LAW2314 - Constitutional Law Exam Notes PDF

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LAW2314 - Constitutional Law Exam Notes...

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Characterisation    

a process the High Court sometimes uses to solve constitutional law problems at Commonwealth level It is necessary to characterise federal laws in order to determine whether they are supported by constitutional power For the law to be valid it must be characterised to bring it within the scope of the legislative powers conferred upon the Commonwealth Parliament The process of constitutional interpretation is two-fold (McHugh J in Re Dingjan): o The character of the law must be determined by reference to the rights, duties, privileges and powers it created, as well as its legal effect o It must be:  Subject matter powers - Test of sufficient connection. The law must be sufficiently connected to the scope of the power  Purposive powers – Test of proportionality, i.e. is the law reasonably appropriate and adapted to its purpose

Key Steps to Characterisation 1. Identify the constitutional power/s that the Commonwealth government might invoke to support the law 2. Interpret the scope of the head of power 3. Is the Commonwealth law a law ‘with respect to’ the head of power?   

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Once the character of the law has been ascertained, it is then a question of whether the character of the law bears a sufficient connection with the head of power The question is whether there is a sufficient connection between the law and the subject matter to be able to say that the law is one with respect to the subject matter – It emphasises that the connection must be substantial, not merely tenuous (Re Dingjan; Ex parte Wagner) In determining if a law is ‘with respect to’ the head of power, one must examine the practical and legal operation of the law to determine if there is a sufficient connection between the law and the head of power (see re Dingjan) o This is achieved by determining the right, liability, duty or privilege that the impugned law is creating or destroying, and establishing whether is it sufficiently connected to the subject matter of the power. The court will disregard the motive of parliament when determining sufficient connection: see Murphymores. The sufficiency of the connection may be direct of immediate – with the legal or practical character of the law operating in what is often described as the core of the power, or the connection might be more incidental (Granall v Marrickville Margarine Pty Ltd)

4. Is the law sufficiently connected to an incidental aspect of the power?   

A grant of legislative power with respect to a subject matter must include all the power that is necessary to make the grant effective in achieving its purpose (Nationwide News) The power to ... could be incidental power to make the grant effective (D’Emden v Pedder, Grannal v Marrickville) and commonly extends to penalty provisions (Burton v Honan). Dual Characterisation o If the rights, powers, liabilities, duties and privileges which a law creates is sufficiently connected to the subject matter of the power, then the Court will uphold the law, even if it can also be characterised as dealing with some topic that is extraneous to the Constitution

5. Is the law proportionate to a purpose power or incidental power?    

A consideration of reasonable proportionality is not necessary if a sufficient connection has been established (Leask, Grain Pool). The defence power and treaty implementation aspect of the external affairs power is purposive Legislation is said to be ‘with respect to’ these powers is characterised not by reference to its operation but by reference to the purpose or object of the law (Cunliffe v Commonwealth) Such legislation will be valid where it is reasonably capable of being seen as appropriate and adapted to the execution of the purpose (Tasmanian Dam Case)

Section 51(xxxv): Industrial Relations Power

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Section 51(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 To determine if an Act is valid legislation which falls under the s 51xxxv head of power, there must be a sufficient connection between the head of power and the Act (Re Dingjan; Ex Parte Wagner) as Parliament cannot validate an Act just because they merely claim it falls under a specific head of power (Leask v Commonwealth). Typically, a test of sufficiency of connection is applied – if a law is sufficiently connected to a power or powers invoked to support it, it will be said to be a law ‘with respect to’ the subject matter of the power The purpose of s 51(xxxv) is the prevention and settlement of interstate industrial disputes and the sole means of achieving that object is by means of conciliation and arbitration: Nationwide News v Wills The industrial relations power may be exercised in specific circumstances: where there is and industrial dispute that extends beyond the state boundary, and where the purpose is for prevention or settlement. Disputes can only be resolved through conciliation and arbitration. s 51(xxxv) is not a general power over industrial relations – it is limited by the definition of its subject matter. The power may only be exercised in specific circumstances – where there are industrial disputes extending beyond the limits of any one State – and then only for specific purposes – their prevention or settlement

Elements 1. Conciliation and Arbitration 

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s 51(xxxv) provides for two types of dispute resolution (Australian Railways Union v Victorian Railways Commissioners) o Conciliation – The coming together of the parties for the discussion of questions with a view to amicable settlement  Characterised by the voluntary involvement of the parties o Arbitration – The settlement of the dispute by a tribunal which included disputing employers and disputing employees as well as an independent umpire  Characterised by reference to the power of an independent and impartial umpire to determine the dispute where conciliation, or voluntary agreement, has failed Whybrow (No 1) provides that s 51(xxxv) does not extend to general regulation of industrial relations, and can only be exercised when settling a dispute through amicable settlement, or alternatively through independent and impartial ruling Arbitration – Connotes a process for the settlement of disputes by submitting them to the decision of a tribunal selected by the parties or accepted by them, and an agreement by both to be bound by the decision (Whybrow No 1) The power whether it is to settle or prevent industrial disputes, must be exercised by way of conciliation and arbitration, and can be exercised in no other way: see Whybrow No 1 (Per O’Connor J). The reference to arbitration limits the power to settlement of definite disputes between definite parties: Whybrow’s case

