Table of Contents

Answer Plan 5
Characterisation 6
SUBJECT MATTER POWERS: SUFFICIENT CONNECTION TEST 6
If no sufficient connection - try implied power 6
If it is a Purposive power - Appropriate and Adapted test 7
DUAL AND MULTIPLE CHARACTERISATION 7
Trade and Commerce Power 9
HEAD OF POWER 9
INTERPRETATION - SCOPE OF POWER 9
Meaning of ‘trade and commerce’ 9
Where s 51(i) does not have power 10
‘with other countries’ 10
‘among the states’ 10
CHARACTERISATION 10
LIMITATIONS 10
Nationhood Power 13
HEAD OF POWER 13
INTERPRETATION - SCOPE OF POWER 13
1. Protection of the Nation 13
2. Advancement of the Nation 13
3. No interference with federal balance 13
CHARACTERISATION 13
LIMITATIONS 14
External Affairs Power 16
HEAD OF POWER 16
INTERPRETATION 16
1. Geographic externality [Subject matter: applying the test of ‘s ufficient connection’] 16
2. International comity: purposive power 16
3. Treaty enactment: applying a treaty is a purposive power 16
Entering (and existing) treaties 17
4. Matters of international concern: purposive power 17
CHARACTERISATION 18
1. Geographic externality: subject matter power 18
2. ‘International’ externality: purposive power 18
LIMITATIONS 18
Aliens Power 21
HEAD OF POWER: ALIENS POWER 21

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What is an alien? 21
Can a person born in Australia still be an ‘a lien’? 21
SCOPE 21
Executive power 21
CHARACTERISATION 22
LIMITATIONS 22
Race Power 24
HEAD OF POWER 24
SCOPE 24
1. Does the law relate to a particular race or races? 24
2. Is the law special (i.e. does the law discriminate bet ween one or more groups of people from, and give different
treatment to the people of the particular race? 24
3. Was the law deemed necessary by Parliament? 24
Is the law to the benefit of the racial group targeted? 24
CHARACTERISATION 25
LIMITATIONS 25
Judicial Power of Commonwealth 26
DEFINITION OF JUDICIAL POWER 26
APPROACH 26
CH III ⎼ THE JUDICIARY 26
Remuneration 27
Tenure 27
INDICIA (INDICATORS) OF JUDICIAL POWER 27
PROHIBITORY RULES 27
PERMISSIVE RULES 28
SEPARATION OF JUDICIAL POWER 29
Principle 29
Administrative body v judicial power 29
Persona designata: exception to Boilermakers 30
Incompatibility doctrine 30
Casualised Judiciary 30
Power to determine criminal guilt is exclusive to Ch III courts 30
Separation of powers & States 31
DETENTIONS 31
Protective 31
Immigration 31
Preventive 31
IMPARTIALITY, INDEPENDENCE & INTEGRITY 31
REMEDIES 31
ACCESS TO CONSTITUTIONAL JUSTICE 31

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Matters 31
Standing 31

Intergovernmental Immunities 32
POSITION BEFORE ENGINEERS CASE 32
Implied immunity of instrumentalities 32
Reserved state powers 32
AMALGAMATED SOCIETY OF ENGINEERS V ADELAIDE STEAMSHIP (1920) 32
LAW LIMITATIONS 32
State prerogatives 32
Taxation 32
MELBOURNE CORPORATION PRINCIPLE 32
REFORMULATED MELB. CORP. 33
STATE LAW + CTH GOVT. 33
Executive Spending Power 34
Implied Freedom of Political Communication 35
NO RIGHT TO FREE SPEECH 35
LANGE V ABC 35
How to know if this implied freedom has been breached? 35
FREEDOM OF POLITICAL COMMUNICATION 35
CASES APPLYING ‘LANGE' TEST 35
MCCLOY V NSW (2015): NEW TEST 36
Acquisition on Just Terms 37
INTERPRETATION 37
Power and continence guarantee 37
States 37
Territories 37
STEPS 37
WHAT IS PROPERTY? 37
ACQUISITION 38
JUST TERMS 38
LIMITATIONS 40
Incongruity 40

s 80: Trial by Jury (Express Right) 41

INTERPRETATION 41
When are proceedings on indictment? 41
Other features 41
LIMITATIONS 41
ACCUSED'S RIGHTS TO WAIVE 41
s 116: Freedom of Religion 42

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SCOPE 42
1. Establishing any religion 42
What is a religion for the purposes of s 116? 42

Scientology case: 5 indicia 42

What constitutes establishment of a religion? 42

2. Imposing any religions observance 42
3. Prohibiting the free exercise of any religion 42
4. No religious test 42

s 109: Inconsistency of Laws 43

REQUIREMENTS 43
HOW IS A ‘LAW’ DEFINED FOR THE PURPOSES OF S 109? 43
LAWS MUST BE VALID AND OPERATIVE 43
Valid 43
Operative 43
TESTS FOR INCONSISTENCY 43
Direct inconsistency 43
‘Cover the field’ inconsistency 45
Step 1: How to Identify the Field? 45

Step 2: Does the Cth Law Express an Intention to Cover the Field? 45

Step 3: Does the Cth law express an intention to not cover the field 45
No retrospective inclusion 45

Notes 48
IMPLIED INCIDENTAL POWER 48
READING DOWN OF LAWS 48
SEVERANCE 48

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Answer Plan

1. What does the Commonwealth legislation

in question actually do? i) Implied freedom of political
First, always consider the Commonwealth law. communication
• Quick summary of facts and issues (material facts + ii) Melbourne Corporation doctrine
legislation are all relevant facts to be discussed in iii) Separation of power
relation to the problem questions)

2. Identify the head(s) of power that could EXTRA STEPS IF THERE IS A STATE LAW
reasonably be invoked to support a
6. Is there a State law?
Commonwealth law.
If the Commonwealth law can be characterised under • Characterisation of state laws must be done in
pursuant of the State Constitution
many heads of powers, can list all the possible heads of
powers BUT only go through the characterisation of
the head of power which is most persuasive + obvious. 7. What is the source of authority for that
State Law?
3. HCA’s interpretation of the power (any NSW can make a law about [insert power] because it
has plenary powers: Union Steamship; s 5 of NSW
authority?)
Constitution, which states, the state government can
• Look at the scope of the grant of power
make any law with respect to the “peace, welfare
• Samples:
‣ Section 51 [subsection] of the Constitution
and good government”.
enables the Commonwealth parliament to [the
purpose of the legislation] → the scope of 8. Are there any Constitutional limits on the
[head power] has been considered by HCA on exercise of that power?
a number of occasions. Constitutional limits imposable on state laws: (1)
‣ e.g. the legislation power to enact the Act interference with judicial power: Kable, (2) purport to
comes from s 51(i) trade and commerce [head apply to & control the Cth: Cigamatic, (3)
of power] to control the trade of medical grade infringement on the implied freedom of political
face masks. In order to do so, the Act is to communication: Bob Brown v State of Tasmania
regulate the selling price, make the standard,
and grant license to sell of medical grade face 9. Is the State law inconsistent with the
masks. Commonwealth?
‣ Stated purpose of the Act was to [insert
purpose of legislation]. The Commonwealth
Parliament, in passing the law, was reacting to
a perceived problem within the community
[name], and therefore, was using its discretion
to deem this law necessary.

4. Characterisation of the law

(a) Non purposive powers: subject matter powers
(b) Purposive or implied incidental powers

5. Constitutional Limitation(s)
(a) Express limitations
i) s 51(xxxi): Acquisition of just terms
ii) s 80: Jury trials
(b) Implied limitations

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Characterisation
• Characterisation is the process of determining
whether a Commonwealth law comes within the
scope of the legislative powers conferred upon the
Commonwealth Parliament by the Constitution:
Tasmania Dam Case
• The Court always asks itself a question that whether
the law relates to the subject matter or purpose of
the head of power in a way that allows it to be
described as a law ‘with respect to’ that head of
power: Grain Pool v WA
NOTE: what the parliament wants the law to achieve
is not relevant, it is what the words of the law actually
says and how it is operative → intention of parliament
is irrelevant if it is not enshrined into the wording of
the law.
STEPS TO CHARACTERISE A CTH ACT
1. Ask what does the Cth Act in question actually
do?
2. Is the subject matter covered by a
Commonwealth head of power? Here, the
issue of how the Court has interpreted the
power will be relevant.
3. Is it subject matter power or purpose power?
4. If it is a SUBJECT MATTER 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?’) → the words “with respect to”
comes directly from the Constitution s 51.
5. If no sufficient connection but by invoking
the implied incidental power, it can be
brought into the subject matter if it is
“appropriated and adapted” to the purpose.
6. If it is a purpose power, use the
proportionality test (i.e. is it reasonably
appropriated and adapted?)
S U B J E C T M AT T E R P O W E R S : S U F F I C I E N T
CONNECTION TEST
• The test is that whether there is a sufficient
connection between the law and the head of power:
Fairfax v Commissioner of Taxation (1965)
• Whether a law is one “with respect to” a legislative
power granted to the Commonwealth by
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ascertaining its substantive or direct legal
operation (i.e. by determining the rights, duties,
obligations, powers and privileges which is the
purpose of effects of the law: Fairfax v
Commissioner of Taxation (1965)
‣ Look to the rights, duties, powers and
privileges which the law changes, regulates
or abolishes: Fairfax v Commissioner of
Taxation
‣ Ulterior motive of the legislature, the purpose
or the indirect consequences which the law
seeks to achieve (either social or economical)
are IRRELEVANT: Fairfax v Commissioner
of Taxation
- policy is irrelevant: Murphyores Pty
Ltd v Commonwealth (1976)
✴ For example, it was irrelevant
that the acknowledged policy of
Parliament in enacting the law
was to increase investments in
public securities → law could
still be characterised as a law
“with respect to” taxation (head
of power) as the law imposed a
liability to pay tax.
• Commonwealth law must possess a substantial
connection with the relevant head of
Commonwealth power: Herald & Weekly Times
Ltd v Commonwealth (1966); Tasmanian Dam
Case (1983)
‣ Court may also consider the practical effect
or operation of a law: Tasmanian Dam Case
(1983)
RESPONSE PLAN
The [head of power] is a subject matter power. To
characterise under this head of power, it must meet
the sufficient connection test. As per Kitto J in
Fairfax, ‘once it appears that a law has an actual
and immediate operation within a field assigned as
a subject of power, that is enough’.
Based on the facts [Apply facts], it is relevant that
there is an intention that aligns with the subject
matter. Hence, the test is satisfied.
If no sufficient connection - try implied power
If there is no sufficient connection, implied power can
be invoked to make the subject matter (express grant of
power) effective: Nationwide News v Wills (1992)
 • Implied incidental power broadens the power that
already exists: “attached to any power, there is an
implied power wide enough to make grant
effective”.
• The test of ‘appropriate and adapted’ must be
satisfied: R v Burgess
‣ Where a law is incidental to the subject
matter of a Commonwealth legislative
power, it must be reasonably appropriate
and adapted to some object/purpose
within that power: Nationwide News v
Wills (1992)
‣ Whatever is incidental to subject matter
MUST BE necessary for the reasonable
fulfilment of that legislative power:
Grannall v Marrickville Margarine
(1955)
• In determining whether the requirement of
reasonable proportionality is satisfied, the court
will ascertain whether, and to what extent, the law
goes beyond what is ‘reasonably necessary’ or
‘conceivably desirable’ for the achievement of the
legislative object sought to be obtained.
• In doing so, the court will ascertain whether the
law causes adverse consequences unrelated to the
achievement of that object and, in particular,
whether those adverse consequences result in the
infringement of fundamental values traditionally
protected by the law (such as freedom of
expression).
• Implied incidental power (exists in ss 39 of s 51):
only exercisable by the Judiciary → while
expressed incidental power can be exercised by
the Executive (O’Sullivan)
‣ Operation of s 51(xxxix) is an express
incidental power, ‘nationhood’ power
conferred on executive power on
‘nationhood’ power.
• ‘Reasonably appropriate and adapted” is a 3 step-
test.
EXAMPLE
In respect to trade and commerce, the implied
incidental power can be invoked to regulate steps
preparatory or ancillary to trade and commerce like
manufacturing: Grannall v Marrickville Margarine
(1955) [including penalties: Burton v Honan
(1952)] → in O’Sullivan v Noarlunga Meat
(1954), the law regulating the packaging of
exported beef is valid because the preparation of the
beef was so intrinsically connected to the export of
beef overseas that it fell within trade and commerce.
!7
• VOID AB INITIO: the law is void from the
beginning if the Court finds it invalid [s 15 of
Acts of Interpretation].
If it is a Purposive power - Appropriate and
Adapted test
RESPONSE PLAN
The [External Affairs/Nationhood/Defence power] is
a purposive power. To characterise under this head of
power, it must meet the ‘reasonably appropriate and
adapted’ test: Richardson v Forestry Commission.
[Apply facts] shows that [the proposed legislation’s
purpose] can be reasonably seen as achieving with
the purpose of the head power.
Only 3 purposive powers in the Constitution: defence
[s 51(vi)], external affairs [s 51(xxix)] and nationhood
(s 61 and s 51(xxxix)]
• HCA apply special considerations to the
characterisation process where HCA determined
that these powers involve the notion of purpose/
object, or an incidental power.
• Court looks at: (1) the direct legal operation of
the law, (2) the law’s purposes or object when it
tries to characterise a law with respect to a
purposive power: Richardson v Forestry
Commission (1988)
• A law made in exercise of a purposive power will
be valid if it is reasonably capable of being
regarded as appropriate and adapted to the
object which gives the law its character with
respect to the relevant head of power.
• The court considers:
‣ Purpose of the power
‣ Purpose of the law
‣ Whether the law can reasonably be seen as
being appropriate and adapted to achieve
the purpose of the power
• Proportionality test (similar to reasonably
appropriate and adapted test, same nature of
injury, but the court is reluctant to conclude they
are interchangeable) MAY BE used where the
extent to which a law operates determines its
validity.
‣ This is to see how far Parliament has gone
in exercising its power.
DUAL AND MULTIPLE CHARACTERISATION
• Legislation within Commonwealth power might
also be characterised as dealing with many heads of
power: Tasmanian Dam Case
 EXAMPLES

1. In Airlines of New South Wales v New South

Wales (no 2) (1965), when the Commonwealth
uses s 51(xxix): external affairs power to enact a
treaty into domestic law, the law must be
‘appropriate and adapted to’ the objective of
implementing the treaty → i.e. Cth must show that
the law has the purpose of implementing the treaty.
2. In Commonwealth v Tasmania (1983), a law will
be held to give effect to the treaty if it is
‘appropriate and adapted’ to the implementation of
the treaty, even if it is intra vires to s 51(xxix)
[intra vires = beyond the power of].

• A law can be fairly characterised as being a law

“with respect to” a subject matter that is within Cth
power, even if it might also be characterised as
bearing upon some other subject matter: Fairfax v
Commissioner of Taxation
• Cth is able to, in the legitimate exercise of a power,
make laws which have a consequential and indirect
effect on matters standing outside the power not in s
51: Murphyores Pty Ltd v Commonwealth (1976)
‣ In Murphyores, the legislation was related to
export [under s 51(i): trade and commerce
power] and environmental matter [Cth don’t
have legislative power].
‣ Not relevant that the main subject was
environmental regulation & Cth was using s
51(i) as a tool to legislate on the subject it
otherwise wouldn’t have access to.

NOTE: dual characterisation does not affect validity of

the law as long as it has a subject which falls within an
enumerated power.

