges sitting in a State court exercising federal jurisdiction as well as the number of judges in a federal court. Section 23(1) of the Judiciary Act 1903 (Cth) is an example of legislation enacted under s 79 and the incidental power. That section provides that where not all of the High Court Justices sit in a case affecting the constitutional powers of the Commonwealth, at least three judges must concur in the decision. Prior to its repeal, s 39(2)(d) of the Judiciary Act provided that a court of summary jurisdiction shall be constituted by a magistrate. In Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 the High Court upheld the validity of this section under either s 79 or s 51(xxxix): at 152. Section 79 of the Constitution refers to the number of judges while s 39(2)(d) of the Judiciary Act seemed to deal with the qualifications of judicial officers or the composition of a court and would therefore have been dependent for its validity upon the incidental power. Section 39(2)(d) was repealed by the Judiciary Legislation Amendment Act 2006 (Cth) s 3 and Sch 1 Item 1. A Federal Magistrate was a ‘judge’ under s 79, notwithstanding the different terminology used. See Bryant; Ex parte Guarino (2001) 178 ALR 57; 75 ALJR 478; [2001] HCA 5 at [8]; Simandl v Deputy Commissioner of Taxation (2008) 167 FCR 501; [2008] FCA 450 at [10]. This court has been renamed the Federal Circuit Court and the title of its members is now ‘Judge’. See Federal Circuit Court of Australia Act 1999 (Cth) s 8(4).

[page 371]

TRIAL BY JURY 616 Section 80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

See Quick and Garran, 1901, pp 807–10 (Revised ed, 2015, pp 977–82); O’Neill (1987) 17 FL Rev 85; Constitutional Commission, 1988, Vol 1, pp 593–9; Coper, 1988, pp 300–9; Casey (1996) 31 Irish Jurist 102; Lane, 1997, pp 642–3; Meagher (2002) 24 Syd LR 141; Stellios (2005) 29 Crim LJ 139; Stellios, 2010, pp 517–68; Hanks, Gordon and Hill, 2012, pp 590–6; Williams and Hume, 2013, pp 64–5, 355–65; Pyke, 2013, pp 281–4; Guy, 2013, pp 343–50; Keyzer, 2013, pp 283–92; Clarke, Keyzer and Stellios, 2013, pp 1163–72; Gerangelos et al, 2013, pp 933–41; Bell (2014) 40 Mon ULR 7; Joseph and Castan, 2014, pp 450–5; Williams, Brennan and Lynch, 2014, pp 1156–67; Stellios, 2015, pp 614–16. 617 This section prescribes that indictable offences must be heard before a jury and cannot be dealt with summarily. See Comans (1968) 3 FL Rev 51. In R v Archdall; Ex parte Carrigan (1928) 41 CLR 128 it was held that the federal Parliament was not required to lay down an indictment procedure for an offence which carried one year’s imprisonment. Such an offence could be dealt with summarily. Therefore the position is that ‘if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment’: at 139–40. The supposed constitutional guarantee of trial by jury in criminal cases is therefore ineffective. In Spratt v Hermes (1965) 114 CLR 226 at 244 Barwick CJ stated that ‘[w]hat might have been thought to be a great Constitutional guarantee has been discovered to be a mere procedural provision’. 618 The High Court has continued to apply this interpretation. In Kingswell v R (1985) 159 CLR 264; 62 ALR 161 three judges affirmed the current interpretation. Gibbs CJ, Wilson and Dawson JJ made it clear that

they would not reconsider the established construction of s 80: at 276–7. With Mason J’s support, they held that s 80 permitted the determination of particular factual issues to be entrusted to a judge rather than the jury: at 282. Brennan and Deane JJ dissented. Brennan J said that s 80 prevented the ‘Parliament from withdrawing issues of fact on which liability to a criminal penalty or to a particular maximum penalty depends from the jury’s determination when any offence against a law of the Commonwealth is tried on indictment’: at 294. Deane J sought to vitalise the protection offered by s 80. Section 80 protects those charged with ‘serious offences’: at 310. A ‘serious offence’ is an offence punishable by a maximum term of imprisonment of more than a year: at 317. A trial of a person charged with a ‘serious offence’ is a ‘trial on indictment’: at 317. For him, the guarantee was thus not merely a procedural provision: at 319. 619 In Brown v R (1986) 160 CLR 171; 64 ALR 161 a 3–2 majority of the High Court held that s 80 precluded an accused person from choosing under State law to be tried by judge alone for an indictable offence against Commonwealth law. The words of the section were that the trial ‘shall be’ by jury, which implied a mandatory method of trial. Brennan J favoured a literal interpretation of s 80: at 196. He observed that Australia did not have a long history of a right to waive a jury trial: at 195. At common law there was no [page 372] such right: at 196. Hence any person who pleads not guilty of an indictable offence under federal law must be tried by jury rather than by judge alone: at 196. Deane J observed that the wording of s 80 was mandatory. A choice in the accused as to the mode of their trial was inconsistent with the plain meaning of the section: at 201. Section 80 was not ‘a mere conferral of a privilege’. He stated that a public purpose exists behind s 80: it is ‘for the benefit of the community as a whole as well as for the benefit of the particular accused’: at 201.

Dawson J also emphasised the literal meaning of s 80 and its public character: at 208. Chapter III was an unlikely place for a guarantee of freedom which could be waived at the choice of the individual, concerned as it is with the very public matter of the judiciary: at 208–9. The criminal justice system was a matter of public rather than private concern, and its standards were not to be relaxed even with the consent of the individual: at 208–9. Nothing in the section itself suggested a choice in the accused: at 209. He suggested that it was ‘overstating the position to say that s 80 has been reduced to a procedural provision’: at 215. In Alqudsi v The Queen (S279/2015) the High Court heard arguments regarding the application of the Brown decision. On 10 February 2016 the court ordered that s 80 was violated by a State law which provided for trial by judge alone. Reasons for that order were to be given at a later date. See [2016] HCATrans 013 pp 79–80. In Re Colina; Ex parte Torney (1999) 200 CLR 386; 166 ALR 545; [1999] HCA 57 the majority of the court found it unnecessary to consider the correctness of these earlier decisions: at [25]. In dissent Kirby J argued that the view of Deane J in Kingswell was correct: at [95]. McHugh J applied the prior cases: at [50]. For a discussion of this case, see Webster (2000) 5, 1 Deakin LR 217. The established interpretation was not disturbed in Cheng v R (2000) 203 CLR 248; 175 ALR 338; [2000] HCA 53. Once again, a majority of the court did not find it necessary to reconsider this interpretation. Gleeson CJ, Gummow and Hayne JJ held that s 80 did not require a jury trial of a person who pleaded guilty to the offence charged: at [41]. The present case was not an appropriate case for reconsideration of the established interpretation of s 80, since the appellants had pleaded guilty: at [39], [43], [51]. Gaudron J also found it unnecessary to reconsider the established interpretation. Since the offence in this case was an indictable one, the question of Parliament’s power to determine when an offence will be tried upon indictment did not arise: at [87]. McHugh J considered that the established interpretation was correct in the light of the intention of the framers of the Constitution, to which the literal meaning of the provision had given effect: at [126]. The words of the provision were ‘deliberately and carefully chosen’ so that Parliament rather

than the Constitution would determine when an offence would be tried by indictment, and hence by a jury: at [129], [132], [142]. Furthermore, the dissenting views arguing for a wider interpretation of s 80 had advanced unacceptably subjective criteria for determining when an offence must be charged by indictment: at [145]. With some misgivings, Callinan J also considered that the established interpretation accorded with the language chosen by the framers: at [410]. Kirby J alone favoured a reconsideration of the established interpretation, commenting that the effect of s 80 under that view was so limited that the section may as well have been left out of the Constitution altogether: at [176]. For a discussion of this case, see Simpson (2001) 29 FL Rev 95. In Hart v Commonwealth Director of Public Prosecutions [2012] 2 Qd R 203; 285 ALR 340; [2011] QCA 351 applications for pecuniary penalty orders under the proceeds of crime legislation were determined by a judge alone. The Queensland Court of Appeal held that [page 373] such proceedings were not a trial on indictment so s 80 did not require that they be tried by a jury: at [8], [41], [194]. A trial on indictment was a criminal proceeding: at [41], [194]. Applications for a pecuniary penalty order were civil proceedings: at [8], [26], [41]–[42], [194]. 620 In Cheatle v R (1993) 177 CLR 541; 118 ALR 1 the High Court unanimously held that where the guarantee was applicable, s 80 required a unanimous verdict of guilt by jurors in order for a conviction to stand: at 562. Historical practice played an important part in reaching this conclusion. Unanimity had long been established as a requirement at common law: at 550. The court stated: ‘It would be surprising if s 80’s guarantee were satisfied by a “jury” of two persons selected by lot from a panel of half a dozen “laymen” nominated by the Director of Public Prosecutions’: at 549. The requirement of unanimity was also dictated by the common law principle that persons should only be convicted upon proof beyond reasonable doubt: at 553. It had been argued that taking an historical understanding of the institution of trial by

jury was unwise because of the undesirable characteristics of jury trial in 1900. The court rejected this argument, stating that the exclusion of women and property qualifications were not essential characteristics of the jury system in 1900: at 560. Such restrictions were not part of the jury trial required by s 80: at 561. In Ng v R (2003) 217 CLR 521; 197 ALR 10; [2003] HCA 20 the court upheld a law that provided for the use of additional jurors prior to the retirement of the jury to consider its verdict. The jury was composed of 15 jurors, all of whom heard the evidence at trial. Before the jury considered its verdict, the number of jurors was reduced to 12 through a random ballot. The court held that this system did not infringe the unanimity principle. Gleeson CJ pointed out that the unanimity requirement applied at the time the jury gave its verdict. The unanimity principle was not violated by the discharge of jurors prior to that time: at [12], [64]. Applying this decision, the court upheld a system under which reserve jurors were discharged prior to jury deliberations, without the use of any ballot procedure. See Fittock v R (2003) 217 CLR 508; 197 ALR 1; [2003] HCA 19 at [13]–[14], [18], [38]–[39]. 621 The court has considered the number of jurors required to deliver a verdict in a jury trial under s 80. In Brownlee v R (2001) 207 CLR 278; 180 ALR 301; [2001] HCA 36 a jury of 12 was empanelled. Two jurors were discharged during the trial. Under State law a jury with a minimum of 10 members was permitted to give a verdict: at [13]–[14]. The court held that this procedure did not violate s 80: at [20], [51], [148]–[149], [183]. Gleeson CJ and McHugh J stated that history denied the claim that a verdict must be delivered by 12 jurors: at [20]. Gaudron, Gummow and Hayne JJ assumed that s 80 required the empanelment of a jury of 12: at [68]. Based upon historical considerations, it was strongly arguable that a reduction below 10 would violate s 80: at [71]–[73]. However, reduction to 10 was permissible: at [71]. Kirby J suggested that to terminate jury trials where a verdict could not be delivered by a jury of 12 would endanger the jury system: at [149]. For discussions of this case, see Stellios (2001) 29 FL Rev 319; Selway (2002) 13 Public LR 7. Applying the Brownlee decision, the New South Wales Court of Criminal

Appeal held that s 80 was not violated by the discharge of a disqualified juror during the trial and the subsequent delivery of a verdict by the remaining jurors. See Petroulias v R (2007) 73 NSWLR 134; [2007] NSWCCA 134 at [50]–[52], [76]–[78], [83]. Section 80 requires that the jury panel be ‘randomly and impartially selected’. See Cheatle v R (1993) 177 CLR 541 at 560–1; 118 ALR 1; Katsuno v R (1999) 199 CLR 40; 166 ALR 159; [1999] HCA 50 at [8], [51]–[52], [67]; Ng v R (2003) 217 CLR 521; 197 ALR 10; [2003] HCA 20 at [14], [37]. [page 374] In Ng v R (2003) 217 CLR 521; 197 ALR 10; [2003] HCA 20 additional jurors were discharged by a random ballot prior to the retirement of the jury. The jury foreperson was not eligible to be discharged in this ballot: at [17]. The court held that the randomness of jury selection was not violated by the random ballot and the exclusion of the foreperson from discharge through the ballot: at [14], [17], [76]. The respective functions of judge and jury in a jury trial were considered in Cheung v R (2001) 209 CLR 1; 185 ALR 111; [2001] HCA 67. The appellant argued that all significant issues of fact that would determine punishment must be determined by the jury: at [118]. The court held that s 80 is not violated where a sentencing judge considers the evidence for the purpose of finding facts that are necessary for sentencing but which have not been determined by the verdict: at [55], [130], [173]. Gleeson CJ, Gummow and Hayne JJ held that this process reflected the division of functions between judge and jury, with sentencing being a judicial function: at [55]. Kirby J argued that to require the jury to determine all significant issues of fact would modify the constitutional guarantee: at [131]. Section 80 does not require that jurors be kept in strict ‘quarantine’ during their deliberations. In Brownlee v R (2001) 207 CLR 278; 180 ALR 301; [2001] HCA 36 the jury was allowed to separate during its deliberations: at [13]–[14]. The court held that this separation of the jury did not violate s 80:

at [28], [67], [190]. Jury sequestration was never absolute: at [26], [64]. Kirby J pointed out that strict sequestration would be likely to produce juries composed from a narrow section of the community: at [153]. A statute prohibiting the supply to the defence of the names and occupations of prospective jurors did not infringe s 80. See Ronen v R (2004) 211 FLR 320; [2004] NSWCCA 320. This provision was not inconsistent with any essential element of trial by jury: at [70], [99], [102], [112]. Trial by jury necessitated the protection of the jury from intimidation: at [95]. The provision was incidental to achieving the legitimate end of ensuring jury anonymity. That anonymity protected an essential element of trial by jury, the protection of jury deliberations from outside influences: at [97]. Section 80 requires that the trial be held ‘in the State where the offence was committed’. This requirement is not violated by the taking of evidence by witnesses in other countries through video link. It is not necessary that every element of the trial take place within the State. See R v Wilkie (2005) 64 NSWLR 125; [2005] NSWCA 311 at [5], [23]; SLR [2005] HCATrans 849. Where an offence is committed in a Commonwealth place within a State (such as an airport), the offence takes place within that State. Under s 80 the trial thus must take place within that State. See Pinkstone v R (2004) 219 CLR 444; 206 ALR 84; [2004] HCA 23 at [38]; Mok v Director of Public Prosecutions (NSW) [2016] HCA 13 at [99]. Section 80 further requires that ‘if the offence was not committed within any State the trial shall be held at such place as the Parliament prescribes’. This would include an offence committed in a Territory or outside Australia. See R v Huston (2011) 255 FLR 143; [2011] QCA 349 at [45]. Parliament has provided that in such circumstances the trial may be held in any State or Territory. See Judiciary Act 1903 (Cth) s 70A(1). In Winstone v Kelly (1987) 46 SASR 461; 75 ALR 293 it was argued that s 80 preserved a right to trial by jury in respect of offences which Parliament had provided should be tried by way of indictment, so that Parliament could not retrospectively remove the right to trial by jury by amending the legislation to enable a summary prosecution to proceed. The South Australian Supreme Court held that s 80 did not prevent the Parliament from doing this.

[page 375] ‘There can be no freezing or preserving here of a right to trial on indictment. The Parliament gave that right for a time then took it away. The Parliament was free to do that’: at 465. Various other forms of criminal procedure have been challenged under s 80. In R v LK (2010) 241 CLR 177; 266 ALR 399; [2010] HCA 17 it was held that s 80 was not infringed by an appeal against a directed acquittal where questions of law alone were raised. Since the appeal concerned only questions of law and not fact, no essential function of the jury system was violated: at [40], [88]. It has also been held that s 80 is not infringed by the reservation of a question of law following acquittal. See Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 at 3, 8. In X7 v Australian Crime Commission (2013) 248 CLR 92; 298 ALR 570; [2013] HCA 29 French CJ and Crennan J held that s 80 did not incorporate the privilege against self-incrimination: at [39], [64]. Hayne, Bell and Kiefel JJ found it unnecessary to consider this issue: at [92], [157]. 622 Several areas that lie outside s 80 should be noted. First, the High Court has held that since service tribunals are outside the operation of Chapter III of the Constitution, s 80 does not apply to such proceedings. See Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 26, 29; 121 ALR 153; Jones v Chief of Navy (2012) 205 FCR 458; 294 ALR 28; [2012] FCAFC 125 at [183]–[186]. Second, in Re Colina; Ex parte Torney (1999) 200 CLR 386; 166 ALR 545; [1999] HCA 57 the High Court held that s 80 does not apply to the trial by federal courts of charges of contempt of court. Such trials may be held as summary procedures without a jury. The phrase ‘law of the Commonwealth’ refers only to legislation, not to obligations deriving from powers conferred by the Constitution: at [25]. The power to punish contempt of court arose from the Constitution rather than any statute, so contempt of court was not an offence against a ‘law of the Commonwealth’: at [16], [25]. Finally, the constitutional guarantee in s 80 applies only to the trial of Commonwealth offences, not the trial of State offences. See Birch v R (1994) 12 WAR 292 at 309; Byrnes v R (1999) 199 CLR 1; 164 ALR 520; [1999]

HCA 38 at [70], [93]; R v CAZ [2012] 1 Qd R 440; [2011] QCA 231 at [52]; SLR [2012] HCATrans 244.

[page 377]

CHAPTER IV FINANCE AND TRADE __________________________ CONSOLIDATED REVENUE FUND 623 Section 81. All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

See Quick and Garran, 1901, pp 811–12 (Revised ed, 2015, pp 982–4); Saunders (1978) 11 MULR 369; Constitutional Commission, 1988, Vol 2, pp 831–4; Coper, 1988, pp 200–5; Lane, 1997, pp 644–50; Pape (2005) 17 Upholding the Australian Constitution 132 (electronic); Lawson (2008) 32 MULR 879 at 881–90; Appleby (2009) 37 FL Rev 93; Saunders (2009) 20 Public LR 256; McLeod (2010) 32 Syd LR 123 at 126–32; Ratnapala and Crowe, 2012, pp 350–6; Appleby and McDonald (2012) 37 Mon ULR 162; Hanks, Gordon and Hill, 2012, pp 236–44, 366–72; Faulkner and Orr, 2013, pp 741–8 (no 1735); Pyke, 2013, pp 239, 243–8; Keyzer, 2013, pp 274–6; Clarke, Keyzer and Stellios, 2013, pp 670–88; Gerangelos et al, 2013, pp 314– 68; Joseph and Castan, 2014, pp 378–86; Williams, Brennan and Lynch, 2014, pp 1051–67; Stellios, 2015, pp 384–90. 624 The purpose of this section is to establish the Consolidated Revenue Fund and make provision for the appropriation of moneys from it by the Commonwealth. All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund

625

This paragraph incorporates the British statutory requirement, derived

originally from 27 Geo III, c 13 (1787), that revenue received by the executive government shall form one single fund. See Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 at 503; 112 ALR 53. It is clear that ease of financial administration as well as public scrutiny is promoted by a requirement that the receipt of government revenue be organised in this manner, in contrast to a system whereby moneys can be paid into a multitude of different funds. In Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated that the establishment of the Fund was intended to prevent the earmarking of revenues that were received by the executive government: at [51]. Moneys paid into the Fund are subject to appropriation for any purpose for which the Commonwealth has power to spend money, irrespective of the purpose for which they were raised: at [50]. Hence when an employer pays the Superannuation Guarantee Charge into the Fund, the separate ‘identity’ of that money [page 378] is lost and it is subject to appropriation for any purpose for which the Commonwealth has power to spend money: at [51]. The question has arisen as to whether loan moneys and moneys received on trust for specific purposes are required by this section to be paid into the Consolidated Revenue Fund. Quick and Garran applied the maxim noscitur a sociis, that is, ‘the meaning of a word or phrase may be ascertained from the words accompanying it’. See LexisNexis Concise Australian Legal Dictionary, 5th ed, 2015, p 436. They considered that the word ‘moneys’ is controlled by the word ‘revenue’ and is limited to government income in the nature of revenue, and that the Constitution does not prevent the payment of moneys received by way of loan into a separate fund. See Quick and Garran, 1901, p 811 (Revised ed, 2015, p 983). This would mean that there is no constitutional barrier to the creation of a loan fund (or a trust fund) in addition to the Consolidated Revenue Fund. The South Australian Full Court held that the Child Support Trust Account formed part of the Consolidated Revenue

Fund. See Gill v Deputy Child Support Registrar (1993) 60 SASR 563 at 574, 580. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248; 109 ALR 1 Mason CJ, Dawson and McHugh JJ stated that ss 81 and 86 were not an obstacle to the establishment of a separate Territory fiscus or public treasury: at 267. to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

626 A central question relating to the interpretation of this paragraph is whether the phrase ‘for the purposes of the Commonwealth’ limits the Commonwealth spending power to purposes associated with the areas of Commonwealth power (legislative, executive and judicial), or whether it permits a much wider appropriation of moneys for Australian purposes without regard to the division of powers between the Commonwealth and the States. This question was first considered by the court in the Pharmaceutical Benefits’ case (Attorney-General (Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237). The Pharmaceutical Benefits Act 1945 (Cth) provided for the supply of certain medicines to the public without charge, appropriated money to be paid to chemists for the medicine supplied, and imposed duties upon medical practitioners and chemists in relation to the prescription and supply of the medicine. The majority of the High Court held that the Act was not authorised by either s 81 or s 51(xxxix). It was an Act relating to public health which was not an area of Commonwealth power (apart from quarantine). Latham CJ and McTiernan J adopted a wide view of the appropriation power, holding that the ‘purposes of the Commonwealth’ were such purposes as were determined by the Commonwealth: at 256, 273. On the other hand Dixon, Rich, Starke and Williams JJ adopted a more limited view of the power, holding that constitutional limitations arising from the federal structure placed restrictions upon the purposes for which moneys might be appropriated. Williams J said (at 282): The phrase [‘purposes of the Commonwealth’] must have been inserted to have some effect, and if it is to have any effect it must place some constitutional limitation upon the purposes for which

the Commonwealth Parliament can pass an appropriation Act. The object of the Constitution was to superimpose on the existing body politics consisting of the States a wider overriding body politic for certain specific purposes. It was for these particular purposes and these alone that the … States agreed to create the … Commonwealth … These purposes must all be found within the four corners of the Constitution.

[page 379] Dixon J (at 269) expressed his view of the power as follows: It was said that s 81 …, in referring to appropriation for the purposes of the Commonwealth, empowers the Parliament to expend money for any purpose that is for the benefit of the people of the Commonwealth, or for the advancement of their interest … This is not the view which in the past I have entertained of the power of appropriation given by s 81 … Even upon the footing that the power of expenditure is limited to matters to which the Federal legislative power may be addressed, it necessarily includes whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government. These are things which, whether in reference to the external or internal concerns of government, should be interpreted widely and applied according to no narrow conception of the functions of the central government of a country in the world of to-day.

The consensus (such as it was) which emerged from the Pharmaceutical Benefits’ case supported the view that there was some limitation, deriving from the nature of the federal system, upon the appropriation of moneys by the Commonwealth, although the power was not limited to the specific legislative heads granted to the Commonwealth. It was this decision, which appeared to establish the narrow view of the spending power, that led the Commonwealth government to support the 1946 constitutional amendment which incorporated s 51(xxiiiA) as a head of Commonwealth power. See Sawer, 1964, p 550. 627 In the Australian Assistance Plan case (Victoria v Commonwealth (1975) 134 CLR 338; 7 ALR 277) the High Court was concerned with a challenge to the validity of an item in the Appropriation Act 1974 (Cth) that appropriated moneys for an integrated social welfare program. Under the Australian Assistance Plan grants were to be made to ‘regional councils for social development’. Under the procedures laid down for these bodies, moneys could be expended for social services or social welfare benefits which were not within the Commonwealth social services powers (ss 51(xxiii), 51(xxiiiA)).

A 4–3 majority of the High Court dismissed the action. One of the majority judges (Stephen J) considered that the plaintiff State did not have locus standi to challenge the appropriation: at 384, 390. McTiernan, Murphy and Mason JJ (the latter being one of the minority judges) adopted the wide view of the appropriation power: at 366, 415, 396. In their view ‘purposes of the Commonwealth’ meant such purposes as were determined by the federal Parliament. Mason J said (at 394): It is not lightly to be supposed that the framers of the Constitution intended to circumscribe the process of parliamentary appropriation by the constraints of constitutional power and thereby to expose the items in an Appropriation Act to judicial scrutiny and declarations of invalidity. Consequences more detrimental and prejudicial to the process of Parliament would be difficult to conceive. Any item in the Act would be subject to a declaration of invalidity after the Act is passed, even after the moneys in question are withdrawn from Consolidated Revenue and perhaps even after the moneys are expended, for an appropriation, if it be unlawful and subject to a declaration of invalidity, does not cease to have that character because acts have taken place on the faith of it.

Jacobs J upheld the validity of the appropriation mainly on the basis of the incidental power: at 413. Both Barwick CJ and Gibbs J supported the narrower view of the appropriation power: at 360, 370. Gibbs J said (at 373–4): It would be contrary to all principles of interpretation to treat the words “for the purposes of the Commonwealth” in s 81 as adding nothing to the meaning of the section. The words do not in their ordinary sense have the same meaning as “for any purpose whatsoever” or “for such purposes as the Commonwealth may think fit”. They appear in a Constitution by which specific powers of legislation were conferred upon the Commonwealth and the general powers of the colonies which became the States were, with certain exceptions, continued.

[page 380] In Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 Gummow and Bell JJ observed that the ‘false assumption’ that s 81 conferred a substantive spending power had caused the court in the Australian Assistance Plan case to focus on the phrase ‘the purposes of the Commonwealth’: at [128]. See also Hayne J at [222]. 628 In Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 the High Court unanimously held that an appropriation for a valid exercise of the

executive power in s 61, was by that very fact, an appropriation for a purpose of the Commonwealth and hence valid under s 81. Mason CJ, Deane and Gaudron JJ noted that this was so even if a narrow view of ‘purposes of the Commonwealth’ were taken: at 95. They commented that there was no need to decide whether there might be ‘extraordinary circumstances’ in which an Appropriation Act might be challenged: at 96. This occasion was not such a circumstance: at 96. Brennan J also did not decide the issue: at 115. In Brown v West (1990) 169 CLR 195; 91 ALR 197 Mason CJ, Brennan, Deane, Dawson and Toohey JJ observed that, excepting those provisions in the Constitution that render certain items of expenditure payable from the Consolidated Revenue Fund, the power of appropriation is exercisable only by the Parliament. ‘It is by ss 81 and 83 that our Constitution assures to the people the effective control of the public purse’: at 205. There were two types of appropriation Acts — standing appropriations and annual appropriations: at 205–6. They explained the importance of the distinction between the two types of appropriation (at 207): Historically, the need of the Executive Government to seek annual appropriations of the Consolidated Revenue Fund “for the service of the year” or “in respect of the year” has been the means, and it remains one of the critical means, by which the Parliament retains an ultimate control over the public purse strings, but the Parliament forgoes its annually-exercised power over expenditure by government when a law containing a standing appropriation is enacted.

They noted that both standing and annual appropriations must state the purposes for which they may be spent: at 208. In the absence of a clear intention to repeal, appropriation Acts will not be interpreted to allow the funding of new policies beyond the limits imposed by existing legislation. They stated (at 211–12): Though the terms in which an appropriation is made may, on one reading, appear to appropriate moneys in excess of the limits imposed by existing legislation, there may be insufficient indication of an intention to override that legislation. In such a case, it is erroneous to treat the appropriation as being made for a purpose inconsistent with the existing legislation. The Appropriation Act must be read in the context of the existing legislation which, unless repealed by the Appropriation Act, requires that the purposes to be found in the broad terms of the Appropriation Act be limited to accord with the existing legislation.

629 In Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; 112 ALR 53 Dawson and Toohey JJ considered that s 81 invalidated a ‘blank tape royalty’. ‘If an exaction is a tax, the moneys which it

raises are revenue and must form part of the Consolidated Revenue Fund by reason of s 81 … the moneys raised … can only, under ss 81 and 83 of the Constitution, be received by the collecting society after appropriation by law for the purpose of payment to it’: at 522. In Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555; 112 ALR 87 the Trust challenged the payment of the amounts raised by the training guarantee levy into the Training Guarantee Fund. The court held that the legislation effected an appropriation from the Consolidated Revenue Fund in accordance with the Audit Act 1901 (Cth) so that no infringement of s 81 had occurred. Mason CJ, Deane, Toohey and Gaudron JJ stated that it was not to be presumed that the Parliament intended to infringe the requirements of s 81. The second reading speech revealed no such intention: at 577. [page 381] In Combet v Commonwealth (2005) 224 CLR 494; 221 ALR 621; [2005] HCA 61 no challenge was made to the validity of the appropriation Act at issue: at [2], [188]. It was not argued that an appropriation for government advertising was invalid as not being for the purposes of the Commonwealth: at [2], [112], [188]. The majority stated that an appropriation for expenditure by a Commonwealth government department was for a purpose of the Commonwealth: at [135]. Several Justices indicated that it was for Parliament to decide what were the ‘purposes of the Commonwealth’: at [5]. The dissenting Justices were of the view that an ‘appropriation in blank’ would be invalid: at [89], [289]; cp [135]. 629A In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 the court unanimously rejected the broad view of s 81. French CJ held that ss 81 and 83 do not confer a ‘substantive spending power’: at [8]. Those provisions do not confer power but are directed towards ensuring parliamentary control of the expenditure of public money by the executive: at [53], [111]. The sources of substantive spending power lie in other constitutional provisions or in valid statutes, subject to parliamentary appropriation: at [8], [53], [111]. The ‘purposes of the Commonwealth’ are

not simply any purposes chosen by the Commonwealth Parliament. They are the purposes authorised by other constitutional provisions or by federal laws enacted under the Constitution: at [113]. Gummow, Crennan and Bell JJ held that ss 81 and 83 were not a source of spending power: at [178]. The court’s prior decisions had not produced a consensus to the contrary: at [179]. Hayne and Kiefel JJ also considered that ss 81 and 83 do not constitute a spending power. The power to spend must be found elsewhere: at [320]. Section 81 is not expressed as a grant of legislative power: at [289]. The purpose of s 81 is to regulate executive–legislative relations in the area of finance. It is not concerned with the making of laws regarding the rights and duties of citizens: at [292]. The phrase ‘purposes of the Commonwealth’ is not restricted to purposes for which the Commonwealth is expressly granted legislative power. However, it was unnecessary to determine whether the ‘purposes of the Commonwealth’ were any purposes designated by the Commonwealth: at [290]. Heydon J held that’s 81 could go no further than giving Parliament a power to appropriate. It does not confer a power on the Parliament to authorise the executive to expend the appropriated funds’: at [602]. Section 81 is not a source of legislative power to authorise the expenditure of money: at [604]. The phrase ‘purposes of the Commonwealth’ does not confer power to appropriate moneys for the ‘general welfare’. If the Commonwealth had such a power it would have ‘unlimited legislative powers’: at [608]. The court’s view that ss 81 and 83 do not confer a substantive spending power has been followed in subsequent cases. See Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [39], [114], [128], [191], [478], [559]; Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 at [20], [25], [86], [99]. For a discussion of this case, see Hogg and Lawson (2014) 21 Aust J Admin L 145. 630 The question of locus standi to challenge an appropriation Act is relevant. In Victoria v Commonwealth (1975) 134 CLR 338; 7 ALR 277 only Stephen J considered that a State or its Attorney-General did not have locus standi to challenge the validity of a Commonwealth appropriation Act: at 387–90. Barwick CJ, Gibbs and Mason JJ all accepted that a State had standing: at 365–6, 381–3, 401–2. Murphy J inclined to the view of Stephen J

but at the same time considered that the concept of locus standi or interest should be broadened to allow for individual and representative actions: at 424–5. McTiernan and Jacobs JJ did not decide the issue of standing. [page 382] In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 the plaintiff challenged the payment of ‘tax bonuses’ to taxpayers falling within certain ranges of income. He was entitled to payment of a particular amount applicable to his level of income: at [6]. Different amounts were payable to persons falling within different ranges of income: at [36]. The Commonwealth argued that the plaintiff had standing to seek a declaration that the payment to him was void, but not to seek a declaration that the appropriation Act itself was invalid: at [45], [153], [272]. French CJ described this argument as an ‘unattractive one’ since the outcome could be that while the plaintiff might establish that his own payment was void as unconstitutional, the invalid Act would be otherwise unaffected in its application to other taxpayers: at [46]. French CJ rejected this argument, holding that the determination of the ‘matter’ in this case required the court to decide whether the Act was valid: at [52]. Gummow, Crennan and Bell JJ considered that the plaintiff would have standing only to challenge the provisions that applied to him: at [156]. However, the short appropriation Act at issue was an ‘inseverable whole’: at [157]. If the plaintiff established that the Act was invalid in relation to himself, the court’s reasoning would be binding in relation to later decisions concerning its application to other parties: at [158]. Hayne and Kiefel JJ agreed with Gummow, Crennan and Bell JJ on this point: at [273]. Heydon J rejected the Commonwealth’s argument as likely to lead to a ‘bizarre and unimaginable state of affairs’: at [401]. If the Act was invalid in relation to the plaintiff, it would be invalid in relation to all other persons in the same position as the plaintiff: at [401]. In Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410;

[2012] HCA 23 the plaintiff argued that a state school chaplaincy program was not supported by an appropriation: at [111]. The plaintiff’s children attended a state school at which the programme operated: at [2]. Gummow and Bell JJ expressed doubts about whether the plaintiff had sufficient interest to argue that there was no appropriation. The intervening States did not support this part of the plaintiff’s case: at [117]. Hayne, Crennan and Kiefel JJ agreed with Gummow and Bell JJ on this point: at [168], [475], [598]. Heydon J also held that the plaintiff lacked standing to challenge an appropriation: at [319]. The final words of s 81 are of little importance. They require that, before Parliament proceeds to appropriate revenue during a financial year, it must ensure that any appropriation provided for in the Constitution must be satisfied.

EXPENDITURE CHARGED THEREON 631 Section 82. 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.

See Quick and Garran, 1901, pp 812–13 (Revised ed, 2015, pp 984–5); Attorney-General’s Department, 1980, p 287; Lane, 1997, p 650. 632 The effect of this section is clear. It is recognised that the first charges upon the Consolidated Revenue Fund are the various departmental outlays necessary for the collection, receipt and [page 383] management of the Fund. Primarily this would cover expenses relating to the Treasury and the Auditor-General. It would also cover all other departments that receive revenue. This section does not constitute an appropriation of an undefined sum for these purposes. It is necessary for the government to include in the annual

appropriation Acts the required amounts. These amounts will form part of the estimates for the various departments. The final part of this section requires that initial provision be made in the appropriation legislation for the funds directed to Commonwealth expenditure (for example, the public service). This, in effect, includes expenses of collection associated with the Consolidated Revenue Fund. See Quick and Garran, 1901, p 813 (Revised ed, 2015, p 985).

MONEY TO BE APPROPRIATED BY LAW 633 Section 83. 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 GovernorGeneral 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.

See Quick and Garran, 1901, pp 813–15 (Revised ed, 2015, pp 985–8); Attorney-General’s Department, 1980, pp 287–8; Constitutional Commission, 1988, Vol 2, pp 831–4; Lane, 1997, pp 650–1; Lindell (1999) 2 Const L & Pol’y Rev 21; Lawson (2006) 29, 2 UNSWLJ 114 at 126–37; Lawson (2008) 32 MULR 879 at 894–910; Saunders (2009) 20 Public LR 256; McLeod (2010) 32 Syd LR 123 at 124–32; Hanks, Gordon and Hill, 2012, pp 236–44; Gerangelos et al, 2013, pp 314–68; Clarke, Keyzer and Stellios, 2013, pp 670– 88; Williams, Brennan and Lynch, 2014, pp 1051–67. 634 So far as the first paragraph of s 83 is concerned, the basic constitutional requirement for the spending of public revenue is parliamentary sanction. Accordingly, s 83 prohibits the disbursement of money from the Treasury except under the authorisation of an Act of Parliament. This authorisation must be by way of statute, not by a parliamentary vote or resolution. See Combet v Commonwealth (2005) 224 CLR 494; 221 ALR 621; [2005] HCA 61 at [103], [227]; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [209]. In Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555; 112 ALR 87 Brennan J stated (at 581):

Section 83 forbids any person having possession, custody or control of any moneys which form part of the [Consolidated Revenue Fund] from disbursing them without the warrant of an appropriation so that they are no longer in the proper possession, custody and control of the Commonwealth.

The Crown may recover moneys paid out of Consolidated Revenue without statutory authority. See Auckland Harbour Board v R [1924] AC 318 at 327; Commonwealth v Burns [1971] VR 825 at 827; Attorney-General (NSW) v Gray [1977] 1 NSWLR 406 at 409, 412; Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213 at 229–30; Commonwealth v Hamilton [1992] 2 Qd R 257 at 263; Jessup v Queensland Housing Commission [2002] 2 Qd R 270 at [17]; [2001] QCA 312; Mason, Carter and Tolhurst, 2008, pp 807–14; Commonwealth v Davis Samuel Pty Ltd (No 7) (2013) 282 FLR 1; [2013] ACTSC 146 at [1728]–[1730], [1753]–[1755]. [page 384] In Victoria v Commonwealth and Hayden (1975) 134 CLR 338; 7 ALR 277 Mason J pointed out that appropriation laws authorise the Crown to withdraw moneys from the Treasury, but limit its expenditure to a ‘particular purpose’: at 392. Appropriation legislation may be either annual or special (operating for a period beyond the financial year). Certain special appropriations are contained in the Constitution itself (for example, the salary of the GovernorGeneral: s 3). Others are provided for in the Acts of Parliament establishing salaries (for example, the salaries of federal judges and Ministers). 635 The major appropriations (that is, for the public service and social services) are made annually in the budget session of Parliament. The Charter of Budget Honesty sets down a framework for the budgetary process. However, the Charter does not ‘create[] rights or duties that are enforceable in judicial or other proceedings’. See Charter of Budget Honesty Act 1998 (Cth) s 3(2). The Charter provides that the Treasurer must table a fiscal strategy statement when handing down each Budget: Sch cl 6(2). The government’s fiscal performance may be assessed against the fiscal strategy statement: Sch cl 11. The Treasurer must also table a Budget economic and fiscal outlook report

with each Budget: Sch cl 10. The Treasurer must table a final Budget outcome report within three months of the end of each financial year: Sch cl 18(1). Every five years the Treasurer must table an intergenerational report: s 20(1). That report must examine the sustainability of government fiscal policies over the next 40 years: Sch cl 21. The Charter also makes provision for statements with budgetary implications during election campaigns. During the campaign the public service is to release a pre-election economic and fiscal outlook report: Sch cl 22. The government’s announced policies may be costed by the public service: Sch cl 29(1)(a). If the Prime Minister approves, the Opposition’s announced policies may also be costed by the public service: Sch cll 29(1)(b), 29(4). In Combet v Commonwealth (2005) 224 CLR 494; 221 ALR 621; [2005] HCA 61 the Commonwealth government sought to use public funds for an advertising campaign promoting its proposed amendments to industrial relations law: at [1]. The issue was whether the relevant Appropriation Act had actually authorised the advertising expenditure: at [112], [188]. The court thus resolved the issue as a matter of statutory interpretation: at [1], [43], [168], [188]. Nonetheless, along the way the Justices made many observations about the constitutional scheme for appropriations. Gummow, Hayne, Callinan and Heydon JJ stated that it is for Parliament to determine the specificity with which the purposes of an appropriation is described. While the Parliament is the guardian of the Commonwealth’s finances, the legislature determines how it fulfills that role, within constitutional limits: at [160]. Gleeson CJ pointed out that in recent years parliamentary appropriations had changed from being expressed in terms of outputs (goods and services provided by the state) to outcomes (the objectives of government activity): at [6]. Outcomes are expressed in very general terms and often have a political content: at [6], [12]. He stated that a ‘judge’s intuition may be an insecure foundation for a denial of any rational connection between an output and an outcome’: at [12]. It was for Parliament to determine the generality or specificity with which the purposes of an appropriation are expressed (at [5]), though an appropriation may not be so general as to be meaningless: at [27]. A

widely expressed appropriation must be applied broadly: at [27]. For a discussion of this case, see Ziegert (2006) 38 Syd LR 387. Under s 56 of the Constitution no Bill appropriating revenue can be passed unless the purpose of the appropriation has been recommended by the Governor-General (that is, by Cabinet). Consequently, the executive has full control over the introduction of appropriation [page 385] legislation. See Combet v Commonwealth (2005) 224 CLR 494; 221 ALR 621; [2005] HCA 61 at [143], [227]. The effect of the second paragraph of s 83 was exhausted in the early period of Federation. The Constitutional Commission recommended the repeal of this paragraph. See Constitutional Commission, 1988, Vol 2, pp 831, 834 Several provisions of Commonwealth laws seek to avoid an unintentional breach of s 83 by a payment of money from the Treasury without statutory appropriation. See Weight, 2013, p 7. Those provisions state that if the Commonwealth does not have power under the Act to make a payment, the Commonwealth may make the payment, but the payment is a debt to the Commonwealth that may be recovered. See Social Security Act 1991 s 1061PAAA; Judges’ Pensions Act 1968 s 20A; Remuneration Tribunal Act 1973 (Cth) s 16A.

TRANSFER OF OFFICERS 636 Section 84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth. Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the

Commonwealth were a continuation of his 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.

See Quick and Garran, 1901, pp 815–19 (Revised ed, 2015, pp 988–92); Attorney-General’s Department, 1980, pp 288–92; Brazil and Mitchell, 1988, pp 365–6, 379–81, 508–9 (nos 860, 871, 954); Constitutional Commission, 1988, Vol 1, pp 357–64; Lane, 1997, pp 651–3. 637 The purpose of this section was to provide for the continuance of certain rights of officers of the various State public services who were retained by the Commonwealth when their departments were transferred to the Commonwealth under s 69 of the Constitution. If an officer was not retained and did not receive a similar appointment in another State department, then he or she was entitled to receive a pension or other compensation payable under the State law on the abolition of the office. [page 386] The transfer of State officers pursuant to this section is compulsory rather than an exercise of choice by individual State public servants. See Community and Public Sector Union v Commonwealth (1995) 69 ALJR 667 at 668. The final paragraph of s 84 relates to State officers who, by arrangement between the State and the Commonwealth, transferred to the Commonwealth public service. The rights of such officers were to be the same as those who were members of transferred departments. 638 There is some slight doubt as to whether s 84 applies to departments transferred to the Commonwealth otherwise than under s 69. In Trower v Commonwealth (1923) 32 CLR 585 at 589 Isaacs J said that s 84 applied to ‘the

transfer of Departments, which are by the Constitution destined to be transferred to the Commonwealth as soon as they conveniently can be’. In Cosway v Commonwealth (1942) 65 CLR 628 the plaintiff had worked in dockyards under the control of the Victorian government. He subsequently resigned to join the Commonwealth public service when the Commonwealth acquired the dockyards by purchase from the State. McTiernan J referred to the dictum of Isaacs J without comment. He went on to say that s 84 did not apply, as the dockyard was not a department of the public service which had been transferred, but was ‘an aggregation of State property which passed to the Commonwealth by purchase’: at 637. The view of Isaacs J seems sound. If any department of the public service of a State is transferred to the Commonwealth, it is a matter for arrangement between the Commonwealth and the States as to the protection of the rights of existing officers. No doubt the minimum conditions recognised by s 84 would be observed, but they would not apply as a matter of constitutional obligation. The Constitutional Commission recommended the repeal of s 84. See Constitutional Commission, 1988, Vol 1, p 357.

TRANSFER OF PROPERTY OF STATE 639 Section 85. When any department of the public service of a State is transferred to the Commonwealth — (i)

(ii)

(iii)

(iv)

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

See Quick and Garran, 1901, pp 819–22 (Revised ed, 2015, pp 992–7); SG Opinion No 1816 of 28 July 1947; Attorney-General’s Department, 1980, pp 292–4; Brazil and Mitchell, [page 387] 1981, pp 549–50 (no 420); Constitutional Commission, 1988, Vol 1, pp 357– 64; Lane, 1997, pp 651–3; Evans (2001) 29 FL Rev 121 at 124, 131. 640 This section may be read in conjunction with the previous section, which applies to departments transferred under s 69. This section provides that, on the transfer of a department of the public service of a State, the property of the State used exclusively in connection with the department is vested in the Commonwealth, with the right to acquire other property used partially in connection with the department. There was a duty to compensate the State in the manner laid down, and the Commonwealth was obliged to assume current obligations of the State in respect of the transferred department. In Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155; 119 ALR 577 Mason CJ stated that by making special provision for the payment of compensation, s 85 ‘stands outside’ s 51 (xxxi): at 170.

CUSTOMS, EXCISE AND BOUNTIES 641 Section 86. 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.

See Quick and Garran, 1901, pp 823–4 (Revised ed, 2015, pp 997–9); Attorney-General’s Department, 1980, p 294; Lane, 1997, p 655. 642 This section, read in conjunction with ss 69 and 90, gives full power to the Commonwealth over the collection and control of the revenue from customs and excise, and the disbursement of moneys in the form of bounties. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177

CLR 248; 109 ALR 1 Mason CJ, Dawson and McHugh JJ commented that s 86 ‘manifests the framers’ intention that the Commonwealth should be solely responsible for the control and collection of duties of customs and of excise, a manifestation of intention which is reinforced by ss 87, 89, 93 and 94’: at 262. Brennan, Deane and Toohey JJ stated (at 276): It would frustrate the manifest purpose of s 86 if, after uniform duties of customs were imposed, part of the functions of collecting and controlling duties of excise or controlling the payment of bounties were to pass from the Executive Government of the Commonwealth to the Executive of a territory government whose legislature might be empowered to impose its own duties of excise or to grant its own bounties on the production or export of goods.

In the text of the Constitution, ss 86 and 87 do not have headings. The headings given here are those used in the Attorney-General’s Department reprint of the Constitution. See Aitken and Orr, 2002, p 221 n 18. The Constitutional Commission recommended the repeal of s 86. See Constitutional Commission, 1988, Vol 2, p 845.

REVENUE FROM CUSTOMS AND EXCISE DUTIES 643 Section 87. 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. [page 388] 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.

See Quick and Garran, 1901, pp 824–9 (Revised ed, 2015, pp 999–1005); Bennett, 1971, pp 185–6; Attorney-General’s Department, 1980, pp 294–5; Lane, 1997, p 655. 644 This section is known as the Braddon Clause. It was named after Sir Edward Braddon, the Premier of Tasmania at the time of the Second Convention, who moved its adoption (in its original form). See Quick and Garran, 1901, p 825 (Revised ed, 2015, p 1000); La Nauze, 1972, pp 213–14. The purpose of this section was to ensure a guaranteed return of the major

source of governmental revenue of the time (customs and excise duties) to the States, or towards the payment of State debts if these were taken over by the Commonwealth. In its initial form, no time limit was imposed upon the operation of the clause. However, New South Wales was firmly opposed to any fixed arrangement which might operate in perpetuity to the detriment of its interests. The opponents of the clause called it the Braddon Blot. See Irving, 1999, pp 76, 212, 339. At the last moment, a compromise was reached by the Premiers of the colonies. This compromise included the time limit of 10 years, with future arrangements to be left in the hands of the federal Parliament. See Quick and Garran, 1901, p 825 (Revised ed, 2015, p 1001); La Nauze, 1972, pp 245–6. When the time limit expired in 1910, it became clear that the Commonwealth was not prepared to continue the arrangement. The Commonwealth Parliament enacted a law providing that s 87 would cease to have effect from 31 December 1910. See Surplus Revenue Act 1910 (Cth) s 3. Instead, a State grants scheme of 25 shillings per head of population per annum was instituted. This scheme continued until the Financial Agreement of 1927, when the grants to the States were replaced by Commonwealth contributions to the interest payable by the States upon their debts. See Hannan in Else-Mitchell, 1961, p 254. In the text of the Constitution, ss 86 and 87 do not have headings. The headings given here are those used in the Attorney-General’s Department reprint of the Constitution. See Aitken and Orr, 2002, p 221 n 18. The Constitutional Commission recommended the repeal of s 87. See Constitutional Commission, 1988, Vol 2, p 845.

UNIFORM DUTIES OF CUSTOMS 645 Section 88. Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth.

See Quick and Garran, 1901, pp 829–30 (Revised ed, 2015, pp 1005–7);

Zines, 1977, pp 214–15; Attorney-General’s Department, 1980, p 295; Lane, 1997, p 655. 646 In order to allow sufficient time for the phasing out of colonial duties and for arriving at a decision on the first uniform tariff, a period of up to two years was allowed by the founders for the framing of the tariff. Uniform duties of customs were imposed on 8 October 1901. See Attorney-General’s Department, 1980, p 295. [page 389]

PAYMENT TO STATES BEFORE UNIFORM DUTIES 647 (i)

Section 89. Until the imposition of uniform duties of customs — 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)

(iii)

The proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth. The Commonwealth shall pay to each State month by month the balance (if any) in favour of the State.

See Quick and Garran, 1901, pp 831–5 (Revised ed, 2015, pp 1007–12); Attorney-General’s Department, 1980, pp 295–7; Lane, 1997, p 656. 648 This section is one of three provisions (ss 89, 93 and 94) ‘which provide for the distribution of the federal surplus among the States during three periods: (1) Before the uniform tariff; (2) During the transition period immediately following the imposition of the uniform tariff; [and] (3) After that period’. See Quick and Garran, 1901, p 832 (Revised ed, 2015, p 1009). In accordance with the overall scheme of providing for a distribution of surplus revenue to the States during these periods, this section deals with the

first period, that is, the two-year period before the imposition of the uniform tariff. The control of customs had passed to the Commonwealth immediately on Federation, but until the imposition of the uniform tariff, duties were to be collected on interstate trade under the tariff in force in the particular State. This section provided for a bookkeeping procedure. The States were credited with the revenue collected within their respective boundaries. The States were debited for Commonwealth expenditure for the maintenance of the transferred departments and general Commonwealth expenditure in each State (calculated on a per capita basis). Any surplus was to be paid to the State in monthly instalments. The Constitutional Commission recommended the repeal of s 89. See Constitutional Commission, 1988, Vol 2, p 845.

EXCLUSIVE POWER OVER CUSTOMS, EXCISE AND BOUNTIES 649 Section 90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully [page 390] 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.

See Quick and Garran, 1901, pp 835–40 (Revised ed, 2015, pp 1012–19); Constitutional Commission, 1988, Vol 2, pp 820–9; Coper, 1988, pp 208–25; Dixon (1993) 21 FL Rev 228; McLeod (1994) 22 FL Rev 476; Gibbs (1995) 5 Upholding the Australian Constitution 121; Cass in Coper and Williams, Lionel Murphy, 1997, pp 19–49; Lane, 1997, pp 657–88; Halliday (1998) 20 Syd LR 158; Williams (1999) 21 Syd LR 627; McGrath, 2003, pp 212–25; Puig and

Chaile (2010) 29 UQLJ 319; Ratnapala and Crowe, 2012, pp 343–7; Hanks, Gordon and Hill, 2012, pp 333–50; Pyke, 2013, pp 334–47; Guy, 2013, pp 496–510; Keyzer, 2013, pp 158–64; Clarke, Keyzer and Stellios, 2013, pp 601–51; Gerangelos et al, 2013, pp 827–77; Joseph and Castan, 2014, pp 335– 61; Williams, Brennan and Lynch, 2014, pp 1027–50. 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.

650 Section 90 prohibits the States from levying customs duties and excise duties. A customs duty is a tax imposed upon goods imported into, or exported out of, Australia. An excise duty is a tax which is imposed on goods which are already in circulation within Australia. By virtue of s 90, only the federal Parliament can impose these kind of taxes. But the power depends upon the imposition of uniform duties of customs. Section 88 of the Constitution required the imposition of uniform duties of customs within two years after the establishment of the Commonwealth. Uniform duties of customs were imposed by the federal Parliament on 8 October 1901. See Attorney-General’s Department, 1980, p 295. The imposition of uniform duties of customs was made for the purposes of: (a) making exclusive the power of the Commonwealth Parliament to impose duties of customs and excise and to grant bounties on the production or export of goods; (b) terminating the effect of State laws concerning those matters; and (c) bringing into operation s 92 of the Constitution. The power of the federal Parliament to impose duties of customs and excise is derived from the taxation power: s 51(ii). The duties must be uniform: s 88. The power to make laws with respect to bounties is contained in s 51(iii). Such bounties must be uniform throughout the Commonwealth. Section 69 of the Constitution provided for the departments of customs and of excise in each State to be transferred to the Commonwealth upon its establishment. Section 52(ii) gives the Commonwealth Parliament exclusive power to make laws with respect to any matters relating to such departments.

As customs and excise duties can only be imposed by the federal Parliament, s 90 cases sometimes involve a claim by the Commonwealth that a State has unconstitutionally imposed excise duties. However, most s 90 cases involve claims by individuals that a State has unconstitutionally imposed an excise duty. 651 In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248; 109 ALR 1 the High Court held by a 4–3 majority that s 122 does not authorise the creation [page 391] of a Territory legislature with the power to impose duties of customs and excise. Thus s 90 prohibits the imposition of such duties by the Territories as well by the States: at 279, 290. Section 90 assigns to the federal Parliament the exclusive legislative power to impose duties of customs and excise and to grant bounties. Brennan, Deane and Toohey JJ stated (at 279): If s 122 authorized the creation of a legislature for an internal territory with the powers referred to in s 90, it would be a Trojan horse available to destroy a central objective of the federal compact and to defeat the express requirements of s 51(iii). Therefore, s 122 should not be construed as authorizing the Parliament to create a new legislature for an internal territory with power to make laws that might impose duties of customs or excise or to grant bounties on the production or export of goods.

The minority (Mason CJ, Dawson and McHugh JJ) considered that a Territory could impose a duty of excise if acting as a delegate of the Commonwealth. The imposition of excise duties by a Territory legislature, under a grant of legislative power by the federal Parliament, was not prohibited by s 90 ‘because the territory legislature, in imposing such duties, would be exercising legislative power which is referable to, derived from and part of the power of the Parliament which is made exclusive by s 90’: at 263.

DEFINITION OF ‘EXCISE DUTY’ 652 There is no difficulty concerning the meaning of the term ‘duties of customs’. They are duties levied upon the importation or exportation of

commodities into and out of the Commonwealth. See Commonwealth Oil Refineries Ltd v South Australia (1926) 38 CLR 408 at 438; Ha v New South Wales (1997) 189 CLR 465 at 499, 512; 146 ALR 355. However, the interpretation of the expression ‘duties of excise’ has given rise to much litigation. As s 90 neither defines nor describes a duty of excise, judicial decisions have elucidated the meaning of that expression. The cases provide for a liberal, expansive interpretation of the phrase ‘duties of excise’, thereby increasing the taxation powers of the federal Parliament and decreasing those of the States. The starting point is the decision in Peterswald v Bartley (1904) 1 CLR 497. The question was whether a State licence fee for carrying on the business of a brewer was a duty of excise. In English revenue legislation, the term was used to cover such imposts. However, it was held that the words had a more restricted meaning in the Constitution. Griffith CJ stated (at 509): Bearing in mind that … when used in the Constitution it is used in connection with the words “on goods produced or manufactured in the States”, the conclusion is almost inevitable that, whenever it is used, 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 tax or personal tax.

This definition was applied in Commonwealth Oil Refineries Ltd v South Australia (1926) 38 CLR 408. The court invalidated a State tax of threepence per gallon on petrol sold and delivered in the State, to persons within that State, for the first time after entry into the State, or on production or refining in the State. Higgins and Starke JJ considered that so far as the legislation imposed a burden upon imported goods, it amounted to a customs duty. So far as it imposed a burden upon domestically produced goods, it was a duty of excise: at 431, 437. In John Fairfax and Sons Ltd v New South Wales (1926) 39 CLR 139 a tax of one halfpenny upon each copy of a newspaper issued for sale and actually sold in the State was held to be an excise duty: at 142–3, 146–7. In AttorneyGeneral (NSW) v Homebush Flour Mills Ltd (1937) 56 CLR 390 a tax paid in respect of flour produced or manufactured in the State was also held to be a duty of excise: at 402, 406, 408, 414, 417, 421.

[page 392] 653 In Peterswald v Bartley (1904) 1 CLR 497 Griffith CJ defined an excise duty as: (a) a tax; (b) which is indirect in nature; and (c) which is imposed upon goods while they are still in the hands of the manufacturer or producer: at 509. In Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 it was stated that 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’: at 276. The court has continued to apply this definition of a tax. See Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 at [36], [38], [56]. In Harper v Minister for Sea Fisheries (1989) 168 CLR 314; 88 ALR 38 State regulations prohibited the taking of abalone in ‘State fishing waters’ without a licence and payment of a licence fee. The court held that there was no tax and thus no excise duty. Mason CJ, Deane and Gaudron JJ considered that the ‘commercial licence fee is properly to be seen as the price exacted by the public, through its laws, for the appropriation of a limited public natural resource to the commercial exploitation of those who, by their own choice, acquire or retain commercial licences’: at 325. They stated that ‘the fee is the quid pro quo for the property which may lawfully be taken pursuant to the statutory right or privilege which a commercial licence confers upon its holder’: at 325. Brennan J similarly held that a ‘fee paid to obtain such a privilege is analogous to the price of a profit prendre; it is a charge for the acquisition of a right akin to property. Such a fee may be distinguished from a fee exacted for a licence merely to do some act which is otherwise prohibited (for example, a fee for a licence to sell liquor) where there is no resource to which a right of access is obtained by payment of the fee’: at 335. Brennan J also considered that the fee was not a tax because it was proportionate to the value of the goods: at 335–6.

In Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530; 281 ALR 671; [2011] HCA 40 the ACT water corporation was owned by the Territory government: at [12]. The water corporation was subject to a water licence fee and an infrastructure charge imposed by the Territory government: at [13], [16]. The court held that these charges were not duties of excise because they were not taxes, but were internal financial arrangements of the Territory government. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that a tax is extracted from the governed. The ‘internal financial arrangements of the government’ do not constitute a tax: at [19]. The water corporation was subject to the control of the Territory executive and was ‘closely identified’ with the Territory government: at [20], [37]. The water corporation was ‘indistinct’ from the Territory government: at [20], [22]. Heydon J similarly held that the charges were ‘a matter of bookkeeping internal to the’ Territory government: at [59]. The water corporation had no independent will: at [53], [57]. 654 An indirect tax is a tax which, although it has to be paid by an actual taxpayer, could in fact be passed on by that taxpayer to a third party, for example, a customer. Usually, the tax payable will be incorporated into the price to be paid by the customer. However, in Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 Menzies J suggested that ‘a duty upon the production of goods for the producer’s own use or consumption would be an excise duty’: at 583. He thereby suggested that even in circumstances where the duty cannot be passed on (because the manufacturer consumes their own product) the tax is still an excise duty. Nevertheless, if a tax appears on its face to be indirect ‘it will generally be because it is a tax upon goods rather than a tax upon persons’. See Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117 at 129. [page 393] The definition of excise duty adopted in Peterswald v Bartley (1904) 1 CLR 497 was extended in Matthews v Chicory Marketing Board (1938) 60 CLR 263. In that case a levy imposed in respect of areas planted with chicory (as opposed to the chicory itself) was held to be a duty of excise. Rich and Starke JJ

considered that the tax was in respect of the production of chicory: at 281, 286. Dixon J agreed that it was a tax upon production. However, he considered that excise duties were not restricted to ‘duties calculated directly on the quantity or value of the goods’, or duties on ‘goods of domestic manufacture or production’: at 292, 299, 302–3. 655 The question whether a duty imposed in relation to the sale or distribution of goods, as distinct from their production or manufacture, was a duty of excise came before the court in Parton v Milk Board (Vic) (1949) 80 CLR 229. Rich and Williams JJ accepted that, to be a duty of excise, a levy ‘must be imposed so as to be a method of taxing the production or manufacture of goods’. However, they considered that ‘the production or manufacture of an article will be taxed whenever a tax is imposed in respect of some dealing with the article by way of sale or distribution at any stage of its existence, provided that it is expected and intended that the taxpayer will not bear the ultimate incidence of the tax himself but will indemnify himself by passing it on to the purchaser or consumer’: at 252. Dixon J stated (at 259–60): Only if the conception of what is an excise is limited by the condition that the tax must be levied on the manufacturer, that is to say upon the goods while they are still in his hands, can I see any escape from the conclusion that the levy of the contribution is an excise … 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.

Therefore, sales taxes were categorised as duties of excise. In dissent, Latham CJ and McTiernan J reaffirmed their view that only a tax upon the production or manufacture of goods was a duty of excise. A tax imposed upon the producer of goods when they sold the goods would be a tax upon production. A tax imposed after the producer had sold the goods was a tax upon sale rather than production: at 245–6, 267. 656 In Bolton v Madsen (1963) 110 CLR 264 the court unanimously redefined the concept of a duty of excise. In developing what is known as the ‘criterion of liability’ test, the court stated (at 271): It is now established that for constitutional purposes duties of excise are taxes directly related to goods imposed at some step in their production or distribution before they reach the hands of consumers … The tax is a duty of excise only when it is imposed directly upon goods or, to put

the same thing in another way, when it directly affects goods, and to establish no more than that its imposition has increased the cost of putting goods upon the market by a calculable amount falls short of establishing the directness of relation between the tax and the goods that is the essential characteristic of a duty of excise.

Following the Parton (1949) 80 CLR 229 and Bolton decisions, a tax was a duty of excise if it operated upon the taking of a step in the process of producing, manufacturing or distributing goods before they reached the consumer. In Dickenson’s Arcade v Tasmania (1974) 130 CLR 177; 2 ALR 460 all members of the High Court except McTiernan J accepted that a tax upon consumption (that is, a tax imposed upon goods after they had passed into the hands of a consumer) was not an excise: at 185, 209, 221, 231, 239. [page 394]

Marketing levies 657 It is important to distinguish between marketing levies and excise duties. Marketing levies can be constitutionally imposed by the States, whereas the imposition of excise duties comes within the exclusive power of the federal Parliament. Although they are compulsory exactions of money by a public authority, marketing levies are not exactions for public purposes. Parton v Milk Board (Vic) (1949) 80 CLR 229 concerned a State law that established a Milk Board. The Board promoted milk consumption, licensed dairies, fixed milk prices and decided upon compensation for the cancellation of licences. The legislation provided for the imposition of a milk levy. These levies were used to defray the costs of the operations of the Board. The milk levy was one-tenth of a penny per gallon of milk sold or distributed. The fee payable was thus closely linked to the quantity of milk sold. Dixon J remarked that the Board did not perform any ‘particular service for the dairyman or the owner of a milk depot for which his contribution may be considered as a fee or recompense’: at 258. The fee was an excise duty and not payment for services provided to dairy farmers. In Harper v Victoria (1966) 114 CLR 361 the court held that the fee was a marketing levy. The fee was closely related to the expenditure necessarily

incurred by the Egg and Egg Pulp Marketing Board in the provision of its services. As the fee was associated with services (as opposed to goods), it could be imposed by the Victorian legislature: at 377–8, 382. The fact that the levy went into a special purposes fund to be used for the purposes of reimbursing the Board, was a further (inconclusive) indication that it was not a tax, but a marketing levy: at 377.

Licence fees 658 A licence fee is often exacted by a State as a condition of carrying on a business in the State. The problem is that a licence fee may, in reality, be a disguised excise duty. As a rule of thumb, there will be a problem if the fee is calculated by reference to goods. In Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117 the court held that the imposition of license fees in relation to the carriage of goods was not a tax ‘upon’ goods, or ‘in respect of’ goods, or ‘in relation to’ goods. It was a fee payable for the right to carry goods and hence was not a duty of excise: at 129–30. In Bolton v Madsen (1963) 110 CLR 264 the court decided that a permit fee, the amount of which depended on the ‘carrying capacity’ of the relevant vehicle over the distance carried, was a valid licence fee not an excise duty: at 271, 273.

Backdating devices 659 A backdating device involves the imposition of a so-called licence fee, the amount of which is determined by the total amount of goods sold, purchased, manufactured or produced during a previous period ending before the date of the application for a licence. In Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 there was a sharp divergence of views regarding the validity of backdating devices. A Victorian Act imposed a charge of six per cent on the wholesale selling price of liquor as a condition for the grant of a victualler’s licence: at 539. For a temporary licence, the charge was one pound for each day the licence was in force, in addition to the six per cent charge: at 548. The central issue was whether the

tax imposed was ‘upon’ the goods, or whether it was a licence fee payable as a condition of the right to carry on a business. [page 395] Fullagar, Kitto and Taylor JJ held that the levies in respect of the victualler’s and temporary licences were not duties of excise: at 558, 564, 568–9, 576–8. Dixon CJ, McTiernan and Windeyer JJ held that the levies imposed an excise duty: at 539, 550, 608. Menzies J held that an excise duty was not imposed in respect of the victualler’s licence, but an excise duty was levied in respect of the temporary licence: at 591. The Justices who held that the charges amounted to an excise duty emphasised that it was a tax directly affecting the goods: at 539–40. The tax would be recovered by the payer in the price charged for the goods: at 540, 549. It was not necessary for the tax to be imposed upon the production of the goods to qualify as a duty of excise: at 549. 660 The views of those who decided that no excise duty had been imposed were more varied. Fullagar J emphasised that the fee did not fall upon a producer or manufacturer: at 558. Kitto and Taylor JJ held that the fees were imposed not upon goods but upon licences. They were imposed in respect of the acquisition of a right to engage in a business, and not by reference to the liquor sold during the currency of the licence: at 564, 568–9, 576–7. Menzies J agreed that the victualler’s licence fee was a tax upon a person as the price for their franchise to carry on a business, and hence was not a duty of excise. However, he considered that the temporary licence fee was a tax upon each purchase of liquor for sale under the licence and was thus a duty of excise: at 591. In the case of the victualler’s (permanent) licence, the amount payable was calculated by reference to sales during a period ending before the date of the application for the grant or renewal of the licence: at 545. In the case of the temporary licence, the fee was calculated by reference to sales of liquor during the period for which the licence was granted: at 580. Menzies J considered that this difference indicated that the victualler’s licence did not impose the fee

upon the goods, whereas the temporary licence imposed the fee upon the goods: at 591. Menzies J thus considered that a backdating device was compatible with s 90 when it successfully dissociated the tax from the goods. 661 In Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177; 2 ALR 460 a State Act provided for the exaction of a licence fee which was payable by retail tobacconists. The Act also imposed a tax which it described as being upon the consumption of tobacco. The court upheld the validity of the licence fee on the basis of the Dennis Hotels holding in relation to the victualler’s licence. Gibbs and Stephen JJ held that the tax was a consumption tax not an excise, as it was a tax upon consumption rather than upon the last retail sale: at 213–28, 228–37. Barwick CJ considered that the Act imposed a tax on the movement of the tobacco into consumption, and was therefore beyond the State’s legislative power: at 188–91, 194–5. Mason J held that the tax was a ‘levy on the sale of goods calculated by reference to their value and imposed before they passed into the hands of the consumer’ and ‘the amount of the tax [was] paid by the ultimate purchaser’: at 243. However, this holding followed from the ‘scheme contained in the regulations for the collection and payment of the tax’, but not from the Act itself. The regulations were invalid, though the Act was not: at 243. Mason J also drew an important distinction between backdating devices associated with distribution of goods and those associated with manufacturing or production. He suggested that while the former were valid under the Dennis Hotels precedent, the latter were not: at 240, 243–4. 662 Mason J’s distinction was considered in M G Kailis Pty Ltd v Western Australia (1974) 130 CLR 245; 2 ALR 513. Fees payable for a processor’s licence were assessed upon purchases of fish for processing at the plant during a period previous to that covered by the licence: at 248. The fees were not assessed on current purchases of fish for processing. McTiernan, Menzies and Mason JJ held that the tax was an excise since it was imposed upon the processing [page 396]

of fish caught or purchased for processing but was not the price of a licence to carry on a business: at 250, 254, 265–6. Menzies J held that the licence fee was calculated by reference to the quantity of material processed during the period for which the licence was held: at 254. Mason J considered that the decisive difference between this case and Dennis Hotels was that here the fee was payable in respect of the processing of fish, and so in respect of manufacture and production: at 265–6. By contrast, in Dennis Hotels the fee was payable in respect of a retail sale. He was not willing to extend the Dennis Hotels reasoning to backdating devices associated with manufacturing or production: at 265. This reasoning was followed in Gosford Meats Pty Ltd v New South Wales (1985) 155 CLR 368; 57 ALR 417. A 4–3 majority held that a licence fee imposed upon abattoir operators was a duty of excise: at 385–6, 389, 410. The fee was calculated according to the number of animals slaughtered (that is, meat produced) in a previous period: at 382, 405. The Dennis Hotels principle was confined to licence fees based upon past sales and did not apply to production charges: at 384–5, 407–9. 663 However, the High Court continued to follow the decision in Dennis Hotels. Section 90 was not infringed by a licence fee upon distribution, calculated by reference to the value of the product sold during a period preceding that for which the licence was granted. In H C Sleigh Ltd v South Australia (1977) 136 CLR 475; 12 ALR 449 it was held that a fee for a licence to carry on a business of selling petroleum products was a licence fee and not a duty of excise: at 488, 491–2, 496, 503, 527. In Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311; 52 ALR 401 the court decided that it would not reconsider the Dennis Hotels decision: at 316. 664 In Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399; 87 ALR 193 a holder of a group wholesale tobacco merchant’s licence challenged the validity of licence fees imposed upon them by a Victorian law: at 418. The fee payable for a group wholesale tobacco merchant’s licence was $50 and 30 per cent of the value of the tobacco sold in Victoria ‘in the relevant period’: at 423. This period was the preceding month,

but one, before the month for which a licence was issued. The licence was renewable every month: at 418, 442. The court held that the fee did not constitute an excise duty. Mason CJ and Deane J reaffirmed the continuing validity of the Dennis Hotels principle (at 440): The preferable approach is to accept Dennis Hotels and Dickenson’s Arcade as authority for the proposition that, in the special fields of licences to sell alcohol and tobacco, a licence fee which would otherwise be regarded as a duty of excise will not be so regarded if it can properly be characterized as a fee for carrying on business and if it is calculated by reference to sales made during a period other than the period of the licence.

They refused to overrule Dennis Hotels because ‘of the need to ensure certainty in the area of State business franchise fees relating to alcohol’: at 440. They went on to say that ‘Tobacco and tobacco products have like characteristics which invite regulatory control and that control is appropriate to sale and distribution of the commodities’: at 440. 665 In Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561; 118 ALR 1 Territory legislation required persons who wholesaled or retailed ‘X’ videos to hold a licence. Licences were month-tomonth licences. After an initial period, the licence fees amounted to 40 per cent of the wholesale value of the videos supplied in the months which occurred two months before the licence period: at 594. [page 397] In a 4–3 judgment, the court held that the Dennis Hotels and Dickenson’s Arcade decisions should not be overruled. The majority (Mason CJ, Brennan, Deane and McHugh JJ) provided two reasons in support of its conclusion (at 591–2): For one thing, there are some grounds for treating tobacco and alcohol products as constituting a special category of goods for the purpose of considering whether what purports to be a licensing fee under a regulatory regime should be characterised as a duty of excise. For another, there are very strong practical reasons why the rule of stare decisis should be observed in relation to those decisions. Not only was the authority of Dennis Hotels acknowledged in Bolton v Madsen, but also that decision was itself followed in the unanimous decision in Anderson’s Pty Ltd v Victoria [(1964) 111 CLR 353]. Later, in Dickenson’s Arcade, the court refused to depart from Dennis Hotels and, subsequently, in H C Sleigh, the court followed and applied the two earlier decisions.

Nevertheless, the majority held that the taxes constituted duties of excise. The Act did not create a regulatory scheme designed to protect the public: at 596. Instead, the fee was an exaction upon a step in the process of distribution. Although the licence fee was calculated by reference to sales made in a past period, that period was no more than two months earlier than the licence period which, itself, was of one month’s duration: at 597. The proximity of the prior period to the period of the licence was 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’: at 597. The majority also stated that the criterion of liability test had ceased to be ‘the exclusive determinant of the question whether an exaction is an excise’ but, instead, ‘in determining whether an exaction is or is not an excise, the court has regard to matters of substance rather than form’: at 583. The court explained its new approach (at 583): That approach, which looks to the practical or substantial operation of the statute as well as to its legal operation, requires that a variety of factors be taken into account. The rejection of the criterion of liability as an exclusive test has not disturbed general acceptance of the proposition that a tax in respect of goods at any step in the production or distribution to the point of consumption is an excise.

In dissent, Toohey and Gaudron JJ considered that s 90 invalidated State laws that discriminated against goods that were manufactured or produced in Australia: at 631. The fee in question did not constitute a duty of excise because the tax applied to local and interstate products: at 631–2. Dawson J also dissented. He thought that the Act did not impose an excise duty, which was a tax on production or manufacture: at 617. 666 In Ha v New South Wales (1997) 189 CLR 465; 146 ALR 355 a State law imposed a licence fee upon the sale of tobacco and another fee calculated upon the value of tobacco sold in a period preceding the licence period: at 485–6. The second fee was 75 or 100 percent of the value of tobacco sold during the preceding period: at 467, 502. By a 4–3 majority the court held that these fees were duties of excise. The majority (Brennan CJ, McHugh, Gummow and Kirby JJ) noted that it had long been established that ‘an inland tax on a step in production, manufacture, sale or distribution of goods’ is a duty of excise: at 490. In

considering whether a constitutional limitation has been infringed, the court examines the practical operation of the law as well as its text, so that the limitation is not evaded by a drafting device: at 498. Many factors pointed to the nature of these fees as duties of excise. The percentage amount levied by the State law went far beyond a mere licence fee: at 502–3. The State law contained few provisions which might be regarded as part of a regulatory scheme: at 502. [page 398] The ‘licence fee’ was a ‘revenue-raising tax’, and the licensing system was merely an addition to a taxing statute: at 502. Licence fees remain permissible, so long as they may be characterised as true licence fees: at 503. The court did not overrule Dennis Hotels and Dickenson’s Arcade. Those decisions remain authoritative so far as the imposts considered therein are concerned: at 504. Alcohol and tobacco are not to be treated differently from other commodities under s 90: at 500–1, 504. The minority (Dawson, Toohey and Gaudron JJ) were prepared to uphold the State licence fees at issue. They argued that the term ‘excise’ has a restrictive meaning: at 505. The text of s 93 clearly indicates that an excise is a duty upon goods produced or manufactured in a State: at 506. An excise is a duty upon production or manufacture, not upon subsequent activities in the course of distribution: at 507. An excise duty is a ‘State tax which [falls] selectively upon goods manufactured or produced in that State’: at 512. The character of a State tax is determined as a matter of substance not form: at 514.

Tax on goods 667 Griffith CJ’s insistence in Peterswald v Bartley (1904) 1 CLR 497 that an excise duty is a ‘duty … upon goods either in relation to quantity or value when produced or manufactured’ (at 509) has been substantially relaxed in a number of cases. In Western Australia v Hamersley Iron Pty Ltd (No 1) (1969) 120 CLR 42 a

State Act required a person who had supplied goods in the State to issue an acknowledgment to be duly stamped as if it were a receipt for any payment for such goods made outside the State: at 49. Barwick CJ, Windeyer and Owen JJ held that it imposed a duty of excise: at 56, 68, 71. Owen J stated that ‘[t]o impose a tax upon the receipt of the price for which a commodity is sold by its producer is, in my opinion, to tax a dealing with the commodity and such a tax is in reality a sales tax notwithstanding the fact that it takes the form of a duty upon an instrument which the recipient of the price of the commodity is required to bring into existence’: at 71. A similar result was reached in Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1. Barwick CJ, Menzies, Windeyer and Owen JJ confirmed that a State stamp duty law may infringe s 90 even if the law had not selected a dealing in goods as its criterion of liability: at 17, 25, 29, 30–1. Barwick CJ stressed that the relevant statutes, in effect, involved the taxing of a dealing in goods (at 17): … to tax the receipt of the purchase price … of the sale of goods is to tax a step in the movement of goods into consumption. It is … a tax upon the transaction of sale itself and … is clearly of the essential nature of a duty of excise. The relationship of the tax to the goods within the intention and operation of the Act is sufficient … to satisfy any of the formulae which have been used in an endeavour to find a definition of an excise duty.

668 The court also relaxed the link between ‘tax’ and ‘goods’ in Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599; 47 ALR 641. A 4–3 majority held that a pipeline operation fee was a duty of excise. The fee was $10,000,000 in the case of a trunk pipeline and $40 per km in the case of other pipelines: at 613. Mason J was critical of the ‘criterion of liability’ test adopted by some other Justices. He said (at 632): To justify the conclusion that the tax is upon or in respect of the goods it is enough that the tax is such that it enters into the cost of the goods and is therefore reflected in the prices at which the goods are subsequently sold. It is not necessary that there should be an arithmetical relationship between the tax and the quantity or value of the goods produced or sold …, still less that such a relationship should exist in a specific period during which the tax is imposed.

[page 399] Mason J considered that a ‘lump licence fee’ of the magnitude involved had

a practical effect upon the production of hydrocarbons: at 634. Gibbs CJ stated that ‘[t]he conclusion appears to me inescapable that a fee is not imposed because the hydrocarbons are carried; it is imposed as a condition of the right to carry them’: at 623. In Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59; 12 ALR 484 Mason J drew a distinction between impositions levied after the process of manufacture or production had been completed, and those levied when the goods are in the course of production. A direct relationship between the tax and the goods is more easily sustained when the imposition is levied when the goods are in the course of production: at 77. He considered that ‘[a] tax on the ownership of livestock is a tax on livestock and at least to the extent that it is a tax on livestock used for their product, that is, for the production of … commodities it is … a tax on production itself’ and therefore a duty of excise: at 78. As ‘the tax has a natural relation to the quantity or value of the commodity ultimately produced’, the relationship between the tax and the goods was as direct as that considered sufficient in the Matthews case: at 78. (See Matthews v Chicory Marketing Board (1938) 60 CLR 263). Barwick CJ agreed with Mason J: at 61. The Constitutional Commission recommended that the prohibition upon the imposition of excise duties by the States be repealed, so that the States would be permitted to impose excise duties. See Constitutional Commission, 1988, Vol 2, p 820. 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 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.

669 Uniform customs duties came into effect throughout Australia with the introduction of the first Commonwealth customs tariff on 8 October 1901. See Attorney-General’s Department, 1980, p 295. State legislation imposing duties of customs or of excise or offering bounties on the production or export of goods ceased to have effect. The Constitution Commission recommended that this paragraph be repealed as it is now ‘outmoded’. See Constitutional Commission, 1988, Vol 2, pp 820, 829.

EXCEPTIONS AS TO BOUNTIES 670 Section 91. 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.

See Quick and Garran, 1901, pp 840–3 (Revised ed, 2015, pp 1019–23); Lane, 1997, pp 688–9; Faulkner and Orr, 2013, p 116 (no 1398). 671 This section constitutes a qualification to the exclusive power conferred upon the Commonwealth Parliament by s 90 to grant bounties on the production or export of goods. [page 400] It operates in two different ways. In the first place, it enables a State, without approval of the Commonwealth, to grant bounties on the mining of metals (non-metallic minerals are therefore excluded). However, bounties may be granted on all goods (including non-metallic minerals) by a State with the approval of both Houses of the federal Parliament expressed by resolution. In Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120; 22 ALR 291, it was argued that s 91 was infringed by a Queensland Act which granted non-pecuniary benefits to companies engaged in the development of coal deposits in the State. The court held that s 91 was confined to pecuniary payments and did not extend to general developmental assistance provided by a State: at 126, 135, 140, 148, 159. Moreover, this section relaxed prohibitions found in other sections of the Constitution (for example s 90) and was not an independent restriction upon State legislative power: at 126, 134, 142–4. Section 91 is not a restriction upon Commonwealth legislative power. See Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 at [6], [143], [145], [232].

TRADE WITHIN THE COMMONWEALTH TO BE FREE 672 Section 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. 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.

See Quick and Garran, 1901, pp 844–60 (Revised ed, 2015, pp 1023–44); Lane (1988) 62 ALJ 604; Cullen (1989) 19 UWALR 90; Carney (1991) 3 Bond LR 149; Coper in Winterton and Lee, 1992, pp 129–47; Bell (1992) 20 FL Rev 240; Katz (1992) 3 Public LR 76; Sonter (1995) 69 ALJ 332; Lane, 1997, pp 690–738; Smith (1998) 72 ALJ 465; Puig (2001) 75 ALJ 639; Rose in Lee and Winterton, 2003, pp 335–54; McGrath, 2003, pp 229–46; Simpson (2005) 33 FL Rev 445; Puig (2008) 13, 1 Deakin LR 102; Puig, 2008; Kiefel (2011) 36 Mon ULR 1; Ratnapala and Crowe, 2012, pp 303–16; Hanks, Gordon and Hill, 2012, pp 438–53, 596–601; Gleeson (2013) 24 Public LR 97; Williams and Hume, 2013, pp 309–21; Pyke, 2013, pp 279–80, 349– 68; Guy, 2013, pp 390–400; Keyzer, 2013, pp 117–33; Clarke, Keyzer and Stellios, 2013, pp 1287–1354; Gerangelos et al, 2013, pp 783–826; Kiefel and Puig (2014) 3 Global J Comp L 34; Joseph and Castan, 2014, pp 393–423; Williams, Brennan and Lynch, 2014, pp 1195–1230; Gray (2014) 33 U Tas LR 317; Aroney, Gerangelos, Murray and Stellios, 2015, pp 310–38; Stellios, 2015, pp 165–98, 347–52; Gray (2016) 44 Aust Bus L Rev 35. 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.

[page 401]

673 The first paragraph of s 92 is deceptively simple. ‘The problem is that there is a mismatch between the simplicity of the language and the complexity of the problems to which it might apply. Simple language is not always plain if the issues it addresses are not simple’. See Gleeson, 2000, p 66. The rich jurisprudence concerning the immunity afforded by s 92 is ample testimony to the difficulty involved in giving some precise meaning to a provision which in reality expresses a slogan rather than a legal precept. Rich J once pithily described the task of the court in relation to s 92 as being ‘to explain the elliptical and expound the unexpressed’. See James v Cowan (1930) 43 CLR 386 at 422. He emphasised that the practical necessity of determining precisely what impediments did not obstruct interstate trade ‘obliged the court to attempt the impossible task of supplying an exclusive and inclusive definition of a conception to be discovered only in the silences of the Constitution’: at 423. When Sir John Latham retired as Chief Justice of the High Court, he lamented that ‘[w]hen I die, s 92 will be found written on my heart’. See (1952) 85 CLR vii at ix. In his 1958 book Prosper the Commonwealth Sir Robert Garran contemplated that a student of the first 50 years of case law on s 92 might understandably ‘close [their] notebook, sell [their] law books, and resolve to take up some easy study, like nuclear physics or higher mathematics’: at 415. Thus, even in 1958, constitutional scholars recognised that the case law interpreting s 92 was hopelessly confused and obscure. Common sense suggests that this section is a fundamental constitutional provision because without ‘free trade’ the very existence of the Australian Commonwealth would be in jeopardy. Indeed, without free trade, States would be able to isolate themselves from other States by the protection of local products and industries at the expense of interstate products and industries. In the first decision regarding s 92 Barton J recalled that ‘one of the chief objects of the struggle for federation was to secure that which sec 92 ordains, free trade among the States’. See Fox v Robbins (1909) 8 CLR 115 at 123. Section 92 created major problems of interpretation until 1988 when the High Court adopted an authoritative interpretation of the section. See Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42. For a comprehensive discussion

of the pre-Cole case law interpreting s 92, see the Appendix to this book. See also Coper, 1983; Howard, 1985, pp 293–400; Coper, 1988, pp 256–90.

Relationship between ss 51(i) and 92 674 In its case law, the High Court has explicitly or implicitly tried to reconcile a potential conflict between ss 51(i) and 92 of the Constitution. Section 51(i) empowers the Commonwealth to make laws with respect to ‘[t]rade and commerce with other countries, and among the States’. This section presumably enables the federal Parliament to regulate commerce among the States. However, it could be argued that regulation of trade and commerce among the States violates s 92 according to which trade and commerce shall be absolutely free. Section 51(i) is subject to the limitations imposed upon the federal Parliament by s 92. If every regulation of trade among the States violated s 92, that would make s 51(i) effectively meaningless. In an attempt to resolve the conflict between these two sections, some judges argued that s 92 applied only to the States and did not bind the Commonwealth. However, it is now firmly established that s 92 binds the Commonwealth as well as the States. In James v Commonwealth (1936) 55 CLR 1 the Privy Council overruled previous authority that s 92 did not bind the Commonwealth: at 59. [page 402]

Original understanding of s 92 675 In the 19th century Australia was not a free trade area. The colonies imposed tariff and non-tariff barriers. These barriers were adopted by colonial legislators in order to equalise prices of similar local and intercolonial products and to protect their own industries. Colonies often introduced border duties or tariffs which restricted the import and export of goods between the colonies. See Cole v Whitfield (1988) 165 CLR 360 at 385; 78 ALR 42. The protective legislation which provided for the imposition of border duties was

discriminatory because it treated local and intercolonial goods differently, in that a duty was imposed upon the imported (intercolonial) product but not upon the local product. In addition, it was a discriminatory burden of a protectionist kind because the legislation aimed to protect the local industry. The debate over free trade versus protectionism was one of the great political controversies of 19th century Australia. Political parties either supported protectionism or free trade: at 386. Some politicians argued that intercolonial trade should be free within a uniform external customs tariff whereas others favoured protectionism. There were also non-tariff barriers to free trade, such as the imposition of quotas and subsidies, stock taxes, differential railway rates and discriminatory regulations which provided for different specifications for local and intercolonial products. 676 In Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42 the High Court undertook a detailed analysis of the history of the adoption of s 92. The purpose of s 92 was to create a free trade area throughout the Commonwealth: at 393. The creation of a free trade area required the elimination of State border duties and the imposition of a uniform external tariff. ‘The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny to Commonwealth and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries’: at 391. For histories of the adoption of s 92, see Beasley (1948) 1 UWALR 97, 273, 433; Sharwood (1957) 1 MULR 331; La Nauze, 2001, pp 111–45; Puig (2011) 30, 2 U Tas LR 1. The ‘free trade’ understanding of s 92 succeeded in resolving the conflict between s 51(i) and s 92. The free trade theory of s 92 involves the proposition that trade and commerce are free from some (but not all) legislative burdens, namely discriminatory burdens of a protectionist kind. This understanding is instrumental in eliminating the possibility of conflict because it involves the idea that s 92 merely requires the removal of tariff (and non-tariff) barriers. The federal Parliament is otherwise free to regulate trade and commerce among the States.

Two s 92 theories

677 Section 92 developed into one of the problem sections of the Constitution for at least two interrelated reasons. First, the section consists of very ambiguous language, the meaning of which would have to be clarified by the High Court. The vagueness of the concepts facilitates the adoption of incompatible and contradictory interpretations. As Latham CJ observed in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, ‘[w]hen a slogan is incorporated in a Constitution, and the interpretation of the slogan is entrusted to a court, difficulties will inevitably arise’: at 126. Second, the fact that s 92 specifically states that trade, commerce and intercourse shall be absolutely free suggested to some members of the High Court that the free trade version of s 92 was wrong since it only invalidated legislative acts that constituted discriminatory [page 403] burdens of a protectionist kind. To them, the word ‘absolutely’ suggested that all regulatory burdens upon trade and commerce were unconstitutional and that s 92 should be interpreted as a guarantee of individual economic freedom. However, such an understanding of s 92 fails to reconcile ss 51(i) and 92. As to this second point, s 92 passed to the courts the task of defining what aspects of interstate trade, commerce and intercourse are exempted from legislative or executive control or regulation. What is trade, commerce and intercourse absolutely free from? Although it is a difficult question, the courts have a duty to express the unexpressed: they are expected to explain the nature of an immunity which is not clearly expressed in the Constitution. 678 The two difficulties outlined above facilitated the development by the High Court of two major theories of s 92. The first is the free trade theory which coincides with the original understanding of s 92. On this view s 92 is limited to the creation of a free trade area which requires the elimination of tariff barriers to trade, or (if the full notion of free trade is embraced) the invalidation of laws that discriminate in a protectionist sense against the movement of goods and persons into or out of a State. The second major theory is the individual rights theory. This theory was

favoured by various members of the High Court who concentrated on the language of s 92 which provides that trade, commerce and intercourse shall be absolutely free. They argued that s 92 should be interpreted as meaning that trade, commerce and intercourse must be left without any restriction or even regulatory burden or hindrance. 679 The individual rights theory was not interpreted by the High Court as embracing the proposition that interstate trade and commerce is free from any regulation at all. Griffith CJ stated that ‘the word “free” does not mean extra legem, any more than freedom means anarchy. We boast of being an absolutely free people, but that does not mean that we are not subject to law’. See Duncan v Queensland (1916) 22 CLR 556 at 573. His words have frequently been repeated with approval by the courts, and are incontestably correct. But if the expression ‘absolutely free’ does not mean free from all laws, what are interstate trade, commerce and intercourse to be absolutely free from? The individual rights theory has had an inordinate influence upon the development of the jurisprudence on s 92. This theory was, at least in part, based upon the ‘laissez-faire’ economic philosophy. However, the textual context of s 92 points to the inapplicability of the individual rights theory. Indeed, s 92 is part of Chapter IV, headed ‘Finance and Trade’, and is not a part of a Bill of Rights. The provisions that immediately precede and follow s 92 are concerned with the establishment of uniform duties of customs (s 88), the payment of surplus revenue to the States (s 89), prohibiting the States from levying customs and excise duties (s 90), and the provision of financial assistance to the States: ss 93–94. 680 Freedom can only flourish in a framework of ordered liberty. Interstate trade therefore cannot be interpreted as a guarantee of anarchy. The point that ‘freedom’ presupposes the existence of ‘ordered liberty’ is often made in the case law concerning s 92. In his dissenting judgment in McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530 Gavan Duffy J said that ‘freedom of trade and commerce never means freedom from regulation or control, or complete immunity from municipal law with respect to the acts which constitute such trade or commerce’: at 568. The freedom guaranteed by s 92 requires a social framework for orderly communal living within which the freedom in s 92 operates. In Permewan

Wright Consolidated Pty Ltd v Trewhitt (1980) 145 CLR 1; 27 ALR 182 Stephen J observed that laws may validly restrict the freedom of interstate trade in order to protect public health and safety, and to combat fraud and restrictive practices: at 24–5. In Ackroyd v McKechnie (1986) 161 CLR 60; 66 ALR [page 404] 287 Gibbs CJ said that ‘a statute that imposes reasonable restrictions in the interest of public health may be justified as a permissible regulation of interstate trade’: at 69.

The ‘criterion of operation’ test and the ‘practical effects’ test 681 The individual rights theory accepted regulatory laws provided they were reasonable, general and non-discriminatory. In Commonwealth v Bank of New South Wales (1949) 79 CLR 497 the Privy Council observed that ‘the conception of freedom of trade commerce and intercourse in a community regulated by law presupposes some degree of restriction upon the individual’: at 639. The Judicial Committee went on to say that ‘regulation of trade may clearly take the form of denying certain activities to persons by age or circumstances unfit to perform them or of excluding from passage across the frontier of a State creatures or things calculated to injure its citizens’: at 641. In a series of cases the High Court developed tests for determining whether the freedom guaranteed by s 92 could be subject to a particular form of regulation. In particular, the High Court developed the ‘criterion of operation’ test, which involved an examination, not of the economic or social consequences of the implementation of a law, but of its direct legal effect. In other cases, the court adopted the ‘necessary’ or ‘practical effects’ test which focussed on the substantive operation of the relevant law These tests appeared in a number of versions which included the directindirect test and the essence-incidents test. These tests, in their simplest form,

could be expressed as follows. If, say, a State law impinges directly (as opposed to indirectly) upon interstate trade, the law is incompatible with s 92. If the law impinges upon a non-essential (as opposed to an essential) aspect of interstate trade, the law would be compatible with s 92. The direct-indirect test usually involved an examination of the legal effect of the relevant law. The essence-incidents test mainly involved a consideration of the practical effects of the law. 682 In Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1 at 17–18 Dixon CJ expressed the essence-incidents test as follows: If a law takes a fact or an event or a thing itself forming part of trade commerce or intercourse, or forming an essential attribute of that conception, essential in the sense that without it you cannot bring into being that particular example of trade commerce or intercourse among the States, and the law proceeds, by reference thereto or in consequence thereof, to impose a restriction, a burden or a liability, then that appears to me to be direct or immediate in its operation or application to inter-State trade commerce and intercourse, and, if it creates a real prejudice or impediment to inter-State transactions, it will accordingly be a law impairing the freedom which s 92 says shall exist. But if the fact or event or thing with reference to which or in consequence of which the law imposes its restriction or burden or liability is in itself no part of inter-State trade and commerce and supplies no element or attribute essential to the conception, then the fact that some secondary effect or consequence upon trade or commerce is produced is not enough for the purposes of s 92.

In this case Fullagar J observed that carrying on business in more than one State is not the same as carrying on interstate business. The appellant’s business involved making contracts involving the receipt of money and the payment of money on the occurrence of certain contingencies: at 8. Commenting upon the same issue, Dixon CJ remarked (at 14): For a company to contract with a man that, in consideration of the latter making payments to it at any given place, the company will in a specified contingency make a payment to him at some other place is not to engage in inter-State commerce. Neither the making of the contract nor the performance of the contract by either side involves any step or dealing which of itself forms part of inter-State commerce even if a State line runs between the two places.

[page 405] There is little doubt that Dixon J’s statement of the essence-incidents test is enigmatic. The obscurity stems from the fact that it is difficult to apply the test because of the problems involved in defining an essential attribute of free

interstate trade or in distinguishing between a direct and indirect burden. An instructive example may provide some clarification. 683 In North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559; 7 ALR 433 a statutory scheme involving compulsory marketing and control of sales was held to infringe s 92 in its application to the plaintiff’s trade. The plaintiff was a producer and distributor of milk products. It supplied milk products to individual persons in Albury (in New South Wales) by bringing them in its own vehicles from its depot in Wodonga (in Victoria). It also brought milk to shopkeepers in Albury and Junee who acted as its agents for the disposal of the milk: at 571. A New South Wales statute provided that milk supplied for human consumption in New South Wales was vested in the Dairy Industry Authority. The Authority was not obliged to accept any milk, and only milk supplied by a registered dairyman would be accepted. It was an offence for any person to act as a dairyman or carry on any activities as a milk vendor without holding a certificate of registration. The Authority was given wide discretion to refuse to issue or cancel a certificate: at 572–3. A regulation issued under another Act provided that no person may supply or sell pasteurised milk for human consumption in New South Wales which had not been pasteurised by a holder of a certificate of registration authorising the holder to pasteurise milk: at 573. The plaintiff held two certificates of registration as a milk vendor, but none authorising it to carry on the activity of pasteurising milk. These certificates authorised it to sell milk which had been pasteurised by companies that held certificates authorising them to pasteurise milk. The action arose because the defendant threatened to cancel the plaintiff’s certificates of registration unless they complied with the condition that the milk sold by them was pasteurised by registered pasteurisers: at 574. The plaintiff’s claim to immunity under s 92 depended in the first instance upon whether it was engaged in interstate trade and commerce. Barwick CJ and Stephen J considered that the plaintiff’s interstate trade included the transport of the milk products from Victoria to New South Wales for sale in New South Wales, and the sale there by the plaintiff or on its behalf: at 577, 602.

Gibbs J adhered to the views he had expressed in SOS (Mowbray) Pty Ltd v Mead (1972) 124 CLR 529. He distinguished that case on the ground that in the present case the person selling the goods within the State was the person who had brought them into the State. In Mowbray the burden was imposed on the first sale within a State by a shopkeeper to whom goods had been consigned by a manufacturer in another State: at 599–600. Mason J considered that the importation by the plaintiff of pasteurised milk from Victoria into New South Wales for the purpose of sale there formed part of interstate trade, even if the sale which was the end purpose of the transportation was held not to form part of that trade: at 605. 684 The second issue was whether the plaintiff’s interstate trade was burdened in a manner that was inconsistent with s 92. It was held that s 92 was violated because the sale of a product that had previously been imported was an essential aspect of interstate trade. Mason J stated that the regulation prohibited ‘the sale of the product of another State whilst permitting the sale of the competitive product produced within the State. As the prohibition discriminates against the products of other States, unless it can be justified as a regulation of interstate trade, it falls within the field of operation of s 92’: at 607. The expropriation provision was [page 406] repugnant to s 92 for the same reason because it was a prohibitory regulation, which had the effect of destroying the plaintiff’s interstate trade. In dissent, McTiernan J considered that the Act was regulatory and not a prohibitory law: at 593. However, none of the other members of the court thought that the statutory prohibition could be justified upon the ground that it was necessary to protect the health of the public or on the ground that it was regulatory. As Gibbs J argued, the regulation enabled the Authority to prevent the sale in New South Wales of any milk pasteurised elsewhere, however free from defect it might be. It went far beyond what was reasonably necessary for the purpose of ensuring that no milk was sold which was likely to constitute a danger to health: at 600–1.

The North Eastern Dairy Co case should be compared with Permewan Wright Consolidated Pty Ltd v Trewhitt (1980) 145 CLR 1; 27 ALR 182. Eggs were imported into Victoria from New South Wales. Victorian legislation required that eggs be graded and tested in accordance with Victorian law: at 8–9, 14, 20. The sale and display of eggs was part of, and inseparably connected with, the interstate trade in eggs: at 17. The court held that there was no violation of s 92 because the law was regulatory, since only the incidents of interstate trade (that is, non-essential aspects) were regulated: at 17–8, 29, 31, 38. It was permissible to require that the eggs be graded and stamped in Victoria even if they had already been graded in New South Wales: at 31–2, 39. 685 The Privy Council discussed the direct-indirect test in Commonwealth v Bank of New South Wales (1949) 79 CLR 497. The challenged statute prohibited private banks from carrying on banking business. It applied to all corporate trading banks, whether involved in intrastate or interstate banking. Thus, the Act affected the private trading banks’ interstate business as much as their intrastate business. The Privy Council decided that, even though the law was nondiscriminatory, it prohibited the interstate business of the banks. In particular, the Privy Council embraced the direct-indirect test when it said that ‘s. 92 is violated only when a legislative or executive act operates to restrict such trade commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote’: at 639. The judgment is also noteworthy for its elaboration of the regulation-prohibition test. Regulation of trade, commerce and intercourse among the States is compatible with the absolute freedom referred to in s 92, but the prohibition of individuals engaging in interstate trade violates the section. 686 These tests are not necessarily independent of each other. Instead, they are inextricably interwoven. This is because the language of one test can easily be translated into the language of another. For example, the statement that a State law only impinges indirectly upon interstate trade could be translated into the statement that the law merely regulates or affects a non-essential aspect of interstate trade. Even the High

Court’s statement in Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1 could be interpreted as meaning that burdening an essential aspect of interstate trade involves, on the direct-indirect test, a direct impediment to interstate trade. 687 In Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 a State law imposed a licensing and quota system for the manufacture of margarine: at 70. Having exhausted its quota, Marrickville was prohibited from manufacturing more margarine. It could be argued that the right to manufacture is an essential (as opposed to a non-essential) aspect of interstate trade because, in the absence of the right to manufacture, there could be no products that [page 407] could be sent to interstate markets. However, the High Court decided that there was no violation of s 92 since manufacturing precedes interstate trade. It drew a distinction between antecedent manufacturing and subsequent interstate trade (at 71–2): It is of course obvious that without goods there can be no inter-State or any other trade in goods. In that sense manufacture or production within, or importation into, the Commonwealth is an essential preliminary condition to trade and commerce between the States in merchandise. But that does not make manufacture production or importation trade and commerce among the States. It is no reason for extending the freedom which s 92 confers upon trade and commerce among the States to something which precedes it and is outside the freedom conferred.

This reasoning was upheld in Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283. The High Court applied the Grannall decision where margarine was manufactured to fulfil a contract that required delivery in another State: at 299, 305, 308–9, 313. Similar reasoning is found in R v Anderson; Ex parte Ipec Air Pty Ltd (1965) 113 CLR 177. The High Court in Grannall had clearly rejected the proposition that there could be no effective prohibition of the importation of goods into Australia if they were merchandise intended to be bought and sold in interstate trade. Despite that decision it was argued that s 92 was violated by the refusal of the Director of Civil Aviation to permit the import of aircraft so

as to prevent their use in interstate trade: at 185–8. This refusal was motivated by the government’s two airline policy: at 190. The court treated the matter as settled by its decision in Grannall: at 193, 196, 201, 204. 688 In Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; 67 ALR 321 the court drew a distinction between the antecedent construction of a television station and the subsequent use of the station to transmit programs interstate: at 565–7, 574–5, 596, 623, 634. The construction did not secure the protection of s 92, even if the transmission of programs interstate was protected by the section. Mason J suggested the possibility of two potential arguments regarding s 92: at 570–1. He argued in favour of a complete reassessment of the section. He suggested that the section should be read as a prohibition of discriminatory burdens upon interstate trade and that s 92 should not be read as a protection of individual rights but as an expression of the free trade concept. He also pointed out that there was no interpretation of s 92 that commanded the acceptance of a majority of the High Court. Deane J also lamented the fact that for three-quarters of a century the cases concerning s 92 had failed to establish an authoritative understanding of the section: at 616.

A new beginning: the Cole formula 689 The controlling interpretation of s 92 is that adopted in Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42. In Cole, the court moved away from the individual rights theory of s 92 and embraced the free trade theory. In its unanimous judgment, the court indicated that it is necessary to identify the types of restrictions from which s 92 guarantees the absolute freedom of interstate trade and commerce. This identification is instrumental in reconciling the trade and commerce power (s 51(i)) and s 92. The court said (at 394): … to construe s 92 as requiring that interstate 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.

[page 408] The presence of s 51(i) in the Constitution is an indication against the broader individual right theory of s 92. As the court stated (at 398): … any acceptable appreciation of the interrelationship between the two sections must recognize that s 51(i) is a plenary power on a topic of fundamental importance. That being so, the express conferral of legislative power with respect to interstate trade and commerce lends some support for the view that s 92 should not be construed as precluding an exercise of legislative power which would impose any burden or restriction on interstate trade and commerce or on an essential attribute of that trade and commerce. Obviously, the provision conferring legislative power (s 51(i)) and the provision restricting the exercise of legislative power (s 92) sit more easily together if the latter is construed as being concerned with precluding particular types of burdens, such as discriminatory burdens of a protectionist kind.

690 In Cole the defendant was charged with the possession of undersize crayfish in breach of the Sea Fisheries Regulations 1962 (Tas): at 379. Live crayfish were purchased from fishermen in South Australia. The crayfish were part of a consignment delivered from South Australia to Tasmania: at 380. The defendant sought to rely upon s 92 of the Constitution. The High Court unanimously held that the freedom guaranteed to interstate trade and commerce under s 92 is freedom from discriminatory burdens in the protectionist sense (including freedom from tariffs and other methods by which the freedom could be interfered with, such as through the introduction of quotas: at 407– 8). The limitation upon the size of crayfish sold or possessed in Tasmania was a burden upon interstate trade and commerce in crayfish, but no discriminatory protectionist purpose appeared on the face of the law. The prohibition applied alike to Tasmanian and imported crayfish and the object of the law was protection and conservation. The prohibition was a necessary means of enforcement as only random inspections were possible and it was impossible to distinguish between Tasmanian and South Australian crayfish. The law was not protectionist as it conferred no competitive or market advantage upon Tasmanian trade over interstate trade. Even if it did, the impossibility of distinguishing Tasmanian crayfish from those purchased interstate made it necessary for the law to be applied generally: at 409–10. The court indicated that discrimination could be described as a departure from equality of treatment: at 399. Discrimination in its application to

interstate trade and commerce embraces factual as well as legal discrimination. Legal discrimination can be ascertained by an examination of the language of the law. If the legislation treats local and interstate trade differently, legal discrimination is said to exist. Factual discrimination exists where the law does not discriminate on its face but its implementation results in discrimination: at 399–400. 691 In Cole the court extensively reviewed its prior case law. The court remarked that the ‘criterion of operation’ test came the closest to settling the meaning of s 92. It had the advantage of certainty but the disadvantage that it was concerned only with structure, and ignored its substantive effect: at 384. If the criterion of operation test is consistently applied it subverts the substance of the guarantee. If it is applied uniformly to achieve satisfactory outcomes the formula is uncertain. The protection it gives is too wide. The doctrine keeps interstate trade on a privileged or preferred footing immune from burdens imposed upon intrastate trade. Section 92 had been a source of ‘protectionism in reverse’. It had become a ‘source of privilege or preferential treatment for [interstate] trade to the detriment of local trade’: at 403. The court was dissatisfied with the ‘criterion of operation’ test because it depended upon the obscure, perhaps artificial, distinction between burdens which are direct and immediate, and those which are indirect, consequential and remote. The test also depended upon a distinction between essential attributes of trade and commerce and those that are non-essential or incidental. [page 409] 692 Following the Cole decision, Commonwealth laws enacted under s 51(i) will not ordinarily be discriminatory if they apply to all transactions of a given kind within the reach of Parliament: at 407. The constitutionality of State laws is resolved through a consideration of the nature of the impugned law (at 408): If it applies to all trade and commerce, interstate and intrastate alike, it is less likely to be protectionist than if there is discrimination appearing on the face of the law. But where the law in effect, if not in form, discriminates in favour of intrastate trade, it will nevertheless offend

against s 92 if the discrimination is of a protectionist character. A law which has as its real object the prescription of a standard for a product or a service or a norm of commercial conduct will not ordinarily be grounded in protectionism and will not be prohibited by s 92.

In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248; 109 ALR 1 Brennan, Deane and Toohey JJ said that one objective of Federation was to create a free trade area and to deny to the Commonwealth and the States the power to obstruct the free movement of people, goods and communication. Trade, commerce and intercourse passing through the six States should not be interfered with: at 274.

The level playing field defence 693 In Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411; 78 ALR 669 a 4–3 majority of the court held that s 92 was violated by a critical section of a Victorian law that provided for the licensing of retail tobacco outlets. The defendant retail tobacconist imported tobacco from Queensland and sold it in Victoria without a licence, contravening the Business Franchise (Tobacco) Act 1974 (Vic). The Commissioner for Business Franchises sought an injunction to restrain the defendant from selling without a licence. The defendant contended that the effect of s 92 was either to invalidate the relevant provisions of the Act or to render them inapplicable to the defendant’s sales of tobacco in Victoria: at 418. It argued that the manner in which licence fees were imposed and collected discriminated against interstate trade in tobacco by protecting Victorian trade in that product: at 416, 420. The Act provided for the payment of a fee, which was characterised by Victoria as a licence fee. For a permanent licence a fee of $50 was payable, ‘together with an amount equal to 25 per centum of the value of tobacco sold by the applicant in the course of tobacco retailing in the relevant period’: at 422. The ‘relevant period’ was the year ending on 30 September preceding the calendar year in which the licence would be in force: at 423. Tobacco products could be obtained by a retailer from a Victorian or interstate wholesaler. The liability of a retailer to pay by way of licence fee an amount calculated ad valorem on the tobacco sold in the relevant period only

attached if the retailer bought from an out-of-state wholesaler but not if they bought from a Victorian wholesaler: at 423. The scheme of the legislation was to tax all trade in tobacco in Victoria. Sales by a Victorian wholesaler to a Victorian retailer were not taken into account in the assessment of tax at the retail level because they were taxed at the wholesale level. Tobacco bought from interstate wholesalers would not have been taxed by Victoria at the wholesale level, and therefore could only be taxed at the Victorian retail level: at 426. The ultimate consumers would be indifferent as to where the tax was imposed because by the time it reached them it would have been incorporated into the final price. The defendant argued that a retail licensee who bought its tobacco products from a wholesaler in another State paid a higher licence fee than it would have paid if it bought the same products from a wholesaler in Victoria: at 416. [page 410] 694 The court was confronted with an interesting issue. Indeed, if the tax had been imposed on all retail sales, then s 92 would not have been violated because the tax would have been applied without discrimination between interstate and intrastate products: at 424. The majority held that the Act infringed s 92. The Act discriminated against interstate trade and commerce in a protectionist sense, by taxing a retailer only because of, and by reference to, the value of their purchase of tobacco in States other than Victoria. The exclusion from retail tax of tobacco purchased in Victoria from a licensed wholesaler involved a prima facie discrimination. A retailer who sold only products purchased from a Victorian wholesaler paid the appropriate flat fee for their licence. A retailer who sold only products purchased from an interstate wholesaler paid the flat fee and 25 per cent of the value of tobacco sold in the preceding ‘relevant period’: at 425–6. This discrimination was undeniably protectionist both in form and substance. If interstate wholesalers already paid taxes the discrimination might exclude them from the Victorian market. If they paid less taxes or costs, the effect was

to protect the Victorian market from the interstate wholesalers’ competitive advantage. In either case the operation and effect of the provisions imposing the retail tobacco licence fee were discriminatory against interstate trade in a protectionist sense: at 427. The majority stated (at 425): In substance, those provisions protect local wholesalers and the tobacco products they sell from the competition of an out of State wholesaler whose products might be cheaper in some other Australian market place for a variety of possible reasons, eg, that the laws of the State in which he carries on his business as a wholesaler either do not require that he hold a licence at all or exact a licence fee comparatively lower than the fee exacted from a Victorian wholesaler.

Notions of economic equalisation did not remove the tax from the ambit of s 92. The relevant inquiry is whether the tax is imposed upon ‘all transactions of the relevant kind without differentiation based on the source or destination of the goods involved’: at 428. Thus, the majority rejected a level playing field defence. According to the majority, ‘to hold that a law which protects local goods by imposing a discriminatory tax on interstate goods at the retail level is consistent with s 92 because the law equalizes in favour of the local goods an advantage which the interstate goods enjoy in their State of origin in the course of manufacture or distribution would be to disregard the critical constitutional purpose which the section is designed to serve’: at 427. However, the concept of an equalising tax aims at neutralising a competitive advantage which is the consequence of decisions made by the interstate authorities, such as a decision not to tax wholesalers or to impose a low tax regime. See Coper in Lee and Winterton, 1992, pp 134–5. In Bath it is doubtful that the tax imposed at retail level could be classified as an equalising tax since the advantage enjoyed by the interstate product was a consequence of something done by Victoria, namely its decision to tax Victorian wholesalers. 695 The minority (Wilson, Dawson and Toohey JJ) acknowledged a ‘superficial’ appeal in the majority’s argument but felt that it presented an ‘incomplete picture’: at 431–2. For them, the majority’s argument failed to account for the fact that the interstate wholesaler was not subject to any franchise fee under the Victorian legislation and was therefore able to sell tobacco to Victorian retailers at a price which would reflect the absence of this expense. The advantage of the interstate wholesaler was balanced by the fact that a Victorian retailer who imported interstate tobacco paid a fee calculated

by reference to the value of the tobacco during a ‘relevant period’: at 432. The object of the legislation was to subject all trade in tobacco in Victoria to the expense of the franchise fee, not to favour Victorian wholesalers: at 432. [page 411] According to the minority, the impost applied to all trade in tobacco in Victoria, interstate and intrastate alike. If the majority’s rationale were accepted, two alternatives could cure the defect of the law: (a) removal of the ad valorem component of the licence fee — however, this would result in a preference for interstate trade; or (b) restriction of the fee to the retail level — however, this would result in the same economic result as the implementation of the Act, except that the it would be ‘more difficult to collect’ the fee: at 433–4. The dissenting justices argued that protectionism could ‘not … be found in the alternative methods of collecting the tax which produce the same ultimate effect in economic terms’: at 433. The minority pointed out that a consumer would be indifferent as to where the tax was levied because by the time it reached them the charge would have been incorporated into the retail price: at 431.

The environmental defence 696 In Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; 90 ALR 371 the court held that legislation which would otherwise infringe s 92 may be valid if its purpose is to secure a legitimate State objective and any burdens are incidental and not disproportionate to its achievement. The Bond Brewing group brewed beer in Queensland, New South Wales and Western Australia for sale throughout Australia. Bond claimed that the practical effect of the Beverage Containers Act 1975 (SA) was to discriminate against it in favour of South Australian beer. All bottled beer sold by Bond in South Australia was sold in non-refillable bottles. Their mainly South Australian competitors predominantly used refillable bottles: at 457–8.

Under the Act retailers were obliged to refund to consumers five cents for each non-refillable (Bond) bottle returned to the retailer: at 458. During the first six months of 1986 Bond ran a successful campaign to increase its share of the South Australian market: at 458, 459. In October 1986 an Amendment Act made important changes to the 1975 Act: at 486. Regulations made under the Act increased the rate for non-refillable (Bond) bottles to 15 cents. The refund for refillable (South Australian) bottles was set at four cents: at 462. The Minister exempted Bond’s competitors from the compulsory refund scheme in most circumstances: at 462. The difference between the two rates resulted in Bond’s products becoming non-competitive. As a consequence of the Act the use of non-refillable bottles became ‘commercially disadvantageous’: at 464. 697 Mason CJ, Brennan, Deane, Dawson and Toohey JJ held that a discriminatory burden in a protectionist sense may nevertheless be upheld if it has as its purpose a legitimate objective, and any burden imposed upon interstate trade is incidental and not disproportionate to the achievement of that objective: at 471–2. However, in this case neither the protection of the environment from litter nor energy conservation justified the differential treatment of Bond’s products: at 477. ‘The fact that a law imposes a burden upon interstate trade and commerce that is not incidental or that is disproportionate to the attainment of the legitimate object of the law may show that the true purpose of the law is not to attain that object but to impose the impermissible burden’: at 472. These Justices pointed out that the legitimate objective exception had already been recognised in Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42. In Cole the court had remarked that ‘even if the legislation were to give an advantage to the local trade … the [page 412] extension of the prohibitions … to imported crayfish is a necessary means of enforcing the prohibition against the catching of undersized crayfish in Tasmanian waters’: at 409.

In a separate judgment Gaudron and McHugh JJ considered the concept of ‘discrimination’ in the context of s 92. ‘A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained’: at 478. The equal treatment of unequal things constitutes discrimination: at 478. Both Cole and Castlemaine Tooheys indicate that reasonable regulation is compatible with s 92, provided that the burden imposed upon interstate trade is incidental and not disproportionate to the legitimate object to be achieved. In Cole, the object of the law was the protection and conservation of Tasmanian crayfish so that local stocks would not be depleted. The possession of such crayfish in South Australia would have been lawful as that State felt sufficient crayfish protection was afforded by prescribing a larger minimum size.

