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WEEK ONE Sue v Hill (1999) 199 CLR 462  Facts 

Heather Hill stood for and won a seat in the Senate at the 1998 federal election. She was disqualified because she had not renounced her UK citizenship.

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Section 44(i) of the Constitution provides a person is disqualified if they are ‘under any acknowledgement of allegiance, obedience, or adherence to a foreign power …'

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Hill Argument= At federation, all members of the Empire were British subjects. There was no differentiation. Britain could not be considered a foreign power Issue  Was the UK a foreign power under s44(i) Held  The UK is a foreign power (since 1986 with respect to the exercise of legislative power Reasoning

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The words [of s44(i)] invite attention to questions of international and domestic sovereignty

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The Constitution was to be read in light of the ‘march of history’ [51];

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the Const was to endure [51];

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end of empire, rise of full constitutional power [52]

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Since ‘at least the commencement of the Australia Act 1986 (Cth)’ the Court has not been bound to recognise and give effect to exercises of legislative, executive, or judicial power by UK institutions [59]

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Since 1986, the UK government has had no (theoretical) responsibility for the government of any state – advice was given to the Queen by the Premier of the State (basis of Executive government) And since 1929 – the Queen takes advice from Cth ministers in Cth matters [77]

Singh v Commonwealth (2004) 222 CLR 322  Facts  Ms Singh: born in Australia in 1998 to Indian parents. All non-citizens without a visa. ‘She is a citizen of 

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India, by descent’ [2] Government orders her removal as an unlawful non-citizen under the Migration Act 1958 (Cth). Issue  Was s198 of the Migration Act 1958 (Cth), providing for the removal of a non-citizen who was born in Australia, within the naturalisation and aliens power?  Further  Is a non-citizen who is born in Australia, an alien within the meaning of s51 (xix) of the constitution? Argument- Singh  Under s 51(xix), Parliament’s power (in this case of removal) is limited to ‘aliens’.  Notwithstanding her Indian citizenship, and her lack of Australian citizenship, she is not an alien because she was born in Australia. Held  Law was valid because the mere fact that Singh was born in Aust. Does not make her a citizen, rather she is a non-citizen AND Alien (thus subject to s 51 (xix)) Reasoning  minority

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Without constitutional amendment, a person born in Australia (excluding categories not relevant to this case – e.g. born to a diplomat) could not be considered an alien (McHugh J, [35])

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1900 – the essential meaning (‘connotation’) of the ‘alien’ was ‘a person who did not owe permanent allegiance to the Crown’ (McHugh J [38]); a feudal conception of vassals and fealty, as understood at CL

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A person born in Australia is a ‘natural born “subject of the Queen” of Australia’ – this was the position as understood by those who framed the Const – and therefore could not be an alien ([35], [56]) majority

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Parliament could adopt the view that Ms Singh was a non-citizen and therefore an alien (Gleeson [30])

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What was an 'alien'?= A person 'owning obligations to a sovereign power other than the sovereign power in question' (Gummow, Hayne, Heydon JJ [154])

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What kind of power is the aliens power?

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What was the relationship between ‘citizen’ and ‘alien’? How did this come about?

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Alien in s 51(xix) of the Constitution ‘has become synonymous with non-citizen’ (Gleeson CJ, [4])

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As an ‘effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship’ (ibid)

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Gleeson CJ: Grants power to Parliament ‘to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship …’ [4] Shifting application over time E.g. at federation – a person not born in Australia/Empire; E.g. presently – a non-citizen (of Indian descent)

Alien power is a power for Parliament to create and define (non)citizenship (a status)

What were McHugh J's concerns?

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(1) Argues ‘alien’ in the Constitution is now defined by ‘non-citizen’ in ordinary legislation. What is wrong with that?

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‘The stream cannot rise higher than its source’ (Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1, 258 Fullager J) See [36] judgment (2) Argues the majority has changed the meaning of ‘alien’

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From ‘subject of the Queen in right of Australia’ to ‘citizen’ (not owing allegiance to foreign sovereign) Compare the position of British persons in Australia pre and post 1986 and Singh On the meaning changing with evolving independence Still requires pointing to constitutional change independent of legislative change; ie something must have happened that changed how the Constitution itself is understood ([37]) ([38])

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E.g. British citizens are now ‘aliens’ – why?

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They do not owe allegiance to the Queen of Australia – different legal personality (Sue v Hill and Australia Acts)

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But does this apply to persons born in Australia?

Interpretation

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For McHugh J?

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The text’s primacy ([51]); History to explain the meaning of the text; Statutory interpretation – what was text directed at (what mischief) What does Callinan J focus on?

