Reading Log - Week 4 PDF

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Australian Constitutional Law – Autumn, 2018

Reading Log – Questions (Week 4)

A) Federalism: State Constitutions and the Melbourne Corporation Doctrine 1. What are the two tiers of Australian Federal Government? Commonwealth and States (individual) 2. According to James Madison, what is the political objective of Federalism and how is this to be achieved? Objective = proved a more liberative mode of government that unifies the people, prevents the possibility of absolute power being vested within one body and permits diversity by providing a clear access point for political participation amongst the people. Achieved = Dividing powers between the state and federal government – creating a form of dualgovernment – dividing powers to form ‘many independent states and not one aggregate nation’ 3. How do Galligan and Walsh suggest that Federalism operates in Australia? How does James Gillespie critique this position in Australia? Is it possible to reach a coherent political position on the issue of federalism and if so, which view do you prefer? 4. What is the ‘implied immunity of instrumentalities’ doctrine and where does it come from? Basically = statues passed by one level of legislature don’t bind the central government (the Crown) in right of the other. 5. What are the ‘reserved State powers’? How does Aroney critique these powers? “Neither the commonwealth or the states can legislate so as to control the other” – Slide 18 Basically = the constitution should be read in a restrictive manner so to preserve as much autonomy as possible for the states. 6. What were the facts in the Engineers Case (1920)? Cite four reasons that a majority of the High Court, led by Justice Isaacs, quashed the reserved State powers doctrine. Facts: - Claim for an award relating to 844 employers across Australia - S51 – can the Cth make laws on conciliation and arbitration - S107 – reserves the state their law-making powers – unless exclusivity vested in Cth Main Q’s: 1. Could the Cth make the law? 2. Could the Cth bind the States? Reasons for Quashing: 1. No implication from s107 that s51 should be interpreted narrowly 2. Literal words of s51 = Cth had the power to make the law and bond the states o There was no implied intergovernmental immunity 3. Words of s51 = if read naturally = Cth could make laws on arbirtraion and the staes had ‘residual power’ 4. ‘common and indivisible sovereignty’ 7. How did Justice Windeyer view the trajectory of federalism and the Engineers Case in the Payroll Tax Case (1971)? 8. Name three Federal limitations upon State constitutions (and thereby State power). 1) Areas of power exclusively vested in the commonwealth – e.g. s90, s51 2) Implied limitations – e.g. s92, s109, s112, s114, s117

Australian Constitutional Law – Autumn, 2018

Reading Log – Questions (Week 4)

3) Express limitations – e.g. s106 OR (check in class) 4) Special Crown Prerogatives (Exclusive Powers) 5) Taxation 6) Discriminatory Laws 9. What does ‘plenary power’ mean? How is plenary power typically described within State constitutions? What was the democratic rationale behind plenary power according to the High Court in Union Steamship Co of Australia v King (1988)? Do you agree? 10. Describe the process by which a State constitution may be amended. State-Wide Referendum OR absolute majority OR special majorities in the Parliament 11. Is there any difference between ‘intergovernmental immunities’ and ‘implied immunity of instrumentalities’? 12. What were the facts in the Melbourne Corporation Case (1947) case? Did the Melbourne Corporation doctrine limit the power of the States in respect to the Commonwealth or the Commonwealth in respect to the States? How did the High Court distinguish its findings in this case in 1947 from those stated in the Engineers Case in 1920? 13. Why did the High Court decide not to apply the Melbourne Corporation principle in the Payroll Tax Case and the Tasmanian Dams Case (1983)? 14. What were the facts in QLD Electricity Commission v Commonwealth (1985) which led the High Court to apply the Melbourne Corporation principle once again? 15. There are a number of factual similarities between the application of the principle in QLD Electricity Commission and Re Australian Education Union; Ex parte Victoria (1985). Identify these similarities and their legal consequences. Discuss whether you think the Melbourne Corporation principle should have been asserted in both cases. 16. What were the facts in Austin v Commonwealth (2003)? How did the High Court reformulate the Melbourne Corporation doctrine in this case? Do you agree with the application of the principle in this case? 17. In what way did the Workchoices Case (2006) break with previous applications of the principle, particularly in the arena of industrial relations? How did Callinan and Kirby JJ describe the approach of the majority? 18. What was the rule decided by the High Court in Cigamatic (1962)? In what way is this rule reciprocal to the Melbourne Corporation principle? 19. What were the facts in Henderson’s Case (1997)? How did this decision reflect the Cigamatic principle? Do you agree with the decision in this case? If not, which legal argument from which case might you assert to defend this position? B) Executive Power & Nationhood: Section 61 1. Which political institutions comprise the federal executive government of Australia? i. The Prime Minister ii. The Federal Executive Council iii. The Cabinet iv. The Governor-General v. Public Service/Bureaucracy vi. Police/Army