2. For Prevention and Settlement  

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s 51 (xxxv) is for the ‘prevention and settlement’ of industrial disputes, and therefore, its ‘preventative aspect clearly extends to authorise laws conferring powers of conciliation and arbitration if the Commission considers that an interstate dispute is otherwise likely to occur’ (Attorney-General (Qld) v Riordan) Attorney-General (Qld) v Riordan o The court held the preventative aspect of s 51(xxxv) extends to authorise laws conferring powers of conciliation and arbitration if the Commission considers an interstate dispute is otherwise likely to occur Re Federal Storemen and Packers Union; Ex parte Wooldumpers o The court held s 51(xxxv) might extend to legislate for the prevention of industrial disputes that fall short of being threatened, impending or probable.

3. Of Industrial Disputes 

An industrial dispute requires an industrial matter

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The essence of a dispute is disagreement, not industrial disturbance

Industrial matter  An ‘industrial dispute’ is a dispute between employees and employers about the terms of employment and the conditions of work: CYSS case.It need to be an industrial matter for the dispute to be properly regarded as industrial  ‘Industrial matters’ are all matters pertaining to the relations between employers and employee  Caledonian Collieries Ltd v Australasian Coal and Shale Employee’s Federation o To constitute an industrial dispute, there must be a disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship  CYSS Case o The popular meaning of industrial disputes includes disputes between employees and employers about the terms of employment and the conditions of work o Disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community o found by the High Court in the CYSS case the meaning of ‘industrial dispute’ is to be given its popular meaning and is not confined to productive industry or organised businesses who are in business for making profits  R v Kelly; ex parte Victoria o Facts: Whether butcher shop opening hours were an industrial matter o Held: Trading hours were not an industrial matter. All they regulated was when a shop opened or closed. o However, the hours worked by employees during those trading hours were an industrial matter o The words ‘industrial matters’ refers to the relation of an employer as employer with an employee as employee:  Jumbunna Coal Mine NL v Victorian Coal Miners’ Association o the word ‘industrial’ included cooks, stewards, waiters and hairdressers and need not be confined to industries connected directly or indirectly with manufacture or production.  Re Cram; Ex parte New South Wales Colliery Proprietors Association Ltd o A dispute about the number of workers and methods of recruitment was a matter in which employees had a direct and legitimate interest, falling within the scope of matters which could form the basis of an industrial dispute  Industrial matter must have a connection o An industrial matter must have a relevant connexion between with the relationship of employer and employee.” - Federated Clerks Union (Mason J) o In Federated Clerks Union case Mason J held that “in order to constitute an ‘industrial matter’ and become the subject of an ‘industrial dispute’ what is demanded must have a relevant connexion with the relationship of employer and employee.”In Federated Clerks Justice Mason determined that:  A matter is not an industrial dispute because it is a matter with respect to which persons who are employers and employees are disputing; and  However, in order for there to be an industrial dispute, what is demanded must have a relevant connection with the employer/ employee relationship. o Federated Clerks’ Union case proposed that an industrial dispute must regard more than simply disputing employees and employers, but must have a relevant connection to the employer/employee relationship Paper Disputes  Can be an industrial dispute  If one of the parties to an employer/employee relationship makes demands of the other party (often referred to as a ‘log’ of claims or demands) in respect of an industrial matter and this demand is refused, then subject to the other requirements of s 51(xxxv), this will normally be sufficient to create a dispute for the purposes of s 51(xxxv) Must be ‘real and genuine’  Mere disagreement between employers and employees is insufficient to create an industrial dispute  A claim will not be considered genuine if it is fanciful (Re State Public Services Federation; Ex parte AttorneyGeneral for the State of Western Australia)  The Federated Union case, Mason J found in order for an industrial dispute to exist, there must be more than a dispute between an employee and employer and there must be a relevant connection between the employee and employer for it to be found to be an industrial matter  Matters which have only an indirect, consequential or remote effect on employer/employee relations are not the proper subject matter of industrial disputes: see R v Kelly; Ex parte Victoria

4. Extending beyond the limits of any one State 

Jumbanna Coal Mine NL v Victorian Coal Miners’ Association

Provides that it is the dispute, not the industry or disputants that extent the issue beyond state limits, however federally registered unions (Jumbanna) and a unity of disputes between workers within separate states may extend the requirement: Caledonian Collieries v Australasian Coal and Shale Employees Federation (No 1) It is only necessary that the dispute extend beyond the limits of any one State – the dispute may extend from a State to a territory or from a State overseas (R v Foster; Ex parte Eastern and Australian Steamship Co) o A requirement of s51(xxxv) is that the industrial dispute extends beyond one State, either into another State or Territory of Australia or overseas Will usually be satisfied where a dispute has arisen between employers and employees where one or both of the following conditions are satisfied o The employees are in more than one State o The employers are in more than one State o

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Section 51(ii): Taxation Power

