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Federal Constitutional Law
Introduction:
Constitutional law particularly concerns the extent and limits of the powers of the Legislature, the Executive and the Judicature and the limits of those powers. The study of constitutional law involves the analysis of the decisions of the courts in solving constitutional problems which arise when; people, associations or government challenge governmental action in the courts on the basis that constitutional powers have been exceeded or constitutional limitation on power have been breached. The parliament that enacts a challenged law must then point to a power or combination of powers that authorise it to enact that law. It must demonstrate that the law is sufficiently connected to the power or powers invoked to support it.
Constitutional law and politics:

Many may see Australia as a free country and a just society and presumably our Constitution reflects this sense of freedom and justice. It is perhaps surprising that the Constitution contains few protections of civil rights and liberties does not speak about many of the significant power imbalances in Australian society and presents few prescriptions for the achievement of just responses to many social issues. Constitutional reform would be necessary to accommodate the many demands for justice in Australian society. For these reasons, the ways in which and the extent to which people can inform its development is a critical issue. Constitutional law describes a system of government, which are informed by the doctrines of the rule of law, judicial review, separation of powers, representative government and popular sovereignty.
The Fundamentals of Australian Constitutional Law (Chapter 1)

The Rule of Law Doctrine of constitutional law in a democratic society where people can agree to set the terms and conditions of their own government through the mechanism of law A chameleon-like quality including, among other things parliamentary supremacy, judicial review of executive action, judicial review of legislative action, adherence to precedent, persistence in a minority opinion and the protection of human rights it is a complex mix of fundamental ethical and political principlesinfluenced by changing values and in turn they influence those who exercise authority in our society, most notably the judges - The Hon Keith Mason AC A V Diceys formulation of the Rule of Law

1. Absolute supremacy or predominance of regular law as opposed to the influence of arbitrary powerwe are ruled by law and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else Chu Kheng Lim v Minister for Immigrations (1992) 176 CLR 1 o A number of Cambodian nationals arrived by boat and were detained after their applications for refugee status were rejected. The Federal Court set up a hearing date to determine the question of whether the refugees had been unlawfully detained. However, before the hearing date, Parliament amended the Migration Act which stated that a court is not to order the release from custody of a designated person. o Ps challenged the constitutional validity of the amendments on the ground that the legislature had usurped the judicial power, which, by virtue of s71 and the separation of powers, was vested exclusively in courts set up in accordance with Ch III of the Constitution. o A majority of the High Court struck down the amendments, stating that it is: Beyond the legislative power of the Parliament to invest the Executive with an arbitrary power[as] the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is ruled by the law and by the law alone and may with us be punished for a breach of the law, butcan be punished for nothing else.
Compare this to the decision in: Fardon v Attorney General of Queensland
2. Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts A v Hayden [No 2] (1984) 156 CLR 532 o Government officials are not exempt from the duty of obedience to the law that applies to any other cititzen. o The Minister for Foreign Affairs authorised members of the Australian Security Intelligence Service to recruit and train a small team of persons to engage in an exercise involving the rescuing of a participant hostage from a room of the Sheraton Hotel in Melbourne. The team were equipped and hotel staff was not informed of the operation. o Brennan J held that, the principleis that all officers and ministers ought to serve the Crown according to the lawsthere is no obsolete rule; the principle is fundamental to our law, though it seems sometimes forgotten when the executive government or their agencies are fretted or frustrated by laws which affect the fulfilment of their policies
3. Power comes from the people. The constitution is regarded as a reflection of, but remaining subject to, the power of the people to change it. The laws of the constitution are not the source but the consequence of the rights of individuals, as defined and enforced by the courts. Preamble of the Constitution reflects that the Constitution was a result of the popular will:

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.
In Australia, this doctrine is reinforced by clause 5 of the Commonwealth of Australia Constitution Act 1900 (Imp): 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 The Constitution can only be changed by the people through s128 Geoffrey Lindell Explained Legal status of constitution ina british act of parliament Political Legitimacy Authority from people combines people having united. Role of People underlined by s128 Plaintiff S157 v Commonwealth (2003) 211 CLR 476 o Gleeson CJ stated that the Australian Constitution is framed upon the assumption of the rule of law
Judicial Review The rule of law places the courts, particularly the High Court, in a central position in the development of constitutional law. All of the Diceyan concepts of the rule of law are established on the proposition that the validity of all legislative (and executive) action is judged by the courts not the legislative or executive branch of government. The idea that the constitutional validity of all governmental action is subject to the review of the courts is the doctrine of judicial review. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 o The Cth enacted legislation which purported to dissolve the Australian Communist Party and gave the Governor-General the power to declare any organisation which supported communism to be illegal. The preamble stated that this law was necessary for the defence of Australia and the preservation of the nation. Communist challenged saying its judiciarys job to determine laws validity. o Dixon J struck down the legislation after referring to the legislative powers and limitations on power in the Constitution, saying that the Australian government is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.

o Fullagar J also pointed out that government under the Constitution means that the legislature may not simply state that it has the power to pass law as it cannot be made to depend on the opinion of the law maker. a power to make laws with respect to lighthouses does not authorise the making of a law with respect to anything which is in the opinion of the law maker, a lighthouse. Malbury v Madison (1803)US: o Madison working for new president Jefferson refused to honour judicial appointments of old government, including appointment of Marbury. Marbury sought mandamus to get them to honour appointments. Court who had no original jurisdiction ordered the mandamus and declared federal court supreme in exposition of the law of the constitution. o It was stated that the Legislature makes, the Executive executes and the Judicature construes the law. The power of judicial review was therefore recognised. o Cited in many Australian cases as authority.
The central significance of the rule of law and judicial review to an understanding of Australian constitutional law was emphasised by the unanimous High Court decision in Lange v Australian Broadcasting Corporation (1997): The Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified supremacy of the legislature. It placed upon the federal judicature the responsibility of deciding the limits of the respective powers of State and Commonwealth governments.
The decisions of ministers and public servants acting as the Crown in right of the Commonwealth are also susceptible to judicial review through the prerogative writs outlined in s 75(v) of the Constitution. Section 75 (iii) and (v) provides: Original jurisdiction of High Court In all matters: o (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; o (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.
Plaintiff S157 v Commonwealth (2003) 211 CLR 476 o Gleeson CJ: o the Australian Constitution is framed upon the assumption of the rule of law o Gaudron, McHugh, Gummow, Kirby and Hayne JJ: o constitutional writs and the conferral upon this Court of an irremovable jurisdiction to issue them to an officer of the Commonwealth constitutes a textual reinforcement for what Dixon J said about the significance of the rule of law for the Constitution in

Australian Communist Party v The Commonwealth. [above]..Such jurisdiction exists to maintain the federal compact .. the ultimate decision-maker in all matters where there is a contest, is this Court s 75 limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review. BLF case o Cant reject a law purely because its bad policy. There has to be a legal reason. The Separation of Powers Under the Constitution, the powers of the Commonwealth are divided among three institutions: the Parliament, the Executive and the Judicature. This doctrine of separation of powers is reflected in the Chapter Divisions of the Australian Constitution. Chapter I The Parliament (commencing at section 1) The legislative power of the Commonwealth shall be vested in a Federal Parliament Chapter II The Executive Government (commencing at section 61) The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor General Chapter III The Judicature (commencing at section 71) The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia
R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 at 275 o Arbitration court was found in-able to exercise judicial duty which was needed to handle a contempt case. o If you knew nothing of the history of the separation of powers, if you made no comparison of the American instrument of government with ours, if you were unaware of the interpretation it had received before our Constitution was framed according to the same plan, you would still feel the strength of the logical inferences from Chaps. I, II and III and the form and contents of ss. 1, 61 and 71 cannot all be treated as meaningless and of no legal consequence.
It is the judicature that determines the boundaries of legislative and executive power. Due to the operation of responsible government and the principle that the Executive acts on the advice of the Legislature, in Australia a split exists between the Judicature and the other branches of government. Also based by judicial tenure guaranteed by s72 of the Constitution, which reinforces the independence of Ch III judges, court exercising Federal Jurisdiction or capable of being vested with Federal Jurisdiction enjoy the power to strike down legislative and executive action free from the presence of political influence (theoretically). o Eg Judicature has confirmed exclusive power of judicial review..to determine criminal guilt and will not take directions from the Legislature or the Executive

Marbury v Madison 5 US 137 (1803) o The difference between the departments (of government) undoubtedly is that the legislature makes, the executive executes, and the judiciary construes, the law. Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 o 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 If the purpose of the separation of powers is to check and balance the exercise of governmental power, its end is the preservation of liberty. o R v Davison (1954) 90 CLR 353 per Kitto J The separation of powers is necessary for the protection of the individual liberty of the citizen...dispersed rather than concentrated in one set of hands Thought the separation was meant to preserve liberty, questionable after fardon.
Representative Government The Constitution sets up a system of representative government and confirms the supremacy of the people within the Australian system of government. Lange v Australian Broadcasting Corporation (1997) 145 CLR 96 o David lange former NZ PM Defamed by 4 corners who argued freedom of communications arises from representative system of government. o Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively o The constitution intended to provide for the institution of representative and responsible government is made clear both by the Convention Debates and by the terms of the Constitution itself. o Sections 1, 7, 8, 13, 24, 25, 28 and 30 of the Constitution, give effect to the purpose of self-government by providing for the fundamental features of representative government. Therefore the sections ensure that the Parliament of the Commonwealth will be representative of the people of the Commonwealth. Representative government prescribed by the Constitution gives rise to implied freedoms: - freedom to discuss political and governmental affairs (Lange v Australian Broadcasting Corporation (1997)) - freedom of association and freedom of movement?? However, there are limits to the extent to which this system of representative government guarantees a broader vision of representative democracyparliament considerable discretion to alter the electoral laws..consequenly the type of representative government. McGinty v WA (1996) o WA voting system allowed some electorates with a lot less population than others. o Held state electoral laws for mal apportionment of electors were invalid. Langer v Cth (1996)

o Held parliament may prohibit people from promoting methods of casting votes and even imprison people for doing so.
Parliamentary Sovereignty: Katinyeri v Cth (1998) o Brennan and Mchugh held parliament has power to make or unmake, subject to judicial review When the Cth exercises its legislative power it is restricted by all of the express and implied limitations on power that operate in the Constitution that are applied by Ch III courts exercising their power of judicial review Apart from these limitations, the courts do no purport to assert an power to strike down laws on the basiss that they implement bad policies, the abuse of legislative power is not a reason for denying the existence of legislative power. In a system f representative government, elections are supposed to ensure that parliamentary supremacy is not absolute beuase the exercise of legislative power can be checked by the electorate. Lange v ABC (1997) o constitution displaced..English common law doctrine of the general competence and unqualified Supremacy of the legislature Mobile oil Australia PL v Victoria (2002) o Courts do not strike down legislation because its bad policy. Abuse of legislative power is no reason to deny powers existence. Power can be checked by the people.
Leslie Stephen(Dicey contemporary) said: If a legislature decided all blue-eyed babies should be murdered, the preservation of blue eyed babies would be illegal; but legislators must go mad .. and subjects idiotic
Responsible Government This is a system of government in which the executive, the administrative arm of government, is responsible to the legislature. The executive acts on advice of ministers, so long as they continue to command the support of the majority of the House of Representatives (or in the States, the lower House). These ministers in turn are responsible to the legislature and ultimately, the people at elections. Also executive dependent on Legislature for its funds.
Egan v willis (1998) 195 CLR 424 o Responsible Government does not require our elected representatives to behave responsibly, though we can make them responsible for their behaviour at elections. Per Gadron, Gummow, Hayne, Kirby JJ
Lange v Australian Broadcasting Corporation (1997) 145 CLR 96

o The requirement that the Parliament meet at least annually (s6), the provision for control of supply by the legislature, the requirement that ministers be members of the legislature (s83), the privilege of freedom of speech in debate, and the power to coerce the provision of information (s49), provide the means for enforcing the responsibility of the executive to the organs of representative government. The requirement that the parliament meet at least annually, the provision for control of supply by the legislature, the requirement that ministers be members of the legislature, the privilege of freedom of speech in debate, and the power to coerce the provision of information provide the means for enforcing the responsibility of the executive to the organs of representative government. In his Notes on Australian Federation: Its Nature and Probable Effects, Sir Samuel Griffith pointed out that the effect of responsible government is that the actual government of the State is conducted by officers who enjoy the confidence of the people. That confidence is ultimately expressed or denied by the operation of the electoral process, and the attitudes of electors to the conduct of the executive may be a significant determinant of the contemporary practice of responsible government
R v Kirby; Ex parte Boilermakers Society of Australia (1956): o Probably the most striking achievement of the framers of the Australian instrument of government was the successful combination of the British system of parliamentary government containing an executive responsible to the legislature with American federalism. This meant that the distinction was perceived between the essential federal conception of a legal distribution of governmental powers among the parts of the system and what was accidental to federalism, though essential to British political conceptions of our time, namely the structure or composition of the legislative and executive arms of government and their mutual relations. The fact that responsible government is the central feature of the Australian constitutional system makes it correct enough to say that we have not adopted the American theory of the separation of powers.
The role of the Governor General: Sections 62 and 64 combine to provide for the executive power of the Commonwealth, which is vested with the Queen and exercisable by the Governor General according to s61, be subject to responsible government. The principle of responsible government sees that the executive acts on the advice of the government. However, any remaining vestiges of foreign legislative power over Australia were removed by the Australia Acts 1986 (Cth), thus the Australian executive can no longer be directed by the Queen.

Most of the provisions of the Constitution reinforce the principles of responsible government by requiring that the Governor General act on he advice of the Federal Executive government when exercising certain powers (ss 32, 33, 64, 72, 103, 126 and 128). However, the Governor General enjoys reserve powers that do not expressly require advice from the Executive council (ss 5, 5 & 28, 57, 62 & 64, 68). This is reinforced by s63, a unique section in that it is the only section which prescribes a rule of construction for other provisions within the Constitution. The Governor Generals reserve powers and the possibility that they might be exercised independently of advice (E.g. The 1975 dismissal of Prime Minister Gough Whitlam) is a significant issue in current debates regarding the recognition of Australia as a republic.
The separation of Executive power: A separation of executive power does not really exist in Australia, as the separation of legislative functions from executive functions is less distinct than the separation of judicial power. The Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73 o So long as the Parliament does not abdicate its legislative powers, it may delegate regulation making power to the other branches of government and confer wide discretionary powers on its executive officers to execute and maintain the laws of the Commonwealth
Australian Independence PAST: - As pointed out by sir owen Dixon in 1935 contrasting our const from the us: in one respect the Constitution of our Commonwealth was bound to depart altogether from its prototype. It is not a supreme law purporting to obtain its force from the direct expression of a peoples inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the Kings Dominions. - The Cth Constitution is not a supreme law purporting to obtain its force from the direct expression of a peoples inherent authority to constitute a government. - It is a statute of the British Parliament. NOW: - The Statute of Westminster 1931 (UK) was adopted by Australia in 1942, confirming that the Commonwealth had full power to enact legislation having extraterritorial operation (s3). It also confirmed that the UK could not enact legislation with effect within Australia without the consent of the Commonwealth (s4). - The Australia Acts 1986 (Cth), reconfirmed that legislative sovereignty of the Commonwealth within Australia and the independence of the Australian States subject to the Constitution. The Act confirmed that the Parliament of the UK has no power to legislation in Australia (s1) and the States were given power to legislate with extraterritorial effect (s2(1)), and new powers, subject to the Constitution (s2(2)). Appeals to the Privy Council from the State Supreme Courts were also terminated (s11). Also confirmed that the states could enact legislation which was repugnant to the Imperial Parliament (s3(2)).

Sue v Hill (1999): o The effect of these has been to terminate Australias constitutional ties with the United Kingdom. However, the language of the Constitution still contemplates a significant role for the Queen in the exercise of Australian executive power, and the Governor General (her representative) clearly enjoys significant power. It has been argued that it is inconsistent with Australias status as an independent nation to have a foreign born head of state. However now queen called queen of Australia not eng For these and other reasons it was argued that Australia should take teps to confirm its status as an independent republic and remove all references to the Queen from the Constitution, but the referendum to do this failed
Popular Sovereignty The Preamble of the Constitution recites the agreement of the people of the colonies to unite in one indissoluble Federal Commonwealth. However, it needs to be recognised that the demands of many people were ignored or disregarded during the debates and polls preceding Federation. It can be concluded that the people today are Australian Citizens. The power of the people to change the Constitution under s128 and the continued acquiescence in its operation underpin the legally binging character of the constitution. The analogy of a contact or agreement between the people and their government is reinforced by cl 5 of the Cth of Australia Constitution Act 1900 (Imp)m which states: o This act, and all laws made by the Parliament of the Cth under the Constitution shall be binging on the courts, judges, and people of the every State and of every part of the Cth. Decline in the power of the UK means that the only source of legitimacy of the Constitution and of the powers exercised by the Cth is indeed, the consent of the governed and their acquiescence in the system prescribed by the Constitution. Citizens DJL v Central Authority (2000) o Aus mother wanted to keep child in Australia against American fathers wishes said child was a citizen so could return to Aus Caledonie v Cth (1988) and stay Robtelmes v Brenan (1906). Court rejected saying Constitution does not refer to the status of Citizen in relation to native born or naturalised people, citizen is subject of queen Note though singh v Cth (2004) Child born here to aliens is not an alien. Aliens Residents but not citizens and regulated under 51(xix) and state can decide who is te(2000) Breavington v Godleman (1988) o the compact between the Australian people, rather than the past authority of the UK parliament under the common law, [offers] a more acceptable contemporary explanation of the authority of the basic law of the Constitution. o The decline in the power of the United Kingdom in Australia and its removal by the Australia Acts means that the only source of the legitimacy of the Constitution and of the

powers exercised by the Commonwealth is the consent of the governed and their acquiescence in the system prescribed by the Constitution In the past: Only few people were involved in the development of the Constitution. Demands of many people were ignored or disregarded Kruger v Commonwealth (1997) 146 ALR 126 o It may be observed that a degree of inequality was lacking in the free agreement (which is said to underlie the Constitution)in that the referendum expressing that agreement excluded most women and many Aboriginals Therefore, the Constitution is to be read in accordance with history, the developed doctrines and within the contemporary social context. The concentration of the framers was with trade commerce and railways and a bill of rights was specifically rejected. International obligations: Australias relationship with other countries was largely conditioned by its historical and traditional connection with the UK. Today it is considered to be independent and has entered into treaties and international negotiations as a sovereign nation. Human Rights: Capacity of the Constitution to protect human rights was tested in Kruger v The Commonwealth (1997): number of Aboriginals challenged the constitutional validity of the NT Aboriginal Ordinance 1918 that authorised the Chief Protector of Aborigines to undertake the care, custody and control of Aborigines in the NT. They alleged that s was not supported by s 122 of the Constitution, because it interfered with their freedom of religion which was protected by s 116 of the Constitution, that is infringed an implied right of equality before the law, an implied right of freedom of movement and association and usurped the judicial power of the Cth by authorising punishment without due process. HC all of these arguments failed. They said that the constitutional validity of the law in the absence of constitutional safeguards has nothing to do with its morality. The constitution does not provide an express guarantee of equality before the law, nor does it guarantee racial equality or freedom from racial discrimination. The Cths power to make laws with respect to the people of any race for whom it is deemed necessary to make special laws (Constitution s 51 (xxvi)) can authorise the repeal or partial repeal of laws passed for the benefit of Aboriginal people pass laws. The Federal Parliament can discriminate against Aboriginal people: Kartinyeri v Commonwealth (1998). The Constitution contains no Bill of Rights and there are only several express constitutional rights and freedoms, generally cast and interpreted in narrow terms.
Original Owners of Land Aboriginal people were not even counted as people in sensus until repeal of s17.

Australia was regarded as Terra Nullius or empty land, until mabo (No 2) 1992
Section 51(xxvi) - Race Power The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect tothe people of any race for whom it is deemed necessary to make special laws. Amendment to s51(xxvi) - Constitution Alteration (Aboriginals) 1967 (Cth) other than the aboriginal race in any State deleted That part had been to allow states to handle aboriginals the way they saw fit. Mabo v Queensland (No 2) (1992) 175 CLR 1 Overturned past decisions and rejected the doctrine of terra nullius and recognized native title. Native Title not extinguished unless there be a clear & plain intention to do so. A Crown grant which is inconsistent with the right to enjoy a native title extinguishes native title: Aboriginal rights & interests not stripped away by operation of the CL on first settlement by British colonists, but by the exercise of a sovereign authority over land at 34 It was held that, assuming native title could be established in respect of the lands claimed, the State law extinguished native title and was in interference with property rights on racial grounds and was therefore inconsistent with the Racial Discrimination Act and in valid in accordance with s109 In Court Mabo recognised another source of law - traditional land law, distinct body in addition to CL of Aust In Aust, interest validly created by the Crown cannot be extinguished by the Crown without statutory authority Question as to whether Aboriginal Customary law can coexist alongside the Constitution where the Constitution is effectively sovereign Western Australia v Commonwealth (the Native Title Act Case) (1995) 183 CLR 373 WA gov sued cth to say native title act was unconstitutional and was invalid in WA. This was because aboriginals there had sued them saying wa leg was avoiding native title leg. The majority of court said that the common law is a body of created and defined by the courts. The history of the establishment of wa had not allowed crown to extinguish native title which had existed, and so native title was not rebutted. To rebut it it must have shown the crown clearly and plainly intended to extinguish all native title. So court held native title was valid under 51XXVI. Held that the Native Title Act was a valid law of the Commonwealth under s 51(xxvi) of the Constitution. At 422 At common law, a mere change in sovereignty over a territory does not extinguish pre-existing rights and interests in land in that territory. Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended. That presumption is applicable by the municipal courts .. determining whether .. Kartinyeri v Commonwealth (the Hindmarsh Island Bridge Case) (1998) 195 CLR 337

The second Hindmarsh island case. The aboriginal and tores staight protection act. Question arose as to whether the Act was beyond the races power. Brennan CJ & McHugh J o Held that since the original act was in power, then the amending act was Gaudron J (at 359 370) o Bare deletion of words other that aboriginals in 1967 does not effect a curtailment it augments the power o The deletion of the words other than the Aboriginal race in any State placed Aboriginals in the same position under the races power as any other race Position not altered by referendum Also power of 51Xxvi need not be used for all people of race in question Effect: The Federal Government can pass laws discriminating against Aboriginal people. Also it is not limited to aboriginal people. It can make laws discriminating against people of any particular race.
Kruger v The Commonwealth (the Stolen Generation Case) (1997) 190 CLR 1 Number of aboriginal plaintiffs challenged the NT aboriginal ordinance;, which said chief protector of aboriginals was responsible for are taking of aboriginals. At this time aboriginals were not counted as people and this ordinance allowing people to remove aboriginal children from their families. The ordinance was aimed at getting rid of aboriginals by breeding aboriginals with whites, which led to people being rejected by both. The plaintiffs argues it cold not be laws with respect to territories in accordance to s122 because it interfered with their freedom of religion protected by s116 and infringed constitutionally provided freeded implied by law. Brennan CJ o The Constitutional validity of a law has nothing to do with its morality. The Constitution does not provide an express guarantee of equality before the law And the legislation was not invalid Dawson J at 158 o It may be observed that a degree of inequality was lacking in the free agreement (which is said to underlie the Constitution) in that the referendum expressing that agreement excluded most women and many Aboriginals Constitutional Reform
Short of civil disobedience or revolution, the ultimate expression of popular sovereignty is the exercise of the power of the people to change the Constitution, and this can only be done by referendum under s128 of the Constitution. Chapter VIII Alteration of the Constitution Section 128 requires the approval of a majority of electors in a majority of States for any change to the Constitution. This double majority requirement has proven to be a significant hurdle. The changes have been:

The addition of s105A in 1929 regarding the management of State debts The addition of s51 (xxiiiA) which gives the Federal Parliament power to legislate with respect to the provision of maternity allowances, widows pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services and benefits to students and family allowances The removal of the reference to the Aboriginal race in s51(xxvi) in 1967 The repeal of s127 which provided that Aboriginal natives should not be counted in reckoning the population of the Commonwealth The amendment of s15 in 1977 ensured that casual vacancies in the Senate are filled by a person of the same political party as the departed senator Amendments to s72 to provide a mandatory retirement age for Federal judges Amendment of s128 itself, enabling residents of the Territories to participate in constitutional referenda
Federalism: Australia has a Federal system of government, with legislative power shared by the Cth and the States. Federal power over states: Concurrent powers and inconsistency of laws The distribution of legislative power in the Federal compact is in large measure worked out in s51 of the Constitution, which vests enumerated powers in the Cth. Many of these powers are enjoyed concurrently by the States, with the general residue of legislative power being left to the states: Attorney-General (Cth) v Colonial Sugar Co Ltd (1913) Conflicts which may arise are resolved by s 109 of the Constitution which renders a State law invalid to the extent of its inconsistency with Federal Law.
The Engineers Case: Rejection of state Reserved Powers and implied intergovernmental immunities. Until the engineers case the HC had developed and applied 2 doctrines that had a restrictive effect on the scope of Federal Constitutional Powers. o Implied intergovernmental immunities: To be a necessary implication from the Federal nature of Australian Government, that the Cth and the States were sovereign in the separate areas described by their respective Constitutions, and were therefore able to exercise their legislative power immune from the operation of the legislation fo the other: DEmden v Pedder (1904) o Doctrine of State reserved Powers: Cth could not exercise its legislative power in a way that interfered with the residual or reserved powers of the States falling outside the list of enumerated powers: R v Barger (1908) Engineers Case: confirmed that s 51 (xxxv) extended to enable the regulation of the States in their capacity as employers. The majority said that the conclusion that the Australian Federal System was based on a principle of Federal legislative supremacy that was reinforced by the presence of s 109 in the Constitution, which provides that State laws are invalid to the extent of their inconsistency with Federal Laws.
The implied autonomy and integrity of the States: the Melbourne Corporation Doctrine.

HC recognised an implication arising from the Federal structure of government contemplated by the Constitution that the Cth may no impose special burdens or disabilities on a State or States or destroy or curtail the continued existence of the States or their capacity to function as governments. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 The Melbourne Corporation challenged the constitutional validity of a section of Federal banking law which aimed to nationalise banking. This was said to be discriminatory in the sense that it was aimed at the States and the State authorities and that neither the Commonwealth nor the States are competent to aim their legislation at the other so as to weaken or destroy the function of the other. The High Court accepted this argument, and stated (considering the Engineers decision): this principle [the rejection of State reserved powers] does not mean that the States are in a position of subjects of the Commonwealth. The Constitution is based upon and provides for the continued co-existence of Commonwealth and States as separate Governments, each independent within its own sphere [And] federal laws which discriminate against the States are not laws authorized by the Constitution. The Melbourne Corporation Doctrine: is with regard to the regulation as States. The states as entities, and not specifically the people in the state. Education Union; Ex parte Victoria (1995) o Case concerned a federal award effecting state teachers, which was challenged on Melbourne corporations grounds and won. o Court restated Melbourne corporation limitations as two elements 1. Prohibition against discriminations.. on the states of special burdens 2. Prohibitions against laws of general application which operate to destroy states
State constitutional law and Federalism:
1.
A federal system of government
Australia has a federal system of government; with legislative power shared by the Commonwealth and the States. Professor Harrison Moore defined federal government in the following terms: A federal government exists where, in a political community, the powers of government are distributed between two classes of organization a central government affecting the whole territory and population of the Sovereignty, and a number of local governments affecting particular areas and the persons and things therein which are so far independent of each other that the one cannot destroy the other or limit the powers of the other, or encroach upon the sphere of the other as determined by the Sovereign in the Constitution. Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 Brennan, Deane and Toohey JJ at 274 The Constitution was enacted to give effect to the agreement reached by the people of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia to unite in one indissoluble Federal Commonwealth. The Constitution is no ordinary statute: it is the instrument to fulfil the objectives of the federal compact.

2. Federal power over the States: concurrent powers and inconsistency of laws The distribution of legislative powers in the federal compact is in large measure worked out in s 51 of the Constitution, which vests enumerated powers in the Commonwealth. Many of these powers are enjoyed concurrently by the States, with the general residue of legislative power being left to the States: Attorney-General (Cth) v Colonial Sugar Co Ltd (1913) 17 CLR 644 at 653654. The concurrence of legislative power creates the possibility of conflicts of laws between the Commonwealth and the States. These conflicts are resolved by s 109 of the Constitution, which renders a State law invalid to the extent of its inconsistency with Federal law. The Federal Parliament is vested with power to make laws on a series of enumerated subject matters. Commonwealth Constitution ss 51, 52, 76-78, 96, 121-123 Only a small number of the Federal Parliaments legislative powers are either expressed as: Exclusive, ss 52 ( involving seat of gov, control of cth public service and any other deemed exclusive), 90 (grants to the fed gov customs excise and bounty). Withdrawn from the State Parliaments, ss 114( withdrawn from stated ability to withdraw tax, 115 or coin currency). or may be regarded as intrinsically exclusive to the Commonwealth. s 51(iv)borrowing money on the credit of the cth, 51(xxix) external affairs power, 51(xxx) relations between cth of aus and pacific islands.
To understand the dynamics of the relationship between the Commonwealth and the States it is necessary to consider the extent of the Commonwealths power in its concurrent fields. The nature of this relationship was considered in the Engineers case: Amalgamated Society of Engineers v The Adelaide Steamship Company Ltd & Ors (1920) 28 CLR 129. Rejection of State reserved powers and implied intergovernmental immunities doctrines. 1. the doctrine of implied intergovernmental immunities, was based on a proposition, said to be a necessary implication from the federal nature of Australian Government, that the Commonwealth and the States were sovereign in the separate areas described by their respective Constitutions, and were therefore able to exercise their legislative power immune from the operation of the legislation of the other.
2. A second and related doctrine was the doctrine of State reserved powers. Also said to be an implication necessarily drawn from the Constitution, the doctrine of State reserved powers was that the Commonwealth could not exercise its legislative power in a way that interfered with the residual or reserved powers of the States falling outside the list of enumerated powers. In the Engineers case the majority said that the conclusion that the Australian federal system was based on a principle of federal legislative supremacy was reinforced by the presence of s 109 in the

Constitution, which provides that State laws are invalid to the extent of their inconsistency with Federal laws. Section 109 of the Constitution reads: 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 This denotes federal legislative supremacy. 3. The (residual) power of the States
The States: Peace, order and good government Constitution Act 1902 (NSW), s 5 The meaning of the phrase peace, order and good government was considered in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. In that case, the New South Wales Compensation Court made an order under s 46 of the Workers Compensation Act 1926 (NSW) awarding King, an employee of Union Steamship on a ship registered in New South Wales, compensation for boilermakers deafness.
Union Steamship challenged the award on two grounds in the High Court that s 46 was not a valid law for the peace, welfare and good government of New South Wales. The High Court considered the meaning of the phrase peace, order and good government and confirmed, unanimously, that the power it describes is plenary. It would be almost impossible to use wider or less restrictive language than the phrase peace, welfare (or order) and good government. McCawley v R (1920) 28 CLR 106 per Lord Birkenhead, PC. The High Court based its interpretation of the phrase peace, order and good government on the doctrine of parliamentary supremacy (sometimes referred to as parliamentary sovereignty). The colonies, the predecessors of the States, inherited their legislative power from the Imperial Parliament at Westminster, which enjoyed plenary power. The measure of Imperial parliamentary power was described by A V Dicey, as the right to make or unmake any law whatever. When the States became constituent parts of the Commonwealth, they retained this power subject to the Constitution (see s 106) and any subsequent constitutional developments which expanded or conditioned the exercise of legislative power (including the Statute of Westminster, the Australia Acts and any State constitutional amendments). In a system of representative government, (in theory), elections ensure that parliamentary supremacy is not absolute because the exercise of legislative power can be checked by the will of the people. Leslie Stephen, one of Diceys contemporaries, said that: the power of the legislature is, of course, strictly limited. It is limited, so to speak, both from

within and from without; from within, because the legislature is the product of a certain social condition, and determined by whatever determines the society; and from without, because the power of imposing laws is dependent upon the instinct of subordination, which is itself limited. If a legislature decided that all blue-eyed babies should be murdered, the preservation of blueeyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it. However, the parliamentary supremacy enjoyed in the States is said to operate subject to the Federal Constitution and its separation of judicial powers. This was confirmed in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51: a State Parliament may not invest jurisdiction and powers upon a State court of such a nature as to render them incompatible with the exercise by the same court of the judicial power of the Commonwealth. Also subject to a possible territorial limitation inherent in the grant of legislative power to the States and also to an implied freedom of communication in State constitutions, Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. The legislative power of the States is as ample and plenary as the power possessed by the United Kingdom Parliament. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10.
4. The States have extraterritorial legislative power Section 2(1) of the Australia Act 1986 (Cth) states: 2. Legislative powers of Parliaments of States (1) It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation. While s 2(1) confirms that the States have power to pass legislation with extraterritorial operation, there must be a connection between the State and the matter regulated. This requirement was explored in Pearce v Florenca (1976) 135 CLR 507. In that case, Florenca, a fisherman in Geraldton, Western Australia, was charged under State fisheries legislation with the offence of possession of undersized rock lobsters. The Western Australian law referred to Western Australian waters which were defined to include, among other places, the sea from high-water mark to three nautical miles from low-water mark. It was alleged that Florenca had committed the offence some one and a half miles off the coast of Geraldton. A Western Australian magistrate dismissed the charges on the basis that the Seas and Submerged Lands Act 1973 (Cth), a Federal law regulating Australias off-shore waters, rendered the Western Australian law inoperative in any area below the low-watermark of the coast of Western Australia. A threshold question was whether the State law was invalid. Gibbs J said that the test of State

extraterritorial power: should be liberally applied, and that legislation should be held valid if there is any real connexion even a remote or general connexion between the subject matter of the legislation and the State: at 518. The basis of this territorial limitation lies in the need to avoid the legislation of one State encroaching on the matters dealt with in legislation of another State. That is, it is in the interests of the federation that the States must have some territorial restriction on their competence: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14. The terms in which the legislative powers of the States are defined express a territorial limitation on that power, so that a State Parliament may only legislate for persons, events or things outside Australia where the subject of the legislation is sufficiently connected to the territory of the State. Commissioner of Stamp Duties (NSW) v Millar (1932) 48 CLR 618. Although the (CTH) Australia Act 1986 (the Act) declares that each State Parliament has power to make laws having an extraterritorial operation, such laws are still required to be laws for the peace, order and good government of that State. (CTH) Australia Act 1986 s 2(1). 5. State law can operate in the field left vacant by Federal law, even a field in which the Commonwealth has exclusive power
Although the Engineers case confirmed the legislative supremacy of the Commonwealth, the Commonwealths powers, even their exclusive powers, do not operate automatically to reserve any topics of legislation to the Commonwealth. For example, while the Commonwealth enjoys exclusive power with respect to defence (see ss 51(vi) and 114 of the Constitution), the States may regulate matters which have an effect on defence matters where no Federal legislation overrides the State law to the extent of its inconsistency under s 109. This principle was confirmed in Pirrie v McFarlane (1925) 36 CLR 170. The Commonwealth has exclusive powers to make laws with respect to matters relating to naval or military defence. If the prohibition against driving a motor car without being licensed under State law is reasonably capable of interfering with the naval or military defence of the Commonwealth or of the States, the Commonwealth Parliament has ample power by legislation to confer on members of the Defence Force the right to drive a motor car in the performance of their duty without being licensed under State law. If Parliament chose, it can exempt them from the obligation to obey this provision of State law; but, in my opinion, it has not yet done so. No repugnant or inconsistent Commonwealth legislation stands in the way of the State law on this subject, and such law remains valid and binding in Victoria by virtue of sec 107 of the Constitution. The distribution of legislative power under the Commonwealth Constitution is not based on a concept of mutual exclusiveness; the powers granted to the Federal Parliament by Commonwealth

Constitution s 51 (the principal list of its legislative powers) are not exclusive, but instead remain available, so far as their subject matter permits, for exercise by the States, subject only to the terms of Commonwealth Constitution s 109 in the event of inconsistency with a Commonwealth law: Actors and Announcers Equity Assn of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 191 per Stephen J (a function of Commonwealth Constitution s 109). 6. The extent of State power to regulate the Commonwealth State laws can affect the Commonwealth in its ordinary capacities that is, when it engages in transactions as an ordinary legal person (for example, as a lessor of property): Commonwealth v Bogle (1953) 89 CLR 229 at 259 260 per Fullagar J, with whom Dixon CJ, Webb, Kitto and Taylor JJ agreed. However, the States may not restrict the capacity of the Commonwealth to exercise its executive power that is, the power of the Commonwealth, its servants or agents to execute the laws of the Commonwealth: Re Residential Tenancies Tribunal of New South Wales & Ors; Ex parte Defence Housing Authority (1996) 146 ALR 495. The Defence Housing Authority, an agency set up under Federal statute to provide housing for the defence forces, argued that as a federal agency they were protected them from the operation of State residential tenancies legislation. Dawson, Toohey and Gaudron JJ, with whom Brennan CJ, McHugh and Gummow JJ agreed, rejected the DHAs submission and said: there is nothing which would suggest that the Crown or its agents enjoy any special immunity from the operation of laws of general application, State or federal. Indeed, the contrary is affirmed. The rule of law requires such a result While the principle that executive power must be exercised in accordance with the law applies to both Commonwealth and State government, the Commonwealth enjoys a paramount position within its areas of legislative competence because of s 109 of the Constitution. Within the scope of its grant of legislative power, the Parliament of a State is no less supreme than the Parliament of the Commonwealth, although State legislation which is inconsistent with Commonwealth legislation is inoperative under s 109 of the Constitution to the extent, and during the continuance, of the inconsistency. As the majority noted in the Engineers case, the presence of s 109 in the Commonwealth Constitution indicates that supremacy, where it exists, belongs to the Commonwealth. Subject to s 109, State statutes apply to the Commonwealth when it engages in activities in the same way as ordinary citizens.

