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Exam Scaffold –Corporations Power s51(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: ... (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Com...

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Exam Scaffold –

Corporations Power s51(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: ... (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

Industrial Relations Power is also relevant s51(xxxv) “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 ... conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”.

First issue: 1. Is the entity being regulated a constitutional corporation under s51(xx)?  ‘Activities Test’ formed in R v Federal Court of Australia; Ex parte WA National Football League (Adamson’s Case) (1979) 143 CLR 190 o Look to gate receipts, distribution of income against clubs, sources of income (broadcasting, size of revenue). o Clubs purpose was financial gain. o The degree of activity that makes a corporation a trading or financial corporation = ‘sufficiently significant proportion of its overall activities’ in contrast to ‘so slight and incidental’. 

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The ‘degree’ question was settled in State Superannuation Board of Victoria v Trade Practices Commission (1982) 150 CLR 282. o Financial activities must form a substantial proportion of total activities, even if other more extensive non-financial activities also take place. The issue remains that - The amount of trading or financial activities of a corporation can change over time. Thus, if we are defining trading/financial corps on the basis of activities, its status as a constitutional trading/financial corporation could change over time.

Purpose test - High Court has accepted that where the corporation has no activities, a purpose (ie proposed activities) test has a role: Fencott v Muller (1983) 152 CLR 570) o ‘the objects clause of its memorandum of association is an inadequate and may be a misleading guide. For many years it has been the practice of those drawing memoranda of association to give to companies powers to engage in multifarious activities, many of which bear no relation to the actual or intended affairs of the

company.’ o Since 1998, a company need not have a constitution and can instead adopt the generic ‘replaceable rules’ set out in the Corporations Act. 2. What aspects/activities of a corporation can be regulated by s51(xx)? i.e Does the law fall within the ambit of the express power?  Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 older view – overturned by Strickland v Rocla Concrete Pipes Ltd (1971)  Use the (Work Choices) case – current position: Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ adopt the ratio of Justice Gordon in Re Pacific Coal. o The power conferred by s 51(xx) extends to:  The regulation of activities, functions, relationships and business of a corporation (incl internal relations, industrial relations, dealings with shareholders etc).  The creation of rights, and privileges belonging to such a corporation  The imposition of obligations on it  The regulation of the conduct of those through whom it acts – employees, shareholders  The regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business. Whether the law falls within the ambit of the express power depends on the view in which it is read. Initially, the ambit was limited to the older view that was expressed in the case of (Huddart). This case stated that ‘Because this case was decided preEngineers, the Reserved State Powers doctrine was still valid, so s 51(xx) was limited to the extent that it did not enable to Cth to regulate the operation of a corporation that “lawfully enters upon a field of operation, the control of which is exclusively reserved to the States” (Griffith CJ at 354). This notion was strictly overturned in the Strickland case. There were 3 views that developed since Huddart. 1) Narrow view: limited to the regulation of trading activities of trading corporations. 2) Intermediate view: extends to activities of trading corporations engaged in for the purposes of trade. 3) 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.

What categories of persons other than corporations can be regulated due to their relation to constitutional corporations?

If the Commonwealth could regulate on any matter so long as it referred to the object (e.g. identified finance, trade, foreign), it could regulate too much. Broad View: Re Dingjan; Ex parte Wagner;  Laws that protect s51(xx) corporations from the conduct of non-corporations, for example, are laws with respect to s 51(xx) corporations.  Corporations power allows the Commonwealth to make laws on any subject that affects the corporation. 

However, the law must have ‘a relevance to or connection with’ a s 51(xx) corporation. It is not enough for the law to refer to the subject matter or apply to the subject matter.

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It must have significance to activities, functions, relationships or business. I.e. give some benefit or detrimental effect.

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A law that makes the activity merely a condition for regulating the conduct of another is likely to be outside of power.

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A law that makes the activity merely a condition for regulating the conduct of another is likely to be outside of power.

