Constitutional Law - EXAM-NOTES
Constitutional Law - EXAM-NOTES
NOTES
CHARACTERISATION+INTERPRETATION
(LECTURE 1)
INTERPRETATION
The significance of the Engineers Case for interpretation of the Cth Constitution
Judges no longer interpret the Constitution importing external (cf internal)
principles (in particular – no more reserved power doctrine)
Constitution is interpreted giving words their natural meaning in context
o Textualism: giving words of the Constitution their natural meaning
unconstrained by unnecessary implications or preconceived ideas about
the federal balance
o Legalism: judges should make their decisions by reference to legal sources
and materials (not external sources)
This has expanded the scope of Cth powers
o E.g work choices
Critics
o It is positive: a more stable method of interpretation that doesnnt allow for
importation of judicial values
o It is negative: it has destroyed the federal distribution of powers the
drafters of the constitution intended
What is interpretation?
Jumbunna Principle
o ‘...where the question is whether the Constitution has used an expression in the wider or
in the narrower sense, the Court should, in my opinion, always lean to the broader
interpretation unless there is something in the context or in the rest of the Constitution to
indicate that the narrower interpretation will best carry out its object and purpose’
The dual effect of the Engineers Case and the Jumbunna principle is that the
Commonwealth’s powers are broadly interpreted:
o ‘A power to make laws “with respect to” a specific subject is as wide a
legislative power as can be created. No form of words has been suggested
which would give a wider power. The power conferred upon a Parliament by
such words in an Imperial statute is plenary – as wide as that of the Imperial
Parliament itself ... But the power is plenary only with respect to the specified
subject’: Bank Nationalisation Case per Latham CJ).
CHARACTERISATION
What is characterisation?
Characterisation is the process of determining whether a Cth law can be described as
a law ‘with respect to’ a head of Cth power
Cth law will prevail over state law if there is any inconsistency
o
States and territories can legislate areas that the parliament have not been
o
given powers to legislate on
Heads of Power in the Commonwealth Constitution (Section 51)
Entrust certain law-making powers in the Commonwealth
Section 51 and 52 accord certain law-making powers to the Commonwealth
Parliament
The Parliament is authorized to make laws ‘with respect to’ these powers (no duty on
the commonwealth to use this power, they are just authorised)
The States may legislate within the areas covered by section 51 (but not section 52)
subject to section 109 (inconsistency) [where there is inconsistency, the commonwealth
law takes priority over state law]
Subject Matter v Purpose Powers
The HC divides the HoP in sections 51 and 52 into ‘subject matter’ and ‘purpose’
powers
A different test of characterisation is applied depending upon how the HoP is
categorised
For subject matter HoP a ‘sufficient connection’ test is applied
For purpose HoP a ‘proportionality’ test is applied
The ‘purpose’ powers so far identified by the HCC are: the ‘defence power’
(s51(vi)) and the ‘external affairs’ power (s51(xxix)
Single Characterisation
Characterisation was once guided by a search for the ‘pith and substance’, or ‘single
character’ of the law
(R v Barger (1908)), the majority held that the purpose of the Excise Tariff Act
1906 (Cth) was ‘not to raise money for the purposes of government, but to
regulate the conditions of labour’ (74):
o Good example of single characterisation, the HC said need to interpret
the scope of the legislation narrowly and then need to identify the
single character of the legislation – not a law about taxation, instead
conditions of labour, therefore does not fall within s90 (excise powers)
Dual Characterisation
Characterisation: process of interpreting Cth law
Cth can have more than one subject matter/purpose. (e.g. a speed lmit could be characterised
as aa law about road safety or a law about cars)
o Subject matter:
What the law is doing
The rights, duties, powers and privileges which the law changes, regulates or
abolishes (Fairfax, Kitto J; First Uniform Tax, Latham CJ)
A law will be a law ‘with respect to’ a subject matter if it has a sufficient connection to that
subject matter (Re Dingjan, McHugh J)
Has the effect of expanding Cth legislative power:
o Cth has enumerated powers (law must be capable as being characterised as falling
within a Cth HoP)
o States have residual powers (the leftovers)
o Cth ultimately has control over areas within the scope of it’s HoP’s because of s 109
The law can have multiple characters, only one needs to relate to the head of power – how do
you connect the two – sufficient connection test
Re Dingjan per McHugh J: ‘If a connection exists between the law and a s 51 HoP,
the law will be “with respect to” that HoP unless the connection is, in the words of
Dixon J [Melbourne Corporation], “so insubstantial, tenuous or distant” that it cannot
sensibly be described as a law “with respect to” the HoP’
Grain Pool
First, the constitutional text is to be construed “with all the generality which the words
used admit”
Secondly, the character of the law in question must be determined by reference to the
rights, powers, liabilities, duties and privileges which it creates
Thirdly, the practical as well as the legal operation of the law must be examined –
what is the law doing
Fourthly, it will be valid notwithstanding that there is no independent connection
between the two subject matters (one within s51 and one fall out s51)
Finally, if a sufficient connection with the HoP does exist, the justice and wisdom of
the law, and the degree to which the means it adopts are necessary or desirable, are
matters of legislative choice
Unconstitutional statutory provisions may be ‘read down’: ‘If the impugned statute is capable
of bearing two meanings, one of which would render it invalid and the other which would
render it valid, the latter is to be preferred’ (Public Service Association of SA per Heydon J).
If unconstitutional statutory provisions cannot be read down, it may be possible for them to
be ‘severed’. Alternatively, the statute as a whole may be invalid.
A finding of invalidity will normally mean that the statutory provision is void ab initio i.e.
void from its inception.
The techniques of reading down and severance accord with s 15A of the Acts Interpretation
Act 1901 (Cth):
‘Every Act shall be read and construed subject to the Constitution, and so as not to exceed the
legislative power of the Commonwealth, to the intent that where any enactment thereof
would, but for this section, have been construed as being in excess of that power, it shall
nevertheless be a valid enactment to the extent to which it is not in excess of that power.’
S51(i) the parliament shall, subject to this Constitution, have power to make laws for the POGG
of the Cth with respect to trade and commerce with other countries, and among the states.
o Other HoP can be used to create legislation re trade and commerce (doctrine of multiple
characterisation)
o The High Court has sought to maintain the distinction between trade and commerce ‘with
other countries’ and ‘among the States’, and ‘intrastate’ trade and commerce. (burgess)
o Section 51(i) also enables the Commonwealth both to regulate and participate in trade
and commerce with other countries and among the States.
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 - re tracing back along chains of
production*s109
Facts: concerned the effect of a licence issued under regulations which prohibited the export
of meat unless the premises used for slaughter, treatment and storage met certain health
requirements, and were registered.
Fullagar J: I would think it safe to say that the power of the Commonwealth
extended to the supervision and control or all acts or processes which can be
identified as being done or carried out for export. The “slaughter for export” of stock
is such an act or process...
As Joseph and Castan observe, ‘The same result may well not have arisen had the
regulations concerned a production activity which could not be so clearly
differentiated from production for the purposes of intrastate trade’
Export of goods clearly falls under s51(1).
however does this power apply at the point of exit/entry?
Held: yes, permissible for the Cth to have regard to how the products were
prepared in the first place –s51(1) incidental power can reach back along the chain
of production –> it is not confined to the time or point of export
Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492
Stephen J: ‘Does, then, s 51(i), by its grant of legislative power over interstate trade
and commerce, incidentally include a grant of power to legislate for intrastate trade
and commerce when its only relationship to interstate trade and commerce lies in the
fact that the purpose of engagement in such intrastate activity is to conduce to the
efficiency, competiveness and profitability of the interstate activity?’ (508).
‘[In the Second Airlines Case] Kitto J drew a distinction between a law protecting
from the danger of physical interference an activity within power and one which
prevents prejudice to matters merely consequential to such an activity, as for instance
the profitability of interstate commercial air navigation ... In light of the foregoing it is
apparent that the permitted exercise of the power conferred by s 19B ... extends
beyond the ambit of that incidental power which s 51(i) carries with it’ (510-511).
However, by 3:2 the legislation was held to be valid insofar as it relied upon the Territories
power (s 122).
CORPORATIONS POWER s51(20)
S51(xx) the Cth Parliament shall, subject to this Constitution, have power to make laws for
the peace, order and good government of the Cth with respect to foreign corporations, and
trading or financial corporations formed within the limits of the Cth.
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330: (overthrown by concrete
pipes)
The majority held that s51(xx) should be construed narrowly, but were not able to
agree on an appropriate interpretation
o Their approach reflected the perceived need to protect ‘the reserved powers of
the States’ which was abandoned in the Engineers Case
o This is because there was a fear that a broader interpretation might prove
uncontrollable
Isaacs J dissent in this case – he believed that it should be given a broad/wide
interpretation
o All judges are willing to put a limitation on the corporations power, but we see a
fracturing of how this should be achieved.
o Griffith seeking to impose limits drawn from another head of power – trade
and commerce
o Higgins, seeking to impose a different kind of limit, broader than that of
Griffith
o Isaacs, willing to expand commonwealth power more than the other judges,
still seeking to impose a distinction between the external affairs which fall
within Commonwealth legislative power and the internal affairs of the
corporation that do not
WHICH CORPORATIONS?
Foreign corporations
New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482
Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ: ‘To fall within
the [foreign corporations] limb, a corporation must be ... formed outside the limits of
the Commonwealth’ (498).
