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A. Inconsistency & Judicial powers

NSW is seeking advise as to whether Samuel has any grounds to argue that the NSW Prevention of Cruelty to Animals Act 1979 is invalid. A number of issues are likely to be raised. Firstly, whether there is an issue of inconsistency between the NSW and Commonwealth Law.

Inconsistency In the event a Commonwealth Law exists and pertains to also concurrently cover the paralleling field intended by the State law, the Commonwealth law will prevail subject to s109. However, for s109 to operate, an inconsistency between a valid Commonwealth and State Law exists. Section 109 has no operation where only one law relevantly operates [Butler v AG of Victoria 1961, Pirie v McFarlane 1925].

Is the Commonwealth Law Valid (External Affair)? In order for the Commonwealth law to be deemed valid it must fall within power under s51 or s52 of the constitution [Grain Pool of WA v Cwth 2000]. The Act will likely fall under the External Affairs power (s. 51(xxix)). The Hight Court have interpreted the power broadly, permitting the Commonwealth to enact laws based on the mere fact of externality (Horta v Cth (1994)). It can be matters physically external to Australia on the condition that a sufficient connection exists [Grain Pool 2000]; Or matters regulating international relationships, treaties/agreements and concerning matters to which Australia is committed to. This is subject that the law is reasonably appropriate and adapted [Vic v Commonwealth 1996].

According to the facts, the Act was aims to legislate in relation to a treaty by the UN. In Commonwealth v Tasmania 1983 (Tasmania Dam), the court held that that the international treaty did not have to be reflected word for word in Australia’s legislation but the spirit of the treaty at least had to be fulfilled. In application to the facts, it is clear that the Act inherits the ‘spirit’ of the treaty in preventing the cruelty against Animals in sporting events as specified in article 12 of the Act which is evident in s. 1(a)—(d) which aims to foster better sporting regulations and prevent cruelty to animals used in sports. Additionally, section 18 aims for a National Standard which aligns with the UN’s treaty objectives. Therefore, the provisions are reasonably appropriate and adapt.

Penalties incidental to External Affairs Power Penalties are incidental to the head of power, thus it must also be appropriateness and adaptability of the provision [Victoria v Commonwealth 1996].. It must be noted that the impositions of penalties are justified as to enforce the operation of the Act [Burton v Honan 1952]. In this case, the Act imposes a maximum penalty of $1,000. It seems that the penalty ranges across degrees as it is not

a mandatory penalty, indicating it is proportionate (Nationwide News case). Therefore, the Act is valid as it has been characterised and is reasonably appropriate and adapted under the External Affairs powers.

Is the State Law valid?

In accordance with s. 5 of the New South Wales Constitution, the State will have plenary legislative power to make any law for ‘the peace, welfare and good government of New South Wales’. These words, are not words of limitation as held by the majority in Kable v DPP (NSW) in which Dawson J in majority agreeing that parliamentary sovereignty was paramount. Furthermore, in the case of Union Steamship Co of Australia, it reiterates that the State’s legislative power is without limitations and therefore can legislate on any matter. Therefore, the NSW Act is within the State’s scope of legislative powers.

Is there inconsistency?

Since both laws have the object of banning/controlling animal cruelty, the laws must be indirectly inconsistent (Clyde Engineering v Cowburn). For the NSW law to be inconsistent the Cth law must be intended to ‘cover the field’, meaning the laws must be on the same subject matter, apply in the same circumstances and apply in the same way (Wenn v AG (Vic)). There is no express intention (Ex Parte McLean) so the intention must be implied ( R v Credit Tribunal). The inclusion of wording in the subject, which indicates the law, is designed to create consistency between all states as well as similar penalties and the common use of “Causes, procures, permits or encourages” the use of live baiting to train dogs, shows that the subject matter and application are the same. Furthermore, the fact that the Commonwealth Act creates a National authority, implies an intention to cover the field. However, the Commonwealth Law states to exclude NSW, this is vital, as it may have likely implied that the Commonwealth does not intend to cover the field in regards to NSW. Because of this, the Cth law clearly intends to cover the field, and the State law is therefore inconsistent under s 109.