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Trade and Commerce Power
Subject Matter Power
Section 51:
The Parliament shall, subject to this Constitution, have
power to make laws for the peace, order and good
government of the Commonwealth with respect of:
(i) Trade and commerce with other countries, and
among the states
The power is commonly referred to as the ‘interstate
and overseas trade and commerce power’.
HEAD OF POWER
• Section 51(i) is one of the overlapping powers
dealing w/ topics of trade and commerce.
‣ Cth also enjoys power to regulate:
- s 51(v): postal, telegraphic, telephonic
and other like services
- s 51(v): broadcasting
- s 51(ix): quarantine
- s 51(x): currency
- s 51(xiii): banking other than State
banking
- s 51(xiv): insurance other than State
insurance
- s 51(xvi): bills of exchange and
promissory notes
- s 51(xvii): bankruptcy and insolvency
- s 51(xviii): copyright, patent of
invention and design, trademark
- s 51(xx): foreign, trading or financial
corporations
• Additionally,
‣ Cth could use ‘s 51(vi): defence power’ to
seize international trading operations to
control terrorists.
‣ Regulate foreign investment by non-resident
individuals using ‘s 51(xix): aliens power’ or
industrial relations in trading entities: s
51(xxxv).
‣ Cth can use s 122: territories power to
regulate trade and commerce within
Territories, within Territories and between
Territories - States - overseas.
• If dealing with steps preparatory or ancillary to
trade like manufacturing, production or export for
international trade and commerce OR to regulate
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things and activities that are physically located
within a state → use implied incidental power.
• Allows for interstate commerce (between states) but
not intrastate (within one state only).
• Cth’s trade and commerce power (TAC) has been
used (for interstate and overseas TAC) to regulate:
‣ import and export trade
‣ trade practices
‣ operation of federal govt. business enterprises
‣ international shipping
‣ aviation
‣ regulation of interstate road transport
“with other countries, and among the states” → doesn’t
allow for regulation of intrastate (within states):
Murphyores
INTERPRETATION - SCOPE OF POWER
Meaning of ‘trade and commerce’
• Give the words ‘trade and commerce’ their popular
meaning → where any business relationship
amounts to trade and commerce: W&A McArthur v
Queensland
• s 51(i) is a power regulating navigation, shipping
and railways (the property of any State): W&A
McArthur v Queensland
• It covers intangibles as well as the movement of
goods or persons. It extends s 51(i) to a wide range
of activities such as supply of gas, communication
(telegraph, telephone and other wireless means),
and broadcasting (television and visual signals):
Bank of NSW v Cth (1948)
‣ confine subject matter to physical things and
persons would be incompatible with all
modern developments: Bank of NSW v Cth
(1948)
• Transport for reward is a type of trade and
commerce (e.g. commercial cargo): Australian
National Airways v Cth (1945)
• Cth can authorise the creation of a government
trading enterprise: Australian National Airways v
Cth (1945)
• Preparation of goods for trade can be covered by
TAC (implied incidental power can justify the
validity) BUT generally, manufacture is considered
trade and commerce: Granall v Marrickville
Margarine; Beal v Marrickville Margarine
Where s 51(i) does not have power
• [Apply facts] → s 51(i) does not have the power to
regulate the ‘national economy’: Pape v
Commissioner of Taxation (2009)
‣ there need to be a definable relationship of
the substantial economic effect on the trade
between states or with other countries.
OR
• [Apply facts] → s 51(i) does not have the power to
regulate activities preparatory to trade: Granall v
Marrickville Margarine (1955)
‣ production, manufacture and importation are
activities preparatory = generally not trade:
Beal v Marrickville Margarine (1966) [but
possibly can use implied power to regulate
preparatory activities which can be identified
as being done for export: O’Sullivan v
Noarlunga Meat Ltd (1954)].
‘with other countries’
• Section 51(i) enables Cth to ‘prohibit, regulate and
control the importation and exportation of goods’
for ay purpose: Murphyores Pty Ltd v
Commonwealth (1976)
• Parliament or delegated person decides who may
export and what may be exported (Parliament
decides the means and criteria for selection):
Murphyores Pty Ltd v Commonwealth (1976)
‣ NOTE: activities in preparation for trade →
apply incidental power
‘among the states’
• No direct power to regulate intrastate: R v Burgess
(wording of power don’t permit), BUT Cth can
manoeuvre around this.
‣ Use incidental power to regulate the activity
or goods physically located within the State
IF they are sufficiently connected to
interstate or overseas trade or commerce:
Redfern v Dunlop Rubber Australia Pty Ltd
(1964)
‣ Where the trade of goods involves both
interstate/overseas + intrastate = no clear
distinction between which certain unit would
be used for exportation or intrastate sale =
Cth can regulate intrastate and commerce
(proportionality test may apply): R v Burgess
• Physical connection = can’t separate interstate and
intrastate if they belong in the same building
• Economic connection = incidental power is not
accepted (connection not strong enough):
O’Sullivan v Noarlunga Meat (1954)
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CHARACTERISATION
RESPONSE PLAN
1. ‘Trade and commerce’ is a subject matter
power.
2. To characterise under this head power, the law
must meet sufficient connection test: Fairfax v
Commissioner of Taxation. To determine
whether it is sufficiently connected, look at the
rights, duties, powers and privileges that the
law affects: Bank of NSW v Cth (1948) [there
must be a sufficient connection between the
matter, thing or activity to be regulated
(including intrastate matters) and interstate and
overseas trade provided by s 51(i): O’Sullivan v
Noarlunga Meat (1954)]. Mere economic
relationship is not supported by sufficient
connection.
3. [Apply facts] shows that [the legislation’s
intention] aligns with the subject matter → the
test is satisfied.
OR
1. No express power to regulate matters under s
51(i) → use implied incidental power.
• Incidental power = implied grant of power
wide enough to make express grant
effective:
• Appropriate and adapted test (Nationwide
News v Wills (1992)): is it appropriate
and adapted for trade and commerce
with other countries, or among the
state?
2. Cth can use its incidental power to regulate
things/activities that are physically located
within a State so long as they are sufficiently
connected to interstate or overseas trade and
commerce: Redfern v Dunlop Rubber
Australia Pty Ltd (1964).
• Where there is no clear distinction
between which unit would be used for
intrastate sale or exportation, Cth can
regulate intrastate trade because it falls
within head of power: R v Burgess.
• Cth can invoke incidental power to legislate
with respect to supervision & control of all acts/
processes involved in the export of goods and
services: O’Sullivan v Noarlunga Meat (1954)
LIMITATIONS
1. s 92 prohibits restrictions on interstate trade where
the purpose of legislation is to discriminate against
interstate borders [trade needs to be free]
2. s 99 Cth shall not, by any law or regulation of trade,
commerce or revenue, give preference to one state
or part thereof over another state or part thereof.
3. s 100 Cth shall not, by any law or regulation or
commerce, abridge the right of a state or the
residents therein to the reasonably use of the
waters of rivers for conservation or irrigation.
Limitation on geographical requirements of power
4. s 51(i) is not a general power to regulate the
national economy: Pape v Commissioner of
Taxation (2009

W&A MCARTHUR V QUEENSLAND (1920)
• P was soft-goods business trading in calico,
sheeting and sheets.
• Agents would travel w/ goods from NSW to
QLD to act on P’s behalf.
• QLD Commissioner of Prices wished to
prosecute agents for breaching fixed prices.
• P brought action on grounds that state could not
impose restrictions on interstate trade (s 92).
• Obiter from majority: s 51(i) and s 92 both
embrace all that is ordinarily comprised within
the term ‘trade and commerce’ when taking place
‘among the States’ → HC struck down legislation
as negotiations is part of everyday business.
MURPHYORES PTY LTD V COMMONWEALTH
(1976)
• M (sand mining) applied for export permit under
Fed customs. They were denied + argued s 51(i)
cannot prohibit on environmental grounds.
Rejected by court.
• Policy of Cth is irrelevant → HC looks at rights
that the law creates, affects or destroys “with
respect to” → regulation was characterised as
TAC because it relates to other countries: it is
enough that the law deals with the permitted
topic + does not cease to deal w/ that topic but
factors extraneous (irrelevant) to the topic may
be taken into account in the relaxation of
prohibition.
BANK OF NSW V CTH (1948)
• Labour Govt. attempted to nationalise private
banks in Australia & constitutional validity of
legislation was challenged → HC held law
invalid: (1) mechanism used to nationalise banks
was not on “just terms” outside scope of s
51(xxxi), (2) there is a positive right on the banks
to engage in interstate banking, operation of
constitutional freedom of interstate TAC (s 92).
!11
O’SULLIVAN V NOURLUNGA MEAT LTD (1954)
• s 52(a) of the Metropolitan and Export Abattoirs Act
1936-1952 (SA) + regulations required licenses for
slaughtering and processing of meat → D argued SA act
inconsistent with Federal neat export regulations: if Fed’s
legislation valid exercise of s 51(i).
• Fullagar J: Cth possesses no specific power for
slaughterhouses, but the trade and commerce power
allows for the regulation of the quality of meat for export
→ laws were within incidental power → “all matters
which may affect beneficially or adversely that export
trade of Australia in any commodity produced or
manufactured in Australia must be the legitimate concern
of Cth”.
• Cth don’t have express power to regulate treatment of
beef carcasses in abattoir. BUT can prescribe standards if
the meat is destined for export trade.
GRANALL V MARRICKVILLE MARGARINE
• Regulation of production may be incidental to regulation
of trade → “nothing which has been said above implies
that under the power conferred by s 51(i) of the
Constitution … the Cth can never reach or touch
production”.
PAPE V COMMISSIONER OF TAXATION (2009)
• Bryan Pape sued Commissioner of Taxation alleging that
he was entitled to a tax bonus of $250 from D under s 7
of Tax Bonus for Working Australians Act (No 2) 2009
(Cth).
• Payment of tax bonus was characterised as a gift, not
authorised (on grounds that the Act was not a law with
respect to taxation as provided by para (ii) or any other
para of s 51 of the Constitution → invalid.
• Gummow, Crennan Bell JJ: Act may be supported by s
61 and 51(xxxix) of the Constitution, but question is: (1)
whether there is a need for an immediate fiscal stimulus
to the national economy, (2) whether legislation falls
within executive power and incidental exercise of
executive power under s 51(xxxix)
BEAL V MARRICKVILLE MARGARINE
• B argue MM failed to comply with State dairy industry
regulations of quota on production. MM argued that
regulations infringed s 92 as manufacturing processes
specifically fulfil orders from interstate customers.
• Held: rejected → “manufacturer is usually a trader
because part of his business is to sell his products, but to
manufacture is not, of itself, trade”.
 R V BURGESS
• Vernon William Burgess, officer at Civil Aviation
Department in Sydney, charged Henry Goya Henry (pilot)
for flying over Mascot. Cth passed the Air Navigation
Regulations under the Air Navigation Act 1920.
• Validity of sections were challenged on basis that it could
not rely on trade & commerce power.
• Dixon J: Act requires that interstate flying be controlled
as a whole.
• Evatt & McTiernan JJ: Cth has power to legislate w/
respect to trade and commerce, allowing interstate trade
through air transport, due to the “sufficiently proximate
relationship w/ such trade”.
AUSTRALIAN NATIONAL AIRWAYS V CTH
(ANA CASE)
• Australian National Airlines Act 1945: power to
establish, maintain and operate airlines services
for the transport for reward of passengers and
goods between Territories and other places in
Aus.
• Issue: whether the provision allowing interstate
airlines was valid.
• Law authorising transport service for interstate
trade is covered by s 51(i) → flexible application
• If limitation exists, needed to be imported into
the power.

REDFERN V DUNLOP RUBBER AUSTRALIA PTY LTD (1964)

• Australian Industries Preservation Act 1906 (Cth) made people liable for conduct w/ intention or result of
retraining interstate/overseas trade and commerce. P argued at D’s restrictive trade agreement made P unable to
buy tyres at wholesale price. D argued Act unconstitutional as it applied to agreements which involved BOTH
intrastate and interstate.
• Taylor J: Not valid objection that some contracts or combinations may be found to relate also to other matters
→ can extend to intermingling situations BUT not purely intrastate arrangement.
• Menzies J: Cth’s power extend to intrastate trade as it is inseparably connected w/ interstate trade and
commerce → BUT does not enable person (making arrangements relating to trade) to put these arrangements
beyond Cth’s control.
• Windeyer J: for law to validly regulate intrastate trade, ‘the connexion (b/ween intrastate and overseas/
interstate trade or commerce) must not be so remote or insignificant that there is no real relationship”.