Trading Corporations
R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533:
Split in the court about whether a corporation is a constitutional corporation or not
Gibbs (majority):
• employed the purpose test – necessary to determine the true character of the
corporation by way of throwing light on its purpose for formation
• the proper conclusion in my opinion is that the County Council is a
corporation constituted for the purposes of local government to provide an
essential service to the inhabitants of an aggregation of local authority areas,
under conditions thought most likely to prove beneficial to them. It is properly
described as a municipal corporation’
Barwick (dissenting)
• ‘To say that a corporation’s description for relevant purposes will be
determined by its activities does not mean, of course, that a corporation which
to any extent engages in trade is a trading corporation. It is evident that the
legislative power given by s 51(xx) is not a power to legislate with respect to
trading. It is a legislative power with respect to some corporations. But a
corporation whose predominant and characteristic activity is trading whether
in goods or services will, in my opinion, satisfy the description...’
Financial Corporations
State Superannuation Board of Victoria v Trade Practices Commission (1982) 150 CLR
282
Mason, Murphy and Deane JJ (majority):
• approach to the ascertainment of what constitutes a “financial corporation”
should be the same as its approach to what constitutes a “trading
corporation”, subject to making due allowance for the difference between
“trading” and “financial”...’ (303).
• Activity test: investment activities: ‘The facts demonstrated the appellant
engages in financial activities on a very substantial scale’ (306) (the trading or
financial activity need not therefor be the corporation’s predominant activity
• “Even if we confine our attention to such aspects of the appellant's investment
activities as involve the making of commercial activities and housing loans. its
business in this respect is very substantial and forms a significant part of its
overall activities, No doubt these activities are all entered into for the end
purpose of providing superannuation benefits to contributors, but, as we have
seen, this circumstance constitutes no obstacle to the conclusion that the
appellant is a financial corporation”
Gibbs CJ and Wilson J (Dis)
• Mere quantity is not determinative. the financial activities of a corporation
may be substantial in a quantitative sense and yet no more than incidental and
therefore insignificant in relation to the other activities of the corporation
This was confirmed later in Tasmanian Dam case: the idea that a corporation will be a
trading or financial corporation if its trading and financial activities form sufficiently
substantial portions of its overall activities.
Fontana
Gibbs CJ: ‘The words of par (xx) suggest that the nature of the corporation to which
the laws relate must be significant as an element in the nature or character of the
laws, if they are to be valid…’ (182).
Vertical Fiscal Imbalance is the difference between the shares of revenue collection and of
expenditure among various tiers of governments (EG federal and states). Horizontal fiscal
equalisation is a response to this.
South Australia v Commonwealth (the First Uniform Tax Case) (1942) (later followed by
Victoria v Commonwealth (Second Uniform Tax Case) (1957)
Pre 1942 – both State and Federal income tax levied and States did so inconsistently
from each other.
Package of legislation put in place to increases Cth tax rate, put payment of Cth tax
prior to any state tax and other measures to put Cth tax first.
Cth grant of lost State tax income to States that ceased to levy tax.
HELD: scheme held by majority to be valid (except for reliance on incidental power
for priority of tax payments in Second Uniform Tax case).
Taxation power
S51(ii) ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace,
order, and good government of the Commonwealth with respect to:
…….
(ii) taxation; but so as not to discriminate between States or parts of States; ’
Important provisions
S51(ii): Power to make laws with respect to Taxation but so not to discriminate between
states or parts of states
S81: All taxation must go into the Consolidated revenue fund to then be appropriated for
purposes (read with s83)
Procedural provisions
S53: Senate can’t propose or amend any taxation bills
o May be non-justiciable when dealing with acts not proposed laws -Northern Suburbs
S55: Laws imposing taxation shall deal only with the imposition of taxation, and any
provision therein dealing with any other matter shall be of no effect.
o Air Caledonie: Amendment is invalid if insert tax into non-tax not the prior act
Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with
one subject of taxation only; but laws imposing duties of customs shall deal with duties of
customs only, and laws imposing duties of excise shall deal with duties of excise only.
Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263, 276: What is a tax?: a
compulsory exaction of money by a public authority for public purposes, enforceable by law,
and is not a payment for services rendered’.
Air Caledonie International v Commonwealth While both positive and negative elements
must be taken into account these are not definitive or ‘exhaustive’
IS:
- Compulsory exaction of money
- Enforceable by law
- Exacted by a public authority for public purposes
ISN’T
- A fee for service or licence fee
- A fine or penalty
- Arbitrary
Ask, do we know from the facts whether the money is going into the consolidated revenue fund?
FACTS: A ‘fee for immigration clearance’ on incoming airline passengers (citizens and non-
citizens) by airlines introduced by s 34A which was inserted into Migration Act 1958 (Cth)
by s 7 of the Migration Amendment Act 1987 (Cth). Airlines then paid fee onto Government
even if passenger had not paid it.
DECISION
While both positive and negative elements must be taken into account these are not definitive
or ‘exhaustive’
➢ This fee for immigration meets the 3 positive attributes → prima facie attached → compulsory, public
purpose & enforceable
➢ Looking at negative criteria → if this fee were only applicable to non-Australian citizens, it would have
been arguable that it was not a tax because it could be considered a fee for the privilege of entering
Australia.
o But it applies to everyone, indifferently. It does not matter what their citizenship is, payable by
both Australians and non-Australians: therefore it cannot be a fee for a privilege of entry as
Australians are allowed to enter the country without the need for Executive clearance.
o If it was actually just to non-Australians, it wouldn’t have mattered whether it was for services
rendered, it would not have been a tax.
➢ Not a fee for service rendered:
1. Request: Any requirement to submit to immigration procedures cannot be a service that is at the
request. It is being imposed on you instead. No choice about whether or not to acquire the service →
therefore it can’t be considered a ‘service’
- no ‘particular services provided’ because it is being imposed, there is no
choice
DECISION
Fee was not imposed to raise revenue, they were to recover cost of providing services.
A law is characterised as with respect to taxation even if raising revenue is the secondary, not
primary purpose - Northern Suburbs, Fairfax
(a) Discrimination: (must not discriminate between States or parts of States) – s51(ii)
+s99 (Moran, Fortescue
s 51(ii) precludes tax being levied in a discriminatory way between States or parts of States
and s 99 prevents the Cth from ‘giving preference to one State or any part thereof over
another State or any part thereof’ at least ‘by any law or regulation of trade, commerce, or
revenue’
‘discrimination’
Fortescue Metals –
Concerned whether Minerals Resource Rent Tax contravened s 51(ii) or s 99. The taxable
payable was related to level of State royalties payable and these varied nationally.
per Kiefel J: If a Commonwealth taxation law provides that the same measure is to apply to
all persons or things subject to the tax, it would not generally be regarded as likely to
discriminate in fact. Where a difference results from the operation of a taxation law, the
question arises whether that difference is accounted for by the geographical situation of the
subject of the tax. Importantly, for there to be the discrimination of which s 51(ii) speaks, the
difference must be produced by the Commonwealth law itself and by reference to that
geographical situation. There may not be discrimination where the difference results from the
provisions of a State law. Section 51(ii) does not prohibit a taxation law from operating
differentially in all respects. It does not require that a taxation law control the effect of other,
external, factors which may be productive of a difference’.
Moran (1939)
FACTS – Federal tax was levied on flour millers. The Wheat Industry Assistance Act 1938
(Cth) gave grants to the States which were given on condition that the money was given to
growers. Tasmania did not have any wheat growers so condition was that money given to
flour millers.
Latham CJ – no discrimination when identical tax applied to all flour millers.
‘preference’
Crowe v Commonwealth, Elliot v Commonwealth: preference means a ‘tangible advantage’,
only applies (under s 99) if ‘law or regulation discriminates between those states’
(Queensland Nickel)
Appropriation is simply the ‘earmarking’ of money – the setting aside money for a particular
purpose – Pape
S81 does not create a legislative power to confer on the Executive the power to spend what is
appropriated – Pape
Per Combet and Wilkie, the appropriation of money from the Treasury under s83 may be done
so under a very general purpose – Combet with a degree of specificity determined by the
Parliament – Wilkie.
S81 and s83 are not the source of the Commonwealth’s power to spend money – Williams
Pape: Spending must fall within the scope of a legislation within the Commonwealths HOP
or by the executive powers under s 61
If spending is not valid - the commonwealth can just use the grant power
Pape
enacted to fund stimulus payments during the global financial crisis
For majority – expenditure supported by legislative nationhood power – s 61 coupled
with s 51(xxxix).
Heydon J: Section 81 does not create a “legislative power” to confer on the Executive
the power to spend what is appropriated.
HELD – with some exceptions, typically valid Cth legislation required to support
spending of money previously appropriated from Consolidated Revenue Fund.
-spending here invalid by majority as lacked a constitutional basis whether legislative
or constitutional (such as executive action giving effect to statute, prerogative power,
nationhood power or the ‘ordinary and well-recognised functions of Government’).
S 96 During a period of ten years after the establishment of the Commonwealth and thereafter until
the parliament otherwise provides, the parliament may grant financial assistance to any state on such
terms and conditions as the parliament thinks fit.
Through Federal Roads, and First/Second Uniform Tax, the grants power is construed very broadly as
they have the power to any such terms and conditions as the parliament thinks fit.