Protecting the integrity of an industry 697A In Betfair Pty Ltd v Western Australia (2008) 234 CLR 418; 244 ALR 32; [2008] HCA 11 Betfair ran a betting exchange under Tasmanian law: at [1]. Betting exchange customers place bets on opposing results of a race or game. Unlike more traditional betting, customers may back to lose as well as to win: at [8]. Betfair’s customers made telephone bets to a Tasmanian call centre or placed Internet bets to a server operated in Tasmania. Betfair’s customers were located in other States including Western Australia: at [1]. Following amendments to Western Australian law it became an offence for anyone present in Western Australia to place bets through a betting exchange: at [71], [89]. If Betfair accepted a bet from a Western Australian gambler, it would be liable for aiding an offence even though its actions were done in Tasmania: at [71], [120]. Publication of a Western Australian ‘race field’ was also prohibited. A race field identified the horses or greyhounds that would compete in a race: at [72]. This prohibition applied to persons outside the State: at [73]. The Minister could grant approval for publication of a race field: at [74]. However, the

Minister refused to allow Betfair to provide race fields for races within the State: at [2], [74]. Prior to the enactment of the amendments Betfair had competed with Racing and Wagering Western Australia in taking telephone and Internet bets: at [77]. There was a national market for Internet and telephone betting: at [114]. In a joint judgment Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ held that both provisions violated freedom of interstate trade and commerce. Where a law has the practical effect of discriminating against interstate trade in a protectionist manner, the law will not be saved by the fact that it also has a non-protectionist objective such as health or conservation: at [47]. It would unacceptably weaken s 92 if a protectionist law would be valid simply because it also had a non-protectionist objective: at [48]. These Justices recalled that in Castlemaine Tooheys the majority had stated that the power of the States to make laws for the ‘well-being’ of its people was a ‘fundamental consideration’: at [86]. In this case the reach of the challenged law went beyond the residents of Western Australia: at [89]. The local ‘wellbeing’ of the people of a State would not include most regulation of the ‘new economy’: at [90]. Furthermore, this ‘fundamental consideration’ was based upon ‘circular reasoning’: at [91]. However, since neither party had contested the validity of this ‘fundamental consideration’ it was unnecessary to further consider this point: at [100]. [page 413] The joint judgment also recalled that in Castlemaine the majority had held that to be valid a challenged law had to be appropriate and adapted to its neutral objective. The law’s impact upon interstate trade and commerce must not be disproportionate to the achievement of that objective: at [99]. The joint opinion (at [101]–[102]) made the following observations regarding this formulation: … the “appropriate and adapted” criterion expressed in Castlemaine … involves the existence of a “proportionality” between, on the one hand, the differential burden imposed on an out of State producer, when compared with the position of in State producers, and, on the other hand, such

competitively “neutral” objective as it is claimed the law is designed to achieve. That “proportionality” must give significant weight to … the constraint upon market forces operating within the national economy by legal barriers protecting the domestic producer or trader against the out of State producer or trader, with consequent prejudice to domestic customers of that out of State producer or trader. [These considerations] suggest the application here … of a criterion of “reasonable necessity” …

Western Australia sought to justify its law on the ground of revenue protection. The State argued that if the legislation had the effect of protecting the turnover of Western Australian operators against reduction due to interstate competition, the law should be upheld on the ground that it safeguarded State revenues against a reduction in the moneys received from local operators. The joint judgment rejected this argument as inconsistent with prior authority (Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411; 78 ALR 669). Furthermore, this argument would justify the adoption of State customs duties: at [108]. The State also sought to justify its law on the ground of protecting the integrity of its racing industry. The government argued that allowing betting to lose threatened the integrity of the industry because it was easier to lose than to win: at [109]. The joint opinion held that the remedy for such a threat must be non-discriminatory regulation. The Western Australian law was disproportionate to the objective. It was not appropriate and adapted to the stated objective of protecting the integrity of the industry: at [110]. The prohibition upon publishing a race field was a burden upon interstate trade and commerce. It was a direct burden since it prevented Betfair from using part of its business operation. It was also an indirect burden since Betfair’s customers were denied access to this information. The prohibition disadvantaged the interstate operator (Betfair) while advantaging local operators. It was a discriminatory burden of a protectionist kind: at [118]. The provision was invalid as it applied to a betting exchange that published a race field via Internet or telephone communications between Tasmania and other States: at [128]. It was also invalid as it applied to the publication of a race field for the purpose of facilitating the making of Internet or telephone bets through a betting exchange in Tasmania by persons in other States: at [128]. The prohibition upon betting through a betting exchange was also a discriminatory burden of a protectionist kind. While local operators were also prohibited from offering betting through a betting exchange, local operators

were protected from the competition that would otherwise have been offered by Betfair: at [121]. This provision was invalid as it applied to a Western Australian resident who placed telephone or Internet bets through Betfair’s betting exchange in Tasmania: at [127]. In a separate judgment Heydon J agreed that both prohibitions violated s 92: at [134], [145]. For discussions of this case, see Ball (2008) 36 FL Rev 265; Oreb (2009) 31 Syd LR 607; Puig (2009) 11 Const L & Pol’y Rev 152; Coper (2014) 88 ALJ 204.

The demise of the individual rights theory 698 The individual rights theory of s 92 was expressly rejected by a unanimous court in Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182; 96 ALR 524. [page 414] The New South Wales barley marketing scheme compulsorily vested in the Barley Marketing Board all barley grown in the State: at 192. The scheme declared void all contracts for the sale of barley by New South Wales producers: at 193. The court held that the scheme did not impose upon interstate trade or commerce a discriminatory burden of a protectionist kind and did not contravene s 92. The court made plain its rejection of the individual rights theory in the following passage (at 201): … the so-called “individual rights” theory of s 92 [was] that the section guarantees the right of the individual to engage in interstate trade and commerce. That view of s 92 prevailed until it was displaced by Cole v Whitfield where it was pointed out that the “individual rights” theory had the effect of transforming s 92 into a source of discriminatory protectionism in reverse: “in some circumstances a source of privileged and preferential treatment for [interstate] trade to the detriment of the local trade”.

The court held that there was no discriminatory protectionism in this case. Interstate and intrastate maltsters were treated equally under the scheme since they all had to buy New South Wales’ barley from the Marketing Board. Nevertheless, the court found it necessary to observe that ‘it could scarcely be

denied that a prohibition or restriction upon the export of a commodity from a State with a view to conferring an advantage or benefit on producers within the State over out-of-State producers would amount to discrimination in a protectionist sense’: at 204.

The criterion of protectionism 699 The court has continued to make clear its rejection of the individual rights theory of s 92. Consistent with that view, the court has also emphasised that protectionism is the criterion by which discriminatory laws will be regarded as violating freedom of interstate trade. In Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217; 286 ALR 221; [2012] HCA 12 Betfair operated a betting exchange in Tasmania, from where it provided gambling services throughout Australia. Its head office was in Victoria: at [3]. Race field information identified the horses that would take part in a race or which had been withdrawn from the race: at [8]. A New South Wales statute prohibited the use of New South Wales race field information except under an approval issued under the Act. An approval could be given subject to conditions, such as the payment of a fee: at [10]. The fee was a percentage of the approval holder’s wagering turnover from the races to which the approval related: at [12], [15]. The regulations provided that in deciding an application for an approval the racing authorities could not take into account the location within Australia of the applicant’s head office or principal place of business. If the applicant was a wagering operator the authorities were required to take into account whether the applicant held a wagering licence issued by an Australian State or Territory: at [13]. Betfair argued that the approval fee infringed s 92: at [14]. It argued that the fee extracted a greater proportion of its revenue than the fee extracted from the revenue of its higher margin local competitor, the New South Wales TAB: at [17], [67], [71], [98]. Betfair was a lower margin wagering operator: at [32]. The court unanimously held that the fee did not infringe s 92. French CJ, Gummow, Hayne, Crennan and Bell JJ observed that the fee was neutral on its face between gambling providers. It applied without

distinction to interstate and intrastate gambling operators and customers. No distinction was drawn between the use of race field information in interstate and intrastate wagering: at [29]. [page 415] If the fee had a greater impact upon Betfair than upon its higher margin competitors, that might indicate that the fee was discriminatory. However, that would be insufficient to infringe s 92: at [34]. ‘Not every measure which has an adverse effect between competitors will attract the operation of s 92’: at [36]. The fee would not violate s 92 unless it discriminated against interstate trade and thus protected intrastate trade: at [36]. ‘It is the concept of protectionism which supplies the criterion by which discriminatory laws may be classified as rendering less than absolutely free trade and commerce among the States’: at [36]. Furthermore, Betfair’s argument had focussed upon its own business circumstances: at [42]. The focus of inquiry should be the effect of a law upon interstate trade, not its effect upon individual traders: at [46]. The ‘subject of s 92 is interstate trade, not traders’: at [50]. Three questions arose in this case. First, did the practical operation of the fee treat interstate and intrastate trade alike despite the existence of a relevant difference between them? Second, did the fee ‘burden interstate trade to its competitive disadvantage’? Third, was the burden ‘reasonably necessary’ for the State to ‘achieve a legitimate non-protectionist objective’? In this case the answer to the first and second questions was no, so the third question did not arise: at [52]. So far as the first question was concerned, Betfair’s lower margin operation and the higher margin operation of its competitor was not a relevant difference that would preclude the like treatment of these gambling operators: at [55]. So far as the second question was concerned, Betfair had not shown that the fee would be likely to cause it a loss of profit or to lose market share: at [56]. Heydon J emphasised that for s 92 to be infringed, a law must create a trading advantage for intrastate trade over interstate trade. It was not sufficient

that a law disadvantaged an individual interstate trader, but must affect interstate trade generally. An impact upon an individual trader would only have a general effect if the trader’s actual or potential interstate trade was large: at [60]. A law was not protectionist simply because its practical operation disadvantaged an individual interstate trader: at [61]. A comparison between one interstate trader (Betfair) and one interstate competitor (the State TAB) did not demonstrate a burden upon interstate trade. The focus of s 92 was the effect upon interstate trade, not upon individual interstate traders: at [68]. Kiefel J observed that the fee was neutral on its face. The same rate applied to both interstate and intrastate traders: at [99]. In order to infringe s 92, discrimination must have a protectionist effect. Not all discrimination has a protectionist effect: at [110]. The differential impact of the fee upon Betfair and the TAB was due to their differing business models, not in the effect of the fee ‘upon them as interstate and local traders’: at [112]. Section 92 was directed against the protectionist effect of a law upon traders as interstate traders, which would inhibit their ability to compete with intrastate traders: at [113]. Licence fees will often have a differential impact as between particular businesses. ‘[T]he subject of the immunity given by s 92 is trade, not those who conduct it’: at [114]. The criterion of protectionism does not focus upon individual traders, but upon their ‘position in the market’. Protection inhibits competition, which occurs within a market: at [115]. Betfair had not shown how the cost effect of the fee affected its competitiveness in the market: at [130]. Betfair had not passed on the fee to its customers: at [132]. Since Betfair had absorbed the fee, it was unclear how the fee could have affected its ability to compete with other operators: at [133]. The subjective motives of legislators would only be relevant in considering the question whether a measure could be justified for a non-protectionist purpose: at [136]. [page 416] 699A In Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; 286 ALR 404; [2012] HCA 13 Sportsbet’s principal place of business was in the

Northern Territory. It took bets from around Australia by telephone and over the Internet: at [6]. Under the New South Wales law considered in Betfair, Sportsbet was subject to a fee for the use of race field information for races in that State. The first $5 million of turnover was exempt from the fee. Both local and out of State gambling operators had the benefit of this exemption: at [26]. At least 95% of local bookkeepers were exempt from the fee: at [39], [45]. However, there were several distinctions between this case and the Betfair case. First, Sportsbet operated as a bookmaker rather than a betting exchange. It was not a ‘low cost operator’ like Betfair: at [8]. Second, this case was decided under the statutory equivalent to s 92 in the Northern Territory selfgovernment legislation: at [8]. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ pointed out that the New South Wales law was neutral on its face so its legal effect was not discriminatory in a protectionist sense. The question was thus whether the ‘practical operation or effect’ of the law was discriminatory in a protectionist sense: at [17]. They acknowledged that the ‘imprecision in meaning and application’ of the test of practical operation may lead to differing opinions regarding the resolution of particular cases: at [20]. They again observed that detailed analysis of the business models of individual traders was liable to distract from the focus of s 92. That focus was the ‘effect upon trade, not prejudice to particular traders’: at [20]. Section 92 and its statutory equivalent were not concerned with the subjective motives of legislators, but with the legal and practical effect of the challenged law: at [24]. The fee exemption for the first $5 million of turnover did not have a protectionist practical effect. Both local and out of State gambling operators were able to benefit from the exemption. Furthermore, there was no necessary link between the location of a gambling operator and its turnover: at [27]. Prior to the introduction of the fee system, a contract between the New South Wales racing authorities and the State TAB exempted the TAB from payment of royalties in return for the payment of large fees: at [30]. When the fee system was introduced, the TAB was required to pay both the contractual fees and the new statutory fees for race field information. This was in breach of the contract between the racing authorities and the TAB: at [31]. The TAB

objected to this breach. In return for the TAB dropping its claim, the racing authorities paid a sum that was considerably less than the statutory fees: at [32]–[33]. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that the settlement between the racing authorities and the TAB did not give the TAB a discriminatory advantage over out of State competitors, ‘let alone discrimination of a protectionist nature’: at [36]. The funds were received in settlement for the breach of contract, not because the TAB was a local trader: at [33]. They added that ‘the combination of otherwise apparently innocuous elements in a legislative scheme may disclose a protectionist measure’: at [36].

The nature of the Cole principle 700 The question whether a particular Commonwealth or State law violates s 92 is resolved by asking whether discriminatory burdens of a protectionist kind have been imposed upon interstate trade and commerce. But even if a law operates by its terms or effect to confer an economic disadvantage on interstate trade, it will be valid if its impact upon interstate trade is an incidental by-product of a proportionate means of achieving a legitimate State objective. As a consequence of the Cole decision, the Commonwealth has achieved greater freedom under s 51(i) to regulate trade among the States, and the Australian economy in general, [page 417] because regulation will be valid provided that it does not constitute a discriminatory burden of a protectionist kind. Soon after the Cole decision was handed down, it was appreciated that a discriminatory law need not be protectionist. Professor Lane argued that it was possible ‘to have a discriminatory interference with interstate trade that is not protectionist’. See Lane (1988) 62 ALJ 604 at 607. Similarly, Professor Coper argued that the very expression ‘discrimination in a protectionist sense’

implied that there may be discrimination in a non-protectionist sense. See Coper in Lee and Winterton, 1992, p 140. He concluded that ‘[i]n the end, the phrase “discrimination in a protectionist sense” is a composite one, even if its two components may be thought to be analytically distinct’: pp 139–40. 701 The court has emphasised that a discriminatory law must also be protectionist. In Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217; 286 ALR 221; [2012] HCA 12 the court emphasised that protectionism is the criterion by which discriminatory laws will be regarded as violating the freedom of interstate trade guaranteed by s 92: at [36]. Professor Puig has suggested that the effect of this decision ‘is to establish protectionism as the only criterion of invalidity under s 92 over and above discrimination’. See Puig (2012) 87 ALJ 178 at 183. In that case the court also unanimously reaffirmed the demise of the individual rights theory by stressing that the focus of s 92 is interstate trade, not individual traders: at [50], [68], [114]. Professor Lane also argued that ‘it is possible to have a protectionist law … that is not discriminatory’. See Lane (1988) 62 ALJ 604 at 607. He gave as an example State legislation that sought to protect its dairy industry against substitute products by restricting margarine sales, regardless of whether the margarine came from interstate or intrastate sources. Professor Coper found it ‘harder … to imagine a protectionist law that is not discriminatory’. See Coper in Lee and Winterton, 1992, p 140. In the Betfair case Kiefel J acknowledged that not all discrimination has a protectionist effect: at [110]. Professor Coper further observed that discriminatory protectionism was more likely to manifest itself ‘through the disparate impact of a law upon interstate trade than be evident from the terms of the law’. See Coper in Lee and Winterton, 1992, p 138. Factual investigation was essential in each case to determine the impact of the legislation: p 138. The careful analysis of the practical effect of a challenged law in the post-Cole decisions has borne out this observation. For example, in the Betfair and Sportsbet decisions the State law was neutral on its face, so the analysis turned upon the practical effect of the law. See Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217; 286 ALR 221; [2012] HCA 12 at [29], [36], [99]; Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; 286 ALR 404; [2012] HCA 13 at [17]. There remain unanswered questions regarding the operation of the Cole

principle. For example, the Betfair decision asked (but did not answer) the question of ‘whether s 92 applies, notwithstanding its words “among the States”, to markets conducted without reference to State boundaries’. See Betfair at [57]; see also at [127].

Freedom of interstate intercourse 702 In Cole v Whitfield (1988) 165 CLR 360 at 393; 78 ALR 42, the court stated that ‘[a] constitutional guarantee of freedom of interstate 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”’, quoting Gratwick v Johnson (1945) 70 CLR 1 at 17. [page 418] Is the guarantee of freedom of interstate ‘intercourse’ governed by the content of the guarantee of freedom of interstate trade and commerce? If so, the term ‘intercourse’ in s 92 would be redundant. However, the High Court indicated that the notions of ‘trade and commerce’ and ‘intercourse’ do not overlap. These notions 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’: at 388. 703 The High Court clarified the meaning of the term ‘intercourse’ in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681. Nationwide News was the owner and publisher of The Australian newspaper. It was alleged that an article published in the newspaper used words calculated to bring the Australian Industrial Relations Commission into disrepute, in violation of the federal industrial relations legislation: at 35, 62, 96–7. The publisher argued that the relevant provision of the Act contravened s 92 because the article was disseminated in print from New South Wales to other States: at 53, 63–4, 97. Nationwide News claimed that it was involved in interstate communication which formed part of interstate ‘intercourse’. It

submitted that the communicated information was ‘intercourse’ among the States and therefore only subject to reasonable restrictions: at 11–12. Brennan J considered that the Act did not infringe s 92 since it did not impose a discriminatory burden: at 60. He explained that 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’: at 57. Deane and Toohey JJ found it unnecessary to decide whether the Act infringed s 92: at 82. Nevertheless, they offered some instructive insights into the meaning of the term ‘intercourse’ in s 92. They pointed out that the court in Cole had rejected the proposition that the term ‘intercourse’ in s 92 was redundant or meaningless: at 82. They explained that it was ‘not confined to the physical movement or carriage of goods’ but encompassed ‘all of the modern forms of interstate communication’: at 83. Interstate intercourse and interstate trade and commerce were not mutually exclusive concepts. The tension between the two concepts was resolved by an appropriate categorisation of the challenged law. The provision at issue was a law with respect to the ‘publication of words’, irrespective of whether that publication was in ‘trade or commerce’. The provision was directed at ‘intercourse’ rather than ‘trade or commerce’: at 84. 704 In Cunliffe v Commonwealth (1994) 182 CLR 272; 124 ALR 120 a majority of the court held that freedom of interstate intercourse extended beyond freedom from discriminatory burdens of a protectionist kind: at 307, 346, 392, 395. The judges were unanimous in holding that the freedom of interstate intercourse was not absolute: at 307, 333, 346, 366, 384, 392, 395. Mason CJ indicated that the validity of a law which imposed an incidental burden on interstate intercourse as part of the regulation of another subject matter would be evaluated by comparing the public interests implicated: at 308. Brennan J reiterated what he had said in Nationwide News: at 333. Deane J stated that a law which imposed an incidental and non-discriminatory burden upon interstate intercourse as part of the regulation of another subject

matter would be upheld if it passed a proportionality test: at 346. Gaudron J agreed with Deane J: at 392. Dawson J was of the view that a law which imposed a burden upon interstate intercourse would be valid provided that the burden was no more than was reasonably required to [page 419] achieve an object which was otherwise within power: at 366. Toohey J argued that the law at issue did not infringe s 92 because it did not impose an undue restriction upon interstate communication nor did it restrict interstate freedom of movement: at 384. McHugh J indicated that freedom of interstate intercourse is wider than freedom of interstate trade and commerce, and may be infringed by measures which do not constitute a discriminatory burden of a protectionist character: at 395. 705 In AMS v AIF (1999) 199 CLR 160; 163 ALR 501; [1999] HCA 26 Gleeson CJ, McHugh and Gummow JJ noted that in a s 92 challenge the court examines the ‘practical operation’ of the impugned law: at [34]. They argued that the views of Mason CJ, Deane, Dawson, McHugh and Toohey JJ in Cunliffe were similar to the Privy Council’s views in the Bank Nationalisation case (1949) 79 CLR 497 regarding ‘reasonable regulation’: at [43]. This necessitates a fact-specific analysis in each case: at [43]. So far as custody and guardianship legislation is concerned, they stated that they did not deny that ‘s 92 may not put beyond … power the making of orders which have a practical effect of imposing upon the freedom of intercourse … an impediment greater than that reasonably required to achieve the object of the legislation’: at [46]. Gaudron J indicated that interstate intercourse for both temporary and permanent purposes is protected by s 92: at [97]. Freedom of interstate intercourse is wider than freedom of interstate trade, for freedom of interstate intercourse is protected against more than discriminatory burdens of a protectionist character: at [98]. The test for infringement of the freedom of interstate intercourse under s 92 is also more stringent than the test for infringement of the implied freedom of political communication: at [101].

Kirby J stated that freedom of interstate intercourse under s 92 ‘clearly extends to migration and movement of persons across State borders’: at [153]. Section 92 may be infringed by court orders as well as by legislation: at [157]. Hayne J indicated that ‘custody and guardianship legislation may present a question whether the statute empowers the making of orders that have a practical effect of imposing upon freedom of intercourse an impediment greater than reasonably required to achieve the object of the legislation’: at [221]. However, he added that a proper exercise of such a statutory discretion would not impose a greater burden than was reasonably required: at [221]. In APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44 the court held that freedom of interstate intercourse was not violated by a State regulation which prohibited the advertising of legal services regarding personal injury actions. Gleeson CJ and Hayne J held that the regulations did not have the object of impeding interstate intercourse. Applying the test from AMS v AIF, the object of the law was to prohibit the advertising of legal services provided within the State. This object necessitated a general prohibition upon such advertising. The impediment to interstate intercourse was thus no greater than was reasonably required to achieve that object: at [38]. Gummow J held that where an activity was both trade or commerce and interstate intercourse, the validity of a law regulating that activity was to be assessed solely on the basis that the activity was trade or commerce: at [165]. Applying the same test to assess validity, he also upheld the regulation: at [177], [179]. The object of prohibiting the advertising of legal services could not be achieved if advertising from other States was permitted: at [179]. Hayne J expressed skepticism about treating the freedoms of interstate trade and commerce and interstate intercourse as subject to different tests for validity, given that it was a ‘composite expression’: at [402]. He held that where a law regulated interstate intercourse that was also interstate trade and commerce, the validity of the law was to be assessed based [page 420]

upon the test applicable to interstate trade and commerce. The test was thus whether the law imposed a discriminatory burden of a protectionist kind: at [408]. He applied the AMS test: at [420]. He observed that statutes would only rarely fail that test, which brought into question the usefulness of having a separate test for validity: at [421]. He held that the regulation passed the AMS test: at [427]. Callinan J also held that the regulation did not violate freedom of interstate intercourse: at [463]–[464]. For a discussion of this case, see Stellios (2006) 17 Public LR 10. 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.

706 The operation of this paragraph has long been exhausted, since uniform customs duties came into effect on 8 October 1901. See AttorneyGeneral’s Department, 1980, p 295. The Constitutional Commission recommended the repeal of this paragraph. See Constitutional Commission, 1988, Vol 2, pp 803, 814.

PAYMENT TO STATES FOR FIVE YEARS AFTER UNIFORM TARIFFS 707 Section 93. During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides — (i)

(ii)

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: 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.

See Quick and Garran, 1901, pp 860–3 (Revised ed, 2015, pp 1044–8); Attorney-General’s Department, 1980, pp 347–9; Lane, 1997, pp 739–40. 708

This section embodies the second stage of the distribution structure

provided for in the Constitution. It was to operate for five years from the imposition of the uniform tariff (that is, from 1901) and then until the Parliament otherwise provided. The bookkeeping procedure laid down in s 89 was to apply to this period subject to the modifications prescribed in subs (i). The effect of this subsection was described by Moore (1910, p 532) as follows: [T]he interest of those States whose import trade was largely not direct from foreign countries but through some distributing centre, such as Sydney or Melbourne, within the Commonwealth, was protected by a provision that, where imported goods passed into other

[page 421] States for consumption, the duty should be taken to have been collected in and therefore be credited to the consuming State.

The distribution sections (ss 89, 93) operating for the first seven years of Federation, while conferring upon the States a legal right to surplus revenue, did not guarantee to the States a fixed return as the Commonwealth could determine the amount which was to be expended for its own purposes. See Moore, 1910, p 533. It was for this reason that s 87 was inserted in the Constitution. In Ha v New South Wales (1997) 189 CLR 465 at 493; 146 ALR 355 the majority stated that s 93 ‘does not imply that to be a duty of excise, an impost must be a tax on goods the discrimen of liability to which is their production or manufacture in Australia’. In 1908 the Commonwealth enacted legislation which provided that the arrangements in the second subsection of s 93 would expire upon commencement of the Act. See Surplus Revenue Act 1908 (Cth) s 3. The Constitutional Commission recommended the repeal of s 93. See Constitutional Commission, 1988, Vol 2, p 845.

DISTRIBUTION OF SURPLUS 709 Section 94. 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.

See Quick and Garran, 1901, pp 863–5 (Revised ed, 2015, pp 1048–51); Myers (1970) 7 MULR 549 at 564; Attorney-General’s Department, 1980, pp 349–50; Lane, 1997, p 740; Twomey, 2004, p 848; Lawson (2006) 29, 2 UNSWLJ 114 at 137–40; Lawson (2008) 32 MULR 879 at 890–4; Faulkner and Orr, 2013, pp 272–3 (no 1497). 710 With the expiration of the fixed periods for distribution, the federal Parliament was to have power to make provision for the distribution of surplus revenue to the States. Such generosity was not forthcoming. In New South Wales v Commonwealth (1908) 7 CLR 179 the Commonwealth had enacted the Surplus Revenue Act 1908 (Cth) which provided that payments made to trust funds of moneys appropriated for the purposes of the Commonwealth, should be deemed to be expenditure: at 197, 204. In the same year, the Old Age Pensions Appropriation Act and the Coast Defence Appropriation Act were passed. These Acts directed that certain sums in excess of Commonwealth requirements for the financial year should be paid into trust funds to be used for defraying the costs of these services in succeeding years: at 186. The effect of this legislation was to eliminate any surplus revenue. The High Court held that money so appropriated was expenditure within the meaning of s 89 and could not therefore form part of the surplus revenue distributable under s 94. See Hannan in Else-Mitchell, 1961, pp 251–2. In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [240] Gummow, Crennan and Bell JJ summarised the effect of that case as follows: ‘the Commonwealth has no obligation to tailor its expenditure to provide a surplus’. See similarly, Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [250]. The likelihood of a distribution of surplus revenue to the States is now ‘remote’. See Combet v Commonwealth (2005) 224 CLR 494; 221 ALR 621; [2005] HCA 61 at [139]. [page 422] In Victoria v Commonwealth (1975) 134 CLR 338 at 357; 7 ALR 277

Barwick CJ wrote of s 94: It is as necessary now, with the uniform tax and reimbursement grant legislation in operation, that the claim of the States on the Consolidated Revenue Fund through s 94 be recognised and respected as it was when the principles of federation were in negotiation. The purpose of the restraint on the Parliament’s legislative power to appropriate and authorize the expenditure of the Consolidated Revenue Fund is presently the same as it was in 1900, namely, the ensuring of surplus revenue so that there can be State participation in that Fund.

CUSTOMS DUTIES OF WESTERN AUSTRALIA 711 Section 95. 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. 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, fourfifths, 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.

See Quick and Garran, 1901, pp 865–8 (Revised ed, 2015, pp 1051–4); Attorney-General’s Department, 1980, pp 350–1; Brazil and Mitchell, 1981, pp 110–11 (no 88); Lane, 1997, pp 740–1. 712 This section was designed to alleviate the special difficulties of Western Australia, which more than any other State relied upon customs duties on goods imported from other parts of the Australian continent. Accordingly, this section introduced a special provision for the State that, during the period of five years after the introduction of the uniform tariff, the Western Australian Parliament could impose duties upon goods passing into the State from another State, and which had not been originally imported from abroad. The rate was to be determined according to the method laid down in the section. It was a reducing rate and was to cease at the end of the fifth year after the imposition of the uniform tariff by the federal Parliament. The duties were to be collected by the Commonwealth. The Constitutional Commission

recommended the repeal of s 95. See Constitutional Commission, 1988, Vol 2, p 845.

FINANCIAL ASSISTANCE TO STATES 713 Section 96. During a period often 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.

[page 423] See Quick and Garran, 1901, pp 868–71 (Revised ed, 2015, pp 1054–8); SG Opinion No 1877 of 29 March 1950; Myers (1970) 7 MULR 549; Saunders (1978) 11 MULR 369; Attorney-General’s Department, 1980, pp 352–4; Saunders in Craven, Debates, 1986, Vol VI, pp 149–72; Saunders (1988) 16 MULR 1, 699; Constitutional Commission, 1988, Vol 2, pp 835–8; Coper, 1988, pp 194–200; Lane, 1997, pp 741–7; James, 2000; Moeller and McKay (2000) 17 EPLJ 294; Dalton (2006) 10 Southern Cross ULR 43; Lloyd (2011) 33 Syd LR 137; Ratnapala and Crowe, 2012, pp 356–7; Hanks, Gordon and Hill, 2012, pp 353–66; Chordia, Lynch and Williams (2013) 37 MULR 189 at 215–18; Faulkner and Orr, 2013, pp 749–50 (no 1736); Guy, 2013, pp 513–7; Clarke, Keyzer and Stellios, 2013, pp 651–70; Gerangelos et al, 2013, pp 740–81; Crowe and Stephenson (2014) 33 UQLJ 221; Joseph and Castan, 2014, pp 364–78; Williams, Brennan and Lynch, 2014, pp 1067–80; Stellios, 2015, pp 518–22. 714 This clause was included within the Constitution to provide some flexibility in Commonwealth–State financial relations, which were rigidly controlled in the early period of Federation by the distribution clauses: ss 87, 89, 93. This clause was also included to assist the smaller States which stood to lose most by the last-minute compromise at the Premiers Conference in 1899 which restricted the operation of the Braddon Clause (s 87) to an initial period of 10 years. See Quick and Garran, 1901, p 869 (Revised ed, 2015, p 1055). The historical rationale for this provision belies the fundamental importance which it now has for Commonwealth–State financial relations.

The Federal Financial Relations Act Act 2009 (Cth) provides that each State is to receive a goods and services tax revenue grant adjusted for its population: s 5. The Commonwealth may provide general purpose financial assistance to the States: s 9(1). These payments may be spent for any purpose: s 3(a). National specific purpose payments may be provided for expenditure in relation to three specific sectors: ss 12–14. These payments must be spent in the sector for which they are allocated: s 3(b). The Minister may determine that a State should receive an assistance payment for expenditure in accordance with the National Health Reform Agreement: s 15A(1). National partnership payments may be made to assist the States to complete specific projects or to undertake reforms or to reward the making of reforms: s 16(1). The Act has reduced the conditionality attached to national specific purpose payments, while leaving non-national payments subject to conditionality. See Webb, 2009, p 15. 715 The tied or special purpose grant has received the most judicial consideration. In Victoria v Commonwealth (1926) 38 CLR 399 the court considered whether the Commonwealth could attach conditions to a grant which in effect determined the purposes to which the grant was to be applied and the manner in which those purposes would be effectuated. The legislation in question authorised the execution of a road aid agreement between the Commonwealth and the States under which money was made available to the States for road construction and reconstruction purposes: at 400, 405. The agreement prescribed the types of roads which could be built. It further provided that future payments were dependent upon the Commonwealth being satisfied that the roads were properly maintained by the States. The High Court held that s 96 authorised the law: at 405. In Victoria v Commonwealth (1957) 99 CLR 575 at 606 Dixon CJ summed up the effect of this decision as follows: … the power conferred by [s 96] 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.

[page 424]

The full significance of s 96 was not to be realised until South Australia v Commonwealth (1942) 65 CLR 373 (the First Uniform Tax case). That case established the right of the Commonwealth to attach conditions to grants that reached into the heart of State governmental power. The central Act of the legislative scheme provided (at 375–6): In every financial year during which this Act is in operation in respect of which the Treasurer is satisfied that a State has not imposed a tax upon incomes, there shall be payable by way of financial assistance to that State the amount set forth in the schedule to this Act against the name of that State, less an amount equal to any arrears of tax collected by or on behalf of that State during that financial year.

In other words, the grant was conditional upon the abstention of the States from imposing their own income taxes. The States challenging the legislation argued that this was an attempt by the Commonwealth to use its powers to weaken the constitutional position of the States. The court upheld the validity of the legislation. The vital distinction was drawn between a coercive law (which would be unconstitutional) and a law which merely provided a financial inducement to a State not to exercise its powers in a particular way: at 417, 436, 463–4. The Grants Act fell within this latter category: at 418, 436, 464. 716 Dixon CJ did not sit in the First Uniform Tax case. In Victoria v Commonwealth (the Second Uniform Tax case) (1957) 99 CLR 575 Dixon CJ indicated that, if the matter had been before the court afresh, support existed for the proposition that s 96 could not be applied in this way. He said (at 609): 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.

However, he added that ‘the course of judicial decision has put any such limited interpretation of s 96 out of consideration’: at 609. In so far as the Grants Act did not amount to a coercive law, it could not be impugned: at 610, 636–7, 658. The Commonwealth Parliament would not be competent to attach to a State grant a condition that the State should abdicate a field of constitutional power. This would also infringe the principle that a State Parliament cannot bind a future Parliament as to matters of substance. See South Australia v

Commonwealth (1942) 65 CLR 373 at 416. Nor would it be able to impose a condition that flouted a constitutional prohibition. See Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 at 593, 618, 621, 649–51; 33 ALR 321; ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 at [46], [174]. 717 It is clear that the Commonwealth has power to impose a wide range of conditions in its State grants legislation which will have an important effect upon the manner in which the concurrent or residuary powers of the States are exercised. The areas in which ‘special purpose’ grants have been made to the States include health, education, transport, roads and the environment. Such grants have been made upon conditions which involve control by the Commonwealth over the development of State policies. In a number of cases the conditions attached to Commonwealth approval have involved Commonwealth determination of priorities in the area not only of capital expenditure but also of recurrent expenditure. The consequence is that what legally is a ‘fiscal incentive’ has become a means whereby the Commonwealth has exercised at least a general policy influence upon various areas within State residuary power. [page 425] However, while s 96 allows the Commonwealth to enter into areas of State legislative power, that may only take place with the consent of a State. See Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 at [148], [248], [501]. A State cannot be compelled to accept moneys. See Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 at 592; 33 ALR 321. 718 In contrast to the taxation and bounties provisions of the Constitution which forbid discrimination, there is no requirement that grants made under s 96 should not discriminate between States. In Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd (1939) 61 CLR 735 (HC); (1940) 63 CLR 338 (PC) the Commonwealth and the States agreed to introduce a wheat stabilisation scheme to assist wheat growers. Under the agreement

Commonwealth legislation imposed an excise tax on flour: at 344. The proceeds from this tax were placed in a special fund to be returned to the States which would use the money to assist the growers: at 340. In the case of Tasmania no such conditions were attached to the grant because it was not a wheat-growing State. It was recognised that Tasmania would use the money to relieve the persons who had paid the flour tax in that State: at 340–1, 345. The scheme was challenged on the ground that it amounted to an unconstitutional discrimination between the States. The High Court held that there was nothing to prevent the power conferred by s 96 from being exercised in this manner. The High Court judgment was upheld by the Privy Council on appeal. The Privy Council stated that s 96 ‘does not prohibit discrimination’ between the States: at 349. By way of obiter dictum the Privy Council suggested that ‘[u]nder 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’: at 350. But see South Australia v Commonwealth (1942) 65 CLR 373 at 428. 719 Several cases have considered the interaction of s 96 with the acquisitions power (s 51(xxxi)). In P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 the High Court invalidated federal legislation that gave effect to a Commonwealth–State agreement on the settlement of ex-soldiers on the land. Under the agreement the Commonwealth undertook to grant financial assistance to the States for the acquisition of land by the States after the end of the Second World War but on pre-1942 prices: at 398, 421, 424– 5, 428. The basis of compensation did not comply with the ‘just terms’ requirement of s 51(xxxi). The majority held that the legislation was in substance legislation with respect to the acquisition, and therefore invalid since it did provided ‘just terms’: at 403, 406, 424, 429. In ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 the Commonwealth argued that Magennis should be overruled: at [33]. The majority affirmed the continuing authority of that decision. French CJ, Gummow and Crennan JJ held that Magennis was correct and should not be reconsidered: at [40]. A grant to a State under s 96 may not be made on the condition that the State acquire property without providing just terms: at [46]. Heydon J agreed with French CJ, Gummow and Crennan

JJ: at [174]. Hayne, Kiefel and Bell JJ did not find it necessary to decide this issue: at [141]. It is possible that the characterisation question will be relevant in determining the validity of grants legislation which also regulates a subject matter outside Commonwealth power or to which some constitutional impediment is directed. In fact the problem raised in the Magennis case can often be overcome if the Commonwealth–State arrangements are not ratified by legislation but are merely left to operate on the administrative level. The actual grant therefore would be isolated from the subject matter to be regulated under State legislation. It was in this way that the land settlement scheme was successfully operated [page 426] after the Magennis decision. See Sawer, 1967, p 110; ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 at [36], [39].

AUDIT 720 Section 97. 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.

See Quick and Garran, 1901, p 872 (Revised ed, 2015, p 1059); Lane, 1997, pp 747–8; Lawson (2006) 29, 2 UNSWLJ 114 at 126, 143. 721 Under this section the Commonwealth Parliament has power to make laws with respect to auditing of the receipt and expenditure of moneys on account of the Commonwealth. Until the enactment of Commonwealth legislation (which occurred in 1901) State laws were to apply to the auditing of Commonwealth moneys within each State. A majority of the High Court

suggested that this provision shows that the constitutional dispositions regarding finance were drafted upon the basis that expenditure by the executive would be reviewed by an auditor who reported to Parliament. See Combet v Commonwealth (2005) 224 CLR 494; 221 ALR 621; [2005] HCA 61 at [140]. Until 1997 audit procedures were regulated by the Audit Act 1901 (Cth). Under the former fund accounting system, there was a Consolidated Revenue Fund, Loan Fund, Reserved Money Fund and Commercial Activities Fund. The Audit Act was repealed by the Audit (Transitional and Miscellaneous) Amendment Act 1997 (Cth) s 3 and Sch 1. Under the Financial Management and Accountability Act 1997 (Cth) the previous fund accounting system was replaced by Special Accounts within the Consolidated Revenue Fund: ss 20–21, as amended in 1999. There was only one Fund, the Consolidated Revenue Fund. See House of Representatives Hansard, 10 February 1999, p 2284. The Special Accounts were ‘ledgers of the [Consolidated Revenue Fund], rather than separate funds’. See Lawson (2006) 29, 2 UNSWLJ 114 at 126. The Special Account provisions of the 1997 Act were repealed by the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 (Cth) Sch 2 Pt 1 item 6. Similar provisions regarding Special Accounts are now contained in the Public Governance, Performance and Accountability Act 2013 (Cth) ss 78, 80. The Auditor-General Act 1997 (Cth) provides that the Auditor-General is an independent officer of Parliament: s 8(1). Subject to the Act and other federal laws, the Auditor-General has ‘complete discretion’ in the exercise of his or her powers. For example, the Auditor-General cannot be directed as whether a particular audit should be undertaken, or as to the manner in which it is to be carried out: s 8(4). Other provisions provide further protection for the independence of the Auditor-General. The incumbent may be removed upon an address by each House of Parliament on the ground of misbehaviour or physical or mental incapacity: Sch 1, cl 6(1). The incumbent [page 427]

must be removed if they become bankrupt: Sch 1, cl 6(2)(a). No one may be reappointed to the office: Sch 1, cl 1(4). An incumbent will thus have no reason to act in a manner likely to encourage reappointment to the office. For discussions of the office of Auditor-General, see Lawson (2009) 16 Aust J Admin L 90; Hamilton, 2015. Under the Public Governance, Performance and Accountability Act 2013 (Cth) the Auditor-General either audits each Commonwealth company or, if someone else is the auditor, makes a report about the company’s financial statements: s 98(1). In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 Hayne and Kiefel JJ stated that the Financial Management and Accountability Act 1997 (Cth) and the Auditor General Act 1997 (Cth) were supported by the incidental power (s 51(xxxix)) since their subjects were incidental to the Commonwealth Parliament’s power of appropriation under ss 81 and 83 of the Constitution: at [295]. The Constitutional Commission recommended the repeal of s 97 as ‘redundant’. See Constitutional Commission, 1988, Vol 2, p 845.

TRADE AND COMMERCE INCLUDES NAVIGATION AND STATE RAILWAYS 722 Section 98. 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.

See Quick and Garran, 1901, pp 872–5 (Revised ed, 2015, pp 1059–63); Attorney-General’s Department, 1980, pp 354–7; Zelling (1984) 58 ALJ 8 at 16; Constitutional Commission, 1988, Vol 2, pp 847–50; Lane, 1997, p 749; Davies and Dickey, 2004, pp 14–17. 723 Section 98 merely explains the meaning of the words ‘trade and commerce’ within the trade and commerce power: s 51(i). Those words extend to navigation, shipping and State railways. See Owners of SS Kalibia v Wilson (1910) 11 CLR 689 at 697, 707; Australian Steamships Ltd v Malcolm (1914) 19 CLR 298 at 314; Australian Coastal Shipping Commission v O’Reilly

(1962) 107 CLR 46 at 54; Amarantos Shipping Co Ltd v South Australia (2004) 87 SASR 528; 205 ALR 459; [2004] SASC 57 at [24]. Section 98 is thus not an independent head of power. For example, in Owners of SS Kalibia v Wilson (1910) 11 CLR 689 it was held that it was not within the power of the Commonwealth Parliament to legislate with respect to the relationship between employers and employees on ships trading entirely within the limits of one State: at 697, 701, 709, 712–3, 718. In Newcastle and Hunter River Steamship Co Ltd v Attorney-General (Commonwealth) (1921) 29 CLR 357 it was held that the Commonwealth Parliament was not at liberty to regulate the manning of ships not engaged in interstate or foreign trade or commerce merely because they went on the high seas or in waters used by ships engaged in interstate or foreign trade or commerce: at 368. Similarly, it was held in R v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411 that Parliament was not at liberty to direct a Court of Marine Inquiry ‘to deal with a collision between two vessels not engaged in interState or foreign trade or commerce merely because the collision occurred in a navigable river in a State, at a short distance outside the course ordinarily used by ships engaged in such trade or commerce, and shortly after the colliding vessels had traversed part of such course’: at 425. [page 428] In Australian Steamships Ltd v Malcolm (1914) 19 CLR 298, Gavan Duffy and Rich JJ paraphrased s 98 as saying ‘in effect that the power to make laws with respect to trade and commerce shall include a power to make laws with respect to navigation and shipping as ancillary to such trade and commerce’: at 335. The court held that the Seamen’s Compensation Act 1911 (Cth) was a valid exercise of the legislative power of the Commonwealth Parliament: at 327, 334, 335–6, 342. Gavan Duffy stated (at 335) that s 98: … authorizes Parliament to make laws with respect to shipping and the conduct and management of ships as instrumentalities of trade and commerce, and to regulate the relations and reciprocal rights and obligations of those conducting the navigation of ships in the course of such commerce both among themselves and in relation to their employers on whose behalf the navigation was conducted.

724 In Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46 Dixon CJ treated it as beyond doubt that the combination of s 51(i) with s 98 gave the ‘widest power to deal with the whole subject matter of navigation and shipping in relation to trade and commerce with other countries and among the States’. That power ‘necessarily includes complete power to establish a government shipping line for the purpose of such trade and commerce’: at 54. In Robinson v Western Australian Museum (1977) 138 CLR 283; 16 ALR 623 Mason J suggested that ss 51(i) and 98 might provide sources of power for legislation dealing with offshore wrecks: at 335. More generally, it was held in Morgan v Commonwealth (1947) 74 CLR 421 that ss 98–102 inclusive of the Constitution should be read as applying only to laws enacted under the trade and commerce power (s 51(i)): at 455. The reference in s 98 to ‘railways the property of any State’ was included to remove any doubt as to whether s 51(i) would be construed to extend the authority of the Commonwealth to the government railways of the States. See Quick and Garran, 1901, p 875 (Revised ed, 2015, p 1062).

COMMONWEALTH NOT TO GIVE PREFERENCE 725 Section 99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

See Quick and Garran, 1901, pp 875–9 (Revised ed, 2015, pp 1063–8); Opinion No 1812 of 18 July 1947; Menhennitt in Else-Mitchell, 1961, pp 290–2; Rose in Zines, 1977, pp 193–210; Constitutional Commission, 1988, Vol 2, pp 814–17; Saunders in Lindell, 1994, pp 214–28; Lane, 1997, p 749; Hanks, Gordon and Hill, 2012, pp 325–33; Faulkner and Orr, 2013, pp 237– 8, 483–5, 500–5, 733–4, 765–70 (nos 1479, 1604, 1613, 1730, 1740); Clarke, Keyzer and Stellios, 2013, pp 590–600; Pyke, 2013, pp 274–8; Gerangelos et al, 2013, pp 724–40; Simpson (2014) 25 Public LR 93; Williams, Brennan and Lynch, 2014, pp 284–95. 726 Section 99 is a prohibition directed to the Commonwealth legislature and executive. See Elliot v Commonwealth (1936) 54 CLR 657 at 682, 693. To establish that s 99 has been contravened, three things must be established.

First, the impugned Commonwealth law or regulation must be one of trade, commerce or revenue. In Morgan v Commonwealth (1947) 74 CLR 421 regulations for the rationing of [page 429] goods were not generally applicable throughout Australia. The first question was whether the regulations came within the description ‘any law or regulation of trade, commerce, or revenue’. It was held that they did not, and that the description included, so far as trade and commerce was concerned, only laws enacted under s 51(i) of the Constitution: at 455. See also Chau v Director of Public Prosecutions (1995) 37 NSWLR 639 at 645; 132 ALR 430. In Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 the court held that the reference to laws or regulations of ‘revenue’ in s 99 was not limited to laws enacted under the taxation power in s 51(ii): at [83], [96]. Revenue laws enacted under other powers were also caught by s 99. Thus a taxation law enacted under the exclusive power with respect to Commonwealth places (s 52(i)) could constitute a law of ‘revenue’ under s 99: at [84]. The Water Act 2007 (Cth) provides that where s 99 would be infringed by a provision of the Act that was enacted under the trade and commerce power or the corporations power, the provision relies upon any other head of Commonwealth legislative power that would support its operation: s 11(1). 727 Second, it is necessary to establish that a preference has been given. In Crowe v Commonwealth (1935) 54 CLR 69 at 92 Dixon J defined the ‘preference’ prohibited by s 99 as follows: In relation to trade and commerce, as distinguished from revenue, the preference referred to by sec 99 is evidently some tangible advantage obtainable in the course of trading or commercial operations, or, at least, some material or sensible benefit of a commercial or trading character.

In that case it was held that no tangible or material advantage was given to the trade and commerce of one State over another by a provision providing for inequality in the number of representatives of growers from different States on a Dried Fruits Control Board: at 82–3, 86, 92, 96.

The position was different in James v Commonwealth (1928) 41 CLR 442. Commonwealth regulations provided that licences permitting interstate carriage of dried fruits could only be obtained from the prescribed authority of the State in which the dried fruits were delivered for carriage. No authority was prescribed for the State of Queensland or the State of Tasmania: at 456. It was held that the regulations gave preference to one State over another State: at 456–7, 462, 464. 728 The fullest description of the concept of a preference is to be found in Elliott v Commonwealth (1936) 54 CLR 657. Federal regulations provided a system for licensing seamen. The system applied only at ports that were prescribed by the Minister as ports for which licensing officers should be appointed. Unlicensed persons were not permitted to engage or be engaged as seamen at the prescribed ports: at 664. The Minister specified ports in four States, but not in the other two States: at 664–5. Latham CJ stated that s 99 should not be construed as prohibiting any differentiation or discrimination: at 668. Section 99 came into operation only if a tangible commercial advantage was given to a State or a part of a State over another State or part of another State: at 669. In the present case, there was difficulty in specifying the nature and the recipients of the preference and no preference had been given: at 670. Dixon J agreed that not every discrimination between States amounted to a preference of one over the other: at 683. But he considered (at 683) that: … the section does not call upon the Court to estimate the total amount of economic or commercial advantage which does or will actually ensue from the law or regulation of trade or commerce. It is enough that the law or regulation is designed to produce some tangible

[page 430] advantage obtainable in the course of trading or commercial operations, or some material or sensible benefit of a commercial or trading character.

In Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 the Mineral Resources Rent Tax took account of liability to pay mining royalties under State law. State mining royalties varied

between the States: at [1]. A reduction in a State royalty would result in a corresponding increase in liability to the Commonwealth tax: at [53], [152]. The court unanimously held that there was no preference because there was no discrimination between States: at [30], [50], [125], [176], [227]. Hayne, Bell and Keane JJ observed that while preference requires discrimination, not every discrimination constitutes a preference: at [124]. French CJ held that s 99 does ‘not prevent the Parliament of the Commonwealth from enacting uniform laws which have different effects in different States because of differences in the circumstances to which they apply, including different State legislative regimes’: at [5]. Crennan J held that the ‘differential or unequal operation’ of a taxation law does not necessarily establish discrimination: at [162]. For a discussion of this case, see Lynch (2014) 38 Aust Bar Rev 183. The preference must be of a commercial character, not a non-commercial character. See Chau v Director of Public Prosecutions (1995) 37 NSWLR 639 at 645, 650–2; 132 ALR 430; R v Scouller [1997] 1 Qd R 415 at 425–6; SLR [1995] HCATrans 266. 729 The third matter that must be established to prove a contravention of s 99 is that the preference is given to one State or any part of it over another State or any part of it. In Elliott’s case the court was divided on the question of whether the prohibited preference must be in relation to a local situation in any part of the six States, or in relation to States or parts of States: at 657. Latham CJ held 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’: at 675. On the other hand, Evatt J (at 693) summarised his views on the question in the following propositions: (II) Sec 99 forbids laws or regulations which accord preferential treatment to persons or things as a consequence of local situation in any part of the six States, regardless of all other circumstances. (III) The section is not infringed if the preferential treatment is a consequence of a number of circumstances, including the circumstance of locality. … (IV) Sec 99 may apply although the legislation or regulations contain no mention of a State eo nomine [in that name], eg, the section may be infringed if preference is given to part of a State (eg, that part of New South Wales which is represented by the port of Sydney) over another State (eg, Western Australia) or any part of another State (eg, Fremantle or

Brisbane).

Dixon CJ adverted to this question in Commissioner of Taxation v Clyne (1958) 100 CLR 246. He confessed that he had ‘the greatest difficulty in grasping what exactly is the requirement that the selection of an area shall be as part of the State’: at 266. He said that he was ‘unable to appreciate the distinction between the selection by an enactment of an area in fact forming part of a State for the bestowal of a preference upon the area and the selection of the same area for the same purpose “as part of the State”’: at 266. 730 While not every discrimination amounts to a preference, there can be no preference without discrimination. See Elliott v Commonwealth (1936) 54 CLR 657 at 683; Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 [page 431] at [124]. The cases regarding the meaning of the expression in s 51(ii), ‘but so as not to discriminate between States or parts of States’, are therefore relevant in determining whether a preference has been given. See Fortescue Metals at [183]. Moreover, there is no clear distinction in meaning between the terms ‘between States or parts of States’ in s 51(ii), and, ‘to one State or any part thereof over another State or any part thereof’ in s 99. In Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 a Commonwealth statute provided that State taxing laws that were inapplicable by the operation of s 52(i) of the Constitution applied in relation to Commonwealth places: at [16]. The court held that the Act did not work an impermissible preference. While preference involved discrimination, discrimination did not necessarily involve preference: at [88]. The Act treated each State in the same way across its entire area. The taxation laws applied to Commonwealth places were the same as those in the surrounding States, so Commonwealth places had no advantage over the remainder of the States in which they were situated: at [91]. ‘The differential treatment and unequal outcome that is involved here is the product of

distinctions that are appropriate and adapted to a proper objective’: at [91]. The taxation consequences varied between States only because of the different State laws. In Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 Hayne, Bell and Keane JJ indicated that the reference to ‘parts of States’ suggested that the prohibition was directed to laws that discriminate on the basis of ‘geography or locality’: at [70], [83]. In Queensland Nickel Pty Ltd v Commonwealth (2015) 318 ALR 182; 89 ALJR 451; [2015] HCA 12 it was argued that tax reductions available to nickel producers under the carbon tax scheme gave a preference to Western Australia over Queensland: at [9]–[12]. The plaintiff operated a nickel refinery in Queensland: at [16]. Three other nickel producers operated refineries in Western Australia: at [18]–[20]. It was argued that the tax reductions discriminated between States because they were based upon industry averages so the same reductions applied to nickel producers irrespective of differences between the individual producer’s inputs, processes and outputs: at [50]. Those inputs, processes and outputs were caused by ‘differences in natural, business or other circumstances’ between the places of production and thus the States where they were located: at [51]. The court unanimously held that the tax reductions did not discriminate between States. It applied to nickel producers irrespective of the State in which they operated. In their practical effect the plaintiff had argued only that the differences between inputs, processes and outputs were due to ‘differences in natural, business or other circumstances’ between the States in which the producers were located: at [56]. Even assuming that ‘differences in natural, business or other circumstances’ could attract the operation of s 99, on the facts the differences between the inputs, processes and outputs of the producers were not caused by differences between the States as regards ‘natural, business or other circumstances’: at [58]. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248 at 276–7; 109 ALR 1 Brennan, Deane and Toohey JJ stated: The prohibition in s 99 against the Commonwealth giving legislative preference to any State or part thereof over another State or part thereof would be undermined if the Parliament, upon creating subsidiary legislatures pursuant to s 122 for territories carved out of the territories of the

States, were able to confer on those legislatures power to create preferences that the Parliament could not have created had those territories remained parts of the territories of the respective States.

[page 432] A preference over a territory is not prohibited by s 99, which limits only preferences over a State or a part thereof. See Kithock Pty Ltd v Commissioner for Australian Capital Revenue (1999) 138 ACTR 1; [1999] ACTSC 85 at [62]. A number of Commonwealth statutes provide that the powers conferred by the Act must not be exercised so as to give a preference that is prohibited by s 99. See Dairy Produce Act 1986 Sch 2 cl 103(9); Petroleum Revenue Act 1985 s 4; Primary Industries Levies and Charges Collection Act 1991 s 14; Environment Protection and Biodiversity Conservation Act 1999 s 312; Biosecurity Act 2015 (Cth) s 29.

NOR ABRIDGE RIGHT TO USE WATER 731 Section 100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

See Quick and Garran, 1901, pp 879–94 (Revised ed, 2015, pp 1068–88); Attorney-General’s Department, 1980, p 362; Constitutional Commission, 1988, Vol 2, pp 847–50; Lane, 1997, p 750; Williams, 2005, pp 795–6; Kelly (2007) 30 UNSWLJ 639; Williams and Webster (2010) 21 Public LR 267; Kildea and Williams (2010) 32 Syd LR 595 at 608–12; Webster and Williams (2012) 29 Environmental and Planning LJ 281 at 291–4; Preston-Samson (2012) 29 Environmental and Planning LJ 373; Hanks, Gordon and Hill, 2012, pp 453– 4. 732 Under s 98 the Commonwealth may regulate matters pertaining to navigation on interstate rivers. In Morgan v Commonwealth (1947) 74 CLR 421 it was held that this section operates only as a restriction upon the power of the Commonwealth when legislating under ss 51(i) and 98: at 455, 458–9.

In Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625 it was held that s 100 was not infringed by the World Heritage Properties Conservation Act 1983 (Cth) as the relevant provisions were not laws or regulations of trade and commerce: at 153–5, 182, 248–9, 251. Mason, Murphy and Brennan JJ adopted the approach taken in Morgan, holding that s 100 applied only to laws enacted under ss 51(i) and 98 of the Constitution. Deane J found it unnecessary to decide that point. The dissenting judges also found it unnecessary to consider this point: at 119, 204, 323. In Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; 263 ALR 193; [2010] HCA 3 the court held that the words ‘waters of rivers’ in s 100 did not include underground waters: at [26], [29], [55], [58], [75]. None of the judges found it necessary to consider the correctness of the Morgan interpretation of s 100: at [23], [53], [76], [83] In Lee v Commonwealth (2014) 229 FCR 431; 315 ALR 427; [2014] FCAFC 174; SLR [2015] HCATrans 123 the Full Federal Court applied the Morgan approach: at [87], [109]–[110]. The court also held that s 100 did not create a private right to sue for damages for its breach: at [185]. The Water Act 2007 (Cth) provides that where s 100 would be infringed by a provision of the Act that was enacted under the trade and commerce power or the corporations power, the provision relies upon any other head of Commonwealth legislative power that would support its operation: s 11(1). [page 433]

INTER–STATE COMMISSION 733 Section 101. 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.

See Quick and Garran, 1901, pp 895–901 (Revised ed, 2015, pp 1088–96); Moore, 1910, pp 573–6; Crommelin and Evans in Evans, 1977, pp 35–7;

Attorney-General’s Department, 1980, pp 362–3; Radbone (1982) 41 Aust J Public Admin 323; Constitutional Commission, 1988, Vol 2, pp 838–45; Starke (1988) 62 ALJ 586; Starke (1989) 63 ALJ 386; Coper (1989) 63 ALJ 731; Lane, 1997, pp 750–2; Victorian Parliament Federal–State Relations Committee, 1998, pp 17–20; La Nauze, 2001, pp 24–35; Cremean (2009) 83 ALJ 765; Faulkner and Orr, 2013, pp 288–90 (no 1507); Williams, Brennan and Lynch, 2014, pp 490–2. 734 In New South Wales v Commonwealth (1915) 20 CLR 54 the court held that s 101 of the Constitution did not authorise the Parliament to constitute the Inter-State Commission as a court and therefore judicial powers were invalidly conferred upon the Commission: at 65, 92–3, 106, 110. It was argued that the tribunals established under Chapter III of the Constitution were not intended to be the sole repositories of judicial power. In particular it was argued that the phrase ‘powers of adjudication’ showed that the Commission was intended to exercise a limited form of judicial power. The majority rejected this argument. They considered that the phrase ‘powers of adjudication’ imported powers of an administrative or quasijudicial nature: at 64, 93, 106, 109–10. Isaacs J described the Inter-State Commission as follows (at 92): [T]he Constitution provided for the possible establishment of a novel administrative and consultative organ with incidental quasi-judicial functions, very much as a Commissioner of Patents has to exercise quasi-judicial functions before exercising the executive act of issuing a patent … The usefulness of the Commission was not necessarily to stop at sec. 102. It might be seen that the commerce provisions of the Constitution or the Commonwealth laws would be greatly aided if the same body were to have its authority extended, and the ordinary administrative departments might be materially assisted by such an extension.