!12
Nationhood Power
Purpose Power

Section 61 executive power:
The executive power of the Commonwealth is vested
in the Queen and is exercisable by the Governor-
General as the Queen’s representative, and extends to
the execution and maintenance of this Constitution,
and of the laws of the Commonwealth.
Section 51(xxxix) express incidental power:
The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order and
good government of the Commonwealth with respect
of:
(xxxix) Matters incidental to the execution of any
power vested by this Constitution in the
Parliament or in either House therefore, or in the
Government of the Commonwealth, or in the
Federal Judicature, or in any department or
officer of the Commonwealth.
HEAD OF POWER
• Nationhood power enables the Cth to make laws
about or in relation to the Australian nation. It is
part of the executive power of the Commonwealth.
• Source of power is not clear → either implied in the
Constitution, or comes from the executive power in
s 61 + incidental power in s 51(xxxix): Davis v Cth
(1988)
INTERPRETATION - SCOPE OF POWER
1. Protection of the Nation
• Nationhood power gives executive power to create
legislation to protect the Nation: Burns v Ransley
(1949) → able to make laws in regards to seditious
words, the Executive has the power to make laws
for the protection of Australia and the Constitution
AGAINST seditious acts and words. Contrastingly,
the Court in Communist Party Case held legislation
was invalid because it specifically targeted at
specific bodies and not directed as a nation.
!13
2. Advancement of the Nation
• Nationhood power can be used for the
advancement of the nation: Davis, but should be
limited to the principles of Federalism: Pape
• AAP case recognised that the nationhood power
is for the benefit of the nation + it is a power
that can have appropriation of funds attached to
it → Govt. can spend money when exercising
nationhood power.
• However, it must be peculiarly adapted to the
federal govt. = it should not be more appropriate for
the state to enact the legislation: Pape v
Commissioner of Taxation (2009)
• At present, not enough case law to determine
detailed criteria → precise tests could be developed
as more cases are decided: Davis
3. No interference with federal balance
• Must be something only the federal govt. could
achieve + complete: AAP Case (Mason J)
• Something more than mere convenience → can’t be
a disagreement between states and fed government
or where it would make more sense for states to act:
Tasmania Dam Case (Barwick CJ, confirmed by
Deane J)
• Cth can regulate territorial waters of Australia: Seas
and Submerged Land Case (Barwich J)
CHARACTERISATION
• Once the matter falls within a head of power, it does
not matter whether the legislation goes beyond what
is necessary or desirable: Leask v Commonwealth
RESPONSE PLAN
1. ‘Nationhood’ power is a purpose power. To
characterise under this head power, the law must
meet reasonably appropriate and adapted test
→ is the law reasonably appropriate and adapted
to the character and status of the Cth as a
national govt?: Richardson v Forestry
Commission; Davis v Commonwealth
2. [Apply facts] shows that [the proposed
legislation’s purpose] can be reasonably seen as
aching w/ the purpose of the Commonwealth as
a national govt. and is not punitive in nature:
Davis v Cth
LIMITATIONS
• In Davis v Commonwealth, Court held that there
was a limit to exercise of power by the Executive.
Various sections that gave exclusive rights to words,
symbols and trademarks went beyond what was
reasonably necessary → court applied purposive
test: legislation went beyond the purpose of what
Cth intended to achieve (celebrate the bicentenary)
when it tried to grant exclusive use of words.
• Melbourne Corporation Principle: immunity of
states from Commonwealth legislation that would
destroy or curtail their continued existence or their
capacity to functions as governments
• Power can only be used for the benefit of the nation
(benefit defined by Parliament): Davis v
Commonwealth
• Power is not unlimited: executive power is limited
to the distribution of powers affected by the
Constitution: AAP Case (Mason CJ);
Commonwealth v Colonial Combing, Spinning &
Weaving Co.
‣ “in scope, it [nationhood power] is not
unlimited and that its content does not reach
beyond the area of responsibilities allocated
to the Commonwealth by the Constitution.”
‣ Must be something only the Cth govt. can
achieve → shouldn’t be something that
would be more appropriate for stated to
legislate on.
• All other limitations (expressed + implied)
NOTE: only senior ministers are in the cabinet →
makes decisions about the most important things
behind closed doors (allow them to have real frank
discussions without being held responsible outside
cabinet = freedom of discussions).
A court can’t adjudicate on decisions of the cabinet: a
law is judicable but the decisions + rationales behind
such law is not disputable in court.
NOTE: when a law is incidental under subject matter
power, apply proportionality test.
BURNS V RANSLEY (1949)
• Member of Communist Party of Australia said that in
any war between Soviet and West, CPA would
support Soviets: Burns was convicted of uttering
seditious words.
• Latham CJ: “while the Parliament has no power to
pass a law to suppress or punish political criticism …
excitement to disaffection against a govt. goes
beyond political criticism - Cth has the power to
make law to protect”.
• His arrest was valid under the sedition law.
!14
TEOH V MINISTER FOR IMMIGRATION AND
ETHNIC AFFAIRS (1995)
• Teoh (Malaysian citizen) married and had 4
children + 3 more children with his partner. Before
his temporary permit ended, he applied to become
citizen of Australia.
• He was charged w/ heroin possession before his
citizenship was approved and his application failed
→ he didn't meet the character test and deported.
• He argued that since the Executive signed CROC,
they can’t cancel his citizenship because then they
failed to acknowledge the 7 children dependent on
him (when signing a treaty, Executive makes a
conscious decision to take the treaty into account).
• HELD: HCA found that even if an international
treaty had not been the subject of legislation, mere
fact of a govt. entering into treaty created a
legitimate expectation that the governmental
decision-makers would act consistently w/ the
terms of treaty → ‘legitimate expectation’ can be
removed by Executive decree & not followed in
subsequent case (Ex Parte Lam): there is no
doctrine of legitimate expectation on legislature
from ratification of treaty.
COMMUNIST PARTY CASE (1951)
• Legislation was invalid because it was too specific
about certain people and named bodies → not
directed at the nation.
DAVIS V COMMONWEALTH (1988)
• Lou Davis, an Aboriginal Australian, sought to
market Bicentennial t-shirts bearing messages such
as ‘200 years of suppression and depression’.
• Australian Bicentennial Authority Act 1980 (Cth)
ss 22 & 23: restricted Davis from use of any
symbol/logo associated with the Bicentennial (e.g.
1788, 1988, Bicentenary, Bicentennial, Sydney,
Melbourne, First Settlement, 200) w/out
Bicentennial Authority’s consent.
• Brennan J: “it extends to the advancement of the
nation whereby its strength is fostered”.
• Wilson, Dawson and Toohey J dissented: “it
couldn't go beyond self-protection, there is no
implied legislative power in the nationhood power
• Mason, Gaudron and Deane J: “the power could
be extended beyond self-protection and there is a
legislative power”.
• HELD: the legislation was invalid because it gave
the executive exclusive grant to use words →
extend beyond what was reasonably necessary
and what the Cth intended to do (celebrate
bicentenary).
!15
External Affairs Power
Subject & Purposive Power
Section 51:
The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order and
good government of the Commonwealth with respect
of:
(xxix) External affairs
HEAD OF POWER
“The pursuit and advancement of comity with foreign
government and the preservation of the integrity of
foreign states may be a subject matter of a law with
respect to external affairs”: Thomas v Mowbray
(Gummow and Crennan JJ)
INTERPRETATION
The s 51 (xxix) ’external affairs’ power is broadly
interpreted as including the legislative power of the Cth
to enact domestic laws giving effect to any treaty,
irrespective of the topic of the treaty, and to allow
Parliament to regulate any activity occurring outside of
Australia.
There are 4 aspects of the power. [apply appropriate
one to problem question]
1. Geographic externality [Subject matter:
applying the test of ‘sufficient connection’]
• The Cth can legislate on matters which are
physically external to Australia.
• Geographic externality is a broad power applying to
laws used to regulate persons, places, matters or
things geographically external to Australia:
Polyhukovich v the Commonwealth
‣ Territories outside of Australia is of itself
sufficient to bring a matter or thing within the
phrase “external affairs” for the purposes of s
51(xxxi), meaning no more factor is needed
to determine whether it is sufficient: Horta v
Cth (1994)
• Question remained is that whether geographical
externality requires some sufficient connection
between Australia and other countries → Callinan,
Heydon and Kirby JJ showed that there is doubts:
XYZ v Cth
!16
• Power has retrospective effect: Polyhukovich v the
Commonwealth
4. International comity: purposive power
• Power directed at legislation aimed at preserving
Australia’s relations with other nations.
• Doctrine to comity: nations accept each other’s
sovereignty
• Cth has ability to legislate Australian relationships
with other nation states.
• [Apply facts] any matter that regarded something
that was outside of Australia, including other
Dominions of the Crown, fall within external
affairs: R v Sharkey
• Protection of comity between nations is an aspect of
external affairs → external affairs power provides
for the enactment of laws that punish act done in
violation of international comity: R v Sharkey
‣ Rule of law in R v Sharkey extended to
international persons and organisations, in
particular the United Nation and other global
organisations relating to the kinds of concerns
Australia may have: Koowarta (1982)
• Power can be used to pass Cth legislation to
recognise or exclude the operation of foreign laws
in Australia (also cover extradition): Kirmani v
Captain Cook Cruises (No 1) (1985)
• External affairs power need either a binding
obligation or a doctrine of comity: Industrial
Relations Act Case
• ‘International concern’ is vague, should be
approached with caution and need proof (e.g. clear
expression by the international community or need
to adhere to international practice): Polyhukovich
5. Treaty enactment: applying a treaty is a
purposive power
• Treaties enactment involves the changing of
domestic law by implementing international
instruments such as treaties, obligations and
agreements that Australia is subjected to be a party
to.
‣ It is part of the prerogative power of the
Executive to enter treaties. However, treaties
are not self-executing, mere signing or
ratification of a treaty had no effect on
domestic law: Victoria v Commonwealth
(‘AAP Case’)
 ‣ Tr e a t i e s c a n i n f l u e n c e s t a t u t o r y
interpretation when there is ambiguity in the
domestic law: Chu Kheng Lim v Minister for
Immigration (1992)
‣ Treaties can influence administrative
decision-making but in a controversial and
ineffective way: Teoh v Minister for
Immigration and Ethnic Affairs (1995)
‣ Treaties/international law can influence
constitutional interpretation. International law
is a legitimate and important influence on the
development of common + Constitutional
law, especially when international law
declares the existence of universal and
fundamental rights: Newcrest Mining (WA) v
Cth (1997)
• Scope of treaty enactment is part of external affairs
power.
‣ Cth is authorised the implementation of
treaties: R v Burgess
‣ s 51(xxix) is not limited to matters covered
by other paragraphs in s 51: R v Burgess
- Cth can sign any kind of treaty
regardless whether it is about trade and
commerce, corporation, race, etc.
- Parliament may also legislate to carry
out recommendations and draft
conventions agreed upon by
international organisations:
- Head of power incorporates other heads
of powers (e.g. in Tasmanian Dam
case, law is coupled w/ corporations
power).
‣ [Apply facts] is sufficient as it deals with the
matter of international concern and the treaty
itself is sufficient as an evidence of
international concern w/ other countries:
Koowarta; Tasmanian Dams.
‣ Power may be limited when the law is with
respect to ‘matters of sufficient international
significance’ (Starke J) or ‘indisputable
international in character’ (Dixon J): R v
Burgess.
- Content of a treaty is not a limitation on
the scope of ‘external affairs’ power:
Tasmanian Dams Case
- As long as treaty was entered into w/
other countries, the fact that it related to
matters of purely domestic concern did
not affect the ability of Cth to enact
into law: Koowarta
• Domestic law must conform to the treaty
‣ In order to be intra vires (within the power)
of s 51(xxix), domestic legislation that was
!17
based on a treaty has to be either in
conformity w/, or reasonable incidental to,
the terms of treaty: R v Burgess.
‣ Meticulous adherence to the terms of treaty is
not required, so long as legislation was an
‘appropriate and effective means’ of carrying
out treaty obligations: R v Poole.
- Domestic law is not necessary to follow
word by word of the treaty.
- ‘Capable of being reasonably
considered to be appropriate and
adapted to achieving what is said to
impress it w/ the character of a law with
respect to external affairs’: Tasmanian
Dam case (Deane J)
‣ BUT the law will be held invalid if the
provisions of the legislation is substantially
inconsistent w/ the treaty: Victoria v
Commonwealth (‘AAP Case’)
ENTERING (AND EXISTING) TREATIES
• Entering treaties ⎼ Executive has the power to enter
treaties (forms part of the prerogative power of the
Crown: s 61). 1996 reforms have included a role
for parliament:
‣ Tabling of treaties in Parliament before
signing [alerts/informs Parliament on the
existence of Australia’s ramification to the
treaty] + processes to alert states to the
existence of treaties (Parliamentary Joint
Standing Committee on Treaties formed.
• Exiting treaties ⎼ do they have power to exit
treaties? No: R (Miller) v Secretary of State for
Exiting the European Union [2017] UKSC 5.
4. Matters of international concern: purposive
power
• Matters of international concern will still attract
‘external affairs’ power even in the absence of a
treaty: Tasmanian Dam case
‣ There is a possibility for matters of
international concern to exist → RDA relates
to matters of international concerns:
Koowarta (NOTE: there is a fear that Cth
could abuse ‘external affairs’ power to take
away power from the states)
CHARACTERISATION LIMITATIONS
1. Geographic externality: subject matter power • s 51(xxix) is ‘subject to’ the
Constitution and its express +
RESPONSE PLAN implied constitutional limitations:
1. Sufficient connection test must be applied as it is a subject Victoria v Commonwealth (1996)
matter power ⎼ look to rights, duties, obligations and • If the Cth exercises its external
privileges which legislation changes, regulates or abolishes: affairs power to implement treaty
Fairfax obligations (which are void or
2. [Apply facts] is sufficient as the matter of the legislation deals unlawful under international law), it
territorially outside Australia, no more factors needed to be may still be valid because mere
taken into consideration as matters territorially outside is of geographical externality is enough:
itself sufficient: Horta (Regulation of exploration + Horta v the Commonwealth (1994)
exploitation of petroleum in Timor Gap as it had substantial • Cth may not cite an international
nexus to Australia → Kirby J questions whether geographical obligation as a sham or circuitous
externality requires some sufficient connection between device to attract legislative power:
Australia and other countries) BUT XYZ v Cth raises doubts. Horta → Cth must enter treaties in
• Any persons, places, matters or things external to bona fide (genuine).
Australia → Cth has the power to legislate (BROAD • Australian federalism
INTERPRETATION): Seas and Submerged Lands ‣ ‘ E x t e r n a l a ff a i r s ’ p o w e r
case expanded w/ growth of
A u s t r a l i a ’s i n t e r n a t i o n a l
personality.
2. ‘International’ externality: purposive power ‣ Federalism restrict the
RESPONSE PLAN construction of ‘external
1. Apply reasonably appropriate and adapted test because affairs’: Tasmanian Dam Case
international externality is a purposive power: Richardson v • Melbourne Corporation Principle
Forestry Commission. To be intra vires s 51(xxix), domestic ‣ Court upheld a challenge
legislation must either be in conformity w/, or reasonably under the Melbourne Corp.
incidental to the terms of the treaty: R v Burgess. doctrine. Federal provisions
2. TREATY PART: DOMESTIC LAW MUST CONFORM TO were read down so that the
TREATY State power to regulate these
• [Apply facts] does not need to be meticulously adhered matters were preserved:
to words of treaty: R v Poole, if the legislation observes Victoria v Commonwealth
the spirit of the treaty, then the link is sufficient: (1996)
Tasmanian Dams Case (World Heritage Act is valid to • Scope of external affairs power is not
protect the culturally significant area for ATSI). If a restricted by s 51(i) ‘trade and
provision of the law is substantially inconsistent w/ the commerce’: Airlines of New South
treaty, then the law is invalid: Victoria v Cth Wales v New South Wales (No 2)
‣ Domestic law is not required to follow word by word (‘Airlines (No 2)’) (1965)
of the treaty.
‣ If the implementation demonstrates a deficiency R V SHARKEY (1949)
which is so substantial as to make it inconsistent • Sharkey was charged with uttering
with the Convention, then the law may not be seditious words against the Queen. It
characterised as a law with respect to external affairs. was a crime for it to occur within ‘any
3. IF RELATES TO OTHER HEADS OF POWER: repeat the of the King’s dominions (including
Characterisation steps Australia)’. Sharkey argued that it was
• General rule regarding dual characterisation: Strickland v an invalid provision as the matter was
Rocla Concrete Pipes (1971) → as long as the law is outside of Australia.
within one power, it doesn’t matter that it (impliedly) falls • Court found the regulation of sedition
outside another. (against Australia and British Crown,
• Exception: if the Act falls within one power, but expressly i.e. other Cth countries) did form part
excluded by another power, it cannot be valid: Wurridjal of international relations of Aus,
v Cth [2009]. supported by the external affairs power.