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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 taxation; but so as not to discriminate between States or parts of States The non-discrimination limitation repeats the more general prohibition found in Section 99 that the Commonwealth cannot discriminate between states in laws on trade, commerce, or revenue. Dual characterisation – Commonwealth can use tax power to effect macro-economic policy, so long as the legal effect of it is a tax Allows the Commonwealth to enact laws implementing “taxation, but so not as to discriminate between States or parts of states” The broad power in s 51(ii) to impose taxation must be read subject to the start of s 51 which grants the powers subject to this constitution. S 51(ii) must be considered in combination with s 90 Commonwealth can use s51(ii) to make laws with respect to taxation Although the States can levy income taxes, they cannot impose taxes on goods

Discrimination  

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Two types of discrimination. Treating like as unlike and treating unlike as like. James v Commonwealth o Justice Higgins stated that where the law is equally applicable but differs due to different conditions in the states then the law does not discriminate Moran Pty Ltd v Deputy Federal Commissioner of Taxation o The anti-discrimination requirement only limits the Commonwealth’s taxing power, not its granting power

Definition of a Tax (Air Caledonie International v Commonwealth) 1. A compulsory charge    

A critical element of a tax is compulsion - If a person has no choice but to pay, this will be sufficient to meet this requirement and it will be a tax – Victoria v Commonwealth (Payroll Tax Case) A tax is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not payment for services rendered – Matthews v Chicory Marketing Board If the person has no practical choice but to pay the charge, the criterion is met. Attorney General (NSW) v Homebush Flour Mills Ltd - per Dixon J: where payment “is exacted by means of sanctions” which are so strong that the taxpayer has no real option, the compulsory element of the definition is met The Truhold Benefit case held that liability for payment can only be imposed by reference to ascertainable criteria with a sufficiently general application and a tax cannot lawfully be imposed as a result of some administrative decision

2. Not arbitrary   

All that not arbitrary means is that there must be ascertainable criteria. Eg, income tax has an income criteria A charge that is preferable to some ascertainable criteria, such as volume, %, units is not arbitrary and is a tax – Deputy Federal Commissioner of Taxation v Truhold Benefit Liability can only be imposed by reference to ascertainable criteria with a sufficiently general application and … the tax cannot lawfully be imposed as a result of some administrative decision ….” - Deputy Federal Commissioner of Taxation v Truhold Benefit Pty Ltd

3. Enforceable by Statute 4. Not within the class of fees not properly defined as a tax 

Fees for services rendered o Harper v Victoria  HC held that Vic legislation did not impose a tax when it required all eggs to be graded, tests and marked by a government agency and imposed a fee on the owners of the eggs ‘to defray the expenses incurred therefor’  Said it was a fee for services rendered, the purpose of which was to defray the costs of those services

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Fee for privilege o where something of value is received for paying the fee (such as a right to fish) – Harper v Minister for Sea Fisheries

Harper v Minister for Sea Fisheries  Court found that the licensee, Harper, gained a right akin to property by paying the fee. That is, it actually sat somewhere in between a privilege or a statutory licence.  It was therefore within the class of services not properly defined as a tax. It was therefore not a tax  the High Court went on to say that the exaction would be seen as a tax if it had no discernible relationship with the value of what was acquired  held that the right gained by Harper – which sat somewhere between a privilege and a statutory licence – was within the class of services not properly defined as a tax and therefore not a tax Fines/Penalties o fines/penalties, where it is a payment for solely for unlawful acts o R v Barger  a penalty is a payment claimed solely as a penalty for an unlawful act or omission, eg a fine for littering o MacCormick v Federal Commissioner of Taxation  confirms that fines or penalties that attach to non-payment of taxes are incidental to taxation powers. Therefore they don’t run afoul of s55 o

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Section 90: Customs and Excise 

On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive

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Section 90 gives the Commonwealth the exclusive, as opposed to concurrent with the States, power to impose 'duties of customs and of excise' - Any state taxing law on this power will be unconstitutional. Section 90 limits the states' ability to raise money, when they have considerable funding obligations (e.g. schools and hospitals). Therefore, Section 90 and Section 96 — which allows the Commonwealth to impose "terms and conditions" on grants — have led to a vertical fiscal imbalance If it’s not a tax it does not infringe s 90 Section 90 prohibits the State Governments from levying customs duties and excise duties - Only the Commonwealth Parliament can impose these kinds of taxes As s90 is a restriction, it must be kept in mind for characterisation exercises, especially those involving taxes. It only applies at State level. The Commonwealth can impose taxes on goods - they impose the GST

Custom Duties   

A type of tax imposed on import or export goods Generally, a customs duty is a tax imposed on goods entering a jurisdiction A customs duty is a tax imposed on goods imported into, or exported out of, Australia. An excise duty is a tax that is imposed on goods which are already in circulation in Australia

Excise  

An excise is a type of sales tax on goods, and the High Court of Australia has interpreted this power broadly. Broader view has been approved – Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) and Ha v New South Wales o An excise duty is a ‘tax in respect of goods at any step in the production or distribution to the point of consumption’ or ‘an inland tax on a step in production, manufacture, sa...