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Practical Questions - constitutional law

Australian Constitutional Law (The University of Adelaide)

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SEMINAR 2

QUESTION 1
Australian Constitution
The Australian Constitution establishes a system of representative government.
 S 7: Senators are directly chosen by the people of the State.
 S 24: Members of House of Representatives are directly chosen by the people of the
Commonwealth.
 Ss 8 & 30: The qualification of electors is prescribed by Parliament. Each elector shall vote
only once.
The Australian Constitution establishes a system of responsible government [ie. the executive is
responsible to the legislature and, ultimately, the people].
 [s 62: The Federal Executive Council advises the Governor-General in the government of the
Commonwealth]
 S 64: Ministers must be members of Parliament  must answer questions in Parliament.
 S 6: Parliament must meet at least once a year.
 S 83: Money cannot be drawn from the Treasury except under appropriation made by law.
 S 128: Parliament can, by majority in both houses, propose alteration of the Constitution for
electors’ approval.

South Australian Constitution

The SA Constitution establishes a system of representative government.
 S 11: Members of the Legislative Council are elected by the inhabitants of the State, legally
qualified to vote.
 S 27: Members of the House of Assembly are elected by the inhabitants of the State, legally
qualified to vote.
 S 48: Women can vote.
The SA Constitution establishes a system of responsible government.
 S 66: Ministers must be members of Parliament  must answer questions in Parliament.
 S 7: Parliament must meet at least once a year.
 S 8: Parliament has power to change the Constitution. Although s 10A: Parliament cannot
change certain provisions without electors’ approval.

Establish system of democratic government?

No. The Constitution allows Parliament to determine the electoral system (not necessarily “one vote,
one value”), & who is entitled to vote.

QUESTION 2

(a)

Ss 8 & 30 say that the qualification of electors in each State shall be that prescribed by the State, until
the Parliament otherwise provides. S 51(xxxvi) gives Parliament power to make laws with respect to
matters which the Constitution makes provision until Parliament otherwise provides. Therefore
Parliament has power to make laws on the qualification of electors.

However, the power is subject to the Constitution (s 51). The Constitution provides that members of
Parliament are “chosen by the people” (ss 7 & 24). So whether Parliament can exclude women depends
on how “people” is interpreted.

If taking the originalism approach, “people” does not include women, because in 1901 not many
women had votes. But if taking the living force approach, the meaning of “people” must change to
meet the contemporary attitude of gender equality.

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(b)

Yes. Children are not “people of the State/Commonwealth” for the purposes of voting because they are
too young to decide. Parliament will have difficulty raising the age qualification for voting to
unreasonable limits, though. Essentially – it’s a political, not legal, issue.

QUESTION 3

Ss 7 & 24 require members of Parliament to be chosen by electors. In order to choose, the electors and
elected must communicate. Also, s 128 requires communication in order to change the Constitution.
Therefore the representative government we have requires free political communication.

Ss 11 &27 in the State Constitution say that members of Parliament are elected. The implication
probably applies here too.

QUESTION 4

Sedition is about undermining the government, looking to its overthrow. It works outside the
Constitution. Accordingly, the implied freedom of political communication will not protect it, since the
Constitution won’t protect something that tries to overthrow it.

PROBLEM
Aboriginal Women & John
In order to assist the group of Aboriginal women & John, we need to advise about the validity of the
provisions in the Racial Hatred Act and the Trade Practices Act.

Does a power support the RHA or TPA?

The Commonwealth has power to make laws only with respect to certain matters listed under ss 51 &
52. The Racial Hatred Act provisions probably implement international Conventions, and so are valid
under s 51(xxix). The Trade Practices Act regulates trading corporations, and so is supported by s
51(xx).

Does anything in the Constitution invalidate the RHA or TPA?

Laws that infringe the implied freedom of political communication are invalid (Nationwide News v
Wills; ACTV v Cth). Both the RHA and TPA can burden political communication. The test of
infringement is the reasonable proportionality test (ACTV v Cth; Lange v ABC).

Are the RHA provisions reasonably proportionate?

 Their purpose is to protect minority racial groups, which is consistent with the system of
representative & responsible government that the Constitution establishes (Davis v Cth). Their
purpose is also to protect people from verbal threats, which is obviously legitimate. The
RHA’s purpose is not to stop political communication; the purpose is constitutional.
 The means of achieving the purpose of protection is confined to public acts which are
reasonably likely to offend, insult, humiliate or intimidate. The RHA does not go too far. It is
possible to communicate the same political information by an alternative reasonable way: a
way that is not likely to insult. Therefore, the means are reasonably appropriate & adapted to
achieving the end.
The RHA does not infringe the implied freedom of political communication.

Is the TPA reasonably proportionate?

 Its purpose is to protect corporations and ensure that they operate properly in the marketplace.
It is not to stop political communication. Therefore, the purpose is constitutional.

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 The adopted means of achieving the purpose of protecting corporations is the imposition of
penalties on those who damage corporations. The TPA does not go too far because protests
can be done in an orderly fashion elsewhere which does not damage corporations, or with a
permit. The means are therefore reasonably adapted & appropriate to achieving the purpose.
The fact that political speech is affected by the TPA incidentally is not enough to invalidate
the law.
The TPA also does not infringe the implied freedom.

It follows that all the laws are valid.

Benny
To assist Benny, we need to advise about whether he is liable for defamation.

Defamation law deters people from publishing political matters, and so imposes an unreasonable
restraint on the freedom of political communication. The common law must conform with the
Constitution. To remove the restraint, the defence of qualified privilege must be broadened to include
political communication that satisfies the reasonableness test (Lange v ABC).