!18
 NSW V COMMONWEALTH (‘SEA AND SUBMERGED
LAND CASE’)
• ISSUE: whether s 51(xxix) entitled the Cth to assert
its sovereignty over the Australian territorial sea
(majority agreed it did) + to the extent of the
application of the Geneva Convention (McTiernan J
applying it & Jacobs J refusing).
• HELD: assertion of sovereignty over a continental
shelf was within power since idea of rights over them
emerged distinctly as a product of international
relations & international law.
• Barwick CJ: “upon the enactment of the
Constitution, any rights or powers which the former
colonies might have had in the territorial sea, seabed
and airspace or in the continental shelf and include
became vested in Cth.
• Stephens J: “not only does external affairs include
treaties but other matters of non-consensual character
→ conduct of a nation + its nationals that affect other
nations and its relations w/ them are also included”
XYZ V COMMONWEALTH [2006]
• Legislation that made penal child sex offences
committed overseas was challenged. A Melb man,
XYZ, was arrested in Melbourne in 2002 in relation
to offences said to have been committed in Thailand
in 2001.
• ISSUE: whether mere geographical externality is
sufficient to attract s 51(xxix).
• Gummow, Hayne and Crennan JJ: mere
geographical externality was required
• Callinan and Heydon JJ: rejected the view.
• Kirby J: left question open.
VICTORIA V COMMONWEALTH (1996) A ‘ AP
CASE’
• Validity of legislation excluding the operation of
British Imperial Act in Australia is challenged.
• HC held that this law fall under the external affairs
power → clarification of international law is valid.
• Barwick CJ: “some powers, legislative and
executive, are inherent in the fact of nationhood
and of international personality … they arise from
the very formation of Cth as a polity and its
emergence as an international state”.
• French CJ: “it has to be capable of serving the
proper purposes of a national government. On the
other hand, the exigencies of ‘national
government’ cannot be invoked to set aside the
distribution of powers between the 3 branches of
government for which this Constitution provides,
nor to abrogate constitutional prohibitions.
!19
THOMAS V MOWBRAY
• Jack Thomas (Jihad Jack) had control orders
places on him (authorised by Crimes Act Cth) after
terrorist charges against him were dismissed.
Thomas agreed that the sections which created the
control orders were outside Cth power and not
constitutionally valid
• ISSUE: whether terrorist acts under Pt 5.3 of CCC
fell with def. of external affairs. Relevant
provisions criminalised intimidate of public/
section of the public of a country outside Australia.
• HELD: legislation valid = ‘commission of
terrorist acts’ are such a matter → national security
can be promoted by reciprocal co-operation w/
other states in combating international terrorism.
• Kirby J: terrorism was a matter of concern to the
community of nations but provision invalid since
they did not affect ‘international relations’.
HORTA V CTH
• Aus. negotiated and signed a treaty w/ Indonesia,
regulating the petroleum rich sea bed between
Australia and East Timor. P in Horta claimed that
treaty was illegal in international law and Cth
could not rely on external affairs power to legislate
to give effect to the treaty.
• “Regardless of whether the mere fact that a matter
or thing is territorially outside of Australia is of
itself sufficient to bring a matter or thing within
the phrase of ‘External affairs’ … the area of
Timor Gap and exploration for petroleum
resources within that area all fall within the
phrase.”
R (MILLER) V SECRETARY OF STATE FOR EXITING
THE EU
• BREXIT case: where UK govt. plan to exit the EU
through the executive act (Executive just notified the
EU of UK’s withdrawal from treaty)
• HELD: Executive could not do that → European
treaties have become part of UK’s domestic law:
Exec. decision to take all of EU treaty laws out of
UK’s domestic law was not valid → Exec. does not
have power to exit treaties.
 POLYHUKOVICH V THE COMMONWEALTH (THE WAR CRIMES CASE) (1991) 172 CLR 501
• In 1988, the Commonwealth legislated to make Australian citizens or permanent residents prosecutable for
‘war crimes’ that had taken place in Europe during World War II.
• Ivan Polyhukovich was accused of participating in a massacre of around 850 people from the Jewish ghetto
of Serniki in Ukraine 1942 + being personally responsible for deaths of 23 people. Under the Hawke
government, a special unit was set up to charge people who escaped to other countries to avoid war crimes →
Ivan P was charged with killing 6 people + searched under the amended War Crimes Act. He challenged the
legislation as unconstitutional.
• Mason CJ, Deane, Dawson and McHugh JJ: mere externality is sufficient.
• Deane: external affairs power is not of interest by the states → if the Commonwealth don’t get the power and
the states have no interest to exercise that power, then there would be a gap.
• Toohey J: need some connection + the mere fact that Australia was involved in WWII is sufficient.
• Gaudron J: must be some element of Australian interest or concern → the fact that Parliament legislated in
the area is sufficient to show this.

!20
Aliens Power
Subject Matter Power

Section 51:
The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order and
good government of the Commonwealth with respect
of:
(xix) naturalisation and aliens
(xxvii) immigration and emigration
HEAD OF POWER: ALIENS POWER
• The ‘aliens’ power is a power to regulate the
process by which an alien becomes an Australian
national: Re Minister for Immigration and
Multicultural Affairs; Ex parte Te (2002).
• Cth may ‘create and define the concept of
Australian citizenship’: Koroitamana v
Commonwealth (2006).
• Parliament has power to determine which categories
of persons shall be treated as aliens → its discretion
is limited by the constitutional concept of alienage:
Singh v Commonwealth (2004).
‣ Power must be within the ordinary
understanding of the word ‘alien’: Pochi v
Macphee (1982).
What is an alien?
• Alien is synonymous with ‘non-citizen’: Nolan
v Minister for Immigration (1988), position is
altered in Re Patterson; Ex parte Taylor
(2001), and reversed in Shaw v Minister for
Immigration and Multicultural Affairs to
favour Nolan.
‣ Persons born out of Australia of parents
who are not Australian citizens and
haven’t been naturalised under Australian
law; or a person who has ceased to be a
citizen by an act or process of
denaturalisation: Nolan
‣ Alien is used as a descriptive word to
describe a person’s lack of relationship
with a country: Nolan
• An alien = a person who owes obligations to a
sovereign power other than Australia: Singh v
Cth (Justices Gummow, Hayne and Heydon)
!21
Can a person born in Australia still be an
‘alien’?
• A person who is born in Australia to migrant
parents might still be considered aliens under s
51(xix): Singh v Commonwealth of Australia
SCOPE
• Aliens power was seen to be an exceptionally wide
power: Chu Kheng Lim
• Persons absorbed into the community are beyond
the reach of the immigration power, but not
beyond the aliens power: Re Minister for
Immigration and Multicultural Affairs; Ex parte
Te (2002).
Executive power
• Aliens power can be used in conjunction with, or
alternatively to, s 51(xxvii) ‘immigration power’ in
order to (1) exclude aliens from a country, (2)
prescribe the conditions under which they may enter
the country, and (3) deport them.
• Parliament has power to enact a law for the
deportation of aliens: Pochi v Macphee (1982)
• Aliens power authorised a law that conferred upon
the executive authority a power to detain aliens for
deportation purposes → this authority was an
incident to executive power: Chu Kheng Lim
• Mandatory administrative detention of asylum
seekers, pending determination of their applications
or their removal from Australia, was supported by
the aliens power: Al-Kateb v Godwin (2004)
• Intolerable conditions in detention centres do not
make detention punitive: Behrooz v Secretary,
Department of Immigration and Multicultural and
Indigenous Affairs
SINGH V COMMONWEALTH OF AUSTRALIA
• Common law principle of jus soli (birthright
citizenship) → but Citizenship Act was amended in
1986 to deny citizenship to children born in Australia
to parents who are not Australian citizens or
permanent residents. Tania Singh was born in
immigration detention and was facing removal.
• HELD: valid under ‘aliens power
CHARACTERISATION AL-KATEB V GODWIN
• Al-Kateb is stateless (no citizenship) ⎼ a Palestinian
RESPONSE PLAN
born in Kuwait (Kuwait would not give a citizenship
1. ‘Aliens power’ is a subject matter power →
to a Palestinian born in Kuwait). After 4 years of
apply sufficient connection test.
detention, Al-Kateb gave up seeing citizenship and
2. ‘Aliens power’ has a wide scope: Chu Kheng
sought detention. No country would accept him →
Lim argued that Chu Kheng Lim does not provide for
3. [Apply facts] there is sufficient connection
indefinite detention.
because the individuals in question are non-
• Majority HELD: detention of aliens is
citizens. A legislation that is about aliens can constitutional as long as legislation suggests on its
validly (whatever its terms) apply to aliens →
face a constitutional purpose (relates to executive
as long as the law does not infringe on any
powers to exclude, admit and deport aliens).
express or implied prohibitions of Constitution:
• Minority read s 196 down ⎼ Gleeson J: “s 196
Chu Kheng Lim
authorises detention only for certain stated purposes:
4. Parliament can make laws that impose burdens
whether the person should be granted a visa or to
or obligations: Chu Kheng Lim and detention
prepare a non-citizen for removal.” → neither of
of aliens are permitted: Al-Kateb v Godwin
these purposes apply to Al-Kateb because he can’t
be removed and isn’t eligible for visa.

LIMITATIONS
• Main limitation is separation of powers but
administrative detention of aliens does not
infringe Chapter III: Chu Kheng Lim
‣ “Power can be conferred on the Executive [by
legislation] without infringement of Ch III’s
exclusive vesting of the judicial power of the
Cth in the courts which it designates. The
reason why that is so is that, to that limited
extent, authority to detain in custody is
neither punitive in nature nor part of the
judicial power of Cth. When conferred upon
the Executive, it takes its character from the
executive power to exclude, admit and deport
of which it is an incident … If the detention
… cannot properly be seen as an incident of
the executive powers … [it] will be of a
punitive nature and contravene Ch III’s
insistence that the judicial power of the Cth
be vested exclusively in the courts”.
TASMANIAN DAM CASE
• Aus. ratified Convention for Protection of Natural
Heritage + legislation enacted to implement.
Legislation prohibited destruction of property
suitable for inclusion in World Heritage List.
Regulations made to prohibit construction of dam +
associated works.
• ISSUE: whether ‘external affairs’ power can be
exercised to prevent construction of dam → Cth
argued Act was authorised by s 51(xxix) as the
existence of an international treaty was sufficient to
attract power.
• HELD: regulations were invalid as it went beyond
what was reasonable + appropriate to implement
convention → there needed to be ‘reasonable
proportionality b/ween the designated purpose or
object & the means which the law embodies for
achieving or procuring it.

KOOWARTA V BJELKE-PETERSEN
• Koowarta, Aboriginal person, purchase crown-lease land (there was a law under the Bjelke-Petersen Govt. to
stop sale) → Koowarta argued that the refusal was not in accordance to Cth’s RDA: was there a source of
power to justify RDA’s legislation?
• HELD: RDA was valid under ‘external affairs’ power because Cth has signed ICCPR → they are allowed to
make laws about subjects they otherwise couldn’t (NOTE: was not valid under ‘race’ power).
• Mason, Murphy & Brennan (confirmed in Tasmanian Dams): legislation enacting treaty to domestic law is
constitutional valid as long as it deals w/ the matter as one of international concern and treaty itself is
sufficient as evidence of the international concern → existence of a treaty determined the matter as one of
international concern & made it an appropriate matter for Fed. legislative power (human rights is both
international and domestic in nature).
• Gibbs, Aiken + Wilson (minority view): a treaty can only be adopted if it is “indisputably international in
character”.

!22
 CHU KHENG LIM V MINISTER FOR IMMIGRATION, LOCAL GOVT. AND ETHNIC AFFAIRS (1992)
• Legislation mandated the detention of the Cambodian boat people for 273 days or until they either left the
country or were granted an entry permit. In s 54R, the legislation purported to direct that no court could order
the release of a designated person.
• Lim argued: only a court can authorise the punitive detention of a person. Administrative detention is a wrongful
interference in the judicial process → this legislation is a usurpation by the legislature of the judicial power
vested in the courts by s 71 of the Constitution.
• Brennan, Deane and Dawson JJ: “the legislative power … is in expressed in unqualified terms. It prima facie
encompasses the enactment of a law with respect to non-citizens generally.”
• Toohey J referred to it as a plenary power.
• McHugh J: “if a law of the Parliament can be characterised as a law with respect to aliens, it is valid whatever
its terms, provided that the law does not infringe any express or implied prohibition in the Constitution …
Parliament can make laws imposing burdens, obligations and disqualifications on aliens which could not be
imposed on members of the community who are not aliens.”
• Gaudron J promoted a confined interpretation: “A law which operates on or by reference to aliens is a valid
law with respect to aliens”.
• HELD: valid under aliens power → detention is not punitive (i.e. for the protection of the nation), citizens have
a constitutional immunity from detention not exercised by judiciary BUT the same rights don’t apply to aliens +
does not infringe Ch III of the constitution.

!23
Race Power
Subject Matter Power
Section 51(xxix):
The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order and
good government of the Commonwealth with respect
of:
(xxvi) the people of any race for, whom it is
deemed necessary to make special laws.
HEAD OF POWER
Under this power, a law will be valid if it (1) relates to
a race of people, (2) discriminates between one or more
groups and other groups, (3) the law is deemed
necessary for that group, (4) is for the benefit of the
racial group targeted.
• Aim of provision was to make it possible for Cth to
deal with any alien race and to authorise
discriminatory laws → provisions may not be
made wit good intention (e.g. allowing the
segregation of people or force them into particular
professions)
• Purpose of power is now constrain by ‘capacity to
make good laws’.
• Referendum in 1967: Australians voted to remove
words ‘of Aboriginal race’.
• Using this HoP, Cth can legislate with regard to
specific classes of people who fall within the
category of a race.
SCOPE
1. Does the law relate to a particular race or
races?
• A race is a group of people with common history/
ancestry/culture/religion/physical similarities:
Tasmanian Dams (Brennan J), or all of the people
that make up the identity of a race: Tasmanian
Dams (Deane J)
• The law must deal with a particular race or races,
power does not permit laws that is general about
race or only dealing with the subject matter of race:
Koowarta
• Law can relate to a particular subgroup of a
particular race (e.g. a particular community):
!24
• It is likely that the HCA would consider
membership of a race as based on more than simple
biology.
2. Is the law special (i.e. does the law
discriminate between one or more groups of
people from, and give different treatment to the
people of the particular race?
• A special law is special in its operation, not
necessarily its term: Tasmanian Dams (Brennan J)
• [Discuss on facts] The law must discriminate by
treating the group subjected to the law differently to
other groups.
3. Was the law deemed necessary by
Parliament?
• The legislation must be deemed necessary by
Parliament, not the courts: WA v Commonwealth
• s 51(xxvi) could be used either for the benefit or to
the detriment of members of a race: Koowarta;
Tasmanian Dams Case, but the principle object of
the power should confer benefits: Brennan J
IS THE LAW TO THE BENEFIT OF THE RACIAL GROUP
TARGETED?
• The concept of detrimental legislation has been
debated & the general conclusion is that the race
power is ‘wide enough to authorise both
advantageous and disadvantageous laws’:
Kartinyeri v Commonwealth (Gaudron J)
KARTINYERI V COMMONWEALTH
• P challenged the validity of Hindmarsh Island
Bridge Act on basis that it discriminated against
Ngarrindjeri people and not authorised under race
power.
• Gaudron J: race power has a purposive element in
that the laws had to be ‘necessary’ (i.e. appropriate
and adapted for the needs of a particular race.
• Gummow and Hayne: discriminatory laws could
be made but power does not support a law enacted
in manifest abuse of parliament’s power
• Kirby J (in dissent): power could not be used to
impose a disadvantage on originalist and non-
originalist (i.e. depends upon contemporary values
and human rights) reasons.
CHARACTERISATION
RESPONSE PLAN
1. ‘Race power’ is a subject matter
power and is to be considered
broadly: Tasmanian Dams → apply
sufficient connection test. It must be
demonstrated that the law in question
is sufficiently connected to or
incidental to the power/powers
invoked to support it in order to be
valid: Re Dingjan; Ex parte Wagner
(1995)
2. [Apply facts: what did the law intend
to do, is there a specific group of
people are they targeted?] For a law
to be valid under ‘race power’, it
must relate to a particular race:
Koowarta, it must treat the targeted
group of people differently to other
groups: Tasmanian Dams, and
Parliament must deem this law
necessary: WA v Commonwealth. A
law invoked by the race power does
not necessarily need to be for the
benefit of the targeted group of
people.
LIMITATIONS
• ‘Race power’ is subjected to the constitutional
restrictions imposed by the separation of judicial
power → e.g. Cth is prohibited from legislating
directly for Aboriginal justice mechanisms in the
States
• s 116 of the Constitution (however, unlikely to limit
HoP even if some aspects of Aboriginal customary
laws constitute a religion within the meaning of s
116.
TASMANIAN DAMS
• Tasmanian govt. wished to build a dam in an area which
was declared as a World Heritage site. Cth enacted
legislation preventing clearing and building on those sites.
TAS claimed Cth was taking powers from states and
subject matter was too broad for Cth to legislate. Cth
invoked external affairs + race powers.
• Held: s 8(1) of the legislation was enacted as a special law
for the people of Aboriginal race (by preserving
archaeological relics), so it was valid.
KOOWARTA V BJELKE-PETERSEN
• Queensland govt. was accused to be discriminatory by
blocking sale of land to an Aboriginal group under s 9 and
12 of RDA → QLD govt. argue that the race power
invalidated this legislation
• Held: RDA applied to all races (not specific to a particular
race) so race power doesn’t cover, but RDA was validated
by external affairs power.

