2002LAW Exam Preparation

Transcription

1 2002LAW Exam Preparation What is a Constitution? 2 State/Commonwealth Relationship and Taxation Powers 3 Intergovernmental Immunities 4 Narrow Characterisation 5 Subject-Matter and Purpose 7 Proportionality 8 s41: A Right to Vote? 10 s51 ʻBroadʼ Characterisation 11 s51(i): The Trade and Commerce Power 12 s51(vi): The Defence Power 14 s51(xx): The Corporations Power 17 s51(xxix): The External Affairs Power 20 s51(xxxi): Acquisition of Property on Just Terms 23 s51(xxxix): Incidental Powers 26 s80: Right to Trial by Jury 27 s92: Freedom of Interstate Trade and Commerce 28 s109: Inconsistencies 31 s116: Freedom of Religion 32 s128: The Machinery for Constitutional Change 33 Various Implied Rights 35 Answering a Hypothetical 36

2 What is a Constitution? There are many answers to this question. The most common three are that: 1) it is a document which serves to constitute a society in the sense of bring it into existence; 2) it is a blueprint for government, granting and limiting power; and 3) it is the fundamental law of a legal system, in the words of Hans Kelsen, the grundnorm. The Commonwealth of Australian came into being on 1 January 1901 when the Commonwealth of Australia Constitution Act 1900 (Imp) entered into force. The Australian Constitution is a hybrid of ideas and models. From the UK, Australia took the fundamentals of the Westminster system of representative and responsible government. Representative government means government by the people (sometimes identified as ʻcitizensʼ) through their elected representatives, while responsible government means that the executive arm of government is responsible to Parliament for its actions. From the US, it adopted the concepts of federalism, the separation of powers and judicial review. The unifying theme of these is the need to protect the people against the power of government, by distributing and dismembering that power in ways that ensure there is no single consolidated chain of command. A constitution is said to be ʻwrittenʼ when the most important constitutional laws are specifically enacted. Probably all civilised states, except the United Kingdom, New Zealand and Israel now have mainly written or enacted constitutions. Australian constitutional law is both written (s9 of the Commonwealth of Australia Constitution Act) and unwritten (common law and unwritten conventions). One main function of a constitution is to establish the institutions that serve as authoritative sources of law and endow them with legislative power. Sometimes the grant of power is accompanied by explicit limitations on power. (One way this is done is via the separation of powers. The separation of powers is evidenced in Isaiah 33:22 as well as the writings of Aristotle, but it was popularised by Baron de Montesquieu.) Although it is certainly an ideal of constitutionalism to give expression to the need of a human society for limits on the power of government, the need for a society to pursue its collective goals through effective concentration of organised governmental power is equally present and encapsulated in the idea of ʻthe Stateʼ. Federalism is a two-tiered system of government in which power is divided between the central and the state or regional governments. Australian federalism adheres closely to the American model. However, in their understanding of that model, the Australian framers were heavily influenced by the writings of two British observers - Albert Dicey and James Bryce.

3 State/Commonwealth Relationship and Taxation Powers Much of the content of constitutional law hinges on the meaning given by the High Court to the legislative powers of the Commonwealth Parliament. However much of the day-to-day reality of how Australiaʼs constitutional system works hinges on the financial power of the Commonwealth, by virtue of its powers of taxation and spending. The Australian Constitution follows the American approach in that the federal government may only legislate on certain topics which are enumerated in the Constitution (i.e. s51; s52; some are concurrent with states). Conceptualisation of the relationship between the federal and state governments has varied greatly across the years: Co-ordinate federalism is the concept that the Commonwealth and states would work independently of one another. This prevailed from 1901 to the Engineersʼ case (1920). Cooperative or collaborative federalism is, as the name implies, the concept that the federal and state governments should harmoniously work together. It is reflected in the financial agreement of 1927, the ʻNew Federalismsʼ of 1930s, 70s, 90s, and perhaps even the present day. For example, in R v Duncan; Aust Iron & Steel (1983) a joint federal-state Coal Industry Tribunal to regulate working conditions was held to be valid. Deane J said cooperation is a positive objective of the Constitution. However, in Re Wakim (Cross-vesting case) (1999) a joint national scheme where federal and state jurisdiction re corporations law cross-vested in each otherʼs courts was held to be invalid. McHugh J stated cooperative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity. R v Hughes (2000) is also an important case but Iʼm not quite sure what itʼs finding was. Coercive federalism is the concept that the Commonwealth just coerces the states to do what it wants them to do. It is the general trend from 1940s thanks to a series of decisions by the High Court. The federal government is able to coerce the states because it has all the money (taxation power, s51(ii); ss 86, 90 ʻCustoms & exciseʼ, Ha case (1997), GST, Corporations power, WorkChoices (2006), etc). The Commonwealthʼs preeminent financial position means that, in practice, it has much of the power. This is due to both provisions in the Constitution: s51 The [Commonwealth] Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: (ii) Taxation; not so as not to discriminate between States or parts of States; s88 Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth. s90 On the imposition of uniform duties of customs[,] the power of the [Commonwealth] Parliament to impose duties of customs and of excise, shall become exclusive. [s93 Cth to pass on internal customs revenue for 5 years] [s94 Cth may distribute surplus after 5 years] [s95special WA customs revenue deal for 5 years.] A number of High Court decisions have also helped bring about this result. Basically, the Commonwealth has all the money. It can spend it on functions for which powers to make laws (ss.51, 52 etc) and on genuine ʻexecutiveʼ functions (s.61) but it cannot otherwise spend it. Well, it can give theoretically also give grants to the States (s. 96). But grants to individuals? Grants to local government? Grants to NGOs? Grants to regional organisations? See Pape case of 2009 re s81.