Therefore, Samuel may argue on grounds that there is inconsistency under s. 109. However, this is likely to fail due to the expressed exclusion of the NSW State, suggesting that the Commonwealth intended to cover the field excluding NSW (Wenn V AG (Vic)).

B. External Affairs & Federalism Victoria is seeking advice as to the Constitutional validity of the Prevention of Animal Cruelty in Sport Act 2015 (‘The Act’) as they have been detrimentally affected by the laws. To determine whether this Act operates within the scope of legislative power conferred upon the Commonwealth under s. 51 & 52, the Law must be characterised [Grain Pool of WA v Commonwealth 2000 Victoria v Commonwealth 1996]. As stated above, the Commonwealth Act is valid under the External Affairs head of power.

Limitations (Intergovernmental immunity) There is a presumption of the Commonwealth legislative having supremacy over the States as held in the Engineers Case; Tas Dams (1983). However, there are exceptions to this rule, In Melbourne Corporation v The Commonwealth (1947), It held that legislation which prevents or impedes the State from performing the normal and essential functions of government or curtails or interferes in a substantial way will be invalid. Rich and Starke JJ in that case, go further in referring to s. 107 which guarantees the States’ continued existence and so any act that prevents the State from continuing to exist is contrary to the Constitution and Federalism. This is affirmed by Mason J in Queensland Electricity Commission v. Commonwealth (1985) as he reiterated the Melbourne Corporations case, stating that the Commonwealth cannot ‘place special burdens or disabilities on the State, or destroy or curtail the continued existence’. On this point, Victoria can argue that the Commonwealth Act should not apply as it places such tremendous burden on their horse racing industry which brings in a significant amount of tourism, tax and licensing revenue which all contribute to the States ability to function. Through this, the state can argue that it curtails its continuing existence.

However, the Commonwealth could argue with reference to Mason J again in Queensland Electoral Commission & Ors v The Commonwealth (1985) which held exceptions to the Melbourne Corp principle. His honour held that where a Commonwealth deprives a State of some rights and benefits not enjoyed by others in the community so that the State is placed on an equal footing, then the Commonwealth Law is not discriminatory and thus, is not invalid. As such, since NSW has already implemented their NSW Act regulating ‘live baiting’, the Commonwealth may argue that the Law is only to establish equal footing amongst states, hence the exclusion with NSW. However, this argument will most likely fail due to disproportionality between the NSW and Commonwealth Laws. Conclusion Therefore, the Commonwealth Act is validly characterised under the external affairs power. Victoria may argue the Melbourne corporation principle. However, this will likely fail as the Commonwealth can deprive States if it puts States on an even field (Ors Case).

C. Judicial separation of powers (STATE LEVEL)

Liam and his legal team are seeking advise on the constitutional validity of Crimes Act (Tough on Crime) Amendment Act 2014 (NSW) (‘The Act’) as Liam has been detrimentally affected by its operation. Since this is a NSW Act, the legislative scope of the State is one that is determined through the State Constitution. Under s. 5 of the NSW constitution, it gives the State plenary rights to enact legislation for the ‘peace, welfare and good governance of NSW’. Furthermore, the case of Union Steamship Co of Australia reiterates that the State’s legislative power is without limitations and therefore can legislate laws on any matter. However, such laws should not be inconsistent with Cth legislation pursuant to s. 109 of the Constitution or compromise the institutional integrity of the judiciary conferred with Chapter III powers.

Admittedly, the State is not subjected to any separation of powers (BFL v Minister of ind. Relations 1986). However, in Kable v DPP NSW (1996), the court held that although a strict separation is not apparent, there is still a requirement that States should refrain from acting in a way that is repugnant to the judicial power of the Commonwealth. In saying that, the court further emphasised that in maintaining public confidence in Chapter III courts, States should remain independent of other arms of government. Fardon v. AG (2004) narrows the Kable criteria to be the institutional integrity doctrine, stating that "Any state legislation that purports to confer upon such a court a function which substantially impairs the institutional integrity and is therefore incompatible with its role as a repository of federal jurisdiction is invalid"

According to the facts, s. 4 establishes that the NSW Director General of Corrections (An Executive) shall review prison records. s. 4(2) states that the Director has the power to determine if an additional sentence is necessary. This is direct violation of exclusive power conferred to Chapter III courts in determining guilt as determined in the case of Chu Kheng Lim. Additionally, s. 5 states that where the Director General determines that a person is unfit for rehabilitation, there is a mandatory re-sentence. This is clearly in breach of judiciary powers to make legally enforceable decisions, evident in Brandy v Human Rights and Equal Opportunity Commission 1995, and it removes any judicial discretion which is the Courts ability by right.

