Essays:

Federalism
One of the fundamental features of Australian constitutionalism is federalism. The
concept of federalism is identified by the concept that the powers of government is
distributed between two levels. Firstly, central government (federal) takes care of whole
territory and population of the sovereignty and secondly, local government or the state
takes care of particular areas.
In Australia, the distribution of legislative powers between the commonwealth and the
states is vastly different from the original distribution of powers enshrined in the federal
constitution adopted on January 1 1901
The distribitution of federal powers is in large part set out in s 51 of the constitution that
gives particular enumerated powers for the commonwealth to make laws.
The structure of our federal system is structured between legislature and executives at
both levels.
A discussion of federalism begins with the Engineers case.
Prior to Engineers case High Court had developed two doctrines that had a restrictive
effect on the scope of federal constitutional powers. The first, was the doctrine of implied
intergovernmental immunity and therefore the constitution ought to be interpreted in a
way that ensured that the commonwealth was immune from the operation of the
legislation of the states and vice versa. As demonstrated in Demden v pedder. Implied
intergovernmental immunity was the belief that the federal and state levels were
sovereign in the separate areas described by their respective constitutions. The second
restriction on the scope of federal constitutional powers was based on the Doctrine of
reserved powers. These reserved powers of Commonwealth stated that it 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.
However, although Australian federalism has a strong focus on the powers of the
commonwealth over the states the high court has recognized the principle in Melbourne
Corporation v Commonwealth that provides a degree of protection of the states against
the commonwealth. The Melbourne corporation doctrine states that the commonwealth
cannot impose special burdens or disabilities on a state or states to function as a
government.
It is also a basic principle of federalism the commonwealths powers do not operate
automatically to reserve any subject matter for legislation of the commonwealth as
illustrated in Pirrie v McFarlane.
The engineers case is significant because the majority rejected the doctrines of state
reserved powers and implied intergovernmental immunity. Majority noted 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 s 51 xxxv.
From there,Federal legislative supremacy is reinforced by the presence of s 109 which
states that state laws are inoperative insofar as they are inconsistent with federal laws.
Two types of legislative power:
1. Concurrent state law can operate in a field left vacant by federal law.
2. exclusive powers

Furthermore, It is important to note that several of commonwealths defence and taxation

powers have reinforced the subjection of the states.
Pirrie v McFARLANE commonwealth does not automatically have jurisdiction if
nothing explicit.
Pirrie v. McFarlane commonwealth has exclusive powers to make laws with respect to
matters relating to naval or military defence.
Certain areas give commonwealth exclusive power that gives it special immunity from
the operation of state laws.
However, there are also several areas where the commonwealths legislative powers
contain limitations. i.e. s 51 (i) trade and commerce between states and other countries.
PARLIAMENTARY SUPREMACY
Parliamentary Supremacy is the power to make or unmake any law within that sphere of
competence. This doctrine, and its operation within the Australian states is considered at
the federal level in Kartinyer .
Parliamentary supremacy is not absolute because the exercise of legislative power can be
checked by the will of the people expressed in elections.
CONSTITUTIONAL INTERPRETATION
Australian Constitutional interpretation is characterized by several different approaches.
Most discussions regarding interpretation of the Australian constitution begins with the
principle set out in Engineers case. The principle in engineers states that the words of the
constitution are to be given their natural and ordinary meaning.
A majority of the high court held that the constitution should be interpreted in accordance
with the ordinary principles of statutory interpretation , rather than be consistent with any
implied doctrines.
A closer analysis of what is meant by the natural and ordinary meaning as set out in
Engineers forces an examination of what the constructors of the constitution intended to
be the natural and ordinary meaning. This requires a historical analysis of the context in
which they used the words.
An ambulatory approach to the constitution suggests that the constitution has an original
or essential meaning which is fixed by history and interpretions should have regard to
that historical context and contemporary circumstances Street v Queensland. This
approach of examining the meaning of the terms as they were given at the construction of
the constitution was given further support in Union Label Case.
The principle from Cheatle v the queen requires that the constitution should be
interpreted in accordance with contemporary values. This requires an identification of
those values.