Dixon J’s narrow view has not prevailed
South Australia v Commonwealth (the First Uniform Tax Case) (1942) 65 CLR 373
HELD: States Grants (Income Tax Reimbursement) Act 1942 (Cth) majority found that
supported by s 96 (Starke J dissenting)
Latham CJ:
a. Can induce: ‘there is no legal compulsion to yield…Action may be brought about
by temptation – by offering a reward – or by compulsion. But temptation is not
compulsion’ (at 417)
b. Can create ‘the need for assistance’ which s 96 is then used to address (at 413)
c. Can’t coerce: ‘But the position is radically different, it is urged, if the so called
inducement practically amounts to coercion…the Commonwealth Parliament
could not pass a law compelling a State to surrender the power to tax incomes or
prohibiting the exercise of that power by a State…a person whose hand is
physically propelled by another person against his will so that it strikes a blow is
not guilty of assault, But it would be no defence to allege that he really could not
help striking the blow because he was offered £1000 for doing it’ (at 417).
d. Can give preferential State treatment: ‘Discrimination in expenditure between
States is found in every Commonwealth budget’ (at 429)
Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 –Uniform tax
arrangement ceased to be temporary
States Grants (Tax Reimbursement) Act 1946-1948 (Cth) – valid
Dixon CJ – emphasised that s 96 is a power ‘to grant money’ and ‘may be taken to
fall short of authorising a special attempt to control the exercise of the constitutional
powers of the States’ (at 610)
-can impose terms and conditions on grant of funds and ‘money may supply the
inducement to comply with the term or condition’ (at 610).
(a) States can’t be legally forced to accept grant on conditions imposed, but economic
inducement is permissible
Second Uniform Tax Case
Dixon CJ at 609: ‘By coercive law is meant one that demands obedience
(b) Can’t impose unconstitutional or illegal conditions on States (First and Second Uniform Tax
Case) (eg you can’t violate a constitutional provision for example section 92, or s90)
(c) Can’t be used to evade limits on Cth power (such as s 116 Religion and in s 51 just
compensation) - ICM Agriculture. The states can still do so, but they cant be required to
do so - (Commonwealth could advise the States to acquire property not on just terms but cant
require it)
FACTS - related to intergovernmental water funding under the National Water Initiative
and a NSW project which used s 96 to provide a grant with conditions relating to bore
usage. Plaintiffs claimed this breached the requirement that property only be acquired on
just terms (s 51(xxxi))
Grants cannot be made under s96 under the pretence of financially assisting a State but with
the real objective or purpose of effectuating a discrimination in regards to taxation – BUT
difficult to prove this
The Commonwealth Treasurer, Sally Gifford, is concerned that the Commonwealth’s tax
revenue is likely to be significantly reduced due to COVID-19, leaving insufficient funds to
tackle the growing threat posed by climate change.
Sally introduces into the House of Representatives the Once in a Generation Change Climate
Fund Bill 2021 (Cth) (‘the Bill’). If enacted, it would compel a person worth more than $1
billion to pay a wealth tax at an incontestable minimum rate of 8% on all wealth above $1
billion to a ‘Once in Generation Climate Fund’ by 31 December each year. A billionaire
could elect to pay the tax at a higher rate depending on the contribution that they wish to
make to the Once in a Generation Climate Fund. It is estimated that at least 150 billionaires
would be subject to the Bill (with most residing in WA, NSW and Victoria) and their
contributions would be recognised by each receiving, and having installed by the
Commonwealth, a solid gold ‘Once in a Generation Climate Fund’ plaque, the size of which
will vary based on the tax paid.
Samara Safford is a tech billionaire who seeks your advice about the constitutionality of the
Bill if enacted.
Question 2
Assume the Commonwealth Parliament enacts:
• Fees and Charges (Small Shops) Act 2022 (Cth)
• Appropriation Act 2022 (Cth)
• State Grants (Assistance to Small Shops) Act 2022 (Cth)
Also assume that this Commonwealth legislation has been implemented to carry out one
aspect of the new Commonwealth Government’s “equality” policy. To put small shop
owners in the cities and metropolitan suburbs on an equal basis with farmers in non-
metropolitan country areas who during 2020-1 received Commonwealth Government
financial assistance in the form of drought relief, the above Commonwealth legislation
includes the following provisions:
Section 2 of the Fees and Charges (Small Shops) Act 2022 (Cth) requires that farmers must
pay a prescribed fee of $120,000 to the Commonwealth Department of Primary Industry to
obtain Commonwealth Government information and non-financial assistance relating to
farming unless a farmer shops at and spends $80,000 per annum at small city or metropolitan
shops.
Section 3 of the Appropriation Act 2022 (Cth) provides that the Commonwealth Treasurer
may issue out of the Commonwealth CRF up to $500m for the purpose of providing national
partnership grants to States including for disaster relief.
Section 4 of the State Grants (Assistance to Small Shops) Act 2022 (Cth) provides that the
Commonwealth Minister for Trade may give to one or more States up to a maximum of $50m
to pay off small shop loans and develop new small shop enterprises on condition that the
State agrees to cease collecting State taxes from small shop owners.
Susan Smith, a wheat farmer, in Kalgoorlie has received more than $750,000 in
Commonwealth drought relief payments and seeks your constitutional law advice.
Section 2
Introduction
The advice that follows is for Susan Smith who wants Section 2 of the Small Shops Act 2022
to be found invalid so as to not pay the 120,000. The relevant head of power for the act is
s51(ii) which gives the Commonwealth Power to legislate with respect to taxation.
- We don’t really know if its going into the CRF. Talk about implications of if it
doesn’t or does go.
- Benefiting public at large not merely enforcing private rights – Luton
- It is a fee for services?: probably not
- Is it a penalty
A law is characterised as with respect to taxation even if raising revenue is the secondary, not primary
purpose - Northern Suburbs. The law issues a tax and because of the doctrine of dual characterisation
– Fairfax, the law is with respect to taxation.
Conclusion
Section 4
Section 96 empowers the Cth to grant financial assistance to any state on such conditions they see fit.
This grant [description of grant]. The issue is whether this is a valid exercise of s96.
Then look at limitations.
Difficult to challenge if you see this as a grant of assistance as opposed to controlling state power.
Arguments from ICM: You’re using the s96 grants to circumvent that restriction. The Commonwealth is not
acquiring the property, it is paying the States to acquire the property as they do not have that acquisition
requirement to provide ‘just terms.’
French CJ, Gummow and Crennan JJ
➢ Commonwealth cannot grant money to a State with a term and condition requiring that State to acquire
property not on just terms. S51(31) doesn’t apply directly to the States, but you can’t use the States to do
the Commonwealth’s dirty work [170] 779.
o ‘The construction involves looking beyond matters of legal form and to the practical effect
of the law in question' about the relationship between s51(31) and s96.
o Refers to the term ‘circuitous device.’ → The banks and shareholders were stripped of
possession and control of their entire undertaking without compliance with s51(31) → in an
informal way. It was done without compliance with s51(31). Dixon J in Magennis used the
expression said it cannot be used.
o S51(31) is a ‘very great constitutional safeguard’…s51(31) ‘has assumed the status of a
constitutional guarantee of just terms…and is to be given the liberal construction appropriate
to such a constitutional provision.’
➢ There seem to be exceptions however. In particular, they talk about the Pye v Renshaw exception.
➢ The Court seems sceptical of this to some extent.
➢ Cast some doubt on whether it’s possible to get around these restrictions by inserting the TCs in an
informal agreement.
➢ Grant that has no Terms and Conditions but there is a side letter (you must do this). An informal
agreement, to get around it, may not reflect a correct understanding of s96 and its relationship with s51 of
the Constitution. [168] 778
➢ The State acquiring the property made reference to the Grant. It was held to be invalid. If there is a clear
link between the law acquiring property and the grant → using the Grant’s power to get around the
constitutional limit in s51(31) and it is therefore invalid.
➢ The informal agreement recouples them in a way.
➢ Magennis should not be opened up or overturned.
➢ S96 and s51(31) should be read together. Magennis is a persuasive analogy (respecting the relationship
between s96 and s116 → freedom of religion)
SUMMARY:
➢ The Cth has a broad power to impose TCs on grants. They can impose TCs that require the States to
pay the money to a non-government entity and can impose TCs that do not relate to a head of power
(DOGS case).
➢ Commonwealth Parliament cannot issue a grant that violates the limitations and restrictions contained
elsewhere in the Constitution. S51(31) and freedom of religion prohibition (Moran and ICM)
➢ Note that the Court has sometimes taken a formal or narrow approach. They have not adopted a very
practically oriented view of the issue at all times. Particularly they have allowed a connection between s96
grant and State law that might be violating the prohibition to be severed. Though there is nothing in the
State law saying that it is acting pursuant to the Cth grant (decoupled), Pye suggests you can use it to get
around it. It was not overruled in ICM. But must say that the Court has expressed some doubts about this.
The Court has certainly questioned the ability to use circuitous devices (informal agreements). Uncertainty
→ Either (Arlen approach)
➢ It is very difficult to demonstrate that s96 grant is violating probation in s51(2) as s96 does allow
discrimination between States and it seems like a broad allowance. (2nd uniform Tax case and
Moran’s) Broad discrimination is permissible under s96, even though formally, Moran says you can't use
it to violate s51(2). It reality, it is impossible to think of a situation where it would actually be violated.
IMPLIED FREEDOM OF POLITICAL
COMMUNICATION
The implied freedom of political communication is
- implied instead of express;
- restricted to political communication instead of expression generally; and
- operates as a limitation instead of a right vested in individuals.
Cases
Lange involved the scope of the common law doctrine of defamation
Coleman involved a provision that prevented the using of insulting words in a public
place. Ruled an illegitimate burden and thus invalid
Monis involved a provision that prevented the use of the postal service to harass or
offend. Valid HCA 3:3 split Thus NSWCA decision applied. (Not a strong maj – note
this in hypos)
McCloy Legislation imposed caps on state political donations and prohibited
donations by certain groups (mainly property developers) Was held valid.