735 The decision in New South Wales v Commonwealth meant that the powers of the Commission were greatly reduced and it became defunct in 1920. See Sawer, 1956, pp 193 n 81, 204; Attorney-General’s Department, 1980, p 363. The Commission could only exercise the administrative and quasi-judicial functions of executing and maintaining the provisions of the Constitution relating to trade and commerce (such as s 92) and the laws made under those provisions. Legislation to reconstitute the Commission with powers of this nature was passed in 1975. See Inter-State Commission Act 1975 (Cth). The Act was

eventually proclaimed in 1983. See Whitlam, 1985, pp 426–7. The Commission issued a number of reports. See notes (1985) 59 ALJ 1, 513; (1986) 60 ALJ 592; (1987) 61 ALJ 110; (1988) 62 ALJ 745; (1989) 63 ALJ 386; Senate Hansard, 16 June 2003, p 11550. The legislation was repealed by the Industry Commission Act 1989 (Cth) s 48(2). At present there is no InterState Commission. In Lee v Commonwealth (2014) 220 FCR 300; [2014] FCA 432 it was held that the applicants did not have standing to challenge the Commonwealth’s failure to establish the [page 434] Commission: at [189]. The applicants argued that the Murray-Darling Basin Authority had been established ‘in place of’ the Commission. It was held that there was ‘no logical link … between the terms of s 101’ and this claim: at [190]. This holding was not appealed. See Lee v Commonwealth (2014) 229 FCR 431; 315 ALR 427; [2014] FCAFC 174 at [22]; SLR [2015] HCATrans 123. The Australian Inter-State Commission was partially inspired by the United States Interstate Commerce Commission. See Quick and Garran, 1901, p 896 (Revised ed, 2015, pp 1089–90). In contrast to the Commonwealth Constitution, the United States Constitution did not make specific provision for the Commission, which was established by a Congressional statute enacted under the commerce power. See sec 11, Interstate Commerce Act of 1887, ch 104, 4 February 1887, 24 Stat 379; Quick and Garran, 1901, p 521. Like its Australian counterpart, the United States Commission has now been abolished. See sec 101, ICC Termination Act of 1995, Pub L 104–88, 29 December 1995, 109 Stat 803. Some of its functions were transported to a new Surface Transportation Board. See 49 USC 1302 (as renumbered by sec 3, Surface Transportation Board Reauthorization Act of 2015, Public Law 114–110, 18 December 2015, 129 Stat 2228).

PARLIAMENT MAY FORBID PREFERENCES BY

STATE 736 Section 102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or 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.

See Quick and Garran, 1901, pp 901–18 (Revised ed, 2015, pp 1096– 1119); Moore, 1910, pp 584–6; Attorney-General’s Department, 1980, pp 363–4; Brazil and Mitchell, 1981, pp 335–7 (no 279); Brazil and Mitchell, 1988, pp 195–7 (no 714); Lane, 1997, p 752; Williams, Brennan and Lynch, 2014, pp 490–2. 737 Under ss 51(i) and 98 the Commonwealth Parliament has power to legislate with respect to interstate trade carried on by State railways. This section spells out that the power extends to the prohibition of railway preferences or discrimination practised by States. In Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327 at 354–5 Latham CJ described the limitations upon this power as follows: (1) The preference or discrimination must be undue and unreasonable, or unjust to some State. (2) Due regard must be had to the financial responsibilities incurred by the discriminating or preferring State in connection with the construction and maintenance of its railways. (3) It is for the Inter-State Commission, and not for the Parliament itself, to determine, in the case of State railways, whether any preference or discrimination is, within the meaning of the section, undue and unreasonable, or unjust to any State.

This case involved an interpretation of s 92 that was overruled in Hughes and Vale Pty Ltd v New South Wales (No 1) (1954) 93 CLR 1. However, there has been no dissent from the elucidation of s 102 given by Latham CJ. [page 435] In Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; 24 ALR 9 Mason and Jacobs JJ suggested by way of obiter dicta that a

discrimination or preference must be related to the use of railways in order to infringe s 102. Therefore, ‘a preference or discrimination unrelated in any way to the use of any railway but related only to conditions of contracts for the building thereof or of its rolling stock’ would not violate s 102: at 133; see also at 125.

COMMISSIONERS’ APPOINTMENT, TENURE AND REMUNERATION 738

Section 103. The members of the Inter-State Commission —

(i) (ii)

Shall be appointed by the Governor-General in Council: Shall hold office for seven years, but may be removed within that time by the GovernorGeneral 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.

See Quick and Garran, 1901, pp 918–19 (Revised ed, 2015, pp 1119–20); Attorney-General’s Department, 1980, p 365; Brazil and Mitchell, 1981, pp 658–9 (no 513); Lane, 1997, p 753. 739 The tenure of the members of the Commission is set out in this section. It is to be noted that the conditions are similar to those of federal judges (s 72) with the exception that the appointment of Commission members is for a term of seven years. This difference in tenure of office prevents the Commission from being a federal court. See New South Wales v Commonwealth (1915) 20 CLR 54 at 62, 109.

SAVING OF CERTAIN RATES 740 Section 104. Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States.

See Quick and Garran, 1901, pp 920–2 (Revised ed, 2015, pp 1121–4);

Moore, 1910, pp 584–6; Attorney-General’s Department, 1980, pp 365–6; Brazil and Mitchell, 1988, pp 195–7 (no 714); Lane, 1997, p 753. 741 Under s 102, the Commonwealth Parliament could use its trade and commerce power to fix rates for the interstate carriage of goods upon a State railway. Section 104 constitutes a limitation upon this power. This section ‘operates to prevent the Commonwealth Parliament from making certain goods rates unlawful either by direct declaration that they are unlawful or by fixing a different rate as the rate to be applied. The rates which are so protected are such [page 436] as the Inter-State Commission deems to be necessary for the development of the territory of a State’. See Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327 at 356.

TAKING OVER PUBLIC DEBTS OF STATES 742 Section 105. The Parliament may take over from the States their public debts, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable 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. [Section 105 altered, Act No 3 of 1910 s 2]

See Quick and Garran, 1901, pp 922–6 (Revised ed, 2015, pp 1124–8); Attorney-General’s Department, 1980, p 366; Lane, 1997, pp 754–5. 743 This section was designed to permit the transfer of State public debts to the Commonwealth in order to ‘substitute the credit of the Commonwealth for the credit of the States — to make the Commonwealth the debtor to whom the bondholders will have to look, and to release the States from any obligation to the bondholders, imposing on them instead an obligation to

indemnify the Commonwealth for the amount of principal and interest’. See Quick and Garran, 1901, p 924 (Revised ed, 2015, p 1126). It encompassed two alternatives: the taking over of the whole of the State debts existing at Federation or the taking over of part of these debts on a per capita basis. (The words ‘as existing at the establishment of the Commonwealth’ were later deleted by a constitutional amendment in 1910.) The weakness of s 105 was that it provided no basis for coordinating future borrowing. Moreover, the Commonwealth’s duty to contribute to the interest payments on debts taken over was out of the ‘surplus revenue’ of the Commonwealth. Since the events of 1908 showed that the Commonwealth could abolish surplus revenue by a ‘bookkeeping’ operation, the States could not have relied upon s 105 for any permanent guaranteed assistance from the Commonwealth. It was for these reasons that in 1927 a new system was agreed upon by the States and the Commonwealth. The new system became s 105A of the Constitution.

AGREEMENTS WITH RESPECT TO STATE DEBTS 744 Section 105A. (1) The Commonwealth may make agreements with the States with respect to the public debts of the States, including — (a) (b)

the taking over of such debts by the Commonwealth; the management of such debts;

(c)

the payment of interest and the provision and management of sinking funds in respect of such debts; the consolidation, renewal, conversion, and redemption of such debts;

(d)

[page 437] (e) (f) (2) (3) (4)

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

the borrowing of money by the States or by the Commonwealth, or by the Commonwealth for the States. The Parliament may make laws for validating any such agreement made before the commencement of this section. The Parliament may make laws for the carrying out by the parties thereto of any such agreement. 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. [Section 105A inserted, Act No 1 of 1929 s 2]

See Canaway (1939) 12 ALJ 325; SG Opinions No 1804 of 10 June 1947 and No 1923 of 6 December 1950; Hannan in Else-Mitchell, 1961, pp 252–6; Attorney-General’s Department, 1980, pp 367–9; Bankes (1992) 30 Alberta LR 524; Lane, 1997, pp 755–8; James, 2000; Hanks, Gordon and Hill, 2012, pp 351–3; Joseph and Castan, 2014, pp 386–92. 745 This section gave effect to the 1927 financial agreement between the Commonwealth and the States (see cl 15 of the agreement). An excellent description of the 1927 agreement is to be found in the judgment of Rich and Dixon JJ in New South Wales v Commonwealth (No 1) (1931) 46 CLR 155 at 175: By that Agreement the Commonwealth agreed to take over the balance unpaid of the gross public debt of each State, and, in respect of the debts taken over, to assume as between the Commonwealth and the States the liabilities of the State to bondholders. The Commonwealth agreed to pay to bondholders from time to time interest payable on the public debts of the States taken over. Towards the interest payable by the States in each year it agreed to provide certain amounts, and each of the States agreed to pay to the Commonwealth the excess over the amounts so provided necessary to make up the interest charges on its public debt taken over by the Commonwealth. The Commonwealth and the States agreed to establish a sinking fund to answer the public debts taken over, and agreed that the contributions which they each undertook to make should be debts payable to the National Debt Commission. Each State agreed with the Commonwealth that it would by the faithful performance of its obligations under the Agreement indemnify the Commonwealth against all liabilities whatsoever in respect of the public debt of that State taken over by the Commonwealth. The Agreement further contained provisions for the control of future borrowing by the States and the Commonwealth, and of the conversion, renewal, redemption and consolidation of the public debts of the Commonwealth and of the States. As a consequence of these provisions any new securities required, whether upon a conversion or renewal of an existing loan or because of further borrowing, would be issued upon the credit of the Commonwealth.

The 1927 agreement made provision for the Commonwealth to contribute to the payment of interest on the public debts of the States taken over by the Commonwealth. The contribution period was 58 years from 1 July 1927: cl 11(2). In addition, a sinking fund was established for the redemption of the

debts: cl 12A. These sinking funds were to be controlled by the National Debt Commission established by the Agreement: cl 12A(1). [page 438] Further, a Loan Council, consisting of representatives of the Commonwealth and the States, was established to regulate future borrowings: cll 4, 5, 6. The text of the original 1927 agreement appears in Knowles, 1936, pp 167– 79. Amended texts appear in Nicholas, 1952, pp 414–29 and AttorneyGeneral’s Department, 1980, pp 496–513. The Debt Conversion Agreements of 1931 appear in Knowles, 1936, pp 182–6. 746 In 1994 a new financial agreement was signed by the Prime Minister, the six State Premiers and the two Territory Chief Ministers. The text of this agreement is scheduled to the Financial Agreement Act 1994 (Cth). It replaces the 1927 agreement (apart from certain clauses: see cl 16). Clause C of the Preamble to the Agreement stipulates that the Commonwealth and States: … have agreed that in pursuance of section 105a of the Constitution provision as specified in this Agreement different from that in the Principal Agreement should be made as to: (i) the powers of the Loan Council; (ii) the restriction on a State from borrowing by the issue of securities in its own name in domestic and overseas markets; (iii) the requirement on the Commonwealth and on a State for approval of borrowings; and (iv) the power of the Commonwealth to borrow on behalf of the States.

Under the 1994 Agreement, the States may borrow funds ‘on their own behalf’. See Joseph and Castan, 2014, p 391. The Loan Council includes representatives for each State and the Australian Capital Territory and Northern Territory: Preamble D(i), cl 4(1). The Loan Council has the ‘power to make resolutions only’: Preamble D(ii), cl 4(9). The Council determines the total level of public borrowing and allocates the proportion of that borrowing for each jurisdiction. Observance of these limits is voluntary. See Victorian Parliament Federal–State Relations Committee, 1998, p 47. The Consolidated Revenue Fund is appropriated to the extent necessary for

the Commonwealth to carry out the Agreement of the Act: s 5. The Agreement took effect after it was approved by the legislatures of all parties. See Financial Agreement Act 1994 (ACT); 1994 (NSW); 1994 (Qld); 1994 (SA); 1994 (Tas); 1994 (Vic); 1995 (WA); Financial Agreement Between the Commonwealth, States and Territories (Approval) Act 1994 (NT). For discussions of the Loan Council, see Victorian Parliament Federal–State Relations Committee, 1998, pp 45–8; Webb, 2002.

Enforcement of the agreement 747 During the Great Depression the New South Wales government defaulted on the payments which it was obliged to make under the Financial Agreement. Relying upon s 105A(3) of the Constitution, the Commonwealth Parliament enacted the Financial Agreements Enforcement Act 1932 (Cth). The Act was to operate for a period of two years. It provided, inter alia, for the recoupment by the Commonwealth of interest not paid by a State out of that State’s revenue. The legislation was challenged, involving as it did an interference with the State’s constitutional power over the appropriation of its revenue. In New South Wales v Commonwealth (No 1) (1932) 46 CLR 155 the High Court upheld this legislation. Rich and Dixon JJ held that the Commonwealth law was validly enacted to carry out a public debt agreement. ‘A law which provides the alternative to voluntary performance by the parties and compels involuntary satisfaction appears to us to be properly described as a law for the carrying out by the parties thereto of the agreement’: at 178. [page 439] The views of Starke and McTiernan JJ were of similar import: at 187, 230–1. The majority interpretation was further aided by the word ‘binding’ to be found in s 105A(5): at 177, 186. This view of s 105A meant that it constituted an exception to the general principle of intergovernmental immunity, recognised in Australian Railways

Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 352, that the Commonwealth could not interfere with the power of a State to control the appropriation of its revenue. In New South Wales v Commonwealth (No 3) (1932) 46 CLR 246 a section of the Financial Agreements Enforcement Act required the chief executive officer of a bank to furnish a return of the amount of the balance standing to the credit of a State, and to pay the amount of the balance to a person authorised by the Commonwealth: at 258. This section was upheld on the same grounds as were accepted in the earlier case: at 259, 270, 272. The 1927 financial agreement was not a ‘law of the Commonwealth’ for the purposes of the Crimes Act 1914 (Cth). See Sankey v Whitlam (1978) 142 CLR 1 at 30, 75–8, 91, 102, 106; 21 ALR 505; Tasmanian Wilderness Society v Fraser (1982) 153 CLR 270 at 275; 42 ALR 51. In Tasmanian Wilderness Society v Fraser (1982) 153 CLR 270; 42 ALR 51 Mason J stated that ‘the agreement remains as a contract, yet it is a contract entrenched by the Constitution, subject only to its being varied or rescinded by the parties’: at 276.

[page 441]

CHAPTER V THE STATES __________________________ SAVING OF CONSTITUTIONS 748 Section 106. The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

See Quick and Garran, 1901, pp 929–32 (Revised ed, 2015, pp 1131–6); Douglas (1990) 20 UWALR 340; Doyle in Lindell, 1994, pp 47–72; Lane, 1997, pp 758–62; Twomey, 2004, pp 293–6, 797–802; Carney, 2006, pp 63– 5; Hanks, Gordon and Hill, 2012, pp 171–2; Sharpe (2013) 36 UWALR 252; Stellios, 2015, pp 468–9, 503–9. 749 This section makes it clear that the Constitution of each State, as amended from time to time in accordance with the State’s constitutional procedures, will remain unimpaired by the Commonwealth Constitution except to the extent to which the latter otherwise provides or gives to the Commonwealth Parliament power to deal with matters previously falling within State constitutional power. The meaning of the words ‘Constitution of each State’ has not been ‘finally settled’. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [390]. It is clear that those provisions of the State Constitutions dealing with the structure of the legislature, executive and judiciary remain intact, although a number of the powers which were exercised by these organs in pre-Federation times have been withdrawn from the States by being made exclusive to the Commonwealth: see ss 52, 61, 69, 70, 77, 107. Furthermore, concurrent powers of the State Parliaments are subject to the paramount authority of the Commonwealth: ss 107, 108, 109.

Section 106 operates by reference to the State Constitution as it presently exists. See R v Tilley (1991) 56 SASR 140 at 143. 750 The Commonwealth Constitution has had a considerable impact upon the powers of the State Parliaments, State executive governments, and the jurisdiction of State courts to deal with federal matters. The structures of the State Constitutions have generally remained unimpaired except as altered by the Australia Acts 1986 (UK and Cth). Section 7 of the Australia Acts gives recognition to the position of the Crown in each State. It provides for the exercise of the Monarch’s functions by a Governor (except the power of appointment) but these functions may be exercised by the Monarch when she or he is personally present in the State. As to the position of the State executive governments, the Commonwealth Parliament and executive cannot control the exercise of the powers of a State Governor or State Ministers unless these powers have been excluded or limited by the Commonwealth Constitution. The 1891 draft Bill had made provision for all communications between the Governor and the Colonial Office to go through the Governor-General. This provision was dropped because [page 442] of the opposition of a number of the delegates. See Quick and Garran, 1901, p 932 (Revised ed, 2015, p 1135); Bennett, 1971, pp 196–8; La Nauze, 1972, pp 73–4; Williams, 2005, p 455 (reproducing the text of cl 5). 751 In Boath v Wyvill (1989) 85 ALR 621 the Full Federal Court considered that the constitutions of the colonies after Federation differed from what they had been prior to Federation because they were now subject to the Commonwealth Constitution, including express or implied restraints upon the extra-territorial operation of their legislation. Hence interpretation of State legislative competence involved interpretation of ss 106 and 107, even though the particular issue might not arise under those sections: at 634. In SeymourSmith v Electricity Trust of South Australia (1989) 17 NSWLR 648 Rogers CJ indicated his disagreement with this statement: at 654.

In Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362 Wilson and Gaudron JJ considered that ss 106 and 107 militated against a restrictive interpretation of s 118: at 96. (That section provides: ‘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’.) In their view s 118 may displace statute law or act as a restriction upon the power of the States to legislate as to the law to be applied by their courts in matters involving an interstate element. There was no conflict between ss 106 and 107 and this approach to s 118 because ss 106 and 107 were expressed to be subject to the Constitution. Section 118 was not expressed to be subject to the Constitution: at 97. Brennan J argued that s 106 preserved the ‘mutual independence’ of the States except in so far as the Constitution derogates from that independence or makes that independence subject to federal law: at 107. 752 In Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; 88 ALR 12 the unanimous court stated: ‘It is debatable whether a Commonwealth law confirming and conferring legislative power upon the Parliament of a State can properly be seen as in conflict with s 106’s provision for the continuance of the Constitution of the State’: at 381. The court did not have to decide the issue. Section 51(xxxviii) provides that the Commonwealth Parliament ‘shall, subject to this Constitution, have power to make laws … with respect to — [t]he 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’. Both ss 106 and 51(xxxviii) are made ‘subject to this Constitution’. In the event of a conflict between these two provisions which is to prevail? In Port MacDonnell the court held that since the power in s 51(xxxviii) ensured the overall plenitude of Australian legislative power, it should prevail over s 106. Thus the protection of State Constitutions offered by s 106 was subject to the power in s 51(xxxviii): at 381. See similarly, Attorney-General (WA) v Marquet (2003) 217 CLR 545; 202 ALR 233; [2003] HCA 67 at [70], [80]; Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [73]. In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR

106; 108 ALR 577 Brennan and McHugh JJ considered that under s 106 State Constitutions (including their electoral provisions) were not subject to Commonwealth regulation: at 162–4, 241–4. 753 In McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 Brennan CJ argued that ‘the States owe their existence to the Commonwealth Constitution’: at 172. Toohey J expressed a similar view: at 208. He identified s 106 as the present source of the legislative power of the States: at 208. He also argued that s 106 ‘does not effect a blanket importation [page 443] of the Australian Constitution into State Constitutions. To interpret s 106 in this way unduly subjects State Constitutions to the Australian Constitution at the price of the other stated aims of the section’: at 210. Dawson J considered that s 106 does not apply to the States provisions of the Constitution which otherwise have no application to the States: at 189. Gaudron J expressed the view that having regard to the system of representative government created by the Constitution, s 106 requires that the Australian States, ‘as constituent bodies of the federation, be and remain essentially democratic’: at 216. Gummow J held that while the system of representative government created by the Constitution may restrict State legislative power, it does so for the protection of the system of representative government at the federal level: at 286. 754 In Muldowney v South Australia (1996) 186 CLR 352; 136 ALR 18 Brennan CJ argued that the implied freedom of political communication was implied to protect the working of the system of government at the federal level, not the system of government at the State level: at 365. Toohey J reiterated his view from McGinty: at 373–4. Gaudron J indicated that the implied freedom ‘extends to matters within the province of the States’: at 376. Gummow and McHugh JJ did not find it necessary to consider the issue: at 381, 388. In Lange v Australian Broadcasting Corp (1997) 189 CLR 520; 145 ALR 96 the unanimous court stated that the defence of qualified privilege it recognised

in the common law of defamation might extend beyond what is required by the implied freedom of communication because it would be available in respect of communications concerning matters of State and Territory politics, ‘whether or not it bears on matters at the federal level’: at 571. However, the court recognised that there is a substantial overlap between federal and State politics: at 571–2. In Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; 177 ALR 436; [2001] HCA 7 a majority of the court confirmed that the States ‘owe their existence’ to the Commonwealth Constitution: at [10], see also at [74]. 755 As to State courts, in Re Tracey; Ex parte Ryan (1989) 166 CLR 518; 84 ALR 1 a Commonwealth law purported to deny to State courts jurisdiction vested in them by State legislation to try criminal cases brought under State legislation. There are statements in the judgments indicating a significant role for s 106 in protecting State courts from federal interference. Mason CJ, Wilson and Dawson JJ stated: ‘we doubt whether provisions of that kind, which strike at the judicial power of the States, could ever be regarded as within the legislative capacity of the Commonwealth having regard to s 106’: at 547. Brennan and Toohey JJ declared: ‘State courts are an essential branch of the government of a State and the continuance of State Constitutions by s 106 of the Constitution precludes a law of the Commonwealth from prohibiting State courts from exercising their functions. It is a function of State courts to exercise jurisdiction in matters arising under State law’: at 575. See also Gaudron J at 599. In Attorney-General (NSW) v Ray (No 3) (1989) 99 FLR 265; 90 ALR 263 Young J considered that impairment of the Constitution of a State included impairment of the constitution of its courts. Ensuring the attendance of witnesses and the accused in criminal proceedings is integral to the State judicial process. If the actions of a Commonwealth servant cause an accused person or witnesses to fail to appear at trial, the Commonwealth servant would be guilty of contempt notwithstanding that their actions were purportedly authorised by federal law. By virtue of s 106 the Commonwealth law would be invalid unless it could be read down: at 279.

[page 444]

State laws binding the Commonwealth 756 The Constitution of each State grants to the State Parliament a general legislative power to make laws ‘for the peace, order [or welfare] and good government’ of the State. The question arises as to whether that power may be exercised to affect the Commonwealth, its instrumentalities or personnel. It is clear that the Commonwealth enjoys an immunity from the operation of State laws which is far greater than the limited immunity of the States from the operation of Commonwealth legislation. The Commonwealth may, by virtue of s 109, exempt itself and its instrumentalities from the operation of State laws, provided that the exemption is incidental to a Commonwealth head of power. See Commonwealth v Queensland (1920) 29 CLR 1 at 12, 22; Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46 at 56, 61, 71–2. Furthermore, State legislation cannot impinge upon an exclusive power of the Commonwealth. See Attorney-General (NSW) v Collector of Customs for New South Wales (1908) 5 CLR 818 at 835–7, 850, 853. In the absence of Commonwealth legislation regulating the status and powers of a Commonwealth servant, such a person is subject to the civil and criminal law in force in the State in which he or she is resident and carries out his or her duties. See Pirrie v McFarlane (1925) 36 CLR 170 at 180–4, 219, 229; Lee (1987) 17 FL Rev 132. It is equally clear that the States cannot tax the Commonwealth government. The principle in Victoria v Commonwealth (1971) 122 CLR 353 (the Payroll Tax case) does not apply in reverse. In Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 at 22 Dixon J said: To my mind the incapacity of the States directly to tax the Commonwealth in respect of something done in the exercise of its powers or functions is a necessary consequence of the system of government established by the Constitution. It is hardly necessary at this stage of our constitutional development to go over the considerations which make it impossible to suppose that the Constitution intended that the States should levy taxes upon the Commonwealth — the nature of the Federal Government, its supremacy, the exclusiveness or paramountcy of its legislative powers, the independence of its fiscal system and the elaborate provisions of the Constitution governing the financial relations of the central government to the constituent States.

To describe the establishment of the Commonwealth as the birth of a nation has been a commonplace. It was anything but the birth of a taxpayer.

757 A further question is the extent to which a State can affect a prerogative right of the Commonwealth. In Re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 530 Dixon J dissented in relation to this question: 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.

In Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372 Uther’s case was overruled. Dixon CJ now found himself in the majority. The issue was whether a State law could affect the prerogative right of the Commonwealth to payment of certain debts due to it. It was held that it was beyond the constitutional power of a State to affect the prerogative of the Commonwealth. Dixon CJ indicated that he preferred the use of the phrase ‘fiscal right’ rather than ‘the prerogative’. Such fiscal rights of the Commonwealth government could not in any way be modified by State legislation: at 377–8. [page 445] 758 The widest formulation of the doctrine of Commonwealth immunity from State legislation is to be found in the judgment of Fullagar J in Commonwealth v Bogle (1953) 89 CLR 229 at 259: The Commonwealth … 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 the Commonwealth Constitution to the legislative power of any State Parliament.

Under this formulation, the immunity of the Commonwealth could extend beyond the area of the prerogative and fiscal rights to all situations in which the Commonwealth is involved with its citizens. However, neither Dixon CJ or Fullagar J considered that the immunity extended that far. In Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278, Dixon CJ considered that the law of contract might

regulate the formation, performance and discharge of the contracts which the Commonwealth found it necessary to make in the course of the ordinary administration of government. He stated: ‘Where there is no Federal statute affecting the matter, an exercise of the legislative power of the State over the general law of contract might incidentally apply in the case of the Commonwealth alike with the citizen’: at 308. If the Commonwealth as a juristic entity is exempt from the operation of State law, how does it find itself subjected to the rules of contract and other ‘civil’ rules? The answer given by Dixon J (at 308) was: In the practical administration of the law, the decision of questions of that sort depends less upon constitutional analysis than on sec 80 [Common law to govern] and perhaps sec 79 of the Judiciary Act. 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, governmental rights and powers belonging to the Federal executive as such.

759 This dictum holds the key to the answer to the question. It suggests on the one hand a distinction between the federal government acting as a ‘citizen’ within the Territorial boundaries of a State and therefore impliedly accepting the general code of law in force in the State, and on the other hand, acting as the national government in the performance of the functions appropriate to that status. Consequently, in relation to the activities of its servants, it may become subject to the general law of contract or tort (although not in respect of its occupation of places acquired by it, unless adopted by the Parliament). On the other hand, where rights and interests are involved which are peculiar to government or are essential to the maintenance of its status the Commonwealth’s immunity from the operation of State law which would impinge upon those rights and interests comes into play. Section 64 of the Judiciary Act 1903 (Cth) provides: ‘In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same … as in a suit between subject and subject’. Section 79(1) of that Act provides that State or Territory law shall, except as otherwise provided by the Constitution or Commonwealth law, ‘be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable’.

The effect of the decision in Maguire v Simpson (1978) 139 CLR 362; 18 ALR 469 was that the Commonwealth was deprived of certain immunities and privileges by the operation of s 64 (and not s 79) of the Judiciary Act. This Act was the source of authority for the Commonwealth’s subordination to the substantive as well as procedural law of [page 446] a State: at 376–7. This decision therefore constituted an important qualification of the Cigamatic principle. While certain immunities were excluded by the adoption of State legislation abolishing or qualifying such immunities, others were preserved as a result of the words ‘as nearly as possible’ in s 64: at 394–5, 402. 760 The Cigamatic doctrine was further qualified by Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495. The court held that the Cigamatic doctrine did not prevent the application of a State residential tenancies law to the activities of a Commonwealth housing authority. Dawson, Toohey and Gaudron JJ drew a distinction between the capacities of the Crown and activities carried out in exercise of those capacities: at 439. They stated that the effect of Cigamatic was that while a State law may not impair the capacities of the Crown in right of the Commonwealth, ‘the Commonwealth might be regulated by State laws of general application in those activities which it carried on in common with other citizens’: at 439. They held that the Cigamatic doctrine did not give the Crown in right of the Commonwealth a special immunity from State or federal laws of general application: at 443. They specifically disapproved the view of Fullagar J in Bogle that the Commonwealth enjoyed a general immunity from State laws: at 445–6. Brennan CJ similarly distinguished between the prerogative and transactions which the Crown might enter: at 424–5. He agreed that the Crown in right of the Commonwealth could be bound by State laws of general application that govern transactions into which the Crown might enter: at 424–5, 427. McHugh J stated that ‘the fact that legislation of the States cannot of its

own force bind the Commonwealth does not mean that State legislation may not attach legal consequences to the activities of the Commonwealth Executive’: at 452. If the Commonwealth Parliament authorises the Commonwealth executive to engage in a particular activity, in the absence of a contrary indication, the Commonwealth law will be construed as indicating that the executive is to be bound by the common law and State legislation: at 452. He concluded (at 455): In most cases, State law including the common law will govern the creation of a relationship between the Commonwealth and a subject even when the creation of the relationship arises from the Constitution’s grant of executive power. If the Commonwealth chooses to enter into the relationship without negating the consequences of relevant State law, it necessarily submits to the State law governing the incidents of the relationship. But, for the reasons given by Dixon CJ in Cigamatic, once the Commonwealth has entered into such a relationship and created legal rights and duties in accordance with that State law, it is not open to the State to change their nature or effect. If the Commonwealth enters into a contract relying on the grant of executive power conferred by s 61 of the Constitution, a State has no power to change the consequences of that contract even by a law of general application.

Both McHugh and Gummow JJ argued that the Cigamatic doctrine did not apply to legal rights which were the ‘immediate product’ of a Commonwealth law and hence protected by s 109: at 459, 470. See also Commonwealth v Western Australia (1999) 196 CLR 392; 160 ALR 638; [1999] HCA 5 at [78], [230]. For discussions of this doctrine, see Mescher (1998) 17 Aust Bar Rev 23; Penhallurick (2001) 29 FL Rev 151; Hanks, Gordon and Hill, 2012, 279–85; Sharpe (2013) 36 UWALR 252; Clarke, Keyzer and Stellios, 2013, pp 540– 74; Gerangelos et al, 2013, pp 1177–1204; Joseph and Castan, 2014, pp 321– 33; Williams, Brennan and Lynch, 2014, pp 1113–30; Aroney, Gerangelos, Murray and Stellios, 2015, pp 272–9; Stellios, 2015, pp 522–40. [page 447]

SAVING OF POWER OF STATE PARLIAMENTS 761 Section 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the

Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

See Quick and Garran, 1901, pp 933–7 (Revised ed, 2015, pp 1136–41); Attorney-General’s Department, 1980, pp 374–88; Lane, 1997, pp 762–4; Twomey, 2004, pp 802–5; Sharpe (2013) 36 UWALR 252. 762 The effect of this section was summarised by Windeyer J in R v Phillips (1970) 125 CLR 93 at 116: Section 107 preserves the legislative competence of State Parliaments in respect of any topic that is not exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. This is simply an expression of an element that is implicit in any federal system in which defined powers are granted to the central authority and the undefined residue remains with the constituent provinces. Section 107 confirms that as the underlying principle of Australian federalism.

In 2006 five Justices of the High Court stated that s 107 ‘does not vest exclusive powers in the state legislatures’. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [54]. Dixon J argued that the ‘attempt to read s 107 as the equivalent of a specific grant or reservation of power lacked a foundation in logic’. See Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 83; quoted with approval in New South Wales at [192]. State legislative power has often been referred to as an ‘undefined residue’. See R v Phillips (1970) 125 CLR 93 at 116; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 213; 39 ALR 417; Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410 at 440; 146 ALR 495; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44 at [80]. The residuary legislative power of the States does not cover those matters: (a) which are made exclusive by sections conferring exclusive powers (for example, s 52); (b) which are withdrawn from the States by a prohibition directed to the States; or (c) which by their nature are exclusive to the Commonwealth. The positive effect of s 107 is therefore to preserve State legislative

competence with respect to matters within concurrent power (subject to the operation of s 109) and matters within State residuary power. Section 107 has been referred to by the High Court to support the proposition that a State Parliament still retains a concurrent power with respect to the matters listed in s 51 which are not exclusive to the Commonwealth. See Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 488; Roughley v New South Wales (1928) 42 CLR 162 at 193; Ex parte Nelson (No 1) (1928) 42 CLR 209 at 217. In Western Australia v Commonwealth (1995) 183 CLR 373; 128 ALR 1 six Justices stated that s 107 prohibits the Commonwealth Parliament from withdrawing a legislative power from a State Parliament: at 464, 487–8. See also Mabo v Queensland (No 1) (1988) 166 CLR 186 at 197; 83 ALR 14. [page 448] In his dissenting judgment in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577 Brennan CJ argued that since s 107 continues the powers of the States, no State power may be destroyed by State legislation. Thus s 107 prohibits a State Parliament from legislating itself out of existence: at 65–6. The other Justices did not address this issue.

Exclusive powers of the Commonwealth 763 The exclusive powers of the Commonwealth falling within category (a) are: (1) the power to make laws with respect to the seat of government and all places acquired by the Commonwealth for public purposes (s 52(i)); (2) the power to make laws with respect to matters relating to any department of the public service, the control of which is by the Constitution transferred to the Commonwealth government (s 52(ii)). These include control of the military forces and postal services (see s 69);

(3) the power to make laws imposing duties of customs and excise and granting bounties (s 90); and (4) the power to make laws with respect to Commonwealth Territories (ss 111, 122). The exclusive powers of the Commonwealth falling within category (b) are: (1) the power with respect to coinage (s 115); and (2) the power to raise and maintain military forces for the defence of the Commonwealth (s 114). The exclusive powers of the Commonwealth falling within category (c) are: (1) borrowing money on the public credit of the Commonwealth (s 51(iv)); (2) naturalisation (s 51(xix)); (3) service and execution of the process and judgments of State courts throughout the Commonwealth (s 51(xxiv)); (4) recognition throughout the Commonwealth of State laws and records (s 51(xxv)); (5) relations of the Commonwealth with the islands of the Pacific (s 51(xxx)); (6) acquisition of property for Commonwealth purposes (s 51(xxxi)); (7) acquisition of State railways with the consent of the State (s 51(xxxiii)); (8) matters in respect of which the Constitution makes provision until the Parliament otherwise provides (s 51(xxvi)); (9) exercise of any Imperial power not exercisable by the States at the establishment of the Constitution (s 51(xxxviii)); and (10) matters incidental to the exercise of any power vested in the Commonwealth Parliament or either of its Houses, the federal government (and its officers), and the federal courts (s 51(xxxix)).

Concurrent powers

764 This leaves a large group of powers under s 51 which can be described as concurrent powers, that is, shared with the States. They are: (1) trade and commerce with other countries and among the States (s 51(i)); [page 449] (2) taxation (apart from customs and excise) (s 51(ii)); (3) defence (s 51(vi)) (however, the control and organisation of the armed forces is exclusive); (4) lighthouses etc (s 51(vii)); (5) astronomical and meteorological observations (s 51(viii)); (6) quarantine (s 51(ix)); (7) fisheries in Australian waters beyond Territorial limits (s 51(x)); (8) census and statistics (s 51(xi)); (9) banking (s 51(xiii)); (10) insurance (s 51(xiv)); (11) weights and measures (s 51(xv)); (12) bills of exchange (s 51(xvi)); (13) bankruptcy (s 51(xvii)); (14) copyright etc (s 51(xviii)); (15) aliens (s 51(xix)); (16) corporations (s 51(xx)); (17) marriage (s 51(xxi)); (18) divorce and matrimonial causes (s 51(xxii)); (19) invalid and old age pensions (s 51(xxiii)); (20) various social services (s 51(xxiiia)); (21) people of any race (s 51(xxvi)); (22) immigration and emigration (s 51(xxvii));

(23) influx of criminals (s 51(xxviii)); (24) external affairs (s 51(xxix)) (however, treaty-making and the conduct of diplomatic relations with foreign countries are exclusive to the Commonwealth); (25) control of railways with respect to defence purposes (s 51(xxxii)); (26) railway construction and extension (s 51(xxxiv)); (27) conciliation and arbitration (s 51(xxxv)); (28) matters referred to the Commonwealth (s 51(xxxvii)); (29) matters incidental to the execution of any power vested in the Parliament of the Commonwealth (s 51(xxxix)) (to the extent to which the subject matter of the power is not exclusive). With respect to these powers, the Commonwealth Parliament has paramount power vis-a-vis the States: s 109. It has exercised its power in many of these areas to the exclusion of the operation of State legislation. In other areas only part of the field has been covered.

State residuary power 765 Quick and Garran described the residuary power of the States as embracing ‘a large mass of constitutional, territorial, municipal, and social powers’. See Quick and Garran, 1901, p 935 (Revised ed, 2015, p 1139). As Barwick CJ pointed out, ‘[t]hat residue is only discoverable when the full extent of Commonwealth power has been elucidated’. See New South Wales v Commonwealth (1975) 135 CLR 337 at 372; 8 ALR 1. Among the areas within State residuary power are: Agriculture and forests Charities Constitutions of the States Departments of State governments

Fisheries Game Health Land [page 450]

Education Factories and shops Municipal institutions Police Prisons

Licences Mining State works Taxation (except customs and excise) Trade and commerce (including within a State)

State courts State criminal law However, in the light of the increasing use by the Commonwealth of its powers over external affairs (s 51(xxix)), corporations (s 51(xx)), grants-in-aid (s 96), and incidental matters (s 51(xxxix)), which affect many of these areas, it is difficult to say that any particular area is within exclusive State competence. Nevertheless, this list is a useful one as it indicates those areas which generally fall within the power of the State Parliaments.

SAVING OF STATE LAWS 766 Section 108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the 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.

See Quick and Garran, 1901, pp 937–8 (Revised ed, 2015, pp 1141–3); Attorney-General’s Department, 1980, pp 388–91; Howard, 1985, pp 549– 52; Lane, 1997, pp 764–5; Aroney, 2009, pp 288–91; Leeming, 2011, pp 34– 5. 767 There has been some dispute as to the effect of s 108 in the light of decisions relating to s 52(i). In R v Bamford (1901) 1 SR (NSW) 337 at 352 Owen J described its effect as follows: … the existing laws of the State are to continue in force, even though they relate to matters within the exclusive powers of the Parliament of the Commonwealth, until that Parliament enacts laws relating to such matters; provided that such State laws are not inconsistent with a law of the Commonwealth. But that the power of the State Parliament to make future laws shall

cease, where the power is exclusively vested in the Parliament of the Commonwealth, except for the purpose of altering or repealing existing laws.

The first portion of the section is therefore clear and needs little elucidation. It was intended to ensure that ‘a state of anarchy’ did not exist after Federation in relation to matters within exclusive Commonwealth power before federal legislation concerning these matters had been enacted. See Commonwealth v New South Wales (1923) 33 CLR 1 at 43. The difficulty surrounds the second part of s 108 which provides: … 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.

The question is whether the power of alteration and repeal of a preFederation colonial law applies to matters within exclusive power or only to matters within concurrent power. 768 In R v Phillips (1970) 125 CLR 93 Windeyer J was of the opinion that the second part of s 108 was the ‘statutory sponsor’ of the theory of concurrent powers in the Australian [page 451] Constitution: at 117–19. Gibbs J thought that the power of alteration and repeal did not apply to matters within exclusive power: at 133–7. Menzies J took the opposite view. He argued (at 109) that the second part of s 108 applied only to matters within exclusive power: Section 108 … continues the operation of colonial laws in the territory which ceases to be a colony and becomes a State, and confers a limited legislative power upon the Parliament of the State; [namely,] to alter or repeal colonial laws upon matters falling within the exclusive legislative power of the Commonwealth “until provision is made in that behalf by the Parliament of the Commonwealth”.

The difference between the two approaches has little practical operation today in the light of the enactment of the Commonwealth Places (Application of Laws) Act 1970 (Cth) by which the Commonwealth ‘otherwise provided’ in relation to places acquired by it. Legislation in respect of other matters of exclusive power has been in existence for many years.

In Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1 Deane J stated that the second part of s 108 is intended to ‘ensure that the continuation by the Constitution of State laws’ did not prevent amendment or repeal of those laws by the State Parliament: at 165.

INCONSISTENCY OF LAWS 769 Section 109. 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.

See Quick and Garran, 1901, pp 938–9 (Revised ed, 2015, pp 1143–4); Murray-Jones (1979) 10 FL Rev 25; Lee (1985) 15 FL Rev 335; Hanks (1986) 16 FL Rev 107; Constitutional Commission, 1988, Vol 2, pp 645–9; Coper, 1988, pp 154–63; Morabito and Strain (1993) 12 U Tas LR 182; Lane, 1997, pp 766–90; Williams, 1998, pp 146–61; Lindell (2005) 8 Const L & Pol’y Rev 25; Rumble (2010) 38 FL Rev 445; Leeming, 2011, pp 130–7, 140–94; Ratnapala and Crowe, 2012, pp 263–75; Hanks, Gordon and Hill, 2012, pp 288–305; Dour and Taylor (2013) 39 Mon ULR 131; Pyke, 2013, pp 382–98; Guy, 2013, pp 266–95; Keyzer, 2013, pp 435–56; Clarke, Keyzer and Stellios, 2013, pp 463–92; Gerangelos et al, 2013, pp 379–438; Joseph and Castan, 2014, pp 271–97; Williams, Brennan and Lynch, 2014, pp 279–331; Aroney, Gerangelos, Murray and Stellios, 2015, pp 208–11, 215–34; Stellios, 2015, pp 625–8; Williams and Reynolds (2015) 36 Adel LR 241. 770 The distribution of legislative powers between the Commonwealth and the States is based upon a distinction between concurrent and exclusive powers. As Windeyer J said in R v Phillips (1970) 125 CLR 93: ‘It is on the combined effect of ss 107, 108 and 109 that the theory of concurrent powers and the nature of Australian federalism firmly rest’: at 118. In so far as the States retained the power to legislate with respect to many areas covered by s 51, it was necessary to provide for the resolution of any conflict between an exercise of Commonwealth and State power. Section 109 attributes paramountcy to the Commonwealth exercise of power. Commonwealth ‘laws’ prevail over inconsistent State laws. In this context, the term ‘laws’ refers to ‘laws made under the legislative powers of the Commonwealth directly or indirectly’. See R v Foster; Ex parte Commonwealth

Steamship Owners’ Association (1953) 88 CLR 549 at 556. Statutes enacted by the Commonwealth Parliament obviously fall within that definition. [page 452] Commonwealth regulations are also a law of the Commonwealth that will prevail over an inconsistent State law. See Hume v Palmer (1926) 38 CLR 441 at 456, 461–2, 464; O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 at 581, 585, 591, 594; Airlines of New South Wales Pty Ltd v New South Wales (No 1) (1964) 113 CLR 1 at 29, 30, 46, 48; Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1964) 113 CLR 54 at 110, 120, 155; Sankey v Whitlam (1978) 142 CLR 1 at 91; 21 ALR 505; Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502; 277 ALR 332; [2011] FCAFC 62 at [56]. A Commonwealth industrial award given the force of federal law by statute will prevail over an inconsistent State law. See Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; 280 ALR 206; [2011] HCA 33 at [11], [38]. However, s 109 ‘is not directed to displacement of the common law’. See Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; 249 ALR 44; [2008] HCA 38 at [13]. The question of which laws are to be compared under s 109 may sometimes arise. In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 drug trafficking was prohibited under both Commonwealth and State law. It was argued that differences in federal and State trial procedures and sentencing regimes gave rise to inconsistency between the Commonwealth and State trafficking laws: at [108], [634]–[635]. Gummow J held that the ‘law’ of the Commonwealth and a State under s 109 consists of the rule of conduct and the punishment or remedy under each law: at [233]. The laws that are compared for inconsistency do not include the general provisions regarding the trial of offences: at [237]. Bell J agreed with Gummow J: at [660]. French CJ also agreed with Gummow J. He added that in considering whether the State trafficking offence was inconsistent with the Commonwealth offence, those offences were not to be read with the Commonwealth and State laws regarding trial and sentencing: at [109].

Crennan and Kiefel JJ held that the elements of the offence and the punishment constituted the relevant laws under s 109: at [624]. Differences in trial procedures and sentencing regimes were part of the federal system and do not produce an inconsistency: at [655]. A Commonwealth law will prevail over an inconsistent State law enacted before or after the federal law. See University of Wollongong v Metwally (1984) 158 CLR 447 at 463; 56 ALR 1; Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; [1999] HCA 8 at [51]; Yougarla v Western Australia (2001) 207 CLR 344; 181 ALR 371; [2001] HCA 47 at [17]. Of course, only a valid Commonwealth law can prevail over a State law. If the Commonwealth statute is held to be beyond the powers of the Commonwealth Parliament, no question of inconsistency can arise. See Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 81, 85, 148–9, 168; Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19 at [37]. As the High Court has pointed out, the importance of s 109 is not limited to its function in the relationship between the Commonwealth Parliament and the State legislatures. It is also significant for citizens, upon whom ‘concurrent and cumulative duties and liabilities may be imposed’ by Commonwealth and State laws. See Dickson v R (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30 at [19]. In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 Gummow J cautioned that classification of inconsistency into different categories may distract from the task of ascertaining the proper construction of the Commonwealth and State laws before considering the application of s 109: at [245]. Bell J agreed with Gummow J: at [660]. [page 453] With that caveat, inconsistency may arise in two main ways. See Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; [1999] HCA 8 at [53]. These two ways are ‘direct inconsistency’ and ‘covering the field’.

Direct inconsistency 771 A Commonwealth law imposing a duty upon an official or citizen may conflict with a State law imposing such a duty. This is the clearest case of inconsistency. In R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23 Commonwealth electoral law provided that on polling day for a federal election, a referendum or vote of the electors of a State or part of a State should not be held: at 29. On federal polling day a local poll was held under Queensland legislation: at 27. It was held that a direct inconsistency existed, and that the local poll was therefore invalid: at 29. There is thus direct inconsistency where ‘one law requires what the other forbids’. See Telstra Corp Ltd v Worthing (1999) 197 CLR 61; 161 ALR 489; [1999] HCA 12 at [27]. However, there may be inconsistency under s 109 though it is possible to obey both the State and the federal law. See Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 478, 489–90; Viskauskas v Niland (1983) 153 CLR 280 at 291–2; 47 ALR 32. In Victoria v Commonwealth (‘The Kakariki’) (1937) 58 CLR 618 at 630 Dixon J stated that ‘[w]hen a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid’. This principle has since been applied in numerous decisions. See, for example, Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 at 337; 65 ALR 637; Telstra Corp Ltd v Worthing (1999) 197 CLR 61; 161 ALR 489; [1999] HCA 12 at [28]; Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) (2004) 221 CLR 178; 204 ALR 46; [2004] HCA 4 at [18]; Dickson v R (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30 at [13]; Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; 286 ALR 404; [2012] HCA 13 at [37]. For example, in Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; 120 ALR 440 a State Act was held to be inconsistent with a federal law because it ‘detract[ed] from the full operation of a right granted by’ the Commonwealth Act: at 396–7. See also at 393, 401. For there to be an inconsistency the alteration, impairment or detraction ‘must be significant and not trivial’. See Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; 280 ALR 206; [2011] HCA 33 at [41].

772 The cases provide numerous illustrations of direct inconsistency. In Dao v Australian Postal Commission (1987) 162 CLR 317; 70 ALR 449 a female applicant for permanent employment did not meet the minimum body weight requirements for permanent employment set by the Commission. She was dismissed from her temporary employment on that ground: at 328. She alleged sex discrimination under a State anti-discrimination law. The State Act prohibiting sex discrimination was held to be inconsistent with a Commonwealth Act making it a condition of permanent employment with the Commission that an employee be assessed medically fit, including having attained a minimum body weight. If the State tribunal had found discrimination, it could have ordered the Postal Commission to grant permanent employment to an applicant who did not meet the standards of fitness required by the Commonwealth Act. The Commission would thus have been ordered to act in breach of its statutory duty under Commonwealth law: at 334–5. [page 454] In Mabo v Queensland (No 1) (1988) 166 CLR 186; 83 ALR 14 by a narrow majority the court held that the Queensland Coast Islands Declaratory Act 1985 (Qld) was inconsistent with the Racial Discrimination Act 1975 (Cth). The Queensland Act purported to extinguish native rights over land which the Commonwealth Act protected against racially discriminatory extinguishment. The Commonwealth Act protected only against racially discriminatory extinguishment because it protected the right of persons to own property on a non-racially discriminatory basis: at 215–6. Brennan, Toohey and Gaudron J held that the effect of the State Act was to extinguish rights deriving from native title while validating all rights originating in Queensland statute law: at 215. Indigenous people enjoyed the right to own property to a lesser extent than others in the community because the Queensland Act extinguished traditional rights to land without extinguishing other rights to land. ‘The Act … 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 Miriam people’: at 218. Deane J agreed in a separate judgment: at 231–2. In Western Australia v Commonwealth (1995) 183 CLR 373; 128 ALR 1 Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ held that a State law which sought to replace native title rights with ‘traditional usage’ rights was inconsistent with the Commonwealth Racial Discrimination Act. The Commonwealth law provided that if by a State law persons of a particular race do not enjoy a right which is enjoyed by persons of another race, each race will enjoy that right to the same extent. The State law was inconsistent with the Racial Discrimination Act because holders of traditional usage rights did not have the same security of enjoyment of rights as did non-native title holders: at 438, 451–2. In Dickson v R (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30 the appellant was convicted under Victorian law of the offence of conspiracy to steal property: at [1]. The property concerned was Commonwealth property: at [11]. Under the Commonwealth Criminal Code the theft of Commonwealth property was an offence: at [11]. Another section of the Code provided that it was an offence to conspire to steal Commonwealth property: at [12]. The court held that there was a direct inconsistency between the Victorian conspiracy offence and the conspiracy provision of the Commonwealth Criminal Code: at [30]. The State conspiracy provision criminalised conduct that had been intentionally excluded from the conduct criminalised by the Commonwealth conspiracy provision. The Victorian provision would ‘alter, impair or detract’ from the operation of the Commonwealth law by criminalising conduct that was permitted under the federal law. There was a ‘direct collision’ between the laws because the State provision would impose greater obligations than those applying under the Commonwealth law: at [22]. The Commonwealth Act permitted a broader scope of liberty that should not be denied by the State Act: at [25]. 772A In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 drug trafficking was prohibited under both Commonwealth and State law. Citing the Dickson case, the appellant argued that the State law rendered her liable to conviction in circumstances where she would not have been liable to

conviction under the Commonwealth law: at [273]. This argument rested upon an interpretation of the State law that was rejected by the court: at [106], [275], [479], [660]. Gummow J pointed out that in the Dickson case the State law had criminalised conduct that had been intentionally excluded from the Commonwealth offence: at [274]. The situation here was the reverse of that in the Dickson case. The State law was ‘less stringent’ [page 455] than the Commonwealth law and did not ‘close up’ an area of liberty that had been left by the Commonwealth law: at [276]. French CJ agreed with Gummow J: at [106]. Bell J also agreed with Gummow J. She added that the same conduct was prohibited under both laws. The State law thus did not impinge upon any area of liberty that had been left open under the Commonwealth law: at [660]. Heydon J pointed out that the Commonwealth and State laws prohibited and permitted the same conduct. The area of liberty was the same under each law. That area of liberty was determined by the substantive law, not the procedural law: at [479]. Crennan and Kiefel JJ did not discuss this point. Differences in punishments between Commonwealth and State laws do not necessarily bring about a direct inconsistency. In Momcilovic violation of the federal and State laws was subject to different maximum penalties: at [110], [635]. Another Commonwealth law provided that where an act was an offence under both Commonwealth and State law, if an offender had been punished under the State law they could not be punished under the Commonwealth law. This provision is known as a ‘roll-back’ provision: at [104]. It avoids double punishment for the same conduct: at [254]. Gummow J held that conflict between the Commonwealth and State maximum punishments could only arise if both Commonwealth and State sentencing powers were exercised: at [252]. The ‘roll-back’ provision reduced the possibility for operational inconsistency between Commonwealth and State sentencing: at [253]. The appellant had been prosecuted under the State

law. There had been no federal prosecution, so there was no operational inconsistency between the federal and State punishments: at [255]. Due to the ‘roll-back’ provision the concurrent operation of Commonwealth and State law ceases upon punishment under the State law. In that case the Commonwealth law is withdrawn: at [268]. Bell J agreed with Gummow J: at [660]. French CJ also agreed with Gummow J. He added that so far as the differences in penalties was concerned, the ‘roll-back’ provision ‘accommodates federal diversity falling short of invalidating inconsistency’: at [110]. Heydon J stated that a difference in penalty had rarely been considered to give rise to direct inconsistency. Different penalties had been important only in relation to covering the field: at [480]. Crennan and Kiefel JJ pointed out that Commonwealth and State laws are not necessarily inconsistent where they impose different punishments for the same conduct: at [637]. A difference in punishments may suggest an intention that the Commonwealth law covers the field: at [641]. 773 In P v P (1994) 181 CLR 583; 120 ALR 545 Mason CJ, Deane, Toohey and Gaudron JJ undertook an extended discussion of the operation of inconsistency in relation to the jurisdictions of federal and State courts. They stated that (at 601–2): If the Commonwealth law confers jurisdiction [upon a federal court] in terms which convey a legislative intent that its exercise is not to be confined … by the … requirements of State laws … s 109 … will … invalidate any State law to the extent that it would directly or indirectly … preclude, override or render ineffective the exercise … of [that] jurisdiction … Conversely, if the terms of the Commonwealth law … convey a legislative intent that the jurisdiction … must be exercised conformably with applicable … State law, the jurisdiction conferred will, as a matter of construction, be accordingly confined with the result that there is no inconsistency.

Finally, in its unanimous judgment in Bond v R (2000) 201 CLR 213; 169 ALR 607; [2000] HCA 13 at [15] the court stated: … a State … law cannot unilaterally vest functions … in officers of the Commonwealth, whose offices are created by Commonwealth law and who have the powers vested in them by that law. … [T]he Commonwealth Act would be construed as requiring the officers in question to have

[page 456] … only such powers as the Commonwealth Parliament had chosen to vest in them. It follows

that if a [Commonwealth] law … prescribes the power … of [a Commonwealth] officer … to perform some function conferred by State legislation, a State law which purports to grant some wider power … is, to that extent, inconsistent with the Commonwealth law.

See also Byrnes v R (1999) 199 CLR 1; 164 ALR 520; [1999] HCA 38 at [18].

Covering the field 774 In Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 445 Isaacs J gave the first clear formulation of this type of inconsistency: ‘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’: at 489. This test was adopted by Dixon J in Ex parte McLean (1930) 43 CLR 472 at 483: When the Parliament of the Commonwealth and the Parliament of a 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 … the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. …. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter … When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.

In Victoria v Commonwealth (‘The Kakariki’) (1937) 58 CLR 618 at 630 Dixon J put it more succinctly: … if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.

This passage has been quoted with approval by unanimous decisions of the High Court. See Telstra Corp Ltd v Worthing (1999) 197 CLR 61; 161 ALR 489; [1999] HCA 12 at [28] and Dickson v R (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30 at [13]. In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 Gummow J suggested that ‘covering the field’ was ‘but an instance of

alteration, impairment and detraction’: at [240], [242], [244]. He suggested that the expression ‘covering the field’ confused the necessary task of construing the Commonwealth and State laws: at [263]. Bell J agreed with Gummow J: at [660]. It should be noted that some cases of direct inconsistency also illustrate the ‘covering the field’ test. See, for example, Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 490. ‘Covering the field’ is sometimes referred to as indirect inconsistency. See Dickson v R (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30 at [14], [31]–[32], [35]; Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 at [244], [629]–[630]. 775 This is a difficult test to apply. It depends upon ascertaining whether the Commonwealth has intended to provide an exhaustive code to the exclusion of State legislation. The difficulty usually is to determine whether the intention of the Commonwealth is to cover the whole field regulated by a State enactment or only a portion of it. In Dickson v R (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30 the court pointed out that the use of the word ‘intention’ in this context does not impute a ‘collective mental state’ [page 457] to Parliamentarians. When the judiciary ascertains legislative intention, that is an ‘expression of the constitutional relationship’ between the branches of government in relation to the ‘making, interpretation and application of laws’. The court ascertains legislative intention by applying rules of interpretation that have been accepted by all of the branches of government: at [32]. In some cases the Commonwealth Act makes clear its intention to cover the whole field. Such provisions may expressly state that the application of State law is excluded. See, for example, International Arbitration Act 1974 s 21; Airports Act 1996 s 112; Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 139A. In other cases the Commonwealth Act may evince an intention not to cover the field. Many provisions expressly state that the Act is not intended to

exclude or limit the concurrent operation of State law. See, for example, Crimes Act 1914 ss 15GB, 15JB, 23YUL; Environment Protection and Biodiversity Conservation Act 1999 ss 10, 300A; Corporations Act 2001 s 5E; Proceeds of Crime Act 2002 s 15; Water Act 2007 ss 40, 250B; National Consumer Credit Protection Act 2009 s 23; Personal Property Securities Act 2009 s 254; Competition and Consumer Act 2010 ss 51AAA, 51AEA; National Disability Insurance Scheme Act 2013 s 207; Public Interest Disclosure Act 2013 s 79; Maritime Powers Act 2013 (Cth) s 6. For other examples of such provisions, see Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 at [484]. In R v Credit Tribunal (SA); Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545; 14 ALR 257 a Commonwealth statute provided that it was ‘not intended to exclude or limit the concurrent operation’ of any State law: at 562. Such a provision cannot prevent the operation of s 109 in a situation of direct inconsistency: at 563. However, it will be relevant to determining whether the Commonwealth law covers the field. Mason J stated (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. … 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.

