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LAWS 2008
CONSTITUTIONAL LAW
STUDY GUIDE SP2 2016
Course Coordinator: Ms Sue Milne
Lecturer:
Tutors:
Ms Sue Milne
Mr Jake Stone
Ms Victoria Danambasis
Ms Anja Kantic
CONTENTS
LECTURE
TUTORIAL
WEEK 1
CONSTITUTIONAL
INTERPRETATION
INTRODUCTION & OVERVIEW OF

THE CONSTITUTION & MOOT
SELECTION
WEEK 2
FEDERALISM &
INTERGOVERNMENTAL
IMMUNITIES
SKILLS:
CHARACTERISATION & THE

TRADE & COMMERCE
POWER (SECTION 51(I))
SKILLS:
CHARACTERISATION SUBJECT
SKILLS:
TO
LAW: CHARACTERISATION
WEEK 3
WEEK 4
THE ART OF ADVOCACY
14
LAW: CONSTITUTIONAL
INTERPRETATION
COURTROOM ETIQUETTE
19
LAW: DOCTRINE
OF
INTERGOVERNMENTAL IMMUNITY
WRITTEN SUBMISSIONS
25
THE CONSTITUTION
WEEK 5
EXTERNAL AFFAIRS (S 51
(XXIX) & THE RACES
POWER (S 51(XX))
SKILLS: APPEARANCES AND

INTRODUCTORY SUBMISSIONS
WEEK 6
INCONSISTENCY BETWEEN
FEDERAL & STATE LAWS (S
109)
MOOT 1 - CHARACTERISATION &

THE RACES POWER (S 51(XX))
37
WEEK 7
ENTRENCHED FREEDOMS (SS

41, 7, 24, 116, 117)
MOOT 2 - THE EXTERNAL

AFFAIRS POWER (S 51(XXIX))
41
WEEK 8
FEDERAL JUDICIAL POWER

(JUDICIAL POWER I)
MOOT 3 - INCONSISTENCY
BETWEEN FEDERAL & STATE
LAWS (S 109)
45
WEEK 9
STATE JUDICIAL POWER

(JUDICIAL POWER II)
MOOT 4 - ENTRENCHED
FREEDOMS (SS 41, 7, 24, 116,
117)
50
WEEK
10
REVISION
MOOT 5 - JUDICIAL POWER
54
LAW: SECTIONS 90
AND
33
92
Schedule of Classes
2
There are 4 public holidays this term: on Monday 14 March (Adelaide Cup); Friday 25 March (Good
Friday), Monday 28 March (Easter Monday) and Monday 25 April (Anzac day). Students should take
careful note of the alternative arrangements made with respect to the Monday tutorials and Friday
lectures to accommodate these holidays.
ALL TUTORIALS ARE HELD IN LB1.29 The Ivan Shearer Moot Court and commence in Week 1.
Public Holidays
WEEK 1
Lecture in HH5-08
Lecture/Workshop in JS313A/B
MONDAY
WEDNESDAY
THURSDAY
FRIDAY
Monday 22 February
Wednesday 24
February
Thursday 25
February
Friday 26
February
Lecture
Lecture 2.10pm4.00pm
Room HH5-08
The Interpretation
and Function of the
Constitution
Tutorials Tutorial 9.10am11.00am

Tutorial 11.10am1.00pm
(Jake Stone)
Overview of the
Constitution & Moot
allocations
WEEK 2
Monday 29 February
Tutorial 9.10am11.00am
Tutorial 11.10am
1.00pm
(Anja Kantic)
Overview of the
Constitution & Moot
allocations
(Victoria
Danambasis)
Tutorial 5.10pm7.00pm
(Anja Kantic)
Overview of the
Constitution & Moot
allocations
Wednesday 2 March
Thursday 3 March
Lecture
Tutorials
(includes
moot
allocations)
Friday 4 March
Room HH5-08
Federalism &
Intergovernmental
Immunities
(Jake Stone)
Skills: The art of
advocacy
Law: Constitutional
Interpretation
Tutorial 11.10am
1.00pm
(Anja Kantic)
Skills: The art of
advocacy
Law: Constitutional
Interpretation
(Victoria
Danambasis)
(Anja Kantic)
Skills: The art of
advocacy
Law: Constitutional
Interpretation
WEEK 3
Monday 7 March
Wednesday 9 March
Lecture/
Workshop

(Jake Stone)
Skills: Courtroom
etiquette
Law: Doctrine of
intergovernmental
immunity
WEEK 4
Monday 14 March
Thursday 10 March
Friday 11 March
Room JS3-13A/B
Characterisation &
the Trade &
Commerce power s
51(i)
Room JS3-13A/B
Characterisation &
the Trade &
Commerce power s
51(i)
Tutorial 11.10am
1.00pm
(Anja Kantic)
Skills: Courtroom
etiquette
Law: Doctrine of
intergovernmental
immunity
(Victoria
Danambasis)
(Anja Kantic)
Skills: Courtroom
etiquette
Law: Doctrine of
intergovernmental
Wednesday 16
March
Thursday 17 March
Lecture
Room HH5-08
Characterisation
Subject to the
Constitution
Tutorials PUBLIC HOLIDAY

STUDENTS TO ATTEND
ANY OF THE OTHER
TUTORIALS
SCHEDULED
WEEK 5
Friday 18 March
Monday 21 March
Tutorial 11.10am
1.00pm
(Anja Kantic)
Skills: Written
submissions
Law: Characterisation
(Victoria
Danambasis)
(Anja Kantic)
Skills: Written
submissions
Law:
Characterisation
Wednesday 23
March
Thursday 24 March
Friday 25 March
Lecture/
Workshop
Room JS3-13A/B
External Affairs &
the Races power
PUBLIC HOLIDAY
STUDENTS TO
ATTEND THURSDAY
1.10pm LECTURE IN
JS3-13A/B

(Jake Stone)
Skills: Appearances &
introductory
submissions
Law: Sections 90 & 92
Tutorial 11.10am
1.00pm
(Anja Kantic)
Skills: Appearances &
introductory
submissions
Law: Sections 90 & 92
(Victoria
Danambasis)
(Anja Kantic)
Skills: Appearances
& introductory
submissions
Law: Sections 90 &
92
Week of Monday 28
March a nonteaching week
Week of Monday 28
March a nonteaching week
Week of Monday
28 March a nonteaching week
Week of Monday
28 March a nonteaching week
Monday 4 April
Wednesday 6 April
Thursday 7 April
Friday 8 April
WEEK 6
Lecture
Room HH5-08
Inconsistency

(Jake Stone)
MOOT 1
Characterisation
& the Races power
WEEK 7
Lecture/
Workshop
Monday 11 April
Tutorial 11.10am
1.00pm
(Anja Kantic)
MOOT 1
Characterisation
& the Races power
(Victoria
Danambasis)
(Anja Kantic)
MOOT 1 Characterisation
& the Races power
Wednesday 13 April
Thursday 14 April
Friday 15 April
Lecture 2.10pm400pm
Room JS3-13A/B
Entrenched
Freedoms
Lecture 2.10pm400pm
Room JS3-13A/B
Entrenched
Freedoms

(Jake Stone)
MOOT 2 External
affairs power
WEEK 8
Monday 18 April
Tutorial 11.10am
1.00pm
(Anja Kantic)
MOOT 2 External
affairs power
(Victoria
Danambasis)
(Anja Kantic)
MOOT 2 External
affairs power
Wednesday 20 April
Thursday 21 April
Friday 22April
Room JS3-13A/B
Federal Judicial
Power (Judicial
power I)
Room JS3-13A/B
Federal Judicial
Power (Judicial
power I)
Lecture/
Workshop

(Jake Stone)
MOOT 3
Inconsistency
WEEK 9
Monday 25 April
Tutorial 11.10am
1.00pm
(Anja Kantic)
MOOT 3
Inconsistency
(Victoria
Danambasis)
(Anja Kantic)
MOOT 3
Inconsistency
Wednesday 27 April
Thursday 28 April
Lecture
Tutorials PUBLIC HOLIDAY

Moots to be rescheduled
MOOT 4 Entrenched
Freedoms
Friday 29 April
Room HH5-08
State Judicial Power
(Judicial power II)
Tutorial 11.10am
1.00pm
(Anja Kantic)
Moot 4 Entrenched
(Victoria
Danambasis)
WEEK 10
Monday 2 May
Freedoms
(Anja Kantic)
MOOT 4
Entrenched
Freedoms
Wednesday 4 May
Thursday 5 May
Friday 6 May
Room JS3-13A/B
Revision
Room JS3-13A/B
Revision
Lecture/
Workshop

(Jake Stone)
Moot 5 - Judicial Power
Tutorial 11.10am
1.00pm
(Anja Kantic)
Moot 5 - Judicial Power
(Victoria
Danambasis)
(Anja Kantic)
Moot 5 - Judicial
Power
WEEK ONE - LECTURE
Introduction & Constitutional Interpretation
OVERVIEW
In this first week we introduce you to the teaching concepts underlying this course, specifically the
nature of a blended learning approach. You may already have heard other students talk about this
approach to teaching and learning and have undoubtedly heard a variety of opinions on the concept.
Essentially, blended learning seeks to engage you in your learning by rejecting a passive form of
learning that is the traditional lecture, to a format where you are more prepared to participate and
engage with the content of the course, in a supportive group study environment. This is done by
preparation before class, through reading the casebook and listening to the lecture podcasts. You
will then be better placed to both understand what is discussed in class, to engage with the deeper
analysis - together with your fellow students in a group study format - and be better informed to
ask questions of the teaching staff present in order to better understand the topics studied.
As a Public Law course, Constitutional Law embodies a big picture approach to understanding our
legal system and its power structures, and hence cannot help but have a political dimension. This is
because if we take a definition of Public Law from Butterworths Concise Australian Legal
Dictionary, 3rd ed, as that body of law dealing with the powers, rights, and obligations of the
government and the governed, we need to understand this concerns not only the institutions and
powers of government and the interrelationships between these powers and institutions, but the
myriad of interactions with us, the governed. This raises enormously important questions such as
that of the accountability of government to the governed; questions that rest in turn upon the
states idea of government as mediator for the common good deeply political questions beyond the
scope of this course.
As the most fundamental instrument defining our concept of government, the Constitution is at the
core also of understanding the nature of our law and legal system. In this first week we explore the
creation and nature of the Constitution, its underlying principles and assumptions, and the
approaches taken towards its interpretation. Approaches to be considered will include originalism,
moderate originalism, legalism, textualism and progressive approaches. Although these terms are
undoubtedly daunting, this class seeks to raise your awareness of both the structure and text of the
Constitution, and of the important role that its interpretation takes in constitutional law. For
example, consider whether the Constitution is a statute like any other statute; or, if it is
fundamentally different to the usual enactments of Parliament, in what aspects is it so, and is its
interpretation an important aspect of this distinction? That is, is it drafted differently and requires
an interpretation distinct from the usual acts of parliament? Further, the Constitution was drafted
over 100 years ago, however it has only been amended on 8 occasions in that time. How does the
Constitution, which sets up the framework, powers and functions of our government; the federal
nature of the Commonwealth of Australia and the relationships between state, territory and federal
governments; and the representation of the people in this government, remain relevant in the 21st
century? Would you not consider that the approach to its interpretation is fundamental to ensuring
its continuing relevance?1
ESSENTIAL READING
Commonwealth of Australia Constitution Act 1900 (pages 1362-1379 of the textbook).
G Williams, S Brennan & A Lynch, Australian Constitutional Law and Theory: Commentary
and Materials (Federation Press, 6th ed, 2014) Chapter 5 Constitutional Interpretation
(specifically pages 170-213)
Kartinyeri v Commonwealth (Hindmarsh Island Bridge Case) (1998) 195 CLR 337 (extracts
and commentary appear on WBL pages 997-1008)
1 For those who are interested in wider reading on this, a good place to start would be, Sir Anthony
Mason, Trends in Constitutional Interpretation (1995) 18 UNSW Law Journal 237 (in your ereadings).
8
WEEK ONE TUTORIAL
Introduction to the Constitution