The High Court, Constitutional Interpretation and the Characterisation of Federal Laws (Chapter 2)
The justices of the High Court play a critical role in establishing the context within which constitutional decisions are made. The establishment of principles of constitutional interpretation and the developed methods of characterisation both embody assumptions about the meaning of language which provide an indication of the boundaries of permissible constitutional dialogue. The High Court The High Court of Australia is established by s71 of the Constitution, which states that: The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia [which] shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. HC is the ultimate appellate court, it interprets statutes of the Cth, States and Territories. It also develops the common law and makes constitutional law. Alfred Deakin stated that: The Constitution is to be the supreme law, but it is the High Court which is to determine how far and between what boundaries it is supreme. The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power. Lange v ABC (1997) 146 ALR 96 o The Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified supremacy of the legislature. It placed upon the federal judicature the responsibility of deciding the limits of the respective powers of State and Commonwealth governments.
Judicial discretion: law v policy The political consequences of judicial decision-making can give rise to a perception that the High Court makes political decisions, or legal decisions motivated by political views, rather than legal decisions. I was stated in OToole v Charles David Pty Ltd (1990) by Brennan J: Nowadays nobody accepts that judges simply declare the law; everybody knows that, within their area of competence and subject to the legislature judges make law. Judges recognise that policy decisions can play a decisive role in the shaping of legal principles: Precision Data Holdings Pty Ltd v Wills (1991) 173 CLR 167

The authoritative exposition of the meaning of the Constitution necessarily involves policy considerations, because: the Constitution is a political instrument: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 The political consequences can give rise to the perceptions of judges, specially JJ Murphy and Kirby. Even those who criticize activism such as Heydon J practice activism.
Legalism Judges take an oath to the law held to be a very powerful position. One philosophy of judicial action which eschews/shuns consideration of the political consequences of decision-making is legalism. Dixon CJs, in his swearing in speech, held that judges adopt an approach of strict and complete legalism in constitutional cases on the basis that the Constitution placed the judicature in a passive role of merely declaring and applying the law. His Honour believed that the confidence of policies in the integrity of the process of constitutional adjudication could only be ensured if judges were able to demonstrate strict and complete adherence to principles of legal reasoning. South Australia v Commonwealth (1942) 65 CLR 373 o This case raised the politically charged issue of the relative powers of the Commonwealth and States (taxing power in this case, first at bankrupts, post war) o Latham CJ stated that the: controversy before the court is a legal controversy, not a political [one]. It is not for this or any other court to prescribe policy or to seek to give effect to any views or opinion upon policy. We have nothing to do with the wisdom or expediency of legislation. Such questions are for parliament and the people.
Compare this to, OToole v Charles David Pty Ltd (1990) 172 CLR 232 o Brennan J who stated Nowadays nobody accepts that judges simply declare the law: everybody knows that, within their area of competence and subject to the legislature, judges make law.
Judicial Restraint Dixon CJ: It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental or settled legal principles to new conclusions or to decides that a category is not closed against unforeseen instancesit is an entirely different thing for a judge who is discontented with a result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience.

Thus a judge may place greater emphasis on the application of precedent than on the development of new rules that might clash with existing principles. The basis for this is that judges should be reluctant to overturn established principles merely because they disagree. Judges who subscribe to this approach may emphasise the role of parliament in leading legal change. Strong views are held about the propriety of failing to adopt a policy or restraint. This opinion was stated in the Union Label Case (1908) by Higgins J: only when we can not do justice..entitled to take out this last weapon from our armoury and was approved in Re Patterson; Ex parte Taylor (2001), by Gummow and Hayne JJ. The High Court is not limited by precedent but it has in the past restrained itself on that basis. E.g. in second uniform tax case though they thought they were wrong followed precedent of first uniform tax case.
Judicial Activism Kirby J: [An activist judge possesses]a special power with language that took its own momentumthe search for justice, adapting where necessary legal principles which appeared to stand in the way.
Principles of Constitutional Interpretation Principles of constitutional interpretation applied by the HC are diverse and sometimes seem to contradict each other. no one all embracing method of interpretation: SGH Limited v FCT (2002) per Gummow J. Literalism Literalism is the golden rule of statutory interpretation where the language of the Constitution is given its natural and ordinary meaning. The premise underlying this statement is that the meaning of a word, which might lead to a result in a case where the interpretation of constitutional language is at issue, can be arrived at through a discrete and objective process of analysis. Amalgamated Society of Engineers v The Adelaide Steamship Company Ltd & Ors (1920) 28 CLR 129 o The Engineers served a log of claims on a number of employers from a number of States concerning industrial disputes, which were refused. They then applied to the Commonwealth Court of Conciliation and Arbitration under the legislation which was purported to be authorised under s51 (xxxv) of the Constitution. The High Court was asked to consider the validity of the Federal Parliaments power under this section, which bound the State Government instrumentalities in their capacity as employers. This raised an important issue of constitutional interpretation, as a decision would obviously have a significant effect on the relationship between the Commonwealth and the States, as it would enable a Commonwealth body to regulate a State in its capacity as an employer.

o Up until this point, the High Court had applied two presumptions in the interpretation of the Constitution that restricted the power of the Commonwealth: Doctrine of Implied Intergovernmental Immunities Each of the Commonwealth and the States were regarded to be immune from the operation of the legislation of the other. Doctrine of (Implied) State Reserved Powers Under this doctrine, the Constitution was regarded to have reserved those powers, which are not specifically given to the Commonwealth, to the States. It was therefore necessary for the High Court to have regard to the powers reserved to the States before the ambit of the Commonwealth power could be ascertained. o The High Court rejected these doctrines on the basis that they were grounded on implications formed on a vague, individual spirit of the compact and which did not accord with the words of the constitutional text. It was held that there was nothing in the text of the Constitution that indicated any limitation on the power of the Commonwealth to exercise their power under s51 (xxxv) to regulate the State in their capacity as employers. o The High Court said that the words of the Constitution are to be given their natural and ordinary meaning and it is our duty to obey that meaning, even if we think the result can be inconvenient or impolitic or improbableunless the limitation can be found elsewhere in the Constitution, it does not exist at all. o The High Court adopted this approach and emphasised the immunity of this approach from political considerations. o ordinary principles of construction are applied so as to discover in the actual terms of the instru-ment their expressed or necessarily implied meaning o Taking a literal approach still involves policy choices. Those choices are just less apparent. Because they are founded in the social Background of the judges themselves
Implications The determination of the meaning of the Constitution is not restricted to its express language (as suggested in the engineers case, as it can extend to implications which may be made. This is defined as a suggestion that the text or structure of the Constitution represents some truth or the existence of some fact that is not expressly stated in its language. West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 o Dixon J noted that: Since the Engineers case, a notion seems to have gained currency that in interpreting the Constitution, no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems to last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers case meant to propound such a doctrine.
Examples of constitutional implications The implied freedom to discuss political and governmental affairs: Lange v ABC (1997)

The implied autonomy and integrity of the States: Melbourne Corporation v The Commonwealth (1947) (The high court had taken initially an approach protective of the states and then there was a shift to the cth. In this case the hc said that within the const it was implicit that the autonomy of states must be maintain and that the cth could not set out to cripple a state.) Implications arising from the separation of judicial power that only a court can prison and only on a finding of criminal guilt(only to be found on the grounds of necessity): Chu Kheng Lim v Minister for Immigration (1992)
Even the literal approach endorsed by the majority in Engineers requires that an implication be
made relating to the existence of a natural or ordinary context within which the constitutional text is inter-preted. Implications can only be made on the grounds of necessity. In the Engineers case, Knox CJ, Isaacs, Rich and Starke JJ said that the golden rule of statutory construction required the Court to discover in the actual terms of the instru-ment their expressed and necessarily implied meaning: at 155.
It can be seen that any interpretation involves implications by the interpreter as to the meaning of the language, as there if no such thing as the full meaning of a word itself, for meaning depends on context; and implications are part of the logical structure of language. (Michael Detmold) However, implications can only be made of the grounds of necessity: Engineers Case. Ultimately, the boundary of what might be perceived to be necessary implications is set by the text of the Constitution. Ultimately the boundary of what might be perceived to be necessary implications is set by the text of the Constitution McGinty v Commonwealth (1996) 70 ALJR 200 o Brennan CJ remarked: No constitutional implication can be drawn from the Constitution which is not based on the actual terms of the Constitution, or on its structure.
Extrinsic material Implications cannot be drawn from extrinsic materials or circumstances: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 Extrinsic materials and concepts can illuminate the meaning of the Constitution, but they cannot replace it: McGinty v Commonwealth (1996) 70 ALJR 200 Implications cannot be drawn from the nature of the society which operates the Constitution: cf McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 670 per Murphy J. Note: Murphy was one who more so than Kirby took the view that the role of court was to do justice and so that you did need to look at the nature of society when interpreting the constitution.
Historical origins and Contemporary standards Connotation and Denotation of Constitutional Language:

The starting point, is to interpret the constitution by reference to the intentions of the makers, to be deduced from the words used by the people who wrote the constitution interpreted in the historical context in which thy used them: McGinty v WA (1996). The High Court adopts an ambulatory approach considering both the connotation of the words (their original and essential meaning, which is fixed), as well as their denotation (the meaning of the words today). Note: Originalists only look at connotation. Union Label Case (1908) o So long as those new developments relate to the same subject matter the powers of the Parliament will continue to extend to them. For instance I cannot doubt that the powers of the legislature to as to posts and telegraphs extend to wireless telegraphy and to any future discoveries of a like kind, although in detail may be very different from posts and telegraphs and telephones as known in the nineteenth century Historical materials may be used to establish a context within which constitutional language may be interpreted. E.g. convention debates are permissible: Cole v Whitfield (1988) 165 CLR 360 o Reference to history may be made, not for the purpose of substitution for the meaning of the words used the scope and effect if such could be established which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged. R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 o The Court said that the language of the Constitution should be given its popular and contemporary meaning.
The Common Law context In the Engineers case, the judges said that the Constitution should be read naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric if the common law, and the statute which preceded it. Lange v ABC (1997) 145 ALR 96 o With the establishment of the Commonwealth of Australiait became necessary to accommodate basic common law concepts and techniques to a federal system of government embodied in a written and rigid constitution. o HC said constitution informs the development of the common law and vice versa. Common law developments therefore can effect the meaning of the constitution/
While the Constitution must be understood in its common law context, common law principles and concepts can develop over time, and this development can affect the meaning of constitution language. Cheatle v The Queen (1993) 177 CLR 541

o Cheatle was convicted of a Cth crime under S57 of the WA jury act which allowed for a majority verdict of the jury to decide the matter. o The HC unanimously held that the constitutional guarantee of trial by jury in s80 was to be understood in accordance with the common law history of criminal trial by jury at Federation, but adapted to accord with contemporary standards. o The HC drew a distinction between the essential and inessential features finding things like unanimity essential but gender and race of jurors not. Rules of Construction: Constitutional Powers The High Court has traditionally demonstrated deference to Parliament and interpreted legislative power with generosity. The words peace, order and good government are not words of limitation, but words to describe a power that is ample and plenary: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 The Commonwealth has the power to make laws with such qualifications and limitations as it chooses: Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 The power to make laws includes a power to unmake laws: Kartinyeri v Commonwealth (1998) 152 ALR 540 Attached to every express grant of power if an implied grant wide enough to make that express grant effective: DEmden v Pedder (1904) 1 CLR 91 Power to make laws as to any class of rights involves a power to alter those rights, to define those rights, and to extend the class of those who may enjoy the rights: Union Label Case (1908)
OSullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 o Norulunga meat a slaughterhouse operated in SA under a Cth meat exporters license. There were 2 Cth regulations in relation to this. Norulunga didnt hold a license under the state regs. Norulanga held the Cth regulations were inconsistent with the state ones so under 109 state laws were inconsistent. Cth regs were held to be valid under 51i. o Court said the cth possesses no power with respect to slaughterhouses, but does with respect to trade and commerce which gave it the right to legislate on condition and quality of meat which was going to be slaughtered. They said anything which will effect the export trade was a concern of the Cth, and that included anything at all that could effect the export market, including eg, packing, handling, quality etc. o So we can see with every express power there is an implied power so wide to make the express effective. This deference to the will of the Parliament is allied to the view that the Constitution is a document intended to sustain an evolving nations and provide the Commonwealth with the power to enact laws to meet changing and unforeseen circumstances. Where there is a conflict regarding the natural and ordinary meaning of the words in constitutional powers, the HC has indicated a preference for the broader or wider interpretation of the word or phrase. Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 o It must always be remembered that we are interpreting the Constitution broad and general in its terms, intended to apple to the varying condition which the development of

our community must involve[Therefore] the Court should, always lead to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretations will best carry out its objective and purpose. o This principle was affirmed in: Australian National Airlines (ANA) v Commonwealth (1945) Where the HC was invited to consider a submission that the power to regulate trade and commerce under s 51(i) of the Constitution could not authorise the Cth to set up a government trading enterprise. The court rejected this. Gave the words in the constitution a broad meaning and found the Cth did have the power. Constitution we are interpreting, an instrument of govern-ment meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances.
R v Commonwealth Concilia-tion and Arbitration Commission; Ex parte Professional Engineers Association (1959) 107 CLR 208 Looked at meaning of word industrial for the purposes of s51(xxxv) Only refered to blue collar workers, didnt refer to teachers, professionals Court here rejected that and said that while initially it might have only meant blue collar, it now means employees and employers R v Coldham; Ex parte Australian Social Welfare Union (CYSS Case) (1983) 153 CLR 297 Court considered the meaning of industrial for the purposes of s51(xxxv) Again court found industrial means employee employer relations
Constitutional Guarantees The Court has said that it adopts a similar broad approach in relation to some constitutional guarantees. Bank of NSW v The Commonwealth (1948) 76 CLR 1 o Dixon J at 349 consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect. Although in relation to certain guarantees under eg s 41 voting , 80 trial by jury and 116 freedom to religion, court has taken a fairly narrow approach in interpreting the words(in relation to these express guarantees).
However, it should be noted that the Commonwealth exercises its legislative powers under ss 51 and 52 of the Constitution subject to the Constitution, including any express or implied limitations which arise from the Constitution. Therefore, the legislative power of the Commonwealth is restricted by the rule of

law, the separation of powers, responsible government, the Melbourne Corporation doctrine, and each of the express and implied limitations in the Constitution recognised by the High Court. Harmonious Interpretation Constitutional provisions should not be construed as if they are mutually exclusive, to the extent that one provision might, in effect, override an express limitation in another provision. E.g. The Commonwealth may not use its power with respect to financial corporations to regulate State banking even where a State bank may be regarded as a type of financial corporation, as this would contravene the express limitation on the Commonwealths banking power under s51 (xiii) to banking other than State banking. : Bourke v State Bank of NSW (1990)
Characterisation Every Federal law must be supported by one or more of the Commonwealths enumerated (or exclusive) powers. 1. Identify the power or powers which the Commonwealth might invoke to support the Federal Law: must be supported by one of its enumerated power found in section 51. 2. The power(s) must be interpreted, and their scope ascertained: does a connection exist? Eg. Naralanga meats, the scope of the power was broad enough to cover packing. 3. The law which is said to be supported by the power(s) must be characterised in order to ascertain whether it is a law with respect to the subject matter of the identified power(s): a. There must be a sufficient connection between the law and the power(s) invoked to supports it. b. You must look at the constitution and the law itself with regard to the area. 4. Consider whether there are any express or implied constitutional limitations which might render the Commonwealth law invalid. Grain Pool of WA v Commonwealth (2000) Court considered whether legislation extending protection to plant breeders rights fell within s 51(xviii), the parliaments power with respect to, among other things, patents of inventions. The entire court concluded that the phrase should be given an ambulatory construction, and included plant breeders rights as a newly recognised type of invention. Whether a law falls within the head of constitutional power: Constitutional test is to be construed with all the generality which the words use admit. Consider whether the word(s) answers the description, and to disregard the purpose of the object. Whether the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. Practical as well as legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power

If a sufficient connection exists, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice. Law and Policy To determine whether a law is supported by Federal power, a Court considers whether the law may be properly described as a law with respect to a power or powers. If the subject matter of the law is sufficiently connected to the subject matter of the power, then the court will not be concerned with the policy of the law, thus they are only interested in the technical idea of the law. Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 o This case concerned Federal legislation which removed tax exemptions from superannuation funds unless investments were made into public stocks and bonds. The legislation was challenged on the basis that its motive was to encourage and compel certain types of investment rather than to raise revenue, therefore it was argued that it was not a law with respect to taxation. o Kitto J held that: The main preoccupation of those who enacted ithas nothing to do with the question of constitutional validity under s51 of the Constitution. Under that section, the question is always one of subject matter to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, power and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, with respect to, one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth affect its character? o He basically concluded that the underlying purpose or reason for the enactment isnt important, if it is sufficiently connected to the enumerated powers it is a law, under that power. The court is not concerned with the motive, policy or purpose. It is concerned about the formal legal operation.
This approach has been approved and applied by the High Court on numerous occasions.
Substance and Form: what parliament says a law does, and what the court say it actually does: The distinction between substance and form can be described as a distinction between what the law actually does (its practical operation and effect) and what the law says it does (its formal, legal operation). When a Federal law is characterised for constitutional purposes, the Court is not concerned with the substance of the law in the sense of its motive, purpose or policy. This principle was confirmed in: Murphyores Pty Ltd v Commonwealth (1976): o Concluded that the Fairfax principle was correct. Osborne v Commonwealth (1911) 12 CLR 321

o The purpose for which the measure is enacted, that is for which the power is exercised, is exclusively a matter for the legislative mind, and is not open for review by a Court of law. However, the Engineers case removed the need to consider the substance of a law in situations where it trenched on State reserved powers. Dont need to consider this. Dual and Multiple Characterisation A law with respect to taxation may equally be described as a law inducing investment in Commonwealth securities. However this does not provide sufficient reason to conclude that the law is outside power. After the Engineers case, it follows that since there was no need to consider State reserved powers, a Federal law might be supported by a Federal power and simultaneously deal with a topic which was not included among the Commonwealths enumerated powers. Therefore, if a Federal law can be characterised as a law with respect to one of the Parliaments enumerated powers, it is irrelevant that the law may also be characterised as with respect to a subject matter outside Commonwealth power. (eg Fairfax. law characterised as a revenue wasnt invalid just because it was also regulating investment which the cth normally couldnt do.) Murphyores Pty Ltd v The Commonwealth (1976) 136 CLR 1 o Re customs act, minister had to give approval to anything re export of mineral. There was a report re environmental effect of such exports. Murphyors had their export license cancelled until the report was complete, but challenged this leg. o It is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Commonwealth has no power to legislate Mason J Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1 o It is settled law that there is no general dichotomy between the grants of legislative power contained in the various paragraphs of s51. It is also settled that a single law can possess more than one character. It suffices for constitutional validity if any one or more of those characters is within a head of Commonwealth power. In determining validity, the task is not to single out the paramount character.
A Question of Degree Sufficiency of Connection It must be demonstrated that the law in question is sufficiently connected or incidental to the power or powers invoked by the Commonwealth to support it, in order for it to be valid. Re Dingjan; Ex parte Wagner (1995) 183 CLR 223 o This case concerned industrial relations legislation and the validity of whether the Commonwealth can use the power of s51 (xx) to regulate industrial relations between a Tasmanian pulp company and its sub-contractors. o No question with regard to the first relationship. o However, whether a sufficient connection was present between the 2nd contractors and Tas pulp Tasmanian Pulp was the issue. o In reaching a decision, the High Court was divided in a 4-3 split, emphasising the difficulty of the sufficiency of connection. It was held that the relationship between the company SC
Wag

and its 2 set of sub-contractors was not sufficiently connected to the power invoked by s51 (xx). o The question is whether there is a sufficient connection between the law and the subject matter to be able to say that the law is one with respect to the subject matterit emphasises that the connection must be substantial, not merely tenuous. Toohey J Purposive Powers: purpose in characterisation: While traditional principles of characterisation disregard the motive and policy of Federal laws, different considerations apply where the Court is asked to assess the connexion between a Federal law and a purposive power. Here the Court may consider the purpose of the law and whether the law is appropriate and adapted to the execution of the purpose. If it is not, then it may be held that the law is not sufficiently connected to the power. The purpose of the law refers not to the underlying motive but to the end or object the legislation serves: Kruger v The Commonwealth (1997) 146 ALR 126 Leask v The Commonwealth (1996) 187 CLR 579 o [The] character of an Act is determined by its operation and effect; its operation by reference to the rights, duties, powers or privileges that the Act creates or affects; its effect by reference to its operation in circumstances to which it applieswhen the operation and effect of an Act are ascertained, its connection or lack of connection with the subject matter of the head can be determinedthe basic test of validity remains one of sufficient connection between the operation and effect of the law on the one hand, and the head of power on the other. If the head of power is purposive (e.g. the defence power), the existence of a connection may be determined more easily by comparing the purpose of the law and the purpose of the power. But if the relevant head of power is non-purposive (as the taxation and currency powers are non-purposive) the validity of the law is more likely to be determined by reference to its operation and effect.
nd
Express and Implied Incidental Power Attached to every express grant of power is an implied grant of power wide enough to make the express grant effective: DEmden v Pedder (1904) Granall v Marickville Margarine Pty Ltd (1955) 93 CLR 55 o Every legislative power carries with it the authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter.
Precedent Constitutional precedent enjoys support to the extent that it is persuasive. As the High Court is the ultimate Court of Appeal in Australia, it has the power to overturn and make common law rules, and may choose to change the common law when its principles are manifestly unjust or inappropriate: Dietrich v The Queen (1992) 177 CLR 292

The High court is not bound by its own decisions in constitutional cases. Queensland v Commonwealth (1977) 139 CLR 585 o Past judicial decisions should not be elevated to a status higher than the Constitution itself. Australian Agricultural Co v Federated Engine-Drivers and Firemans Association of Australasia (1913) 17 CLR 261 o The oath of a Justice of this Court is to do right to all manner of people according to law. 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.
It would be inconsistent with the conception of the Constitution as a document capable of meeting changing needs and unforeseen circumstances to insist on the rigidity of constitutional precedent. It should be noted that a decision of an equally divided Full Court of the HC is not a binding authority upon the court in subsequent cases. The Function of Precedent Perpetual Executors and Trustees v Federal Commissioner of Taxation (1949) 77 CLR 493 o The decisions of a superior court have a double aspect, they determine the controversy between the parties, and in deciding the case they may include a statement of principle in which it is the duty of that court and of all subordinate courts to apply in cases to which that principle is relevant. Continuity and coherence in the law demand that, particularly in this Court, which is the highest court of appeal in Australia, the principle of stare decisis should be applied, save in very exceptional cases.
Although Note reluctant to go against own decisions: Hughes & Vale Pty Ltd v New South Wales (1953) o Kitto J: [e]ven in constitutional cases it is obviously undesir-able that a question decided by the Court after full consideration should be reopened without grave reason
High Court is not limited by precedent but it has in the past restrained itself on that basis. Eg in the second uniform tax case though they thought they were wrong they followed precedent of first uniform tax case. As continuity and coherence in law is a desirable end, it has been said that a constitutional case will not be overruled simply on the basis that it is wrong. Queensland v Commonwealth (1977) 139 CLR 585 o Aicken J:

The expression manifestly wrong has many times been used to indicate a basis upon which a prior decision has been overruled. With great respect to those who have used it, the expression, used without some qualification or explanation, suggests a subjective criterion not easily applied to distinguish one opinion from another. o Gibbs J: 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. The overruling of Precedent The importance of constitutional issues means that the High Court has at times demonstrated a greater willingness to reopen and reconsider cases involving constitutional questions: Street v Queensland Bar Association (1989) 168 CLR 461. However, the Court will exercise its power to reconsider or overrule a previous decision with great caution, because constitutional decisions cannot be altered by Parliament: Grollo v Palmer (1995) 184 CLR 348. John v Federal Commissioner of Taxation (1988) 166 CLR 417 o Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ identified four matters which might justify a departure from earlier decisions: o The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions. The third was that the earlier decision had achieved no useful result but on the contrary has led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration. A change in the composition of the bench, whether through the addition of new members or by virtue of the replacement of one Justice by another, is not a sufficient reason, by itself, to review a decision: Tramways case (No 1) (1914) 18 CLR 53 There is no logical reason why a decision should not be overruled simply because it is recent. In fact, the recency of a decision may provide a stronger reason for correcting it sooner than later: Queensland v Commonwealth (1977) 139 CLR 585 Prospective overruling is unconstitutional: Ha v New South Wales (1997) 146 ALR 355
There is perhaps no other part of constitutional law which so well exposes tendencies towards judicial activism and restraint. Validity There is no presumption by the High Court that a law is constitutionally valid. However, a law is assumed to be valid unless a party to a legal dispute questions the validity of a statute: Re Judiciary and Navigation Acts (1921) 29 CLR 257 In this circumstance, the Court will restrict its judgment to the impugned provisions and will act on the assumption that every valid provision in the statute would continue to operate as the Parliament intended, unless the striking down of that provision leaves behind legislation that is altogether different or different in substance to the original law: Pidoto v Victoria (1943) 68 CLR

87 and Bank of NSW v Commonwealth (1948) 76 CLR 1 respectively. In this case, the legislation may be struck down entirely. An invalid law is void ab initio If a law is found to be constitutionally invalid, then it was never valid, and therefore never operative: South Australia v Commonwealth (the First Uniform Tax case) (1942) 65 CLR 373
The Commonwealth and the States
The Commonwealths supreme legislative powers do not oust State laws except by their operation and application through legislation, and then only if the State laws are invalid to the extent of their inconsistency under s109. The position of the States compared to the Commonwealth: Chapter 1 and the States; Preamble of the Constitution describes the intention of the people who wrote the Constitution and the electors of the colonies to form an indissoluble Federal Commonwealth. Chapter 1, Pt V and the States: Concurrent Powers: Much of the legislative power of the Cth is described in Chap 1, Pt V. Broadly speaking there are 2 types of legislative power (concurrent and Exclusive): o Concurrent: Listed in s 51, however State law can operate in a field left vacant by Federal law. Although the Engineers case confirmed the legislative supremacy of the Cth, the Cths concurrent powers do not operate automatically to reserve any topics of legislation to the Cth. This principle was confirmed in Pirrie v McFarlane (1925) McFarlane was charged with driving on a public highway without a Victorian licence. As a member of the Air Force, he argued that he was immune from the State laws regulating traffic and licensing on the basis that he was employed by the Commonwealth and engaged in Commonwealth business at the relevant time. At trial this argument was accepted and the doctrine of intergovernmental immunities was applied. On appeal to the High Court, this same argument was raised and it was added that s52 gave the Commonwealth exclusive power with respect to the regulation of defence public servants, and therefore no s109 inconsistency could arise State laws were to be interpreted or read down as not applying to soldiers on duty. The High Court rejected McFarlanes argument and held that the implied intergovernmental immunities had to be read in light of the Engineers

case. The State law would only be inoperative if it was invalid to the extent of its inconsistency with a Federal law by virtue of the operation of s109. Knox CJ at 184: No repugnant or inconsistent Commonwealth legislation stands in the way of the State law on this subject, and such law remains valid and binding in Victoria by virtue of sec. 107 of the Constitution Confirmed there is no doctrine of implied prohibition, preventing the arrest of Cth executive officers
o Exclusive: (look at the next heading)
Federalism Australia has a federal system of government, with legislative powers shared by the Commonwealth and the States. The preamble to the Constitution refers to Australia as an indissoluble Federal Commonwealth. There are references to the federal nature of the Constitution throughout its text in relating to its federal nature including, notably, in ss 1, 61 and 71, the provisions that confer legislative, executive and judicial power on the three organs of Commonwealth Government. As defined by Harrison Moore: A federal government exists where, in a political community, the powers of government are distributed between two classes of organization a central government affecting the whole territory and population of the Sovereignty, and a number of local governments affecting particular areas and the persons and things therein which are so far independent of each other that the one cannot destroy or limit the powers of the other, or encroach upon the sphere of the other as determined by the Sovereign in the Constitution. Exclusive powers of the Commonwealth The Commonwealth enjoys exclusive power which gives it special immunity from the operation of State laws and enjoys a special measure of autonomy from State laws when it exercises exclusive powers. This means that a State law has no force in a place that is acquired by the Commonwealth: R v Phillips The Commonwealth has exclusive power to regulate its public service, the seat of government, and Commonwealth public places (s90) The Commonwealth has exclusive power to levy customs duties and excise duties (s114) The Commonwealth can enjoy exclusive power to regulate defence (s115) The States shall not coin money, making the currency power (s51(xii) an exclusive power) Leading case on s52: Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 o Whether Cth state OH&S legislation applied within a Royal Australian Air Force Base, a Cth place. (s52)

o A majority of the High Court held that s52 gave the Commonwealth sole legislative authority in Commonwealth places, excluding the legislative authority of the States in those places. o This means that a State law has no force in a place that is acquired by the Commonwealth.
Commonwealth Places (Application of Laws) Act 1970 (Cth): The effect of the above decision has been reversed by the Commonwealth Places (Application of Laws) Act 1970 (Cth), which ensures that ordinary laws of the States, such as motor traffic regulations, continue to apply in Commonwealth places in the States. Federal powers that are, for all intents and purposes, exclusive to the Cth: In addition to those powers which are expressly exclusive, the language of some of the Commonwealths concurrent legislative powers can give rise to implications that the power over the given topic is, for all intents and purposes, exclusive. (s51) (iv) (xix) (xxx) (xxxi) (xxxvi) (xxxix)
Borrowing money on the public credit of the Commonwealth Naturalization and aliens 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 powers to make laws Matters in respect of which this Constitution makes provision until the Parliament otherwise provides 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. Power there to ensure cth has necessary incidental powers to use powers that it has been granted.
None of these powers could be exercised without the active involvement of the Commonwealth as a political, legislating entity. Federal powers containing express or implied restrictions that enable the State to exercise a certain measure of exclusive power with respect to some topics: A number of Federal powers can be described in this way. So, for example, s 51(i), the trade and commerce power, refers to trade and commerce with other countries and among the States. The subsection does not confer a general power to regulate trade and commerce. This does not mean that the Commonwealth may not use some other power, such as s 51(xx), to the same end. For example: banking power s51(xiii) contains an express restriction o other than state banking restriction doesnt just operate when Cth regulates banking under this power but under any power s51 (xx) foreign, trading or financial corporation Could the Cth govt use s51 (xx) to regulate states to get around s51 (xiii)? NO

o An express restriction within a power applies to all other powers
Federal power over the States The distribution of legislative powers in the federal compact is in large measure worked out in s51 of the Constitution, which vests enumerated powers in the Commonwealth. Many of these powers are enjoyed concurrently by the States, with the general residue of legislative power being left to the States. Conflicts of laws between the States and the Commonwealth are resolved by s109. Amalgamated Society of Engineers v The Adelaide Steamship Company Ltd & Ors (1920) 28 CLR 129 The nature of the relationship regarding concurrent powers of the Cth and States was considered. o The question before the court was could the commonwealth regulate the states in their capacity as employers? o Up until this point, the High Court had applied two presumptions in the interpretation of the Constitution that restricted the power of the Commonwealth: Doctrine of Implied Intergovernmental Immunities Commonwealth and the States were sovereign in the separate areas described by their respective Constitutions, and were therefore able to exercise their legislative power immune from the operation of the legislation of the Doctrine of (Implied) State Reserved Powers The Cth could not exercise its legislative power in a way that interfered with the residual or reserved powers of the States falling outside the list of enumerated powers. It was therefore necessary for the High Court to have regard to the powers reserved to the States before the ambit of the Commonwealth power could be ascertained. o The High Court rejected these doctrines on the basis that they were grounded on implications formed on a vague, individual spirit of the compact and which did not accord with the words of the constitutional text. o It was held that the States only retained any residual power which was left over after the Federal legislative powers were given a wide and literal interpretation. This conclusion was based on a consideration of Chapter V of the Constitution and also ss 107 and 109. o They said the Constitution should be read literally. There is nothing in the Constitution to say that commonwealth cannot regulate states in their capacity as an employer. o The principle that the Australian federal system was based on federal legislative supremacy was reinforced by the presence of s109.
The implied autonomy and integrity of the State: The Melbourne Corporation doctrine: The High Court recognised that there is an implication which necessarily arises from the federal structure of Government contemplated by the Constitution. The Commonwealth may not exercise its powers to single out a State or States or threaten their capacity to function as independent governing entities.

Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 o Commonwealth wanted the power to regulate the states o The Melbourne Corporation challenged the constitutional validity of a section of Federal banking law which aimed to nationalise banking. The federal legislation was the banking act 1947 which purported to require people to bank with the CBA. One of the provisions said all people must bank with the CBA. o This was said to be discriminatory in the sense that it was aimed at the States and the State authorities and that neither the Commonwealth nor the States are able to aim their legislation at the other so as to weaken or destroy the function of the other. o The High Court accepted this argument, and stated (considering the Engineers decision): This principle [the rejection of State reserved powers] does not mean that the States are in a position of subjects of the Commonwealth. The Constitution is based upon and provides for the continued co-existence of Commonwealth and States as separate Governments, each independent within its own sphere [And] federal laws which discriminate against the States are not laws authorized by the Constitution. o This is the closest thing we have to the idea of state rights. The Melbourne Corporation principle was reformulated in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188. That case concerned a Federal award applying to State teachers which was challenged on Melbourne Corporation grounds. The challenge was upheld making cth law invalid and allowing teachers dismissal by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, who said: o The limitation (recognised in the Melbourne Corporation case) consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities (the limitation against discrimination) and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments: at 231. st 1 : Cth can not pass a law which places a special disability or burden on the states. 2nd: The court held that the legislation was ultra vires (beyond the scope) and also ultra vires of the federal legislative supremacy principle formulated in the Engineers Case The first limb was applied in Queensland Electricity Commission & Ors v The Commonwealth (1985) 159 CLR 192. o That case concerned the constitutional validity of a Federal law that purported to require the Queensland Electricity Commission and Boards and the Electrical Trades Union to submit to arbitration. o The Court struck the law down on the basis that it singled out the Queensland Electricity Commission, and discriminated against them in their activities as an agent of the Queensland Government. In Victoria v Commonwealth (1996) 187 CLR 416 There were amendment of cth industrial relation act that put obligations on employers re certain matters, Brennan CJ, Toohey, Gaudron, McHugh and Gummow J struck down a Federal award which infringed the second limb of the prohibition. o It was held that the award prevented a State from exercising its right to determine

the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss on redundancy grounds and, in the case of those employed at the higher levels of Government, the second limb of the principle precluded laws which prevent the State from determining the terms and conditions on which those persons shall be engaged.
Austin v The Commonwealth (2003) 215 CLR 195 o They held an action against cth tax that was imposed on super of state judges. The legislation treated State judges differently from other high income earners and federal judges, and to their practical disadvantage. It interfered with arrangements made by States for the remuneration of their judges, and had the capacity to affect the recruitment and retention of judges to perform an essential constitutional function of the State. The legislation discriminated against State judicial officers in a way that interfered in a significant respect with States' relationships with their judges. o Court held the cth law was invalid. o Even though in engineers they did away with two implications protective of states. In this case the HC said there are still protections in the constitution for the state, and that Cth and they cant discriminate against each other and stop each others functions.
References, cooperation and uniform legislation
The constitution contemplates that the sates and cth can cooperate and agree. s51xxxvii allows legislative rights to be referred to Cth by Parliament or Parliaments of any state. Eg also reference of power over child custody issues. Cth had power to leg over children which were from married parents but not those which werent, this was referred to them by states. Eg Corporations law is based on states and cth cooperation. Note however states cant refer their functions to Cth executive (r v Hughs) or judiciary(Re Wakim; Ex parte McNally (1999)
Chapter III of the Constitution and the States: The Cth parliament has specific powers to vest Federal Jurisdiction in State Courts. The inclusion of State courts in Ch III limits their capacity to exercise powers and functions alien to the principles that underlie the separation of judicial power affected by that chapter: Kable v Director of Public Prosecutions (1996) 189 CLR 51. Kable was convicted of the manslaughter of his wife and imprisoned. Upon his release, the New South Wales Parliament enacted legislation which ordered his further detention. The object of the Act was to protect the community by providing for the preventive detention of Gregory Wayne Kable

It was argued that the statute was beyond peace, order and good government; it infringed common law rights which were so fundamental that they could not be overturned by any legislature; it was inconsistent with the separation of powers embodied in the New South Wales constitution; and finally on the basis that the law was inconsistent with the requirements of Chapter III of the Commonwealth Constitution. A majority of the Court held that the power of the States to legislate for the peace, order and good government was plenary and that they are not words of limitation. The community protection Act removed the ordinary protections inherent in the judicial process by stating that its object was the preventive detention of the appellant, by removing the need to prove guilt beyond a reasonable doubt, and by enabling the Legislature to employ the Supreme Court to execute the Legislatures determination that the appellant be deprived his liberty. The law was struck down on the basis that it was inconsistent with Chapter III of the Constitution. Stated that neither the Commonwealth nor the States could legislate to undermine the scheme set up by Ch III of the Constitution: o Because the State courts are an integral and equal part of the judicial system set up by Ch III, it also follows that no State or federal parliament can legislate in a way that might undermine the role of those courts as repositories of federal judicial powerneitherparliamentcan invest functions in the Supreme Court of New South Wales that are incompatible with the exercise of federal judicial power. Neithercan legislate in a way that permits the Supreme Court while exercising federal judicial power to disregard the rules of natural justice or to exercise legislative or executive power: McHugh J at 115. Further, o One of the basic principles which underlie Ch III and to which it gives effect is that the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government. Given the central role and the status that Ch III gives to State courts invested with federal jurisdiction, it necessarily follows that those courts must also be, and be perceived to be, independent of the legislature or the executive government: at 115.
Contrast: However, the extent to which State parliamentary power is qualified by Ch III of the Constitution appears to be quite limited. Fardon v Attorney General (QLD) [2004] Majority of the HC distinguished Kables Case where QLD legislation, the Dangerous Prisoners (Sexual Offenders) Act 2003, authorised the Supreme Court of QLD to incarcerate members of a class of prisoners who the court predicted would be dangerous. The imprisonment of a person, not for what they have done, but what they might do, represents a significant departure from traditional judicial functions and processes, but was nonetheless upheld. The decision also appears to establish that a person may be punished twice for previous crimes (unless it is accepted that prison is no longer punitive)
Chapter IV and the States: fiscal federalism:

Fiscal federalism looks at the degree to which the cth is able to effect the way the state operates. Eg education. Cth does not have any power with relation to students although they have power under 51? To give money to students etc and by that means control education. The Commonwealth is a bicameral system, with legislative power being held by two houses of Parliament, the House of Representatives and the Senate. House of rep pursuant to s24 of const is based on voters nationally Senate under s7 is elected, 12 by people of each state. Section 53 indicates that apart from the power to initiate bills that appropriate money (a power reserved to the House), the Senate shall have equal power with the House of Representatives in respect of all proposed laws. The senate has generally overridden state interests for the interest of the political party except in 1957. It is apparent that the people who devised the Constitution recognised that the Commonwealth should have the power to levy customs and excise duties in order to develop a national common market (see sections 86 & 90). But they were anxious to ensure that any surplus revenue derived by the Commonwealth from customs and excise would be apportioned to the States in a way that would prevent serious economic dislocation to their finances. Debate was complicated by the varying degrees of dependence of the colonies on excise duties. A compromise was worked out in ss 87, 89 and 93 of the Constitution, with excess revenues returned to the States in accordance with particular formulae for a specified period of time. Once that time had expired and these provisions were spent, s 96 would give the Commonwealth the power to grant financial assistance to any State on such terms and conditions as the Parliament thinks, enabling political solutions to any problem that might be caused in the future by the Commonwealth having revenue that was surplus to its needs. Federal Tax laws must not discriminate between the states and Must be tax laws Colonial anxieties about an over-reaching Commonwealth were also resolved in a series of restrictions placed on the federal taxation power. So, Federal tax laws must not discriminate between States or parts of States (s 51(ii)), and to prevent reverse discrimination the Commonwealth cannot provide legislative preferences to States or parts of States: s 99 (the preference prohibition in s 99 also applies to laws supported by the trade and commerce power). In addition, the Federal Parliament may not include provisions dealing with subject matter other than the imposition of taxation in tax laws (this is sometimes referred to as the prohibition against tacking such provisions onto tax laws): s 55. State Protections Sections 51(ii) and 99, when added to the power of the Senate to withhold its consent to parliamentary bills (s 53) and review tax laws that must be purely taxing laws (s 55) were intended to protect State interests in matters of federal tax policy. In addition, section 114 prohibits the Commonwealth from taxing State property (reciprocally, the States may not tax Commonwealth property). Taxing Power History The constitutional history of the 20th century indicates that colonial anxiety regarding the relative taxing

power and spending obligations of the Commonwealth and the States was well-founded. The Commonwealth has passed laws covering the field in many areas of taxation, and expansive construction of the Commonwealths taxation and grants powers since the Engineers case has resulted in the Commonwealth holding power to generate the vast majority of total taxation revenue. After the imposition of uniform customs duties, State income taxes funded part of their revenue for a time. But the Commonwealths Uniform Tax scheme (as to which, see South Australia v Commonwealth (the First Uniform Tax case) (1942) 65 CLR 373) covered the field in the area of income tax and this increasingly significant source of revenue was closed off. The Uniform Tax cases involved a Federal legislative scheme with the object of securing to the Commonwealth the exclusive power to levy income taxation. One law in the scheme imposed a rate of income tax that made it politically impossible for the States to levy a concurrent income tax. Another law authorised by s 96, made grants to the States on the condition that they do not levy income tax. The laws were challenged on a number of grounds, including that the laws form a single legislative scheme the object, substance and effect of which is to prevent the States of the Commonwealth from exercising their respective constitutional rights and powers to levy and collect income tax and to make it impossible for such States to levy and collect income tax. The High Court upheld the laws by majority. A post-Melbourne Corporation challenge to the Uniform Tax scheme failed (Victoria v Commonwealth (the Second Uniform Tax case) (1957) 99 CLR 575), in spite of the clearly negative impact the Uniform Tax scheme had on the revenue of the States and the absence of support for the scheme under the defence power, a compelling argument in 1942 when the First Uniform Tax case was decided. State attempts to levy excise duties dressed up as business franchise licence fees in contravention of s 90 were upheld for a time(eg for tobacco licenses). That led to during 70s, 80s and 90s an inconsistency between the states. Queensland had no fees, other states had more so Sydney people would go to Queensland buy their cigarettes and come back. Eventually the High Court struck down these schemes for inconsistency with s 90 in case of HA v NSW (1997) CLR. When this occurred State fiscal dependency on the Commonwealth became even more pronounced, providing a political justification for the introduction of a consumption tax to buttress State revenue (the goods and services tax, or GST) that has entrenched federal power over the States. The realpolitik of federalism in Australia during the 20th century and now depends on the Commonwealths use of the grants power, section 96, which enables the Commonwealth to exert fiscal leverage over the States by placing terms and conditions on Commonwealth grants of financial assistance. Note however: Section 96 is confined to granting money to governments, it is not a power to make laws with respect to general subject matters. There is nothing which would enable the making of a coercive law, ie. one that demands obedience. The grant of money may supply the inducement to comply with that term or condition but it cannot go beyond.
Grants The Federal Parliament is authorised to grant financial assistance to any State on such terms and conditions as the Parliament thinks fit: s 96. Authority to make such grants is limited to 'a period of 10 years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides'

The Parliament has not so far 'otherwise provide[d]' and it is now accepted that the Parliament's authority is not transitional but stands with the permanent provisions of the Commonwealth Constitution: Victoria v Commonwealth (Uniform Tax Case (No 2)) (1957) 99 CLR 575 at 605 per Dixon CJ. The Federal Parliament's power may be used so as to oblige the recipient State to apply the money granted to a purpose defined by the Federal Parliament; The purpose may be within or outside the powers of the Commonwealth; the payments may be left to the discretion of a Federal Minister; and the money may be provided by the Commonwealth on condition that the recipient State match the assistance with a contribution from its own funds. Victoria v Commonwealth (Uniform Tax Case (No 2)) (1957) 99 CLR 575 at 606 per Dixon CJ
3 types of grants that gov make: General revenue grants o Money paid to states to compensate them for loss of income tax revenue o Source of majority of income for the states Special assistance grants o Given to smaller states for assistance Specific purpose grants o Where cth sais what money is to be spent on With these the Cth are able to get control on areas beyond their legislative power. A non-coercive power The Commonwealth Constitution allows the Federal Parliament to offer an inducement to a State, either to exercise its powers or refrain from exercising its powers.: South Australia v Commonwealth (Uniform Tax Case (No 1)) (1942) 65 CLR 373 at 417 per Latham CJ. The Parliament can offer financial assistance to a State to induce the State to construct designated public roads: Victoria v Commonwealth (Federal Roads Case) (1926) 38 CLR 399 And the Federal Parliament can offer financial assistance to a State to induce the State to refrain from imposing and collecting State income tax: South Australia v Commonwealth (Uniform Tax Case (No 1)) (1942) 65 CLR 373 No State can be placed under a legal obligation to accept a grant of financial assistance. Victoria v Commonwealth (Uniform Tax Case (No 2)) (1957) 99 CLR 575 However, any State that accepts a grant of financial assistance must abide by the terms and conditions attached to the grant, South Australia v Commonwealth (Uniform Tax Case (No 1)) (1942) 65 CLR 373; In so far as compliance with the terms and conditions does not involve the State in a breach of the law. Victoria v Commonwealth (Uniform Tax Case (No 2)) (1957) 99 CLR 575 GST has been a type of tax meant to get money back to states and all GST raised in each state is meant to back to the states. This is why some states like NSW still rely on other fund raising methods as well as cth. Because of wide breadth of s96 powers there is not guarantee that the grants will continue. The power to tax and then grant is the power to destroy as was said by latham in first uniform tax case.
States may be used as agents for Commonwealth

A grant of financial assistance may be made on condition that the recipient State immediately pay over the money granted to a class of persons in or connected with the State in order to fulfil some purpose pursued by the Commonwealth, being a power outside the Commonwealth's power to effect directly: Victoria v Commonwealth (Uniform Tax Case (No 2)) (1957) 99 CLR 575 at 607 per Dixon CJ. It is not necessary that a grant of financial assistance should benefit the State Treasury directly: Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 at 660 per Wilson J. A grant can be made to the states on the condition that the states give that money immediately to the private schools. So there is no need for the cth to give money for states to keep.
Grants may discriminate or give preference Deputy Cmr of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 o Concerned tax on flower millers which was used to grant to wheat growers. Problem was that Tasmania had flower millers but not wheat growers, so cth made a grant to flower growers for tas. It was argued that breach of s99 which is no discrimination between states. Court dismissed that. o Commonwealth Constitution s 96 enables the Federal Parliament to adjust inequalities between States which may arise from the application of uniform non-discriminating federal laws to the States and is not limited by any prohibition of discrimination per Latham J Grants power subject to other limits on Commonwealth power The Federal Parliament may grant money to a State to assist the State in the resumption of land on other than just terms: A requirement expressed in Commonwealth Constitution s 51(xxxi). Pye v Renshaw (1951) 84 CLR 58 In this case Cth wanted to obtain some property but didnt want to do it directly coz they were limited by 51xxxi. They instead gave grant to state to get the state to take possession of it compulsorily as states do not have the just term limitation. It was allowed there but HC has put limitations. This makes a mockery of the just terms but the only limitation to it is that they cant force states to accept grant, though its unlikely that they wouldnt. However, it appears that the power is subject to other express restrictions on the Commonwealth's legislative power. For example, there is indication that laws made by the Federal Parliament under Commonwealth Constitution s 96 will be subject to the prohibitions in s 116 on the Commonwealth establishing any religion and restricting the free exercise of religion: Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981). In 1981 there was legislation passed to give states power to collect income tax but no state took up the opportunity to that as they knew it would be political suicide if they did. Legislative powers of the States Peace, order and good government

In respect of the legislative power which is the residue after a plenary construction of Commonwealth power, the States enjoy general legislative power to make laws for the peace, order and good government of their state: Constitution Act 1902 (NSW)
Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 o King was awarded compensation under the Workers Compensation Act 1926 (NSW) and it was argued by Union Steamship that it was not a law for the peace, order and good government also that it was inconsistent with Cth law. o The High Court unanimously held that Peace, order and good government describes a power that is plenary (not subject to limitation or exceptions. o The test of state leg powers was the existence of a relevant connection between circumstances which law operated and the state. This should be liberally applied so even a remote connection will suffice. So the fact that the ship was registered in NSW was a sufficient connection with NSW to apply NSW laws to the ship and so it justified app of NSW workers comp leg to seamen and so he was entitled to compo. o Court also looked at s109 and said state law wasnt inoperative because the two legislations provided for coexistence of the two acts. The intentions of the act was to ensure there was not double compensation(applying under both) so as parliament has power to apply under that state it is required to apply for some extraterritorial app notwithstanding s96 which sais states can make extraterritorial laws. Note: extraterritorial power also in aus acts.
Parliamentary Supremacy in the States: The phrase peace, order and good government is based on the doctrine of parliamentary supremacy. However, this is said to operate subject to the Federal Constitution and its separation of powers. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 o Kable was convicted of the manslaughter of his wife and imprisoned. Upon his release, the New South Wales Parliament enacted legislation which ordered his further detention. o It was argued that the statute was beyond peace, order and good government; it infringed common law rights which were so fundamental that they could not be overturned by any legislature; it was inconsistent with the separation of powers embodied in the New South Wales constitution; and finally on the basis that the law was inconsistent with the requirements of Chapter III of the Commonwealth Constitution. o A majority of the Court held that the power of the States to legislate for the peace, order and good government was plenary and that they are not words of limitation. o However, the law was struck down on the basis that it was inconsistent with Chapter III of the Constitution.

Also, in a system of government (in theory), elections ensure that parliamentary supremacy is not absolute because the exercise of legislative power can be checked by the will of the people. Leslie Stephen, one of Diceys contemporaries said that: the power of the legislature is of course, strictly limited. It is limited, so to speak, both from within and from without; from within because the legislature is the product of a certain social condition, and determined by whatever determines society; and from without, because the power of imposing laws is dependent upon the instinct of subordination, which is itself limited. If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law and subjects idiotic before they could submit to it. Extraterritorial Power Section 2 (1) if the Australia Act 1986 (Cth) states: 2. Legislative powers of Parliaments of States (1) It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State to have extra-territorial operation While this section confirms that the States have power to pass legislation with extraterritorial operation, there must be a connection between the State and the matter regulated. Pearce v Florenca (1976) 135 CLR 507 o Florenca, a fisherman in Western Australia, was charged with possession of undersized rock lobsters. The State law referred to Western Australia Waters which were defined to include, among other places, the sea from high-water mark to three nautical miles from the low-water mark. It was alleged the offence took place some one and half miles off the coast. o A Western Australian magistrate dismissed the charges on the basis that a Commonwealth law regulating Australias off-shore waters rendered the State law inoperative. The High Court was to consider this by virtue of s109. A threshold question was whether the State law was invalid. o Gibbs J held that: [The test of State extraterritorial power] should be liberally applied, and that legislation should be held valid if there is any real connexion even a remote or general connexion between the subject matter of the legislation and the State.
Limits to state extraterritorial power Although there are limits to the extraterritorial power of the States, it appears that once a sufficient connexion has been established, the State enjoys plenary power with respect to the matter regulated. Broken Hill South v Commissioner of Taxation (NSW) (1937) 56 CLR 337

o If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of jurisdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. State law can operate in the field left vacant by Federal law, even in a field which the Commonwealth enjoys exclusive power Although the Engineers case confirmed the legislative supremacy of the Commonwealth, the powers of the Commonwealth do not operate automatically to reserve any topics of legislation to the Commonwealth. E.g. A state law can regulate matters which have an effect on defence (even though it is an exclusive Commonwealth power under ss51 (vi) and 114) where no Federal legislation overrides the State law to the extent of its inconsistency under s109. Pirrie v McFarlane (1925) 36 CLR 170 o McFarlane was charged with driving on a public highway without a Victorian licence. As a member of the Air Force, he argued that he was immune from the State laws regulating traffic and licensing on the basis that he was employed by the Commonwealth and engaged in Commonwealth business at the relevant time. o At trial this argument was accepted and the doctrine of intergovernmental immunities was applied. o On appeal to the High Court, this same argument was raised and it was added that s52 gave the Commonwealth exclusive power with respect to the regulation of defence public servants, and therefore no s109 inconsistency could arise State laws were to be interpreted or read down as not applying to soldiers on duty. o The High Court rejected McFarlanes argument and held that the implied intergovernmental immunities had to be read in light of the Engineers case. The State law would only be inoperative if it was invalid to the extent of its inconsistency with a Federal law by virtue of the operation of s109. Where there is no Federal law in which the State law was operating, then no inconsistency arose.
The extent of State power to regulate the Commonwealth State laws can affect the Commonwealth in its ordinary capacities that is, when it engages in transactions as an ordinary legal person. E.g. a lessor of property. Commonwealth v Bogle (1953) 89 CLR 229 o The Commonwealth was acting as a lessor of property and it was held that in this case State legislation applies to the Commonwealth. The rule of law operates. o State Parliament has no power over the Commonwealth. The Commonwealthis all intents and purposes, a juristic person who is subjected either by any State Constitution or by the Commonwealth Constitution to the legislative power of any State Parliamentthe Commonwealth may, of course, become affected by State laws.

However, the States may not restrict the capacity of the Commonwealth to exercise its executive power that is, the power of the Commonwealth, its servants or agents to execute the laws of the Commonwealth. In Commonwealth v Cigamatic Ltd (in liq) (1962) 108 CLR 372, it was held that a State legislature had no power to impair the capacities of the Commonwealth executive, but at the same time it was recognised that the Commonwealth might be regulated by State laws of general application in those activities which it carried on in common with other citizens. Re Richard Foreman and Sons Pty Ltd; Uther v Federal Commissioner of Taxation (Uthers case) (1947) 74 CLR 508. o Liquidator wanted to know if cth officers had the right to get their money first. o Latham C.J., Rich, Starke and Williams JJ. (Dixon J. dissenting) That it is within the constitutional competence of the Parliament of New South Wales, in legislation relating to the winding up of companies, to restrict or abolish the prerogative right of the Crown in right of the Commonwealth to payment of debts due to it in priority to all other debts of equal degree o So a general law made by the state is valid and if cth enters into transaction they will be bound by state law. Although Cth law would have supremecy if they made a law in that matter. o A federal system is necessarily a dual system. In a dual political system you do not
expect to find either government legislating for the other. But supremacy, where it exists, belongs to the Commonwealth and not to the States
o Approved in Cigamatic
Re Residential Tenancies Tribunal of New South Wales & Ors; Ex Parte Defence Housing Authority (1996) 146 ALR 495 o The Defence Housing Authority, an agency set up under Federal statute to provide housing for the defence forces, argued that as a federal agency, they were protected from the operation of State residential tenancies legislation which allowed their landlord to come and do inspections on the defence base.. o It was held by the majority re explaining what cigamatic meant that: there is nothing which would suggest that the Crown or its agents enjoy any special immunity from the operation of laws of general application, State or federal. Indeed, the contrary is affirmed. The rule of law requires such a resultWhile the principle that executive power must be exercised in accordance with the law applies to both Commonwealth and State government, the Commonwealth enjoys a paramount position within its areas of legislative competence because of s109 of the Constitution.
Within the scope of its grant of legislative power, the Parliament of the State is no less supreme than the Parliament of the Commonwealth (although State legislation which is inconsistent with Commonwealth legislation is inoperative under s109 of the Constitution). This section indicates that where it exists, supremacy belongs to the Commonwealth: Engineers case

Section 64 of the Judiciary Act In any suit to which the Commonwealth or a State is a party, the rights of the parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject. This provision goes some way toward reversing the Cigamatic principle, subjecting the Commonwealth to the legislative authority of the States. But really isnt clear to what degree that will occur. In some situations the principle of executive immunity may immunise the cth or agents from certain types of state laws. Also s69 of jud act can be changed by parl as its only state leg. So states have pleniary power subject to those exceptions which arise under the constitution.
Inconsistency of Laws
First, how is law defined for the purposes of s 109? Second, the requirement that s 109 laws must be both valid and operative before a question of inconsistency can arise. Thirdly, the various tests of inconsistency. Fourth, the concept of repugnancy of laws, and its operation in the self-governing Territories. Finally, the consequences of a determination of inconsistency determination will be considered. Section 109 of the Constitution reads: 109. Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent to the inconsistency, be invalid. Section 109 confirms the legislative supremacy of the Federal Parliament over the State Parliaments within Australia with respect to those concurrent powers enjoyed by the Commonwealth and the States. Section 109 requirements Requirement of valid laws Before s109 can operate, it is necessary to demonstrate that there is a Federal Act and a State Act in conflict. If one or both of the laws are determined to be invalid, there can be no s109 inconsistency. Requirement of operative laws Similarly, if one or both of the relevant State and Federal laws do not operate in the circumstances of the case, there can be no s109 inconsistency.

Tests for inconsistency The COVER THE FIELD test This test focuses on the intention of the Parliament manifest (apparent) in the Federal law. A Federal law will cover the field if it demonstrates an express or implied intention to provide an exhaustive statement of rights, immunities, duties or obligations in respect of the relevant subject matter. If the Federal law covers the field then it excludes any State law which might enter the field and alter, impair or detract from; the Commonwealth law. Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 o This case developed the test o The case concerned a conflict between State and Federal laws governing the length of a working week, with provisions providing for a different number of working hours and a different rate of pay. o The Court found the State Act to be invalid on the grounds thatif a competent legislature expressly or impliedly demonstrates 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 Ex parte McLean (1930) 42 CLR 472 o Dixon J stated that the cover the field test of inconsistencydepends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal law discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.
Applying the Test It is necessary to ascertain: 1. Whether the Federal law evinces (demonstrates) an express or implied intention to cover the field; 2. If so, what is the field which has been covered? Express intention to cover the field For example, a Federal law may state that: Where a State law, or an order, award, decision or determination of a State Industrial Authority, is inconsistent with, or deals with a matter dealt with in a (Federal) award, the latter prevails and the former, to the extent of the inconsistency, or in relation to the matter dealt with, is invalid.

Metal Trades Industry Association v Amalgamated Metal Workers and Shipwrights Union (1983) 152 CLR 632 However, the Commonwealth may not prohibit a State from exercising legislative power in a given area. Similarly, the Commonwealth could not pass a law preventing States courts from exercising jurisdiction in respect of civil offences. Wenn v Attorney General (Vic) (1948) 77 CLR 84 o to legislate upon a subject exhaustivelyis I think, an exercise of legislative authority different in kind from a bare attempt to exclude State concurrent power from a subject the Federal legislature has not effectively dealt with
So long as the relevant Federal law was constitutionally valid, it would not be open to the objection that it trenches on State functions unless presumably, it infringed the implied prohibition on Federal power recognised in the Melbourne Corporation. Express intention not to cover the field In some circumstances, the Federal law may expressly contemplate concurrent State legislation. R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 o equally 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 laws, to have 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.
However, this does not remove direct inconsistency. Also, this may operate prospectively (future orientated) and not retrospectively. Viskauskas v Niland (1983) 153 CLR 280 o The High Court held that certain provisions of the Anti-Discrimination Act 1977 (NSW) were inconsistent with the Racial Discrimination Act 1975 (Cth). Therefore, after Viskauskas v Niland, the Federal Act was amended to provide that the Act is not intended and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory. The University of Wollongong v Metwally (1984) 158 CLR 447 o The question was raised whether the amendments after Viskauskas v Niland were constitutionally valid. o The High Court held that the power of the Commonwealth to legislate with retrospective effect was limited to the extent that it could not deny the operation of s109 in respect of a conflict of State and Federal laws which had occurred in the past. o Gibbs CJ statedthe Parliament cannot exclude the operation of s109 by providing that the intention of the Parliament shall be deemed to have been different from what it

actually was and that what was in truth an inconsistency shall be deemed to have not existed. Implied intention to cover the field Where no express intention to cover the field has been indicated, it may be possible to locate an implied intention to cover the field. Elaborate, extensive and detailed federal provisions may indicate an implied intention to cover the field: Wenn v Attorney General (Vic) (1948) 77 CLR 84 o Wenn challenged the State law for s109 inconsistency after he was not considered for a promotion on the basis of State legislation giving preference to ex-servicemen. It was argued that the Federal law did not explicitly require that preference. o Latham CJ held that the nature and scope of the federal provisions gave rise to an inference that the Commonwealth intended to cover the field. An intention to cover the field was manifest in the scope of that provision which made the Federal law operate to the exclusion of State laws. The inference was supported by the fact that the Federal law made elaborate provisions on the topic and dealt extensively and in detail with the topic.
Absence of elaborate, extensive and detailed federal provisions may result in: Finding no inconsistency: T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 o In this case the Federal award ignored long service leave and it was held that the State law operated where the field was left vacant by the Federal award. o The existence of a federal law area is not something to be assumed, but it is only demonstrated by the existence of a valid and operative law.
OR, A finding of an intention to cover the field: A broad federal provision may also indicate an intention to cover the field, even in the context of legislation which makes detailed provision in relation to one topic, but is sparse in its treatment of another. Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399 o The High Court held that the South Australian provisions were inconsistent with federal provisions, in spite of the fact that the Federal law made detailed provision in respect of the appointment, terms and conditions of permanent employees, but not temporary employees. It was acknowledged that although the provisions dealing with temporary employees was less detailed and comprehensive, an intention to cover the field could nonetheless be discerned.

