Com Con Summary
CONSTITUTIONAL LAW
CONSTITUTIONAL LAW
SUMMARY
PX SOLUTIONS
Sources used
PRINCIPLES OF CHARACTERISATION
Key Issues
Basic test (for purposive/non-purposive):
Law must be on relevant subject/parliamentary motives/incidental effects:
Multiple characters
Jumbunna characterisation principle
Actors Equity
Reading down
Incidental power
Incidental power reasonableness/appropriateness:
For incidental power
Examples of trade and commerce regulation:
Trade and Commerce Power
Key Issues:
Importation/exportation/discretion:
Initial view that Cth cannot regulate intra-state trade:
Physical interference exception for regulation of intra-state trade:
Forfeitures as an incidental aspect of the power:
Incidental regulation of production
Corporations Power
Key areas of regulation
Trade practices/Trading activities:
Protective use of corps power
Activities that can be regulated
Classifying a corporation
What is a foreign corp?
What is a trading corp?
What is a financial corp?
The current position on the scope of the corps power
Incorporations Case
Inconsistency
Three tests of inconsistency
First statement of tests 2 and 3
Direct inconsistency
Authoritative statement of the cover the field test
Factors indicating inconsistency
For c.t.f. inconsistency…
Interference with Cth scheme of reg
Manufactured inconsistency
Application of McLean
No retrospective reversal of s109 inconsistency
Races Power
Broad view of the power adopted by the majority
Limitations on the Races power
External Affairs power
The Treaty Making Aspect
The Treaty Implementation and making aspect of the Power
Early wide view
Clarification of scope of external affairs power
Expansive view endorsed
The 'matters external to Australia' aspect of the power
Non-obligatory treaties
Taxation Power
Fee for services (rendered)
A tax cannot be an arbitrary exaction
Incontestable tax not permitted (where specified criteria)
Administrative discretions
Tax/penalty distinction
Tax power can be used for purposes other than revenue-raising
The Grants Power (s96)
Uniform tax cases mean only cth imposes income tax
Conditions that can be imposed
Limited to subject matter of money grants
Specific purpose grants/conduit function/discrimination between states
Current position
Appropriations Power
Purposes of the cth
AAP wide view supported in Davis
Scope of conditions or control by appropriations law
Nationhood Power
Nationhood power as an incidental aspect of the appropriations power
Circumstances in which the power can be used
Test 1
Current position
Limitations on the power
Examples of use of the nationhood power
Freedom of Interstate Trade
Excise
Overruled narrow view
Close relation to prod-manful-sale-consumption
Imposition at any point pre-consumer
Restated Dennis Hotels formula
Arithmetical relationship between tax and quantity or value of the goods prod'd or sold is not nec.
Discussion of the franchise cases prior to Ha
Dissent
Immunities
Procedure:
Does an act bind the Crown?
Implied immunity of instrumentalities doctrine
Series of cases illustrating doctrine - now overruled by Engineers'
Cth laws affecting the states
Limitations on the cth
Limitation 2
Restatements of the limitation on the cth
Is there discrimination?
What amounts to discrimination
High level employment/policy decision immunity
AEU high level employee principle illustrated
Cth protection from state laws
Dixon's dissenting judgment adopted/broad cth immunity
The Cigamatic doctrine affirmed but limited
Judiciary Act 1903 (Cth)
Limitations on s64
COOPERATIVE FEDERALISM
Cross-vesting
Valid Cross-vesting requires (1) authorization (Cth) and (2) conferral (State)
State Conferral
Cth authorisation
Waiving Cth Immunity
Cross-Vesting Jurisdiction
The Defence Power - s51(vi)
An elastic base of legislative authority
Purposive test/ascertaining purpose/usually judicial notice/expansive in war-time
Purposive test supported/wide power in war-time
Primary and secondary aspects of the defence power/examples of activities that can be legislated
The CPC Principle/Parl's judgment that a law is within power is insufficient to give it validity
The Principle from the CP Case
State Residence Discrimination (s117)
Initial narrow view
Residence requirement is not automatic discrimination
Current correct test/what amounts to discrimination/individual immunity
Various limitations
Implications from Representative Government:
Murphy Approach Adopted
Effect of Theo and Stephens
FOPC as a restriction on legislative power
Two stage test when state/federal/territory law alleged to burden foc
Common Law Qualified Privilege
INCONSISTENCY
s109: When a law of a state is inconsistent with a law of the Cth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Carter v Egg And Egg Pulp Marketing Board
Held:
-s109 only for valid cth and state laws - s109 only applies where, apart from the operation of the section, both the Cth and the state laws in question would be valid.
-s109 invalidity means inoperative but revivable - Invalid in s109 means inoperative, so state law was not a nullity, and is deprived of operation but may be revived if the inconsistency is removed.
Three tests of inconsistency
- Direct inconsistency - where simultaneous obedience is impossible because laws contain mutually contradictory commands - e.g. R v Brisbane Licensing Court; Ex parte Daniell (Qld liquor act directed holding of local referendum on a specified day, Cth Electoral Act forbade state referendum on that day)
- Where one law takes away a right or privilege conferred by the other even if both can be obeyed e.g. Colvin v Bradley Brothers Pty Ltd (state law prohibiting employment of women on milling machines was inconsistent with a cth law permitting that employment) – (Can obey both laws by hiring women).
- Cover the field inconsistency (indirect inconsistency) - indirect inconsistency which arises when state law invades a field which the cth law was intended to cover or deal with exclusively or exhaustively.
No direct contradiction necessary: simply nec to impute to the Cth parl a leg intention that its law shall be all the law there is on that topic, in which case any state law at all on that topic will be inconsistent.
First statement of tests 2 and 3
Clyde Engineering v Cowburn
Facts: State law prescribed ordinary working hours of 44 hrs per week with overtime thereafter, relevant Cth leg fixed it as 48 hrs a week. Adopting 44 hr week complied with both laws but rights of emp'er under Cth leg were denied by state law while rights of worker under state law were denied under Cth law
-Crt held that state duty imposed on employers of payment of full award for 44 hrs did not make it impossible for those employers to comply with the duty imposed by cth law that employers pay award for 48 hrs work, but state duty did make impossible enjoyment of the right conferred on employers by cth law to demand 48 hrs of work from each employee on full award wage so inconsistency.
Type 2
Right or privilege conferred by cth statute taken away - where obedience to both enactments may be possible but one takes away a right conferred by the other (e.g. here, right to get 48 hrs under cth statute, could comply with state law and only get up to 44 and still be obeying the cth statute as well, but this would be the derogation of a right).
-Mere existence sufficient for inconsistency where intention exists: Where such an intention can be established, inconsistency is demonstrated not by comparison of detailed provisions, but by the mere existence of the two sets of provs.
Direct inconsistency
R v Credit Tribunal
Held: Direct inconsistency still applies despite Cth intention to contrary - however, for direct inconsistency, s109 operates of its own force, regardless of any statutory assertion to the contrary.
(Authoritative statement of the cover the field test)
Note: Cth can avoid covering the field by passing express provision declaring intention not to do so.
Ex parte McLean
(Conciliation and Arb Act intended by Cth parliament to confer exclusive authority upon awards in settlement of ind disputes, even to the extent of displacing state lg which reinforced, rather than undermined, the terms of the award).
-Intention to c.t.f. is necessary - Dixon J - Whether there is c.t.f inconsistency depends upon the intention of the Cth/Fed 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
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