Please note that all tutorial topics are scheduled to follow the material covered in the
preceding weeks lecture. Thus, constitutional interpretation will form the topic of the
Week 2 tutorial and in this first tutorial we provide you with a conceptual framework of
the Constitution.
This weeks tutorial will include an overview of the attendance and assessment requirements for
the course, and the organisation of students into mooting teams for the Week 6-10 moots. The Moot
is an important part of the assessment for this course therefore it is imperative that all students
attend this weeks tutorial.
Part A Constitutional structure
Students will need to ensure that they have read the Constitution before coming to class. In the
second part of the tutorial we will consider the nature and structure of the Constitution through
an exploration of Chapters 1 8 of this instrument. You might also like to refer to the
Constitutional roadmap on the course website.
The structure, as well as the text, of the Constitution has an important influence upon the way
provisions of the Constitution are interpreted, and provides the rationale for the doctrine of the
separation of powers that underpins the Constitution. For example, chapters 1, 2 and 3 set up the 3
arms of government, respectively the legislature, the executive and the judiciary, and the powers
reposed in these institutions. Given the division of powers between these 3 chapters it has been
determined that the Constitution has deliberately separated and isolated these powers to
institutions recognised and created under the respective chapters. Therefore, for example, in New
South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54, the High Court determined that the
Inter-State Commission created under s 101 of the Constitution (in Chapter IV) could not be a court
9
endowed with judicial power, as only bodies created under Chapter 3 of the Constitution could be
considered courts capable of exercising federal judicial power. However, this separation of powers
doctrine is not absolute, for although the executive arm of government is created under Chapter 2,
s 64 requires that Ministers of the government (who are part of the executive), must also be
members of parliament, the institution created under Chapter 1 of the Constitution. This signifies a
merging between some of the powers of the legislative and executive arms of government, in the
form of responsible government inherited from the Westminster system.
The study of the Constitution is therefore not merely doctrinal, but is deeply conceptual; overlaying
this is a need to grasp the influence of both doctrinal and conceptual understandings to the
interpretation of this instrument.
Chapter I - the Legislature

Parliament is defined as constituting the Queen (represented by the Governor-General), the Senate
and the House of Representatives. The powers given to the Federal Parliament, are set out as
enumerated powers in ss 51 and 52 of the Constitution and essentially restrict the matters upon
which the federal parliament might legislate. The s 51 powers are largely held concurrently with
the States. In this course we focus on several heads of power granted to the federal parliament,
including the trade and commerce power, the taxation power and the external affairs power, in
examining the scope and constitutional limitations placed upon these powers. We also examine a
constitutional right (one of only a few in the Constitution) found in Chapter 1, that is, the right to
vote in ss 24 and 41.
Chapter II - the Executive
We do not specifically examine this chapter of the Constitution that establishes the executive arm
of government and the powers bestowed on the executive. The institution of the executive
government, which includes the concept of the Crown, is not clearly defined by the Constitution
and its nature and characteristics are a matter of historical development and constitutional
conventions, perhaps more so than any other arm of government. For example, s 61 prescribes that
the executive power is vested in the Queen and the Governor-General as her representative but in
practical terms and by convention, this power resides in the Federal Executive Council established
under s 62. Section 64 provides for the appointment of Ministers to head administrative
departments. Does this structure reflect the present day operation of our government?
Chapter III - the Judiciary
The federal judicial system and the nature of federal judicial power, which may only be
exercisable by courts, are studied over the last 2 weeks of the course. This involves an examination
of the role of the separation of powers in defining the nature of federal judicial power as exercised
by federal courts; and by those State courts vested with federal jurisdiction.
Chapter IV - Finance and trade
The fact that this topic has a whole chapter of the Constitution signifies the importance of
commerce to the constitutional drafters at the time of federation. Although we only examine s 90
that provides, in part, that only the Commonwealth can impose excise duties; and s 92 on freedom
10
of trade and commerce interstate, it is important to understand the continuing financial dominance
of the Commonwealth over the States, for example, consider ss 86, 88-92, 96 and 105. It is also
important to note that ss 81 and 83 require that parliament has control over all revenue raising and
expenditure that might be required by the executive, and that all money received by the executive
goes into the Consolidated Revenue Fund (CRF) (s 81). This is significant when we examine the
scope of the taxation power under s 51(ii) that requires inter alia, that for a law to be
characterised as a tax law, the moneys raised by the law must go into the CRF.
Chapter V - The States
This chapter is extremely important in supporting the federal nature of the Constitution as it
recognises the continuing existence of the States (formerly colonies), more specifically, the
continuation of state constitutions (s 106); the continuation of the powers of State parliaments (s
107) and the continuation of the laws of a State (s 108). An important constitutional doctrine that is
considered to be supported by these provisions and examined in this course, is the doctrine of
intergovernmental immunities, which provides a certain level of protection for federal and state
governments from the others laws. Section 109 also provides a constitutional mechanism by which
any conflict between state and federal laws may be resolved, and demonstrates the supremacy of
Commonwealth laws over State laws. Chapter V also provides for certain important restrictions on
the States, including that they cannot coin money, raise armed forces and cannot tax
Commonwealth property. We also examine two expressed freedoms located in Chapter V; that of
the freedom of religion (s 116) and the rights of residents of a State to be free of any
discrimination or disability based on State residence (s 117).
Chapter VI - New States
Although not specifically examined, s 122 resides with Chapter VI and is an important constitutional
provision which gives plenary power to the Commonwealth Parliament to legislate with respect to
the Territories.
Chapter VII - Miscellaneous
Chapter VIII - Alteration of the Constitution
This chapter contains only one provision, s 128, which sets out the procedures for amending the
Constitution and is therefore an extremely significant provision. There have been 44 constitutional
referendums to date, where the federal government has made proposals for constitutional
amendment by way of referendum to Australian voters, under the process set out in s 128. Only 8 of
the proposed referendum amendments were successful, with all 8 proposals gaining bipartisan
support prior to the referendum vote. What does this indicate about the approach of the Australian
electorate to constitutional change?
Does s 128 mean that the UK Parliament which passed the Commonwealth of Australia Constitution
Act 1900 (UK)), can no longer amend the Australian Constitution? At least, was this the position
prior to the passing of the Statute of Westminster Act 1931 (Imp)? What is the significance of the
words of the preamble to the Constitution where the people of the colonies agree to unite in one
indissoluble Federal Commonwealth? Does this give legitimacy to the notion that it is the people
who thenceforth provide legitimacy and authority for the Constitution?
Part B Characterising a law under s 51 of the Constitution
11
Consider the following Commonwealth statute and then answer the following questions.
1. Write, as briefly as possible (if you can, try to keep to a maximum of 2 sentences only!), a short
statement on the purpose of the Wireless Telegraphy Act 1905 (Cth). Include in this statement a
very brief account of how the Act effects its purpose.
2. Under what placita in s 51 of the Constitution does the Commonwealth Parliament have the
power to enact the Wireless Telegraphy Act 1905?
12
WIRELESS TELEGRAPHY ACT 1905
TABLE OF PROVISIONS
Section
1.
Short title
2.
Interpretation
4.
Exclusive privileges of Minister
5.
Licences
6.
Penalty for breach of Act
7.
Forfeiture of appliances unlawfully erected
8.
Search warrants for appliances unlawfully erected
8A. Jurisdiction of courts
10.
Regulations
----------------1. This Act may be cited as the Wireless Telegraphy Act 1905.*
2. Interpretation.
''Australia'' includes the Territories and the territorial waters of the Commonwealth and of any Territory;
''Broadcast programme'' means matter intended for reception by the general public whether by means of
a broadcast receiver or a television receiver;
''Wireless telegraphy'' includes all systems of transmitting and receiving telegraphic or telephonic messages
by means of electricity without a continuous metallic connexion between the transmitter and the receiver.
4. The Minister shall have the exclusive privilege of establishing, erecting, maintaining, and using stations
and appliances for the purpose of(a) transmitting messages by wireless telegraphy within Australia, and receiving messages so transmitted, and
5. Licences to establish, erect, maintain, or use stations and appliances for the purpose of transmitting or
receiving messages by means of wireless telegraphy may be granted by the Minister for such terms and
on such conditions and on payment of such fees as are prescribed.
6. (1) Except as authorized by or under this Act, no person shall(a) establish, erect, maintain, or use any station or appliance for the purpose of transmitting or receiving
messages by means of wireless telegraphy; or
(b) transmit or receive messages by wireless telegraphy.
Penalty: Five hundred pounds, or imprisonment for Five years.
13
7. All appliances erected, maintained, or used in contravention of this Act or the regulations, for the purpose of
transmitting or receiving messages by means of wireless telegraphy, shall be forfeited to the Crown for the use
of the Commonwealth.
8. (1) If a justice of the peace is satisfied by information on oath that there is reasonable ground for supposing
that any appliance is established, erected, maintained, or used in contravention of this Act or the regulations,
for the purpose of transmitting or receiving messages by means of wireless telegraphy he may grant a search
warrant to any person.
(2) A search warrant under this section shall authorize the person to whom it is addressed to break and enter any place
or ship, where the appliance is or is supposed to be, either by day or by night, and to seize all appliance which appear to
him to be used or intended to be used for transmitting or receiving messages by means of wireless telegraphy.
8A. (1) Subject to this section(a) the several courts of the States are invested with federal jurisdiction; .
(5) Subject to this Act, the laws of a State or Territory with respect to the arrest and custody of offenders or persons
charged with offences and the procedure for(a) their summary conviction;
(b) their examination and commitment for trial on indictment;
(c) their trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any
proceedings connected therewith, and for holding accused persons to bail apply, so far as they are applicable, to a person
who is charged in that State or Territory.
Regulations.
10. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which
by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
14
WEEK TWO - LECTURE
Federalism & intergovernmental Immunities
OVERVIEW
The federal nature of Australias Constitution played a significant role in its early interpretation by
the High Court. Griffith CJ, Barton J and OConnor J were the first judges appointed to the High
Court in 1903. Their approach to constitutional interpretation was influenced by a desire to
maintain a federal balance of power between the Commonwealth and the States. This desire was
instrumental in the development of 2 early doctrines the implied instrumentalities doctrine and
the reserved powers doctrine.
Each of these doctrines was strongly criticised by Isaacs and Higgins JJ (both appointed in 1906),
leading to many split decisions of the Court before the Engineers decision in 1920 when both
doctrines were ultimately renounced. The Engineers case did not, however, signal the end for
implied immunities altogether and, with regard to both the States and the Commonwealth, a level
of inter-governmental immunity is accepted by the Court as necessary for the maintenance of the
federal compact.
In this week of the course we will consider this historical period in constitutional history, and
examine the implications that have, since 1920, been accepted as flowing from the Constitutional
text.
In preparation for the lecture you should consider whether the following statements are True or
False, based on your understanding of the readings for this week.
1. A condition of federalism is the desire for unity not union.
2. There is no difference between a federal government and a national government.
3. The Constitution is supreme in a federal state.
4. A federal government means a weak government.
5. The powers vested in the States are the original and inherent powers that belonged to the
States before federation.
6. The powers granted to the Commonwealth are delegated powers, enumerated in the
Constitution.
7. Federalism secures democracy and human rights.
IMPORTANT CASES ESSENTIAL READING