An intention to cover the field may manifest where Federal laws deal with federal matters: There are some fields in which the Commonwealth enjoys exclusive legislative power, and in exercising its exclusive powers it may properly be expected that the Commonwealth intends that its laws will operate to the exclusion of State laws operating in the same field. Characterisation in cover the field tests If the State and Federal laws are intended to deal with different subject matters, then it may be possible for them to operate concurrently. Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 o State law governed intrastate air navigation while Federal law governed intrastate navigation which directly affected overseas or interstate air navigation. Both laws established licensing systems. o A majority of the High Court characterised the laws as dealing with different subject matters, therefore there was no inconsistency. Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 o A conflict arose concerning State legislation which prohibited discrimination of the hiring of pilots on the basis of sex or marital status, and Federal legislation which required that certain procedures be complied with before a pilot can be dismissed. o It was held that these provisions could operate concurrently.
Inconsistency of penalties will not necessarily result in inconsistency of laws McWaters v Day (1989) 168 CLR 289 o There was an inconsistency between the penalties of Queensland law and Federal defence force disciplinary law for driving under the influence of alcohol. o it is true that a difference in penalties prescribed for conduct prohibited by Commonwealth and State laws has been held to give rise to inconsistency between those laws for purposes of s109Equally, a difference between the rules of conduct prescribed by Commonwealth and State laws might give rise to such inconsistency. But the mere fact that such differences exist is insufficient to establish an inconsistency in the relevant sense. It is necessary to inquire whether the Commonwealth statute, in prescribing the rule to be observed, demonstrates an intention to cover the subject-matter to the exclusion of any other law o It was held that the Federal Act is supplementary to, and not exclusive of, the ordinary criminal law, and it follows that it does not deal with the same subject matter or serve the same purpose as laws forming part of the ordinary criminal law.
Accordingly, a difference in penalties under Federal and State laws attaching to substantially the same conduct does not necessarily result in a s109 inconsistency. It appears that it is necessary to demonstrate that the Federal law demonstrated an intention to cover the field and exclude any other law for an inconsistency to occur.

DIRECT Inconsistency Tests There are several direct inconsistency tests. Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 o Direct inconsistency is a description which has always been applied to cases in which it is impossible to obey both laws. It has also been a description which has been applied to cases in which the Commonwealth law grants a permission or a right and the State law prohibits that which is permitted or prohibits the exercise of the right
The contradictory laws test R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23 o Federal electoral law provided that on federal polling days, no referendum or vote of the electors of any State or part of State could be taken. A local vote was taken in Brisbane on the date of a federal poll, and this was challenged on the basis that it was illegal under Federal law. o The Court held the vote in Brisbane to be illegal. Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 o It was held that the purported subject matter of the law is irrelevant to the determination of s109 inconsistency if it can be shown that the Federal law prescribes certain rights, privileges, immunities or obligations which are removed by State law. o Hence they contradict one another. o Here the Federal law permitted what the State law prohibited, so there was a s109 inconsistency Mabo v Queensland (1988) 166 CLR 186 o The High Court held that, assuming native title could be established in respect of the lands claimed, the State law extinguished native title, and was to this extent inconsistent with provisions of the Federal law prohibiting racial discrimination and in particular, interference with property rights on racial grounds.
The impossible to obey both laws test Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 o Federal award was lower than State award. Devondale Cream paid the employee (MacDonald), the lower wage. o Barwick CJ said obedience to the one, the award, is disobedience to the other, the determination. Payment by the respondent of the wages conforming to the award involved it in disobedience of the State provisions. Swift Australian Company (Pty) Ltd v Boyd Parkinson (1962) 108 CLR 189 o Swift was prosecuted for not holding a license under State law, while they were registered under Federal meat export regulations. Swift argued that it would be practically impossible to obey both laws.

o The Court held that the laws were not invalid in these circumstances, as the Federal regulations applied to poultry designed for export trade, and the State regulations continued to apply to poultry which was not destined to export trade. The State law would operate in respect of the surplus poultry, leaving room for the State law. The consequence of invalidity A State law which is determined to be inconsistent with a Federal law is not rendered permanently invalid by s109. It is only invalid with respect of the particular facts at issue, and presumably any identical situation. Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 o If either (State or Federal law) is invalid ab initio by reason of lack of power, no question can arise under the section. The word invalid in this section cannot be interpreted as meaning that a State law which is affected by the section becomes ultra vires in whole or in part. If the Commonwealth law were repealed, the State law would again become operative.
Invalid means inoperative Butler v Attorney-General of Victoria (1961) 106 CLR 268 o (The federal provisions) ceased to have validity when they could no loner be sustained by the defence power. Thereupon (the State provisions) came again into operation. It had never lost its place in the Victorian statute book. It had merely been, for the time, invalid that is to say, suspended, inoperative and ineffective because the Commonwealth statute had entered into occupation of the whole field. But when the Commonwealth law vacated the field the State law was again in charge.
The Commonwealth and the Territories

Territories can be created by the surrender of territory by the States and acceptance of that territory by the Commonwealth: ss 111 and 125 of the Constitution. Territories: Northern Territory Australian Capital Territory Jervis Bay Territory Norfolk Island Cocos (Keeling) Islands Christmas Island Heard Island McDonald Island Coral Sea Islands Ashmore and Cartier Islands Australian Antarctic Territories (s122) Government of Territories

The Parliament may makes laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or 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 the House of Parliament to the extent and on terms which it thinks fit. Section 122 is a plenary power. Spratt v Hermes (1965) 114 CLR 226 o Barwick CJ discusses the scope of s122: Section 122 gives to the Parliament legislative power of a different order to those given by s 51. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory an expression condensed in s122 to for the government of the Territory. This is as large and universal a power of legislation as can be granted. It is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States.
Self-Governing Territories The Territories power enables the Commonwealth to set up self-governing Territories. Berwick Ltd v Gray (1976) 133 CLR 603 o Leg said that income of Norfolk islander was non income taxable unless benefit of it went to someone not on that island. Berwick ltd was convicted of not lodging income tax returns, they said they were part of Norfolk island and that section saying you have to live on island was invalid. court said: Once a sufficient connexion is shown to exist between a law and a territory the power conferred by s. 122 is a plenary power and is not subject to any limitation that any moneys raised by the law should be expended exclusively for the purposes of that territory. Section 51 (ii.) of constitution, so taxation power applies to external territories in general and in particular to Norfolk Island which in view of its history is to be regarded as part of the Commonwealth. o [The power conferred by s122] is sufficiently wide enough to enable the passing of laws providing for the direct administration of a Territory by the Australian Government without separate fiscus; yet on the other hand it is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus.
The Northern Territory and the Australian Capital Territory enjoy self-government under the Northern Territory (Self-Government) Act 1978 (Cth) and the Australian Capital Territory (Self-Government Act 1988 (Cth) respectively.
S122 Continues to operate with respect to the self governing territories

However, the Commonwealth may continue to use its Territories power, and valid legislation under the power will override Territories law. Northern Land Council v Commonwealth (1986) 161 CLR 1 o Court considered the validity of Federal law regulating uranium mining in the NT. Minister of Minerals and Energy authorise a number of companies and the Atomic Energy Commission to undertake a joint venture to carry on mining operations in the NT mine. o The Court considered the validity of Federal law regulating uranium mining in the Northern Territory. The Northern Land Council (Territory) challenged the Federal law on the basis that the Commonwealth did not have the power to pass legislation in respect of the land after the passage of the Self Government Act 1978 (Cth). o This argument was rejected o The High Court approved the statement in Teori Tau v The Commonwealth (1969) 119 CLR 564 that s122 is a plenary power unlimited and unqualified in point of subject matter. Therefore the Commonwealth can override Territory legislation at any time.
Extraterritorial Operation Laws supported by s122 may have extraterritorial power. Lamshed v Lake (1958) 99 CLR 132 o Lamshed, a South Australian policeman, laid a complaint against Lake, a truck driver from the Northern Territory who was not licensed under South Australian road transport legislation. Lake argued that he was travelling from Adelaide to Alice Springs and that Federal legislation governing the Territory provided that trade, commerce and intercourse between the Territory and the States be absolutely free. Lamshed argued that laws made under s122 could not have direct operation outside the Territory concerned. o The High Court held that s122 is a power given to the National Parliament of Australia as such to make laws for, that is to say, with respect to, the government of the Territoryonce the law is shown to be relevant to that subject matter, it operates as binding law of the Commonwealth, wherever territorially the authority of the Commonwealth runs. Therefore when the Commonwealth uses its territories power to pass a law, that law can override State legislation. o Dixon J The relationship between the Territories and the Commonwealth is different to the relationship between the States and the Commonwealth. Laws enacted by the Commonwealth which are supported by s122 are laws of the Commonwealth.
A plenary approach? The question whether any Federal constitutional provision limits the scope of the Territories power depends on the construction of that provision. However, it is clear that the Territories power is not restricted by any provision within s51, which is concerned with the relationship between the Commonwealth and the States.

Teori Tau v The Commonwealth (1969) 119 CLR 564 o The plaintiff challenged Commonwealth legislation set up under s122 which made provisions for the compulsory acquisition of property in the former Australian Territory of Papua and New Guinea. o Section 51 (xxxi) gives the power to acquire property on just terms for any Cth purpose. o Teori Tau argued that it was not on just terms o Cth protested, arguing there was no legal issue, the section does not apply to territories as the Cths power to govern the territories is a plenary power, hence indicating s 122 trumps s 51 (xxxi) o HC unanimously agreed. o It was held by a unanimous High Court that: Section 122 of the Constitution of the Commonwealth of Australia is the source of power to make laws for the government of the territories of the Commonwealth. In terms, it is general and unqualified. It is apt to confer, amongst other things; a power to make laws for the compulsory acquisition of property Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of the Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s122 is plenary in quality and unlimited and unqualified in point of subject matter. Provisions of Territory self-government legislation extend the protection afforded to the States by s51 (xxxi) to the Territories, reversing the effect of Teori Tau v The Commonwealth. Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 o HC emphasised the difference between the Territories power and other powers o The decision of the court had the effect of saying that section 122 has cut back section 51 (xxxi) o Newcrest owned mining lease over tracks of land, some of these leases were located in an area of the NT adjacent to Kakadu National Park. This was a world heritage listed area. o Cth government had concluded a number of inquires over a period of years to determine whether, as a matter of policy; KNP should be expanded. o KNP stage 1 was the already existing world heritage listed area o KNP stage 2 was the extension o Newcrest had mining leases in stage 2, Cth decision to expand park was supported by the Territories power, and also s 51(xxix) external affairs o The Cth uses the external affairs power when it wants to implement an international treaty obligation into domestic law o Issue: N said when Cth constructed Stage 2 of KNP they failed to give just terms compensation.

o o o o o o The Cth said they were not required to because they have plenary power Held: Newcrest wins 4:3 Brennon CJ(dissent): TT case was correctly decided Dawson J (dissent): TT case was correctly decided Toohey J (dissent): said Im not going to over turn TT case but I agree with Gaudron J Gaudron J (majority): TT case should be overturned. S51 (xxxi) does apply to s122 but in as much as the federal legislation creating Stage 2 of KNP can be supported by Territories power, it is unnecessary for me to speak of TT issue, because I will not be using the territories power but Im using the external affairs power. S51 (opening language) Cth shall have the power subject to this constitution to make law.this means if they are operating a power within s51. ie. external affairs power, it must operate within the constitution, thus s51(xxxi) May be true that section 122 is not restricted by s51 (xxxi) but external power is due to the opening language of s 51. all laws made by the Cth must be subject to this constitution This law can be supported by not only the territories power but also the external affairs McHugh: section 122 is not expressed to be subject to the constitution. Gummo J: TT should be overruled it was, too quickly and wrongly decided. S51(xxxi) any person or state for which the Cth has power to make laws (corporation is a type of person under the law). In interpreting s 51(xxxi), it doesnt exclude the territories Kirby J s51(xxxi): applies within the territories the reason for this is that when the constitution is ambiguous the court ought to interpret the constitution consistently with international law, and in particular international human rights instruments (interpretative principles) Ratio: TT wasnt overruled because only 3 of them wanted to call it bad law, and because of this divergence the authority of TT has weakened What Newcrest demonstrates is that 3 judges are prepared to accept that the territories powers are limited (that is that the power is no in fact plenary) The Territories power (s 122) stands in a separate chapter (Ch VI), outside the chapter containing the provisions which express the distribution of powers between the Commonwealth and the States (Ch 1, Pt V). The Territories power is cast in unqualified terms, unlike the powers of the Commonwealth listed in s 51, which are conferred with respect to specified subjects and are subject to the Constitution. As a result, qualifications that apply to the specific heads of power contained in s 51 do not limit the legislative power conferred by s 122. As Dawson J pointed out, the expression the Commonwealth of Australia comprehends the Territories as well as the States in a territorial sense. But the Territories are not part of the federation, involving as it does a division of power between the Commonwealth and the States. On the other hand it has been argues that s 122 should not be interpreted as though it were disjoined from the rest of the constitution. Thus, in Newcrest it was held that the decision in Teori Tau should be overturned.
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o Similar reasoning was adopted in Western Australia v Ward (2002) HCA 28, indicating that the trend of High Court thinking is in favour of the approach taken by Dixon CJ in Lamshed v Lake. o S 51 says subject to the Constitution, but s 122 says nothing of the sought. Therefore s 51 is subject to s 122 but not the other way around. o Therefore s122 trumps s51
Limitations by other provisions in the Constitution? Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1992) 177 CLR 248 o Cap duplicators bought action alledging they were holder of licence under business franchise act. They were in fact distributors of x rated videos. They said they paid licensing fees which they shouldnt have as fees were excises and couldnt be charged. o The scope of s122 may be qualified by other provisions in the Constitution. Although the territories power has been said to be a disparate non-federal matter, it is necessary to adopt an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and one for the territories. It would therefore be erroneous to construe s122 as though it stood isolated from other provisions of the Constitution which might qualify its scope.

R v Bernasconi (1915) 19 CLR 629 o This case did not adopt the above approach (note this case was decided first) o Bernasconi was convicted in summary proceedings and argued that the constitutional guarantee of trial by jury extended to the Territory of British New Guinea, where he was prosecuted. o HC held that the location of s80 in Ch III gave rise to an conclusion that its protection did not extend to the Territories. o The High Court held that Ch III (and consequently s80) was limited in its application to the exercise of the judicial power of the Commonwealth in respect to those functions of government as to which stands in the place of the States and has no application to territories. Spratt v Hermes (1965) 114 CLR 226 o Spratt was charged with an offence under Cth law. o The matter came before an ACT magistrate who didnt have a job for life public service conditions were quite secure it was not security of tenure as under the Constitution o Spratt said the magistrate cannot exercise interpret/apply the Cth law for this reason. o HC said section 72 does not apply to the territories o Number of judges applied the afore mentioned case of Bernasconi o The question here was whether territory courts created by the Federal Parliament were federal courts for the purpose of Chapter III of the Constitution. If they were, their judicial officers were required to have judicial tenure within the meaning of s72. o Held that s72 did not apply to the Territories. Re Governor, Goulbourn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 o Eastman had been convicted by a judge not appointed under s72, and argued unconstitutional. Court rejected. o Applied Spratt v Hermes and held that s72 did not apply in the Territories. North Australian Aboriginal Legal Aid Service v Bradley (2004) HCA 31 o Held that Chapter III applies in the territories and the trend seems that the High Court is moving away from the plenary approach and embracing that the Territories are part of the Commonwealth. o Also held that the Kable principle applies in the Territories. If Territories courts can be vested with federal jurisdiction, just like State courts, then Territories courts have to behave consistently with Chapter III.
Other Limits The constitutional guarantee of freedom of interstate trade, commerce and intercourse among the States in s92 has been given territorial application in both the Northern Territory and the Australian Capital Territory: Self-Government Acts The Commonwealth Constitutions power to compulsorily acquire property also applies to the Territories, guaranteeing just terms compensation in the event of an acquisition under s51 (xxxi): Self Government Acts. The implied freedom of communication restricts the legislative power of the Territories: Lange v ABC (1997) 189 CLR 520

Trade and Commerce
Section 51 (i) of the Constitution provides: 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 The words with other countries and among the states, does not appear to enable the Federal Parliament to regulate purely intrastate trade and commerce in a direct way. However, this limitation is more apparent than real, and can be circumvented in a number of ways. First: s 51(i) is one of a number of overlapping powers that deal with topics that touch and concern trade and commerce. o S51(v) postal, telegraphic, telephonic, and other like services; o S51(ix) quarantine; o S51 (xii) currency, coinage, and legal tender; o S51 (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; o S51 (xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; o S51 (xvi) bills of exchange and promissory notes; o S51 (xvii) bankruptcy and insolvency; o S51 (xviii) copyrights, patents of inventions and designs, and trade marks; o S51 (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth Second: The Cth can use powers over subject matters that are less obviously commercial in character and adapt them to effect policies that circumvent the apparent restrictions on the regulation of intrastate trade and commerce. E.g. o Use s 51 (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 to seize international trading operations of terrorists o Use s 51 (xix) naturalization and aliens; to regulate foreign investment o Use s 51 (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; to regulate industrial relations with partnerships. o Use s 122 (Territories power) to regulate T&C within territories, between territories, between territories and states and overseas o The Cth can also use the T&C power to effect non-commercial policies.

Third: the Cth can se its incidental power to regulate things and activities that are physically located within a State so ling as they are sufficiently connected to the inter-state or overseas T&C. o As one HC justice once remarked the incidental power is a most welcome aid and assistance in the construction of constitutional powers such as s 51(i), allowing the Cth to go beyond the distributive aspects of business conveyed by the terms T&C and regulate activities in the factory or the field or the mine.
This power has been used to regulate a wide variety of activities, including import and export trade, trade practices, the operation of Federal Government business enterprises, the promotion and protection of international trade, international shipping, aviation, and inter-State road transport. The meaning and scope of the words trade and commerce First ascertain the meaning then move to the scope of the power as a whole. Harmonious Interpretation: The High Court has confirmed that the words trade and commerce mean the same in s92 and s51(i): James v The Commonwealth (1936) 55 CLR 1 and is to be read in harmony with other parts of the Constitution. Give the words their popular meaning: W & A McArthur Ltd v Queensland (1920) 28 CLR 530 o Judges urged that a practical approach to the words was to be adopted as they are expressions of fact. They suggested that the phrase referred to all commercial arrangements of which transport 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 delivery are all, but not exclusively, parts of that class of relations between mankind which the world calls trade and commerce.
Transport for reward is a type of T&C: Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 (ANA case) o The constitutional validity of the Australian Airlines Act 1945 was challenged on the grounds that the trade and commerce power did not give the Commonwealth power to undertake trading or commercial activities, and that the trade and commerce power did not extend to authorise the interstate transportation of persons who are not themselves engaged in trading activities (I.e. Transport which was not undertaken for reward.) o The High Court held that s51(i) allowed the Federal Government to incorporate a company to conduct an interstate export trading and commercial business, which included inter-State transportation certainly when conducted for profit.
T&C extends to a wide rand of activities: Bank of New South Wales v Commonwealth (1948) 76 CLR 1

o This case concerned the constitutional validity of Federal legislation that had the purpose of nationalising private banks in Australia. It was challenged on a number of grounds, one being that it infringed s92. o Dixon J said that the phrase trade and commerce in s92 extended to a wide range of activities: It covers intangibles as well as the movement of goods or persons. The supply of gas and the transmission of electric current may be considered only an obvious extension of the movement of physical goods. But it covers communication. The telegraph, the telephone, the wireless may be the means employed. It includes broadcasting and, no doubt, it will take in television. In principle, there is no reason to exclude visual signals. The conception covers, in the United States, the business of press agencies and the transmission of all intelligence, whether for gain or not. Transportation, traffic, movement, transfer, interchange, communication, are words which perhaps together embrace an idea which is dominant in the conception of what commerce clause requires. But to confine the subject matter to physical things and persons would be quite out of keeping with all modern developments. Section 98 confirms that s51(i) extends to enable the regulation of navigation, shipping and railways the property of any State. However, this does not provide an independent source of power over these subjects the Federal power is limited to navigation etc relating to overseas and interstate (not purely intrastate) trade and commerce. Does T&C powers enable the regulation of activities preparatory to trade? The view that the words trade and commerce do not extend to activities preparatory to trade (manufacturing and production) has been confirmed in a number of cases. Granall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 o The High Court took a restrictive approach and recognised that manufacture, production or importation might be 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. Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283 o Beal put down information that Marrickville Margarine had failed to comply with State dairy industry regulations which placed a quota on their production. Marrickville argued that these regulations infringed s92, on the basis that their manufacturing processes were geared specifically to fulfil orders from their interstate customers. Accordingly, it was argued that the inter-State trade protected by s92 commenced at the first stage of manufacture. o The High Court rejected this argument stating that [A] manufacturer is usually a trader because part of his business is to sell his products, but to manufacture is not, of itself, trade, and it is an error to treat all aspects of the business of manufacturing to meet orders as trading.

Nevertheless, there may be circumstances where activities preparatory to trade may be regulated by a Federal law authorised by the trade and commerce power. Granall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 o Production may be incidental to the regulation of trade o After considering the distinction between production and trade: Nothing which has been said above implies that under the power conferred by s51(i) of the Constitutionthe Commonwealth Parliament can never reach or touch production. In the first place, the power is to legislate with respect to trade and commerce. The words with respect to ought never to be neglected in considering the extent of a legislative power conferred by ss51 and 52. For what they require is a relevance to or connection with the subject assigned to the Commonwealth ParliamentIn the next place, every legislative power carries with it the authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting matters that are incidental or ancillary to the subject matter.
A power to regulate navigation, shipping and railways the property of any State Section 98 confirms that s 51(i) extends to enable the regulation of navigation, shipping and railways the property of any State.
Trade and Commerce with other countries This phrase (with other countries) is wide enough to enable the Commonwealth to prohibit, regulate and control the importation and exportation of goods for any purpose: Murphyores Inc Pty Ltd v The Commonwealth (1976) Murphyores Inc Pty Ltd v The Commonwealth (1976) 136 CLR 1 o The High Court considered the constitutional validity of Federal customs regulations which prohibited the export of mineral sands without a permit from the Minister for Minerals and Energy. Murphyores was a sand-mining company and argued that s51(i) did not enable the Federal Parliament to prohibit export trade on environmental grounds. o The High Court rejected this argument based on dual and multiple characterisation, confirming that the Governments power was plenary.
Trade and Commerce among the States An inference can be drawn from the language of s51(i) that the Commonwealth has no power to regulate intrastate trade directly, and distinguished from the regulation of other topics which may have an incidental effect on trade. This conclusion does not rest on the application of the doctrine of State reserved powers but on a literal interpretation of the words. Air Navigation

R v Burgess; Ex parte Henry (1936) 55 CLR 608 o Henry ran a business from Kingsford Smith Airport. Cth ran the airport and attempted to disallow the use of the airport to Henry. By arguing it had power over international trade and navigation, public places under section 52, T&C and External affairs. o Cth introduced legislation to stop Henrys business o Henry challenged the validity under ss 51(i) and (xxix). o Cth signed a treaty and implemented under the external affairs power allowing them to regulate runways but not taxi-ways (where Henry was operating from) o Henry said the treaty was with regard to runways and not taxiways o A treaty with respect to X cannot operate over Y o HC agreed, and said the taxiway cannot be supported by T&C power as the geographical location is purely intra-state o Aircraft flying interstate or overseas and aircraft flying intrastate use, as a matter of absolute necessity, the same air, and as a matter of practical necessity, the same aerodromes. A uniform set of rules governing air safety is clearly desirable to avoid the risk of accident. o s4 of the Air Navigation Act 1920 (Cth) was challenged on the basis that it could not be supported by s51(i) because it made no distinction between aircraft flying across and flying within the borders. o It was held that although foreign and inter-State trade and commerce may be closely associated with intra-State trade and commerce, the court has uniformly held that the distinction drawn by the Constitution must be recognised, and that the power to deal with the former subject does not involve an incidental power to deal with the latter subject. o These conclusions did not mean that the Commonwealth lacked power over intrastate activities that had a direct and proximate relationship to interstate activities. The Commonwealth simply could not exercise power over the intrastate activity solely on the ground of intermingling, practicality or necessity.
Airlines of NSW Pty Ltd v The State of New South Wales & Anor (No 2) (1965) 113 CLR 54 o The limits of the Commonwealths power to secure a uniform system of air navigation regulation by using s 51(i) were made clear o One of the issues raised in this case was whether s 51(i) could support Federal air navigation regulations enabling the Commonwealth to license intrastate air service operators using intrastate airspace, and also to authorise air service operators to offer intrastate services, on the basis that this was necessary for the safety, regularity and efficiency of air navigation. o In argument before the High Court it was suggested that intrastate matters could be regulated under s 51(i) if intrastate matters commingled with interstate or overseas trade and commerce to such an extent that it was necessary to enable the regulation of those intrastate activities to effectively regulate the interstate or overseas trade and commerce. o However, a majority of the Court rejected this argument. o Barwick CJ stated, the Commonwealth has not and, without constitutional amendment, cannot obtain such legislative power with respect to any aspect of such trade and commerce No so-called integration of inter-State and intra-State air navigation or air

transport, commercial or otherwise, no intermingling or commingling of the two to any degree, however complete, can enlarge the subject matter of Commonwealth legislative power in the relevant field. o However, a majority of the Court held that the licensing system was valid on the basis that s51(i) was wide enough to enable the making of laws to ensure the safety, efficiency and regularity of interstate and overseas air navigation o Barwick CJ: A clear conclusion must be drawn that the safety of air operations in Australia does not admit of any distinction being drawn between aircraft engaged in intra-State and those in inter-State or international air operations in connection with all those matters which go to make up what I can compendiously call safety precautions and procedures. Airservices Australia v Canadian Airlines (1999) 202 CLR 133 o The above approach was approved. However, the entire Court rejected the regulation purporting to give the Commonwealth power to authorise intrastate air transport operations on the basis that it could not be demonstrated that the regulation was supported by s 51(i).
In some cases it is less easy to distinguish the intrastate operation of a regulation from its interstate operation. Redfern v Dunlop Rubber Australia Pty Ltd (1964) 110 CLR 194. o Concerned constitutional issues arising out the governments trade practices legislations o Dunlop had deal with other tyre retailers, they said sell according to RRP this is called retail price maintenance o Dunlop argued that the Cth may have power to regulate interstate but not intra state o They said it had both inter and intra state workings they said u cant regulate us about intra state o Redfern argued that the Cth can regulate where it involves inter state, if intra agreement also is there then so be it. o The plaintiffs alleged that as a consequence of a restrictive trade agreement between the defendants they were unable to buy tyres and other rubber materials at the wholesale prices at which they would otherwise have been available or at prices other than current trade list prices. The tyre companies pleaded that the Act was unconstitutional on the basis that it could apply to agreements which involved both intrastate trade and s 51(i) trade in this case purporting to regulate a purely intrastate sale. o While Taylor J was prepared to consider that s 51(i) could extend to situations where there was an intermingling of interstate and intrastate trade and commerce, the power could not authorise regulation of a purely intrastate arrangement, even if this had an economic effect on interstate o Menzies J: o 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 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 the connexion (between intra-State trade and) overseas or inter-State trade or commerce must not be so remote or insignificant that there is no real relationship Can an economic connection between intrastate trade and interstate trade authorise Federal regulation of intrastate trade and commerce?
Minister for Justice (WA) (Ex rel Ansett Transport Industries (Operations) Pty Ltd) v Australian National Airlines Commission (1976) 138 CLR 492. o Most recent case on T&C o The case concerned the constitutional validity of regulations authorising the Australian National Airlines Commission, a Federal body, to provide interstate airline services. The Commission made regulations enabling a service between Perth and Darwin, with a stopover in Port Hedland, Western Australia to pick up passengers and freight. Ansett challenged the scheme on the basis that it authorised an intrastate air service that could not be supported by s51(i). o A majority of the High Court, held that the proposed scheme, insofar as it operated between the Northern Territory and other parts of the Territory, and between the Northern Territory and parts of Western Australia, involved a constitutionally valid exercise of the Territories power, s122. o However, inasmuch as the scheme contemplated an intrastate air transport journey between Perth and Port Hedland, it was constitutionally invalid. o Gibbs J: It has been held again and again and in my respectful opinion, correctly held that s51(i) recognises a distinction between inter-State trade on the one hand and the domestic trade of the States on the other, and that this distinction must be maintained however much interdependence may now exist between those two divisions of trade and however artificial the distinction may be thought to be. It is also established that the incidental power cannot be given an operation that would obliterate the distinction.
Therefore, the HC concluded that an economic relationship could not justify a regulation of intrastate trade and commerce. Implied incidental power and characterisation

Attached to every express grant of power in the Constitution is an implied grant of power wide enough to make that express grant effective. This is called the implied incidental power. In the context of trade and commerce, the implied incidental power has enabled the Federal Parliament to regulate activities preparatory to trade which occur wholly within a State. OSullivan v Noarlunga Meat Ltd (No 1) (1954) 92 CLR 565 o The plaintiff charged the defendant with failure to comply with provisions of a South Australian statute that required persons using any premises for the purpose of slaughtering stock for export as fresh meat in a chilled or frozen condition in that State to hold a licence issued by the Minister for Agriculture. Noarlunga Meats challenged this legislation on that basis that it was inconsistent with Federal meat export regulations and, consequently, invalid to the extent of the inconsistency under s109 of the Constitution. o Noarlunga sold product intra-state, inter-state and overseas, and developed techniques that were inconsistent with federal requirements. o The question was whether the Cth law was valid or not. OSullivan argued it was not as Noarlunga Meats was engaging in intra-state activities. o OSullivan argued that the distributive aspect is what the T&C power is all about o Noarlunga Meats said that the T&C power must be read with its incidental power o That is, it needs to be read with what is it sufficiently connected with o The temperature has to do with the quality of the meat, sufficient connection between the regulation and the intra-state activity o The High Court had to decide whether the Federal regulations were a valid exercise of the Commonwealths power with respect to overseas trade and commerce, and confirmed that the trade and commerce power extended to enable the prohibition of export trade except upon compliance with certain conditions. o Fullagar J described the implied incidental power as a most welcome aid and assistance in interpreting the scope of s 51(i), and that s 51(i), with its implied incidental power, extended to: o All matters which may affect beneficially or adversely that export trade of Australia in any commodity produced or manufactured in Australia must be the legitimate concern of the Commonwealth. Such matters include not only grade and quality of goods but packing, get-up, description, labelling, handling, and anything at all that may reasonably be considered likely to affect an export market by developing it or impairing it. It seems clear enough that the objectives for which the power is conferred may be impossible of achievement by means of a mere prescription of standards for export and the institution of a system of inspection at the point of exportI think it safe to say that 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. o While the Commonwealth has no express power to regulate the treatment of beef carcasses in an abattoir (an activity preparatory to trade occurring wholly within one State), this case indicates that the Commonwealth can prescribe standards for their treatment if the carcasses are destined for export trade. Similarly, while the Commonwealth has no express power to regulate mining activities, it may use its trade and commerce power to control the export of mineral sands: Murphyores

The implied incidental power has enabled s 51(i) to extend to the regulation of employment relations between stevedoring companies and waterside workers: Huddart Parker Ltd v Commonwealth (1931) 44 CLR 492; R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256; R v Wright; Ex parte Waterside Workers Federation of Australia (1955) 93 CLR 528. It has also authorised the imposition of penalties in respect of prohibited imports, and seizure and forfeiture of such goods: Burton v Honan (1952) 86 CLR 169. Section 51(i) supports a statutory lien on aircraft designed to secure payment of charges where such a device was reasonably and appropriately adapted to the achievement of a purpose incidental to the regulation of air navigation: Airservices Australia v Canadian Airlines (1999) 202 CLR 133 at 256 per McHugh J. Characterisation: a sufficient connection is required There must be a sufficient connection (or connexion) between the matter, thing or activity to be regulated (including intrastate matters) and interstate or overseas trade before s 51(i) can be invoked to support a Federal law: OSullivan v Noarlunga Meat Ltd (1954) 92 CLR 565. The sufficiency of the connection depends on the context. In OSullivan, a sufficient connection was supplied by the fact that the production processes were objectively geared for export trade. However, while it is clear that this method of characterisation can significantly enhance the scope of the trade and commerce power, a sufficient connexion is not supplied by a mere economic relationship between the intrastate matter and interstate or overseas trade: Minister for Justice (WA) (Ex rel Ansett Transport Industries (Operations) Pty Ltd) v Australian National Airlines Commission (1976) 138 CLR 492. Policy Policy of law irrelevant to characterisation When the High Court characterises a Federal law to determine whether it falls within s 51(i) it does not have regard to the policy which the Parliament seeks to effect. The policy is irrelevant, the sufficiency of connection is the important consideration. Murphyores Inc Pty Ltd v The Commonwealth (1976) 136 CLR 1 o Mason J said: o the power to legislate with respect to trade and commerce with other countries, including as it does power to prohibit and regulate the exportation of goods from Australia, necessarily comprehends the power to select and identify the persons who engage in, and the goods which may become the subject of, that activity It is then for Parliament in its wisdom to decide who may export goods and what goods may be exported. The means and criteria by which this choice is to be made are for Parliament to decide. There is nothing in the subject matter of the constitutional power which justifies the implication of any limitation on Parliaments power of selection
Purpose and policy distinguished

