Constitutional EXAM Notes Constitutional EXAM Notes

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Constitutional EXAM Notes
Constitutional Law (University of Wollongong)
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INTRODUCTION BASIC CONCEPTS
The Australian Constitution is from Britain.
 Many principles embedded are from Britain.

 The Australian Constitution is a written document from 1901.
 Fundamental law that enables a government to make all other laws and sets up the
framework of government.
Constitutional law described as that branch of the law which regulates the three arms of
government: the legislature, the executive and the judiciary. The Australian constitution regulates
the relationship between the states and federal government.
3 Branches of Government:
LEGISLATURE – Branch of government that makes law
EXECUTIVE – Applies the law
JUDICIARY – Interprets the law
FUNDAMENTAL CONCEPTS
PARLIAMENTARY SUPREMANCY:
Parliament is supreme, no limits on the laws that they can make and unmake. It is justified by the
principle of democracy which is the will of the people.
PARLIAMENTARY SOVEREIGNTY:
Legislature power divided between two levels of government, limited by the constitution. Means
that the parliament has constitutional power to “make or unmake any law whatever; and further
that no person or body is recognised by the law of England as having a right to override or set aside
the legislation of parliament”.
RULE OF LAW:
Society is governed according to declared laws, rather than by arbitrary exercises of power.
Australian society is governed by the law. All are subject to the law and all are equal under the law.
The Law should be clear, stable and accessible. No one is treated in a different manner. The laws
application should be predictable, consistent and non-discriminatory, thus there is a need to
minimise discretion.
CONSTITUTION CONVENTIONS:
Not legally enforceable but is followed. There is a moral element and the custom can change over
time. Conventions are customs or practises that are habitually followed by governments, who are
under a moral or political obligation to continue to follow them.
REPRESENTATIVE GOVERNMENT:

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The legislature democratically elected is a fundamental element. Ss 2, 24 of the constitution. Both

houses are democratically elected. Legislature directly represents the interest of the constituency.
The notion government to be legitimate must be elected.
RESPONSIBLE GOVERNMENT:
arises the executive drawn from legislature. Executive only function from confidence.
Executive responsible to the legislature. To enforce democratic principle. Can only act in confidence
legislature. Only continue to operate to individual members and entire legislature.
PARLIAMENTARY CONTROL OF SUPPLY:
Supply must be authorised by the parliament. S53 constitution as the bills originate house of
representatives.
SEPERATION OF POWERS:
“Pure” doctrine that the three arms of government be clearly and institutionally separated. Present
concentration of too much power.
TIME LINE DIAGRAM

CONSTITUTIONAL INTERPRETATIONS & CHARACTERISATION OF LEGISLATION
Australian statutes must conform to the constitution. Courts – high court responsible for interpreting
and applying the constitution.
The interpretation of the words of the constitution is what they mean. Characterisation is federal
government is a limited head of power. Analyse what the true character is.
High Court
Performs functions of interpretation and characterisation. The character of the high court is most
important. Independence from interference by the political arms of government is ensured.
Constitution protection of the separation of judicial power.
S 72(I) – in charge of the appoint is the “governor general”. A judge can change political values while
on the bench and there have been trends of interpretation of the constitution.
Federal/State invalid and will be void in its entirety.
CONSTIUTIONAL INTERPRETATION
Principles not very different – fundamental document is phrased in more open and general
language. Scope for flexibility and judges are more able to pick and choose interpretative
techniques.
New South Wales v Commonwealth Sustained uncertainty strictly textually by

reference to history, purposively, as on exercise
in “originalism”, flexibility, according to a

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particular judge’ perceptions.
Western Australia v Commonwealth S 7 state: shall be composed
S 122 to the extent and on which it thinks fit
Majority read down s 7
Minority read down s 122
Broad interpretation – outside and Narrow – within.
Read down legislation, severance section1 invalid cut out. Doesn’t affect the remaining legislation.
METHOD
No one definitive rule rather number of techniques.
TEXTUAL APPROACH
Literal interpretation of the text words gives words ordinary and natural meaning.
Least amount of judicial innovation and potential judicial law making.
Will not give rise to controversy
Stands to reason and practical approach.
Sometimes not sufficient – two provisions contradict
Also look at words in their context meaning.
Amaigamated Constitutional interpretation should be based on express provisions rather

Society of than on a desire to promote or avoid certain social or political consequences.
Engineers v
Adelaide Steam
ship (1920)
Territorial Textual or literal arguments to support their views. Had to resort to reading
Senators Case down taking a contextual approach and looking at the words according to
context of other constitutional provisions.
Majority of judges also used contextual interpretation to justify their

position. Parliament extensive powers regarding “representation”. Under s
122 and new states s 121.
MURPHY: “representation” multiple times in the constitution and

presumption identical words used in statute mean the same.

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Worker Choices Concerned with the validity of a comprehensive industrial relations law,
under s 51.
Textual approach majority very broad interpretation.
Re Canavan A strict textual approach has been taken by the High Court s44 which
(2017) concerns dual citizens.
The high court had to consider eligibility for nomination and election.
Two limbs of s44(1) – first voluntary taking allegiance to another country

while second limb whether entitled to rights.
Scope of s44.
ORGINALISM
Often impossible for a judge to discern a statute’s actual meaning by referring to the words alone.
At common law “give effect to the intention of the law maker”
Idea judge give effect to the original intention of the law maker.
Problem changing nature of society, not predictable. Criticised for freezing values such as 19 th
century racist and sexist assumptions.
Interpret more dynamic manner, living tree approach.
Judges are unelected.
Theophanous v Herald and Weekly Times ‘Deprive what was intended to be a living
(1994) instrument’
S 128 empowers the present generation to change the constitution.
COMPARATIVE
Many taken from British and US constitution
Particular provision borrowed, look at various approaches from guidance.
Problem is borrowing different contexts and can become problematic and misleading.
POLICY
Normally dominate legislature and executive.
May influence judicial decision to avoid a bad alternative
Influence of personal values.
STARE DECISIS