Benny’s publishing is political, because it is about a high political profile: Mary is a spokeswoman for
her group on national television interviews. Was Benny’s publishing reasonable?
 It is unreasonable for him to believe that his statements are true, as there is no evidence
suggesting Mary to be an opportunist.
 He did not take proper steps to verify his article.
 It is questionable whether he believed his article to be true.
 He did not publish a response of Mary’s, and it was practicable for him to give Mary an
opportunity to respond.
 His statements could be made in malice.
Thus, all the relevant factors identified in Lange v ABC go against Benny’s publishing being
reasonable. Benny is not protected by the extended defence.

SEMINAR 3

EXAMPLES OF CHARACTERISING LAWS

“No alien may own a gun”
Direct legal effect test: The law (1) changes aliens’ rights, and (2) changes rights of gun ownership. It
is therefore “with respect to” both aliens and gun ownership (Fairfax v FCT). Aliens come under s
51(xix), but gun ownership is not a subject matter under s 51. So the law has two characters: one is a s
51 subject matter, the other is not. Since the law is “with respect to” one head of power (s 51(xix)), it is
valid even though it is also “with respect to” some other subject matter not in s 51 (Re F; ex parte F).

“No person may buy more than 1 loaf of bread per week”
Direct legal effect test: The law regulates everybody’s rights, and the right to buy bread. The law is
therefore “with respect to” everybody and bread-buying rights (Fairfax v FCT). Neither come under a
head of power.

Practical effect test: The law may be valid under s 51(vi), the purposive power of defence (Stenhouse v
Coleman). Reasonable proportionality is the relevant test here (Leask v Cth).
 The law’s purpose is to defend Australia from invaders. By restricting bread consumption,
food supplies are conserved, which will feed people better, who are then able to defend the
country better.
 The means of achieving the end is reasonably proportionate because it does not go too far
(assuming now is a time of war, when food is scarce).
Therefore, the law is within the s 51(vi) power, and is valid.

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“Imported cars are imposed a tax levy” and “Where tax is not paid, the goods can be confiscated”
The first law imposes a duty on importing. It has a direct legal effect on importing, and is “with respect
to” s 51(i) (Murphyores Inc v Cth). Also, the law imposes a duty to pay tax. It is “with respect to” s
51(ii), and is valid.

The second law is reasonably necessary for the effective operation of the first law, a law made under ss
51(i) and (ii). This is because the tax on imported cars will become more effective: third party buyers
of the imported cars will enquire to make sure that the tax is paid. It therefore comes within the implied
incidental power of ss 51(i) and (ii) (Burton v Honan).

“No alien shall drink beer”

Scope: “Aliens” in s 51(xix) means people who are not members of the Australian community
(Gaudron in Re Patterson; ex parte Wagner).

Characterisation: The law imposes duties on aliens and changes beer drinking rights. It has a direct
legal effect on aliens and beer drinking. It is therefore a law “with respect to” aliens and beer drinking.
Although there is no head of power for drinking beer, there is one for aliens (s 51(xix)). The law is
therefore valid. It does not matter that the law is about things outside s 51, as long as it is with respect
to a subject matter in s 51 (Re F; ex parte F). Also, it doesn’t matter that there is no logical connection
between aliens and drinking beer.

However, it can be argued that the law is only supported by s 51(xix) if it is about the alienness of
aliens (Gaudron’s approach in Kartinyeri). Regulating the drinking of beer has nothing to do with
whether the drinker is a member of the community. Thus, under this argument, the law is not valid.

“No alien shall work in Australia without a permit”

The law imposes a duty on aliens, so according to the direct legal effect test, the law is with respect to
aliens. It is valid under s 51(xix). The law also imposes a duty to get a permit, and permits do not come
under a head of power. But this does not affect the law’s validity because dual characterisation is
allowed (Re F; ex parte F).

Even the approach of Gaudron in Kartinyeri (that a law is valid under s 51(xix) only if it regulates the
alienness of aliens) supports this law’s validity. Requiring permits for work is relevant to aliens,
because there is a difference in work between aliens and non-aliens.

QUESTION 3

(a)

Direct legal effect test: The law imposes a duty on ships, and imposes a duty to install GPS on ships. It
is therefore “with respect to” ships and GPS. Ships do not come under a head of power. Whether GPS
comes under a head of power depends on the interpretation of “beacon” in s 51(vii). Since the word is
surrounded by “lighthouse”, “lightship” and “buoy”, the meaning of “beacon” is probably confined to
marine-related beacons. The GPS is such a “beacon”, since the GPS concerned is on ships. Therefore,
the law is valid under s 51(vii). This is so despite the law being also characterised as “with respect to”
ships, a subject matter not in s 51 (Re F; ex parte F).

(b)

Interpretation of s 51(vii): The power seems to enable Parliament to make laws about everything to do
with navigational safety.

Whether the law is sufficiently connected to s 51(vii): The law imposes a duty on cars, and imposes a
duty to install GPS on cars. It is “with respect to” cars and GPS on cars. Although cars is not a subject
matter in s 51, GPS on cars could possibly come under s 51(vii) as navigational safety. This is unlikely,
however, as a GPS on land does not promote safety in the same way a GPS in water would. Therefore,
the law is invalid.

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Note: Parliament cannot define terms in s 51(vii) to include the GPS on cars, because the definition
would contradict the Constitution. And Parliament cannot override it.

(c)

Interpretation of s 51(xii): “Currency” means a medium of exchange. Anything can be a medium of

exchange, so there are no interpretation restrictions on “currency”. (unlike s 51(xii), which is restricted
to specific things like lighthouses etc)

Whether the law is sufficiently connected to s 51(xii): The law defines what currency is. It is therefore
“with respect to” currency, and valid under s 51(xii). The second law is necessary to make the first law
effective, by protecting the currency. So it comes within the implied incidental power of s 51(xii).

QUESTION 5
S1
Direct legal effect test: The law imposes duties on everybody, and imposes duties on
interstate/overseas trade in guns. The law is therefore “with respect to” everybody and
interstate/overseas trade in guns. Although the former character is not a subject matter in s 51, the latter
comes under s 51(i) (Murphyores v Cth). The law is valid despite dual characterisation (Re F; ex parte
F).