Furthermore, the high court has traditionally expressed a preference for a broad
interpretation of commonwealth constitutional powers Jumbunna Coal mine.
In Newcrest Mining v The commonwealth as well as Kartinyeri Kirby J suggests the
approach to interpret the an ambiguous provision of the constitution in accordance with
principles of fundamental rights and international standards. Although this was rejected
by Callinan in Western Australia v Ward
While the majority judgments in the engineers case emphasized the primary importance
of the express language of the constitution, the necessary role of implication is significant
in constitutional interpretation West v Commissioner of Taxation. However it ought to be
briefly noted that the use of implication in constitutional interpretation comes from the
necessarily implied meaning.
Examples of implied rights:
Implied rights and freedoms within the Australian constitution demonstrate the
importance of the instrument of implication in Constitutional interpretation.
Implied freedom of political communication governmental matters lange. Implied
doctrine of separation of powers, that the role of the judiciary should be kept separate
from the role of the parliament.
There is also an implication from Chapter 3 of the constitution that a body exercising a
judicial power must do so in a manner that is consistent with traditional notions of what
constitutes judicial process, a right to due process
S 80 is a literal approach
RIGHTS
One of the reasons for the exclusion of a bill of rights in the Australian constitution that
individual rights were on the whole best left to the protection of the common law and the
supremacy of the parliament Kruger v commonwealth. However, the Australian

Constitution contains few express human rights guarantees.

Essentially, it is a document designed to govern the
distribution of legislative power between the States and the
Commonwealth.
The inclusion of a Bill of Rights was debated in the years
leading up to Federation, including at the 1897-1898
Constitutional Conventions but was specifically rejected. To a
large extent, the Convention delegates believed that the
constitutional entrenchment of the doctrines of responsible
parliamentary government and separation of powers would
itself provide the best protection for human rights. There was
also, however, a fear that express provisions to protect human
rights, such as an equal protection clause, would prevent the
operation of existing racially discriminatory laws aimed at
Aboriginal people and the Chinese immigrants who came to
Australia to work in the goldfields.

The Constitution does contain a small number of individual

rights. The Australian constitution has few instances where it contains express
protections of an individuals rights or freedoms:
S 51 xxxi
S 80
S 92
S 116
And
S 117
However, since 1992 the court has developed a jurisprudence of implied rights and
freedoms most dramatically in its decisions in Australian Capital television v
commonwealth and nationwide news v wills in which the court found that the
commonwealth constitution, particularly those that describe representative government
confer an implied freedom to discuss political and governmental affairs.
In a series of decisions commencing with Polyhukovich v commonwealth and chu kheng
lim high court judges recognized certain due process limitations flow from the separation
of judical power effect by Ch III of the constitution.

They
Australia is one of the few countries that does not contain a bill
of rights. It is important to note the distinction between:
1. constitutional protection
2. statute based
In a constitutional bill of rights such as those in Canada and the
United States the charter or bill of rights is contained with the
constitution. This is significant because in such circumstances
the rights are constitutionally protected aand cannot be
overridden by statute. However, in a statute based system
such rights may be overridden either by the constitution or by
express or implied limitation of other statutes.
There is a common claim that the protection of an individuals
rights in a constitution does not have practical application.
Such critiques point to historical and social examples such as
the discrimination of African Americans and the resistance to
the civil rights movement.
However, I would argue that the constitutional protection of
rights and freedoms has an ideological purpose. It says that we
as a community or nation, recognize and preserve the ability to
give an individual the protection and standing they are entitled
to as a human being and are dignified with universal rights.

In the absence of a Bill of Rights, any human rights protected

under the common law may be overridden by an ordinary act
of Parliament.
However, this is not to suggest that a bill of rights would
entrench rights into a constitution. For example, section 1 of
the Canadian charter of rights and freedoms states that the
following provisions are only subject to such reasonable limits
prescribed by law as can be demonstrably justified in a free
and democratic society.
Several High Court decisions illustrate the significant
limitations of the role that the Australian judiciary currently
plays in ensuring the protection of fundamental human rights
and freedoms. High Court decisions concerning issues such as
immigration, racial discrimination and the indefinite detention
of habitual criminal offenders have revealed significant
deficiencies in the protection of human rights within Australia.
These decisions regarding
rights protection within Australia provide the background for
discussing the need for a national Bill of Rights.
IMMIGRATION CASES
he most controversial of these cases was the majority
decisions of the High Court in Al-Kateb v Godwin and Minister
for Immigration and Multicultural Affairs v Al Khafaji 37. These
appeals challenged the legality of the detention of two
unlawful non-citizens under sections 189, 196 and 198 of the
Migration Act 1958 (Cth) in circumstances where they were
likely to be detained indefinitely for the foreseeable future. The
High Court, by a 4:3 majority, upheld the legality of the
detention.
RACIAL CASES
The Hindmarsh Island Bridge Case raises the possibility that
section 51(xxvi) provides the Commonwealth Government with
direct constitutional authority to enact legislation directly
discriminating against or disadvantaging a particular race. The
case provides an example of a legal ambiguity that could be
easily clarified by reference to an Australian Bill of Rights that
includes equal protection as one of its fundamental aims.
Section 51(xxvi) of the Constitution is an example of a