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Let the decision stand, follows precedent.
High court not bound by previous decisions.
Most judges will follow unless it is ‘plainly wrong’.
IMPLICATION
Implied meaning can only be construed if necessary or logically implied from the text.
Melbourne Corp v Cth (1947) – implied state immunities.
Differs judge to judge.
INTERNATIONAL LAW
Only Judge Kirby, internal law can help interpret Australian law
CHARACTERISATION OF COMMONWEALTH LAWS
Commonwealth power is emanated rather than general. Most commonwealth laws must be
characterised as being within a commonwealth power. Found in s 51.
True character of legislation comes within a head of power.
History explains – intention weak central, strong state.
High Court 1903 – 3 judges
THE RESERVE STATE POWERS DOCTRINE. R V BARGER
Narrow approach observed for the first two decades – adopted view that certain legislative areas
were “reserved” for the states. Look at what they could not do. Read narrowly.
THE ENGINEERS CASE
Found that no reserved state powers could be implied from the heads of power, unless such
implications necessarily or logically flowed. Words should be interpreted natural meaning.
Majority championed a legalistic literal approach – ideological
Underpinnings – grant “too much” power to new central government.
MODERN APPROACH
Fairfax v Question as to the true nature and characterisation of the legislation.

Federal
Commissione Question of the subject matter
r of Taxation

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(1965)
First Uniform “What does the law do in way of changing or creating or destroying duties or
Tax Case rights or powers?”
(1942)
2 additional judges added in 1906.
INCIDENTAL CHARACTERISATION
If a law cannot be directly characterised under a head of power, then may be an incidental exercise
of power. Subject matter is reasonably connected to a matter within a commonwealth power.
S 51 – each head under s 52 has an implied incidental power. Grannall v Marrickville
Express incidental applies judiciary and executive
It means that you can’t bring a particular legislation to direct head of power incidentally comes
within a head of power.
TEST
Subject in nature.
Reasonably connected? Directly affects? Conductive to? An Appropriate means? Reasonably

Necessary?
S51(i) Trade and Commerce – regulate international.
O’Sullivan v Noariunga Meats (1954)
Slaughter meat – argued outside constitutional regulate intra state, slaughter of meat – export.
Commonwealth extend control, extend legislation.
PROPORTIONALITY
“There should be reasonable relationship balance”
Reasonable balance with law and end
Not relevant for direct characterisation. (Leask)
Could be used for characterisation of ‘purposive powers’
S 51 (vi) Defence
Test: is the law ‘appropriate and adapted’ to the power’s purpose?
Proportionality + Incidental power

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THE CORPORATIONS POWER – s 51 (xx)
Deals with legal persons. Defined in the Corporations Act 2001 (Cth) s57A
WHAT IS A CORPORATION?
a) A company
b) Any body corporate
c) An unincorporated body that may sue of be sued and hold property
NATURAL MEANING
“An association of individual who join for certain purposes, has a separate legal identity, can sue, be
sued, enter contracts, own property and commit offences”.
No geographical limitations – limits commonwealth to certain typed of corporation.
FOREIGN CORPORATIONS
Any corporate entity formed under the law of under country.
TRADING CORPORATIONS.
R v Trade Practises Tribunal: Ex Parte St George Local government entity, which sold electricity
Country Council (1974) and appliances, was found not to be a trading
corporation.
TEST – Gibbs, Menzies JJ: What were the

purposes for which the entity was established?
To perform local government functions

according to Local Government Act 1919 (NSW)
No clear majority.
R v Judges of Federal Court: Ex parte WA Three incorporated bodies established to

National football league (1979) promote football matches for profits
Majority found them to be a trading

corporation,
TEST – the activities or functions of the

corporation are the main consideration, not for
the purpose it was established.
Are there “Substantial” trading activities.
Are a significantly sufficient proportion trading

activity.
MINORITY- ‘purpose test’

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Tasmania Dam Case Majority held that the hydro-electricity

commission a body established by statute, was
a trading corporation because its trade in
electricity made a ‘sufficiently significant
proportion’.
Confirmed George was incorrect.
FINANCIAL CORPORATION
Financial activities where the subject of transaction is finance.
Re Kur-ring-gai Co-operative Building Society TEST – Activities test also applies to financial
corporations.
State Superannuation Board v Trade Practises Financial transaction may facilitate primary
Commission (1982) activity.
Minority ‘dominant or characteristic activity of

corporation’.
INACTIVE CORPORATION
Fencott v Muller (1983) TEST: The purpose test
Used constitution memo and articles of

association to determine purpose.
THE SCOPE OF CONSTITUTIONAL POWER
The extent which laws can be passed under s51(xx)
HISTORY
Huddart Parker + Co v Moorehead (1909) The Australian Industries Preservation Act 1906
regulated trade monopolies + restraints
Reserved state powers doctrine.
TESTS – The Cth could only legislate to control

the legal capacity of corporations to
legitimately enter a field of operation.
A NEW BROADER WAY
Strideland v Rocha Concrete Pipes (1971) Cth Act regulates agreements that sought to
reduce competition

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Overturned Huddart Parker
Particular provision not authorised under

s51(xx).
Actors + Announcers Equity Association v Challenge to Cth regulate of secondary boycotts

Fantana Fiields (1982)
Majority – valid s 51(xx) can regulate activities
of natural persons in do far as that law is
protecting a trading corporation.
NARROW – limited to trading activities
BROAD - no implication read down
No clear authority on which view was to be

preferred.
Tasmania Dam (1983) World Heritage Properties Conservation Act

1983 s 10(2) s10(4) both sections under
constitutions
Mason, Murphy, Deane JJ found all of s10 valid
Broadview – S 51(xx) supports a law that

regulates all activities of corporation
Wilson, Dawson, Gibbs found s10(2) invalid
Narrow – s10(2) had no connection with

trading activities
Work Choices Introduction of industrial relations law that

regulated the relations between corporations
and employees
Cth did not rely upon s 51(xxx) as it was limited

to interstate industrial disputes and prescribes
conciliation and aritribution.
DISTINCTIVE CHARACTER TEST
The fact the corporations is a foreign, trading or financial corporation should be significant in the
way in which the law relates to it.
OBJECT OF COMMAND TEST
A constitutional corporation is an object of command (a law) committing, prohibiting or trading or

financial corporation from engaging in conduct of forming relationships.