Students will be expected to have read the following cases prior to class. Please note that the most
important cases are highlighted in bold.
15
G Williams, S Brennan & A Lynch, Australian Constitutional Law and Theory:

Commentary and Materials (Federation Press, 6th ed, 2014):
o
Chapter 6 Federalism and the Engineers Case(pages 232-261);
o Chapter 25 Intergovernmental Immunities (pages 1082-1131)
State Immunity From Commonwealth Laws

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920)
28 CLR 129;
Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 (185)
Melbourne Corporation v Commonwealth (1947) 74 CLR 31;
Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353;
Tasmania v Commonwealth (Tasmanian Dams Case) (1983) 158 CLR 1;
Queensland Electricity v Commonwealth (1985) 159 CLR 1;
Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188;
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416;
Austin v Commonwealth (2003) 215 CLR 185;
Clarke v Commissioner of Taxation (2009) 240 CLR 272;
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1
Fortescue Metals Group Limited v Commonwealth (2013) 250 CLR 548.
Commonwealth Immunity From State Laws

Pirrie v McFarlane (1925) 36 CLR 170;
In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (Uthers Case)
(1947) 74 CLR 508;
Commonwealth v Cigamatic Pty Ltd (in liquidation) (1962) 108 CLR 372;
Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority
(Hendersons Case) (1997) 190 CLR 410.
WEEK TWO TUTORIAL

Skills: Advocacy
Law: Constitutional interpretation
16
Part 1 - Advocacy
In this tutorial we begin a series of three classes in which we examine and practice the art of
advocacy, particularly that form of appellate advocacy that characterises the approach to
constitutional analysis, argument and interpretation. Advocacy is the art of persuasion. The
awareness and skills developed in these classes will prepare you well for your Constitutional Law
Moot, to be conducted in the last 5 weeks of the course.
A moot is generally a hypothetical appeal case argued by law students before a bench of judges,
and is therefore a form of advocacy. In constitutional and administrative law, however, moots may
actually involve cases heard at first instance (ie. in the High Courts original jurisdiction) and may
not therefore involve an appeal from a lower court. We would, however, more readily align High
Court constitutional cases with appellate rather than trial advocacy. You will find useful a brief
introduction to procedural matters in the High Court with respect to the Constitution, as written
by Stephen Gageler SC, Solicitor-General for the Commonwealth (as he then was) in:
Stephen Gageler, Matters in the High Court Arising Under the Constitution or Involving its
Interpretation in Justice Tom Gray, Martin Hinton and David Caruso (eds), Essays in
Advocacy (Barr Smith Press, 2012) 507-516. (Available from the course website).
Justice Gageler is now a Justice of the High Court.
Every student will participate in moots at UniSA Law School. Successful participation in moots is an
indication that a student has developed the ability to:
Think on their feet;
Work to set deadlines under pressure;
Work as a member of a team;
Research the law in a timely and effective manner; and
Construct written and oral legal arguments and defend them under questioning.
In this first class we examine the features of great advocacy, that is, the characteristics we might
identify as representing the best in the practice of advocacy. To do this, please bring a copy of The
Mooting Guide prepared by Associate Professor Julia Davis, which is available to download from
the course website, filed under Assessment and Course Resources. You will also find useful an
overview of advocacy in the High Court written by Justice Christopher Kourakis (as he then was),
entitled: Special Leave to Appeal or Special Appeal to Leave Does Advocacy Matter? also
available from the course website. Justice Kourakis is now Chief Justice of the Supreme Court of
South Australia. We will also be critiquing a short video presentation on the Dos and Donts of
Mooting and briefly look to some examples of the practice of advocacy.
Part 2 Constitutional interpretation: the Races power

In this part of the tutorial we shall explore the theoretical debate surrounding the interpretation of
the constitutional text, by examining the judicial engagement with that debate through
consideration of Kartinyeri v Commonwealth (the Hindmarsh Island Bridge Case) (1998) 195
17
CLR 337) (pp 1000-1008 textbook) and Al-Kateb v Godwin (2004) 219 CLR 562 (pp 893-896
textbook). In particular, we will explore the differing approaches by various members of the High
Court to the question of whether the races power (under s 51(xxvi)) is limited to laws which are for
the benefit of a particular race.
Kartinyeri v Commonwealth exercise
1. Students are to be divided into small groups of 2 or 3 and allocated the decision of either
Gaudron J; Gummow and Hayne JJ; or Kirby J, from the textbook extracts from Kartinyeri v
Commonwealth.
Students are then to identify both:
the key points made in the decision; and
the approaches to constitutional interpretation that are demonstrated in the reasoning
of the justices. Were the interpretative approaches significant to the outcome? NB:
More than one approach might be found in each of the decisions.
Al-Kateb v Godwin exercise
2. Consider the following statement of McHugh J from Al-Kateb v Godwin:
No doubt from time to time the making or existence of (say) a Convention or its consequences
may constitute a general political, social or economic development that helps to elucidate the
meaning of a constitutional head of power. But that is different from using the rules in that
Convention to control the meaning of a constitutional head of power.2
3. Is there really any substantive difference between this view and that of Kirby J, or does
Kirby J go further and espouse a view which is truly heretical?
4. Is McHugh J on the mark when he implies that Kirby Js approach is really about entrenching
human rights within the Constitution, and side-stepping the procedures under s 128?
5. Is the independence of judges and their ability to give separate and dissenting opinions (often
engaging in rigorous, open debate with other judges), a strength or weakness in constitutional
jurisprudence?
6. Will constitutional law remain isolated from the impact of international law in future decades,
or will Kirby Js view (or a modified version of it) prevail with time?
2 At 593-594.
18
7.
19
IMPORTANT NOTE: The Lecture/Workshop this week will be held in JS3-13A/B.
WEEK THREE - LECTURE
Characterisation & the

Trade & Commerce Power (s 51(i))
OVERVIEW
Characterisation refers to the process whereby the form, operation and effect of Commonwealth
laws are examined in order to determine whether they are indeed laws with respect to a specific
head of power under ss 51 and 52 and, thus, constitutionally valid. Characterisation is often a
fundamental and preliminary question in many constitutional cases and is what you engaged in the
Week 1 tutorial.
For the purposes of characterisation, Commonwealth laws are treated differently depending on
whether they relate to subject matter powers (such as trade & commerce, aliens, races etc), or
purposive powers, such as the defence and treaty implementation powers the latter being one
aspect of the external affairs power.
A further category relates to incidental laws, which are laws that are not squarely on the subject of
a head of power such as Trade & commerce, or not squarely for the purpose of defence, for
example, but are ancillary or incidental to other laws dealing with trade & commerce or defence.
Each head of Commonwealth power confers with it an implied power to enact incidental laws in
relation to that head of power. However, s 51(xxxix) also confers an express power to enact
incidental laws; incidental not only to the enumerated legislative powers, but incidental to
executive and judicial powers.

G Williams, S Brennan & A Lynch, Australian Constitutional Law and
Theory: Commentary and Materials (Federation Press, 6th ed, 2014)
o Chapter 17 Characterisation (pages 760-801)
o Chapter 18 Economic Powers (pages 802-815).
The Test for Characterisation -
20
Bank of New South Wales v Commonwealth (Bank Nationalisation Case) (1948) 76

CLR 1;
Fairfax v Federal Commissioner of Taxation ( 1965) 114 CLR 1;
Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418;
Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1;
Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR
169;
Stenhouse v Coleman (1944) 69 CLR 457;
Re F; Ex parte F (1986) 161 CLR 376;
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323;
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479.
Interactions Between Heads of Power
Pidoto v Victoria (1943) 68 CLR 87 (Casebook extracts p 773-774);
New South Wales v Commonwealth (Workchoices Case) (2006) 229 CLR 1 (casebook
extract p 775-778).
Purpose & Incidental Laws
Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR 29;
DEmden v Pedder (1904) 1 CLR 91;
Grannall v Marrickville Margarine Pty Ltd (1855) 93 CLR 55;
Burton v Honan (1952) 86 CLR 169.
Proportionality
Polyukhovich v Commonwealth (1991) 172 CLR 501;
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1;
Leask v Commonwealth (1996) 187 CLR 579;
The following cases are available on AustLII. Once the cases are located, search within the
decisions for relevant paragraphs dealing with proportionality)
o Maloney v The Queen (2013) 252 CLR 168;
o Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1;
o JT International SA v Commonwealth (2013) 250 CLR 1.
o Attorney-General (NT) v Emmerson (2014) 253 CLR 393.
Trade and Commerce Power (s 51(i))
Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR 29;
R v Burgess; Ex parte Henry (1936) 55 CLR 608;
21
Airlines of New South Wales Pty Ltd v New South Wales (No 2) (Second
Airlines Case) (1965) 113 CLR 54;
OSullivan v Noarlunga Meat Ltd (1954) 92 CLR 565;
Attorney-General (WA) Australian National Airlines Commission (1976)
138 CLR 492;
Pape v Commissioner of Taxation (2009) 238 CLR 1.
22
Review questions
Part 1 The 2 step approach to characterization
1. Examine the extract from the Bank Nationalisation case (pages 762-764 casebook.) How has
the reserved powers approach been debunked in this case?
2. Read the extract from Actors and Announcers Equity Association v Fontana Films Pty Ltd
(pages 772-773 of casebook).
What is the argument and rationale presented by Stephen J?
What affect does the approach propounded by Stephen J have on the extent of the powers
of the Cth parliament?
Part 2 The Sufficient Connection test
3. Explore the sufficient connection test outlined by Mason and Deane JJ in Re F; ex parte F.
4. Examine the approach to characterisation and the sufficient connection test in Grainpool.
Part 3 Characterisation and the trade and commerce power

5. Summarise your understanding of Kitto Js approach in the Second Airlines Case, to validate
the intrusion of the Commonwealth into intrastate activities under the trade and commerce
power.
Part 4 Incidental laws, purposive laws and proportionality

6. OSullivan v Noarlunga Meat. Could the incidental aspect of the power be used by the
Commonwealth to regulate production of goods for interstate trade and commerce in
addition to international trade and commerce?
7. Examination of Leask v Commonwealth and the exploration of the role of proportionality.