provision that has

24often been cited as providing a measure of constitutional
protection to rights but which, in reality, does not necessarily
do so. Depending on the way section 51(xxvi) is interpreted by
the High Court in the future, it is possible that it permits the
federal Parliament to enact discriminatory laws to
disadvantage a particular racial group and provides direct
constitutional authority to override anti-discrimination
legislation.
INDEFINITE DETENTION OF HABITUAL CRIMINAL
OFFENDERS
Fardon v attorney
These advantages are criticized and countered by critics of a
national Bill of Rights. They argue that the current Australian
political system provides the best guarantee for human rights,
through traditions such as responsible parliamentary
government, separation of powers, free and regular elections,
federalism and an independent judiciary. They suggest that the
adoption of a Bill of Rights is inconsistent with the principle of
parliamentary sovereignty because it would transfer power
from elected parliamentarians to unelected judges by giving an
unrepresentative judiciary the ability to invalidate legislation
adopted by the peoples own parliamentary representatives.
They argue that giving judges this type of power over central
social issues would politicize the courts, diminish respect for
the judiciary by allowing activist judges to flourish and result in
judges being appointed primarily on political rather than legal
merits.
It is important to make the distinction between two common
forms of bill of rights:
CONSTITUTIONAL LAW PROBLEM SOLVING TYPOLOGY
1. Identify the power(s) the Commonwealth might invoke to support the law.
2. Describe the ambit of the power(s) by reference to the relevant case law.

3. Characterise the law consider what rights, duties, obligations, privileges or

immunities the law creates, affects or destroys and whether those rights etc are
sufficiently connected or reasonably appropriate and adapted to the power(s) invoked
to support them.
4. Reach a conclusion as to the validity of the law and advise the client.
5. Identify the prohibitions or limitations that might be invoked to strike down the law.
6. Describe the ambit of those prohibitions or limitations by reference to the relevant
case law.
7. Characterise the law to consider whether it is struck down by the prohibitions or
limitations (ie. Interpret the law and apply the relevant tests)
8. Reach a conclusion as to the validity of the law and advise the client.

CHARACTERISATION
In the Engineers case the high court said that the words of the constitution are to be given
their natural and ordinary meaning. Although the High court stressed the importance of
the express language of the constitution in the Engineers case, implications have a role
in the interpretation of the constitution West v commissioner. A valid law must be capable
of being characterized as being within a Commonwealth head of power Fairfax v federal
commissionaer of taxation. The question whether a law may be described as being with
respect to a head of power is one of degree. It must be demonstrated that the law in
question is sufficiently connected or incidental to the power or powers invoked to support
it order for it to be valid Re Dingjan
An ambulatory approach to the construction of the constitution is that the language has an
original or essential meaning which is fixed by history Union lable case.
In the engineers case Knox CJ, Isaacs , Rich and Starke JJ said that the constitution
should be read naturally in the light of the circumstances in which was made, with
knowledge of the combined fabric of the common law and the statute which preceded it.
The high court recognizes that interpretations of the constitution must be adapted to
accord with contemporary standards cheatle v the queen
Jumbunna v Victorian always take the wide or broad approach.
Melbourne Corporation doctrine

The constitution predicates their continued existence as independent states. The

fundamental purpose of the constitution and its very frame reveal an intention that the
power of the commonwealth to affect the states by its legislation must be subject to
limitation:
1.a general law made under a head of power will be invalid it would prevent a state from
continuing to exist and function as such
2. if it discriminates against the states in that it imposes a special burden or disbility.
Melbourne Corp doctrine further established in Austin that says really only one
limitation and that is an assessment of the impact of particular laws by such critera as
special burden and curtailment of capacity to function as governments.
The federal legislative supremacy established by engineers doesnt say that states cant
enter federal fields but only that their laws may be overridden by virtue of the operation
of s 109 in the event of a clash.
Pirrie v McFarlane driving case.. commonwealth enjoys exclusive power that gives it
special immunity from the operation of state laws.