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INCIDENTAL SCOPE
Actors Equity (1982) Law made trade unions liable for the activities
not to be incidental to the corporations.
Fencott v Muller (1983) Law which made it possible to claim against a

person for a loss suffered due to deception was
incidental.
EXTERNAL AFFAIRS POWER
High court interpret – external affairs
relations with implemenation

other countries of treaties
Extraterritorial matters of
power internal concern
section
51(xxix)
EXTRATERRITORIAL POWER
When parliament legislates with respect to matters beyond its borders.
Presumption
- Initial presumption against extra-territoriality (McLeod [1891])

- Presumption overturned 1930’s (Crof v Dunphy [1933])
- Confirmed in Statute of Westminster (1931) and the Australian Act (1986)
Nexus – had to be sufficiently connected
NSW v CTH (seas and submerged) 1975 Whole court found that s51(xxix) permitted the
commonwealth to exercise power with respect
to Cth exercise sovereignty over the sea
‘Matters on things geographically situated
outside of Australia’
Polyvkhovich v Cth (1991) Majority found that no need for WWII to be

related to Australia at the time they were

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committed
Did not have a connection
Union Steamship Co of Australia Pty v King ‘Even remote and general connection between
(1988) the subject matter of the legislation and state
will suffice’
Mobil Oil v Victoria (2002) - Class action against Mobil – class action
provision extended beyond the state’s
territorial competence
GLEESON CJ: expressed that the limit as one

which prevented one state from exercising
legislative power “which destroys or weakens
the legislative authority of another state or its
capacity as a government.
RELATIONS WITH OTHER COUNTIES
The commonwealth may legislate with respect to relations with foreign nations.
R v Sharkey (1949) Crimes Act – the preservation of relations with

other countries is an important part of external
affairs
The creation of the offence of “sedition” which

prohibited the excitement of disaffection
against the governments of UK was valid.
Thomas v Mulberry Terrorist Acts: coerced influenced foreign

governments
3 judges could be justified.
Koowarta v Bjelke-Peter Brennan J: endorsed the extension of the

Sharkey principle to cover laws regarding
relations with other “international persons”
XYZ Kirby – validity of Australia’s child sex tourism

law on sub-heading s51(xxix)
IMPLEMENTATION OF TREATIES
Complex aspect of the external affairs power concerns the commonwealth’s power to incorporate
the provisions of international treaties to which Australia is a party into domestic legislation.

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Mohist – international/domestic 2 parts single legal system
Automatically flow
Dualist – UK, Aust, internal/domestic – separate no connection does not automatically affect each
other.
TREATY RATIFICATION
Cth ratifies treaties; executive consents. Treaties do not become a part of Australian law until they
are passed as Acts. Australia is bound by international law to follow that treaty’s provisions.
Only cth can sign treaties, division of power.
Plaintiff s 195/2016 v Minister of Immigration The legislature or the executive power of the
and Border Protection (2017) commonwealth is constitutionally limited by
only need to conform to international law
Horta v Commonwealth Can have an effect on judge’s interpretation of

the law, interpret to conform to Australia
international law obligations
Mabo v Queensland (No 2) Australia’s modern-day human rights

obligations influenced by the high court –
rejection of the fiction terra nullis
Minister for Immigration and Ethnic Affairs v Further expanded the utility of unincorporated
Teoh (1995) treaties in Australian Law
Indicated that unincorporated treaties have a

procedural effect in Australian law
Re Minister for Immigration and Multicultural Teoh vulnerable to be overturned

Affairs
WHICH TREATY OBLIGATIONS
R v Burgess; Ex Parte Henry Cth sought to transform Air Split among high court scope.
(1936) Navigation Act – did not form Broadview any subject matter
head of power which justifies could be transformed into
legislation. International domestic legislation.
obligations.
Has jurisdiction by treaty.
Narrow view is international

significance.
Koowarta v Bjelk – Peterson Re incorporation of parts of Mason, Murphy, Brennan:

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(1982) the Racial Discrimination Act ‘Any subject matter’ no

division of responsibility for
Transform terms to Cth treaties between state and
Legislation was actually commonwealth. Rejected
prohibiting within Australia. minority concerns about
invading.
Gibbs CJ: the subject matter of

the treaty must be an external
affair
Stephens: International
concerns
Tasmania Dam Build dam, Hydro power state An intervention of Cth

crown land.
Broad approach upheld; any
Signed convention protection subject matter transformed
1972 nominate areas put on increased power.
the list.
Nominated area of natural

heritage.
LIMITATIONS OF IMPLEMENTATION TREATIES AND MATTERS OF INTERNATIONAL CONCERN
Bona Fide
Cannot enter for the sole purpose to enter legislation for the purpose. Doubtful truly possess power.
164 – Executive provocative – contradiction.
Impose an obligation
Transform that do not constitute an obligation.
Richardson v Forestry S 16 transforming legislation.
Reasonably apprehended obligation.
ILO Case Imply Cth can transform non -obligations
Pope v Fact (2009) Was necessary
Specify Principle

