Lwz003 Exam Notes

LWZ003 EXAM NOTES

CONTENTS

IProblem Solving

IIConstitutional interpretation

1.Connotation and denotation

2.Rules of construction (See Keyser Chapter 2)

IIIHigh Court

IVCharacterisation

VNon-purposive Powers

VIPurposive Powers

3.The implied incidental power and characterisation

VIIHeads of Power

4.Trade & Commerce (51(i))

5.Taxation (51(ii);grants power (s 96); Appropriations (s 53, 55, 96)

6.Section 96 Grants

7.Revenue appropriations (s 81, 83)

8.Implied Nationhood power

9.Corporations power (51(xx))

10.External Affairs power (51(xxix))

VIIIFinance and trade (s 90 excise, customs and bounties, s 92 freedom of trade)

11.Excise duties

12.Freedom of interstate trade and commerce

IXThe Crown

XMelbourne Corporation Doctrine

XICigamatic Doctrine

XIIImplied state reeserved powers doctrine

XIIIImplied inter-governmental immunities doctrine

13.Engineers’ Case (1920) 28 CLR 129

XIVExpress constitutional freedoms

14.Constitutional guarantees and freedoms

15.Acquisition of property on just terms 51(xxxi)

16.A limited guarantee relating to voting in Commonwealth elections

17.Trial by jury

18.Freedom of religion

19.Prohibition on State laws discriminating on the grounds of residence

XVImplied constitutional freedoms

20.Implied freedom of speech to discuss political and governmental affairs

21.Limited freedom of movement and association

22.Due Process

23.Legislative Usurpation and Interference

24.Implied Right to Due Process (equality before the law)?

25.The Incompatibility Doctrine

26.Involuntary Detention

27.Roach v Electoral Commissioner [2007] HCA 43

XVIS 109 Inconsistency

XVIIState and Territory constitutional issues

XVIIIAustralian Constitution

IProblem Solving

Legal process – Constitutional law validity

Grain Pool of WA v Cth (2000) 202 CLR 479 (and confirmed in Bayside Council v Telstra Corporation Ltd (2004)

At 492 per Gleeson CJ, Gaudron , McHugh , Gummow , Hayne and Callinan JJ :

“The general principles which are to be applied to determine whether a law is with respect to a head of legislative power ... include the following. 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 to determine if there is a sufficient connection between the law and the head of power. Fourthly, as Mason and Deane JJ explained in Re F; Ex parte F:

"In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other of which is not a subject matter appearing in s 51, it will be valid notwithstanding that there is no independent connection between the two subject matters."

Finally, if a sufficient connection with the head of power 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.

[B&W816] Leask v Cth (1996) 187 CLR 579: “[600] The fact that the legislative powers conferred upon the Commonwealth Parliament by s 51 of the Constitution are expressed to be with respect to subject matters means that a law is within power if the acts, facts, matters or things upon which it operates fall within the description of one or more heads of power…[602] Establishing the requisite connection is often a matter of degree, but once it is estasblished it does not matter that the legislature has chosen a means of achieving its aim which goes further than is necessary or desirable. That is a matter for the legislative.” Approving also of Dixon CJ in Burton v Honan (1952) 86 CLR 169 at 179 and Kitto J in Herald and Weekly Times Ltd v Cth (1966) 116 CLR 418 at 437.

1. Identify the power(s) that the Cth might invoke to support a federal law

2. Interpret the power(s) and determine their scope

Attached to every express grant of power is an implied grant of power wide enough to make the express grant effective (D’Emden v Pedder (1904); Granall v Marrickville Margarine Pty Ltd (1955))

3. Characterise the laws to ascertain whether it is a law ‘with respect to’ the subject matter of the identified power(s)

