JURD7250-FedCon-Problem-Qs

The Races Power wk6

Issue: Whether a cth law requiring that Indigenous people be paid the same as other
employees for performing the same kind of work is valid under s 51(xxvi)
Application
S 51(xxvi) is a subject matter power and therefore uses two limbs of the sufficient
connection test. This is a purely legal test.
To be valid, the court must find that it must be deemed necessary that special laws be
made for the people of any race (Native Title Case)
People of Any Race
The test is whether individuals or the group regard themselves and are regarded by
others in the community as having a particular historical identity in terms of their colour,
national ethnic origins (Tasmanian Dams). The court has found on a number of occasions
that Indigenous people are people of a particular race (Tasmanian Dams). This law can be
distinguished from the Act in Koowarta which applied generally and not selectively. Here
the law is aimed specifically at Indigenous people and operates specifically to affect
them. Therefore the law fulfils this element.
Deemed Necessary
The Court is generally reluctant to rule on what is necessary as it involves a political
value judgment that is the province of Parliament (Native Title Case). However, there are
some limitations. The law must not be a manifest abuse of Parliaments power or the
abrogation of a particular races common law rights (Kartinyeri). In this case, the
Parliament has seen fit to enact a law that has the effect of ensuring that Indigenous
people have equal pay.
Manifest abuse of power: Vague formulation in Kartinyeri as long as parliament made
an assessment of the circumstances that deemed it necessary to enact the law it was
fine. The parliament in their preamble to the Act set out the reasons for enacting the law.
Common law rights: this act does not affect Indigenous peoples common law rights.
Instead it confers an additional statutory benefit.
Special Law
A law will be special by reference to its differential operation upon the people of a
particular race (Native Title Case). Parliaments reasons for enacting the law are not
relevant (Native Title Case). A law will be special where it confers a
right/benefit/obligation/disadvantage especially on the people of a particular race. This
law is differential as it only operates on people of indigenous descent. Further, it creates
benefit for people of Indigenous heritage by ensuring that they are paid equally to their
non-indigenous workmates. The law is therefore special in operation.
Conclusion
The law fulfils the 3 elements required under s 51(xxvi) in order to be a relevant law wrt
to that head of power.

The Taxation and Grant Powers wk8b

There are two issues to be decided. One, whether the percentage levy or the materials
charge are taxes. Two, if they are taxes, whether they comply with the Constitution in all
other respects.
Issue 1: Are they Taxes?
As s 51(i) is a subject matter power, the two limbs of the sufficient connection test apply.
Firstly, the characterisation of the law must be determined by reference to the rights,
powers, liabilities, duties and privileges it creates (Grain Pool). This is a purely legal test
that does not consider purpose. Secondly, the law must be sufficiently connected, in a
way that is not tenuous (Melb Corp).
A tax is a compulsory exaction of money by a public authority for a public purpose
enforceable by law (Matthews).
The Percentage Levy
The levy is a compulsory exaction of money as it requires shops to pay 0.05% of their
alcohol sales revenue.
Even though the AAA is an incorporated entity and thus not a public body, this is not fatal
to the Govts claim that the levy is a tax. It is not essential that the exaction should be by
a public authority (Tape Manufacturers) and private companies can collect money on
behalf of the govt (Air Caledonie). Therefore, AAA, as a private body, may collect money
on behalf of the govt.
However, if the exaction is not made by a public authority, then it must be for a public
purpose (Tape Manufacturers). This is to be construed broadly (Luton). The Govt could
argue that the levys purpose is curbing the enormous social costs of alcohol abuse and
is in the public interest even though it only affected two groups: liquor traders and
community based support groups (Tape Manufacturers).
Finally, the tax must be enforceable by law (Matthews). This will be so where the liquor
traders are given no choice about the tax and there is no discernible relationship with the
value of the what is acquired (Air Caledonie). The Liquor Traders are required tp pay and
there is no relationship between what they pay and the services provided for by the tax.
Therefore, on its face, the levy is a tax. However, the levy may still be invalidated if it can
be proven that it is a fee for services, licence or a penalty (s 53).
Fee for Services
4 elements are required to establish an exaction as a fee for services (Air Caledonie). 1.
There must be a specific identifiable service. 2. A fee is paid for the service. 3. The
service is rendered to, or at the request or direction of the person required to make the
payment. 4. The fee is proportionate to the cost of the service.
In considering the levy, it is clear that it fails on element 3 as no service is provided to
the liquor traders.
Fee for a Penalty
Levy will be a tax rather than a penalty where it does not mandate or proscribe conduct
of any kind and does not provide for recovery of civil penalties for such a failure (North
Suburbs). The levy imposes no requirements for conduct on liquor traders and there is no
penalty for failure to pay the levy.

