Principles of Australian constitutional law [Fifth edition.] 9780409341959, 0409341959

Table of contents :
Full Title
Copyright
Foreword
Author Contribution
Disclaimer
Acknowledgments
Table of Cases
Table of Constitutional Provisions
References
Table of Contents
Chapter One: The Fundamentals of Australian Constitutional Law
Introduction
Australian constitutionalism
Federalism
Parliamentary supremacy
Judicial review
Separation of powers
Responsible government
A constitutional monarchy?
Independence
Who are ‘the people’?
Constitutional change
Chapter Two: Constitutional Method
Introduction
Principles of constitutional interpretation
Characterisation
Precedent
The consequences of invalidity
Chapter Three: Introduction to Australian Federalism
Introduction
Implied immunity
After the Engineers’ case
Concurrent powers and exclusive powers
Special powers
‘Full faith and credit’
References, co-operation and uniform legislation
Chapter Four: The States and the Constitution
Introduction
Legislative power of the states
Extraterritorial power
State power to regulate the Commonwealth
State constitutional limits on state constitutional power
Chapter Five: The Constitution and the Territories
Introduction
Limits on the territories power
Territory self-government
Chapter Six: Trade, Commerce and Intercourse and the Constitution
Introduction
The trade and commerce power
Interpretation of the power
Trade and commerce ‘with other countries’
Trade and commerce ‘among the States’
Characterisation
Freedom of trade, commerce and intercourse among the states
The scope of s 92
Chapter Seven: Taxation under the Constitution
Introduction
‘Taxation’
Fees that are not taxes
Discrimination and preference
Section 55: ‘Tacking’ in tax laws
Section 114
Excise
Chapter Eight: The Constitution and Corporations
Introduction
‘Foreign’, ‘trading’ or ‘financial’ corporations
Character determined by actual or intended activities
‘Formed within the limits of the Commonwealth’
The scope of the corporations power
Chapter Nine: The Constitution and the Races Power
Introduction
What is a ‘race’?
The purpose of the races power
Characterisation
Constutional recognition
Chapter Ten: External Affairs and the Constitution
Introduction
Geographic externality
Australia’s international relations, obligations and concerns
Implementation of treaty obligations
Matters of ‘international concern’
Relations with other countries
What are the limits on the external affairs power?
Chapter Eleven: Acquisition of Property on Just Terms under the Constitution
Introduction
Property
Acquisition
Just terms
‘In respect of which the Parliament has power to make laws’
Chapter Twelve: The Conciliation and Arbitration Power under the Constitution
Introduction
Industrial dispute
‘Extending beyond the limits of any one State’
Conciliation and arbitration
Characterisation
Chapter Thirteen: The Federal Executive Power under the Constitution
Introduction
The Executive
Executive power of the Commonwealth
The execution and maintenance of Commonwealth laws
The ‘execution’ of the Constitution
The ‘maintenance’ of the Constitution
Prerogative powers
The ‘nationhood’ power
Capacities of the Crown
Executive immunity
Chapter Fourteen: Appropriations, Grants and the Management of State Debts
Introduction
Commonwealth appropriations
Grants to the states
Management of state debts
‘Fiscal federalism’
Chapter Fifteen: Trial by Jury under the Constitution
Introduction
Limits on s 80
The scope of the guarantee
Chapter Sixteen: Freedom of Religion under the Constitution
Introduction
What is a ‘religion’?
The ‘establishment’ clause
Imposing religious observance
Free exercise of any religion
No religious test required
Chapter Seventeen: The Constitutional Prohibition on Discrimination on the Grounds of State Residence
Introduction
The early approach
A new approach to s 117
Chapter Eighteen: Freedom of Political Communication under the Constitution
Introduction
The early cases
The breakthrough
Freedom of political communication post-McCloy: The new three-step Lange test
Other implied freedoms?
Chapter Nineteen: Judicial Power of the Commonwealth
Introduction
Powers that are incidental to the exercise of judicial power
What are ‘courts’?
‘Judicial power’
Rights arising from the separation of judicial power
Exceptions to the fundamentals
Chapter Twenty: The Constitutional Jurisdiction of the High Court
Introduction
The appellate jurisdiction of the High Court
The original jurisdiction of the High Court
The High Court’s constitutional jurisdiction
The cross-vesting scheme
Chapter Twenty-one: Inconsistency of Laws under the Constitution
Introduction
Laws must be valid and operative
Inconsistency
Repugnancy of laws in the territories
Invalidity — the consequences of s 109 inconsistency
Chapter Twenty-Two: The Defence Power under the Constitution
Introduction
‘The naval and military defence of the Commonwealth’
Nature and operation of the defence power
Wartime
Transition from war to peace
Peacetime
Preparation for war
Characterisation
Limits on the power?
Commonwealth of Australia Constitution Act (‘the Constitution’)
Australia Act 1986
Index

Citation preview

Principles of Australian Constitutional Law Fifth Edition

Patrick Keyzer BA (Hons), LLB (Hons), LLM, PhD (Syd) Barrister, High Court of Australia Head of the Law School and Chair of Law and Public Policy La Trobe University

Christopher Goff LLB (Hons), BPsychSc (Griff), LLM (Hons) (Bond) Faculty of Law Bond University

Asaf Fisher BA Communication (Social Inquiry), LLB (Hons) (UTS), LLM (Columbia)

LexisNexis Butterworths

Australia 2017

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Other Authors/Contributors:

Keyzer, Patrick. Principles of Australian Constitutional Law. 5th edition. 9780409341959 (pbk). 9780409341966 (ebk). Includes index. Constitutional law—Australia. Goff, Christopher. Fisher, Asaf.

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 1998; second edition, 2005 (Butterworths Tutorial Series: Constitutional Law); third edition, 2010; fourth edition, 2013. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Helvetica and Palatino. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Foreword to the First Edition The Law of the Constitution underpins the entirety of our legal system. It distributes the power to make the laws by which we are governed and it prescribes the organs of government by which those laws are implemented and enforced. At base, constitutional law is a part of the common law for it is the common law which Sir Owen Dixon identified as the ‘anterior law providing the sources of juristic authority for our institutions’.1 It is the common law which creates the concepts and general functions of a parliament, an executive and a judiciary which the Constitution of the Commonwealth and the Constitutions of the several states take and mould. The most basic constitutional concept of the common law — the concept which underpins such order and freedom as can be enjoyed in our society — is the concept of the supremacy of the law: the ability of the law and of the agencies of the law to protect society and its members from oppression by many kinds (albeit not by every kind) of power. Hence the study of constitutional law is the study of the authority and working of the several organs of government to which the law entrusts the responsibility of securing order and freedom in our society. The study is relevant not only to the law student but to all who seek to understand the dynamics of our society. The key instrument in this study is the Constitution of the Commonwealth. It owes its origin, if not its contemporary force, to an enactment of the Imperial Parliament. Its text, often times spare, needs

to be expounded to be fully understood. Its implications need to be spelt out if its text is not to be misapplied. Patrick Keyzer has employed his intimate familiarity with the judicial considerations of that Constitution to develop a logical, integrated exposition of its provisions. The fields of operations of its several provisions, the cases in which they have been considered and the problems that they raise are clearly displayed. More importantly, the underlying principles and approaches that inform the ever-growing law of the Constitution have been examined. The work goes beyond the needs of the student and guides the researcher into the correct frames of constitutional reference. I am grateful to Patrick Keyzer for his assistance to me when I was engaged in the writing of judgments in constitutional matters; and I appreciate his abstaining from publication while I was in office. At least that delay has ensured that his manuscript brings the reader up to date with Commonwealth constitutional law at the present stage of its development. Gerard Brennan

1.

Chambers Sydney 16 July 1998

Sir Owen Dixon, ‘The Common Law as an Ultimate Constitutional Foundation’, in Jesting Pilate, William S Hein and Co Inc, Melbourne, 1965, p 203.

Author Contribution This is the fifth edition of Principles of Australian Constitutional Law. Professor Patrick Keyzer was responsible for the first four editions of this popular book (1998–2013). This edition has been written by Patrick Keyzer, Christopher Goff and Asaf Fisher. Most chapters in this edition build on Patrick’s past work, but some have been substantially updated to reflect new developments in the law. A brand new chapter on defence has also been included. In the production of this edition, Patrick Keyzer was responsible for Chapter 7 and for reviewing all chapters. Christopher Goff was responsible for Chapters 1–6, 8–10, 12–14 and 16–18. He also prepared the new chapter on defence (Chapter 22). Asaf Fisher was responsible for Chapters 11, 15 and 19–21. He also carried out some preliminary work on Chapter 5. The authors accept responsibility for any errors or omissions in their respective chapters.

Disclaimer Asaf Fisher is a Senior Lawyer at the Australian Government Solicitor (AGS). The views expressed in this book are not necessarily the views of the AGS.

Acknowledgments I would like to thank a number of people for assisting me with the fifth edition of Principles of Australian Constitutional Law. Thanks to Christopher Goff and Asaf Fisher for joining me for this edition. It has been a pleasure working with you. Thanks to Natasha Broadstock and Felicia Gardner for their eagleeyed editing. Most of all, thanks to Suzie, Gemma and Tim O’Toole for their love and support. Patrick Keyzer La Trobe University October 2016 First and foremost, I would like to acknowledge and thank Charmaine Goff and Philip Goff for their love and support. I would also like to express my gratitude to Natasha Broadstock for her careful editing of the manuscript and for accommodating my final corrections. My thanks also to the team at LexisNexis. Finally, I would like to thank Patrick Keyzer for entrusting a large portion of his book to me. Christopher Goff Bond University

October 2016 I want especially to thank Patrick Keyzer. Close to 15 years ago, I stepped into his constitutional law class at the University of Technology, Sydney, and he has been my teacher ever since. Few people have left as indelible a mark on my development as he has. Asaf Fisher October 2016

Table of Cases References are to paragraph numbers

A A v Hayden (No 2) (1984) 156 CLR 532 …. 19.2 Abebe v Commonwealth (1999) 197 CLR 510 …. 2.11, 20.14 Aboriginal Legal Rights Movement Inc v South Australia (Hindmarsh Island case) (1995) 64 SASR 551 …. 16.4 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 …. 2.21, 8.6, 8.17, 8.19, 8.23 Adam, Re (1837) 1 Moo PCC 460; 12 ER 889 …. 13.19 Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (Jehovah’s Witnesses case) (1943) 67 CLR 116 …. 16.3, 16.4, 16.5, 16.6, 16.13, 22.9, 22.18, 22.38 Air Caledonie International v Commonwealth (1988) 165 CLR 462 …. 7.5, 7.6, 7.8, 7.9, 7.11 Airlines of New South Wales Pty Ltd v New South Wales (No 1) (1964) 113 CLR 1 …. 21.5 — v — (No 2) (Airlines case (No 2)) (1965) 113 CLR 54 …. 6.8, 6.17, 6.18, 10.18, 10.32 Airservices Australia v Canadian Airlines (1999) 202 CLR 133 …. 6.14, 6.18, 6.22, 7.13, 11.18, 11.20, 11.22 Albrecht v Commissioner of Taxation (2013) 97 ATR 761 …. 3.21 — v — (2014) 228 FCR 177 …. 3.16, 3.21 Alcan Australia Ltd, Re; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 …. 12.8, 12.11 Al-Kateb v Godwin (2004) 219 CLR 562 …. 19.52

Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 …. 3.26, 3.27, 7.24, 7.40 Alqudsi v Commonwealth [2015] NSWCA 351 …. 10.8, 10.21, 10.25, 10.30 — v R (2016) 332 ALR 20 …. 15.9, 15.10, 15.11, 15.12, 15.13, 15.14, 15.15, 15.16 Amalgamated Metal Workers Union, Re; Ex parte Shell Co of Australia Ltd (1992) 174 CLR 345 …. 12.9 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) (1920) 28 CLR 129 …. 2.6, 2.7, 2.8, 2.9, 2.11, 2.15, 2.19, 2.24, 2.30, 3.4, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.19, 3.24, 6.7, 6.17, 7.3, 7.30, 8.16, 8.20, 8.26, 21.2, 21.3, 21.12 AMS v AIF (1999) 199 CLR 160 …. 5.18, 6.29, 6.30 Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 …. 7.51 Andrews v Howell (1941) 65 CLR 255 …. 11.23, 11.28, 22.10, 22.12, 22.18 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 …. 18.2 — v Wardley (1980) 142 CLR 237 …. 21.17 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 …. 6.30, 6.41, 18.17, 18.18, 19.40 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 …. 19.60, 19.68 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 …. 13.19, 13.23, 13.26 Attorney-General (Cth) v Breckler (1999) 197 CLR 83 …. 19.22, 19.33, 20.3 — v Colonial Sugar Refining Co Ltd (1913) 17 CLR 644 …. 2.17, 20.25 — v R (1957) 95 CLR 529; [1957] AC 288 …. 1.12, 5.4 — v Schmidt (1961) 105 CLR 361 …. 2.14, 11.2, 11.6 Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 …. 18.31 Attorney-General (NSW) v Commonwealth Savings Bank of Australia (1986) 160 CLR 315 …. 20.22

— v Homebush Flour Mills Ltd (1937) 56 CLR 390 …. 7.7, 7.53 — v Perpetual Trustee Co Ltd (1952) 85 CLR 237 …. 2.29 — v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 …. 3.26 — v Trethowan (1931) 44 CLR 394 …. 4.16 Attorney-General (NSW); Ex rel Tooth & Co v Brewery Employes Union (NSW) (Union Label case) (1908) 6 CLR 469 …. 2.5, 2.9, 3.6, 20.3 Attorney-General (NT) v Chaffey (2007) 231 CLR 651 …. 11.14, 11.20 — v Emmerson (2014) 253 CLR 393 …. 5.7, 5.16, 11.22, 19.62 Attorney-General (Qld) v Riordan (1997) 192 CLR 1 …. 12.14, 12.27 Attorney-General (Qld); Ex rel Goldsbrough, Mort & Co Ltd v Attorney-General (Cth) (1915) 20 CLR 148 …. 7.40 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 …. 18.13, 18.21, 18.25 Attorney-General (Vic) v Commonwealth (Clothing Factory case) (1935) 52 CLR 533 …. 22.9, 22.24 Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR 559 …. 14.10, 16.2, 16.3, 16.4, 16.5, 16.8, 16.16 Attorney-General (Vic); Ex rel Dale v Commonwealth (No 1) (Pharmaceutical Benefits case) (1945) 71 CLR 237 …. 13.29, 14.4, 14.6, 14.8 Attorney-General (WA) v Marquet (2003) 217 CLR 545 …. 4.19 Attorney-General (WA); Ex rel Ansett Transport v Australian National Airlines Commission (1976) 138 CLR 492 …. 6.8, 6.19, 6.20 Austin v Commonwealth (2003) 215 CLR 185 …. 3.16, 3.18, 3.19, 3.20, 3.21, 7.30, 19.9, 19.10 Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 …. 20.20 Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 …. 2.24, 2.30 Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77 …. 11.28 Australian Boot Trade Employees Federation v Whybrow & Co (1910)

11 CLR 311 …. 12.22, 12.23, 12.24, 12.25 — v — (Bootmakers case (No 1)) (1910) 10 CLR 266 …. 21.12 Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 …. 21.17, 21.24 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 …. 2.33, 18.15 Australian Building Construction Employees’ & Builders Labourers’ Federation v Commonwealth (BLF case) (1986) 161 CLR 88 …. 19.37 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 …. 11.11, 18.5, 18.6, 18.10, 18.13, 18.22, 18.23, 18.34 Australian Capital Territory v Queanbeyan City Council (2010) 188 FCR 541 …. 7.17, 7.18, 7.53 Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46 …. 6.6 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 …. 19.25 Australian Communist Party v Commonwealth (1951) 83 CLR 1 …. 1.10, 1.11, 13.11, 13.16, 13.17, 13.19, 13.27, 13.28, 13.29, 19.2, 22.8, 22.9, 22.11, 22.12, 22.13, 22.16, 22.22, 22.25, 22.34, 22.35 22.36, 22.37 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 …. 19.3 — v Lawler (2008) 169 FCR 327 …. 19.3 Australian Education Union, Re; Ex parte Victoria (1995) 184 CLR 188 …. 3.16, 3.17, 3.21 Australian Insurance Staffs’ Federation v Atlas Assurance Co (1931) 45 CLR 409 …. 12.15 Australian Maritime Officers Union v Sydney Ferries Corporation (2009) 190 IR 193 …. 12.8, 12.11 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 …. 2.12, 5.7, 6.7, 6.15, 6.22, 8.14 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 …. 19.7 Australian Railways Union v Victorian Railways Commissioners

(1930) 44 CLR 319 …. 12.21, 20.3 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 …. 20.19, 20.21, 20.26, 20.27 Australian Steamships Ltd v Malcolm (1914) 19 CLR 298 …. 6.6, 6.20 Australian Tape Manufacturers Association Ltd v Commonwealth of Australia (1993) 176 CLR 480 …. 7.8, 7.9, 11.12, 11.16 Australian Textiles Pty Ltd v Commonwealth (1945) 71 CLR 161 …. 22.11, 22.19, 22.21 Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424; [1954] HCA 20 …. 13.35 Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 …. 8.20 B Bachrach (HA) Pty Ltd v Queensland (1998) 195 CLR 547 …. 19.37, 19.60 Baker v Campbell (1983) 153 CLR 52 …. 2.29 Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1 …. 2.13, 2.21, 2.36, 6.9, 7.39, 11.2, 11.7, 11.9, 11.28, 13.39, 14.13, 16.5, 20.19, 20.21 Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182 …. 6.35, 6.39, 6.42 Barrett v Opitz (1945) 70 CLR 141 …. 19.31 Barton v Commonwealth (1974) 131 CLR 477 …. 13.19, 13.22 — v R (1980) 147 CLR 75 …. 13.24, 20.16 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 …. 19.59, 19.60, 20.15 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 …. 20.2 Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 …. 6.35, 6.38, 6.42 Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 …. 3.5 Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595 …. 21.9 Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283 …. 6.10 Beckwith v R (1976) 51 ALJR 247 …. 15.4

Bennett v Commonwealth (2007) 231 CLR 91 …. 5.21 Berwick Ltd v Gray (1976) 133 CLR 603 …. 5.21, 5.22, 20.24 Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217 …. 6.43, 6.44, 6.45 — v Western Australia (2008) 234 CLR 418 …. 6.42, 6.43, 6.46, 18.25 Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 …. 21.17, 21.29, 21.34 Bluett v Fadden (1956) SR (NSW) 254 …. 20.17 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 …. 20.21 Bolton v Madsen (1963) 110 CLR 264 …. 7.48, 7.52 Bond v R (2000) 201 CLR 213 …. 3.36 Bourke v State Bank of New South Wales (1990) 170 CLR 276 …. 2.14, 8.24 Bourke Appliances Pty Ltd v Wonder [1965] VR 511 …. 6.19 Bradken Consolidated Ltd v The Broken Hill Pty Co Ltd (1979) 145 CLR 107 …. 13.39 Bradley v Commonwealth (1973) 128 CLR 557 …. 10.13 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 …. 5.17, 19.21, 19.22 Breavington v Godleman (1988) 169 CLR 41 …. 1.19, 3.33, 5.4 Breen v Sneddon (1961) 106 CLR 406 …. 22.12 British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 …. 2.35, 7.52, 20.20 British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32 …. 13.23 British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 …. 19.28 British Medical Association v Commonwealth (1949) 79 CLR 201 …. 6.12, 11.11 Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117 …. 19.46 Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 …. 4.10 Bropho v Western Australia (1990) 171 CLR 1 …. 13.39, 13.40 Brown v R (1986) 160 CLR 171 …. 15.8, 15.9, 15.10, 15.11, 15.12, 15.15

— v West (1990) 169 CLR 195 …. 1.13 Brownlee v R (2001) 207 CLR 278 …. 2.11, 15.8, 15.22, 15.23 Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117 …. 7.48 Buchanan v Commonwealth (1913) 16 CLR 315 …. 5.3, 7.24 Buck v Bavone (1976) 135 CLR 110 …. 18.2, 18.3 Building Construction Employees and Builders’ Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372 …. 19.46 Burmah Oil Company (Burma Trading) Limited v Lord Advocate [1965] AC 75 …. 13.23 Burns v Ransley (1949) 79 CLR 101 …. 13.17, 13.19, 13.27, 13.28, 13.29 Burton v Honan (1952) 86 CLR 169 …. 6.14, 11.22 Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528 …. 12.23, 12.26 Butler v Attorney-General (Vic) (1961) 106 CLR 268 …. 21.11, 21.43 Byrnes v R (1999) 199 CLR 1 …. 15.6 C Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 …. 13.22, 13.26 Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (No 1) (1930) 42 CLR 527 …. 12.12, 12.19 Cameron v Deputy Federal Commissioner of Taxation for Tasmania (1923) 32 CLR 68 …. 7.26, 7.32 — v R (2002) 209 CLR 339 …. 19.42 Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1993) 177 CLR 248 …. 5.4, 5.7, 5.20, 7.17, 7.45, 7.53 — v — (No 2) (1993) 178 CLR 561 …. 7.46, 7.47, 7.51, 7.52 Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 …. 5.11, 5.16, 5.17, 19.13, 19.14, 19.15, 20.7 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 …. 20.23 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 …. 21.42, 22.7 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 …. 6.35, 6.40, 6.42, 6.45

Cheatle v R (1993) 177 CLR 541 …. 2.4, 2.11, 15.18, 15.20, 15.21 Cheedy on behalf of the Yindjibarndi People v Western Australia (2011) 194 FCR 562 …. 16.17 Cheng v R (2000) 203 CLR 248 …. 2.30, 15.3, 15.4, 15.5 Cheung v R (2001) 209 CLR 1 …. 15.4 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 …. 1.20, 5.17, 10.12, 10.18, 13.20, 19.40, 19.44, 19.45, 19.49, 19.51, 19.52, 19.59 Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120 …. 16.4, 16.6 City of Collingwood v Victoria (No 2) [1994] 1 VR 652 …. 19.46 City of Essendon v Criterion Theatres Ltd (1947) 74 CLR 1 …. 4.12, 13.22 Clarke v Commissioner of Taxation (2009) 240 CLR 272 …. 3.16, 3.18, 3.20, 3.21, 7.30 Clayton v Heffron (1960) 105 CLR 214 …. 4.17 Clunies-Ross v Commonwealth (1984) 155 CLR 193 …. 5.21, 11.7 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 …. 21.15, 21.16, 21.17, 21.27, 21.30, 21.31 Cockle v Isaksen (1957) 99 CLR 155 …. 20.6 Coe v Commonwealth (1979) 24 ALR 118 …. 1.5, 16.6 Cole v Whitfield (1988) 165 CLR 360 …. 2.10, 2.23, 6.27, 6.31, 6.32, 6.37, 6.38, 6.39, 6.40, 6.42, 6.44, 7.46, 15.11 Coleman v Power (2004) 220 CLR 1 …. 2.7, 2.35, 18.13, 18.15, 18.18, 18.20, 18.23, 18.25, 18.26 Colina, Re; Ex Parte Torney (1999) 200 CLR 386 …. 15.6, 19.6, 21.3, 21.8 Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 …. 20.6, 20.25, 21.17 Colonel Aird, Re; Ex parte Alpert (2004) 220 CLR 308 …. 15.4, 22.30, 22.31 Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 …. 21.17, 21.28 Cominos v Cominos (1972) 127 CLR 588 …. 19.32 Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235 …. 11.11 Commonwealth v Australian Capital Territory (2013) 250 CLR 441 ….

21.39, 21.40, 21.41 — v Australian Commonwealth Shipping Board (1926) 39 CLR 1 …. 22.24 — v Bogle (1953) 89 CLR 229 …. 4.13, 4.14 — v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 …. 2.8, 2.28, 4.13, 4.14, 13.25 — v Colonial Combing, Spinning & Weaving Co Ltd (Wooltops case) (1922) 31 CLR 421 …. 13.17, 13.19 — v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1; [1922] HCA 31.… 19.49 — v Mewett (1997) 191 CLR 471 …. 13.41 — v New South Wales (1923) 33 CLR 1 …. 11.4 — v Queensland (Queen of Queensland case) (1975) 134 CLR 298 …. 19.5 — v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 …. 2.19, 2.21, 3.9, 3.14, 8.12, 8.18, 8.19, 8.20, 8.22, 9.4, 9.7, 9.10, 9.11, 10.4, 10.14, 10.17, 10.18, 10.19, 10.20, 10.23, 10.24, 10.25, 10.33, 11.16, 16.5 — v Western Australia (1999) 196 CLR 392 …. 11.10, 11.11, 11.28, 13.39, 21.43 — v WMC Resources Ltd (1998) 194 CLR 1 …. 11.20 Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 …. 7.4 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171 …. 8.3, 8.4, 8.8, 8.22 Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd (1989) 63 ALJR 517 …. 20.23 Conroy v Carter (1968) 118 CLR 90 …. 7.27 Cooper v Stuart (1889) 14 App Cas 286 …. 1.5 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 …. 13.23 Cox v Tomat (1972) 126 CLR 105 …. 4.8 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 …. 1.20, 13.6, 13.20

Cram, Re; Ex parte New South Wales Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 …. 3.36, 12.7, 20.25 Cram, Re; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 …. 19.24 Crampton v R (2000) 206 CLR 161 …. 21.34 Crandall v Nevada 73 US 35 (1867) …. 18.30 — v State of Nevada 6 Wall 35 (1868) …. 6.26 Criminal Proceeds Confiscation Act 2002, Re (2004) 1 Qd R 40 …. 19.54 Crittenden v Anderson (1950) 51 ALJ 171 …. 16.18 Croome v Tasmania (1997) 191 CLR 119 …. 20.2, 20.22, 21.34 Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 …. 20.20 Crowe v Commonwealth (1935) 53 CLR 69 …. 6.16, 7.28, 13.15 Cunliffe v Commonwealth (1994) 182 CLR 272 …. 2.21, 6.28, 6.29, 10.18, 16.4, 18.13, 18.30 D Dahms v Brandsch (1911) 13 CLR 336 …. 20.20 Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390 …. 6.36 Dao v Australian Postal Commission (1987) 162 CLR 317 …. 21.24 Davies and Jones v Western Australia (1904) 2 CLR 29 …. 17.3, 17.4, 17.5 Davis v Commonwealth (1986) 68 ALR 18 …. 20.2 — v — (1988) 166 CLR 79 …. 5.7, 13.19, 13.30, 13.32, 13.35, 18.4, 18.6, 18.11 Dawson v Commonwealth (1946) 73 CLR 157 …. 2.21, 22.17, 22.19, 22.20 Day v Australian Electoral Officer for the State of South Australia [2016] HCA 20 …. 18.29 De Keyser’s Royal Hotel Ltd v R [1919] 2 Ch 197 …. 13.23 Deakin v Webb (1904) 1 CLR 585 …. 3.5 Deaton v Attorney-General (Ire) [1963] IR 170 …. 19.44 D’Emden v Pedder (1904) 1 CLR 91 …. 2.38, 3.5, 3.8, 6.12 De Mestre v Chisholm (1944) 69 CLR 51 …. 22.18

Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 …. 7.49, 7.50, 7.52 Deputy Federal Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219 …. 7.40, 7.41, 7.42 — v WR Moran Pty Ltd (1939) 61 CLR 735 …. 7.32, 14.10 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 …. 7.49, 7.50 Dickson v R (2010) 241 CLR 491 …. 21.17, 21.19, 21.27, 21.34, 21.35 Dietrich v R (1992) 177 CLR 292 …. 19.39 Dingjan, Re; Ex parte Wagner (1995) 183 CLR 323 …. 2.20, 2.21, 6.20, 8.6, 8.19, 8.20, 8.22, 8.23, 8.25 Director of Public Prosecutions, Re; Ex parte Lawler (1994) 179 CLR 270 …. 11.22 Ditfort, Re; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 …. 13.19 Duncan v New South Wales (2015) 255 CLR 388 …. 4.6, 19.38 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 …. 4.5, 4.6, 11.4 Dymond, Re (1959) 101 CLR 11 …. 7.22 E E v Australian Red Cross Society (1991) 27 FCR 310 …. 8.12 East, Re; Ex parte Nguyen (1998) 196 CLR 354 …. 20.17 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 …. 12.10, 12.11 Elliott v Commonwealth (1936) 54 CLR 657 …. 7.28, 7.29, 7.32 Entick v Carrington (1765) 19 St Tr 1030 …. 13.23 Esposito v Commonwealth (2015) 235 FCR 1 …. 14.11 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 …. 2.35, 7.50 Evers v Evers (1972) 19 FLR 296 …. 16.15 Ex-Christmas Islanders Association Inc v Attorney-General (Cth) (2005) 149 FCR 170 …. 5.21 F F, Re; Ex parte F (1986) 161 CLR 376 …. 2.17 Faderson v Bridger (1971) 126 CLR 271 …. 18.12 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 …. 13.8

Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 …. 2.18, 2.19, 2.21, 7.20, 8.20, 8.23 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 …. 19.51, 19.60 Farey v Burvett (1916) 21 CLR 433 …. 13.15, 13.22, 22.3, 22.4, 22.7, 22.8, 22.9, 22.12, 22.13, 22.16, 22.17, 22.26 Federal Commissioner of Taxation v Clyne (1958) 100 CLR 246 …. 11.22 — v Munro (1926) 38 CLR 153 …. 7.34 — v Official Liquidator of EO Farley Ltd (1940) 63 CLR 278 …. 4.12, 4.13, 4.14, 13.21 — v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 …. 2.34 Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (Railway Servants case) (1906) 4 CLR 488 …. 2.38, 3.5, 3.19, 7.41, 20.3 Federated Engine Drivers’ and Firemen’s Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 …. 20.21 Federated State School Teachers’ Association of Australia v Victoria (1929) 41 CLR 569 …. 2.12 Federated Storemen and Packers Union of Australia, Re; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 …. 12.27 Felman v Law Institute of Victoria [1998] 4 VR 324 …. 19.46 Felton v Mulligan (1971) 124 CLR 367 …. 21.7 Fencott v Muller (1983) 152 CLR 570 …. 8.10, 8.16 Ferguson v Commonwealth (1943) 66 CLR 432 …. 22.8, 22.18 Ffrost v Stevenson (1937) 58 CLR 528 …. 5.9 Finch v Telstra Super Pty Ltd (2010) 242 CLR 254 …. 12.9 Flaherty v Girgis (1987) 162 CLR 574 …. 21.6 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 …. 19.17, 19.56 Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548 …. 3.23, 7.30, 7.31 Fraser v State Services Commission [1984] 1 NZLR 116 …. 4.5 Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 …. 19.44

G Gaynor v Chief of the Defence Force (No 3) (2015) 237 FCR 188 …. 18.28 General Practitioners Society in Australia v Commonwealth (1980) 145 CLR 532 …. 7.15, 7.16 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 …. 13.39 George Hudson Ltd v Australian Timber Workers’ Union (1923) 32 CLR 413 …. 12.23, 12.24 Georgiadis v Australian and Overseas Telecommunication Corporation (1994) 179 CLR 297 …. 11.14, 11.17, 16.5 Gerhardy v Brown (1985) 159 CLR 70 …. 9.13, 9.15, 20.16, 20.17 Gibbs v Capewell (1995) 54 FCR 503; 128 ALR 577 …. 9.5 Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365 …. 13.15, 20.23 Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 …. 17.7, 17.8 Gosford Meats Pty Ltd v New South Wales (1985) 155 CLR 368 …. 7.51 Gould v Brown (1998) 193 CLR 346 …. 2.34, 20.25 Governor, Goulburn Correctional Centre, Re; Ex parte Eastman (1999) 200 CLR 322 …. 5.4, 5.13, 5.15, 5.16, 19.13, 19.14, 19.16 Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269 …. 11.2, 11.23, 11.29 Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 …. 13.39 Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 …. 2.17, 6.20 Granall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 …. 2.22, 6.10, 6.11 Gratwick v Johnson (1945) 70 CLR 1 …. 6.27, 22.38 Grollo v Palmer (1995) 184 CLR 348 …. 19.43, 19.70, 19.71 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 …. 19.53, 19.57, 19.60 H

Ha v New South Wales (1997) 189 CLR 465 …. 2.31, 6.23, 7.12, 7.46, 7.47, 7.50, 7.51, 7.52, 14.16, 19.35 Haisman v Smelcher [1953] VLR 625 …. 19.70 Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association (1952) 86 CLR 283; [1952] HCA 38 …. 12.11 Hammond v Commonwealth (1982) 152 CLR 188 …. 15.24 Handlen v R; Paddison v R (2011) 283 ALR 427; [2011] HCA 51 …. 15.25 Harding v Federal Commissioner of Taxation (1917) 23 CLR 119 …. 7.36 Harper v Minister for Sea Fisheries (1989) 168 CLR 314 …. 7.21 — v Victoria (1966) 114 CLR 361 …. 7.12 Harris v Caladine (1991) 172 CLR 84 …. 19.9, 19.41 Haskins v Commonwealth (2011) 244 CLR 22 …. 19.3, 22.33 HC Sleigh Ltd v South Australia (1977) 136 CLR 475 …. 2.26, 2.31, 7.49, 7.50 Health Insurance Commission v Peverill (1994) 179 CLR 226 …. 11.17 Heart of Atlanta Motel v United States 379 US 241 (1964) …. 6.21 Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502 …. 6.18 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 …. 7.16, 7.51, 7.53 Hempel v Attorney-General (Cth) (1987) 29 A Crim R 133 …. 10.29 Henry v Boehm (1973) 128 CLR 482 …. 17.4, 17.5 Hilton v Wells (1984) 157 CLR 57 …. 19.57, 19.69, 19.70, 19.71 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 …. 18.18, 19.39 Hinds v R [1977] AC 195 …. 19.44 Hogan v Hinch (2011) 243 CLR 506 …. 18.13, 18.18, 18.19, 19.43 Hooper v Hooper (1955) 91 CLR 529 …. 19.31 Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 …. 20.22 Horta v Commonwealth (1994) 181 CLR 183 …. 10.7, 10.33 Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1 …. 6.36 Hoxton Park Residents Action Group Ltd v Liverpool City Council (2015) 294 FLR 254 …. 16.11 Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 …. 3.6,

8.13, 8.15, 8.16, 8.22, 8.23, 13.22, 15.24, 19.20, 19.23, 19.24, 20.16, 20.25 Huddart Parker Ltd v Commonwealth (1931) 44 CLR 492 …. 6.14, 6.15 Hughes & Vale Pty Ltd v New South Wales (1953) 87 CLR 49 …. 2.26, 2.27 Hume v Higgins (1949) 78 CLR 116 …. 22.9 — v Palmer (1926) 38 CLR 441 …. 20.22, 21.30, 21.31, 21.32, 21.33, 21.34 Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 …. 9.9 HV McKay Pty Ltd v Hunt (1926) 38 CLR 308 …. 21.30 I ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 …. 11.16, 14.11 Illawarra District County Council v Wickham (1959) 101 CLR 467 …. 22.21 Informax International Pty Ltd v Clarius Group Limited (No 2) (2011) 214 IR 80 …. 12.3 Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 …. 7.41 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 …. 19.43, 19.54, 19.59, 19.60 J Jaffarie v Director-General of Security [2014] FCAFC 102 …. 22.27 James v Commonwealth (1936) 55 CLR 1 …. 6.5, 6.24, 6.25 — v South Australia (1927) 40 CLR 1 …. 20.22 Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 …. 21.15, 21.17, 21.19, 21.27, 21.30, 21.40 John v Federal Commissioner of Taxation (1989) 166 CLR 417 …. 2.29 John Cooke & Co Pty Ltd v Commonwealth (1924) 34 CLR 269 …. 11.15 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 …. 19.43 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 …. 3.34