Purpose and policy can not be used interchangeably. The law does not have regard to policy but it may have regard to purpose. For example, in OSullivan the purpose of setting freezing temperatures was to enhance export trade in meat. This is considered purposive. Look at the law, and the Cths purpose. Then look to see what the law is doing. Is the regulation reasonably adapted to the purpose? If so then it is valid Sufficient connection test is slightly different but it is directed to the same objective. Characterisation (2 approaches). The policy that motivates a law should not be confused with the purpose of the law. While the Court will disregard the policy of a law when it determines its validity under a head of power, it can have regard to its purpose, to determine whether it is sufficiently connected to an end within power, or as noted above, something incidental to the power. Thus, the Commonwealth has enacted valid laws for many different trading and commercial purposes: Setting up a trading enterprise: Australian National Airways Pty Ltd v The Commonwealth Enhancing export trade: OSullivan v Noarlunga Meat Ltd (1954) Protecting interstate trade: Redfern v Dunlop Rubber Australia Ltd (1964) To secure payment of statutory charges that are reasonably necessary for the regulation of air navigation: Airservices Australia v Canadian Airlines (1999)
Limitations on the Trade and Commerce Power: The language of the section indicates that the power is subject to the Constitution, including any express or implied constitutional limitations on power. A number of these limitations bear directly on the topics of trade and commerce, such as ss 92, 99 and 100. Other express limitations can conceivably arise from ss 5i (xiii) or (iv), as well as any implied constitutional limitations.
Corporations
Section 51(xx) of the Constitution provides: 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: (xx) foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth What is a corporation? A corporation is an association of individuals who join for certain purposes, such as the conduct of business. A corporation has a distinct legal identity from the individuals who form it, including legal rights

and duties, the capacity to sue and be sued, to enter contracts, to own property and the capacity to commit offences. The significance of corporations A considerable proportion of the business activities in Australia are undertaken by foreign, trading or financial corporations, and consequently s51(xx) provides the Federal Parliament with a significant power to regulate Australian businesses. The corporations power supports legislation regulating trade practices, industrial relations, activities of corporate officers, and a number of other topics. Foreign, trading or financial corporations Foreign: Foreign corporations are formed outside the limits of the Commonwealth: New South Wales v The Commonwealth (1990) 169 CLR 482 Trading: On the basis on ss51(i) and 92, trade would appear to extend to buying and selling, transport for reward and the purchase or sale of money, credit, news or information, tangibles or intangibles. The word trading can be interpreted in its current and popular sense, and is not restricted to the denotation it had in 1900. The word trading can be interpreted in its current and popular sense, and is not restricted to the the meaning the words had had in 1900: R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Adamsons case) (1979) 143 CLR 190 at 233. R v Judges of the Federal Court of Australia ; Ex parte Western Australia National Football League (Adamsons case) (1979) 143 CLR 190 o Football player wanted to transfer to a South Australian club, however his football club prevented him from doing so, therefore he brought an action against the club claiming that there was a restraint of trade. o High Court held that if a corporation has substantial or significant trading activities, then it will be a trading corporation. Since the football club was involved in merchandising, selling tickets to games and hiring out stands, it was held to be a trading corporation.
Trading is a gerund or verbal noun that denotes activity. It refers to the activity of engaging in trade. Should any significance be attached to the fact that s 51(xx) refers to trading corporations rather than, say, corporations that trade? In Actors and Announcers Equity Association v Fontana Films Pty Ltd, Gibbs CJ, in a passage cited with approval by Dawson J in Re Dingjan; Ex parte Wagner, said: "The words of par (xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid ... In other words, in the case of trading and financial corporations, laws which relate to their trading and financial activities will be within the power. This does not mean that a law under s 51(xx)

may apply only to the foreign activities of a foreign corporation It means that the fact that the corporation is a foreign corporation should be significant in the way in which the law relates to it."
Refer to the meaning of trade and commerce in the s51(i) power Financial: The word financial can be interpreted in its current and popular sense, and is not restricted to the the meaning the words had had in 1900: (Adamsons case) Re Ku-Ring-Gai Co-operative Building Society (No 2) (1978) 22 ALR 621 o High Court had to consider whether the Trade Practices Act 1974 (Cth) applied to building societies set up to provide low-interest loans to their members for housing. o It was only the secondary objective to make a profit from providing its finance. o The Full Court agreed that building societies were financial corporations for the purpose of s51(xx). o Deane J, basically concluded that financial means the activities of a corporation that involve buying and selling money. o Brennan J: the borrowing of moneys to lend to its members, the lending of those moneys, the receipt of repayments and the ultimate repayment of moneys to the source from which they came. These are money dealings. The activities of borrowing in order to lend and lending at interest are financial activities which give to each corporation the character, and place it within the category of financial corporation. o Deane J: Whatever may be the motivation of borrower or lender or of those involved in making or assisting in making the relevant funds available, the borrowing from the bank of each applicant was a secured borrowing at interest and was a commercial dealing in financeThe lending to members is the raison detre of the applicants and both the purpose and the culmination of their operations. State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 o The Victorian State Superannuation Board administering a fund established to provide pension payments for State public servants. The constitutional question was whether the TPA applied to the Board for the purposes of it being a financial corporation under s51(xx) o like the expression trading corporation, the words financial corporation are not a term of art; nor do they have a special or settled legal meaning. They do no more than describe a corporation which engages in financial activities or perhaps is intended to do soa finance corporationdeals in finance for commercial purposes, whether by way of making loans, entering into hire purchase agreements or providing credit in other forms, and this activity is not undertaken for the purpose of carrying out some other business. However, just as a corporation may be a trading corporation, notwithstanding that its trading activities are entered into in the course of carrying on its primary or dominant undertaking, thus a corporation which is formed by an employer to provide superannuation benefits for its employees and those of associated employers may

nevertheless be a financial corporation if it engages in financial activities in order to provide or augment the superannuation benefits. A corporation thats buys and sells money is a financial corporation for the purposes of s51(xx). A corporation may be a financial corporation for the purposes of s51(xx) even if it is directed to activities other than the provision of finance. It need only have financial activities.
Actual or Intended Activities The character of a corporation may be determined by reference to its actual or intended activities: NSW v Cth (1990) This is regarded as the test to determined if the business or organisation is in fact a corporation under s51(xx): what is the actual or intended activity. If a corporation is formed with the purpose of engaging in trading or financial activities, this will be sufficient to mark the corporation as a trading or financial corporation for the purposes of s51(xx) If a corporation is engaged in trading or financial activities, even though it may have been formed for other purposes, it will be a trading or financial corporation within the meaning of s51(xx) if its trading or financial activities constitute a substantial or significant part of its activities.
Intended activities/Purposes: R v Trade Practices Tribunal; Ex parte St George County Council (the St George County Council case) (1974) 130 CLR 533, A corporation was defined by reference to its purposes, rather than its activities. This was a 3:2 majority that the purpose is looked at Majority: Menzies, Gibbs and McTiernan not a trading corp. o McTiernan s51(xx): does not apply to public corporation o Menzie and Gibbs: does not apply to immiscible corporation FURTHERMORE: have to look at the purpose of the corporation, the council was corporate not for profit basis. They made a profit but that was not their purpose for incorporation Minority: Mason CJ and Barwick: you characterize by its activities. What does that corporation do? If it acts in trading activities then it is a trading corporation. o A corporation was defined by reference to its purposes, rather than its activities. o The question here was whether the St George County Council was a corporation as it was formed to buy and sell electricity in a local Government district in New South Wales, and also sold electrical appliances, from which it delivered profits. o Based on the facts, it was held that the County Council was not a corporation. It was considered by Menzies J that the character and purpose of the Council was to serve the public interest, and that the Council was properly characterised as a municipal corporation rather than a trading corporation. o Gibbs J: in my opinion, the words trading corporation in s51(xx) do not mean a corporation which is trading. The word trading forms part of a composite expression and indicates

the essential attribute of the kind of a corporation to which it refersthe power given by s51(xx) is not in respect of trading, and it does not extend to corporations generally; a corporation, even if trading, is not within the power unless it is foreign, trading or financial corporationA trading corporation is one formed for the purpose of trading. Look at the purpose of the corporation. The council was corporate for the service and not for a profit basis The fact that it made a profit was not its purpose
A test of intended activities applies to Shelf Companies:
Fencott v Muller (1983) 152 CLR 570

o
The High Court was required to consider whether or not the TPA extended to regulate a shelf company or only companies actually trading. o A shelf company is one which has not been incorporated and not yet having had engaged in any trading or financial activities, but is anticipated to in the future, so is placed on the metaphorical shelf till it begins its activities. o A majority agreed that a test of the purposes (or intended activities) could be applied in circumstances where a corporation has not yet commenced activities. The character of a corporation as a trading or financial corporation can be determined by reference to its objects contained in its memorandum and articles of association, as a guide to whether it is a trading or financial corporation, where it was a shelf company which had not carried on business. o This basically covers every company in Australia because trading will inevitably be one of any companys purposes.
Substantial or significant activities:
Held: trade practices act regulate trading corporation and they can be categorized by its purposes OR activities. In this case you apply the activities test. Nothing in this case suggests you cant apply purpose test but just confirmed that you can apply the activity test. R v Judges of the Federal Court of Australia ; Ex parte Western Australia National Football League (Adamsons case) (1979) 143 CLR 190 o Football player wanted to transfer to a South Australian club from a WA club, however his football club prevented him from doing so, therefore he brought an action against the club claiming that there was a restraint of trade. o High Court held that if a corporation has substantial or significant trading activities, then it will be a trading corporation. o The league argued that they were not a trading corporation because their purpose was to promote football

o The HC said since the football league was involved in merchandising, selling tickets to games and hiring out stands, it was held to be a trading corporation. o The High Court confirmed that a test of the actual activities of a corporation will normally be applied. trading corporation is not and never has been a term of art or one having a special legal meaningessentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporationEven though trading is not the major part of its activities, the description, trading corporation does not mean a corporation which trades and does nothing else or in which trading is the dominant activity. A trading corporation mal also be a sporting, religious, or government body. As long as the trading is not insubstantial, the fact that trading is incidental to other activities does not prevent it being a trading corporation. o Held: Trade practices act regulate trading corporation and they can be categorised by its purpose OR activities. o In this case the activities test was applied, but it did not say that the purpose test could not be applied. These substantial or significant activities need not form a predominant part of the corporations activities: State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 o Case concerned Vic State Super Board. They collected super and pension for Vic employees and invested it on their behalf. At retirement the workers received a payment o Trade Practices wanted to prosecute o Ku-Ring Gui Case that financial corporation is one that collects and invests money (buy and sell money) o HC had no problem in deciding that it was a financial corporation as it collected and invested money o The question was whether it was substantial? The HC applies Adamsons Case. o The HC developed a doctrine: the substantial and significant activities need not form a predominant part of the corporations activities. (thus, it can be for charity purposes and still considered a trading corporation) o There is nothing in Adamson which lends support for the view that the fact that a corporation carries on independent trading activities on a significant scale will not result in its being properly categorized as a trading corporation if other more extensive nontrading activities properly warrant its being also categorized as a corporation of some other type.
To be safe in the test apply all of the tests: The character of a corporation is by the reference of actual or intended, substantial or significant, trading or financial activities that may not form predominant part of the activities Trading and financial corporations Formed within the limits of the Commonwealth

There is no general power under s51(xx) for the Commonwealth to incorporate trading or financial corporations: Huddart, Parker & Co Pty Ltd v Moorehead (1909)8 CLR 330 (below) o This case was decided in 1909 and overruled in 1971. o Can the Cth use s51(xx) to regulate trading corporations? Should be read narrowly and that it was a state reserve power. o Engineers Case overruled this. New South Wales v The Commonwealth (the Incorporation case) (1990) 169 CLR 482 o This case concerned the validity of the Corporations Act 1989 (Cth) which purported to give the Commonwealth power to incorporate trading and financial corporations. o The majority of the High Court interpreted the word formed in s51(xx) as a word used to describe corporations which have been or shall have been created in Australia. o Consequently, s51(xx) only gives the Commonwealth power over foreign, trading or financial corporations which are already formed. o Thus the Cth does not have the constitutional power to incorporate trading and financial corporations. o However, the Commonwealth may incorporate companies as a matter incidental to other heads of power, for example s122 or s51(i).
N.B.
States sold its power to incorporate trading or financial organizations to the Cth. S51(xxxvii) gives states power to refer their constitutional powers to the constitution THUS now you go to ASIC and not a state commission to incorporate The states threatened the treasurer by saying they will take back the power, because it had a sunset clause Australian National Airways Pty Ltd v Commonwealth (No 1) (1945) 71 CLR 29 o The High Court said that the Commonwealth may incorporate a company under s51(i) to conduct an interstate trading business.
The scope of the corporations power The earlier view: The power to regulate intrastate trade has been reserved to the States. Huddart, Parker & Co Pty Ltd v Moorehead (1909)8 CLR 330 (above) o This case concerned the validity of Commonwealth legislation which extended to control the restraint or monopolisation of interstate trade. o Held that s51(xx) had a limited scope and could not be used to regulate the intrastate activities of foreign, trading or financial corporations. The Court applied the doctrine of State reserved powers and concluded that the power to regulate intrastate trade has been reserved to the States.

A broader approach: The power to regulate the trading activities of trading corporations and; The power to regulate the financial activities of financial corporations
There is a basic tension in the HC between judges with regard to s51(xx): Approach 1: s51(xx) once you determine that the corporation is a trading or financial corporation then you can regulate any of its activities Approach 2: s51(xx) once you determine that the corporation is a trading or financial corporation then you can only regulate its trading or financial activities Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 o This case concerned the constitutional validity of provisions of the TPA and whether provisions which regulated the intrastate trading activities and practices of trading or financial corporations could be supported by s51(xx). o Moorehead was applied and these provisions were held to be invalid. o On appeal to the High Court, Moorehead was disapproved on the basis that it was decided during the currency of the doctrine of State reserved powers, a doctrine that was rejected by the High Court in the Engineers case in 1920. Due to this, the Court held that: a law may be a law with respect to a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth notwithstanding that it affects the corporation in the conduct of its intrastate trade. o Barwick CJ proceeded to state that the power extended to enable the regulation of amongst other things the trading activities of foreign corporations and trading or financial corporations formed within the limits of the Commonwealth. o The Court had also expressed no doubt that the power could authorise offences subjecting individuals to civil liability under the trade practices legislation. o Mason J concluded that s51(xx) was wide enough to enable the Federal Parliament to create the offence, and also, with or without the incidental power, to extend liability to a person knowingly concerned in the commission of an offence. o The court said that attached to every express grant of power is an implied grant of power wide enough to make the express grant effective Fencott v Muller (1983) 152 CLR 570 o The decision extended civil liability to persons involved in corporate contraventions of the TPA. It was held thatonce it is accepted, as it is now, that the corporations power extends to the regulation of the trading activities of trading corporations, it necessarily follows that, in some circumstances at least the power must extend to the imposition of duties on natural persons[because] corporations act through natural personsand in order to be effective, a regulation of the activities of corporations calls for the imposition of duties on those natural persons who would, or might, in the ordinary course of events, participate in corporate activities, the subject of intended regulations.
Broader still: A power to regulate the activities of persons who harm the interests of s51(xx) corporations.

Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 o S45D of the TPA prohibits secondary boycotts. o Actors and Announcer Equity Association said that the section of the TPA did not apply to them as they were a union. o Otherwise, there would be a power to regulate unions in s51 o The HC held that s 51(xx) regulates any activities that would harm the interest of any trading or financial company o It was held that a law with respect to trading corporations, a law to be supported by s51(xx), did not need to be limited to the regulation of the trading activities of trading corporations. o It was also interpreted that the power was a plenary power a power to legislate with respect to a type of legal person. o There is no distinction, for the purposes of s51(xx) of the Constitution between a law which operates to protect the business of a corporation from loss or damage, and one that operates to protect the corporation from interference with its trading activities. Each protects the subject of a power by operating directly on it. o Can use the power to protect corporations not just regulate them Victoria v Commonwealth (1996) 187 CLR 416 o A law which prevents third parties from entering into agreement with a s51(xx) corporation for the purpose of preventing or hindering the corporation in its trading activities is one so closely connected with the regulation of the corporation in the conduct of its trading activities as to be a law with respect to a s51(xx) corporation.
A plenary power? Is it a power to regulate any activities of a s51(xx) corporation? Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1 o The case concerned a proposed Hydro Electric Plant. Labour government came into power. As a policy move said they would stop the plant. o They passed federal legislation to stop the building of the dam. The constitutional validity of the Act was challenged. o Went to the HC. o The Cth argued it had invoked the external affairs and the corporations power to pass the legislation. o External Affairs Powers: Cth said they were going to implement the world heritage obligations so needed the External Affairs power to implement into domestic law. o This argument was rejected as the HC said it was merely putting international law into domestic law o Corporations Power: Cth said legislation prevented corporations from accessing the land is legislation supported by s51(xx) because according to the HC the Cth could us its power over trading corporations to regulate trading activities done for the purpose of trading activities o The company which was undertaking the project (Tasmanian Hydro) was incorporated for the purpose of trading activities. o Hence there was no question that it was a trading corporation created for the express purpose of trading electricity. o What was to be decided was the ambit of the power.

o The HC said that it is possible to regulate activities done for the purpose of trading activities under s51(xx) o A majority of the High Court confirmed that s51(xx) extended to enable the regulation of activities of a trading or financial corporation undertaken for the purpose of trading activities. o Murphy, Deane and Mason JJ expounded the view that once it is determined that a corporation is foreign, trading or financial; it is possible to regulate ALL and ANY of its activities. This is a broad interpretation of the power. o Murphy J: the power under s51(xx) extends to any command affecting the behaviour of a foreign corporation or a trading or financial corporation and is not restricted to commands about the trading activities of trading corporations or about the financial activities of financial corporations. o Deane J agreed, saying: It was submitted that the power to legislate with respect to trading corporations should be construed as being restricted to a power to make laws with respect to the trading activities of trading corporations I find it more than difficult to accept that such a construction of s 51(xx) accords with the well-established principle that constitutional grants of legislative power should be construed expansively rather than pedantically. Examination of the words and structure of s 51(xx) discloses no reason in language or in principle of legal interpretation why the power to legislate with respect to trading corporations should be given such a restricted meaning Therefore, once a corporation has been identified as a foreign, trading or financial corporation within the tests considered above, any of its activities can be regulated. Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 o Mason CJ: The power must be construed as a plenary powerthe power is not limited to the regulation of the functions, activities and relationships of constitutional corporations(and) extends to the enactment of laws dealing with activities undertaken for the purposes of the business of a constitutional corporation. o Toohey J: o The power conferred by para (xx) is a plenary power, to be construed with all the generality which the words used admitit is true that corporations are identified as the subject matter of the power. But in the end the question is whether there is a sufficient connection between the law and the subject matter to be able to say that the law is one with respect to that subject matter.
Characterisation A sufficient or significant connection between the power and the Federal law is required. Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 o This case concerned industrial relations legislation and the validity of whether the Commonwealth can use the power of s51 (xx) to regulate industrial relations between a Tasmanian pulp company and its sub-contractors.
Tas pulp

o No question with regard to the first relationship. There is no dispute that the relationship between trading corporations and employees is a trading activity in itself (buying and selling of labour) o The tension between the judges of the HC. o The broad view: says the Cth can regulate any activity o The narrow view: says the Cth can regulate the trading or financial activities of trading or financial corporations. o The 2nd relationship is where the difficulty arose, both were not trading corporations. o Did this mean that both escaped the regulation? o 4:3 majority o Brennan, Dawson, Toohey: the contractual relationship cannot be regulated by the Cth under s51(xx) because it is not sufficiently connected to a trading corporation o Mason, Dean, Gaudron: apply but for kind of test. The Dingjans would not be collecting trees but for the 1st relationship, hence a sufficient connection existed. o McHugh: plenary power not connected to the 2nd relationship. o However, whether a sufficient connection was present between the 2nd contractors and Tasmanian Pulp was the issue. o In reaching a decision, the High Court was divided in a 4-3 split, emphasising the difficulty of the sufficiency of connection. It was held that the relationship between the company and its 2nd set of sub-contractors was not sufficiently connected to the power invoked by s51 (xx). o The question is whether there is a sufficient connection between the law and the subject matter to be able to say that the law is one with respect to the subject matterit emphasises that the connection must be substantial, not merely tenuous. o The question whether a law which is supported by s51(xx) can bedetermined by reference to its direct legal operation according to its terms(meaning) that the character of the law is to be ascertained by reference to the nature of rights, duties and privileges which (it) creates, changes, abolishes or regulates. o Toohey J: emphasises that the connection must be substantial, not merely tenuous. The law must be one which in reality and substance is a law upon the subject matter. And that is so whether the subject matter is identified by reference to persons or otherwise. It is not enough that the law should refer to the subject matter or apply to the subject matter. In the case of s51(xx) the law must operate on the rights, duties, powers or privileges of corporations in such as way as to evidence a sufficient connection between the laws and the corporations. It is not enough to identify corporations as a reference point so as to affect the activities of others. o McHugh J: In determining whether a law is with respect to a head of power in s51 of the Constitution, two steps must be taken. First the character of the law must be determined. That is done by reference to the rights, powers, liabilities, duties and privileges which it creates. Secondly, a judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to a head of power conferred by s51. In determining whether the connection exists, the practical, as well as the legal, operation of the law must be examined. If the connection exists between the law and a s51 head of power, the law will be with respect to that head of power unless the connection is, in the

words of Dixon J, so insubstantial, tenuous or distant that it cannot be sensibly be described as a law with respect to the head of power. o Dawson J: For a law to be a valid law with respect to 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. o The ultimate question of sufficient connection is a question of degree (sufficiency) which leaves much in the eyes of the beholder. Victoria v Commonwealth (1996) 187 CLR 416 o The Court was asked to consider the constitutional validity of provisions of Federal industrial relations legislation which proscribed conduct of a specified kind that hindered or prevented a s51(xx) corporation from trading with another person if the purpose or likely effect of the conduct was to cause substantial loss or damage to the business of that other person. o There is no distinction, for the purposes of s51(xx) of the Constitution, between a law which operates to protect the business of a corporation from loss or damage and one that operates to protect the corporation from interference with its trading activitiesit follows from Re Dingjan that not every direction to a third party which relates to the business of a s51(xx) corporation is a law with respect to a corporation of that kind. However, a law which prevents third parties from entering in agreements with a s51(xx) corporation for the purpose of preventing or hindering the corporation in its trading activity is one so closely connected with the regulation of a corporation in the conduct of its trading activities as to be a law with respect to a s51(xx) corporation.
Analysis: The proposition that s 51(xx) is a plenary power over the types of corporations listed in that provision is plainly correct, and this was confirmed by a clear majority in Re Dingjan as noted in the analysis of the judgment of Toohey J above. This is consistent with orthodox (conventional) principles of constitutional interpretation. Where there is conflict regarding the natural and ordinary meaning of the words in constitutional powers, the High Court has indicated a preference for the broader or wider interpretation of a word or phrase. This approach to constitutional interpretation was endorsed by OConnor J in Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 3678: it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where 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 lead 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. In addition, it is a well-established principle that the words of a power are to be construed with all the generality the words admit. The conclusion is irresistible when one considers the absurdity of the narrow view, as Mason J points out in the Tasmanian Dam Case (1983) 158 CLR 1: It can scarcely have been intended that the scope of the power was to be limited by reference to the

foreign aspects of foreign corporations and the financial aspects of financial corporations. And it would be irrational to conclude that the power is plenary in the case of those corporations, but limited in the case of trading corporations: at 148149. In the Engineers case, the High Court said that the powers of the Federal Parliament are not to be construed as if they are beset by unexpressed or implied limitations on power. Once a corporation has been defined, by reference to its actual or intended activities (and noting that trading or financial activities need not form a predominant part of their activities). then s 51(xx) is a plenary power with respect to those corporations. But what about characterisation? The judgments in Re Dingjan expose a diversity of approaches. The judgments that form the majority (defined in terms of the judgments concluding with the order of the Court) were the judgments of Brennan, Dawson, Toohey and McHugh JJ. Brennan J developed a discrimination test that was not taken up by any other member of the Court, except in passing, and for that reason will be considered in no further detail. Dawson J starts with Barwick CJs comment in Strickland v Rocla Concrete Pipes that not every law referring to s 51(xx) corporations will involve a valid exercise of that power, and then says that for a law to be a valid law with respect to a trading or financial corporation, the fact that it is a trading or financial corporation should be significant in the way in which the law relates to it. But since a numerical majority of the Court has concluded that s 51(xx) is not limited to the foreign, trading or financial activities of foreign, trading or financial corporations, but extends to enable the regulation of any matter that is sufficiently connected to a s 51(xx) corporation, Toohey J is right to observe that Dawson Js test of characterization is too narrow. In addition, Dawson Js comment that the Commonwealth was merely using s 51(xx) as a peg upon which to hang legislation, not upon the subject of constitutional corporations, but upon an entirely different subject misconceives the way in which the Commonwealths powers under s 51 can and have been used. It is now well established that the Commonwealth can use its powers to regulate, indirectly, activities and things that fall outside the strict subject matter of a power (consider, for example Murphyores [s 51(i) power over export licensing used to effect environmental policy of preventing sand-mining on Fraser Island by rendering operations economically unviable] or the Fairfax case [s 51(ii) used to provide tax incentives for people investing in government bonds]). For the foregoing reasons it is submitted that the judgments of Toohey J and McHugh J seem to reflect orthodox principles of construction of constitutional powers and orthodox principles of characterization. Their judgments were both in the majority. In Re Dingjan: The 5 judges say the power is plenary, once it is determined that a corporation is foreign, financial or trading then it can regulate. 2 were in minority, 3 were in majority regarding this point Court seems to support the above proposition When it comes to characterization: o Toohey and McHugh seem to apply the orthodox approach which is a sufficient connection test o A test of degree

External Affairs
Section 51 of the Constitution provides: 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: (xxix) External affairs: The phrase external affairs refers to any persons, places, matters or things geographically external to Australia, and enables the Parliament to pass laws concerning crimes committed by Australian aircraft or by Australians overseas, and petroleum and mineral exploration in Australian international waters. It also refers to Australias relationship with other countries, including diplomatic relations, requests for the extradition of fugitives from other countries who are wanted in Australia, and Australias international obligations under treaties or otherwise. Australian law authorised by the external affairs power implements treaty obligations in a wide variety of areas. Polyukhovich v The Commonwealth (1991) 172 CLR 501 o This case concerned a man living in Adelaide, who was charged with war crimes which he was alleged to have engaged in. o The Act said that any person in Australia that engaged in Nazi was crimes was liable for prosecution. o The constitutional validity was questioned due to the retrospective effect and that a law cannot regulate outside of Australia. o The HC held that the Cth can regulate out of Australia. o Deane J said, external means outside, that is, affairs outside of Australia, including people, places, matters or things outside Australia, or external to, Australia. o This also includes international treaties and the implementation in Australian domestic law. o The first thing to be stressed about s 51(xxix) of the Constitution for the purposes of the present case is that its reference to External affairs is unqualified. The paragraph does not refer to Australias 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. Used without qualification or limitation, the phrase external affairs is appropriate, in a constitutional grant of legislative power, to encompass both relationships and things: relationships with or between foreign States and foreign or international organizations or other entities; matters or things which are territorially external to Australia regardless of whether they have some identified connexion with Australia or whether they be the subject matter of international treaties, dealings, rights or obligations. Such a construction of the phrase External affairs in s 51(xxix) is supported by the settled principle of constitutional construction which requires that, subject to any express or implied general constitutional limitations and any

overriding restrictions flowing from express or implied constitutional guarantees, the grants of legislative power contained in s 51 be (sic) construed with all the generality which the words used admit and be given their full force and effect The external affairs power and Australian federalism As a range of topics that can be regulated under s51(xxix) has expanded with the growth of Australias international personality and Commonwealth policy objectives have shifted to take into account social demands for environmental protection and the elimination of discrimination, the Commonwealth has come into conflict with the States, who at times expressed a different vision of Australian federalism than the vision of federal legislative supremacy enunciated in the Engineers case. Responding to the concern to maintain some sort of federal balance, a number of judges of the High Court adopt a limited construction of external affairs. Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1 o The central thrust was that, even if the Cth could convince the HC that s51(xx) and s51(xxix) it was yet to be struck down due to the Melbourne Corporation Case o They ran a Melbourne Corporation Case argument o Lost 4:3 o To consider, if the Melbourne Corporation Case does not apply in this case where does it apply? o This was a high point case for centralism but a low point for state rights o Gibbs CJ remarked there is almost no aspect of life which under modern conditions may not be the subject of an international agreement, and therefore the possible subject of Commonwealth legislative power. Whether Australia enters into any particular international agreement is entirely a matter for decision by the Executive. The division of powers between the Commonwealth and the States which the Constitution effects could be rendered quite meaningless if the federal government could, by entering into treaties with foreign governments on matters of domestic concern, enlarge the legislative powers of the Parliament so that they embraced literally all fields of activitySection 51(xxix) should be given a construction that will, so far as possible, avoid the consequence that the federal balance of the Constitution can be destroyed at the will of the Executive.
The Executive also enjoys certain powers in respect of Australias international relations, including the negotiation and conclusion of international treaties, the management of diplomatic affairs and requests for international assistance in the extradition of fugitives. Geographic externality Persons, places, matters or things external to Australia New South Wales & Ors v The Commonwealth (the Sea and Submerged Lands case) (1975) 135 CLR 337
o Cth purported to pass legislation (Sea and Submerged Lands Act 1973) which purported to give the Cth sovereignty over the sea and the sea bed and the sub soil from a point 3 nautical mils from the states out to the international limit (at the time 100 miles , now 200) o They wanted to generate royalties for oil and gas in those areas (traditionally states did this) o The legislation was challenged on the basis that the States retained power over their territorial sea after Federation, and this power extended beyond the low water mark o The HC held the Cth has the power under the external affairs power to regulate people, places, matters or things outside Australia, therefore the law was valid. o The legislation was upheld as it implemented Australian international treaty obligations and also on the ground that the external affairs power extended to allow the Federal Parliament to pass laws regulating affairs which are geographically external to Australia. Power to legislate with respect to extraterritorial matters with retrospective effect: Polyhukovich v The Commonwealth (1991) 172 CLR 501 o This case concerned the constitutional validity of the War Crimes Amendment Act 1988 (Cth), which criminalised the conduct of Nazi officers in Axis-occupied Territories during the Second World War in Europe if that conduct would have constituted an offence under Australian criminal law. The plaintiff challenged the legislation on a number of grounds, one that it was not a valid exercise of the external affairs power. o A majority upheld the Act on the basis that it operated upon conduct which had taken place outside Australia, confirming that s51(xxix) enables the regulation of anything outside Australia. o At 551 brennan sais, they are matters outside Australia but not those that have nothing to do with Australia. Brennan introduces his test of the need for a nexus between the matter which the law purports to effect and Australia. This is the narrow view of the limits of the external affairs of Australia o This was confirmed by Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in Victoria v The Commonwealth (1996) 187 CLR 416 at 485: The power extends to places, persons, matters or things physically external to Australia. The word affairs is imprecise, but it is wide enough to cover places, persons, matters or things. The word external is precise and unqualified. If a

place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase external affairs. Horta v Commonwealth (1994) 181 CLR 183 o Between the area of Australia and East Timor, there was a disputed area of sovereignty. Due to the annexation of East Timor in 1975, legislation was passed implementing a treaty for negotiations on the disputed area (Timor gap). This was challenged on the ground that since the annexation was illegal, so was the legislation. o Cth started to issue licenses to domestic companies to exploit the gas. The treaty was a sham, based on an illegal foundation therefore it was argued that it could not be valid legislation o Cth said that the legislation concerns a place that is geographically external to Australia, it is sufficiently connected to Australian concerns(they found it not necessary to consider the need for brennans test of a reasonable connection with australia as they said there was one anyway) therefore it is constitutionally valid o HC unanimously agreed that the Timor gap is outside Australia and is inside the power hence the Commonwealth could use their external affairs power. The Queen v Hughes (2000) 202 CLR 535 o Hughs was indicted for breaching corporations law, he questioned the right of the Cth DPP to prosecute. Some of the offences related to matters outside of Australia. Court said that because the offences with which hughs was charged related to investment in the us they not only related to 51i but also one territorially outside Australia and therefore b51xxxix.
Australias international relations and obligations The phrase external affairs also refers to Australias international relations. The external affairs power can be used to support federal legislation regulating Australias relationships with other countries and the conditions of those relationships. R v Sharkey (1949) 79 CLR 121 o The external affairs power supported legislation which made sedition (treason) a criminal offence in any of the Kings Dominions (including, at the time, the United Kingdom of Australia), sharky made pro communist comments o Latham CJ said: The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs.
Consequently, the external affairs power could authorise federal legislation which repealed Imperial legislation operating within the Australian States Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351

o (repealing Imperial legislation operating in the Australian States) o Kirmani injured while on aus ship and sued saying it was companies negligence. In defence captain cook said they were able to limit their liability under the merchant ship shipping act. The relevant sections of this act had been repealed by the cth in 1981 and the company argued the repeal by the cth did not effect the law in NSW. So Q was whether imperial leg adopted in nsw had been repealed with Cth. Court held that there had been a valid repeal. Brennan mason and deane jj said that the phrase the law of the cth within the legislation, the law of the cth means the laws with in the cth not just the laws within the competence of the cth parliament. They also said that the gov does have the power to repeal beause the law was with respect to external affairs, because it bought to an end in Australia, imperial legislation. So a cth legislation that repeals effects not only the cth but the constituent members of the cth.
Sources of international obligations: International obligations can arise from a number of sources, including international treaties or conventions to which Australia is a party, the recommendations of international organisations, matters of international concern and perhaps also the general principles of international law or customary international law. R v Burgess; Ex parte Henry (1936) 55 CLR 608 o it is not to be assumed that the legislative power of external affairs is limited to the execution of treaties or conventions; andthe Parliament may well be deemed competent to legislate for the carrying out of recommendations as well as draft international conventions resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations.
This list of sources is only indicative and is not exhaustive. Executive power over international relations also includes: The power to arrange for extradition of fugitives from foreign countries to Australia, even in the absence of a treaty with those nations (Barton v The Commonwealth) The power to regulate Australian waters (Ruddock v Vadarlis) The power to declare war and peace (Farey v Burvett] Treaties are entered into by the Governor-General on the advice of the Federal Executive Council: Barton v Commonwealth (1974) 131 CLR 477.
Implementation of international obligations: The external affairs power also gives the Commonwealth exclusive power to implement international

rights, duties, obligations or immunities into domestic law. The power can authorise the implementation of international obligations within the States, and also in the Territories: Newcrest Mining (WA) Limited v The Commonwealth (1997) 147 ALR 42
This typically involves a number of steps: Adoption of the treaty text by the participating States Signature and ratification which signifies acceptance or approval of the treaty A party may accede (agree) to a treaty that is already in force (accession), assuming the obligations and rights of member States. Parties may make reservations that indicate that they will implement the relevant treaty obligation in a certain way or in a way which modifies its effect in that State.
In Australian treaty practice the Commonwealth commonly enters a federal reservation when it negotiates and signs a treaty, indicating the Commonwealth may be limited in its power to implement some matters because it shares power with the States. Identification of International Obligations: a question of fact for the court to decide The identification of an international obligation can be a difficult task. The determination of the existence of an international obligation is a question of fact for the Court to decide. Queensland v Commonwealth (the Daintree Rainforest case) (1989) 167 CLR 232 o This case concerned federal legislation implementing Australian treaty obligations under the World Heritage Convention. The Convention included a World Heritage list of property of international environmental significance. Under the convention, parties had the power to nominate areas of land for inclusion. Relying on this power, the Commonwealth made a proclamation in respect to the Daintree Forest in Queensland. Queensland challenged this. o It was concluded by the High Court that, in the absence of any suggestion of bad faith either in the nomination of the listing, the inclusion of the property in the List was conclusive of its status in the eyes of the international community and conclusive of Australias international duty to protect and conserve it.
There are no limits to the topics which may be the subject matter of international obligations. The subject matter of the external affairs power is continually expanding, as Australias international personality expands. Treaties are entered into by the Governor-General on the advice of the Federal Executive Council: Barton v Commonwealth (1974) 131 CLR 477.
R v Burgess; Ex parte Henry (1936) 55 CLR 608 o A consequence of the closer connection between the nations of the world (which has been partly brought about by the modern revolutions in communication) and of the recognition by the nations of a common interest in many matters affecting the social

welfare of their peoples and of the necessity of co-operation among them in dealing with such matters, that it is no longer possible to assert that there is any subject matter which must necessarily be excluded from the list of possible subjects of international negotiation, international dispute or international agreement. However, the treaty must contemplate objectives and a specific regime for their achievement and not every treaty obligation is capable of implementation into domestic law. Victoria v Commonwealth (1996) 138 ALR 129 o There may be some treaties which do not enliven the legislative power conferred by s51(xxix), even though their subject matter is of international concernwhen a treaty is relied on under s51(xxix) to support a law, it is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal. The law must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the signatory status.
Treaties are not self-executing A treaty will not form part of domestic law until it has been implemented in a valid federal law: Walker v Baird (1892) AC 491 and Victoria v Commonwealth (1996) 138 ALR 129. There is no requirement that the Parliament implement international treaty obligations which are negotiated and settled by the Executive. However, this does not mean that treaty obligations which have not yet been implemented are irrelevant to Australian law. Where Australia is a party to a treaty, the text of that treaty may assist in the interpretation of ambiguous domestic law or in the exercise of statutory discretion: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 It is said to be a principle of Australian statutory interpretation that statutes are to be interpreted and applied in conformity and not in conflict with established principles of international law: Polites v The Commonwealth (1945) 70 CLR 60 and Teoh v Minister for Immigration and Ethnic Affairs (1995) 183 CLR 273.