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A treaty must have sufficient ‘specificity’ to guide states on what they must do.
Cannot support a law which adopts on of a variety of possibly contradictory ways to implement a
treaty.
Conformity Principle
Looking to terms of legislation – can conform to the treaty obligations cannot undermine the object
and purposes.
The law must be approiate and adopted
Deficiency in legislation does not make the law invalid.
Substantially inconsistent.
THE DEFENCE POWER
The defence power waxes and wanes. It is an elastic head of power.
NATURE AND SCOPE
S 51(v), power is conferred not by reference to subject matter but aims or objectives. (Leask v The
Commonwealth)
Proportionality test, appropriate and adapted.
SCOPE
Andrew v Howell (1941) ‘Nature and dimensions of the conflict’
Stenhouse v Coleman Judicial deference, legislation in times of war –

defer to executive
WAR
Broad of powers of delegation and broad exercise of discretionary power.
Farey v Burvett (1916) ‘Whole resources’ – paramount source
Displacing normal balance
Stenhouse v Colemen May be exercised human and resource control
LIMITATIONS
R v University of Sydney University

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Werthiem v Commonwealth (1945) Fly spray
TRANSITION FROM WAR TO PEACE
Consequences linger
SECTION 92: FREEDOM OF INTERSTATE TRADE, COMMERCE AND INTERCOURSE
For 90 years this section presented a considerable obstruction to government control or regulation
of commercial activity within Australia.
Unanimous – High Court in Cole v Whitfield (1988) – prohibits measures that place discriminatory
protectionist burdens upon interstate trade and commerce.
BRIEF HISTORY
End of 19th century the question of protection of local industries was a source of great political
debate.
NSW free trade
Protectionist colonies adopted laws and tariffs
Cole v Whitfield – looked at history, designed for free trade area in which government discrimination
against interstate trade and commerce would be prohibited.
“TRADE AND COMMERCE”
Definition was established in W & A McArthur Lth Queensland (1920) – ordinary meaning was
applicable, and it should be interpreted by reference to commercial usage.
Bank of NSW v Commonwealth ‘Trade and commerce” encompasses more than just trade in goods
and intangibles, such as transmission of money.
EARLY INTERPRETATIONS OF S92
Fox v Robbins (1909) – WA could not discriminate with fixing fee.
THE “INDIVIDUAL RIGHTS” APPROACH AND CONSEQUENT CONFUSION
19th century “Laissez-faire” approach to economic regulation. Individual should be free to trade
without governmental regulatory constraint.
Justices to treat s92 as a guarantee of individual trading rights.
S92 – would strike down direct or immediate restrictions on interstate trade and commerce, rather
than indirect or consequential impediments.
A FRESH START
Millers – The court has a responsibility to undertake a fundamental re-examination of the section.

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THE TRIUMPH OF THE FREE TRADE THEORY
Cole v Whitfield
FACTS:
 Whitfield a crayfish trader was charged with unlawful possession of undersized crayfish,
prohibited by Sea Fisheries Act 1962 (TAS)
 Above South Australia regulations but under Tasmania’s
 Whitefield argued that the Tasmania regulations amounted to a burden on his interstate
trade, violated s 92
JUDGEMENT
 Court examined convention of debates of the 1890’s to elucidate the historical meaning and
purpose of s92
 Court rejected individual rights theory
 Court confirmed that s92 prohibits measures which place discriminatory burdens on
interstate trade and commerce
 Both indirect and direct discrimination
 Law was valid – appeared that they did not discriminate, proportionate regulation.
FOUR STEP PROCESS
(1) Establish there is a burden on interstate trade, if there is a burden

(2) Establish if the burden is discriminatory on its face or in practical effect. If there is
discrimination
(3) Establish if that discrimination has a protectionist effect. If so, law is prima facie invalid.
(4) Ascertain If that protectionist effect is pursuant to or incidental to some non-protectionist
purpose. If the law is appropriate and adapted to achieving that purpose is valid.
WHAT IS “DISCRIMINATION”
COLE:
The High Court established that the states should “a free trade area in which legislative or executive
discrimination against inter-state trade and commerce should be prohibited”.
“s92 precluded the imposition of protectionist burdens not only interstate border custom duties but
also burdens, whether fiscal or non-fiscal, which discriminated against interstate trade and
commerce.
Discrimination arises when one party is treated differently or placed at a disadvantage, compared to
another party. Burden imposed is “worse or “heavier” than the burden placed in local or interstate
trade. Belfair v Racing (NSW) 2012

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WHAT IS “PROTECTIONISM”
Authority and stability, fleeting.
Bath v Alston Split how test should be applied.
 Retail fee was discriminatory and

protectionist – found the fee was
discriminatory against interstate trade,
even when read in light of the
wholesale fee.
 Protectionist laws arise when
a) A state law conferred a competitive
advantage on local industry
b) A state law removed competitive
advantage from interstate industry
Majority agreed that any burdens imposed on

interstate goods after entry into a state must
be equally imposed upon local industry.
Therefore, imported product must retain any
competitive advantage held at the time of its
entry.
Betfair v Racing (NSW) Challenged the validity of the license fees

imposed by NSW racing authorities
Law discriminatory – lost case – failed to

establish any relevant protectionist effect
No evidence reduced competiveness
EXPORT RESTRCITIONS AND S92
Trade comes from: importation and exportation.
Export restrictions may arise under marketing schemes.
Barley Marketing Board v Norman (1990)
 All sales barley NSW void

 Breached s92 due to the consequent burden on interstate (export) trade of NSW barley
 High Court held – did not infringe s92 as the Act treated all purchasers of barley the same
 Act did not impose greater burden
PROPORTIONATE REGULATION AS AN EXCEPTION
Cole Court recognised that sometimes protectionist

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burdens can be legitimate and not violate s92.
Where purpose of the legislation is to secure

legitimate non-protectionist objective and any
discriminatory burdens on interstate trade are
incidental and not disproportionate to
achieving that legitimate objective.
Castlemaine Tooheys v South Australia (1990) Bond asserted that the Act rendered their
product less competitive in South Australia
Test for proportionality
Outlining a test for proportionality for

establishing whether a protectionist law is
“saved” from breaching s92.
Law protectionist effect is proportionist to the

law’s success in addressing a particular
concern.
Application of test is an inherently political, as

it involves the balancing of competing
economic and social interests.
Minuscule impact on the preservation of South