The two leading cases that established that the Constitution embodies an implied freedom of
political communication:
- Nationwide News Pty Ltd v Wills (1992)
- Australian Capital Television Pty Ltd v Commonwealth (1992)
Facts:The publisher had been prosecuted under the Industrial Relations Act 1988 (Cth) which
provided that: ‘A person shall not ... by writing or speech use words calculated ... to bring a
member of the [Industrial Relations] Commission or the Commission into disrepute.’ The
prosecution related to an article published in The Australian which spoke of the right to work
as ‘regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of
labour and enforced by a corrupt and compliant “judiciary” in the official Soviet-style
Arbitration Commission.’
HELD (unanimous): the section was invalid
Deane and Toohey JJ
Since the Engineers, the approach of constitutional interpretation starts with looking
at the text, this case was different. There was a rejection of the textualism of the
Engineers case – looking at the principles underlying the constitution. There are
shades of Dworkinian interpretation n Dean and Toohey’s Judgement. Why? Because
Dworkin is saying you must look at the moral principles underneath the law to
understand its basis.
Facts
Involved a challenge to the validity of the Political Broadcasts and Political
Disclosures Act 1991 (Cth), Pt IIID of which imposed a blanket prohibition on
political advertisements on radio or television during federal election periods (ie
during this period, there could be no political advertising by the political parties)
The Act also established a scheme of ‘free time’ for political advertising, 90% of
which was reserved for parties represented in the previous Parliament and fielding a
prescribed number of candidates.
o Beyond that, political advertising was prohibited
oRationale for the legislation – issue of spending, it shouldn’t be the case where
political parties with a big financial background could spend more than others;
another aspect was that if there was pressure to raise money, this becomes a
necessity and therefore it could lead to corruption
ISSUE: whether Pt IIID was invalid because it infringed a constitutionally guaranteed
freedom of political discussion.
HELD: wholly invalid on that basis (Mason CJ, Deane, Toohey and Gaudron JJ)
Judgement
Concerned a member of the Commonwealth Parliament and the former chairman of its Joint
Parliamentary Committee on Migration, Dr Andrew Theophanous, sued for defamation
following the publication in a newspaper of a letter to the editor by Bruce Ruxton.
The letter attacked Theophanous’ immigration policies and accused him of bias arising from
his ethnic background. Eg reputation
In response, implied freedom of political communication was invoked
McHugh J (dissenting)
- ‘...it seems to me that those judgments in Australian Capital Television and
Nationwide News Pty Ltd v Wills that hold that the institution of representative
government is part of the Constitution independently of the terms of certain sections
of the Constitution unintentionally depart from the method of constitutional
interpretation that has existed in this country since the time of the Engineer’s Case’
(202).
In Lange, the High Court unanimously affirmed the existence of the implied freedom of
political communication but tied its rationale more narrowly to ss 7 and 24 of the
Commonwealth Constitution.
Also, in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, the
High Court considered the compatibility of a municipal by-law with the implied freedom of
political communication.
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Mason CJ, Toohey and Gaudron JJ: ‘Indeed, in our view, the concept is not
exhausted by political publications and addresses which are calculated to influence
choices. Barendt states that ((15) Freedom of Speech, (1985) at 152): ‘Political speech
refers to all speech relevant to the development of political opinion on the whole
range of issues which an intelligent citizen should think about’ (123).
Kiefel CJ, Bell and Keane JJ: ‘A discussion between individuals of the moral or
ethical choices to be made by a particular individual is not to be equated with
discussion of the political choices to be made by the people of the Commonwealth as
the sovereign political authority’ [29]. MORAL DISCUSSION IS NOT
NECESSARILY THE SAME AS POLITICAL COMMUNICATION
The statute was upheld by the majority, but subject to a particular statutory interpretation.
The words in the statute should be read as referring to ‘provocative speech’.
Majority:
Gummow and Hayne JJ:
in order for the statute to apply, it’s not enough if the words are merely insulting
or offensive, the point is at which language becomes provocative, which carries a
very specific meaning according to the majority judgment. That is intended to
provoke, or likely to provoke unlawful physical retaliation.
When looking at the impugned law, it needs to be read down in such a way so that
it is not regulating the civility of discourse.
Kirby (also majority):
‘One might wish for more rationality, less superficiality, diminished invective and
increased logic and persuasion in political discourse ... From its earliest history,
Australian politics has regularly included insult and emotion, calumny and
invective, in its armoury of persuasion. They are part and parcel of the struggle of
ideas’. Offensive communication part of the political process in Australia
Gleeson CJ (dissenting):
‘It is open to Parliament to form the view that threatening, abusive or insulting
speech and behaviour may in some circumstances constitute a serious interference
with public order, even where there is no intention, and no realistic possibility,
that the person threatened, abused or insulted ... might respond in such a manner
that a breach of the peace will occu’.up to the parliament to determine what
speech may be curtailed
Facts
Criminal Code (Cth) Section 471.12 A person is guilty of an offence if:
(a) the person uses a postal or similar service; and
(b) the person does so in a way ... that reasonable persons would regard as being, in all the
circumstances, menacing, harassing or offensive.
o Monis had been writing letters to relatives of soldiers who had been killed in Iraq and the
form of the letters were insulting about soldiers who had been killed (there was also
political content to these letters). He was charged.
o The accused sought to have their indictments quashed on the basis that s 471.12 infringed
the implied freedom of political communication.
o He was convicted under the statute. He appealed in light of Coleman. He argued that the
section was invalid and breached implied freedom of political communication
French CJ, Hayne and Heydon JJ found the provision was not valid
Hayne J: ‘...s 471.12 is not directed to a legitimate object or end. The elimination of
communications giving offence, even serious offence, without more is not a legitimate object
or end ... Giving and taking offence are inevitable consequences of political debate and
discourse’.
French and Hayne = draws on Coleman – said that yes the letters were insulting but that is
political discourse (so deal with it)
Heydon = he didn’t want to allow the legislation and wanted to convict Monis but allowed it
because he had to begrudgingly accept the implied freedom of communication.
Kiefel CJ, Bell and Keane JJ: ‘The object of the prohibition is to protect the safety
and wellbeing, physical and emotional, of persons accessing and leaving abortion
clinics and to ensure that women may have unimpeded access to, and doctors may
provide, terminations’ [122].
Gageler J: ‘...the better explanation of [Coleman and Monis] is that protecting against
unwanted or offensive communications is a permissible purpose the capacity of which
to justify a burden on freedom of political communication can vary in different
contexts’ [196].
IN SUMMARY
Facts
About political donations – the Election Funding, Expenditures and Disclosures Act 1981
(NSW) imposed a cap on political donations, prohibited indirect campaign contributions, and
prohibited the making of political donations by property developers (due to potential
corruption).
M was a property developer in NSW and was unhappy and argued that this breached his
political communication.
McCloy argued that political donations are a form of political communication.
HELD: the law did not burden the implied freedom of political communication
French CJ, Kiefel, Bell and Keane JJ developed the Lange test as follows:
1. Does the law effectively burden the freedom in its terms, operation or effect?
2. Are the purpose of the law and the means adopted to achieve that purpose
legitimate, in the sense that they are compatible with the maintenance of the
constitutionally prescribed system of representative government’ (compatibility
testing)?
3. Is the law reasonably appropriate and adapted to achieve that legitimate purpose
(proportionality testing)?
Regarding step (1), ‘even a “little” burden on the implied freedom qualifies as an “effective”
burden for the purpose of the first limb of the Lange test’ (Monis v The Queen (2013) 249
CLR 92 at [173] per Hayne J)
Regarding step (2), a ‘legitimate purpose is one which is compatible with the system of
representative government provided for the by the Constitution...’ (McCloy v New South
Wales (2015) 257 CLR 178 at [31] per French CJ, Kiefel, Bell and Keane JJ).
Regarding step (3), in McCloy v New South Wales (2015) 257 CLR 178 at [2] French CJ,
Kiefel, Bell and Keane JJ held that proportionality entails a further three steps:
1. Suitability: Does the law have a rational connection to the purpose of the
provision?
2. Necessity: Is there an obvious and compelling alternative, reasonably practicable
means of achieving the same purpose which has a less restrictive effect on the
freedom?
3. Balancing: The Court must make a value judgment, consistent with the limits of
the judicial function, describing the balance between the importance of the
purpose served by the restrictive measure and the extent of the restriction that it
imposes on the freedom.
Not all members of the Court welcomed the adoption of structured proportionality.
Gordon J preferred the established ‘appropriate and adapted’ test: ‘The questions
stated for the opinion of the Court in this case are able to be answered by reference
to the known questions and tools’ [311].
In Clubb/Preston, five members of the Court – Kiefel CJ, Keane and Bell JJ, Nettle J and
Edelman J – endorsed structured proportionality.
However, Gageler J and Gordon J have continued to dissent on this issue e.g. Comcare v
Banerji (2019) 267 CLR 373 at [97] (Gageler J) and [161] (Gordon J).
In LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 Kiefel CJ, Keane and
Gleeson JJ, Edelman J and Steward J applied structured proportionality. Gageler J and
Gordon J declined to apply structured proportionality.
‘…it is arguable that the implied freedom does not exist. It may not be sufficiently supported
by the text, structure and context of the Constitution and, because of the continued division
within this Court about the application of the doctrine of structured proportionality, it is still
not yet settled law. The division within the Court over so important an issue may justify a
reconsideration of the implication itself’ [249].