Students to also look to the recent cases.
23
8. AG (WA) v Australian National Airlines Commission

Students to analyse the decisions of Stephen J and Murphy J. Which is the more persuasive
and why?
WEEK THREE - TUTORIAL

Skills: Courtroom etiquette
Law: Doctrine of intergovernmental immunity
Part 1 Courtroom etiquette

In this weeks tutorial we will be discussing the requirements of courtroom etiquette and also the
related topic of dealing with nerves and questions from the Bench. Again, you will find useful the
tips provided in the Mooting Guide prepared by Associate Professor Julia Davis, and the other
guides to mooting cited. A simple overview of the form and rationale of courtroom etiquette is also
provided in a paper by Elisa Holmes on etiquette which is available from the course website.
Elisa Holmes, Etiquette in Justice Tom Gray, Martin Hinton and David Caruso (eds), Essays
in Advocacy (Barr Smith Press, 2012) 7-18.
Part 2 Intergovernmental immunity

In this part of the tutorial we will explore some questions arising from decisions of the High Court
on the application of the doctrine of implied immunities, subsequent to the Melbourne Corporation
decision.
State Immunity from Commonwealth laws
1. What is the Melbourne Corporation principle?
2. Is the decision in Melbourne Corporation consistent with the decision in Engineers?
3. Have the decisions in the Australian Education Union Case (AEU) and the Industrial
Relations Act Case unduly narrowed the Melbourne Corporation principle? Is the
distinction between senior State officers and other State employees logical and sustainable?
Does the distinction properly reflect the premise behind the immunities doctrine?
24
4. What is the effect of Austin on the discrimination limb of the Melbourne Corporation
principle? Which opinion in Austin do you prefer and why?
5. Assume the Commonwealth has enacted a law requiring all employers to provide 6 months
paid maternity leave to all female employees. Would such a law extend to the following
South Australian public servants:
(a) Cleaners in Parliament House?
(b) The Premiers Press Secretary?
(c) The Personal Assistant to the Treasurer?
(d) Public School teachers?
Commonwealth immunity from State law
6. What immunity does the Commonwealth have from the operation of State laws?
7. Does the Commonwealth actually require immunity from State laws, given the presence of s
109?
a.
25
WEEK FOUR - LECTURE
Characterisation
Subject to the Constitution
OVERVIEW
One of the principal objectives of the constitutional drafters was the creation of a truly federal
economy. Accordingly, the Commonwealth Parliament was conferred very significant powers with
regard to business and the economy. For example, the Commonwealth exercises power in the
following matters:
trade and commerce with other countries, and among the States (s 51(i));
taxation; but so as not to discriminate between States or parts of States (s 51(ii));
bounties on the production or export of goods, but so that such bounties shall be
uniform throughout the Commonwealth (s 51(iii));
borrowing money on the public credit of the Commonwealth (s. 51(iv));
currency, coinage and legal tender (s 51 (xii));
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 (s
51(xiii));
insurance, other than State insurance; also State insurance extending beyond the
limits of the State concerned (s 51(xiv));
weights and measures (s 51(xv));
bills of exchange and promissory notes (s 51(xvi));
bankruptcy and insolvency (s 51(xvii));
foreign corporations, and trading or financial corporations formed within the limits of
the Commonwealth (s 51(xx));
conciliation and arbitration for the prevention and settlement of industrial disputes
extending beyond the limits of any one State (s 51(xxxv));
This week we examine the question of characterisation with respect to the limits placed on the two
main economic powers enumerated in the Constitution; the Trade and commerce power; and the
Taxation power, respectively sections 51(i) and 51(ii).
Three additional provisions of the Constitution which have significant implications for the
Commonwealths economic power include section 90 (which makes the Commonwealth power to
26
impose excise duties exclusive), s 92 (which requires that interstate trade, commerce and
intercourse shall be absolutely free), and s 96 (which permits the Commonwealth to issue financial
grants to the States on such terms and conditions as the Parliament thinks fit).
The latter section has enabled the Commonwealth to direct policy on matters that are technically
beyond its legislative power. Section 90 has had the effect of significantly reducing the revenue
raising power of the States. Combined with the breadth of powers conferred under s 51 of the
Constitution, the Commonwealth has gained financial ascendancy within the federation since 1901.
Standing in a slightly different light is s 92 which acts as a restraint on both Commonwealth and
State legislative power. It is one of the entrenched freedoms contained within the Constitution and
has a long and complex history. However, for our purposes that history need only begin in 1988,
when the High Court developed a unanimous approach to its meaning, settling decades of
disagreement about its terms and effect.
In this weeks class, we will focus on four sections of the Constitution that are critical to the
federal economy
the taxation power (s 51(ii)) and the excise power (s 90); and
we continue our analysis of the trade and commerce power (s 51(i)) with respect to the
limits which affect the scope of that power by the entrenched freedom of interstate trade
and commerce guaranteed by s 92.

Students will be expected to have read the following cases from the textbook prior to class. Please
note that the most important cases are highlighted in bold.
Theory: Commentary and Materials (Federation Press, 6th ed, 2014):
o Chapter 17 Characterisation (pages 773-778);
o Chapter 23 Taxation and Excise (pages 1010-1050).
o Chapter 27 Economic Freedoms (pages 1195-1230).
Part I:
Freedom of Interstate Trade and Commerce (s 92)
Cole v Whitfield (1988) 165 CLR 360;

Bath v Alston Holdings (1988) 165 CLR 411;
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436;
Betfair Pty Ltd v Western Australia (2008) 234 CLR 418;
Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217;
Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298.
Part II:
Taxation Power (s 51(ii))

27
Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263;

Air Caledonie International v Commonwealth (1988) 165 CLR 462;
Australian Tape Manufacturers Association Ltd v Commonwealth (1993)
176 CLR 480;
Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR
555;
Luton v Lessels (2002) 210 CLR 333;
Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133;
MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622;
Deputy Federal Commissioner of Taxation v Truhold Benefit Pty Ltd (1985) 158 CLR
678;
Pape v Commissioner of Taxation (2009) 238 CLR 1;
Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97.
Part III:
Excise Duties (s 90)
Peterswald v Bartley (1904) 1 CLR 497;

Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263;
Parton v Milk Board (Vic) (1949) 80 CLR 229;
Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529;
Dickensons Arcade Pty Ltd v Tasmania (1974) 130 CLR 177;
Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599;
Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399;
Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561;
Ha v New South Wales (1997) 189 CLR 465;
Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530.
WEEK FOUR TUTORIAL

Skills: Written Submissions in Advocacy
Law: Characterisation & the Trade & commerce power
28
Proper written submissions are an important part of your mooting and advocacy skills. In this
tutorial you will practice writing brief submissions and may find useful the template example for
written submissions by counsel in the High Court in the Mooting Guide (p 16) and replicated in
this Study Guide below.
The submissions concern the constitutional validity of the following

proposed Commonwealth laws.
Alessandro runs a wheat milling business (Alessandro and Partners), which grows wheat in
Queensland. All of the wheat Alessandro grows is milled by his business. Alessandro and Partners
also provide milling services for growers from New South Wales and the Northern Territory. Buyers
from the Australian Wheat Board and domestic bakery companies buy processed wheat from
Alessandro and Partners, who also act as agents for growers who use their mills.
The Australian Wheat Board, a federal organisation which manages the international marketing of
Australian wheat, has received complaints from foreign buyers. A number of shipments of wheat
have been infected with a fungal infestation. Tests have provided compelling, but not conclusive,
evidence that the infections have been caused by defects in the milling equipment and sanitation
procedures at Alessandro and Partners business, as well as Alessandros farm.
The Australian Wheat Board has written to the Minister for Primary Industries, whose department
has proposed a number of options to deal with the problems, and has drafted legislation accordingly
(next page).
1. Prevent Alessandro from growing wheat
2. Prevent Alessandros wheat from being exported
3. Set up inspection procedures at all milling businesses in Australia
29
WHEAT EXPORT ACT 1989

An Act to provide for the control of the export of wheat and for related purposes
Objects of the Australian Wheat Board

3. The objects of the Board are:
(a) to secure, develop and maintain international and domestic markets for wheat and wheat
products for Australian wheat growers.
Wheat production
4.
(1) The Australian Wheat Board may determine quality and phytosanitary standards for the
growing and milling of all wheat grown in Australia.
Quality control
5.
(1) The Board may determine quality and phytosanitary standards to be observed in relation to
wheat or processed wheat offered or to be offered for export sale by the Board.
(2) (1) The Board may determine quality and phytosanitary standards to be observed in relation
to wheat or processed wheat offered or to be offered for domestic sale by the Board.
(2) The matters that may be dealt with by the standards include, but are not limited to:
(a) storage;
(b) handling; and
(c) transport.
(3) The Board may make regulations for inspection procedures at all wheat milling premises in
Australia.
Control of export of wheat

6.
(1) A person, other than the Australian Wheat Board, shall not export wheat unless:
(a) the Board has given its written consent to the export of the wheat; and
(b) the export of the wheat is in accordance with the terms of that consent.
Penalty:
(a) in the case of a natural person-$60,000; or
(b) in the case of a body corporate-$300,000.
(2) An offence against subsection (1) is an indictable offence.
30
You are a legal adviser in the Commonwealth Attorney-Generals Dept.

The Minister for Primary Industries asks your advice on the
constitutional validity of each of the proposed laws, under the trade and
commerce power of the Constitution (s 51(i)).
This exercise requires you to characterise each of the proposed laws to determine whether they are
constitutionally valid as either falling within the trade and commerce power, or falling within the
incidental aspect of the trade and commerce power, that is, as a law which is necessary in order
that the Commonwealths power to make laws regulating trade and commerce is not adversely
affected. To do this, you need to characterise the subject matter of the proposed laws and then
determine whether this law then falls within the scope of the trade and commerce power (the
scope of the power necessarily always being determined in the context of the particular law in
question). You then need to determine if there are any applicable limitations, right or freedoms
attached to the power, as s 51 powers are always to be determined subject to the Constitution;
and finally, consider whether there is a sufficient connection between the law and the power. If the
law can not be characterised as falling within the trade and commerce power, or you cannot find a
sufficient connection between the law and the power, you might then need to consider if it might
fall within the incidental aspect of the trade and commerce power.
We might set out these steps as follows:
Step 1: What does the Act in question concern? eg. what is its substance and legal effect?
Step 2: What is the scope of the trade and commerce power? Does it include within its
scope the type of concerns/subject matters identified in Step 1?
Step 3: Are there any applicable rights, freedoms or limitations on the trade and
commerce power that are triggered? For example, the trade and commerce power does not
allow the Commonwealth to regulate intrastate trade and commerce, that is trade and
commerce which occurs within a state, and this therefore acts as a limitation upon the
Commonwealths power. Does the impugned law concern intrastate trade and commerce?
Another limitation on the s 51(i) power is of course s 92 that requires that trade and
commerce be absolutely free, which we shall consider in next weeks tutorial [NOTE s 92 is
not in issue in this exercise].
Step 4: Is there a sufficient connection between the Act and the scope of the trade and
commerce power, or is the connection so insubstantial, tenuous or distant that the Act
cannot be said to fall within the s 51(i) power?
31
Step 5: If the Act is not fairly within the trade and commerce power, might it still fall
within the incidental aspect of the power? That is, the law is necessary in order to render
effective the main grant of power. As held by Dixon CJ, McTiernan, Webb and Kitto JJ in
Grannall v Marrickvile Margarine Pty Ltd (1955) 93 CLR 55,
every legislative power carries with it authority to legislate in relation to acts, matters and
things the control of which is found necessary to effectuate its main purpose, and thus carries
with it power to make laws governing or affecting many matters that are incidental or
ancillary to the subject-matter.
32
IN THE HIGH COURT OF AUSTRALIA

HOBART OFFICE OF THE REGISTRY
BETWEEN:
Julia Davis Construction Pty Ltd
Appellant
AND
Ken Mackie
Respondent
SUBMISSIONS FOR THE APPELLANT (SENIOR/JUNIOR)
insert name
Background
The first paragraph should summarise the nature of the dispute.