Practical effect test: The penalty is necessary to make the law effective. Therefore, the penalty
provision comes under the implied incidental power of s 51(i), and is valid.

S2
Direct legal effect test: The law imposes a duty on gun-owners, and creates a duty to pay tax. It is
therefore “with respect to” gun-owners and tax. Although gun-owners are not a subject matter in s 51,
tax is s 51(ii). The law is valid despite it being characterised as with respect to some other subject
matter outside s 51 (Re F; ex parte F). Also, the tax is not so large as to make the law, in truth, about
criminal law.

S4
Direct legal effect test: The law removes a right of trading corporations, and removes a right of selling
guns. It is therefore “with respect to” trading corporations and gun-selling. Trading corporations come
within the s 51(xx) head of power. So the law is valid.

Since the penalty is necessary to enforce and effectuate s 4, the penalty is within the implied incidental
power of s 51(xx) (Burton v Honan).

SEMINAR 4

EXAMPLES
“No trading corporation may own a dog”
s 51(xx) extends to laws that directly regulate trading activities of trading corporations (Strickland v
Rocla) or activities of trading corporations done for trading purposes (Tasmanian Dam). However, the
law is regulating dog ownership, which is neither a trading activity nor an activity done for trading
purposes. The law can still come within s 51(xx) though, according to the majority in Dingjan, who
said that s 51(xx) was a plenary power unrestricted in terms of activities.

In order to be characterised as with respect to s 51(xx), the law must be sufficiently connected to
constitutional corporations. Whether such a connection exists can be determined by examining the
law’s legal and practical effects (Dingjan).
 Legal operation test: The law imposes a duty on trading corporations. It is therefore “with
respect to” trading corporations in s 51(xx). The law also changes dog-owning rights, and is

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“with respect to” dog ownership. So the law is with respect to 2 subject matters, only 1 of
which appears in s 51. In such a case of dual characterisation, the law is valid (Re F; ex parte
F), notwithstanding that there is no logical link between dog ownership and trading
corporations.
 An argument for invalidity could be that since trading activities define trading corporations,
the law must be about the trading character of trading corporations (Gaudron’s approach in
Kartinyeri; Dawson’s approach in Dingjan). As dog-owning has nothing to do with the
trading character of trading corporations, it cannot be valid under s 51(xx). This argument is
unlikely to succeed, as Dawson had the narrowest view of all the judges in Dingjan, and
Grain Pool v Cth has affirmed that there need not be a link between the subject matters.
 Another argument is that the law, in substance, is not about trading corporations (Menzies in
Fairfax). Rather, it is in truth about dogs.

S 1: “No trading corporation shall be dishonest in dealing with customers”

When applying the direct legal effect test, it is a law with respect to trading corporations because it
imposes duties on them. It also gives customers rights, and so is with respect to customers too. The law
is valid under s 51(xx), despite the dual characterisation.

S 2: “No employee of a trading corporation shall be knowingly involved in dishonesty”

When applying the direct legal effect test, the law is with respect to employees of trading corporations
because it imposes duties on them. It also gives customers some rights, and so is with respect to
customers too. Such employees and customers are not subject matters in s 51. As the direct legal effect
test is not satisfied, the law does not fall within the centre of the power.

However, the law might fall under the implied incidental power of s 51(xx). It becomes necessary to
examine the practical operation of the law. The purpose of the law is to make s 1 effective. The law is a
means of making that law effective, because trading corporations are less likely to be dishonest when
their employees are prohibited from being involved in dishonesty. So since the law is necessary to
make s 1 (a s 51(xx) law) effective, the law falls within the implied incidental power of s 51(xx) and is
valid.

QUESTION 3A
(i)
The most probable head of power that supports this law is s 51(xx). S 51(xx) extends to laws that
regulate trading activities of trading corporations (Strickland v Rocla). The law, if read down to apply
to only trading corporations, is purporting to regulate trading activities of such corporations. Therefore,
it appears to come within the scope of s 51(xx).

Is the law sufficiently connected to s 51(xx)? It imposes a duty on trading corporations. According to
the direct legal effect test, the law is “with respect to” trading corporations, and is therefore within the
centre of s 51(xx). The law also regulates misleading conduct in trade or commerce, which does not
come under a head of power. This is irrelevant though, because dual characterisation is allowed (Re F).

(ii)
The law imposes a duty on directors and employees. It has a direct legal effect on directors and
employees, but they do not come under a head of power. The law is not valid according to the direct
legal effect test.

However, in order for s 51(xx) to be effective, it is sometimes necessary to regulate people who are
related to constitutional corporations. In order for law 1 regulating misleading conduct of trading
corporations to be effective, it is necessary to regulate the directors and employees of those
corporations. So according to the practical effect test, law 2 comes within the implied incidental power
of s 51(xx).

Furthermore, since law 1 validly regulates activities of trading corporations, the regulation of the
conduct of directors and employees involved in those regulated activities will fall within s 51(xx) (R v
Australian Industrial Court and McHugh in Dingjan).

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QUESTION 3B

1) s 51(xx) includes the power to regulate the internal running of constitutional corporations.
Therefore, it extends to laws that regulate the conduct of directors of s 51(xx) corporations,
but only in their capacity as directors. The owning of dogs by directors has no relevance to
them being directors of trading corporations. The law is not regulating directors as directors of
the corporations, but is just regulating someone who happens to be a director. Therefore, there
is an insufficient connection between the law and s 51(xx), and it’s invalid.
2) The law’s purpose is to protect trading corporations, which is legitimate (Actors &
Announcers). It protects because bankrupt directors might not run their companies properly.
The law is also a means that is reasonably appropriate & adapted to achieving that end, as its
operation is restricted to bankrupt directors. Thus, the law falls within the incidental power of
s 51(xx), and is valid.
Alternatively, s 51(xx) could be interpreted to include the internal running of constitutional
corporations. If so, Parliament can regulate directors as directors of such corporations. The
fact that a director is bankrupt is relevant to them being a director of trading corporations,
because bankrupt directors might be incapable of managing trading corporations. So the law is
sufficiently connected to s 51(xx).
3)
4)
5) s 51(xx) extends to regulation of shareholders in their role as shareholders of trading
corporations. This is what the law does. However, the fact that a shareholder is bankrupt has
no relevance to them being a shareholder of a trading corporation. The law is regulating
someone who just happens to be a shareholder of a trading corporation. Thus, there is no
sufficient connection between the law and s 51(xx).