STATES
Existence of the states are confirmed in s 106.
The states enjoy general legislative power to make laws for the peace welfare and good
government of the respective state. The meaning of the phrase was considered in union
steamship describes a plenary power, or not subject to limitation.
Section 2(1) of the Australia Act states that legislative powers of parliaments of states
include full power to make laws for the peace order and good government of that state
that have extra-territorial operation.
There must be a connection between the state and the matter regulated Pearce v Florenca
Pearce v Florenca
TERRITORIES
requires a sufficient connection
Section 122 provides: the parliament may make laws for the government of any territory
surrendered by any state to an and accepted by the commonwealth, and may allow the
representation of such territory in either the house of the parliament to the extent and on
the terms which it thinks fit.
The conclusion that s 122 is plenary has been supported on two principal grounds:

1. Spratt v hermes say s 122 gives to the parliament legislative power of a different
order to those given by s 51. The power is not only plenary but is unlimted by
reference to subject matter.
2. It is not like the sub-sections of section 51 expressed to be subject to the
constitution.
However, more recent cases such as Capital Duplicators suggest an approach that
considers the relationship between s 122 and other provisions of the constitution on a
section by section basis. The scope of s 122 is qualified by other provisions in the
constitution and it is necessary to take an approach that treats the constitution as a whole.
(S 51 I and the territories?? Because it says among the states
The plenary power of the territories power has been completely dismantled.
The application of Chapter 3 to the territories Bernasconi says that chapter 3 doesnt
apply to the territories
Spratt v Hermes was challenged in Eastman
NAALAS v Bradley- three things:
1. court of the territory may exercise the judicial power of the commonwealth
prusant to investment by laws made by the parliament.
2. Implicit in the terms of Chapter III of the constitution, that a court capable of
exercising the judicial power of the commonwealth be and appear to be an
independent and impartial tribunal
3. Minimum requirement/characteristics of an indepenent and impartial tribunal
ercising the jurisdiction of the court
The conclusion in Bradley is an implication arising that Chapter 3 of the constitution
applies to the territories and that the decision in bernasconi will unlikely be upheld in the
future.
TRADE, COMMERCE AND INTERCOURSE
requires SC or reasonable appropriate and adapted to
Section 51 (1)
CHARACTERISATION
The character of the TAC power must be determined by reference to the rights powers,
liabilities, duties and privileges which it creates and that its practical as well as legal
operation must be examined to determine whether the is a sufficeitn connection between
the law and the head of power in s 51 (i) Grain pool of western australi v the
commonwealth.. if a connection exists between the law and the relevant head of power
the law will be with respect to that head of power unless the connection is so
insubstantial, tenuous, or distant that it cannot sensibly be described as a law with respect
to that head of power re dingjan.

In the exercise of the TAC power the parliament can validly regulate the conduct of
persons employed in those activities which form part of the trade and commerce with
other countries and among the state Australian steamships v malcom.
The connection between the matter and the activity trying to be regulated must be
sufficiently connected to the trade and commerce power s 51(I) OSullivan
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: trade and commerce
with other countries and among the states.
The meaning of the words trade and commerce is meant to be interpreted according to
its practical meaning and involves the movement of 1. Goods, 2. Peoples or 3. Intangibles
McArthur.
Australian national Airways and Commonwealth suggest that the meaning of the words
should be construed broadly and flexibly to allow for the changing of meaning over time.
An extensive definition of TAC was provided by Dixon J in Bank of New South Wales v
Commonwealth the attempt to confine the subject matter to physical thigns and persons
would be quite out of keeping with all modern developments.
Prepatory to trade/ manufacturing
The opinion that TAC does not extend to include manufacturing or production has been
confirmed in Grannal v Marrickville
Section 51( i) is a power with respect to trade and commerce and therefore
contemplates the regulation of topics incidental to the regulation of trade. This requires a
relevance to or connection with this subject Grannal
The implied incidental power has enabled the federal parliament to regulate activities
prepatory to trade occurring wholly within a state OSullivan v Noarlunga (meat case,
regulated freezing)
The implied incidental power has enabled s 51(i) to extend to the regulation of
employment relations huddart parker
With other countries
Section 51(i) includes power to regulate trade and commerce with other countries. This
phrase is wide enough to enable the commonwealth to prohibit, regulate and control the
importation and exportation of goods for any purpose murphyores
Section 51 (i) enables the regulation of a diverse and extensive range of export and
import related activities. The power has authorized laws regulating charges to be paid for
air flights in respect of travel to or from Australia on all sectors of flights to overseas
destination r v halton

