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Week 2: Interpretation and Federal Heads of Power 

Section 51: 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:

(39 subject matters which concern the federal government) Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (Engineers Case) (1920) 28 CLR 129  

Emphasis on the natural meaning of the text Rejected the Implied Doctrines as they were for the subjective use of people unknown

Week 3: External Affairs o

Section 51(xxix): '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 … external affairs. '

Characterisation: Act of determining whether the legislation is within or beyond the ‘power’ (valid or not). Interpretation: Interpretation of the words of the Constitution. Test: (Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at 492)  Interpreting the scope of the head of power - what does it permit?  The process of determining whether a federal law is a law ‘with respect to’ a head of Commonwealth power (valid?). Three steps: 1. Examining the federal law in question o What rights and duties does it create? What are its significant features? 2. Examining the head of power in question o What is the connotation – central characteristic (Singh) – and what are the denotations – applications? What is the ‘core’ meaning; what is incidental to that core, that is necessary to implement the power? 3. Is the law a law ‘with respect to’ the head of power?  Evaluating the strength of the connection – practical and legal operation  A ‘sufficient’ connection – not evaluating whether the means are necessary or desirable

Week 4 – Corporations: Section 51(xx): 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: … o Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth Trading and financial corps:

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Only those corporations ‘formed within the limits of the Commonwealth’  Means: Commonwealth does not have power to regulate the formation of those corporations: New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 o How do we identify a trading or financial corporation? Activities Test or Purpose Test Activities Test First  The trading or financial activities of a corporation determine whether it is a financial or trading corporation – thus falls under section 51(xx). Purpose Test (If no activities test can be run – e.g. inactive corporation)  Is the purpose of the corporation to act as a trading or financial corporation. Then characterisation for the legislation  Is the law in respect to the corporation’s power? (is it valid?)

Three views develop on the scope of the power: o o o

Narrow view: limited to the regulation of trading activities of trading corporations. Intermediary view: extends to activities of trading corporations engaged in for the purposes of trade. Broad view: it can be used to regulate the activities of a trading corporation in any respect whatsoever. Provided a corporation has the characteristics that brings it within s 51(xx), any aspect or activity of that corporation can be regulated by the Commonwealth.

Week 5: Inconsistency Section 109: ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ 

Central concern: inconsistency between State law and Commonwealth law

Three differing criteria to prove inconsistency: TESTS 1. Impossibility of obedience - R v Licensing Court of Brisbane; Ex Parte Daniell (1920) 28 CLR 23  Where it is impossible to obey both State and Commonwealth laws at the same time, Commonwealth law prevails. 2. Inferring a legal right, privilege or entitlement that the law attempts to take away or diminish - (Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151)  If one law purports to confer a legal right, privilege or entitlement that the other law purports to take away or diminish (denial of rights) 3. Covering the field – CTH law already attempts to cover the field, and state law does the same - Victoria v Commonwealth (The Kakariki) (1937) 58 CLR 618, 630 (Dixon J)  A legislative intention that Cth law will be the only law in that field - is that what was intended? Federalism: Separation of Powers between Federal and State

Week 6: The Executive Government And Executive Power Section 61 "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the law of the Commonwealth" 

Executing and maintaining the constitution and the laws of the commonwealth; silent as to scope

Federal Executive (The Crown) includes: o The King or Queen o The Governor General o Ministers (Prime Minister and Cabinet) o Public servant employed by governmental departments

Prerogative Power Two views of it; 1. Powers, rights, immunities, or privileges necessary to maintaining government, and not shared with private citizens 2. A residue of discretionary or arbitrary authority Limits: o

Lapse due to disuse

Nationhood power (part of s 61)  power ‘to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’  

National emergency? General contractual capacity to spend (claimed to be part of s 61, rejected)  requires legislative authorisation (ie typically a head of power under s 51): plurality opinion in Williams  Could arguably be supported by the ‘nationhood’ component of s 61 (with question over whether legislative authorisation under the incidental power: s 51(xxxix) is required)

Pape v Federal Commissioner of Taxation (2009) 

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The power of the executive to legislate government ‘spending’ – was there an appropriate head of power to oversee this (Tax Bonus for Working Australians Act (No 2) 2009 Cth) – granted as okay as it did not impede on the separation of powers Was a short-term measure; speed and efficacy for an economic condition facing the nation as a whole

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Commonwealth was the only national body to meet this global crisis in such a manner - but who deems it to be such an emergency (Commonwealth) - as such to deem Commonwealth action appropriate Majority emphasised that it would be difficult to go against proper state power and as such only true emergencies will this arise