Australia’s energy resource did not justify its
discriminatory impact on Bond’s interstate
trade.
Betfair 1 Queried emphasis in Castlemaine Tooheys

“fundamental consideration” of the power of a
state to protect “the well-being of the people
of the state”.
Law survive under s92 – “reasonable necessity”

“acceptable explanation”
EXECUTIVE POWER AND SPENDING
The function of the executive or administrative arm of government is to administer laws, that it to
put them into practise and deal with the general minutiate of legal and policy administration.
Governed by convention, vagueness and ensures flexibility.
PERSONS WITHIN THE EXECUTIVE
Personified by the Crown

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S61 vests federal executive power – governor general acts only on the advice of the Prime Minister
and the cabinet
RESERVE POWERS
Certain powers, may by convention, be exercised by the Governor General acting alone, without the
advice of the Prime Minister and the cabinet, known as “reserved powers”
SCOPE OF THE EXECUTIVE
Much of the power executed by the executive is essentially legislative power that has been
delegated by the parliament.
Victorian Stevedoring and General Contracting Validity of s3 was challenged, authorised the
Co v Dignan (1931) governor general to make powers. Challenged
sheer breadth.
Following matters – material
1. Grant of power is made to executive

government
2. The scope and extent of the power of
regulation making conferred will.
Henry VII clause- can delegate power to

executive to amend or over ride the act.
Work Choices (2006) S 356 effectively delegated to the executive

power to decide what would and what would
not be allowed.
Too broad did not amount to a law.
EXECUTION OF THE CONSTITUION
Specific miscellaneous powers upon the executive, apart from the broad grant of power in s61.
MAINTENANCE OF THE CONSTIUTION
Confer specific power upon the commonwealth executive to take measures to protect the
constitution or rather, the Australian constitutional system of government.
Limb of s61 “the idea of the protection of the body political or nation of Australia.” – Include powers
to defend.
INHERENT EXECUTIVE POWER: THE COMMON LAW
Prerogative Power
“Residue of arbitrary authority which at any given time is legally left in the hands of the Crowns”

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HV Evatt described the Crown prerogatives as being three types:
“Executive Prerogatives” unique powers to perform various acts
“Prerogative immunities and Preference” – special rights which vest only in the crown as opposed to
other persons.
“Proprietary Prerogatives” crown’s special rights of ownership inherited from United Kingdom crown
– split between state and cth.
OTHER COMMON LAW EXECUTIVE POWERS
Malone v Metro Police
Could recognise these powers for executive bodies in situations where the actions of those truly
comparable to private actions.
Suggestion has been such personal prerogative powers can be denied in situations that impact
directly on human rights.
THE POWER TO ENTER CONTRACTS AND SPEND MONEY
Scope of the power to enter into contracts and spend money. Issue at Williams v Commonwealth
(2012) – funding public schools under mind senate – would deprive people of access to relief under
s109 of the constitution.
Federal government lacks autonomous powers to enter into contracts or to spend money.
RELATIONSHIP BETWEEN S61 AND COMMON LAW EXECUTIVE POWERS
Davis v Commonwealth (1988) – “there is no doubt that the executive government of the Cth has an
executive power to protect the nation”
NO AUTONOMOUS POWER TO DETAIN
Commonwealth executive has no autonomous power to detain power.
Chu Kheng Lim v Minister for Immigration Only lawful by valid statutory provision
(1992)
CPCF v Minister for immigration and Border Sri Lanka – reasonable grounds on route to
Protection (2015) Aust
Taking to detention centre – key issue was

whether the impugned actions by the maritime
officers were authorised by statute.
Valid Authorised by Maritimes Powers Act 2013

s72(4)
Plaintiff M68/2015 v Minister for Immigration Constitutionality of the plaintiffs detention in

and Border Protection (2016)

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Nauru
Contained by Nauru not the commonwealth.
THE NATIONHOOD POWER
Executive vested – “nationhood power” – scope is unclear
Victoria v Cth and Hayden (Cth) Authorised substantial expenditure on the

“Australian Assistance Plan” – disburse money.
Commonwealth executive had the power to

administer such a spending scheme
Valid appropriation under s81
“internal security and protection of the state”
Pape Indicated that the federal spending power

which exercise is broad.
Williams v Commonwealth (2012) Extensive limitations on the commonwealth’s

spending powers.
COERCIVE NATIONHOOD POWER
AAP Case Concerned nationhood power as an

authorisation for government expenditure
Pape Law described as regulatory “coercive”
Tasmania Dam Four justices agreed on the existence of the

nationhood power.
SEPERATION OF JUDICIAL POWER
Doctrine of separation of judicial power is an essential feature of a government operating under the
rule of law.
Judiciary is independent of political pressure.
Kable v Director of Public Prosecutions (NSW) Some aspects found to apply certain state
(1996) courts.
Huddart Park and Co v Moorehead (1909) “Judicial power”
S71 in the constitution mean the power which

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ever sovereign must of necessity have to decide

controversies between its subjects, or between
itself and its subjects.
Certain functions of the courts that “are now

established as incontrovertibly and exclusively
judicial in character.
FIVE FUNCTIONS
1) Declaring common law

2) Adjudicating and punishing
3) Criminal guilt
4) Deciding constitutional validity
5) Ascertaining the meaning of statutes
Mabo v Queensland (1992) Since 1968 common law of Australia has been
substantially in the hands of the courts
Australian Communications and Media ACMA – no judicial body was not permitted to
Authority v Today FM (2015) decide as to whether there was a criminal
offence.
Duncan v NSW (2015) Cancelled three mining licenses – ICAC – invalid

amounted to an exercise of judicial power by
the NSW parliament.
Project BlueSky v ABA (1998) Duty of the court is to give the words of a
statutory provision meaning that the legislature
is taken to have intended them to have.
ENFORCEABILITY
Judicial findings are binding and enforceable.
Brandy v Human Rights and Equal Opportunity HEROC – given the power to register its
Commission (1995) decisions
Federal Commissioner of Taxation v Munro The concept of judicial power includes