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 …. 19.46 Johnston Fear & Kingham v Commonwealth (1943) 67 CLR 314 …. 11.3, 11.26, 11.28, 13.22, 22.38 Jones v Commonwealth (1987) 61 ALJR 348 …. 2.30 JT International SA v Commonwealth (2012) 250 CLR 1 …. 6.14, 11.13, 11.16 Judd v McKeon (1926) 38 CLR 380 …. 16.12, 18.12 Judiciary Act 1903–1920, Re (1921) 29 CLR 257 …. 2.36, 20.10, 20.22, 20.25 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 …. 2.12, 8.20, 10.3, 12.16, 12.18, 12.20 K Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 …. 4.5, 4.6, 4.18, 5.7, 5.13, 5.14, 5.17, 19.5, 19.16, 19.17, 19.37, 19.43, 19.45, 19.46, 19.47, 19.48, 19.49, 19.51, 19.52, 19.53, 19.54, 19.56, 19.57, 19.59, 19.60, 19.61, 19.62, 19.63, 19.64, 19.65, 19.66, 19.67, 19.68, 20.2, 20.21 Kariapper v Wijesinha [1968] AC 717 …. 19.38 Kartinyeri v Commonwealth (Hindmarsh Island Bridge case) (1998) 195 CLR 337 …. 1.3, 1.9, 2.18, 9.7, 9.9, 9.10, 9.12, 9.14, 9.17, 22.4 Katsuno v R (1999) 199 CLR 40 …. 15.21 Kerrison v Melbourne City Council (2014) 228 FCR 87 …. 18.14 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 …. 19.60 Kingswell v R (1985) 159 CLR 264 …. 2.30, 15.4, 15.5, 15.6 Kiorgaard v Kiorgaard and Lange [1967] Qd R 162 …. 16.15 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 …. 19.55, 19.68 Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 …. 10.28 — v — (No 2) (1985) 159 CLR 461 …. 20.8 Koon Wing Lau v Calwell (1949) 80 CLR 533 …. 22.9 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 …. 9.6, 9.8, 9.9, 9.10, 9.11, 9.13, 9.15, 10.4, 10.19, 10.22, 10.23, 10.24, 10.30, 10.33, 13.22

Kruger v Commonwealth (Stolen Generations case) (1997) 190 CLR 1 …. 1.3, 1.4, 1.5, 2.29, 5.16, 5.17, 6.26, 16.2, 16.3, 16.4, 16.15, 16.16, 16.17, 18.1, 18.30, 18.34, 19.40, 19.52, 20.22 Krygger v Williams (1912) 15 CLR 366 …. 16.12, 22.23 Kuczborski v Queensland (2014) 254 CLR 51 …. 19.64, 20.2 Ku-Ring-Gai Co-Operative Building Society (No 12), Re (1978) 22 ALR 621 …. 8.7 L La Compagnie Hydraulique de St Francois v Continental Heat and Light Co (1909) AC 194 …. 3.8 Laker Airways Ltd v Department of Trade [1977] 1 QB 643 …. 13.25 Lambert v Weichelt (1954) 28 ALJ 282 …. 2.5 Lamshed v Lake (1958) 99 CLR 132 …. 5.4, 5.7, 12.17, 21.10 Lane v Morrison (2009) 239 CLR 230 …. 19.7, 22.28, 22.32, 22.33 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 …. 1.6, 1.13, 1.15, 2.7, 2.27, 2.33, 2.35, 4.18, 5.19, 18.5, 18.6, 18.9, 18.10, 18.13, 18.14, 18.15, 18.17, 18.18, 18.19, 18.20, 18.21, 18.22, 18.23, 18.24, 18.25, 18.26, 18.27, 18.28, 18.33, 18.34, 21.7 Langer v Commonwealth (1996) 186 CLR 302 …. 1.6, 18.11 Le Mesurier v Connor (1929) 42 CLR 481 …. 20.25 Leask v Commonwealth (1996) 187 CLR 579 …. 2.21 Leeth v Commonwealth (1992) 174 CLR 455 …. 3.32, 17.2, 19.41, 19.59, 19.60 Levy v Victoria (1997) 189 CLR 579 …. 18.13, 18.14, 18.15, 18.25, 20.3 Li Chia Hsing v Rankin (1978) 141 CLR 182 …. 15.3, 15.4 Little v Commonwealth (1947) 75 CLR 94 …. 19.44 Liyanage v R [1967] 1 AC 259 …. 19.37 Lloyd v Wallach (1915) 20 CLR 299 …. 22.8, 22.17 Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59 …. 7.6, 7.51 Lorenzo v Carey (1921) 29 CLR 243 …. 20.25 Lowe v R (1984) 154 CLR 606 …. 20.23 Ludeke, Re; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 …. 12.14, 12.20 Luna Park Ltd v Commonwealth (1923) 32 CLR 596 …. 20.15

Luton v Lessels (2002) 210 CLR 333 …. 2.25 M Mabo v Queensland (No 1) (1988) 166 CLR 186 …. 9.15 — v — (No 2) (1992) 175 CLR 1 …. 1.5, 2.16, 20.16 MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 …. 7.22 Macks, Re; Ex parte Saint (2000) 204 CLR 158 …. 20.26 Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287 …. 3.36 Magaming v R (2013) 252 CLR 381 …. 19.44 Mandeville Island Farms Inc v American Crystal Sugar Co 334 US 219 (1948) …. 6.11 Mansell v Beck (1956) 95 CLR 550 …. 6.36 Manufacturing Grocers’ Employees Federation of Australia, Re; Ex parte Australian Chamber of Manufactures (1986) 160 CLR 341 …. 12.9, 12.11 Marbury v Madison 5 US 137 (1803) …. 1.11, 13.41, 19.2, 20.21, 20.25, 22.35 Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177 …. 22.34, 22.35, 22.36, 22.37 Maritime Union of Australia, Re; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397 …. 6.20, 12.3 Marks v Commonwealth (1964) 111 CLR 549 …. 13.22 Master Builders’ Association of New South Wales, Ex parte; Re Industrial Commission of New South Wales [1971] 1 NSWLR 655 …. 12.11 Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 …. 21.7 Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 …. 7.4, 7.5, 7.6, 7.8, 7.9 McBain v Victoria (2000) 99 FCR 116 …. 20.11 McBain, Re; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 …. 20.2, 20.3, 20.11 McCawley v R [1920] AC 691 …. 4.18

McClintock v Commonwealth (1947) 75 CLR 1 …. 11.21 McCloy v New South Wales (2015) 325 ALR 15; [2015] HCA 34 …. 18.13, 18.20, 18.24, 18.25, 18.26, 18.27, 18.33 McCulloch v Maryland 17 US 316 (1819) …. 2.22, 6.12 McGinty v Western Australia (1996) 186 CLR 140 …. 1.6, 9.7, 18.10 McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 …. 18.2 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 …. 3.33, 3.34 McLean, Ex parte (1930) 43 CLR 472 …. 21.4, 21.17, 21.28, 21.30, 21.31, 21.32, 21.33, 21.35 McPherson v McPherson [1936] AC 177 …. 19.43 McWaters v Day (1989) 168 CLR 289 …. 21.33 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 …. 2.2, 2.7, 2.8, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16, 3.18, 3.19, 3.20, 3.21, 3.22, 3.23, 4.2, 4.14, 6.20, 7.30, 7.41, 10.4, 10.18, 10.22, 14.14, 14.15, 17.6, 19.10, 21.21, 22.38 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 …. 2.32, 20.2, 20.5, 20.13 Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 …. 12.13, 12.25 Metal Trades Industry Association of Australia v Amalgamated Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632 …. 21.17, 21.24 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 …. 16.4 Miller v Commonwealth (1946) 73 CLR 187 …. 22.20 — v Miller (1978) 141 CLR 269 …. 21.17 — v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 …. 18.2, 18.3, 18.19 Mines, Case of (1568) 75 ER 472 …. 13.26 Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 15 FCR 274 …. 13.8 Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 …. 12.22 Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 71 ALR 578 …. 16.16 — v Teoh (1995) 183 CLR 273 …. 10.12

Minister for Immigration and Multicultural Affairs, Re; Ex parte Te (2002) 212 CLR 162 …. 1.20 Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57 …. 20.21 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Ame (2005) 222 CLR 439 …. 5.21 Minister for Immigration v Eshetu (1999) 197 CLR 611 …. 20.21 Minister of State for the Army v Dalziel (1944) 68 CLR 261 …. 11.8, 11.11, 11.24, 22.38 Mistretta v United States 488 US 361 (1989) …. 19.63, 19.70, 19.71 Mitchell v Barker (1918) 24 CLR 365 …. 5.9, 20.7 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 …. 4.11, 4.12, 20.5 Momcilovic v R (2011) 245 CLR 1 …. 19.58, 20.12, 21.19, 21.27, 21.35 Monis v R (2013) 249 CLR 92 …. 18.13, 18.20, 18.21, 18.23, 18.25, 18.26 Moore v Commonwealth (1951) 82 CLR 547 …. 7.20, 11.22 Morgan v Commonwealth (1947) 74 CLR 421 …. 7.25 Morris v R (1987) 163 CLR 454 …. 20.23 Muldoon v Melbourne City Council (2013) 217 FCR 450 …. 18.14 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 …. 18.16, 18.25, 18.34 Murphy v Electoral Commissioner [2016] HCA 36 …. 18.33 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 …. 2.19, 6.15, 6.22, 8.20 Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 …. 11.12, 11.15, 11.16, 11.18, 16.5 N National Provincial Bank Ltd v Ainsworth [1965] AC 1175 …. 11.12 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 …. 12.28, 16.4, 18.5, 18.6, 18.10, 18.11 Nelson v Fish (1990) 92 ALR 187 …. 16.9, 16.16 Nelson (No 1), Ex parte (1928) 42 CLR 209 …. 2.34 Nelungaloo Pty Ltd v Commonwealth (1947) 75 CLR 495 …. 11.25, 11.27, 11.28

New South Wales v Bardolph (1934) 52 CLR 455 …. 1.13, 13.34 — v Commonwealth (1926) 38 CLR 74 …. 20.23 — v — (Incorporation case) (1990) 169 CLR 482 …. 2.10, 8.4, 8.8, 8.13 — v — (No 1) (Garnishee case (No 1)) (1932) 46 CLR 155 …. 14.13 — v — (Sea and Submerged Lands case) (1975) 135 CLR 337 …. 2.14, 10.5 — v — (Wheat case) (1915) 20 CLR 54 …. 1.12, 5.16, 19.3 — v — (Work Choices case) (2006) 229 CLR 1 …. 2.21, 3.9, 3.19, 8.22, 8.23, 8.24, 8.25, 8.26, 8.27, 10.4, 12.3, 21.2, 21.21, 22.5 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 …. 2.16, 5.3, 5.6, 5.7, 11.5, 11.16, 11.20, 11.30 Nicholas v R (1998) 193 CLR 173 …. 19.6, 19.40, 19.48, 19.49, 19.59 Nintendo Co Ltd v Centronics Systems Pty Ltd (No 2) (1994) 181 CLR 134 …. 2.14, 11.19 Nolan, Re; Ex parte Young (1991) 172 CLR 460 …. 19.43, 19.44, 22.30, 22.31 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16 …. 2.29, 5.16, 5.17, 19.67 North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 192 ALR 625 …. 20.2 — v — (2002) 192 ALR 701 …. 19.16 — v — (2004) 218 CLR 146 …. 1.12, 5.7, 5.9, 5.13, 5.14, 5.15, 5.16, 5.17, 19.16, 19.17, 19.57, 19.68 North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559 …. 6.19 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 …. 20.23 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 …. 7.5, 7.14, 7.22 Northern Territory v GPAO (1999) 196 CLR 553 …. 5.12, 5.13, 5.16, 19.15, 20.7, 20.24, 21.36, 21.37, 21.38, 21.39, 21.40 O Oates v Attorney-General (Cth) (2003) 214 CLR 496 …. 13.22 O’Donoghue v Ireland (2008) 234 CLR 599 …. 10.29

O’Flaherty v City of Sydney Council (No 1) (2013) 210 FCR 484 …. 18.14 — v — (No 2) (2014) 221 FCR 382 …. 18.14 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 …. 20.2 Osborne v Commonwealth (1911) 12 CLR 321 …. 2.19, 7.34 O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 …. 2.22, 6.4, 6.13, 6.20, 6.22 O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 …. 20.5, 20.6 Owners of the SS Kalibia v Wilson (1910) 11 CLR 689 …. 6.6 P Pacific Coal Pty Ltd, Re; Ex parte CFMEU (2000) 203 CLR 346 …. 8.23, 8.25, 8.27, 12.3, 12.27, 12.29 Paisio, Marriage of (1979) 26 ALR 132 …. 16.15 Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) (2003) 219 CLR 376 …. 3.26, 3.28 Palling v Corfield (1970) 123 CLR 52 …. 19.44 Pankhurst v Kiernan (1917) 24 CLR 120 …. 22.17 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 …. 1.13, 6.8, 6.17, 7.20, 10.3, 10.21, 10.25, 13.19, 13.32, 13.35, 13.37, 14.8, 14.12 Parliamentary Trustee of Parliamentary Superannuation Fund v Commissioner of Taxation (2013) 216 FCR 329 …. 3.18 Parton v Milk Board (Vic) (1949) 80 CLR 229 …. 7.12, 7.46 Pasini v United Mexican States (2002) 209 CLR 246 …. 19.6 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391 …. 1.13, 1.18, 2.5, 2.30, 2.33 Pearce v Florenca (1976) 135 CLR 507 …. 4.7, 4.8, 4.9, 4.10, 4.11 Perez v United States 402 US 146 (1971) …. 6.21 Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388 …. 7.24, 7.25, 7.29, 7.35 Permewan Wright Consolidated Pty Ltd v Trewhitt (1979) 145 CLR 1 …. 6.19 Perpetual Executors and Trustees Association of Australia v Federal Commissioner of Taxation (1949) 77 CLR 493 …. 2.24 Peterson, Ex parte 253 US 300 (1920) …. 2.11

Peterswald v Bartley (1904) 1 CLR 497 …. 7.45, 7.47, 7.51 Petrotimor Companhia de Petroleos Sarl v Commonwealth (2003) 126 FCR 354 …. 20.16 Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399 …. 2.23 Phillips v Eyre (1870) LR 6 QB 1 …. 3.33, 3.34 Pickin v British Railways Board [1974] AC 765 …. 4.5 Pidoto v Victoria (1943) 68 CLR 87 …. 2.14, 2.36 Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 …. 6.26 Pirrie v McFarlane (1925) 36 CLR 170 …. 3.24, 4.13, 20.14 PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 …. 11.21, 11.30 Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1 …. 10.8 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 …. 1.20, 10.8, 10.30, 13.20, 13.21, 13.22 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 …. 2.21 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 …. 1.11, 19.2, 20.21 Plows, Marriage of (No 2) (1979) 40 FLR 339 …. 16.15 Polites v Commonwealth (1945) 70 CLR 60 …. 10.12 Pollentine v Bleijie (2014) 253 CLR 629 …. 19.63 Polyukhovich v Commonwealth (War Crimes Act case) (1991) 172 CLR 501 …. 10.6, 10.7, 10.30, 19.38, 19.44, 22.37 Port Macdonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 …. 4.9 Porter v R; Ex parte Chin Man Yee (1926) 99 CLR 155 …. 20.7 — v — (1926) 37 CLR 432 …. 5.9 Poulton v Commonwealth (1953) 89 CLR 540 …. 11.15 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 …. 19.28, 19.29, 19.34 Province of Bombay v Municipality of Bombay [1947] AC 58 …. 13.39, 13.40 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 325 ALR

168 …. 21.25 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240 …. 10.27 Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment (2012) 250 CLR 343 …. 19.61 Putland v R (2004) 218 CLR 174 …. 19.42 Pye v Renshaw (1951) 84 CLR 58 …. 11.4, 14.11 Q Queanbeyan City Council v ACTEW Corporation Ltd (2009) 178 FCR 510; [2009] FCA 943 …. 7.17, 7.18, 7.21, 7.51, 7.53 — v — (2011) 244 CLR 530 …. 7.19 Queen Victoria Memorial Hospital v Thorton (1953) 87 CLR 144 …. 20.25 Queensland v Commonwealth (Daintree Rainforest case) (1989) 167 CLR 232 …. 10.14, 10.19 — v — (Second Territory Senators’ case) (1977) 139 CLR 585 …. 2.24, 2.28, 2.30 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 …. 3.15, 7.30 Queensland Nickel Pty Limited v Commonwealth (2015) 255 CLR 252 …. 7.31 Quickenden v O’Connor (2001) 109 FCR 243 …. 8.12 R R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222 …. 10.25 — v Archdall and Roskruge; Ex parte Carrigan and Browne (1928) 41 CLR 128 …. 15.3 — v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 …. 8.16, 8.17 — v Barger (1908) 6 CLR 41 …. 2.18, 3.7, 7.22, 7.26, 7.32 — v Bernasconi (1915) 19 CLR 629 …. 5.3, 5.4, 5.8, 5.9, 5.15, 15.6, 19.14 — v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 …. 19.44,

20.22 — v Bowen; Ex parte Federated Clerks Union (1984) 154 CLR 207 …. 20.21 — v Burgess; Ex parte Henry (1936) 55 CLR 608 …. 6.18, 10.9, 10.15, 10.16, 10.18, 10.19, 10.21, 10.26, 10.33, 13.22 — v Coldham; Ex parte Australian Social Welfare Union (CYSS case) (1983) 153 CLR 297 …. 2.12, 12.5 — v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers’ Association (1959) 107 CLR 208 …. 2.9, 2.12 — v Commonwealth Court of Conciliation & Arbitration; Ex parte Tramways (No 1) (Tramways case (No 1)) (1914) 18 CLR 54 …. 2.30, 20.21 — v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 …. 19.34, 20.25 — v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 …. 12.22 — v Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488 …. 22.18, 22.38 — v — (1944) 68 CLR 485 …. 22.18 — v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1 …. 2.37, 12.15 — v Commonwealth Court of Conciliation and Arbitration and Australian Builders’ Labourers’ Federation (Builders’ Labourers’ case) (1914) 18 CLR 224 …. 12.2, 12.17 — v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Shearers’ case) (1960) 103 CLR 368 …. 19.32 — v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545 …. 21.22 — v Davison (1954) 90 CLR 353 …. 19.2, 19.18, 19.19, 19.21, 19.44, 22.29 — v Donyadideh (1993) 115 ACTR 1 …. 20.18 — v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 …. 20.21

— v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 …. 20.25 — v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 …. 15.3, 15.4 — v Foster (1949) 79 CLR 43 …. 22.21 — v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 …. 6.14, 6.20, 12.17 — v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1964) 37 ALJR 40 …. 19.24, 19.35 — v Graziers’ Association of New South Wales; Ex parte Australian Workers’ Union (1956) 96 CLR 317 …. 12.26 — v Halton; Ex parte AUS Student Travel Pty Ltd (1978) 138 CLR 201 …. 6.16 — v Heagney; Ex parte ACT Employers Federation (1976) 137 CLR 86 …. 12.15 — v Hegarty; Ex parte Corporation of the City of Salisbury (1981) 147 CLR 617 …. 19.28 — v Hickman; Ex parte Fox (1945) 70 CLR 598 …. 20.21 — v Hughes (2000) 202 CLR 535 …. 3.36, 6.16, 10.7 — v Humby; Ex parte Rooney (1973) 129 CLR 231 …. 19.3 — v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 …. 19.32 — v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (Adamson’s case) (1979) 143 CLR 190 …. 8.5, 8.7, 8.8, 8.11, 8.12 — v Kelly; Ex parte Victoria (1950) 81 CLR 64; [1950] HCA 7 …. 12.5, 12.11 — v Kidman (1915) 20 CLR 425 …. 13.22, 19.38 — v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254 …. 1.12, 2.32, 3.19, 5.16, 19.4, 19.6, 19.11, 19.30, 19.35, 19.69, 19.70, 19.71 — v Kirby; Ex parte Transport Workers’ Union of Australia (1954) 91 CLR 159 …. 20.6 — v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 ….

21.13, 21.42 — v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 …. 21.22, 21.32, 21.33, 21.34 — v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 …. 9.43 — v Moffatt [1998] 2 VR 229 …. 19.47 — v Murray; Ex parte Commonwealth (1916) 22 CLR 437 …. 20.6, 20.21, 20.25 — v Phillips (1970) 125 CLR 93 …. 3.26 — v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634 …. 2.37, 10.17, 10.18 — v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353 …. 12.6, 12.8, 12.9, 12.11 — v Quinn; Ex parte Consolidated Foods Corp (1977) 138 CLR 1 …. 19.19, 19.20, 19.36, 19.38 — v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 …. 19.44 — v Sharkey (1949) 79 CLR 121 …. 10.26, 10.27, 10.28, 13.17, 13.27, 13.28, 13.29 — v Smithers; Ex parte Benson (1912) 16 CLR 99 …. 6.26 — v Smithers; Ex parte McMillan (1982) 152 CLR 477 …. 6.16 — v Snow (1915) 20 CLR 315 …. 15.17, 15.18 — v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277 …. 19.30, 19.32 — v Spicer; Ex parte Waterside Workers’ Federation of Australia (1957) 100 CLR 312 …. 19.31, 19.32 — v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 …. 11.11 — v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 …. 13.24, 20.16 — v Toohey; Ex parte Northern Land Council (1986) 161 CLR 1 …. 20.21 — v Trade Practices Tribunal; Ex parte St George County Council (St George County Council case) (1974) 130 CLR 533 …. 8.8, 8.9

— v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 …. 19.26, 19.28, 19.32 — v University of Sydney; Ex parte Drummond (1943) 67 CLR 95 …. 22.18 — v Winneke; Ex parte Gallagher (1982) 152 CLR 211 …. 16.10, 21.33 — v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528 …. 6.14 — v Wynbyne (1997) 99 A Crim R 1 …. 19.46, 19.47 R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] 4 All ER 1055 …. 13.23 Ranger Uranium Mines Pty Ltd, Re; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 …. 19.34 Real Estate Institute of New South Wales v Blair (1946) 73 CLR 213 …. 22.20 Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194 …. 6.19, 6.22 Refugee Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 …. 2.10, 20.21 Registrar, Accident Compensation Tribunal v Commissioner of Taxation (Cth) (1993) 178 CLR 145 …. 13.39 Reid v Sinderberry (1944) 68 CLR 504 …. 22.18 Reid, Re; Ex parte Bienstein (2001) 182 ALR 473 …. 19.8 Resch v Federal Commissioner of Taxation (1942) 66 CLR 198 …. 7.36 Residential Tenancies Tribunal of New South Wales, Re; Ex parte Defence Housing Authority (1997) 190 CLR 410 …. 4.14 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 …. 20.26 Richard Foreman and Sons Pty Ltd, Re; Uther v Federal Commissioner of Taxation (Uther’s case) (1947) 74 CLR 508 …. 4.12, 4.13, 4.14 Richardson v Forestry Commission (1988) 164 CLR 261 …. 10.4, 10.17, 10.18, 10.19, 10.25 Ridgeway v R (1995) 184 CLR 19 …. 19.48, 19.49 Roach v Electoral Commissioner (2007) 233 CLR 162 …. 1.20, 18.31 Roberts v Bass (2002) 212 CLR 1 …. 18.13, 18.23 Robtelmes v Brenan (1906) 4 CLR 395 …. 1.20 Roche v Kronheimer (1921) 29 CLR 329 …. 13.15

Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 …. 19.27, 19.35 Rowe v Electoral Commissioner (2010) 243 CLR 1 …. 18.31, 18.32 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 …. 7.52 Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2011) 244 CLR 97 …. 7.8, 7.10 Ruddock v Vadarlis (Tampa case) (2001) 110 FCR 491 …. 13.18, 13.19, 13.20, 13.25 Ruhani v Director of Police (2005) 222 CLR 489 …. 5.21 Russell v Russell (1976) 134 CLR 495 …. 19.43 S Sachter v Attorney-General (Cth) (1954) 94 CLR 86 …. 15.3 Sankey v Whitlam (1978) 142 CLR 1 …. 14.13 Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia Ltd [2000] 1 VR 545 …. 19.46 Seamen’s Union of Australia v Matthews (1957) 96 CLR 529 …. 19.4 — v Utah Development Co (1978) 144 CLR 120 …. 6.6, 6.20 Sellars v Nielsen [1943] QSR 217 …. 16.12 SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 …. 7.38, 7.40, 7.41, 7.42 Shapiro, Commissioner Welfare of Connecticut v Thompson 394 US 618 (1968) …. 18.2 Shaw v Wolf (1998) 83 FCR 113 …. 9.5 Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 …. 19.23, 19.28 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 …. 20.2 Silbert v DPP (WA) (2004) 217 CLR 181 …. 19.50 Silk Brothers Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 …. 22.8, 22.18 Singh v Commonwealth (2004) 222 CLR 322 …. 1.20, 15.20 Sloan v Pollard (1947) 75 CLR 445 …. 22.20 Smith v ANL Ltd (2000) 204 CLR 493 …. 11.14

— v Handcock (1944) 46 WALR 21 …. 16.14 Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194 …. 20.7, 20.23 Snedden v Republic of Croatia (2009) 178 FCR 546 …. 15.6 Solomons v District Court of New South Wales (2002) 211 CLR 119 …. 19.6 Sorby v Commonwealth (1983) 152 CLR 281 …. 15.24 Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584 …. 10.25 South Australia v Commonwealth (Railways Standardisation Case) (1962) 108 CLR 130 …. 20.16 — v — (Superannuation Fund Investment Trust case) (1992) 174 CLR 235 …. 7.40 — v — (Uniform Tax case (No 1)) (1942) 65 CLR 373 …. 2.3, 2.31, 2.39, 3.9, 7.3, 7.50, 14.1, 14.10, 14.14, 14.15, 21.9, 22.12, 22.13, 22.18 — v Totani (2010) 242 CLR 1; [2010] HCA 39 …. 18.35, 19.43, 19.56, 19.60, 19.65, 19.66 South Eastern Drainage Board v Savings Bank of South Australia (1939) 62 CLR 603 …. 4.18 Spencer v Commonwealth (2015) 328 ALR 16 …. 14.11 Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63 …. 6.42 Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298 …. 5.18, 6.46 Spratt v Hermes (1965) 114 CLR 226 …. 5.3, 5.4, 5.9, 5.10, 5.11, 5.13, 5.15, 5.16, 5.17, 19.12, 19.13, 19.14, 19.16 Stannaries, Case of (1606) 77 ER 1292 …. 13.26 State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 …. 7.41 State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 …. 7.34, 7.36 State Public Services Federation, Re; Ex parte Attorney-General for the State of Western Australia (1993) 178 CLR 249 …. 12.14, 12.15 State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR 282 …. 8.7, 8.10, 8.12, 13.39

Stenhouse v Coleman (1944) 69 CLR 457 …. 2.21, 22.4, 22.9, 22.11, 22.12, 22.13, 22.18 Stephens v Abrahams (No 2) (1903) 29 VLR 229 …. 7.35 — v West Australian Newspapers Ltd (1994) 182 CLR 211 …. 2.27, 18.7, 18.8, 18.9, 18.10, 18.13, 18.14 Stevens v Head (1992) 176 CLR 433 …. 2.25, 3.33, 3.34 Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 …. 21.17, 21.19 Street v Queensland Bar Association (1989) 168 CLR 461 …. 2.9, 2.23, 2.32, 16.5, 17.2, 17.4, 17.5 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 …. 2.14, 6.2, 6.17, 8.14, 8.16, 8.17, 8.18, 8.19 Stuart-Robertson v Lloyd (1932) 47 CLR 482 …. 4.2 Stubberfield’s Application, Re (1996) 70 ALJR 646 …. 20.23 Sue v Hill (1999) 199 CLR 462 …. 1.14, 1.15, 1.16, 1.18, 13.4, 19.6, 19.32, 20.8 Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 …. 7.40, 13.39 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 …. 10.30 Svikart v Stewart (1994) 181 CLR 548 …. 5.20 Sweedman v Transport Accident Commission (2006) 226 CLR 362 …. 17.8, 20.20 Swift Australian Co Pty Ltd v Boyd-Parkinson (1962) 108 CLR 189 …. 7.13 T TA Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 …. 21.23 Tajjour v New South Wales (2014) 254 CLR 508 …. 18.13, 18.24, 18.25, 18.26, 18.35 Tasmania v Victoria (1935) 52 CLR 157 …. 2.34 Taylor v Attorney-General of Queensland (1917) 23 CLR 457 …. 4.17 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 …. 19.20, 19.23, 19.68 Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 …. 21.17, 21.34 — v Commonwealth (2008) 234 CLR 210 …. 11.10, 11.11

Teori Tau v Commonwealth (1969) 119 CLR 564 …. 5.5, 5.6, 5.7, 11.5, 16.3 Theodore v Duncan [1919] AC 696 …. 1.15 Theophanous v Commonwealth (2006) 225 CLR 101 …. 11.18, 11.22 — v Herald & Weekly Times Ltd (1994) 182 CLR 104 …. 2.11, 2.27, 18.7, 18.9, 18.10, 18.11, 18.13, 18.14, 18.23 Thomas v Mowbray (2007) 233 CLR 307 …. 10.3, 10.8, 10.30, 19.40, 19.59, 22.4, 22.25, 22.26, 22.35 Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545 …. 20.2 Tracey, Re; Ex parte Ryan (1989) 166 CLR 518 …. 19.44, 21.33, 22.5, 22.28, 22.29, 22.30, 22.31 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 …. 11.21, 11.22 Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 …. 12.3 Troy v Wrigglesworth (1919) 26 CLR 305 …. 20.22 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 …. 20.2, 20.21 Tyler, Re; Ex parte Foley (1994) 181 CLR 18 …. 15.7, 22.30, 22.31 Tyson & Brother v Banton 273 US 418 (1927) …. 11.20 U Uebergang v Australian Wheat Board (1980) 145 CLR 266 …. 18.2 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 …. 4.4, 4.5, 4.6, 4.9 Unions New South Wales v New South Wales (2013) 252 CLR 530 …. 18.13, 18.22, 18.23, 18.24, 18.26 United Firefighters’ Union of Australia v Country Fire Authority (2014) 218 FCR 210 …. 8.12 — v — (2015) 228 FCR 497 …. 3.22, 8.12 United States v Guest 383 US 745 (1965) …. 18.2 — v Kuch 288 F Supp 439 (1968) …. 16.6 — v Lopez 514 US 549 (1995) …. 6.21 University of Wollongong v Metwally (1984) 158 CLR 447 …. 9.15,

21.2, 21.26, 21.33, 21.34 V Vasiljkovic v Commonwealth (2006) 227 CLR 614 …. 10.29, 13.22 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 …. 3.13 — v Commonwealth (Australian Assistance Plan case) (1975) 134 CLR 338 …. 13.3, 13.17, 13.19, 13.29, 13.30, 13.32, 13.35, 14.4, 14.7, 14.12 — v — (Federal Aid Roads case) (1926) 38 CLR 399 …. 14.10 — v — (Industrial Relations Act case) (1996) 187 CLR 416 …. 3.17, 10.3, 10.7, 10.8, 10.12, 10.14, 10.15, 10.18, 10.20, 10.21, 10.23, 10.24, 10.25, 10.30, 11.20, 12.3 — v — (Kakariki case) (1937) 58 CLR 618 …. 21.17, 21.20, 21.27, 21.34, 21.35 — v — (Payroll Tax case) (1971) 122 CLR 353 …. 3.12, 3.14, 3.15, 3.19, 4.2 — v — (Petroleum & Minerals Authority (PMA) case) (1975) 134 CLR 81 …. 1.13 — v — (Uniform Tax case (No 2)) (1957) 99 CLR 575 …. 7.3, 7.50, 14.1, 14.10, 14.14, 14.15 Victorian Chamber of Manufactures v Commonwealth (Industrial Lighting Regulations case) (1943) 67 CLR 413 …. 22.18 — v — (Prices Regulation case) 67 CLR 335 …. 22.18 — v — (Women’s Employment Regulations case) (1943) 67 CLR 347 …. 22.18 Victorian Stevedoring and General Contracting Co Ltd v Dignan (1931) 46 CLR 73 …. 1.12, 13.14, 13.15 Viskauskas v Niland (1983) 153 CLR 280 …. 9.15, 21.14, 21.26 W W & A McArthur Ltd v Queensland (1920) 28 CLR 530 …. 6.5 Wainohu v New South Wales (2011) 243 CLR 181 …. 18.35, 19.57, 19.60, 19.68, 19.69 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 …. 2.32, 2.34, 3.35, 5.7, 20.10, 20.25, 20.26, 20.27

Walker v Baird [1892] AC 491 …. 10.12 — v New South Wales (1994) 182 CLR 45 …. 1.5 Walsh and Johnson, Ex parte; Re Yates (1925) 37 CLR 36 …. 13.27 Waters v Commonwealth (1951) 82 CLR 188 …. 5.9 Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 …. 19.6, 19.7, 19.11, 19.44 Watson v Federal Commissioner of Taxation (1953) 87 CLR 353 …. 20.6 Webb v Outrim [1907] AC 81 …. 3.5 Welker v Hewett (1969) 120 CLR 503 …. 4.8 Wenn v Attorney-General (Vic) (1948) 77 CLR 84 …. 21.17, 21.20, 21.21, 22.20 West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 …. 2.7, 13.31 West Lakes Ltd v South Australia (1980) 25 SASR 389 …. 4.18 Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 …. 7.51 — v Commonwealth (First Territory Senators’ case) (1975) 134 CLR 201 …. 1.13 — v — (Second Native Title Act case) (1995) 183 CLR 373 …. 1.5, 3.16, 3.23, 9.9, 9.10, 9.11, 9.13, 9.15, 21.34, 21.43 — v Hamersley Iron Pty Ltd (No 1) (1969) 120 CLR 42 …. 7.51 — v Ward (2002) 213 CLR 1 …. 2.16, 21.37 White v Director of Military Prosecutions (2007) 231 CLR 570 …. 15.4, 22.31 Wickard v Filburn 317 US 111 (1942) …. 6.21 Williams v Commonwealth (No 1) (2012) 248 CLR 156; 86 ALJR 713; [2012] HCA 23 …. 7.4, 8.26, 13.2, 13.20, 13.33, 13.34, 13.35, 13.36, 13.37, 13.38, 14.8, 14.11, 14.12, 16.19, 20.2 — v — (No 2) (2014) 252 CLR 416 …. 8.26, 8.27, 13.37, 13.38, 14.8, 14.12 Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (Hindmarsh Island case) (1996) 189 CLR 1 …. 13.22, 19.2, 19.8, 19.57, 19.59, 19.68, 19.70, 19.71 Wong v R (2001) 207 CLR 584 …. 19.42 Woolley, Re; Ex parte Applicants M276/2003 (2004) 225 CLR 1 ….