In four or five lines explain the essence of the dispute between the parties.
The second paragraph should give a brief history of the dispute.

In four or five lines explain how the case reached this court. Decision at first
instance and
Court of Appeal (as relevant)
Grounds of Appeal
State your grounds of appeal and succinctly explain your reasons. If you have a
complicated argument, then list and explain the steps and sub-steps
in your reasoning
Beneath each ground, list your case authorities. You may also
wish to argue in the
alternative. See examples of the submissions
below.
1. The contract was made on the terms of Julia Davis Constructions standard contract.
Stern J and the Court of Appeal erred in applying Nicol v Gogarty [2003] UKHL 53, [2003]
4 All ER 969:
1.1
Nicol does not lay down a general exclusionary rule.
1.2
The test in Nicol should be read in light of Chalmers v Blackwood [2002] 1
QdR 474.
1.3
The contract in issue would satisfy the test when correctly understood.
2. Alternatively, if the argument above on the authorities is incorrect, it is submitted that
the Court should not follow Nicol as:
2.1
As explained by Warner v Henning [2003] QDC 151 (16 June 2003), a

significant lacuna would exist if model contracts were better insulated
from
2.2
Exemption
the 1977 Act.

It would be inconsistent with the aims and purposes of the statute
Clauses Act (Tas).
AUTHORITIES
33
Nicol v Gogarty [2003] UKHL 53, [2003] 4 All ER 969

Chalmers v Blackwood [2002] 1 QdR 474
Warner v Henning [2003] QDC 151 (16 June 2003)
34
WEEK FIVE - LECTURE
External Affairs & the Races Powers
OVERVIEW
In this week of the course we examine the scope and operation of the external affairs power s
51(xxix) and consider the impact of international law on Commonwealth legislative power.
Section 51(xxix) has been one of the more contentious powers, providing the Commonwealth
Parliament with a constitutional basis for implementing many laws which would otherwise have
fallen outside their legislative powers the environment, human rights, civil aviation etc.
Consequently, the external affairs power has triggered a number of major constitutional battles
between the federal and State governments. However, in a modern legal context, the capacity for
Australia to effectively implement its international legal obligations (both multilateral and
bilateral) through domestic legislation is increasingly linked to Australias national security and
economic and social prosperity.
The Races power we looked briefly to in Weeks 1 and 2 in the context of constitutional
interpretation of s 51 (xxvi) in the examination of the Hindmarsh Island Bridge case. The races
power, which was originally drafted so as to exclude the Commonwealth Parliament from making
laws with respect to Indigenous peoples,
S 51(xxvi)the people of any race, other than the aboriginal race in any State, for whom it is deemed
necessary to make special laws.
was amended after the 1967 referendum to widen the reach of the power to include Indigenous
peoples (text in red was struck out). Today however, the issue is whether the Commonwealth has
plenary power over the people of any race, so as to make laws for the people of any race, whether
those laws are beneficial or detrimental, wholly or partly.
Today, of course, constitutional recognition of Aboriginal and Torres Strait Islander peoples in the
Constitution is progressing in a very real way with the appointment in December 2015 of a
Referendum Council, co-chaired by Professor Patrick Dodson and Mr Mark Leibler AC. The Council is
to advise the Prime Minister and Leader of the Opposition on the processes required for a successful
referendum on indigenous recognition, building on the work of the Expert Panel on Constitutional
Recognition of Indigenous Australian, and the Joint Select Committee on constitutional recognition
of Aboriginal and Torres Strait Islander Peoples.
35
NOTE that this weeks material relates to the first and second moot topics for moots that will
take place in the Week 6 and 7 tutorials. Whilst the textbook provides a general overview of an
area, students who are mooting will find that reading the actual cases in their entirety from the
Commonwealth Law Reports is the best way to comprehensively prepare for the moot itself.

Students will be expected to have read the following cases prior to class:
o
Chapter 20 International law and the External Affairs Power

(pages 896-929);
o Chapter 22 Races Power (pages 986-1009).

R v Sharkey (1949) 79 CLR 121;
New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135
CLR 337;
Thomas v Mowbray (2007) 233 CLR 307;
Horta v Commonwealth ( 1994) 181 CLR 183;
R v Burgess; Ex parte Henry (1936) 55 CLR 608;
Koowarta v Bjelke-Petersen (1982) 153 CLR 168;
Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1;
Richardson v Forestry Commission (1988) 164 CLR 261;
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR
416;
Pape v Commissioner of Taxation (2009) 238 CLR 1.
Races Power (s 51(xxvi))
Koowarta v Bjelke-Petersen (1982) 153 CLR 168;
Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1;
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373;
Kartinyeri v Commonwealth (Hindmarsh Island Bridge Case) (1998) 195
CLR 337.
WEEK FIVE TUTORIAL

Skills: Practice Moots Introductory statements
Law: Sections 90 and 92
36
Part 1 Introductory statements

This week we will discuss Appearances and Introductory submissions in advocacy, based on the
material you prepared in your written submissions in last weeks tutorial.
Part 2 Sections 90 and 92 exercises

In this second part of the tutorial we will consider the application of s 90 that provides exclusive
power to the Commonwealth with respect to excise duties, and therefore as a consequence, acts as
a limitation on a states taxation powers; and s 92, a limitation on the trade and commerce power
of both the Commonwealth and the states.
Section 90
1. What is a tax? What is a fee for service? What is an excise duty? What is a licence
fee?
2. Western Australia wishes to enact legislation creating a licensing scheme for all
tourist operators conducting scuba-diving and snorkeling trips along Western
Australias coastline. The Government is particularly concerned about the huge
growth in operations in Western Australia and is particularly concerned with
protecting the breeding grounds of the whale shark on and around Ningaloo Reef.
Licenses will be used to place limitations on the periods and locations where
scuba-diving and snorkeling can take place on Ningaloo Reef and a small group of
protected dive sites.
The initial licence fee is set at $8000 and extends for a period of 12 months. Licence renewal fees
are then calculated as 10% of the total amount earned through diving and snorkeling trips operated
in the previous licence period.
Find two reasons why this law does not violate s 90 of the Constitution.
Section 92
3. Castlemaine Tooheys exposed the need for s 92 to give way to proportionate
measures
designed to
meet legitimate public aims.
37
What was the test developed by the Court for determining whether such laws are
invalid, and has the decision in Betfair added anything to that test?
What is the principle we might draw from Betfair [2]?
4. The Western Australian legislation (above in question 2) also provides that 50% of the funds
raised by the licensing fees will be directed towards the marketing and promotion of tourism
ventures operating on or near Ningaloo Reef Western Australias most famous and popular dive
site. Hamilton Dive, which operates out of Albany in WA, and organises deep-sea dive trips to
shipwrecks off the Albany coast, is outraged at having to pay the license fee which will support a
marketing campaign for other dive operators. So too is Ceduna Dive, a South Australian based
operator who conducts dives along the coast, but in both South Australian and Western
Australian waters. Is this aspect of the legislation valid under section 92? Give reasons.
38
WEEK SIX - LECTURE
Inconsistency of Federal & State Laws
OVERVIEW
In this week of the course we examine the operation and effect of section 109 of the Constitution
the Constitutional solution to inconsistent laws between the Commonwealth and the States. The
section provides as follows: 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.

o Chapter 8 Inconsistency between Commonwealth and State Laws
(p 297-331).
Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557;
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373;
Telstra v Worthing (1997) 197 CLR 61;
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466;
Ex parte McLean (1930) 43 CLR 472;
Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47;
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142
CLR 237;
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330;
APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322;
Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392;
West v Commissioner of Taxation (NSW) (1937) 56 CLR 657;
Wenn v Attorney-General (Vic) (1948) 77 CLR 84;
39
Airlines of New South Wales Pty Ltd v NSW (No 2) (Second Airlines Case)
(1965) 113 CLR 54;
Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453;
Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595;
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1;
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (GMAC Case)
(1977) 137 CLR 545;
Viskauskas v Niland (1983) 153 CLR 280;
University of Wollongong v Metwally (1984) 158 CLR 447;
Dickson v the Queen (2010) 241 CLR 491;
Momcilovic v The Queen (2011) 245 CLR 1;
Maloney v The Queen (2013) 252 CLR 168 (available on AustLII).
WEEK SIX MOOT PROBLEM
Characterisation the Races Power
SOUTH AUSTRALIA
V
COMMONWEALTH
[2016]
High Court of Australia
FACTUAL BACKGROUND
After winning the federal election in September 2015, the federal Minister for Families announced
that he would be conducting a review of social security payments. The review was directly
instigated in the hope of stopping the intergenerational cycle of poverty and dependence on
40
welfare in Australias most disadvantaged communities. According to the Ministers statement at a

press release announcing the proposed reforms, the new provisions would encourage parents into
the workforce and off welfare, and discourage welfare recipients from having large families which
can consequently increase the chances of children being raised in poverty.
This public debate had been influenced by a story presented on the Four Corners program,
highlighting the extent to which children in remote indigenous communities were still bearing the
consequences of alcoholism, welfare dependency and poverty, in spite of the Northern Territory
intervention and subsequent reforms. Several Ministers also highlighted considerable research
around the cycles of poverty and welfare dependency across generations. According to the
Explanatory Memorandum accompanying the Amendment Bill, the new provisions were directly
targeted at preventing and discouraging welfare dependency across generations of families,
particularly in indigenous communities -too many children continue to be raised in poverty, in
circumstances where parents are entirely dependent upon welfare, and children are too frequently
exposed to the effects of substance abuse and violence within their families and communities.
Human rights activists strongly campaigned against the proposed reforms on the basis that they
effectively introduced a one child policy for disadvantaged Australians, with particularly severe
consequences for indigenous families.
Despite the strong criticism against the reforms, the government ultimately introduced changes to
the Social Security Act 1981 (Cth), which limited parenting payments to unemployed parents,
effectively only providing government support for one child to certain families and prohibiting an
increase in payment for children born after a parent starts receiving welfare. The changes thus
removed the previous incremental increases which would take place after the birth of a second or
subsequent child to a recipient of the governments parenting payment. However, the provisions
would not apply to somebody who had recently lost their job (but the exclusion would only last for a
period of 6 months) or to parents who were prevented from working due to disability or illness. The
provisions would only apply prospectively and in respect of children born after December 2015. The
new provisions also excluded the operation of the Racial Discrimination Act 1975 (Cth).
The new provisions provided as follows:
Section 84FC
(1) Parenting payments will be capped at the rate payable to a parent with the responsibility
and care of one child, irrespective of the number of children for whom the parent is
responsible for, where an applicant or recipient of a parenting payment meets the following
criteria:
(a) The person is an indigenous Australian, or identifies as being an indigenous Australian;
and
(b) The person resides in a region or area declared by the Minister to be a designated area
under section 84FD.
(2) A parent in receipt of a parenting payment is not entitled to an increase in that payment for
any children born subsequent to commencing receipt of that payment.
(3) This section does not apply to foster-parents or substitute parents who have assumed
responsibility for the care and upbringing of children whose biological parents are unable to
care for them.
Section 84FD
(1) Where, in the opinion of the Minister for Families
41
(a)
a specified geographical region or area has significantly high and persistent rates of
welfare dependency, substance abuse, violence or crime, the Minister may issue a
declaration that the specified region or area is to be treated as a designated area for the
purposes of sub-section 84FC(1)(b).
The Minister for Families issued a declaration under section 84FD with respect to 17 regional
communities, including the APY lands in South Australia. There was significant opposition to the new
provisions within South Australia, including from within the Labor Government. The Premier
announced that South Australia would commence proceedings in the High Court challenging the
validity of the new provisions, but only under section 51 (xxvi).
APPELLANT South Australia
RESPONDENT Commonwealth
NB: In developing submissions for the moot, parties may not address any other head of power other
than section 51(xxvi) and should consider the following constitutional issues:
Whether section 51(xxvi) is limited with respect to indigenous Australians, including to laws
which benefit indigenous peoples;
Whether proportionality forms part of the test for characterisation of a law under section
51(xxvi).
WEEK SEVEN - LECTURE
Entrenched Freedoms
OVERVIEW
This week of the course covers three of the entrenched rights and freedoms contained within the
Constitution:
Right to vote (s 41, plus ss 7 & 24)
Freedom of religion (s 116)
Rights of out-of-State residents (s 117)
Other rights and freedoms protected by the Constitution include trial by jury (s 80), the freedom
of interstate trade, commerce and intercourse (s 92), the just terms limit on parliaments power
to acquire property (s 51(xxxi)), and the implied freedom of political communication. The latter will
be discussed in this weeks lecture, but will not be subject to examination in this course.
42
Further rights are arguably protected through the separation of judicial power under Chapter III.
That Chapter of the Constitution plays a significant role in the protection of the right to a fair trial
and rights to due process. Whether it does so directly or indirectly, and whether Chapter III protects
only procedural rights, or more substantive rights, remains an open question. These issues will be
touched upon in the final 2 weeks of the course.