The other members of the court agreed with Mason J: at 552, 565. Mason J’s statement was quoted with approval by a unanimous court in John Holland Pty Ltd v Victorian Workcover Authority (2009) 239 CLR 518; 260 ALR 95; [2009] HCA 45 at [21]. Such provisions often provide that a specific part of the Act is not intended to exclude or limit the concurrent operation of State law. In Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 a Commonwealth law provided that its drug trafficking provisions were not intended to exclude the concurrent operation of any State law, including State laws that prohibited similar acts but imposed different punishments: at [103], [267], [619]. Gummow J observed that inclusion of such provisions increases the likelihood that State law will have a concurrent operation: at [272]. Bell J

agreed with Gummow J: at [660]. French CJ stated that the provision was ‘relevant to … but not determinative’ of the question of inconsistency: at [112]. Heydon J relied upon this provision in concluding that there was no inconsistency between the Commonwealth and State drug trafficking provisions: at [482], [486]. Crennan and Kiefel JJ stated that this provision could not prevent a direct inconsistency if that existed. However, while the provision was ‘not determinative’ of the question of [page 458] inconsistency, it was a ‘very clear indication’ that the Commonwealth law was ‘not exhaustive or exclusive’ in relation to drug trafficking: at [654]. In dissent, Hayne J emphasised that such provisions ‘do[] not conclude the inquiry’ regarding inconsistency. The determination of inconsistency was the task of the judiciary not the legislature: at [285]. However, such provisions are relevant to the determination of whether an inconsistency exists: at [316]. In Botany Municipal Council v Federal Airports Authority (1992) 175 CLR 453; 109 ALR 321 the question arose as to whether a Commonwealth law directed at making a State law inoperative was valid: at 463. The joint judgment of the High Court stated (at 465): There can be no objection to a Commonwealth law on a subject which falls within a head of Commonwealth legislative power providing that a person is authorized to undertake an activity despite a State law prohibiting, restricting, qualifying or regulating that activity. Indeed, unless the law expresses itself directly in that way, there is the possibility that it may not be understood as manifesting an intention to occupy the relevant field to the exclusion of State law.

See similarly, Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19 at [35]. In many cases there is no clear statement of intention in the Act, and it is necessary to examine the Commonwealth Act as a whole in order to ascertain its true intent. Extrinsic material such as explanatory memoranda and Parliamentary second reading speeches may be referred to in ascertaining legislative intent. See Acts Interpretation Act 1901 (Cth) s 15AB.

A good illustration of the absence of a clear statement of intention is provided by Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128. The alleged inconsistency was between a State Moratorium Act that restricted the enforcement of contractual relations and the Commonwealth Bills of Exchange Act 1909 that prescribed formalities for the execution and regulation of various instruments including promissory notes. The majority of the court rejected the argument that the New South Wales Act could not validly affect the enforcement of a note given as a collateral security for a debt. There was no inconsistency between the New South Wales and Commonwealth legislation: at 133–4, 150, 156. The fields were different: that covered by the New South Wales Act was the area of contractual relations, while the Commonwealth Act dealt with negotiable instruments. There was no evidence to be derived from the latter Act that it intended to displace the general contract law (as modified by State legislation): at 143. 776 In Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47; 66 ALR 217 a federal Act prohibited the issue of broadcasting licences without the consent of the relevant Minister. Under the Act the relevant Minister consented to the erection of a radio transmitter. However, a State Act required that the local authority consent to the development. The High Court unanimously held that there was no inconsistency because the Commonwealth Act did not give an unconditional right to broadcast without compliance with State law. Wilson, Deane and Dawson JJ noted that the Commonwealth Act did not ‘purport to state exclusively or exhaustively the law with which the operation of a commercial broadcasting station must comply’: at 56. Since the Commonwealth Act concentrated upon technical efficiency and the quality of broadcasting, it left room for the operation of State and federal laws concerning other relevant matters: at 57. If a local authority refused consent, that created a deadlock not an inconsistency: at 58– 9. Gibbs CJ and Brennan J agreed: at 49. In McWaters v Day (1989) 168 CLR 289; 89 ALR 83 a State Act created an offence of driving a vehicle under the influence of alcohol. The Defence Force Discipline Act 1982 (Cth) made it a service offence for a member of the defence forces to drive a vehicle on

[page 459] service land while under the influence. The statutes prescribed different maximum penalties. The federal offence contained an additional element — incapability of having proper control of the vehicle: at 295–6. The court unanimously held that merely because State and federal statutes prescribe different penalties and proscribe different conduct, that did not mean that there was any inconsistency. What is necessary is a determination of whether the Commonwealth law ‘evinces an intention to cover the subject matter to the exclusion of any other law’: at 296. The Commonwealth law was not intended to be an exhaustive statement of criminal liability: at 297. The Commonwealth Act envisaged the existence of parallel systems of military criminal law and conventional criminal law. The Commonwealth Act displayed no intention that members of the armed forces have an absolute immunity from the ordinary criminal law, though it sought to preclude double jeopardy, so the Acts were to operate together: at 298. The law was supplementary to State criminal law and was not a replacement of it so far as members of the defence forces were concerned: at 299. 777 In R v L (1991) 174 CLR 379; 103 ALR 577 the High Court held that a State law dealing with the crime of marital rape was not inconsistent with a provision of the Family Law Act 1975 (Cth) that gave the Family Court power to relieve a spouse from any obligation to perform conjugal rights. The federal statute did not identify what these marital obligations were, nor did it require their performance: at 385. The Family Law Act did not ‘cover the field’ of marital obligations and said nothing as to sexual intercourse: at 386, 396. In Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495 the court held that a State residential tenancies law was not inconsistent with a federal law that established a defence housing authority. While the federal law might cover the field so far as the authority’s function was concerned, the federal law did not create a ‘comprehensive and exclusive code’ regarding the means by which the authority carried out its function. In particular, the federal law assumed the

existence of a general legal framework in which the authority’s powers would be exercised: at 424, 432, 460, 462. Apart from these two main types of inconsistency (direct inconsistency and covering the field), the court has also recognised the concept of ‘operational inconsistency’. A Commonwealth law that does not exhaustively regulate a subject may confer upon the executive a power which is intended to be exclusive when exercised. Upon exercise of that statutory power, s 109 will then render any inconsistent State law invalid. See Commonwealth v Western Australia (1999) 196 CLR 392; 160 ALR 638; [1999] HCA 5 at [61]–[62], [81], [139], [259]; Radar Holdings Pty Ltd v Western Australia (2004) 185 FLR 466; [2004] WASC 251 at [40], [45]–[47], [65]; R v ONA (2009) 24 VR 197; [2009] VSCA 146 at [99]–[102]; Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 at [247]–[248]. Kirby J described operational inconsistency as a ‘close relative’ of direct inconsistency. See Re Macks; Ex parte Saint (2000) 204 CLR 158; 176 ALR 545; [2000] HCA 62 at [274].

Effect of s 109 upon State legislation 778 The final words of s 109 provide that the State Act ‘shall to the extent of the inconsistency be invalid’. In this context ‘invalid’ means that the State law has ‘no legal operation’, not that the law is beyond legislative power. The State law is ‘inoperative’. See Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 573; Lamb v Cockatoo Docks & Engineering Co Pty Ltd (1960) 61 SR (NSW) 459 at 468; Butler v Attorney-General (Vic) (1961) 106 CLR 268 [page 460] at 274; University of Wollongong v Metwally (1984) 158 CLR 447 at 456, 461–2, 477, 485; 56 ALR 1; Western Australia v Commonwealth (1995) 183 CLR 373 at 451; 128 ALR 1. If the State Act is within the constitutional power of the State, it will be revived when the Commonwealth law which gives rise to the inconsistency is

repealed or becomes inoperative. See R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23 at 33; Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 573, 599; Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 274, 278, 282–3, 286; University of Wollongong v Metwally (1984) 158 CLR 447 at 455, 473, 477, 479; 56 ALR 1; Western Australia v Commonwealth (1995) 183 CLR 373 at 465; 128 ALR 1; Commonwealth v Western Australia (1999) 196 CLR 392; 160 ALR 638; [1999] HCA 5 at [62]. The High Court has been careful to guard against attempts to frustrate the operation of s 109. Once it has been held that there is inconsistency between a federal and a State law, it is not possible for the Commonwealth to retrospectively declare that there was no inconsistency. See University of Wollongong v Metwally (1984) 158 CLR 447 at 456–7, 469, 474, 479; 56 ALR 1; Coper, 1988, pp 21–7. The ‘effect of s 109 … cannot be retrospectively undone’. See Western Australia v Commonwealth (1995) 183 CLR 373 at 451; 128 ALR 1. The common law de facto officer’s doctrine cannot inhibit the operation of s 109 in relation to an inconsistent State law. See Bond v R (2000) 201 CLR 213; 169 ALR 607; [2000] HCA 13 at [34]. A Commonwealth law may create a legislative scheme with more detail or less detail than that under State law, or one that is more detailed in some ways and less detailed in others. In each case the Commonwealth law will prevail over an inconsistent State law. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [370]. There is no inconsistency where the Commonwealth law ‘assumes the continued operation’ of State legislation and the common law as modified by State legislation. See Attorney-General (Vic) v Andrews (2007) 230 CLR 369; 233 ALR 389; [2007] HCA 9 at [54], [70]. When a State law is invalid by reason of inconsistency with a federal law, it is rendered inoperative by the operation of s 109 rather than by the Commonwealth law directly. See Federated Saw Mill Timber Yard and General Woodworkers Employees’ Association of Australasia v James Moore & Son Pty Ltd (1909) 8 CLR 465 at 536; R v Railways Appeal Board; Ex parte Davis (1957) 96 CLR 429 at 439; University of Wollongong v Metwally (1984) 158 CLR 447 at 455, 478; 56 ALR 1; Western Australia v Commonwealth (1995) 183 CLR 373 at 464–5, 467–8; 128 ALR 1; John Holland Pty Ltd v Victorian Workcover

Authority (2009) 239 CLR 518; 260 ALR 95; [2009] HCA 45 at [19], [21]; Mok v Director of Public Prosecutions (NSW) [2016] HCA 13 at [11].

PROVISIONS REFERRING TO GOVERNOR 779 Section 110. 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.

See Quick and Garran, 1901, pp 939–40 (Revised ed, 2015, pp 1145–6); Attorney-General’s Department, 1980, p 414; Lane, 1997, p 791. 780 This section is self-explanatory. The powers conferred upon the State Governor by the Constitution, including the power to issue writs for the elections of senators (s 12) and [page 461] to fill casual vacancies in the Senate (s 15), are during the Governor’s absence or incapacity exercisable by the Lieutenant-Governor or Administrator of the State.

STATES MAY SURRENDER TERRITORY 781 Section 111. 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.

See Quick and Garran, 1901, pp 941–2 (Revised ed, 2015, pp 1146–8); Lumb (1963) 37 ALJ 172; Wynes, 1976, p 112; note (1978) 52 ALJ 169; Attorney-General’s Department, 1980, p 414; Brazil and Mitchell, 1981, pp 435–6, 438 (nos 341, 344); Lane, 1997, pp 791–3; Carney, 2006, pp 395–6. 782 Under this section a State may surrender part of its territory to the Commonwealth. On its acceptance by the Commonwealth, that area becomes a Commonwealth Territory subject to the exclusive jurisdiction of the

Commonwealth under s 122. The Commonwealth may accept territory by executive action alone, since legislative authorisation is not necessary. See Paterson v O’Brien (1978) 138 CLR 276 at 280–1; 18 ALR 31. Two areas were established as federal Territories through surrender of territory by a State. These Territories were the Australian Capital Territory (together with Jervis Bay) and the Northern Territory. See Seat of Government Acceptance Act 1909 s 5; Jervis Bay Territory Acceptance Act 1915 s 4; Northern Territory Acceptance Act 1910 (Cth) s 6. There is additional support for the acquisition of the Australian Capital Territory in s 125 of the Constitution. In Kean v Commonwealth (1963) 5 FLR 432 it was argued that the legislation ratifying the agreement for the surrender of the Northern Territory constituted a fundamental law for future legislation over the Territory: at 436. It was argued that a subsequent ordinance of the Territory which departed from the provisions in the original legislation confirming existing land rights was beyond power: at 437. The Northern Territory Supreme Court rejected this argument. It was held that the grant of exclusive power to legislate over a surrendered area which had become a Territory carried with it a power to vary pre-existing rights and obligations arising under the original agreement between the Commonwealth and the State concerned: at 437. The South Australian Act that surrendered the Northern Territory did so on the condition that the Commonwealth undertake to construct a transcontinental railway between Darwin and South Australia. See Northern Territory Surrender Act 1907 (SA) s 7 and Sch 1(b); South Australia v Commonwealth (1962) 108 CLR 130 at 142–3. The Commonwealth undertook that obligation in the Northern Territory Acceptance Act 1910 (Cth) s 14(b). These Acts did not set a date for completion of the railway. The Adelaide–Darwin Railway was eventually opened almost a century later in January 2004. For the background, see Martin, 2009, p 150. 783 This section must be read in conjunction with s 122, which has a wider operation in conferring power upon the Commonwealth, not only to legislate with respect to Territories acquired from the States, but also with respect to Territories acquired in other ways. In Paterson v O’Brien (1978) 138 CLR 276; 18 ALR 31 the High Court

held that s 111 was not to be read with s 123 so as to be subject to the referendum requirement where part of a State was surrendered by a State to the Commonwealth. Consequently the surrender by a State of part of its territory was not conditional upon the approval of the electors of that State. See also Kruger v Commonwealth (1997) 190 CLR 1 at 164; 146 ALR 126. [page 462] In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248; 109 ALR 1 it was held that s 90 applies to Territory governments, preventing them from imposing duties of customs and excise. Brennan, Deane and Toohey JJ referred to s 111 in reaching that conclusion. They stated: ‘It would be surprising if the surrender of part of a State to the Commonwealth and its acceptance by the Commonwealth pursuant to s 111, whilst leaving the territory as part of the Commonwealth, removed it from the operation of the constitutional provisions designed to create and maintain the free trade area’: at 276. See also Svikart v Stewart (1994) 181 CLR 548 at 561, 566; 125 ALR 554; Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 615; 147 ALR 42.

STATES MAY LEVY CHARGES FOR INSPECTION LAWS 784 Section 112. 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.

See Quick and Garran, 1901, pp 942–4 (Revised ed, 2015, pp 1148–51); Wynes, 1976, p 372; Attorney-General’s Department, 1980, pp 415–16; Brazil and Mitchell, 1988, pp 423–4 (no 895); Lane, 1997, pp 793–4; Faulkner and Orr, 2013, pp 335–7, 385–7 (nos 1534, 1555). 785

This section constitutes an exception to s 92 in that it enables

inspection charges to be made by a State in relation to goods passing into one State from another State. It also enables such charges to be made on goods imported from or exported to a foreign country. In this respect the power is a concurrent one since the Commonwealth can legislate under s 51(i). Such inspection charges would buttress the quarantine powers of the States and Commonwealth. The charges may be made at a State border or at any other locality within the State. This section recognises the power of the States to enact inspection laws which might otherwise infringe s 92. See Tasmania v Victoria (1935) 52 CLR 157 at 185; J Bernard & Co Pty Ltd v Langley (1980) 153 CLR 650 at 663–4; 32 ALR 57. This exception to s 92 is rather restrictive. It permits only such charges as may be necessary for executing the State’s inspection laws. ‘Necessary’ means ‘necessary to recover the estimated cost of the inspection’. See J Bernard & Co Pty Ltd v Langley (1980) 153 CLR 650 at 666; 32 ALR 57. The net produce of the charges is for the use of the Commonwealth. The inspection laws imposing the charges may be annulled by the federal Parliament. In Ex parte Nelson (No 1) (1928) 42 CLR 209 Isaacs J accepted that s 112 could not be used to grant to a State any wider immunity from s 92 than that set out within s 112. In particular, a State could not enact inspection laws under which discrimination was exercised against goods or animals passing into that State from another State: at 240.

INTOXICATING LIQUIDS 786 Section 113. 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.

[page 463] See Quick and Garran, 1901, pp 944–8 (Revised ed, 2015, pp 1151–6);

Wynes, 1976, pp 372–3; Attorney-General’s Department, 1980, pp 416–17; Brazil and Mitchell, 1981, pp 232–3 (no 196); Lane, 1997, pp 794–5. 787 Section 113 constitutes another exception to s 92 but, again, of a limited nature. It subjects intoxicating liquor which is brought into one State from another State to the same restrictions as may be applied to locally produced liquor. This section is based upon a United States Congressional statute. See Wilson Act of 1890, ch 728, 8 August 1890, 26 Stat 313, 27 USC 121; Fox v Robins (1909) 8 CLR 115 at 124–5.

STATES MAY NOT RAISE FORCES. TAXATION OF PROPERTY OF COMMONWEALTH OR STATE 788 Section 114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

See Quick and Garran, 1901, pp 948–50 (Revised ed, 2015, pp 1156–8); Attorney-General’s Department, 1980, pp 417–20; Constitutional Commission, 1988, Vol 2, pp 819–20; Stone and Waters (1992) 66 ALJ 601; Lane, 1997, pp 795–800; Morabito (1998) 1, 1 J Aust Taxation 41; Evans (2001) 29 FL Rev 121 at 132–3; Twomey, 2004, pp 578–81; Hanks, Gordon and Hill, 2012, pp 276–9; Keyzer, 2013, pp 155–8; Clarke, Keyzer and Stellios, 2013, pp 538–40. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force

789 The Commonwealth Parliament may consent to a State acting in a manner that would otherwise be prohibited by this section. There must be an express consent rather than mere inaction. See Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 at 232. The consent must be given by the Commonwealth Parliament, not the Commonwealth executive. See SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51; 188 ALR 241; [2002] HCA 18 at [62].

The first part of this section must be read in conjunction with s 51(vi). It invests the Commonwealth Parliament with exclusive power over that part of the defence power which relates to the armed forces. It implicitly recognises that the Parliament may delegate to a State the power to raise or maintain a naval or military force (such as a State militia). In Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495 Gummow J explained that s 114 ‘supplements, in the federal system, the authority of the Legislature established by the English constitutional settlement whereby the Executive cannot raise or maintain a standing army in time of peace without consent of the Legislature’: at 464. The Australian Capital Territory self-government legislation contains a similar restriction. See Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1)(d). The Norfolk [page 464] Island Act formerly contained such a restriction. See Norfolk Island Act 1979 (Cth) s 19(2)(b), prior to its repeal by the Norfolk Island Legislation Amendment Act 2015 s 28. Neither of these provisions provided for the possibility of consent by the Commonwealth Parliament. 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.

790 This section is one of the few sections in the Constitution defining the nature of intergovernmental immunities. It prohibits both the Commonwealth and States from imposing a tax on the other’s property. Several cases have considered whether an entity was a ‘State’ for the purposes of this provision. In Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219; 105 ALR 161 the High Court held that the State Bank was a ‘State’ for the purposes of s 114 because it was an agency or instrumentality of the State: at 230. In SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51; 188

ALR 241; [2002] HCA 18 a payment was received by SGH. The Commissioner of Taxation sought to tax that amount. Suncorp controlled the management of SGH: at [24]. Suncorp held all of one class of shares, but depositors held all of a different class of shares: at [25]. The parties agreed that Suncorp was the ‘State’ under s 114: at [23]. However, the court held that SGH was not a ‘State’ under s 114. Suncorp did not have absolute control over SGH since it could not require SGH to act without regard for the interests of the depositors: at [26], [30]–[31], [72]. The objects of SGH referred to the interests of members and depositors, and made no reference to the interests of the State government: at [28], [134]. The State executive could not direct the actions of SGH: at [30], [65], [70], [135]. The prohibition in s 114 encompasses taxation by subordinate authorities. Thus the Commonwealth is exempt from municipal rates. See Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 at 230, 240–1; Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 at 13. This section only prevents taxation of property (whether real or personal, corporeal or incorporeal). Consequently, it does not prevent stamp duty from being imposed upon a document of transfer involving Crown property. See Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330; 26 ALR 99. It also does not prevent the imposition of customs duties upon the importation of goods by a State. See Attorney-General of New South Wales v Collector of Customs (NSW) (1908) 5 CLR 818 at 832, 837–9, 843–4, 851, 853–5. Nor does this section prevent a tax being imposed upon the owner of rateable property, where the Commonwealth is a lessee of that property. In that situation the tax is imposed upon the owner, not the lessee (the Commonwealth). See Bevelon Investments Pty Ltd v City of Melbourne (1976) 135 CLR 530 at 536, 539, 545, 549; 12 ALR 391. 791 In Queensland v Commonwealth (1987) 162 CLR 74; 69 ALR 207 (the First Fringe Benefits case) the High Court held that s 114 did not prevent the Commonwealth from taxing car and housing fringe benefits provided by a State to its employees. Mason CJ, Brennan and Deane JJ held that s 114 ‘protects the property of a State from a tax on the ownership or holding of property but it does not

protect the State from a tax on transactions which affect its property, unless the tax can be truly characterized as a tax on the ownership or holding of property’: at 98. They stated that a tax on the possession or use of [page 465] property would be a tax on that property’s ownership. So too is a tax on the proceeds of the sale of property: at 98. The fringe benefits tax on the cars was not imposed on the ownership of the car but on their use by employees. It did not matter who owned the car. It was the provision of a benefit in the course of employment that was taxed: at 98–9. The housing fringe benefits tax was also imposed on the value of a benefit: at 99. Wilson J agreed that the tax was on a benefit, not on the State’s ownership of property: at 100. Liability to pay the tax was not dependent on the employer owning the car or house: at 100. A tax on the use by a State of its property may infringe s 114 where the tax is imposed by reason of the use the State makes of its property: at 101. He said that he was ‘hesitant’ to regard Attorney-General (NSW) v Collector of Customs for New South Wales (1908) 5 CLR 818 (the Steel Rails case) as authority beyond the proposition that a customs duty is not a tax on property: at 100. Dawson J began by making a pithy statement which, although obvious, helps to elucidate the concept of the relationship between property and tax: ‘Property does not pay taxes; individual taxpayers do’: at 104. He continued: ‘But an individual may be liable to pay tax because of some relationship between himself and property and if the relationship between the tax and the property is sufficiently direct and substantial then the tax may be said to be a tax on property’: at 104. Dawson J also stated that a tax on the holding or ownership of property is a tax on property, but a tax on transactions is not: at 104. He also viewed the Steel Rails case as authority only for the proposition that a customs duty is not a tax on property: at 104. Taxation on car and housing fringe benefits is not a tax on property: at 108. Generally speaking it is valid to distinguish between a tax on property and a tax on transactions, though in some circumstances a tax

on transactions may be a tax on property. Here the tax was a tax on transactions rather than a tax on property. The transaction was the provision of the fringe benefit: at 108. 792 In Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219; 105 ALR 161 the High Court unanimously invalidated a sales tax on printed matter manufactured by the State Bank of New South Wales and applied for the bank’s own use. This tax on the use made by a State of its property was a tax on property: at 228. The court made a number of general observations about s 114. That section does not protect the States from all taxes on transactions that affect their property. It only protects the States from taxes on transactions that affect their property where the tax is ‘a tax on the ownership or holding of property’. A tax that is presented as a tax on transactions can in fact be a tax on property: at 227. In South Australia v Commonwealth (1992) 174 CLR 235; 105 ALR 171 the court unanimously held that s 114 was infringed by a tax on the net capital gain made by a State from the disposal of an asset: at 255, 258. Five Justices (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) further held that s 114 was not violated by a tax on the interest earned from ‘moneylending’ by a State. Four Justices (Mason CJ, Deane, Toohey and Gaudron JJ) indicated that s 114 would not generally be infringed by an income tax on the income produced by State property: at 252–3. They noted that the High Court had always rejected the extremely broad interpretation of s 114 that was possible on its face, that is, that s 114 exempted the Commonwealth and States from any taxation whatever: at 246. Section 114 only prohibited taxes imposed by reference to a relationship between the State or the Commonwealth and their property and this relationship meant that the tax was upon the ownership or holding of the property: at 248. [page 466] Dawson J agreed that the immunity could not be interpreted literally.

Instead the relationship between the tax and the property determined whether it was a tax upon property: at 258. Brennan and McHugh JJ stated: ‘To describe a tax on property as a tax on the holding or ownership of property is a helpful guide in distinguishing a tax on property from a tax on transactions, although the dichotomy is not complete … a tax on transactions may sometimes operate in substance as a tax on property’: at 256. In Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145; 117 ALR 27 Commonwealth legislation taxed income held by a State official in trust for compensation of accident victims. The court held that this legislation did not tax property of the State. In substance the income was that of private citizens, the accident victims. In form the income was held by a trustee for private citizens: at 172.

STATES NOT TO COIN MONEY 793 Section 115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.

See Quick and Garran, 1901, p 950 (Revised ed, 2015, p 1159); Wynes, 1976, pp 149–50; Attorney-General’s Department, 1980, p 421; Lane, 1997, p 800. 794 This section, read with s 51(xii), would seem to have the effect not only of making the power over coinage exclusive to the Commonwealth but also of vesting in the Commonwealth sole power over the monetary exchange system (namely, currency, legal tender). Although the words appearing in the second part of the section seem to permit a State to make gold and silver coin legal tender, the Commonwealth Parliament has the exclusive authority to convert these metals into coinage which will be necessary before these metals become legal tender. See Quick and Garran, 1901, p 950 (Revised ed, 2015, p 1159). The Australian Capital Territory self-government legislation contains a similar restriction. See Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1)(e). The Norfolk Island Act formerly contained such a

restriction. See Norfolk Island Act 1979 (Cth) s 19(2)(c), prior to its repeal by the Norfolk Island Legislation Amendment Act 2015 s 28.

COMMONWEALTH NOT TO LEGISLATE IN RESPECT OF RELIGION 795 Section 116. 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.

See Quick and Garran, 1901, pp 951–3 (Revised ed, 2015, pp 1160–3); Ely, 1976, pp 60–8, 76–103, 123–4; Walker (1985) 59 ALJ 276; O’Neill (1987) 17 FL Rev 85 at 100–12; Coper, 1988, pp 293–300; Constitutional Commission, 1988, Vol 1, pp 609–17, Vol 2, p 1023; Moens (1989) 12 Syd LR 195; Kaye (1991) 14 UNSWLJ 332; McLeish (1992) 18 Mon ULR 207; [page 467] Moens [1996] Brigham Young ULR 787; Lane, 1997, pp 800–4; Bogen (1997) 46 Drake LR 53; Puls (1998) 26 FL Rev 139; Moens [2004] Brigham Young ULR 535; Clements (2007) 11 Int Trade & Bus L Ann 236; Beck (2008) 27 U Tas LR 161; Puig and Tudor (2009) 20 Public LR 56; Puig in Papers on Parliament No 51, 2009, pp 71–84; Boland (2010) 12 Const L & Pol’y Rev 47; Gray (2011) 16 Deakin LR 293; Beck (2011) 35 MULR 323; Beck (2012) 38 Mon ULR 271; Hanks, Gordon and Hill, 2012, pp 607–14; Beck (2013) 41 FL Rev 393; Williams and Hume, 2013, pp 62–4, 256–72; Pyke, 2013, pp 284–90; Guy, 2013, pp 325–38; Keyzer, 2013, pp 293–308; Clarke, Keyzer and Stellios, 2013, pp 1172–94; Gerangelos et al, 2013, pp 941–51; Mortensen (2014) 33 UQLJ 109; Zimmermann (2014) 5 Western Australian Jurist 123; Beck (2014) 37 UWALR 59; Joseph and Castan, 2014, pp 456–62; Williams, Brennan and Lynch, 2014, pp 1167–83; Beck (2014) 35 Adel LR 225; Aroney, Gerangelos, Murray and Stellios, 2015, pp 338–55; Stellios, 2015, pp 612–3; Beck (2015) 41 Mon ULR 17.

796 This section contains one of the few guarantees of individual rights to be found within the Constitution. While this provision appears in Chapter V (‘The States’), it does not apply to the States but only to the Commonwealth. See Grace Bible Church v Reedman (1984) 36 SASR 376 at 378, 385–6, 389; 54 ALR 571; Kruger v Commonwealth (1997) 190 CLR 1 at 60, 125; 146 ALR 126; R v Gorton [2001] QCA 43; Hoxton Park Residents’ Action Group Inc v Liverpool City Council (2010) 246 FLR 207; [2010] NSWSC 1312 at [55]–[58]; affd on this point Hoxton Park Residents’ Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156; [2011] NSWCA 363 at [38]–[39]; Cheedy v Western Australia (2011) 194 FCR 562; [2011] FCAFC 100 at [96]. Since religion as such falls under the residuary power of the States and not within a specific head of Commonwealth power, the effect of s 116 is limited. Section 116 operates as a fetter upon the exercise of legislative power by the Commonwealth Parliament. This raises the question whether the section has an operation in relation to executive acts of the government. Commenting on the establishment of religion part of s 116, in Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559; 33 ALR 321 Barwick CJ stated that s 116 ‘is directed to the making of law. It is not dealing with the administration of a law’: at 580–1. (In Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 both Toohey and Gaudron JJ quoted this statement with approval: at 86, 131.) Barwick CJ also stated that even though s 116 is directed at legislative action, if administration comes ‘within the ambit of the authority conferred by the statute, and does amount to the establishment of a religion, the statute which supports it will most probably be a statute for establishing a religion and therefore void as offending section 116’: Black at 581. Barwick CJ’s statement concerned the establishment of religion. It is not clear whether this observation is also applicable to the ‘free exercise’ part of s 116. See Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373 at 378; 71 ALR 578. There is also the question of whether s 116 applies to the exercise of judicial power. In New v New, High Court of Australia, Special Leave Application, 5 March 1982, Gibbs CJ rejected the application of s 116 to

judicial orders because this section did not address itself to judges, but dealt only with ‘laws’: at 2–3.

What is a ‘religion’ 797 It is convenient to consider first what constitutes a ‘religion’. In Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120; 49 ALR 65 the question arose as to whether the Church of the New Faith (Scientology) was entitled to a State tax exemption applying to religions. The High Court held that Scientology was a religion. [page 468] Mason ACJ and Brennan J considered that for legal purposes the criteria of religion are twofold: first, ‘belief in a supernatural Being, Thing or Principle’ (at 134); and second, the acceptance of canons of conduct in order to give effect to that belief: at 135. Canons which offended against the ordinary law were not covered by the protection or immunity given to religion: at 135–6. ‘Religious conviction is not a solvent of legal obligation’: at 136. Wilson and Deane JJ considered that the criteria or indicia for identifying a religion were flexible. They included: (a) belief in the supernatural; (b) ideas relating to humanity’s nature and place in the universe and its relation to things supernatural; (c) these ideas are accepted by adherents as encouraging them to observe particular standards or codes of conduct or participate in practices having supernatural significance; (d) the adherents constitute an identifiable group or groups; and (e) the adherents see the collection of ideas and/or practices as constituting a religion: at 147. Murphy J adopted an extremely wide view of what constitutes a religion. ‘Any body which claims to be religious and to believe in a supernatural Being

or Beings, whether physical and visible, such as the sun or the stars, or a physical invisible God or spirit, or an abstract God or entity, is religious. …. Any body which claims to be religious, and offers a way to find meaning and purpose in life, is religious. …. The list is not exhaustive; the categories of religion are not closed’: at 151. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance

The establishment clause 798 It is instructive to compare this section with the establishment clause of the First Amendment to the United States Constitution. Section 116 refers to the establishment of any religion while the American clause prohibits ‘an establishment of religion’. This may suggest that what s 116 is aimed at is any type of assistance tending to promote the interests of one church or religious community as against others. See Cumbrae-Stewart (1946) 20 ALJ 207 at 207–8. A non-discriminatory law which is directed towards assisting religion generally may violate the American provision but may not be invalid under s 116. See Wynes, 1976, p 134. This part of s 116 is directed towards preventing Commonwealth action leading to direct involvement in, and promotion of, religion. In Quick and Garran’s words, ‘[b]y the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others. It is not intended to prohibit the Federal Government from recognizing religion or religious worship’. See Quick and Garran, 1901, p 951 (Revised ed, 2015, p 1161). 799 In Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559; 33 ALR 321 Commonwealth legislation provided grants to the States for distribution among denominational schools. These provisions were challenged as an establishment of religion [page 469]

contrary to s 116. The court rejected this argument. Barwick CJ held that establishing a religion involved the adoption of a religion as an institution of the Commonwealth. That is, the establishment of a religion ‘involves the identification of the religion with the civil authority so as to involve the citizen in a duty to maintain it’: at 582. Gibbs J considered that this clause meant that the Parliament should not make any law for conferring upon a particular religion the position of a State religion: at 604. Similar views were expressed by Stephen J: at 605–6. Mason J considered that the clause prohibited the ‘recognition of a religion … as a national institution’: at 612. Wilson J took the same view: at 653. Aickin J agreed with Gibbs and Mason JJ: at 635. In dissent, Murphy J endorsed a theory of ‘strict separation’ between the Commonwealth and religious bodies: at 622–3. In Nelson v Fish (1990) 21 FCR 430; 92 ALR 187 French J held that the recognition of religious denominations as authorised to conduct marriages was not an ‘establishment’ of religion, especially having regard to the Commonwealth’s legislative power with respect to marriage: at 434. But he added: ‘That is not to say that the legislation could validly authorise a monopoly in religious marriages in favour of one particular denomination’: at 434. In Harkianakis v Skalkos (1999) 47 NSWLR 302; [1999] NSWSC 505 the court rejected an argument that s 116 implies a freedom of communication in relation to religious matters: at [18]. Distinguishing the cases concerning the implied freedom of political communication, Dunford J argued that s 116 ‘effectively excludes religion from the system of government established by The Constitution and is, in this sense, the antithesis of those provisions establishing a system of representative and responsible government’: at [17]. 799A Section 116 also expressly prohibits the Commonwealth from making any law for imposing any religious observance. In Hoxton Park Residents’ Action Group Inc v Liverpool City Council (2010) 246 FLR 207; [2010] NSWSC 1312 a Commonwealth statute provided funding to religious schools: at [21]–[22]. The plaintiffs objected to the provision of funding to an Islamic school: at [20]. The New South Wales Supreme Court held that the funding law did not impose any religious observance. The law did not compel

any person to send their child to an Islamic school. A statute did not impose a religious observance merely by assisting religious believers to educate their children in their faith: at [47]. See similarly, Hoxton Park Residents Action Group Inc v Liverpool City Council (2015) 294 FLR 254; [2015] NSWSC 136 at [67]– [68]. or for prohibiting the free exercise of any religion

The free exercise clause 800 This part of s 116 emphasises the principle of religious freedom. No person shall be subject to penalties or any form of discrimination based upon their religious beliefs. Whether a religious believer or a non-believer, a person is immune from laws that discriminate against or burden their beliefs or practices. In Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 the National Security (Subversive Associations) Regulations were challenged by a religious denomination, the Jehovah’s Witnesses. The regulations prohibited the advocacy of doctrines that were prejudicial to the prosecution of the war in which the Commonwealth was engaged. The regulations also provided for the dissolution of associations that propagated such doctrines and vested their property in the Commonwealth. The plaintiffs argued that these regulations contravened s 116. [page 470] Latham CJ examined the nature and scope of the religious freedom protected by s 116. He said (at 123): The prohibition in s 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance. Defaults in the performance of religious duties are not to be corrected by Federal law … Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion.

Latham CJ referred to two categories of laws: those which are mainly intended to discriminate among religions vis-a-vis each other and those which are mainly directed against non-religion. Latham CJ’s observation means that laws which fall into either or both of these categories infringe s 116. Thus, s 116 demands that religion and non-religion be treated neutrally. (This statement by Latham CJ was quoted with approval by Gummow J in Kruger v Commonwealth (1997) 190 CLR 1 at 160; 146 ALR 126.) Latham CJ emphasised the role s 116 plays in protecting minorities: ‘s 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities’: at 124. Latham CJ considered the validity of the statement that ‘though the civil government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion’: at 124. He decided that there is ‘full legal justification for adopting in Australia an interpretation of section 116 which … leaves it to the court to determine whether a particular law is an undue infringement of religious freedom’: at 131. Although admitting that s 116 protects action as well as belief, he held that religious beliefs or opinions are not a ground for exempting the believer from compliance with the ordinary civil or criminal law: at 122. On the facts, he held that s 116 did not accord immunity to the religiouslygrounded actions of the Jehovah’s Witnesses. The doctrine of the Jehovah’s Witnesses requiring non-cooperation with the Commonwealth in relation to military obligations was prejudicial to the defence of the community. Dissolution of subversive religious associations did not violate s 116: at 146–7. 801 Latham CJ’s views in Jehovah’s Witnesses may be summarised as follows: (a) Section 116 protects all religions. A definition of religion which satisfied the adherents of all religions would be ‘difficult, if not impossible’: at 123. Religion could be regarded as a system of beliefs or a code of conduct or ritual observance: at 123. ‘Section 116 must be regarded as operating in relation to all 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’: at 123. (b) Section 116 ‘protect[s] the religion (or absence of religion) of minorities’: at 124. (c) Section 116 protects practices as well as beliefs: at 124. (d) The word ‘free’ does not mean licence. The free exercise of religion does not empower individuals to break the law of the country: at 129–31. (e) The High Court is the arbiter of whether a legislative provision unduly infringes religious freedom: at 132. A similar conclusion was also reached by Starke J, who said that s 116 ‘does not protect unsocial actions or actions subversive of the community itself’. The section is subject to those limitations which ‘are reasonably necessary for the protection of the community and in the interests of social order’: at 155. [page 471] In Krygger v Williams (1912) 15 CLR 366 it was held that a statute which imposed obligations upon all male inhabitants to perform military service applied to a person whose religious beliefs were opposed to military service. As in the Jehovah’s Witnesses’ case, the decision was based upon the ground that a law imposing civic duties could not be characterised as a law infringing religious freedom: at 369. 802 In Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543; 67 ALR 195 the Minister for Immigration had ordered the deportation of the Imam of a mosque. Pincus J noted that it was unclear whether the word for in the free exercise clause should be interpreted in the same way as it had been in the establishment clause. If that approach was adopted, the free exercise clause would not be infringed unless the sole object of the law was to prohibit the free exercise of religion: at 557–8. He felt that such a restricted interpretation was not warranted. ‘Otherwise, much activity central to the life of religion in this country could be brought to an end by

legislation whose purpose is, for example, defence, or control of entry of aliens’: at 558. It was inconsistent with religious freedom for the government to determine the suitability of an individual as a religious leader: at 559. The free exercise guarantee applies to administrative as well as legislative action: at 560. The Minister for Immigration could not use his deportation power to prevent a minister of religion from making statements as to purely religious matters: at 561. The Minister could not deport a religious leader on the basis that the leader’s community would be better served by a new leader: at 561. On appeal, the Full Federal Court reversed the decision of Pincus J. In Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373; 71 ALR 578 Fox J held that, in deporting the Imam, the Minister had no intention of prohibiting the free exercise of religion, nor was that the purpose or effect of what he did. Permission was not given for the Imam to remain and so, as a non-citizen, he was liable to be deported. The practice of Islam was not prohibited, though a new Imam would have to be found: at 374. Jackson J stated that if legislation permitted executive action infringing s 116, the legislation would be invalid only to the extent that it permitted such action: at 378. He went on to say that ‘the question which arises is not whether the [Minister] took into account the terms of s 116 … but rather whether the exercise of power is “for” one of the ends provided by s 116’: at 379. The intention of the Minister was not to interfere with religious freedom: it was to remove what he saw as a destabilising influence in the community: at 388. Disruption of the group’s worship because of the deportation of its Imam did not prohibit the free exercise of the Islamic religion. Refusal to permit a minister of religion to remain in Australia was not a prohibition of the free exercise of that religion. To this there was a caveat: ‘It may be that circumstances such as repeatedly refusing to allow any overseas ministers of a religion to enter or remain in Australia might in a different case amount to such a prohibition’: at 389. 803 In Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 the High Court held that a law that authorised the removal of Aboriginal children from

their families did not infringe s 116: at 33–4. The court adopted a ‘purpose’ interpretation of the free exercise clause. Brennan CJ held that to infringe s 116 ‘a law must have the purpose of achieving an object which s 116 forbids’: at 40. The challenged law did not have that purpose. Toohey J stated that the purpose of the law may be taken into account in determining whether it infringes the free exercise clause: at 86. He also held that the challenged law did not have the purpose of prohibiting the free exercise of religion: at 86. Gaudron J argued that s 116 protects acts done in the exercise of religion: at 131. The guarantee may be infringed by a law that authorises governmental action which prohibits [page 472] free exercise, not merely by a law which of its own force prohibits free exercise: at 132. The purpose of the law is the sole criterion of validity: at 132. The validity of the law could not be determined without an analysis of its operation: at 134. Gummow J also adopted a purpose approach. He held that under the free exercise clause the issue is ‘whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved’: at 160. The challenged law had not been adopted with the object of prohibiting the free exercise of religion: at 161. Dawson J agreed with Gummow J on this point: at 60–1. McHugh J did not consider this issue as he considered that s 116 did not restrict the operation of the Territories power: at 141–2. 804 Section 116 does not prevent a court exercising jurisdiction under Commonwealth legislation from adjudicating on the conduct of parties based on religious beliefs and practices, where this is necessary for the effective exercise of its jurisdiction. This has often arisen in a family law context. See Kiorgaard v Kiorgaard [1967] St R Qd 162 at 167; Mauger v Mauger [1967] St R Qd 62 at 73; In the Marriage of Paisio (1978) 36 FLR 1 at 3; 26 ALR 132; In the Marriage of Firth (1988) 12 Fam LR 547 at 554–5. In providing for the

dissolution of religious marriages, the Family Law Act 1975 (Cth) does not infringe s 116. See In the Marriage of Abbott (1995) 123 FLR 424 at 440. In Nelson v Fish (1990) 21 FCR 430; 92 ALR 187 French J noted that the free exercise of any religion was not prohibited by permitting only the ministers of recognised religions to celebrate marriages. He placed significance upon the fact that a marriage in accordance with the couple’s religion could be performed by a non-recognised celebrant where the couple were already legally married to each other: at 434–5. In Halliday v Commonwealth (2000) 45 ATR 458; [2000] FCA 950 the Federal Court held that s 116 was not infringed by the requirement under the GST legislation that a maker of payments to another person withhold tax from that payment if the payee’s Australian Business Number (ABN) was not quoted. The applicant argued that this requirement obligated a Muslim to act contrary to their religion by acting as a tax collector: at [7]. It was held that the requirement did not ‘prohibit the doing of any act in the practice of religion’: at [21]. There was no ‘undue interference’ with the free exercise of religion, since a Muslim could act consistently with their faith by dealing only with those who quote an ABN: at [21]. In Cheedy v Western Australia (2011) 194 FCR 562; [2011] FCAFC 100 the National Native Title Tribunal determined that a State government could grant mining leases over land claimed as subject to native title: at [1]. The appellants argued that the Tribunal’s power to make such a determination had the effect of prohibiting the free exercise of religion by the native title claimants: at [87]. They argued that the grant of a mining lease would prevent them from fulfilling their religious obligations in relation to the land: at [63]. Applying the purpose test, the Full Federal Court held that the power of the Tribunal to make a determination did not have the purpose of prohibiting the free exercise of any religion. Some of the mandatory criteria that must be considered by the Tribunal reflected a solicitude for religious freedom: at [92]. The Tribunal had also made a finding of fact that conditions in the proposed lease would obviate any restriction of the free exercise of religion: at [95]. The court also held that s 116 did not apply to determinations by the Tribunal as it applies only ‘to the making of Commonwealth laws not with their administration or with executive acts done pursuant to those laws’: at [71], [96].

In Concerned Citizens of Canberra v Chief Planning Executive (2014) 286 FLR 355; [2014] ACTSC 165; leave to appeal refused [2015] ACTCA 56 the Australian Capital Territory [page 473] Supreme Court held that the lease of government land to a religious organisation for use as a house of worship did not prohibit the free exercise of religion by other faiths. A religious body’s right of exclusive possession of land under a lease did not deprive other religions of their free exercise rights: at [316]. and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Religious tests 804A Section 116 also prohibits the imposition of a religious test for the holding of any Commonwealth office or public trust. This part of s 116 was based upon Art VI, cl 3 of the United States Constitution. In Crittenden v Anderson (1950) 51 ALJ 171 a petitioner argued that a Roman Catholic Member of Parliament was disqualified under s 44(i) of the Constitution as being under an acknowledgment of allegiance to a foreign power (the Vatican). Fullagar J held that such a disqualification would impose a religious test in violation of s 116. In Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 the court unanimously held that Commonwealth funding for the provision of chaplains in state schools did not impose a religious test for the holding of a Commonwealth office since the chaplains did not hold any Commonwealth office. Gummow and Bell JJ held that the chaplains never entered into contractual relations with the Commonwealth. They were employed by a private religious body. The provision of Commonwealth funding did not make them holders of a Commonwealth office: at [109].

French CJ, Hayne, Crennan and Kiefel JJ agreed with Gummow and Bell JJ: at [9], [168], [476], [597]. Heydon J reached a similar conclusion: at [444]– [445].

RIGHTS OF RESIDENTS IN STATES 805 Section 117. 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.

See Quick and Garran, 1901, pp 953–61 (Revised ed, 2015, pp 1163–73); Constitutional Commission, 1988, Vol 1, pp 66–8; Coper, 1988, pp 313–9; Ebbeck (1991) 13 Adel LR 23; Zines and Lindell (1992) 21 FL Rev 136; Ebbeck (1993) 4 Public LR 89; Lane, 1997, pp 805–11; Mathieson (1999) 27 FL Rev 393; Lee and Paterson (2000) 8 Asia Pacific LR 169; Williams, 2005, pp 799–801; Simpson (2008) 32 MULR 639; Hanks, Gordon and Hill, 2012, pp 601–7; Williams and Hume, 2013, pp 272–82; Pyke, 2013, pp 279–80, 371–80; Guy, 2013, pp 338–43; Keyzer, 2013, pp 309–15; Clarke, Keyzer and Stellios, 2013, pp 1195–1209; Gerangelos et al, 2013, pp 951–65; Joseph and Castan, 2014, pp 462–8; Williams, Brennan and Lynch, 2014, pp 1183– 93; Mortensen, Garnett, and Keyes, 2015, pp 292–5; Stellios, 2015, pp 616– 20. 806 To be entitled to the protection afforded by this section, a person must be a ‘subject of the Queen’. This now means that only Australian citizens are protected, not citizens of the United Kingdom. See Street v Queensland Bar Association (1989) 168 CLR 461 at 525, 541, 544, 572; 88 ALR 321; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143; [2003] HCA 72 at [30]. [page 474] By its very nature this section excludes from its protection aliens or migrants who have not taken out Australian citizenship. Section 117 both prohibits discrimination, against certain subjects of the Queen, and sanctions

discrimination, against those who are not subjects of the Queen. See Kruger v Commonwealth (1997) 190 CLR 1 at 113; 146 ALR 126. This provision does not protect a corporation, but only natural persons. See Ceil Comfort Insulation Pty Ltd v ARM Equipment Finance Pty Ltd (2001) 159 FLR 310; [2001] NSWSC 28 at [11], [19], [26]; Sweedman v Transport Accident Commission (2006) 226 CLR 362; 224 ALR 625; [2006] HCA 8 at [59], [156]. The persons protected by this guarantee must be resident in a State. Those who fall within this guarantee are protected in another State from any disability or discrimination which does not equally apply to residents of that State. The discrimination prohibited by s 117 is thus discrimination on the basis of residence of a different State. In Sweedman v Transport Accident Commission (2006) 226 CLR 362; 224 ALR 625; [2006] HCA 8 a collision between two cars had occurred in New South Wales. One driver was a New South Wales resident, the other a resident of Victoria. It was assumed that the collision was the fault of the New South Wales resident: at [1]. The Victorian resident was compensated by the Victorian Transport Accident Commission. A Victorian statute provided that the Commission could seek indemnity from a person who had not paid a transport accident charge: at [13]. The Commission would indemnify a person who had paid that charge. The New South Wales resident had not paid the Victorian charge. The Commission accordingly sued the New South Wales resident for an indemnity for the compensation paid to the Victorian resident: at [10]. The court held that the New South Wales resident was not discriminated against on the basis of State residence. The Commission’s obligation to indemnify was based upon the payment of the charge, not State residence: at [60], [156]. A Victorian resident who had not paid the charge would also be liable to indemnify the Commission. The Commission could not seek indemnity from a New South Wales resident who had paid the charge: at [64], [156]. For a discussion of this case, see Kourakis (2007) 28 Adel LR 23. In Leeth v Commonwealth (1992) 174 CLR 455; 107 ALR 672 the Commonwealth argued that s 117 does not apply to federal law. Mason CJ, Dawson and McHugh JJ did not decide this issue: at 468. Deane and Toohey JJ seemed to favour its application to the Commonwealth but did not elaborate: at 488. They further stated that the presence of s 117 did not militate against the implication of a general guarantee of legal equality: at 488.

Prior to 1989 the cases decided by the High Court and State courts indicated that the protection given by s 117 was rather weak. The most important of these cases was Henry v Boehm (1973) 128 CLR 482; 1 ALR 181. In that case the High Court held that if a State law prescribed a period of residence as requisite for the attainment of a particular qualification or right (such as admission to a profession), s 117 did not operate to invalidate the requirement as the ‘other-State’ resident must enter the State in which such qualifications are prescribed as an initial step towards attaining the qualification. If they remained in the State, they would then become a resident of that State and be subject to its laws which apply to all residents alike (irrespective of origin): at 489–91, 497–8. The dissenting judgment of Stephen J in that case (at 501–4) became the basis for the judgment in Street v Queensland Bar Association (1989) 168 CLR 461; 88 ALR 321. 807 Since Street the protection afforded by s 117 has been much greater. At issue were two versions of Queensland admission requirements for barristers. The first version required a barrister seeking to practise in Queensland on the basis of interstate experience to be a [page 475] Queensland resident and to cease to practise in the other State: at 479–80. The second version was the result of amendments to the rules. A person seeking to practise in Queensland on the basis of practice in another State had to intend to practise principally in Queensland. Conditional admission for one year could become permanent admission if the applicant had practised principally in Queensland during that year: at 494. Both requirements were held to infringe s 117. Henry v Boehm was expressly overruled: at 489, 519, 532, 549, 560, 569–70, 588. Section 117 confers upon an individual an immunity from the operation of an infringing law. The law itself is generally not invalidated: at 486, 502–3, 582. As Brennan J put it, a law violating s 117 ‘is not invalid; it remains in full force and, except in relation to protected persons, in full effect’: at 504. Dawson J did not choose between invalidity or immunity because invalidity would be limited to the

particular circumstances: at 541. It also seems that s 117 gives an immunity against both direct and indirect discrimination: at 508, 528, 566, 581. Mason CJ indicated that because of the financial independence of the States, exclusion of out-of-State residents from State welfare programs is unlikely to infringe s 117: at 492. However, excluding out-of-State residents from professional activities is a different matter: at 492–3. Brennan J pointed out that s 117 does not apply to anyone who is not a subject of the Queen resident in another State: at 503. The immunity is from infringing exercises of legislative, executive and judicial power: at 504. When gaining a benefit or avoiding a detriment is conditional upon fulfilment of a requirement which persons protected by s 117 find more difficult to comply with, s 117 relieves an interstate resident of the obligation to comply with that requirement. However, if there is a ‘rational and proportionate connection’ between the requirement and an objective other than discrimination against out-of-State residents, s 117 has no application: at 510–11. Section 117 must be subject to an exception of necessity (for example, preservation of the ability of the State government to function) though such an exception does not appear in its terms: at 512. Hence State electoral laws may be based on State residence: at 513. This exception is ‘narrowly confined’: at 513. Deane J described the Boehm view of s 117 as ‘a triumph of form over substance’: at 523. He agreed that State residence is acceptable as a requirement for the State franchise: at 528. Dawson J described the protection afforded by s 117 as follows: ‘s 117 does not permit a citizen to be subjected in a State to any disability or discrimination the basis of which is, not the ordinary and proper administration of the affairs of that State, but his residence in another State’: at 548. If the purpose of the disparate treatment is other than the mere fact of out-of-State residence, s 117 will not be infringed: at 548. Toohey J said that the focus of the section was upon the individual claiming its protection. One looks to see whether the out-of-State resident is subject to a disability or discrimination that they would not suffer if they were resident within the State: at 555. Gaudron J concluded that the section ‘directs a comparison between the actual position of the person invoking s 117 and the position he or she would

enjoy if resident in the State where he or she claims to be subject to a disability or discrimination’: at 566–7. McHugh J agreed that the section directs this comparison, adding: ‘If a law operates so that an interstate resident would be worse off by reason of his residence than he would be if he were a resident in the State in question, s 117 will prevent the law operating to his detriment’: at 582. In Re Pudig [1990] 2 Qd R 551 the Queensland Full Court held that s 117 was infringed by a provision of the Queensland admission rules for solicitors. The admission rules provided [page 476] for the conditional admission of a solicitor who had been admitted in another State. This admission was subject to a requirement that the solicitor intended to practise in Queensland for at least nine months of the year following admission: at 552. A solicitor resident in New South Wales challenged this requirement. Examining his ‘actual position’, the Full Court held that this practice requirement was inapplicable to the solicitor. To fulfill the practice requirement the solicitor would have to ‘substantially … abandon’ his New South Wales practice: at 554, 557. He would be placed under a disability or discrimination which he would not have faced if he had been a Queensland resident: at 554, 557. The practice requirement was not necessary to ‘maintain professional or educational standards’: at 553. 808 In Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463; 120 ALR 605 the High Court held that s 117 was infringed by Queensland legislation that denied residents of other States access to Queensland’s more generous damages payouts for motor vehicle accidents. Dawson and Toohey JJ considered which State laws are discriminatory under s 117. They admitted that ‘difficulties may be encountered when one proceeds beyond the more obvious examples of differential treatment which are not prohibited by s 117’. They continued: ‘Guidance is then to be found in the object of s 117 which is to foster the concept of Australian nationhood, recognizing at the same time

the capacity of the States to govern their own communities which is an essential feature of the federation’: at 486. They considered that prohibiting non-State residents from voting in State elections was ‘[c]learly … something which would not be prohibited by s 117 … the very nature of a State election, which is to elect representatives for the residents of the State, dictates that residence be a qualification of voters’: at 485–6. It was a question of interest whether, for example, financial assistance and welfare schemes, the benefits of which are limited to residents of one State, violate s 117: at 487. Mason CJ agreed with Dawson and Toohey JJ: at 471. See also the judgments of Brennan, Deane, Gaudron and McHugh JJ: at 474, 479, 493–4.

RECOGNITION OF LAWS, ETC OF STATES 809 Section 118. 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.

See Quick and Garran, 1901, pp 961–4 (Revised ed, 2015, pp 1174–7); Nygh (1991) 13 Syd LR 415; Zines and Lindell (1992) 21 FL Rev 136; Opeskin (1992) 3 Public LR 152; Whitelaw (1994) 5 Public LR 238; Gummow (1995) 46 South Carolina LR 979; Juenger (1997) 19 Syd LR 529; Lane, 1997, pp 812–20; Kirk (2003) 31 FL Rev 247; Selway (2003) 29 Mon ULR 30; Mason (2004) 25 Adel LR 165; Stellios (2005) 33 FL Rev 7; Kourakis (2007) 28 Adel LR 23 at 39–46, 52–3; Lindell (2008) 30 Syd LR 27 at 45–9; Lindell and Mason (2010) 38 FL Rev 391 at 413–21; Davies, Bell and Brereton, 2014, pp 16–23, 959–62; Mortensen, Garnett, and Keyes, 2015, pp 282–92. 810 This broad constitutional direction is to be read together with s 185 of the Evidence Act 1995 (Cth), which was enacted under the power conferred upon the Commonwealth Parliament by s 51(xxv) of the Constitution. Section 185 provides: All public acts, records and judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, and in every public office in Australia, such faith and credit as they have by law or usage in the courts and public offices of that State or Territory.