Also supports the regulation of extraterritorial trading activies connected to overseas,

trade including the conditions of sale of goods arriving in a foreign destination crowe v
commonwealth
INTRASTATE
Considered in isolation, an inference can be readily drawn from the language of s 51 (i)
that the commonwealth has no power to regulate intrastate trade direction. However, for
the commonwealth to regulate an intrastate matter within s 51(i) it is necessary for that
matter to be sufficiently connected to interstate or overseas trade or commerce.
Limitations
Professions i.e. law, med not TAC
An economic connection is insufficient wragg n NSW
Redfern v Dunlop commonwealth power over TAC can only extend to such intrastate
TAC as is inseparably connected with inter-state TAC.
CORPORATIONS
Sufficient connection test
Section 51 (XX) of the constitution provides that 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 : foreign corporations, trading, and financial corporations
formed within the limitations of the commonwealth.
Foreign Corporations
Foreign corporations have been defined in obiter as corporations formed outside the
limits of the commonwealth NSW v Commonwealth
Trading
The word trading can be interpreted in its current and popular sense Adamsons case
Financial
The word financial can be interpreted in its current and popular sense Adamsons.
Ku-Ring-Gai says that the predmoninat activity is the activity which it was formed to
undertake the borrowing of moneys to lend to its members, the lending of those
moneys, the receipt of repayments and the ultimate repayment of moneys.
A corporation may be a financial corporation under the meaning of s 51 (xx) even if it is
directed to activites other than the provision of finance. It need only to have financial
activities State Superannuation.
The character of a corporation whether it is a trading or financial corporation is a matter
that may be determined by reference to the nature of its activities either actual or intended
NSW v Commonwealth

The traditional view of characterizing a corporation under s 51 (xx) is defined by

reference to its purposes rather than its activities St. GCC. However, the high court has
preferred a test which makes reference to the actual activities of corporations rather than
the purposes for which they were incorporated. However, in Fencott v Miller the
majority agreed that a test examining the purposes or intended activities could be applied
in circumstances where a corporation had not yet commenced activities.
Trading activities do not need to form the predominant part of the activities of a
corporation for it to be a trading corporation for the purposes of s 51(xx) State
superannuation
Quickenden v OConnor held that 18% of a corporations trading activities is sufficient
to define a corporation for the purposes of s 51 (xx).
Section 51 (xx) does not give the federal parliament the power to incorporate companies
under that power Huddart parker and therefore only gives the commonwealth power over
foreign, trading or financial corporations that are already formed.
While the commonwealth does not have the power to incorporate trading or financial
corporations under s 51 (xx) it may incorporate companies for purposes incidental to
other heads of power Strickland
SCOPE
Once a corporation has been identified as a foreign, trading or financial corporation in
accordance with the tests considered above then the commonwealths power over that
corporation is plenary Tasmanian Dam
Work Choices Re Pacific Coal Gaudron says that s 51 (xx) allows for regulation of the
activites, functions, and business of a corp, and further allows for the regulation of those
whom work these corpos including employees and shareholders.
RACE POWER
S 51 (xxvI)
An aboriginal person gibbs v capewell aboriginal person has certain characteristics
- small degree of aboriginal descent coupled with genuine self identification or with
communal recognition
Purpose of race power is to pass laws discriminating against or benefiting the people of
any race. That power has included a power to make laws benefiting the people of the
aboriginal race.
Koowarta v Bjelke-Petersen the application of the race power may be benevolent or
repressive, may be directed to any aspect of human activity, so long as they are with
respect to the people of a race such as is described.
Characterization

Three step approach:

1. koowarta v bjelke, court determines whether the commonwealth has passed a law
that singles out and affects a particular race. There is also substantial judicial
authority for the proposition that the races power can be used to regulate subgroups of races Tasmanian dam
2. court ascertains whether the law under challenge is special Native title case . A
special qualitiy appears when the law confers a right or benefit or impose an
obligation or disadvantage especially on the people of a particular race
3. It must be deemed necessary for the race concerned kartinyeri
EXTERNAL AFFAIRS
To be a law with respect to external affairs the law must be reasonably capable of being
considered appropriate and adapted to
GEOGRAPHIC EXTERNALITY
The commonwealth can use section 51 (xxix) to legislate with respect to anything
geographically external to Australia NSW v Commonwealth
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.
IMPLEMENTATION OF INTERNATIONAL OBLIGATIONS
No limit as to subject matter: R v Burgess; ex parte henry
The external affairs power an authorize the implementation of
international obligations within the States Commonwealth v Tasmania
and also in the territories Newcrest Mining
Allows the federal parliament to enable legislation with retrospective effect Polyukvich
The external affairs power also extends to measures to combat terrorism Thomas v
Mowbray
A) Laws on their face dealing with foreign relations R v Sharkey . 1. Extradition of
fugitive offenders Mcarthur v Williams 2. Exclusion or deportion of aliens Robtelmes v
brennan
MATTERS OF INTERNATIONAL CONCERN
Koowarta
LIMITS
The external affairs power is expressed to be subject to the constitution and is
accordingly subject to any express or implied limitations on the constitution. Therefore,

the external affairs power is not limited by any of the other provisions such as TAC R v
Burgess
The Commonwealth may not cite an international obligation as a sham or circuitous
device to attract legislative power

In a number of decisions there are 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;
Commonwealth v Tasmania (1983) 158 CLR 1 at 218219, 259. 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 at 642, 658, 669 and 687.
The issue was considered in Horta v The Commonwealth (1994) 181 CLR 183. In that
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: at
195196. The Court remarked that this question could only be considered in
circumstances where there was a sham or circuitous device to attract legislative power:
at 196. As indicated above, this would be a question of fact for the Court to decide, when
it is determining whether an international obligation exists.