QUESTION 4

(a)

Direct legal operation test: The law imposes a duty on trading corporations, and so is with respect to
trading corporations. The law also regulates employment. While trading corporations is a subject
matter in s 51(xx), employment is not under a head of power. The law is nevertheless valid despite the
dual characterisation (Re F).

Although the law is not regulating trading activities, or activities for trading purposes, it is regulating
employment which is so important to a corporation that it must be within the scope of s 51(xx).

(b)

1) The law does not regulate employees in their role as employees of constitutional corporations
– it could regulate them when they are at home, away from work. Thus, there is an
insufficient connection between the law and s 51(xx).
2) The law regulates employees in their role as employees of constitutional corporations, because
smoking in the workplace directly impacts on the constitutional corporation itself. There is a
sufficient connection.
3) The law imposes a duty on constitutional corporations, and so has a direct legal effect on
them. The law must be with respect to s 51(xx).

SEMINAR 5

QUESTION 3

The law operates on people situated outside Australia, and is therefore a law with respect to external
affairs (Polyukhovich v Cth). According to the majority view, there is no need to show a connection
between the behaviour outside Australia and Australia, because Parliament’s decision to legislate

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shows conclusively that Australia has an interest in the issue. Even if a connection needs to be shown,
it is satisfied by s 50AD making Australians the only people who can commit the crime.

[Note: The law is valid even without s 50AD (Horta v Cth). Also, if the law does not say “while
outside Australia”, it is not under external affairs unless there is a treaty.]

QUESTION 5
Is the Act valid?
S 51(xxix) extends to implementation of Conventions (R v Burgess). Legislation is characterised as
implementing a Convention if it satisfies the reasonably proportionality test (Victoria v Cth).
 The legislation is expressed to implement a Convention. That must be its purpose.
 The wording of s 22 does not exclude men, it prohibits sex discrimination in general.
However, the Convention is about eliminating discrimination against women only. Thus, the
Act is too wide, and is not reasonably appropriate & adapted to achieving the purpose of
implementing the Convention. It falls outside s 51(xxix).
However, if the law can be read down to apply to women only, it will be valid under s
51(xxix).

Assuming the Act validly implements the Convention, is the amending legislation valid?
Does it satisfy the reasonable proportionality test? (Victoria v Cth)
 The amending legislation’s purpose must also be to implement the Convention.
 The legislation allows discrimination against unmarried women in the provision of certain
services. It is doing the opposite of the Convention’s requirements. Therefore the amending
legislation is not reasonably appropriate & adapted to implementing the Convention, and falls
outside s 51(xxix).

Alternatively, it can be argued that since Parliament could enact the whole Act, it must be able to
repeal some of it, as long as the leftover law is still with respect to s 51(xxix). After the amendment,
the Act will become a partial implementation of the Convention, although the nature of the Act remains
the same. Such partial implementations of Conventions still fall within s 51(xxix) (Victoria v Cth).
Thus, the amending legislation is valid.

Eg: “All corporations must pay 10% of profits to universities, unless they comply with ILO standards”
The law is not valid under s 51(xx), because it does not differentiate between constitutional
corporations and other corporations (Brennan J in Dingjan; Strickland v Rocla).

However, the law is valid under s 51(xxix):

 The law is made for the purpose of implementing a Convention; and
 The law assists the implementation of the Convention by giving corporations inventive to
comply with the Convention’s standards. It is therefore reasonably appropriate & adapted to
achieving the purpose of implementing the Convention.

SEMINAR 6

PROBLEM 1

The Commonwealth legislation says “If there are funding disputes, then the Tribunal has power to
make decisions about the funding”. It essentially has two parts: (1) “If the Commonwealth promises to
fund a NGM (non-governmental body) for doing X, the NGM does X, and the Commonwealth refuses
to fund the agreed amount, then the Commonwealth must fund it”; and (2) “The Tribunal has power to
determine the dispute, by deciding whether the NGM has done X”.

The Tribunal is a body that exercises power. What kind of body is it? The Tribunal members can be
removed by the Commonwealth on 3 months notice. There is no s 72 tenure. Therefore, the Tribunal is

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not a Chapter III court. This means that the Tribunal can only exercise non-judicial power
(Boilermaker’s case).

Does the Tribunal exercise judicial power? An exercise of judicial power:

 determines existing rights and duties;
 is binding and conclusive, and
 applies pre-existing law (Brandy v HREOC).
Whether these elements are present depends on what decision making powers the legislation vests in
the Tribunal.

If the legislation gives the Tribunal power to order the Commonwealth to give the money promised
(rather than just deciding whether X was done) then the Tribunal has the kind of power that courts
have. All 3 elements are satisfied and the Tribunal has judicial power. The Tribunal is invalid.