[page 477] This provision is very similar to its repealed predecessor, s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth). The current statutory provision was ‘intended simply to replace’ its predecessor, and both are ‘to the same effect’. See Rahim v Crawther (1996) 17 WAR 559 at 583. There are differences in terminology between the constitutional provision and the statutory provision. For example, the constitutional provision includes, but the statutory provision omits, the word ‘laws’. The words ‘public acts’ in the statutory provision do not refer to State or Territory statutes. See Breavington v Godleman (1988) 169 CLR 41 at 80, 94–5, 115, 166; 80 ALR 362; Evidence Act 1995 (Cth) s 143. In Harris v Harris [1947] VLR 44 Fullagar J considered that there was a substantive difference between the statutory and constitutional provisions. The statutory provision requires absolute recognition to be given to the decisions of sister States in the State in which the mandate is invoked. The constitutional provision is subject to qualification based upon legitimate State policies: at 59. It is doubtful whether this distinction can be maintained and it is preferable to regard the statutory provision as ‘backing up’ the constitutional mandate. The phrase ‘laws … of every State’ in s 118 does not include the common law. See James Hardie & Co Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [1], [82], [125]. The unity of the common law throughout Australia means that there is not a separate common law for each State to which full faith and credit could be given. The common law operates in all of the States and Territories. Given the position of the High Court in the judicial system, any variations in interpretation of the common law by State or Territorial courts will ultimately be resolved by the High Court. There is thus a single common law of Australia. See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563; 145 ALR 96; Lipohar v R (1999) 200 CLR 485; 168 ALR 8; [1999] HCA 65 at [24], [26], [53], [167], [179]; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625; [2000] HCA 36 at [15]; Kirk v Industrial

Relations Commission (2010) 239 CLR 531; 262 ALR 569; [2010] HCA 1 at [99]. 811 Under s 118 credit is to be given to ‘laws’ (primary and secondary legislation), ‘judicial proceedings’ (judgments and court orders) and public records. It is quite clear that s 118 has an important evidentiary effect. It requires public officers (judges and administrators), whether federal or State, to give recognition to these public documents providing they are properly authenticated. That means, for example, that a court may take judicial notice of them. As such, the requirement preserves a unity between the States which assists in the administration of the laws in relation to persons or subject matters where an interstate element is involved. The difficult question is to determine whether the constitutional and statutory requirements also have a substantive operation requiring the laws and judgments of one State to be given effect in another State to resolve legal disputes arising in the latter State. 812 As to judgments, the decision in Harris v Harris [1947] VLR 44 supports the view that s 185 of the Evidence Act 1995 (Cth) has a substantive operation. This case concerned the repealed predecessor of that provision. A divorce decree had been pronounced in New South Wales on the basis of the petitioner’s domicile within that State. Subsequently, in Victoria this person had petitioned for a dissolution of a later marriage. It transpired that the petitioner had never lost his domicile of origin in Victoria. According to the rules of private international law of the time, the decree of the New South Wales court was not entitled to recognition as domicile in that State was a necessary foundation for the exercise of the jurisdiction. However, Fullagar J held [page 478] that he was compelled to recognise the decree by virtue of the predecessor of s 185 of the Evidence Act: at 50, 59. In Re DEF (2005) 192 FLR 92; [2005] NSWSC 534 Campbell J held that s

185 of the Evidence Act (Cth) requires that an order of a State court must be ‘treated by all Australian courts as having the same status and effects’ as would be given to the order by the courts of the State where the order was made: at [58]. In Bond Brewing Holdings Ltd v Crawford (1990) 1 WAR 517; 92 ALR 154 Ipp J observed that s 118 requires a State judge to take into account that, in the circumstances of a particular case, a judge of another State court would be unlikely to make the orders sought. He said: ‘It is plain that for reasons of judicial comity within Australia it is not desirable to interfere with the order of a court of another State unless exceptional circumstances exist and a clear case is made out’: at 529. This decision was expressly based upon s 18 of the repealed Commonwealth Act rather than s 118. In Shoard v Palmer (1989) 98 FLR 402 Kirby P commented that s 118 ‘appear[s] to be addressed to the form and contents of judgments and other records and not to the detailed factual issues determined by their content’, though he did not decide the issue: at 408. In Re Estate of Tamburin (2014) 119 SASR 143; [2014] SASC 58 it was held that s 118 did not require that letters of administration granted in Victoria be given effect in South Australia without the need for re-sealing (approval) of the grant by a South Australian court. The grant of letters of administration by a court had application only within the territory of that court. Giving full faith and credit to the grant could not change its nature: at [15]. 813 As to the recognition of ‘laws’, a succession of cases appear to have settled the effect of s 118. In Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362 a plaintiff brought a tort action in Victoria. The tort allegedly occurred in the Northern Territory. There was a conflict between Victorian law and Northern Territory law concerning the recoverability of economic loss: at 67. Mason CJ, Wilson, Deane and Gaudron JJ held that the issue had to be determined in accordance with the law of the place where the tort occurred. However, only two judges (Wilson and Gaudron JJ) considered that s 118 required this conclusion. Deane J developed a theory of a unitary legal system. Mason CJ held that this conclusion followed from the common law choice of

law rules. In dissent, Brennan, Dawson and Toohey JJ considered that s 118 did not act as a substantive determinant of choice of law rules. Mason CJ stated that s 51(xxv) of the Constitution meant that any substantive determination of choice of law rules was the responsibility of the legislature. Section 118 did not have that effect: at 79. If any provision of the Constitution can provide a solution to federal conflicts of laws, it is s 51(xxv): at 83. Section 118 has no application to Territorial legislation: at 80. Wilson and Gaudron JJ ascribed a substantive effect to s 118. It means that ‘the one set of facts occurring in a State would be adjudged by only one body of law and thus give rise to only one legal consequence, regardless of where in the Commonwealth the matter fell for adjudication’. Thus liability in tort should be determined according to the law of the place where the tort occurred: at 98. This does not give the laws of another State extra-territorial effect. It merely provides a choice of law rule: at 98–9. Section 118 is not a general limitation upon Commonwealth power: at 99. It has no application to Territorial legislation: at 93. Deane J considered that the Commonwealth and State legal systems are a unitary system of law: at 121. He stated that ‘the substantive rule or rules applicable to determine the lawfulness and the legal consequences or attributes of conduct, property or status at a particular time in [page 479] a particular part of the national territory will be the same regardless of whereabouts in that territory questions concerning those matters or their legal consequences may arise’: at 121. He considered that it was essential that ‘the legal principles for … resolving conflicts between different laws in a particular case will operate with identical results in any of the different court systems’: at 121. Section 118 ‘serves to confirm’ the national character of the Australian legal system: at 129. ‘To give full faith and credit to something does not, as a matter of ordinary language, mean merely to acknowledge the fact that it exists’: at 129. Section 118 does not have a merely evidentiary effect: at 130–4.

Brennan J stated that it would compromise the legislative powers of the States to construe s 118 as compelling State courts to give relief where the laws of that State gave no cause of action or even prohibited the relief sought: at 116–17. Section 118 had no application to Territory laws: at 114. Dawson J rejected a substantive operation for s 118. It ‘is not directed to a conflict of laws; where there is a conflict it makes no choice or, to put it another way, does not require the application of a law which is not otherwise applicable’: at 150. Section 118 largely has an evidentiary effect: at 150. But he quoted Harris v Harris [1947] VLR 44 with evident approval: at 150. Section 118 has no application to Territory laws: at 149–50. Toohey J avoided the issue of the consequences of s 118 for choice of law, saying it did not have to be decided: at 164. He did observe that s 118 does not apply to Territory laws, though it applies in the Northern Territory: at 163. So Territory courts have to give full faith and credit to State laws, though the States do not have to give full faith and credit to Territory laws: at 163. (On the application of s 118 to the Territories, see also Kruger v Commonwealth (1997) 190 CLR 1 at 57–8; 146 ALR 126). 814 In McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; 104 ALR 257 a majority of the High Court considered that s 118 did not have a substantive operation. The majority (Brennan, Dawson, Toohey and McHugh JJ) held that a forum court exercising jurisdiction over an action relating to a tort occurring outside the jurisdiction must apply the common law choice of law rules: at 35. To read s 118 as a substantive determinant of choice of law rules would deny the States an important legislative power: at 36. Two passages in the judgment are very important. The first relates to application of the law of the forum (at 36): Far from eliminating the differential operation of State laws, s 118 commands that all the laws of all the States be given full faith and credit: the laws of the forum are to be recognized as fully as the laws of the place where the set of facts occurred. Section 118 would not be obeyed by refusing recognition to the laws of a forum State and by applying only the laws of the part of Australia in which the set of facts occurred.

The second passage confirms the continuing importance of the common law rules of choice of law (at 37): … s 118 does not prescribe the selection of the [law of the place where the tort occurred] or other extraterritorial body of law as the exclusive body of law governing liability for

extraterritorial torts. The selection of the applicable rules governing liability is the function of the common law; s 118 provides for recognition by the courts of the forum of the rules so selected.

In dissent, Mason CJ expressed the view that s 118 was not a choice of law provision. He adhered to his views in Breavington. A defence under the law of the place where the tort occurred should be given full effect by the forum court: at 31. This is a consequence of the [page 480] common law of private international law. Deane J agreed that the defence under the law of the place where the tort occurred should be given effect by the forum court: at 52–3. Gaudron J thought that the Constitution eliminates both conflict of laws and choice of laws: at 55. Thus only one body of law can apply to any set of facts. The legal consequences attaching to any facts can only be determined by applying the law governing those facts: at 55. The law governing those facts will normally be that of the State where the events occurred: at 56. 815 In Stevens v Head (1993) 176 CLR 433; 112 ALR 7 a majority of the court (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) applied McKain: at 438–9, 453. In dissent, Deane and Gaudron JJ adhered to their earlier views. Deane J considered that McKain should not be followed: at 462. He said that in Breavington a majority (including Mason CJ) had rejected the notion that the States were ‘separate countries in private international law’, but this notion had been ‘effectively reinstated’ in McKain: at 460–1. Gaudron J stated: ‘Either its requirement that “[f]ull faith and credit … be given … to the laws … of every State” means that the laws of the State which govern an act as it happens also govern the legal consequences of that act or it means nothing of any constitutional significance at all’: at 464. She also indicated that McKain should not be followed: at 465. In Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463; 120 ALR 605 Deane and Gaudron JJ continued to adhere to their earlier views: at 476–7. In John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625; [2000] HCA 36 the court held that the common law should be developed so

that the governing law for torts with an interstate element is the law of the place where the tort occurred rather than the law of the place of adjudication. The court took the view that s 118 bolstered this conclusion because it suggested a preference for the ‘predominantly territorial interest of each [State] in what occurs within its territory’ over a plaintiff’s aim of maximising any damages award by choosing an appropriate jurisdiction in which to sue: at [64]. The court also reexamined the double actionability rule for torts with an interstate element. Under that rule a tort committed in another state would be actionable in the state of adjudication (1) if the tort would be actionable in the state of adjudication and (2) the wrong was not justifiable under the law of the state where it took place: at [22]. The court decided that this rule should no longer be followed by courts that are exercising either federal or non-federal jurisdiction. The majority invoked the federal system as a reason why the rule should not be applied in non-federal jurisdiction. Five judges stated: ‘within the federal system, it is appropriate that each State and Territory recognise the interest of the other States and Territories in the application of their laws to events occurring in their jurisdiction’: at [96]. For a discussion of this case, see James (2001) 23 Syd LR 145.

PROTECTION OF STATES FROM INVASION AND VIOLENCE 816 Section 119. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

See Quick and Garran, 1901, pp 964–5 (Revised ed, 2015, pp 1177–9); Nicholas, 1952, pp 128–9; notes (1978) 52 ALJ 296, 350; Attorney-General’s Department, 1980, pp 432–4; Renfree, 1984, pp 466–7; Brazil and Mitchell, 1988, pp 599–601 (no 1021); Hocking, 1993, pp 99, 101–4, Lane, 1997, pp 821–2; Ward, 1998, pp 3–8, 19–20, 51–2; Hancock, 2000; [page 481]

Head (2001) 29 FL Rev 273; White (2005) 28 UNSWLJ 438 at 441–2, 444–5, 455–6; Head, 2009, pp 17–9, 45, 52, 63–4, 101–2; Stephenson (2015) 43 FL Rev 289. 817 Section 119 is based upon Art IV s 4 of the United States Constitution. See Quick and Garran, 1901, p 964 (Revised ed, 2015, p 1178); Head, 2009, pp 6, 18. The first part of this section is an explicit assertion of the duties cast upon the Commonwealth in the exercise of its executive power over defence against external enemies and needs no further elucidation. The second part of the section relates to ‘domestic violence’. In so far as the State governments, through their police forces, are primarily responsible for law and order, Commonwealth military or police action can only be taken on matters affecting the ‘peace, order and good government’ of a State at the request of the State government. However, where the violence is directed against Commonwealth institutions or affects matters falling within Commonwealth power, then the Commonwealth can intervene without a request from the State in which the violence occurs. See Quick and Garran, 1901, p 964 (Revised ed, 2015, p 1178); R v Sharkey (1949) 79 CLR 121 at 151; Ward, 1998, pp 5–8. The exercise of this power of self-protection has been much more common in practice than has been the use of the process under s 119. See Ward, 1998, p 43. The provisions of the Defence Act 1903 (Cth) concerning protection against domestic violence reflect these distinctions. Separate provisions deal with calling out the defence forces following an application from a State (s 51B) or self-governing Territory: s 51C. In those cases any order must be revoked if the State or Territory withdraws its request: s 51B(5), 51C(5). Where a State or Territory is unlikely to be able to protect Commonwealth interests, the Governor-General may call out the defence forces to protect Commonwealth interests without a request from the State or Territory concerned: s 51A(3)(a). Where it is practicable to do so, the State or Territory must be consulted before an order is made: ss 51A(3)(b), (3A). The Prime Minister may order an expedited call-out in a ‘sudden and extraordinary emergency’: s 51CA(1). Section 119 of the Constitution makes no reference to the Territories. The

Defence Act adopts a similar scheme for both States and Territories. The Commonwealth has never expressly invoked s 119. See Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 at [247].

CUSTODY OF OFFENDERS AGAINST LAWS OF THE COMMONWEALTH 818 Section 120. 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.

See Quick and Garran, 1901, pp 965–6 (Revised ed, 2015, pp 1179–80); Attorney-General’s Department, 1980, pp 434–5; Brazil and Mitchell, 1981, pp 142–3, 644 (nos 116, 501); Constitutional Commission, 1988, Vol 1, pp 425–7; Lane, 1997, pp 822–3. 819 To relieve the Commonwealth from the burden of erecting Commonwealth prisons to house persons accused or convicted of offences against Commonwealth laws, this constitutional provision directs the States to receive such persons. It also empowers the [page 482] Commonwealth to make laws to give effect to this obligation, and therefore affects a matter lying within State residuary power (namely, control of prisons). In R v Turnbull; Ex parte Taylor (1968) 123 CLR 28 Barwick CJ pointed out that s 120 did not impose a duty upon the State to receive federal prisoners. Of its own force the section did not empower any federal official to remove a prisoner. Such a power must be derived from Commonwealth legislation which the section contemplates. He added that ‘in a proper case the section could give rise to judicial proceedings at the instance of the Commonwealth to enforce the obligations it creates’: at 37.

In Thomas v Quarmby (1982) 63 FLR 402 the New South Wales Supreme Court held that under s 120 State prisons were required to receive federal prisoners delivered under a Federal Court order issued outside that State: at 411–12. In Leeth v Commonwealth (1992) 174 CLR 455 at 479; 107 ALR 672 Brennan J commented upon s 120: So long as the system, contemplated by s 120 of the Constitution, of incarcerating Commonwealth prisoners in the same prisons as State prisoners continues, it will be necessary to maintain the same or substantially the same regime for fixing the minimum terms of Commonwealth prisoners and State prisoners serving their sentences in the same prison … If it were otherwise, the system contemplated by s 120 of the Constitution would be impracticable.

The dictates of prison discipline were the reason for this: at 472; see also at 490.

[page 483]

CHAPTER VI NEW STATES __________________________ NEW STATES MAY BE ADMITTED OR ESTABLISHED 820 Section 121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

See Quick and Garran, 1901, pp 967–70 (Revised ed, 2015, pp 1180–5); Lumb (1963) 37 ALJ 172; Wynes, 1976, pp 111–12; Lumb (1978) 52 ALJ 554; Attorney-General’s Department, 1980, pp 436–7; Tappere (1987) 17 FL Rev 223; Brazil and Mitchell, 1988, pp 872–3 (no 1231); Loveday and McNab, 1988, pp 1–17, 135–51; Constitutional Commission, 1988, Vol 1, pp 429–34; Lane, 1997, pp 823–5; Carney, 2006, pp 434–5; House of Representatives Standing Committee on Legal and Constitutional Affairs, 2007, pp 41–3; Twomey (2007) 18 Public LR 200; Horne, 2008, pp 11–17; Keyzer, 2013, pp 85–99; Rienstra and Williams (2015) 37 Syd LR 357. The Parliament may admit to the Commonwealth or establish new States.

821 The two methods by which new States of the Commonwealth may be created are by admission or establishment. The words ‘admit to the Commonwealth’ were intended to refer to the admission of political communities outside the Commonwealth which were British colonies or dependencies. See Moore, 1910, p 593. However, the wording of s 121 is not restricted to such communities. There does not seem to be anything in the

Constitution which prevents the admission of foreign states that desire to become States of the Commonwealth. As to the formation of new States from Territories which are geographically part of the Commonwealth, it is an uncertain question whether such Territories are ‘established’ or ‘admitted’. In so far as a Territory which is to be admitted to Statehood would have already attained the status of a selfgoverning Territory, it would be appropriate to describe the process as admission to the Commonwealth. (Its acceptance and the admission of the Territory would be subject to the discretion of the federal Parliament. See Lumb (1978) 52 ALJ 554 at 557.) If this wide interpretation of ‘admit’ is adopted, it would be more appropriate to restrict the word ‘establish’ to the formation of a new State from an existing State or States, whether by partition, union of the whole or parts of two or more States, or by ‘the junction of contiguous parts of two or more States’. See Quick and Garran, 1901, p 969 (Revised ed, 2015, p 1183). In such cases the restrictions imposed by s 124 would be applicable. [page 484] In August 1998 the Commonwealth government proposed that the Northern Territory be granted Statehood. A Statehood Convention was convened. See Gray (1998) 9 Public LR 127; Heatley and McNab (1998) 9 Public LR 155. In October 1998 a referendum was held in the Territory, resulting in a majority vote against Statehood. See note (1998) 9 Public LR 286; Northern Territory Legislative Assembly Standing Committee on Legal and Constitutional Affairs, 1999; Heatley and McNab (1999) 10 Public LR 3; House of Representatives Standing Committee on Legal and Constitutional Affairs, 2007, pp 9–12. Since 2011 a Territory statute provides for the election of a Constitutional Convention that would prepare a draft State Constitution. See Constitutional Convention (Election) Act 2011 (NT); Northern Territory Legislative Assembly, Parliamentary Record, 18 October 2011. No election for a Convention has yet been held. On 23 July 2015 the Australian Leaders’ Retreat Communiqué stated that all State and Territory leaders had expressed their support for the Northern Territory to be granted Statehood within three

years. See communique.

https://federation.dpmc.gov.au/australian-leaders-retreat-

and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

822 Before enacting legislation to admit a new State, the Commonwealth may impose terms or conditions for admission. In particular it may deal with the question of representation. In this respect it is to be noted that the rule of equal representation in the Senate may be departed from, as this requirement only applies to the original States. Quick and Garran stated that even the principle of proportionate State representation in the House of Representatives, though expressed without qualification in s 24, might, under the words of this section (‘including the extent of representation in either House’), be varied in the case of new States. See Quick and Garran, 1901, p 970 (Revised edition, 2015, p 1185). However, no terms or conditions could be imposed which are inconsistent with the provisions of the Constitution. For example, nothing could be done to prevent the Judicature Chapter of the Constitution from applying to the new State.

GOVERNMENT OF TERRITORIES 823 Section 122. 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.

See Quick and Garran, 1901, pp 971–4 (Revised ed, 2015, pp 1185–90); Opinion No 1843 of 6 October 1948; Lumb (1963) 37 ALJ 172; Constitutional Commission, 1988, Vol 1, pp 179, 187–90; Lindell (1992) 3 Public LR 5; Nicholson (1992) 3 Public LR 50; Horan (1997) 25 FL Rev 97; Nicholson (1997) 25 FL Rev 281; Lane, 1997, pp 826–46; Hopper (1999) 73 ALJ 181; Mossop (1999) 27 FL Rev 19; Mossop (1999) 6 Canberra LR 5; Pauling (2000) 20 Aust Bar Rev 187; Keyzer (2001) 75 ALJ 124; Zines, 2002,

pp 167–72; Lindell in Macintyre and Williams, 2003, pp 47–67; Carney, 2006, pp 393–435; Brennan (2009) [page 485] 33 MULR 957; Stellios, 2010, pp 452–62; Leeming, 2011, pp 229–33; Ratnapala and Crowe, 2012, pp 105–8; Pyke, 2013, pp 410–21; Clarke, Keyzer and Stellios, 2013, pp 395–462, 690–3; Williams, Brennan and Lynch, 2014, pp 332–50; Gray (2014) 42 FL Rev 67 at 72–6. The Parliament may make laws for the government of any territory

824 Under this head of power, the Commonwealth has a general power of legislating for a Territory. It may do so by means of paramount legislation passed by the Commonwealth Parliament or by setting up a Territorial legislature with its own legislative powers, although these will always be subject to the overriding authority of the Commonwealth Parliament. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248; 109 ALR 1 a majority of the court (Brennan, Deane, Toohey and Gaudron JJ) accepted that the Australian Capital Territory Legislative Assembly was a separate legislature whose enactments were an exercise of Territorial legislative power not of Commonwealth legislative power. Brennan, Deane and Toohey JJ stated that s 122 allowed the Commonwealth to provide for the constitutional arrangements of Territory government: at 271. A representative legislature could be created as a prelude to Statehood: at 272. Gaudron J agreed: at 284. Mason CJ, Dawson and McHugh JJ accepted that s 122 permitted the Commonwealth to establish a Territorial legislature armed with general legislative authority: at 263. Doing so was not an unconstitutional abdication of power, a concept about which their Honours expressed some reservations: at 265. They said that ‘there can be no doubt that the section confers power to endow a territory with the institutions appropriate to self-government’: at 265. It was inevitable that some Territories would progress to Statehood through self-government. Section 122 is the power that enables the

Parliament to provide for this interim stage between direct rule and Statehood: at 266. In Bennett v Commonwealth (2007) 231 CLR 91; 235 ALR 1; [2007] HCA 18 amendments to the Norfolk Island Act 1979 (Cth) provided that only Australian citizens could be voters or candidates in elections for the Territory legislature: at [1], [8]. The High Court unanimously upheld the validity of these amendments. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ held that since the Commonwealth had power to administer the Territory without elections, it could also withhold electoral rights from some of the Territory’s inhabitants: at [38]. Given the great differences between the various Territories, the Commonwealth is not obliged to adhere to any specific form of representative government should it choose to set up representative institutions in a Territory: at [42]. The Constitution does not require that the Commonwealth grant electoral rights to non-citizen residents of a Territory: at [42]. In separate judgments Kirby and Callinan JJ also upheld the amendments: at [142], [204]. The High Court has held that the source of Commonwealth legislative power over the Australian Capital Territory is s 122 not s 52(i). See Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; 165 ALR 171; [1999] HCA 44 at [14], [24], [82]. 825 Section 109 of the Constitution deals only with inconsistency between State and Commonwealth laws, not with inconsistency between Territory and Commonwealth laws. See Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1; [2002] HCA 28 at [128]. Nonetheless, inconsistent Territory laws face an outcome similar to that of inconsistent State laws. Where there is an inconsistency between a Territory law and a Commonwealth law, the Commonwealth law prevails to the extent of the inconsistency. [page 486] The Australian Capital Territory self-government legislation contains an express provision to this effect. See Australian Capital Territory (SelfGovernment) Act 1988 (Cth) s 28. Under this provision the Commonwealth

may cover the field. In Commonwealth v Australian Capital Territory (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55 the court held that ‘if a Commonwealth law is a complete statement of the law governing a particular relation or thing, a Territory law which seeks to govern some aspect of that relation or thing cannot operate concurrently with the federal law to any extent’: at [52]. Under this provision, Commonwealth laws are not to be read down so as to allow the concurrent operation of Territory laws: at [53]. In the Northern Territory the rule for the resolution of inconsistencies between Commonwealth and Territory laws has been recognised by judicial decision and is not the subject of an express provision in the self-government legislation. See Attorney-General (Northern Territory) v Hand (1989) 25 FCR 345 at 362–3, 366–7; 90 ALR 59; Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; [1999] HCA 8 at [43]–[61], [202], [219]; Rockman v Smallridge (2012) 33 NTLR 56; [2012] NTSC 56 at [17]–[24]; Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory (2013) 215 FCR 377; 300 ALR 476; [2013] FCA 154 at [23]; Leeming, 2011, pp 233–42; Twomey (2014) 42 FL Rev 421. The Territories power may be exercised extra-territorially. See Lamshed v Lake (1958) 99 CLR 132 at 141–2, 152–4. In Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362 Deane J noted that the power conferred by s 122 is a power to make laws not ‘with respect to’ a Territory, but ‘for the government of’ a Territory. Thus it might be argued that the power is subject to territorial limitations as are State legislative powers: at 137. He did not decide the issue: at 137–8. In Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 the High Court unanimously held that a general prohibition within Australia of the use of the words ‘200 years’ was not valid under the Territories power: at 97, 101, 117. 826 The view that s 122 is largely free from the limitations that restrain the Commonwealth in legislating under the various paragraphs of s 51 has been undermined by more recent High Court decisions. In Teori Tau v Commonwealth (1969) 119 CLR 564 the High Court held that the Commonwealth may legislate under s 122 to acquire property without being under an obligation to provide ‘just terms’: at 570. In Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; 147

ALR 42 the court re-examined the relationship between s 122 and s 51(xxxi), the acquisitions power. Three of the majority judges (Gaudron, Gummow and Kirby JJ) were prepared to overrule the court’s decision in Teori Tau, so that s 122 would be restrained by s 51(xxxi), even where s 122 was the only power relied upon to support the law: at 561, 612–14, 652. One of the majority judges (Toohey J) expressed reservations about overruling Teori Tau: at 560–1. Three judges (Brennan CJ, Dawson and McHugh JJ) indicated that Teori Tau should continue to be followed: at 540–1, 551–2, 575–6. However, there was majority support for a view that would have deprived Teori Tau of much of its significance: at 561. Gaudron J held that where a power other than s 122 is available to support the law, an exercise of the power under s 122 must comply with s 51(xxxi): at 565–9. Toohey, Gummow and Kirby JJ agreed with Gaudron J on this point: at 560, 614, 661–2. In Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 a majority of the court overturned Teori Tau: at [86], [189], [287]. The court held that an acquisition of property under s 122 was subject to the just terms requirement of s 51(xxxi). French CJ observed that the majority view in Newcrest suggested that Teori Tau’s holding had [page 487] not become part of a line of consistent authority: at [63]–[64], [84]. The decision had not been part of a pre-existing line of authority and was inconsistent with some prior authority: at [85]. To subject the Territories power to the applicability of the acquisitions power would not impose a limitation that was relevant only to the distribution of power between the Commonwealth and the States: at [79]. Gummow and Hayne JJ also pointed out that Teori Tau had been inconsistent with prior authority: at [178]. Where an express legislative power was subject to a limitation, other legislative powers should not be interpreted as authorising a similar law without being subject to that limitation. This approach should be applied to all sources of Commonwealth legislative power,

not only those deriving from s 51: at [185]. Teori Tau was an anomaly: at [189]. Kirby J adhered to his view in Newcrest: at [283]. It would be a very ‘artificial’ interpretation to conclude that the people of the Territories were ‘disjoined’ from the rest of the Commonwealth: at [286]. The other three judges did not express a view about whether Teori Tau should be overruled. Kiefel J considered that Teori Tau was not decisive for this case: at [460]. Heydon and Crennan JJ did not find it necessary to determine the relationship between the Territories power and the acquisitions power: at [318], [355], [446]. For a discussion of this case, see Brownhill (2010) 5 NTLJ 252. In Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 Toohey, Gaudron and Gummow JJ indicated that s 122 was restricted by the freedom of religion guarantee in s 116 of the Constitution: at 85, 122–3, 162, 166–7. On the other hand, Dawson and McHugh JJ were of the view that s 122 was not restricted by s 116: at 60, 141–2. The view that s 116 did restrict s 122 had also been taken in earlier decisions. See Lamshed v Lake (1958) 99 CLR 132 at 143; Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 at 621, 649, cp 593–4; 33 ALR 321. Whether s 116 applies to laws enacted by a Territory legislature is not clear. See Kruger at 123; Concerned Citizens of Canberra v Chief Planning Executive (2014) 286 FLR 355; [2014] ACTSC 165 at [310]–[312]; leave to appeal refused [2015] ACTCA 56. Several judges have expressed the view that s 122 is not restrained by particular implied rights and freedoms. See Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 246; 108 ALR 577; Kruger v Commonwealth (1997) 190 CLR 1 at 44–5, 63, 69–70; 146 ALR 126. Other judges have taken the view that s 122 is limited by particular implied rights. See Kruger at 92–3, 118. No definitive answer has been given to this question. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248; 109 ALR 1 Brennan, Deane, Toohey and Gaudron JJ held that the Commonwealth Parliament could not create a legislature under s 122 with the power to impose duties of customs and excise. The power of the Australian Capital Territory legislature was qualified by ss 90 and 52: at 273, 279. In dissent, Mason CJ, Dawson and McHugh JJ argued that ‘the territory legislature, in imposing such duties, would be exercising legislative power

which is referable to, derived from and part of the power of the Parliament which is made exclusive by s 90’: at 263. In Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530; 281 ALR 671; [2011] HCA 40 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed that the description of s 122 as a plenary power ‘is apt to mislead’. They added that ‘s 122 is not disjointed from the body of the Constitution’: at [7]. 827 One difficulty has been the extent to which s 122 is affected by Chapter III of the Constitution. The history of the cases is traced in Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; [1999] HCA 8 at [107]–[132], [166]–[176]. [page 488] In R v Bernasconi (1915) 19 CLR 629 the court took the view that s 80 (which appears in Chapter III) does not apply to the Territories: at 635, 638, 640. In Attorney-General (Cth) v R; Ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529 (the Boilermakers’ case) the Privy Council stated by way of obiter dictum that Chapter III ‘exhaustively describ[es] the Federal judicature and its functions in reference only to the Federal system of which the Territories do not form part’: at 545. The Privy Council added that the legislative power in respect of the Territories is a ‘disparate and non-federal matter’: at 545. The powers and status of the courts of the Territories are not determined by ss 71 and 72. Judges of Territorial courts are thus not entitled by the Constitution to the tenure prescribed by s 72. See Ballard v Wright (1955) 1 FLR 473 at 479; Spratt v Hermes (1965) 114 CLR 226 at 244, 248; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 598; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; 165 ALR 171; [1999] HCA 44 at [12], [36]; Zines, 2002, pp 172–4. In Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 the court once again examined the relationship between s 122 and Chapter III. Brennan CJ stated that s 122 ‘is not confined by limitations or restrictions derived from

provisions of the Constitution that are designed merely to distribute powers as between the Commonwealth and the States’: at 43. Chapter III was such a limitation and did not restrain s 122: at 43–4. Dawson J held that the doctrine of the separation of powers arising from Chapter III does not apply to s 122: at 62. McHugh J agreed with Dawson J: at 141–2. Toohey and Gaudron JJ expressed the obiter view that s 122 is restrained by Chapter III: at 84, 109. Gummow J also favoured a similar conclusion, but held that present authority did not permit it: at 176. In North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146; 206 ALR 315; [2004] HCA 31 the court accepted that a Territory court may exercise federal judicial power under an investment by a Commonwealth law: at [28]. A Territory court that is invested with federal jurisdiction must thus comply with the Kable principle (discussed under s 77(iii)). In particular, the court must be an independent and impartial tribunal and have that appearance: at [27], [29]. See similarly, Attorney-General (Northern Territory) v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 at [42]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16; 90 ALJR 38; [2015] HCA 41 at [41], [115]–[117], [182]. In North Australian Aboriginal Justice Agency Ltd v Northern Territory it was argued that the principle of the separation of judicial power restricted the power of the Northern Territory legislature: at [4], [138]. Most of the court (French CJ, Kiefel, Bell, Nettle and Gordon JJ) found it unnecessary to decide this issue: at [38], [237]. The other two judges rejected this argument. Gageler J emphasised that the legislative power of the Territory Legislative Assembly was distinct from the legislative power of the Commonwealth Parliament: at [105]. The argument that a Territory law violated the separation of judicial power depended upon the proposition that Commonwealth judicial power had been conferred by the Territory law: at [106]. The court had already rejected such an argument in the Kruger case: at [107]. If the separation of powers restricted Territorial legislative power, it would have been unnecessary to resort to the Kable principle as a restraint upon Territorial laws: at [115]. The separation of judicial power under Chapter III did not limit Territorial legislative power: at [118]. Keane J also held that the Territorial Parliament was not subject to the

separation of powers: at [146]. Territory courts were created by the Territory legislature, not the Commonwealth Parliament: at [147], [170], [179]. The Territory legislature had not purported to vest [page 489] Commonwealth judicial power in Territory courts: at [147], [178]. The Kruger decision should not be reconsidered: at [161]. The text and structure of the Constitution provided ‘powerful’ support for that decision: at [165]. It had also been argued that the jurisdiction exercised by Territory courts was exclusively federal jurisdiction. However, longstanding authority had held that Territorial jurisdiction was not exclusively federal jurisdiction: at [173]–[174]. For discussions of the relationship between s 122 and Chapter III, see ALRC, 2000, pp 478–85; ALRC, 2001, pp 620–7; McNab (2001) 20 Aust Bar Rev 293; Zines, 2002, pp 175–7; Carney, 2006, pp 380–91; Pauling and Brownhill (2007) 28 Adel LR 55; Leeming, 2012, pp 23–6; Keyzer, 2013, pp 350–8. 828 Two of the Territories have Legislative Assemblies. See Northern Territory (Self-Government) Act 1978 (Cth) Pt III; Australian Capital Territory (Self-Government) Act 1988 (Cth) Pts III, IV (hereafter NT, ACT). Until 2015 the Norfolk Island also had its own Legislative Assembly. See the pre-amendment Norfolk Island Act 1979 (Cth) Pts IV, V (hereafter NI). Under the Norfolk Island Legislation Amendment Act 2015 (Cth) the Norfolk Island Legislative Assembly was replaced by a local government authority. For the background, see Joint Standing Committee on the National Capital and External Territories, 2014, pp 41–2. The position both before and after these amendments will be examined. Subject to various restraints imposed by the Self-Government Acts and the Commonwealth Constitution, the Territorial legislatures have power to make laws for the peace, order and good government of the Territory. See NT s 6; ACT s 22(1). Such a power was formerly conferred upon the Norfolk Island legislature. See repealed NI s 19(1). The more notable of the restrictions upon Territorial legislative power will be briefly outlined. As was discussed above,

the Territorial legislatures have no power to impose duties of customs or excise: s 90 of the Constitution. Territorial legislative power is subject to a restriction similar to that in s 92 of the Constitution. See NT s 49; ACT s 69. The High Court’s current interpretation of s 92 will be followed in giving effect to this guarantee (not the interpretation that prevailed at the time of the enactment of the SelfGovernment Acts). See AMS v AIF (1999) 199 CLR 160; 163 ALR 501; [1999] HCA 26 at [35]–[36], [153], [221]; Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; 286 ALR 404; [2012] HCA 13 at [9], [41]. Where a provision of State law confers a judicial or administrative discretion, when that discretion is exercised in a manner that is inconsistent with this guarantee, the State law remains valid but the purported exercise of the discretion constitutes an error of law. See AMS at [37]; Sportsbet at [12]. Similar limitations were found in the repealed Northern Territory (Administration) Act 1910 (Cth) s 10 and NI s 19(2)(a). Territorial legislative power is also subject to a restriction similar to that in s 51(xxxi) of the Constitution. See NT s 50(1); ACT s 23(1)(a), (2). A similar restriction appeared in the repealed NI s 19(2)(a). Once again, the current interpretation of s 51(xxxi) has been followed in applying these guarantees. See Jenkins v Territory Insurance Office (2001) 11 NTLR 121; 165 FLR 287; [2001] NTSC 92 at [7]; Australian Capital Territory v Pinter (2002) 121 FCR 509; [2002] FCAFC 186 at [23], [269]; Attorney-General (Northern Territory) v Chaffey (2007) 231 CLR 651; 237 ALR 373; [2007] HCA 34 at [3], [56] (subject to the possible qualification at [4]); Emmerson v Director of Public Prosecutions (2013) 33 NTLR 1; 166 NTR 12; [2013] NTCA 4 at [18], [57]; reversed on different grounds (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13. The just terms guarantees in the Territory Self-government Acts are a restriction upon the ‘general grant of legislative power’ of the Territory Assemblies, while s 51(xxxi) is both a grant and restriction of legislative power. It is arguable that decisions upon s 51(xxxi) [page 490]

that have been influenced by the interaction of that provision with the other grants of federal legislative power may not be applicable to the guarantees under the Territory Self-government Acts. See Australian Capital Territory v Pinter (2002) 121 FCR 509; [2002] FCAFC 186 at [23], [112], [268]–[269]. Many Territory statutes make specific provision for the payment of just terms if their operation results in an acquisition of property. See, for example, Disability Services Act 1993 (NT) s 75; Utilities Act 2000 (ACT) s 260; Tobacco Control Act 2002 (NT) s 57A; Plant Diseases Act 2002 (ACT) s 37; Gene Technology (GM Crop Moratorium) Act 2004 (ACT) s 35; Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT) s 91A; Heritage Act 2011 (NT) s 147; Retirement Villages Act 2012 (ACT) s 503. Formerly, it was within the competence of the Territorial Legislative Assemblies to make laws permitting euthanasia. See Wake v Northern Territory (1996) 5 NTLR 170 at 179; 109 NTR 1 at 9; appeal adjourned [1996] HCATrans 462. The Territorial legislatures no longer have this power. See NT s 50A; ACT s 23(1A). A similar limitation appeared in the repealed NI s 19(2)(d). Norfolk Island formerly had its own immigration and customs systems. See the repealed NI s 21(2), Sch 2 Item 36, Sch 3 Items 2–3; Customs Act 1913 (NI); Immigration Act 1980 (NI). The Commonwealth immigration system now extends to Norfolk Island. See Migration Act 1958 (Cth) s 7. The Territory conducted its own census. See the repealed NI Sch 2 Item 64; Census and Statistics Act 1961 (NI). The Census and Statistics Act 1905 (Cth) will be extended to the Territory. The abolition of self-government does not appear to have as yet affected the Territory’s operation of a separate postal system. See Postal Services Act 1983 (NI); Australian Postal Corporation Act 1989 (Cth) s 8. Under selfgovernment Norfolk Island did not adopt the Australian Consumer Law which applies in the States and the self-governing Territories. See Fair Trading Act 1995 (NI). The Australian Consumer Law will apply to Norfolk Island from 1 July 2016 as from that date New South Wales State law will be applied in the Territory. See the new NI s 18A(1). Income derived by residents of Norfolk Island from sources within the

Territory was formerly exempt from Commonwealth income taxation. See Income Tax Assessment Act 1936 (Cth) ss 24B(1), 24G, prior to their repeal by the Tax and Superannuation Laws Amendment (Norfolk Island Reforms) Act 2015 (Cth) Sch 1 Item 1. The Territory government’s (insufficient) sources of revenue included a Goods and Services Tax and various levies and duties. See Customs Act 1913 s 1C; Absentee Landowners Levy Act 1976; Departure Fee 1980; Healthcare Levy Act 1990; Cheques (Duty) Act 1983; Fuel Levy Act 1987; Goods and Services Tax Act 2007 (all NI). Norfolk Island residents were formerly ineligible for Medicare, Pharmaceutical Benefits Scheme or Social Security benefits. At that time the Territory operated its own healthcare and social security schemes. See the repealed NI Sch 2 Item 67 and Sch 3 Item 10; Social Services Act 1980 (NI); Healthcare Act 1989 (NI). Under amendments enacted in 2015 Norfolk Island residents will become eligible for Medicare, Pharmaceutical Benefits Scheme and Social Security benefits. See Health Insurance Act 1973 (Cth) s 3(1) (definition of ‘Australia’); National Health Act 1953 (Cth) s 6A; Social Security Act 1991 (Cth) s 3AA. The Governor-General formerly possessed the power to disallow Northern Territory and Australian Capital Territory laws within six months after assent. This power was repealed by the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 (Cth). Only one Territory law was disallowed through use of this power. See Australian Capital Territory Legislative Assembly, Hansard, 17 June 2009, [page 491] p 2407. The Governor-General disallowed the Civil Unions Act 2006 (ACT). See Federal Register of Legislative Instruments F2006L01810; Commonwealth of Australia Gazette, No S 93, 14 June 2006. By contrast, until the abolition of self-government the Governor-General retained a disallowance power with respect to Norfolk Island laws. See the repealed NI s 23; House of Representatives Hansard, 31 October 2011, p 12091. The Australian Capital Territory legislature may entrench legislation by

restricting the manner and form in which the law may be amended or repealed. The entrenchment must be approved at a referendum of Territory electors: ACT s 26. This power is not subject to the ‘constitution, powers and procedure’ limitation which applies to entrenchment by the State Parliaments. See Lindell (1992) 3 Public LR 5 at 15; see generally Carney, 2006, pp 204–6. In the Australian Capital Territory the Governor-General may dissolve the Territorial legislature where he or she is of the opinion that it is incapable of effectively performing its functions or is conducting its affairs in a grossly improper manner: ACT s 16(1). A general election must then be held within not less than 36 days and no more than 90 days: ACT s 16(2)(b). The Norfolk Island Administrator formerly possessed such a power: NI s 39AC(1). 828A There are considerable differences in the systems of executive government operating in the Territories. In the Northern Territory the government of the Territory is administered by an Administrator: s 32(2). The Administrator holds office during the pleasure of the Governor-General: s 32(1). Laws passed by the Legislative Assembly are presented to the Administrator for assent: s 7. Certain laws must be reserved for the assent of the Governor-General: s 8. The Territory operates under a system of responsible government. An Executive Council advises the Administrator in the government of the Territory: s 33(1). The Administrator acts on the advice of the Executive Council. See Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462 at 465, 475, 481; 119 ALR 557. The Executive Council is made up of Ministers: s 33(2). Ministers must be members of the legislature: s 36. The Administrator may terminate the appointment of a Minister: s 36. Federal regulations may specify the matters in which Territory Ministers are to exercise executive authority: s 35. Under the Northern Territory (SelfGovernment) Regulations 1978, many functions have been transferred: regs 4(1), (5). However, the Commonwealth has retained authority over uranium mining and Aboriginal land rights: reg 4(2). See also Attorney-General (Northern Territory) v Hand (1989) 25 FCR 345 at 365, 366–7; 90 ALR 59. In the Australian Capital Territory there is an executive for the Territory: s 36. The executive has power to govern the Territory with respect to a broad range of matters specified in the Self-Government Act: s 37, Sch 4.

A system of responsible government also operates in the Territory. See Mann v Carnell (1999) 201 CLR 1; 168 ALR 86; [1999] HCA 66 at [75], [86]. The Legislative Assembly elects the Chief Minister: s 40. A resolution of no confidence in the Chief Minister must be passed by at least the number of members necessary to form a quorum: s 19. If the resolution of no confidence is passed, the Assembly elects a new Chief Minister: s 40(3). Ministers must be members of the Territory legislature: s 41(1). The Chief Minister may dismiss a Minister at any time: s 41(3). Lindell ((1992) 3 Public LR 5 at 3–4) regards the legislative process of the Australian Capital Territory as a partial form of republicanism: Unlike the position which prevails at the Federal and State level, and in the Northern Territory, the Crown or a Vice-Regal representative has not been made a constituent part of the … legislative process … Laws passed by the Legislative Assembly therefore take effect without the assent or approval of the Crown or its representative subject only to the power of the GovernorGeneral to disallow those laws in the national interest.

[page 492] In Norfolk Island the government of the Territory will be administered by an Administrator during the transition away from self-government: s 5. The Administrator holds office during the pleasure of the Governor-General: s 6. The Administrator is advised by an Advisory Council: s 13. (In July 2016 the Advisory Council will be replaced by an elected Regional Council.) The Governor-General has the power to make ordinances for the peace, order and good government of the territory: s 19A(1). Prior to the abolition of self-government, a Chief Minister was appointed by the Administrator on the advice of the Legislative Assembly: preamendment s 13(1). Ministers were formerly appointed from the Legislative Assembly by the Administrator on the advice of the Chief Minister: preamendment s 13(2). Where the Administrator considered that ‘exceptional circumstances’ justified dismissal, the Administrator formerly possessed the power to dismiss the Chief Minister: pre-amendment s 14A(1). The Chief Minister also ceased to hold office if the Legislative Assembly passed a motion of no confidence:

pre-amendment s 14(1)(d). A general election had to be held if the Legislative Assembly did not nominate a new Chief Minister within 10 days: repealed s 39AB(1). The Administrator had power to dismiss a Minister on the advice of the Chief Minister: pre-amendment s 14A(2). A law passed by the Legislative Assembly was formerly presented to the Administrator for assent: repealed s 21. Certain laws were required to be reserved for the assent of the Governor-General: repealed s 22 and Sch 2, 3. In 2014 the Governor-General withheld assent to certain provisions of the Land Valuation Act 2012 (NI). Those provisions were inconsistent with Commonwealth legislation. See Norfolk Island Government Gazette, No 11, 21 March 2014 p 40. The responsible Commonwealth Minister had power to introduce a Bill into the Legislative Assembly: repealed s 26A. 828B In both the Northern Territory and the Australian Capital Territory the expenditure of public moneys requires legislative authorisation. See NT s 45(1); ACT s 58(1); (formerly in NI s 48(1)). Each of the Territories has a Supreme Court. See Supreme Court Act 1979 (NT); ACT s 48A. The Norfolk Island Supreme Court continues in existence despite the abolition of self-government. See NI s 52; Supreme Court Act 1960 (NI). In the Northern Territory and the Australian Capital Territory judges may be removed from office following a legislative determination of misbehaviour or physical or mental incapacity. See Supreme Court Act 1979 s 40 (NT); ACT s 48D. In Wynbyne v Marshall (1997) 7 NTLR 97; 117 NTR 11; SLR [1998] HCATrans 191 it was held that Northern Territory legislation providing for a mandatory sentence of imprisonment for property offences did not breach the separation of powers between the legislature and the judiciary. A mandatory sentence did not constitute a legislative finding of guilt: at NTLR 111–12, NTR 25. The majority did not decide whether the separation of powers doctrine was applicable to the Territory: at NTLR 107, NTR 21. For discussions of the constitutional arrangements in the various Territories, see Ewens (1980) 54 ALJ 68 (pre-amendment NI); Nicholson (1985) 59 ALJ 698 (NT); Carney, 2006, pp 448–59 (NT), 437–47 (ACT), 461–76 (preamendment NI), 447–8, 476–85 (other Territories); Irving in Ghai and Woodman, 2013, pp 200–27 (pre-amendment NI). For a history of

constitutional arrangements in the Northern Territory, see French (2011) 85 ALJ 735. Finally, the Australian Capital Territory has a statutory Bill of Rights, the Human Rights Act 2004 (ACT). The rights guaranteed are drawn from the International Covenant on Civil [page 493] and Political Rights. The effect of the Act is relatively weak. The Act provides that ‘[s]o far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights’: s 30. The Supreme Court may declare that a statute is not consistent with human rights, but such a declaration does not affect the validity of the law: s 32. The Attorney-General must provide the Territory legislature with a written response to this declaration of incompatibility: s 33(3). For discussions of this legislation, see Evans (2004) 32 FL Rev 291; Winterton (2004) 7 Const L & Pol’y Rev 47; Wilkins (2007) 35 FL Rev 431 at 433–45; Byrnes, Charlesworth and McKinnon, 2009, pp 73–107. 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

829 The various ways in which the Commonwealth may acquire territory are mentioned in s 122. The first method is by surrender, that is by a State Parliament passing an Act surrendering part of its territory to the Commonwealth which must afterwards be accepted by the Commonwealth Parliament. Section 111 authorises a State to surrender parts of its territory to the Commonwealth. The second method is by a Territory being placed by the Queen under the authority of the Commonwealth and subsequently being accepted by the Commonwealth. For examples, see Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [79]–[80]. The third method is where the Commonwealth ‘otherwise’ acquires the

Territory. This would apply to any other method of acquiring territory, whether by cession, transfer from some other government, or by the acquisition of an original title whether on the basis of possession or in some other way which would be recognised by international law. In several cases the Commonwealth legislated with respect to the process by which an external Territory gained independence from Australia. See Nauru Independence Act 1967 (Cth); Papua New Guinea Independence Act 1975 (Cth). In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439; 218 ALR 483; [2005] HCA 36 the court examined the citizenship consequences of the independence of Papua New Guinea (PNG). Upon the attainment of independence the former Territory’s residents automatically became citizens of the new nation. At the same time, their Australian citizenship was withdrawn in view of the PNG Constitution’s stance against dual citizenship: at [23]. Prior to independence, PNG residents born since 1948 had been Australian citizens, but without the right to residence within the Australian mainland or Tasmania: at [1]. The court held that the power to acquire sovereignty or administrative rights over external Territories included the power to provide for the ending of these rights, such as through independence: at [28], [37]. The Commonwealth thus had power to treat the citizens of the new nation as aliens and to withdraw their citizenship: at [37]–[38]. The Constitution does not require that the Commonwealth provide residents of an external Territory with the same rights as those of citizens within the States. For example, there is no requirement that residents of external Territories have the federal suffrage: at [30]. It was not necessary that the inhabitants of an external Territory be granted Australian citizenship. If citizenship is granted, it may be withdrawn when Australian sovereignty ends: at [33]. The aliens [page 494] power (s 51(xix)) may be applied to change the citizenship status of the

inhabitants of external Territories without the consent of the individuals concerned: at [34]–[35]. Residents of external Territories need not be granted the right of entry to or residence in the mainland, and fall within the immigration power: at [22], [32]. For a discussion of this case, see Prince, 2005. Lists of the various Territories appear in Attorney-General’s Department, 1980, p 437; Carney, 2006, pp 436, 459. For histories of the acquisition of the external Territories, see Carney, 2006, pp 476–85; Kerr, 2009. 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.

830 The Commonwealth is not required to give representation to either its internal or external Territories in the federal Parliament. However, the Australian Capital Territory and the Northern Territory are represented in both Houses of the Commonwealth Parliament. See Commonwealth Electoral Act 1918 (Cth) ss 40 (Senate), 48–48A (House of Representatives). Since s 7 of the Constitution provides that ‘[t]he Senate shall be composed of Senators for each State’, arguments were raised against full Senate representation of the Territories on the ground that there was a conflict between this part of s 122 and s 7. In Western Australia v Commonwealth (1975) 134 CLR 201; 7 ALR 159 a 4–3 majority held that the plain meaning of s 122 should not be read down or restricted in the light of s 7, so that representation of Territories in the Senate could be granted on such terms and conditions as the Parliament thought fit: at 233–4, 269–71, 272–5, 282. This decision was subsequently followed in Queensland v Commonwealth (1977) 139 CLR 585 at 600, 603, 607, 608, 610; 16 ALR 487. In that case the court also upheld the representation of the two Territories in the House of Representatives by members with full voting rights. The Territorial senators and members of the House of Representatives have the same powers as other members of those Houses. See Commonwealth Electoral Act 1918 (Cth) ss 41 (Senate), 53 (House of Representatives). For discussions of representation of the Territories in the Commonwealth Parliament, see Carney, 2006, pp 433– 4; Williams, Brennan and Lynch, 2014, pp 693–8; Sloane in Waring, 2016, pp 109–41.

ALTERATION OF LIMITS OF STATES 831 Section 123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

See Quick and Garran, 1901, pp 974–6 (Revised ed, 2015, pp 1190–2); Wynes, 1976, pp 111–12; Attorney-General’s Department, 1980, pp 444–6; Brazil and Mitchell, 1988, pp 872–3 (no 1231); Lane, 1997, pp 847–9; Brown (2007) 28 Adel LR 113. [page 495] 832 The limits of a State can be increased by the addition of part of another State, or by the annexation of a federal Territory. The limits of a State can be ‘diminished by taking from it [territory] along its border, and giving it to another State or transferring it to the Commonwealth’. See Quick and Garran, 1901, p 975 (Revised ed, 2015, p 1191). Section 123 requires that any boundary alteration of this nature be approved by the Commonwealth Parliament, the Parliaments of the States affected and the electors of the States affected voting at a referendum. However, the requirements of s 123 do not apply to a surrender by a State of part of its territory to the Commonwealth under s 111. See Paterson v O’Brien (1978) 138 CLR 276 at 280–1; 18 ALR 31. However, it has not been judicially determined whether the admission of a new State, formed under the procedure laid down in s 124, also comes under s 123, that is, in cases where there is a boundary alteration, or whether s 124 is a separate grant of power subject only to the conditions laid down in that section. This question will be considered under the next section.

FORMATION OF NEW STATES

833 Section 124. 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.

See Quick and Garran, 1901, pp 976–7 (Revised ed, 2015, pp 1192–3); Wynes, 1976, pp 111–12; Brazil and Mitchell, 1988, pp 872–3 (no 1231); Lane, 1997, p 849; Rienstra and Williams (2015) 37 Syd LR 357. 834 The ways in which a new State may be created are set out in this section although they are not exhaustive of the methods of creation. We have seen that a new State may be formed by admission to the Commonwealth or establishment by the Commonwealth as in the case of a federal Territory raised to Statehood. However, where a new State is formed by separation or union, there must be consent of the Parliaments of the States affected. Quick and Garran considered that s 123 does not apply to the establishment or creation of States under ss 121 or 124, or to the surrender of territory under s 111, even when such creations involve boundary alterations, as for example when parts of two States are conjoined — an event which would naturally affect the boundaries of both States. In their opinion the mischief designed to be prevented by s 123 was in terms of adjustments to boundaries. See Quick and Garran, 1901, p 975 (Revised ed, 2015, p 1191). In such a case, s 123 would guarantee a vote to the electors of the affected States. The reasoning of the High Court in Paterson v O’Brien (1978) 138 CLR 276; 18 ALR 31 on the relationship between ss 111 and 123 would appear to be applicable to the relationship between ss 123 and 124. Consequently, a referendum of the electors of the State would not be a constitutional requirement for the formation of a new State which involved a boundary alteration but would be within the political discretion of the government and Parliament of the State concerned.

[page 497]

CHAPTER VII MISCELLANEOUS __________________________ SEAT OF GOVERNMENT 835 Section 125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government.

See Quick and Garran, 1901, pp 978–82 (Revised ed, 2015, pp 1194– 1200); Ewens (1951) 25 ALJ 532; Bennett, 1971, pp 199–205; Sugerman (1973) 47 ALJ 344; Attorney-General’s Department, 1980, pp 447–9; Brazil and Mitchell, 1981, pp 243–9 (no 207); Lane, 1997, pp 850–1; Mossop (1999) 6 Canberra LR 5; Blackshield, Coper and Williams, 2001, pp 614–17; Faulkner and Orr, 2013, pp 78–9, 123 (nos 1368, 1403). 836 The requirements of this section were complied with when the State of New South Wales transferred to the Commonwealth, under s 111, the area which is now known as the Australian Capital Territory. The seat of government is in Canberra, capital city of the Territory. The phrase ‘Crown lands shall be granted to the Commonwealth without any payment therefor’ meant that the Commonwealth became owner of Crown lands belonging to the State of New South Wales without any payment of compensation to the State under s 51(xxxi). The words in the first paragraph ‘or acquired by the Commonwealth’ suggest that in the event of the State of New South Wales failing to surrender

territory under s 111, the Commonwealth could compulsorily acquire it. The relevance of this power today can be seen as enabling the Commonwealth to exercise a power of acquisition of additional territory from New South Wales in the light of population requirements in the Australian Capital Territory, if negotiations with the State of New South Wales towards that end were not successful. In Svikart v Stewart (1994) 181 CLR 548; 125 ALR 554 a majority of the court indicated that the seat of government ‘is … not co-extensive with the Territory in which it is located nor, under s 125, is it intended to be’: at 561. See similarly, Spratt v Hermes (1965) 114 CLR 226 at 273; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; 165 ALR 171; [1999] HCA 44 at [14], [22], [82], [120]. [page 498]

POWER TO HER MAJESTY TO AUTHORISE GOVERNOR–GENERAL TO APPOINT DEPUTIES 837 Section 126. 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 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.

See Quick and Garran, 1901, p 983 (Revised ed, 2015, pp 1200–1); Sawer, 1977, pp 93, 97–8, 102, 105; Attorney-General’s Department, 1980, pp 449– 50; Brazil and Mitchell, 1981, pp 663–4 (no 518); Renfree, 1984, pp 145–6; Brazil and Mitchell, 1988, pp 82–3, 324–5 (nos 619, 826); Constitutional Commission, 1988, Vol 1, pp 350–4; Lane, 1997, pp 851–2; Joint Select Committee on the Republic Referendum, 1999, p 80; Lindell (2004) 6 Const L & Pol’y Rev 73; Wright, 2012, p 3; Faulkner and Orr, 2013, p 449 (no 1585). 838

This section allows the Governor-General pursuant to the

authorisation of the Queen to appoint deputies within various parts of the Commonwealth. In exercising this power the Monarch acts on the advice of the Australian Prime Minister. See Sue v Hill (1999) 199 CLR 462; 163 ALR 648; [1999] HCA 30 at [74]. The Queen has authorised the Governor-General to appoint a deputy or deputies. See cl IV(a), Letters Patent Relating to the Office of GovernorGeneral, Commonwealth of Australia Gazette, No S 179, 9 September 2008. For an example of such an appointment, see Commonwealth of Australia Gazette, No C2014G00561, 2 April 2014. This power must be distinguished from the power to appoint an Administrator or acting Governor-General: s 4. Section 126 merely allows the delegation of functions to deputies within a part or parts of the Commonwealth while the Governor-General continues in full possession of his or her powers. 839

Section 127.

[repealed, Act No 55 of 1967 s 3]

See Quick and Garran, 1901, p 984 (Revised ed, 2015, pp 1201–2); Sawer (1966) 2 FL Rev 17 at 25–30; Brazil and Mitchell, 1981, p 24 (no 13); Galligan and Chesterman (1997) 8 Public LR 45 at 51–3; Gardiner-Garden, 1997, pp 2–3, 8; McGrath, 2003, pp 193–200; Attwood and Markus, 2007, pp 35–6, 109–10, 113, 127; Arcioni (2012) 40 FL Rev 287; Faulkner and Orr, 2013, p 176 (no 1434); Clarke, Keyzer and Stellios, 2013, pp 204–5. [page 499] 839A

Until its repeal in 1967, this section provided:

Aborigines not to be counted in reckoning population Section 127. 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.

As Gaudron J commented, the inclusion of s 127 within the Constitution meant that ‘until 1967, the Constitution, itself, was blatantly discriminatory’.

The terms of this provision were ‘completely contrary to any notion of equality’. See Kruger v Commonwealth (1997) 190 CLR 1 at 113; 146 ALR 126. The proposal to repeal this section was approved at a referendum by a majority vote in all States. See House of Representatives Standing Committee, Select Sources, 1997, p 94.