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Convention debates [293] Objectively ascertained intentions of the Constitution’s makers [295] (against ‘progressivism’) ‘Respect for the constitutional settlement is the primary obligation of a constitutional court’ [6]

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Legal context surrounding the Constitution [12]; Nature and purpose [16]; State of the law at the time; Developments over time in national and international context What do Gummow, Hayne and Heydon JJ focus on? History – to understand the central characteristic of the power [159] Historical development – the different application/operation of the word/central characteristic [160] The purpose of a constitution – to ‘speak to a future’ Concern for consequences? [195]-[198]:  P’s argument – a considerable fetter on Parliament [193] How does Kirby J characterise the two arguments?

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Notes plaintiff raises an ‘originalist’ argument – ‘subject of the Crown’; would require amendment to abolish birthright and subjecthood [221]-[236]

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Contrasts progressivism

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‘For me, that word, like every other word in the Constitution, is not frozen in whatever meaning it may have had in 1901. Thus, for me, this case is primarily about the proper approach to constitutional construction.’ [243]

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While the Court is anchored by the text …

‘the ambit of the power is not limited by the wishes, expectations or imagination of the framers. They did not intend, nor did they enjoy the power, to impose their wishes and understanding of the text upon later generations of Australians.’ [247] What did Kirby J think had happened to the term ‘alien’  Singh raised an originalist argument  Contrasts this with his progressivism  That the meaning of alien has changed, not simply its application  Ct has done this previously – Sue v Hill and what it is to be ‘a subject or a citizen … of a foreign power’ [248]  Reflects technological change - no real threat in 1901 of ‘adventitious arrivals of parents’ [255]  Political theory –  Shift from feudal conception of subject to monarch, as well as the indivisible Crown, to:  ‘Constitutional notions of membership of the Australian community, and of who constitute the "people of the Commonwealth"’ [264]; ‘aliens’ adapts to ‘modern notions of Australian nationality’ [264]

WEEK TWO Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129  Fact o A union of engineers sought to enforce an award (conditions of employment) from the Commonwealth Court of Conciliation and Arbitration against 843 employers across Australia. In WA, the employers included two trading enterprises employed by the WA Minister for Trading Concerns.

o However the CCCA was under federal conciliation and arbitration legislation which was meant to be recognized by s 51 (xxxv)

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S 51(xxxv)= "The parliament shall, subject to this constitution, have power to make laws for the peace, order and good governance of the Commonwealth with respect to … (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state"

Issue

o Revolved around s 52 (xxxv) = Industrial Relations power

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Could a Cth law made under the ‘conciliation and arbitration’ power (s 51(xxxv)) authorise an award binding those WA government employers? (raised Doctrine of implied immunity of instrumentalities

Held

o The Court could have concluded that these corporations were not governmental bodies, but it went much further. The decision has impacted most in its rejection of reserved state powers doctrine.

o The cth act and award could constitutionally apply to the states 

Reasoning- Majority

o Cth powers must be given a liberal construction o the majority calls the Constitution ‘the political compact of the whole of the people of Australia’ (142) o Supporters focused on: 

1) Having one nation;

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2) The presence of responsible government

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A – aligned the Constitution more with the UK than the US – national, rather than federal (147)

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B - ‘When the people of Australia, to use the words of the Constitution itself, “united in a Federal Commonwealth,” they took power to control by ordinary constitutional means any attempt on the part of the national Parliament to misuse its powers.’ (151)

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Ie no implied doctrine was needed; constitutional interpretation should not take place against hypotheticals of abuse; inappropriate for the court to inquire into potential abuse – a political question (150)

o Interpreting Commonwealth Powers 

Must apply ‘settled rules of construction’ (143):

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‘this Court faithfully to expound and give effect to it according to its own terms, finding the intention from the words of the compact, and upholding it throughout precisely as framed’ 142

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Form of legalism, the first place you look is the constitutional terms itself based on a natural meaning unless there are any explicit limits

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focus must be on, first, the ‘natural meaning’ of empowering provisions, ‘unrestricted’ by implied theory (144)

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‘The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, and then lucet ipsa per se [the thing reveals itself].’ 152

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Note: textualism (or here legalism) does not necessarily mean looking at the text alone

o Characterization question: 

E.g. Is this law [regulating the employment practices of ‘trading corporations’ (s 51(xx))] a law with respect to ‘trading corporations’?

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only limited by whether the statute in question violates an express condition placed on the empowering provision in the Constitution (143)

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Section 109 – Cth supremacy applies to all Cth Acts, even when the state Act relates to a matter passed under an ‘exclusive’ state power (155)

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In this case – persons natural and artificial representing the State were subject to the Cth industrial power, unless there was an express condition or restriction in the Const.

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Section 51(xxxv) (the industrial disputes power) was broad, ‘extends to all industrial disputes in fact extending beyond the limits of any one State’, and there was no exception when a State itself was involved. i.e. no more implied immunities doctrine

‘the political compact of the whole of the people of Australia’ (1

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Reasoning minority

o Griffith CJ’s understanding of the constitution – that non-interference between government powers is assumed unless the power was clearly granted – was found in the ‘vague, individual conception of the spirit of the compact’ (145); ‘the expectations and hopes of persons undefined’ 145

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i.e. it was his own subjective view Effect

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A seismic shift in interpretation; growth of national power Overturned the doctrine of implied intergovernmental immunities and reserved state powers and established the modern basis for the legal understanding of federalism in Australia

Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353, 395 Windeyer J: 

‘The word “compact” is still appropriate but strictly only if used in a different sense – not as meaning a pact between independent parties, but as describing a compaction, a putting of separate things firmly together by force of law.’