19.52 Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 …. 3.26 Wotton v Queensland (2012) 246 CLR 1 …. 18.13, 18.19, 18.20, 18.25, 18.26 WR Moran Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) (1940) 63 CLR 338 …. 7.23 Wragg v New South Wales (1953) 88 CLR 353 …. 6.19 Wurridjal v Commonwealth (2009) 237 CLR 309 …. 2.26, 5.6, 5.7, 11.5, 11.27, 11.30 X XYZ v Commonwealth (2006) 227 CLR 532 …. 2.9, 10.3, 10.7, 10.8, 10.25, 10.26, 10.30 Y Yanner v Eaton (1999) 201 CLR 351 …. 11.10 Yates v R [2013] HCA 8 …. 20.23 Yougarla v Western Australia (2001) 207 CLR 344 …. 2.32 Z Zarb v Kennedy (1968) 121 CLR 283 …. 15.3

Table of Constitutional Provisions References are to paragraph numbers

Commonwealth Aboriginal and Torres Strait Islander Commission Act 1989 …. 9.5 s 4(1) …. 9.5 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 1.9, 9.9 s 10 …. 9.9 Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 …. 9.16, 9.18 s 2(2) …. 9.16 s 2(3) …. 9.16 s 3(1) …. 9.16 s 4 …. 9.18 s 4(2)(a) …. 9.18 s 4(2)(b) …. 9.18 s 4(2)(c) …. 9.18 s 4(2)(d) …. 9.18 Aboriginal Land Rights (Northern Territory) Act 1976 …. 5.7, 5.23 Acts Interpretation Act 1901 …. 2.21 s 15A …. 2.36, 2.37 s 15AA …. 2.21 s 46(b) …. 2.36, 2.37 Acts Interpretation Act 1904 …. 15.3 s 4 …. 15.3 Air Navigation Act 1920 …. 10.9, 10.17 s 4 …. 6.18 Appropriation Act (No 1) 1974–75 …. 13.29

Australia Act 1986 …. 1.18, 4.7, 10.28, 19.38, 20.8 s 1 …. 10.28 s 2(1) …. 4.4, 4.7, 4.9 s 2(2) …. 4.6, 4.16 s 3 …. 10.28 s 5(a) …. 4.9 s 6 …. 4.5, 4.16, 4.18, 4.19 s 7(2) …. 13.5 s 7(3) …. 13.5 s 7(4) …. 13.5 s 11 …. 20.8 Australia Education Act 2013 …. 16.11 Australian Airlines Act 1945 …. 6.7 Australian Bicentennial Authority Act 1980 …. 18.4 Australian Capital Territory (Self-Government) Act 1988 …. 5.22, 21.41 s 23 …. 5.23 s 23(1)(a) …. 5.5, 5.23 s 23(1)(b) …. 5.23 s 28 …. 21.38 s 69 …. 5.18 s 69A …. 5.22 Australian Capital Territory Supreme Court Act 1933 …. 19.14 Australian Industries Preservation Act 1906 …. 3.6, 6.19, 8.15, 19.20 Australian Security Intelligence Organisation Act 1979 s 4 …. 22.27 Banking Act 1945 …. 3.10 s 48 …. 3.10 s 48(1) …. 3.10 s 48(3) …. 3.10 Banking Act 1947 Pt VII …. 6.9 s 3 …. 6.9 s 46 …. 6.9 s 46(4)–(8) …. 6.9 Bills of Exchange Act 1909 …. 21.19 Broadcasting Act 1942

Pt IIID …. 18.5 Pt IIID Div 2 …. 18.5 Pt IIID Div 3 …. 18.5 Broadcasting and Television Act 1942 …. 21.24 s 42 …. 21.24 s 43(6) …. 21.24 Broadcasting Services Act 1992 …. 19.25 Canberra Water Supply (Googong Dam) Act 1974 …. 7.18 s 11(2) …. 7.18 Charter of the United Nations Act 1945 …. 10.13 s 3 …. 10.13 Circuit Layouts Act 1989 …. 11.19 Clean Energy Act 2011 …. 7.31 Conciliation and Arbitration (Electricity Industry) Act 1985 …. 3.15 Commonwealth Constitution …. 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.10, 1.11, 1.12, 1.13, 1.14, 1.15, 1.16, 1.17, 1.18, 1.19, 1.21, 2.1, 2.3, 2.4, 2.5, 2.6, 2.7, 2.9, 2.10, 2.11, 2.12, 2.16, 2.17, 2.22, 2.24, 2.25, 2.30, 2.35, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.15, 3.16, 3.19, 3.23, 3.34, 3.35, 4.2, 4.3, 4.4, 4.5, 4.9, 4.11, 4.13, 4.16, 4.18, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.20, 6.3, 6.5, 6.7, 6.11, 6.12, 6.17, 6.18, 6.19, 6.26, 6.31, 6.32, 6.39, 8.3, 8.20, 9.2, 9.3, 9.6, 9.7, 9.9, 9.15, 9.16, 9.17, 9.18, 9.19, 10.4, 10.7, 10.8, 10.9, 11.4, 11.6, 11.16, 11.19, 11.27, 12.2, 12.17, 12.22, 12.23, 12.27, 13.2, 13.3, 13.4, 13.6, 13.8, 13.10, 13.11, 13.15, 13.16, 13.17, 13.18, 13.19, 13.29, 13.30, 13.31, 13.32, 13.35, 13.37, 13.38, 13.41, 14.1, 14.4, 14.5, 14.6, 14.8, 14.10, 14.12, 15.3, 15.4, 15.17, 15.20, 15.21, 16.2, 16.5, 16.8, 16.10, 16.13, 17.2, 17.3, 17.4, 18.1, 18.2, 18.3, 18.4, 18.5, 18.6, 18.7, 18.8, 18.9, 18.10, 18.11, 18.12, 18.13, 18.15, 18.16, 18.17, 18.20, 18.23, 18.30, 18.31, 18.33, 18.34, 19.1, 19.2, 19.3, 19.4, 19.6, 19.9, 19.11, 19.14, 19.15, 19.17, 19.18, 19.19, 19.23, 19.36, 19.37, 19.38, 19.39, 19.40, 19.41, 19.42, 19.45, 19.51, 19.56, 19.57, 19.59, 19.60, 19.67, 19.68, 19.70, 19.71, 20.2, 20.3, 20.8, 20.10, 20.11, 20.21, 20.22, 20.23, 20.25, 20.27 Ch III …. 20.1, 20.2, 20.11, 20.12, 20.13, 20.14, 20.25, 21.8, 21.11, 22.6, 22.7, 22.17, 22.21, 22.26, 22.29, 22.35, 22.37, 22.38

Ch I …. 1.12, 13.15, 13.19, 18.17, 19.2 Ch I Pt II …. 18.10 Ch I Pt III …. 18.10 Ch II …. 1.12, 1.14, 13.3, 13.15, 13.19, 13.29, 18.17, 19.2, 19.69 Ch III …. 1.12, 2.11, 4.6, 5.8, 5.9, 5.10, 5.13, 5.14, 5.15, 5.16, 5.17, 10.8, 10.30, 13.15, 13.16, 13.19, 13.41, 15.7, 15.12, 15.15, 17.2, 18.17, 19.2, 19.3, 19.4, 19.5, 19.6, 19.7, 19.11, 19.14, 19.16, 19.17, 19.22, 19.23, 19.24, 19.25, 19.27, 19.28, 19.30, 19.34, 19.35, 19.37, 19.38, 19.39, 19.40, 19.42, 19.43, 19.44, 19.45, 19.47, 19.49, 19.50, 19.51, 19.52, 19.53, 19.54, 19.55, 19.56, 19.58, 19.59, 19.60, 19.69, 19.71, 22.26, 22.28, 22.29, 22.31, 22.32, 22.33 Ch IIIA …. 9.19 Ch IV …. 5.4, 14.2, 14.3, 14.9 Ch V …. 16.2, 8.2, 19.3 Ch VI …. 5.4 Ch XIV …. 13.21 Div 4AA …. 5.17 Pt II …. 3.10, 21.14 cl 6 …. 1.7 s 1 …. 1.6, 1.12, 1.18, 3.3, 18.6, 19.2, 19.71 s 2 …. 1.15, 13.5, 13.6 s 2(1) …. 1.18 s 2(2) …. 1.18 s 3 …. 1.18, 18.12 s 3(2) …. 1.18 s 4 …. 1.18, 3.10 s 5 …. 1.16, 1.18, 13.6, 13.16, 16.13, 18.12 s 5(1) …. 3.10, 13.13 s 5(2) …. 13.13 s 6 …. 1.13, 3.15, 10.9, 21.14 s 7 …. 1.6, 1.20, 3.4, 3.15, 18.1, 18.6, 18.10, 18.12, 18.13, 18.20, 18.23, 18.29, 18.31, 18.33, 18.34 s 8 …. 1.6, 1.18, 3.15 s 9 …. 18.29, 18.35, 21.14 s 10 …. 1.6, 1.18, 18.10, 19.60 s 11 …. 1.18

s 11(1) …. 3.16 s 12 …. 18.12, 19.57 s 13 …. 1.6, 1.21, 19.51 s 14(1) …. 19.56 s 15 …. 1.21 s 22 …. 1.6, 18.4, 18.10, 19.19 s 23 …. 18.4 s 24 …. 1.6, 1.20, 3.4, 18.1, 18.6, 18.10, 18.11, 18.12, 18.13, 18.20, 18.23, 18.31, 18.33, 18.34 s 24(2) …. 21.20 s 25 …. 1.3, 1.6, 9.3, 9.7, 9.17, 9.18, 9.19, 9.20 s 28 …. 1.6, 1.16, 10.9 s 29 …. 18.10 s 30 …. 1.6, 18.10 s 31 …. 1.6, 18.10, 18.11 s 32 …. 1.16, 13.6 s 33 …. 1.16 s 34 …. 1.6, 18.10 s 39 …. 1.6, 18.10, 19.57 s 41…. 10.9 s 42 …. 18.18, 19.43 s 42(1) …. 18.18 s 44(i) …. 1.18, 16.18 ss 46–48 …. 1.6, 18.10 s 49 …. 1.13, 18.13 s 51 …. 1.8, 2.17, 2.18, 2.19, 2.21, 3.8, 3.9, 3.10, 3.15, 3.24, 3.29, 5.3, 5.5, 5.10, 6.11, 6.12, 7.10, 8.19, 8.20, 8.23, 8.24, 10.9, 10.12, 10.18, 10.22, 11.19, 11.20, 11.30, 13.15, 13.17, 13.29, 13.32, 13.38, 22.11, 22.29 s 51(i) …. 2.12, 2.14, 3.9, 3.30, 3.36, 6.1, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.25, 7.20, 7.25, 7.28, 8.5, 8.14, 8.20, 10.32, 11.22, 12.3, 13.22, 9.12, 19.44 s 51(i)–(xxxviii) …. 13.32 s 51(ii) …. 2.21, 3.7, 3.23, 5.4, 7.1, 7.2, 7.10, 7.20, 7.23, 7.24, 7.25, 7.26, 7.27, 7.29, 7.30, 7.32, 7.46, 8.20, 11.18, 13.32, 14.10

s 51(iii) …. 3.30, 7.27, 7.44, 7.46 s 51(iv) …. 3.29, 3.32 s 51(vi) …. 1.2, 2.21, 12.3, 14.15, 22.1, 22.4, 22.5, 22.6, 22.7, 22.8, 22.9, 22.10, 22.11, 22.12, 22.14, 22.15, 22.16, 22.17, 22.18, 22.19, 22.22, 22.24, 22.25, 22.26, 22.27, 22.28, 22.29, 22.31, 22.32, 22.34, 22.35, 22.36, 22.37, 22.38 s 51(v) …. 6.4 s 51(vi) …. 6.4, 13.21 s 51(ix) …. 6.4 s 51(x) …. 3.30, 6.4 s 51(xii) …. 3.25 s 51(xiii) …. 1.8, 3.9, 3.10 3.12, 3.30, 5.4, 6.4, 8.13, 8.24 s 51 (xiv) …. 3.9, 3.30, 5.4, 6.4, 8.24 s 51(xvi) …. 6.4 s 51(xvii) …. 6.4 s 51(xviii) …. 6.4, 7.8, 13.30, 13.32 s 51(xix) …. 1.20, 2.21, 6.4, 7.6, 10.8, 13.20 s 51(xiii) …. 2.14 s 51(xviii) …. 2.9, 2.14, 2.17, 11.19 s 51(xix) …. 2.21, 3.29 s 51(xx) …. 2.10, 2.14, 2.20, 2.21, 3.6, 3.9, 3.19, 3.22, 3.30, 3.36, 6.4, 7.25, 8.1, 8.3, 8.5, 8.6, 8.7, 8.8, 8.9, 8.11, 8.12, 8.13, 8.14, 8.15, 8.16, 8.17, 8.18, 8.19, 8.20, 8.21, 8.22, 8.23, 8.24, 8.25, 8.26, 8.27, 12.3, 13.37, 14.8, 14.12, 21.21 s 51(xxiii) …. 7.10 s 51(xxiiiA) …. 1.21, 13.22, 13.35, 13.37, 14.6, 14.8, 14.12 s 51(xxiv) …. 21.6 s 51(xxvi) …. 1.3, 1.9, 1.21, 2.21, 3.16, 9.1, 9.2, 9.3, 9.4, 9.6, 9.7, 9.8, 9.9, 9.10, 9.12, 9.13, 9.14, 9.17, 9.18, 9.19, 9.20 s 51(xxvii) …. 7.6 s 51(xxix) …. 2.21, 3.36, 5.4, 6.18, 7.25, 9.8, 10.1, 10.2, 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.15, 10.17, 10.18, 10.19, 10.20, 10.21, 10.23, 10.24, 10.25, 10.26, 10.27, 10.28, 10.29, 10.30, 10.31, 10.32, 10.33, 11.30 s 51(xxx) …. 3.29

s 51(xxxi) …. 2.13, 2.14, 3.29, 5.4, 7.39, 9.3, 9.9, 11.1, 11.2, 11.3, 11.4, 11.5, 11.6, 11.7, 11.8, 11.9, 11.10, 11.15, 11.16, 11.18, 11.19, 11.20, 11.21, 11.22, 11.23, 11.27, 11.30, 13.22, 14.11, 18.1, 18.4, 22.38 s 51(xxxii) …. 22.6 s 51(xxxiii) …. 3.31, 20.25 s 51(xxxiv) …. 3.29, 3.31, 20.25 s 51(xxxv) …. 2.12, 2.21, 3.8, 3.9, 3.30, 6.4, 8.21, 8.22, 8.23, 8.24, 8.25, 12.1, 12.2, 12.3, 12.4, 12.5, 12.8, 12.9, 12.13, 12.14, 12.15, 12.16, 12.17, 12.18, 12.20, 12.21, 12.22, 12.23, 12.24, 12.25, 12.27, 12.28, 18.6, 19.4, 19.37 s 51(xxxvi) …. 1.6, 3.29, 18.11 s 51(xxxvii) …. 3.35, 8.21, 20.25 s 51(xxxix) …. 2.21, 3.9, 3.29, 6.12, 7.20, 13.1, 13.3, 13.17, 13.20, 13.21, 13.27, 13.28, 13.29, 13.31, 13.32, 13.37, 13.41, 14.8, 14.12, 18.4, 18.6, 19.6, 19.38, 20.25, 22.9, 22.25, 22.35 s 52 …. 1.8, 3.24, 3.25, 3.26, 3.27, 6.11, 7.29, 13.15, 13.17 s 52(i) …. 3.28, 5.20, 7.24, 7.29 s 52(ii) …. 12.3, 22.6, 22.7 s 53 …. 7.2, 7.35 s 53(2) …. 19.50 s 54 …. 19.44 s 54R …. 19.44 s 55 …. 5.3, 7.1, 7.2, 7.8, 7.22, 7.29, 7.33, 7.34, 7.35, 7.36 s 57 …. 1.16, 13.6, 13.7, 13.16 s 58 …. 13.6 s 59 …. 13.5 s 61 …. 1.12, 1.15, 1.20, 3.3, 10.11, 10.27, 13.1, 13.2, 13.3, 13.6, 13.10, 13.11, 13.16, 13.17, 13.18, 13.19, 13.20, 13.22, 13.27, 13.28, 13.29, 13.31, 13.32, 13.33, 13.35, 13.37, 13.38, 14.8, 14.12, 16.12, 16.19, 18.6, 19.2, 19.71, 22.5, 22.16, 22.25, 22.35 s 62 …. 1.15, 1.16, 13.6, 13.8, 18.13, 22.6, 22.16 ss 62–64 …. 13.8 s 63 …. 1.16, 13.6, 13.8 s 64 …. 1.13, 1.15, 1.16, 13.6, 13.7, 13.8, 13.9, 13.16, 13.35, 18.6, 18.13, 22.6, 22.16

s 67 …. 1.16, 13.9 s 68 …. 1.16, 5.14, 13.6, 22.7, 22.16 s 69 …. 13.9, 14.2, 22.6, 22.7 s 71 …. 1.12, 2.1, 3.3, 5.10, 5.13, 5.16, 18.6, 19.2, 19.6, 19.7, 19.12, 19.13, 19.14, 19.15, 19.16, 19.20, 19.21, 19.24, 19.41, 19.44, 19.45, 19.56, 19.71, 20.10, 20.22, 20.25, 22.28, 22.29 s 72 …. 1.12, 1.16, 1.21, 5.10, 5.13, 5.14, 5.15, 5.16, 13.6, 19.8, 19.10, 19.11, 19.12, 19.13, 19.14, 19.16, 19.17, 19.21, 22.29 s 72(i) …. 13.16 s 72(ii) …. 13.16, 19.8, 19.9 s 72(iii) …. 19.8 s 73 …. 2.1, 5.9, 5.11, 15.17, 19.13, 19.15, 19.45, 20.1, 20.4, 20.5, 20.6, 20.10, 20.13, 20.23, 20.25 ss 73–79 …. 20.1 s 73(i) …. 20.6 s 73(ii) …. 5.16, 19.14, 20.7 s 73(iii) …. 20.7, 20.22 s 73(iv) …. 20.22 s 74 …. 3.5, 19.5, 20.1, 20.8, 20.10 s 75 …. 1.10, 1.11, 5.9, 20.1, 20.5, 20.9, 20.10, 20.13, 20.14, 20.24, 22.28 s 75(i) …. 20.17 s 75(ii) …. 20.18 s 75(iii) …. 13.41, 20.19, 20.22 s 75(iv) …. 17.8, 20.22 s 75(v) …. 1.11, 13.41, 20.14, 20.21, 20.23 s 76 …. 20.9, 20.10, 20.14, 20.24, 20.25, 22.28 s 76(i) …. 20.1, 20.9, 20.10, 20.11, 20.22 s 76(ii) …. 5.12, 19.30, 19.31, 20.2, 20.7, 20.24 s 77 …. 5.13, 19.6, 20.10, 20.14, 20.25 s 77(i) …. 5.12, 5.16, 20.24 s 77(iii) …. 5.16, 18.18, 19.45, 19.56, 20.24, 20.25 s 78 …. 13.41 s 78A …. 20.3 s 78AA …. 20.3 s 79 …. 19.45

s 80 …. 2.11, 2.30, 5.8, 5.15, 10.9, 15.1, 15.3, 15.4, 15.6, 15.7, 15.8, 15.9, 15.10, 15.11, 15.12, 15.15, 15.16, 15.17, 15.18, 15.20, 15.21, 15.22, 15.23, 15.24, 15.25, 16.5, 18.1, 21.34, 22.29 s 81 …. 1.13, 13.33, 13.35, 14.4, 14.5, 14.6, 14.7, 14.8, 14.10, 14.12 ss 81–83 …. 14.3, 14.4 s 82 …. 14.4 s 83 …. 1.13, 7.10, 13.33, 13.35, 14.4, 14.8, 14.12, 18.13 s 84 …. 13.9, 14.2 s 85 …. 13.9, 14.2 s 86 …. 7.46, 13.16, 14.1, 14.2 s 87 …. 14.1, 14.2 s 88 …. 5.4, 7.46, 14.2, 20.10 s 89 …. 14.1, 14.2 s 90 …. 2.23, 3.25, 3.30, 5.4, 7.1, 7.4, 7.7, 7.12, 7.13, 7.19, 7.43, 7.44, 7.46, 7.47, 7.49, 14.1, 14.2, 14.3, 14.16 s 91 …. 3.23, 3.30, 7.30, 7.44, 20.10, 20.25 s 92 …. 1.2, 1.7, 2.7, 2.21, 2.23, 5.4, 5.18, 6.1, 6.5, 6.9, 6.10, 6.11, 6.19, 6.23, 6.24, 6.25, 6.26, 6.27, 6.28, 6.29, 6.30, 6.31, 6.32, 6.33, 6.34, 6.35, 6.36, 6.38, 6.39, 6.40, 6.42, 6.44, 6.45, 6.46, 7.12, 7.46, 8.5, 10.9, 14.2, 14.3, 15.11, 18.1, 18.2, 18.3, 18.25, 20.10, 20.22, 22.38 s 92A …. 18.3 s 93 …. 14.1, 20.10 ss 93–95 …. 14.2 s 94 …. 17.8 s 95 …. 3.2 s 95A …. 18.5 s 95B …. 18.5 s 95H …. 18.5 s 96 …. 7.23, 11.4, 11.16, 13.35, 14.1, 14.3, 14.9, 14.10, 14.11, 14.12, 14.14, 14.15, 16.11 s 97 …. 14.2 s 97(3) …. 19.15 s 98 …. 6.1, 6.6 s 99 …. 3.23, 7.1, 7.2, 7.25, 7.28, 7.29, 7.30, 7.31, 7.32, 10.9 s 100 …. 10.9 s 101 …. 1.2, 17.8, 19.3

ss 101–104 …. 14.2 s 103 …. 1.16 s 104(1) …. 17.8 s 105 …. 1.21, 14.3 s 105A …. 1.21, 2.31, 3.35, 14.3, 14.13 s 106 …. 1.7, 3.7, 4.2, 4.5, 4.6, 11.16, 19.45 ss 106–108 …. 1.7 s 107 …. 1.7, 2.17, 3.7, 3.8, 3.19, 3.24, 19.51 s 108 …. 1.7 s 109 …. 1.7, 1.8, 3.8, 3.16, 3.24, 3.26, 3.36, 4.4, 4.7, 4.14, 6.13, 6.18, 9.15, 11.10, 20.2, 20.11, 20.22, 21.1, 21.2, 21.3, 21.4, 21.5, 21.6, 21.7, 21.8, 21.9, 21.10, 21.11, 21.12, 21.14, 21.17, 21.19, 21.20, 21.22, 21.26, 21.30, 21.31, 21.34, 21.35, 21.36, 21.38, 21.41, 21.42, 21.43 s 111 …. 5.21, 11.20, 13.16, 20.7 s 112 …. 3.31 s 114 …. 1.8, 3.20, 3.25, 3.31, 5.23, 7.1, 7.2, 7.36, 7.39, 7.40, 7.41, 7.42, 13.21, 13.22, 20.25, 22.6, 22.7 s 115 …. 3.25, 5.23 s 116 …. 1.4, 5.4, 5.5, 10.9, 13.35, 16.1, 16.2, 16.3, 16.4, 16.5, 16.6, 16.7, 16.8, 16.9, 16.10, 16.11, 16.12, 16.13, 16.14, 16.15, 16.16, 16.17, 16.18, 16.19, 18.1, 18.28 s 117 …. 2.23, 3.32, 5.4, 10.9, 15.11, 17.1, 17.2, 17.3, 17.4, 17.5, 17.7, 17.8, 18.1 s 118 …. 3.33, 3.34, 5.4, 16.5, 17.7 s 119 …. 3.32, 13.16, 13.21, 22.5, 22.6, 22.7 s 120 …. 3.32, 19.41 s 121 …. 4.3 s 122 …. 1.4, 2.21, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.10, 5.11, 5.12, 5.13, 5.15, 5.16, 5.17, 5.20, 5.21, 5.22, 6.4, 6.19, 7.24, 8.14, 8.21, 11.5, 11.30, 12.3, 16.3, 16.4, 16.5, 19.6, 19.12, 19.13, 19.14, 19.15, 20.7, 20.24, 21.10 s 123 …. 3.31, 4.3, 20.25 s 124 …. 3.31, 4.3 ss 124–125 …. 20.2

s 125 …. 5.21 s 126 …. 1.16 s 127 …. 1.3, 1.21, 9.7 s 128 …. 1.16, 1.19, 1.20, 1.21, 4.3, 5.7, 9.7, 13.6, 18.6, 18.10, 18.13, 18.15, 18.20, 18.21 s 132 …. 15.12, 15.15 s 143(1) …. 19.25 s 143(1)(b) …. 19.25 s 160 …. 13.21 s 170BC(1) …. 10.20 s 170BC(3) …. 10.20 s 170BC(3)(b) …. 10.20 s 170BC(3)(b)(i) …. 10.20 s 198AHA …. 10.8, 10.30 Sch 1 …. 7.31 Commonwealth Electoral (Wartime) Act 1917 s 14 …. 21.13 Commonwealth Places (Application of Laws) Act 1970 …. 3.27 s 4 …. 3.27, 21.33 Commonwealth Places (Mirror Taxes) Act 1998 …. 7.29 s 3 …. 7.29 s 6(1) …. 7.29 s 6(2) …. 7.29 s 8(2) …. 7.29 s 8(4) …. 7.29 Commonwealth Shipping Act 1923 s 14(4) …. 22.24 Communist Party Dissolution Act 1950 …. 22.13, 22.35, 22.36 s 3 …. 22.35 s 4 …. 22.35 s 5 …. 22.35 s 5(1) …. 22.35 s 5(2) …. 22.35 s 5(4) …. 22.35 s 6 …. 22.35 s 8 …. 22.35 s 9(1) …. 22.35

s 9(2) …. 22.35 s 9(4) …. 22.35 s 10 …. 22.35 s 11 …. 22.35 s 12 …. 22.35 Conciliation and Arbitration Act 1904 …. 12.5, 12.22, 12.24, 19.11, 19.37, 21.15, 21.23, 21.28 Constitution Alteration (Aboriginals) 1967 …. 9.7 Copyright Amendment Act 1989 …. 7.8 Corporations Act 1989 …. 8.13 Crimes Act 1914 …. 10.8, 15.3, 15.7, 15.22 s 4C(2) …. 21.34 s 4G …. 21.34 s 5 …. 8.16 s 15G(2) …. 19.48, 19.49 s 15X …. 19.48, 19.49 s 16A …. 19.42 s 24A …. 13.29 s 24A(1) …. 10.27 s 24A(1)(c) …. 10.27 s 24B …. 13.29 s 24B(2) …. 10.27 s 24D …. 13.29 s 24D(1) …. 10.27 s 29 …. 21.32 s 86A …. 15.18 s 93W …. 18.24 s 93X …. 18.24, 18.25, 18.35 s 93X(1) …. 18.24 s 93X(2) …. 18.24 s 93X(3) …. 18.24 s 93Y …. 18.24, 18.25 Crimes Amendment (Controlled Operations) Act 1996 …. 19.48 Crimes (Confiscation of Profits) Act 1988 …. 19.50 Crimes (Foreign Incursions and Recruitment) Act 1978 s 6 …. 10.8, 10.25 s 6(1)(a) …. 10.8

s 6(3) …. 10.8 s 6(3)(aa) …. 10.30 s 7(1)(e) …. 10.8, 10.25, 10.30, 15.9 s 9A …. 15.14 Criminal Code Act 1995 …. 15.25, 22.25 Div 101 …. 22.25 Div 102 …. 22.25 Div 103 …. 22.25 Div 104 …. 10.8, 19.59, 22.25 Div 105 …. 22.25 s 11.5 …. 21.34 s 100.1 …. 10.30 s 104.4 …. 10.30, 22.26 s 104.4(1)(c) …. 10.30 s 104.4(1)(c)–(d) …. 22.26 s 104.4(1)(c)(i)–(ii) …. 22.26 s 104.4(1)(d) …. 10.30 s 104.4(1)(d)(i) …. 22.26 s 131.1(1) …. 21.34 s 300.4 …. 21.35 s 302.4 …. 21.35 s 307.1 …. 15.25 s 471.12 …. 18.20 Criminal Organisation Act 2009 …. 19.60 s 10 …. 19.60 Customs Act 1901 …. 19.48 s 233B …. 19.42, 19.48, 19.49 s 233B(1)(b) …. 15.21 s 233B(1)(c) …. 19.48 Dangerous Prisoners (Sexual Offenders) Act 2003 s 3(1) …. 19.51 s 13(1) …. 19.51 s 13(2) …. 19.51 s 13(3) …. 19.51 Defence Act 1903 …. 16.12, 22.16 s 4 …. 22.16 Defence Act 1903–1910 …. 22.23

Defence Act 1903–1932 s 63 …. 22.24 Defence Force Discipline Act 1982 …. 22.32 Pt III …. 22.29 s 16(1) …. 21.33 s 24(1) …. 22.29 s 40(2) …. 21.33 s 47(1) …. 15.7 s 55(1) …. 22.30 s 55(1)(b) …. 22.29 s 61 …. 22.31 s 61(1) …. 22.30 s 114 …. 22.32 s 127 …. 22.29 s 150 …. 22.32 s 152 …. 22.32 s 153 …. 22.32 s 154(1) …. 22.32 s 154(2) …. 22.32 s 155(1) …. 22.32 s 158 …. 22.32 s 158(1) …. 22.32 s 160 …. 22.32 s 161 …. 22.32 s 169 …. 22.32 s 188AC(2) …. 22.32 s 188AP(4) …. 22.32 Defence Legislation Amendment Act 2006 …. 22.32 Defence Preparations Act 1951 …. 22.36 s 4(1) …. 22.36 s 4(2)(b) …. 22.36 Defence Preparations (Capital Issues) Regulations 1951 …. 22.36 reg 6 …. 22.36 reg 10 …. 22.36 reg 17 …. 22.36 reg 17(3) …. 22.36 Disability Discrimination Act 1992

s 27(2) …. 10.25 Electoral Act 1918 …. 18.16, 18.29, 18.31, 18.32, 18.33 s 102(4) …. 18.32 s 102(4AA) …. 18.32 s 240 …. 18.11 s 245(15) …. 18.12 s 268 …. 18.11 s 270 …. 18.11 s 274 …. 18.11 s 329A …. 18.11 Electoral Amendment Act 2016 …. 18.29 Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 …. 18.32 Employment Act 1945–1953 …. 22.21 Enemy Act 1914 …. 15.17 Euthanasia Laws Act 1997 …. 5.23 Evidence Act 1995 …. 19.15 Fair Work Act 2009 …. 3.22, 8.3, 8.12, 12.3 s 14(1)(a) …. 12.3 Fair Work (Registered Organisations) Act 2009 …. 19.3 s 26A …. 19.3 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 …. 19.3 Family Law Act 1975 …. 19.15, 21.39 s 95 …. 20.7 s 97(1) …. 19.43 Family Law Reform Act 1995 …. 21.37 Federal Court of Australia Act 1976 …. 19.69, 20.26 s 17 …. 19.43 s 24(2) …. 20.7 s 33 …. 20.7 Financial Framework Legislation Amendment Act (No 3) 2012 …. 8.26, 13.36, 14.8 s 32B …. 8.26, 8.27 s 32B(1)(b) …. 8.26 Financial Management and Accountability Act 1997 …. 13.36

s 32B …. 13.36, 13.37, 14.8, 14.12 s 32B(1)(b) …. 13.36 Financial Management and Accountability Regulations 1997…. 13.36 reg 16 …. 8.26, 13.36 Sch 1AA …. 8.26, 8.27, 13.36, 14.8, 14.12 Foreign Judgments Act 1991 …. 21.25 Pt 2 …. 21.25 s 6 …. 21.25 Foreign States Immunities Act 1975 …. 10.27 Health Insurance Act 1973 …. 11.17 Health Insurance (Pathology Services) Amendment Act 1991 …. 11.17 Hindmarsh Island Bridge Act 1997 …. 1.9, 9.9 Human Rights (Sexual Conduct) Act 1994 …. 20.22 Income Tax Assessment Act 1936 s 99A …. 13.15 s 221 …. 14.15 s 221(1)(a) …. 14.15 s 222(1) …. 14.15 Industrial Relations Act 1988 …. 2.20, 8.19 s 299(1)(d)(ii) …. 18.6 Insurance Act 1973 …. 17.8 Interactive Gambling Act 2001 …. 6.42 International Arbitration Act 1974 s 16 …. 19.23, 19.68 Judiciary Act 1903 …. 19.13, 20.3, 20.23, 20.27 Pt XII …. 20.10 s 18 …. 20.6, 20.23 s 23(2)(a) …. 18.20 s 30(a) …. 20.9, 20.22 s 33(2) …. 20.23 s 33(3) …. 20.23 s 35(2) …. 20.7, 20.23 s 35A …. 20.23 s 35AA …. 20.7 s 39B …. 20.27 s 40 …. 15.9, 20.23, 21.30 s 40(1) …. 19.49, 20.23

s 44 …. 20.9 s 56 …. 4.13 s 64 …. 4.15, 13.41 s 68 …. 5.14, 15.9, 15.10, 15.20, 19.16, 19.42 s 78A …. 20.11, 20.23 s 78B …. 20.23 s 79 …. 4.15, 15.20, 19.15 s 80 …. 4.15 Juries Act 1927 s 57(1)(a) …. 15.18 s 57(4)(a) …. 15.18 Legislative Instruments Act 2003 …. 13.13 Long Service Leave Act 1955 …. 21.23 Maritime Powers Act 2013 s 72(4) …. 13.20 Marriage Act 1961 …. 16.16, 21.39, 21.40 s 5 …. 21.39 s 28 …. 21.39 Migration Act 1958 …. 19.44 Pt 2A …. 6.28 Pt 8 …. 20.14 s 5AA …. 10.8, 13.20 s 114G …. 6.28 s 114H …. 6.28 s 198AB(1) …. 13.20 s 198AHA …. 13.20 s 198AHA(2) …. 13.20 s 233A …. 19.44 s 233C …. 19.44 s 236B …. 19.44 s 236B(3)(c) …. 19.44 s 236B(4)(b) …. 19.44 Migration Amendment (Regional Processing Arrangements) Act 2015 …. 13.20 Military Justice (Interim Measures) Act (No 1) 2009 …. 22.33 Military Justice (Interim Measures) Act (No 2) 2009 …. 22.33 Minerals Resource Rent Tax Act 2012 …. 7.30

s 1-10 …. 7.30 s 3 …. 7.30 National Parks and Wildlife Conservation Act 1975 …. 5.6 National Security Act 1939 …. 16.13, 22.18 National Security (General) Regulations reg 25 …. 16.14 reg 26 …. 16.14 National Security (Subversive Associations) Regulations 1940 …. 16.13 reg 2 …. 16.13 reg 3 …. 16.13 reg 7 …. 16.13 reg 8 …. 16.13 reg 9 …. 16.13 reg 11 …. 16.13 National Water Commission Act 2004 …. 11.16 s 6 …. 11.16 s 42 …. 11.16 Native Title Act 1993 …. 1.5, 3.16, 3.23, 9.10 s 38 …. 16.17 s 39 …. 16.17 s 39(1)(a)(iv) …. 16.17 Navigation Act 1912 …. 21.31 s 286 …. 6.20 Navigation Amendment Act 1979 s 104(3) …. 10.28 Norfolk Island Act 1979 …. 5.22, 5.23 s 15 …. 5.23 s 16 …. 5.23 s 16A …. 5.23 s 17 …. 5.23 s 18 …. 5.22 s 18C(1) …. 5.22 s 19A …. 5.23 s 19A(1) …. 5.23 s 27(1) …. 5.23 Sch 2 …. 5.23

Sch 3 …. 5.23 Norfolk Island Legislation Amendment Act 2015 …. 5.22, 5.23 s 18A 5.23 s 18A(1) …. 5.23 s 18A(2) …. 5.23 Sch 5 5.22 Northern Territory (Administration) Act 1910 s 10 …. 21.10 s 28 …. 21.41 Northern Territory (Self-Government) Act 1978 …. 5.17, 5.22, 19.62 s 6 …. 5.17 s 49 …. 5.18, 6.29, 6.46 s 50 …. 5.5, 11.20 s 50(1) …. 5.23, 11.22 s 50A …. 5.23 s 51 …. 5.22 Petroleum (Australia-Indonesia Zone of Co-operation) Act 1990 …. 10.7 Political Broadcasts and Political Disclosures Act 1991 …. 18.5 Post and Telegraph Act 1901 …. 5.10 Poultry Industry Levy Collection Act 1965 …. 7.27 Prisons Act 1952 s 4 …. 19.45 s 5(1) …. 19.45 s 22(1) …. 19.45 Privy Council (Appeals from the High Court) Act 197 …. 20.8 Privy Council (Limitation of Appeals) Act 1968 …. 20.8 Racial Discrimination Act 1975 …. 3.16, 9.4, 9.8, 10.22, 10.23, 20.17, 21.14, 21.26, 21.37 s 6A …. 21.26 s 9 …. 9.8 s 9(1) …. 9.8 s 10 …. 9.8 s 12 …. 9.8 s 24 …. 9.8 s 57 …. 21.37 Racial Discrimination Amendment Act 1983 …. 21.26

Referendum (Constitution Alteration) Act 1906 s 6A …. 9.7 Re-establishment and Employment Act 1945 …. 21.20 Royal Style and Titles Act 1973 …. 1.18, 13.5 s 2(1) …. 13.5 Schools Assistance Act 2008 …. 16.11 Science and Research Act 1951 …. 13.29 Seamen’s Compensation Act 1911 …. 4.4 Seas and Submerged Lands Act 1973 …. 4.7, 10.5, 13.20 Seat of Government (Administration) Act 1910 s 12 …. 5.23 Service and Execution of Process Act 1901 …. 21.6 States Grants (Tax Reimbursement) Act 1946 …. 14.15 s 5 …. 14.15 Statute of Westminster Adoption Act 1942 …. 22.16 Superannuation Acts (Amendment) Act 2000 …. 3.18 Superannuation Guarantee (Administration) Act 1992 …. 7.10 Pt 8 …. 7.10 Superannuation Guarantee Charge Act 1992 …. 7.10 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 …. 3.18 Supreme Court Act 1935 …. 21.25 Tax Bonus for Working Australians Act (No 2) 2009 …. 6.8, 7.20, 10.21 s 6 …. 7.20 s 7 …. 13.32 s 8 …. 13.32 Transport Workers Act 1928–1929 s 3 …. 13.14, 13.15 Telecommunications Act 1991 …. 11.11 Telecommunications Act 1997 …. 11.11 Tobacco Plain Packaging Act 2011 …. 11.13, 11.16 Trade Practices Act 1965 …. 8.16 Trade Practices Act 1974 …. 8.7, 8.9, 8.10, 8.11, 8.16, 21.22 s 45D …. 8.17 s 45D(1)(b)(i) …. 8.17 Unlawful Associations Act 1916–1917 …. 22.17 War Crimes Act 1945 …. 10.6, 19.38