However, suppose the Act says “If the Tribunal decides X was done, then the decision will be
binding”. Here the Tribunal only makes a decision as to the dispute, and the Act makes the decision
binding in future. In this case:
 the Tribunal’s decision is merely a factum by reference to which the Act operates to confer
enforceable rights & liabilities (AG (Cth) v Breckler). It is not a determination of existing
rights and duties, and so is not an exercise of judicial power (Brandy v HREOC).
 the decision itself is not binding: the Act makes it binding, and the parties must go to court to
enforce the Act and make the decision binding. The Tribunal is therefore not exercising
judicial power (Brandy v HREOC).
 it is possible to collaterally challenge the Tribunal’s decision by going to court and arguing
that X was not done. If the court agrees, then it will annul the Tribunal’s decision, and send
the matter back. This means the Tribunal’s decision is not conclusive, and is therefore not
judicial (Brandy v HREOC).

There is only one factor in favour of the Tribunal exercising judicial power. The Tribunal is
adjudicating breach of contract, which is a judicial function (FCT v Munro). In other words, it is
applying pre-existing law rather than policy, and so is doing something that courts do (Brandy v
HREOC).

On balance, the Tribunal is not exercising judicial power, but executive power. It is therefore valid
constitutionally.

PROBLEM 2

The legislation gives the Commonwealth power to make a binding decision. The exception of “where
justice requires otherwise” is too broad to negate the binding nature. Since the Commonwealth is not a
Chapter III court, it cannot exercise binding decisions (Boilermaker’s case).

In any event, it is for the court to decide what the intention was. Parliament cannot require the court to
make a primary discretion as to intent. To do so would be against the exercise of judicial power. Also,
the legislation is beyond Parliament’s legislative power, because it cannot retrospectively attribute
intention to the past, if it didn’t have that intention in the past.(?)

SEMINAR 7

PROBLEM 1
 S 1: “Everyone must drive on the right hand side”
 S 2: “Everyone must wear a seatbelt”
 S 3: “Read down according to s 51(i)”

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Validity of s 1
There is no head of power that supports this law. The only way to make it valid is to read it down.
Parliament intended the law to be read down according to s 51(i) [otherwise look at the rest of the Act
for an indication that Parliament intended the law to be linked to a head of power]. Therefore, s 1 will
be read down to become “Everyone in interstate trade and commerce must drive on the right hand
side”.

However, if read down like that, some people must drive on the right side, while others must drive on
the left side. This is an absurd result which Parliament could not possibly have intended. The nature of
the subject matter is such that everyone or no-one must be bound by the law. So the law is not capable
of being confined. Parliament could not really have intended the law to be read down.

To save the rest of the Act, s 1 can be severed. The remaining legislation would still have an operation
that is consistent with Parliament’s intention.

Validity of s 2
There is no head of power that supports this law, so it is invalid. However, courts will read the law
down to a head of power if Parliament intends it. S 3 expressly shows Parliament’s intention to read the
law down to s 51(i), thus the law will be read down to “Everyone in interstate trade and commerce
must wear a seatbelt”. Even if there is no s 3, Parliament would have intended as many people as
possible to wear seatbelts, and so Parliament would have intended the law to be read down to a head of
power.

The subject matter of the law is capable of being read down, because the requirement of wearing
seatbelts can apply to some but not others. It is sensible for Parliament to intend the reading down, as it
would prefer some people to wear seat belts than none at all.

PROBLEM 2

A Queensland legislation gives the Queensland Supreme Court power to imprison people who (1) have
been alleged by the Attorney General to have committed an act of disloyalty to Queensland, and (2)
cannot disprove it. Whether this legislation is valid depends on a few things:

Can the power can be vested in the Queensland Supreme Court?

According to Kable v DPP, there is no separation of powers at the state level. This means the State
Court can prima facie exercise non-judicial power.

However, since State Courts can exercise federal jurisdiction, they can never exercise a power that is
incompatible with federal jurisdiction (Kable v DPP). Is the power conferred by the Qld legislation
incompatible with federal jurisdiction? The legislation reverses the burden of proof, such that the
defendant must disprove a vague accusation. In an exercise of judicial power in criminal trials, guilt is
only established on specific rather than vague allegations, and there is a presumption of innocence
rather than guilt. Since the legislation interferes with the judgement of criminal guilt that is exclusive to
federal judicial power (Chu Kheng Lim v Minister of Immigration), the legislation gives the State court
a power that is incompatible with federal jurisdiction. It is therefore invalid.

Can the legislation interfere with sentencing discretion?

The legislation commands the court to order 5 year imprisonment if found guilty. This is an
interference with judicial discretion that makes the legislation invalid (Liyanage v The Queen).

Is s 80 relevant?
S 80 is irrelevant here, because it does not apply to State laws, and the Queensland legislation is a State
law. It has not been accepted that s 80 gives a broad right to trial by jury.

PROBLEM 3

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In order for the Commonwealth legislation to be valid, it has to comply with certain constitutional
requirements.

1) The legislation must be under a head of power.

Relevant heads of power include s 51(xxxix) [it is a law about the Prime Minister], and s 51(xxxi) [it
takes away people’s rights to sue, a property]. We will assume that the law can be characterised as with
respect to a head of power.

2) The legislation must not infringe the separation of powers doctrine & associated
doctrines.

Can the Cth enact retrospective law?

A retrospective criminal law was held by the majority in Polyukhovich v The Queen to be valid. The
fact that the law is civil rather than criminal strengthens the view that its retrospective operation will
not make the legislation invalid (Gaudron J in Polyukhovich).

Can the legislation override a (federal) judicial decision?

Even if retrospectivity of civil law is acceptable, the legislation purports to override a particular judicial
decision. Existing judicial decisions cannot be overridden, because judicial decisions are conclusive
(Alexander’s case). Therefore, the legislation is invalid to the extent that it tries to override an existing
judicial decision.

Can the Cth legislation interfere with the State Supreme Court’s decision?
There is no separation of powers at the state level (Kable v DPP). Prima facie, the Commonwealth
Parliament can usurp State courts’ decisions.