Non-purposive powers

• The Commonwealth has enumerated powers, rather than general legislative power which is vested in the States by their respective Constitutions and s 107 (Attorney-General (Cth v Colonial Sugar Refining Co Ltd (1913)
• reference to the rights, powers, liabilities, duties and privileges which it creates (Grain Pool of WA v Cth (2000); Leask v Commonwealth (1996);Fairfax v Federal Commissioner of Taxation (1965))
• the practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power (Grain Pool of WA v Cth (2000)
• The court is not concerned with the substance of the law in the sense of its motives, purpose or policy (see R v Barger (1908); Osbourne v Commonwealth (1911)
• The character of an Act is determined by its operation and effect (Bank of New South Wales v Commonwealth (1948))
• If the subject matter of the law is sufficiently connected to the subject matter of the power, then the court will not be concerned with the policy of the law (Fairfax v Federal Commissioner of Taxation (1965); confirmed in Murphyores Pty Ltd v Commonwealth (1976)).
• It must be demonstrated that the law in question is sufficiently connected or incidental to the power or powers invoked to support it in order for it to be valid (Re Dingjan; Ex parte Wagner (1995).

Purposive powers

Could this law reasonably be considered to be "appropriate and adapted" to the fulfilment of the purpose of the grant of power? Another way of putting it is that the High Court, in a limited range of situations, looks at whether a law is "proportionate" to the purpose of the grant of power.

• Purposive powers – the purpose of a law refers not to the underlying motivebut to the end or object the legislation serves or achieves (Cunliffe v The Commonwealth (1994))

4. Consider if their are any express or implied constitutional limitations that may invalidate the laws because they are not appropriate and adapted

The Commonwealth exercises its legislative powers under s 51 or 52 of the Constitution subject to the Constitution including any express or implied limitations which arise from the Constitution (see Melbourne Corporation v The Commonwealth (1947) at 66 per Rich J.)

Express and implied limitations

Express

s 92 – freedom of interstate trade

s 51(xxxi) - Acquisition of property on just terms

s 80 – right to trial by jury

s 116 – freedom of religion

Implied

Separation of powers doctrine

Rule of law – equality before the law (Leeth v Cth (1992)

Melbourne Corp. doctrine

Cigamatic doctrine

s 7 & 24 - Freedom of political communication

s 41, 7 & 24 - Right to vote – Roach v Electoral Commissioner [2007] HCA 43

Limited movement and association – Kruger v Cth (1997)

Incompatibility doctrine - Kable

Involuntary detention - Chu Kheng Lim v Min. for Immigration (1992)

If a law is found to be constitutionally invalid, then it was never valid, and therefore never operative (South Australia v Commonwealth (the First Uniform Tax Case) (1942))

Incidental power (see also Purposive powers)

Proportionality. The proportionality test can be used to determine whether a law is sufficiently connected to a power and to determine whether a regulation may fairly be described as incidental to a topic within power (see McCulloch v Maryland 17 US 316)

Implied grant. Attached to every express grant of power is an implied grant of power wide enough to make the express grant effective (D’Emden v Pedder (1904); Granall v Marrickville Margarine Pty Ltd (1955))

Every legislative power carries with it the authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose (Marrickville Margarine Pty Ltd (1955))

IIConstitutionalinterpretation

Literalism

• Engineers' case (Amalgamated Society of Engineers v The Adelaide Steamship Company Ltd & Others (1920) 28 CLR 129
• Engineers v The Adelaide Steamship Company Ltd & Others (1920) 28 CLR 129
• Re Wakim; Ex parte McNally (1999) 163 ALR 270
• See also McHugh J in McGinty Case (read in the tuorial), implications must be anchored in the text, not the vague spirit or vibe.

Positives

• Literalism was once thought to be the paradigm method of constitutional interpretation.
• Engineers' case at 161-162 per Higgins J

The fundamental rule of interpretation, to which all others are subordinate, is that the statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable... unless the limitation can be found elsewhere in the Constitution, it does not exist at all.

• This is a purported application in a constitutional setting of the old "golden rule" of ordinary statutory interpretation.
• Emphasises that ordinary principles of statutory interpretation are applicable to interpreting the Constitution.