Therefore, Liam and his legal team will likely succeed on grounds that the impugned provisions are in direct breach of institutional independent judicial powers.

D. Territory application of Kable Case

The answer should not be any different if Liam committed the Acts in Darwin under NT law Reasons being: Although CH III courts does no apply in the Territories (Be masconi case). as s. 122 is a separate power, NAALAS V Badley (2004) has held that the Kable doctrine can equally apply to the territory courts as it does to States.

The Territories courts just like the States cannot act in such a way as to effect the appearance of impartiality or to distort the character of the court concerned.

Moreover there are to be the appearance of one constitution not two - one for the States and Territories (Capital Duplicators v ACT No. I) Therefore, for the sake of consistency, territories courts should not be able to have the Minister intervene in judicial power either.

Therefore the advice to the Legal centre should not change if Liam attended in Darwin sections 3, 4, 5 have provisions that undermine the institutional integrity of what is supposed to be an integrated federal judicial system by enabling the judiciary be an instrument of legislature.

Liam and the legal centre thus have strong constitutional grounds to challenge the law as the facts liken significantly with the Kable case and contravene the essence of its reasoning.

Seminar Questions Q. 7. A. (INCONSISTENCY & TRADE & COMMERCE)

George is seeking advice as to the constitutional validity of the Poultry Standards (Export) Act 2016 (Cth) as he has been detrimentally affected by the operation of the law. As such, the most prominent issue in Georges case is whether there is any inconsistency between the NSW and Cth Law. Inconsistency In the event a Commonwealth Law exists and pertains to also concurrently cover the paralleling field intended by the State law, the Commonwealth law will prevail subject to s109. However, for s109 to operate, an inconsistency between a valid Commonwealth and State Law must exists. Section 109 has no operation where only one law relevantly operates [Butler v AG of Victoria 1961, Pirie v McFarlane 1925].

I.

Is the Commonwealth law valid?

In determining whether the law is valid, it must be properly characterised within the scope of legislative power bestowed upon parliament under Part I ss. 51 and 52 of the Commonwealth of Australia Constitution Act 1900 (Imp). After careful consideration, the Commonwealth Act will likely fall under the ‘trade and commerce’ head of power pursuant to s 51(i) of the Constitution. As a subject matter power, there must be a sufficient connection between the head of power and the Commonwealth Act. (Kitto J in: Fairfax v Cmr of Tax (1965)). The Court will regard the ‘rights, powers, liabilities, duties and privileges which the Act creates’ (Grain Pool of Western Australia v Commonwealth 2000; 492).

Interstate Trade and Commerce

According to the facts, the object of the Act is to regulate the ‘preparation of poultry meat and products containing poultry meat produced in Australia for export.’ As such, it is likely that the Commonwealth will turn to Beal v Marrickville Margarine Pty Ltd (1966) which held that the Commonwealth can legislate manufacturing activities for export or interstate trade. In saying this, the Commonwealth Government reserves the necessary implied incidental power as to extend the scope of s51(i) ‘for the purpose of production’. In O’Sullivan v Noarlungar Meat, the court held that all matter that affect export trade in Australia, whether

it’d be beneficial or detrimental is of the concern of the Commonwealth. The court broadly applied this to cover all aspects of the preparation, delivery and handling of commodities produced or manufactured. Thus, since the act regulates exports, the law is valid to 95% of Georges poultry.