Kable v DPP can be distinguished, because in Kable the State legislature was giving power to a State
Court. Here, the Commonwealth legislature is trying to undo a State Court’s decision. Nevertheless,
Kable provides a general principle that a legislature cannot interfere with State Courts in a way that is
incompatible with federal jurisdiction. Such an interference occurs here, because exercises of federal
judicial power are conclusive and cannot be undone. Therefore, the legislation is invalid to the extent
that it tries to override a State Court’s decision.

3) The legislation must not infringe the freedom of political communication

(defamation)
?

SEMINAR 8

EXAMPLES
Example 1
Cth: Employees must be careful in doing their work, and must not injure sheep. Otherwise, sack.
State: No one shall be cruel to animals. Penalty = $1000.

Cth law is concerned with work conditions.

State law is not about work conditions.
 Both laws can apply without inconsistency, even if Cth intended to cover the field.
[Having 2 laws operating on one behaviour is not inconsistent]

Example 2
Cth: Don’t do X. Penalty = $1000.
State: Don’t do X. Penalty = $1,000,000.

The laws are not inconsistent in the offence they create.

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But the two laws allow double prosecution. Under the principle of double jeopardy, the Cth Parliament
must have intended that “there shall be no further prosecution” for X. Thus, the Cth law is intended to
cover the field of criminal liability for X. The State law is inconsistent no matter what the penalty is.

If the Cth Parliament does not intend to cover the field of X, then there is no inconsistency. Mere
difference in penalty is not enough for inconsistency.

If the State law says “If do X, victims may sue for damages”, then the state law is about civil liability.
It is not on the field of criminal liability that the Cth law covers, so there is no inconsistency.

PROBLEM
Direct Inconsistency
It is clearly possible to obey both laws, so there is no direct inconsistency.

Inconsistent Rights & Duties

 The Cth law imposes duties on trading corporations, which include by definition employees of
those trading corporations. The duties are owed to customers.
 The State law imposes duties on employees to the company.
There are different duties imposed, but they are not inconsistent [because one does not take away a
right that the other confers] (unlike in Clyde Engineering v Cowburn).

Covering the field test

 The Cth law is about how trading corporations conduct themselves when they deal with
customers.
 The Cth could have intended not to cover the field, because working with State laws gives
greater coverage of protecting consumers. Thus, the subject matter of protection suggests that
the Cth did not intend to exclude State laws on the same subject matter.
 Even if the Cth intended to cover the field, the State law regulates the internal running of the
Theatre Company, not outside it. Thus, it is on a different field.

So the State law is not inconsistent to the Commonwealth law, and so is valid.

SEMINAR 9

EXAMPLES

State law: “The Cth cannot contract for the sale of books in SA”
The State law denies the Commonwealth’s capacity to enter into contracts, and is therefore invalid
(Henderson).

State law: “No one can contract for the sale of books in SA”
The State law is of general application which regulates everyone, not just the Cth  can’t bind (???)

[It is hard to distinguish capacity from the exercise of that capacity. (McHugh & Gummow in
Henderson)]

PROBLEM
Head of power
The law imposes a tax, and so is with respect to tax. The law also is about health policy. It therefore
has two characters. The first (tax) is a subject matter in s 51(ii). The second (health) does not come
under a subject matter in s 51, but this will not affect the law’s validity [as dual characterisation is
allowed]. Since the law has a sufficient connection to a head of power (s 51(ii)), it is valid as a law with
respect to tax.

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[Actually, the tax rebate provision is also a law with respect to tax (similar to Fairfax, where a law
giving immunity from tax was with respect to tax).]

Express limitations? No.

Any Implied limitations on the law? Yes – Intergovernmental immunities

The Commonwealth law binds the States because of the definition of “employer”, and so might
infringe the State Banking doctrine. There are two limbs.

Does the law discriminate on Victoria by placing a special burden on it? The law is of general
application, and does not distinguish States from others. It imposes a tax on all employers, not just
State employers. Thus, the 1st limb of State Banking does not apply.

The issue is whether this law of general application infringes the 2nd limb: Does it destroy, curtail or
interfere with the State’s capacity to function as a government? (State Banking) The law requires
Victoria to retrench 50% of its workers, and the burden would be even greater if it paid private medical
insurance and got the tax rebate. With 50% of its workers gone, the State will not be able to implement
its policies, and so cannot function as a government. The law seems to satisfy the 2nd limb by
destroying the State’s capacity to function as a government.

We will examine some cases which applied the 2nd limb to check whether this result is correct.

This case has some similarity with the Payroll Tax case. It was decided in that case that a payroll tax of
2.5% did not prevent the States from discharging their functions, and therefore did not infringe the 2nd
limb. It is arguable that these facts can be distinguished, though, since in the present case we are told
that the tax will drastically affect the State’s ability to function. The tax here is of a much larger
magnitude than the 2.5% payroll tax.

In the Tasmanian Dams case, Commonwealth legislation that prevented Tasmania from using 11% of
its land area was held to be not big enough to interfere with Tasmania’s capacity to function. The
present case can be distinguished from Tasmanian Dams, because getting rid of 50% of the workforce
is a much larger burden than not being able to use 11% of undeveloped land.

According to the AEU case, the Cth law infringes the implied limitation because it regulates the
employment terms of “high level” State public officials. Applying this principle here, the Act is
definitely invalid to that extent. “Employee” will be read down to include all employees other than
those who cannot be regulated (s 15A Acts Interpretation Act). [However, since the Act expressly
stated those public officials, it may be argued that Parliament did not intend the Act to be divisible. If
so, it cannot be read down. But the better view is that Parliament intended it to operate after reading
down, as the subject matter allows it and it makes sense.]

The AEU case does not seem to invalidate any other area of the Act though. However, Dawson J
argued that the practical effect should be relevant. If so, then the Act dismisses State employees on
redundancy grounds. This is not allowed under the AEU case. The whole Act will then be invalid.