Cases

Western • 6 judges said that even when a law confers a benefit generally, it still need to be of special
Australia v significance to a particular race in order to be within power.
Commonwealth • Native Title Act 1993 (except one provision) was supported by race power ⎼ the law
“confers a right/benefit or imposes an obligation/disadvantage especially on the people of
a particular race” (i.e. it was a benefit protective of native title).
Walker v NSW • No relationship between Aboriginal customary laws and native title rights ⎼ if govt. wants
to make discriminatory laws, it could do so as long as it is specifically to Aboriginal
people.
Kruger v • P argued that there was an implied right of equality within the Constitution: laws regarding
Commonwealth the removal of Aboriginal children were invalidated by this right ⎼ in breach of s 116.
(Stolen • Court held that substantial equality is not provided by the Constitution & s 116 is for the
Generation creation of religion not concerned w/ the practice of established religions.
Case) (1997)

!25
Judicial Power of Commonwealth
Limitation

Section 71
The judicial power of the Cth shall be vested in a
Federal Supreme Court, to be called the High Court of
Australia, and in such other federal courts as the
Parliament creates, and in such courts as it invests with
federal jurisdiction. The High Court shall consist of a
Chief Justice, and so many other Justices, not less than
two, as the Parliament prescribes.
DEFINITION OF JUDICIAL POWER
• The words ‘judicial power’ as used in s 71 of the
Constitution mean the power which every
sovereign authority must of necessity have to
decide controversies between its subjects, or
between itself and its subjects, whether the rights
relate to life, liberty or property.
• The exercise of this power does not begin until
some tribunal (which has power to give abiding and
authoritative decision → whether subject to appeal
or not) is called upon to take action: Huddert,
Parker & Co Pty Ltd v Moorehead (1909)
(Griffith CJ)
• An exercise of public authority: TCL Air
Conditioner (Zhongshan) v Judges of Federal
Court of Australia (2013)
‣ ‘A coercive governmental power, not
exercised by mutual agreement between the
parties (to a decision’: French CJ & Gaegler
J
APPROACH
• Key points
‣ Chapter III is a source of limitation on
legislative power
‣ Only courts can exercise Ch. III (judicial)
power
‣ Ch. III courts can only exercise Ch. III power:
Boilermakers
‣ However, courts can also exercise non-judicial
power, which is incidental to the exercise of
judicial power (persona designata)
• Question 1: Judicial power of Cth can only be
vested in a Ch III Court.
‣ Is the body referred to as a court?
!26
‣ Do the judges have s 72 tenure?: Waterside
Workers; Wheat Case
- IF YES → then the body can exercise
Chapter III power.
- IF NO → then the body can’t exercise
judicial power.
• Question 2: Federal Ch III court cannot be
vested with anything other than federal judicial
power.
‣ Are the powers vested in the body judicial?
- IF YES → only a Ch. III can exercise
these judicial powers.
- IF NO → a Ch. III court cannot exercise
these non-judicial powers
‣ Are the powers vested in the body incidental
to the judicial power of the Commonwealth?
- IF YES → only Ch. III courts themselves
can exercise powers incidental to Chapter
III.
CH III ⎼ THE JUDICIARY
Section 72 Judges’ appointment, tenure, and
remuneration
The Justices of the High Court and of the other
courts created by the Parliament:
(i) shall be appointed by the Governor-General
in Council;
(ii) shall not be removed except by the
Governor-General in Council, on an address
from both Houses of Parliament in the same
session, praying for such removal on the
ground of proved misbehaviour or
incapacity;
(iii) shall receive such remuneration as the
Parliament may fix; but the remuneration
shall not be diminished during their
continuance in office.
• s 71 provides that Cth judicial power shall be vested
in a Federal Supreme Court, called the High Court.
• s 72 allows for the appointment of judges by the
GG in counsel
‣ s 72(ii) provides for removal of judges by a
majority vote at a joint sitting of Parliament
for misbehaviour or incapacity.
 ‣ s 72(iii) sets a mandatory retirement age of INDICIA (INDICATORS) OF JUDICIAL POWER
judges at 70.
• s 73 provides that the High Court shall have Power • Body making the decision must
jurisdiction to hear and determine appeals from all derived have the power to make the
courts exercising federal jurisdiction and appeals from a decision by the actual law of
from the decisions of a single High Court judge. sovereign Parliament
• ss 75 & 76 provide that HCA shall have original authority: • Law, itself, is not binding and
jurisdiction (i.e. first court to hear the specified Huddart authoritative ⎼ requires exercise of
matters under s 75 ⎼ cases start and finish in HC Parker v judicial power to enforce: TLC Air
only). Moorehead Conditioner
‣ Constitutional matters
A Creation of new rights will not
‣ Cases involving fed. parliament, relationship
controversy satisfy this element: Luton v Lessels
between law and states, relationship between about • ss 75 and 76 deal with the
Cth and states exisiting jurisdiction of the federal courts in
‣ Disputes between states
legal rights respect of matters
‣ International treaties
and duties ⎼ • Courts will not actively seek out
‣ Writ of Mandamus or prohibition or injunction
‘A matter’ disputes: Alexander v Hamilton
⎼ legal remedies
• s 77 allows Parliament to define the jurisdiction of Inter Partes • Decision of the court will be
all courts (including federal courts) other than reached w/ the parties present.
HCA. Binding and • Judicial process is to resolve a
• Original jurisdiction of HCA is constitutionally authoritativ matter ⎼ need a binding &
unassailable by the Executive: Abebe v Cth e decision: authoritative effect to force.
[1999]; Plaintiff S157/2002 v Cth [2003] Huddart
‣ Executive and legislature cannot remove the Parker v
original jurisdiction of HC by any legislation Moorehead
Performed • Decision must be exercised in
Remuneration
in a judicial accordance to legal principle: R v
• Security or remuneration is essential for judicial manner Commonwealth Court of
independence (which is essential for separation of
Concilation and Arbitration
power): Austin v Cth; North Australian Aboriginal
Legal Aid v Bradley
‣ Austin: Austin was a Supreme Court judge +
Fed. parliament introduced new tax legislation PROHIBITORY RULES
causing judges to receive less superannuation
→ Austin argued unconstitutional because 1. Judicial power of Cth shall not be vested in
State judges are treated differently. bodies not designated in Ch III
• Parliament vests federal judicial power to courts.
Tenure • Language of the Constitution prevents the
• Chap III judges must have s 72 tenure (crucial for possibility of vesting vesting judicial power:
judicial power): Waterside Workers Federation of Boilermakers Case (1956)
Aus. v JW Alexander Ltd
2. Judicial power may be vested in courts in the
strict sense
• A body is regarded as a court if its main function/
functions are judicial: Alexander’s Case (1918)

3. Federal courts that exercise judicial power

must conform to s 72
• The court must be constituted as provided in s 72:
Alexander’s Case (1918)
• Requirements:
‣ Federal judges are appointed by GG.

!27
 ‣ Removal can only be done by the GG on an
address of both houses of Parliament on the
grounds of proved misbehaviour or
incapacity
‣ Remuneration of judges must be fixed and
not diminish.
• Tenure for life (until 70) → can’t appoint judges for
a finite term: Alexander’s Case (1918)
4. A court may delegate judicial power but must
not abdicate judicial power
• Relieve the Court from some of their work by
assigning non-contentious aspects of jurisdiction to
officials who are not judges.
• Delegation of judicial powers to those who are not
judges is valid upon proving that (1) delegation is
not so extensive that it can only longer be said that
judges constitute the Court, (2) delegation must not
be inconsistent w/ the obligation of the court to act
judicially and the decisions must be subject to
review or appeal by a judge
• Structure of Court must not change
• Person the power is delegated to must be an official
of the Court.
5. Judicial powers not within Ch III must not be
vested in HC or other federal courts
• Express vesting of some powers means the
exclusion of other powers: Re Judiciary Act
(power to determine validity of laws referred to by
GG was a judicial power outside Ch III, it is not
exercisable by HCA).
RE JUDICIARY AND NAVIGATION ACTS
• Judiciary and Navigation Act purported to allow the
GG to refer a question of law to courts to be
determined. The Court could ask other counsel for
assistance → was this valid?
• HELD: a matter has to be within the purposes
stipulated in ss 75 and 76 (a subject matter to be
determined by legal proceeding: no matter unless
there is some immediate right, duty or liability to be
established by Court → matters for the purposes of
Constitution does not extend to advisory opinions.
6. Federal courts cannot exercise State judicial
power except in cases of ‘accrued jurisdiction’
• Federal courts can exercise judicial power in cases
in which both Fed. & State jurisdiction arise in the
same controversy.
!28
7. Parliament must not vest non-judicial power in
Ch III courts
• Non-judicial power is expressly vested in other
bodies, and so they can’t be vested in Ch III courts
(this works vice versa): Boilermakers
• Exceptions
‣ Non-judicial power may be given to State
courts provided that it is not incompatible w/
the exercise of federal judicial power: Kable,
Fardon, Baker
‣ Non-judicial power can’t be given to HCA or
federal courts unless it’s incidental to exercise
of judicial power: Bond, Thornton, Davison
8. State parliaments must not vest in State courts
non-judicial powers that are incompatible with
their exercise of federal judicial power
• Separation of powers rule applies to state courts:
Kable
• State parliaments can give courts non-judicial
powers as long as they don’t threaten the character
of the courts as bodies w/ primary function being
judicial + must not undermine courts’ capacity by
diminishing public confidence: Alexander’s case
9. Parliament must not remove from courts the
jurisdiction that the Constitution has directly
vested in them
• Right to appeal to HCA cannot be removed as it is
enshrined in s 73 of Constitution: Cockle v Isaksen
• Original jurisdiction cannot be removed: Lim v
Minister of Immigration
10. Parliament must not direct the way courts
exercise judicial power
• Parliament cannot direct the manner and outcome of
the exercise of judicial power (i.e. cannot try to
change or predetermine outcomes): Kable
• Legislation should not impose a judgement on the
court or intervene in judicial proceedings: Colder v
Bull
PERMISSIVE RULES
1. ‘Persona designata rule’
• A judge can exercise non-judicial power in personal
capacity: Hilton v Wells
• There are 2 conditions: Grollo v Palmer
‣ Compatibility
‣ Consent
2. Judicial power can be vested in courts martial 1. Does the Cth 2. Does the Cth 3. Does the
for cases of military offences Act create a Act creates a State Act
• Power outside Ch III may be given to a military court? tribunal that is create a
tribunal: White v Director of Military Prosecutions If yes, is the not a Chapter court?
• A service offence may also be a ‘civil’ offence court constituted III Court If yes, does it
triable under a Ch III court in accordance (tenure, matter if it is
• Offence committed by a military serviceman is with Chapter III remuneration)? exercising
triable by a court martial ⎼ service status theory (tenure, If yes, is it non-judicial
• Offence connected to the purpose of maintaining remuneration)? exercising judicial power?
military discipline is triable by court martial ⎼ power of the Cth? No, except
service connection theory: Alpert If yes, invalid when it is
If yes, is the
court exercising If no, are the exercising
3. Parliament may exercise judicial power in the judicial members of the federal
relation to its own powers, privileges and power of the tribunal Ch III jurisdiction
immunities Cth? judges? (i.e. judicial
• Contempt of parliament: parliament decides what is If yes, valid If yes, then ask power of the
contempt (e.g. false evidence to a committee of if they are Cth) → in
If not
Parliament, stopping a member from getting into exercising acting in their that case, it
parliament). personal may not act
judicial power,
• s 49 of Parliamentary Privileges Act allows capacity or in a way that
is the court
parliament to exercise judicial power in relation to judicial
exercising non- is repugnant
these acts. capacity →
judicial power? to the
personal judicial
→ if yes, then
4. Superior courts may make rules of procedure capacity is
invalid. power of
• Courts have power to regulate their own okay. Cth: Kable
procedures: R v Davison
‣ Making procedural rules is “an extreme
example of a function that may given to
courts as an incident of judicial power/ dealt Administrative body v judicial power
w/ directly as an exercise of legislative • Non-judicial body cannot exercise judicial power of
power’. Ch III court, and vice versa: Boilermakers case
‣ Arbitration court was an executive body,
vested merely with the power of arbitration
SEPARATION OF JUDICIAL POWER and conciliation (this is not Ch III judicial
power)
• There is a strict buffer between the judiciary and - Separation of powers means legislature
other arms of government: Wheat Case cannot vest executive bodies &
• No separation of powers at State level: BLF v tribunals w/ judicial power (although
Minister of Industrial Relations legislature may create courts):
Boilermakers’ Case (Dixon CJ,
Principle McTiernan, Fullagar, Kitto JJ)
• Separation of powers is reflected in the chapter ‣ Arbitral power is derived from a voluntary
division of the Australian Constitution agreement by the parties who submitted their
• Chapter III courts must comply w/ Chapter III dispute to private arbitration → judicial
requirements, and only Ch III courts can exercise power is coercive and public: TLC Air
Ch III powers: Wheat Case Conditioner (Zhongshan) Co Ltd v Judges
of the Federal Court of Australia (2013)
‣ All courts are subjected to supervisory
jurisdiction of Federal Courts: Kirk v
Industrial Relations Commission of New
South Wales (case went to an “industrial
court”, designed to be non-judicial → Court
found it unconstitutional if the court was not