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Pointed to the solidifying of a ‘nation’ through economic changes (integration, growing industry), war (WWI), and ‘the unifying force of federal law’ (396)

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Argued the states, before federation, were not sovereign in any strict legal sense – they gave over powers to the Cth. ‘[T]he position of the Commonwealth, the federal government, has waxed; and that of the States has waned.’ (396)

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Argued that Engineers reflects an explicit shift (progression) in how the HC read the Constitution (396)

Cole v Whitfield (1988) 165 CLR 360  Facts o Crayfish case o Whitfield brought the fish from SA however, they did not meet TAS minimum requirements (which were put in place for protection of TAS crayfish)

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Issue

o This case considered the issue of section 92 of the constitution and whether or not particular regulations in Tasmania that imposed rules on the sale of crayfish were discriminatory and affected the freedom of interstate trade and commerce.

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Held

o The court overruled the long held notion that the words "absolute free" in s 92of the Const protected a personal individual right of freedom in interstate trade

o It was replaced with the economic notion of free trade= the intention of the law was to create free trading among aust. States, thus laws of a protectionist kind interfering with interstate trade and commerce would be invalid

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Reasoning

o Broke tradition and used the constitution convention debates to establish the true purpose of s92

WEEK THREE Polyukhovich v Commonwealth (the War Crimes Act Case) (1991) 172 CLR 501

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Facts:

 s 9 of the War Crimes Act 1945 (Cth) provided for the trial and punishment of Australian citizens and residents who might have committed war crimes during WWII

 The plaintiff, at the time of the alleged crimes, was not a resident or citizen  Polyukhovich argued that the law was beyond the scope of the Cth legislative power (s51(xxix). Further argued that the attempt to make past criminal conduct an offence was an invalid attempt to usurp the judicial power of the Cth, that power being vested by the const. in chapter III courts, by enacting what was effectively a bill of attainder

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Issue:

 Does the external affairs power extend to all persons, matters or things ‘external’ to Australia, regardless of a factual nexus or relationship to Australia?

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Held

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Reasoning

 By majority (6:1) the act was a valid exercise of the external affairs powers  ‘If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase “external affairs”.’ (632, Dawson J)- natural reading of the constitution

 Brennan J, dissenting: ‘The “affairs” which are the subject matter of the power are, in my view, the external affairs of Australia; not affairs which have nothing to do with Australia. … There must be some nexus, not necessarily substantial …’ (550-1)

 Toohey J, agreeing in principle – ‘it might be thought more than passing strange that the Constitution 

solemnly conferred power on the Parliament to legislate with respect to a matter in which it had no interest’ (654) – but he found there was a sufficient connection Note – in Victoria v Commonwealth (the Industrial Relations Act Case) (1996) 187 CLR 416, Brennan CJ and Toohey J accept the majority’s view

Horta v Commonwealth (1994) 181 CLR 183

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Facts: Parliament was making laws regarding offshore mining according to a treaty. The plaintiff brought a claim challenging the validity of the treaty and thus claiming that the law is invalid (since it is no longer the implementation of a treaty).

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Issue: validity of the Petroleum (Australia-Indonesia Zone of Co-operation) Act 1990 (Cth) – implementing a treaty between the countries to permit and regulate petroleum exploitation in the Timor Gap

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Held:

o Where geographically external to Australia; and where Parliament recognises the matter as affecting Australia=Are prima facie ‘external affairs’ within s 51(xxix) (at 194)

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Reasoning/Ratio

o Emphasis is on geographically external: o ‘External affairs’ character applies  (a) regardless of treaty – would have applied without a treaty, because the matter is geographically external; and

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(b) for the same reason, regardless if the Treaty is contrary to international law (195) o the parliament was legislating wth respect to an area geographically external to Australia and thus the power is engaged - mere externality is enough. In addition, an act which legislates with respect to external affairs is still valid under the power regardless of any international law - it is not for the court to assess the validity of a treaty.

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The act also does not need to be one which is otherwise under a Cth head of power, however it cannot be contradictory to it.

XYZ v Commonwealth (2006) 227 CLR 532

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Facts:

 ss 50BA and 50 BC of the Crimes Act 1914 (Cth) rendered it an offence for an Australian citizen or resident, while outside Australia, to engage (or attempt to engage) in sexual intercourse with, or commit an act of indecency on, a person who is under 16 years of age.

 P challenges the validity of these provisions – whether geographic externality was enough 

Gleeson CJ, Gummow, Hayne and Crennan JJ:

 Geographic externality is sufficien 

Kirby J:

 Expressed rese...