Australian Constitutional Law – Autumn, 2018

Reading Log – Questions (Week 4)

2. How is the Governor-General appointed? Which sections of the Constitution prescribe the powers of the Governor-General? How must the Governor-General exercise these powers? Appointment: - Prime Minister chooses governor-general - Prime Minister advises the monarch to appoint said person - Monarch Agrees and then Appoints - Taking of Oaths – Oath of Allegiance and Oath to Office - Queen issues a Proclamation assuming office Prescribed Powers by the Constitution: - S2, s5, s19, s20, s28, s32, s33, s35, s37, s42, s56-65, s67-68, s72, s126, s128 Exercise powers? On advice of the ministers, through the Prime Minister 3. What are the ‘reserve powers’ of the Governor-General? In what circumstances may the Governor-General exercise their reserve powers? Powers related to the dissolution of parliament and the appointment of the ministers Circumstances: - PM advises a dissolution on the occasion of a deadlock b/w the houses – GG may refuse this request - GG is not satisfied with a presented legislative bill – may refuse royal assent - PM resigns after losing a vote of confidence – GG may select a new replacement contrary on the advice of the leaving prime minister - GG may dismiss PM and appointment a new PM if PM refuses to resign or advise dissolution 4. How are Prime Ministers appointed in Australia? Are governments appointed or elected in Australia? Government is elected in Australia – the PM is Appointed Appointment: - Political party with the majority in the House of Representatives invited by the GG - PM chosen as leader of winning Party – through vote by members of their Party - Then formally appointed by the GG (s64 of constitution) - Presented with the commission (Letters Patent) 5. What is executive prerogative power and where does it come from? EPP = unique bundle of powers and privileges ascribed to the crown by common law Comes from – s61 of constitution 6. What limitations were imposed on prerogative power by the High Court in Cadia Holdings v NSW (2010)? How did legal rights, gained during the English revolution, affect the outcome in this case? 7. Explain the factual and legal matrix surrounding the Tampa Case. 8. Where, according to Justice French (as he was then), does the prerogative power to exclude aliens come from? What was the view of Black CJ in this case? Which judgment do you prefer and why? 9. What is the process by which the Australian government decides to declare or go to war?

Australian Constitutional Law – Autumn, 2018

Reading Log – Questions (Week 4)

10. Do you agree with this arrangement or do you prefer other constitutional alternatives such as that provided by the US Constitution? 11. Which two sections of the Australian Constitution underpin the nationhood power? Is it a purpose or a subject matter power? What is the purpose of this implied power? - Nationhood power = section 61, 51, 39 - Authorise acts that don’t fit anywhere else (legitimate) under the constitution – can only be used for the benefit of the nation - Cannot be; Penal, coercive or punitive - Nationhood power is limited by way of federalism- it must be for the benefit of the entire nation. Hence, the states could not, under this head instigate a National Gallery- as it is limited - it is not for the good of the nation; this is something only the Cth can do 12. How was it explained in Davis v Commonwealth? 13. Why, according to Gummow, Crennan and Bell JJ in Pape v Cmr of Taxation, was the Rudd Government’s fiscal stimulus package a legitimate exercise of the nationhood power? How did Hayne and Kiefel JJ respond to this position? Which position do you prefer and why? - GCB JJ - Payments conferred a benefit of the nation – derived from the premises oft the common will – without it middle/low income households would have suffered. - HK JJ - Sates of emergency are not permissible as a justification for the use of the nationhood power - I agree with GCB JJ 14. Why did a majority of the High Court (led by the judgment of Gummow and Bell JJ) strike down Commonwealth funding to the National School Chaplaincy Program in the School Chaplains Case? Money hadn’t been allocated in the budget (bill of supply) – legislature hadn’t had an opportunity to vote on it – executive government – simply decided to take money out of the budget and spend it on this program as an executive officer. Had to be for a purpose that is urgent and unforeseen for money to be spent as was spent in this case. Should the State fund religious education in public schools? No

If ‘By reason…’ in q - go to Nationhood power – use Tasmanian dam case...