War Crimes (Amendment) Act 1988 …. 10.6 War Precautions Act 1914–1915 …. 22.17 War Precautions Act 1914–1916 …. 22.17 War Precautions (Prices Adjustment) Regulations 1916 …. 22.17 War Precautions Regulations 1915 reg 55(1) …. 22.17 Wireless Telegraphy Act 1905 …. 18.3 Workplace Relations Act 1996 …. 8.21, 19.3, 21.17, 21.21 Pt 7 …. 8.24 Pt 8 …. 8.24 Pt 9…. 8.24 Pt 13 …. 8.24 s 4 …. 8.21 s 5 …. 8.21 s 5(1) …. 8.21 s 6 …. 8.21 s 6(1) …. 8.21, 8.24 s 6(1)(a) …. 8.21, 8.22, 8.24 s 18(3) …. 19.3 s 643(8)–(10) …. 8.21 Sch 1B …. 19.3 Sch 1B s 18 …. 19.3 Sch 1B s 18(1)(b) …. 19.3 Sch 1B s 26 …. 19.3 Workplace Relations Act 2006 …. 12.11 Workplace Relations Amendment (Work Choices) Act 2005 …. 8.21 s 16 …. 21.21 s 16(1) …. 21.21 s 16(4) …. 21.21 World Heritage Properties Conservation Act 1983 …. 8.18, 9.4, 10.4 Australian Capital Territory Crimes Act 1900 …. 22.31 s 25 …. 22.32 s 54 …. 22.31 s 61(3) …. 22.32 s 60(2) …. 22.32

Human Rights (Sexual Conduct) Act 1994 s 4 …. 20.2 s 4(1) …. 20.2 Marriage Equality (Same Sex) Act 2013 …. 21.39 Utilities (Network Facilities) Tax Act 2006 …. 7.17 Water Resources Act 1998 …. 7.18 s 13 …. 7.18 s 33(1) …. 7.18 Water Resources Act 2007 s 7 …. 7.18 s 77A …. 7.18 New South Wales Anti-Discrimination Act 1977 …. 21.14, 21.26 Pt II …. 21.26 Coal Acquisition Act 1981 s 5 …. 4.6 s 6 …. 4.6 s 6(3) …. 4.6 Community Protection Act 1994 …. 4.5, 19.45, 19.47 Companies Act 1936 s 282 …. 4.12 Constitution Act 1902 …. 4.6 s 2 …. 9.16 s 5 …. 4.4, 4.5, 4.6 Crimes Act 1900 …. 15.7, 22.30 Pt 7 Div 3 …. 15.10 Crimes (Criminal Organisations Control) Act 2009 …. 18.35, 19.57 Pt 2 …. 19.57 s 9 …. 19.57 s 13(2) …. 19.57 Criminal Assets Recovery Act 1990 …. 19.54, 19.59 s 10 …. 19.54 s 10(3) …. 19.54 Criminal Procedure Act 1986 s 132 …. 15.9, 15.10, 15.14, 15.15 Dairy Industry Act 1915 …. 6.10

s 22A …. 6.10 Election Funding and Disclosures Amendment Act 2010 …. 18.22 Election Funding, Expenditure and Disclosures Act 1981 …. 18.22, 18.26 Pt 6 …. 18.22 Div 2A …. 18.26 Div 4A …. 18.26 s 95A(1) …. 18.26 s 95G(6) …. 18.22 s 95G(7) …. 18.22 s 96D …. 18.22 s 96E …. 18.26 s 96E(1) …. 18.26 s 96E(2) …. 18.26 s 96G(6) …. 18.22 s 96GA …. 18.26 s 96GAA …. 18.26 Election Funding, Expenditure and Disclosures Amendment Act 2012 …. 18.22 Factories and Shops Act 1912 …. 21.28 s 41 …. 21.28 Jury Act 1977 …. 2.11, 15.22 s 46 …. 21.34 Industrial Relations Act 1996 s 146C …. 19.61 s 146C(6) …. 19.61 s 407(1) …. 19.61 Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 …. 19.61 Industrial Relations (Public Sector Conditions of Employment) Regulations 2011 …. 19.61 Legal Profession Act 1987 s 216 …. 6.30 Legal Profession Regulation 2002 Pt 14 …. 6.30 Local Government Act 1919 …. 8.9

Pt XXIX …. 8.9 Local Government Act 1993 s 632(1) …. 18.14 Masters and Servants Act 1902 …. 21.30 s 4 …. 21.30 Mining Act 1992 …. 4.6, 13.26 s 4 …. 13.26 s 282 …. 13.26 s 284 …. 13.26 s 284(1) …. 13.26 s 284(2)(a) …. 13.26 s 379 …. 13.26 Sch 6A …. 4.6, 19.38 Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 …. 4.6, 19.38 cl 3(1) …. 4.6 cl 3(2) …. 4.6 Moratorium Act 1930 …. 21.19 Navigation Act 1901 …. 21.31 Racing Administration Act 1998 …. 6.43, 6.44, 7.10 Pt 8 …. 7.10 s 27 …. 6.43 s 32A …. 6.43 s 33 …. 6.43 s 33A …. 6.43 s 33A(2) …. 6.43, 6.44, 6.45, 6.46 s 33A(2)(a) …. 6.43 Racing Administration Regulations 2005 cl 14(1) …. 6.43 cl 16(2) …. 6.43 cl 20(b) …. 6.44 Supreme Court Act 1970 s 101A(7) …. 19.43 s 101A(8) …. 19.43 s 101A(9) …. 19.43 Supreme Court Rules Pt 10 r 2 …. 21.6

Surveillance Devices Act 2007 s 11(1) …. 19.25 Water Act 1912 …. 11.16 Water Management Act 2000 …. 11.16 Workers’ Compensation Act 1926 s 46 …. 4.4 Northern Territory Aboriginal Land Act …. 5.7 Community Welfare Act 1983 …. 21.37 s 97(3) …. 19.15 Criminal Property Forfeiture Act …. 11.22 s 94 …. 19.62 Misuse of Drugs Act s 36A …. 19.62 Police Administration Act …. 19.67 Pt VII Div 4AA …. 19.67 s 123 …. 5.17, 19.67 s 133AB …. 5.17, 19.67 s 133AB(1) …. 5.17 s 133AB(2) …. 5.17 s 133AB(2)(a) …. 5.17, 19.67 s 133AB(2)(b) …. 5.17 s 133AB(3) …. 5.17 s 137 …. 19.67 Police Administration Amendment Act 2014 …. 5.17 s 7 …. 5.17 Self-Government Act s 50(1) …. 19.62 Sentencing Act s 78A …. 19.46 Work Health Act 1986 …. 11.20 Pt V …. 11.20 Queensland Bail Act 1980 …. 19.64, 20.2

Constitution Act 1867 s 2 …. 4.4, 4.5, 9.51 Constitution of Queensland 2001 …. 9.16 s 8 …. 4.4 Corrective Services Act 2006 …. 18.19 s 3(1) …. 18.19 s 132 …. 18.19 s 132(1)(a) …. 18.19 s 132(2)(d) …. 18.19 s 200(2) …. 18.19 Criminal Code 1899 …. 19.64, 19.65, 20.2 s 60A …. 19.64, 19.65 s 60B …. 19.64, 19.65 s 60C …. 19.64, 19.65 s 469 …. 21.32 s 668E(1A) …. 15.25 Criminal Code (Criminal Organisations) Regulation 2013 …. 19.65 Criminal Law Amendment Act 1945 s 18 …. 19.63 Criminal Organisation Act 2009 …. 19.65 Criminal Proceeds Confiscation Act 2002 s 30 …. 19.54 Fauna Conservation Act 1974 …. 11.10 Industrial Relations Act 1999 …. 8.3 Liquor Act 1992 …. 19.64, 19.66 s 166 …. 21.13 s 173EB …. 19.64, 19.66 s 173EC …. 19.64, 19.66 s 173ED …. 19.64, 19.66 Magistrates Courts Act 1921 s 7 …. 19.16 s 8 …. 19.16 Motor Vehicle Insurance Act 1936 s 16 …. 17.7 s 19 …. 17.7 s 20 …. 17.7, 17.8 Queensland Rail Transit Authority Act 2013 …. 8.3, 8.8

s 6(2) …. 8.3 ss 9(1)(a)–(d) …. 8.8 s 55 …. 8.8 s 56(1)(a) …. 8.8 Traffic Act 1949 s 16(1)(a) …. 21.33 Vagrants, Gaming and Other Offences Act 1931 s 7(1) …. 18.15 s 7(1)(d) …. 18.15 Vicious Lawless Association Disestablishment Act 2013 …. 19.64, 20.2 South Australia Constitution Act 1934 s 2 …. 9.16 s 5 …. 4.4 Industrial Conciliation and Arbitration Act 1972 s 15(1)(e) …. 21.24 Juries Act 1927 s 7 …. 15.10 Local Government Act 1934 s 667 …. 18.21 Local Government Act 1999 s 239 …. 18.21 Organised Crime (Control) Act 2008 …. 19.65 Serious and Organised Crime (Control) Act 2008 s 10(1) …. 19.56 s 14(1) …. 19.56 Tasmania Criminal Code Act 1924 …. 20.2, 20.22 Gordon River Hydro-Electric Power Development Act 1982 …. 10.4 Victoria Charter of Human Rights and Responsibilities Act 2006 …. 18.18 s 36 …. 19.58 s 36(2) …. 19.58

s 36(5) …. 19.58 s 36(6) …. 19.58 s 37 …. 19.58 Commonwealth Powers (Industrial Relations) Act 1996 …. 8.21 Constitution Act 1975 s 1A …. 9.16 s 16 …. 4.4 Construction Industry Long Service Leave Act 1997 …. 21.17 Country Fire Authority Act 1958 …. 8.12 Crimes Act 1958 s 11.5 …. 21.34 s 72(1) …. 21.34 s 131.1 …. 21.34 s 300.4 …. 21.34 s 321(1) …. 21.34 Discharged Servicemen’s Preference Act 1943 …. 21.20 Drugs, Poisons and Controlled Substances Act 1981 s 5 …. 19.58, 21.35 s 25(1) …. 19.58 s 71AC …. 19.58, 21.35 s 73(2) …. 19.58 Federal Courts (State Jurisdiction) Act 1999 …. 20.26 Goods Act 1928 …. 4.13 Human Rights and Responsibilities Act 2006 s 36(2) …. 20.12 s 36(5) …. 20.12 Juries Act 1967 …. 15.21 Local Government Act 1989 …. 18.14 s 3C …. 18.14 Milk Board Act 1933 …. 7.12 Pipelines Act 1967 s 25(1) …. 7.16 s 35 …. 7.16 s 35(1) …. 7.16 s 35(3) …. 7.16 s 35(8) …. 7.16 Pipelines Fees Act 1981 …. 7.16

Sentencing Act 1991 s 18B …. 19.47 Serious Sex Offenders Monitoring Act 2005 s 42 …. 18.18, 19.43 s 42(1) …. 18.18 s 42(3) …. 18.18 Transport Accident Act 1986 s 27 …. 17.8 s 94 …. 17.8 s 104 …. 17.8 s 104(1) …. 17.8 Western Australia Administration Act 1903 s 86 …. 17.3 Constitution Act 1889 …. 1.6, 18.8, 18.10 s 2(1) …. 4.4 Corruption and Crime Commission Act 2003 …. 19.53 s 76(1) …. 19.53 s 76(2) …. 19.53 Electoral Amendment Act 2001 …. 4.19 Electoral Distribution Act 1947 s 13 …. 4.19 Electoral Distribution Repeal Act 2001 …. 4.19 Land (Titles and Traditional Usage) Act 1993 …. 3.16 Rules of the Supreme Court 1971 O 52A r 5 …. 21.25 Canada Constitution …. 3.8 Imperial Australian Constitutions Act (No 2) 1850 s 14 …. 4.4, 4.5 Australian Courts Act 1828 …. 13.26 Colonial Laws Validity Act 1865

s 5 …. 4.16, 4.18 Commonwealth of Australia Constitution Act 1900 …. 1.1, 1.7, 4.5 cl 3 …. 3.2 cl 5 …. 1.19 Royal Mines Act 1693 …. 13.26 International Convention for the Regulation of Air Navigation …. 10.9, 10.17 Convention of the Permanent International Commission for Air Navigation Ch VIII …. 10.9 Convention on International Civil Aviation …. 10.32 Convention on the Continental Shelf …. 10.5 Convention on the Elimination of All Forms of Racial Discrimination …. 9.8, 10.10 Art 1 …. 9.8 Convention on the Rights of the Child …. 10.10, 10.12 Convention on the Territorial Sea and Contiguous Zone …. 10.5 UNCITRAL Model Law on International Commercial Arbitration Art 15 …. 19.38 Art 34 …. 19.23 Art 35 …. 19.23 Art 36 …. 19.23 Papua New Guinea Criminal Code …. 5.8 United Kingdom Australia Act 1986 s 2(1) …. 4.9 s 5(a) …. 4.9 Australian Constitutions Act (No 2) 1850 s 14 …. 4.4 Colonial Law Validity Act 1865 s 2 …. 10.28 Constitution …. 10.27 Merchant Shipping Act 1894 …. 10.28

Royal Mines Act 1688 …. 13.26 s 3 …. 13.26 Statute of Westminster 1931 …. 1.18, 1.19, 4.5, 13.19 United States of America Constitution …. 1.4, 1.11, 1.12, 6.26, 11.2, 19.40, 20.22, 20.25, 22.26 Art I s 8 cl 18 …. 6.12 Art I s 8(2) …. 6.21 Art IV s 2 …. 17.2, 17.3

References References are to paragraph numbers Aroney, ‘Constitutional Choices in the Work Choices Case, or What Exactly is Wrong With the Reserved Powers Doctrine’ (2008) 32(1) MULR 1 …. 8.26 Barak, Proportionality: Constitutional Rights and Their Limitations, Cambridge University Press, Cambridge, 2012 …. 18.26 Booker, Glass and Watt, Federal Constitutional Law: An Introduction, Butterworths, Sydney, 1994 …. 2.8 Carney, The Constitutional Systems of the Australian States and Territories, Cambridge University Press, Port Melbourne, 2006 …. 3.4 Charlesworth, ‘The Australian Reluctance about Rights’ (1993) 31(1) OHLJ 195–232 …. 17.2 Clarke, Keyzer and Stellios, Hanks Australian Constitutional Law: Commentary and Materials, 9th ed, LexisNexis Butterworths, Sydney, 2012 …. 18.5 Craven, ‘Struggle Ahead for the States’, The Australian (16 November 2006) …. 18.26 Detmold, The Australian Commonwealth: A Fundamental Analysis of its Constitution, Law Book Company, Sydney, 1985 …. 2.7, 4.16 Dicey, Introduction to the Study of the Law of the Constitution, Macmillan, 1959 …. 1.2

Dixon, Jesting Pilate, Law Book Company, Melbourne, 1965 …. 2.5 Evatt, The Royal Prerogative, Law Book Company, Sydney, 1987 …. 13.21 Fajgenbaum and Hanks, Australian Constitutional Law: Cases, Materials and Text, Butterworths, Melbourne, 1972 …. 13.21 Gerangelos in Aroney, Gerangelos, Murray and Stellios, The Constitution of the Commonwealth of Australia: History, Principle and Interpretation, Cambridge University Press, Melbourne, 2015 …. 13.17 Hanks, Australian Constitutional Law: Materials and Commentary, Butterworths, Sydney, 1994 …. 13.7 Hanks, Gordon and Hill, Constitutional Law in Australia, LexisNexis Butterworths, Sydney, 2012 …. 22.12 Harrison Moore, The Constitution of the Commonwealth of Australia, Sweet & Maxwell, London, 1910 …. 12.3, 16.7 Howard, Australian Federal Constitutional Law, Law Book Company, Sydney, 1985 …. 22.7, 22.15, 22.20, 22.24 Irving (ed), A Woman’s Constitution? Gender & History in the Australian Commonwealth, Hale & Iremonger, Sydney, 1996 …. 1.3 Joseph and Castan, Federal Constitutional Law: A Contemporary View, Law Book Company, Sydney, 2010 …. 21.12 Keyzer, ‘Judicial Independence in the Northern Territory: Are Undisclosed Remuneration Arrangements Repugnant to Chapter III of the Constitution?’ (2004) 32 UWA L Rev 30 …. 19.16 —, (lead co-editor, with Sam Blay and Jennifer Burn), Offshore Processing of Asylum Seekers: The Search for Legitimate Parameters, Halstead Press, Sydney, 2007 …. 13.19 Keyzer, Pereira and Southwood, ‘Pre-Emptive Imprisonment for

Dangerousness’ (2004) 11(2) PP&L 244 …. 19.51 Kirby, ‘Judicial Activism’ (1997) 27 WALR 1 …. 2.3 Kirby, ‘The Australian Referendum on a Republic — Ten Lessons’ (2000) 46(4) AJPH 510 …. 1.18 Lane (Jan-Erik), Constitutions and Political Theory, University Press, Manchester, 1996 …. 1.7

Manchester

Lane (Patrick Harding), A Manual of Australian Constitutional Law, Law Book Company, Sydney, 1987 …. 1.8 Lane (Patrick Harding), Lane’s Commentary on the Australian Constitution, Law Book Company, Sydney, 1997 …. 13.8, 22.9, 22.12 Leeming, Resolving Conflicts of Laws, Federation Press, Sydney, 2012 …. 21.18 Lindell, ‘Why is Australia’s Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence’ (1986) 16 Federal LR 29 …. 1.19 Lumb, Australian Constitutionalism, Butterworths, Sydney, 1983 …. 1.2 Lynch, ‘Thomas v Mowbray: Australia’s ‘War on Terror’ Reaches the High Court’ (2008) 32 MULR 1182 …. 22.26 Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability, New York, Oxford University Press, 1984 …. 13.7 Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ (1986) 16 Federal LR 1 …. 2.4 Mason, ‘The use of proportionality in Australian constitutional law’ (2016) 27 PLR 109 …. 18.26 McLeish, ‘Making Sense of Religion and the Constitution: A Fresh Start for Section 116’ (1992) 18 Mon LR 207 …. 16.9

Northern Territory Government, Ampe Akelyernemane Meke Mekarle: Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, 2007 …. 5.7 O’Neill, ‘Constitutional Human Rights in Australia’ (1987) 17 FL Rev 85 …. 1.3 Quick and Garran, Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901 …. 6.10, 12.2, 14.1, 16.7, 16.8 Reynolds, The Law of the Land, Penguin, Melbourne, 1987 …. 1.5 —, Fate of a Free People, Penguin, Melbourne, 1996 …. 1.5 Richardson, ‘Executive Power of the Commonwealth’ in Commentaries on the Constitution (ed Zines), Butterworths, Sydney, 1977, pp 50–87 …. 1.16 Rothwell, ‘The High Court and the External Affairs Power: A Consideration of its Outer and Inner Limits’ (1993) 15 (2) Adel LR 209 …. 10.19, 10.27 Rumble, ‘Nature of Inconsistency under Section 109 of the Constitution’ (1980) 11 FL Rev 40 …. 21.18 Sampford and Palmer, ‘The Constitutional Power to Make War’ (2009) 18(2) GLR 350 …. 22.16 Sawer, ‘Defence Power of the Commonwealth in Time of War’ (1946) 20 ALR 295 …. 22.18 Sawer, ‘Defence Power of the Commonwealth in Time of Peace’ (1954) 6 Res Judicatae 214 …. 22.9 Thompson, ‘The ‘Washminster’ Mutation’ (1980) 15(2) AJPS 32 …. 1.1 Twomey, ‘A Revised Proposal for Indigenous Constitutional Recognition’ (2014) 36(3) SLR 381 …. 9.17

Twomey, ‘McCloy and the Revised Test of Proportionality’, Address to the ALRC Freedoms Symposium, Sydney, 8 October 2015 …. 18.26 Walker, ‘The Bishops, the Doctor, His Patient, and the AttorneyGeneral: The Conclusion of the McBain Litigation (2001) 30 FL Rev 507 …. 20.11 Waluchow, ‘Constitutionalism’ in Stanford Encyclopaedia of Philosophy, http://plato.stanford.edu/entries/constitutionalism>, 2001 …. 1.2 Winterton, Parliament, the Executive and the Governor-General, Melbourne University Press, Melbourne, 1983 …. 13.17, 13.18, 13.21, 13.26

Contents Foreword to the First Edition Author Contribution Disclaimer Acknowledgments Table of Cases Table of Constitutional Provisions References Chapter One: The Fundamentals of Australian Constitutional Law Introduction Australian constitutionalism Federalism Parliamentary supremacy Judicial review Separation of powers Responsible government A constitutional monarchy? Independence Who are ‘the people’? Constitutional change

Chapter Two: Constitutional Method

Introduction Principles of constitutional interpretation Characterisation Precedent The consequences of invalidity

Chapter Three: Introduction to Australian Federalism Introduction Implied immunity After the Engineers’ case Concurrent powers and exclusive powers Special powers ‘Full faith and credit’ References, co-operation and uniform legislation

Chapter Four: The States and the Constitution Introduction Legislative power of the states Extraterritorial power State power to regulate the Commonwealth State constitutional limits on state constitutional power

Chapter Five: The Constitution and the Territories Introduction Limits on the territories power Territory self-government

Chapter Six: Trade, Commerce and Intercourse and the Constitution Introduction

The trade and commerce power Interpretation of the power Trade and commerce ‘with other countries’ Trade and commerce ‘among the States’ Characterisation Freedom of trade, commerce and intercourse among the states The scope of s 92

Chapter Seven: Taxation under the Constitution Introduction ‘Taxation’ Fees that are not taxes Discrimination and preference Section 55: ‘Tacking’ in tax laws Section 114 Excise

Chapter Eight: The Constitution and Corporations Introduction ‘Foreign’, ‘trading’ or ‘financial’ corporations Character determined by actual or intended activities ‘Formed within the limits of the Commonwealth’ The scope of the corporations power

Chapter Nine: The Constitution and the Races Power Introduction What is a ‘race’? The purpose of the races power Characterisation Constutional recognition

Chapter Ten: External Affairs and the Constitution Introduction Geographic externality Australia’s international relations, obligations and concerns Implementation of treaty obligations Matters of ‘international concern’ Relations with other countries What are the limits on the external affairs power?

Chapter Eleven: Acquisition of Property on Just Terms under the Constitution Introduction Property Acquisition Just terms ‘In respect of which the Parliament has power to make laws’

Chapter Twelve: The Conciliation and Arbitration Power under the Constitution Introduction Industrial dispute ‘Extending beyond the limits of any one State’ Conciliation and arbitration Characterisation

Chapter Thirteen: The Federal Executive Power under the Constitution Introduction The Executive Executive power of the Commonwealth

The execution and maintenance of Commonwealth laws The ‘execution’ of the Constitution The ‘maintenance’ of the Constitution Prerogative powers The ‘nationhood’ power Capacities of the Crown Executive immunity

Chapter Fourteen: Appropriations, Grants and the Management of State Debts Introduction Commonwealth appropriations Grants to the states Management of state debts ‘Fiscal federalism’

Chapter Fifteen: Trial by Jury under the Constitution Introduction Limits on s 80 The scope of the guarantee

Chapter Sixteen: Freedom of Religion under the Constitution Introduction What is a ‘religion’? The ‘establishment’ clause Imposing religious observance Free exercise of any religion No religious test required

Chapter Seventeen: The Constitutional Prohibition on Discrimination on the Grounds of State Residence Introduction The early approach A new approach to s 117

Chapter Eighteen: Freedom of Political Communication under the Constitution Introduction The early cases The breakthrough Freedom of political communication post-McCloy: The new three-step Lange test Other implied freedoms?

Chapter Nineteen: Judicial Power of the Commonwealth Introduction Powers that are incidental to the exercise of judicial power What are ‘courts’? ‘Judicial power’ Rights arising from the separation of judicial power Exceptions to the fundamentals

Chapter Twenty: The Constitutional Jurisdiction of the High Court Introduction The appellate jurisdiction of the High Court The original jurisdiction of the High Court The High Court’s constitutional jurisdiction The cross-vesting scheme

Chapter Twenty-one: Inconsistency of Laws under the Constitution Introduction Laws must be valid and operative Inconsistency Repugnancy of laws in the territories Invalidity — the consequences of s 109 inconsistency

Chapter Twenty-Two: The Defence Power under the Constitution Introduction ‘The naval and military defence of the Commonwealth’ Nature and operation of the defence power Wartime Transition from war to peace Peacetime Preparation for war Characterisation Limits on the power?

Commonwealth of Australia Constitution Act (‘the Constitution’) Australia Act 1986 Index

[page 1]

Chapter One

The Fundamentals of Australian Constitutional Law Introduction 1.1 Australian constitutional law is made up of the rules set out in the Constitutions of the Commonwealth and the states and the selfgovernment Acts of the territories, along with the judgments that interpret those rules and apply them, and the literature and philosophies that inform those judgments from time to time. This Chapter very briefly outlines a number of the fundamental doctrines and principles of Australian constitutional law. Australia’s constitutional system is unique in that its development was shaped by two great constitutional systems: the ‘Westminster’ (parliamentary) system in the United Kingdom and the ‘Washington’ (federal) system in the United States. The Commonwealth Constitution (herein ‘the Constitution’), established by the Commonwealth of Australia Constitution Act 1900 (Imp), is a hybrid of these systems and has been referred to as the ‘Washminster’ mutation (Thompson, 1980). While the doctrines of ‘representative government’, ‘parliamentary supremacy’ and ‘responsible government’ are essential facets of the Westminster system of ‘parliamentary democracy’ (that is, parliamentary action derives from the will of ‘the people’), the doctrines of ‘federalism’, ‘judicial review’ and the ‘separation of

powers’ are indisputably American concepts. Foremost in the minds of the American drafters was to place limits on the exercise of governmental action, so as to prevent potential abuses of power. It necessarily follows that governmental power should be divided among two independent tiers of government (federalism), with such power distributed among three institutions at both levels of government — the legislature, executive and judiciary (separation of powers). The judiciary acts as a check on the validity of legislative and executive action (judicial review). These doctrines and principles are further considered at 1.6–1.14. Chapters 2 and 3 provide additional introductory material on the topics of constitutional interpretation and federalism. Most of the material covered in this Chapter is dealt with in more detail later in the book and cross-references have been provided to that additional material.

Australian constitutionalism 1.2 Constitutions set out the powers of governments and the limitations on those powers. Constitutionalism is a political philosophy that is characterised [page 2] by a belief that governments can and should be limited by fundamental principles (Waluchow, 2001): When scholars talk of constitutionalism … they normally mean … not only that there are rules creating legislative, executive and judicial powers, but that these rules impose limits on those powers. Often these limitations are in the form of individual or group rights against government, rights to things like free expression, association, equality and due process of law. But constitutional limits come in a variety of forms. They can concern such things as the scope of authority (e.g., in a federal system, provincial or state governments may have authority over health care and education while the federal government’s jurisdiction extends to national defence and transportation); the

mechanisms used in exercising the relevant power (e.g., procedural requirements governing the form and manner of legislation); and of course civil rights (e.g., in a Charter or Bill of Rights). Constitutionalism in this richer sense of the term is the idea that government can/should be limited in its powers and that its authority depends on its observing these limitations.

The idea that constitutionalism is government by prescribed or limited means was earlier noted by RD Lumb in 1983. In his book Australian Constitutionalism Professor Lumb observed (at p 4): … a constitutional system is one where the wielders of state power or authority are subject to limitations (whether arising from a written or unwritten constitution) so that in the exercise of their authority, ie their power to promulgate laws, they are subject to principles and rules which govern the manner in which that power is exercised.

Both Waluchow and Lumb agree that the essence of constitutionalism is ‘limited government’ whereby restraints, both procedural and substantive, are placed on the exercise of public power. As Waluchow suggests, a procedural restraint may be manner and form provisions (see 4.16–4.19 below), while a substantive restraint may be prescribed restrictions upon a government’s scope of authority (for example, distribution of powers between the central and regional governments). The extent of these restraints obviously varies, depending on the country and constitution in question. Some constitutions impose greater limitations on their governments than others. In many countries, constitutional implementation was preceded by violent emancipatory struggles. This was not the case in Australia, where the constitutional movement was animated by the need for free trade and movement between the colonies, and a mechanism to resolve interstate trade disputes. Given the expansion of French and German interests in the Pacific, it was also believed that a national government would be better placed to defend the nation in the event of an invasion by a foreign power. Thus, the Constitution embodies the basic aims and ambitions of the founding fathers. For example, s 92 provides that ‘trade, commerce and intercourse among the States …

shall be absolutely free’. Section 101 established an Inter-State Commission, and vested it with adjudicative and administrative powers to execute and maintain the sections of the Constitution relating to trade and commerce. Section 51(vi) provides that the parliament can make laws with respect to the naval and military defence of the Commonwealth and the states, and the control of the forces to execute and maintain these laws. Specific objectives aside, the principal function of Australian constitutionalism (in the context of ‘restraints’ on governmental action, as described above) is to [page 3] regulate the structure of the three main branches of government, including their relationship with each other as well as their respective powers. Another important function of Australian constitutionalism is to divide powers between the federal and state governments. However, while many western countries have enacted a bill or charter of rights as part of their constitutional framework, Australia has not. It is not a function of Australian constitutional law to advance rights and freedoms: see 1.3–1.4. This was instead left to the common law. An influential feature of British constitutionalism is the principle of the ‘rule of law’. According to its most famous proponent, the eminent English jurist AV Dicey, the ‘rule of law’ is a formula for ‘expressing the fact that … the law of the constitution, the rules which … form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts’ (1959, p 202, emphasis added). See also Clarke, Keyzer and Stellios, 2013, pp 2– 3. ‘Framers’ of the Constitution not concerned with rights 1.3

Waluchow’s description emphasises the importance of civil

rights in contemporary constitutionalism. However, the constitutionalism of the people who wrote the Commonwealth Constitution was, by contemporary standards, very limited in its moral scope. Many of the ‘framers’ of the Constitution were racists who believed that the states should retain the power to enact racially discriminatory electoral laws (s 25), and they believed that Aboriginal people should not be counted in the census at all (s 127). Section 25 still appears in the Constitution, and s 51(xxvi) has been interpreted in a fashion that allows the Commonwealth to enact racially discriminatory laws: see Kartinyeri v Commonwealth (1998) 195 CLR 337, discussed at 1.9 and 9.9. The framers of the Constitution were also sexists, and women were not involved in the debates preceding the development of the various drafts of the Constitution. The rejection of women’s participation almost certainly had a significant impact on the character of the Constitution that emerged (Irving, 1996). The referenda that preceded local approval of the draft constitution were governed by colonial electoral laws that excluded many people. As Dawson J noted in Kruger v Commonwealth (1997) 190 CLR 1 at 67: It may be observed that a degree of inequality was lacking in the free agreement (which is said to underlie the Constitution) … in that the referendum expressing that agreement excluded most women and many Aboriginals.

The people who wrote the Constitution also voted down a proposal for a constitutional protection of civil rights, voting against a proposal to include a bill of rights in the Constitution (O’Neill, 1987). 1.4 One case that illustrates the incapacity of the Constitution to protect human rights is Kruger v Commonwealth (1997) 190 CLR 1. In this case, a number of Aboriginal plaintiffs challenged the constitutional validity of the Northern Territory Aboriginals Ordinance 1918, which authorised a person titled the Chief Protector of Aborigines to undertake the ‘care, custody and control’ of

Aboriginal people in that territory. The plaintiffs had been removed from their families when they were young children and detained in institutions or reserves in accordance with this policy. They were separated from their families and traditions, and many [page 4] of them were physically and sexually abused while in custody. The plaintiffs alleged that their removal and detention: •

was wrongful and could not be authorised by a law supported by s 122 of the Constitution;

•

interfered with their freedom of religion which was protected by s 116 of the Constitution;

•

infringed an implied right of equality before the law, and an implied freedom of movement and association; and

•

usurped the judicial power of the Commonwealth by authorising their punishment without due process.

Each of these arguments failed, for reasons explored later in this book: first, because the Constitution contains few express rights and freedoms; and second, because the rights that do exist have been narrowly interpreted (see, for example, Chapters 15 and 16). The justices of the High Court also emphasised that the constitutional validity of a law, in a constitutional system without a bill or charter of rights, may have nothing to do with its morality. Brennan CJ said (at 40): In retrospect, many would say that the risk of a child suffering mental harm by being kept away from its mother or family was too great to permit even a well-intentioned policy of separation to be implemented, but the existence of that risk did not deny the legislative power to make laws which permitted the implementation of that policy.

Dawson J, with whom McHugh J agreed, said (at 52–3):

The measures contemplated by the legislation of which the plaintiffs complain would appear to have been ill-advised or mistaken, particularly by contemporary standards. However, a shift in view upon the justice of morality of those measures taken under an Ordinance which was repealed over 40 years ago does not of itself point to the constitutional invalidity of that legislation.

Dawson J went on to say (at 61): In a number of recent cases it has been pointed out that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power. Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights. The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based largely upon the Fourteenth Amendment to the United States Constitution and including a right to due process of law and the equal protection of laws. The framers preferred to place their faith in the democratic process for the protection of individual rights and saw constitutional guarantees as restricting that process. Thus the Constitution contains no general guarantee of the due process of law. The few provisions contained in the Constitution which afford protection against governmental action in disregard of

[page 5] individual rights do not amount to such a general guarantee. It follows that, in so far as the plaintiffs’ claim is reliant upon a constitutional right to the due process of law, it must fail.

The Constitution’s limited protection of rights and freedoms is considered further in Chapters 11 and 15–18. Fundamental questions about sovereignty 1.5 If the Aboriginal plaintiffs in Kruger could not extract justice from the Constitution, what other options would they have? Could

they challenge the sovereignty of the Commonwealth? Could they refuse to obey the laws because their ancestors never gave consent to the invasion and occupation of the continent by the British? The British believed Australia was terra nullius, or ‘empty land’. Because no one was perceived to ‘own’ the land, New South Wales was treated as a ‘settled’ colony, rather than a colony which was ‘ceded’ or ‘conquered’: Cooper v Stuart (1889) 14 App Cas 286 at 291; Western Australia v Commonwealth (Second Native Title Act case) (1995) 183 CLR 373 at 431–2. Accordingly, there was no legal obligation to make a treaty with or compensate the people who were dispossessed. Because the continent was regarded to be settled rather than conquered, Australian law failed to recognise the historical fact of the prior occupation by the Aboriginal peoples of the land and their title to the land: see further Reynolds, 1987. The notion that the Australian continent was terra nullius was rejected by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1. Mabo, a resident of Mer, an island off the Queensland coast, claimed that the Meriam people were entitled to ownership, occupation and possession of Mer, Dauar and Waier (the Murray Islands), on the basis that they enjoyed native title in the land which was not, and had never been, Crown land under Queensland law. The Meriam people had lived on the Murray Islands for many years before the arrival of the British, and continued to occupy their land after the annexation of the islands by Queensland in 1878. A majority of the High Court rejected the doctrine of terra nullius and recognised native title in these circumstances. The Commonwealth then enacted the Native Title Act 1993 (Cth), which recognised a right to make native title claims throughout continental Australia. It has been argued that the rejection of terra nullius altered the basis upon which it could be asserted that the British and their successors, the colonies and thence the Commonwealth, could claim sovereignty

over the land and its indigenous inhabitants: for example, Reynolds, 1996. However, the acquisition of the Australian continent by the British is regarded by the High Court to be an ‘Act of State’ which is not susceptible to judicial review: Mabo (No 2) at 31–2, 78–9; that is, the acquisition of the Australian continent and the assertion of political and legal sovereignty by the United Kingdom over it is not open to question: Western Australia v Commonwealth (Second Native Title Act case) (1995) 183 CLR 373 at 422. In Coe v Commonwealth (1979) 24 ALR 118 it was argued that Captain James Cook ‘wrongfully proclaimed sovereignty and dominion over Australia, contrary to the [page 6] rights, privileges, interests, claims and entitlements of the aboriginal people both individually and in tribes and the aboriginal community and nation’. Coe argued that the ‘aboriginal people … had from time immemorial a complex social, religious, cultural and legal system under which individuals and tribes had proprietary and/or possessory rights, privileges, interests, claims and entitlements to particular areas of land’, and that ‘aboriginal people are entitled to the quiet enjoyment’ of these rights etc, and ‘were entitled not to be dispossessed thereof without bilateral treaty, lawful compensation and/or lawful international intervention’. The Commonwealth made an application to strike out Coe’s application on the ground that it was doomed to fail. Coe’s application was dismissed with costs. Gibbs J noted (at 129) that: The Aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside.