o Chapter 15 Federal Parliament (specifically p 656-698);
o Chapter 26 Human Rights (specifically p 1167-1193).
Right to Vote (ss 41, 7 and 24)

Langer v Commonwealth (1996) 186 CLR 302;
King v Jones (1972) 128 CLR 221;
R v Pearson; Ex parte Sipka (1983) 152 CLR 254;
Roach v Electoral Commissioner (2007) 233 CLR 162;
Rowe v Electoral Commissioner (2010) 243 CLR 1;
Attorney-General (Commonwealth); Ex rel McKinlay v Commonwealth
(1975) 135 CLR 1;
McGinty v Western Australia (1996) 186 CLR 140;
Mulholland v Australian Electoral Commission (2004) 220 CLR 181;
Western Australia v Commonwealth (First Territory Senators Case) (1975) 134 CLR
201.
Freedom of Religion (s 116)
Krygger v Williams (1912) 15 CLR 366;
Adelaide Company of Jehovahs Witnesses Incorporated v Commonwealth
(Jehovahs Witnesses Case) (1943) 67 CLR 116;
Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120;
Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1;
Attorney-General (Victoria); Ex rel Black v Commonwealth (DOGS Case)
(1981) 146 CLR 559.
43
Rights of Out-of-State Residents (s 117)

Henry v Boehm (1973) 128 CLR 482;
Street v Queensland Bar Association (1989) 168 CLR 461;
Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463;
Sweedman v Transport Accident Commission (2006) 226 CLR 362.
WEEK SEVEN MOOT PROBLEM
External Affairs Power

AUSTRALIAN CONSERVATION FOUNDATION
V
MINISTER
FOR
ENVIRONMENT
[2016]
FACTUAL BACKGROUND
Australia and New Zealand were among the 12 original contracting parties to the Antarctic Treaty
1959. That treaty established the Antarctic Treaty System (ATS), which was designed to protect the
continent from military activity, suspend the question of sovereignty over the continent and
promote scientific cooperation in relation to the treaty area.
The ATS has been incredibly successful and has lead to a series of subsequent instruments dealing
with such matters as the conservation of Antarctic seals, marine and living resources and
environmental protection.
Article 7 of the Protocol on Environmental Protection to the Antarctic Treaty 1991 provides as follows:
Any activity relating to mineral resources, other than scientific research, shall be prohibited.
Both Australia and New Zealand are parties to the Protocol, as are all of the countries with a
presence on the Antarctic continent. Until July 2015, there was no evidence to indicate that any
mineral exploration was taking place on the continent, although rumours had been circulating
amongst the scientific community that the United States 3 was preparing to commence drilling and
exploration for mineral deposits in an area that spanned the Australian Antarctic Territory (in the
3
The United States has not formally claimed any territory in the Antarctic continent,
but has a scientific base at the South Pole and would arguably have a strong claim to
sovereignty over sections of the continent. However, Article 4 of the Antarctic Treaty
suspends the question of sovereignty for all treaty parties without compromising the basis
or strength of any future claims.
44
area known as George V Land) and the Ross Dependency (New Zealands claimed territory - in an
area known as Victoria Land). This area has long been suspected of being rich in deposits of crude
oil.
In August 2015 New Zealand and Australia concluded a bilateral treaty to jointly conduct preliminary
exploration of mineral deposits in the above-mentioned area, and a feasibility study of the costs
associated with mineral extraction as well as a detailed environmental impact assessment by
independent scientists. In accordance with the treaty, preliminary exploration is to involve scientific
tests on seismic activity, magnetic susceptibility and conductivity within the area (Article 5).
However, the agreement also provides for rock sampling through the use of directional core drilling
(Article 6).
The bilateral treaty was not tabled in Federal Parliament prior to its adoption, nor was it referred
to JSCOT for consideration. However, the Minister for Environment introduced the Australian
Antarctic Territory (Scientific Exploration) Bill 2014 into Parliament on August 29 and the Bill was
passed by both Houses of Parliament within a week. The Long Title of the Act describes it as an Act
to implement a bilateral treaty with New Zealand regulating scientific exploration within the
Antarctic Treaty Area.
The principal section of the Act section 11 provides as follows:
(a)
Any
person
(whether natural or corporate) may only undertake scientific and exploratory activity
within the Australian Antarctic Territory with the written authorisation of the Minister for
Environment.
(b)
For the purposes of
sub-section (1), scientific and exploratory activity may include the following activities:
i. Seismic testing;
ii. Magnetic susceptibility testing;
iii.Conductivity Testing;
iv.Directional core drilling.
On September 10 the United Nations Security Council (UNSC) issued a Resolution declaring the
bilateral treaty between Australia and New Zealand as being in breach of each States obligations
under Article 7 of the Protocol on Environmental Protection to the Antarctic Treaty. The Resolution
also called upon the two respective States to immediately denounce the treaty and repeal any
domestic legislation enacted in support of it.
OZ Mining has been granted written authorisation by the Minister to conduct scientific and
exploratory activity within the Australian Antarctic Territory under s 7 of the Act. NZ Mining has
received a similar authorisation under the equivalent New Zealand legislation.
The Australian Conservation Foundation (ACF) has been granted leave to challenge the decision of
the Minister in the High Court. Specifically, the ACF is challenging the decision on the basis that the
Australian Antarctic Territory (Scientific Exploration) Act 2015 (Cth) is constitutionally invalid
and, thus, the Ministers decision is of no legal effect.
45
APPELLANT Australian Conservation Foundation

RESPONDENT Minister for Environment
**NB: Each party should ideally limit themselves to two submissions only (ie. each counsel presents only one
submission on behalf of their client). Each counsel is limited to 8 minutes, which includes questions from the
bench, and it is more important to present one argument well, than several arguments poorly.
WEEK EIGHT LECTURE
Federal Judicial Power

(Judicial power I)
OVERVIEW
This week we turn to consider the separation of judicial power under Chapter III of the Constitution.
This topic has been one of the most significant in recent constitutional cases, producing some of the
most controversial cases in recent times. The starting point, in terms of making sense of the High
Courts jurisprudence in this area, is the Boilermakers Case. That decision is authority for 2
propositions:
1.That federal judicial power may only be exercised by Chapter III courts, that is, the High
Court and all other federal courts, as well as any State courts conferred with federal
jurisdiction; and
2.That federal courts cannot exercise any powers other than judicial power, that is, they
cannot exercise legislative or executive powers, (unless such powers are characterised as
incidental to the exercise of federal judicial power).
What these propositions effectively create is a situation where there can be no mixing of judicial
and non-judicial power with regard to federal courts. It also means that judicial power can only be
exercised by a Chapter III court and not by a legislative or administrative body such as parliament or
a tribunal. Thus, for example, a determination of guilt under federal law can only be made by a
Chapter III court.
This strict separation of judicial power has obvious flow-on effects which benefit individuals
through the rule of law, judicial independence and due process requirements. Indeed, Chapter III is
widely thought to contain many implied guarantees of benefit to individuals from the right to due
process to the right to a fair trial. However, no High Court majority has yet accepted that any
individual right is impliedly guaranteed under Chapter III.
46
The Boilermakers doctrine does not, however, apply at the State level. A strict separation of
judicial power is not effected under State Constitutions in the same way that Chapters I, II and III of
the federal Constitution does. However, because certain State courts exercise federal jurisdiction
under various Commonwealth laws (particularly the State Supreme Courts) Chapter III requires that
they meet certain requirements so that they may remain suitable repositories for the exercise of
federal judicial power.

Theory: Commentary and Materials (Federation Press, 6th ed, 2014)
o Chapter 12 Separation of Judicial Power (specifically pages 490539);
The Separation of Judicial Power

New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54;
Waterside Workers Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434;
R v Kirby; Ex parte Boilermakers Society of Australia (Boilermakers
Case) (1956) 94 CLR 254;
R v Joske; Ex parte Australian Building Construction Employees &
Builders Labourers Federation (1974) 130 CLR 87;
The Separation of Judicial Power at State Level
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51;
Defining Judicial Power
Huddart Parker & Company Pty Ltd v Moorehead (1909) 8 CLR 330;
Momcilovic v The Queen (2011) 245 CLR 1;
New South Wales v Kable (2013) 252 CLR 118;
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970)
123 CLR 361;
Judicial Power and Tribunals

Federal Commissioner of Taxation v Munro (1926) 38 CLR 153;
Brandy v Human Rights and Equal Opportunity Commission (1995) 183
CLR 245;
Attorney-General (Cth) v Breckler (1999) 197 CLR 83;
Luton v Lessels (2002) 210 CLR 333;
Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542;
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd
(2015) 89 ALJR 382.
47
Exceptions to the Boilermakers Doctrine
Lane v Morrison (2009) 258 ALR 404;