Negatives/Problems/Issues

• Words, even when taken in isolation, simply do not have a single "natural and ordinary" or "essential" meaning, most words have numerous potential meanings, and the actual meanings depend on the context, history and the social setting in which they are uttered.
• Naive literalism is unhelpful in a dispute about constitutional interpretation: almost by definition the words in question have more than one potential meaning, otherwise there would not be a dispute about them.
• However, literalism does not deny the importance of construing words in their overall context within the Constitution. Moreover, as applied by the post-Engineers High Court it allows (indeed requires) one to ascertain the mischief at which the provision was aimed, and in doing this one may have regard to the pre-existing state of the common law as at 1900 and a limited range of extrinsic resources (e.g. earlier constitutional drafts; early constitutional texts like Quick and Garran;). This approach also accepts that the express text may contain implications (see below) The High Court's approach is more accurately regarded as "textualism" than strict "literalism" i.e. it emphasises the primacy of the constitutional text but in a relatively sophisticated sense. Moreover, the quest is always said to be for the constitutional intention.

Ultra literalism

• Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309

Legalism

Sir Owen Dixon’s inaugural speech 1952

But see O'Toole v Charles David Pty Ltd (1990) 172 CLR 232 at 267) per Brennan J

1. Connotation and denotation

Expanded literalism (“connotation” and “denotation”)

• Re Wakim; Ex parte McNally (1999) 163 ALR 270 per McHugh J at [44]
• R v Brislan; Ex parte Williams (1935) 54 CLR 262
• The Grain Pool of WA v Commonwealth (2000) 170 ALR 111
• Power can expand with the words ie Posts and telegraphs power
• Cole v Whitfield (1988) 165 CLR 360, can look at history of words of founding fathers

The High Court's post-Engineers approach has also commonly involved a strong element of "legalism". The High Court is sensitive to accusations that it is infringing on the role of the Parliament or Executive. Chief Justice Sir Owen Dixon developed a doctrine of "strict and complete legalism" to cope with such concerns about infringing the separation of powers. Judges were to apply legal as opposed to political methods of resolving disputes. Dixon CJ most clearly enunciated this approach in a speech on his swearing in as Chief Justice in 1952:

"... close adherence to legal reasoning is the only way to maintain confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no safeguard to judicial decisions in great conflicts than a strict and complete legalism."

Connotation and denotation

Until 1988, the High Court's "textualist" approach held that, while some limited historical materials extrinsic to the text (e.g. Quick & Garran; the common law in 1900) could be examined to ascertain the constitutional intent, it was not permissible to look at what the Founding Fathers themselves actually said during the Convention Debates where the Constitution itself was drafted. It was a quest for the objective intention rather than the subjective intention.

The High Court nevertheless managed to take into account changes in the meaning of words over time in at least some situations. This is because, as McHugh J put it in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [44] most constitutional provisions are expressed at a high level of abstract generality:

"Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered."

To achieve some stability and predictability in constitutional interpretation, the High Court has developed a fairly sophisticated doctrine involving distinguishing between the "connotation" of words (their "original" or "essential" meaning, which is "fixed") and their "denotation" (the contemporary meaning of the word) . The High Court adopts an "ambulatory" approach, considering both the original and contemporary meaning of Constitutional terms. This has allowed the High Court to some extent to shape the operation of the Constitution to fit modern conditions e.g. the

Commonwealth's "posts and telegraphs" power in section 51 (v) of the Constitution has been interpreted as including a power to regulate radio and television, even though they did not exist at the time of Federation. See R v Brislan; Ex parte Williams (1935) 54 CLR 262. Similarly, the High Court has recently held that Commonwealth legislation regulating patents over genetically modified crops is supported by section 51(xviii)(copyrights, patents of inventions and designs, and trade marks) although no-one had any idea in 1900 that genetic modification might be possible. See The Grain Pool of WA v Commonwealth (2000) 170 ALR 111.