Mason CJ approved this comment in Walker v New South Wales

(1994) 182 CLR 45. In that case, it was argued that: The Parliaments of the Commonwealth of Australia and of the States lack the power to legislate in a manner affecting aboriginal people without the request and consent of the aboriginal people. Further and in the alternative, if the Parliament of the Commonwealth or of a State legislates in a manner affecting aboriginal people the law in so far as it relates to aboriginal people is of no effect until it is adopted by the aboriginal people whom, or whose land, it purports to effect [sic].

Mason CJ said (at 48): There is nothing in the recent decision in Mabo (No 2) to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed Mabo (No 2) rejected that suggestion.

Representative government 1.6 The constitutional underpinnings of the Australian system of representative government were set out in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 557–8: Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively. This requirement embraces all that is necessary to effectuate the free election of representatives at periodic elections. What is involved in the people directly choosing their representatives at periodic elections, however, can be understood only by reference to the system of representative and responsible government to which ss 7 and 24 and other sections of the Constitution give effect. That the Constitution intended to provide for the institutions of representative and responsible government is made clear both by the Convention Debates and by the terms of the Constitution itself. Thus, at the Second Australasian Convention held in Adelaide in 1897, the Convention, on the motion of Mr Edmund Barton, resolved that the purpose of the Constitution was ‘to enlarge the powers of self-government of the people of Australia’.

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Sections 1, 7, 8, 13, 24, 25, 28 and 30 of the Constitution give effect to the purpose of self-government by providing for the fundamental features of representative government. As Isaacs J put it: [T]he Constitution is for the advancement of representative government. Section 1 of the Constitution vests the legislative power of the Commonwealth in a parliament ‘which shall consist of the Queen, a Senate, and a House of Representatives’. Sections 7 and 24 relevantly provide: 7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. 24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. Section 24 does not expressly refer to elections, but s 25 makes it plain that the House of Representatives is to be directly chosen by the people of the Commonwealth voting at elections. Other provisions of the Constitution ensure that there shall be periodic elections. Thus, under s 13, six years is the longest term that any senator can serve before his or her place becomes vacant. Similarly, by s 28, every House of Representatives is to continue for three years from the first meeting of the House and no longer. Sections 8 and 30 ensure that, in choosing senators and members of the House of Representatives, each elector shall vote only once. The effect of ss 1, 7, 8, 13, 24, 25, 28 and 30 therefore is to ensure that the Parliament of the Commonwealth will be representative of the people of the Commonwealth.

However, while the Constitution contemplates a representative system of government, it also reserves key powers relating to the character of the Australian electoral system to the parliament itself. Sections 7, 10, 22, 24, 30, 31, 34, 39, 46–48 and 51(xxxvi) of the Constitution have been interpreted as giving the Commonwealth Parliament considerable discretion on this topic. The breadth of this power was starkly illustrated in Langer v Commonwealth (1996) 186 CLR 302, where the High Court held by majority that the parliament

may prohibit people from promoting methods of casting invalid votes: see 18.11. The Constitution does not limit the power of the states to regulate their own electoral systems. The states can have systems that are quite undemocratic. In McGinty v Western Australia (1996) 186 CLR 140 the High Court rejected a constitutional challenge to the Western Australian electoral system, which gives extra weight to rural votes over metropolitan votes by allowing rural electorates to have less electors. The High Court held that the democratic principle of ‘one vote — one value’, which can be achieved where electorates across a state are (allowing for population shifts) equivalent in voter numbers, was not required in Western Australia by the Constitution Act 1889 (WA), nor by the Constitution: see 18.10. The implied freedom of political communication and other implications arising from Australia’s system of representative government are considered in Chapter 18. [page 8]

Federalism 1.7 One of the fundamental features of Australian constitutionalism is federalism. In Australia, legislative power is shared by the Commonwealth and the states. Professor Harrison Moore (1910, p 68) defined ‘federal government’ in the following terms: A ‘federal government’ exists where, in a political community, the powers of government are distributed between two classes of organization — a central government affecting the whole territory and population of the Sovereignty, and a number of local governments affecting particular areas and the persons and things therein — which are so far independent of each other that the one cannot destroy the other or limit the powers of the other, or encroach upon the sphere of the other.

The point of Harrison Moore’s statement is that in any federal

system, powers of government are shared between a central (national) government and regional (state/provincial) governments. This means that every citizen in a federal system is subject to two independent but concurrent bodies of law — federal law and (in the case of Australia) state law (with laws applying to citizens in their respective states). The challenge, as Harrison Moore puts it, is to ensure that these powers are appropriately divided so that each government is independent of the other, and so that one government (in all likelihood the central government) cannot destroy or limit the powers of the other, or encroach upon the sphere of the other: see 1.8 below. The Constitution clearly establishes that Australia is a ‘federal’ state. ‘Federal’ states may be contrasted with ‘unitary’ states. Whereas power in federal states is divided between two independent governments — that is, a central government and regional governments (also referred to as ‘sub-national units’), where power is constitutionally entrenched in both these political entities — power in unitary states is vested (constitutionally or otherwise) in the central government and it is for that government to determine what powers are provided to sub-national units. The United Kingdom, New Zealand, France, and most Scandinavian and African nations are unitary states. In Australia, the autonomy of self-governing states is protected, in large part, by ss 106–108 of the Constitution. Section 106 of the Constitution saves the constitutions of each state; s 107 saves the power of the state parliaments; while s 108 saves the power of state laws as of and following Federation. According to Jan-Erik Lane (1996), six characteristics are indicative of ‘federal’ states (pp 98–9): (1) Origins: The state may have been created by means of a federation act, in terms of which independent or semi-independent units come together and form a union …; (2) States as members: A federal state consists of governmental units that are often designated as ‘states’, creating the typical tension between the federal state and the member states that is the core of federalism — so-called ‘dual federalism’. The sub-units are not always denoted ‘states’, but may also be called ‘provinces’ as happens also in unitary states …;

(3) A federal chamber: A federal state has a two chamber system meaning that besides the national assembly it will also have a second chamber that is somehow connected with or represents the member states …;

[page 9] (4) Sub-national legislative bodies: In a federal state the member states or provinces have legislative powers, not only executive powers. The parliaments at the state level have built up their own legal systems, involving a constitution and a supreme court …; (5) Financial powers: The member states in a federation possess extensive rights to levy taxes of various kinds as well as to regulate the taxation powers of the lower tiers of government. Again, actual practice varies, as in some federal states most taxation is done by the central government, which then allocates grants to the provincial governments …; and (6) Constitutional court: In a federal state there is a court of some kind that resolves conflicts between the federal government and the state governments about competences, against the background of the constitution …

Lane concedes that not all of these characteristics are present in every federal system. However, all six aspects apply to Australian federalism. First of all, the imperial United Kingdom Parliament enacted the Commonwealth of Australia Constitution Act 1900 (Imp). Second, covering cl 6 of the Constitution expressly provides that ‘the states’ include the colonies of New South Wales, Queensland, Tasmania, Victoria, Western Australia and South Australia. Earlier, the preamble to the Constitution affirmed that ‘the people’ of five states (not Western Australia at the time that the final draft was prepared) agreed to unite in one indissoluble federal Commonwealth. Third, by virtue of the two-chamber system, there is a House of Representatives and a Senate. The Senate (at least in theory) represents the constituent states, with all states having the same representation in the upper house (that is, 12 senators per state, with two senators each in the Northern Territory and the Australian Capital Territory). Fourth, each state (as s 106 recognises) has a

constitution which contains legislative power to make laws: see 1.8 and 4.4. It is also true that each state has a supreme court, which may or may not be recognised in the state constitution Act. Fifth, the states are able to levy different kinds of taxes, although the states have effectively been unable to levy income tax since 1942 (see 3.9, 14.10–14.14 and 22.12) and, for the most part, have been reliant on the federal government for grants to make up the shortfall of government revenue. Finally, Lane states that there should be a constitutional court to resolve questions and conflicts between the federal government and state governments. In Australia, the High Court of Australia has constitutional jurisdiction to hear a matter which raises a constitutional issue (for example, ss 92 or 109): see further 20.22–20.23. The people who wrote the Constitution contemplated federalism as the principal basis upon which power should be divided between governments. This doctrine is discussed in more detail in Chapter 3, so will not be considered in further detail here. However, a few fundamentals about the division of power are helpful at this point by way of introduction. 1.8 In any federation, the decision must be made as to which government is afforded specific powers. Writing in 1987, Lane (at p 7) noted that the ‘demarcation line between the powers exercisable by the central government and the power available to the local states may be drawn in either of two directions’. Either ‘specific powers may be conferred on the states, general power left to the national body’ (for example, Canada) or ‘specific powers may be allotted to the central government, residual powers left to state governments’ (for example, the United [page 10]

States). In Australia, the framers chose the second option. The division of power between the Commonwealth and the states is largely worked out in ss 51 and 52 of the Constitution, which are discussed in Chapters 3–11. The Constitution contemplates a federal parliament with enumerated powers, rather than a (single) general legislative power. The states, on the other hand, have general law-making power and can regulate any topic: see further 4.4. Both the Commonwealth and the states are subject to various express and implied limitations on their constitutional power. So, for example, the Commonwealth cannot regulate state banking (see s 51(xiii)) and the states cannot tax Commonwealth property (s 114). Where the Commonwealth and the states have legislated in the same area, s 109 yields supremacy to the Commonwealth. But, within their respective spheres of competence the Commonwealth and the states enjoy ‘parliamentary supremacy’.

Parliamentary supremacy 1.9 Parliamentary supremacy, or parliamentary sovereignty, as it was traditionally termed, is the power of a legislature to make or unmake any law within its sphere of competence. This doctrine, and its operation within the Australian states, is considered at 4.4–4.6. One example of the operation of this doctrine at the federal level is Kartinyeri v Commonwealth (1998) 195 CLR 337. Kartinyeri, a woman from the Njarrindjeri people of South Australia, challenged the constitutional validity of the Hindmarsh Island Bridge Act 1997 (Cth). This Act repealed the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in an area where the government planned to build a bridge connecting Hindmarsh Island to the South Australia mainland. Kartinyeri brought her constitutional challenge to stop the bridge from being built, because she believed that it would destroy a sacred site. It was argued that s 51(xxvi) could not be invoked to support legislation that was not for the benefit of Aboriginal people. It

was counter-argued that if the Commonwealth had the constitutional power to protect Aboriginal heritage with the 1984 Act, then it had the power to repeal the 1984 Act in part with the 1997 Act to allow the bridge to be built. The Commonwealth argued that it is an incident of parliamentary supremacy that what the parliament can enact it can also repeal. A majority of the court upheld this argument: see further 9.9. In a system of representative government, parliamentary supremacy is not absolute because the exercise of legislative power can be checked by the will of the people expressed in elections. Leslie Stephen once observed (1882, p 143) that: … the power of the legislature is, of course, strictly limited. It is limited, so to speak, both from within and from without; from within, because the legislature is the product of a certain social condition, and determined by whatever determines the society; and from without, because the power of imposing laws is dependent upon the instinct of subordination, which is itself limited. If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.

So, while a state parliament could legislate that ‘all blue-eyed babies must be murdered’, community standards and the desire of politicians to be re-elected prevent such laws from being enacted. The problem for Kartinyeri, of course, is [page 11] that Aboriginal people are a minority of Australian electors, and minority groups are, by definition, less likely to achieve legislative change that protects their rights, freedoms and interests.

Judicial review

1.10 Legislative power is also checked by the courts, exercising their power of judicial review. Section 75 of the Constitution entrenches the jurisdiction of the High Court to review the constitutionality of legislative action in Australia. The doctrine of judicial review was considered in Australian Communist Party v Commonwealth (1951) 83 CLR 1 (also discussed at 13.28). The Commonwealth enacted legislation which purported to dissolve the Australian Communist Party and gave the GovernorGeneral the power to declare any organisation which supported communism to be illegal. Any declared organisation could have their property confiscated and their membership could be charged with criminal offences. In the preamble to the law, the Commonwealth stated that the law was necessary for the defence of Australia and the preservation of the nation. The Australian Communist Party and some of its sympathisers challenged the constitutional validity of the law on a number of grounds. One was that the necessity of the law to the defence of Australia or the preservation of the Australian nation was not a question which could be conclusively determined by parliament and that it was the function of the judicature to determine constitutional facts upon which the validity of the law might be determined. Several justices considered the significance of judicial review to an understanding of Australian constitutional law. Dixon J, after referring to the legislative powers and limitations on power in the Constitution, struck down the legislation and said (at 193) that Australian Government: … is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption. In such a system I think that it would be impossible to say of a law of the character described, which depends for its supposed connection with the power upon the conclusion of the legislature concerning the doings and the designs of the bodies or person to be affected and affords no objective test of the applicability of the power, that

it is a law upon a matter incidental to the execution and maintenance of the Constitution and the laws of the Commonwealth [emphasis added].

Fullagar J also pointed out that government under the Constitution means that the legislature may not simply state that it has the power to pass laws, because (at 258): … [t]he validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequences of the act are within the constitutional power upon which the law in question depends for its validity. A power to make laws with respect to lighthouses does not authorise the making of a law with respect to anything which is in the opinion of the law-maker, a lighthouse.

[page 12] 1.11 The power of judicial review was recognised as a fundamental of constitutionalism in the seminal decision of Marshall CJ of the United States Supreme Court in Marbury v Madison 5 US 137 (1803). Marbury had been appointed to federal judicial office in the dying days of the presidency of John Adams. When President Jefferson took office he was furious about the Adams Government’s tactic of ‘stacking’ the federal judiciary with judicial appointees whom he regarded to be sympathisers with the previous government. The documents that formalised the judicial appointments had not been delivered before Adams left office and Jefferson’s Secretary of State, James Madison, refused to deliver them. Marbury sought the remedy of mandamus in the Supreme Court to compel the new government to deliver his commission. The Supreme Court held that mandamus could be ordered to compel the executive government to do so because the federal judiciary was supreme in the exposition of the law of the United States Constitution. Marshall CJ contrasted the status of the United States Constitution with constitutions characterised by parliamentary sovereignty (at 176–7):

The distinction, between a government with limited and unlimited powers, is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it.

In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513–14, Gaudron, McHugh, Gummow, Kirby and Hayne JJ referred to Marbury v Madison and the Australian Communist Party case and said: … [section] 75 of the Constitution … and specifically s 75(v), introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review. There was no precise equivalent to s 75(v) in either of the Constitutions of the United States of America or Canada. The provision of the constitutional writs and the conferral upon this Court of an irremovable jurisdiction to issue them to an officer of the Commonwealth constitutes a textual reinforcement for what Dixon J said about the significance of the rule of law for the Constitution in Australian Communist Party v The Commonwealth. … The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.

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Separation of powers 1.12

The power of judicial review is reinforced by the doctrine of

the separation of powers, and principles of judicial independence. Central to this doctrine is the idea that the functions and powers of the three main branches of government (that is, the legislature, the executive and the judiciary) are sufficiently separate of one another as to ensure that each may function independently and without undue interference. In its modern form, the doctrine can be traced to Charles de Secondat, Baron de Montesquieu’s influential treatise on political theory, The Spirit of Laws (1748). The doctrine was influential in the development of the United States Constitution, and it so proved influential to the Australian framers too, albeit with a slight ‘Washminster’ twist. In its purest sense, according to Baron de Montesquieu, the doctrine of the separation of powers protects against the political abuse of power: ‘to prevent this abuse, it is necessary from the very nature of things that power should be a check to power’ (2001, p 172). Montesquieu continued (at p 173): In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. … When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it jointed with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it jointed to the executive power, the judge might behave with violence and oppression.

The Constitution strongly adheres to the separation of powers: New South Wales v Commonwealth (1915) 20 CLR 54 at 88–90 per Isaacs J.

Under the Constitution, the powers of the Commonwealth are divided among three institutions: the parliament, the executive and the judicature. The doctrine of the separation of powers is reflected in the Chapter divisions of the Constitution, which describe these three separate institutions of government: ‘[T]he legislative power of the Commonwealth shall be vested in a Federal Parliament’ (Ch I, commencing at s 1); ‘[T]he executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative’ (Ch II, commencing at s 61); and ‘[T]he judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court … etc’ (Ch III, commencing at s 71). The judicial independence of federal courts is protected by s 72 of the Constitution. The High Court has held that Ch III courts must be, and be seen [page 14] to be, independent and impartial tribunals: North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146. However, it should be observed that the ‘Washminster’ system of government in Australia only effects a partial implementation of the separation of powers. First, Ministers of State (see 13.9), the executive officers responsible for administering one or more government departments, must be drawn from the parliament and rely on the support of the lower house for their continued tenure (known as the doctrine of ‘responsible government’, as to which see below). Second, legislative power may be delegated by the parliament to the executive to create binding sub-laws: Victorian Stevedoring and General Contracting Co Ltd v Dignan (1931) 46 CLR 73 (see further

13.13–13.15). Strictly speaking, this is antithetical to the doctrine of the separation of powers because legislative power is being exercised by the executive arm of government. This constitutional arrangement is nevertheless valid: see R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254 at 275 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 537–40 per Viscount Simonds (giving judgment for their Lordships). However, there is strict separation of power between the judiciary and the legislature and the executive. As Viscount Simonds of the Judicial Committee of the Privy Council stated in Attorney-General (Cth) v The Queen, ‘in a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive’: at 540. This had earlier been noted by a majority of the High Court in the Boilermakers’ case: at 269–72, 278 per Dixon CJ, McTiernan, Fullagar and Kitto JJ. The separation of judicial power and principles of judicial independence are considered further in Chapter 19.

Responsible government 1.13 Another fundamental doctrine that pervades Australian constitutional law and is essential to its understanding is the doctrine of responsible government. Responsible government is a system of government in which the executive — the administrative arm of government — is responsible to the legislature: Brown v West (1990) 169 CLR 195 at 205 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ. At a practical level, the executive government is led by ministers (and assistant ministers or ‘parliamentary secretaries’: Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 461–4), who are members of parliament (see Constitution s 64) and only so long as those ministers continue to command the support of the majority of

the representative chamber — the House of Representatives (or, in the states, the lower houses): Victoria v Commonwealth (Petroleum & Minerals Authority (PMA) case) (1975) 134 CLR 81 at 156 per Gibbs J; Western Australia v Commonwealth (First Territory Senators’ case) (1975) 134 CLR 201 at 278 per Jacobs J; at 293 per Murphy J. The ministers, as members of the legislature, are ultimately responsible to the people at elections: New South Wales v Bardolph (1934) 52 CLR 455 at 509. The executive government is also dependent on the legislature for its funds: see ss 81 and 83 of the Constitution; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1. [page 15] In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 558–9 the court identified a number of provisions in the Constitution that: … establish a formal relationship between the executive government and the parliament and provide for a system of responsible ministerial government, a system of government which, ‘prior to the establishment of the Commonwealth of Australia in 1901 … had become one of the central characteristics of our polity’. Thus, s 6 of the Constitution requires that there be a session of the parliament at least once in every year, so that 12 months shall not intervene between the last sitting in one session and the first sitting in the next. Section 83 ensures that the legislature controls supply. It does so by requiring parliamentary authority for the expenditure by the executive government of any fund or sum of money standing to the credit of the Commonwealth, which is vested in the Queen and is exercisable by the GovernorGeneral, to be exercised ‘on the initiative and advice’ of ministers and limit to three months the period in which a minister of state may hold office without being or becoming a senator or member of the House of Representatives. Section 49 of the Constitution, in dealing with the powers, privileges and immunities of the Senate and of the House of Representatives, secures the freedom of speech in debate which, in England, historically was a potent instrument by which the House of Commons defended its right to consider and express opinions on the conduct of affairs of State by the Sovereign and the ministers, advisers and servants of the Crown. Section 49 also provides the source of coercive authority for each chamber of parliament to summon

witnesses, or to require the production of documents, under pain of punishment for contempt. The requirement that the parliament meet at least annually, the provision for control of supply by the legislature, the requirement that ministers be members of the legislature, the privilege of freedom of speech in debate, and the power to coerce the provision of information provide the means for enforcing the responsibility of the executive to the organs of representative government. In his Notes on Australian Federation: Its Nature and Probable Effects, Sir Samuel Griffith pointed out that the effect of responsible government ‘is that the actual government of the State is conducted by officers who enjoy the confidence of the people’. That confidence is ultimately expressed or denied by the operation of the electoral process, and the attitudes of electors to the conduct of the executive may be a significant determinant of the contemporary practice of responsible government [references omitted].

1.14 Leaving questions relating to the so-called ‘reserve’ powers of the Governor-General to one side (see 1.15–1.16 below), it is possible to describe the practical operation of the federal government in the following terms. The ‘government’ is formed by that political party or coalition of parties that has a majority in the House of Representatives. The Prime Minister is the leader of the party or coalition of parties that commands majority support in the House of Representatives. The formal repository of the executive power of the Commonwealth is the Governor-General. The phrase ‘the executive’ may be used to refer to the formal repository of executive power under the Constitution: the Governor-General and/or the Federal Executive Council which advises him or her. But the phrase is conventionally used to refer to the ‘Cabinet’, a group of Ministers of State convened by the Prime Minister that is the practical repository of executive power or, depending on the context, to a specific minister or ministers exercising executive power. The ‘Crown’ is a word that can be used in a formal sense to refer to the Queen and her representatives in Australia, but is also used to refer to the Governor-General of the Commonwealth and the Governors of the states. Often the phrase ‘the Crown’ is used to refer to the various agencies,

[page 16] departments and instrumentalities that administer the laws. The more general phrase ‘the government’ might be used to refer to all repositories of legislative, executive and judicial power, but typically refers to that political party (or parties) which enjoys a majority in the House of Representatives and from which are drawn the Ministers of State. For further discussion of these terms, see Sue v Hill (1999) 199 CLR 462 at 497–503. Chapter II of the Constitution describes the powers and functions of the executive branch of the Commonwealth: see further Chapter 13.

A constitutional monarchy? 1.15 While the Constitution vests legislative and executive power in the Queen (ss 2 and 61), the Queen and the Government of the United Kingdom no longer have any role in the government of the Commonwealth. In 1926 the Prime Ministers of Australia, Canada, Newfoundland, New Zealand and South Africa made ‘the Balfour Declaration’ that each of the countries were ‘autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs’: Halsbury’s Laws of Australia, [90-2400], [90-95]. Sections 62 and 64 of the Constitution combine to provide for the executive power of the Commonwealth, which is vested in the Queen and exercisable by the Governor-General, to be exercised ‘on the initiative and advice’ of ministers and limits to three months the period in which a Minister of State may hold office without becoming a Senator or a Member of the House of Representatives: Theodore v Duncan [1919] AC 696 at 706; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 558. In accordance with the principle that the executive acts on the advice

of the legislature, the role of the Governor-General in the government of the Commonwealth is generally regarded to be ceremonial only. If the principle of responsible government is that the executive is responsible to the legislature, and any remaining vestiges of foreign legislative power over Australia were removed by the Australia Acts (see 1.16 below), it follows that the Australian executive may no longer be directed by the Queen: see Sue v Hill (1999) 199 CLR 462 at 494–6. 1.16 However, most, but not all, of the provisions of the Constitution reinforce the principles of responsible government: ss 32, 33, 64, 67, 72, 103, 126 and 128. Ministers of State must be members of parliament (s 64), which reinforces the link between the executive and the people. But the Governor-General enjoys a number of powers the exercise of which does not expressly require that advice be taken from the Federal Executive Council. These powers are the so-called ‘reserve’ powers of the Governor-General, and include the power to summon and prorogue parliament (s 5); the power to dissolve the House of Representatives (ss 5 and 28); the power to dissolve both the House of Representatives and the Senate at the same time (s 57); the choice and removal of members of the Federal Executive Council (ss 62 and 64); and the command in chief of the naval and military forces of the Commonwealth (s 68). The distinction between powers that may be exercised by the Governor-General in Council and the Governor-General alone is to some extent reinforced by the text of s 63, which provides: ‘The provisions of this [page 17] Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice

of the Federal Executive Council’. Section 63 is unique in that it is the only section of the Constitution that prescribes a rule of construction for other provisions of the Constitution. No similar provision is made in respect to the construction of the references to the GovernorGeneral alone. To the extent that the Governor-General enjoys powers, including some very significant powers, which he or she may exercise without the advice of elected representatives (see Sue v Hill (1999) 199 CLR 462 at 494), Australia might more aptly be described as a constitutional monarchy characterised almost invariably by a tradition of responsible government. Certainly, legislation which purported to deprive the Governor-General of his or her function in regard to the execution and maintenance of the laws of the Commonwealth would be likely to be found to be constitutionally invalid: Richardson, 1977. The Senate can also force the dissolution of both Houses of Parliament by rejecting or failing to pass legislation passed by the House of Representatives: s 57. The most notorious example was in 1975 when the Senate, controlled by a coalition of the Liberal Party and Country Party, rejected the appropriations legislation passed by the House of Representatives, which was controlled by the Australian Labor Party. This action precipitated a constitutional crisis. The Prime Minister, the Hon EG (Gough) Whitlam, insisted that the Senate approve the legislation needed to fund Commonwealth government services, and assumed that the Governor-General would, consistent with the doctrine of responsible government, act on his advice and decline any other request or advice to dissolve parliament. The Leader of the Opposition, the Hon Malcolm Fraser, refused supply and argued that an election should be called. The Governor-General, Sir John Kerr, exercised his ‘reserve’ powers under ss 62 and 64 of the Constitution to dismiss Whitlam and appointed Fraser ‘caretaker Prime Minister’ to usher the government’s legislation through the Senate. The Governor-General dissolved the House and Senate and

called elections, which the Coalition won. While one of the conventions of responsible government is that the Governor-General exercises his or her power on the advice of the federal government (which is formed by that political party or parties which enjoy a majority of the seats in the House of Representatives), that convention was not honoured in 1975. 1.17 It may well be that Sir John Kerr’s actions in 1975 were unconstitutional. Considerable uncertainty remains about the ambit of the Governor-General’s powers. The Queen did not intervene in the crisis and has declined to intervene in other constitutional crises. But does that mean that Her Majesty Queen Elizabeth II, the Queen of Australia, or an heir or successor would not intervene in some future crisis? The Constitution, read literally, contemplates that United Kingdom royalty could exercise significant powers in Australia.

Independence 1.18 In extra-curial remarks in 1935, Sir Owen Dixon contrasted the Constitution of the Commonwealth with its United States prototype (Dixon, p 597): … in one respect the Constitution of our Commonwealth was bound to depart altogether from its prototype. It is not a supreme law purporting to obtain its force

[page 18] from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions.

Since that time there have been a number of significant developments that have reinforced Australia’s independence from the United Kingdom, altering contemporary perceptions about the source

of the Constitution’s continuing authority. The Statute of Westminster 1931 (UK), which was adopted in Australia in 1942 with effect from 3 September 1939, confirmed that the Commonwealth had full power to enact legislation having extraterritorial operation (s 3) and confirmed that the United Kingdom could not enact legislation with effect within Australia without the consent of the Commonwealth: s 4. The Australia Act 1986 (Cth), which was also enacted by the parliaments of the states, the territories and the United Kingdom, reconfirmed the legislative sovereignty of the Commonwealth within Australia and the independence of the Australian states subject to the Constitution. The Act confirmed that the United Kingdom Parliament has no power to legislate in Australia: s 1. The states were given power to legislate with extraterritorial effect: s 2(1). The Act confirmed that the states enjoy (and enjoyed before the commencement of the Act) plenary legislative power as wide as that enjoyed by the Imperial Parliament, excepting a power to engage in relations with countries outside Australia (a power which is enjoyed exclusively by the Commonwealth): s 2(2). It was also confirmed that the states could enact laws which were repugnant to Imperial legislation: s 3(2). These new powers remained subject to the Constitution: s 5. The power of the Queen to disallow state legislation was removed: s 8. The involvement of the Imperial Parliament in state affairs was terminated: s 10. Appeals to the Privy Council from the state Supreme Courts were also terminated: s 11. The passage of the Statute of Westminster and the Australia Acts have severed Australia’s constitutional ties with the United Kingdom: Sue v Hill (1999) 199 CLR 462 at 490–503, 528. As Gummow and Hayne JJ observed in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 467, there is no longer, ‘in constitutional theory or political reality’, the Imperial Crown of earlier days. Excepting some lingering questions that might remain relating to those executive powers that are notionally exercisable by

the Queen or her Vice-Regal representative without advice (when read literally), Australia is, constitutionally, an independent nation. The paradox is that the language of the Constitution contemplates a significant role for the Queen in the exercise of Australian executive power. The doctrine of responsible government would require the Governor-General to act with the advice of the legislature, but (as noted at 1.15) this doctrine is only partially reflected in the language of the Constitution. It has been argued that it is inconsistent with Australia’s status as an independent nation to have a foreign-born head of state. For these and other reasons it has been argued that Australia should take steps to confirm its status as an independent republic and remove all references to the Queen from the Constitution. A referendum was held in 1999 to determine whether the Constitution should be changed to enable Australia to have an Australian-born head of state. The model put to the people, which divided supporters of a republic, some of whom wanted a directly elected President, was a model in which an Australian President would be [page 19] elected by a two-thirds majority of parliament. The referendum was criticised by people who supported the retention of Australia’s links with the United Kingdom monarchy on the basis that the model would yield a ‘politician’s republic’. The referendum failed. See Kirby, 2000. Ironically, under Australian law, while the Queen of the United Kingdom is styled the ‘Queen of Australia’ (Royal Style and Titles Act 1973 (Cth)), the High Court has held that the United Kingdom is a ‘foreign power’. So, a person may be disqualified from holding

parliamentary office if he or she holds British citizenship, since this would qualify as a type of allegiance to a foreign power contrary to s 44(i) of the Constitution: Sue v Hill (1999) 199 CLR 462. Furthermore, a British person who emigrated to Australia many years ago who holds a right to vote granted by Australian electoral law and has, as a matter of fact, been ‘absorbed into the community’ does not necessarily enjoy a right of citizenship which would prevent his or her deportation. Citizenship is a statutory right, and therefore can be changed: Re Patterson; Ex parte Taylor (2001) 207 CLR 391. 1.19 The effect of the Statute of Westminster and Australia Acts has been to terminate Australia’s constitutional ties with the United Kingdom. This has given rise to questions about the foundational authority and legitimacy of the Constitution. If the legal authority for the creation of the Constitution came from the United Kingdom Parliament, then where does the authority of the Constitution come from now? Clause 5 of the Commonwealth of Australia Constitution Act 1900 (Imp), the English Act of Parliament that contains our Constitution, provides that ‘all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges and people of every State and of every part of the Commonwealth’, and only the people of Australia can change the Constitution. This is effected by referendum pursuant to s 128 of the Constitution. According to Geoffrey Lindell (1986), these provisions, together with the Constitution’s preamble, explain why the Constitution is legally and politically binding (pp 29–30, 37): Covering clause 5 makes clear that the Constitution was intended to ‘be binding on the courts, judges and people of every State and of every part of the Commonwealth’. But the supremacy clause in question does not by itself indicate why it should be recognised as having that effect. Two features of the Constitution would have been important in explaining its character at the time of its enactment. First its legal status was derived from the fact that it was contained in an enactment of the British Imperial

Parliament. Secondly, its political legitimacy or authority was based on the words contained in the preamble to that enactment which refer to the people of the Australian colonies having agreed to unite in a ‘Federal Commonwealth’. Whatever the legal position, these words draw attention to the political reason for its enactment, the document having been in large measure approved by the people of Australia, even if the number of persons who actually voted was only 60% of the eligible voters. The importance of the role played by the Australian people was to be further underlined by the ability given to them to amend the Constitution in accordance with proposals initiated by the Federal Parliament under s 128. … … the reason for the legally binding and fundamental character of the Constitution … can be found in the words of the preamble to the Constitution Act referred to earlier,

[page 20] namely, the agreement of the people to federate, supported by the role given to them in approving proposals for constitutional alteration under s 128 of the Constitution, as well as their acquiescence in the continued operation of the Constitution as a fundamental law. According to this approach the Constitution now enjoys its character as a higher law because of the will and authority of the people. Such an explanation more closely conforms to the present social and political reality and has the advantage of ensuring that the legal explanation for the binding character of the Constitution coincides with the popular understanding.

As Deane J noted in Breavington v Godleman (1988) 169 CLR 41 at 123: … the compact between the Australian people, rather than the past authority of the United Kingdom Parliament under the common law, [offers] a more acceptable contemporary explanation of the authority of the basic law of the Constitution.

Who are ‘the people’? 1.20 If Australia’s constitutional destiny is in the hands of Australians, and no longer in the hands of the United Kingdom (with the possible but unlikely exception that the Queen could intervene), then which Australians can do so? Section 128, the referendum provision, talks about ‘electors’, which is only a subset of all of the

people in Australia: see further Roach v Electoral Commissioner (2007) 233 CLR 162 at 172–8, 189–96. In other countries, such as the United States, birth gives rise to citizenship rights. In Australia, citizenship is conferred by statute: Singh v Commonwealth (2004) 222 CLR 322. In Roach the court appeared to endorse the notion that ‘the people’ in ss 7 and 24 of the Constitution are people who would ordinarily qualify for adult suffrage: at 174, 198–9. Aliens are not ‘people’ for the purposes of ss 7 and 24 of the Constitution, and they can be regulated by laws under s 51(xix) of the Constitution; see, for example, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; see also 13.20. The word ‘alien’ is the antonym of the phrase ‘subject of the Queen’ (or ‘citizen’). As Gleeson CJ remarked in Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 170–1: In Robtelmes v Brenan (1906) (4 CLR 395 at 404, 415, 418) this court, following the opinion of international jurists, and decisions of courts of the highest authority in England and the United States, held that it is an attribute of sovereignty that every State is entitled to decide what aliens shall or shall not become members of its community. Griffith CJ quoted the statement of the Privy Council that: … [o]ne of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests.

Constitutional change 1.21 Short of civil disobedience or revolution, the ultimate expression of popular sovereignty is the exercise of the power of the people to change the Constitution.

[page 21] The Constitution can only be altered by referendum under s 128 of the Constitution. Section 128 requires the approval of a majority of electors in a majority of states for any change to the Constitution to be effected. This double majority requirement has proven to be a significant hurdle, and only a few of the referendum questions put to the people have been approved. The changes have been: •

the amendment of s 13 in 1906 to facilitate concurrent elections for the Senate and House of Representatives;

•

the amendment of s 105 in 1910 to allow the Commonwealth to assume state debts;

•

the addition of s 105A in 1929 (regarding the management of state debts);

•

the addition of s 51(xxiiiA) (which gives the federal parliament power to legislate with respect to the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances;

•

the removal of the reference to ‘the Aboriginal race’ in s 51(xxvi) in 1967 and the repeal of s 127 (which provided that ‘Aboriginal natives’ should not be counted in reckoning the population of the Commonwealth);

•

the amendment of s 15 in 1977 (to ensure that casual vacancies in the Senate are filled by a person of the same political party as the departed Senator);

•

amendments to s 72 in 1977 to provide a mandatory retirement age for federal judges; and

•

the amendment of s 128 itself in 1977, enabling the residents of the territories to participate in constitutional referenda.