(1926) enforcement: the capacity to give a decision
enforceable by execution.
R v Davison Order made for payment of money is made in

exercise of judicial power
Attorney General (Cth) v Alinta (2008) Characterised non judicial

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BINDING AND CONCLUSIVE
Involves making “final and conclusive” decisions about “existing rights”
Confusion = determinations of facts
Administrative bodies to come to conclusion fact and law if an appeal to the court is available.
NEED FOR CONTROVERSY
Settle a controversy more likely to be a judicial decision must be a “matter” not an advisory opinion.
R v Davison (1954) – making of the order of judicial function
BREADTH OF NATURE OF DISCRETION TO BE EXERCISED
Examine the extent of discretionary powers conferred upon the relevant decision-maker.
R v Spicer
Industrial and administrative
Broad discretionary power
Thomas v Mowbray
Attacked the decision making process
DECISIONS REGARDING EXISTING RIGHTS AND DUTIES
Creation of new rights and duties is a characteristic of non-judicial decisions.
THE STATES IN THE FEDERATION
INCONSISTENCY
Federal systems by their very nature, share power to legislate over the territory and inhabitants of
jurisdictions.
Mechanisms for resolving conflicts.
Commonwealth largely shares the subject matters over which it exercises legislative power with the
states; very few commonwealth powers are exclusive.
S109 – Commonwealth prevails.
3 Broad Issues with s109:
(1) What is a “law” for the purpose of s109 inconsistency?

(2) What does “invalid” mean for the operation of the state law?
(3) When does an “inconsistency” arise?

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WHAT IS A LAW FOR THE PURPOSE OF S109
Acts of parliament are treated as “laws” for the purpose of s109.
Subordinate laws included.
McLean (1930) – commonwealth statutes that empowers the award. Administrative orders are not
treated as laws.
S109 “law” does not refer to the common law.
MEANING OF INVALIDITY
An inconsistent state law will be “invalid to the extent of inconsistency”
Wenn v Attorney-General for Victoria (1948) – High Court found inconsistency between state and
federal legislation.
TESTS FOR INCONSISTENCY
Must be established that valid laws are in fact operative on the subject matter in question.
IMPOSSIBILITY OF SIMULTANEOUS OBEDIENCE
Early – inconsistency to situations where it was impossible to obey the state law and the
commonwealth law.
McBain v Victoria – simultaneous obedience test.
CONFERRAL OF RIGHTS
“Conferral of Rights” developed after Engineers – inconsistent when a state law “takes away a right
conferred” impairs or detracts from the operation of federal law.
INDIRECT INCONSISTENCY COVERING THE FIELD
Inconsistency where the text of the factual operation of the laws does not generate actual conflict.
“Cover the field” – test
McLean (1930) – depends on the intention of paramount legislation to express by its enactment.
Clyde Engineering
(a) Identify or charactised the field

(b) State law attempts to regulate a field which the commonwealth intends to cover
(c) Two laws overlap ascertain if the commonwealth intended to cover the field. Did the
commonwealth intend its law to be the only one on the subject matter in question.
IDENTIFICATION OF THE FIELD
Characterising the subject matter of the competing legislative regimes.

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O’Sullivan v Noarlunga Meat (1954) – premise “slaughtering stock for export” – wider subject matter
the court cast the “fields” as overlapping.
Airlines of NSW v NSW (No. 2) – prohibited the operation of certain commercial air operations.
“Field” narrow reducing overlap.
OVERLAPPING FIELDS: SUBJECT MATTER APPROACH
Ansett Transport Industries v Wardley (1980) – “Subject matter approach”
Commercial Radio Coffs Harbour v Fuller (1986) – “cover the field inconsistency between
Broadcasting and Environmental”
Commonwealth found that the laws at issue were directed towards quite different purposes.
AMP Society v Goulden (1986) – subject matter approach not taken.
COMMONWEALTH INTENTION TO COVER THE FIELD
Is no indirect consistency if it is found that the commonwealth does not intend to cover its field as
the exhaustive expression of law on the subject matter.
EXPRESS INTENTION
Commonwealth can legislature to indicate its intention to cover the field and can thus
“manufacture” indirect inconsistency.
Wen v Attorney General for Victoria
R v Credit Tribunal
Majority in the case found that the commonwealth could express that there was no intention. S75
Trade Practises Act 1974
IMPLIED INTENTION
Ascertain Parliament’s implied intention: did the Cth intend or not intend to cover the field.
INCONSISTENT CRIMINAL LAWS
Conflicting penalties for criminal conduct are often a source of inconsistency.
McLean – indicates Cth over state.
Dickson v The Queen (2010) – subject matter directly inconsistent.
INTERGOVERNMENTAL IMMUNITIES
Essential for constitution to regulate legal relationships between the regional governments and the
central government.

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High Court – early years – immune to each other.
Rejected Engineers Case
Power of Federal not limitless
CROWN IMMUNITY
Issue – rebutted crowns immunity
EARLY LAW: DOCTRINE OF IMPLIED IMMUNITY
Demden v Pedder (1904) – established principle that the commonwealth and its officers were
impliedly immune from state legislation.
ENGINEERS CASE
1920 – vocal minority evinces their disapproval of the implied immunity doctrine.
Interpreted natural meaning – limitations on the scope of those heads of power would not be
implied. Authorised cth the pass legislation which bound state government instrumentalities.
COMMONWEALTH LEGISLATIVE POWER OVER THE STATES
The extent of which they can – head of power breaches prohibitions.
STATE BANKING CASE
Impunged law was s48 of the Banking Act 1945 provided that a bank could not engage in business
with a state government without consent.
S48 locked a head of power
(a) Discriminate
(b) Fundamentally impede the state
DISCRIMINATORY LAWS
Found that s48 breached restriction on discriminatory laws, singled out states.
Queensland Electricity Commission – principle prohibits discrimination against a particular state.
LECTURE NOTES !!!
EXPRESS LIMITIS ON POWER
The commonwealth constitution contains a few express guarantees of individual rights:
 A right to just compensation if one’s property is compulsorily acquired (s51(xxxii))