Originalism/intentionalism

Cole v Whitfield (1988) 165 CLR 360

Eastman?

Cole v Whitfield (1988) 165 CLR 360 departed from this somewhat bizarre approach. However, the Court approved recourse to the Convention Debates only in a particular way (see CLR 385):

"Reference to history may be made, not for the purpose of substituting for the meaning of the words used the scope and effect -- if such could be established -- which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards Federation from which the compact of the Constitution finally emerged."

An obvious problem with this approach of "semantic originalism" is that it may frequently be effectively impossible to separate the meaning which the Founders believed the words to have from their hopes and expectations of what they would achieve. Although the distinction is frequently a useful one, it is in some respects a classic example of one of Julius Stone’s "categories of illusory reference".

Another problem is, as Kirk says, that the High Court has never clarified exactly whose intent counts and why. There are three main possibilities:

the Imperial Parliament, which passed the Act containing the Constitution;

the framers, who drafted it in the Conventions;

the peoples of the colonies in 1899/1900, who approved it at referenda.

For most of the section 51 legislative powers, there was little or no real debate at all at any of the Conventions.

For example, Sir Samuel Griffith, one of the two principal drafters of the Constitution, clearly believed that the document he had been instrumental in creating evinced an intention to preserve a balance of powers between the Commonwealth and the States

“Dynamic” or evolving theory of interpretation

• Kartinyeri v Commonwealth (1998) 152 ALR 540 per Kirby J, re meaning of the race power.
• history relevant, but not bound by that understanding. Look at with modern eyes and modern circumstances.
• undermines s 128 to change the constitution, but the section indicates that the constitution may need to be changed in the future so “it was not perfect for all time” and so they can deal with issues and problems. Unelected judges v decision of the people. Expense, undemocratic, express words not used, unsophisticated view of the constitution, judges make law.
• Engineers – can’t make up implied doctrines

Kirby J - Kartinjeri

Each generation reads the Constitution in the light of accumulated experience. Each finds in the sparse words ideas and applications that earlier generations would not have imagined simply because circumstances, experience and common knowledge did not then require it. Among the circumstances which inevitably affect any contemporary perception of the words of the constitutional text are the changing values of the Australian community itself and the changes in the international community to which the Australian community must, in turn, accommodate.

New constitutional interpretation

Ronald Dworkin – Law as integrity, evolution of meaning, new circumstances.

Dworkin's theory of "law as integrity", at least as applied to constitutional interpretation, is explained in an article "The Moral Reading of the Constitution", New York Review of Books, 21 March 1996 and in his 1986 book "Law's Empire". Dworkin professes to hold in some respects to a relatively traditional "intentionalist" position i.e. that the task of constitutional interpretation is to find the original meaning:

"[C]onstitutional interpretation must begin in what the framers said, and, just as our judgment about what friends and strangers say relies on specific information about them and the context in which they speak, so does our understanding of what the framers said. History is therefore plainly relevant. But only in a particular way. We turn to history to answer the question of what they intended to say, not the different question of what other intentions they had. We have no need to decide what they expected to happen, or hoped would happen, in consequence of their having said what they did, for example; their purpose, in that sense, is not part of our study. That is a crucial distinction".

This sounds very much like the intentionalist position enunciated in Cole v Whitfield . But it appears to mean much more than this. First, Dworkin (and by extension McHugh J) takes a very broad view as to the level of abstract generality on which most constitutional provisions are expressed. Dworkin is, of course, talking about the US Constitution, but the same point may be made about the Australian Constitution (although our Constitution contains relatively few abstract expressions of fundamental human rights values, which are arguably Dworkin's main focus - because recent US Supreme Court jurisprudence has focussed on Bill of Rights questions in determining contemporary issues like abortion, gay rights, the death penalty, and freedom of speech (Communications Decency Act case - ACLU v Reno).