4 Narrow Characterisation ʻCharacterisationʼ is the process used by the High Court to determine the 'character' of a law (typically a Commonwealth law), for the purposes of determining whether it is authorised by or infringes the Commonwealth Constitution. A useful analogy is that of hanging a coat (law) on a peg (head of power). Logically, the first task would be to define the limits of the subject-matter area (or purpose), while the second task would be to determine whether the challenged law lies within those limits. Nevertheless, the High Court has often stated that an approach to these tasks in any particular context must be limited by that context. A judicial approach which was once popular was that of ascertaining the pith and substance of the relevant law. The problem was one of determining which of two competing characterisations of the law was the more appropriate; that of identifying the true nature and character of the legislation... in order to ascertain the class of subject to which it really belongs : Russell v The Queen (1882) 7 App Cas 829 at This method originated in a Canadian context where both the Dominion of Canada and the Provinces have enumerated heads of powers (British North America Act 1867 (Imp) s91; s92), and so it is inappropriate in an Australian context which only has one list of enumerated powers. The question in an Australian case is not whether the topic of legislation should be characterised as falling within a specified Commonwealth power or a specified State power, but only whether it can be characterised in a way that brings it within a Commonwealth power. The use of the ʻpith and substanceʼ approach was not only used for s51 & s52, but also for s92. Its rejection and the adoption of the currently prevailing approach to characterisation was done by Dixon J in Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1, e.g. at The question posed by the opening words of s51 is whether a law is one with respect to the specified topic - broad and loose question. So, the Court does not demand to be satisfied that a challenged law is a law with the respect to the relevant topic, but only that it can fairly be described in that way. Or, as the Court nowadays often puts the question: is there a sufficient connection between the law and a head of power? This contemporary acceptance that what is required for a law to be validly enacted under the Constitution is no more than a sufficient connection with a head of power is the end result of a series of cases in the 1970s and 1980s regarding family law: e.g. Lansell v Lansell (1964) 110 CLR 353; Russell v Russell (1976) 134 CLR 495. The question was whether the impugned laws could be characterised as laws with respect to marriage (i.e. issues of step-children).gibbs J insisted that the connection with the marriage must be close. E.g. in R v Lambert; Ex parte Plummer (1980) 146 CLR 447 he observed at 457 the connexion between the operation of the law and the relationship of marriage may be so tenuous that such a law cannot be said to be a law with respect to marriage. There are two important and related general principles which must be borne in mind in determining the ambit of the legislative power conferred by the various paragraphs of s51 of the Constitution... The first is that the different grants of legislative power contained in the paragraphs of s51 are not mutually exclusive and are not to be read down by reference to some presumption that they are... The second... is that a single law can possess more than one character in the sense that it can properly be characterised as a law with respect to more than one subject-matter. It suffices for constitutional validity if any

5 one or more of those characters is within a head of Commonwealth legislative power. In determining validity, it is not necessary to single out the paramount character. It is enough that the law fairly answers the description of a law ʻwith respect toʼ one given subjectmatter appearing in s51 regardless of whether it is, as the same time, more obviously or equally a law with respect to some other subject matter. Re F; Ex parte F (1986) 161 CLR 376 at as per Mason and Deane JJ. In determining whether a law is ʻwith respect toʼ a head of power in s51 of the Constitution, two steps must be taken. First, the character of the law must be determined. That is done by reference to the rights, powers, liabilities, duties and privileges which it creates. Secondly, a judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to a head of power conferred by s51. In determining whether the connection exists, the practical, as well as the legal, operation of the law must be examined. If a connection exists between the law and a s51 head of power, the law will be ʻwith respect toʼ that head of power unless the connection is, in the words of Dixon J [Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 79], ʻso insubstantial, tenuous or distantʼ that it cannot sensibly be described as a law ʻwith respect toʼ the head of power. Re Dingjan; ex parte Wagner (1995) 183 CLR 323 as per McHugh J at This permissive type of approach was derived in Australia from McCulloch v Maryland 17 US (4 Wheat) 316 (1819) in America and Jumbunna Coal Mine NL v Victorian Coal Minersʼ Association (1908) 6 CLR 309 in Australia. This broad approach was reaffirmed in Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479. The general principles which are to be applied to determine whether a law is with respect to a head of legislative power such as s51(xviii) are well settled. They include the following. 1. First, the constitutional text is to be construed with all the generality which the words used admit Secondly, the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. 3. Thirdly, the practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power. 4. Fourthly,... In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other of which is not a subject matter appearing in s51, it will be valid notswithstanding that there is no independent connection between the two subject matters. 5. Finally, if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice. Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 as per Gleeson CJ, Gaudron,, McHugh, Gummow, Hayne and Callinan JJ at 492. There is a primary rule that each head of power should be construed independently according to its natural meaning, so that one head of power cannot be used to limit the scope of another; but we also have a secondary rule that sometimes, by way of exception to the primary rule, the restrictions expressed in one head of power may operate to restrict the scope of other heads of power as well.