 A limited right to trial by jury s80
 Freedom of religion (s116)

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 Freedom from discrimination based on state residence. (s117)
Street v Queensland Bar Association (1989) – signalled the adoption of a broad substantive
interpretation of the provision.
ACQUISTION OF PROPERTY ON JUST TERMS – SECTION 51(XXXI)
Serves a dual purpose is an enabling provision as it confers legislature power on commonwealth

parliament to compulsorily acquire property for certain purposes. However they can only be
acquired “on just terms”
Dual Purposes:
 ENABLING: Acquire property

 PROHIBITING: Must be on just terms
“PROPERTY” FOR THE PURPOSES OF S51(XXXI)
Interpreted broadly:
Dalziel (1944) – Cover rental payments and lost profits.
Real and personal property, incorporeal hereditaments, such as rent and services, rights of way,
rights way of profits, or use in land of another and choses in action.
Minister for the Army v Dalziel (1944) – Dalziel lessee of vacant land in Sydney commercial carpark.
Army took possession, not payments. Dalziel claimed compensation – held property includes all
property interests.
ICM Agriculture v Commonwealth (2009) – statutory licences were found to be “property” – water
common property.
Wurridjal v Commonwealth (2009) – Cth concerned– legislation impacted on proprietary rights,

abolished permit situation. No acquisition.
“ACQUISITION OF PROPERTY’: A COMPOUND CONCEPTION
The relevant “acquisition” does not have to be by commonwealth directly, though it must be
affected by a law of the commonwealth.
PJ Magennis v Cth (1949) – relevant acquisition was made under CTH.
ACQUISITION VS DEPRIVATION: WHAT NEEDS TO BE ACQUIRED?
Bank Nationalism Case (1948)
- issue of substance rather than form.

- Power to dispose of the business of the bank was an acquisition
- Beneficial enjoyment and control has been placed in the commonwealths hands.
Tasmanian Dam Case (1983)

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- Prohibited certain activities an “identified property”

- By preventing activity on Crown land, the Cth did not acquire property.
New Crest v Mining (1997)
- Mining tenements acquired

- Commonwealth received a proprietary benefit in the minerals
JT International v Cth [2012]
- Plain packaging of cigarettes

- Acquisition of property by benefits
- Acquisition has to have proprietary interest.
COMMON LAW CHOOSES IN ACTION
Intangible rights of property enforceable in a court of law.
Georgiadis v Australian and Overseas Telecommunications Corporation (1994)
- Right to sue for compensation acquired as property. Telecommunication found to acquire a

benefit
- Statutory proprietary rights
HIC v Peverill (1994)
- Right to statutory payment found to not to be acquisition because of inherent suscepitibility

of variation
- Statutory rights, cth creates and can vary, eliminate.
- (
JUST TERMS
Market value – not always sentimental
Fairness approach (Nelungaloo) balancing of each party. Full compensation model (Smith)
Mere deprivation of “taking” of property rights from somebody does not activate the “just terms”.
Acquisition of some sort of proprietary interest.
EXCEPTIONS S51(XXXI)
- ‘Inherent exceptions’ tac sequestration, crime.
The Ophanous Commonwealth
- Convicted corrupt behaviour took away superannuation and public interest.
Nintendou Centronic (1994)
- Copyright is subject to contrary intention.

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Airservices Australia v Canadian Airlines International (1999)
- Statutory lien, pay fees and services

- Various reason does not attract s51 (xxxI)
SECTION 80 RIGHT TO TRIAL BY JURY
NATURE + DEVELOPMENT
Summary and indictable, state has jurisdiction. Commonwealth has limitation.
NARROW INTERPRETATION
R v Benasconi (1915) – does not apply to terrotoriities
R v Archdoll – only to offences commonwealth makes triable by indictment
Kingswell v R (1985)
Hayne J; a law regards
Majority: leave it to parliament
Cheng Cheng and Chan v The Queen (2000)
Depends on the parliament.
Brown v R (1986)
May not be alight at all, cannot be waved. Community not individual
S16 FREEDOM OF RELIGON
Four elements:
1) Cannot establish a religion

2) Impose any religious observance
3) Prohibit free exercise of religion
4) No religious test shall be required as a qualification
DEFINITION OF RELIGON
Jehovah Witness v Cth (1943)
Conduct, doctrine, ritual, observance – all concepts
Church of New Faith v Commissioner of Payroll Tax (1980)
Belief of supernatural being, thing or principal.
Meaning purpose and way of life.

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ESTABLISHMENT OF RELIGON
No single religion
Defence of Government Schools
- Challenged financial grants to private schools

- Barkwick CJ: ‘establishment religon’ the adoption of religion as an institution of the cth.
- Stephen J – national church favoured
- Mason Wilson JJ – ‘official religion of state’
PROHIBITING
Kruger v Williams (1912)
Against religious beliefs, conscription doesn’t prohibit.
Adelaide Company of Jehovah Witness v Cth. (1943)
Declaration governor general
Not constitutionally valid limited for public interest.
Kruger v Commonwealth (1997)
Stolen generations – prevented of exercise of religion.
REQUIREMENT OF RELIGIOUS TEST
Williams v CTh. (2012)
Funding QLD
Contract
S 117 DISCRIMINTATION ON THE BASIS OF STATE RESIDENCE
Lead up to federation and the economic union, cannot discriminate. Rationale individuals go freely.
Davis v Jone (1904) Narrow – domincile reside particular place
Henry v Boehm (1973) Barrister have to live in SA for 3 months
Discrimination had to be direct, HC applied on