Kiefel CJ, Bell and Keane JJ adjusted the Lange test as follows:
1. Does the law effectively burden the freedom in its terms, operation or effect?
2. Is the purpose of the law legitimate, in the sense that it is compatible with the
maintenance of the constitutionally prescribed system of representative and
responsible government?
3. Is the law reasonably appropriate and adapted to advance that legitimate object
in a manner that is compatible with the maintenance of the constitutionally
prescribed system of representative and responsible government? (Contains
further 3 steps)
‘In the present case the answer is clear. Protestors will be deterred from voicing
their protests with respect to forest operations. The freedom is burdened’ [95].
The purpose of the Act is to protect ‘businesses and their operations, here forest
operations, from damage and disruption from protestors who are engaged in
particular kinds of protests’ [101]. This purpose is legitimate [102].
Suitability
• Section 8(1)(b) fails the test of suitability: ‘It deters a person being in any
business access area on pain of arrest or penalty, even though they may not
present any threat of damage or disruption...’ [135].
• Sections 11(7) and (8) fail the test of suitability: they ‘effect a blanket exclusion of
a whole group of persons from an area by a single direction of a police officer,
even when the police officer could not conceivably have formed a view about
whether each person is about to contravene the Protestors Act’ [136].
Provision was found not to be rationally connected to the legislative aim, thus not
constitutionally valid.
Necessity
• The Forest Management Act 2013 (Tas) demonstrated that the impugned
provisions were not necessary.
• ‘...the premise of the FMA is that persons are able to access forest areas unless
the Forest Manager exercises its powers to exclude them. The Forest Manager
may only exercise those powers in order to perform its functions effectively or
efficiently, or in the interests of safety’ [110].
• ‘The Protestors Act operates more widely than its purpose requires. It is
principally directed to preventing protestors being present within ill-defined
areas...’ [140]
The Victorian Act and the Tasmanian Act effectively burden the implied freedom.
Step 2: Is the purpose of the law legitimate?
The Victorian Act and the Tasmanian Act have the legitimate purposes of protecting
the safety, well-being, privacy and dignity of persons accessing abortion clinics.
Step (3)
Suitability
The Victorian Act and the Tasmanian Act are suitable in that they are rationally
connected to the statutory purposes of protecting the safety, well-being, privacy and
dignity of persons accessing abortion clinic.
Necessity
The Victorian and Tasmanian Acts are necessary in that limiting requirements – e.g.
that the protests involve intimidation or harassment – would not provide reasonably
practicable alternatives.
Balancing
The Victorian and Tasmanian Acts are adequate in their balance in that the limited
interference with the implied freedom is not manifestly disproportionate to the
statutory objectives.
In Clubb/Preston, there was greater clarity about the areas within which the protests
were prohibited i.e. 150m.
In Brown, on-site protests were the primary means of publicising environmental issues
(Clubb v Edwards; Preston v Avery (2019) 267 CLR 171 at [81] per Kiefel CJ, Bell and
Keane JJ).
In Brown, on-site protests did not involve an attack upon the privacy and dignity of other
people (Clubb v Edwards; Preston v Avery (2019) 267 CLR 171 at [82] per Kiefel CJ,
Bell and Keane JJ).
SECTION 92
s 92 On the imposition of uniform duties of customs, trade, commerce and intercourse
among the States, whether by means of internal carriage or ocean navigation, shall be
absolutely free.
SKELETON
There are diverging approaches of the court in considering this issue: reasonable necessity
and structured proportionality.
Structured proportionality
A law will not infringe s 92 if it is ‘appropriate and adapted’ to achieving a legitimate state
objective - Castlemaine
Reasonable necessity
The majority in Betfair and Gageler J and Gordon J in Palmer favour a reasonable
necessity test. A similar conclusion would be reached in this approach.
Conclude
Facts
• Tasmanian regulations prescribed minimum sizes for crayfish
• Whitfield owned a crayfish farm
• Whitfield purchased some live crayfish from a farm in SA all above minimum
size prescribed by SA legislation but below minimum size prescribed by Tas
regulations
• Premises inspected and Whitfield charged with possession of 97 undersized
crayfish.
• Argued that the Tasmanian regulations breached s 92
Held
Unanimous decision that Tasmanian regulations did not breach s92
Reasoning
Drawing on ‘history and context alike’ s92’s effect on interstate trade and commerce was
only to guarantee ‘freedom from discriminatory burden’s in the protectionist sense’ (at 395)
The court found unanimously that:
- the Tasmanian regulations did not breach s92 because they were not discriminatory
in a protectionist sense on its face (applied to all crayfish equally) or in effect (no
market advantage to Tas industry)
- Even if there was an advantage, it was not protectionist when the measure was for a
legitimate State purpose (crayfish conservation)
- The purpose of the section is clear enough: to create a free trade area throughout Cth
and to deny to Cth and States alike a power to prevent or obstruct the free movement
of people, goods, and comm across State boundaries.
Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 (W [8.60])
Difficulty in applying the test due to complexity in the industry
Facts
• Business Franchise (Tobacco) Act 1974 (Vic) regulated the sale of tobacco in Vic
by requiring wholesalers and retailers of tobacco in Vic to acquire a licence.
• Wholesalers and retailers paid a licence fee calculated on the basis of the value of
25% of the amount of products sold during the previous licence period.
• Retailers were not required to include in this licence calculation tobacco originally
purchased from a licensed Vic wholesaler.
• Retailers who bought tobacco from interstate paid more for their licence fee than
Vic retailers who only bought tobacco from Vic wholesalers (because of the way
the licence fee was calculated).
• Proceedings brought vs Alston who had no licence to sell the tobacco in Vic that
he bought from Qld.
• Alston argued Act breached s 92
(basically act allowed you to get a cheaper licence to sell tobacco with a percentage of the
amount of tobacco (bought in Vic) that was sold last licence period deducted)
Held
Majority (Mason CJ, Brennan, Deane and Gaudron JJ) found that the legislation was
discriminatory in protectionist sense in form and substance
Minority (Wilson, Dawson and Toohey JJ)
Reasoning
Majority: legislation was discriminatory in protectionist sense in form and substance.
o At 429: ‘A tax upon retailers in respect of their trading in goods may burden
their trade in interstate goods consistently with the guarantee of s 92 only if it
applies equally to the interstate and local goods which the retailers sell; it
cannot lawfully discriminate between them so as to protect the local
goods’.
o It is the effect of tax on transactions in the market which is material. In this
case, the effect is on the supply of goods to that market.
Minority:
• Looked to practical operation & economic effect of the Act as a whole
• The fee on imported tobacco was merely removing an advantage and was not
discriminatory b/c it brought all to the same position and was competitively
neutral.
GOOD FOR COUNTER ARGUMENT FOR ‘MARKET DISADVANTAGE’
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 (W [8.80])(7:0)
Facts
Amendments to Beverage Container Act 1975 (SA) which imposed a 15c deposit for non-
refillable bottles but only 4c deposit where beer sold in refillable bottles.
These deposits were refundable
Issue
Did the law discriminate against beer brewed interstate in non-refillables? Did it protect SA
from interstate competition?
SA argued that it was about litter control and energy conservation and therefore not
protectionist.
Held
The law was discriminatory in a protectionist sense in relation to interstate trade because it
was not considered to be appropriate and adapted to litter control and energy conservation.
Reasoning
Mason CJ, Deane, Brennan, Dawson & Toohey JJ:
473: ‘legislative measures which are appropriate and adapted’ to a legitimate object will be
consistent with s92 ‘so long as any burden imposed on interstate trade was incidental and not
disproportionate to their achievement.’…the non-incidental or disproportionate burden may
show the true purpose of the law is to impose the impermissible burden.
Gaudron & McHugh JJ: particularly if there exist alternative means involving no or a lesser
burden on interstate trade.
RAA TEST:
Suitability: Does the law have a rational connection with a non-protectionist legitimate
objective
Necessity:
Balancing: A value judgment balancing the importance of the purpose of the burden and the
extent it restricts free trade.
Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 (W [8.120])
Facts
• Betfair Pty Ltd ran a betting exchange out of Tasmania.
• S 24(1AA) of the Betting Control Act 1954 (WA) made it an offence for a
person to bet through a betting exchange.
• S 27D(1) of the Betting Control Act 1954 (WA) made it an offence for a person
in WA or elsewhere to ‘publis[h] or otherwise mak[e] available a WA race field
in the course of business’ without prior approval.
• Betfair’s application for authorisation pursuant to s 27D(1) was denied.
• Betfair challenged the constitutional validity of ss 24(1AA) and 27D(1) on the
basis of s 92.
Held
provisions invalid by operation of s 92 in imposing a discriminatory burden on interstate
trade of a protectionist kind.
Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ:
Thought it was protecting betting operators acting within WA
Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 (W [8.120])
• Betfair Pty Ltd ran a betting exchange out of Tasmania.
• S 24(1AA) of the Betting Control Act 1954 (WA) made it an offence for a
person to bet through a betting exchange.
• S 27D(1) of the Betting Control Act 1954 (WA) made it an offence for a person
in WA or elsewhere to ‘publis[h] or otherwise mak[e] available a WA race field
in the course of business’ without prior approval.
• Betfair’s application for authorisation pursuant to s 27D(1) was denied.
• Betfair challenged the constitutional validity of ss 24(1AA) and 27D(1) on the
basis of s 92.