EXECUTIVE POWER
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 protection 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 house.
It is well established that the executive power may be used to authorize legislation
imposing criminal sanctions for seditious or subversive conduct.
Burns v Ransley directly asked what Australian communist party would do if
attacked said they would fight against Australia. The executive power and the express
incidental power authorized the federal parliament to make laws for protection against
subversive activities for the purpose of preserving the constitutional power and
operations of governmental agencies and the existence of government itself.
In R v Sharkey Sharkey, a member of the communist party, made comments which were
published in a newspaper to the effect that if Australia was attacked by soviet union,
communist party would welcome them.
Ratio: recommends a wide approach the prevention of attemps 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. Considers implied powers of
executive.

The idea that nationhood gives rise to certain implied powers extends beyond any power
drawn from a combination of ss 61 and s 51 xxxix Australian Communist Party v The
Commonwealth
Case concerned banning the Australian communist party. Considers an implied power to
control subversion and sedition. Judge contemplating power that goes beyond the text
Australian Assistance Plan case Mason J:
In the words of s 61 the executive power of the commonwealth extends to the execution
and maintenance of this constitution, and of the laws of the commonwealth. 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 which are
ascertainable from the legislative powers, and the character and status of the
commonwealth as a national government
The scope of the executive power and the question whether there is also an implied
power were issues explored in davis v the commonwealth.
Davis v the commonwealth act that set up the celebration of Australias bicentary. Davis
was an aboriginal who made politically charged t-shirts.
Mason CJ says there is an implied nationhood power. S 61 does confer on the exec the
power to engage in enterprises and activities peculiarly adapted to the government of ta
nation and which cannot otherwise be carried on for the benefit of the nation. There is a
variety of enterprises or activities.. not possible to provide a set test.
But Wilson and Dawson doubted the existence of an implied nationhood powercommonwealth is confined to what is granted in the constitution.
BRENNAN J davis v commonwealth if the executive power extends to the protection of
the nation against forces which would weaken it, it extends to the advancment of the
nation whereby its strength is fostered
Pape v Commissioner of Taxation the executive power extends to short term fiscal
measures to met adverse economic conditions affecting the nation as a whole, where such
measures are on their face peculiarly within the capacity and resoucrces of the
commonwealth.Implied nationhood extends to short-term fiscal measure to meet adverse
economic conditions affecting the nation as a whole, where such measures are on their
face peculiarly within the capacity and resources of tome commonwealth government.
JUDICIAL POWER
The separation of powers is reflected in the chapter divisions of the Australian
Constitution, which describe the three principal institutions of the Commonwealth: the
Parliament (Ch I, commencing at s 1), the Executive (Ch II, commencing at s 61) and the
Judicature (Ch III, commencing at s 71). Chapter III, The Judicature,
First, only Chapter III Courts can exercise Chapter III power. Second, Chapter III courts
can only exercise Chapter III power, and powers that are incidental to judicial power:
New South Wales v Commonwealth (the Wheat case) (1915) 20 CLR 54.

Boilermakers case says that only chapter 3 powers are reserved to chapter 3 courts, but
that chapter 3 courts cannot exercise non-chapter 3 powers. Specifically, Boilermakers
addressed the constitutionally validity saying that a ch III court could not exercise both
judicial power of the commonwealth and arbitral power.
However, there are certain exceptions to the law that chapter 3 judges cannot operate in
courts.
Delegation of judicial power
Harris v caladine two conditions:
1. 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 judge constitute the court..
judges must continue to bear the major responsibility for the exercise of judicial
power
2. the delegation must not be inconsistent with the obligation of a court to act
judicialy and that the delegated action must be subject to review or appeal by a
judge or judges of the court.
Personna designata principle
Another major exception to the strict separation of judicial power is the persona
designata rule that Chapter III judges may be appointed to undertake Chapter II tasks in
some circumstances: Hilton v Wells (1984) 157 CLR 57.
The conditions that apply to any appointment under the persona designata rule were
considered in Grollo v Palmer (1995) 184 CLR 348 and in Wilson v Minister for
Aboriginal
Two conditions:
1. no non-judicial function that is not incidental to a judicial function can be
conferred without the judges consent
2. no function can be conferred that is incompatible either with the judges
performeance of his or her judicial functions or with the proper discharge by the
judiciary of its responsibilities as an institution exercising judicial power.
Nicholas v Queen 1998 held by 5-2 that the commonwealth parliament can vary the
burden of proof in civil and criminal matters.
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. The meaning of the word matters was considered in Re Judiciary and
Navigation Acts (1921
The Court held that the word matters did not extend to the delivery of advisory
opinions (a proposition recently confirmed in Re Wakim; Ex parte McNally
Judicial tenure Section 71 of the Constitution gives the Federal Parliament the power to
create Federal Courts and s 72 guarantees Federal judges judicial tenure. Section 72 also