all individuals.
Street v Queensland Bar (1989) Barrister cease practice, move to QLD
Challenged
Test HC – indirect compared hypothetical of

individuals state

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Does not invalidate law it makes a person

immune from it.
Sweedman v Transport Accident Commission Not overturned Street

(2006)
Involved car accident.
Not apply s117 only registration car not citizen

resident.
EXCEPTIONS TO S 177
Gary v Greyhound Australia
- MCHUGH – test necessary implication
S 41 EXPRESS RIGHT TO VOTE
IMPLIED LIMITS ON POWER
High court has recognised that rights may also be implied from the text of the constitution.
Necessarily implied by those provisions. Freedom of political communication as well as the right to
vote are necessarily implied by those provisions.
Main Approach:
Engineers – not individual words but broader context. Purpose and objects. Necessary implication
not on level non-viable.
Read in implication.
IMPLIED FREEDOM OF POLITICAL COMMUNICATION
SOURCE
Australia Capital Television - Prohibited political advertisement

- Broadcasters 90% of the time
- 10% non sitting parties
- No advertising trad unions
Nationwide News v Wills (1992) - Regulations that banned ‘bringing the

industrial relations commission into
disrepute’
- Article – AUSTRALIAN – industrial
relations commission
- Corrupt labour judges
- Prosecuted under the Act

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3 POINTS OF VIEW
BROAD
- Text and structure of the constitution establish representative democracy
NARROW
- Implication must appear from the terms of the instrument it self
MIDDLE
- Meaning interpreted and informed by conceptions and responsible government. Not just
election.
DEVELOPMENT SOURCE
Lang v Australian Broadcasting Corporation (1997)
- Sue defanamation – s7 and s24

- The constitution gives effect to representative government only to the extent that the text
and structure of the constitution establish it.
- Representative government and democracy.
THE SCOPE OF THE FREEDOM
How do you apply the test?
FIRST STAGE: ‘Does the law effectively burden freedom of communication about government or
political matters in terms
Q2. States and territories
The Ophanous Cannot be subdivided
Lange States protected – broad
Coleman v Power Includes state
Watton v Queensland National not state
Unions v NSW Complex relationship
Q3. What counts as communications
Levy Relates to images – non verbal forms ‘false,

unreasoned and emotional
Colemen v Power Insults
Unions v NSW Donations form of political communication

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SECOND STAGE: ‘Burden justifiable limit on political communication’ Lange
Amendment in a manner: Coleman
Compatible test: representative and responsible isn’t end of matter and whether means adopted
what law is doing achieve end.
Reformulation: Test in Lange far to subjective.
INDIGENOUS AUSTRALIANS
The constitutional framework for Australian legal system has been silent on the recognition and
rights of its first people.
SOVEREIGNTY ISSUES
Indigenous never ceded sovereignty to the British. No treaties and negotiations took place.
Captain Cook – no consent
Governor Phillips – 1788 – no stipulation that the rights of indigenous people be upheld. New colony
was sovereign domain.
Mabo v Queensland (No. 2) w/o settled law, the law of England, include common law became the
law of the colony
Cooper v Stuart (1889) – Privy council said NSW – “practically unoccupied, w/o settled inhabitants or
settled law” enlarged concept of Terra Nullius become the foundation upon which the development
of Australia’s settlor law was built.
Advisory Opinion on Western Sanard (1975) – inhabited land may be classified as Terra Nullius no
longer commands

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Constitutional EXAM Notes

Constitutional Law (University of Wollongong)

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INTRODUCTION BASIC CONCEPTS

The Australian Constitution is from Britain.

 Many principles embedded are from Britain.

LEGISLATURE – Branch of government that makes law

EXECUTIVE – Applies the law

JUDICIARY – Interprets the law

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The legislature democratically elected is a fundamental element. Ss 2, 24 of the constitution. Both

PARLIAMENTARY CONTROL OF SUPPLY:

TIME LINE DIAGRAM

Federal/State invalid and will be void in its entirety.

New South Wales v Commonwealth Sustained uncertainty strictly textually by

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particular judge’ perceptions.

Western Australia v Commonwealth S 7 state: shall be composed

S 122 to the extent and on which it thinks fit

Majority read down s 7

Minority read down s 122

Broad interpretation – outside and Narrow – within.

No one definitive rule rather number of techniques.

Least amount of judicial innovation and potential judicial law making.

Will not give rise to controversy

Stands to reason and practical approach.

Sometimes not sufficient – two provisions contradict

Also look at words in their context meaning.

Amaigamated Constitutional interpretation should be based on express provisions rather

Majority of judges also used contextual interpretation to justify their

MURPHY: “representation” multiple times in the constitution and

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Textual approach majority very broad interpretation.

Two limbs of s44(1) – first voluntary taking allegiance to another country

At common law “give effect to the intention of the law maker”

Interpret more dynamic manner, living tree approach.

Judges are unelected.

S 128 empowers the present generation to change the constitution.

Many taken from British and US constitution

Particular provision borrowed, look at various approaches from guidance.

Normally dominate legislature and executive.

May influence judicial decision to avoid a bad alternative

Influence of personal values.

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Let the decision stand, follows precedent.

High court not bound by previous decisions.

Most judges will follow unless it is ‘plainly wrong’.

Melbourne Corp v Cth (1947) – implied state immunities.

Differs judge to judge.

CHARACTERISATION OF COMMONWEALTH LAWS

True character of legislation comes within a head of power.

History explains – intention weak central, strong state.

High Court 1903 – 3 judges

THE RESERVE STATE POWERS DOCTRINE. R V BARGER

THE ENGINEERS CASE

Majority championed a legalistic literal approach – ideological

Underpinnings – grant “too much” power to new central government.

Fairfax v Question as to the true nature and characterisation of the legislation.

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2 additional judges added in 1906.

S 51 – each head under s 52 has an implied incidental power. Grannall v Marrickville

Express incidental applies judiciary and executive