1.

Characterisation

Steps to answering a Constitution law problem question

1. Is there a Commonwealth law? Is there a statute – but what is a law is an issue- s109
2. What is the head of power?
3. What is the SCOPE of that head of power? What are the tests and what are the cases for the
power?
4. Characterise the law: Does the Cth law satisfy those tests?
5. Are there any Constitutional limits on the exercise of that power by the Commonwealth? Are there
any Constitutional limits on the exercise of that power by the Commonwealth?
 Autonomy of the states melb corp
 Sep of judicial power kable
 Freedom of political speech
6. Is there a State Law? Usually yes – bring in s109.
7. What is the source of authority for that State law? You will have to show source of state power
EASY: since state has plenary powers
8. Are there any Constitutional limits on the exercise of that power? – anything constitution forbids
state from doing s109 lecture s114 115 geoff mentioned
9. (OR) Is the State law inconsistent with the Cth law?
(Also if it contravenes judicial power that will be another issue)
Step2 in detail: Characterizing the law
1. Ask what does the Cth law in question actually do? Is it about banking? Etc
2. Is the LAW IN OUR QUESTION covered by a Commonwealth head of power? Here the issue of
how the Court has interpreted the power will be relevant. SCOPE OF THE HEAD OF POWER. CASE
LAW
 (i)Trade & Commerce
 (xix) Naturalization & aliens
 (xx) CORPORATION POWER foreign corporations, and trading or financial corporations formed
within the limits of the Commonwealth
 (xxvi) RACES POWER the people of any race for whom it is deemed necessary to make special
laws
 (xxix) external affairs
 (xxxi) the acquisition of property on just terms from any State or person for any purpose in
respect of which the Parliament has power to make laws;
3. Is the LAW IN OUR QUESTION a subject matter power or a purpose power?
4. SUBJECT MATTER POWER/ NON PURPOSIVE POWER: If it’s a subject matter/ non-purposive power
does the Cth Act have a sufficient connection to the subject matter? (Kitto J in Fairfax “Is it in real
substance a law upon, “with respect to”, one or more of the enumerated subjects in s51”) –
SUFFICIENT CONNECTION TEST
5. IMPLIED INCIDENTAL POWER: If it does not have a sufficient connection but by invoking the
implied incidental power the power implicit in every head of power without which the grant of
power would be ineffective (Grannall v. Marrickville Marg)) it can be brought into the subject
matter then ask is it “APPROPRIATE AND ADAPTED” to the purpose of the power
(Nationwide News) (cf Leask)
 Creation of commission will be incidental to the (main) head of power
 Penalties for breach will also be incidental to (main) head of power
6. – APPROPRIATE AND ADAPTED TEST/ PROPORTIONALITY TEST
7. PURPOSE POWER: If it’s a purpose power use the PROPORTIONALITY TEST (ie is it appropriate and
adapted)

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  EXT ERNAL AFFAIRS
 INDUSTRIAL RELATIONS
 DEFENCE
 ARE THE ONLY PURPOSE POWERS

Nest step
 (NOTE: you move back onto the problem solving steps now)
 Is there anything else in constitution that would knock it out:
 Implied freedom of speech
 Implied freedom of religion
 Does it do something to contravene judicial power of the CTH

Characterizing

1. What does the CASE LAW say the HEAD OF POWER is - what is the scope of the
head of power – this will be provided from the case law
2. Does the law in OUR question fit into that scope?
3. This will depend on whether the law in question is non-purposive or purposive
4. If its non-purposive it must have a sufficient connection to the head of power
5. If its purposive it must be proportionate to that head of power
6. Note also: implied incidental powers

Sufficient connection test

 Fairfax v commission taxation

 Look to rights obligations, duties created, altered or removed and see if there is a sufficient
connection between that and the head of the power?
 SCOPE: WHAT IS THIS LAW DOING – protecting export trade

The Bank Nationalisation Case

 Interpretation/Characterisation -Two elements
 1. The power as a subject matter must be understood in broad and general terms
 2. Within the area of the subject matter the Commonwealth can make any kind of law they wish.
(Dixon)

Fairfax v Fed Commr of Taxation

 Is it law about tax
 Within power
 Or is it law about investment
 Not within power
 What is actually the subject matter of this legislation
 COURT HELD: Look at what law is actually doing – In this case it is MAKING YOU PAY TAX, so it’s a
law abt taxation
 This is enough.
 That it discloses another power outside of the primary subject matter that is not enough to
exclude it
 What is SUBJECT MATTER of act is most important thing
 So it’s a very SUPERFICIAL TEST

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  Just like subject matter in contract, it’s the GENUS, NOT the QUALITY
 “Once it appears that a law has an actual and immediate operation within a field assigned to the
CW as a subject of power that is enough... unless some further reason exists for excluding it... That
it discloses another purpose that lies outside power is not sufficient to invalidate it”(Kitto J)

Herald &Weekly Times (1966)

 Issue: whether restrictions which attached to the operators of televisions licenses as opposed to
restrictions on the licenses themselves were within power.
 Who could be an operator of a television license.
 SUFFICIENT CONNECTION TEST
 To determine a SUBSTANTIAL CONNECTION he asked what is the law actually doing?

Murphyores (1976)
 Export of sand was made contingent on a domestic environmental impact study.
 Question: Was it a law with respect to export or the local environment?
 MOTIVES DON’T MATTER
 SUBJECT MATTER – EXPORT OF SAND
 MOTIVE PROTECT QLD ENRVIRONMENT
 MOTIVE MAY WELL HAVE BEEN TO PROTECT QLD ENVIRONMENT BUT AS LONG AS IT FALLS UNDER
THAT HEA DOF POWER OF EXPORT – TRADE AND COMMERCE, IT DOESN’T MATTER WHAT THE
MOTIVE IS – VERY BROAD
 DON’T EVEN CARE WHAT MOTIVE IS

Sufficient connection test summarised (Fairfax, Herald & Weekly Times, Murphyores, Re Dingjan)
1. As long as the law can be characterised as being a law with respect to a subject matter which is
within power it does not matter that it might also be characterised as bearing upon some other
subject matter not within
2. To characterise a law the focus should be on the direct legal operation of the law
3. In characterising a law the court is not concerned with the policy it embodies but only whether it
can fairly be described as a law with respect to a specified subject matter – is there a sufficient
connection between the law and the head of power. Do not examine the motives which inspire it
or the consequences which flow from it.

Purpose test
 Proportionality test used for these 3
 Purpose power BUT ALSO:
 Implied incidental power
 Granted power – the actual power cth has to make law

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