Haskins v Commonwealth (2011) 244 CLR 22;
Harris v Caladine (1991) 172 CLR 84;
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409;
Hilton v Wells (1985) 157 CLR 57;
Grollo v Palmer (1995) 184 CLR 348;
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996)
189 CLR 1;
Legislative Usurpation
Liyanage v The Queen [1967] 1 AC 259;
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1;
Thomas v Mowbray (2007) 233 CLR 307 (extracted at p 590-601);
X7 v Australian Crime Commission (2013) 248 CLR 92 (available on AustLII);
Duncan v NSW (2015) 89 ALJR 462 (available on AustLII).
48
WEEK EIGHT MOOT PROBLEM
Inconsistency of State and Federal Laws
NELSON
V
TASMANIA
[2016]
FACTUAL BACKGROUND
In April 2015 the Federal Minister for Health announced that the drug RU-486 (colloquially known as
the abortion pill) had been approved for sale throughout Australia under the Therapeutic Goods
Act 1989 (Cth). Under s 7 of the Act, the Secretary of the Department of Health classified the drug
as therapeutic goods for the purposes of the Act and, thus, made the drug open to use in humans.
Previously, in accordance with Regulations (authorised under s 63 of the Act), the public sale of RU486 was limited to specific regions, and only certain doctors could lawfully prescribe it.
Part 5 of the Act lists certain offences in relation to therapeutic goods including, unauthorised
advertising (s 42DL), dealing with counterfeit therapeutic goods (s 42E) and offences related to
product tampering (s 42T).
The objects of the Act are set out in section 4, which provides as follows:
(1)
The objects of this Act are to do the following, so far as the Constitution permits:
(a) provide for the establishment and maintenance of a national system of controls relating to the
quality, safety, efficacy and timely availability of therapeutic goods that are:
(i) used in Australia, whether produced in Australia or elsewhere; or
(ii) exported from Australia;
(b) to provide a framework for the States and Territories to adopt a uniform approach to control the
availability and accessibility, and ensure the safe handling, of poisons in Australia.
(1A) The reference in paragraph (1)(a) to the efficacy of therapeutic goods is a reference, if the goods
are medical devices, to the performance of the devices as the manufacturer intended.
(2)
This Act is therefore not intended to apply to the exclusion of a law of a State, of the Australian
Capital Territory or of the Northern Territory to the extent that the law is capable of operating
concurrently with this Act.
Following the announcement of the Federal Minister, both the Tasmanian Premier and the Minister
for Health came under intense pressure to respond, particularly from influential religious groups
within the State. Following an intense campaign in the media, the Premier announced an
amendment to the Tasmanian Criminal Code Act 1924 (Tas). A new offence of possessing,
administering, or ingesting the drug RU-486 was inserted into the Code. A new section s 167C
49
was inserted into the Code by an amending Act passed in July 2015. Section 167C provides as
follows:
(1) Any person who deals with the drug RU-486 by way of
(a) Being in possession of the drug;
(b) Administering, or attempting to administer, the drug by way of medical prescription;
(c) Dispensing the drug to a person upon presentation of a medical prescription;
(d) Ingesting the drug;
is guilty of an offence.
(2) For the purposes of sub-section (1)(a), possession includes the following
(a) Having the drug RU-486 on ones physical person;
(b) Having the drug RU-486 on premises, in a vehicle, bag or movable item, owned, rented,
leased, managed or controlled by the person.
Charge: Unlawful dealing with a prohibited substance.
The charge carries with it a fine of $5000 and possible imprisonment of up to 5 years.
Dr Rae Nelson is a GP located in Sandy Bay, Hobart. She has been charged and convicted with an
offence under s 167C of the Code - after it was discovered that a 16 year old female presented a
prescription signed by Dr Nelson for the drug RU-486 at a pharmacy in Hobart. Dr Nelson has been
fined $5000 and received a 2 year suspended sentence.
The conviction has been appealed and the matter removed to the High Court for consideration. The
only issue before the Court concerns the constitutional validity of s 167C of the Code under s
109 of the Constitution.
APPELLANT Dr Rae Nelson
RESPONDENT The State of Tasmania
50
WEEK NINE - LECTURE
State Judicial Power

(Judicial Power II)
Overview
This week of the course extends our examination of federal judicial power. In particular, we will
examine the application of Chapter III jurisprudence to the question of detention, as well as look to
recent cases at the State level dealing with State courts, incompatibility and the questions of
security and criminal intelligence.

important cases are highlighted in bold and casebook page references provided.
Theory: Commentary and Material (Federation Press, 6th ed, 2014)
o Chapter 13 Judicial and Non-Judicial Detention (specifically p 541602);
o Chapter 14 The Judicial Process (specifically p 603-652).
Important cases of relevance include:
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Casebook
extracts p 545-551)
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45
(Casebook extracts p 628-632)
Baker v The Queen (2004) 223 CLR 513 (Casebook extracts p 576-579)
Fardon v Attorney-General (Queensland) (2004) 223 CLR 575 (Casebook
extracts p 579-589)
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532
K-Generation Pty Ltd & v Liquor Licensing Court (2009) 237 CLR 501 (Casebook extracts
p 635-638)
South Australia v Totani (2010) 242 CLR 1 (Casebook extracts p 643-646)
Wainohu v New South Wales (2011) 243 CLR 181 (Casebook extracts p 646-649)
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638
51
International Finance Trust Company v New South Wales Crime Commission (2009)
240 CLR 319 (Casebook extracts p 638-640)
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Casebook extracts p 650652)
Momcilovic v The Queen (2011) 245 CLR 1 (Casebook extracts p 503-504)
New South Wales v Kable (2013) 298 ALR 144 (Casebook extracts p 551-554)
Attorney-General (NT) v Emmerson (2014) 253 CLR 393 (available on AustLII).
Pollentine v Bleijie (2014) 253 CLR 629 (available on AustLII)
Kuczborski v Queensland (2014) 254 CLR 51 (available on AustLII).
Duncan v New South Wales (2015) 89 ALJR 462 (available on AustLII).
52
WEEK NINE MOOT PROBLEM
Entrenched Freedoms
Christian Fundamentalist Party
v
Electoral Commissioner
[2016]
Factual Background
In the 2015 Western Australian State election 5 members of the Christian Fundamentalist Party
(CFP) were elected to the Upper House. The CFP is a relatively new player on the political scene,
having only been registered as a political party under s 62H of the Electoral Act 1907 (WA) in March
2014.
The CFP is linked with the Christian Family Church (CFC), a conservative (some might say,
fundamentalist) Christian organisation. CFC has been in existence since 1971, and was established
by its leader, the Holy Reverend Lance Waller. The CFC religion is based on 10 fundamental tenets.
Supremacy of the family as the fundamental unit of society is the first and most important of the
tenets. Other tenets stipulate that women are not permitted to participate in paid employment
whilst their children are of pre-school age, and that men have the responsibility for making all
major decisions within the family and society. In addition, marriages may not take place without the
approval of the Holy Reverend. A further tenet stipulates that members have a civic obligation to
participate and publicly engage in political and social debate.
Reported statistics number the members of CFC in Western Australia at 80,000 and growing. The
Church has also expanded into other Australian States and is one of fastest-growing religious groups
throughout Australia.
CFPs platform is limited, but is based specifically on the 10 tenets of the CFC. The party
campaigned on the basis that it would restore the family as the fundamental unit of society, would
introduce strict anti-abortion laws, and would introduce a scheme to publicly fund maternity pay
for mothers of pre-school aged children. The leader of the CFP is Dr Robert Waller, the son of the
Holy Reverend.
The Federal Government was concerned by the Western Australian election outcome and
specifically with the establishment of a political party so clearly structured on the basis of a
religion. Concerned to prevent the mixing of church and State at the federal level, the Government
53
introduced a new s 127A into the Commonwealth Electoral Act 1918 (Cth). The section reads as
follows:
The Commissioner shall refuse an application for the registration of a political party if, in the opinion of
the Commissioner, the party is so closely associated with a religious organisation in name, policy platform
or membership, that the party could be mistaken for, or perceived as being part of, the religious
organisation.
Designed to maximise their recent electoral success in Western Australia, the CFP applied for
registration as a party under the Electoral Acts of each State and Territory. However, the party
encountered a hurdle under the Commonwealth Act, where their application was refused by the
Commissioner under s 127A.
The CFP has decided to challenge the Commissioners decision in the original jurisdiction of the High
Court, on the basis that the decision was made in accordance with a constitutionally invalid
provision.
The grounds for invalidity are said to be based on the fact that the section impermissibly interferes
with the system of representative government and the requirement that parliamentarians be freely
chosen by the people. In addition, the CFP also wish to argue that the section is prohibited under s
116.
APPELLANT Christian Fundamentalist Party
RESPONDENT Electoral Commissioner
Please Note students should not address any question of characterisation,
but assume that the law is valid under s 51.
54
WEEK TEN LECTURE
Revision
Jud
Power
Revision
This Lecture will focus on revising the material covered throughout the course and outline
expectations regarding the exam.
Students should prepare summaries and bring any outstanding questions to class. Previous exams
will also form the basis for discussion and analysis with written exercises in approaches to answering
exam problem questions.
55
WEEK TEN MOOT PROBLEM
Judicial Power
SOUTH AUSTRALIA
ATTORNEY-GENERAL (CTH)
[2016]

FACTUAL BACKGROUND
On March 20 2015, the federal Attorney-General announced a new package of reforms aimed at
improving the judicial appointment process and of raising public awareness and education in
relation to the Australian judicial system. A new Justice Act 2014 (Cth) was enacted. Its critical
provisions read as follows:
Section 11
(1) Prior to selecting new High Court, Federal Court and Family Court judges, the Attorney-General shall
consult with the following persons and bodies:
a. The incumbent Chief Justice of the Court to which the appointment relates;
b. The Law Council of Australia;
c. The Law Society of each State and Territory;
d. The Bar Associations in each State and Territory;
Section 24
(1) A body shall be established with the responsibility of promoting public awareness and education in
matters relating to the justice system.
(2) The body referred to in sub-section (1) shall be known as the Australian Justice Commission.
Section 25
The Commission, established under section 24, shall be comprised of the following persons:
(a)
(b)
(c)
(d)
(e)
Three justices of a federal court, whether of the High Court, the Federal Court or the Family
Court;
Three Supreme Court judges from the States and Territories;
Three retired judges, having formerly served as judges of a superior court of record within
Australia;
Three registered legal practitioners with more than 5 years post-admission experience;
Three legal academics with more than 5 years full-time employment at a law school within an
Australian University.
Section 31
56
The principal functions of the Commission are as follows:

(a)
(b)
(c)
to promote public awareness and education of matters relating to the Australian justice system,
its courts and the legal and constitutional framework generally;
to make recommendations to the Attorney-General on measures for improving the legal system in
Australia;
to consider questions referred by the Attorney-General in accordance with section 45 of this Act.
Section 45
(1)
(2)
The Attorney-General may refer a question to the Commission on any matter relating to or
affecting the Australian legal system.
The Commission must produce a final report within a period of 6 months from the date on which a
matter is referred under sub-section (1).
In October 2015, the Chief Justice of the New South Wales Supreme Court was announced as the
latest appointment to the High Court (following an early, unexpected retirement of one of the
sitting justices.
Incensed at the continual failure to appoint a South Australian to the High Court bench, South
Australia decides to challenge the decision of the Attorney-General on the basis that the Attorneys
consultation with the Chief Justice of the High Court, in accordance with s 11(1) of the Act, was in
breach of Chapter III. Specifically, South Australia contends that the duty of the Attorney-General to
consult with an incumbent Chief Justice is incompatible with the exercise of judicial power by the
Chief Justice.
The South Australian Premier is also annoyed by the appointment of Justice Vanstone (of the South
Australian Supreme Court), to the Australian Justice Commission. The Government of South Australia
also wishes to challenge the constitutional validity of Vanstone Js appointment to the Commission.
APPLICANT South Australia
RESPONDENT Attorney-General (Cth)
57
(Study Period 6, 2008) Exam Period
Scho
ol
LAW
Course Name
LAWS 2008
Subject Area &
Catalogue
number
Paper 1
Australian Federal Constitutional Law
Length of Exam:
2:10:00
Official Reading Time:
10 Minutes
Additional Reading Time