Domestic law must conform to the international obligations If the Federal law demonstrates a clear intention to create legal obligations, it is then necessary to consider whether the domestic law conforms to the international treaty. The test is usually expressed as whether the federal law is appropriated and adapted to the implementation of the international obligations. If the domestic law is not appropriated or adapted to the source of international obligation, then it will not be supported by the external affairs power, unless some other power can be evoked to support it. The power extends to any provision appropriate or adapted to the international obligation, including anything reasonably incidental to its achievement. R v Burgess; Ex parte Henry (1936) 55 CLR 608 o The members of the Court were in substantial agreement on the test to be applied although they used different language in formulating the test. Sufficiently stamped with the purpose of carrying out the terms of the Conventionregulations must in substance be regulations for carrying out and giving effect to the Conventionall means which are appropriate, and are adapted to the enforcement of the convention and are not prohibited, or are not repugnant to or inconsistent with it, are within powera faithful pursuit of the purpose, namely, a carrying out of the obligation.
This would allow the Commonwealth to do anything reasonably incidental to the execution of the purpose but wide departure from the purpose is not permissible. Meticulous adherence to the terms of the treaty is not required so long as the purpose of the treaty is effected. Meticulous adherence to the terms of the treaty is not required, so long as the purpose of the treaty is effected. R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634 o Here the federal provisions were upheld by the majority, on the basis that the regulations at issue were incidental to the Convention, and were an appropriate means of implementing the Convention, notwithstanding the broader definition of the relevant area in the domestic regulations. o It was not necessary to demonstrate meticulous adherence to each provision in the Convention, so long as the domestic provisions were well adapted and appropriate to ensure the observance of the Convention or it was an appropriate and effective means of carrying out and giving effect to the Convention.
When the Commonwealth regulates a matter which is incidental to the effective implementation of an international treaty, it is not necessary for the domestic law to be referable to any explicit obligation in the treaty. The principle that the external affairs power extends to enable the Commonwealth to realise Australias reasonably apprehended treaty obligations has been accepted in a number of more recent decisions.

Commonwealth v Tasmania (1983) 158 CLR 1 Richardson v Forestry Commission (1988) 164 CLR 261
The law with respect to external affairs, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty: Victoria v Commonwealth (1996) 187 CLR 416 o The case concerned the constitutional validity of federal legislation binding the States which made provision for collective bargaining and the right to strike, and imposed obligations on employers with respect to minimum wages, equal pay, termination of employment, discrimination in employment and family leave. The law was challenged on a number of grounds, including that it was not within the external affairs power. It was argued that the external affairs power did not enable the implementation of treaty obligations unless the subject matter of the treaty was a matter of international concern, that recommendations of international organisations could not impose obligations in the relevant sense, and further, that the domestic provisions were not appropriate or adapted to the implementation of the obligations. o The Commonwealth argued that the law could be supported on the basis that it dealt with the subject matter of international treaties, recommendations and customary international law, all which could provide a source of international obligation. o The High Court held thatWhere the legislative power is said to be enlivened by a treaty binding on the Commonwealth of Australia, and the law prescribes a regime affecting a domestic subject-matter; a question arises as to the connection which must exist between the law and the treaty. To be a law with respect to external affairs, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty. Thus, it is for the legislature to choose the means by which it carries into or gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end. But that is not to say that an obligation imposed by treaty provides the outer limits of a law enacted to implement it. The term purpose has been used to identify the object for the advancement or attainment of which a law was enacted. Where a treaty relating to a domestic subject-matter is relied on to enliven the legislative power conferred by s 51(xxix) the validity of the law depends on whether its purpose or object is to implement the treaty. Richardson v Forestry Commission (1988) 164 CLR 261 o The power to make laws with respect to external affairs contains no expression of purpose and in that respect it is like most of the other powers contained in s51 of the Constitution. It is not a power to make laws for the purpose of cementing international relations or achieving international goodwill or even for implementing international treaties. The implementation of treaties falls within the power because it is a subjectmatter covered by the expression external affairsIn this context, purpose is not something found in the head of power. Rather, it is a test for determining whether the law in question is reasonably capable of being considered as giving effect to the treaty and therefore as being a law upon a subject which is an aspect of external affairs. It has been said that a law will not be capable of being seen as appropriate and adapted in the necessary sense unless it appears that there is reasonable

proportionality between that purpose or object and the means adapted by the law to pursue itThis is whether the law selects means which are reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty, so that the law is one upon a subject which is an aspect of external affairs. o That appears to have been the view taken by Evatt and McTiernan JJ in R v Burgess; Ex parte Henry (1936). But the Tasmanian Dam (1983) case and later authorities confirm that this is not an essential requirement of validity: Chu Kheng Lim v Minister for Immigration (1992) o Ultimately the federal provisions were read down on the basis that they infringed the Melbourne Corporation doctrine. Partial implementation is not adequate Tasmanian Dam case (1983) 158 CLR 1 o if the relevant law partially implements the treaty in the sense that it contains provisions which are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those terms, it would be extremely unlikely that the law could properly be characterised as a law with respect to external affairs on the basis that it was capable of being reasonably considered to be appropriate and adapted to giving the effect of the treaty.
There is also no additional requirement that a domestic law implementing an international treaty deal with a matter of international concern: Victoria v Commonwealth (1996) 187 CLR 416 Characterisation: Characterisation: Geographic externality The tests of characterisation applicable to the external affairs power differ, depending on which aspect of the external affairs power is being emphasised. If the law is said to be supported by the external affairs power on the basis that it concerns something geographically external to Australia, it is only necessary to demonstrate that the law is with respect to that matter or thing. Polyukhovich v The Commonwealth (1991) some judges shared the view that subject to express and implied constitutional limitations it was not necessary for the Federal Parliament to establish a connection between a matter outside Australia and Australian concerns in order to regulate the selected matter. The majority said that to require a connection would be inconsistent with the plenary grant of power to the Federal Parliament to make laws for the peace, order and good government of the Cth with respect to external affairs, and that to hold otherwise would be to create a void or space in the Cths legislative power. At any rate, any requirement of a connection would be satisfied by the Federal Parliaments selection o the matter as an appropriate matter to regulate: per Gaudron Minority (Brennan and Toohey JJ) expressed that more would be required: it would be necessary to demonstrate some sort of connection between the external affairs and

Australian concerns. Brennan J said: o the power conferred by s51(xxix) remains a power to make laws with respect to Australias external affairs. I do not understand the phrase external affairs to sweep into Cth power every person who exists or every relationship, set of circumstance or field of activity which exist or occurs outside of Australian Territory. The affairs which are the subject matter of the power are, in my view, the external affairs of Australia; not affairs which have nothing to do with Australia. Although affairs which exist or occur outside Australia may be described as external in a geographical sense, I would not hold that the Constitution confers power to enact laws affecting affairs which, though geographically external, have nothing to do with Australia. There must be some nexus, not necessarily substantial, between Australia and the external affairs which a law purports to affect before the law is supported by s51(xxix). Brennan J was of the view hat this interpretation of the scope of the external affairs power was consistent with international laws treatment of the legislative competence of a domestic legislature, and that no void was left in the plenitude of Australian legislative power to deny the character of a law with a law to external affairs to a law which does no more than affect something or somebody unconnected with Australia occurring or existing outside of Australia. Toohey J described the external affairs power as a power to make laws with respect to matter external to Australia which touch or concern Australias national interest in some way.
Horta v The Cth (1994) [look above] left open the question with respect to the requirement of a nexus unanimous judgment approving Polyukhovich and upheld the legislation on the basis that it dealt with a place which was geographically external to Australia, the Timor Gap The court was clear with regard to the comments of Brennan and Toohey JJ. They said in this case the fact that the Timor Gap was outside of Australia was also supported by the fact that exploration of petroleum resources formed an obvious and substantial nexus with Australian concerns, hence both were fulfilled.
Limits on the External Affairs power Section 51(xxix) is subject to the Constitution and its express and implied constitutional limitations. Victoria v Commonwealth (1996) 138 ALR 129 o While the federal law was not held to discriminate against a State or States, thus surviving the first limb of the Melbourne Corporation principle, the law failed on the second limb as the law removed the capacity of the States to set terms and conditions for their employees. This removed the States capacity to function as independent governing entities and the provisions were read down to limit the scope of their operation on this basis.
The scope of s51(xxix) is not limited by the scope of other powers It is a well established principle of constitutional interpretation that federal powers are to be read with all the generality the words admit, and are only to be limited by any express or necessarily implied

limitations in other provisions. For example, the external affairs power is not limited by the trade and commerce power. Airlines of New South Wales v New South Wales (No 2) (Airlines No 2) (1965) 113 CLR 54 o once it is decided, however, that some treaty or convention is, or brings into being, an external affair of Australia, there can be no question that the power under s51(xxix) of the Constitution thus attracted a plenary power and that laws properly made under it may operate throughout Australia subject only to constitutional prohibitions express of implied. In particular, laws properly made under this power may operate throughout Australia without regard to the distinction between interstate and intrastate trade and commerce to which observance must be paid in other connections.
If the Cth exercises its external affairs powers in implementing treaty obligations which are void or unlawful under international law this does not invalidate domestic legislation Horta v The Commonwealth (1994) 181 CLR 181 o The Court, in a unanimous judgment, said, even if the Treaty were void or unlawful under international law, the Act would not thereby be deprived of their character as laws with respect to External affairs for the purposes of s51(xxix). Neither s51(xxix) itself nor any other provision of the Constitution confines the legislative power with respect to External affairs to the enactment of laws which are consistent with, or which relate to treaties or matters which are consistent with, the requirements of international law.
The Commonwealth may not cite an international obligation as a sham or circuitous device to attract legislative power In a number of decisions there is dicta that suggest that the Commonwealth may not enter into an international treaty merely as a device to attract jurisdiction to itself which it would not otherwise have: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 and Commonwealth v Tasmania (1983) 158 CLR 1 It has been suggested that any international treaty to which Australia is a party must be bona fide: R v Burgess; Ex parte Henry (1936) 55 CLR 608 Horta v The Commonwealth (1994) 181 CLR 183 o In this case the Court considered the question whether the propriety of the recognition by the Executive of the sovereignty of a foreign nation over foreign territory was justiciable. The Court remarked that this question could only be considered in circumstances where there was a sham or circuitous device to attract legislative power. As indicated above, this would be a question of fact for the Court to decide, when it is determining whether an international obligation exists.
Meticulous adherence to the terms of the treaty is not required, so long as the purpose of the treaty is effected R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634 To be a law with respect to external affairs, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty: Victoria v Commonwealth (1996) 187 CLR 416

Section 51(xxix) is subject to the Constitution and its express and implied constitutional limitations: Victoria v Commonwealth (1996) 187 CLR 416 The scope of the external affairs power is not restricted by s 51(i): Airlines of New South Wales v New South Wales (No 2) (Airlines (No 2)) (1965) 113 CLR 54 If the Commonwealth exercises its external affairs power to implement treaty obligations that are void or unlawful under international law, will this invalidate the domestic legislation? Horta v The Commonwealth (1994) 181 CLR 183 The Commonwealth may not cite an international obligation as a sham or circuitous device to attract legislative power: Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Horta v The Commonwealth (1994) 181 CLR 183 at 195196. Statutes are to be interpreted and applied in conformity and not in conflict with established principles of international law: Teoh v Minister for Immigration and Ethnic Affairs (1995) Where Australia is a party to a treaty the text of that treaty may assist in the interpretation of ambiguous domestic law or in the exercise of statutory discretion: Chu Kheng Lim v Minister for Immigration (1992) Where Australia is a party to a treaty the text of that treaty may assist in the interpretation of ambiguous domestic law or in the exercise of statutory discretion: Chu Kheng Lim v Minister for Immigration (1992)
The Executive
The Prerogative (privilege or right) The prerogative refers to all the traditional powers and immunities enjoyed by the Imperial Crown at common law at Federation. The prerogative powers included the typical executive concerns of nationStates at Federation: international affairs, defence, and certain decision-making powers in relation to the enforcement of public and criminal law. The Crown also enjoyed prerogative immunities relating to the management of public finance and in respect of its property, and a more general presumptive immunity from legislation. 1. Because the prerogative powers emanated from the common law, it can be removed by legislation: Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 2. Because all the prerogative powers of the Imperial Crown were vested in the Executive Government of the Commonwealth at Federation, there is overlap between the common law prerogative powers and the executive powers of the Commonwealth which are authorised by legislation under s61 of the Constitution: Victoria v Commonwealth (1996) 187 CLR 416 3. While prerogative powers and immunities were the creation of the common law they were, paradoxically (ironically), not generally regarded to be susceptible to judicial review, or the extent to which judicial review could condition the exercise of the prerogative was restricted: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170

4. However judicial assessment of the limits of executive power are part of the courts exclusive power of judicial review: North Australian Aboriginal Legal Aid Service v Bradley [2001] FCA 1080, 1728; [2002] FCA 564.
International Affairs The Executive enjoys a prerogative power to enter treaties: R v Burgess; Ex parte Henry (1936) 55 CLR 608 Treaties are entered into by the Governor-General (formally) and the Foreign Minister (practically speaking) on the advice of the Federal Executive Council: Barton v Commonwealth (1974) 131 CLR 477 The conduct of foreign affairs, generally, including entry into and execution of treaty obligations, and diplomatic matters, is part of the prerogative (or executive) power of the Crown: Koowarta v Bjelke-Peterson (1982) 153 CLR 168 The prerogative power also extends to enable the Executive to request the extradition of fugitives where there is no extradition treaty in place with the relevant country: Barton v Commonwealth (1974) 131 CLR 477
Defence The Commonwealth enjoys the power to declare war or peace: Farey v Burvett (1916) 21 CLR 433 It has been suggested that the Commonwealth might enjoy a prerogative power to expropriate (take) property for the purposes of defence (seemingly only during a war-time emergency) exempt from any requirement of just terms under s51(xxxi) of the Constitution: Johnston Fear and Kingham v Commonwealth (1943) 67 CLR 314 The prerogative extends to the control of the armed forces, except insofar as they have been superseded by statute: Marks v Commonwealth (1964) 111 CLR 549 Land used by the Commonwealth for defence purposes was immune from the operation of State taxes by virtue of the Commonwealths prerogative power to defend Australia: Essendon Corporation v Criterion Theatres Ltd & Ors (1947) 74 CLR 1
The defence prerogative is very wide and can enable regulation which might otherwise be prohibited by the Constitution. Farey v Burvett (1916) 21 CLR 433 o Isaacs J saidExecutive power extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. These provisions carry with them the royal war prerogative, and all that the common law of England includes in that prerogative so far as it is applicable to AustraliaThe full extent of the prerogativeis certainly great in relation to the national emergency which calls for its exercise[However] actual defence, and all that it connotes, comes only when we are at warwhile peace prevails, the normal facts of national life take their respective places in general alignment, and are subject to the normal action of constitutional powers.
Fiscal and Legal Matters

The Commonwealths fiscal prerogative power extends to give the Commonwealth priority over the States in the payment of taxation debts in a bankruptcy and also priority over every creditor in a winding up: Commonwealth v Cigmatic Pty Ltd (in liq) (1962) 108 CLR 372 Crown immunity from the remedy of distress for rent which enables a property-owner to seize goods on the property in lieu of unpaid rent: Repatriation Commission v Kirkland (1923) 32 CLR 1 at 9, 11, 24 Judicial review will not lie to challenge a decision of the Attorney-General not to grant his or her fiat for the use of their name in a relator action to enable the enforcement of public rights: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 The decision of the Attorney-General to enter an ex officio indictment and a nolle prosequi in criminal proceedings is non-justiciable: Barton v R (1980) 147 CLR 75 The power to conduct inquiries was also one of the prerogative powers enjoyed by the Executive: Huddart Parker & Co Pty ltd v Moorehead (1909) 8 CLR 330
The Principle of Crown Immunity At common law, the Crown and its servants and agents were presumed to be immune in relation to their activities in the course of their functions or duties as such: Bropho v Western Australia (1990) 171 CLR 1. There was an earlier rule that legislation was presumed not to bind the Crown unless a contrary intention was manifest by its terms: Province of Bombay v Municipality of Bombay [1947] AC 58. A threshold question to consider was whether a person or corporation could be regarded as a servant or agent of the Crown. 1. This depended on the extent to which the servant or agent was subject to direct ministerial control, or was independent of the Government and enjoyed discretionary powers of its own: Grain Elevators Board (Vict) v Dunmunkle Corporation (1946) 73 CLR 70 2. A second test involved the consideration of the overall nature of the functions and duties of the purported servant or agent: Registrar, Accident Compensation Tribunal v Commissioner of Taxation (Cth) (1993) 178 CLR 145 3. A third test (which has fallen out of favour) was based on the proposition that some duties and functions were traditional to government, however this has been criticised on the basis that concepts of the role of government change over time, and opinions may differ regarding the traditional role of government: Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 Once a person or corporation has been identified as a servant or agent of the Crown, that person will normally be entitled to the benefit of the Crown immunity from a statute, if the interests of the Crown would be prejudiced if such persons were bound: Bradken Consolidated Ltd v The Broken Hill Co Pty Ltd (1979) 145 CLR 107 However, Crown immunity is not absolute. Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 o On occasions the legislative intent (to bind the Crown) may be a complex one, especially where a corporation has conferred upon it a number of quite distinct functions. The intention may be that only some of these should attract the immunities and privileges of

the Crown. Again, whether a corporation possesses one or more functions, the intention of the legislation may be that only some of the Crowns immunities and privileges should attach to it In such cases (the legislative) indicia may at first sight appear to point in different directions, the apparent conflict only resolving itself by reference to the circumstances relevant to the case in hand and how they bear upon the particular function in question or the particular (sic) immunity or privilege to which claim is made
Test Today The question whether a statute will be held to apply to and bind the Crown is a question of statutory interpretation. The test is whether the purpose, policy and subject matter of legislation discloses an intention that the Crown is to be bound: Bropho v State of Western Australia and Another (1990) 171 CLR 1. The new rule purportedly applies specifically to statutes enacted after 20 June 1990. In construing legislative provisions enacted prior to this date, it may be necessary to take account of the fact that the prior test of necessary implication was seen as of general application at the time when the provision was enacted, but that legislative intent will still prevail notwithstanding the fact that this test is not satisfied. Bropho v Western Australia (1990) 171 CLR 1 o A provision of Western Australian legislation made it an offence for any person to destroy or damage Aboriginal sites or objects on or under such sites. Bropho brought an action against the State of Western Australia and the Western Australian Development Corporation alleging that the defendants were in breach of that provision. The defendants applied to strike out the statement of claim on the ground that the provision did not bind the Crown. o The Court applied the principles outlined above and concluded that the provisions bound the Crown. In particular the Court was swayed by the consideration that the intention of the legislature to protect Aboriginal heritage would be frustrated if the Crown was not bound.
Nationhood The executive power extends to the execution and maintenance of the Constitution and the laws of the Commonwealth: s 61. In order to assist the prosecution of executive aims, the Federal Parliament may use its power in s 51(xxxix) to make laws with respect to: Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. The Scope of the Power It is well established that the executive power may be used to authorise legislation imposing criminal

sanctions for seditious or subversive conduct. Burns v Ransley (1949) 79 CLR 101 o Burns, a member of the Australian Communist Party, was participating in a public debate in Brisbane when he was pressed for an answer in which he stated: If Australia was involved in such a war it would be between Soviet Russia and American and British Imperialism. It would be a counter-revolutionary war. It would be a reactionary war. We would oppose that war. We would fight on the side of Soviet Russia. That is a direct answer. o Burns was summarily convicted under the Federal provisions and challenged their constitutional validity on the basis that the Commonwealth had no general power to make laws with respect to crime and on the further basis that the Commonwealth had no power to make political criticism a criminal offence. o The Court held that while the parliament has no power to pass a law to suppress or punish political criticism excitement to disaffection against a Government goes beyond political criticism [and] the executive power and the express incidental power authorised the Federal Parliament to make laws for protection against subversive activities for the purpose of preserving the constitutional powers and operations of governmental agencies and the existence of government itself. R v Sharkey (1949) 79 CLR 121 o Sharkey made comments which were published in a newspaper to the effect that if the Soviet Union attacked Australia, the Australian Communist Party would welcome them. o The provisions were challenged on similar grounds to Burns case and it was upheld thatI do not doubt that the legislative power of the Commonwealth extends to making punishable any utterance or publication which arouses resistance to the law or excites insurrection against the Commonwealth Government or is reasonably likely to cause discontent with an opposition to the enforcement of Federal law or to the operation of Federal government. The power is not expressly given but it arises out of the very nature and existence of the Commonwealth as a political institution, because the likelihood or tendency of resistance or opposition to the execution of the functions of government is a matter incidental to the exercise of all its powers. But the legislative power is in my opinion still wider The prevention of attempts to excite hostility where obedience is necessary for the effective working of government appears to be recognized as a proper purpose of the Government concerned
An implied power It has been recognised for some time that the very existence of the Commonwealth as a nation may give rise to powers consistent with nationhood. The idea that Australian nationhood gives rise to certain implied powers was crystallised in: Australian Communist Party v The Commonwealth (1951) 83 CLR 1 o Federal (Menzies gov) legislation was enacted with the purpose of banning the Australian Communist Party. The Governor-General was given the power to declare that certain organisations were communist organisations, and thus they and those affiliated with them were deemed unlawful and a receiver was set to take their property. The legislation

provided no opportunity for judicial review of the Governor-Generals determinations, nor did it prescribe any rule or conduct or prohibit specific acts or omissions by way of attack or subversion, which might enable a Court to determine the basis upon which determination might be made. o A majority of the Court struck down the legislation on the basis that it could not be supported by s51(xxxix) and 61 of the Constitution read together, or under an implied power to protect the nation. The advancement of the nation Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 o Mason J stated 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. Davies v The Commonwealth (1988) 1966 CLR 79 o The case concerned Federal legislation enacted to commemorate the bicentennial of Governor Phillips landing in Australia in 1788. The Act set up an Australian Bicentenary Authority which was given exclusive power to use particular symbols and trade marks associated with the event. Davis, an Aboriginal political activist, printed shirts using these symbols within slogans which protested against the commemoration of the Bicentennial. o Davis challenged the law on the basis that it could not be supported by the intellectual property power (s 51(xviii), the corporations power, the Territories power or the executive or implied nationhood powers. o The Court struck down the provisions of the Act on the following grounds: Here, the framework of regulation reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorised use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power o Brennan J took the opportunity to explore the nature and extent of the implied nationhood power and said, The Constitution summoned the Australian nation into existence, thereby conferring a new identity on the people who agreed to unite in one indissoluble Commonwealth, melding their history, embracing their cultures, synthesising their aspirations and their destinies. The reality of the Australian nation is manifestThe end purpose of the Constitution is to sustain the nation If the executive power of the Commonwealth extends to the protection of the nation against forces which would weaken it, it extends to the advancement of the nation whereby its strength is fostered. There is no reason to restrict the executive power of the Commonwealth to matters within the heads of legislative power. So cramped a construction of the power would deny to the Australian people many of the symbols of nationhood a flag, or anthem, for example or the benefit of many national initiatives in science, literature and the arts. It does not follow that the Executive Government of the Commonwealth is the arbiter of its own power or that the executive power of the Commonwealth extends to whatever activity or enterprise

the Executive Government deems to be in the national interest. But s61 does confer on the Executive Government power 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 The executive power is limited to the distribution of powers effected by the Constitution While the scope of any implied nationhood power is ambulatory, it is now well-established that the scope of the executive power is limited to the distribution of legislative powers between the Commonwealth and the States. Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 o Mason J: Although the ambit of the power is not otherwise defined by Ch II it is evident that in scope it is not unlimited and that its content does not reach beyond the area of responsibilities allocated to the Commonwealth by the Constitution, responsibilities which are ascertainable from the distribution of powers, more particularly the distribution of legislative powers, effected by the Constitution itself and the character and status of the Commonwealth as a national government. The provisions of s 61 taken in conjunction with the federal character of the Constitution and the distribution of powers between the Commonwealth and the States make any other conclusion unacceptable o Barwick CJ: to say that a matter or situation is of national interest or concern does not, in my opinion, attract any power to the Commonwealth. Indeed, any student of the Constitution must be acutely aware of the many topics which are now a considerable concern to Australia as a whole which have not been assigned to the Commonwealth Davies v The Commonwealth (1988) 1966 CLR 79 o The Commonwealth cannot be accorded a legislative power to cross the boundaries between State and Commonwealth responsibility laid down by the Constitutioneven if it is convenient in some circumstances to look at the totality rather than individual heads of power, the Commonwealth remains confined to that which is granted to it by the Constitution.
Judicial Power of the Commonwealth

What needs to be considered? First; the doctrine of the separation of powers, particularly the separation of judicial power from other types of power Second; features that distinguish Ch III court: judicial tenure, financial security and independence. Third; the extra-judicial assignments that judges are constitutionally allowed to undertake Fourth; what is judicial power of the Cth and how is it defined and distinguished from other types of power? Finally; how does the separation of judicial power and its vesting in Ch III courts limit legislative power, and in doing so, preserve rights and liberties in the Cth?