Williams v Commonwealth (2012) 248 CLR 156 (Williams Number 1) – argued that the program was not granted by statute therefore the funding should be ceased Core: must fall under a head of power and cannot enter into contracts without statutory authority

Week 7 – The Judiciary and Judicial Power (1) Forms of Separation: 1. The differentiation of the concepts ‘legislative’, ‘executive’, and ‘judicial’ 2. The legal incompatibility of office-holding as between members of one branch of government and those of another, which or without physical separation of persons 3. The isolation, immunity or independence of one branch of government from the actions or interference of another 4. The checking or balancing of once branch of government by the action of another 5. The co-ordinate status and lack of accountability of one branch to another Functions: Legislative function – general rules of law determining structures and powers for public authority, regulating the conduct of citizens and private organisations Executive function – detailed carrying out of (administering) the law, authority to govern other than legislative and judicial functions Judicial function – determining disputed questions of interpretation of the law, application of the rules to the facts R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 Boilermakers limbs: 1. The judicial power of the Commonwealth can only be vested in a Ch III Court 2. Ch III courts can exercise ONLY the judicial power of the Commonwealth Exceptions: 1. Exception to principle 1: delegation of judicial power, discrete exceptions ie s49 2. Exception to principle 2: Incidental powers, persona designate exception Executive Detention:  Is the detention arbitrary?  Is the detention punitive?  Note Lim:  Law must authorise detention ‘reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered (33)

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Authority to detain in custody is neither punitive in nature…nor part of the judicial power of the Clth (32) Note Al Kateb v Goodwin Note Plaintiff M68/2015 and the individual judgments (crucial that you know the facts/issues discussed here)

Al-Kateb v Godwin (2004) 219 CLR 562 • Under s 198(1), must be removed as soon as practicable if he asks to be • He was stateless and therefore no country would accept him when he was asked to be removed

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Two issues: (A) Did the legislation authorise indefinite detention? Should/Could the words be read consistently with fundamental rights? (B) If indefinite detention was authorised, did this contravene Ch III of the Constitution (the federal executive exercising the judicial power of the Commonwealth)? (A) Did the legislation authorise indefinite detention? Majority - no

Principle of Legality: States that ambiguities in legislation should be interpreted as consistently with fundamental rights

Week 8 - The Judiciary and Judicial Power (2) - State Level (State Courts) Main idea: State Courts and Incompatibility Cannot attach judicial powers to a principally non-judicial body to better affect its nonjudicial purpose; 2. Cannot attach non-judicial powers to a court established as part of the national judicature for a non-judicial purpose.

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For federal courts this means that they cannot exercise anything other than judicial functions, or ‘incidental’ non-judicial powers (e.g. court rules etc.)

In Kable the question was whether this applied to state courts as well. In particular, s 77(iii) of the Constitution says that state courts may be vested with federal jurisdiction (they form part of the national judicial system). Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Facts: Gregory Wayne Kable was about to be released from prison. He had killed his wife following past violent behaviour, but was convicted of manslaughter on the basis of diminished responsibility. There were serious concerns raised about the possibility he might offend again, based in part on a series of threatening letters he wrote mainly to relatives of his deceased wife – passed legislation to keep him in.

Issue: Can a State Court issue this kind of order? This came down to a question of what characteristics must State Courts exhibit (McHugh J): • Parliament cannot legislate for the court to disregard rules of natural justice when exercising federal judicial power (Kable, at 116) (see (2.3.2)) • The court must be, and must be perceived to be, independent of the legislature and the executive (at 116) • Comment: Yes the executive often appears before the Court, but so does every other party in legal proceedings. In this sense the perception of bias towards one party is ‘cancelled out’ by the fact that the opposing party also appears to make their case. How can a court lose its identity as a ‘court’? If it is granted non-judicial powers of a governmental nature that undermine its character:  E.g. determining how much of the State budget should be spent on welfare;  This would “have the effect of so closely identifying the Supreme Court with the government of the State that it would give the appearance that the Supreme Court was part of the executive government of the State” (117). Held: The court was vested with a non-judical role. “[The Act] makes the Supreme Court the instrument of a legislative plan, initiated by the executive government, to imprison [Kable] by a process this is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person” (122).