(included in length of exam):
10 minutes
Total Recommended Reading Time:
20 Minutes
Parts
Questions
Time
Marks
Answer (1) question
60 mins (recommended)
50 Marks
Answer (1) question
30 Marks
3. Answer (1) question
20 marks
100 Total
Instructions to Candidates:
There are 3 questions in this examination, not all of which are given equal marks. Students must
answer all 3 questions
Student Notes:
This examination is open book. Students are permitted to use any materials, excluding library books
and any electronic equipment.
58
BACKGROUND FACTS
In August 2008, the respective Foreign Affairs Ministers for Australia and New Zealand signed
and ratified the Australia and New Zealand Agreement for Cooperation on Organ
Donation 2008 (known as ANZACOD Agreement).
THE AUSTRALIA AND NEW ZEALAND AGREEMENT FOR COOPERATION ON ORGAN DONATION
Done at Wellington, New Zealand
on the twenty fifth day of August, in the year 2008.
ed to increase the rates of organ donation in their respective countries,
Article 1
ns, in need of organ or tissue donation, listing patients in descending order on the basis of critical medical status.
Article 3
and tissue. Such scheme is to operate on the basis of presumed consent on the part of organ and tissue donors, with a registry to be established and mainta
Article 4
ood vessels, bone and bone marrow, cartilage, corneas, ears, heart, heart valves, hip joints, hormone producing glands (pituitary, thyroid, parathyroid, adre
In September 2008, the Federal Parliament of Australia enacted implementing legislation in

the form of the Organ Donation Act 2008 (Cth).
59
to the donation of their human organs and tissue for transplantation into other humans.
may
objectthis
to the
harvesting
the deceased
persons
organs
and tissue for transplantation.
ht under
section
shall beofbrought
nominally
against
the Commonwealth
Attorney-General, who shall not appear in person but who may present a writ
der
sub-section
(2) ofinthis
section
maycomplainant
be prescribed
or be
limited
by the
lawsCommonwealth.
of a State or Territory.
y damages
awarded
favour
of the
shall
payable
by the
to be established
shall be established to jointly manage a list of patients in Australia and New Zealand in need of organ and tissue donation, in accordance with Article 1 of
ished
and maintained,
to replace
the pre-existing
National
The Register
will be managed
by the Office of on
the Australian
for Organ
Dona
obligations
under
the Australia
and
NewRegister.
Zealand
Agreement
on Cooperation
Organ Register
Donation
2008,
ustralians to formally register either of the following:
t for organ and tissue donation made by persons over the age of 16 years; or
r by persons over the age of 16 years, which is to have the effect of over-riding the intentions of any next-of-kin in the event of the persons death.
Act
2008. (1) must be made freely accessible to all hospitals and medical institutions within Australia.
sub-section
Organ Donation Act 2008
sue are removed in purported compliance with this Act may lodge a complaint in the Federal Magistrates Court for compensatory damages in relation to u
nt of compensatory damages to be awarded where a complaint of unauthorised behaviour has been proven, and make orders to that effect.
ustralia,
including the
external
and
shall or
nottissue
operate
the exclusion
ofincomplementary
and territory
horised behaviour
includes
theterritories,
removal of
organs
of atodeceased
person
a manner or inState
circumstances
thatlegislation.
were not compliant with the provisi
gistrate shall act as informally as possible and the normal rules of evidence shall not be strictly applied.
nd Agreement on Cooperation on Organ Donation.
hroughout the body; or

d.
g ascribed to it under Article 4 of the Agreement.
60
As a consequence of the Federal Act, each of the States and Territories was required to
amend their own legislation, both to avoid any inconsistencies, but to also take effect of
section 5(3) of the Commonwealth Act. South Australia introduced amendments to its
Transplantation and Anatomy Act 1983 (SA), which took effect on 1 December 2008. The
relevant changes were effected through sections 21A, 24B and 27C.
to be given to South Australian patients of aboriginal descent

organs and tissue become available for transplant in a South Australian hospital, any organs or tissue must first be made available to potential recipients of
ive Services Licence Fee
ndividual medical professionals engaged in the provision of reproductive services within South Australia must obtain a Reproductive Services Licence fro
g a licence under sub-section (1), the company or individual medical professional must pay an administrative fee of $20,000 plus an amount calculated at 5
or and in relation to the removal of human tissues for transplantation, for post-mortem examinations, and for the regulation of schools of anatom
tissue after death
rise the removal of human organs and tissue from a deceased person, provided that written authorisation from the next of kin is first obtained.
o providing authorisation under sub-section (1) on either of the following grounds:
m that would be caused to an immediate family member, or members, on the basis of religious or spiritual belief;
son was a child under the age of 18 years and not married, and where the next-of-kin making the objection is a parent of the deceased;
m that would be caused to a member or members of the deceased persons family, where the death was the result of an unexpected and sudden event.
Transplantation and Anatomy Act 1983
61
STUDENTS MUST ANSWER ALL OF THE QUESTIONS BELOW. THERE ARE

THREE QUESTIONS IN TOTAL.
QUESTION 1
Amber Smith is a 17 year old from Goodwood, who has a life threatening heart condition.
Ambers family are members of the Christian Fundamentalist Church. One of the 10 basic
tenets of the CFC religion is a belief that any form of organ or tissue transplantation between
humans interferes with Gods plan and is therefore a sin and strictly prohibited.
However, following the enactment of the Commonwealth legislation and without her
parents knowing - Amber registered her formal intention to become an organ donor under
section 6(3)(b) of the Organ Donation Act 2008 (Cth).
Amber died on 10 November 2008 in the Adelaide Royal Hospital. Having learnt that Amber s
healthy organs are to be removed for transplantation in accordance with her intention as
registered with the Office for the National Register for Organ Donation, her parents seek an
urgent injunction in the Supreme Court. Their application was made on the basis that section
6(3)(b) of the Commonwealth Act is invalid under section 51(xxix) and section 116, and that
section 21A(2)(a) of the Transplantation and Anatomy Act 1983 (SA) confers upon them
the right to object to any removal of Ambers organs.
The Supreme Court refused to grant the injunction, but Ambers parents
are committed to appealing the decision, if only to prevent this happening
to another family.
In a separate application for compensatory damages under s 22 of the Act,
the matter was dismissed by Magistrate Burrows, on the basis that section
22 of the Commonwealth Act conferred non-judicial power on the Federal
Magistrates Court and was thus invalid.
Advise Ambers family in respect of all constitutional matters.
NB: This question is worth 50% of your total marks.
QUESTION 2
Wesley Stone was a 52 year old teacher from Ballarat, Victoria, who had been on the waiting
list for a kidney transplant for nearly 2 years. Wesley and his family had nearly given up hope
when a phone call came at 2am on 3 December stating that a kidney had become available in
Adelaide, and that Wesley should come straight into the Ballarat Memorial Hospital for his
62
transplant operation. However, when Wesley and his wife arrived at 2.40am, they were
informed that the kidney had in fact gone to an aboriginal woman in South Australia.
Sadly, Wesley died 2 days later. His case, however, was picked up by the local media, and
provoked a public outcry in Victoria which included calls to challenge the validity of the South
Australian legislation. The Victorian Attorney-General picked up the matter, despite repeated
statements by the South Australian Premier that section 24B of the Transplantation and
Anatomy Act 1983 (SA) was a direct initiative aimed at addressing the epidemic of end-stage
renal disease among remote aboriginal communities located within the State.
You are the Solicitor-General for Victoria, and must develop and outline
the grounds upon which Victoria will challenge the South Australian
provision in the High Court.
However, in the event that the High Court challenge fails, you should also
write a short brief for the Attorney-General on whether the
Commonwealth could override the South Australian provision by relying
on the races power.
QUESTION 3
On 3 December, the South Australian Ministers for Health and Education jointly announced a
new grants scheme within the State under which research teams within South Australian
medical schools could apply for funding to support research into reproductive medicine. The
scheme was to be partly funded by moneys raised by the Reproductive Services Licence Fee,
established under s 27C of the Transplantation and Anatomy Act 1983 (SA) - of which 90%
would flow directly into the new grants scheme.
The Monash Institute is a Victorian based company that provides reproductive health services
within Victoria, South Australia and New South Wales. Their principal competitor within South
Australia is Flinders Private Hospital (owned and operated by a SA based company) and
ReproMed (a private company operating in 2 States and the Northern Territory).
Advise the Monash Institute, who wishes to challenge the constitutional
validity of the South Australian Reproductive Services Licence Fee,
implemented under s 27C of the Transplantation and Anatomy Act 1983
(SA). Advise them of the arguments that may be made on their behalf, as
well as their likely success.
63
64

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LAWS 2008

INTRODUCTION & OVERVIEW OF

CHARACTERISATION & THE

THE ART OF ADVOCACY

SKILLS: APPEARANCES AND

MOOT 1 - CHARACTERISATION &

ENTRENCHED FREEDOMS (SS

MOOT 2 - THE EXTERNAL

FEDERAL JUDICIAL POWER

STATE JUDICIAL POWER

MOOT 5 - JUDICIAL POWER

Tutorials Tutorial 9.10am11.00am

Tutorials Tutorial 9.10am11.00am

Tutorials PUBLIC HOLIDAY

Tutorials Tutorial 9.10am11.00am

Tutorials Tutorial 9.10am11.00am

Tutorials Tutorial 9.10am11.00am

Tutorials Tutorial 9.10am11.00am

Tutorials PUBLIC HOLIDAY

Tutorials Tutorial 9.10am11.00am

WEEK ONE - LECTURE

Introduction & Constitutional Interpretation

WEEK ONE TUTORIAL

Introduction to the Constitution

Chapter I - the Legislature

WIRELESS TELEGRAPHY ACT 1905

WEEK TWO - LECTURE

Federalism & intergovernmental Immunities

IMPORTANT CASES ESSENTIAL READING

G Williams, S Brennan & A Lynch, Australian Constitutional Law and Theory:

Chapter 6 Federalism and the Engineers Case(pages 232-261);

o Chapter 25 Intergovernmental Immunities (pages 1082-1131)

State Immunity From Commonwealth Laws

Commonwealth Immunity From State Laws

WEEK TWO TUTORIAL

Think on their feet;

Work to set deadlines under pressure;

Work as a member of a team;

Research the law in a timely and effective manner; and

Part 2 Constitutional interpretation: the Races power

IMPORTANT NOTE: The Lecture/Workshop this week will be held in JS3-13A/B.

WEEK THREE - LECTURE

Characterisation & the

IMPORTANT CASES ESSENTIAL READING

Bank of New South Wales v Commonwealth (Bank Nationalisation Case) (1948) 76

Part 3 Characterisation and the trade and commerce power

Part 4 Incidental laws, purposive laws and proportionality

7. Examination of Leask v Commonwealth and the exploration of the role of proportionality.

8. AG (WA) v Australian National Airlines Commission

WEEK THREE - TUTORIAL

Part 1 Courtroom etiquette

Part 2 Intergovernmental immunity

WEEK FOUR - LECTURE

IMPORTANT CASES ESSENTIAL READING

Freedom of Interstate Trade and Commerce (s 92)

Cole v Whitfield (1988) 165 CLR 360;

Taxation Power (s 51(ii))

Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263;

Excise Duties (s 90)

Peterswald v Bartley (1904) 1 CLR 497;

WEEK FOUR TUTORIAL

The submissions concern the constitutional validity of the following

WHEAT EXPORT ACT 1989

Objects of the Australian Wheat Board