Intrastate Trade and Commerce — Inseparable connexion test

In regards to George’s other 5% which is domestically sold, s. 51(i) does not explicitly allow the Commonwealth to regulate intrastate trade (R v Burgess; Ex parte Henry (1936)). However, Windeyer J in Redfern v Dunlop Rubber Australia Pty Ltd (1964) held that the Commonwealth will have an implied incidental power to regulate intrastate trade if there is a connexion that is not remote or insignificant between inter-State and intrastate trade. One in which has a real effect on interstate trade (R v Burgess). According to the facts, it states that the 5% of poultry were all raised, butchered and packed using the same farming and production processes. However, it does not state that both interstate and intrastate were produced in the same factory. George can argue that on this ground, a sufficient connexion was not established and thus, the Commonwealth Law is valid to only 95% of his poultry.

II. Is the State Law valid?

In accordance with s. 5 of the New South Wales Constitution, the State will have plenary legislative power to make any law for ‘the peace, welfare and good government of New South Wales’. These words, are not words of limitation as held by the majority in Kable v DPP (NSW) in which Dawson J in majority agreeing that parliamentary sovereignty was paramount. Furthermore, in the case of Union Steamship Co of Australia, it reiterates that the State’s legislative power is without limitations and therefore can legislate on any matter. Therefore, the NSW Act is within the State’s scope of legislative powers. III. Is the State Act inconsistent with the Cth Act? It could be argued that the Commonwealth Law intended to ‘cover the field’ of the subject matter (Clyde Engineering Co Ltd v Cowburn 1926). In that case, there was a conflict between State and Federal legislation that governed the working week. The Court held that the Commonwealth Law prevailed with Issacs J in majority stating:

‘If a competent Legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field’ In application to the facts, the field that is intended to be covered concerns the exportation of poultry from Australia. The Commonwealth Law, though not expressly evincing an intention to cover the field, has instead implied an intention to cover the field. In saying that, consideration to the breadth of the provisions is relevant (Australian Broadcasting Commission v Industrial Court of South Australia (1977)). According to the provisions in the Commonwealth Act, it states very specific regulations on poultry preparation, one that may suggest such an intention. Addtionally, in R v Loewenthal; Ex parte Blacklock (1974)), the court also took into account the subject matter. In that case, Menzies J to whom Barwick CJ and Jacobs J agreed said that:

‘because the Federal Act was supported by a Constitutional power and this issue was a commonwealth issue then there is an implied intention that the Cth intended to cover the field.’ In application to the facts, since the subject matter concerned the exportation of poultry in Australia, it is a commonwealth issue and implies the intention that the Commonwealth intended to cover the field. Thus, s 3 and schedule 2 of the NSW Act should be invalid and George must follow the regulations and standards of the Commonwealth Act.

Q.7.B (IMPLIED FREEDOM OF POLITICAL FREEDOM & TRIAL BY JURY)

The CEO and Cottonworths are seeking advice in regards to the constitutional validity of s. 20 of the recent amendment to the ‘Impugned Act’. It will be assumed that the impugned provision will be impliedly incidental to the Trade and commerce head of power as the purpose of the Act aims to prevent negative impacts to exports (O’Sullivan v Noarlungar Meat). However, a number of issues will be raised to invalidate the provision. Firstly, that the Act is in breach of the implied freedom of political speech. Secondly, that s. 20(2) is in breach of the implied guarantee of a trial by jury (s. 80).

I.

Implied freedom of political speech

The CEO and Cottonworths will most likely have strong grounds to contest with the argument that s. 20 is in breach of their implied freedom of political communication established in Nationwide News Case and Australian Capital Television Case. In determining this, the 2 limb test in Lange v ABC which was modified in McCloy v NSW (2015)). In that case, French CJ, Kiefel, Bell and Keane JJ effectively modified the test as a 3 limb test. If Limb 1 is affirmative while either Limb 2 or 3 are a negative, then the impugned provision is invalid. The limbs are as follows:

1. Does the Law effectively burden the implied freedom either in its terms, operation or effect?

According to the facts, s. 20 prohibits any words or symbols used to bring the Act or the Government into disrepute. This is clearly a political topic as it relates to Australia’s export industry along with the Commonwealth Government. Therefore, the provision, in its terms, operation and effect does burden the implied freedom.

2. Is its purpose legitimate and compatible with representative government?

On this Step, the majority of the High Court in the McCloy case has reiterated McHugh J modification of this step in Coleman v Power as he emphasised that law must be compatible with the maintenance of the constitutionally prescribed system of representative government in both its end and manner in achi...