In any event, the real underlying test for intergovernmental immunity appears to be: Is the Cth law
undermining the federal system of government that the Constitution establishes? It appears that the law
in question does, because it is against federalism for the Commonwealth to affect a State in such a
drastic way. Thus, the whole law is invalid under the State Banking doctrine.

SEMINAR 10

PROBLEM 1
Housing Claim
S 117 is relevant here. It guarantees that all Australians are not discriminated against on the basis of
their residence. [s 92 doesn’t apply, because the law doesn’t stop her from coming into South
Australia]

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S 117 requires a comparison between M’s actual situation and the situation she would be in if she were
a South Australian resident (Street v Qld Bar Assn). The South Australian legislation that authorises the
Trust’s policy discriminates against M, because M would have been entitled to the housing assistance if
she was a South Australian resident the whole time. Thus, prima facie, M is immune from the law, and
would obtain housing assistance.

However, the autonomy & integrity of the States allow some forms of discrimination on out-of-state
residents (Street v Qld Bar Assn).
 According to Mason CJ (Deane & Dawson JJ supporting), the exclusion of out-of-State
residents from welfare benefits provided by a State to assist the indigent is outside s 117. The
housing assistance is a welfare benefit; however, it is not really provided by South Australia,
because the Cth is funding it. Thus, Mason CJ’s view may not support this law.
 Gaudron & Toohey JJ think that s 117 does not apply if there are good legitimate reasons for
discriminating. There appears to be a rational basis: the funds are a scarce resource, and so
there must be a way of allocating it. Residency is just one of the ways of allocating the scarce
resource. However, it is arguable that there is no good reason, because the Commonwealth is
funding the assistance. Also, there appears to be no rational basis for requiring 6 months
residence in SA before being eligible for the funds. 6 months may be too long.
 Also, according to Brennan J (McHugh J supporting), only if the discrimination is necessary
for the protection of the State institutions’ functions, will the law be outside s 117. The
discrimination here is not necessary to protect the State, because the State is not paying for the
assistance. The Commonwealth is.
Thus, according to all the judges in Street v Qld, it looks like there is no exception to s 117. This result
seems right when we consider the federal system of government we have: since the Cth is funding the
assistance, it should be available to everyone in the Cth, not only South Australians. Therefore, M is
immune from the law.

Electoral Roll
M’s actual situation is she is not entitled to vote. In comparison, if she were a South Australian resident
instead, she would have been entitled to vote, as she would have been resident for the past 6 months.
Therefore, there is prima facie discrimination for the purposes of s 117 (Street v Qld Bar Assn).

However, the discrimination is allowed because it is necessary to preserve the autonomy and integrity
of the States (Street). In particular, Brennan and McHugh JJ said that laws can exclude out-of-State
residents from voting for State public offices. There is good reason for this, because people who have
not been resident in South Australia do not know enough about the State to vote for State public
positions. Also, 6 months is not too long a time – it is enough time to become familiar with the State.
Thus, an exception applies, and M is not immune from the law, and cannot be allowed to vote.

[If the period had been 2 years instead of 6 months, then there may be discrimination on the basis of
residency  discriminatory under s 117]

PROBLEM 2

Section 92 applies here. It guarantees personal freedom to pass to and fro among the States without
burden (Gratwick v Johnson). However, s 92 does not guarantee absolutely freedom in the sense of
anarchy (Cole v Whitfield). In particular, s 92 will not apply to laws that restrict movement among the
States if the restriction is reasonable (Gleeson, McHugh & Gummow) or appropriate & adapted
(Gaudron & Kirby).

Although the two tests appear to be different, they probably mean the same thing: reasonable
proportionality.
The law’s purpose is to protect South Australia from grape fruit fly. The purpose is not to stop
movement between States. Thus, it is a legitimate purpose.
The law protects SA from the fruit fly by controlling the entrance of Victorians by land. It is a means of
achieving the end of protection. Does it go too far? The means are confined to road travel. The law still

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allows travel by air, or by sea. Thus, it does not seem to go too far, given the serious nature of the grape
fruit fly disease. The means are therefore reasonably adapted and appropriate to protecting South
Australian industry, and does not infringe s 92.

However, “reasonableness” is a subjective concept, and the courts may find here that the means are not
reasonably proportionate. In particular, the law might have gone too far, in requiring all vehicles
entering SA to go through one spray station only. It may not be necessary to regulate in this way,
because there are other much less drastic ways to achieve the purpose. For example, the government
could hurry the shipping of the 3 stations from overseas, or install more spray stations that are not as
effective. Also, the fact that the law exempts commercial interstate traders shows that it is not
necessary to subject everyone to the spray station. The purpose can be achieved by doing something
much less extreme. It is therefore not reasonably proportionate, and is invalid under s 92.

SEMINAR 11

EXAMPLES

If, in Cole v Whitfield, the Tasmanian crayfish are blue, and other crayfish are red, then the law will be
invalid because it is not reasonably proportionate to achieving the purpose of preserving Tasmanian
crayfish stock. It applied to all crayfish, when it could have achieved its purpose by being confined to
only the blue crayfish.

SA law: Fruits and vegetable may be stopped at State borders.

The purpose is to stop fruit fly, to protect the SA fruit.
It is hard to tell by looking at the fruit whether it is affected by fruit fly. Thus, the law cannot just stop
fruit fly fruit. It will be reasonably proportionate for the law to stop all fruits.

PROBLEM 1
VicPower

Does the law infringe s 92?

Legislation that impose discriminatory burdens of a protectionist kind are invalid under s 92 (Cole v
Whitfield).

The legislation does not discriminate on its face, because it applies equally to local and interstate
energy producers. It discriminates in effect, however, since it imposes a burden on interstate pollution
generators. Whether the law is of a protectionist kind depends on whether South Australian energy
producers are “pollution generators”. If they are, then there is no competitive advantage given to local
industry, because they are disadvantaged too. If they are not, then it is probable that the law gives
South Australian energy producers a competitive advantage over interstate energy producers, by
increasing the costs of the interstate “pollution generator” energy producers.