[page 23]

Chapter Two

Constitutional Method Introduction The High Court of Australia and the development of constitutional law 2.1 This chapter considers how the High Court develops constitutional law. The first part of the chapter outlines the different approaches that judges take to that task. The second part of the chapter examines principles of constitutional interpretation. The third part of the chapter considers the principles of ‘characterisation’, or the interpretation of statutes that have been subjected to constitutional challenge. The fourth part of the chapter considers the operation of the doctrine of precedent in Australian constitutional cases. In the final part, the consequences of invalidity are considered. The High Court of Australia is contemplated by s 71 of the Constitution which states that the ‘judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia [which] shall consist of a Chief Justice, and so many other Justices not less than two, as the Parliament prescribes’. The judicial review of legislative action is a significant part of its work. The High Court also has a number of other important functions. It is the ultimate appellate court in Australia (s 73). It states and develops the common law of Australia.

Alfred Deakin called the High Court the ‘guardian of the Constitution’ and the ‘keystone of the federal arch’ (Deakin, 1902): The Constitution is to be the supreme law, but it is the High Court which is to determine how far and between what boundaries it is supreme. The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power.

‘Activism’ and ‘legalism’ 2.2 As Dixon J once observed, ‘the Constitution is a political instrument’: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82. All constitutional cases have political consequences, since the court’s decision validates or invalidates legislative action. The political consequences of judicial decisions have been frankly recognised by the justices of the High Court. 2.3 Because constitutional cases have political consequences, this gives rise to concern that judges may use their position to advance their personal political or policy preferences, rather than decide cases according to precedent. Judges who are said to do this are labelled ‘activists’. Justice Kirby has written that judges [page 24] should be active in their search for justice, ‘adapting, where necessary, legal principles which appeared to stand in the way’ (Kirby, 1997, p 13). Justice Kirby’s many extra-curial statements about judicial lawmaking, and the High Court’s controversial ‘implied rights’ jurisprudence of the early 1990s, gave rise to a vigorous debate about the judicial role in deciding constitutional cases: see Hanks Australian Constitutional Law, 2009, pp 204–5. Judges adopt different approaches, and may adopt different approaches in different cases. If they have articulated their

philosophies of judging in judgments or extra-curial remarks, this can be helpful in speculating about the approach they may take in a particular case. However, describing a judge as ‘activist’ or ‘legalist’ will never offer a substitute for analysing the judgments they write in order to determine their approaches to issues of policy. It is more fruitful, and necessary at any rate, to examine the methods the members of the court have developed for determining the meaning of the Constitution. ‘Activism’ is typically contrasted with the ‘orthodoxy’ of ‘legalism’. This phrase is associated with Dixon CJ’s recommendation in his swearing-in speech ((1952) 85 CLR xi at xiv): … close adherence to legal reasoning is the only way to maintain confidence of all parties in federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other guide to judicial decisions in great conflicts than a strict and complete legalism.

The ‘federal conflicts’ to which Dixon CJ referred were the disputes between the Commonwealth and the states about their relative shares of legislative and executive power. Dixon CJ believed that the confidence of these polities in the integrity of the process of constitutional adjudication could only be ensured if judges were able to demonstrate adherence to principles that could be readily ascertained and applied. Confidence in the impartiality of the process could only be realised if judges eschewed consideration of the policy consequences of their decisions when they exercised their discretion. That is, judges were to apply legal, as opposed to policy, principles when resolving disputes. Judges have traditionally defended the exercise of their discretion in constitutional cases on this basis. In South Australia v Commonwealth (Uniform Tax case (No 1)) (1942) 65 CLR 373 (see 14.14), a case which raised the politically charged issue of the relative taxing powers of the Commonwealth and states, Latham CJ said (at 409) that the: … controversy before the court is a legal controversy, not a political controversy. It is

not for this or any other court to prescribe policy or to seek to give effect to any views or opinions upon policy. We have nothing to do with the wisdom or expediency of legislation. Such questions are for parliaments and the people.

2.4 One of the problems with legalism was identified by Chief Justice Mason (1986, p 5), who said: The asserted advantage of a legalistic approach is that decisions proceed from the application of objective legal rules and principles of interpretation rather than from the subjective values of the justices who make the decisions. Unfortunately, it is impossible to interpret any instrument, let alone a constitution, divorced from

[page 25] values. To the extent they are taken into account, they should be acknowledged and should be accepted community values rather than mere personal values. The ever present danger is that ‘strict and complete legalism’ will be a cloak for undisclosed and unidentified policy values … Constitutions are documents framed in general terms to accommodate the changing course of events, so that courts interpreting them must take account of community values.

The overwhelming majority of judges are committed to the principle that the Constitution should be interpreted in accordance with contemporary values (see, for example, Cheatle v The Queen (1993) 177 CLR 541, considered below at 2.11). This requires identification of those values, and making choices about values. 2.5 Some judges emphasise the need for judicial restraint, and say that precedent should be applied even if the result advances an unjust policy. Chief Justice Dixon (1965, p 158) remarked: It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental or settled legal principles to new conclusions or to decide that a category is not closed against unforeseen instances … It is an entirely different thing for a judge who is discontented with a result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience.

In quite a number of cases, High Court justices have said that constitutional cases form a special category, and should be

approached with more restraint than usual. In Attorney-General (NSW); Ex rel Tooth & Co v Brewery Employes Union (NSW) (Union Label case) (1908) 6 CLR 469 at 590, Higgins J said: Nothing would tend to detract from the influence and usefulness of this court more than the appearance of an eagerness to sit in judgment on Acts of Parliament, and to stamp the Constitution with the impress which we wish it to bear. It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armoury.

This comment was approved by Gummow and Hayne JJ in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 473–4, who remarked ‘that settled practice has continued and should be retained’. In Lambert v Weichelt (1954) 28 ALJ 282 at 283, Dixon CJ said: It is not the practice of the court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties.

Principles of constitutional interpretation 2.6 A useful starting point is Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) (1920) 28 CLR 129, the facts of which are considered further at 3.8. In the Engineers’ case the High Court said that the words of the Constitution are to be given their ‘natural and ordinary’ meaning. One premise underlying this statement is that the meaning of constitutional language can be affirmatively established through a discrete and objective process of analysis. Expressed in these terms — as a natural and ordinary thing as distinct from an unnatural and extraordinary thing — the rule is difficult to resist. It is grounded in a positivist philosophy, which is characterised by the belief that people can agree on the [page 26]

meaning of language in context and that they can apply this shared understanding to the resolution of problems. Our legal system is characterised by this philosophical approach: the belief that every fact and principle of law can be described by the language we adopt, and that it is possible to develop a formal and rigorous system for the determination, through a process of analysis, of these facts and principles. A majority of the High Court held that the Constitution should be interpreted in accordance with the ordinary principles of statutory interpretation, rather than with any doctrines said to be ‘implied’ by the Constitution relating to the relationship between the Commonwealth and the states. The ‘golden rule’ of statutory interpretation, which was applied to any other British statute, was that the language of the Constitution is to be read in its natural and ordinary sense (at 149–50), or as Higgins J said (at 161–2): The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable … unless the limitation can be found elsewhere in the Constitution, it does not exist at all [emphasis added].

Knox CJ, Isaacs, Rich and Starke JJ said that ‘ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning’: at 155 (emphasis added). The approach adopted by the majority justices in this case is often referred to as a ‘literal’ approach, as it emphasises the importance of the express language of the Constitution in establishing constitutional meaning. ‘Implications’ 2.7

While the majority judgments in the Engineers’ case emphasised

the primary importance of the express language of the constitutional text in the quest for constitutional meaning, the determination of the meaning of the Constitution is not restricted to its express language, but extends also to implications which may be made regarding its meaning. A constitutional implication may be defined as a suggestion that the text or structure of the Constitution represents some truth or the existence of some fact that is not expressly stated in its language. Although the High Court stressed the importance of the express language of the Constitution in the Engineers’ case (1920) 28 CLR 129, ‘implications’ have a role in the interpretation of the Constitution. In West v Commissioner of Taxation (NSW) (1937) 56 CLR 657, Dixon J said (at 681–2): Since the Engineers’ case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers’ case meant to propound such a doctrine.

Any process of interpretation involves the making of implications by the interpreter as to the meaning of the language at issue. As Michael Detmold (1985) has pointed out, ‘meaning depends upon context; and implications are part of the [page 27] logical structure of language’. Even the literal approach endorsed by the majority in the Engineers’ case requires that an implication be made relating to the existence of a ‘natural’ or ‘ordinary’ context within which the constitutional text is interpreted. For example, no one would seriously argue that s 92 of the Constitution guarantees that any trade, commerce and intercourse should be ‘absolutely free’. Would such a freedom protect interstate

trade and commerce in slaves and invalidate any attempt to abolish such a trade? It would be absurd to interpret the Constitution divorced from history, the purposes to which the language chosen was directed, the functions of the institutions of government it creates, and the contemporary social context in which it is applied. These factors can all be relevant to constitutional interpretation. Implications have been drawn in a variety of contexts. The system of representative government prescribed by the Constitution (see 1.6 and 18.5–18.14) gives rise to an implied freedom to discuss political and governmental matters: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The implication means that the Commonwealth, states and self-governing territories cannot enact legislation that has the ‘effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides’ (Coleman v Power (2004) 220 CLR 1 at 51, 77–8, 82, discussed further at 18.15). The federal structure of government described by the Constitution gives rise to an implication that the states enjoy a measure of autonomy and integrity which precludes the exercise of Commonwealth power in a manner which singles them out and threatens their capacity to function as independent governing entities: Melbourne Corporation v Commonwealth (1947) 74 CLR 31; see further 3.10. 2.8 Implications can only be made on the grounds of necessity. In the Engineers’ case, Knox CJ, Isaacs, Rich and Starke JJ said (at 155) that the golden rule of statutory construction required the court ‘to discover in the actual terms of the instrument their expressed and necessarily implied meaning’ (emphasis added). Necessity is an elastic concept, so it is not surprising that implications tend to be elastic. Even necessary implications can be rejected. As Booker, Glass and Watt point out, the first justices of the High Court considered that ‘the constitutional

implications on which they based the old intergovernmental immunities doctrine and the reserved powers doctrine were necessary implications — a necessity arising [from] the nature of the Federal system as they perceived it’ (Booker, Glass and Watt, 1994, p 47). Yet these implications were rejected and new implications have taken their place (see Melbourne Corporation v Commonwealth (1947) 74 CLR 31; Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372) to fulfil a similar purpose — the regulation of intergovernmental immunity — but with a markedly different effect on state power: see 3.10 and 4.13, respectively. Historical origins and contemporary standards — the ‘connotation’ and ‘denotation’ of constitutional language 2.9 To this point, the focus has been placed on the express language of the Constitution, and implications that can be derived from the Constitution. But the principle of the Engineers’ case, that the words of the Constitution are to be [page 28] given their ‘natural’ or ‘ordinary’ meaning, begs the question: what is the natural and ordinary context within which constitutional interpretation takes place? The answer to this question will be explored in the next few paragraphs. One principle, touched on in the quote from the judgment of Higgins J in that case (set out above at 2.6) is to interpret the Constitution by reference to the intention of the makers, to be deduced from the words used by the people who wrote the Constitution interpreted in the historical context in which they used them. This approach was taken by Callinan and Heydon JJ, against the

weight of precedent, in their dissenting judgment in XYZ v Commonwealth (2006) 227 CLR 532 at [153], considered further below at 10.8. However, the overwhelming majority of the judges in constitutional cases have endorsed an ‘ambulatory’ approach to the construction of the Constitution. According to this approach, the language of the Constitution has an ‘original’ or ‘essential’ meaning, which is ‘fixed’ by history, and a denotation, which is the meaning of the words today having regard to that historical context but taking into account contemporary circumstances: see Street v Queensland Bar Association (1989) 168 CLR 461 at 537 per Dawson J. An ambulatory approach was favoured in the early case AttorneyGeneral (NSW); Ex rel Tooth & Co v Brewery Employés Union (NSW) (Union Label case) (1908) 6 CLR 469. In that case, the High Court was invited to consider the meaning of the phrase ‘trade marks’ in s 51(xviii) of the Constitution. Griffith CJ made the following remarks (at 501): The meaning of the terms used in that instrument must be ascertained by their signification in 1900. The Parliament cannot enlarge its powers by calling a matter with which it is not competent to deal by the name of something else which is within its competence. On the other hand, it must be remembered that with advancing civilization new developments, now unthought of, may arise with respect to many subject matters. So long as those new developments relate to the same subject matter the powers of the Parliament will continue to extend to them. For instance, I cannot doubt that the powers of the legislature as to posts and telegraphs extend to wireless telegraphy and to any future discoveries of a like kind, although in detail they may be very different from posts and telegraphs and telephones as known in the nineteenth century [see also at 521, 534–5, 562].

As Higgins J observed in that case (at 610), that trade marks usage in 1900 ‘gives us the central type; it does not give us the circumference of the power’. So, in Ex parte Professional Engineers’ Association (1959) 107 CLR 208, Windeyer J said: ‘We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900’: at 267.

2.10 The use of historical materials to establish a context within which constitutional language may be interpreted was considered in Cole v Whitfield (1988) 165 CLR 360 (see further 6.31–6.37). The High Court said (at 385): Reference to history may be made, not for the purpose of substituting for the meaning of the words used the scope and effect — if such could be established — which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

[page 29] In New South Wales v Commonwealth (Incorporation case) (1990) 169 CLR 482 at 501–2, a majority of the court used the Convention Debates to assist them in reaching the conclusion that the words ‘formed within the limits of the Commonwealth’ in s 51(xx) of the Constitution meant that the Commonwealth did not enjoy a power to incorporate companies, and could only regulate companies which were already formed within the Commonwealth: see further 8.13. The extent to which a particular meaning is to be preferred is based on a determination of the essential features of a provision and/or its purpose: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 91–2 per Gaudron and Gummow JJ with whom Gleeson CJ agreed; at 131–2 per Kirby J; at 135 per Hayne J. The common law and contemporary standards 2.11 In the Engineers’ case, Knox CJ, Isaacs, Rich and Starke JJ said that the Constitution should be read ‘naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it’: (1920) 28 CLR 29 at 55. While the Constitution must be understood in

its common law context, common law principles and concepts can develop over time, and this development can affect the meaning of constitutional language. The way that these factors are applied to arrive at conclusions about constitutional meaning can be illustrated by having regard to a number of the cases concerning s 80 of the Constitution, which provides a (limited) guarantee of trial by jury. In Cheatle v The Queen (1993) 177 CLR 541 at 552, the High Court unanimously held that the constitutional guarantee of trial by jury in s 80 was to be understood in accordance with the common law history of criminal trial by jury at Federation, but adapted to accord with contemporary standards: see further 15.18. The High Court drew a distinction between the ‘essential’ features of common law trial by jury at the time of Federation, which were incorporated into the constitutional guarantee in s 80 of the Constitution, and the inessential features which could be discarded if they clashed with contemporary standards: Neither the exclusion of females nor the existence of some property qualification was an essential feature of the institution of trial by jury in 1900. The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community. It may be that there are certain unchanging elements of that feature or requirement such as, for example, that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State. The restrictions and qualifications of jurors which either advance or are consistent with it may, however, vary with contemporary standards and perceptions. The exclusion of women and unpropertied persons was, presumably, seen as justified in earlier days by a then current perception that the only true representatives of the wider community were men of property. It would, however, be absurd to suggest that a requirement that the jury be truly representative requires a continuation of such exclusion in the more enlightened climate of 1993. To the contrary, in contemporary Australia, the exclusion of females and unpropertied persons would itself be inconsistent with such a requirement.

The role of history, purpose and the common law context in constitutional construction were considered in Brownlee v The Queen (2001) 207 CLR 278.

[page 30] Brownlee was convicted by a jury of 10 people convened pursuant to s 80 of the Constitution and under the Jury Act 1977 (NSW). Twelve people were convened for the jury, but two members were discharged before the verdict was reached. The New South Wales law made provision for this, saying that a verdict reached by 10 was still a ‘trial by jury’. The New South Wales law also allowed the jury members to separate before they retired to reach their verdict. Brownlee argued that the New South Wales law was constitutionally invalid because it was repugnant to s 80 of the Constitution. He argued that the constitutional institution of trial by jury included a requirement that there be 12 jurors, and 12 jurors who were not separated between the conclusion of the trial and the verdict. The arguments were rejected: see further 15.22. The justices of the court took the opportunity to consider how the meaning of the language of the Constitution should be determined. It is interesting to compare their approaches. Gleeson CJ and McHugh J articulate the dilemma, but endorsed a legalistic approach ((2001) 207 CLR 278 at 285–6): In the resolution of a problem as to the interpretation of the Constitution, the significance of the circumstances surrounding the framing of the instrument will vary according to the nature of the problem. An understanding of the context in which an instrument was written is ordinarily useful, and sometimes essential, for an understanding of its meaning. To recognize that is not to treat the subjective understanding of the framers, if it is possible to find any such common understanding, as the determining factor in a dispute about interpretation. It is simply to accept the historical context in which an instrument was written, which such an understanding may reflect, as potentially relevant to a question about the meaning of the instrument. Similarly, the genesis of an instrument may throw light upon its meaning … Here, the question at issue concerns the meaning of ‘trial … by jury’ in s 80. The question is being asked for the purpose of considering an argument that a trial, conducted in accordance with the standards of contemporary legislation and practice in New South Wales, was not trial by jury within the meaning of s 80. It is relevant to

inquire whether there was, at the time of the Constitution, something about criminal law or practice that might justify a conclusion that the words have a meaning such that essential elements of trial by jury were absent in the present case. As the process of reasoning in Cheatle demonstrates, that is not the only inquiry to be made. But it is not something that can be ignored. If the meaning of ‘trial … by jury’ is to be determined solely by reference to contemporary standards, there is nothing to argue about. Contemporary standards are reflected in the Jury Act. Whether right or wrong, the applicant’s argument is that, when used in s 80, the expression embodies different standards. In Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 143–4, Brennan J said that the Constitution ‘speaks continually to the present and it operates in and upon contemporary conditions’. However, in the same passage he pointed out that it speaks in the language of the text, which is to be ‘construed in the light of its history, the common law and the circumstances or subject matter to which the text applies’. That is consistent with the approach to construction that was adopted in Cheatle. The contemporary standards as to trial by jury which are reflected in the Jury Act, are those of the New South Wales Parliament. If those standards do not satisfy the constitutional requirement, it can only be because the meaning of the constitutional text produces that result. It cannot be because the contemporary judiciary espouses values different from those of the contemporary legislature. The only relevant power

[page 31] of the judiciary, which has its source in the Constitution, is to give effect to the meaning of the Constitution. Judges have no power to formulate and declare their own standards of jury trial, which override those of the legislature. One of the most significant aspects of the history of trial by jury before, and up to, the time of Federation is that it shows that the incidents of the procedure never have been immutable; they are constantly changing.

Gaudron, Gummow and Hayne JJ first referred (at 298) to American authorities, confirming that the phrase ‘trial by jury’ ‘includes all the essential elements as they were recognized in this country and England when the Constitution was adopted’, and that the legislature could use new devices ‘to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice’. Their Honours went on to say (at 298–9):

This distinction between the essential and the inessential (features of the constitutional institution of trial by jury) has been drawn by Cheatle into the constitutional doctrine respecting s 80 of the Constitution. In the present case, the question becomes whether a reduction, for cause shown to the satisfaction of the court, in the number of jurors from 12 to no fewer than 10 and the permission for the jury to separate after they had been charged to consider their verdict involve changes to the details of the conduct of jury trial mandated by s 80 or destroy an essential feature or fundamental thereof. Classification as an essential feature or fundamental of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves. In his judgment in Ex parte Peterson 253 US 300 at 310 (1920), Brandeis J referred, with approval, to the article by Professor A W Scott ((1918) 31 Harvard Law Review 669), from which a passage has been extracted earlier in these reasons. The learned author also wrote (at 671): Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential, a question which is necessarily, in the last analysis, one of degree. The question, it is submitted, should be approached in a spirit of openmindedness, of readiness to accept any changes which do not impair the fundamentals of trial by jury. It is a question of substance, not of form.

In Cheatle, the court said ((1993) 177 CLR 541 at 560): Neither the exclusion of females nor the existence of some property qualification was an essential feature of the institution of trial by jury in 1900. The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community. It may be that there are certain unchanging elements of that feature or requirement such as, for example, that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State.

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ emphasise the history, common law context and purpose of trial by jury at the time of Federation as a starting point, but not the finishing point, in the determination of the meaning of the constitutional language. The finishing point is reached when the court has stripped away the inessential features of trial by jury. In Brownlee v The Queen (2001) 207 CLR 278 at 321–3 Kirby J, by contrast, emphasised that the

[page 32] court will not restrict its approach by reference to the intention of the framers of the Constitution, without regard to subsequent historical developments and contemporary social mores: In Cheatle, this court swept aside the characteristics of trial by jury in 1900 involving only male persons and property owners, describing such requirements as ‘undesirable’ (1993) 177 CLR 541 at 560. The explanation given for that conclusion was that such qualifications were not compatible with a ‘contemporary institution’ or ‘modern democratic society’ (at 560). I agree both with the conclusion and with the propounded criterion by which, in Cheatle, the concept of ‘trial … by jury’ was, in these respects, adapted to the modern Australian conditions in which Ch III, and s 80 specifically, have to apply. But I point out that, once such considerations are accepted as apt to modify notions concerning the ‘essential feature of the institution of trial by jury in 1900’ (at 561), it is impossible (except in the realm of fiction) seriously to suggest that the conduct of ‘trial … by jury’ in 1900 remains the universal criterion for the understanding of those words as they appear in the Constitution today. Either one adheres to the historical notions of 1900, and takes the mind back to what the framers knew and understood about jury trial, or one accepts that the constitutional expression must be given a ‘contemporary’ meaning, as befits a ‘modern democratic society’. Because, by definition, the world of the framers was not that of today’s Australians, it is misleading, and prone to result in serious error, to accept as the applicable principle of constitutional interpretation the ‘intention’ of those who framed it. One thing the framers certainly knew was that they were creating a new polity to be governed indefinitely by a fundamental written law. That document appears in statutory form. Its meaning is therefore uncovered by the general techniques of statutory construction (Abebe v The Commonwealth (1999) 197 CLR 510 at 581–2). However, because the Constitution is a special statute of a peculiar kind for particular purposes and unique operation, the rules of construction applicable to it include some that are special, particular and unique. Even with ordinary legislation, expected to have an extended operation, it is increasingly accepted that language lives and meaning adapts to changed circumstances. Words are not necessarily confined to the meaning that would subjectively have been ascribed to them by the Parliament that enacted them. This is even truer of constitutional words and phrases. Recognition of this fact does not render wholly irrelevant the consideration of history — as in the debates that preceded adoption of the Constitution. But it does limit the utility of such searches when the real consideration is what those words and phrases mean in their contemporary institutional setting and as they must operate in accordance with the ‘accepted standards of a modern democratic society’ (Cheatle at 560), such as the Constitution was adopted to provide.

The siren song of 1900 does not therefore become more attractive by embracing the fiction (propounded by South Australia) that an ‘intention’ of the framers of the Constitution in 1900 can be ‘objectively’ discovered. Some such fictitious reification of the ideas of 1900 would certainly be necessary if countless instances by which this court has adapted constitutional language to contemporary circumstances were to be explained … No fiction could disguise the inconsistencies inherent in such an approach. Either this court should adhere to construing the words of the Constitution according to the understandings of 1900, or it should accept another approach, such as I favour. In my respectful opinion, a hybrid approach is intellectually incoherent.

In the Brownlee decision, Callinan J said that it was ‘appropriate … to have regard to the position in the colonies at Federation’ but he has elsewhere approved the approach taken by the unanimous High Court in Cheatle. [page 33] In Brownlee, every justice of the court agreed that it is permissible and desirable for the court to consider the history, common law context and purpose of the language adopted by the people who framed the Constitution. Every judge accepts that the meaning of constitutional language can change over time. Every judge accepts that the language of the Constitution must be applied to present circumstances. The difference appears to be how much emphasis should be given to each of these factors. The diversity of approaches taken in the case law indicates that debates within the court about constitutional method have not been resolved. In an adversarial system contemplating choice, this should not be surprising. However, it does mean that guessing the result of novel constitutional litigation can be difficult. A broad approach to national powers 2.12 The High Court has traditionally expressed a preference for a ‘broad’ interpretation of Commonwealth constitutional powers. This

approach is allied to a conception of the Constitution as a document intended to sustain a nation with evolving needs. This approach to constitutional interpretation was enunciated in a number of United States cases, and applied by O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 367–8: … it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.

So, for example, in Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, the High Court was invited to consider a submission that the power to regulate ‘trade and commerce’ under s 51(i) of the Constitution could not authorise the Commonwealth to set up a government trading enterprise (see further 6.7). The court rejected this argument and Dixon J said (at 81): I am of opinion that this argument ought not be accepted. It plainly ignores that fact that it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances. It confuses the unexpressed assumptions upon which the framers of the instrument supposedly proceeded with the expressed meaning of the power. A law authorizing the government to conduct a transport service for inter-State trade, whether as a monopoly or not, appears to me to answer the description, a law with respect to trade and commerce amongst the States. It is only by importing a limitation into the descriptive words of the power that such a law can be excluded.

The High Court unanimously approved this statement in R v Coldham; Ex parte Australian Social Welfare Union (CYSS case) (1983) 153 CLR 297. That case concerned the meaning of the phrase ‘industrial disputes’ in s 51(xxxv) of the Constitution. The court rejected the view expressed in earlier decisions that the phrase only referred to disputes involving people involved in ‘industrial’ labour (for example,

[page 34] factory workers) rather than school teachers (see Federated State School Teachers’ Association of Australia v Victoria (1929) 41 CLR 569); or that ‘industrial disputes’ might refer only to people involved in ‘productive industry and organized business’: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers’ Association (1959) 107 CLR 208 per Dixon CJ at 234. Rather, the phrase should be given its ‘popular’ and contemporary meaning — referring to ‘disputes between employers and employees about the terms of employment and the conditions of work’: CYSS case at 312–13; see further 12.5. A broad approach to constitutional guarantees 2.13 The High Court has sometimes indicated a preference for a similar ‘broad’ approach in relation to some, but not all, constitutional limitations on power. Referring to s 51(xxxi) of the Constitution in Bank of NSW v Commonwealth (1948) 76 CLR 1 at 349, Dixon J said that: … consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect.

However, generally speaking, a narrow approach has been taken to the construction of constitutional guarantees of rights or freedoms and, often, the characterisation of laws that are alleged to infringe these guarantees: see further Chapters 15 and 16. Clashes and overlaps 2.14 Constitutional provisions can clash or overlap in a variety of ways. In this paragraph, some common problems of construction are considered. Can a constitutional power be invoked to augment another limited

power? Generally, yes. For example, the corporations power (s 51(xx)) can be used to regulate the purely intrastate trading activities of foreign, trading or financial corporations, even though the trade and commerce power (s 51(i)) cannot: Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468; see also New South Wales v Commonwealth (Sea and Submerged Lands case) (1975) 135 CLR 337 at 471, 497; Pidoto v Victoria (1943) 68 CLR 87. Having said that, constitutional provisions should not be construed as if they are mutually exclusive, to the extent that one provision might, in effect, override an express limitation in another provision. So, for example, the Commonwealth may not use its power with respect to financial corporations (s 51(xx)) to regulate state banking even where a state bank might be characterised as a type of financial corporation, because this would contravene the express limitation on the Commonwealth’s banking power (s 51(xiii)) to banking ‘other than State banking’: Bourke v State Bank of New South Wales (1990) 170 CLR 276. In Bourke, the High Court unanimously approved the following statement of principle of Dixon CJ in Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371–2: It is hardly necessary to say that when you have … an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that as inconsistent with any construction of other powers conferred in the

[page 35] context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification.

Having said that, some powers manifest an intention to preclude restrictions or qualifications operating under other powers. So, for example, the intellectual property power (s 51(xviii)) authorises the

making of laws which confer, and remove, proprietary rights to intellectual property. To the extent that this (and perhaps other) legislative powers can regulate proprietary rights as a matter incidental to the exercise of power, it has been held that they are not subject to the guarantee of ‘just terms’ compensation under s 51(xxxi): see Nintendo Co Ltd v Centronics Systems Pty Ltd (No 2) (1994) 181 CLR 134; and further below at 11.19. 2.15 The foregoing material demonstrates that the High Court is not limited to its own precedent in its search for informative and persuasive material. Australia’s English legal heritage provides a rich source of material on the doctrines of responsible government, parliamentary supremacy and the rule of law. English precedents were extensively cited in the Engineers’ case, and the High Court was critical of the early High Court for relying on American precedents in its approach to federal questions: see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) (1920) 28 CLR 129 at 146–7. However, the constitutional jurisprudence of the United States Supreme Court has been highly influential on the High Court, in particular in its development of the concepts of judicial review and the separation of powers: see 19.71. American precedents have been influential in some areas, but not in others: see 3.8. The relevance of international law to constitutional interpretation 2.16 In Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 655–7, Kirby J said that where there is ambiguity in the Constitution, the principles of international law can provide guidance as to the construction of the language to be adopted: Where the Constitution is ambiguous, this court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights. Australian law, including its constitutional law, may sometimes fall short of giving effect to fundamental rights. The duty of the court is to interpret what the Constitution

says and not what individual judges may think it should have said. If the Constitution is clear, the court must (as in the interpretation of any legislation) give effect to its terms. Nor should the court adopt an interpretative principle as a means of introducing, by the backdoor, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law. However, as has been recognised by this court and by other courts of high authority, the inter-relationship of national and international law, including in relation to fundamental rights, is ‘undergoing evolution’. To adapt what Brennan J said in Mabo v Queensland [No 2], the common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia’s Constitution, as the fundamental law of government in this country,

[page 36] accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accepts it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community. One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights. That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all. It is not part of Australia’s domestic law, still less of its Constitution. Nevertheless, it may in this country, as it has in other countries, influence legal development and constitutional interpretation. At least it may do so where its terms do not conflict with, but are consistent with, a provision of the Constitution [references omitted].

This proposition was flatly rejected by Callinan J in Western Australia v Ward (2002) 213 CLR 1 at 390–1. Callinan J remarked: The provisions of the Constitution are not to be read in conformity with international law. It is an anachronistic error to believe that the Constitution, which was drafted and adopted by the people of the colonies well before international bodies such as the United Nations came into existence, should be regarded as speaking to the international community. The Constitution is our fundamental law, not a collection of principles amounting to the rights of man, to be read and approved by people and institutions elsewhere. The approbation of nations does not give our Constitution any force, nor does its absence deny it effect. Such a consideration should, therefore, have

no part to play in interpreting our basic law [references omitted].

The utility of international law in construing the Constitution remains to be determined.

Characterisation What is ‘characterisation’ and why is it important? 2.17 The High Court has adopted a number of relatively discrete techniques in solving federal constitutional problems. First, it is necessary to identify the power or powers that the Commonwealth might invoke to support the federal law. Second, the power(s) must be interpreted, and its scope ascertained. Third, the law that is said to be supported by the power(s) must be characterised in order to ascertain whether it is a law ‘with respect to’ the subject matter of the identified power(s). Finally, it is necessary to consider whether there are any express or implied constitutional limitations that might render the Commonwealth law invalid. There are two types of characterisation that may need to take place to resolve a constitutional question. First, characterisation of federal laws to determine whether they fall within a federal power or powers; and second, characterisation of federal laws to determine whether they are restricted by a federal constitutional limitation or limitations. It is necessary to characterise federal laws in order to determine whether they are supported by constitutional power because the Commonwealth has enumerated powers, rather than general legislative power which is vested in the states by their respective Constitutions and s 107: Attorney-General (Cth) v Colonial Sugar Refining Co Ltd (1913) 17 CLR 644. Every federal law must be supported by one or more of the Commonwealth’s enumerated (or exclusive) powers.

[page 37] Before examining characterisation, a brief introductory example can be drawn from the decision of the High Court in Grain Pool of WA v Commonwealth (2000) 202 CLR 479. In that case, the court had to consider whether legislation extending protection to plant breeders’ rights fell within s 51(xviii), the parliament’s power with respect to, among other things, ‘patents of inventions’. The entire court concluded that the phrase should be given an ambulatory construction, and included plant breeders’ rights as a newly recognised type of ‘invention’. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ elaborated on the approach to be adopted in determining whether a law is within a head of constitutional power (at 492): The general principles which are to be applied to determine whether a law is with respect to a head of legislative power such as s 51(xviii) are well settled. They include the following. First, the constitutional test is to be construed ‘with all the generality which the words used admit’. Here the words used are ‘patents of inventions’ … the task is to consider whether it ‘answers the description, and to disregard purpose or object’. Secondly, the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. Thirdly, the practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power. Fourthly, as Mason and Deane JJ explained in Re F; Ex parte F (1986) 161 CLR 376 at 388: In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other of which is not a subject matter appearing in s 51, it will be valid notwithstanding that there is no independent connection between the two subject matters. Finally, if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice [references omitted].

‘Law v policy’ 2.18

To determine whether a law is supported by federal power, a

court considers whether the law may properly be described as a law ‘with respect to’ a power or powers. If the subject matter of the law is sufficiently connected to the subject matter of the power, then the court will not be concerned with the policy that animated the parliament when it passed the law. This principle is illustrated by Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1. The case concerned federal legislation which removed tax exemptions from superannuation funds unless investments were made in public stocks and bonds. The legislation was challenged on the basis that its motive was to encourage or compel certain types of investment, rather than to raise revenue — it was therefore not a law ‘with respect to’ taxation. Kitto J, who delivered the leading judgment, dealt with the argument in the following way (at 6–7): The argument for invalidity not unnaturally began with the proposition that the question to be decided is a question of substance and not of mere form, but the danger quickly became evident that the proposition may be misunderstood as inviting a speculative inquiry as to which of the topics touched by the legislation seems most likely to have been the main preoccupation of those who enacted it. Such an inquiry has nothing to do with the question of constitutional validity under

[page 38] s 51 of the Constitution. Under that section the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, ‘with respect to’, one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character? … The legislative policy is obvious and may be freely acknowledged: it is to provide trustees of superannuation funds with strong inducement to invest sufficiently in Commonwealth and other public securities. The raising of revenue may be of secondary concern. But the enactment does not prescribe or forbid conduct. Its character is neither fully nor fairly described by saying that it makes trustees of superannuation funds liable to pay for failing to do what the legislature wishes. To

adapt the language of Higgins J in R v Barger (1908) 6 CLR 41 at 199, the substance of the enactment is the obligation which it imposes, and the only obligation imposed is to pay income tax. In substance as in form, therefore, the section is a law with respect to taxation.

Kitto J’s approach has been approved and applied by the High Court on numerous occasions: see, for example, Kartinyeri v Commonwealth (1998) 195 CLR 337 at 352–3, 371–2; and further below at 1.9 and 9.9. Multiple characterisations of a law may be possible and credible 2.19 As Kitto J indicated in Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 6–7, legislation within Commonwealth power might also be characterised as dealing with a topic or topics outside power. A law with respect to taxation might equally be described as a law inducing investment in Commonwealth securities. However, this does not provide a sufficient reason to conclude that the law is outside power. As Isaacs J explained in Osborne v Commonwealth (1911) 12 CLR 321 at 361: The judiciary concerns itself only with the existence and extent of the power, not with the occasion or purpose which may call for its exertion. And its existence and extent do not depend on the fact that its exercise may or does incidentally interfere with circumstances which standing by themselves are controllable only by some other authority, or even with the operation or results of other powers, distinct in nature, possessed by other legislatures. The lines of human affairs from their inherent complexity cross each other at innumerable points, and it is impossible to frame an arbitrary classification, such as that contained in sec 51 of the Constitution, which will completely segregate the transactions of life. Consequently it is impossible to deny the existence of a stated power along a given line merely because another line not included in the list is affected at the intersection.

After the Engineers’ case, the need to consider the ‘substance’ of a law — that is, whether it trenched on State reserved powers — was removed. As there was no need to consider State reserved powers, it followed (as foreshadowed by Isaacs J in Osborne’s case), that a federal law might be supported by a federal power, perhaps one listed in s 51,

and simultaneously deal with a topic which was not included among the Commonwealth’s enumerated powers. To put it another way, if a federal law can be characterised as a law with respect to one of the parliament’s [page 39] enumerated powers, it is irrelevant that the law may also be characterised as with respect to a subject matter outside Commonwealth power. This principle has been confirmed in numerous decisions. As Mason J said in Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 22: It is one thing to say that the trade and commerce power does not enable the Commonwealth to regulate and control directly matters outside the subject matter of power, such as the environmental aspects of mining in Queensland. It is quite another thing to say that the Commonwealth cannot in the exercise of that power make laws which have a consequential and indirect effect on matters standing outside the power … It is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Commonwealth has no power to legislate.