describes the conditions of appointment, removal and remuneration of Federal judges. It

states:
Judges' appointment, tenure, and remuneration
72. The Justices of the High Court and of the other courts created by the Parliament(i) Shall be appointed by the Governor-General in Council:
(ii) Shall not be removed except by the Governor-General in Council, on an address
from both Houses of the Parliament in the same session, praying for such removal on the
ground of proved misbehaviour or incapacity:
(iii) Shall receive such remuneration as the Parliament may fix; but the remuneration
shall not be diminished during their continuance in office. The appointment of a Justice
of the High Court shall be for a term expiring upon his attaining the age of seventy years,
and a person shall not be appointed as a Justice of the High Court if he has attained that
age.
The appointment of a Justice of the High Court shall be for a term expiring upon his
attaining the age of seventy years, and a person shall not be appointed as a Justice of the
High Court if he has attained that age...
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: 1990, 179. 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 of judges tailoring their
judgments to suit the government as the period of remuneration reached its conclusion).
How should judicial power be defined?
Judicial review and judicial remedies courts issuing injunctions only chapter 3
however there are exceptions
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):
- When work out what the const mean there is no embracing theory that emerge to
explain violation no set rules!
- No single correct theory there are many approaches
- In the judicial power context there are 3 approaches --o Some judicial powers are okay because of historical reasons --- criminal
guilt power of the courts today it means subject of dispute
o Analytical approach = central characteristics of judicial decision making
o Functional approach
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 at 442, 464-465).

The power to determine criminal guilt is an exclusive power of courts (Re Tracey; ex
parte Ryan (1989) 166 CLR 518 at 580; Chu Kheng Lim v Minister for Immigration
(1992) 176 CLR 1 at 22) that cannot be excluded from courts (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.
To that end, a Ch III court has a duty to act and to be seen to be acting impartially: R v
Watson; Ex parte Armstrong (1976) 136 CLR 248; Nicholas v The Queen (1998) 193
CLR 173 at 188. In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27,
Brennan, Deane and Dawson JJ said that the Parliament could not require or authorise
courts exercising judicial power of the Commonwealth to exercise judicial power in a
manner which is inconsistent with the essential character of a Court or with the nature of
judicial power.
A binding decision Non-judicial tribunals can adjudicate disputes relating to legal rights
and obligations arising from the operation of the law upon past events or conduct but the
power to make a binding decision is an exclusively judicial power. The word binding
has a specific meaning in this context, referring to the enforceability of the decision. The
principle that only a Court exercising judicial power can make a legally enforceable
decision was reconfirmed recently in Brandy v Human Rights and Equal Opportunity
Commission (1995)
An authoritative, conclusive decision Judicial power is characterised by the power to
make an authoritative decision on a question raised in a controversy relating to life,
liberty or property. The word authoritative, like the word binding, also has a special
meaning in this context, meaning conclusive. Only a court can make a conclusive
determination of law: see ie. Luton v Lessels
FREEDOM OF RELIGION
Section 116 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.

What is a religion?