HELD: provisions invalid by operation of s 92 in imposing a discriminatory burden
on interstate trade of a protectionist kind.
Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ:
[101]-[102]: Proportionality between discriminatory burden and objective of the law –
use test of ‘reasonable necessity’ to decide if regulation is justified.
Betfair Pty Ltd v Racing NSW (2012) 249 CLR 217; Sportsbet Pty Ltd v New South Wales
(2012) 249 CLR 298 (W [8.140])
In dismissing s 92 challenges French CJ, Gummow, Hayne, Crennan and Bell JJ held at [36]
that:
‘Not every measure which has an adverse effect between competitors will attract the
operation of s 92. The “confined area” in which s 92 operates was emphasised in Cole v
Whitfield. Betfair must establish that the fee conditions imposed upon it…were unauthorised
because their practical effect is to discriminate against interstate trade and thereby protect
intrastate trade of the same kind.’
Not discriminatory in a protectionist sense because the fees applied to all operators
Facts
- Plaintiffs claimed that Directions made under the Emergency Management Act 2005
(WA) (‘the EM Act’) in response to the COVID-10 pandemic or the EM Act itself
burdened freedom of interstate intercourse by impeding free movement into Western
Australia.
- Alternatively, they claimed that s 92’s freedom of trade and commerce was
contravened by the Directions which imposed a discriminatory burden of a
protectionist kind.
Decision
Kiefel, Keane, Edelman applying a structured proportionality approach (reasonable necessity)
Gordon, Gageler reject structured proportionality but no embrace a reasonable necessity test
Found that the Act did not contravene s92
Gageler J:
• The guarantee of absolute freedom of interstate intercourse differs from …trade
and commerce only to the extent that absolute freedom of interstate intercourse
extends to freedom from discriminatory burdens of any kind.
• Purpose of s92: (identified in Cole v Whitfield) “to create a free trade area
throughout the Commonwealth and to deny to Commonwealth and States alike a
power to prevent or obstruct the free movement of people, goods and
communications across State boundaries” The constitutional purpose derives
from a structural imperative.
• the two limbs overlap. To the extent they overlap, the guarantee of each must be
observed.
• [139] ‘The standard of reasonable necessity so accepted for the purpose of s
92 as expressing the measure of justification demanded by the trade and
commerce limb for a law imposing a differential burden on interstate trade or
commerce, as I have already noted, equally expresses the measure of
justification demanded by the intercourse limb for a law imposing a differential
burden on interstate intercourse’
• Is against structured proportionality however
• my concern about structured proportionality as a tool of legal analysis is
with its rigidity
• the sequencing and linguistic precision of the standardised three-stage
test tends to obscure the purpose for which the overall inquiry is
undertaken. In consequence, it tends to lessen the sensitivity of the
overall inquiry to the constitutional values which underlie the
constitutional freedom protected by the constitutional guarantee at
stake’.
Practice Question
Due to concerns about the dwindling quality of bananas, Australia signs and ratifies the Banana
Quality At All Costs Convention (Convention). The Convention’s object is to ‘prevent the dwindling
quality of the world’s banana plantations through disease’ and provides as follows:
Article 4 - All Signatories acknowledge the need to prevent the spread of banana viruses
internationally and domestically and the importance of investigating measures to prevent the spread
of the Banana Bunchy Top Virus
To implement the Convention into Australian domestic law, the Commonwealth passes the Beautiful
& Bountiful Bananas Act 2005 (Cth).The Act provides as follows:
Section 15: ‘It shall be an offence for a “Non-Infected Australian State” to engage in the trade of
bananas with an “Infected Australian State”.
In Section 1:“Infected Australian State” is defined as a “State in Australia which has been notified by
the Minister as having banana crops infected with the Banana Bunchy Top Virus”.
For the 2022 banana season, Queensland is the only Australian State which has not been notified by
the Minister as being an “Infected Australian State”. Due to cyclone damage in Queensland there is a
shortage of bananas during the peak of the banana season. Due to the Beautiful & Bountiful Bananas
Act 2005 (Cth), Queensland retailers and interstate banana wholesalers are not able to trade in bananas
to try and increase the number of bananas available for purchase by Queensland customers.
Bobby Bandana is a banana agent in New South Wales and is charged by the Commonwealth with
trading in bananas with a Queensland retailer in contravention of section 15 of the Beautiful &
Bountiful Bananas Act 2005 (Cth). Bobby has commissioned a report from the Commonwealth
Scientific and Industrial Research Organisation (CSIRO) which indicates that bananas infected with
the Banana Bunchy Top Virus can be treated with pesticides and are readily identifiable. Advise
Bobby whether there are any constitutional arguments he can raise.
Answe
Valid head of power?
Heads of power however are subject to the constitution
Does the Act contravene s92?(s7,24) would qualify those laws that comes within those HoP
This is a Cth law, hard to contravene s92 in trade and commerce aspect. But not impossible
(discussion in Cole v Whitfield) a protectionist object in Cth law.
- Is it T&C, intercourse, or both?
- Seems more T&C, could also be intercourse—the move of goods/people/electronic
waves
- From Palmer, if it comes within both, the law has to comply with both.
On its face, the Banana Aact is burdening trade btw infectory and non-infectory states.
Is this protecting QLD
What is Cth going to argue in response?-not relevantary discriminatory, devastating disease.
Facts to be used to interigate: (to help Bobby)
necessity stage, other things that could be done.
Indicate what Cth could possibly argue, not appropriate to treat with pesticide, must be
sprayed at a particular stage (Cole v Whitfield)
Likely to see Cth is doing it in a protectionist purpose.
Science, determination, legislation based on what?
In terms of
Palmer, how intercourse is being understood.
Gageler J; is there an unjustified differential burden being imposed, is it relevantly
discriminatory, is there a legitimate purpose being served?
Even if it’s supported by the external affairs HoP, it infringes s92, because it’s not
proportionate to the purpose. (report, necessity, balancing stage) Edleman’s judgment
Evidence (iin chapter 8 winterton)
A discussion about Challenging the legisl at the level of directon/legisl?—the legisl, as
challenging the regulatiionn is more of an administration issue, whether the regulations fall
within the umbrella act (but don’t need to focus on that)
INTERGOVERNMENTAL IMMUNITIES
Question: can a parliament of one jurisdiction create laws which will bind, affect an
executive in another jurisdiction?
This is a limit to certain laws
STEPS:
1.1 Does the Act either expressly or by necessary implication attempt to bind another
level of government?
OR
Legislation may provide: “This Act binds the Crown in right of the Commonwealth, of
each of the States, of the Australian Capital Territory and of the Northern Territory…”
Traditionally, the presumption that had been difficult to rebut when the intention was not
clear on its face. However, where the legislative purpose of the Act would be substantially
frustrated, the presumption may be more easily rebutted – joint judgment in Bropho,
Jacobsen
- Look at the purpose of the legislation and the effect of excluding government from its
sphere of operation. If this demolishes the effectiveness of the act, then the legislation
can be read as having an implied intention to bind the crown – Bropho, Jacobsen
Jacobosen
CTH issuing warrants – hard to enforce the law without entering state departments
Therefore by implication could bind the states
Step 2 Is the legislation constitutionally valid or does the Act infringe an
implied limit on intergovernmental immunity?
*Amalgamated Society of Engineers v Adelaide Steamship Co (1920) 28 CLR 129 (The
Engineers’ case) (W 970)
HELD: State government instrumentalities can be bound by Commonwealth legislation and
the same principle would apply to State legislation subject to constitutional limits (rejection
of doctrine of immunity of instrumentalities).
Post Engineers, Cth legislation can bind or affect state and their instrumentalities.
However, the law cannot infringe the Melbourne Corporation principle as refashioned and
collapsed in Austin and Clarke which asks whether the Cth law in its substance and operation
in a significant manner curtails or interferes with the capacity of the states to function as
governments.
HELD: Within scope of s 51(ii) and could bind the Crown in right of the State and did
not go so far as to impair the governmental functions of a State.
Gibbs J at 425: ‘Although in some cases it may be possible to show that the nature of
a tax on a particular activity, such as employment of servants, renders the continuance
of that activity practically impossible, it has not been shown that the tax in the present
case prevents the States from employing civil servants or operates as a substantial
impediment to their employment. That tax has been imposed upon and paid by the
States for nearly thirty years, and it has not been shown to have prevented the States
from discharging their functions or to have impeded them in so doing. They may
have less money available for public purposes because they have to pay the tax,
but that could be said of every case in which a tax is imposed on the States, and
in itself it cannot amount to an impediment against State activity sufficient to
invalidate the tax’.
Queensland Electricity Commission v Commonwealth(1985) USEFUL
− Commonwealth legislation required the Arbitration Commission to resolve disputes (and
any other dispute that the Queensland government might be involved in) through a fast-
tracked procedure
−Therefore the legislation only targeted Queensland and the way Queensland resolved
disputes
−Held: all judges found it invalid because it was impermissibly discriminating against the
State of Queensland –this fell beyond Commonwealth power and within the first element of
the exception formulated by Mason J
−Mason J: ‘The principle is now well-established and... consists of two elements’
(1) Prohibition against discrimination which involves placing a special burden or disability on
the States
(2) Prohibition against laws of general application which operate to destroy or curtail the
continued existence of the States or their capacity to function
o Relationships between the two elements: The second element of the prohibition is necessarily
less precise than the first; it protects the States against laws which, complying with the first
element because they have a general application, may nevertheless produce the effect which it is
the object of the principle to prevent.’