Work Choices case – the object of command test (broad view) The power conferred by s 51(xx) extends to:  The regulation of activities, functions, relationships and business of a corporation (incl internal relations, industrial relations, dealings with shareholders etc).  The creation of rights, and privileges belonging to such a corporation  The imposition of obligations on it  The regulation of the conduct of those through whom it acts employees, shareholders  The regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.  The corporations power is a ‘persons power’ (104). ‘[T]he power is to make laws with respect to particular juristic persons.’  At [177] – adopts Gaudron J’s dissent in Re Dingian; Ex Parte Wagner (1995) 183 CLR 323, 365  Power “also extends to the persons by and through whom they carry out those functions and activities and with whom they enter into those relationships”’

Inconsistency s109 ‘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.’

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Federal law will prevail over state law – the state law was validly passed, but to the extent of any inconsistency it does not apply; state law can therefore be fully operative again if the Federal law is repealed Commonwealth law prevails.

Three steps for Inconsistency: Telstra Corp Ltd v Worthing (???) 1. Impossibility of obedience  One law commands what the other forbids, or when one law compels disobedience of the other.  ISSUE: Can both laws be obeyed simultaneously?  The Ex Parte; Daniell Case proposes the logical impossibility notion. o The Liquor Act 1912 (Qld) said that the state referendum on liquor trading was to be held on the same day as a state election. o Concluded that the two laws were inconsistent because the state officials could only obey the State law by disobeying the Commonwealth law. o Sometimes it is possible to obey both laws without disobeying either one (Clyde Enginerring Pty Ltd v Cowburn). o Industrial award granted pay and overtime based on a 48-hour working week, while a State law provided the same based on a 44hour working week. Both laws could be obeyed by paying the wages based on a 44-hour working week. 2. Denial of rights  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)  One law says that you can do X, the other that you cannot do X  Must look to the practical working out and actual effects of each law.  ISSUE: Does the State law purport to deny/diminish a right given by the state law? o “Simultaneous obedience” was possible (employee could work 44hour week and have pay docked four hours for failing to work the 48 hours required under Cth legislation) (Clyde Engineering Pty Ltd v Cowburn). o 

McBain v Victoria (2000) 99 FCR 116 o Section 8 of the Infertility Treatment Act 1995 (Vic) compelled discrimination in fertility treatments on the basis of marriage status. o Section 22 of the Sex Discrimination Act 1984 (Cth) prohibited a

person from refusing to provide services to another person on the ground of the other person’s marital status o Commonwealth Act prevailed Knox and Gavan Duffy JJ: (CLYDE ENGINEERING CASE)  At478: “[T]he enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes may do more than impose duties: they may, for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it.”

3. Cover the field Victoria v Cth (The Kakariki)  Issue: Is there a legislative intention that the Cth law covers the field?  First question is whether the State law operates in the same field as the commonwealth law. o If yes, the question is whether the Cth law expresses an intention that the law be completely, exhaustively, or exclusively the law governing the particular conduct or matter to which its attention is directed, as opposed to an intention that it be merely supplementary to or cumulative upon the State law (ex parte McClean)  PROCEDURE: o (1) Ascertain the operation of the federal law; o (2) Ascertain the operation of the state law; o (3) Whether the State law, as interpreted, would impair or distract from the operation of the federal law; o (4) Make a judgement on whether the law is inconsistent.  This ‘impairment or distraction’ must be of a significant conflict and that the way in which the State law impairs the Cth must not be trivial. ((Jemena Asset Management (3) Pty Ltd v Coinvest Ltd). 1. Determine the field (or subject matter) regulated by the Commonwealth (characterise the legislation by considering what rights, duties, obligations, benefits etc are affected by the law) Ansett v Wardley REFER TO ANSETT 2. When there is no express intention to cover the field: (O’Sullivan v Noarlunga Meat Ltd)  ISSUE: did the commonwealth regulation demonstrate an intention to cover the field? o Comprehensiveness of Cth regs demonstrated intention to cover the field of premises used for slaughtering. o Mainly because, the State would be prohibiting the use of the premises for the purpose they had been registered with the Cth (for slaughtering). NOTE: When interpretation suggests no intention: R v Credit Tribunal; Ex parte General Motors Acceptance Corp (GMAC case) (1977)

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Situations in which no conflict results: Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47: o Cth licence for a new broadcasting station given, condition of the licence was the construction of antennae. Challenge based on NSW environmental legislation. o Held: no inconsistency. o Reasoning: The Cth requirement was open to two interpretations – one, that it authorised the breaching of NSW law; second that the duty did not extend to overriding NSW law (Gibbs CJ and Brennan J, 50). As the second interpretation was open, there was no intention to control the entire field.