The leading case on the meaning of the term religion comes from the Scientology case.
Mason ACJ and Brennan J said that any definition should be flexible enough to
accommodate minority groups and new religious beliefs.
The critieria of religion are twofold:
1. belief in a supernatural being , thing or principle.
2. The acceptance of canons of conduct in order to give effect to that belief.
Indicia from Mason ACJ and Brennan J:
1. Particular collection of ideas and or practices involves belief in the supernatural, a
reality that extends beyond what is capable of perception of the senses. If that is
absent it is unlikely that one has a religion.
2. That the ideas relate to mans nature and place in the universe and his relation to
things supernatural
3. The ideas are accepted by the adherents as requiring or encouraging them to
observe particular standards or codes of conduct or to participate in specific
practices having supernatural significances
4. Closely knit community an identifiable group(s)
5. The adherents see themselves as part of the group.
Murphy J develops a wider test: any body which claims to be religious, and offers a way
to find meaning and purpose in life is religious
Four parts of s116
1. Establishment clause- The commonwealth shall not make any laws establishing
any religion. The leading case for the establishment clause is the Defence of
Government Schools case. 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.
2. Religious observance no high court decisions considering this clause.
3. Free exercise of any religion Krygger v Williamson. Griffith CJ interpreted the
phrase as referring to prohibiting the practice of religion the doing of acts which
are done in the practice of religion. The leading case of the free exercise clause
is The Jehovahs witness case any body that is prejudicial to the defence of the
commonwealth or the efficient prosecution of the war is hereby declared to be
unlawful.
Latham cj said: protection fo any form of liberty as a social right involves the
continued existence of that society
Starke J subject to limitations such as are reasonably necessary for the protection of
the community and in the interest of social order
Rich J freedom of religion is not absolute. It is not subject to powers and
restrictions of government essential to the preservation of the community. Freedom
of religion may not be invoked to cloak and dissemble subervsive opinions or
practices and operations dangerous to the commonwealth
The freedom to exercise religion in s 166 does not prevent the commonwealth from
enacting a lwa which has the unintended incidental effect of limiting the capacity to
observe a religion Attorney general (vic)

POLITICAL COMMUNICATION
The system of representive government created by s 7 and 24 require that members of the
senate and house of representatives be directly chosen by the people gives rise to an
implied freedom of political communication.
The scope or ambit of the implied doctrine of freedom of political communication
depends on the activity being done in the set of circumstances.
I think.. if in writing theophanus
If freedom of communication was considered in Lange v ABC. S 7 and 24 of the
constituion necessarily protect that freedom of communiction between the people
concerning political or government matters which enables the people to exercise a free
and informed choice as electors and is not confined to election periods.
Levy A threshold question arises as to whether constitutional protection of freedom of
political communication can go beyond words and be actions.. such as wearing symbols
of dissent. Held in levy it could.
Freedom of association: Mulholland. Toohey J regarded the freedom of association as an
essential 3ingredient of political communication.
A majority of the court consisting of Mason CJ, Deane, Toohey and Gaudron in
Theophanous held:
1. there is implied in the commonwealth a freedom to publish material:
a) discussing government and political matters; b) of and concerning members of the
parliament which relates to the performance by such members of their duties as members
of the parliament c) in relation to suitability of persons for office as members of the
parliament
2. 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
Analyse whether the rights being restricted here:.
Limitations: COLEMAN V POWER : two step approach
The majority in Coleman v Power building on Lange developed the following approach:
1. does the law effecitevly burden freedom of communication about government or
political matters either in its terms operation or effect
2. if the law effectively burdens that freedom is the law reasonably appropriate and
adapted to serve a legitimate end in manner which is compatible with the
mainteance of the constitutionally prescribed system of representative government
and the procedure prescribed..
Lange freedom of political communication is an indispensable incident of that system
of representative government created by s 7 and s 24 of the constitution and shall be
directly chosen by the people. It necessarily protects the freedom of political
communication to the extent that people exercise a free and informed choice as electors.
They do not confer personal rights on individuals.
Two conditions from lange:

1. The object of the law is compatible with the maintenance of the constitutionally
prescribed system of representive and responsible government or the procedure
for submtitting a proposed amendment to the constitution to the informed decision
of the people which the constitution prescribes
2. Law is reasonably appropriate and adapted to achieving that end.
The following test applies from Coleman v power :
1. does the law effecitvley burden freedom of communication about government or
political matters either in its terms, operation, or effect
2. if the law does effectively burden that freedom, is it reasonably appropriate and
adapted to serve a legitimate end in am anner which is compalatbiel with the
maintenace of the constitutionally prescribed system of representive government
and the procedure prescribed by s 128.
In Kruger v the commonwealth Toohey and Gaudron each recognized an implied
constitutional freedom of association. Toohey J regarded the freedom of association as
an essential ingredient of political communication.
TRIAL BY JURY
S 80 Proceedings on indictment shall be by jury. A literal approach of s 80 was endorsed
in R v Archdall giving regard to the meaning of indictable offences at the time of creation
of the constitution. The literal approach has been criticized on many occasions .
The accused cannot waive their right to trial by jury says shall be trial by jury brown
v the queen.
Limits
The scope of s 80 is restricted by the fact that it applies to any law of the commonwealth
and therefore a person must be charged with a commonwealth offence for s 80 to apply
Snedden v Croatia
Does not extend to courts martial Re Tyler; Ex pare foley