The principle is clearly explained by Deane J in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 at 270: … it is settled law that there is no general dichotomy between the grants of legislative power contained in the various paragraphs of s 51. It is also settled that a single law can possess more than one character. It suffices for constitutional validity if any one or more of those characters is within a head of Commonwealth power. In determining validity, the task is not to single out the paramount character. It suffices that the law ‘fairly answers the description of a law “with respect to” one given subject matter appearing in s 51’ regardless of whether it is, at the same time, more obviously or equally a law with respect to other subject matter.

Characterisation — a question of degree 2.20 The question whether a law may be described as being ‘with respect to’ a head of power is one of degree. It must be demonstrated that the law in question is sufficiently connected or incidental to the

power or powers invoked to support it in order for it to be valid. As Toohey J explained in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 353: … in the end the question is whether there is a sufficient connection between the law and the subject matter to be able to say that the law is one with respect to the subject matter. It may be said that some circularity is involved in a proposition expressed in these terms. But there is a qualitative assessment to be made and sufficiency of connection draws attention to the need for such an assessment. It emphasises that the connection must be substantial, not merely tenuous.

As Gaudron J explained, the case arose out of timber gathering arrangements involving Tasmanian Pulp and Forest Holdings Ltd, its contractors, Mr and Mrs Wagner, and their subcontractors, Mr and Mrs Dingjan and Mr and Mrs Ryan. Tasmanian Pulp contracted for the harvesting and transport of timber to individual harvest contractors, who performed their obligations partly by their own efforts and partly by subcontracting to owner-drivers. At the relevant time, Mr and Mrs Wagner had entered into subcontracts with Mr and Mrs Dingjan so that they could satisfy their contracts with Tasmanian Pulp. When Tasmanian Pulp altered its practices and requirements, the Wagners in turn altered their arrangements with the subcontractors. The union to which Mr Dingjan belonged and other subcontractors then made an application for review of the subcontracts under provisions of the Industrial Relations Act 1988 (Cth). These provisions [page 40] authorised the Australian Industrial Relations Commission to review and vary contracts for services which bound an independent contractor and which related to ‘the performance of work by the independent contractor, other than work for the private and domestic

purposes of the other party to the contract’. Another provision of the law tied these review provisions back to s 51(xx) by requiring that the contracts relate to the business of a s 51(xx) corporation. Could the Commonwealth use s 51(xx) to regulate contracts entered into for the purposes of the business of a trading corporation? Was there a sufficient connection between the s 51(xx) corporation (A) and a subcontract entered into by B with C, neither of whom were s 51(xx) corporations, for the supply of services that would ultimately affect the business activities of A? The provisions were held invalid by majority (Brennan, Dawson, Toohey and McHugh JJ; Mason CJ, Deane and Gaudron JJ dissenting). The majority concluded that while the employment relationship between a s 51(xx) corporation and a non-corporation were sufficiently connected to a s 51(xx) corporation to be regulable under s 51(xx), a subcontract between a non-corporation, even one servicing a corporation that would not be entering the subcontract but for its relationship with a s 51(xx) corporation, was not sufficiently connected to a s 51(xx) corporation. The relevance of the concept of ‘purpose’ in characterisation 2.21 In Dingjan, the High Court needed to work out whether federal legislation was sufficiently connected to ‘trading corporations’, a type of legal ‘person’. A different approach is warranted in circumstances where the court is asked to assess the connection between a federal law and a power that describes a purpose. Here, the court may properly consider the purpose of the law, and whether the law is appropriate and adapted to the execution of the purpose. The applicability of the test was considered in Leask v Commonwealth (1996) 187 CLR 579. The case concerned federal legislation which regulated reporting of monetary transactions. The legislation was challenged on the basis that its provisions were not reasonably

appropriate or adapted to the federal parliament’s powers with respect to taxation (s 51(ii)) or currency (s 51(x)). The court upheld the law and a number of members of the High Court took the opportunity to explain the relevant principles of characterisation. Brennan CJ provided a helpful summary of the principles of characterisation (at 590–1): … [the] character of an Act is determined by its operation and effect (Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 186; see also Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 216; The Commonwealth v Tasmania (1983) 158 CLR 1); its operation by reference to the rights, duties, powers or privileges that the Act creates or affects (Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7); its effect by reference to its operation in the circumstances to which it applies (The Tasmanian Dam case (1983) 158 CLR 1 at 152, 245; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 315). The statutory declaration of the object of an Act is relevant to the construction of a provision the construction of which would otherwise be ambiguous (s 15AA of the Acts Interpretation Act 1901 (Cth)), but the declaration is not sufficient by itself to affect the operation and effect of the Act. The Parliament cannot legislate a measure into power merely by declaring its measure to be enacted for a valid object.

[page 41] When the operation and effect of an Act are ascertained, its connection or lack of connection with the subject matter of a head of power can be determined. Sometimes, as I pointed out in Cunliffe v The Commonwealth (1994) 182 CLR 272 at 319, ‘a connexion with a head of power may be revealed more clearly by stating the purpose or object which the law is appropriate and adapted to achieve than by describing the law’s effect and operation on particular rights, duties, powers or privileges’. But, as Dawson J points out, ‘purpose’ in this context refers to the purpose of the law, not the purpose of the head of the power (see Dawson J in Cunliffe v The Commonwealth (1994) 182 CLR 272 at 352). The purpose of a law is the end or object which the law achieves or, putting it another way, it is the effect of a law expressed by reference to a field of activity, relationship or status. As Dawson J says, the purpose of a law is an aspect of ‘what the law does in fact’ so that the basic test of validity remains one of sufficient connection between the operation and effect of the law on the one hand and the head of power on the other. If the head of power is purposive (for example, the defence power), the existence of a connection may be determined more easily by comparing the purpose of the law and the purpose of the power. But if the relevant head of power is non-

purposive (as the taxation and currency powers are non-purposive) the validity of the law is more likely to be determined by reference to its operation and effect.

In some situations it is more appropriate to look at the ‘purpose’ of the law as an anterior question of whether there is a sufficient connection to the head of power. As Brennan CJ states above, ‘a connexion with a head of power may be revealed more clearly by stating the purpose or object which the law is appropriate and adapted to achieve than by describing the law’s effect and operation on particular rights, duties, powers or privileges’ (emphasis added). Determining the validity of a law according to whether its operation and effect are sufficiently connected to the subject matter of a head of power embodies the conventional approach to characterisation, which is discussed at 2.17–2.19 above. The other approach, to which Brennan CJ refers, is purposive: whether the law’s purpose is appropriate and adapted to a purpose related to the head of power. Some heads of power are expressed as to advance a specified purpose. Where parliament enacts legislation based on such a power, the law must be considered proportionate to the achievement of that purpose. The law must thus be compatible or conducive to the power’s purpose. To establish this connection, it is important to examine the purpose of the law. Brennan CJ made the point that the word ‘“purpose” in this context refers to the purpose of the law, not the purpose of the head of power’. The ‘purpose of a law’, according to his Honour, is ‘the end or object which the law achieves … an aspect of “what the law does in fact”’ (at 591). This helps to explain why ‘purpose’ may be key to the anterior question of whether a sufficient connection exists. If the purpose of the law is determined to be disproportionate to the execution of the power’s purpose, then it is likely that the law is not sufficiently connected to the power. It is obvious that any approach which requires identification of a law’s ‘purpose’ as an anterior question is seemingly inconsistent with the conventional approach to characterisation, which (as discussed at

2.18 above) is not typically concerned with the policy or purpose that animated the passage of the law. However, in looking at the ‘purpose’ of the law, the court may have to assess the intention of parliament in deciding whether it served a related purpose. It follows that the court may be less inclined to show their traditional deference to parliament. [page 42] This is not to say that the High Court would engage in critical judgment of legislative policy. In Stenhouse v Coleman (1944) 69 CLR 457 Dixon J, speaking in the context of the defence power (s 51(vi)), remarked that the peculiarity of purposive powers ‘caused no departure from the practice that excludes from investigation the actual extrinsic motives and intentions of legislative authorities’: at 471. Likewise, it was observed in another s 51(vi) case, Dawson v Commonwealth (1946) 73 CLR 157 at 173 per Latham CJ, that: … it is not the duty or function of the court itself to consider whether in its opinion such Regulations are ‘necessary’ for defence purposes. Questions of legislative policy are determined by the legislature, not by the courts. If it can reasonably be considered that there is a real connection between the subject matter of the legislation and defence, the court should hold that the legislation is authorized by the power to make laws with respect to defence.

How does the court determine if a real connection exists between the purpose of the law and the purposive power? According to Dixon J in Stenhouse, ‘purpose must be collected from the instrument in question, the facts to which it applies and the circumstances which called it forth’: at 471. Stenhouse, a case decided during World War II, involved the validity of regulations conferring power on the minister to make orders regulating the sale of ‘essential articles’, including bread. Dixon J concluded that the legislation was ‘appropriate and adapted’ to the purpose of defence. The measure embodied an ‘administrative system of control of the production and distribution of

bread, designed to save the unnecessary use of labour, flour, materials and transport without endangering the supply to individuals of a necessary food’: at 472. That, he considered, was ‘clearly incidental to the conduct of the war’, especially given that it is the role of government in wartime ‘to assume control of the greater part of the human and material resources of the nation’: at 471–2. In concluding that the regulations were valid, Dixon J had regard to materials that are the subject of ‘judicial notice’, like the ‘character of the war, its notorious incidents, and its far-reaching consequences’: at 471. It has now been established that there are two distinctly different approaches to the characterisation of Commonwealth laws — sufficient connection and appropriate and adapted (also known as proportionality) — depending on whether the head of power is a subject matter or purposive power. Most legislative powers in s 51 are subject matter powers; very few powers are directed to a specified purpose or end. Examples of purposive powers include the defence power (s 51(vi)) (see further Chapter 22), at least one aspect of the external affairs power (that is, treaty implementation) and the conciliation and arbitration power (s 51(xxxv)), as to which see 12.28. If the power is purposive, the existence of a connection is established by reconciling the purpose of the law and the purpose of the power. For example, in examining the purpose or object of the law, is it apparent that it serves a defence-related purpose (that is, for ‘the defence of the Commonwealth’), or is it appropriately directed to the purpose of fulfilling an obligation under an international agreement (the treaty implementation aspect of s 51(xxix))? PH Lane (1987) suggests that the express incidental power (s 51(xxxix)) and less so the territories power (s 122) may also be considered purposive (p 148), while it is likely [page 43]

that quarantine (s 51(ix)) and the implied nationhood power (see Chapter 13), two powers that pursue specified purposes of government, are also purposive. Some powers, by contrast, describe a type of subject matter. Dixon J in Stenhouse made the distinction between subject matter and purposive powers (at 471): …unlike most other powers conferred by s 51 of the Constitution, [s 51(vi)] involves the notion of purpose or object. In most of the paragraphs of s 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a state), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object… But ‘a law with respect to the defence of the Commonwealth’ is an expression which seems rather to treat defence or war as the purpose to which the legislation must be addressed.

Subject matter powers, according to Dixon J, may be approached by reference to a class of activity, public service, undertaking or operation, or a recognised category of legislation. He identifies several heads of power that describe a subject matter. However, these categories are not closed. Indeed, another type of subject matter is ‘classes of persons’. Examples are aliens (s 51(xix)), constitutional corporations (s 51(xx)) and, at first blush, ‘the people of any race’ (s 51(xxvi)), although there are specific rules of characterisation applicable to this power, as to which see 9.10–9.12. As for the aliens and corporations powers, it is very clear that a non-purposive test of sufficient connection applies. The sufficient connection test was approved in the s 51(xx) case Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 and not departed from in New South v Commonwealth (Work Choices case) (2006) 229 CLR 1. With respect to s 51(xix), Brennan J expressly recognised in Cunliffe v Commonwealth (1994) 182 CLR 272 at 323 that the aliens power was non-purposive, and this view was

recently accepted by a unanimous High Court in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 43 per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. In this case the court also rejected the argument that a proportionality assessment informs whether a sufficient connection first exists with s 51(xix): at 43–5. The concept of proportionality does not apply to subject matter powers. It is only relevant in the characterisation of purposive powers (as discussed above) or where a law is said to infringe a constitutional limitation, such as s 92 of the Constitution or the implied freedom of political communication, as to which see Chapters 6 and 18 respectively. The implied incidental power 2.22 In Granall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77, Dixon CJ, McTiernan, Webb and Kitto JJ said: … every legislative power carries with it the authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main

[page 44] purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter.

This principle of construction is sometimes abbreviated as the ‘implied incidental power’. It was first enunciated by Marshall CJ in McCulloch v Maryland 17 US 316 at 421 (1819): Let the end be legitimate, let it be within the scope of the Constitution, and all the means which are appropriate, which are plainly adopted to that end, which are not prohibited, but which consist with the letter and spirit of the Constitution, are constitutional.

A classic example of its operation is provided by O’Sullivan v

Noarlunga Meat Ltd (No 1) (1954) 92 CLR 565, which is considered below at 6.13. Characterisation where limitations are in issue 2.23 Up to this point, this section of the chapter has been concerned with the characterisation of federal laws in order to determine whether they fall within power. However, principles of characterisation are also relevant to the determination of the question whether a federal or state law is invalid for infringing express or implied federal constitutional limitations. Here a court may properly consider the substance, practical operation or actual effect of the law in question: Cole v Whitfield (1988) 165 CLR 360 (s 92); Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399 (s 90); Street v Queensland Bar Association (1989) 168 CLR 461 (s 117). Generally speaking, this approach extends to implied constitutional limitations. The specific, often detailed wording of the tests applicable to the characterisation of laws said to be invalid for breaching express and implied constitutional limitations are considered throughout this book in context: see 7.52 and 18.15.

Precedent The function of constitutional precedent and the duty of the judge 2.24 The function of precedent was explained in Perpetual Executors and Trustees Association of Australia v Federal Commissioner of Taxation (1949) 77 CLR 493 at 496 by Dixon J in the following terms: The decisions of a superior court have a double aspect. They determine the controversy between the parties, and in deciding the case they may include a statement of principle which it is the duty of that court and of all subordinate courts to apply in cases to which that principle is relevant. Continuity and coherence in the law demand that, particularly in this court, which is the highest court of appeal in Australia, the principle of stare decisis should be applied, save in very exceptional cases.

The High Court is not bound by its own decisions in constitutional cases because ‘past judicial decisions should not be elevated to a status higher than the Constitution itself’: Queensland v Commonwealth (1977) 139 CLR 585 at 610 per Murphy J. It would be inconsistent with the conception of the Constitution as a document capable of meeting changing needs and unforeseen circumstances to insist on the rigidity of constitutional precedent. As Isaacs J said in Australian [page 45] Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 278: The oath of a Justice of this court is ‘to do right to all manner of people according to law’. Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the court should be persistently wrong than that it should be ultimately right.

Later, Isaacs J wrote the majority judgment in the Engineers’ case, which overturned almost 20 years of case law that favoured a narrow approach to the interpretation of Commonwealth legislative powers. 2.25 Isaacs J’s conception of the duty of a judge has compelled some members of the court to persist in a minority view on some occasions. In Stevens v Head (1993) 176 CLR 433 at 461–2, Deane J (see also Gaudron J at 464–5) said: … in matters of fundamental constitutional importance, the members of this court are obliged to adhere to what they see as the requirements of the Constitution of which the court is both a creature and the custodian.

Interestingly, Deane J’s view in that case was ultimately accepted: see below at 3.30.

Alternatively, High Court justices may give their concurrence to a majority opinion in a particular case, but indicate their disagreement with one of the precedents relied on in that opinion: see, for example, Luton v Lessels (2002) 210 CLR 333 at 361 per McHugh J. 2.26 However, as Kitto J remarked in Hughes & Vale Pty Ltd v New South Wales (1953) 87 CLR 49 at 102: ‘[I]n constitutional cases … it is obviously undesirable that a question decided by the court after full consideration should be reopened without grave reason’. As Mason J pointed out in HC Sleigh Ltd v South Australia (1977) 136 CLR 475 at 501: … generally speaking, the court should be slow to depart from its previous decisions, especially in constitutional cases where the overturning of past decisions may well disturb the justifiable assumptions on which legislative powers have been exercised by the Commonwealth and the States and on which financial appropriations, budget plans and administrative arrangements have been made by governments.

For that reason, the court will exercise its powers to reconsider or overrule a previous decision ‘with great caution’: Wurridjal v Commonwealth (2009) 237 CLR 309 at [65]–[72] per French CJ. The High Court will act with caution when it is asked to overrule constitutional precedent, because constitutional decisions cannot be altered by parliament: Wurridjal at [68]. Is it possible to define the characteristics of a questionable constitutional precedent? 2.27 In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court was invited to reconsider the correctness of Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) [page 46]

182 CLR 211 — two decisions on the topic of freedom of speech, which had been handed down less than three years previously (see further 18.13). The court reconsidered those decisions and in doing so made the following remarks ((1997) 189 CLR 520 at 554): Reconsidering a previous decision of the court This court is not bound by its previous decisions. Nor has it laid down any particular rule or rules or set of factors for re-opening the correctness of its decisions. Nevertheless, the court should reconsider a previous decision only with great caution and for strong reasons. In Hughes and Vale Pty Ltd v State of New South Wales, Kitto J said that in constitutional cases ‘it is obviously undesirable that a question decided by the court after full consideration should be re-opened without grave reason’. However, it cannot be doubted that the court will re-examine a decision if it involves a question of ‘vital constitutional importance’ and is ‘manifestly wrong’. Errors in constitutional interpretation are not remediable by the legislature, and the court’s approach to constitutional matters is not necessarily the same as in matters concerning the common law or statutes.

Constitutional cases are not overturned simply because they are ‘wrong’ 2.28 Because continuity and coherence in the law is a desirable end, some judges have said that a constitutional case will not be overruled simply on the basis that it is ‘wrong’. As Aickin J explained in Queensland v Commonwealth (1977) 139 CLR 585 at 621: The expression ‘manifestly wrong’ has many times been used to indicate a basis upon which a prior decision may be overruled. With great respect to those who have used it, the expression, used without some qualification or explanation, suggests a subjective criterion not easily applied to distinguish one opinion from another.

It is probably not much more helpful to describe the error as ‘fundamental’ or the issue involved as being one of ‘vital constitutional importance’: see Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372 at 377, 389. The issue is not only one of respect for precedent but respect for the opinion of previous justices of the High Court, as Gibbs J explained in Queensland v Commonwealth (1977) 139 CLR 585 at 599. Referring to the

comment of Isaacs J that it is not better that the High Court should be persistently wrong than that it should be ultimately right, Gibbs J said: … like most generalisations, this statement can be misleading. No justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the court.

In what circumstances will the High Court reopen or overrule previous constitutional decisions? 2.29 What criteria are applied where the High Court wishes to reopen or overrule a previous constitutional decision? It would be impossible to identify in advance the circumstances in which the court will permit reconsideration of an earlier decision, and there are ‘no very definite rule(s)’ governing the exercise of the discretion: AttorneyGeneral (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 243 per Dixon J; Baker v Campbell (1983) 153 CLR 52 at 103 per Brennan J. [page 47] Nevertheless, it is a tactical necessity of constitutional litigation to consider the circumstances in which leave has been granted to reargue the correctness of a decision, or where a decision has been overruled, and to ascertain whether there are any ‘principles’ which have developed to guide the court in the exercise of the powers to reopen, reconsider and overrule. An attempt to provide a (nonexhaustive) statement of the relevant principle was made in John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438–9. In that case, Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ identified ‘four matters’ which might justify departure from earlier decisions: The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions. The third

was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration.

These ‘matters’ were applied in North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16. The plaintiffs in this case contended that the legislative power of the Northern Territory Legislative Assembly was constrained by the doctrine of separation of powers enshrined in Ch III of the Constitution (see further 5.17). The court had earlier ruled otherwise in Kruger v Commonwealth (1997) 190 CLR 1. In holding that Kruger should not be reopened, Gageler J said that ‘the answer given in Kruger … cannot be said to have involved no difference between the reasoning of the justices who constituted the majority, or to have rested on a principle carefully worked out in a succession of cases’: at [110]. Gageler J also noted that ‘it cannot be said that Kruger has achieved no useful result or has led to inconvenience’: at [117]. Keane J agreed at [161]–[162]. Factors which have no necessary bearing on a decision to reopen or overrule 2.30 In the course of decisions where the resilience of constitutional precedent has been tested, a number of additional considerations have been raised which have no necessary bearing on a decision to reconsider or overrule. A change in the composition of the bench, whether through the addition of new members or by virtue of the replacement of one judge by another, is not a sufficient reason, by itself, to review a decision: R v Commonwealth Court of Conciliation & Arbitration; Ex parte Tramways (No 1) (Tramways case (No 1)) (1914) 18 CLR 54 at 69; Queensland v Commonwealth (1977) 139 CLR 585 at 600. Equally, a change in the composition of the bench is not a reason against overruling a previous decision. In Queensland v Commonwealth (at 594), Barwick CJ said: It may be granted that a change in the personal composition of the court is not itself

any reason to entertain the question whether the decision of a court differently composed is erroneous. But, on the other hand, the fact that there has been a change in the personal composition of the court since an earlier decision was given can be no reason, in my opinion, why any Justice should refrain from expressing what he is convinced is the right conclusion in the matter before the court.

As a practical matter, changes in the composition of the bench can make a critical difference. There is little doubt that the High Court’s freedom of speech jurisprudence narrowed after the departure of Mason CJ and Deane J (see 18.13). [page 48] And the departure of Griffith CJ, Barton and Connor JJ provided an opportunity for Isaacs J to write the majority judgment in the Engineers’ case; see 3.8. In a number of decisions, members of the High Court have refused to reconsider and overrule a recent decision, making reference to the recency of the decision as one of a number of reasons why the court should not do so: Jones v Commonwealth (1987) 61 ALJR 348 at 349; Queensland v Commonwealth (1977) 139 CLR 585 at 600; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 518. However, there is no logical reason why a decision should not be overruled merely because it is recent. As Barwick CJ noted in Queensland v Commonwealth at 593–4 (referring to Isaacs J’s comments in the Federated Engine Drivers’ case): To refuse to decide in a constitutional case what one is convinced is right because there is a recent decision of the court is, to my mind, to deny the claims of the Constitution itself and to substitute for it a decision of the court. If both old and new decisions construing the Constitution, of whose error the court is convinced, must none the less be followed, then, to use Sir Isaac Isaacs’ expression, perpetuation of error rather than the maintenance of the Constitution becomes the paramount duty. I find no validity in the submission that the recency of the court’s former decision gives it a quality which precludes critical examination of it or, indeed, departure from it.

In fact, the recency of a decision may provide a stronger reason for

correcting it sooner, rather than later: see Jacobs J at 608. Prudential considerations may persuade a judge to resist the temptation of reopening a decision that has stood for a long time, been confirmed often and confirmed recently: Cheng v The Queen (2000) 203 CLR 248 at 299 per McHugh J. In Cheng, the court was invited to reopen and overturn Kingswell v The Queen (1985) 159 CLR 264 (as to which, see further 15.5), a decision which confirmed the relatively restricted ambit of the constitutional guarantee of trial by jury in s 80 of the Constitution: as to which, see 15.3–15.4. Gleeson CJ, Gummow and Hayne JJ remarked (at 265): Since Kingswell was decided in 1985, courts and prosecuting authorities throughout the Commonwealth have acted on the basis of that decision, and many people have been convicted and sentenced upon the assumption that the law was as declared in Kingswell. That is not fatal to the applicants, especially bearing in mind that their attack on Kingswell is based upon constitutional grounds. But it is a consideration not lightly to be disregarded.

McHugh J said (at 299): In my opinion, the traditional interpretation of s 80 is correct. In any event, even if I had thought that interpretation was plainly wrong, it has stood for so long and been confirmed so often and so recently that I would hesitate to depart from it.

Callinan J expressed the view (at 344) that while: It is impossible not to feel disquiet about a proposition that might leave it entirely for the legislature to define what is, and what is not to be an offence (under s 80) … [but] the Australian experience has not been of any oppressive misuse of the statutory power to define offences.

Kirby J, for his part, expressed some frustration with this pragmatism (at 324): As to the inconvenience that would be caused by now upholding the view of s 80 which was expounded by the minority in Kingswell, I remind myself of the way in

[page 49] which the court has from time to time felt obliged to depart from past authority,

despite the inconvenience and disturbance that this occasions. In the end, this is an outcome inherent in a society living by the rule of law and especially one governed by a written constitution. If parties who claim that a constitutional norm has been breached establish that argument but cannot rely on the courts to uphold the law, where else can they go? With every respect, to suggest that an answer to a departure from a constitutional guarantee is that the Parliament has not so far misused its powers is no answer at all. The court, not the Parliament, is the arbiter of constitutional requirements.

2.31 Ultimately, the touchstone of a secure constitutional precedent is that it remains persuasive today. Because a justice of the High Court is never bound by previous decisions, there is no obstacle to the reconsideration of any previous decision (beyond that erected by previous decisions which are persuasive). If it is the duty of a justice of the High Court to expound what is in his or her view the correct principle, the goals of stare decisis — continuity and coherence in the law — have no role to play here (that is, as a rationale for the maintenance of a previous decision, divorced from its persuasive value). Yet sometimes members of the court have expressly acknowledged that a decision is wrong in principle, but have upheld it nonetheless. So, for example, in H C Sleigh Pty Ltd v South Australia (1977) 136 CLR 475, an excise case, Mason J remarked (at 501): Generally speaking, the Court should be slow to depart from its previous decisions, especially in constitutional cases where the overturning of past decisions may well disturb the justifiable assumptions on which legislative powers have been exercised by the Commonwealth and the States and on which financial appropriations, budget plans and administrative arrangements have been made by governments. This comment applies with more force to excise cases for, as a result of the contraction of the financial powers of the States in consequence of s 105A of the Financial Agreement and the Uniform Tax Cases any expansion in the constitutional concept of excise has a marked effect on the capacity of the States to raise revenue for government.

Ultimately, in Ha v New South Wales (1997) 189 CLR 465 a majority of the High Court overruled the old excise cases, including HC Sleigh: see 7.50.

2.32 If the judges are persuaded of the need for change, will the drastic consequences of change hold them back? It did for a time in the excise cases, but not forever. In Yougarla v Western Australia (2001) 207 CLR 344 at 370, Kirby J pointed out that inconvenience to the government ‘is no barrier in constitutional adjudication if a party can establish that relevant constitutional requirements have not been complied with’. Kirby J cited the Boilermakers case and the Second Cross-Vesting case (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; Re Wakim; Ex parte McNally (1999) 198 CLR 511) as authorities for this proposition. In the first decision, the High Court struck down a statute that undergirded the federal system of industrial law for some 54 years: see 19.4. In the second case, the court struck down the cross-vesting system that had reduced costs and delays visited on thousands of litigants: see 20.25. The importance of constitutional issues means that the High Court has at times demonstrated greater willingness to reopen and reconsider cases involving constitutional questions: Street v Queensland Bar Association (1989) 168 CLR 461 at 588; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 327–8. [page 50] The number of justices sitting 2.33 Some aspects of the bench can affect the precedential weight of decisions. In some cases it has been suggested that the number of justices who formed the majority has a bearing upon the extent to which a decision should be regarded as a ‘binding’ precedent. So, in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 376, Callinan J expressed ‘anxiety’ in overruling a decision ‘despite that it is a comparatively recent decision of six Justices’ (emphasis added). On

the other hand, in a decision handed down about two months later, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, at 320–32 Callinan J signalled his disagreement with the court’s unanimous decision of seven justices in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 — a position which Kirby J regarded to be quite inappropriate for the reason, among others, that it was a unanimous decision: at 280. The precedential value of split decisions 2.34 Certainly, a split decision of the High Court lacks ‘binding’ effect as a precedent. Different principles apply when the court is asked to reopen a split decision. It is well established that a decision of an equally divided High Court is not a binding authority upon the court in subsequent cases: Ex parte Nelson (No 1) (1928) 42 CLR 209; Tasmania v Victoria (1935) 52 CLR 157. In these circumstances, the question whether a decision should be reopened or overruled does not arise: Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 355. This rule emboldened the applicants in Re Wakim; Ex parte McNally (1999) 198 CLR 511 to ask the court, in December 1998, to revisit the decision of the court in Gould v Brown (1998) 193 CLR 346 to uphold the cross-vesting scheme, a decision that was only brought down in April of the same year (as to which, see further 20.25). It is difficult not to reach the conclusion that the fresh challenge was motivated by the split decision in Gould v Brown and changes to the composition of the bench. Procedure adopted 2.35 Debate has emerged within the High Court regarding its practice of requiring that litigants who seek to have a constitutional decision overruled must have ‘leave’ (permission) granted by a majority of the court to do so. This practice was upheld in Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 316 after repeated

attempts had been made to persuade the court that its jurisprudence on the constitutional validity of state excise duties was wrong (this is what the court eventually decided in 1997, as to which see 7.52). Kirby J rejected that stricture in British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 80–1, holding that: In so far as the joint reasons in this case suggest that the Justices of this Court are bound by majority determinations about the meaning of the Constitution until a majority gives permission to reopen past authority on the point, I disagree. It is neither what the Constitution says nor what the Justices of this Court have done … No Justice can be relieved of that duty, by a past or present majority in the Court … It is by voices of the judges expressed in dissent that parties may be encouraged eventually to raise objections about erroneous judicial interpretations. Only in

[page 51] that way is error ultimately corrected and the true meaning of the Constitution expounded.

Interestingly, given the (at times) pointed debate about judicial activism and judicial restraint between Kirby and Callinan JJ, Callinan J has also signalled his unwillingness to accept majority determinations on constitutional points in every case. In Coleman v Power (2004) 220 CLR 1 at 119, Callinan J, who has previously been critical of the development of the implied freedom to discuss political and governmental affairs, remarked: No party or intervener sought to argue that Lange should be reconsidered. That may not relieve me of the necessity, if I am conscientiously of the view that it, as a decision of this Court, no matter that it be recent and unanimous, is incompatible with the Constitution, of deciding whether I am bound not to follow it, rather than obliged to apply it.

It may be noted, though, that Callinan J proceeded ‘upon the basis that Lange accords with the Constitution’ and that he was ‘obliged to apply it’.

The consequences of invalidity No presumption of validity 2.36 The High Court does not presume that federal legislation is constitutionally valid. However, it will assume that legislation is valid unless a party to a legal dispute questions its validity: Re Judiciary Act 1903–1920 (1921) 29 CLR 257. When the validity of a federal law is challenged by a party to litigation, the court will restrict its judgment to the impugned provisions and will act on the assumption that every valid provision in the statute would continue to operate as the parliament intended, unless the striking down of the impugned provisions leaves behind legislation which is ‘altogether different’ or different ‘in substance’ to the original law: Pidoto v Victoria (1943) 68 CLR 87 at 118; and Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 372, respectively. In such a case, the entire law may be struck down. There is a presumption that parliament intends that each and every provision of a law should continue to operate if this is possible. This presumption is reflected in ss 15A and 46(b) of the Acts Interpretation Act 1901 (Cth), which provide that: 15A Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the extent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless, be a valid enactment to the extent to which it is not in excess of that power. … 46(b) Where any Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then — … any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, and so as not to exceed the power of that authority, to the extent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.

[page 52] Divisible and distributive construction 2.37 According to Dixon J in R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634 at 652, ‘[t]wo types of cases present themselves under provisions such as secs 15A and 46(b)’: In one type it is found that particular clauses, provisos or qualifications, which are the subject of distinct or separate expression, are beyond the power of the legislature. In the second type, a provision which, in relation to a limited subject matter or territory, or even class of persons, might validly have been enacted, is expressed to apply generally without the appropriate limitation, or to apply to a larger subject matter, territory or class or persons than the power allows. In the first case, the question usually is whether the operation or effect of the remainder of the Act upon the persons or things to which it would apply would be changed if the clauses, provisions and qualifications held bad were excised. In other words, in such a case the right question to ask may be whether liabilities or rights of a different tenor, measure or nature would result. In the second case, the question may simply be whether the legislature intended the provision to have a distributive operation or effect. That is to say, did it intend that the particular command or requirement expressed in the provision should apply to or be fulfilled by each and every person within the class independently of the application of the provision to the others; or were all to go free unless all were bound?

The first type of case referred to by Dixon J concerns a statute capable of a divisible construction; that is, where the invalidity of a section, sections or part of the law does not affect the operation of other valid sections or parts. The second type of case is referred to by Dixon J as concerning a statute susceptible to distributive construction; that is, where the statute contains a general term applicable to a class of persons or matters. In either case a court may, as circumstances permit, apply the technique of ‘reading down’ the statute, or where this is impossible, the court may sever the offensive provisions. In each case a court will consider whether the law that is left is the same in substance as the original law. Isaacs J expressed the relevant considerations in the following terms in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1 at

54: If good and bad provisions are wrapped up in the same work or expression, the whole must fall. Separation is there from the nature of the case impossible, and as it is imperative to eject the bad — and this can only be done by condemning the word or phrase which contains it — the good must share the same fate. But where the two sets of provisions are not, so to speak, physically blended, but are contained in separate words, phrases, sentences, clauses, or even parts of an Act, further considerations are necessary to determine whether, though physically separate, they have been made legally inseparable. In other words, whether Parliament intended them all as necessary parts of the one machine, always assisting and modifying or controlling each other in every operation; or whether they were enacted as independent instruments for possible use, either separately or in conjunction, according to the exigencies of the task.

‘Reading down’ and severance 2.38 The purpose of ‘reading down’ is to save as much of a partially invalid law as possible. The technique is applied in circumstances where it is possible to confine the meaning of an offensive provision in such a way that it may continue to have a valid operation. So, for example, in D’Emden v Pedder (1904) 1 CLR 91 the [page 53] High Court struck down a Tasmanian law which taxed salary receipts provided to Commonwealth public servants on the basis that it offended the doctrine of implied intergovernmental immunities. To save as much of the Tasmanian law as possible, the court ‘read down’ the law as being intended not to apply to the Commonwealth. The law could continue to apply to salary receipts issued by any other employer. While reading down may save some statutory provisions, in some circumstances the terms of the statute may indicate that the legislature did not intend that any offensive provisions be read down: Federated Amalgamated Government Railway & Tramway Service Association v New

South Wales Railway Traffic Employees Association (1906) 4 CLR 488. For example, if the legislation at issue in D’Emden v Pedder (above) had contained a provision which clearly stipulated that the tax was to apply to the salary receipts of Commonwealth public servants, it would have been impossible to read such a provision down. In such circumstances, the court may no longer have the option of reading the statute down, and may be required to sever the offensive provisions. Colin Howard (1985) has explained the criteria of severance in the following terms: A severability issue raises first the question whether severance as a matter of language is possible at all. If not, because to make sense there would have to be a substitution rather than an excision of words, there is an end to the matter. If so, as a matter of language, the second question arises whether the result is to delete a legal effect or to change a legal effect. The point may be illustrated by the analogy of the word ‘not’, although of course no constitutional issue can arise from this word alone. If the word ‘not’ appears in a sentence it can as a matter of language easily be excised but the result is to reverse the meaning of the sentence. An analogous situation with respect to severability would mean that the clause or section in question could not be severed because the remainder of the statutory text, or that part of it, was so interdependent with the severed words that to remove them would change the whole effect. But if this is not the case the position is arrived at that severance is both grammatically and legally possible. The third and last question then presents itself: whether to sever the offending words is in accordance with the apparent intention of the legislature should such a situation arise. This intention can be collected only from an examination of the structure and purpose, as revealed by its terms, of the whole Act. If the legislative intention revealed by the structure and language of the Act is that it should stand or fall as a whole, severance is not in order. If such an intention is not revealed, severance is in order.

An invalid law is void ab initio 2.39 If a law is found to be constitutionally invalid, then it was never valid, and therefore never operative: South Australia v Commonwealth (Uniform Tax case (No 1)) (1942) 65 CLR 373 at 409.