Week 9 - Limits on power (1) Express Rights and Bill of Rights Protecting Rights Principle of legality Al-Kateb v Godwin (2004) 219 CLR 562, [19] Gleeson CJ: ‘… Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.’  In other words: States that ambiguities in legislation should be interpreted as consistently with fundamental rights Discussion of a Bill of Rights Parliamentary Model (Model used below in the Court Assessment) Court Assessment (1) Interpretation (Consistent with Human Rights) (2) Proportionality (Balancing) E.g. Slaughter the Cow (Shambo) - is the government's action of killing Shambo because it carried a disease was a legitimate restriction on religious liberty. (3) Declaration (Inconsistency or Incompatibility) “ … if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect …” – not binding

Momcilovic v The Queen (2011) 245 CLR 1 Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 5 – reverse presumption of innocence. E.g. if the drugs were found in your home they were presumed to be yours and didn’t require the Crown to provide that. Court found that s 5 of the Act was a reversal of the presumption of innocence. This was not proportional and was not a reasonable limitation upon the right to the presumption of innocence. Express Rights Trial by Jury  o

Section 80: The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes

… ‘Section 80 might thus be translated: :There shall be trial by jury in those cases where the law provides that there shall be trial by jury.”’ B&W [26.78]  Issues is that then the State holds the power to chose if it should be a trial by jury by making an offence indictable or not. Religious Freedom 

Section 116: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. Guarantee

Case

No establishment of any religion

DOGS Case (1981)

Findings o

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Imposing any religious observance

s.116 prohibits only those laws which have as an express purpose the establishment of a single religion as a state religion Therefore, s116 does not prevent the Cth providing financial assistance to schools that are operating on a religious basis.

Jehovah’s Witnesses Case Latham CJ defines religion as  It might be a system of beliefs or statement of doctrine  It might prescribe a code of conduct or it might involve a prescribed ritual or religious observance.  It need not

involve belief in a deity s.116 includes persons who have no religion

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Prohibiting the free exercise Kryger v. Williams (1912) o of any religion

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No religious test shall be Williams v required as a qualification Commonwealth No. 1 for any office or public trust under the commonwealth

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Court basically said that to suggest that requiring him to attend training would inhibit his free exercise of religion was ridiculous. Must be a direct regulation of religious conduct Argued that the requirement in the program guidelines that school chaplains be recognized by a religious institution was a religious test for office. Court was unanimous in its rejection of this argument put by the plaintiff. Held that the chaplains were engaged by SUQ which merely had a contractual relationship with the Commonwealth and therefore did not hold a Commonwealth office.

Week 10 - Limits on power (2) Implied Rights and Freedoms Constitutional Rights and Freedoms are found in: (Freedom of Political Communication) Section 7: ‘The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. …’ Section 24: ‘The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth …’ Section 41: ‘Commonwealth will not disenfranchise anyone state confers with right to vote in state’ Section 128: ‘in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all electors voting also approve the proposed law …’

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 Mason CJ: As sovereignty – ‘The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives.’137

Gummow and Bell JJ, Rowe - ‘[47] … the progressive instincts and tendencies of modern political thought retains deep significance for an understanding of the text and structure of the Constitution.’  Important because the basic idea is that the HC is saying certain rights or freedoms may be necessary to reflect what is embedded in the text, mainly a representative democracy representing a sovereignty of the people. 7 Steps to Finding the Implied Freedom Based on Australian Capital Television (1992) 177 CLR 106: 1. Emphasising the popular foundations of the Constitution: consent of the people; designed to enhance self-government. a. argument is that the Constitution and it’s text is designed to enhance self governance b. 7,24,64 and 128- dependent 2. Notwithstanding Engineers, the Court has accepted that necessary implications have a legitimate role a. Isaacs J implied doctrines were the subjective desires of people unknown b. The court accepts that there are necessary implications arising from ss 7, 24, 64, 128 3. The Constitution, through several interconnected provisions (ss 7, 24, 64, 128), provides for a system of representative and responsible government 4. The Court considered representative government signifies: the ‘sovereign power’ of government, residing in the people, is exercised through representatives freely chosen. 5. That freedom of political communication is necessary and fundamental for this system of government. a. We have the understanding that the text imbeds an understanding of representative government, reflects the sovereign power of the people b. The freedom of political communication is necessary to develop this 6. The powers under s 51 are ‘subject to’ the Constitution: these heads of power do not authorise any law inconsistent with the constitutional implication. a. Aliens, external affairs etc 7. Like all freedoms, this cannot be absolute. a. From the very beginning, the court recognises there can be limits on the right to vote b. Implied freedom of political communication- terrorist laws mean terrorist political communication not a...