However, according to Castlemaine Tooheys v SA, laws that are proportionate to achieving a legitimate
purpose will not be discriminatory or protectionist, even if they incidentally burden interstate trade or
commerce. Does this principle apply?
 The purpose of the legislation is allegedly to reduce polluting industries, thereby keeping
South Australian air clean. This is a legitimate purpose.
 The means adopted by the legislation to achieve that end, is to make polluting industries pay a
fee when producing their energy, with a 5% progressive increase each year.
o This means may not be reasonable appropriate and adapted, because it is unnecessary
to have a progressively increasing fee to promote cleaner air. A set fee would have
achieved the purpose. Also, the fee collected under the legislation is being directed to
Sough Australian bodies: the OERP and Sasolar. This indicates that the law is
intended not merely to discourage pollution generators, but to give South Australian
industry a competitive advantage over Victorian industry. If these two suggestions
are correct, then the legislation goes too far. The law’s true purpose is in fact to

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disadvantage interstate energy producers in order to give local energy producers a

competitive advantage. The law will therefore be invalid.
o Conversely, it is possible that the means adopted was reasonably proportionate (ie.
the 5% progressive increase in fee is necessary to promote cleaner air), because
pollution generators will be unaffected by a mere fixed fee. If so, then the law will be
valid even though it incidentally gives local energy producers a competitive
advantage.

Does the law infringe s 90?

State laws that impose an excise will be invalid (s 90). An excise is a tax on the production,
manufacture, sale or distribution of goods (Ha v NSW).

Is the levy a tax?

 It is a compulsory exaction of money, but it might not be for a public purpose since part of the
money goes to Sasolar, a private body. The promotion of non-polluting energy producers like
Sasolar would most probably be a public purpose, though.
 The progressive 5% fee looks like a penalty. If so, then the levy will not be a tax. The better
view is that it is not a penalty, because it does not prohibit behaviour, and it is not punishing
behaviour.
 It can be argued that since part of the levy goes to the OERP, it is a fee for OERP’s service of
granting and regulate licences. In other words, the levy is a mere licence fee required for
regulatory control, and has no closer connection with production through to distribution of the
energy. If so, then the levy is not a tax.
However, there are 2 reasons why the levy is not a fee for service. Firstly, a fee for service
should be proportional to the service’s cost. The legislation provides for a 5% escalating fee
rather than a flat fee. It is unlikely that the regulation of pollution generators becomes more
costly as time goes on, so the escalating fee cannot be a fee for the service of regulation.
Secondly, part of the levy goes to Sasolar. Sasolar does not regulate pollution generators at all,
it is not part of the regulatory system. Therefore, the levy is not a fee for service.
The better view is that the levy satisfies all the above criteria for a tax.

Since the tax is on the production stage of energy, a good, it is an excise (Ha v Cth). Accordingly, it is
invalid under s 90.

SOUL-R

Does the law infringe s 92?

The legislation requires certification of all solar products. It does not discriminate on its face. Also, it is
not protectionist because it does not give South Australian solar industry a competitive advantage over
interstate solar industry. The certification money goes to the OERP, not to South Australian industry.

In any event, the law would not be discriminatory or protectionist because it is proportionate to a
legitimate purpose (Castlemaine Tooheys v SA). This is because the purpose is to ensure the highest
possible standards, which is legitimate; and the means of certification is reasonably adapted and
appropriate to achieving that end, as $10,000 per product line is not excessive. Thus, the law is valid
under s 92.

Does the law infringe s 90?

An excise is a tax on a stage in production through to distribution of goods (Ha v NSW). Is the $10,000
a tax?
 It is a compulsory exaction of money for a public purpose of certification.
 It is not a penalty, because certification is given in return.
 The $10,000 can be a fee for the service of certification. It is probably proportionate to the
service’s cost, as the certification and checking of a product line can be complex. Also, the fee
is unrelated to the amount of goods; it is a flat fee. Thus, this levy is a fee for service rather
than a tax on good. Accordingly, it is not a tax.
Since it is not a tax, it is not an excise, and is valid under s 90.

[If it is a Cth law, then not tax  Cth has no power to make it under s 51(ii)  invalid.]

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PROBLEM 2
Does the law infringe s 92?
The law infringes s 92 if it imposes a discriminatory burden of a protectionist kind (Cole v Whitfield).
Here, the law is not discriminatory and protectionist on its face, as it applies to regardless of the
“source of power generation”. It applies to both local and interstate power producers. Also, the law
does not have a discriminatory and protectionist effect, because it does not place a burden on interstate
power producers to give local power producers a competitive advantage. Thus, s 92 does not apply
here.

Does the law infringe s 90?

The law is invalid if it imposes an excise (s 90). An excise is a tax on the production, manufacture, sale
or distribution of goods (Ha v NSW).

Is the additional power charge a tax?

 It is a compulsory exaction for public purposes, as the money goes to ETSA.
 It is not a penalty, as there is no prohibition or punishment.
 It is not a fee for service, as ETSA gives no service in return for the additional payment.
Therefore, it is a tax.

However, it does not appear to be a tax on goods, because it does not relate to the quantity of goods
consumed. It is a flat fee, with a slight flat increase for excess use.

Assuming it is a tax on goods, it is a tax on consumption of the goods. Ha v Cth did not decide whether
consumption taxes would be an excise. Nevertheless, since sale and consumption occur at the same
time in the case of electricity, it can be argued that the tax is – in substance – no different from a tax on
the sale stage. The tax, if seen as a sales tax, would be an excise (Ha v NSW). This argument will
probably succeed, because otherwise States can simply use the word “consumption” rather than “sale”
when drafting in order to escape s 90, when there is actually no difference in substance. S 92 is
concerned with substance, not form (Ha v NSW). So the legislation will be invalid (s 90).

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