The Separation of Judicial Power The separation of power is reflected by the chapter divisions of the Australian Constitution, which describes the three principal institutions of the Cth: Parliament (Ch I, commencing at s1), the Executive (Ch II, commencing at s61) and the Judicature (Ch III, commencing at s 71). Chapter III, Section 71 provides that: 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. Chapter III, section 76 and 77: Enable the Cth to vest Federal jurisdiction in the other federal courts the parliament may create under s 71, State courts and Territory courts. Purpose of the separation of powers Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) Provide checks and balances on the exercise of power by the respective organs of government in which the powers are reposed The separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges. Only Chapter III Courts can exercise Chapter III power: New South Wales v Commonwealth (the Wheat case) (1915) 20 CLR 54 o The case concerned the Inter-State Commission, a body set up under Federal legislation pursuant to s101 of the Constitution, and given powers to determine disputes involving interstate trading and commercial issues and to issue certain remedies, including an injunction. The validity of this structure was challenged on the basis that the Inter-State Commissions powers of adjudication under s101 did not extend to the exercise of judicial power of the Commonwealth, which could only be exercised by Chapter III Courts. o It was held thatChapter III is headed the Judicature and vests the judicial power of the Commonwealth not in the Sovereign simply, or as he may in Parliament direct, but in specific organs, namely, Courts, strictly so called. They are the High Court, such other federal courts as Parliament creates, and such other Courts as it invests with federal jurisdiction. There is a mandate to create a High Court; there is a discretionary power to create other federal Courts; and there is a discretionary power to invest with federal jurisdiction such Courts as Parliament finds already in existence, that is, State Courts. But that exhausts the judicature. o The majority concluded that, on this basis, the Inter-State Commission was not a Federal Court and therefore it could not exercise the judicial power of the Commonwealth. Waterside Workers Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434

o the distinction (between judicial power and legislative and executive power) emphasised in the Constitution in s71 already cited. It is impossible under the Constitution to confer such functions upon any body other than a Court, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective. Chapter III Courts can only exercise Chapter III power, and powers that are incidental to judicial power: R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 (boilermakers) o The Boilermakers challenged the constitutional validity of the structure of the Court on the basis that it could not exercise both judicial power of the Commonwealth and arbitral power. o The Court confirmed that not only was Chapter III power reserved to Chapter III Courts, but further, that Chapter III Courts could not be vested with non-Chapter III powers. o The consequence of the Boilermakers case was the break up of the Commonwealth Court of Conciliation and Arbitration and the establishment of two separate institutions exercising powers consistent with the separation of powers.
Administrative functions incidental to the exercise of judicial power The HC noted in the Boilermakers Case that the constitution allows Ch III courts to exercise judicial power and powers auxiliary or incidental thereto. Chapter III Courts have the power to engage in administrative functions which are incidental to the effective exercise of judicial power, so long as these functions do not usurp judicial power (and are not otherwise invalid), they may be supported by s71 together with s51(xxxix) of the Constitution, as functions incidental to the exercise of judicial power. Harris v Caladine (1991) 172 CLR 84 o Provisions of the Family Law Act 1975 (Cth) empowered Family Court judges to make rules enabling registrars or non-judicial officers to exercise powers of the Court. Non-judicial officers were allowed to make consent orders or orders in undefended proceedings relating to dissolution and nullity decrees, declarations as to the validity of a marriage or the dissolution or annulment of a marriage, and orders relating to the custody, guardianship or welfare of, or access to, a child. This was challenged on the basis that they enabled a person without judicial tenure under s 72 of the Constitution to exercise judicial power of the Commonwealth. o This argument was rejected by a majority of the Court. It was said that many of the functions committed to Chapter III Courts are administrative in nature and it would be unnecessary for every function to be exercised by a Chapter III judge. However, it would be necessary for judges of the Court to retain effective control of Federal jurisdiction and judicial power so long as two conditions are observedThe first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in

relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court Luton v Lessels (2002) HCA 13 o Callinan J remarkedThat some degree of delegation of judicial power does not impinge on Ch III but a greater (non-specific) helping of it might, does not, with respect, strike me as a very satisfactory basis for a determination of whether judicial power is, or is not, being exercised. Judges are not mere supervisors. Nor do they have the power of appointment of other judges conferred by Ch III upon the Executive. The fact that delegates may be bound to perform their duties in a judicial way provides no substitute for the performance of judicial duties by duly appointed judges.
Exceptions to the Separation of Powers There are a number of recognised exceptions to the principle that judicial power can only be exercised by Ch III courts. Courts martial are not Ch III courts: they are regarded to be incidental to the exercise of the power of the Executive under the Constitution to maintain discipline in the armed forces: Re Tracey; Ex parte Ryan (1989) 166 CLR 518 The power to commit for contempt: through the operation of s 49 allowed this as an exception to the general rule that the power to commit contempt was vested in courts invested with judicial power. While the power to commit for contempt is regarded to be an immanent feature of a court (Re Colina; Ex parte Torney (1999) 200 CLR 386), both Houses of Federal Parliament may commit people for contempt of Parliament as part of the powers, privileges and immunities they enjoy under s49 of the Constitution. R v Richards; Ex parte Fitzpatrick & Browne (1954) 92 CLR 157. o The Court unanimously held that the power to commit for contempt was enjoyed by the House of Commons at Federation, and in view of the language of s49, the power of the Parliament to commit for contempt was an exception to the general rule that the power to commit for contempt was vested in Courts invested with judicial power.
Extra-Judicial Assignments: The Persona Designata Rule: judge may be appointed to undertake Ch II tasks: Chapter III judges can be appointed to undertake Chapter II tasks and be appointed to act in an executive role, for example, a Royal Commissioner, or to exercise executive functions, such as issue of a warrant, which will not infringe the separation of powers. Hilton v Wells (1984) 157 CLR 57 o The constitutional question was whether the provision empowering a Federal Court judge

to issue a warrant infringed the separation of powers. o The High Court recognised the existence of the persona designata exception and concluded that the question whether such an appointment or conferral of power could be valid depending on the construction of the statute making the appointment or conferring of power. The incompatibility condition While the Federal Parliament may appoint a Chapter III judge to a non-Chapter III post as a persona designata, a Chapter III judge may not engage in activities which are incompatible with the judicial function. Grollo v Palmer (1995) 184 CLR 348 o Grollo challenged the Federal provisions which authorise the issue of warrants by Federal judges on the basis that persona designata was bad in law and contrary to Boilermakers. o the incompatibility condition may arise in a number of different ways. Incompatibility may consist in so permanent and complete a commitment to the performance of nonjudicial functions by a judge that the further performance of substantial judicial functions by that judge is not practical. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of nonjudicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial function so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. o The judges concluded that judges were eminently suited to the task of issuing such warrants, and such a power was not incompatible with the exercise of their judicial functions. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220 o The Minister appointed a Federal Court judge to conduct a public enquiry and prepare a report pursuant to Federal Aboriginal heritage protection legislation. o From Mistretta (1989) 488 US 361 the legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and non-partisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action The passages cited are equally relevant to the interpretation of Ch III of the Constitution of this country.
Features of Chapter III Courts: Judicial tenure, Remuneration and Independence. Judicial Tenure Section 71 expresses that the federal parliament has the power to set up a federal court. Together section 71 and section 51(xxxix) [express and incidental power]: The coupling of these

powers justifies the creation of a court and clothing it with power. Section 71 gives the Federal Parliament the power to create Federal Courts and s72 guarantees Federal judges judicial tenure. Section 72 also describes the conditions of appointment, removal and remuneration of Federal judges. S 72 states: Judges appointment, tenure, and remuneration: The justices of the HC 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 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 Section 72(ii) has never been used Section 72 (iii) provides for an independent judiciary are judiciary cannot act independently of parliament unless they are actually separated and shielded from the influence of other arms of government. This ensures the independence of the judicature. It has been stated by Kirby J in obiter that even if s 72 was not present there would be a type of implied form of judicial independence. Also stated in s72 is: the appointment shall be for a term expiring upon his attaining 70 years, and a person shall not be appointed as a justice of the HC if he has attained that age parliament may make a law fixing an age that is less that 70 years as a 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 Justice may resign Prior to amendments in 1977 Federal Justices enjoyed life tenure. Now it is 70 years. Parliament may lower this age for Federal Justice (not HC justices). Judicial tenure reinforces judicial independence, allowing for impartial decisions, insulating the Judiciary from political pressure: Harris v Caladine (1991)

Waterside Workers Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 o The Court unanimously agreed that it was an essential feature of a Chapter III Court that its members enjoy judicial tenure under s72
Judicial independence requires tenure and financial security. Sir Anthony Mason has written that financial security is an indispensable condition of a strong and independent judiciary. This requirement is entrenched in s 72(iii) of the Constitution. For federally-appointed judges, remuneration amounts are set by an independent tribunal, made public, and done by way of an open determination from time to time. That is, the amount of remuneration is established and applies indefinitely, not for a finite period (a situation that would create the spectre (image) of judges tailoring their judgments to suit the government as the period of remuneration reached its conclusion). Austin v The Commonwealth (2003) HCA 3 o The case was brought by a number of Supreme Court judges against federal legislation that singled out State judges and imposed federal taxation on their superannuation entitlements. Justice Austin of the Supreme Court of New South Wales argued successfully that the Melbourne Corporation principle operated to invalidate the provisions. o The provision of secure judicial remuneration at significant levels serves to advantage and protect the interest of the body politic in several ways. Secure judicial remuneration at significant levels assists, as the United States Supreme Court has emphasised: to encourage persons learned in the law"to quit the lucrative pursuits of private business, for the duties of that important station". (attract people to the job) It also assists the attraction to office of persons without independent wealth and those who have practiced in less well paid areas. (encourage other areas and without independent wealth) Further, the Supreme Court of the United States has stressed that such provision helps "to secure an independence of mind and spirit necessary if judges are 'to maintain that nice adjustment between individual rights and governmental powers which constitutes political liberty'". (ensure that the needs are taken care of and that they are in the best position to make balanced and objective decisions)
More recently it has been suggested that in order to safeguard judicial independence it is necessary that judicial remuneration must only be provided by an open determination, and cannot be limited as to time. That is, it would be unlawful to appoint a judge until a statutory retirement age but only guarantee that judges remuneration for a period of 2 years North Australian Aboriginal Legal Aid Service v Bradley (2002) 192 ALR 701
Territory Courts The requirement of judicial tenure does not extend to all Courts set up under Federal law. As the source

of legislative authority to create Courts in the Territories is s122, which lies outside Chapter III, Territory Courts are not Chapter III Courts and their judges do not enjoy s72 tenure. Spratt v Hermes (1965) 114 CLR 226 o Barwick CJ: o s72 is not of universal applicationit refers in the expression the other courts created by Parliament to the other courts to which reference is made in s71, namely, such other federal courts as the Parliament creates, courts created by laws made in pursuance of the federal legislative powers contained in s51 of the Constitution. A court created by a law made by the legislative power given by s122 is not a federal court. Thus the section is not a limitation upon the power to create courts of judicature which is included within the complete power of legislation given by s122 for the government of the territories. Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322. o Eastman had been convicted of murder in the ACT by a Supreme Court judge (formerly a retired NSW Supreme Court judge) appointed for a short period of time on an acting basis. o A majority applied Spratt v Hermes
More recently it has been argued that in spite of Spratt v Hermes and Eastman, a Territory cannot appoint a judge, putatively (generally) until a statutory retirement age, but then only guarantees that judge a salary for a shorter period: North Australian Aboriginal Legal Aid Service v Bradley (2002) 192 ALR 701 o It was argued that regardless of the jurisprudence of s 72 relating to judicial tenure and Territory judges, such an arrangement is repugnant to s 71 of the Constitution because it affects the institutional capacity of a judge capable of exercising federal jurisdiction to make impartial decisions. This argument was rejected by a majority of the Federal Court. Discussion of the case o Spratt v Hermes and Eastman said that section 72 does not apply in the territories, territory courts are not federal courts, and as they are not federal courts there judges do not have section 72 protection. o In Newcrest it was said that the power over territories is not plenary, rather, it is subject to limitations. o In the case before the Bradley was appointed by the government to the NT court under a 65 year deal but was only guaranteed remuneration for 2 years. o In most remuneration the deal consists of fixed pay from a particular date onward without a specific conclusion date o The deal for Bradley was negotiated and had an end date. o NAALIS challenged the constitutional validity of the appointment and the terms arguing that as the end date drew closer the influence of the government and policy considerations would increase o They argued that the objective test would imply that it would be possible for a higher amount of influence and hence this was inconsistent with judicial independence. o NAALIS argued a form of implied independence was present (section 72 did not apply in the territories)

o NAALIS argued that Kables case applies in the territories and therefore Ch III applies in the territories o Ch III cannot apply properly unless courts are independent o The agreement strikes at the independence of the judiciary o HC agreed with 2 of the arguments put forward by NAALIS: Ch III applies in the territory this is quite significant as it goes against the decisions in Spratt v Hermes and Eastmans case Ch III creates an implication of judicial independence and impartiality o However, the HC did not accept the argument that the purported arrangement infringed Ch III o It was argued that shortly before Bradleys years were up the Chief Magistrate at the time had made his appointment permanent o The court decided (7:0) that the remuneration did not infringe Ch III as the government at all times had satisfied a constitution operation to remunerate their judges. (Bradleys pay situation had been rectified to permanent) o HC said that the government had at all times satisfied a constitutional operation to remunerate their judges because they fixed the arrangement.
Judicial Power of the Cth: How should judicial power be defined? In SGH Limited v Commissioner of Taxation [2002] HCA 18 at [40] [44], Gummow J remarked (in a different context but in words no less apt to an understanding of the meaning of judicial power): Questions of construction of the Constitution are not to be answered by the adoption and application of any particular, all-embracing and revelatory theory or doctrine of interpretation. Nor are they answered by the resolution of a perceived conflict between rival theories, with the placing of the victorious theory upon a high ground occupied by the modern, the enlightened and the elect. With these significant qualifications in mind, it is yet possible to identify a number of relatively distinct approaches to the definition of judicial power. These approaches may be termed, for ease of reference only, the historical approach (which emphasizes the utility of historical and traditional understandings of judicial power), the analytical approach (which emphasizes what are regarded to be the essential characteristics of judicial decision-making that distinguish it from other types of decision-making) and the functional approach (which emphasizes that some types of activities are common to courts and nonjudicial tribunals, and so the discriminating feature is whether the relevant powers have been (and can be) vested in a court): cf Lane, 1991, 224-246. While it is possible to identify these distinct approaches, it is evident from the material that follows that multiple approaches may be adopted in any particular case. A single approach, applied by different judges to the same set of facts, can produce divergent results. Sometimes a single approach commends itself to the judges, whether it is pleaded or not. Sometimes the judges do not indicate the approach that they are taking, but it is possible to rationalize a given decision under one of the headings suggested here. Before examining the different approaches that may be taken to the definition of judicial power it is important to note that judicial power of the Commonwealth is exercised in matters.

Matters Re Judiciary and Navigation Acts (1921) 29 CLR 257 o Part of the Judiciary Act which gave the HC jurisdiction of advisory opinions to the government o The Attorney General would take a piece of legislation to the HC and ask them question regarding the constitutional elements o The HC would deliver an advisory opinion with regard to certain constitutional questions o The HC said that it would not determine a constitutional case unless there is a dispute between parties: (X v Y). o matter meant no more than legal proceedingthere can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may adopt any existing legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer the law. o The Court held that the word matter did not extend to the delivery of advisory opinions.
While the High Court may not itself give advisory opinions referred to it by the Federal executive, it may take appeals from advisory opinions delivered by State Supreme Courts.
Judicial power at 1900: A starting point for the determination of the meaning of the phrase judicial power is to consider what powers were in the minds of the lawyers/drafters of the Constitution at the Federation (that is, the connotation at Federation): Attorney-General for NSW v Brewery Employees Union of NSW (the Union Label Case) R v Davison (1954) 90 CLR 353. o Historical view was taken o A Federal deputy registrar of bankruptcy issued a sequestration (seizure) order upon the petition (appeal) of Davison. It was argued that a sequestration order (the taking of possession of a debtors property for the payment of debts) involved an exercise of judicial power, because it would deprive the bankrupt of property and the creditors of rights against the bankrupt. It affected the status of the bankrupt and exposed him to criminal prosecution. It was also argued that the nature of the hearing involved an exercise of judicial power. o A majority of the Court agreedIn doubtful cases, however, we employ a historical criterion. We ask whether, at the time our constitutions were adopted, the power in question was exercised by the Crown, by Parliament, or by the judges. Unless analysis compels us to say in a given case that there is a historical anomaly, we are guided by the historical criterion o Kitto J concluded that the power to make a sequestration order was an established

branch of judicial activity at 1900. It was essentially a judicial procedure involving a curial (assembly) proceeding, the exclusion of legally inadmissible evidence and the application of legal, not policy principles Some powers historically regarded to be judicial may now be vested in non-judicial tribunals R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 o The case concerned a power vested in the Federal Registrar of Trade Marks to remove trade marks from the register on the application of a person aggrieved. It was submitted that the removal of a trade mark was an exercise of judicial power on a number of grounds, including the ground that the destruction and withdrawal of industrial property rights was historically treated as an exercise of judicial power. o Jacobs J indicates that: Central to any consideration of the meaning of judicial power in Australia is the recognition of the doctrinal underpinnings of the system: the rule of law, an independent judiciary and the separation of judicial power. The basic rights that are available in Australia depend on these things. The purpose of the judiciary has traditionally been to determine the availability of the basic rights by the exercise of judicial review. The courts have also traditionally had a number of other roles, including the power to govern a criminal trial and the power to determine legal rights. Not every power which historical analysis might indicate is judicial will be regarded as such today. Having said that, the power to make an enforceable determination of legal rights is exclusive to the courts and could not be vested in a non-judicial tribunal.
Other powers are exclusive to courts: The power of judicial review of legislative and executive action has already been noted as a fundamental power of the courts. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 Marbury v Madison 1 Cranch 137 (1803) The power to adjudicate on existing legal rights and liabilities between persons is exclusive to courts. Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 The power to determine criminal guilt is an exclusive power of courts and cannot be excluded from the courts. Re Tracey; ex parte Ryan (1989) 166 CLR 518 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 Polyhukovich v The Commonwealth (1991) 172 CLR 501 The separation of judicial power guarantees that Ch III courts will not take instructions from the legislature regarding the manner in which their jurisdiction will be exercised, or the result of a case. Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1

Kable v DPP (NSW) (1996) 189 CLR 51. Ch III courts enjoy particular implied or inherent powers that are incidental to judicial activity: Chapter III Courts enjoy the capacity to define those powers. As Kirby J noted, this includes: The relevant implications would be derived from the provisions of the Constitution so as to ensure that the exercise by the Court of its constitutional jurisdiction and powers was not rendered futile or ineffective and so as to fulfil the constitutional purpose of affording to all persons, subject to the authority of the Constitution, the protection and justice of the law. A number of significant powers fall into this category. Ch III courts have the power to determine what practice and procedure should be adopted in exercising its jurisdiction Nicholas v The Queen (1998) 193 CLR 173 The power to refuse to exercise its jurisdiction where to do so would be contrary to law or would involve the court in sanctioning fraud or oppression, or would permit parties to participate in an abuse of process Pasini v United Mexican States [2002] HCA 3 at [93] To grant bail as an incident of the exercise of their jurisdiction under s 75 Cabal v United Mexican States (2001) HCA 42 Ch III courts have the power to compel the appearance of persons Waterside Workers Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 Sue v Hill (1999) 199 CLR 462 at 515-516. Ch III courts have an inherent power to commit for contempt of court Re Colina; Ex parte Torney (1999) 200 CLR 386 o Three members of the High Court confirmed that the power of a Chapter III court to commit a person for contempt of court is an inherent power of self-protection incidental to the function of superintending the administration of justice o A law that provided that the Family Court of Australia had the same power to punish contempts of its power and authority as was possessed by the High Court in respect of contempts of the High Court was regarded as being merely declaratory of the implicit power of a Ch III court to punish contempt Re Reid; Ex parte Bienstein (2001) HCA 54
The power to order judicial remedies: The power to order judicial remedies is entrenched by s 75(v) and also by s 75(iii) Plaintiff S157/2002 v Commonwealth [2003] HCA 2 o Two fundamental constitutional propositions (may be noted and they are that)First, the

jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot be removed by or under any law made by the Parliament. Specifically, the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limit of its own jurisdiction: at [98]. See also [73], [103]-[104]. The Commonwealth Parliament may not remove the High Courts power to determine that an administrative tribunal has exceeded its jurisdiction because that would involve an exercise of judicial power R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 The judicial remedies made available under s 75(v) (mandamus, prohibition and injunction) may be ordered when an officer of the Commonwealth has breached the rules of natural justice Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Injunctive relief available under s 75(v) can extend to enable judicial orders preventing Commonwealth fraud, bribery, dishonesty or other improper purposes Plaintiff S157/2002 Furthermore, the remedy of certioriari is available under s 75(iii) to quash the decisions of a Commonwealth or State decision-maker Historically, the courts of the common law exercised a power to issue a writ of habeas corpus to determine whether a person has been lawfully detained in accordance with some positive authority conferred by law, whether by a public official or private person (and whether a person was in Australia lawfully or not) Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
Breadth of remedial powers So long as any powers conferred by the Parliament are consistent with Ch III requirements (such as, for example, the incompatibility condition), the Commonwealth Parliament may confer power to make orders that create rights or impose liabilities: Precision Data Holdings Ltd & Ors v Wills & Ors (1991) 173 CLR 167 at 191. An analytical (logical/systematic) approach to judicial power In R v Quin; Ex Parte Consolidated Foods Corporation (1977) it will ordinarily be necessary to supplement an historical approach to the question what is judicial power? with an approach that analyses the nature and effect of the power exercised. A classic test of judicial power that emphasised the legal effect of a decision and which has had lasting influence was enunciated by Griffith CJ in Huddart Parker Pty Ltd v Moorehead (1909) Provisions of an act were challenged on the basis that they vested judicial power in a non-judicial body. Court disagreed, on the basis that the provision was incidental to the administration of the Act.

Griffiths CJ with whom Barton and Higgins JJ agreed, defined judicial power as: o Griffith CJ stated that the words judicial power as used in s71 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 the take action. Judicial power, then, involves a binding and authoritative decision on a matter involving rights. This decision gives rise to a number of questions: o What is a binding decision? (question 1) o What makes a decision authoritative? (question 2) o What is entailed in a determination of rights? (question 3)
A binding and authoritative decision Huddart Parker Pty Ltd v Moorehead (1909) 8 CLR 330 o Griffith CJ stated that the words judicial power as used in s71 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 the take action.
A binding decision (question 1): The power to make a binding decision is an essential component of judicial power. However, the word binding refers to the enforceability of the decision. It is the principle that only a Court exercising judicial power can make a legally enforceable decision: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 o The Commission was given the permission to register its determinations in the Federal Court. Determinations would take effect as a judgment of that Court in the event that they were not reviewed on application by the respondent to the proceedings within a prescribed period of time. o The Court held that the enforcement of legal decisions was an essential characteristic of judicial power, and that the provisions were invalid because they purported to give a registered determination effect as if it were an order made by the Federal Court. o Although many decision-making functions may take their character as an exercise of judicial, executive or legislative power from their legislative setting, the character of the decision-maker and the nature of the decision-making process, some decision-making functions are exclusive and inalienable exercises of judicial power.
An authoritative, conclusive decision (question 2): The word authoritative, in this context, means conclusive. While the power of enforcement is exclusive

to Courts, the power to make authoritative determinations of legal rights does not prevent non-Chapter III bodies from making decisions which affect legal rights, or even from making decisions based on their opinion as to the applicability of laws to facts. Any legislative scheme which enables non-Chapter III bodies to determine legal rights must not give the body a power to make conclusive decisions that is, a decision in which no appeal lies. Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 o The case concerned the constitutional validity of Federal legislation which set up a Taxation Board of Review with the power to determine questions of fact and law arising from taxation determinations. It was argued that this usurped the exclusive judicial power to determine questions of law. o This argument was rejected on the basis that, the scheme respected the separation of judicial power and the exclusive power of Chapter III Courts to make authoritative, conclusive decisions. o The Privy Council stated that the convincing distinction between the Taxation Board of Review and the court was the courts power on appeal to make a final and conclusive decision.
To act judicially means to make decisions on the basis of the application of law to facts. A non-Chapter III body may act judicially, even state their opinion on questions of law, but only so long as the legislative scheme ensures that the parties have an opportunity to appeal to a Chapter III Court for the conclusive determination of any question of law arising in the proceedings. Controversies regarding rights relating to life, liberty or property the distinction between questions of law and questions of fact: Only a Ch III court can make binding and authoritative decision determining controversies where the rights relate to life, liberty or property: Huddart, Parker Pty Ltd v Moorehead (1909) In more recent decisions the Court has used the shorthand expression questions of law to define the type of questions which fall within the exercise of judicial power. Non-Chapter III bodies are entitled to form opinions as to the effect of the law, and may even base their decisions on these opinions, but must be cautious not to usurp the role of Chapter III Courts in making binding and conclusive determinations of questions of law. The question is whether the non-judicial tribunal purports to determine legal rights, as opposed to stating its opinion whether the law applies to facts as found. An opinion is permissible but a conclusive determination is not. Re Cram & Ors; Ex parte Newcastle Wallsend Coal Company Pty Ltd (1987) 163 CLR 140 o The Court confirmed that tribunals were entitled to form views and opinions with respect to matters of interpretation without having exercised judicial power in having done so.
Questions of fact:

The power of non-judicial tribunals to ascertain facts and to take jurisdiction over facts is a common feature of administration and does not usurp judicial power of the Cth. R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970): o A power to identify a restrictive or deceptive trade practice or agreement and make a determination whether the practice or agreement was contrary to the public interest did not involve an exercise of judicial power of the Cth. o The performance of an administrative task in a judicial manner, that is, through the application of law to facts, does not necessarily usurp judicial power. Judicial Review of non-judicial determinations of fact: The ambit of judicial review determinations of fact by non-judicial tribunals was considered in Rola Company (Australia) Proprietary Ltd v Commonwealth (1944) o Womens Employment Board, set up under Federal Law and given the power to decide whether women could be employed in certain types of work, and the conditions of their employment. o Board decisions were to have the effect of an award or order of the Cth Court of Conciliation and Arbitration after they were filed with that court. o A federal regulation authorised Committees of Reference to determine questions of fact in relation to Board decisions how many employees engaged in which type of activities and the like. o The determination of fact made by the Board were purported to be binding. o This binding element was challenged on the basis that the questions for determination dealt with issues that were incidental to the questions which a court might have to decide on a prosecution of an employer of failure to comply with a decision of the Board. o Hence, in purporting to make a final determination on matters of fact, the Committee was exercising judicial power of the Cth, which could only be exercised by a Ch III court. o If the finding of fact resulted in legal liability, this would involve the exercise of judicial power. o .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 Unless, however, the determination of facts is an exclusive attribute of judicial power, then it is a matter for the consideration of the legislative body how and to what extent facts should be submitted to administrative tribunals in aid of or to supplement judicial power. o This argument was rejected by the court stating: administrative authorities have been created for the purpose of ascertaining facts, supplementing the courts, and entrusted with power to make at least initial determinations in matters within, and not outside, ordinary judicial power. 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. Judicial review and the power to review the exercise of power by non-judicial tribunals and decisionmakers are entrenched parts of the HCs jurisdiction, and the determination of facts upon which the exercise of judicial power depends is an exclusively judicial function: Australian Communist Party v The Commonwealth (1951) However, where a non-Chapter III court makes an error in defining the factual basis of its jurisdiction, this

jurisdictional error can be corrected by the Court: Plaintiff No 157 v The Commonwealth (2003) HCA 2 Only a Chapter III Court can make a final determination of mixed questions of fact and law In many cases the determination of a question of law turns upon the determination of a question of fact. As a consequence of the separation of powers, mixed questions of; fact (e.g. how much income you earn) and law (what is considered income under the law) may only be determined with finality by a Chapter III Court. British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 o Case concerned the constitutional validity of provisions of Federal income tax legislation that created a Taxation Board of Appeal and gave it power to determine appeals from dissatisfied taxpayers. o Board was given power to determine both questions of fact as well as law, with decision on questions of fact being final and conclusive, while decisions of law could be appealed to the HC or the Supreme Court. Constitutional validity of Boards power to determine questions of law was challenged on the basis that it enabled the exercise of judicial power of the Cth by a non-Ch III body. o The Court concluded that, insofar as the provisions purported to vest a power to determine questions of law, even if this determination could be appealed, the provisions were constitutionally invalid in that they purported to vest judicial power of the Commonwealth in a non-Chapter III Court. Shell Company of Australia Ltd v FCT (1930) 44 CLR 530 o It was confirmed that although a question of fact might also raise a question of law (the quantum of income a person might have is related to the legal question how that income is to be determined) could only be determined conclusively by a Chapter III Court.
Administrative and judicial bodies may engage in the same tasks the distinction is based on the purpose for which the powers have exercised: The power of non-judicial tribunals to ascertain facts and to take jurisdiction over facts is a common feature of administration and does not usurp judicial power of the Commonwealth. R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 o Mason J statedIt is recognized that there are functions which may be classified as either judicial or administrative, according to the way in which they are to be exercised. A function may take its character from that of the tribunal in which it is reposed (rested). Thus, if a function is entrusted to a court, it may be inferred that it is to be exercised judicially; it is otherwise if the function be given to a non-judicial tribunal, for then there is ground for the inference that no exercise of judicial power is involved.
As Chapter III Courts and non-Chapter III tribunals may engage in a number of identical tasks, the question whether a power is to be characterised as administrative or judicial is often a jurisdictional question.

Precision Data Holdings Ltd & Ors v Wills & Ors (1991) 173 CLR 167 o although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power. It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised
Are there any powers that may not be vested in a court? The distinction between legal decision and policy decisions. A key difference between administrative power and judicial power is the way in which policy considerations can arise and inform decision-making. Precision Data Holdings Ltd & Ors v Wills & Ors (1991) 173 CLR 167 o [So long as any discretionary authority conferred upon a Court] is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power
While policy considerations may play a role, even a decisive role in the shaping of legal principles, where legislation vests powers in a tribunal to determine matters having regard to policy considerations outlined by statute, this will indicate that the body is not exercising judicial power of the Commonwealth. It does not follow that a Chapter III Court may not have regard to policy considerations when exercising judicial power, but judicial power is characterised by the application of objective legal standards. R v Spicer; Ex parte Australian Builders Labourers Federation (1956) 100 CLR 277 o The extent to which judicial power depends on objective standards or tests was a question considered in this case. o Involved a provision of Federal industrial law which enabled the Cth Industrial Court to make certain discretionary orders disallowing union rules for unions registered under the law, having regard to particular issues of industrial law and policy. o The court was given power to make these orders on its own motion. o It was argued that to the extent that the court could act of its own motion and might have regard to issues of industrial policy in making its determination, these powers could not be validly vested in a Ch III court. o Court struck down the provision: It was noted that the power to commit for contempt involved an exercise of judicial power where a Court acted of its own motion, but that this was a special case. However, the fact that the power gave a complete discretion based wholly on industrial or administrative considerations indicated that it was outside judicial power.

R v Spicer; Ex parte Waterside Workers Federation of Australia (1957) 100 CLR 312 o The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed by some ascertainable tests or standardsThe true intent of the legislation is that the exercise of power arising under (the provision)should be governed by what might broadly be called administrative and industrial considerations and should not be restricted to purely legal criteria.
Judicial power is characterised by the conclusive ascertainment of existing rights and obligations, rather than the determination of what legal rights and obligations should be created: Judicial power is characterised by the conclusive ascertainment (know with certainty) of existing legal rights and obligations, rather than the determination of what legal rights and obligations should be created Another basis for distinguishing judicial power from non-judicial power relates to the temporal quality of the judicial process. Existing legal rights a proper place for the exercise of judicial power Future legal rights a proper place for the exercise of legislative and executive power Precision Data Holdings Ltd & Ors v Wills (1991) 173 CLR 167 o The High Court considered the possibility that Chapter III Courts might be vested with jurisdiction to make orders creating rights or imposing liabilities. o If the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power o The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.
On certain condition, the legislature may grant power to the judicature to make orders affecting future rights. It is well established that the Parliament can legislate with retrospective and prospective effect: R v Kidman (1915) 20 CXLR 425. It is also well established that the legislature can change statutory rights at issue in pending litigation: Australian Building Construction Employees & Builders Labourers Federation v The Commonwealth (the BLF case) (1986) 161 CLR 88

Judicial Power and Civil Rights If there is no Bill of Rights, do any implied rights exist as a consequence of the separation of power and the requirement that judges act in accordance with judicial power? Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 o [T]he separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges.
The separation of powers may therefore give rise to a number of implied rights enjoyed by people participating in the judicial process. R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 Jacobs J said: o We have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark (safeguard) of freedom. The governance of a trial for the determination of criminal guilt is the classic example. But there are a multitude of such instances
Implied rights arising from the exclusive power of the courts to determines Criminal Guilt: This is a power which is exclusive to the Judicature and, with a few exceptions, can only be exercised by the Judicature. Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 o There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgement (judicial decision) and punishment of criminal guilt under a law of the Commonwealth. That function appertains (belongs) exclusively to and could not be excluded from the judicial power of the Commonwealth
Exceptions: There are some qualifications which must be made to the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts. The most important is the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining (belonging) exclusively to judicial power. Even where exercisable by the Executive, however,

the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts, including the ancient common law jurisdiction, before and since the conquest, to order that a person committed to prison while awaiting trial be admitted to bail. Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power.
Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt and of military tribunals to punish for breach of military discipline, 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 The judicial power of the Commonwealth is infringed by legislation which purports to remove the power of a Chapter III Court to make a determination of criminal guilt before incarceration: The separation of judicial power removed the power of the legislature to enact a bill of attainder or bill of pains and penalties a law which automatically declared the guilt of a person and subjected them to punishment. Polyukhovich v The Queen (1991) 172 CLR 501 Chu Kheng Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1 Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51
The separation of powers and the rules of evidence and burden of proof: However, while the parliament cannot tell the courts how to exercise its criminal jurisdiction, it has considerable power to regulate the fact-finding exercise leading to a conclusion of guilt, and may even have the power to reverse the onus of proof. The degree of legislative power in this area was considered in Nicholas v The Queen (1998) Challenged the constitutional validity of amendment to the Federal Crimes Act (1914) which required courts vested with jurisdiction to determine criminal guilt in matters concerning the controlled importation of narcotics. Argued tat to remove the discretion of judges to exclude evidence on the basis that it was unfairly obtained usurped judicial power and was therefore unconstitutional HC rejected this argument The parliament can prescribe what evidence may be used in legal proceedings and perhaps even regulate the burden of proof and this will not usurp judicial power The Parliament can change statutory rights at issue in pending litigation: The Cth Parliament can legislate with prospective and retrospective effect: R v Kidman (1915), R v Humby; Ex Parte Rooney (1973) This power extends to enable the parliament to criminalise conduct retrospectively: Polyukhovich v Commonwealth (1991). It is also well established that the Legislature can change statutory rights at issue in pending

litigation: Australian Building Construction Employees & Builders Labourers Federation v The Commonwealth (BLF Case) 1986) Realm of Speculations Chapter III courts must exercise their functions in accordance with principles of natural justice: In some recent decisions, it has been suggested that one of the implications arising from the separation of judicial power is that Chapter III Courts can only exercise their power in accordance with the principles of natural justice. Leeth v Commonwealth (1992) 174 CLR 455 o It may well be that any attempt on the part of the legislature to cause a court to act in manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power.
The principles of natural justice, or procedural fairness require a right to a fair hearing which is free from bias. The measure of these rights depends on the circumstances of the case and ordinarily the degree of procedural fairness implied will, subject to statutory and other recognised exclusions, be consistent with the significance of the right or interest at stake. However, There is no implied constitutional right to a fair trial Hinch v Attorney-General for Victoria (1987) 164 CLR 15 o Deane JThe right of a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraint and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law. Dietrich v The Queen (1992) 177 CLR 292 o Dietrich was charged with the Federal crime of importing a trafficable quantity of heroin into Australia. He applied for legal aid and his application was rejected. He was unsuccessful in seeking review of this application. After further attempts to receive legal assistance including representations to the Commonwealth Minister for Justice and Attorney-General he went to trial. At the trial he applied unsuccessfully for an adjournment, and was convicted. His application for leave to appeal to the Victorian Court of Criminal Appeal was rejected. He then applied for special leave to appeal to the High Court. o A majority of the Court recognised that there was a common law right to a fair trial. Deane and Gaudron JJ recognised a constitutionally entrenched right to a fair trial, as emanating from the separation of judicial power under the Australian Constitution. o The fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law. In so far as the exercise of the judicial power of the Commonwealth is concerned, that principle is entrenched by the Constitutions requirement of the observance of judicial process and fairness that is

implicit in the vesting of the judicial power of the Commonwealth exclusively in the courts which Ch III of the Constitution designatesThe fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by Ch IIIs implicit requirement that judicial power be exercised in accordance with the judicial process Is Ch III justice open justice? The principle that publicity is the authentic hallmark of judicial as distinct from administrative procedure was expressed in: McPherson v McPherson [1936] AC 177 Russell v Russell (1976) 134 CLR 495 Grollo v Palmer (1995) 184 CLR 348 o McHugh J described open justice as an essential feature of the federal judicial power. Re Nolan; Ex parte Young (1990) 172 CLR 460 o Gaudron J said that the judicial process included open and public inquiry (subject to limited exceptions) (and) the application of the rules of natural justice
Is there an implied constitutional right of equality? Some judges have suggested that there is an implied constitutional right of equality before the law: Leeth v Commonwealth (1992) 174 CLR 455. o This case concerned a challenge to Federal legislation which enabled persons imprisoned for Federal offences to have their non-parole periods determined under the local law of the State or Territory in which they were tried and convicted. It was argued that this law infringed an implied principle of equality before the law. o A majority of the Court rejected this argument and held thatthere is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth There are also specific provisions prohibiting discrimination or preference of one kind or another, but these are confined in their operation o In this case, however, the legislation in question did not require a court invested with federal jurisdiction to perform a function which could be described as non-judicial. The sentencing of offenders, including in modern times the fixing of a minimum term of imprisonment, is as clear an example of the exercise of judicial power as possible o Brennan J emphasised the purpose of s 120 of the Constitution to ensure that Commonwealth prisoners and State prisoners serving their terms in State prisons were governed by substantially the same regime. Any inequality of treatment which was the consequence of different State provision with respect to non-parole periods was contemplated by s 120 o Deane and Toohey JJ struck down the Federal law on the basis that it discriminated in such a way which was inconsistent with the doctrine of the underlying equality of the people of the Commonwealth under the law and before the courts o Gaudron J said that it was manifestly absurd that the legal consequences attaching to a breach of a law of the Commonwealth should vary merely on account of the location or

venue of the Court in which proceedings are broughtIt is an essential feature of judicial power that it should be exercised in accordance with the judicial process (Harris v Caladine (1991) 172 CLR at 150). A legislative direction which would require a power vetted in a court to be exercised other than in accordance with that process is necessarily invalid. Its effect would be to take the power outside the concept of judicial power. And a conferral of a power of that kind would infringe the prohibition deriving from s 71 which limits the powers which may be conferred on a court to those which are judicial or ancillary or incidental to judicial power. Of course, it might be that, in some cases, a direction of that kind would be severable, so that the power, when shorn of the direction, is validly conferred. o All are equal before the law. And the concept of equal justice a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such is fundamental to the judicial process
Constitutional Guarantees, Rights and Freedoms:

Few freedoms in the Australian Constitution some contingent guarantees: Kruger v The Commonwealth (1997) 190 CLR 1, Dawson J, with whom McHugh J agreed, said: In a number of recent cases it has been pointed out that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power. Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of the Parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than individual rights. The fetters (restrictions) which are placed upon legislative action are, for the most part, for the purpose of placing matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights The framers preferred to place their faith in the democratic process for the protection of individual rights. The Australian Constitution contains few express guarantees of fundamental rights or freedoms from legislative power. But while the Australian Constitution does not include a series of rights or freedoms, a number of provisions do guarantee fairness or justice in the event that certain preconditions are satisfied. These provisions can be described as contingent guarantees, and include ss 41, 51(xxxi), 80 and 117. While the Constitution contains few express rights and freedoms, the High Court has recognised that the text and structure of the Constitution, including the system of representative government it creates, and the separation of judicial power, gives rise to a number of implied freedoms from governmental power. For example, the system of representative government created by ss 7, 24, 64 and other provisions of the

Constitution gives rise to an implication that people in Australia enjoy freedom to discuss political and governmental matters: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. The separation of judicial power effected by the Constitution guarantees that only a court can determine criminal guilt: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
Jurisdictional issue: laws of the Cth: states and territories are not the Cth s80 doesnt apply in the states and territories Restricted to the laws of the Cth parliament Maybe it does apply to in Territories need to look more closely.
Section 80 of the Constitution provides: 80. Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. Section 80 does not apply to the States or Territories The scope of s 80 is restricted by the fact that it applies to any law of the Commonwealth it therefore does not limit the legislative power of the States: Byrnes v The Queen (1999) 199 CLR 1 o It is about the laws of the Cth o Byrne was being charged under a State legislation: Byrne said I am entitled to trial by jury o HC said no R v Bernasconi (1915) 19 CLR 629 o It has also been held that s 80 does not apply in the Territories, although this view has been criticised. o B was a guy who lived in PNG which was a territory of the o B was in charge of indigenous workers, he ended up murdering someone o Cth legislation applied the QLD criminal code to the territory of PNG o Judge purported to hear the trial without jury o B said he was entitled to a jury o Entire HC said B loses because Ch III doesnt apply in the territories o This case is the source of the justification for Spratt and Eastmans Case (1st case and the other followed) o This decisions is wrong o ChIII describes judicial power of the Cth. The territories are part of the Cth o Where else would it apply if not the territories? o Lead to stupid case law like Spratt and Eastman

Section 80 does not extend to Courts martial These are not ch III court. 5:2 majority said this These are courts created under the executive power S68 gives the GG power to control the armed forces as well as s51(xxxix) coupled with s68 say this It has also been held that s 80 does not extend to Courts martial. Re Tyler & Ors; Ex parte Foley (1994) 181 CLR 153 o Mason CJ, Brennan, Dawson, Toohey and McHugh JJ (Deane and Gaudron JJ dissenting) confirmed that the power of the Commonwealth to make laws with respect to defence and, incidentally, military discipline, were not subject to the constitutional guarantee of trial by jury in respect of Commonwealth indictable offences. o Deane and Gaudron JJ, dissenting, were of the view that it was inconsistent with the separation of judicial power of the Commonwealth in Ch III of the Constitution to confer power on military tribunals to try and punish members of the armed forces for offences that were substantially the same as offences under the general law.
What are proceedings on indictment? Representation on both sides. These are not summary proceedings. The language does not say indictable offences it says trial on indictment Proceedings on indictment involve the formal setting out of charges against the accused on oath by a representative of the Queen before a grand jury this is distinguishable from summary proceedings, where a person typically appears before a magistrate only. However section 80 is not a general guarantee of trial by jury in cases involving serious offences Kingswell v The Queen (1985) 159 CLR 264 at 310311
A literal approach The literal approach to the interpretation of this 1st phrase of section 80 of the HC has resulted in the provision having a very narrow field of operation. A literal approach to s 80 enables the Cth to circumvent any requirement that trial be by jury by providing that offences may be tried otherwise than on indictment that is, if proceedings are on indictment then there is trial by jury (has been criticised but is good law). R v Archdall and Roskruge; Ex parte Carrigan and Browne (1928) 41 CLR 128 o In this case two union officials were separately charged, in summary proceedings, with offences against the Crimes Act 1914 (Cth) relating to their activities in organising strikes. The case turned on the interpretation of a number of apparently conflicting provisions in the Crimes Act and the Acts Interpretation Act 1904 (Cth).

o Carrigan and Browne argued that subject to any contrary intention in the Crimes Act, the offences it created were governed by the Acts Interpretation Act. Because the Crimes Act indicated no contrary intention, the proceedings were to take place on indictment and were consequently subject to the constitutional guarantee of trial by jury. It was argued further that to ascertain what are indictable offences within the meaning of section 80 of the Constitution, regard must be had to the law as it stood when the Constitution Act was enacted, and such offences as were then regarded as indictable cannot be declared by Parliament to be other than indictable o It was held that the Commonwealth retains legislative discretion to determine whether Federal offences are to be tried summarily or on indictment that is whether to grant or remove the right to trial by jury Cheng v The Queen (2000) 203 CLR 248 o McHugh stated that the words of s 80 were deliberately and carefully chosen to give the Parliament the capacity to avoid trial by jury when it wished to do so. Whether one looks at text, history or purpose, the answer is the same - the approach to the construction of s 80 accepted by the majority in Kingswell and by this Court in earlier cases is correct o Whether you look at history, text or purpose s80 doesnt provide for a trial by jury. The discretion to decide for whether a case is indictable is said to be held by the parliament.
The right to trial by jury cannot be waived by the accused If a Federal law provides for proceedings on indictment, then the words of s 80 literally require that there shall be trial by jury and, consequently, the accused does not have the discretion to waive this right. Brown v The Queen (1986) 160 CLR 171 o Here, B was charged with Federal drug offences and tried on indictment. B elected not to have a jury and the trial judge ruled that s 80 disabled the accused from making that election. B was tried and convicted. o On appeal to the High Court, Brennan, Deane and Dawson JJ held that the constitutional guarantee of trial by jury in s 80 could not be waived by B. The majority adopted a literal approach to the word shall in s 80, and concluded that the provision requires that proceedings on indictment for Commonwealth offences use trial by jury. Deane J described the constitutional guarantee of trial by jury in s 80 as a right and not a privilege. o The language it says shall be by jury o Brown did not want a jury, just wanted it to be in front of a judge. o HC said says SHALL which means MUST Brownlee v The Queen (2001) HCA 36 o An application for leave to reopen Brown v The Queen was refused.
The content of the right an historical approach to trial by jury The High Court has adopted an historical approach to determine the content of the phrase trial by jury

in s 80 of the Constitution.
Cheatle v The Queen (1993) 177 CLR 541 o The High Court, in a unanimous judgment, held that s 80 was to be understood in accordance with the common law history of criminal trial by jury at Federation, adapted to accord with contemporary standards o This case involved a challenge to the validity of the Juries Act 1927 (SA), which made provision for majority verdicts (of ten or eleven jurors out of twelve) to be returned in circumstances where, after at least four hours of deliberation, the parties were not able to reach a unanimous verdict. The appellants had been charged with conspiracy to defraud the Commonwealth, an indictable offence arguing that the section required that any conviction of such an offence must be by a unanimous jury. o The Court said that unanimous jury verdicts had been a requirement at common law since the fourteenth century and the clear weight of judicial authority supported the unanimity requirement. The requirement could be justified on the grounds that it ensured that the representative character and the collective nature of the jury was carried forward into any ultimate verdict; on the basis that the requirement provides some insurance that the opinions of each of the jurors will be heard and discussed thereby reducing the danger of hasty and unjust verdicts; and on the basis that the requirement reinforced the rule that a person accused of a crime should be given the benefit of any reasonable doubt o majority verdict for federal legislation is constitutionally invalid o S80 requires unanimous verdict o Unanimous HC said that is correct
The State of South Australia, intervening, challenged the adoption of this historical approach o In 1900 the characteristic features of the jury as an institution were that its members were twelve in number, were male, had a significant property qualification, were locally selected, were susceptible to a specified number of challenges, had to be unanimous, did not give reasons, their verdict of acquittal was absolute, and an alien could require a jury de medietate linguae. Neither history nor concepts of substance and procedure provide a sound basis for deciding which of those features can be discarded. It could not have been intended that all those features were immutable: at 545. A unanimous High Court rejected this view and endorsed the historical approach to the interpretation of the provision but the results of that historical inquiry could be modified to accommodate contemporary standards. Accordingly, when determining the scope of the constitutional guarantee of trial by jury, it is necessary to consider the content of that method of trial in 1900, and then to consider what adjustments might be contemplated by the High Court in order to conform with contemporary standards and to bring about a situation which is more truly representative of the community. A unanimous jury of 6, or 10, but not 12 is required:

There is no constitutional requirement that a jury be composed of twelve persons. Brownlee v The Queen (2001) HCA 36 In the course of their judgments the members of the Court also made observations about the minimum number of jurors that might be needed to satisfy the constitutional requirements of independence, representativeness and randomness of selection. Gleeson CJ and McHugh approved US authority that these goals are not in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 particularly if the requirement of unanimity is retained Gaudron, Gummow and Hayne JJ remarked that if 12 be taken as the requisite minimum with which the trial must commence, there is much force in the contention that no reduction below 10 is permissible Callinan J said that there is no reason in principle why a jury of twelve persons should necessarily be considered more representative of the community than a jury of ten persons or fourteen, although there may come a point at which a somewhat smaller number could not, in any real sense, be regarded as a jury, a matter that is unnecessary to decided in this case
Freedom of Religion Section 116 of the Constitution provides: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. Section 116 limited in scope Doesnt apply to the states States can make laws making laws about religion Not resolved in the states Attorney-General for Victoria; ex rel Black v The Commonwealth (the DOGS case) (1981) 146 CLR 559 o Although s 116 appears, incongruously, in a chapter entitled The States, it is said to have no application to the States and the High Court has not yet resolved the question whether s 116 applies to laws made under the Territories power, s 122 Lamshed v Lake (1958) 99 CLR 132 o Dixon CJ, with whom Webb, Kitto and Taylor JJ agreed, said (obiter) that there was no reason why s 116 should not apply to laws made under s 122. o This view was approved by Toohey, Gaudron and Gummow JJ in Kruger v The Commonwealth (1996) 146 ALR 126 at 173, 202 and 237 respectively. That the protection afforded by s 116 applies to every law of the Commonwealth is, however, beyond doubt.
What is a religion?

Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (the Scientology case) (1983) 154 CLR 120 o The case concerned the question whether the Church of the New Faith, or Scientology, was exempt from liability under State pay-roll tax legislation on the basis that it was a religion. o Mason ACJ and Brennan J said thatFor the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons (rules) of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets (beliefs) of a religion may give primacy (dominance) to one particular belief or to one particular canon of conduct. o Mason ACJ and Brennan J reached this result even though they found some of the canons of Scientology to be impenetrably obscure and could readily appreciate why the trial judge came to the conclusion that Scientology was merely a farrago of imitations of established religions o Wilson and Deane JJ approached the task of defining the term religion with caution, stating that: One of the more important indicia of a religion is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has a religion. Another is that the ideas relate to mans nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium (identifier) is that the adherents themselves see the collection of ideas and/or practices as constituting a religion. Wilson and Deane JJ stressed that these five indicia did not form a rigid test, and further, it could be that a wider test of religion might need to be adopted in a case which directly dealt with s 116 o Murphy J developed the following wider test: 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
The establishment clause: Attorney-General (Vic); ex rel Black v Commonwealth (the DOGS case) (1981) 146 CLR 559. o Here, the Commonwealth passed State Grants Acts which gave financial assistance to the States subject to conditions, including, in this instance, that a portion of the monies be given to non-government schools. Non-government schools are typically operated by religious groups. It was argued that the grants Acts were laws establishing religion in that they provided financial support to these religions, or alternatively, that the laws

established religions because the establishment clause prohibited the preferential sponsorship of one or more religions over other religions. o A majority dismissed the case on the basis that the provision of financial support in this way did not establish a State religion o The establishment clause referred to laws intended and designed to set up the religion as an institution of the Commonwealth; laws with the purpose and effect of setting up any religion as a state church; laws which effected the authoritative establishment or recognition by the state of a religion or church as a national institution; or which provided statutory recognition of a religion as a national institution o A majority of the Court also rejected the alternative argument that the provision of financial assistance to non-government schools involved the concession of special favours, titles and advantages to one or more churches which were denied to others. The sponsorship must be of so special a kind that it enables us to say that by virtue of the concession the religion has become established as a national institution, as, for example, by becoming the official religion of the State Religious Observance: The second part of s 116 is the religious observance clause. There has no HC decision which has considered this clause. The free exercise of any religion 2nd way of government regulating human behaviour. Free exercise doesnt mean u can do anything social order needs to be taken into account Conscientious objection Krygger v Williams (1912) 15 CLR 366. o To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec 116 Krugger v The Commonwealth (1997) 146 ALR 126 o Freedom of religion extends to the toleration of absence of religion. o Action in pursuance of a particular religious belief that is both monotheistic (belief that there is only one god) and eager to proselytise (covert to another faith or religion) may conflict impermissibly (not allowed) with toleration both of religion and of an absence of religion. Judd v McKeon (1926) 38 CLR 380 o Higgins J held that an electors abstention from voting on religious grounds was a valid reason for failing to vote. It might be that military service is regarded as a more significant civic duty than voting. Adelaide Company of Jehovahs Witnesses v The Commonwealth (1943) 67 CLR 116 o The High Court held that the freedom guaranteed by s 116 is not absolute, but was,

according to Starke Jsubject to limitations such as are reasonably necessary for the protection of the community and in the interests of social order o Latham CJ (with whom McTiernan J agreed), made similar remarks stating thatit must be conceded that the protection of any form of liberty as a social right within a society necessarily involves the continued existence of that society as a society. o This is a leading case o Defence force regulations enacted which imposed hardship of liberty on passivist groups E.g. couldnt meet in groups larger than 6 o Objective, was to concentrate the mind of the populous on the war itself and didnt want religions infesting people away from the war o The Jehovahs witness challenged this. o HC dismissed challenge Smith and Smith v Handcock (1944) 46 WALR 21. o The need for social order during wartime has been used to justify severe restrictions on the freedom of association and movement of pacifist religious groups: see for example
However, while it may be argued that the need to maintain social order is heightened during wartime; requirements of social order have persisted in a number of peacetime decisions. For example, the need for social order has been held, in some circumstances, to require the award of custody to a party to a marriage who is not avidly religious, on the basis that the welfare of the child may be enhanced by awarding custody to a non-religious person rather than to an avidly religious person: In the Marriage of Paisio (1978) 26 ALR 132 Implied constitutional freedoms The implied freedom of speech to discuss political and governmental affairs The idea of such an implied freedom was first discussed in obiter in Davies v The Commonwealth (1988) While the Constitution contains few express rights and freedoms the HC has recognise that the text and structure of the Constitution, including the system of representative and responsible government it creates may give rise to a number of implied freedoms from governmental power: Lange v ABC (1997) Jurisprudence on the implied freedom speech. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 o This was the first case which recognised an implied freedom of speech. o The case concerned the validity of a provision of Federal industrial relations legislation which made it an offence to use words calculated to bring a member of the Australian Industrial Relations Commission into disrepute. The defences which were ordinarily available to persons charged with contempt or accused of defamation were not available under the law. o The High Court held that the provision was unconstitutional on the basis that it was not appropriate and adapted to achieving the purpose of s 51(xxxv). The curtailment (limitation) of freedom of speech contemplated by the provision was disproportionate to s

51(xxxv), and could not be regarded as incidental to the power or the workings of the Commission. o Brennan, Deane, Toohey and Gaudron JJ based their reasoning on the proposition that the system of representative government prescribed by the Constitution gave rise to an implication that it is necessary to enable the discussion of political and governmental affairs o Concerned a journalist named Max Newton who had been critical of the Australian Industrial Relations, set up to arbitrate and conciliate. o Sections of the act, which protected the commission from criticism calculated to bring the commission into disrepute o Nationwide News challenged constitutional validity on the basis that there is an implied freedom to discuss political and governmental affairs. o Court unanimously struck down the regulation o Dawson said it was beyond power o The other 6 said it infringed an implied freedom of political and governmental affairs Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 o A majority of the High Court confirmed the existence of the implication, but differed as to its nature and content. ACTV was a constitutional challenge to the validity of Federal broadcasting legislation which prohibited certain types of political advertising during election periods. Once an election for any Federal, State, Territory or local Government was announced, no reference could be made to the election or electoral matters, the government or issues submitted to the electorate for decision, the parties or the candidates, until the polls closed. Exceptions applied to news, current affairs and talkback programmes. The legislation required television broadcasting licensees to provide free time to political parties subject to a condition that 90 per cent of the free time was to be granted to political parties which were already represented in Parliament and as far as practicable, in proportion to their respective voting shares at the previous election. o The plaintiffs challenged the validity of the law on a number of grounds, including the ground that the legislation infringed an implied guarantee of communication in relation to political and electoral affairs. o The Court upheld this challenge by majority and six judges recognised the existence of an implied freedom of speech. The implication was drawn in different ways and the Justices differed as to its content, giving rise to some uncertainty regarding the scope of the freedom. o Parliament conducted an inquiry into money v success in election campaigns (correlation), there was a direct correlation and the outcome was published o Legislation was enacted implementing its recommendations o ACTV wanted to protect their revenue o 5 judges struck down the legislation: implied freedom to discuss political and governmental affairs o Brennan: said there was an implied freedom but not applicable because the legislation is reasonably and aptly adapted to the legitimate end of removing the capacity of a political party to advertise their policies and or criticize the other side o Dawson: no implied freedom, people who drafted the Constitution had a specific proposal

o o o o to include freedom and they rejected it Lots of debate: are the judges creating more power for themselves? Should we have a referendum? Maybe court was using activism which is not allowed In a democratic democracy, you need to have some discussion which is necessary in order to make decisions under ss 7 and 24
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 o This case concerned a letter published in the Sunday Herald Sun (Melbourne) which was critical of the plaintiffs views on immigration policy. The plaintiff was a member of Federal Parliament who brought proceedings against the defendants for defamation. The defendant argued that the publication was protected by the implied freedom to discuss government and political matters. o A majority of the Court recognised a constitutional defence to defamation which appeared to posit (imagine) the implied freedom of speech as a personal right, holding that: (1) There is implied in the Commonwealth Constitution a freedom to publish material: (a) discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (c) in relation to the suitability of persons for office as members of the Parliament. (2) In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances. (3) A publication that attracts the freedom implied in the Commonwealth Constitution can also be described as a publication on an occasion of qualified privilege. Whether a federal election is about to be called is not a relevant consideration. o The majority posited (put for consideration) the existence of this broader implied freedom on the basis that the Constitution is based on principles of representative democracy and this might give rise to any implications which were necessary to sustain a representative democracy. o implied freedom is only a limitation on the legislative power (minority) o You can use the implied freedom in ordinary litigation (majority) Theophanous and Stephens seemed to presage (signify) High Court activism in the development of implied constitutional rights. However, the correctness of Theophanous and Stephens, and in particular, the reasoning upon which those decisions was based, was doubted in Lange v Australian Broadcasting

Corporation (1997) 189 CLR 520 In particular, in more recent decisions the High Court has confirmed that the Constitution merely prescribes a system of representative government which leaves a great measure of discretion to the Parliament to determine the form which that type of government might take. Representative government, not representative democracy, as a basis for the implication of freedoms from governmental power: McGinty v Western Australia (1996) 186 CLR 140 o McGinty and others challenged the constitutional validity of provisions of the Western Australian Constitution and electoral laws which had the effect of providing rural electors with greater voting power than metropolitan electors. o Under the laws, a metropolitan electorate could have up to three times as many electors as the smallest rural electorate. It was argued that disparities in voting power were inconsistent with principles of representative democracy which underlie both the Commonwealth and Western Australian Constitutions, and specifically the principle that an electors vote should be of equal value to that of any other elector (one voteone value). o The argument was rejected by the majority of a differently constituted bench of the High Court. It was held that neither of the Constitutions gave rise to an implication that the people of Western Australia enjoyed a guarantee of one voteone value. o Brennan CJ referred to Nationwide News and Australian Capital Television and stressed that the text and structure of Parts II and III of Chapter I of the Constitution, and specifically ss 7 and 24, gave rise to the implication of freedom to discuss political matters, but it would belogically impermissible to treat representative democracy as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed. The text of the Constitution can be illuminated by reference to representative democracy but the concept neither adds to nor alters the text. o The development of implications from a doctrine of representative democracy said to underlie the Constitution was stridently opposed by McHugh J, who said: an implied principle of representative democracy as fundamentally wrong and as an alteration of the Constitution without the authority of the people under s 128 of the Constitution. Moreover, much as I admire the noble vision of the justices who have found, contrary to what the overwhelming majority of lawyers had always thought, that the Constitution contains a free-standing principle of representative democracy, the principles of constitutional interpretation compel me to reject their reasoning. To decide cases by reference to what the principles of representative democracy require is to give this Court a jurisdiction which the Constitution does not contemplate and which the Australian people have never authorised. That is a political question and, unless the Constitution turns it into a constitutional question for the judiciary, it should be left to be answered by the people and their elected representatives acting within the limits of their power as prescribed by the Constitution.

In McGinty, Gummow J pointed out that to draw implications from a doctrine of representative democracy was to adopt a category of indeterminate reference. Critical to the conclusion that no implication of one voteone value was the fact that ss 7, 10, 22, 24, 29, 30, 31, 34, 39, 4648 gives the Parliament considerable legislative discretion as to the form of representative government. Representative government is a dynamic rather than a static institution. The High Courts restraint in the development and application of implied freedoms was also evident in: Langer v Commonwealth (1996) 186 CLR 302 o Langer challenged the constitutional validity of s 329A of the Electoral Act 1918 (Cth) which provided that: A person must not, during the relevant period in relation to a House of Representatives election under this Act, print, publish or distribute, any matter or thing with the intention of encouraging persons voting at the election to fill in a ballot otherwise than in accordance with section 240. Penalty: imprisonment for six months. o Section 240 made provision for a system of full preferential voting, under which electors are required to number each box on the ballot paper in sequential order. Sections 268 and 270 operated to save ballots which were not numbered in this way using a variety of recounting methods. Langer was charged with offences under s 329A for encouraging people to indicate a first preference for the candidate of their choice (preferably a member of a minor political party), and then a second preference for each of the subsequent candidates. Langer argued that the words chosen by the people in s 24 of the Constitution required that voters must be free to indicate the candidates which the voter does not choose, and in some circumstances, that can only be done by filling in the ballot paper otherwise than in accordance with s 240. Section 329A was invalid because it prohibited the encouragement of voters to exercise a right of choice which the Constitution allows. Further, s 329A was invalid because it infringed the implied constitutional freedom of communication about political matters. o A majority of the Court rejected these arguments. The majority held that s 240 of the Electoral Act prescribed a system of voting which was consistent with s 24 of the Constitution. The Act was a valid exercise of the Commonwealths power to make electoral laws pursuant to ss 31 and 51(xxxvi), and s 329A was a reasonably appropriate and adapted means of preventing subversion of that valid voting method. The provision did not infringe the implied freedom of communication because Langer remained free to criticise the system but in doing so he was not allowed to encourage people to disregard the system.
The limits of the High Courts capacity to develop implied freedoms from the system of representative government were confirmed in: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. In that case, the High Court said: o The divergence of opinion among the justices of the High Court regarding the nature and scope of the implied freedom of speech was removed. In 1991 the plaintiff, a member of the New Zealand Parliament and former Prime Minister, brought defamation proceedings against the ABC alleging that he had been defamed during the Four Corners programme broadcast on 30 April 1990. The ABC relied on a number of defences including that the matter complained of was published pursuant to a freedom guaranteed by the

Commonwealth Constitution to publish materials in the course of discussion of government and political matters. o Since McGinty it has been clear, if it was not clear before, that the Constitution gives effect to the institution of representative government only to the extent that the text and structure of the Constitution establish it. In other words, to say that the Constitution gives effect to representative government is a shorthand way of saying that the Constitution provides for that form of representative government which is to be found in the relevant sections. Under the Constitution, the relevant question is not, What is required by representative and responsible government? It is, What do the terms and structure of the Constitution prohibit, authorise or require? Tests Theophanous and Stevens do not stand for any test of implied freedom to discuss political and governmental affairs, rather: In determining whether a law infringes the constitutional implication of freedom of communication on matters of government and politics; or when a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication, two questions must be answered. 1. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? 2. Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people? If the first question is answered yes and the second is answered no, the law is invalid This approach needs to be viewed with respect to the decision in:
Coleman v Power (2004): Coleman: activist in Townsville Power: policeman Hippy v Cop Coleman said to power that you are corrupt The context: Coleman was giving out pamphlets in Townsville Mall. LOCATION is a public place (it is a regulated by the local council) Regulation which regulate the use of the mall, they can use it for different things but regulated to some degree to ensure people can use mall without affecting rights or each other Does Coleman has the right to stand up and say Power is a corrupt cop? Power said stop it. He was using s7(1)(d) QLD Vagrants Act (basically bums and hobos)

This section said you cannot use insulting words in a public place or insulting words which can be heard in a public place Brendan Power arrested Coleman as he had breached the section of the above act Coleman made a free speech case went to the HC won Only 2 addressed the Free Speech idea Said that the section could be valid as long as it did not prevent political speech. Judges: Gleeson CJ (minority) [this dude is an activist, he talks a lot of shit] o What insulting meant, whether it included an intention of disturbing the peace? He said it did not. o Whether the legislation was valid? He said it was as the law was reasonably capable of being considered appropriate and adapted o Lange test: First test: does the law applied in context; infringe freedom to discuss political governmental affairs. Second test: if the answer to 1 is yes; then is the law directed to some legitimate end and is the law reasonably appropriate and adapted to that end? If the answer is no, then the law is INVALID. o Gleeson CJ doesnt like the Lange test and he said as long as the law was reasonably capable of being considered appropriate and adapted. o He prefers a test that would give more regard to the legislature McHugh J (majority) o Agrees with Kirby Gummow J and Hayne J (majority) o Agreed with McHugh J so they basically agreed with Kirby J Kirby J (majority) o Kirby doesnt like the Lange test either First test: does the law applied in context; infringe freedom to discuss political governmental affairs. Second test: if the answer to 1 is yes; then is the law directed to some legitimate end and is the law reasonably appropriate and adapted to that end? If the answer is no, then the law is INVALID. o He doesnt like the bit which says reasonably appropriate and adapted. Kirby J thinks this whole bit should be proportionate. o This test would allow the members of the court to look at the policy in context, and this would give the members of the court a wider interpretation Callinan J (minority) o Doesnt agree with Lange Heydon J (minority) o Thinks the legislation is valid and that it is reasonably appropriate and adapted to that end
Application of the new principle: Levy v Victoria (1997) 189 CLR 579

o Animal rights activist. o He and followers protested against duck shooting. o They would go to the areas which were duck shooting areas, they would go to the area, and take the ducks which were shot in front of TVs and say how cruel it was etc. o They argued freedom of political speech o The legislation designated those areas for duck shooting license o You cant enter those areas without a gun license or duck shooting license o Enters the area without a license o Went to court for this o Argued: freedom to discuss political and governmental affairs, the legislation should be struck down o Does the implied freedom under the Cth constitution apply to the states o Unanimously said that the VIC legislation was NOT to be struck down. o It didnt infringe the implied right o It was directed to a legitimate end o Keep people out of area, where people are shooting guns o Levy, an animal rights activist, was charged with summary offences under Victorian hunting season regulations which made it an offence for people who did not hold a valid game licence to enter into or upon any permitted hunting area during a specified period of time. During this period, licensed hunters were allowed to shoot and kill ducks. The plaintiff, who did not hold a valid game licence, challenged the constitutional validity of the regulations on the basis that, among other things, the regulations were unconstitutional by reason of the implied freedom of speech. The plaintiff argued that the regulations infringed his freedom of speech by limiting his capacity to protest and thereby to enable people to form or exercise political judgments about government policy on duck shooting. The plaintiff argued to communicate his political message that duck shooting should be banned it was necessary for him to have access to the hunting grounds to retrieve dead or wounded birds so that he could show them to television camera crews. Victoria demurred (objected) to the plaintiffs statement of claim and were granted leave to re-argue the correctness of Theophanous and Stephens. o Every member of the Court held that the regulations were reasonably necessary to protect the safety of the public and participants and the restriction on the type of protests this entailed was reasonably capable of being seen as appropriate and adapted to this end. o Consequently, Levys challenge to the regulations was rejected. In passing, every member of the Court also stated or assumed that nonverbal activity could fall within the implied freedom of communication. Application of the Lange principle to the common law defence of qualified privilege in defamation cases Roberts & Case v Bass (2002) HCA
Other implied freedoms? Other implied freedoms may arise from the system of representative and responsible government

prescribed by the Constitution. Where the court is probably going next: implied freedom of movement and association political discussion isnt just about talking its about talking to other people then association and movement are probably the next thing The people of Australia may have an implied right of access to the seat of Government Crandall v Nevada 73 US 35 (1867); Cunliffe v The Commonwealth (1994) 182 CLR 272 They may enjoy a freedom of association and travel associated with the election of Federal representatives and associated activities Kruger v The Commonwealth (1997) 146 ALR 126 o Just as communication would be impossible if each person was an island, so too it is substantially impeded if citizens are held in enclaves, no matter how large the enclave or congenial its composition. Freedom of political communication depends on human contact and entails at least a significant measure of freedom to associate with others. And freedom of association necessarily entails freedom of movement
While arguments in support of the existence of these additional implied freedoms may be compelling, they have not yet been approved by the majority of the High Court in the ratio of any decision. As Gummow J commented in Kruger: The problem is knowing what rights are to be identified as constitutionally based and protected, albeit they are not stated in the text, and what methods are to be employed in discovering such rights. Recognition is required of the limits imposed by the constitutional text, the importance of the democratic process and the wisdom of judicial restraint.

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Federal Constitutional Law

Constitutional law and politics:

The Fundamentals of Australian Constitutional Law (Chapter 1)

Federal Constitutional Law

Compare this to the decision in: Fardon v Attorney General of Queensland

Federal Constitutional Law

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Lange v Australian Broadcasting Corporation (1997) 145 CLR 96

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State constitutional law and Federalism:

A federal system of government

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The Commonwealth and the States

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o Exclusive: (look at the next heading)

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References, cooperation and uniform legislation

Federal Constitutional Law

Chapter IV and the States: fiscal federalism:

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States may be used as agents for Commonwealth

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