Conclusion
Therefore, the levy is a valid tax as it fulfils both positive and negative criteria.
The Materials Charge
The charge is compulsory as liquor traders are required to display the signs, and in order
to do so they must purchase the signs from the AAA.
Private Body see above
Public purpose see above
The tax must be enforceable by law traders must be given not choice about the
services acquired and the exaction has no discernible relationship with the value of the
services. Again, the traders are required to purchase the signs, thus they have no choice
in receiving the services. Further, the 500 cap suggests that there is no relationship with
what is acquired, as large traders can amass an enormous amount of materials and still
only pay 500. However, a small disproportion between the exaction and the services may
suggest that the charge is a fee for services.
Fee for Services
McHugh J in Airservices Australia set out a list of elements that indicate that an exaction
is likely to be characterise as a fee for services.
- the services were provided by a statutory authority which had as one of its statutory
functions the provision of those services (or services of that general type);
o The provision of materials was a service provided by AAA who produced those
materials themselves.
- the position of the statutory authority in providing the services approximated that of
a natural monopolist;
o AAA is only the only provider of these signs are services, thus they are a
monopolist.
- the statutory authority exhibited a large degree of financial independence from the
executive government and was intended to operate on a commercial basis;
o AAA is an incorporated entity and thus operates on a commercial basis,
separate and independent from government.
- the pricing structure which gave rise to the lack of a discernible relationship between
the value of the services provided on a particular occasion and the charge levied for
those services was reasonably and appropriately adapted as a means of achieving a
legitimate public purpose (other than revenue raising) which was related to the
functions, powers or duties of the statutory authority.
o However, here there is a relationship between the charges and the services
provided. All traders are charged equally based on the number of signs
purchased. There is no disproportionate distribution between traders. Further
the $500 price cap is reasonably and appropriately adapted as a means of
achieving a legitimate public service. The price cap is designed to encourage
large premises to ensure that there is sufficient material for drinkers to view
and the public service at the base of the service is to reduce alcoholism thus
serving a legitimate public service.
Conlusion
Therefore, due to the charges characterisation as fee for services, it will not be valid
under s 51(ii).
FINAL CONCLUSION ON TAX POWER

The levy is a valid tax. The charge is a fee for services and therefore not valid under s
51(ii).

Inconsistency of Laws
Question:
Cth Act not inconsisten because it is a general power over Electoral posters and the state
act qualified that general power with provisions prohibiting racism. Ansett v Wardley
Cth law does not deal with the substantive content of the posters, rather it
regulates the procedure and means by which posters are displayed very similar
to Ansett v Wardley
o This shows there is no intention to cover the field by the cth
Preventing Smith from putting up racist posters does not affect Smiths general
right to put up Electoral posters APLA
o A slight or marginal or insignificant impact of a State law upon a federal
law will not give rise to a constitutional inconsistency. The impact must be
one of some significance and such as would have the effect, if the State
law were valid, of precluding, overriding or rendering ineffective an actual
exercise of federal jurisdiction.
Freedom of Interstate Trade and Commerce wk10
Section 2 and 3 of the Dairy Act may be limited by s 92.
S 92 of the Constitution states that all trade and commerce among the states be
absolutely free. Absolutely free does not mean freedom from all laws, it means subject to
qualifications and conducted subject to the law Bank of NSW v Cth. The law will be held
invalid if the court finds that it discriminates against interstate trade and commerce in a
protective manner without it being a proportional response to a valid policy objective
Cole v Whitfield.
The first question to be asked is whether the challenged law imposes a burden on
interstate trade and commerce. Section 3 of the Act requires that all interstate dairy
traders can certify that their product contains only milk of cows over the age of two
years. Thus, there has been a restriction imposed on interstate traders and that amounts
to a burden.
The second question is whether the burden is discriminatory on its face or in its practical
effect. It is prudent to look for the practical, legal and economic effects of the provisions
Castlemaine. In reading s 2 and 3 together it is clear that the Act imposes a restriction on
all dairy traders requiring that the cow be 2 years old. The combination of s 2 and s 3(a)
in effect operate the same as s 3(b). Ultimately, all traders must buy from a cow 2 years
old.
But in considering the economic effect of the Act, it emerges that there might be
practical discrimination. In NSW there is a specific commission already set up to
certify that cows are two years of age. As no other state has such a restriction, it
might mean that interstate traders have no equivalent certification body and any
such certification they seek to obtain may be costly. Therefore, the Act may
amount to discrimination.
The third question is whether the provision is protectionist in character (ie. Is it intended
to protect local traders against out of state competition Castlemaine)? This is a question
of fact and degree Cole. Further if the law applies to all trade and commerce, interstate
and intrastate alike, it is less likely to be protectionist Cole. While the law superficially
seems to distinguish between interstate and intrastate trade, substantively the law
requires the same of all traders that the cow be 2 years old. However, in considering
the economic impacts above, the law may still operate to confer an advantage on
intrastate trade as it may be easier and cheaper to gain certification. This confers a
competitive advantage on NSW dairy producers as it makes it easier for them to take
their product to market. Therefore, the provision has the effect of the protectionist kind.

However, the provision will not contravene s 92 if it can be proven that the law is aimed
at achieving a legitimate non-protectionist policy objective. In interpreting the object of
the law, is may be inferred from its long title that it is aimed at preventing cruelty to
cows. This is a non-protectionist goal.
Further, it must be proven that the law was a necessary or adapted and appropriate to
achieving its purpose and its impact on interstate trade is incidental and not
disproportionate to that purpose Castlemaine. Must prove that interstate traders as a
class are being discriminated against Betfair No 2.
Acceptable explanation Betfair WA: the objective of the law does give an acceptable
justification for why limiting cows ages would achieve prevention of cruelty to cows.
There may be other ways of achieving this objective.
Law likely to fail?