Austin v Commonwealth (State Supreme Court Judges Superannuation case) Cth law
being challenged
(Cth superannuation legislation treated judges and other state employees as separate from
high earners of the general public - taxed the state directly in the situation rather than the
super companies –
HELD: invalid - undermined the states interest to provide renomination in what it regards
as appropriate to a high-level official
DECISION:
5:1 on law, 1 limb vs 2 limbs (McHuge J)
4:2 on outcome, Cth law invalid vs valid
‘The adverse financial impact on the States of the pay-roll tax, or the fringe benefits tax,
both of which were held valid, far exceeded the financial consequences of the laws held
invalid in Melbourne Corporation or Queensland Electricity Commission. It was the
disabling effect on State authority that was the essence of the invalidity in those cases. It
is the impairment of constitutional status, and interference with capacity to function as a
government, rather than the imposition of a financial burden, that is at the heart of the
matter, although there may be cases where the imposition of a financial burden has a
broader significance.’
McHugh J at [224]:
the only judge to endorse the two-limbed Melbourne Corporation principle. On the application of
the first limb (discrimination), he found the Commonwealth law in singling out (and thus
discriminating against) state judges placed a burden upon the states and was thus invalid.
‘Perhaps nothing of substance turns on the difference between holding that there are two
rules and holding that there is one limitation that must be applied by reference to "such
criteria as 'special burden' and 'curtailment' of 'capacity' of the States 'to function as
governments’”. If there is a difference in content or application, it may lead to unforeseen
problems in an area that is vague and difficult to apply. If there are no differences, no
advantage is to be gained by jettisoning the formulation of Mason J in Queensland
Electricity Commission’.
Kirby J at [281] (dissenting as to the result):
agreed with the majority's assessment that the Melbourne Corporation principle is
actually reducible to a one-limbed test.
He found the burden onn states of having judges with higher tax liabilities was not heavy
enough to impair state functioning. The effect was marginal at best.
‘In so far as a difference has emerged in this case between the joint reasons and the
reasons of McHugh J, I agree with the former that the two aspects of the implied
limitation upon federal legislative power, noted in past decisions, are essentially
manifestations of the one constitutional implication. Both are referable to the underlying
conception concerning the nature of the Australian federation. I share the view that each
identified defect is to be determined by reference to the effect of the impugned legislation
on the continuing existence of the States, and whether there is an impermissible degree of
impairment of the State's constitutional functions. The presence of discrimination against
a State may be an indication of an attempted impairment of its functions as
the Constitution envisaged them. But any discrimination against States must be measured
against that underlying criterion’.
Consider the nature of the HoP (French CJ in Clarke) – whether it contemplates impeding
of the states
EG defence power always contemplated states being impeded in times of war therefore
doesn’t make sense to imply this structural limitation
Brief History:
In Uther, the majority upheld the prevailing view since Engineers of a reciprocal relationship
between the Cth and the States in which they were equal partners in federation. Dixon J’s
dissenting judgment in Uther however which stated that the states have no title to legislative
power in relation to the rights and duties between the Cth and its people was adopted in
Cigamatic by the majority, overturning the judgment in Uther.
Henderson’s cases redefines the Commonwealth's immunity from State laws, the broad
approach to the immunity is rejected, in which the majority found that State legislation can
apply to the Cth where the legislation does not impair Cth executive capacities but merely
regulates activities undertaken in the exercise of these capacities. The result of Henderson
impacts not only on the extent of States' power to bind the Commonwealth by legislative
action, but also has implications for the States' power to bind the Commonwealth by
executive action.
TOPIC SENTENCE: The current expression of the law relating to whether States may bind
the Cth comes from the majority judgment in Spence at 107-108 which recognised a reverse
of the Melbourne Corporation principle. This principle asks whether the State law in a
significant manner imposes a disability or burden on the exercise of powers and functions of
the Cth which curtail states capacity to function as a government.
Pirrie v McFarlane(1925)
−Member of the Royal Australian Airforce (e.g. Commonwealth employee) was convicted of
driving in Victoria without a license whilst undertaking air force duties
−Issue: whether State legislation can effectively bind the Commonwealth officer?
−Held: yes(3:2), the Commonwealth employee would be bound by the State
legislation unless it chose to shield itself under s109 inconsistency provision (i.e.
Commonwealth legislation prevails over State legislation)
-Rich, Isaacs JJ (dissent): there was no intention that this legislation would bind the
Crown and even if there was such an intention, Commonwealth employee would not be
bound because it was not possible for State legislation to touch such an important
Commonwealth function (eg defence).
−Held:
The majority held, consistently with previous cases, that, subject to inconsistent
Commonwealth legislation, state laws could validly apply to the Commonwealth.
it was within the constitutional competence of New South Wales to restrict or abolish
the prerogative right of the Commonwealth in this way.
this is acceptable because the Cth can always pass legislation under s109 and preserve
its priority if it wants to
Dixon J (Dissenting)
Dixon J rejected the prevailing reciprocal understanding of the relationship between the
Commonwealth and the states and instead developed a doctrine that placed the
Commonwealth in a privileged position.
Although that was ‘necessarily a dual system’, in Dixon J's view it was one in which the
Commonwealth had ‘supremacy’ because of the Constitution's affirmative grant of power to
legislate with respect to specific topics and the paramountcy accorded to federal laws by s
109 of the Constitution.
−The priority of Commonwealth debt derives from the prerogative of the Commonwealth
and therefore it is outside the State’s legislative power
−This is different from a situation where the State can affix particular legal consequences to
particular transactions and the Commonwealth chooses to enter into these transaction
regulated by the State legislation
Commonwealth v Cigamatic (1962):
−Similar factual scenario to Uther’s case –NSW legislation sought to change the priority of
payment of debts
−Held: majority follow Dixon CJ in finding (against Uther) that a State law could not
override the Commonwealth’s prerogative right to prior payment.
‘it is not the plan of the Constitution to grant specific powers to the States over defined subjects’
−However there are issues about the scope of this principle:
- Is Dixon J saying that the prerogative or fiscal rights are exceptions and cannot be
touched by State laws?
- Is he going even broader and saying that the commonwealth is immune from State
laws all together?
- Is the relationship between the Commonwealth and its people the deciding factor
FACTS – Electoral Act 1992 (Qld) and Local Government Electoral Act 2011 (Qld) amended
to stop property developers from making gifts to political parties.
-Commonwealth Parliament introduced s 302CA of Commonwealth Electoral Act 1918 (Cth)
as a response which permitted gifts to parties including if gift might be used towards costs of
voting at federal elections.
HELD:
s302CA(Cth leg) was found by the majority to be invalid
Qld Acts were valid and were not outside State legislative power.
Acceptance of reverse operation of Melbourne Corp principle by majority of
HC
DECISION:
Kiefel CJ, Bell, Gageler and Keane JJ at [107]-[108]:
No return to extreme and discredited notions of inter-governmental immunity is therefore
involved in recognising that the Commonwealth and the States reciprocally have the benefit
of the structural implication recognised in the Melbourne Corporation Case. The reciprocal
application of that structural implication has been, and should remain, constitutional doctrine.
Whilst it is one thing to acknowledge the reciprocal operation of the doctrine of inter-
governmental immunities expounded in the Melbourne Corporation Case as a limitation on
the permissible exercise of State legislative power as well as a limitation on the permissible
exercise of Commonwealth legislative power, it is quite another thing to find that limitation to
have been transgressed. As explained in Fortescue Metals Group Ltd v The Commonwealth,
insofar as it imposes a limitation on the exercise of Commonwealth legislative power,
application of the doctrine “requires consideration of whether impugned legislation is directed
at States, imposing some special disability or burden on the exercise of powers and fulfilment
of functions of the States which curtails their capacity to function as governments”.
Reciprocally, insofar as it imposes a limitation on the exercise of State legislative power,
application of the doctrine requires consideration of whether an impugned State law is
directed at the Commonwealth so as to impose some special disability or burden on the
exercise of powers and fulfilment of functions of the Commonwealth which curtails the
capacity of the Commonwealth to function as a government.
Edelman J at [310]:
‘The assumption upon which the Melbourne Corporation principle is based supports an
implication that constrains any State or Commonwealth power to make a law that is
destructive of the continued co-existence and independence of the Commonwealth and States
as separate governments’.
at [313]-[316]:
the law's "very object is to restrict, burden or control an activity of the States". However, such
an object is a relevant but not determinative criterion. Distinguish between a law that affects the
capacity of a State to exercise constitutional functions and a law that affects the "ease with which
those functions are exercised". Or, in a formulation which might amount to the same thing, it was said
by three Justices in Austin v The Commonwealth that the curtailment or weakening must be
"significant"
All of these formulations can be reduced to a consideration of the magnitude of the burden
upon the other polity’s capacity to function as a government. That assessment will be one of
evaluation and degree. The magnitude of a burden has dimensions of both breadth and depth.
A burden will be more deeply felt the more that it is targeted at the other polity and the more
essential the governmental function that it curtails is to that other polity…
A burden will be wider the more that it curtails the operation of the governmental functions of
the other polity. The curtailing of the governmental functions of the other polity might
arise merely by curtailing the range of legislative policy choices of the other polity. Even
more significantly, it might curtail the operation of key governmental institutions of the
other polity.