!29
 subject to supervisory jurisdiction of Fed
courts)
• Vesting functions of a court in tribunals may
undermine a person’s right to a fair hearing by a
properly constituted judicial body: Brandy v
Human Rights & Equal Opportunity Commission
BRANDY V HUMAN RIGHTS & EQUAL
OPPORTUNITY COMMISSION
• HREOC was making an enforceable ruling (the
order for damages was enforceable once it was
registered w/ a Federal Court, in absence of any
appeal against the order) → THIS IS PUNITIVE
(exclusive role of Ch III courts).
• A law enabling administrative commission to
exercise Ch III court’s function is invalid
Exceptions
• Tribunal schemes where parties elect whether to be
bound by the decision of a tribunal (i.e. so that they
would be subject to something like arbitral power
set out in Boilermakers): Attorney-General (Cth) v
Breckler
• Where a tribunal merely exercises ‘administrative’
power over statutory criteria (as in Child Support
Registrar Case), as opposed to the determination of
substantive rights and liberties: Luton v Lessels
• Where a tribunal regulates an activity rather than
determining its legality: Attorney-General (Cth) v
Alinta Limited
• Territories courts (because not established under Ch
III) but under s 122 ‘territories power’
• Military tribunals are executive bodies allowed to
exercise judicial power mainly because of no
alternative: Haskins v the Commonwealth
Persona designata: exception to Boilermakers
• Federal judges may occupy non-judicial posts if
they do so as ‘designated persons’, not as members
of their court:
‣ Must look at nature of power conferred → (1)
if it is judicial, then judge is exercising
judicial capacity; (2) if it is administrative,
judge is acting in personal capacity.
‣ Another test: whether in undertaking their
duties, being judge is part of those duties or
whether it is a qualification of them.
• Two conditions are imposed: Grollo v Palmer
‣ Compatibility → the administrative function
the judge is given to do must not undermine
his/her exercise of judicial power
‣ Consent → the judge must give consent
!30
Incompatibility doctrine
• Legitimate exercise of persona designata requires:
consent of the individual judge must not be
incompatible with judicial function and
responsibilities: Grollo v Palmer
• Appointments to positions of persona designata
rule are subjected to the incompatible doctrine.
• Incompatibility doctrine says that any power is
incompatible with the exercise of judicial power is
void and unconstitutional: Kable
• Judges cannot be appointed persona designata in
circumstances where it would interfere with their
power as judges: Wilson v Minister for Aboriginal
and Torres Straight Islander Affairs
KABLE V DPP
• Legislature attempted to predetermine the case, court
could only make the order & had no discretion to make
any changes.
• Toohey J: law was invalid because State Supreme
Courts exercise judicial power of Cth → those courts
can’t be required to perform tasks incompatible w/ the
judicial function under s 77(iii)
WILSON V MINISTER FOR ABORIGINAL AND TORRES
STRAIGHT ISLANDER AFFAIRS
• Appointment of a Federal Court judge as a reporter
under the Aboriginal and Torres Strait Islander Heritage
Protection Act was incompatible w/ the Federal Courts’
responsibility to exercise the judicial power of Cth.
Judge would actually have to report to a Minister in
exercising non-judicial functions, thereby compromising
independence → politicalising the judiciary.
• Kirby J (dissenting): if a judge is appointed to perform
the actions of the executive, the job is too similar to
judiciary functions rather than appointing a judge to
perform the functions of the police.
Casualised Judiciary
• s 72 defines Federal judges by the terms of their
appointment (appointed by the GG-in-counsel +
retirement age of 70
• Casual appointment of a judicial officer does not
interfere with the ‘institutional integrity’ of a Ch III
court: Forge v ASIC
Power to determine criminal guilt is exclusive to
Ch III courts
• Cth cannot exclude the judicial power of Cth,
especially in criminal matters: Chu Kheng Lim v
Minister for Immigration Local Govt. (law which
restricts the court’s power to order the release from
 custody of a person whom the Executive has
imprisonment is invalid)
• Judicial power is infringed by legislation which
removes power of Ch III Court to make a
determination of criminal guilt upon incarceration:
Polyhukovich
• Parliament can change statutory rights at issue in
pending litigation: Polyhukovich
Separation of powers & States
• No separation of judicial power under Ch III applies
within States: Kable
• State courts exercising Cth’s judicial power may not
be given functions incompatible with the exercise of
that power.
DETENTIONS
Protective
• Ch III has no application in the Territories ⎼
forceful removal is non-punitive and about the
welfare and protection of Indigenous people:
Kruger v Cth
Immigration
• Immigration detention is not an infringement on
separation of powers → judicial power does not
apply to aliens → s 51(xix) permits legislature to
detain ‘non-citizens’ for the purposes of expulsion
or deportment: Chu Kheng Lim
• This power over aliens is restricted to “what is
reasonably necessary for the purposes of
deportation or application for an entry permit to be
made or considered: Plaintiff M47/2012 v Director-
General of Security
• Non-citizens can be detained for infinite time: Al-
Kateb
Preventive
FARDON
• Law provided a statutory scheme to determine
whether the person should be detained for longer
term by using psychiatric report. Court found it
was acceptable, unlike in Kable.
• Control orders are judicial in character: Fardon
• Distinctions from Kable
‣ Legislation did not single-out offenders (even
though Minister had singled-out the offenders
in the 2nd reading speech): Fardon
!31
‣ Some judicial discretion was retained in
allowing courts to change the outcome (criteria
was impossible for an applicant to meet in
Fardon)
IMPARTIALITY, INDEPENDENCE & INTEGRITY
• A law that seeks to remove the ‘institutional
integrity’ or ‘decisional independence’ from the
Courts is invalid: Gypsy Jokers Motorcycle Club
Inc v Commissioner of Police (WA)
• Practical removal of judicial review (even if not
expressly stated) interferes w/ the decisional
independence of a Ch III court: International
Finance Trust Company Ltd v NSW Crime
Commission
• E.g. increased executive power over criminal
process, secrecy & minimal judicial oversight
SA V TOTANI
There are 3 overlapping assumptions about Ch III:
(i) Universal application through the Cth ⎼ rule of
law
(ii) State courts have federal jurisdiction
(iii) Defining characteristics: independence,
impartiality, fairness and adherence to open
court principle
Confirmed in Wainohu v NSW
REMEDIES
When a law is found to be unconstitutional, P will
usually seek:
1. Declaration of invalidity: James v Cth; Croome v
Tas
2. Reading down and severance: Victoria v Cth;
Strickland v Rocla Concrete Pipes Ltd
ACCESS TO CONSTITUTIONAL JUSTICE
Matters
• A matter is a subject matter to be determined by
legal proceeding: Re Judiciary and Navigation
Acts (1921), Re Wakim; Ex Parte McNally (1999)
Standing
• Court determined whether application has sufficient
standing: Croome v Tas
Intergovernmental Immunities
Implied Common Law Limitation
POSITION BEFORE ENGINEERS CASE
Implied immunity of instrumentalities doctrine is
implied by HCA, and stated ‘neither the
Commonwealth or the States can legislate so as to
control the other’.
Implied immunity of instrumentalities
There was an implied intergovernmental immunity
against each jurisdiction’s laws (implied from
federalism) → both states and Cth were immune to
each other’s laws [used to protect states and their
agencies from Cth interference]: D’Emder v Pedder
(1904); Railways Servants Case (1906)
D’EMDER V PEDDER
• Cth officers did not have to pay state tax ⎼
Cth and state are not allowed to tax the other.
Reserved state powers
Commonwealth legislations are to be ‘read down’ to
prevent trespass on areas the Constitution reserves for
the states: R v Barger (1908)
R V BARGER
• As the subject matter lie within State’s legislative
power, Cth can’t have that power.
• s 51 powers are read down to preserve state power
even though subject matter falls within a HoP.
A M A L G A M AT E D S O C I E T Y O F
ENGINEERS V ADELAIDE STEAMSHIP
(1920)
• Question: is the State bound by Cth.’s decision?
Whether Cth’s industrial laws applied to State
government instrumentalities?
• HCA rejected doctrines of implied immunity and
state reserved powers.
‣ Any constitutional implications must have its
source either in the text/structure of the
Constitution itself.
‣ Words of the Constitution are to be read in
their natural & ordinary sense (e.g. where
there are express restrictions, can’t imply).
!32
• The effect of the Engineers’ Case was the
recognition of the limits of the residual state powers
and expansion of Cth’s powers under 51 without
any constraints to protect the State powers.
• Doctrine of reserved state powers is rejected, unless
reservation is explicitly stated: Fairfax
• Doctrine of immunity of instrumentalities also
rejected, because Cth Parliament can bind the states:
Boilermakers
• Exceptions (per Knox CJ, Isaacs, Rich and Starke JJ
‣ State prerogatives cannot be impacted
adversely by a Cth law
‣ Taxation = no state immunity from Cth tax
‣ Discriminatory laws = Cth cannot
discriminate against a State/s
LAW LIMITATIONS
Cth and the States could make laws that bind each
other: Engineers’ case (i.e. a law may affect State
govt.’s rights and functions if it falls within an
enumerated HoP & doesn’t impose a burden on States)
but there are exceptions.
State prerogatives
• State prerogatives are special powers of executive
governments or Crowns.
• If Cth attempt to impart state prerogatives, law
would be found invalid: FCT v Official Liquidator
for EO Farley (1940) BUT where Constitution
makes an affirmative grant of power (s 51), Cth
has the power to regulate subject matters that
naturally affect prerogative power: FCT v Official
Liquidator for EO Farley
Taxation
• s 51(xvii) ‘Bankruptcy’ + s 51(ii) ‘Taxation’
• Cth law must not discriminate between the States or
parts of the States.
• No State immunity from Cth tax except where taxes
are directed specifically at states: Victoria v Cth
MELBOURNE CORPORATION PRINCIPLE
Cth cannot enact laws that discriminate against the
States by placing a special disability on them (i.e. Cth
legislation can’t operate to ‘destroy or curtail the • When Cth law aims at determining number of
continued existence of the States or their capacity to employees, terms of appointments, terms &
function as governments’): QEC v Cth conditions of those employed at higher levels:
Victoria v Cth
I. Cth must not discriminate special burdens or
disabilities on States
REFORMULATED MELB. CORP.
• Cth legislation can’t single a State out as the subject
of legislation: QEC v Cth • Melb. Corp. principle no longer has two limbs:
• Taking away a state’s benefit which other states Austin v Cth
don’t have is not discriminatory: QEC v Cth • The test: was there a significantly sufficient
(Mason J) impairment of the exercise by the State of its
• Principle protects the legislature + government + freedom to select the manner and method for
agencies that represent State govt. and agencies discharge of its constitutional functions?
created by statute and controlled by State govt:
QEC v Cth AUSTIN V CTH
• Superannuation taxed on judiciary based on
MELBOURNE certain salary amount.
QEC V CTH
CORPORATION V CTH • Held: rejected the two-limb test from the Melb.
• Cth specifically
• MC challenged Corp. doctrine and apply the ‘special burden’ +
targeted at an
constitutional validity of ‘curtailment of capacity of States to function as
industrial dispute
s 48 of Banking Act 1945 govt.’ are to be apply to the form & substance &
between Electrical
[it didn’t allow banks to actual operation of Cth law.
Trades Union +
provide services to states
other electricity
and their authorities w/
authorities →
out consent of Cth’s
provided for an
Treasurer → MC argued STATE LAW + CTH GOVT.
expedited settlement
that law was
procedure by • A State law is valid in its effect on the Cth, if it is
discriminatory and not discriminatory nor impacting prerogatives: If a
banning strikes &
aimed at States & their law is not discriminatory: reciprocal rule in
curtailing union
authorities. Engineers Case
rights.
• Held: Cth can’t impose a • States can’t restrict the capacity of Cth to exercise
• Held: reaffirmed
law that threaten the its executive power as it is a power lying
Melbourne
continued independent completely outside of State power: Uther v
Corporation
existence of the States. Federal Commissioner of Taxation
• Legislative powers of State can’t extend to cover a
II. Cth must not operate to ‘destroy or curtail the prerogative of Cth: Cth v Cigamatic
continued existence of the States or their • States can’t affect federal fiscal right/legal rights
of Cth in relation to its subjects: Cth v Cigamatic
capacity to function as governments.
• A state law will validly affect the Cth where:
• Powers of Cth do not extend to interfering w/ the
‣ General state laws affecting Cth in
constitutional and electoral processes of the States:
administrative acts: Pirrie
ACTV (McHugh)
‣ s 80 of Judiciary Act
• Preventing political advertising does not curtail the
‣ Laws that affect rather than bind Cth as
functions of States: ACTV (Brennan in dissent)
citizens: Bogle v Cth
• If a law is confined to min. wages + working
• s 46 of Judiciary Act 1903: in any civil matter to
conditions, it does not impair the states’ function:
which Cth or State is a party, the rights of the
Re Australian Education Union
parties will be the same → parties will be treated as
• Law is invalid if they unduly interfere w/ the
private litigants.
performance of what are clearly State functions:
Melbourne Corp. v Cth (Latham CJ)
• Law may curtail the functions of a state if it binds
senior public servants (determination of wages +
conditions may be curtailing if it constrains any
government): Re Australian Education Union o


!33
Executive Spending Power
Executive power


• Executive power of the Cth includes a capacity,

without statutory authority, to undertake functions
common to legal persons (i.e. entering into
contracts and spending money).
• Assumption: if the Cth possess a legislative power
with respect to ‘quarantine’ s 51(ix), the federal
executive could enter into contracts and spend
money on that subject.
• Cth’s executive spending power has to be
coextensive with the potential scope of legislative
power: Williams v Cth (School Chaplains Case)
• Cth’s executive power can only be supported by
legislation actually enacted by Parliament: Williams
v Cth (School Chaplains Case)
• Williams v Cth (School Chaplains Case):
‣ William was the father of four children
enrolled at the Darling Heights State School
where they had a National School Chaplaincy
Program (created by Cth to provide financial
support for chaplaincy services in school).
‣ The program’s funding was provided by a
Minister who went to ask a church, across the
road, to hold the program in school →
Minister didn’t create a bill of supply, so bill
didn’t get chance to pass both houses of
parliament to be scrutinised (as in the normal
process).
‣ CTH’s submissions: executive power to spend
money was essentially unlimited + the
Funding agreement was validated by the mere
existence of legislative capacity on the subject,
for executive power is “limited to the object
matters of the express grants of legislative
power in ss 51, 52 and 122 of the
Constitution”.
‣ This was misuse executive power so HCA
struck down the Funding Agreement → no
head of power = no legitimate executive action
(there could only be when Parliament provides
the executive with this power under Statute).

!34
Implied Freedom of Political Communication
Limitation

HCA has recognised that s 7, 24 and 128 creates a
system of representative government, which gives rise
to an implied freedom to communicate on matters of
political and governmental concern: Nationwide News;
ACTV; Theophanous; Stephens
“Minorities are thus entitled to freedom in the peaceful
expression of dissident views”: Davis v Cth (Brennan
J)
NO RIGHT TO FREE SPEECH
• In ACTV, Brennan J said “the freedom cannot be
understood as a personal right, the scope of which
must be ascertained in order to discover what is left
for legislative regulation”.
• Freedom is best understood as a constitutional
restriction on legislative power and the question is
more generally as to the effect that the impugned
legislation has upon the freedom.
• Equality of opportunity to participate in the exercise
of political sovereignty is an aspect of the
representative democracy guaranteed by the
Constitution: Nationwide News
LANGE V ABC
• In 1991, P (a member of the NZ Parliament and
former PM), brought defamation proceedings
agains the ABC for alleging that he had been
defamed during the Four Corners programme. AB
relied on the implied freedom to discuss
government and political matters as a defence.
• HCA unanimously held in favour of P
‣ Freedom is not ‘confined to an election period’
& the freedom operates as a restriction on
legislative power BUT it is not absolute &
will not invalidate a law enacted to satisfy
some other legitimate end if the law satisfies:
1. The object of the law is compatible with
the maintenance of a constitutionally
prescribed system of representative and
responsible government.
2. Law is reasonably appropriate and
adapted to achieving that legitimate
object or end.
!35
How to know if this implied freedom has been
breached?
1. Does the law effectively burden freedom of
communication about government or political
matters either in its terms, operation or effect?
2. If the law effectively burdens that freedom, is the
law reasonable appropriate and adapted to serve a
legitimate end … compatible with the maintenance
of the constitutionally prescribed system of
representative and responsible government?
If answer to (1) is YES and (2) is NO → law is invalid.
FREEDOM OF POLITICAL COMMUNICATION
• Freedom of communication applies to invalidate
any law (State, Cth, common) which limits freedom
of discussion of Cth political affairs: Theophaneous
• Implied freedom is based on principles of
representative democracy → may give rise to any
implications ‘necessary’ to sustain a representative
government: Theophaneous
• State constitutions embody representative govt., so
freedom exists there → freedom extends to cover
discussion of conduct of members of state
legislature : Stephens
• Defence of implied freedom was available against
claims of defamation: Stephens
• Materials, irrespective of political motivations,
which facilitate criminal activity was a reasonable
limit on the freedom: Brown
• Does not cover hate speech: Aus. Capital Television
v Cth
CASES APPLYING ‘LANGE' TEST
Levy v L, an animal rights activist, protested
Victoria about the duck-shooting season in an
restricted area (he didn’t have a
license to enter the area). L was
charged w/ summary offences.
HELD: the law did infringe on the
implied freedom but the law was
proportionate to the purpose of
public safety so L lost.
 Coleman v C was protesting in Townsville, and MCCLOY V NSW (2015): NEW TEST
Power P arrested C for using insulting 1. Does the law burden the freedom of
words in a public place. C was found communication about government and politics?
guilty on all charges and argued that (i) If NO: then the law does not exceed the implied
the legislation was invalid. limitation and the enquiry as to validity ends.
HELD: upheld validity of the law (ii) If YES: go to step 2.
but overturned the conviction →
insulting words mean extreme 2. Is its purpose legitimate and compatible with
language that provoke hate and representative government?
anger. (i) Identify the purpose of the law and means
adopted to achieve that purpose.
Theophanous P sued publisher & Bruce Ruxton for
(ii) Ask whether the purpose and means are
v Herald & demotion arising out of letter written
compatible with the constitutionally prescribed
Weekly Times by Ruxton. Publisher claimed that
system of representative government (i.e. do they
the words were published pursuant
adversely impinge on that system): Lange;
Nationwide Nationwide was prosecuted for Coleman
News v Wills bringing a member of the Industrial a) If NO, then the law is invalid.
Commission into disrepute under s b) If YES, go to question 3.
299 of Industrial Relations Act
HELD: court struck down legislation 3. Is it reasonably appropriate and adapted to
making it an offence to use words advance a legitimate object (proportionality)?
calculated to bring a member of the Proportionality test determines whether the restriction
Australian Industrial Relations which the provision imposes on the freedom is
Commission into disrepute. justified: McCloy v NSW
Three stages of proportionality test to answer the
Stephens v Involved discussions of state
question: McCloy
West political matters. Majority found
Australian (i) Suitable ⎼ whether the law/provision has a
implied freedom
Newspaper rational connection to the purported purpose (i.e.
is the law actually aimed to the stated purpose?)
Brown v Publication in a student paper of
Classification (ii) Necessary ⎼ whether there is no obvious and
instructions for shoplifting &
Review compelling alternative, reasonably practicable
publication was refused
Board means of achieving the same purpose which has
classification and was suppressed →
a less restrictive effect on the freedom.
argued that this was an infringement
on freedom. (iii) Adequate in its balance ⎼ to make a value
judgement, ask whether the law is attempting to
McCloy v McCloy had made political achieving the purpose is important enough to
NSW donations to candidate for 2011
outweigh the extent of the restriction on the
election in excess of caps on
freedom.
campaign donations based on Act: he
challenged the cap & ban on
property developers to make any
donations.
HELD: Court dismissed McCloy’s
challenge.
Aus. Capital Laws sought to regulate how
Television v political advertising are delivered
Cth during election period, including
prohibiting paid advertisements +
mandating free ad time for each
party.