Note: A Cth law cannot retrospectively deprive s 109 of its operation, as no Cth law can prevail over the Constituion (SEE Metwally) SAME-SEX MARRIAGE CASE (2013)  ISSUE: Does s 51(xxi) give the Cth Parliament power to make laws in respect of same-sex marriage?  ISSUE: Had Parliament evidenced an intention to cover the field of ‘marriage’ to the exclusion of state and territory legislation? o ‘There cannot be concurrent operation of the federal and Territory laws if, on its true construction, the Marriage Act is to be read as providing that the only form of marriage permitted shall be a marriage formed or recognised in accordance with that Act’. o Referred to the purpose of the marriage power (‘to enable the federal Parliament to provide uniform laws governing marriage and divorce’ (at [7])) o Wanted to avoid a conflict of laws problem in a federal state. (Would a valid SSM in the ACT be valid in NSW for example?) Referred to the Marriage Act (Cth) as a ‘complete statement of the law’, and a ‘comprehensive and exhaustive statement’ (recall Ex parte McLean conditions). o Noted that the fact that the Cth had not permitted SSM did not give the ACT the freedom to make such a provision.Noted also that if the Cth passed SSM, a marriage solemnized under the ACT law would be void (because in those circumstances the ACT law would directly encroach on a field already covered by Cth law).

Executive Power s61:

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 laws of the Commonwealth.’

SEE LUKAS’ NOTES FOR A SUMMARY

Judicial Power and Executive Detention: Limbs of Boilermakers – Limb (1): The judicial power of the Commonwealth can only be vested in a Ch III Court • What happens when administrative bodies exercise judicial power? • What happens when Executives engage in detention without judicial determinations of guilt? Exception to principle 1: delegation of judicial power, discrete exceptions ie s49 Limb (2): Ch III Courts can exercise only the judicial power of the Commonwealth • What happens when federal Courts are given state power? • What happens when making interim control orders? • What happens when non-judicial roles are given to judges? Exception to principle 2: Incidental powers, persona designate exception BOILERMAKERS CASE:  PRINCIPLE: The judicial power of the Commonwealth can only reside with a court created under s71 of the Constitution (providing for the HC and federal courts) or a state court vested with federal jurisdiction.  YOU CANNOT: o Attach judicial powers to a principally non-judicial body to better affect its non-judicial purpose. o Add non-judicial powers to a court established as part of the national judicature for a non-judicial purpose.  What is judicial power? o ‘Concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted’.  TWO QUALITIES must be maintained for judicial power: o Decisional capacity – the means and independence to determine parties’ rights. o Binding obligations – the means to enforce the determination EXECUTIVE DETENTION: Quarantine, enemy aliens in wartime, asylum seekers pending refugee status…  Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1

o ISSUE: Was this an exercise of judicial power, contrary to Ch. III of the 

Constitution? – Held NO. Provisions were valid. Detention of citizens: o MAIN QUESTIONS IN LIM: What is the central example of a matter ‘established as essentially and exclusively judicial in character?’.  Judgement and punishment of criminal guilt under a law of the Commonwealth. Is the decision penal or punitive in character?

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Citizens: o Generally have an ‘’immunity’ – Parliament could not invest the executive with an arbitrary power to detain citizens without determining

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criminal guilt. Exceptions to this general rule: o Arrest and detention pursuant to a warrant. o Involuntary detention for mental illness etc. o NOT PUNITIVE – if they were, would be exercising judicial power.

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In the case of non-citizens (s51(xix)) the aliens power, detaining is not contrary to vesting of judicial power where: o The provide for expulsion or deportation o They authorise the executive to restrain in custody to make deportation effective

THE TEST:  The law must authorise detention ‘reasonably capable of being seen as

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necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered’. The law must not be ‘punitive in nature… nor part of the judicial power of the commonwealth’. o In LIM, the provisions were valid because the detention was for a limited period of time AND the detainee always had the power to end their detention by asking to be removed. ‘A person is not being punished if they choose to be detained’.

Al-Kateb v Goodwin...