If the magnitude of the burden on the other polity’s capacity to function as a government is
relevant then it should also be relevant to consider the significance of the law for the capacity
of the polity enacting it to govern… (also should consider the impact of the legislation on the
State’s ability to govern)
PRACTICE QUESTION
Section 15: ‘This Act shall bind the States, the Territories and the Commonwealth’
In response, the Western Australian Parliament enacts the Western Australian Knowledge Act 2022
(WA). This Act sets up a rival WA knowledge test which requires a parliamentarian representing
Western Australians as a member of the House of Representatives or the Senate to pass an online
Western Australian knowledge test. Those who fail after two attempts are to be ‘named and shamed’
on the cover of the West Australian newspaper and forced to do a Western Australian knowledge
course at TAFE before re-sitting the test.
The Prime Minister, Scott Morrison seeks your advice as Commonwealth Solicitor-General in
relation to the likely constitutional validity of both enactments.
The validity of the Cth Act. What we’ve told…whether there’s a HoP to support this. (guess
its Nationhood)
The intention of the law: intending to apply (s15) to state parliaments. (Don’t rush to Mel)
The head of power is presumed to be the nationhood power and the act will be valid under
this power unless a limitation applies.
A limit of intergovernmental immunity may apply if (1) the Act intends to bind another level
of government (2) in a manner that is constitutionally invalid.
Post Engineers, Cth legislation can bind state government instrumentalities. However, the
law cannot infringe the Melbourne Corporation principle as refashioned and collapsed in
Austin and Clarke which limits Cth laws from curtailing or interfering in a significant manner
with the capacity of the states to function as governments.
It might be argued that the law doesn’t curtail the function of government because the law
imposes a burden equally amongst the States and the Cth – Clarke and per Re A.E Union the
Cth can regulate some aspects of the public sector and that temporary suspension may be one
such aspect.
On balance however, by suspending parliamentarians for 3 months the Act has a reasonable
probability of significantly interfering in State Parliament processes and therefore their
capacity to exercise their constitutional powers.
Therefore, the legislation is limited by intergovernmental immunity and the State will not be
bound by the Cth Law
Is it valid? Is the state law for the POGG of WA? Is there a sufficient connection…simply
acknowledge the law is valid.
Parliamentary sitting
AEU,
Cth can try and say …but they are parliamentarians, WA is interference with consti
status..the significance of it, responsibilities/prerogatives, gov in charge of…
French CJ’s multifactorial test (Clarke) . Thinking whether it’s affecting powers or functions
undertaken…
*remind ourselves to think about the nature of the power—if we think it’s nationhood power,
should it really interfere with the power
The current expression of the law relating to whether States may bind the Cth comes from the
majority judgment in Spence at [107-108] which recognised a reverse of the Melbourne
Corporation principle. The principle in Spence asks whether the State law in a significant
manner imposes a disability or burden on the exercise of powers and functions of the Cth
which curtails its capacity to function as a government.
On the facts the Act doesn’t curtail the capacity of the Cth to function as a government
because it doesn’t disrupt any parliamentary processes or the exercise of Cth constitutional
powers - Spence, Henderson.
INCONSISTENCY – S109
DIRECT INCONSISTECY
Rv Licensing Court(1920)
−State legislation authorised the State referendum
−Cth legislation prevented the State referendum or election on the same day as a Cth
election
−Held: State law is invalid under s109
FACTS:
Frederick Firth, a shearer, breached his employment contract by shearing sheep so badly they
were injured, failing to notify his employer and leaving without permission.
Prosecuted under s 4 of Masters and Servants Act 1902 (NSW) for breach of contract.
Section 44 Commonwealth Conciliation and Arbitration Act 1904-1928 (Cth) had different
penalties under Federal award which applied here due to contractual breach.
HELD: State law inoperative even though both laws could operate at the same time
DECISION
Dixon J 483:
- If it appeared that the Federal law was intended to be supplementary to or cumulative
upon State law, then no inconsistency would be exhibited in imposing the same duties
or in inflicting different penalties
- The inconsistency does not lie in the mere coexistence of two laws which are
susceptible of simultaneous obedience. It depends upon the intention of the paramount
Legislature to express by its enactment, completely, exhaustively, or exclusively,
what shall be the law governing the particular conduct or matter to which its attention
is directed. When a Federal statute discloses such an intention, it is inconsistent with it
for the law of a State to govern the same conduct or matter'.
Covering the field is covering the “subject, scope, and evident purpose” – Dickson
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 (W333) (regulations for meat export
same field)
FACTS: Commerce (Meat Export) Regulations (Cth) enacted pursuant to the Customs
Act 1901 (Cth) regulated processes for export of meat and required an export permit
and approval for premises used for slaughtering meat for export. Similarly, s 52a
Metropolitan and Export Abattoirs Act 1936 (SA) required a ministerial licence for
premises used to slaughter livestock for export and required person to be ‘a fit and
proper person’.
HELD –
Statutory majority of Dixon CJ, Fullagar & Kitto JJ (later affirmed by
Privy Council) – s 109 applied to render State law inconsistent when
the fields were the same.
McTiernan, Webb and Taylor JJ dissented in seeing separate fields
being regulated
Jemena Asset Management Pty Ltd v CoINVEST Ltd (2011) 244 CLR 508
(W354)
FACTS: Awards under Workplace Relations Act 1996 (Cth) required relevant
employers to provide long service leave entitlements to employees. The
Construction Industry Long Service Leave Act 1997 (Vic) required employers
to pay to a trustee (CoINVEST Ltd) a long service leave charge for
construction workers to provide for ‘portability’ of entitlements. Appellants
argued State Act was inconsistent and that they did not need to pay relevant
charge or meet Act requirements.
HELD (Unanimously by French CJ, Gummow, Heydon, Crennan, Kiefel and
Bell JJ): no s 109 inconsistency when State Act was complementary to federal
scheme.
Cth Award not a law of the Cth but ‘has force and effect of such a law
where so provided by the machinery of a Cth statute’ ([11])
‘it is not surprising that different tests of inconsistency directed to the
same end are interrelated and in any one case more than one test may
be applied in order to establish inconsistency for the purposes of s
109. All tests of inconsistency which have been applied by this Court
for the purpose of s 109 are tests for discerning whether a "real
conflict” exists between a Commonwealth law and a State law’ ([42]).
‘The mischief which the State Act remedies is that workers in
continuous service in the construction industry will be disadvantaged if
they cannot qualify for long service leave, by reason of the itinerant
nature of their employment. That subject matter, of portable long
service leave benefits in the construction industry, is not covered in the
federal instruments’ ([56]).
Their Honours highlight ‘The importance of clearly identifying the
field said to be covered exhaustively by a law of the Commonwealth
and correctly characterising a law of a State’ ([58]).
‘Whilst the federal instruments deal with all the obligations and
entitlements of employers and employees in respect of the grant of, and
payment for, long service leave, arising in the employment relationship
between employers and employees, they do not deal with, or even
mention, portable long service leave benefits, for workers in
continuous service within the construction industry’ ([59]).
c) Does Cth Law intend expressly or impliedly to cover the field completely,
exhaustively or exclusively
By Express Declaration
Express declaration of non-exclusivity – Palmsdale (intention not to cover the field – NOTE
DOESN’T AVOID DIRECT INCONSISTENCY)
Wenn v Attorney-General (Vic) (1948) 77 CLR 84 (and see Dixon J at 120) (W341)
An express statement that the Cth did not intend to cover the field cannot retrospectively
validate a State law which has previously been invalidated for s109 inconsistency – Metwally
(by 4:3majority)
FACTS:
Previous decision (Viskauskas v Niland (1983) 153 CLR 280: May 1983) had held that Anti-
Discrimination Act 1977 (NSW) was inconsistent with Racial Discrimination Act 1975 (Cth)
(‘RDA’) when the latter covered the field.
Cth Parl passed amendment to RDA in 1983 to indicate expressly that it did not, and had never
intended, to cover the field.
s 6A: ‘This Act is not intended, and shall be deemed never to have been intended, to
exclude or limit the operation of a law of a State or Territory that furthers the objects
of the Convention and is capable of operating concurrently with this Act’.
Metwally case concerned a racial discrimination action brought against the University of
Wollongong in 1981. Could Metwally obtain damages under Anti-Discrimination Act 1977 (NSW)
(in effect, had the Cth amendment revived its operation?). University of Wollongong claimed that
the Cth amendment could not undo the operation of s 109 which had invalidated the NSW Act
previously.
HELD:
MAJORITY: Gibbs CJ, Murphy, Brennan and Deane JJ:
o s6A could apply prospectively (from 19 June 1983) but here trying to give it a retrospective
operation.
o the invalidity of the State law occurred by s 109 of the Constitution and the Commonwealth
Parliament cannot then decide to pass a law to override the operation of the Constitution and
revive the relevant piece of state legislation.
o Metwally could not rely on NSW legislation during the relevant period (1978-81).
• Is the regulation of that topic only manageable if the Cth law is exclusive?- on
some topics it might be suggested that you can really only have one system of law
operating?
Certain subject matters are more likely to bring about an intention cover the field:
- If the subject matter complies with international obligations( racial discrimination )–
if the enactment operates equally and without discrimination in all states: Viskauskas
- When the topic is only manageable if the Cth law is exclusive – Shipwrecks case
- Areas like bankruptcy or trademarks vs removal of shipwrecks (concurrent authority
is useful and necessary)– Shipwrecks case
A general test? Unresolved issue – might come into play as a more holistic test
When a State law if valid, would alter, impair or detract from the operation of a law of the
Cth Parliament, then to that extent it is invalid – Dixon J in Victoria
S109 applies so the law becomes inoperative to the extent of the inconsistency and can be
revived once the Cth Act is no longer in operation - Nt Act Case.