!36
Acquisition on Just Terms
Limitation
The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order and
good government of the Commonwealth with
respect of:
(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
s 51(xxxi) is a power to acquire property subjected to
two conditions:
1. Acquisition be for a purpose in respect of which the
Parliament has power to make laws (this power can
only work in conjunction with other legislative
powers: Mutual Pools and Staff Pty Ltd v
Commonwealth (1994)) → derived from the content
of the power.
2. Acquisition be on “just terms”: AG (Cth) v Schmidt
(1961)
• No circumstances will a Cth law provide for the
acquisition of property except on just terms:
Trade Practices Commission v Tooth (1979)
Express constitutional source of power to acquire
property. Not just a freedom or a right.
E.g.: Cth can use defence power to acquire property for
national security but must pay ‘just term’ for the
property.
INTERPRETATION
Power and continence guarantee
s 51(xxxi) is a power and a constitutional guarantee of
just compensation for property rights continent on its
exercise: Bank of NSW v Commonwealth (1948)
• Requirement of just terms operates at any time Cth
makes compulsory acquisition of property: AG (Cth)
v Schmidt (1961)
States
• If state land is otherwise lawfully acquired by Cth
under s 51(xxxi), land is unburdened by any state
prerogative rights (e.g. mineral royalties):
Commonwealth v NSW (1923)
!37
• s 51(xxxi) does not stop States from acquiring
property on compulsory basis: Pye v Renshaw (1951)
• No ‘deeply rooted right’ to receive just compensation
for property acquired under state legislation: Durham
Holdings Pty Ltd v NSW (2001)
‣ A federal grant, supported by s 96 (for purpose
of enabling the state to acquire property), would
be subjected to s 51(xxxi) requirement of just
terms: Pye v Renshaw (1951)
Territories
• Cth can use s 122 to acquire property in the
Territories, s 51(xxxi) does not operate here: Teori
Tau
• If Cth uses s 122 to acquire property, it must pay just
terms: Wurridjal v Commonwealth
STEPS
1. Is there another head of power to support the act?
2. Is there any property being taken?
3. Is there an acquisition?
4. Has the acquisition been on just terms?
WHAT IS PROPERTY?
• HC has given a broad construction to the word
‘property’, does not refer to a thing but a description
of legal relationship with a thing. It refers to a degree
of power that is recognised by law as power
permissibly exercised over said thing: Yanner v
Eaton
• Property refers to “any interest in any property”, was
not limited: Minister of State for the Army v
Dalziel , and include full title and ownership,
possession, real and personal property (rents, services,
rights of way, use of land), tangible or intangible
property: Bank of NSW v Commonwealth (1948).
• Extends to anomalous interests, include the
assumption and indefinite continuance of exclusive
possession + control for the purposes of Cth of any
subject of property: Bank of NSW v Commonwealth
(1948)
• Rights created by statutes can be property under s
51(xxxi): Wurridjal v Commonwealth
• Causes of actions (right to sue for compensation
under tort) is a property right under s 51(xxxi):
Georgiadis v Australian and Overseas
Telecommunications Corp 91994)
• No compulsory acquisition over property intended for
collective use: Telstra Corporation Limited v
Commonwealth
Minister of • Dalziel was a weekly tenant of
State for the vacant land in Sydney & used
Army v Dalziel land as a commercial carpark.
s 60H of the National Security
(General) Regulations)
authorised Cth to enter into
exclusive possession of
privately owned land for an
indefinite period ⎼ Minister
was authorised to determine
compensation and it was
directed that ‘loss of
occupation/profits’ shall not
be taken into account.
HELD: element of property was
satisfied, because property refers
to ‘any interest in any prop
Bank of NSW v Majority held that it was
Commonwealth common knowledge that a swab
left in a patient’s stomach after
abdominal surgery would not
have been there but for the
surgeon’s negligence.
ACQUISITION
• An acquisition is not the same as taking → taking
involves deprivation of property (from perspective of
its owner), while acquisition involves receipt for
something (seen from perspective of the acquirer, i.e.
give and take): JT International SA v
Commonwealth (2002)
• What does it include?
‣ Taking of title to property
‣ Taking of possession to property: Minister of
State for the Army v Dalziel
‣ Taking of the reality of ownership: Bank of
NSW v Commonwealth (1948)
• Not necessary to permanently deprived, a temporary
acquisition is also enough: Minister of State for the
Army v Dalziel (i.e. Cth wasn’t taking away rights to
land but was prevented Dalziel from using it)
• A partial interest is also sufficient to prove
acquisition: Minister of State for the Army v Dalziel
!38
• Acquisition includes taking of indefinite continued
exclusive possession/control and giving that to Cth,
Cth does not have to seize the property: Bank of
NSW v Commonwealth
• There could be no acquisition of a property that is
always subjected to variation: Attorney General for
the NT v Chaffey
• Extinguishment, modification or deprivation of rights
by itself does not constitute acquisition of property →
has to prove some identifiable benefit or advantage
from ownership/use has been obtained: Newcrest
Mining (WA) v Commonwealth (1997)
JUST TERMS
• Does the laws amount to a true attempt to provide fair
and just standards of compensating or rehabilitating
the individual as an owner of property?
• Just terms connote fairness (terms must be just in the
circumstance), do not necessarily equate to ‘market
value’: Grace Bros v Cth (1946), but that’s a good
starting point: Nelungaloo.
• What is ‘fair and just’ is between the Community and
the owner of the thing taken: Nelungaloo Pty Ltd v
Cth
• It is acceptable for a legislation to set up a regime to
determine fair compensation.
• Legislation may contain a ‘savings provision’ to state
that Cth does not believe there is an acquisition of
property BUT will compensate if there is is one (to
save the legislation from invalidation).
• All circumstances are taken into account: Cth v Tas
• Property’s special nature is considered.
Smith v ANL (2000)
Facts • Smith was employed by ANL.
• An implied term of his contract of
employment was the ANL would
provide Smith with a safe
workplace & ANL would not
require him to undertake work
which carried an unreasonable risk
of injury.
• He was injured at work in Dec
1988 and injury gave rise to
causes of action in contract and
tort. Smith proceeded an action on
9 Nov 1994.
• 24.06.1993: Seafarers
Rehabilitation and Compensation
Act + Transitional Act came into
force and barred Smith's action.
 Is there Acts restricted Smith’s common law
property? rights (this is property)
• “like any chose in action
recognised at law or in equity,
were classified as “property” for
the operation of s 51(xxxi) of the
Constitution”: at [20] (Gaudron
and Gummow JJ).
• “a right of action for damages for
personal injury … is ‘property’
within the meaning of s 51(xxxi)”;
[80] (Kirby J): “…choses in action
are undoubtedly a form of property
known to the law”; [195] (Callinan
J).
Acquisition Statutory intervention had taken
of Smith’s right to bring an action +
Property? ANL received benefits of not having
to pay possible damages for Smith’s
claims, if successful.
Are there 6 months window might be
just terms? prejudiced against other employees.
• The period of grace specified in s
13 was too short and its operation
from one employee to the next too
capricious to meet the
constitutional requirement of just
terms” (Gaudron and Gummow JJ)
Attorney-General for the NT v Chaffey
Facts • Chaffey, a worker, was employed
by Santos and was injured on
10.09.2003 → Santos accepted
liability.
• Chaffey was entitled under the
Work Health Act 1986 (NT) to
“such compensation as
prescribed” for his injury.
• A component of the prescribed
compensation was calculated by
reference to the “normal weekly
earnings” of a worker and that
expression was defined in s 49(1)
by reference to the “remuneration”
of the worker. [there was a
reduction of the content of his
right to compensation]
Is there Chaffey’s statutory right to the fixed
property? compensation, as argued
!39
Acquisition There was a taking of Chaffey’s right
of to full compensation because what he
Property? is entitled to is reduced
BUT:
• The method for quantifying the
amount of compensation payable to
a worker by an employer had not
been “fixed in permanent form at
the date of injury to Mr Chaffey
and was always subject to
variation”
• There could be no acquisition
because Chaffey’s rights was
always subjected to change
(statutory right was not stable,
Parliament was doing what they
were always going to do
Are there • No need to discuss.
just terms?
Telstra Corporation Limited v Commonwealth
(2008)
Facts • The Postmaster-General
transferred the assets constituting
the PSTN to the Australian
Telecommunications Commission
which was established by the
Telecommunications Act 1975
(Cth)
• Telstra was the eventual successor
to the Commission. Section 11 of
the Australian and Overseas
Telecommunications Corporation
Act 1991 (Cth) relevantly vested
the assets of the PSTN in Telstra
Is there Telstra’s statutory right to exclusive
property? ownership of PSTN is property
Acquisition Telstra argued that it has exclusive
of possession of PSTN, and no other
Property? carriers can access it. BUT:
• The statute always provided other
carriers access to the network.
• Telstra thought it had something it
never did so there was no
acquitsition.
Are there • No need to discuss.
just terms?
LIMITATIONS

Incongruity
Acquisition of property on just term must be of a kind
that permits just terms otherwise it falls outside the
scope → can’t apply to a law imposing penalties.
• Example: paying a fine for speeding → there is taking
and receiving (so acquisition is satisfied), however, it
doesn’t permit just terms because it is incongruent to
the intention to deter people from speeding.

Attorney-General for the NT v Emmerson

• Court declared Emmerson a drug-trafficker under

s 36A of the Misuse of Drugs Act (NT)
• All real and personal property he owned or
effectively controlled was forfeited to the
Northern Territory under s 94 of the Criminal
Property Forfeiture Act (NT) but a vast majority
of his assets were acquired via legitimate means.
HELD: The impugned provisions of the Forfeiture
Act did not amount to an acquisition of property
other than on just terms because the forfeiture
effected by the Act was ‘imposed as punishment for
crime’ ([75]), and therefore, consistent with prior
authority, was an exaction of a kind in respect of
which just terms compensation was an inconsistent
or incongruous notion

• Laws with respect to forfeiture in the courses of:

‣ Property of enemy aliens: Attorney-General for
Cth v Schmidt (No 1)
‣ Incidental consequence of Parliament’s exercise
of its power to determine superannuation
benefit w/ respect to criminals: Mutual Pools
and Staff v Commonwealth
‣ Enforcement of regulatory regimes: Attorney-
General for the NT v Emmerson
‣ Penalties of crimes: Re Director Public
Prosecution; Ex parte Lawler
• Enforcement of debt → Cth can seize property as
collateral if there is a statutory lien when someones
owes a debt to Cth: Airservices Australia v Canadian
Airlines (1999)
• If legislation amounted to regulation of the activities
of the corporation rather than a taking of its property:
Trade Practices Commission v Tooth (1979)
If no just terms = acquisition under legislation is
invalid.

!40
s 80: Trial by Jury (Express Right)
Limitation
Section 80 Trial by Jury
The trial on indictment of any offence against any
law of the Commonwealth shall be by jury, and
every trial shall be in the State where the offence
was committed, and if the offence was not
committed within any State the trial shall be held
at such place or places as the Parliament
prescribes.
INTERPRETATION
s 80 applies if there is a trial on indictment but leaves it
to the parliament to determine whether any particular
offence shall be tried on indictment or summarily:
Kingswell v the Queen (Gibbs CJ, Wilson and
Dawson JJ)
When are proceedings on indictment?
• Proceedings on indictment involve the norm/al
setting out of charges against the accused on oath by
a representative of the Queen before a jury (as
opposed to summary proceedings (as opposed to
summary proceedings which appear before a
magistrate): R v Archdall and Roskruge; Ex parte
Carrigan and Browne
• Cth retains legislative discretion to determine
whether Federal offences are to be tried summarily
or on indictment ⎼ ‘words of s 80 were deliberately
and carefully chosen to give the Parliament the
capacity to avoid trial by jury when it wished to do
so’: Cheung v the Queen
Other features
• Literal approach to interpretation of s 80 is endorsed:
R v Archdall and Roskruge; Ex parte Carrigan and
Browne
• Common law has never recognised that an appeal
can be made after acquittal by jury and this right is
constitutionally guaranteed by s 80: R v Snow
• No constitutional requirement that jury has to be
made up by 12 members → minimum members to
make up a jury can be reduced to 10, any further
reductio violates s 80: Brownlee v the Queen
• No constitutional requirement that jury cannot
separate after they had leave to consider their verdict:
Brownlee v the Queen
!41
• Jurors can be warned to resist external influences and
if affected trial judge can make appropriate orders:
Brownlee v the Queen
• Unanimity was an essential characteristic: Cheatle v
the Queen
• Random and impartial selection is essential:
Katsumo v the Queen
• Reserve and additional juries are not
unconstitutional: Ng v the Queen
• Directed verdicts are constitutional: R v LK
• Not all facts must be determined by a Jury, some can
be done by the Judge sitting alone: Cheung v the
Queen
LIMITATIONS
• s 80 does not apply to the States or Territories →
express right is only guaranteed where a person is
charged with a Cth offence (s 80 only applies to any
law of the Cth): Byrne v the Queen; Kingswell v the
Queen
• s 80 does apply where States and Territories are
hearing an indictable Cth offence
• s 80 does not extent to courts martial: Re Tyler &
Ors; Ex parte Foley
ACCUSED'S RIGHTS TO WAIVE
Brown the Queen
• B was charged with federal drug offences and tried
on indictment. He elected not to have a jury, and the
trial judge ruled that s80 disabled him from making
that election. He was tried and convicted.
• HELD: on appeal to HC: the constitutional
guarantee of trial by jury in s80 cannot be waived by
the accused. The majority adopted a literal approach
to the word ‘shall’ in s80 and concluded that the
provision required proceedings on indictment for Cth
offences to be tried by jury.
s 116: Freedom of Religion
Limitation 