[page 501]

CHAPTER VIII ALTERATION OF THE CONSTITUTION __________________________ MODE OF ALTERING THE CONSTITUTION 840 Section 128. 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 GovernorGeneral 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. 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. [page 502]

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. [s 128 altered, Act No 84 of 1977 s 2]

See Quick and Garran, 1901, pp 985–95 (Revised ed, 2015, pp 1202–15); SG Opinion No 1873 of 7 February 1950; Bennett, 1971, pp 206–13; Richardson in Evans, 1977, pp 76–101; Bennett (1982) 56 ALJ 358; Thomson (1983) 13 FL Rev 323; Howard, 1985, pp 565–85; Constitutional Commission, 1988, Vol 1, pp 68–72, 120–3, Vol 2, pp 851–93; Craven (1988) 18 FL Rev 85; Campbell (1989) 17 MULR 1; Crawford in Craven, 1992, pp 177–92; Republic Advisory Committee, 1993, Vol 1, pp 118–20, 129–31, Vol 2, pp 296–305, 308; Coper in Lindell, 1994, pp 73–89; Gageler and Leeming (1996) 7 Public LR 143; Lindell and Rose (1996) 7 Public LR 155; Lane, 1997, pp 852–8; House of Representatives Standing Committee, Select Sources, 1997; Bennett, 1999; Orr (2001) 3 Const L & Pol’y Rev 68; Bennett, 2003; McGrath, 2003, pp 86–9, 98–103; Twomey (2008) 10 Const L & Pol’y Rev 31; Williams in Lee and Gerangelos, 2009, pp 1–22; Gageler in Murray, 2010, pp 6–19; Handley (2011) 39 FL Rev 509; Ratnapala and Crowe, 2012, pp 430–6; Wright, 2012, pp 26–34, 386–7, 406–7; Murray in Kildea, Lynch and Williams, 2012, pp 332–49; Evans and Laing, 2012, pp 329–31; Hanks, Gordon and Hill, 2012, pp 36–8, 177–82; Faulkner and Orr, 2013, pp 213–17, 727–9 (nos 1461, 1727); Williams, Brennan and Lynch, 2014, pp 1338–60; Coper in Dixon and Williams, 2015, pp 38–57. 841 An alteration which affects in any way a part of the Constitution must be subjected to the constitutional alteration procedure prescribed by s 128. Constitutional amendments are initiated in the Commonwealth Parliament. Ordinarily, the Bill will be passed by both Houses and within the prescribed time will be submitted to the electorate. The prescribed time is no less than two and no more than six months after passage. If one House passes the proposed law and the other House amends, rejects or fails to pass the proposed law and if, after an interval of three months, the first-mentioned House again passes the proposed law with a similar reaction from the other House, then the Governor-General may submit the proposed law to electors qualified to vote in House of Representatives elections.

The absolute majority required for the passage of the proposed law in the Houses would be at the last stage of its progress through the House. This would usually be the third reading stage. See Sawer, 1956, p 54; Evans and Laing, 2012, p 329. The proposed Bill must be approved by a majority of voting electors in a majority of the States and by an overall majority of voting electors (that is, throughout Australia). In cases where the proportionate representation of any State in either House of the Parliament is diminished (ss 7, 24) or the minimum number of representatives of a State in the House of Representatives is diminished (s 24) or the limits of a State are affected (s 123), a majority of electors must cast their vote in favour of the proposed law in the State or States affected by the proposed amendment. Unless the amendment makes contrary provision, constitutional amendments come into operation on the date of Royal Assent. See Acts Interpretation Act 1901 (Cth) s 3A(1), (3). 842 In Boland v Hughes (1988) 83 ALR 673 a question to be submitted to a referendum proposed three separate amendments. It was argued that s 128 required that each amendment be submitted as a separate proposed law. Mason CJ indicated by way of obiter dicta that the [page 503] Parliament could decide what the content of a question should be, and could include within a question amendments dealing with distinct and unrelated topics: at 674. Section 128 itself is able to be amended pursuant to the referendum procedure. See Buzzacott v Gray [1999] FCA 1525 at [24]. It would appear that the amendment of the various paragraphs of s 128, apart from the penultimate paragraph, is a matter which would require the approval of a majority of the electors in a majority of the States. See Latham (1949) 1 Syd LR 14 at 19 n 3. An amendment to the penultimate paragraph would require the approval of a majority of the electors in all the States. The effect of a law altering the Constitution was considered by Gummow

and Hayne JJ in Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22. They argued that once the amendment is made by following the process of s 128, the amendment law itself is spent, and the amendment becomes part of the Constitution: at [100]. See also Sankey v Whitlam (1978) 142 CLR 1 at 31, 75; 21 ALR 505. 843 The question arises whether there are any limits upon the power of amendment, apart from those expressed in the section itself. The preamble of the Constitution Act contains the phrase ‘indissoluble federal Commonwealth’. Does this phrase, taken in conjunction with the title, the covering clauses of the Constitution Act, and various sections of the Constitution itself, amount to a declaration that the federal principle can never be abolished by conversion of the Constitution to a unitary form of government or by the deletion of one or more of its component units? There is no doubt that a revised Constitution which abolished the distribution of power between the Commonwealth and the States would be a very different Constitution, but if one views s 128 as a paramount provision allowing the Constitution to be so radically changed, then such a revision would be regarded as valid. This was the view of Latham (1949) 1 Syd LR 14 at 18 n 3 and Canaway (1938) 12 ALJ 108 at 109 n 3. Sawer expressed the opinion that references to an ‘indissoluble federal Commonwealth’ are merely historical and do not impose restrictions upon the power of amendment. See Sawer in Paton, 1952, p 46. On the other hand, if one sees s 128 as occupying a status subordinate to the federal structure derived from the preamble, covering clauses and the Constitution itself, then the conversion of the federal system into a unitary one would not be regarded as valid. See Wynes, 1976, pp 540–4. It has also been argued that abolition of the federal system might not be possible by the referendum procedure in s 128 because that section contemplates only ‘alteration’ of the Constitution, not its transformation. See Craven (1989) 18 FL Rev 85 at 103. 844 The preamble to the Constitution Act also refers to an ‘indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland’. Would s 128 extend to the conversion of the Commonwealth from a monarchical to a republican system of government?

This issue was canvassed by the Republic Advisory Committee in 1993. Section 128 of the Constitution extends to amendment of ‘this Constitution’, which is solely s 9 of the Constitution Act, not the covering clauses and the preamble. The committee argued that the High Court was unlikely to invalidate a referendum passed under s 128 if to do so were to make an element of the Australian Constitution incapable of amendment by Australians. See Republic Advisory Committee, 1993, Vol 1, pp 119–20. The Acting Solicitor-General argued that s 128 itself could be amended ‘by altering the Constitution under section 128 to confer power on the Commonwealth Parliament (a) to [page 504] repeal … the Statute of Westminster to the extent necessary, and (b) to repeal or amend the preamble and covering clauses’: Vol 2, p 298. He argued that this would not itself be an amendment of the covering clauses: ‘it would be a conferral of power to amend them’: Vol 2, p 303. The Republic Advisory Committee also identified a possible alternative method of amendment — through s 15(3) of the Australia Acts together with s 128: Vol 1, p 121. As to the monarchical structure within the State sphere, it is arguable that s 7 of the Australia Act 1986 (UK) entrenches this structure due to the operation of s 15 of that Act. This would mean that abolition or alteration of this structure would require the consent of all the State Parliaments and the Commonwealth Parliament under s 15(1) or a s 128 referendum which by s 15(3) is required to be in a particular form, that is, granting to the Commonwealth Parliament a power to make the alterations. See Republic Advisory Committee, 1993, Vol 2, p 307. 844A As to secession of a State from the Federation, the preamble to the Constitution Act refers to the people of the Australian colonies uniting in ‘one indissoluble Federal Commonwealth’. See Craven, Secession, 1986, pp 25–30, 83–91. In 1933 Western Australia presented the Imperial Parliament with a petition seeking to secede from the Commonwealth. The Joint Select Committee of the Imperial Parliament which considered the petition took the

view that the Constitution did not confer upon the States any right of secession. See Musgrave (2003) 3 Macquarie LJ 95 at 121. The Committee declined to receive the Western Australian petition without the support of the Commonwealth government: at 120–1. Secession concerned the entire nation, not simply a particular State: at 122. While it was within the power of the Imperial Parliament to enact secession legislation, by constitutional convention it would not do so without the consent of the Commonwealth: at 122. See also Craven, 1986, pp 46–55, 149–52; Besant (1990) 20 UWALR 209 at 287–94. With the enactment of the Australia Act 1986, the United Kingdom Parliament renounced its legislative power over Australia. Since that time, the United Kingdom Parliament has no power to enact legislation providing for the secession of an Australian State. See Carney, 2006, p 27. For discussions of secession, see O’Connell and Riordan, 1971, pp 407–16; Craven, Secession, 1986, pp 160–75; Booker, Glass and Watt, 1998, pp 310–12; McGrath, 2003, p 94; Twomey, 2004, pp 850–5. In several federal systems the constitutionality of the secession of a member state has been the subject of judicial decision. In Reference re Secession of Quebec [1998] 2 SCR 217; 161 DLR (4th) 385 the Canadian Supreme Court held that a ‘clear majority’ vote in a province in favour of secession must be recognised by the federal government and the other provincial governments: at [87]–[88], [92]. However, a province could not unilaterally secede from Canada, without prior negotiations with the other Canadian governments: at [86], [91]. The province must negotiate the terms of any secession with the other governments: at [91]. For discussions of this case, see Mullan (1998) 9 Public LR 231; Radan (1998) 2 Mac LR 69; Rayfuse (1998) 21 UNSWLJ 834; Aroney (1999) 1 Const L & Pol’y Rev 74; Reilly (1999) 10 Public LR 209. By contrast, in Texas v White 74 US (7 Wallace) 700; 19 L Ed 227 (1869) the United States Supreme Court denied the right of States to withdraw from the Union. The court described the federation as a ‘perpetual union’ and ‘indissoluble’. The United States Constitution ‘looks to an indestructible Union of indestructible States’: at 725. When a State was admitted to the Union, it ‘entered into an indissoluble relation’. The attempted secession of Texas prior to the Civil War was thus ‘absolutely null’. That State’s

membership of the Union had thereby ‘remained perfect and unimpaired’: at 726. For a discussion of this case, see Radan (2006) 10 Legal History 187. [page 505] 845 Unlike the United States Constitution, there is no alternative constitutional procedure for the holding of a constitutional convention to propose amendments. See Lumb (1992) 22 UWALR 52. Nevertheless, as a matter of political practice seven conventions have been held to discuss possible reforms to the Constitution. For contemporary accounts of what transpired at these conventions, see (1973) 47 ALJ 569; (1975) 49 ALJ 602; (1976) 50 ALJ 611; Richardson in Evans, 1977, pp 89–93; Lumb in Zines, 1977, pp 233–49; Saunders (1978) 52 ALJ 187, 254; (1978) 52 ALJ 596; Doyle (1980) 61 Parliamentarian 153; Saunders (1982) 13 MULR 628; Thomson [1983] NZLJ 186; (1983) 57 ALJ 376; (1985) 59 ALJ 641; Winterton (1998) 5 Agenda 97; Winterton (1998) 21 UNSWLJ 856; Saunders (1998) 21 UNSWLJ 868; Turnbull (1998) 21 UNSWLJ 940; Williams, 1998 Convention, 1998; Constitutional Convention, 1998; ‘Final Resolutions of the Constitutional Convention, Canberra, 2–13 February 1998’ (1998) 9 Public LR 55; Lane (1998) 72 ALJ 492; Winterton (1999) 20 UQLJ 225; Winterton in Moens, 2000, pp 151–64. Apart from these ‘parliamentary’ conventions there have been other major reviews of the Constitution: by a Royal Commission in 1929, by an all-party committee of the Commonwealth Parliament in 1959 and by the Constitutional Commission in 1985–88. See Coper, 1988, pp 352–9. The 1929 review was rather an inconclusive affair although it did contain a commitment to the preservation of the federal system. The 1959 review recommended an increase in Commonwealth powers over a number of areas. However, it made no attempt to deal with the vexed question of federal–State financial relations. In 1988 the Constitutional Commission recommended numerous constitutional amendments, most of which would have resulted in an enhancement of federal legislative power. See Constitutional Commission,

1988. For an examination of all three reviews, see House of Representatives Standing Committee, Select Sources, 1997. In 2013 the Commonwealth Parliament enacted a law that set up a process by which constitutional recognition of indigenous Australians would be considered. See Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth). The Act provided for a Review Panel to ‘consider proposals for constitutional change to recognise Aboriginal and Torres Strait Islander peoples’: s 4(2). The Review Panel recommended that a referendum seeking constitutional recognition be held no later than the first half of 2017. 846 Because of the rigidity of the amendment requirements, only a small number of amendments have been accepted by the electorate, the most important being the race power, social services power and Financial Agreement amendments. For discussions of the race power referendum, see Gardiner-Garden, 1997; Attwood and Markus, 2007. Where a matter is affected by party politics the electorate has been disinclined to give its assent to the proposed amendments. Only eight proposals (out of 44) have secured the necessary majorities at a referendum. The most recent occasion when an amendment proposal was approved at a referendum was in 1977. See Saunders (1977) 51 ALJ 508. For the texts of all constitutional amendments adopted thus far, see AttorneyGeneral’s Department, 1980, pp 457–69. Most proposed amendments have been rejected at referenda. See Coper, 1988, pp 336–46. Several proposed amendments concerning industrial relations have failed at referenda. See New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [707]–[730]. In 1944 proposed Commonwealth powers for post-war reconstruction were rejected at a referendum. See Paul (1993) 2 Upholding the Australian Constitution 225. [page 506] In 1984 proposals for simultaneous elections and interchange of powers were rejected at a referendum. See note (1985) 59 ALJ 195. In 1988, referenda dealing with four-year maximum terms for both Houses, democratic

elections, the extension of several individual rights to the States and constitutional recognition of local government were all rejected. See Starke (1988) 62 ALJ 976; Lee [1988] Public Law 535; Galligan (1990) 43 Parliamentary Affairs 497. In 1999 referendum proposals for the establishment of a republic and the adoption of a new preamble were rejected. See Joint Select Committee on the Republic Referendum, 1999; note (1999) 10 Public LR 305; McKenna (1999) 10 Public LR 163; Turnbull, 1999; Uhr (2000) 11 Public LR 7; Williams (2000) 63 Saskatchewan LR 477; McKenna, Simpson and Williams (2001) 24 UNSWLJ 401; Winckel (2001) 24 UNSWLJ 636; Warhurst and Mackerras, 2002. Detailed accounts of the referenda that have been held appear in House of Representatives Standing Committee on Legal and Constitutional Change, Select Sources, 1997, pp 59–114; Williams and Hume, 2010, pp 106–98. The texts of all proposed amendments introduced into the Commonwealth Parliament between 1901 and 1936 appear in Knowles, 1936, pp 197–272. At least 14 days before a referendum is held the Electoral Commissioner must distribute to voters a printed pamphlet containing arguments for and against the proposed amendment. These arguments are authorised by a majority of those voting for or against the amendment in Parliament. See Referendum (Machinery Provisions) Act 1984 (Cth) s 11. The administration of referenda is discussed in Orr (2000) 11 Public LR 117; Williams and Hume, 2010, pp 43–54, 65–87. Finally, with the insertion of s 105A in 1929 and the repeal of s 127 in 1967, the Constitution still contains 128 sections.

[page 507]

APPENDIX __________________________ SECTION 92: THE PRE-COLE JURISPRUDENCE 847 The cases decided before Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42 could be divided into two classes: those that would be decided the same way and those that would be decided differently. This Appendix does not purport to analyse the pre-1988 cases in order to determine how they would have fared under the Cole principle. Rather, it serves as a reasonably comprehensive overview of the pre-Cole jurisprudence. For detailed accounts of the pre-Cole case law, see Coper, 1983; Stellios, 2015 pp 133–64. This Appendix elaborates upon some of the issues discussed under s 92, such as the ‘criterion of operation’ and the ‘practical effect’ tests and the individual rights theory of s 92. Unlike post-Cole cases, pre-1988 cases were not marked by speculation as to what objects the Framers of the Constitution may have intended to attain by the insertion of s 92, but by an attempt to reexpress it in terms of a meaningful legal rule. It is convenient to consider the development of the pre-1988 jurisprudence over four periods: from Federation to McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530; from McArthur’s case to James v Commonwealth (1936) 55 CLR 1; from the James’ case to the Bank Nationalisation case (Bank of New South Wales v Commonwealth (1948) 76 CLR 1); and from the Bank Nationalisation case to Cole in 1988.

FIRST PERIOD: FROM FEDERATION TO

MCARTHUR’S CASE 848 The High Court handed down two decisions regarding s 92 prior to the First World War. In Fox v Robbins (1909) 8 CLR 115 a Western Australian shop proprietor sold wine produced in Western Australia. He paid a licence fee of £2. But he also sold wine produced in Victoria for which he had to pay a £50 licence fee simply because the wine was produced outside his home State. Fox charged Robbins with an offence under Western Australian legislation that prohibited the sale of wine without a licence. The court held that s 92 invalidated the Act so far as it discriminated against the sale of wine produced in States other than Western Australia (even if the interstate trade as such was over following the importation of the out-of-State wine). Barton J held that the enactment aimed at shielding the local industry against interstate competition: at 123. In R v Smithers; Ex parte Benson (1912) 16 CLR 99 the court invalidated a State law which made it an offence for a person to enter the State within three years of being convicted of an offence in another State. Griffith CJ and Barton J reached this conclusion without reference to s 92: at 109, 110. Isaacs and Higgins JJ considered that the enactment was an interference with the freedom of interstate ‘intercourse’ under s 92: at 117, 118. Three wartime decisions involved more complex issues. In New South Wales v Commonwealth (the Wheat case) (1915) 20 CLR 54, the High Court held that a wheat [page 508] acquisition law did not infringe s 92. That Act empowered the Crown to expropriate wheat in the State. The proprietary rights of the owners of the wheat were converted into claims for compensation. Griffith CJ stressed that s 92 had nothing to say about questions of title: at 68. If a person ceased to be the owner of goods, because they had been acquired compulsorily by the Crown, s 92 would cease to have any operation

in relation to their right to dispose of those goods. The legislation did not affect the owner’s power of disposition; it simply changed the ownership of the wheat: at 68. Hence it did not contravene s 92. In Foggitt, Jones & Co Ltd v New South Wales (1916) 21 CLR 357 a New South Wales Act declared that stock and meat in any place in the State were to be held and kept for the disposal of the Imperial government for the use of the army. The court held that the Act was invalid so far as it authorised the State to prevent the owner of stock from sending it into another State. Griffith CJ stressed that there had been no expropriation of property, and that an interference with the right of removal across the border was prohibited by s 92: at 361. However, shortly afterwards Griffith CJ changed his mind on this point. In Duncan v Queensland (1916) 22 CLR 556 Griffith CJ held in relation to identical legislation that the declaration that the stock and meat were to be kept for the disposal of the Imperial government operated as a dedication of the stock and meat to public purposes, and hence created a special proprietary interest in the Crown: at 577–8. The principle he had enunciated in the Wheat case was therefore applicable: at 581. In coming to the same conclusion, Gavan Duffy and Rich JJ emphasised that the prohibition against removal of the stock was not directed against interstate trade, commerce or intercourse, but against any dealing that might prejudice the option of the Crown to take what was needed for use by the army: at 641. Higgins and Powers JJ upheld the legislation: at 635–6, 653. Barton and Isaacs JJ dissented: at 605, 627. 849 The issue in McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530 was whether a State could impose a maximum price for the sale within the State of goods which, under the contract of sale, were to come from another State. The court held that it could not. The State argued that s 92 did not forbid all State legislation affecting interstate trade, but only restrictions or impediments placed upon it by reason of its interstate character: at 536. Knox CJ, Isaacs and Starke JJ rejected this argument. In their opinion the words ‘absolutely free’ in s 92 meant ‘absolutely free from every sort of impediment or control by the State with respect to trade, commerce and intercourse between them’: at 554. In their view, ‘[t]he prohibition by a State

Legislature of inter-State sales of commodities either absolutely or subject to conditions imposed by State law is … a direct contravention of’ s 92: at 555. It had been argued that Duncan v Queensland (1916) 22 CLR 556 was authority that a State might legislate so as to affect interstate trade without there being an interference with interstate trade. They rejected this argument: ‘If the goods themselves can be prohibited, if commercial dealings between the States can be restricted to dealings on the basis of such prices as the State fixes to suit its own special conditions, then there is no practical freedom even from border duties and bounties. It is the old inter-colonial trade war perpetuated in an outwardly different form’: at 545. Duncan v Queensland was overruled: at 556. The only legislation under consideration in McArthur’s case was a State Act, and it was strictly unnecessary for the court to pronounce upon an argument that s 92 bound both the Commonwealth and the States. Nevertheless the court declared that the Commonwealth was not bound by s 92: at 556. The major consideration in reaching this conclusion was that to hold the contrary would ‘practically nullify’ the trade and commerce power (s 51(i)): at 558. [page 509]

SECOND PERIOD: FROM MCARTHUR’S CASE TO JAMES V COMMONWEALTH 850 The formula laid down in McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530 was that interstate trade, commerce and intercourse were to be absolutely free from impediment or control by the States. This formula proved to be simple to apply in some of the situations that came before the High Court over the succeeding 16 years, but ambiguous in its application to some other situations. It is convenient to divide the cases into the following categories: marketing cases, transport cases and State taxation cases.

Marketing cases

851 In James v South Australia (1927) 40 CLR 1 the court held that s 92 was violated by a provision in a State Act that authorised a marketing board to determine the quantity of dried fruits produced in the State which might be marketed within the Commonwealth. In the words of Isaacs ACJ and Powers J, s 92 operated ‘to shut off all forms of State obstruction and to confer upon the individual a right to be protected against all form of State action amounting to, or authorizing anyone to commit, such obstruction’: at 32. A further provision of the same Act was considered by the Privy Council in James v Cowan (1932) 47 CLR 386. This provision authorised the relevant Minister to compulsorily acquire any dried fruits in the State. However, the Minister’s powers were made subject to s 92. The provision was obviously drafted with the hope that action taken under it would fall within the principle expressed by Griffith CJ that s 92 would not avail a person whose property had been compulsorily acquired by the State. See New South Wales v Commonwealth (1915) 20 CLR 54 at 68. But, without overruling that case, their Lordships stated that they were not prepared to assent to the proposition in the simple form in which it had been expressed by Griffith CJ. They added that ‘[i]f the real object of arming the Minister with the power of acquisition is to enable him to place restrictions on inter-State commerce, as opposed to a real object of taking preventive measures against famine or disease and the like, the legislation is as invalid as if the Legislature itself had imposed the commercial restrictions’: at 396. As it appeared that in this case ‘the direct object of the exercise of the powers was to interfere with inter-State trade’, the exercise of those powers was invalid: at 397. In Peanut Board v Rockhampton Harbour Board (1933) 48 CLR 266 the High Court applied James v Cowan so that a legislative instrument was rendered ineffective in relation to interstate sales of peanuts. The Act declared that all Queensland grown peanuts that were produced for sale were a commodity. The statute divested that commodity from the growers, and vested it in a statutory board: at 268. There was an infringement of s 92 because the State ‘acquires the property in the peanuts as and when they come into existence in order to insure that the grower producing them for sale shall not exercise his former freedom of selling them by an ordinary transaction of commerce whether intra-State or inter-State’: at 288.

852 In Ex parte Nelson (No 1) (1928) 42 CLR 209 the High Court reflected upon the meaning of ‘acts of interstate trade’. A statutory provision authorised the Governor by proclamation to restrict or prohibit the importation of any stock from any other State in which there was reason to believe that any infectious stock disease existed: at 220–1. The court split evenly regarding the validity of this provision. Knox CJ, Gavan Duffy and Starke JJ upheld this provision. In their view, the Act was not to be characterised [page 510] as one to regulate interstate trade; rather, its purpose was to ‘protect the large flocks and herds of New South Wales against contagious and infectious diseases’: at 218–19. The validity of legislation was to be ascertained by looking at its object, at its ‘pith and substance’. If this object was to restrain acts of interstate commerce, it would be invalid. If its real object was otherwise, the legislation would be valid although it had an incidental effect upon the conduct and liability of those engaged in interstate commerce: at 218. Isaacs, Higgins and Powers JJ dissented. Isaacs J pointed out that the provision struck at the most characteristic element of interstate trade and commerce, namely the passing of goods from one State to another. The section purported to regulate the very act of interstate trade: at 223. The ‘pith and substance’ test received support in a number of subsequent cases but was strongly criticised by Dixon J in Tasmania v Victoria (1935) 52 CLR 157. In that case the court invalidated a Victorian proclamation which prohibited the importation of potatoes from Tasmania on the ground that their importation was likely to introduce disease into Victoria. Dixon J emphasised that s 92 was ‘not concerned with a classification of subjects of legislative power’. ‘Whatever purpose may be disclosed by State legislation’, it may not restrict the freedom guaranteed by s 92: at 181.

Transport cases 853 Between 1933 to 1936 the High Court decided five cases in which the validity of State legislation was questioned in relation to interstate transport operations. In Willard v Rawson (1933) 48 CLR 316 a New South Wales carrier’s vehicle was registered in that State but not in Victoria. The carrier used the truck to carry goods from New South Wales to Victoria. The carrier was convicted under a Victorian law which prohibited driving an unregistered vehicle. The High Court upheld the conviction. Rich J supported the legislation on the ground that ‘what is forbidden by s 92 is State legislation in respect of trade and commerce when it operates to restrict, regulate, fetter or control it, and to do this immediately or directly as distinct from giving rise to some consequential impediment’: at 322. The burden in this case was ‘consequential, mediate or indirect’: at 324. Rich J thus applied the directindirect test to State legislation to determine its validity. McTiernan J substantially agreed with Rich J: at 338. Starke J upheld the Act by applying the ‘pith and substance’ test, holding that the character of the legislation was to regulate motor cars: at 326–7. Evatt J held that to invalidate the State Act, it had to be shown that it was legislation ‘pointed directly at the act of entry, in [the] course of commerce, into the second State’: at 335. Dixon J held that ‘the imposition of a licence fee as a condition of carrying out an operation of inter-State commerce’ violated s 92: at 331. 854 The succeeding cases are of interest primarily for the development of the views of Evatt J on the one side and Dixon J on the other. The judgment of Evatt J in R v Vizzard; Ex parte Hill (1933) 50 CLR 30 was noteworthy since it explicitly rejected the conception of trade and commerce and the immunity accorded by s 92 that had been expounded in McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530. In that conception, the protection of s 92 extended to the individual trader with respect to the whole of the acts and transactions

[page 511] which together constituted interstate trade and commerce. In contrast, Evatt J considered that s 92 ‘postulates the free flow of goods inter-State, so that goods produced in any State may be freely marketed in every other State, and so that nothing can lawfully be done to obstruct or prevent such marketing’: at 87. Moreover, he pointed out that ‘[a]bsolute freedom is ascribed to trade, to commerce and to intercourse, and is not ascribed to traders or to travellers, considered merely as individuals’: at 94. ‘Section 92 does not guarantee that, in each and every part of a transaction which includes the inter-State carriage of commodities, the owner of the commodities … possesses … a right to ignore State transport or marketing regulations, and to choose how, when and where … [to] transport and market the commodities’: at 94. The judgment of Dixon J in O Gilpin Ltd v Commissioner for Road Transport and Tramways (NSW) (1935) 52 CLR 189 revealed an antithetical understanding of the protection afforded by s 92. Unlike the ‘aggregative’ notion of trade and commerce expressed by Evatt J, he emphasised that ‘[a]ny act or transaction for which protection is claimed under s 92 must be a part of trade, commerce or intercourse among the States, that is to say, it must be something done as preparatory to, or in the course of, or as a result of, interState movement of persons and things or inter-State communication’: at 204. The freedom guaranteed by s 92 was from ‘any restriction or burden placed upon an act because it is commerce, or trade, or intercourse, or because it involves movement into or out of the State’: at 205. Moreover, he stated (at 211) that: Trade, commerce and intercourse among the States is an expression which describes the activities of individuals. The object of s 92 is to enable individuals to conduct their commercial dealings and their personal intercourse with one another independently of State boundaries. The constitutional provision is not based on mere economic considerations. I am unable to agree with the view that trade, commerce and intercourse should, in applying s 92, be regarded as a whole and not distributively. The Constitution is dealing with a governmental power. It is not easy to appreciate the meaning of a guarantee of freedom of trade and intercourse unless it gives protection to the individual against interference in his commercial relations and movements.

State taxation cases 855 In Commonwealth and Commonwealth Oil Refineries Ltd v South Australia (1926) 38 CLR 408 a South Australian Act imposing a tax on motor spirit, including motor spirit brought into South Australia from other States, was held to violate s 92 as a burden upon the interstate sales: at 431, 435–7, 440. In Vacuum Oil Co Pty Ltd v Queensland (1934) 51 CLR 108 it was held that s 92 was violated by a Queensland Act which provided that after petrol reached the State, the first seller was required to buy a prescribed proportion of power alcohol. Dixon J pointed out that the legislation imposed a burden upon the importer of petrol from another State in their character as importer, and thereby selected as a ground of liability an essential quality of interstate trade: at 128. In effect Dixon J held that the first sale of a commodity subsequent to its importation from another State involved an essential attribute of the concept of ‘interstate trade’. Thus, an important point established by these taxation cases was that taxing or otherwise burdening the first sale of a commodity subsequent to its introduction from one State into another might, in some circumstances, amount to an infringement of s 92. [page 512]

THIRD PERIOD: JAMES V COMMONWEALTH TO THE BANK NATIONALISATION CASE 856 During the 15 years after McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530, the two central notions expressed in that decision came increasingly under attack. The first of these notions was that s 92 bound only the States. This holding was repeated in James v Commonwealth (1928) 41 CLR 442 at 455, 458, 463. However, it was later disapproved by Gavan Duffy CJ, Evatt and McTiernan JJ in R v Vizzard; Ex parte Hill (1933) 50 CLR 30 at 47, 88, 98; by Dixon J in O Gilpin Ltd v Commissioner for Road Transport and Tramways (NSW) (1935) 52 CLR 189 at 212; and by Dixon, Evatt and McTiernan JJ in James v Commonwealth (1935) 52 CLR 570 at 593, 602.

The second notion related to the nature of the freedom accorded by s 92. This freedom was encapsulated in the formula that all the commercial dealings by which trade was effectuated were free ‘from every sort of impediment or control by the State[s] with respect to trade, commerce and intercourse between them’: (1920) 28 CLR at 554. This formula was analysed in inconsistent ways by various members of the High Court. It was explicitly rejected by Evatt J in Vizzard’s case (1933) 50 CLR 30 at 94. The inability of the States to control the marketing of dried fruits within Australia led to Commonwealth intervention. The Dried Fruits Act 1928 (Cth) had the effect that the owner of dried fruit was prevented from marketing any dried fruit interstate except upon the terms and conditions prescribed, which included conditions as to the export of dried fruit from Australia. Control was imposed by the fixing of a quota of fruit to be marketed outside Australia. Owners of dried fruits were unable to market the fruit in other States without a licence. A licence could be obtained only on condition that the owners agreed to a determination as to the quantity of fruit to be marketed overseas. The Commonwealth system was essentially the same as the State legislation held to contravene s 92 in James v Cowan (1932) 47 CLR 386. The High Court upheld the validity of the Commonwealth Act solely on the ground that s 92 did not bind the Commonwealth. See James v Commonwealth (1935) 52 CLR 570 at 586, 588–9, 593, 603. On appeal the Privy Council held that the Commonwealth was bound by s 92. The Privy Council rejected the argument that if s 92 applied to the Commonwealth s 51(i) of the Constitution would be bereft of any practical effect. ‘[T]hough trade and commerce mean the same thing in s 92 as in s 51(i), they do not cover the same area, because s 92 is limited to a narrower context by the word “free”’: (1936) 55 CLR 1 at 60. 857 The Privy Council’s considered that s 92 guaranteed ‘freedom as at the frontier’: at 58. The basic conception was that ‘the people of Australia were to be free to trade with each other and to pass to and fro among the States without any burden, hindrance or restriction based merely on the fact that they were not members of the same State’: at 58. This would seem to imply that legislation which was non-discriminatory would not infringe s 92; but

their Lordships admitted that legislation Act might violate s 92 though it restricted both intrastate and interstate trade: at 56. To state that the freedom guaranteed was at ‘the crucial point in inter-State trade, that is at the State barrier’, and at the same time to concede that the ‘actual restraint or burden [might] operate while the goods [were] still in the State of origin’ or ‘after they had arrived in the other State’ (at 59), was to erect a guide which could provide little assistance in solving problems of any complexity. The formula was dutifully repeated in a number of High Court [page 513] judgments, but it did little to resolve the conflict within the High Court on the scope of the immunity afforded by s 92. In this third period, the High Court decided many s 92 cases. They dealt mainly with marketing, transport and nationalisation.

Marketing 858 In Hartley v Walsh (1937) 57 CLR 372 it was held that s 92 was not infringed by a Victorian regulation which made it an offence to sell or buy dried fruits unless they had been packed in a packing shed registered under the Act: at 375. It was argued that the regulation prevented growers selling dried fruits to packing sheds in other States. Latham CJ rejected this argument on the ground that ‘where the marketing legislation controls and directs and regulates inter-State trade and, as in the present case, insists upon proper standards being preserved, such a law is not a mere restriction of “freedom at the frontier” and is therefore not rendered invalid by s 92’: at 382. The authority of Hartley v Walsh was undermined by subsequent decisions. See Bierton v Higgins (1961) 106 CLR 127 at 135; North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559 at 586; 7 ALR 433. It was formally overruled in Perre v Pollitt (1976) 135 CLR 139 at 145, 150; 9 ALR 387. In Milk Board (NSW) v Metropolitan Cream Pty Ltd (1939) 62 CLR 116 it

was held that s 92 was not infringed by a State Act which: (a) embodied a compulsory marketing scheme for the regulation and control of the supply of milk (including milk supplied from another State) until it reached the consumer; (b) expropriated property for the purpose of controlling trade, including interstate trade; and (c) fixed the price at which milk from another State might be sold: at 121– 22. According to Latham CJ, a State Act could ‘provide for the administration of a compulsory marketing scheme so long as it was not directed against interState trade and was not merely a prohibition as distinct from a regulation of such trade’: at 132. Latham CJ formulated the regulation–prohibition test as follows (at 127): One proposition which I regard as established is that simple legislative prohibition (Federal or State), as distinct from regulation, of inter-State trade and commerce is invalid. Further, a law which is “directed against” inter-State trade and commerce is invalid. Such a law does not regulate such trade, it merely prevents it. But a law prescribing rules as to the manner in which trade (including transport) is to be conducted is not a mere prohibition and may be valid in its application to inter-State trade notwithstanding s 92.

This formulation was subsequently approved by the Privy Council in the Bank Nationalisation case. See Bank of New South Wales v Commonwealth (1949) 79 CLR 497 at 640. The Milk Board case was later overruled by North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559 at 585, 601, 602, 613–14; 7 ALR 433.

Transport 859 In Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327 the court upheld a transport regulation statute on the basis that it was substantially the same as that considered in the previous transport cases. The main attack in this case was based upon the allegation that the [page 514]

State Transport Board refused all licences for vehicles carrying goods interstate for the reason that they were carrying goods interstate. The attack failed because, in the words of Evatt J (at 369): The applications were refused, not because the vehicles were carrying, or intended to carry, goods inter-State, but because, in the board’s opinion, the carriage of goods inter-State was being provided for already and in a more efficient manner by co-ordinating the services of the railway systems of the two States with local motor transport from all points in the Riverina to appropriate railway terminals.

Nationalisation 860 The major constitutional cases involving s 92 in the post-war period concerned the power of the Commonwealth to create a monopoly in favour of its agencies in certain fields of trade and commerce. In Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 the High Court unanimously held that s 92 was infringed by a Commonwealth Act which provided that a Commonwealth instrumentality would have a monopoly in interstate airline services on routes that were adequately served by the government service: at 51. Latham CJ described these provisions as amounting to a prohibition of interstate air services, and not merely a system of regulation of such services: at 61. Starke J said that an ‘Act which is entirely restrictive of any freedom of action on the part of traders and which operates to prevent them from engaging their commodities in any trade … is … necessarily obnoxious to s 92’: at 78. Dixon J commented that if the test of freedom at the frontier was applied, the Act violated s 92 as ‘it is plain that it is because the business involves crossing the frontier that it is eliminated’: at 90. 861 One point which had emerged clearly from the prior cases was that s 92 was infringed by legislation or executive acts which constituted a direct prohibition upon interstate trade. Despite this, the Commonwealth attempted to prohibit private banks from carrying on business in Australia. Both the High Court and the Privy Council held that this attempt violated s 92. See Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (HC); (1949) 79 CLR 497 (PC). The Commonwealth argued that banking was only a facility that might be used by commerce, but was not itself trade or commerce. The

majority of the High Court held that the conception of commerce covered intangibles as well as the movement of goods and persons: at 284, 306, 380. The Commonwealth also argued that s 92 safeguarded trade among the States, not the trade exercised by an individual. The Privy Council expressly rejected this proposition. Section 92 gave the citizen ‘the right to ignore, and if necessary, to call upon the judicial power to help him to resist, legislative or executive action which offends against the section’: Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 635. If s 92 did not safeguard the right of an individual trader, the decisions in the James cases were inexplicable. An argument that s 92 was not infringed if a law prohibiting interstate business had no purpose or tendency to reduce the ‘volume of trade’ also failed as it was inconsistent with the James cases and was ‘unreal and unpractical’ in application: at 635. The Privy Council accepted two limitations to the freedom guaranteed by s 92. These were: (1) ‘regulation of trade commerce and intercourse among the States is compatible with its absolute freedom’ and [page 515] (2) ‘s 92 is violated only when a legislative or executive act operates to restrict such trade commerce and intercourse directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote’: at 639. Thus, the Privy Council in effect applied the direct–indirect test and the regulation–prohibition test. In the subsequent history of the constitutional interpretation of s 92, one of the main tasks faced by the courts was the clarification of the scope of those two tests and their application to the legislative or executive acts which were challenged. The initial battleground was the control of transport. The impact of the Privy Council’s interpretation of s 92 on the control of other aspects of economic life presented manifold problems for the courts. These problems

were largely overcome following the High Court’s unanimous decision in Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42. 862 A further problem for which the Bank Nationalisation case provided little guidance was the interstate character of an activity. This problem presented itself in two forms. First, there was the question of border-hopping, that is crossing a State border so as to attract the operation of s 92. Second, there was the question whether an intrastate activity might come within the protection of s 92 because in the context it was really part of a protected interstate activity. These problems were addressed by the High Court in subsequent cases.

FOURTH PERIOD: BANK NATIONALISATION CASE TO COLE V WHITFIELD 863 The remaining discussion of the pre-Cole jurisprudence deals with four matters: (a) the regulation–prohibition test, especially in the context of road transport; (b) the use of the ‘criterion of operation’ and ‘practical effects’ tests in economic regulation; (c) the individual rights theory of s 92; and (d) the interstate character of activities.

The regulation–prohibition test 864 In McCarter v Brodie (1950) 80 CLR 432 the High Court considered the impact of the decision in the Bank Nationalisation case on the legislation which had been upheld in Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327. The central issue was whether the challenged law was regulatory or prohibitive. The majority held that the legislation did not contravene s 92. The same conclusion was reached by the majority in Hughes and Vale Pty Ltd v New South Wales (1953) 87 CLR 49. Dixon CJ considered that he should follow McCarter v Brodie, of which he disapproved, on the ground that

the transport cases offered a ‘pragmatical solution’ to the particular problem of the control by the States of the use of roads provided and maintained by the States and that they were confined to that issue: at 70. An appeal to the Privy Council was successful. See Hughes and Vale Pty Ltd v New South Wales (No 1) (1954) 93 CLR 1. Their Lordships agreed with the analysis of Dixon CJ in McCarter v Brodie: at 23. He had pointed out that the grounds on which the transport cases were [page 516] based had been ‘destroyed’ by the judgment of the Privy Council in the Bank Nationalisation case: at 23. In that case the Privy Council had rejected the following propositions: (a) ‘that s 92 does not guarantee the freedom of individuals’; (b) ‘that, if the same volume of trade flowed from State to State before as after the interference with the individual trader … then the freedom of trade among the States remained unimpaired’; and (c) ‘that because a law applies alike to inter-state commerce and to the domestic commerce of a State, it may escape objection notwithstanding that it prohibits, restricts or burdens intra-state commerce’: at 21–2. In addition, two further principles settled by the Bank Nationalisation case were relevant to the basis upon which the transport cases rested: at 22. One is that the object or purpose of an Act challenged as contrary to s 92 is to be ascertained from what is enacted and consists in the necessary legal effect of the law itself and not in its ulterior effect socially or economically. The other is that the question what is the pith and substance of the impugned law … is beside the point when the law amounts to a prohibition or the question of regulation cannot fairly arise.

865 The only ground which could therefore be relied upon to support the legislation was that it was merely regulatory of the commercial carriage of goods by road, and not prohibitive of freedom of interstate trade and commerce. But the legislation forbade carriage of goods interstate unless an executive body in the exercise of an uncontrolled discretion saw fit to grant a licence to do so. Fullagar J (at 26) wrote of this discretion:

As to what is not regulatory in the relevant sense, one thing at least is clear. Prohibition is not regulation. … It is quite impossible, in my opinion, to distinguish the present case from the case of a simple prohibition. If I cannot lawfully prohibit altogether, I cannot lawfully prohibit subject to an absolute discretion on my part to exempt from the prohibition.

The Privy Council approved this statement: at 32. The result was that the majority views in R v Vizzard; Ex parte Hill (1933) 50 CLR 30 were rejected: at 34. A declaration was made that ‘the provisions of the Act requiring application to be made for a licence … [were] inapplicable to the appellant while operating its vehicles in the course of and for the purposes of inter-State trade’: at 35. The approach to s 92 which had been taken by Dixon J in O Gilpin Ltd v Commissioner for Road Transport and Tramways (NSW) (1935) 52 CLR 189 received the express approval of the Privy Council. The overturning of the Vizzard decision made it imperative for the States to recast their transport legislation. The amended laws made it an offence for a person to operate a motor vehicle unless it was licensed, but also to make the exercise of the power to grant a licence subject to limitations and controls. The amended New South Wales legislation: … forbid[s] the use of motor vehicles for the carriage of goods in the course of trade between New South Wales and another State except by the licence of an administrative agency of New South Wales whose only duty to allow it is in practical effect unenforceable and in any case does not arise unless the agency does not regard any of a number of very wide indefinite and sometimes intangible objections as existing and if and when it arises it is not a duty to licence the use of the vehicle as asked but only subject to any conditions (falling within certain very wide descriptions) which the agency may choose to impose, conditions which may not be consistent with the inter-State trade or transaction in view. [Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 159]

866 In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 the amended legislation was held to violate s 92. Fullagar J observed that a ‘law does not “regulate” in any relevant sense if it leaves the conditions on which trade or commerce may be carried [page 517] on to be determined ad hoc by some person or body nominated for the purpose’: at 206. ‘The State may be said to be permitted by s 92 to make

“regulatory” laws, but it does not make a regulatory law if it leaves to “some individual or individuals” a discretion to impose conditions on any relaxation of a prohibition’: at 206. The impugned legislation provided not only for a licensing system with respect to motor vehicles engaged in interstate trade, but also for a pecuniary levy upon interstate road transportation. The High Court unanimously held that these provisions were invalid. The judges differed as to the right of a State to make a charge for the use made of roads by vehicles engaged in interstate trade. Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ held that the States were entitled to impose a ‘fair and reasonable charge’ for the use made of roads by vehicles engaged in interstate trade: at 182, 192–3, 210–11. Dixon CJ, McTiernan and Webb JJ (at 172) stated that it was: … possible to reconcile with the freedom postulated by s 92 the exaction from commerce using the roads, whether the journey be inter-State or not, of some special contribution to their maintenance and upkeep in relief of the general revenues of the State drawn from the public at large. The American phrase is that inter-State commerce must pay its way. It is but a constitutional aphorism, but it serves to bring home the point that in a modern community the exercise of any trade and the conduct of any business must involve all sorts of fiscal liabilities from which, in reason, inter-State trade or business should have no immunity. Those who pay them are not unfree, they merely pay the price of freedom.

In dissent on this point, Kitto J considered that the States were unable to make any charge for the use of roads by vehicles engaged on interstate trade. He stated that ‘the relevant freedom is given, once for all, and not made available for purchase. The section is uncompromising in its decree, and its severe demand is not open to mitigation by reference to the just and equitable’: at 224. Taylor J also considered that any charge which was ‘made payable as a condition of engaging in or carrying on inter-State trade must offend against s 92’: at 239. However, he thought that it was permissible ‘for a State to exclude from its roads those vehicles which, by reason of their weight or construction, were calculated to work such destruction to the roads that they ought not to be there at all’, and to relax that prohibition upon payment of a ‘stipulated charge’: at 239–40. 867 Once again the States were compelled to amend their legislation. This time the amended legislation was upheld. The amended laws imposed upon

owners of commercial goods vehicles a road charge at a rate per mile of public roads travelled, as compensation for wear and tear caused by such travel. In Armstrong v Victoria (No 2) (1957) 99 CLR 28 the State of Victoria introduced evidence to establish that the charge was a proper tonnage rate per mile to compensate for wear and tear of the highway. The court concluded that, although the information supplied was unsatisfactory in several respects, the charge imposed complied with the requirements laid down in Hughes and Vale (No 2) and was consistent with s 92. The court later ruled that evidence was not admissible to establish that a charge imposed by an Act bore no relation to wear and tear on the roads or to the costs of road maintenance. See Breen v Sneddon (1961) 106 CLR 406 at 410, 413, 417, 421, 425. While a charge could be validly imposed as a recompense for services provided to those who use the roads of a State, a State tax could not be exacted in connection with the registration of vehicles for use in interstate transportation. In Finemores Transport Pty Ltd v New South Wales (1978) 139 CLR 338; 19 ALR 289 it was held that a State Act could not validly operate to require an interstate road haulier to pay stamp duty in respect of the issue of certificates of registration of vehicles which were used exclusively for the [page 518] purposes of interstate trade: at 344, 352, 357. The duty was ‘imposed without distinction or discrimination on all those who register[ed] motor vehicles, whether the vehicles [were] engaged in … interstate trade or not’: at 352. In Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42 the unanimous court suggested that this outcome involved the creation of protectionism in reverse. The court stated that ‘[i]nstead of placing interstate trade on an equal footing with intrastate trade’, the Finemores Transport decision ‘keeps interstate trade on a privileged or preferred footing, immune from burdens to which other trade is subject’: at 402. 868 Several cases involved State legislative attempts to defeat claims which had become available as a consequence of the invalidation of statutes that infringed s 92. In Antill Ranger and Co Pty Ltd v Commissioner for Motor

Transport (1955) 93 CLR 83 the High Court held that s 92 was infringed by an Act that purported to extinguish any action against the State for recovery of the charges collected under the invalidated legislation: at 101–2. This decision was affirmed by the Privy Council on appeal: (1956) 94 CLR 177 at 179. In Barton v Commissioner for Motor Transport (1957) 97 CLR 633 State legislation purported to bar a remedy after 12 months had elapsed from the time when the money was paid or collected. This legislation was held to be invalid ‘in its application to causes of action actually existing more than 12 months before’ the enactment of the legislation, since it ‘attempt[ed] to bar absolutely the legal remedy to recover money already exacted in violation’ of s 92: at 641.

The ‘criterion of operation’ and ‘practical effects’ tests Price fixing 869 In McArthur (W & A) Ltd v Queensland (1920) 28 CLR 530 Queensland legislation fixed the maximum prices at which certain goods could be sold in the State. It was held that the prohibition by a State law of interstate sales contravened s 92. In James v Commonwealth (1936) 55 CLR 1 the Privy Council commented that the McArthur ‘decision deprived Queensland of its sovereign right to regulate its internal prices’: at 49. If this comment suggested that McArthur’s case was authority that s 92 prohibited a State from fixing prices which might be charged in the State for goods imported from another State, a subsequent case showed that to be a misleading impression. In Wragg v New South Wales (1953) 88 CLR 353 orders had fixed the maximum prices at which potatoes might be sold by wholesalers and retailers, including wholesalers who had imported the potatoes from another State. The plaintiffs argued that the fixing of maximum prices at any stage in the marketing of potatoes imported from another State directly burdened interstate trade as such. Taylor J held that ‘any effect which the prescription of a general price for intra-State sales may have on the business of importing potatoes from Tasmania is not a direct effect but an economic consequence too remote to constitute an impairment of the freedom which s

92 assures’: at 398. Dixon CJ, McTiernan, Williams, Fullagar and Kitto JJ agreed with Taylor J: at 386, 389, 391.

Control of sales 870 A number of cases raised the issue of the power of State legislatures to control sales of products imported from another State. In Fish Board v Paradiso (1956) 95 CLR 443 a Queensland Act provided that ‘[n]o person shall … sell or purchase any fish unless such fish have first been brought to a market … and there sold at a sale conducted by the’ [page 519] Fish Board: at 448. A Queensland fish shop contracted with a New South Wales company for the delivery of fish. One of the fish was resold to an inspector from the Fish Board. The Board argued that the resale was an intrastate sale and outside the protection of s 92: at 451. The court held that the prohibition against reselling goods purchased for resale had as its object the compulsion of the purchaser to place their property at the disposition of the Board, and was as much a direct restriction on interstate trade as a provision that all fish, whether in the course of interstate trade or not, should be delivered to the Board for sale: at 452–3. In SOS (Mowbray) Pty Ltd v Mead (1972) 124 CLR 529 a Tasmanian Act prohibited the sale of cooking margarine to which there had been added any prohibited colouring or flavouring substance: at 540. The appellant ordered cooking margarine from a Sydney company. The margarine contained the prohibited additives. The appellant sold the margarine to retail purchasers: at 541. McTiernan, Menzies, Windeyer and Gibbs JJ held that the sales to consumers were not part of interstate trade or that the Act operated only to create a remote impediment to interstate trade: at 555, 559, 579, 598. In dissent, Barwick CJ and Owen J regarded the decision in the Fish Board case as determinative of the case: at 545, 580. They considered that the appellant’s sale was part of his interstate trade in the margarine, and that the effect which a prohibition of that sale would bring about would be the direct

and immediate operation of the Act: at 551, 580. Walsh J also considered that the law was one imposing an absolute prohibition upon sale and as such it was incompatible with s 92: at 596. 871 A similar division of opinion was to be found in other cases relating to the power to control sales, including Harper v Victoria (1966) 114 CLR 361; O’Sullivan v Miracle Foods (SA) Pty Ltd (1966) 115 CLR 177; and Samuels v Readers Digest Association Pty Ltd (1969) 120 CLR 1. This division of opinion reflected two fundamentally different conceptions of the scope of the immunity afforded by s 92. The majority view relied heavily upon the essential incidents test expressed by Dixon CJ in a number of cases, notably in Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1 at 17–18. The opposing view was expressed most clearly in the dissenting judgment of Barwick CJ in Samuels v Readers Digest Association Pty Ltd (1969) 120 CLR 1 at 7: To my mind, the first question always is whether the direct as distinct from the merely consequential and remote effect of the operation of the law whatever its topic constitutes in a practical sense a burden upon trade, commerce or intercourse amongst the States or any part or aspect of it. The second is whether, if so, the law can be said, none the less, not to impair the freedom of that trade and commerce because the burden or hindrance is compatible with it. It will be so if the law is regulatory in character in relation to the impact upon that trade and commerce which results directly and not remotely from its operation.

On either view, a law which was merely regulatory of interstate trade was not obnoxious to s 92. The court thus held that the prohibition of resale price maintenance was compatible with s 92. See Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 at 630, 636, 640, 650, 651, 655. In Smith v Capewell (1979) 142 CLR 509; 26 ALR 507 a Queensland dealer in kangaroo skins brought skins from Queensland to New South Wales, and sold skins in the latter State. A New South Wales statute provided that ‘[a] person shall not … carry on … the business of a skin dealer, unless he does so under … a skin dealer’s licence’: at 511–12. The contract of sale did not expressly stipulate the delivery of the subject goods from Queensland to New South Wales: at 511. [page 520]

The High Court held that the dealer’s actions in New South Wales were part of the interstate movement from Queensland to New South Wales. The court held that the New South Wales Act violated s 92 because it burdened that movement, although the law did not discriminate against interstate trade. Barwick CJ stated (at 513): Transport over the border for sale, whether or not in pursuance of a contract of sale requiring such transport, is clearly part of interstate trade and commerce. To prevent the sale of the delivery on importation of the imported goods must necessarily offend s 92.

Marketing 872 In Wilcox Mofflin Ltd v New South Wales (1952) 85 CLR 488 the majority held that s 92 was not infringed by a New South Wales statute which required that all hides be submitted for appraisement within 28 days of coming into the possession of a licensed dealer: at 511. All hides were compulsorily acquired, with the exception of those intended or required for interstate trade: at 512–13. Dixon, McTiernan and Fullagar JJ regarded the hides scheme as operating in a different context to that of the dried fruits schemes of the James cases. In the James’ cases the legislation imposed restrictions upon sales within Australia so as to force the surplus onto the export market. ‘In the present case, the purpose and effect of the statutory plan is not to restrict but to increase the amount of the commodity available for sale in Australia’: at 516–17. However, it might be objected that ‘every expropriation of a vendible commodity is invalid, because it deprives the owners of property which otherwise they might sell from one State into another’: at 516. The court (at 519) answered this objection as follows: It is pressing s 92 far beyond its meaning and purpose if the immunity it confers is extended to the preservation of movable property against compulsory acquisition, although no overt act has been done with reference to such property which will, or upon a contingency may, result in a dealing or movement inter-State. …. There may be many situations where to take a trader’s goods is inconsistent with s 92. But that depends on some closer connection with inter-State trade than the two facts that to engage in inter-State trade is open to him if he chooses and that the goods are his property.

873 Buck v Bavone (1976) 135 CLR 110; 9 ALR 481 provides an example of permissible regulation. A statute provided that a person was not to grow

potatoes for sale, or sell potatoes they had grown, unless they were registered by a marketing board as a grower: at 112. It was held that s 92 was not infringed, since a person was entitled to be registered if they applied on a prescribed form, furnished the information indicated on the form, and satisfied the board that they were growing or intended to grow potatoes for sale: at 121, 126, 131–2. By contrast, in Perre v Pollitt (1976) 135 CLR 139; 9 ALR 387 a provision entitled a statutory committee to refuse an application for a licence to pack citrus fruit for sale by wholesale ‘if it [was] satisfied that in the interests of the citrus industry it [was] undesirable that the licence should be granted’: at 151. This provision was held to be prohibitory in character. This prohibition infringed s 92 since packing fruit was not merely preparatory to trade, but was an essential attribute of the trade, without which the interstate trade in packed citrus fruit could not take place: at 146, 150–4.

Lotteries 874 In three cases it was held that s 92 was not infringed by State Acts that prohibited the sale of lottery tickets (including tickets for lotteries conducted in other States). See R v Connare; Ex parte Wawn (1939) 61 CLR 596; Home Benefits Pty Ltd v Crafter (1939) 61 CLR 701 and R v Martin; Ex parte Wawn (1939) 62 CLR 457. In Mansell v Beck [page 521] (1956) 95 CLR 550 the High Court affirmed its decisions in Connare and Martin, but for varied reasons. One reason was that the conduct of a lottery was not trade, commerce or intercourse: at 570. Another was that the relevant section was concerned only with intrastate trade, and that any impediment to interstate trade was merely indirect and consequential: at 574. A third ground was that the law did not ‘select any element or attribute of inter-State trade … as the basis of its operation’: at 568.

Individual rights and s 92 875 In Ackroyd v McKechnie (1986) 161 CLR 60; 66 ALR 287 a licensed fauna dealer in New South Wales sold cockatoos to a Queensland buyer. The birds were sent from New South Wales. The contract provided that the birds were to be sent to the buyer in Queensland: at 66. A Queensland statute prohibited the sending of fauna into that State without a permit. The dealer did not hold a permit. The birds were seized as prohibited imports when they reached Queensland: at 67. Under the provision the Minister had complete discretion to refuse to issue a permit. The court held that this provision contravened s 92. The acts of the dealer constituted acts of interstate trade or commerce. ‘The actual movement of goods from State to State is at the very heart of interstate trade and commerce’: at 67. The agreement between the seller and purchaser was an interstate transaction. This, in itself, was an essential ingredient in the transaction and required protection under s 92. It was immaterial that the birds were wild: at 67. The provision requiring permits would be invalid unless it was regulatory: at 67. A statutory provision which conferred ‘an uncontrolled discretion to refuse to grant a licence or permit, cannot validly apply to interstate trade’: at 68. ‘[A] statute that imposes reasonable restrictions in the interest of public health may be justified as a permissible regulation of interstate trade which does not infringe s 92, and such reasonable regulation may … extend to the absolute prohibition of the trade in … dangerous goods or diseased persons, plants or animals’: at 69. However, prohibition of the movement of cockatoos did not fall within this category. It was ‘immaterial’ to the validity of the statute ‘that the actual administration of the law may not be inconsistent with s 92’: at 70. 876 In Clark King & Co Pty Ltd v Australian Wheat Board (1978) 140 CLR 120; 21 ALR1 the main issue was whether a notice could properly be issued to a person in possession of wheat, requiring them to deliver that wheat to the Australian Wheat Board, including wheat which was the subject of interstate trade and commerce. The Board argued that the relevant State and Commonwealth legislation formed a scheme ‘directed to the stabilization of the wheat industry in Australia’. It contended that the conditions of that

industry justified the establishment of ‘a government monopoly in the sale and disposal of wheat as being a practical and reasonable method of regulation’: at 145. A majority of the court upheld the legislation. Mason and Jacobs JJ observed (at 192–3): It is in this context of an Australia-wide wheat pooling scheme as well as in the circumstances of the Australian wheat industry … that it must be determined whether a scheme which includes the burdens placed on the interstate sale and transportation of wheat by growers and purchasers is the only practical and reasonable manner of regulation of trade and commerce (including interstate trade and commerce) in wheat. We are satisfied that it is.

Accordingly, they considered that the fact that the regulation of that trade and commerce involved a prohibition of the trade and commerce of an individual did not mean that s 92 was infringed. The other member of the majority (Murphy J) upheld the legislation on the [page 522] different ground that it did not impose a tax that discriminated against interstate trade or commerce: at 194. 877 In Uebergang v Australian Wheat Board (1980) 145 CLR 266; 32 ALR 1 the court once again considered the validity of State wheat stabilisation legislation. There was disagreement between members of the court regarding the ‘regulation’ issue, namely the extent to which compulsory marketing controls could be imposed in the public interest. Barwick CJ and Aickin J held that the total prohibition of participation by an individual in interstate trade necessarily infringed s 92: at 282–4, 316. Barwick CJ argued that, in order to establish that the legislation did not infringe s 92, it was necessary to show that a government monopoly was ‘the only reasonable and practical method’ of regulation: at 287. Gibbs and Wilson JJ agreed on this point: at 301. On the other hand, Stephen and Mason JJ stated that it was only necessary to establish that it was a practical and reasonable method of regulation: at 304– 6. While practicality was to be viewed from the viewpoint of those administering the scheme, reasonableness was concerned ‘with the adverse

effect of the challenged law upon those whose activities in trade are affected by it, that adverse effect being weighed against the need which is felt for regulation in the interests of the public generally’: at 306. 878 In Australian Coarse Grains Pool Pty Ltd v Barley Marketing Board (1985) 157 CLR 605; 59 ALR 641 a State Act empowered the Governor-in-Council to ‘declare that any grain, cereal, fruit, vegetable, or other product of the soil’ was a ‘commodity’ under the Act, and that the commodity was vested in a Board constituted under the Act: at 657. The Act provided for delivery of the commodity only to the Board and allowed an inspector to seize any commodity suspected of being held in violation of the Act. The legislation also provided that an order-in-council should not prejudice any interstate contract for the sale of the commodity that was entered into before the date it was acquired by the Board: at 611. An order-in-council declared barley produced in Queensland to be a commodity and vested it in the Barley Marketing Board: at 610–11. A contract was entered into between some Queensland growers and a Victorian company when the barley was almost harvestable, but ‘still standing in the field’: at 612. The company undertook by special conditions in the contract to take it out of Queensland and deliver it to a buyer in another State and not bring it back to Queensland. The barley was harvested and stored in the company’s premises in Queensland: at 612. The High Court held that the barley became a commodity under the Act only when severed from the soil following its harvesting: at 613, 625, 637. Interstate trade and commerce commenced with the contract between the company and growers. Those contracts formed part of interstate trade and commerce. This was prior to the time at which the barley could become a commodity under the Act, therefore, by virtue of s 92, the order-in-council had no operation. Gibbs CJ held that the scheme infringed s 92 because it had ‘the direct effect of prohibiting the plaintiff from buying or taking delivery of the barley in which it traded, and thus of completely preventing the plaintiff from engaging in that trade or commerce’: at 614. The court viewed the company’s purchase of the barley as an essential step in its interstate trade. Gibbs CJ and Wilson J relied heavily upon the

contractual conditions that obliged the company as purchaser to remove the barley from Queensland: at 614, 640. Dawson J agreed with this view but also expressed the opinion that the absence of the contractual obligation to take the barley out of Queensland would not automatically have produced a different [page 523] result, since, as a matter of commercial reality, the contract marked the beginning of interstate trade in barley: at 663. Mason CJ remarked that ‘the purchase of goods by a trader for the purpose of … delivering them to a buyer in another State is a transaction forming part of interstate trade and commerce, even though that purpose is not within the contemplation of the seller’: at 634. He went on to argue that ‘the Court should acknowledge that the purchase of goods by an interstate trader for the purpose of that trade is the point of commencement of interstate trade’: at 634. The High Court’s reasoning was difficult to reconcile with the decision in Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 in which manufacture and production were excluded from the protection of s 92 on the ground that such activity was antecedent to, rather than part of, interstate trade: at 71–2.

The interstate character of activities 879 In H C Sleigh Ltd v South Australia (1977) 136 CLR 475; 12 ALR 449 Mason J held that a system of ‘petroleum refining exchange’ was not one with the characteristics of interstate trade and commerce, since it did not contemplate the movement of petroleum products from one State to another: at 506. An arrangement under which petroleum products would be sold and delivered in one State in consideration of a like sale and delivery in another State did not involve interstate trade, since it ‘did not call for the sale or delivery of any product across State boundaries’: at 506.

The question of whether an activity possessed an interstate character arose in three main contexts.

Intrastate parts of interstate journeys 880 A series of cases raised the question of the circumstances in which the protection of s 92 would be available to a trader in relation to an intrastate carriage of goods when this formed part of an interstate movement of those goods. In Hughes v Tasmania (1955) 93 CLR 113 it was held that s 92 could not be invoked by a carrier engaged by a purchaser of fruit from the mainland to carry the fruit from the Tasmanian coast to the purchaser’s place of business in Hobart. Various grounds were given for the decision both in the case itself and in subsequent cases in which it was explained and distinguished. In Pilkington v Frank Hammond Pty Ltd (1974) 131 CLR 124 at 193; 2 ALR 563 Mason J pointed out that the court in Hughes had: … adhered to the proposition that the intra-State carriage of goods by a carrier which forms an integral part of the inter-State movement of the goods for reward is protected by s 92, if it appears that an interference with that carriage is an interference with the inter-State trade of the … person for whom … the intra-State carriage is undertaken.

In Mason J’s view, the principle which should be recognised was that ‘s 92 accords protection to the carriage … solely because it is an integral part of the inter-State movement of goods for reward, whether or not the evidence establishes it to be an infringement of the inter-State trade of a person for whom … the carriage is undertaken’: at 193. Barwick CJ, Gibbs, Stephen and Jacobs JJ agreed with Mason J on this point. Hughes v Tasmania was overruled: at 151, 175, 179–80, 193, 201. [page 524] The carriage of goods from one place in a State to another place in the same State would be protected by s 92 only if it forms part of the interstate movement of goods. See Deacon v Mitchell (1965) 112 CLR 353 at 364. But there must have been a continuous journey of an interstate character if a

carriage of goods within a State was to be regarded as part of their interstate movement. If a journey was merely a preliminary step in the process of initiating an interstate transaction, it might not be protected by s 92 as it was antecedent to interstate trade. See Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 71–2.

Border-hopping 881 In Naracoorte Transport Co Pty Ltd v Butler (1956) 95 CLR 455 it was held that the protection of s 92 was available to a carrier who transported wool from a place in South Australia to a place in Victoria, though the wool was grown in Victoria and transported from there by a separate carrier to South Australia. The motives of the consignors in using this method for having the wool transported were treated as irrelevant: at 459. Several cases raised the question of whether s 92 could be applicable where the point of departure of a carrier and the point of destination were in the same State, but in the course of the journey a State border was crossed. In Golden v Hotchkiss (1959) 101 CLR 568 Fullagar J said that he had ‘no hesitation in saying that, if you have a single continuous journey which involves the crossing of a border between two States, then prima facie that journey is an inter-State journey, even though the point of departure and the point of destination are in the same State’: at 590. But this principle merely created a presumption, and the circumstances could rebut its application. This principle was held to be applicable in Beach v Wagner (1959) 101 CLR 604 at 610; Roadair Pty Ltd v Williams (1968) 118 CLR 644 at 647 and J & J Ward Pty Ltd v Williams (1969) 119 CLR 318 at 320, 324, 326, 328–9. By contrast, this principle was held to be inapplicable in Harris v Wagner (1959) 103 CLR 452 at 457, 466, 472, 475, 477; Western Interstate Pty Ltd v Madsen (1961) 107 CLR 102 at 108, 112, 115–6 and Winton Transport Pty Ltd v Horne (1966) 115 CLR 322 at 328–9, 332. In Harris the crossing and recrossing of the border were not regarded as ‘steps taken in furtherance of the object of getting the goods to their predetermined final destination’: at 466. The distinction to be drawn was between a ‘diversion across the border [which] has a business purpose, apart from the wish to secure the protection of

s 92’, and ‘an artificial diversion over the border’. See Stoneham v Ryan’s Removals Pty Ltd (1978) 143 CLR 79 at 86; 23 ALR 1.

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[page 558] Twomey, A, ‘Advice to Vice-regal Officers by Crown Law Officers and Others’ (2015) 26 Public LR 193. Twomey, A and Withers, G, Australia’s Federal Future, Council for the Australian Federation, Brisbane, 2007. Uhr, J, ‘After the Referendum: The Future of Constitutional Change’ (2000) 11 Public LR 7. Vial, A, ‘The Minimum Entrenched Supervisory Review Jurisdiction of State Supreme Courts: Kirk v Industrial Relations Commission (NSW)’ (2011) 32 Adel LR 145. Victorian Parliament Federal-State Relations Committee, Australian Federalism: The Role of the States, Government Printer, Melbourne, 1998. Victorian Parliament Federal-State Relations Committee, Federalism and the Role of the States: Comparisons and Recommendations, Government Printer, Melbourne, 1999. Victorian Parliament Federal-State Relations Committee, International Treaty Making and the Role of the States, Government Printer, Melbourne, 1997. Voon, T, Mitchell, A D and Liberman, J (eds), Public Health and Plain Packaging of Cigarettes: Legal Issues, Edward Elgar, Cheltenham, UK, 2012. Walker, G de Q, ‘Dicey’s Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion’ (1985) 59 ALJ 276. Walker, K, ‘Disputed Returns and Parliamentary Qualifications: Is the High Court’s Jurisdiction Constitutional?’ (1997) 20 UNSWLJ 257. Walker, K, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public LR 153. Walker, K, ‘Amici Curiae and Access to Constitutional Justice: A Practical Perspective’ (2010) 22 Bond LR 111. Walker, K and Dunn, K, ‘Mr Langer is Not Entitled to be an Agitator: Albert Langer v Commonwealth’ (1996) 20 MULR 909. Ward, A, ‘Responsible Government and Recent Constitutional Change in Australia and New Zealand’ (1993) 15 Adel LR 165. Ward, E, Call Out the Troops: An Examination of the Legal Basis for Australian Defence Force Involvement in ‘Non-Defence’ Matters, Research Paper No 8, 1997–98, Department of the Parliamentary Library, Canberra, 1998. Ward, J M, The State and the People: Australian Federation and Nation-making, 1870–1901, Federation Press, Sydney, 2001. Warhurst, J and Mackerras, M (eds), Constitutional Politics: The Republic Referendum and the Future, University of Queensland Press, St Lucia, 2002. Waring, P (ed), Papers on Parliament No 64, Department of the Senate, Canberra, 2016. Waters, S and Stone, P, ‘Immunity from Taxation under Section 114 of the Constitution’ (1992) 66 ALJ 601. Waugh, J, ‘Chung Teong Toy v Musgrove and the Commonwealth Executive’ (1991) 2 Public LR 160. Waugh, J, ‘Appointing the Governor-General: The Case of William McKell’ (2006) 17 Public LR 49. Waugh, J, ‘Appointing the First Australian-born Governor-General: Legal and Vice-regal Opposition’

(2012) 23 Public LR 50. Webb, R, The Australian Loan Council, Research Note No 43, 2001–02, Department of the Parliamentary Library, Canberra, 2002. Webb, R, The Commonwealth Budget: Process and Presentation, Research Brief No 7, 2006–07, Department of the Parliamentary Library, Canberra, 2007. Webb, R et al, Federal Financial Relations Bill 2009, Bills Digest No 103, 2008–09, Department of the Parliamentary Library, Canberra, 2009. Webster, A and Williams, J, ‘Can the High Court save the Murray River?’ (2012) 29 Environmental and Planning LJ 281. Webster, G, ‘Trial by Jury? Re Colina; Ex parte Torney’ (2000) 5, 1 Deakin LR 217.

[page 559] Weight, D, Financial Framework Legislation Amendment Bill (No 2) 2013, Bills Digest No 114, 2012–13, Department of the Parliamentary Library, Canberra, 2013. Wells, B, ‘Aliens: The Outsiders in the Constitution’ (1996) 19 UQLJ 45. Welsh, W, ‘A Path to Purposive Formalism: Interpreting Chapter III for Judicial Independence and Impartiality’ (2013) 39 Mon ULR 66. Wesson, M, ‘Tajjour v New South Wales, Freedom of Association, and the High Court’s Uneven Embrace of Proportionality Review’ (2015) 40 UWALR 102. Wheeler, F, ‘Original Intent and the Doctrine of the Separation of Powers in Australia’ (1996) 7 Public LR 96. Wheeler, F, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23 Mon ULR 248. Wheeler, F, ‘The Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in Overview’ (2001) 20 Aust Bar Rev 283. Wheeler, F, ‘“Anomalous Occurrences in Unusual Circumstances”? Extra-judicial Activity by High Court Justices: 1903 to 1945’ (2013) 24 Public LR 125. Wheeler, F, ‘Constitutional Limits on Extra-Judicial Activity by State Judges: Wainohu and Conundrums of Incompatibility’ (2015) 37 Syd LR 301. Wheelwright, K, ‘Commonwealth and State Powers in Health — A Constitutional Diagnosis’ (1995) 21 Mon ULR 53. White, M, ‘The Executive and the Military’ (2005) 28 UNSWLJ 438. White, M and Gaskell, N, ‘Australia’s Offshore Constitutional Law: Time for Revision?’ (2011) 85 ALJ 504. Whitelaw, G, ‘Interstate Conflicts of Laws and Section 118’ (1994) 5 Public LR 238. Whitlam, G, The Truth of the Matter, Penguin, Ringwood, Vic, 1979. Whitlam, G, The Whitlam Government 1972–1985, Penguin, Ringwood, Vic, 1985. Wilcox, M, An Australian Charter of Rights, Law Book Company, Sydney, 1993.

Willheim, E, ‘An Amicus Experience in the High Court: Wurridjal v Commonwealth’ (2009) 20 Public LR 104. Willheim, E, ‘Amici Curiae and Access to Constitutional Justice in the High Court of Australia’ (2010) 22 Bond LR 126. Wilkins, S, ‘Constitutional Limits on Bills of Rights Introduced by a State or Territory’ (2007) 35 FL Rev 431. Wilkinson, J, Sovereign States and National Power: Transition in Federal-State Finance, Briefing Paper 14/06, NSW Parliamentary Library Research Service, Sydney, 2006. Williams, G, ‘Are Service Marks Trade Marks?: Commonwealth Power over Intellectual Property’ (1995) 6 Aust Int Prop J 133. Williams, G, ‘Engineers is Dead, Long Live the Engineers!’ (1995) 17 Syd LR 62. Williams, G, Labour Law and the Constitution, Federation Press, Sydney, 1998. Williams, G, ‘The Native Title Amendment Bill 1997 (Cth) — A Double Dissolution Trigger?’ (1998) 1 Const L & Pol’y Rev 35. Williams, G, The 1998 Constitutional Convention — First Impressions, Current Issues Brief No 11, 1997– 98, Department of the Parliamentary Library, Canberra, 1998. Williams, G, ‘The Amicus Curiae and Intervener in the High Court of Australia: A Comparative Analysis’ (2000) 28 FL Rev 365. Williams, G, ‘Why Australia Kept the Queen’ (2000) 63 Saskatchewan LR 477. Williams, G, ‘The Power to go to War: Australia in Iraq’ (2004) 15 Public LR 5. Williams, G, A Charter of Rights for Australia, 3rd ed, UNSW Press, Sydney, 2007. Williams, G, ‘High Court Appointments: The Need for Reform’ (2008) 30 Syd LR 163.

[page 560] Williams, G, Gageler, S and Lindell, G, ‘October Symposium: The Races Power’ (1998) 9 Public LR 265. Williams, G and Hume, D, People Power: The History and Future of the Referendum in Australia, University of New South Wales Press, Sydney, 2010. Williams, G and Hume, D, Human Rights under the Australian Constitution, 2nd ed, Oxford University Press, Melbourne, 2013. Williams, G and Pillai, S, ‘Commonwealth Power over Higher Education’ (2011) 30 UQLJ 287. Williams, G and Reynolds, D, ‘The Racial Discrimination Act and Inconsistency Under the Australian Constitution’ (2015) 36 Adel LR 241. Williams, G; Brennan, S and Lynch, A, Blackshield & Williams Australian Constitutional Law and Theory: Commentary and Materials, 6th ed, Federation Press, Sydney, 2014. Williams, J, ‘Re-Thinking Advisory Opinions’ (1996) 7 Public LR 205. Williams, J M, ‘“Come in Spinner”: Section 90 of the Constitution and the Future of State Finances’ (1999) 21 Syd LR 627.

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(1986) 16 FL Rev 288. Wright, B C, House of Representatives Practice, 6th ed, Department of the House of Representatives, Canberra, 2012. Wynes, W A, Legislative, Executive and Judicial Powers in Australia, 5th ed, Law Book Co, Sydney, 1976. Ying, C A, ‘Colonial and Federal Admiralty Jurisdiction’ (1981) 12 FL Rev 236. Young, L et al, Family Law in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2013. Young, P W, ‘Constitution, s 58’ (2000) 74 ALJ 125. Young, S and Murray, S, ‘An Elegant Convergence? The Constitutional Entrenchment of “Jurisdictional Error” Review in Australia’ (2011) 11 Oxford U Cth LJ 117. Zelling, H E, ‘Constitutional Problems of Admiralty Jurisdiction’ (1984) 58 ALJ 8. Ziegert, L, ‘Does the Public Purse have Strings Attached? Combet & Anor v Commonwealth of Australia & Ors’ (2006) 28 Syd LR 387. Zimmerman, A, ‘Industrial Relations and the Commonwealth Constitution: The Constitutional Underpinnings for a National System of Industrial Relations in Australia’ (2009) 12 Int Trade & Bus LR 185. Zimmermann, A, ‘The Constitutionality of Same-Sex Marriage in Australia (and Other Related Issues)’ (2013) 27 BYU J Public L 465. Zimmermann, A, ‘“Constituting a ‘Christian Commonwealth”: Christian Foundations of Australia’s Constitutionalism’ (2014) 5 Western Australian Jurist 123. Zines, L (ed), Commentaries on the Australian Constitution, Butterworths, Sydney, 1977. Zines, L, ‘A Judicially Created Bill of Rights’ (1994) 16 Syd LR 166. Zines, L, Cowen and Zines’s Federal Jurisdiction in Australia, 3rd ed, Federation Press, Sydney, 2002. Zines, L, ‘The Inherent Executive Power of the Commonwealth’ (2005) 16 Public LR 279. Zines, L, ‘Advisory Opinions and Declaratory Judgments at the Suit of Governments’ (2010) 22 Bond LR 156. Zines, L and Lindell, G J, ‘Form and Substance: “Discrimination” in Modern Constitutional Law’ (1992) 21 FL Rev 136.

USEFUL WEB SITES Cases [AustLII] High Court decisions, since 1903

Books

Evans, H and Laing, R, Odgers’ Australian Senate Practice (2012)

Gleeson, M, The Rule of the Law and the Constitution (2000)

Wright, B C, House of Representatives Practice (2012)

Opinions of Attorneys-General of the Commonwealth of Australia. Vols 1-4: 1901–50 (1981, 1988, 2013, 2015)

[page 562]

Journals [AustLII] Federal Law Review, 1964–2009 [Federal Law Review] Federal Law Review, since 2001, issues from the last five years available to subscribers only

[Parliament of Australia Library] Commonwealth Parliamentary Library research papers, since 1996

Papers on Parliament, since 1988 [Samuel Griffith Society] Upholding the Australian Constitution, since 1992

Historical materials [Documenting a Democracy] Historical constitutional laws and documents [Records of the Australian Federal Conventions of the 1890s, Australian Senate] 1890s Constitutional Convention Debates

[Australian Federation Full Text Database] 1890s Constitutional Convention Debates and early constitutional law treatises [Hansard Internet Publishing Service] 1998 Constitutional Convention Debates

Good collection of documents [National Museum of Australia] Useful materials concerning the 1967 Referendum

Intergovernmental cooperation [Reform of the Federation White Paper] [Council of Australian Governments] Texts of intergovernmental agreements and COAG communiques [Council for the Australian Federation] Bibliography, research papers

Republic issue [Australian Republican Movement] [Australians for Constitutional Monarchy]

[page 563]

Academic centres [Centre for Comparative Constitutional Studies, University of Melbourne] [Australian Association of Constitutional Law] [Centre for International and Public Law, Australian National

University] [Gilbert & Tobin Centre of Public Law] [AUSPUBLAW] [Constitutional Critique blog] [Opinions on High] [Public Law Blog]

DVDS Vote Yes for Aborigines Examines the 1967 Referendum. Broadcast on SBS, 27 May 2007. Released on DVD by Ronin Films, 2007. The Highest Court A detailed look at the High Court. Broadcast on Inside Story, ABC, 26 May 1998. Released on DVD by Ronin Films, 2007. Federation Outlines the history of the Federation movement. Broadcast on ABC, 7-21 October 1999. Released on DVD by Umbrella Entertainment, 2012.

[page 565]

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT __________________________ (63 & 64 Victoria, Chapter 12) An Act to constitute the Commonwealth of Australia [9th July 1900] 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:— Short title. 1. This Act may be cited as the Commonwealth of Australia Constitution Act. Act to extend to the Queen’s successors. 2. The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.

Proclamation of Commonwealth. 3. 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. Commencement of Act. 4. 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. [page 566] Operation of the constitution and laws. 5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and 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. Definitions. 6. “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. Repeal of Federal Council Act. 7. 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. [48 & 49 Vict. c. 60.] Application of Colonial Boundaries Act. 8. 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. [58 & 59 Vict. c. 34.] Constitution. 9. 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:

Chapter III.—The Judicature: [page 567] Chapter IV.—Finance and Trade: Chapter V.—The States: Chapter VI.—New States: Chapter VII.—Miscellaneous: Chapter VIII.—Alteration of the Constitution. The Schedule.

[page 568]

Chapter I The Parliament. PART I.—GENERAL. Legislative power. 1. 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 herein-after called “The Parliament”, or “The Parliament of the Commonwealth”. Governor-General. 2. A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him. Salary of Governor-General. 3. There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. The salary of a Governor-General shall not be altered during his continuance in office. Provisions relating to Governor-General. 4. 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. Sessions of Parliament. Prorogation and dissolution. 5. 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. 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. Yearly session of Parliament. 6. 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. [page 569] PART II.—THE SENATE. The Senate. 7. 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. Qualification of electors. 8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once. Method of election of senators. 9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State. Times and places. The Parliament of a State may make laws for determining the times and places of elections of senators for the State. Application of State laws. 10. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State. Failure to choose senators. 11. The Senate may proceed to the despatch of business, notwithstanding

the failure of any State to provide for its representation in the Senate. Issue of writs. 12. The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution. Rotation of senators. 13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators [page 570] of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall 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 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 July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election. [s 13 altered, Act No 1 of 1907 s 2]

Further provision for rotation. 14. Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation.

Casual vacancies. 15. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens. Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly 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 (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 a State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in

consequence of that vacancy, or in consequence of that vacancy and a subsequent [page 571] 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— (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. [s 15 substituted, Act No 82 of 1977 s 2]

Qualifications of senator. 16. The qualifications of a senator shall be the same as those of a member of the House of Representatives. Election of President. 17. 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. Absence of President. 18. Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence. [page 572] Resignation of senator. 19. A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

Vacancy by absence. 20. 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. Vacancy to be notified. 21. Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened. Quorum. 22. Until the Parliament otherwise provides, the presence of at least onethird of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers. Voting in the Senate. 23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative. PART III.—THE HOUSE OF REPRESENTATIVES. Constitution of House of Representatives. 24. 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 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 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. Provision as to races disqualified from voting. 25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted. [page 573] Representatives in first Parliament. 26. Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election shall be as follows:— New South Wales … twenty-three; Victoria … twenty; Queensland … eight; South Australia … six; Tasmania … five; 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. Alteration of number of members. 27. Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of members of the House of Representatives. Duration of House of Representatives. 28. Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General. Electoral divisions. 29. Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States. In the absence of other provision, each State shall be one electorate. Qualification of electors. 30. 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. Application of State laws. 31. 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 in the State of members of the House of Representatives. Writs for general election.

32. The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives. After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof. [page 574] Writs for vacancies. 33. Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ. Qualifications of members. 34. 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. Election of Speaker. 35. 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. Absence of Speaker. 36. Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence. Resignation of member. 37. 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. Vacancy by absence. 38. 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. Quorum. 39. Until the Parliament otherwise provides, the presence of at least onethird 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. Voting in House of Representatives. 40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote. PART IV.—BOTH HOUSES OF THE PARLIAMENT. Right of electors of States. 41. No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by

[page 575] any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. Oath or affirmation of allegiance. 42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution. Member of one House ineligible for other. 43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House. Disqualification. 44. Any person who— (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 (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 sub-section 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. Vacancy on happening of disqualification. 45. If a senator or member of the House of Representatives— (i) Becomes subject to any of the disabilities mentioned in the last preceding section: or (ii) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or (iii) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State: his place shall thereupon become vacant. Penalty for sitting when disqualified. 46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives 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. [page 576] Disputed elections. 47. Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, 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.

Allowance to members. 48. 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. Privileges, etc., of Houses. 49. 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. Rules and orders. 50. 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. Legislative powers of the Parliament. 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:— (i) 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)

(vii) (viii) (ix) (x) (xi) (xii) (xiii)

(xiv) (xv)

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: Lighthouses, lightships, beacons and buoys: Astronomical and meteorological observations: Quarantine: Fisheries in Australian waters beyond territorial limits: Census and statistics: Currency, coinage, and legal tender: 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: Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned: Weights and measures: [page 577]

(xvi) (xvii) (xviii) (xix) (xx)

Bills of exchange and promissory notes: Bankruptcy and insolvency: Copyrights, patents of inventions and designs, and trade marks: Naturalization and aliens: 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: (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: [paragraph (xxiiia) inserted, Act No 81 of 1946 s 2]

(xxiv)

(xxv) (xxvi)

The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States: The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States: The people of any race for whom it is deemed necessary to make special laws: [paragraph (xxvi) altered, Act No 55 of 1967 s 2]

(xxvii) (xxviii) (xxix) (xxx) (xxxi)

Immigration and emigration: The influx of criminals: External affairs: The relations of the Commonwealth with the islands of the Pacific: 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. [page 578] Exclusive powers of the Parliament. 52. 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— (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. Powers of the Houses in respect of legislation. 53. 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. Appropriation Bills. 54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. Tax Bill. 55. 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. Recommendation of money votes. 56. 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. Disagreement between the Houses. 57. 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 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 [page 579] 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. Royal assent to Bills. 58. 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. Disallowance by the Queen. 59. 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 Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known. Signification of Queen’s pleasure on Bills reserved. 60. 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 GovernorGeneral 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. Executive power. 61. 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.

[page 580] Federal Executive Council. 62. There shall be a Federal Executive Council to advise the GovernorGeneral 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. Provisions referring to Governor-General. 63. The provisions of this Constitution referring to the GovernorGeneral in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council. Ministers of State. 64. 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. Number of Ministers. 65. 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. Salaries of Ministers. 66. 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. Appointment of civil servants. 67. 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. Command of naval and military forces. 68. The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative. Transfer of certain departments. 69. 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. [page 581] But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment. Certain powers of Governors to vest in Governor-General. 70. 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.

Chapter III The Judicature. Judicial power and Courts. 71. 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. Judges’ appointment, tenure and remuneration. 72. The Justices of the High Court and of the other courts created by the Parliament— (i) Shall be appointed by the Governor-General in Council: (ii) Shall not be removed except by the Governor-General 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. 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. [page 582] 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. [s 72 altered, Act No 83 of 1977 s 2]

Appellate jurisdiction of High Court. 73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, 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. Appeal to Queen in Council. 74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. 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. Original jurisdiction of High Court. 75. In all matters—

(i) (ii) (iii)

Arising under any treaty: Affecting consuls or other representatives of other countries: In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: [page 583]

(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. Additional original jurisdiction. 76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter— (i) Arising under this Constitution, or involving its interpretation: (ii) Arising under any laws made by the Parliament: (iii) Of Admiralty and maritime jurisdiction: (iv) Relating to the same subject-matter claimed under the laws of different States. Power to define jurisdiction. 77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws— (i) Defining the jurisdiction of any federal court other than the High Court: (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.

Proceedings against Commonwealth or State. 78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. Number of judges. 79. The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes. Trial by jury. 80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Chapter IV Finance and Trade. Consolidated Revenue Fund. 81. All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution. Expenditure charged thereon. 82. 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 [page 584] the Commonwealth shall in the first instance be applied to the payment of the

expenditure of the Commonwealth. Money to be appropriated by law. 83. 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. Transfer of officers. 84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth. Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his 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. Transfer of property of State. 85. When any department of the public service of a State is transferred to the Commonwealth— (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: [page 585] (iv)

The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred. 86. 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. 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. Uniform duties of customs. 88. Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth. Payment to States before uniform duties. 89. 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. Exclusive power over customs, excise, and bounties. 90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the

Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise. Exceptions as to bounties. 91. 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. Trade within the Commonwealth to be free. 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. [page 586] 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. Payment to States for five years after uniform tariffs. 93. During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides— (i) The duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid 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. Distribution of surplus. 94. 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. Customs duties of Western Australia. 95. 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. 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, fourfifths, 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. Financial assistance to States. 96. 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. Audit.

97. 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 [page 587] 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. Trade and commerce includes navigation and State railways. 98. 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. Commonwealth not to give preference. 99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof. Nor abridge right to use water. 100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. Inter-State Commission. 101. 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.

Parliament may forbid preferences by State. 102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or 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. Commissioners’ appointment, tenure, and remuneration. 103. 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. Saving of certain rates. 104. Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States. Taking over public debts of States. 105. The Parliament may take over from the States their public debts, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof;

[page 588] and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable 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. [s 105 altered, Act No 3 of 1910 s 2]

Agreements with respect to State debts. 105A. (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. [s 105a inserted, Act No 1 of 1929 s 2]

Chapter V The States. Saving of Constitutions. 106. The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. Saving of Power of State Parliaments. 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the [page 589] establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be. Saving of State laws. 108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the 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.

Inconsistency of laws. 109. 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. Provisions referring to Governor. 110. 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. States may surrender territory. 111. 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. States may levy charges for inspection laws. 112. 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. Intoxicating liquids. 113. 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. States may not raise forces. Taxation of property of Commonwealth or State. 114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

States not to coin money. 115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts. Commonwealth not to legislate in respect of religion. 116. 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. [page 590] Rights of residents in States. 117. 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. Recognition of laws, etc., of States. 118. 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. Protection of States from invasion and violence. 119. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. Custody of offenders against laws of the Commonwealth. 120. 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. New States may be admitted or established. 121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. Government of territories. 122. 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. Alteration of limits of States. 123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected. Formation of new States. 124. 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. [page 591]

Chapter VII Miscellaneous. Seat of Government. 125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government. Power to Her Majesty to authorise Governor-General to appoint deputies. 126. 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 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. 127. [s 127 repealed, Act No 55 of 1967 s 3]

Chapter VIII Alteration of the Constitution. Mode of altering the Constitution. 128. 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. [page 592] 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. 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. [s 128 altered, Act No 84 of 1977 s 2]

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

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

INDEX __________________________ References are to paragraph numbers Aboriginals and Torres Strait Islanders …. 30, 128D, 322–324, 540, 828A, 839–839A, 845 Absence from Parliament …. 109–116, 148–149, 154–159 Absolute majority …. 163, 462, 841 Acceptance of territory …. 781–783, 829 Accrued jurisdiction …. 592 Acquisition of property acquisition …. 348–352 copyright power …. 281 extinguishment …. 349 grants power …. 719 interest …. 362–363 just terms …. 353–358 land …. 364 laws outside limitation …. 281, 346 personal property …. 365–366 pooling and compulsory marketing …. 359–361 property …. 347 purpose …. 368–369 States, by …. 369A State railways …. 372–373 statutory provisions for compensation …. 366A Territories …. 828

wartime acquisitions …. 354–358, 362–363, 368 Administrative cooperation …. 18 Administrator …. 72–73 Admiralty High Court jurisdiction …. 593 Adoption of Constitution …. 5–9 Adoption of Commonwealth law …. 396–397, 401 Adult suffrage …. 165, 840 Advisory opinions …. 574 Affirmation of allegiance …. 166–167 Air force …. 239 Aliens power …. 282–285 Allegiance, oath or affirmation …. 166–167 Allegiance to a foreign power …. 172–173 Allowances, Parliamentary …. 186–187 Alteration see Amendment of Constitution Amendment of Constitution …. 33, 840–846 Amicus curiae …. 37 Appeal High Court …. 559–569 Privy Council …. 570–571 Appointed day …. 49–50 Appointment civil servants …. 512–513 federal judges …. 554–555 Governor-General …. 66–69 Appropriation annual appropriations …. 628

Bills …. 435, 442–443, 635 incidental power …. 410, 485, 486A law required …. 633–635 spending power, not a source of …. 626–629A standing appropriations …. 628 Arbitration power see Conciliation and arbitration power Arbitration, commercial …. 534, 610H Arrest Parliamentarians …. 197 Ascertainment of facts …. 25, 242 Assent see Royal assent Astronomical observations power …. 255–256 Attainder, Bills of …. 548–549 Attorney-General …. 36, 37, 555 Audit …. 720–721 Australia Acts …. 31–32, 406, 844 Australian Capital Territory …. 828–828B, 836 Australian Consumer Law …. 17, 828 Australian Fair Pay Commission …. 292, 378 Australian Industrial Relations Commission …. 292, 378 Banking power …. 265–268, 294 Bankruptcy ground for disqualification …. 175 legislative power …. 275–276 Beacons and buoys power …. 253–254 Benefits power …. 306–310 Bicameralism

in States …. 103 see also Senate Bill of Rights 1689 …. 195, 204 Bills of Attainder …. 548–549 Bills of exchange power …. 273–274 Bills of Pains and Penalties …. 548–549 Bills of Rights …. 29, 610G, 828B Border-hopping …. 881 Borrowing Agreements relating to …. 744–747 legislative power …. 233–234 Boundaries, colonial …. 60–61 Boundaries, State …. 831–832 Bounties control of …. 641–642 exclusive powers of Commonwealth …. 650 legislative power …. 231–232 State powers …. 670–671 Braddon clause …. 14, 643–644 British ships …. 55 Budget …. 435, 635 Buoys power …. 253–254 Cabinet …. 506 Casting vote …. 163 Census power …. 261–262 Certiorari …. 585 Characterisation …. 203

Charge or burden on people, proposed …. 436 Charter of Budget Honesty …. 635 Children, custody and guardianship of …. 302–303 Citizenship absence of concept of Australian citizenship from Constitution …. 283 allegiance to a foreign power …. 172–173 discrimination on the ground of …. 131 Civil conscription …. 308–309 Civil servants appointment …. 512–513 Coinage …. 263–264, 425, 793–794 Colonial Boundaries Act …. 60–61 Commander in Chief …. 514–515 ‘Common informer’ suit …. 181–182 Common law …. 38, 543, 560, 770, 810 Commonwealth bound by s 92 …. 674, 856 concurrent legislative powers …. 201, 764 contract, power to …. 484, 486–486A, 759–760 definition …. 56 exclusive legislative powers …. 201, 239, 763 immunity from State laws …. 756–760 inconsistency between Commonwealth and State laws …. 769–778 interpretation of heads of legislative power …. 202 legislative powers see separate heading for each power liability …. 612–613 meaning …. 46 name …. 46 ‘otherwise provides’ …. 394–395

party to suit, High Court jurisdiction …. 578–579 prisoners …. 818–819 proceedings against …. 612–613 proclamation of …. 49–50 purposive powers …. 28, 35, 201, 240, 310 seat of government …. 835–836 taxation of Commonwealth and State property …. 790–792 Commonwealth places legislative power …. 420–423 Competition Code …. 17 Conciliation and arbitration power ambit of dispute …. 384–385 amendment proposals, failed …. 846 beyond limits of any one State …. 389–392 common rule …. 383 ‘conciliation and arbitration’ …. 378 ‘disputes’ …. 379–385 ‘industrial’ …. 386–388 judicial power …. 393 paper disputes …. 381 parties to the dispute …. 383 Concurrent legislative powers …. 201, 764 Confidence vote …. 78 Connotation …. 33A Conscription civil …. 308–309 military …. 488 Conservation of water …. 731–732

Consolidated Revenue Fund …. 623–625, 631–632 Constitution commencement …. 4–5 Constitution Act …. 41–62 enactment …. 9 inoperative or spent provisions …. 50, 52, 59, 61, 165, 477 number of sections …. 846 overview of structure …. 10 short title …. 45–46 Constitutional Conventions Adoption of Constitution …. 5–8 political practices …. 19A reform bodies …. 845 Constitution Day …. 9 Constitutional interpretation characterisation …. 203 freedom of interstate trade …. 677 generally …. 25–29, 33–33A heads of power …. 202 High Court jurisdiction …. 588–590 Constitutional tort …. 38, 613 Consuls, matters affecting High Court jurisdiction …. 577 Contempt of Parliament …. 194 Contract Commonwealth …. 484, 486–486A, 759–760 ground for disqualification …. 177–180 Convention debates …. 33 Conviction, as disqualification …. 174

Cooperation administrative …. 18 judicial …. 19 legislative …. 17 Copyright power …. 277–278 Corporations constitution …. 287 resident in State …. 581, 806 Corporations power financial corporations …. 288 foreign corporations …. 288 incorporation …. 293 industrial relations …. 292 scope of power …. 289–292 shelf company …. 287 State banking …. 294 trading corporations …. 287 Council for the Australian Federation …. 18 Council of Australian Governments …. 15, 18 Court of Disputed Returns …. 184–185, 543 Covering clauses …. 46 Credit, Commonwealth …. 233–234 Criminal law …. 202, 765 Criminals, influx of …. 332–333 Cross-vesting scheme …. 19, 592, 611 Crown indivisibility …. 212–216 presumptions relating to effect of legislation …. 212–216

succession …. 406 Currency power …. 263–264 Custody of infants …. 302–303 Customs duties control of duties …. 641–642 defined …. 652 exclusive power of Commonwealth …. 650 uniform duties …. 645–648, 669, 706–712 Western Australia …. 711–712 see also Braddon clause Deadlocks between Houses …. 456–472 Debts, State …. 742–747 Deeming legislation …. 38 Defence power conclusion of hostilities …. 252 conscription …. 488 peacetime …. 243–245 preparation for war …. 246–248 purposive nature …. 28, 240 raising of forces by States …. 789 service offences …. 244–245, 546–547 wartime …. 249–251 see also Internal security, Service Tribunals Defence transportation railways …. 370–371 Deliberative vote …. 163 Denotation …. 33A Departments, Commonwealth

establishment of …. 503 transfer from States …. 516–517 Deputies of Governor-General …. 837–838 Designated persons …. 544–545 Designs power …. 279 Detention …. 539–540 Disagreements between Houses …. 456–472 Disallowance of legislation by Queen …. 476–477 Disenfranchisement of electors …. 87, 123 Discrimination citizenship, Australian …. 131 railways …. 736–737 residents of other States …. 805–808 taxation power …. 229–230 Dismissal of Whitlam government …. 439–441, 493–495 Disqualification of Parliamentarians allegiance to a foreign power …. 172–173 consequences of disqualification …. 171 office of profit under the Crown …. 176 pecuniary interest in agreement with public service …. 177–178 penalty for sitting while disqualified …. 181–182 sentence of imprisonment …. 174 treason …. 174 undischarged bankrupt or insolvent …. 175 vacancy on disqualification …. 179–180 Dissolution of Parliament double dissolution …. 439, 458–461 power of Governor-General …. 78, 439–441

Divisions, electoral …. 83, 140–141 Divorce power …. 302–303 Double dissolution …. 439, 458–461 Elections disputed …. 183–185 House …. 140–149 Senate …. 88–96, 184 Electors Disenfranchisement …. 87, 123 qualifications …. 86–87, 123, 142–143 rights of electors of States …. 164–165 Emigration power …. 331 Enacting words …. 43–44 Equality constitutional guarantee …. 42, 50, 131, 550 voting power …. 122, 129 Establishment of religion …. 798–799 Ex post facto laws …. 202, 548–549, 551 Excise duties backdating devices …. 659–666 control of …. 641–642 definition of duty …. 652–656, 666 exclusive power of Commonwealth …. 649 licence fees …. 658 marketing levies …. 657 tax on goods …. 667–668 see also Braddon clause

Executive power confidence vote …. 78 conscription, military …. 488 contracts …. 484, 486–486A executive certificates …. 489 expenditure …. 485–486A Federal Executive Council …. 490–498 limitations …. 482–486A relation to Commonwealth legislative power …. 487 sources …. 482–483, 488 taxation …. 488 war, power to make …. 488 Exclusive legislative powers …. 201, 239, 417–425, 650, 763 Expenditure, power of …. 485–486A, 626–629A Expiry of House …. 138–139, 146–147, 456 External affairs power customary international law …. 341 domestic law …. 336, 576 geographical externality …. 340 implementation of treaties …. 337–338 legislation required …. 336, 576 limitations …. 339 matters of international concern …. 341 treaty-making power …. 335 see also International law Extraterritorial power …. 340 Facts, ascertainment of …. 25, 242

Fair Work Commission …. 378 Family Court of Australia …. 553 Federal Circuit Court of Australia …. 553 Federal Council of Australasia …. 3–4, 58–59, 402 Federal Court of Australia …. 553 Federal Executive Council …. 490–498 Federal judiciary see Judiciary Federal jurisdiction …. 566–568, 599–611, 614–615 Federal Police …. 487 Federalism …. 11, 42, 843 Federation movement …. 2–9, 675–676 Financial agreement …. 14, 744–747 Financial and trade relations …. 13–16 Financial corporations …. 288 Fisheries power …. 259–260 Foreign corporations …. 288 Forfeiture of property …. 346, 610E Franchise …. 87, 142–143, 164–165 Freedom from arrest Parliamentarians …. 197 Freedom of association …. 130 Freedom of information …. 414 Freedom of interstate trade, commerce and intercourse binds Commonwealth …. 674, 856 Cole test environmental defence …. 696–697 level playing field defence …. 693–695 nature of principle …. 700 integrity of an industry, protection of …. 697A

outlined …. 690–692 protectionism …. 699–699A revenue protection …. 697A Commonwealth laws …. 692 free trade theory …. 675–676, 678 inspection charges …. 784–785 interstate intercourse …. 702–705 original understanding …. 675–676 pre-Cole case law agricultural stabilisation schemes …. 876–877 border-hopping …. 881 control of sales …. 870 individual rights theory …. 678–689, 698–699, 875–878 interstate character of activities …. 879–881 lotteries …. 874 marketing cases …. 851–852, 858, 872–873 nationalisation …. 860–862 price fixing …. 869 regulation-prohibition test …. 864 transport cases …. 853–854, 859 relationship with trade and commerce power …. 674, 689, 692 Territories …. 828 Freedom of movement implied …. 130 see also Freedom of interstate trade, commerce and intercourse Freedom of religion administrative acts …. 796 definition …. 797

establishment clause …. 798–799 free exercise clause …. 800–804 judicial acts …. 796 religious test …. 799A, 804A Freedom of speech in Parliament …. 195–196 see also Implied freedoms, political communication Full faith and credit …. 320, 751, 809–815 Goods and Services Tax …. 15, 714 Governor-General appointment …. 66–69 Commander in Chief …. 514–515 consultation with Chief Justice …. 495 deputies …. 837–838 executive power …. 480–489 Federal Executive Council …. 490–498 Letters Patent …. 67, 73, 838 Listed …. 66 Royal assent …. 473–475 salary …. 70–71 tenure, absence of …. 67 transfer of powers from State Governors …. 518–519 see also Reserve powers of Crown Governors, State …. 85, 95–96, 102–103, 115–116, 518–519, 779–780 Grants to States discrimination between States …. 718 special purpose …. 715–717

Gratuity …. 636–637 Guardianship of infants …. 302–303 High Court accrued jurisdiction …. 592 appellate jurisdiction …. 559–569 exclusive of State courts, jurisdiction …. 599–606 original jurisdiction …. 572–586, 599, 602 additional …. 587–594 pendent jurisdiction …. 592 power to remit matters …. 579, 586, 600 removal into from other courts …. 590, 601 special leave to appeal …. 562, 566 vesting of judicial power …. 552 see also Judiciary Historical materials originalism …. 29 use in constitutional interpretation …. 33 House of Representatives allowance of members …. 186–187 application of State laws …. 144–145 composition …. 121–122 confidence vote …. 78 disqualification of member …. 170–178 duration …. 138–139 election of …. 121–123 electoral divisions …. 140–141 first Parliament …. 134–135

hung Parliament …. 163, 502 member ineligible for election to Senate …. 168–169 number of members, alteration …. 136–137 preferential voting …. 123 qualifications of electors …. 142–143 qualifications of members …. 150–151 quorum …. 160–161 resignation of member …. 156–157 Speaker …. 152–155 vacancy by absence …. 158–159 voting in …. 162–163 writs for general elections …. 146–147 writs for vacancies …. 148–149 Hung Parliament …. 163, 502 Immigration power …. 325–331 Immunity of instrumentalities …. 204–205 Imperial legislative powers Commonwealth, exercise of …. 31, 402–406, 752 Implied freedoms generally …. 129–130 judicial power …. 551A political communication …. 123A–128G Implied nationhood power …. 415 Imprisonment punishment for contempt of Parliament …. 194 sentence as ground for disqualification …. 174 see also Prisoners Incidental power …. 407–416, 485, 486A Inconsistency of laws

covering the field …. 774–777 direct inconsistency …. 771–773 effect upon State laws …. 778 ‘laws’ …. 770 marriage power …. 301 operational inconsistency …. 777 service and execution of process …. 313–314 territory laws …. 825 Incorporation banks …. 268, 293 trading and financial corporations …. 293 Indivisibility of the Crown …. 212–216 Industrial power see Conciliation and arbitration power, Corporations power Infants …. 302–303 Influx of criminals power …. 332–333 Injunction …. 475, 585 Inoperative or spent provisions …. 50, 52, 59, 61, 165, 477 Insolvency power …. 275–276 Inspection laws …. 784–785 Insurance power …. 269–270 Intellectual property powers …. 277–281 Intercourse, interstate, freedom of …. 702–705 Internal security …. 239, 414, 487, 489, 816–817 International law Commonwealth legislative power not subject to …. 204 interpretation of the Constitution, use in …. 29 see also External affairs power Inter-State Commission …. 569, 733–735, 738–739

Interstate trade see Freedom of interstate trade, commerce and intercourse Interveners …. 37 Intoxicating liquids …. 786–787 Invalidity see Unconstitutionality Invasion …. 816–817 Iraq War …. 488 Irrigation …. 731–732 Joint sitting …. 462–472 Judicial cooperation …. 19 see also Cross-vesting scheme Judicial notice …. 242–243 Judicial power arbitration, commercial …. 533 combination with non-judicial power …. 541–544 communications about legal services …. 551A conciliation and arbitration …. 393 conclusiveness …. 528–533 constitutive versus interpretative power …. 535–537 controversy …. 524 delegation …. 538 designated person …. 544–545 detention, power of …. 539–540 extradition …. 540B generally …. 23–24 interference with court’s discretion …. 548–551 justiciability …. 575, 580

Kable principle …. 610–610G opinion as to legal rights and obligations …. 527 persona designata rule …. 544–545 policy, consideration of …. 527 pre-existing standards …. 525–526 preventive restrictions upon individuals …. 540A prosecutorial discretion …. 537 removal from Australia …. 540B repository of power …. 537A separation of judicial power …. 521–522, 541, 827, 828B service tribunals …. 546–547 vesting of …. 520 Judicial review defence power …. 240–242 effect of …. 38, 868 judicial restraint …. 247 Parliamentary procedure …. 428, 468 Presumption of validity …. 25 Judiciary appointment of federal judges …. 554–555 cross-vesting scheme …. 611 independence and impartiality …. 610C–610D, 610H institutional integrity …. 610B–610G jurisdiction exclusive of State courts …. 599–606 jurisdictional error, review of …. 568, 586 number of judges …. 614–615 Parliamentary Commissions …. 557 Parliamentary power to define jurisdiction …. 595–606 removal …. 557

remuneration …. 558 tenure …. 556 see also High Court Jury, trial by …. 616–622 Justiciability …. 575, 580 Kable principle …. 610–610G Kirk principle …. 568 Lake Eyre Basin Intergovernmental Agreement …. 17 Legal tender …. 263–264, 793–794 Legislative cooperation …. 17 Legislative power …. 63–65 Letters Patent Governor-General …. 67, 73, 838 Lighthouses power …. 253–254 Loan Council …. 18, 745–746 Loan Fund …. 721 Locus standi see Standing Magna Carta …. 204 Majorities of Parliament …. 163, 462, 841 Mandamus …. 583, 585 Maritime jurisdiction …. 593 Marriage power …. 295–301 Matter …. 36B, 574–575 Matrimonial causes power …. 302–303 Melbourne …. 835

Melbourne Corporation principle …. 207–211 Meteorological observations power …. 255–256 Military see also Commander in Chief see also Defence power see also Internal security Ministers of State Cabinet …. 506 must sit in Parliament …. 500–502 number …. 508–509 Parliamentary Secretaries …. 505, 509 request for dissolution …. 507 salaries …. 510–511 Mirror legislation …. 18 Misbehaviour High Court …. 556–557 Interstate Commission …. 738–739 Monarchy …. 31, 47–48, 65–69, 406, 844 Money see Appropriation, Coinage, Spending Power Money bills …. 426–438 Murray-Darling Basin …. 17 National Laws …. 17 Nationhood power …. 415 Naturalization power …. 282–283 Nauru, original jurisdiction of High Court …. 591 Navigation trade and commerce power …. 722–724

New South Wales …. 835–836 New States …. 820–821 New Zealand …. 5, 9, 57 No confidence vote …. 78 Norfolk Island …. 828–828B Northern Territory …. 56, 828–828B Number of sections in the Constitution …. 10, 846 Oath of allegiance …. 166–167 Office of profit under the Crown …. 176 Offshore constitutional settlement …. 260, 404 Originalism …. 29 Original States …. 9, 56, 82, 134–135, 711 Pacific Islands relations with, legislative power …. 342–343 Pairing arrangement …. 163 Paper money …. 264 Parental rights …. 302–303 Parliament confidence vote …. 78 deadlocks between Houses …. 456–472 dissolution …. 78 double dissolution …. 439, 458–461 intra-mural activities …. 428 joint sitting …. 462–472 jurisdiction of courts, power to define …. 611 legislative power …. 63–65

privileges …. 188–197, 469 prorogation …. 74, 77, 194, 472 recommendation of money votes …. 454–455 rules and orders …. 198–199 sessions …. 76, 79–80 summoning …. 75–77 yearly session …. 79–80 Parliamentary privileges …. 188–197 Parliamentary Secretaries …. 505, 509 Patents power …. 279 ‘Peace, order and good government’ …. 202 Pendent jurisdiction …. 592 Pensions legislative powers …. 304–307 transferred officers …. 636–637 Placita …. 10 Plural voting …. 87, 143 Political communication, implied freedom of …. 123A–128G Political parties …. 103 Postal power …. 235–237 Preamble …. 41–42 Precedent …. 34–34A Preference …. 725–730, 736–737 Preferential voting …. 123 Prerogative powers …. 68, 488 President of Senate …. 107–110 Presumptions effect of legislation upon Crown …. 212–216 validity, of …. 25

Prime Minister …. 78, 491, 494, 501–507 Prisoners Commonwealth …. 818–819 disenfranchisement …. 123 see also Imprisonment Privative clauses …. 568, 586 Privy Council …. 32, 570–571, 602 Progressivist interpretation …. 29 Prohibition, writ of …. 583–584, 586 Promissory notes power …. 273–274 Proportionality …. 35, 128G, 409 Prorogation of Parliament …. 74, 77, 194, 472 Prospective overruling …. 34A Public debts of States …. 742–747 Public Service civil servants appointment …. 512–513 legislative power …. 424 transfer of departments …. 516–517 Purposive powers …. 28, 35, 201, 240, 310 Quarantine power …. 257–258 Queen assent to reserved Bills …. 478–479 disallowance of Bills …. 476–477 head of state …. 48 of Australia …. 48 position in legislative structure …. 64 succession to the Crown …. 406

successors to …. 47–48 Queensland …. 83 Quorum …. 117–118, 160–161 Quota …. 121–122 Race power …. 321–324 Racism former exclusion of Aborigines from counting in population …. 839–839A races disqualified from voting …. 132–133 Railways legislative powers …. 370–375 rates …. 740–741 trade and commerce power …. 722–723 Reading down …. 25 Recognition of State laws legislative power …. 319–320 Reference power …. 303, 396–401 Referenda …. 846 Religion see Freedom of religion Remuneration Tribunal …. 187, 483, 511 Repeals …. 58–59, 202, 766–768 Representative democracy …. 87, 124–125 Representative government …. 87, 125, 127, 395 Request of legislation …. 402–406 Reservation of Bills …. 473–475 Reserve powers of Crown …. 78, 439–441, 493–495, 503 Reserved powers doctrine …. 204–205 Residents in States

constitutional immunity …. 805–808 Resignation …. 107–108, 111–112, 152–153, 156–157 Responsible government …. 127, 440, 481, 491, 497, 502, 505, 828A Restitution …. 38, 868 Retrospective laws …. 202, 548–549, 551 Rivers …. 731–732 Royal assent …. 473–475, 478–479 Royal style and titles …. 48 Rule of Law …. 583 Salaries …. 70–73, 510–511, 558, 636–638, 738–739 Seat of government …. 419, 835–836 Secession …. 844A Self-governing colony …. 60–61 Senate allowance of senators …. 186–187 casual vacancies …. 102–103 composition …. 81–85 disqualification of senator …. 170–178 election …. 88–96, 184 equal power over non-money Bills …. 438 equality of representation …. 84 Gair vacancy …. 96 law-making powers …. 433–438 money bills …. 433–437 number of senators …. 84 original States …. 84 place in legislative structure …. 12, 82, 438, 440, 486

President …. 107–110 qualifications of electors …. 86–87 qualifications of senators …. 104–106 Queensland senators …. 83 quorum …. 117–118 resignation of senators …. 111–112 rotation of senators …. 97–101 senator ineligible for election to House …. 168–169 term of senators …. 85 Territorial senators …. 82, 830 vacancies …. 102–103, 113–116 void election …. 105–106 voting in …. 119–120 writs for elections …. 95–96 Separation of powers …. 20–24, 65, 481, 483, 521–522, 541, 610G, 827, 828B Service and execution of process legislative power …. 311–318 Service offences …. 244–245 Service Tribunals …. 546–547 Sessions of Parliament …. 74–80 Severance …. 39–40 Simple majority …. 163 Sinking fund …. 745 Social Services power …. 306–310 South Australia …. 57 Sovereignty, acquisition of …. 30 Speaker of House …. 152–155 Specific Purpose Payments …. 15

Spending power …. 485–486A, 626–629A Standing …. 36–36B, 630 States acquisition of property by …. 369A acquisition of property from …. 367 acquisition of State railways …. 370–371 alteration of limits …. 831–832 appeals from Supreme Courts …. 562, 568 banking …. 267, 294 capacity to function, laws affecting …. 207–211 coinage of money …. 793–794 Commonwealth prisoners …. 818–819 Commonwealth taxation …. 228 Constitutions …. 206, 748–756 courts …. 607–611 debts …. 742–747 defined …. 56–57 discrimination between States and Commonwealth taxation …. 229–230 discriminatory laws …. 207–211 federal jurisdiction of State courts …. 607–611 formation of new States …. 833–834 full faith and credit to State laws …. 751, 809–815 Governors …. 779–780 inconsistency between Commonwealth and State laws …. 769–778 inspection charges …. 784–785 insurance …. 269–270 intoxicating liquids …. 786–787 invasion and domestic violence …. 816–817 jurisdiction of federal courts exclusive …. 599–606

laws binding Commonwealth …. 756–760 matters between …. 580 new States …. 820–821 offshore constitutional settlement …. 260, 404 original States …. 56, 84 powers of Parliaments saved …. 761–762 preference …. 725–730, 736–737 proceedings against …. 612–613 raising of forces …. 789 recognition of laws …. 319–320 reference of powers …. 303, 396–401 request of legislation …. 402–406 reserved powers doctrine …. 204–205 residents of different States, matters between …. 581 residual powers …. 203, 762, 765 same subject matter claimed under laws of different States …. 594 saving of laws …. 766–768 secession …. 844A State and a resident of another State, matters between …. 582 Supreme Courts …. 562, 568 surplus revenue of Commonwealth …. 14, 710 surrender of territory …. 781–782 taxation of Commonwealth and State property …. 790–792 transfer of property of State …. 639–640 uniform duties of customs …. 707–712 water, right to use …. 731–732 see also Concurrent legislative powers see also Exclusive legislative powers

see also Full faith and credit see also Grants to States see also Residents in States see also Transfer Statistics power …. 261–262 Students, benefits to …. 307 Subject of the Queen …. 806 ‘Subject to this Constitution’ …. 204, 211 Suffrage …. 87, 142–143, 164–165 Supreme Courts of the States …. 562, 568 Surplus revenue of Commonwealth …. 14, 710 Surrender of territory by States …. 781–783, 829 Sydney …. 835 Tacking …. 443, 445 Taxation executive power …. 488 laws imposing …. 430–433, 444–453 legislative power …. 223–230 Telegraphic power …. 235–237 Telephonic power …. 235–237 Temporary provisions …. 394–395 Territories Commonwealth legislative power …. 823–827 domestic violence …. 817 excise duties …. 651 full faith and credit and Territory laws …. 813 legislatures …. 828

limitations upon Commonwealth and Territory powers …. 813, 826–828, 828B self-government …. 824, 828 senators …. 82, 830 surrender of State territory …. 781–783 Tort …. 38, 612–613, 813–815 Trade and commerce legislative power …. 217–222 navigation …. 722–723 preference …. 725–730, 736–737 railways …. 722–723, 740–741 relationship with s 92 …. 674, 689 water …. 731–732 Trade Marks power …. 280 Trading corporations …. 287 Transfer departments …. 516–517 officers …. 636–638 property of State …. 639–640 Treason …. 174 Treasury …. 633–635 Treaty, matters arising under High Court jurisdiction …. 576 Trust fund …. 721 Unconstitutionality …. 38, 443, 449, 807, 868 United Kingdom British ships …. 55 foreign power …. 173

Imperial legislative powers, exercise by Commonwealth …. 31, 402–406, 752 relations with …. 31 Until Parliament otherwise provides …. 394–395 Void election …. 105–106 War, Royal prerogative …. 488 Water …. 731–732 Weights and measures power …. 271–272 Western Australia …. 49, 134–135, 711–712 Wrecks …. 724 Writs for elections …. 95–96, 146, 149