Section 116 Freedom of religion
The Commonwealth shall not not make any law for
establishing any religion, or for imposing any
religious observance, or for prohibiting the free
exercise of any religion, and no religious test shall be
required as a qualification of any office or public
trust under Ctb.
SCOPE
KRUGER V CTH
• A Northern Territory ordinance authorised the
removal of Aboriginal children from their natural
parents → plaintiffs argued this to be a law that
prohibits the free exercise of any religion.
• HELD: there need to be a clear intention that the
law was made to directly regulate religious
conduct. It cannot be concluded that Aboriginals
Ordinance 1918 (NT) was a law ‘for prohibiting
the free exercise of any religion’.
s 116 contains 4 guarantees:
1. Establishing any religion
WHAT IS A RELIGION FOR THE PURPOSES OF S 116?
• Might be a system of beliefs or statement of doctrine
and might prescribe a code of conduct or it might
involve a prescribed ritual or religious observance,
and need not involve belief in a deity: Adelaide Co
of Jehovah’s Witnesses v Cth
• s 116 includes persons who have no religion:
Adelaide Co of Jehovah’s Witnesses v Cth
SCIENTOLOGY CASE: 5 INDICIA
1. Belief in the supernatural
2. Ideas about man's relationship to the supernatural
3. Requires adherence to codes of conduct
4. Constitute an identifiable group
5. Adherents see their collection of ideas and/or
practices as constituting a religion.
WHAT CONSTITUTES ESTABLISHMENT OF A RELIGION?
• s 116 prohibits only those laws which have an
express purpose the establishment of a single religion
as a state religion → does not prevent Cth providing
financial assistances to schools that are operating on
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a religious basis: AG (Vic); ex rel Black v
Commonwealth (DOGS Case)
‣ Legislature intended to adopt a narrow notion
of establishment (defined as 'the rights and
duties of the civil magistrate to maintain and
support an establishment of religion in
accordance with God's word.
2. Imposing any religions observance
No HC decision which consider this particular clause.
• BUT the federal law requiring a witness at a Royal
Commission to swear an oath or make a solemn
affirmation to tell the truth and be guilty of an
offence (on default) could impose a type of religious
observance on persons, thus infringing s 116: R v
Winneke; Ex parte Gallager
3. Prohibiting the free exercise of any religion
s 116 is concerned only with laws which ban religious
practices or otherwise forbid the free exercise of
religion: Kruger v Cth; i.e. a law which requires a man
do something that would otherwise be forbidden in his
religion does fall within the scope of s 116.
• Attracting invalidity of law under s 166 requires that
the law in question must have the purpose of
achieving an objective which the freedom forbids:
Kruger v Cth (Brennan J).
• s 116 deals with the making of law and whether that
law prohibits the free exercise of any religion, it does
not deal with the administration of a law: Kruger
• Freedom is not absolute and must be weighed against
public interest: Kryger v Williams; Jehovah’s
Witness Case
4. No religious test
• William v Cth: requirement in guideline that school
chaplains be recognised by a religious institution was
a religious test for office → rejected by Court
[chaplains were engaged by SUQ using a contract so
did not hold office].

KRYGER V WILLIAMS
• Cth Act introduced a system of compulsory Military
Training, stipulating that anybody who fails to
attend was committing an offence but s 143(3)
allows non-combatant duties for religious objection.
• Edward Kryger declined duty as it opposed the will
of God.
• HELD: it is ridiculous to say that to require him to
attend training would inhibit his free exercise of
religious
s 109: Inconsistency of Laws
Limitation on State law

Section 109 Inconsistency of laws
When a law of a State is inconsistent with a law of
the Commonwealth, the latter shall prevail, and the
former shall, to the extent of the inconsistency, be
invalid.
Application of s 109 presupposes the existence of a
valid State law and a valid Cth law. Logically, questions
concerning the validity of a Cth law need to be resolved
before applying s 109.
• Effect of s 109 is to render a State law inoperative
→ once inconsistency is removed (or federal law is
repealed), State law is revived: Carter v Egg and
Egg Pulp Marketing Board (Vic) (1942) affirmed
in Butler v AG (1961)
• s 109 is a mechanism to resolve conflicts between
Cth and States (not Cth and Territory laws).
REQUIREMENTS
To have inconsistencies between a federal and state law,
you will need:
1. A valid Commonwealth law ⎼ was it made within
power?
2. A valid state law ⎼ to show that a state law is valid,
must say that it was made under s 5 of State
Constitution where the words “peace, order and
good government” has plenary power, meaning that
State parliament can legislate (i.e. it is a valid law):
Unions Steamship
3. An inconsistency between the two laws.
HOW IS A ‘LAW’ DEFINED FOR THE PURPOSES
OF S 109?
• Expressions “a law of the State” and “a law of the
Cth” are sufficiently general to be capable of applying
to inconsistencies involve not only a statute (or its
provisions) but also an industrial order, award or other
legislative instrument or regulation made under a
statute: Jemena Asset Management (3) Pty Ltd v
Coinvest Limited
• A ‘law’ includes subordinate or delegated
legislation but does not include common law: Felton
v Mulligan (1971)
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• Commonwealth has legislative supremacy, and Acts
of the State or Federal Parliament are considered
laws: Engineers’ Case
• Rules of the courts developed by the courts as
incident of from their statutory jurisdiction are laws:
Flaherty v Girgis
• ‘Law’ does not include Commonwealth Constitution:
Re Colina; Ex parte Torney (1999), or administrative
decisions made by public servants exercising
executive powers: Airlines of NSW v NSW (1964)
• ‘Law’ includes Cth laws passed in relation to specific
territories under s 122: Lamshed v Lake (1958)
LAWS MUST BE VALID AND OPERATIVE
Valid
s 109 only operates where there is a valid federal and
state law: Bayside Council v Telstra Corporation Ltd
→ an invalid law is void ab initio: South Australia v
Commonwealth (the First Uniform Tax) (1942)
Operative
s 109 has no operation where only one law relevantly
operates (a law that is still operating): Butler v
Attorney-General of Victoria (1961)
TESTS FOR INCONSISTENCY
Direct inconsistency
• Does a State law conflict with a Cth law because, for
example, the 2 laws impose obligations incapable of
simultaneous obedience (dual obedience rule) or
because the State law ‘alters, impairs or detracts’ from
the operation of Cth law (rights and duties rule)?
• NOTE: operational inconsistency could arise if
simultaneous attempts were made in exercise of the
powers conferred by both the Cth and State acts:
Victoria v Commonwealth (1937)
‣ Operational inconsistency could arise even
when Cth does not have exclusive authority: if
authorities from Cth and State sought to
exercise their powers simultaneously, there
would be an inconsistency in the operation of
the 2 acts → if that’s the case, federal law
prevails

 DUAL OBEDIENCE RULE
EXPLAN Where there is a direct inconsistency (i.e.
-ATION the two laws have contradictory
provisions on the same subject matter), it
is impossible to comply simultaneously
with the duties or obligations imposed by
both laws: R v Licensing Court of
Brisbane; Ex parte Daniell (1920)
CASE Victoria v Commonwealth (1937)
FACTS • 28.01.1937: steamships, Caradale and
Kakariki, collided and as a
consequence, Kakariki sunk within the
boundaries of Port Phillip in Victoria.
• s 329 of Navigation Act 1912-1935
(Cth): Minister could require the owner
of a wreck on or near the coast of
Australia to remove it and if owner
does not comply, Minister could
remove the wreck himself and recover
the cost of removal from owner.
• s 13 of Marine Act 1920 (Vic): if any
ship was sunk in a port within Victoria
and owner/master did not clear the port
or remove the wreck within a time
fixed by port officer/harbour master, a
warrant could be issued for the removal
of wreck + costs then be recovered.
Was s 13 of the State Act inconsistent w s
ISSUE
329 of Cth Act?
JUDGE- • Latham CJ: there is no inconsistency
MENTS in express terms between two sections.
• Dixon J: nothing in language of s 329
or its subject matter to suggest Cth has
exclusive power of determining
whether owner ought to remove it, if a
wreck falls within the description to
which the section relates.
HELD State law and Cth can operate
concurrently subject to one qualification:
• Did Cth manifested an exclusive
authority to cover the field +
intentionally excluded the operation of
the state law? → HCA didn’t think Cth
manifested an exclusive authority.
• HOWEVER, there is still
inconsistency in the operation of the 2
acts and Cth law prevails.
“ALTERS, IMPAIRS OR DETRACTS” RULE
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EXPLAN State law conflicts with Federal law if
state law alters, impairs or detracts from
-ATION
the operation of Cth law to the extent that
it undermines the Cth law: Jemena Asset
Management (3) Pty Ltd v Coinvest Ltd
(2011)
CASE Australian Mutual Provident Society v
FACTS Goulden (1945)
• Golden had been totally blind since
birth. AMP was registered under the
Life Insurance Act 1945 (Cth) to carry
on a life insurance business.
• AMP insured Goulden. It agreed to pay
a stipulated amount on the anniversary
of the policy immediately preceding
Goulden’s 65th birthday or upon his
earlier death. G asked AMP to amend
his policy to include a ‘waiver of
premium benefit’. Upon total
disablement, this benefit would mean
that AMP would waive the payment of
each premium falling due during the
uninterrupted continuance of the
disablement. AMP refused.
• G lodged a complaint w/ the NSW
Counsellor for Equal Opportunity, who
then referred the complaint to the Equal
Opportunity Tribunal established under
the Anti-Discrimination Act 1977
(NSW), s 49K(1): “It is unlawful for a
person who provides, for payment or
not, goods or services to discriminate
against a physically handicapped
person on the ground of his physical
impairment”.
ISSUE Was s 49K of the State Act inconsistent
with the Commonwealth Act?
“it would alter, impair or detract from the
JUDGE-
MENTS Commonwealth scheme of regulation
established by the Act if a registered life
insurance company was effectively
precluded by the legislation of a State
from classifying different risks
differently, from setting different
premiums for different risks or from
refusing to insure risks which were
outside the class of risk in respect of
which it wished to offer insurance"
 State law was inconsistent with any matter relating to employment of discharged members
HELD
Commonwealth Act because it prevented of the forces”.
the AMP (who was complying by the Cth
Act) from categorising different risks) →
state law had ‘altered, impaired and
detracted’ the operation of the Cth Act.

‘Cover the field’ inconsistency Inclusion of state law

Where the Cth intended to cover the field and a State
purports to legislate in that field: Jemena Asset
Management (3) Pty Ltd v Coinvest Ltd → ‘cover the
field’ = Cth intends its legislation to be the exclusive
law on the topic
• Breath of the federal provision may signal intent to
cover the field: ABC v Industrial Court of SA (the
Act was not detailed in application to temporary
employees but breath of the law implied that it
covered the field).
• Intention to cover the field may manifest where Fed.
laws deal w/ Fed. matters: R v Loewenthal
• Differing penalties is sufficient to ground an
inconsistency argument: Hume v Palmer, but must
ascertain whether Parliament intended to cover the
field: Dickinson v the Queen
STEP 1: HOW TO IDENTIFY THE FIELD?
If the laws can be characterised as applying to the same
subject matter, do they apply to the same matter in the
same circumstances and in the same way?
STEP 2: DOES THE CTH LAW EXPRESS AN INTENTION TO
COVER THE FIELD?
• Cth may include in its legislation a clause expressly
excluding the operation of state legislation
OR
• Cth may imply intention to cover the field
This is where there is an express intention to allow State
law to cover the field → only express inclusion: Re
Credit Tribunal ex p GMAC Acceptance Corp (s 75 of
Cth Act stated that Part V was not intended to exclude
or limit the concurrent operation of any law of a State or
Territory).
STEP 3: DOES THE CTH LAW EXPRESS AN INTENTION TO
NOT COVER THE FIELD
There can be no inconsistencies when, on analysis, the
Cth has not expressed any intention to regulate a topic:
TA Robinson & Sons Pty Ltd v Haylor
No retrospective inclusion
• Cth cannot amend the law to invoke retrospective
inclusion: Viskauskas v Niland
• Cth may express intention not to cover the field
prospectively, they can’t do it retrospectively: Uni of
Wollongong v Metwally
VISKAUSKAS V NILAND
• Cth amended RDA so that the Act “was not
intended and shall be deemed never to have been
intended” to exclusive the operation of the State
Act after court found original Act covered the
field, rendering State’s ADA inconsistent

Implied intention COVER THE FIELD’

Examine nature and scope of the Cth legislation.
• Can be exhaustive, detailed (more detailed = narrower EXPLAN Where the Cth intended to cover the
the field) or broad ATION field and a State purports to legislate in
• Detailed provisions may indicate intention to cover that field: Jemena Asset Management
the field: Ex parte McLean (3) Pty Ltd v Coinvest Ltd
• If Cth intends to cover the entire field, whole of State
Act is overridden: Clyde Engineering v Cowburn

Expressed intention
The intention to cover the field was expressly stated in
the legislation. E.g. in Wenn v AG, s 24(2) of the Cth
Act states “the provisions of the division shall apply in
exclusion of any provision providing for preference in

!45
 CASE John Holland Pty Ltd v Victorian
FACTS Workcover Authority (2009)
• 24.09.2008: inspector under
Occupational Health and Safety Act
2004 (Vic) charged John w/ offences
against ss 21 and 23, relating to safety
of a working environment.
• Objects of Occupational Health and
Safety 1991 (Cth): “to secure the
health, safety and welfare at work of
employees of the Commonwealth, of
Commonwealth authorities and of non-
Commonwealth licensees”.
• Offences were alleged to have been
committed in October 2006. At the
time of the alleged offending, John
was not a non-Commonwealth licensee
but became one on 01.01.2007
(therefore, an employer within the
meaning of Cth Act).

ISSUE Was there an inconsistency between

State and Cth law?

APPLY • Do they both regulate the same subject

TEST matter? YES, both laws operate in the
same field after 01.07.2007.
• Court found that Holland committed
the offence prior to operation of Cth so
he fell outside the scope of fed law and
no inconsistency → s 4 of Cth Act had
no work to do (no effect on the
operation of a State law that applied to
a person before he/she came within the
field of operation of Cth Act.

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!47
Notes

IMPLIED INCIDENTAL POWER ‣ Would severance be in accordance with the

apparent intention of the legislature, as
• Each HoP has an implied incidental area. A law ‘with
revealed in the terms of the whole Act? If
respect to’ a HoP might fall either in the core area of
intention is that the statute should stand or fall
the power or the implied incidental area of the power.
as a whole, severance is not possible
• ‘Everything which is incidental to the main purpose
• Work choice case: If the invalidated portions are
of a power is contained within the power: Burton v
relatively few and specific, surgery (i.e. severance)
Honan
will be available and appropriate. However, where
• The implied incidental power needs to be
the resulting invalidation is substantial and would
distinguished from the express incidental power set
strike down key provisions of a comprehensive and
out in s 51(xxxix) which concerns matters arising in
integrated legislative measures, severance will be
the execution of Cth legislative, executive and
inappropriate.
judicial powers: Burton v Honan
• “Judicial surgery” should not involve the court’s
performing a legislative task (i.e. HC cannot go and
amending legislation, this is not judicial role): Work
READING DOWN OF LAWS choice case
• So far as it is reasonably possible to do so,
legislation should be construed as being within
power.
• Where an Act is so general as to apply to mattes
beyond power, the court will construe it in a more
limited sense and will confine its meaning.
• The general principle of statutory interpretation is: if
it is possible to read down the meaning of the law, so
its narrower application is constitutional valid even
though the broader interpretation is invalid, then the
HC will read down the law.
‣ Wilson v Minister for Aboriginal and Torres
Strait Island Affairs: “person” was read down
so not to include “federal judges”
• If reading down the legislation would amount to a re-
wording of legislature’s intention, court will not read
down: Pidoto v Victoria

SEVERANCE
• An unconstitutional section of an Act may be severed
from the rest of the Act (thus, saving the Act). But,
these questions must be asked.
• In severance possible as matter of language
‣ Would there need to be a substitution rather
than excision of words? If yes, no severance
‣ Would the result be to change a legal effect? If
yes, no severance
‣ Is the remainder of statutory text, or part of it,
so interdependent with the severed words that
to remove them would change the whole effect
of the law? If yes, no severance

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