[page 55]

Chapter Three

Introduction to Australian Federalism Introduction The federal movement 3.1 This chapter outlines the constitutional dimensions of the relationship between the Commonwealth and the states. The fiscal relationship between the Commonwealth and the states, which has a significant impact on the realpolitik of Australian federalism, is explored in Chapter 14. 3.2 In 1890, a meeting of colonial politicians was held in Melbourne to discuss the possibility of Federation. At a National Australasian Convention held in March 1891, delegates from the colonies met with the purpose of preparing a draft constitution. The convention first set out resolutions that outlined the basic principles on which Federation should be based. Second, committees were established and a constitution was drafted. When voted on by the eligible electors of the colonies, this draft constitution was largely rejected. In 1897, a second convention was held, the Australasian Federal Convention, where 286 resolutions to the original draft constitution were considered. By early 1898, a second draft constitution had been prepared. When voted on, the second draft constitution was approved in South Australia,

Tasmania, Victoria and Queensland. In 1899, a premier’s conference was held to determine what amendments were needed to attain the approval of New South Wales. Amendments were made and all five colonies approved the third draft constitution by referendum that year. Western Australia’s entry into the Commonwealth was made conditional on the phasing out of its protective tariffs over a 10-year period (Constitution s 95) and a Commonwealth promise to build a railway connecting Western Australia to the eastern states. As authorised by covering cl 3 of the Commonwealth of Australia Constitution Act 1900 (Imp), the Constitution was sent to England where it was signed by Queen Victoria on 9 July 1900, and took effect on 1 January 1901. Federalism 3.3 Australia has a federal system of government. Power is shared by the Commonwealth and the states. Professor Harrison Moore (1910) defined ‘federal government’ in the following terms (at p 68): A ‘federal government’ exists where, in a political community, the powers of government are distributed between two classes of organisation — a central government affecting the whole territory and population of the Sovereignty, and a number of local governments affecting particular areas and the persons and things

[page 56] therein — which are so far independent of each other that the one cannot destroy the other or limit the powers of the other, or encroach upon the sphere of the other.

The Preamble to the Constitution refers to Australia as an ‘indissoluble Federal Commonwealth’. There are references to the ‘federal’ nature of the Constitution throughout its text including, notably, in ss 1, 61 and 71 — the provisions that confer legislative, executive and judicial power on the three organs of Commonwealth Government.

3.4 The federal character of the Constitution is also reflected in the structure of the Commonwealth Parliament. The parliament is divided into two houses: the House of Representatives and the Senate. The House of Representatives is composed of representatives ‘directly chosen by the people’ (s 24) on the basis of a franchise that is proportional to population. At the time of writing, New South Wales had 47, Victoria 37, Queensland 30, Western Australia 16, South Australia 11 and Tasmania five members of the House of Representatives. Commonwealth legislation accords two representatives each to the Australian Capital Territory and the Northern Territory. The Senate gives each state equal representation, regardless of population: s 7. Currently, each state has 12 senators, and legislation confers two senators on each of the Australian Capital Territory and the Northern Territory. The people who wrote the Constitution chose a bicameral legislature along United States lines, to ensure that the states with smaller populations, and therefore less representation in the House of Representatives, would have more power in the Senate to guard against violations of those states’ interests and to prevent domination by the populous states in the House. As Knox CJ, Isaacs, Rich and Starke JJ explained in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) (1920) 28 CLR 129 at 151–2 (considered further at 3.8): When the people of Australia, to use the words of the Constitution itself, ‘united in a Federal Commonwealth’, they took power to control by ordinary constitutional means any attempt on the part of the national Parliament to misuse its powers. If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper.

While it might have been intended that the Senate would protect the interests of the states, Gerard Carney (2006) explains why this has

not taken place (at p 2): The current role of the States is clearly different from that envisaged by most of the drafters of the Commonwealth Constitution in the 1890s. Their expectation was a federation of Australian States and a Commonwealth — each working with considerable autonomy as equal partners within their respective spheres of responsibility … The linchpin of this perceived federal balance was the Senate, composed of an equal number if senators from each State irrespective of their size and population. This would ensure that the most populous States of New South Wales and Victoria could not override the interests of the four smaller States. Accordingly, responsibility for maintaining an appropriate federal balance was left in the hands of the political process. But this plan came undone soon after federation when the Senate began to vote on party, rather than State, lines. Consequently, the States lost their chief political protection, enabling the Commonwealth to focus primarily on the ‘national’ interest.

[page 57]

Implied immunity 3.5 The first three justices of the High Court — Griffith CJ, Barton and O’Connor JJ — developed and applied two doctrines that enlarged the power of the states by taking a restrictive approach to the interpretation of the Commonwealth’s legislative power. The first, the doctrine of ‘implied intergovernmental immunity’ (sometimes referred to as the doctrine of ‘implied immunity’ or ‘implied prohibition’), was based on a proposition, said to be a necessary implication from the federal character of the Constitution, that the Commonwealth and the states were sovereign in the separate areas described by their respective Constitutions. On that basis, the Constitution was to be interpreted in a way that ensured that the Commonwealth was immune from the operation of the legislation of the states, and vice versa. Similarly, in D’Emden v Pedder (1904) 1 CLR 91, the High Court held that Tasmania could not oblige a Commonwealth public servant to pay a state tax on his salary because

if ‘a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorised by the Constitution, is to that extent invalid and inoperative’: at 110–11. In Deakin v Webb (1904) 1 CLR 585 the court held that a state could not impose an income tax on the salary paid to Commonwealth Cabinet ministers: at 606, 616. In Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employes Association (Railway Servants case) (1906) 4 CLR 488, the court found that the doctrine of implied immunity had a reciprocal operation, and, further, that the principle of implied immunity was not restricted to taxation. In this case, a New South Wales Government instrumentality could not be subjected to the jurisdiction of the Commonwealth Court of Conciliation and Arbitration. Griffith CJ, Barton and O’Connor JJ said that to subject the state railways to Commonwealth legislation regulating the rights of employers and employees would interfere with state control of those railways. In Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087 the court confirmed and applied the doctrine in a case involving a New South Wales tax on a Commonwealth customs official, even though the Privy Council, in Webb v Outrim [1907] AC 81 (an appeal from Deakin v Webb) had rejected the doctrine. In Baxter the High Court (Griffith, Barton and O’Connor JJ) declined to follow Webb v Outrim on the basis that the constitutional question concerned the relationship between the Commonwealth and the states inter se (between themselves), and s 74 of the Constitution contemplated that such matters were to be determined by the High Court. 3.6

A second doctrine developed by the early High Court that

resulted in a restrictive interpretation of Commonwealth legislative powers was the doctrine of state ‘reserved powers’. Also said to be an implication drawn from the federal character of the Constitution, the doctrine of reserved powers was that the Commonwealth could not exercise its legislative power in a way that interfered with what were regarded to be residual or ‘reserved’ powers of the states. In AttorneyGeneral (NSW); Ex rel Tooth & Co v Brewery Employes Union (NSW) (Union [page 58] Label case) (1908) 6 CLR 469 at 503, the court held by majority that provisions of federal trade mark legislation that authorised manufacturers to place a workers’ mark upon their goods if they were produced by trade union labour (and therefore in safe working conditions), as beyond the power of the Commonwealth because such a regulation concerned the control of the reserved ‘internal trade and commerce’ of the states. Similarly, in Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 352 the court struck down provisions of the Australian Industries Preservation Act 1906 (Cth) which prohibited combinations in restraint of trade and trade monopolies by foreign, trading and financial corporations. The majority held that s 51(xx) ‘ought not to be construed as authorising the Commonwealth to invade the field of State law as to domestic trade’. According to the majority, intrastate trade was an area of power reserved to the states: at 354. 3.7 The expansion of the High Court from three to five members, and the appointment of Isaacs and Higgins JJ, disturbed the equilibrium of the early High Court. The split reflected in the ‘reserved powers’ cases identified above was well evident in R v

Barger (1908) 6 CLR 41. Griffith CJ, Barton and O’Connor JJ held that a Commonwealth tax on the manufacturers of agricultural machinery was not a law with respect to taxation within s 51(ii) because the Commonwealth’s powers could not be used to control ‘the internal affairs of the States’: at 69, 72. The original members of the court (Griffith CJ, Barton and O’Connor JJ) struck down the law on this basis. Isaacs and Higgins JJ upheld the law. Isaacs J foreshadowed the broad approach to the interpretation of Commonwealth constitutional powers that was later upheld in the Engineers’ case when he observed that the Commonwealth’s power over ‘taxation’ was ‘so plain and comprehensive that it would be difficult to devise anything to surpass it in simplicity or amplitude’: at 82. Isaacs J went on to say (at 82–3): It is said for one defendant that the power of taxation does not extend to matters within the jurisdiction of the States, that the Commonwealth Parliament cannot do by taxation anything which is reserved exclusively to the States. For the other defendant the same idea was pressed in varied language. It was argued that where the discrimen is based upon conduct within the power of the State to regulate, and not expressly given to the Federation, it is beyond the power of the Federal Parliament. This limitation is arrived at, it is said, from reading the Constitution as a whole, and from a contemplation of the results which would arise if plain and expressive words were accorded their ordinary signification. On what words in the instrument is such a construction based? Counsel were unable to point to a syllable or a phrase which supported their interpretation — nor is any such to be found. First, there is the grant of power to the Commonwealth, then, there are express limitations on the grant, and next, the cluster of sections, beginning with sec 106, saving the State Constitutions and powers, but ‘subject to this Constitution’, that is, subject to the grant of the enumerated powers to the national authority which are declared to be supreme. The powers of the State Parliament referred to in sec 107 cannot be greater than those comprised in the State Constitution, and which is ‘subject to the Federal Constitution’. We search in vain for any declaration that the grant of power is subject to the powers reserved, for that would be either meaningless or would nullify the grant. The Commonwealth’s powers are given definitely, and without further reservations than those expressly stated; the powers not granted or withdrawn remain with the States.

[page 59]

After the Engineers’ case 3.8 After another expansion of the High Court bench from five to seven justices, further changes to the composition of the bench and the retirement of Griffith CJ, a majority of the High Court (Knox CJ, Isaacs, Rich and Starke JJ in a joint judgment and Higgins J for similar reasons; Gavan Duffy J dissenting) rejected the doctrine of reserved powers and the doctrine of implied immunity in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) (1920) 28 CLR 129. The Engineers’ case concerned the Amalgamated Society of Engineers, which served a log of claims on a number of employers in a number of the states, including the Minister for Trading Concerns of Western Australia, who administered the State Implement and Engineering Works, North Fremantle and the State Sawmills, Perth. The State Implement and Engineering Works and the State Sawmills were bodies established and regulated by the Western Australian Government. After the engineers’ claims were refused, they applied to the Commonwealth Court of Conciliation and Arbitration for a determination of their industrial dispute under the federal conciliation and arbitration legislation, which was purported to be authorised by s 51(xxxv) of the Constitution. The High Court was asked to determine two questions: whether the federal parliament had the power to make laws under s 51(xxxv) which bound the state government instrumentalities in their capacity as employers, and whether a dispute existed in fact between the engineers and the Minister for Trading Concerns of Western Australia. The first question raised an important issue of constitutional interpretation, and the High Court’s answer would obviously have a significant effect on the relationship between the Commonwealth and the states, as it would enable a Commonwealth body to regulate a state in its capacity as an employer.

Knox CJ, Isaacs, Rich and Starke JJ delivered a judgment that has had a deep and lasting impact on Australian federalism, holding that Commonwealth legislative powers should be interpreted literally, and that there was no textual support in the Constitution for the doctrine of implied immunity or state reserved powers (at 154–5): Applying these principles to the present case, the matter stands thus:— Section 51 (XXXV) is in terms so general that it extends to all industrial disputes in fact extending beyond the limits of any one State, no exception being expressed as to industrial disputes in which States are concerned; but subject to any special provision to the contrary elsewhere in the Constitution. The respondents suggest only s 107 as containing by implication a provision to the contrary. The answer is that s 107 contains nothing which in any way either cuts down the meaning of the expression ‘industrial disputes’ in sec 51 (XXXV) or exempts the Crown in right of a State, when party to an industrial dispute in fact, from the operation of Commonwealth legislation under sec 51 (XXXV). Section 107 continues the previously existing powers of every State Parliament to legislate with respect to (1) State exclusive powers, and (2) State powers which are concurrent with Commonwealth powers. But it is a fundamental and fatal error to read s 107 as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in sec 51 as that grant is reasonably construed, unless that reservation is as explicitly stated. The effect of State legislation, though fully within the powers preserved by s 107, may, in a given case, depend on s 109. However valid and binding on the people of the State, where no relevant Commonwealth legislation exists, the moment

[page 60] it encounters repugnant Commonwealth legislation operating on the same field the State legislation must give way. This is the true foundation of the doctrine stated in D’Emden v Pedder in the so-called rule quoted, which is after all only a paraphrase of s 109 of the Constitution. The supremacy thus established by express words of the Constitution has been recognised by the Privy Council without express provision in the case of the Canadian Constitution (see La Compagnie Hydraulique v. Continental Heat and Light Co). The doctrine of ‘implied prohibition’ finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning. The principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation full operation within their respective areas and subject matters; but, in case of conflict, giving to valid Commonwealth legislation the supremacy expressly

declared by the Constitution, measuring that supremacy according to the very words of s 109. That section, which says ‘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,’ gives supremacy, not to any particular class of Commonwealth Acts but to every Commonwealth Act, over, not merely State Acts passed under concurrent powers but all State Acts, though passed under an exclusive power, if any provisions of the two conflict.

3.9 The Engineers’ case is authority for the literal or ‘golden’ rule of interpretation: that the words of the Constitution are to be read in their natural and ordinary sense: at 149–50, 155. Section 51(xxxv) of the Constitution, which was at the centre of the case, read in its natural and ordinary sense, contained no language that indicated that the Commonwealth could not regulate states in their capacity as employers. This could be contrasted with s 51(xiii) or (xiv), which contained express restrictions on the Commonwealth over some topics (for example, state banking and state insurance). The High Court also approved the principle of statutory interpretation of expressio unius est exclusio alterius; that is, that the expression of one subject, object or idea is the exclusion of other subjects, objects or ideas. Since the people who wrote the Constitution specifically prohibited the Commonwealth from regulating state banking or state insurance, it could be assumed that they were not prohibiting the Commonwealth from regulating industrial disputes in which states were parties. The Engineers’ approach to the interpretation of Commonwealth constitutional powers has been a significant factor in the growth of Commonwealth power. A literal approach to the taxation power has allowed the Commonwealth to expand its revenue base to the point where the states are reliant on the Commonwealth for revenue via grants: see South Australia v Commonwealth (Uniform Tax case (No 1)) (1942) 65 CLR 373; and generally Chapter 14. An expansive approach to the external affairs power (s 51(xxix)), enabling the Commonwealth to implement international obligations into domestic law, has led to

concerns that s 51 of the Constitution, which was intended to enumerate the heads of Commonwealth legislative power, has been expanded to an indeterminate degree: Commonwealth v Tasmania (1983) 158 CLR 1 at 100 (see further 10.4). An expansive approach to the corporations power (s 51(xx)) has enabled the Commonwealth to bypass powers such as s 51(i) and (xxxv) completely, by regulating the intrastate trading activities of trading corporations and the local industrial relations activities of corporations (see, for example, New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1, considered at 8.21–8.25. These developments have raised a concern that the states [page 61] are now effectively powerless within Australian federalism. James Allan and Nicholas Aroney have observed (2008 at pp 246–7): None of the Constitution’s framers would ever have imagined, back in the 1890s or in 1901, that a century or so later the Australian States would be as emasculated as they are today: that they would be so dependent upon the Commonwealth for their governmental finances; and that their policy-making capacities would be so contingent upon political decisions taken by the Federal Government. More specifically, none of the framers would have anticipated that the ‘corporations’ power (s 51(xx)) would be held to allow the Commonwealth to take over the field of industrial relations; that the ‘external affairs’ power (s 51(xxix)) would be deemed to enable the Commonwealth to enact far-reaching environmental, human rights and industrial relations laws; or that the States could be cajoled into abjuring income tax powers, not least because four federal statutes — passed at the same time (during the Second World War) and consecutively numbered — were assessed or judged individually (and, of course, held to be valid) and not as part of a package. And this is merely to highlight some of the better known ways in which the competencies of the Commonwealth have waxed while those of the States have waned. Nothing in the language of the Australian Constitution, or its structure, or the process that was used to adopt it, or the basis upon which its approval by the voters was promoted, or the likely original understandings of most of those voters, or anything else at the time would have suggested that the States would become the enfeebled,

emasculated creatures they have become. Put slightly differently, no one, or almost no one, would have guessed or predicted that virtually all of the important division of powers cases would eventually go the Commonwealth’s way [references omitted].

On the other hand, as the plurality noted in the Engineers’ case (see 3.4), it is always within the power of the people to reverse Commonwealth legislative over-reaching. The fact that many Commonwealth initiatives relying on the expansive legislative power yielded by an Engineers’ approach to constitutional interpretation have not been rolled back indicates that Australian electors may be less concerned about states’ rights than some constitutional lawyers. The Melbourne Corporation doctrine 3.10 The doctrine of state reserved powers and the doctrine of implied intergovernmental immunities had been rejected. However, later, in Melbourne Corporation v Commonwealth (1947) 74 CLR 31, the High Court held that a new implication, drawn from the federal character of the Constitution (but in a different way to the preEngineers’ doctrines) could limit Commonwealth legislative power. The Melbourne Corporation case concerned legislation that attempted to nationalise Australian banks. The Commonwealth wanted to nationalise the banks to achieve greater control of money and credit in order to guard against depression and inflation and to produce a banking system ‘wholly devoted to the service of Australia’ (Prime Minister Chifley, 1947). Political opposition to the legislation focused on concern that the nationalisation of the banks was a precursor to nationalisation of other industries. In 1947 the Commonwealth enacted the Banking Act 1945 (Cth), which provided in part that: 48(1) Except with the consent in writing of the Treasurer, a bank shall not conduct any banking business for a State or for any authority of a State, including a local government authority.

[page 62]

Penalty: One thousand pounds. (2) Any consent of the Treasurer under this section may apply to all such business conducted by any particular bank or at a particular office of a bank, or to the business of any particular State or authority conducted by any particular bank or at any particular office of a bank. (3) Until a date fixed by the Treasurer by notice published in the Gazette, this section shall apply only in relation to banking business conducted for a State or for an authority of a State including a local government authority, specified by the Treasurer by notice in writing, and if an office of a bank is specified in the notice, at the office so specified.

Section 4 defined ‘bank’ to mean ‘a body corporate authorised under Pt II of this Act to carry on banking business in Australia’. These bodies corporate were listed in the first Schedule of the Act and were all the private banks then operating in Australia. Section 5(1) declared that nothing in s 48 ‘shall apply with respect to State banking’. Then, in May 1947, the Treasurer of the Commonwealth wrote to Melbourne City Council (‘the Melbourne Corporation’), and advised it that, as from 1 August 1947, it would be ‘specified’ in accordance with s 48(3). The Treasurer also indicated that he was satisfied that the Commonwealth Bank was ‘in a position to provide full banking facilities to’ the Melbourne Corporation. The Commonwealth Bank was, at that time, a Commonwealth government agency that had to give effect to monetary and banking policy determined by the Commonwealth Government. The Melbourne Corporation challenged the constitutional validity of s 48 of the Banking Act 1945 (Cth). The section was challenged on a number of grounds, including that the law was ‘discriminatory’ in the sense that it was ‘aimed at’ the states and state authorities, and that neither the Commonwealth nor the states are competent to aim legislation at the other so as to tend to weaken or destroy the functions of the other. Sir Garfield Barwick QC, counsel for the Melbourne Corporation, argued that: Under the Constitution neither Commonwealth or State may pass discriminatory legislation aimed at the other with respect to an essential governmental function of that

other … Although the old doctrine of the immunity of instrumentalities has gone, the proposition for which the plaintiff contends still remains valid and finds support in the authorities … The result is that a law such as s 48, even if treated as a law ‘with respect to banking’, in the widest literal meaning that can be given to those words without regard to context, is still not authorized by s 51(xiii) of the Constitution, because its sole purpose and effect is to impede banking by a State in the exercise of its governmental function.

A majority of the court (Latham CJ, Rich, Starke and Dixon J; McTiernan J dissenting) accepted this argument. The High Court held that the Commonwealth may not impose special burdens or disabilities on a state or states or destroy or curtail the continued existence of the states or their capacity to function as governments. Latham CJ referred to the Engineers’ case and said that the principle of federal legislative supremacy enunciated in the Engineers’ case did not accord the Commonwealth a power to destroy the states (at 55): … this principle does not mean that the States are in a position of subjects of the Commonwealth. The Constitution is based upon and provides for the continued

[page 63] co-existence of Commonwealth and States as separate Governments, each independent within its own sphere.

Latham CJ later said (at 60): … federal laws which ‘discriminate’ against the States are not laws authorized by the Constitution. Laws ‘discriminate’ against the States if they single out the States for taxation or some other form of control and they will also be invalid if they ‘unduly interfere’ with the performance of what are clearly State functions of government.

Rich J reviewed the Engineers’ case and formulated the following test (at 66): The view once prevailed that any legislative or executive act of the Commonwealth which would, if valid, interfere with the free exercise by a State or its instrumentalities of their legislative or executive power was pro tanto invalid. At a very early stage, however, there were decisions inconsistent with this view, and it was finally exploded by the Engineers Case. There is no general implication in the framework of the

Constitution that the Commonwealth is restricted from exercising its defined constitutional powers to their fullest extent by a supposed reservation to the States of an undefined field of reserved powers beyond the scope of Commonwealth interference. But this is always subject to the provisions of the Commonwealth Constitution itself. That Constitution expressly provides for the continued existence of the States. Any action on the part of the Commonwealth, in purported exercise of its constitutional power, which would prevent a State from continuing to exist and function as such is necessarily invalid because inconsistent with the express provisions of the Constitution, and it is to be noted that all the powers conferred by s 51 are conferred ‘subject to this Constitution’. Such action on the part of the Commonwealth may be invalid in two classes of case, one, where the Commonwealth singles out the States or agencies to which they have delegated some of the normal and essential functions of government, and imposes on them restrictions which prevent them from performing those functions or impede them in doing so; another, where, although the States or their essential agencies are not singled out, they are subjected to some provision of general application, which, in its application to them, would so prevent or impede them. Action of the former type would be invalid because there is nothing in the Commonwealth Constitution to authorize such action by the Commonwealth.

Starke J said that in construing the Constitution ‘we may start from the proposition that neither Federal nor State Governments may destroy the other nor curtail in any substantial manner the exercise of its powers or obviously interfere with one another’s operations’: at 74. Similarly, Dixon J said that while the Commonwealth could enact ‘a general law which governs all alike who come within the area of its operation whether they are subjects of the Crown or the agents of the Crown in right of a State’, the Commonwealth could not enact ‘a law which discriminates against States, or a law which places a particular disability or burden upon an operation or activity of a State, and more especially upon the execution of its constitutional powers’: at 79. 3.11 The Melbourne Corporation decision placed the literal rule of constitutional interpretation enunciated in the Engineers’ case within what Barwick QC described as a federal ‘context’. The boundaries of this context were initially indistinct, due to the divergent approaches taken by the majority judges in the Melbourne Corporation case. Latham CJ said that a Commonwealth law would be invalid if it was a law ‘aimed at or directed against States’: at 62. Dixon J said that the states

could claim immunity from a Commonwealth law ‘which discriminates against States, or … places a particular disability or burden’ upon them: at 79. [page 64] Rich and Starke JJ said that there was a limit against general Commonwealth legislation which threatened ‘the continued existence of the States’ (at 66 per Rich J) or ‘curtail[ed] or interfere[d] in a substantial manner with the exercise of constitutional power by the other’ (at 74 per Starke J). 3.12 These divergent approaches were reflected in Victoria v Commonwealth (Payroll Tax case) (1971) 122 CLR 353. The Engineers’ case had left open the question whether the Commonwealth could use its taxation power to impose taxation on the states. In the Payroll Tax case, federal law imposed a tax of 2.5 per cent on all wages paid or payable by an employer. The tax was to be paid to the Commonwealth by the employer. A federal tax assessment law defined ‘employer’ to include the Crown in right of a state: s 3. Victoria argued that the Melbourne Corporation doctrine should be applied and the law found invalid. The Commonwealth argued that the laws involved a valid exercise of the taxation power. Menzies, Windeyer, Walsh and Gibbs JJ rejected the argument based on the Melbourne Corporation doctrine. Menzies J observed that the laws did not ‘operate to interfere with the performance by the State of its constitutional functions’ and he contrasted it with a ‘Commonwealth tax upon State tax revenues’: at 392–3; see also Walsh J at 413. Windeyer J said the law was ‘not aimed at the States otherwise than as employers along with other employers’: at 403. Gibbs J said that it ‘has not been shown that the tax in the present case

prevents the States from employing civil servants or operates as a substantial impediment to their employment’: at 425. Barwick CJ, McTiernan and Owen JJ held that the Commonwealth’s legislative powers, subject to any express restrictions such as s 51(xiii), could operate to ‘bind the Crown in right of a State in like manner that they bind individuals and corporations’: at 367 per Barwick CJ with whom Owen J agreed at 405; see also McTiernan J at 385–6. 3.13 In Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, the High Court rejected a challenge to an order of the Federal Court restraining a Victorian royal commissioner from proceeding with an inquiry into a trade union while legal proceedings against that union were pending in the Federal Court. It was argued on behalf of Victoria that the Federal Court’s order involved an interference with the state prerogative power to conduct the royal commission. Mason J said (at 93): There is no secure foundation for an implication that the exercise of the Parliament’s legislative powers cannot affect the prerogative in right of the States and the weight of judicial opinion, based on the thrust of the reasoning in the Engineers’ case, is against it.

Mason J said that the conferral on the Federal Court of its power to restrain a contempt of court by a state royal commissioner did not offend the Melbourne Corporation doctrine, as the power was in general and non-discriminatory terms and its exercise did not impair the state’s existence or capacity to function: at 93–4. Stephen, Murphy and Aickin JJ agreed in separate judgments. Gibbs CJ, Wilson and Brennan JJ did not address this point. 3.14 The approach taken by Menzies, Walsh and Gibbs JJ in Victoria v Commonwealth (Pay-roll Tax case) (1971) 122 CLR 353 was raised by Tasmania [page 65]

in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1. In that case, Tasmania argued that a Commonwealth law that prohibited the construction of a dam upon Tasmanian Crown land was invalid because it impaired the power of Tasmania to manage its Crown lands. Gibbs CJ, Wilson and Dawson JJ, the dissentients, held the Commonwealth law invalid for infringing the Melbourne Corporation doctrine. Mason J upheld the law but said that a non-discriminatory Commonwealth law that ‘inhibits or impairs the continued existence of a State or its capacity to function’ would be invalid: at 139. Brennan J indicated that the constraint on Commonwealth legislation was limited ‘to restrict[ing] the use by the central department of government or by Parliament or by the Supreme Court of the buildings appointed for their use in performing their respective functions’: at 214. Deane J held that the Commonwealth law did not ‘in any relevant sense, involve “a discriminatory attack” upon the exercise by Tasmania of its executive authority’: at 281. 3.15 The Melbourne Corporation doctrine as formulated by Starke J was applied in Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192. The Queensland Branch of the Electrical Trades Union was engaged in an industrial dispute with the Queensland Electricity Commission, a state government agency that operated the electricity system in that state. The parties could not reach agreement and the union took industrial action that led to disruptions to electricity supply. The Federal Government enacted the Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth). Section 6 applied the Act to the existing dispute between the union and the commission, s 7 required the commission to resolve it and s 8 removed its power to decline to resolve a matter on the basis that it was properly dealt with

by a state industrial authority. The court struck the law down on the basis that it singled out the Queensland Electricity Commission, and discriminated against it in its activities as an agent of the Queensland Government: at 207, 221, 230, 244, 254, 262. Gibbs CJ said (at 205–7): It is now clear in principle, and established by authority, that the powers granted by s 51 of the Constitution are subject to certain limitations derived from the federal nature of the Constitution. The purpose of the Constitution was to establish a Federation. ‘The foundation of the Constitution is the conception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities’: Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82. The fundamental purpose of the Constitution, and its ‘very frame’ (Melbourne Corporation v The Commonwealth, at p 83), reveal an intention that the power of the Commonwealth to affect the States by its legislation must be subject to some limitation … there are two distinct rules, each based on the same principle, but dealing separately with general and discriminatory laws. A general law, made within an enumerated power of the Commonwealth, will be invalid if it would prevent a State from continuing to exist and function as such. Clearly the Act is not a law of that description and it is unnecessary to consider further that aspect of the principle. A Commonwealth law will also be invalid if it discriminates against the States in the sense that it imposes some special burden or disability on them … The nature of a law which infringes this limitation may be described in various ways; it may be said that it imposes

[page 66] ‘a special burden’ on the States (Victoria v The Commonwealth, at p 388), that it is ‘directed against’ the States (Victoria v The Commonwealth, at p 402), that it ‘singles out’ the States or places ‘special burdens or disabilities’ upon them (Victoria v The Commonwealth, at pp 411–412) or that it is ‘a law aimed at (the) restriction or control’ of the States (Victoria v The Commonwealth, at p 424) … I have already said that the provisions of the Act are directed at the electricity authorities of Queensland; the Act singles them out for attention and subjects them to disabilities to which other employers are not subjected.

3.16 The Melbourne Corporation principle was reformulated in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188. That

case concerned a federal industrial award developed by the Australian Industrial Relations Commission (AIRC) applying to state teachers that was unsuccessfully challenged on Melbourne Corporation grounds. Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ formulated the Melbourne Corporation principle in the following terms (at 231): The limitation (recognised in the Melbourne Corporation case) consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities (‘the limitation against discrimination’) and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments.

This case involved a challenge by the State of Victoria to a federal award made by the AIRC preventing the Victorian Government from terminating the employment of public servants by offering voluntary redundancies. Discussing the application of the Melbourne Corporation principle in this context (that is, industrial relations), Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (with Dawson J dissenting) made some important remarks about the second limb of the principle. Describing it as an ‘implied limitation … [constituting] an impairment or curtailment of the capacity of a State to function as a government’ (at 228), their Honours elaborated on what aspects of a state’s functions are critical to its capacity to function as a government: at 232–3. It may be taken from the two following extracts that the implied limitation may apply in at least two situations to protect states: (1) the appointment (including the terms on which persons are employed) and dismissal of public servants; and (2) the continuing employment conditions of persons engaged at the ‘higher levels of government’: It seems to us that critical to that capacity of a State is the government’s right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds. An impairment of a State’s rights in these respects would, in our view, constitute an infringement of the implied limitation. On this view, the prescription by a

federal award of minimum wages and working conditions would not infringe the implied limitation, at least if it takes appropriate account of any special functions or responsibilities which attach to the employees in question. There may be a question, in some areas of employment, whether an award regulating promotion and transfer would amount to an infringement. That is a question which need not be considered. As with other provisions in a comprehensive award, the answer would turn on matters of degree, including the character and responsibilities of the employee. …

[page 67] In our view, also critical to a State’s capacity to function as a government is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of government, but also to determine the terms and conditions on which those persons shall be engaged. Hence, Ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges would clearly fall within this group. The implied limitation would protect the States from the exercise by the Commission of power to fix minimum wages and working conditions in respect of such persons and possibly others as well. And, in any event, Ministers and judges are not employees of a State.

Despite Dawson J’s criticism that drawing a line between those employed at the higher levels of government and those employed at the lower levels is ‘artificial’ (at 250), the majority’s apparent acceptance that the Melbourne Corporation principle protects the states against Commonwealth interference in the employment of those at the ‘higher levels of government’, including judges and parliamentarians, would prove influential in later cases heard by the High Court and Federal Court, namely Austin v Commonwealth (2003) 215 CLR 185, Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272 and Albrecht v Commissioner of Taxation (2014) 228 FCR 177. The High Court decided Re Australian Education Union; Ex parte Victoria in April 1995. A month earlier the court had handed down its decision in Western Australia v Commonwealth (Second Native Title case) (1995) 183 CLR 373. The Parliament of Western Australia had passed

the Land (Titles and Traditional Usage) Act 1993 (WA), a statute which purported to extinguish native title in that state and ‘replace it with statutory rights of traditional usage’ (at 418 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). The federal parliament thereafter enacted the Native Title Act 1993 (Cth), which stated that native title could not be extinguished, unless in accordance with that Act: s 11(1). The effect of the Commonwealth law was to render inconsistent provisions of the Western Australian legislation, for the purposes of s 109 of the Constitution. There was also the question of whether the state law was inconsistent with provisions of the federal Racial Discrimination Act 1975 (Cth). The State of Western Australia initiated proceedings in the High Court claiming that the Native Title Act was outside s 51(xxvi) of the Constitution and was therefore invalid. It also contended, in the event that the Act was supported by the races power, that it nevertheless exceeded ‘the limits on the legislative powers of the Commonwealth implicit in the federal structure of the Constitution’ (at 420 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). In other words, Western Australia argued that the Act in its application to Western Australia infringed either the first or second limbs of the Melbourne Corporation principle and should be declared invalid. Both arguments were rejected unanimously by the court. As for the Melbourne Corporation argument, the majority quickly disposed of the idea that ‘discrimination’ manifests ‘simply because history and geography have combined in creating in Western Australia a greater area and proportion of land which might be subject to native title than the area or proportion of such land in other parts of the Commonwealth’: at 478. They also dismissed the argument that the law impaired the state’s capacity to function as a government, by impermissibly interfering with

[page 68] its function to appropriate lands for public purposes and to alienate and develop Crown lands, as well as its power to administer and regulate land and mineral resources: at 479. Identifying a high threshold for invoking the second limb of the Melbourne Corporation principle, the majority observed (at 480, 481): For constitutional purposes, the relevant question is not whether State powers are effectively restricted or their exercise made more complex or subjected to delaying procedures by the Commonwealth law. The relevant question is whether the Commonwealth law affects what Dixon J called the ‘existence and nature’ of the State body politic. As the Melbourne Corporation Case illustrates, this conception relates to the machinery of government and to the capacity of its respective organs to exercise such powers as are conferred upon them by the general law which includes the Constitution and the laws of the Commonwealth. A Commonwealth law cannot deprive the State of the personnel, property, goods and services which the State requires to exercise its powers and cannot impede or burden the State in the acquisition of what it so requires. … The Act does not purport to affect the machinery of the government of the State. The constitution of the three branches of government is unimpaired; the capacity of the State to engage the servants it needs is unaffected; the acquisition of goods and services is not impeded; nor is any impediment placed in the way of acquiring the land needed for the discharge of the essential functions of the State save in one respect, namely, the payment of compensation. The Act does not impair what Dawson J described as ‘the capacity to exercise’ constitutional functions though it may affect the ease with which those functions are exercised.

Dawson J concurred with the majority: at 495. 3.17 In Victoria v Commonwealth (1996) 187 CLR 416, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ struck down a federal award which infringed the second limb of the prohibition as it had been reformulated in Re Australian Education Union. It was held that the award in Victoria v Commonwealth prevented a state from exercising its ‘right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such

persons and, as well, the number and identity of the persons whom it wishes to dismiss … on redundancy grounds’ and, in the case of those employed at the higher levels of government, the second limb of the principle precluded laws which prevent the state from determining ‘the terms and conditions on which those persons shall be engaged’: at 498–503, 518–21. However, their Honours read the provisions down in this case. 3.18 The Melbourne Corporation doctrine was also applied in Austin v Commonwealth (2003) 215 CLR 185. A New South Wales Supreme Court judge challenged federal legislation, the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth), which identified state judges as one of a number of people who should pay federal taxation on their superannuation entitlements. Austin argued that this federal law affected the financial security and thus the independence of state judicial officers, a matter for the states within the ambit of the Melbourne Corporation doctrine. The law affected Austin’s financial security because the longer he served as a judge, the larger his liability would have been under the superannuation surcharge tax. This effectively encouraged him to retire early. This, accordingly, interfered with the state’s ability to retain its judges. The court accepted this argument. [page 69] Gaudron, Gummow and Hayne JJ, with whom Kirby J agreed, said: 124 There is, in our view, but one limitation, though the apparent expression of it varies with the form of the legislation under consideration. The question presented by the doctrine in any given case requires assessment of the impact of particular laws by such criteria as ‘special burden’ and ‘curtailment’ of ‘capacity’ of the States ‘to function as governments’. These criteria are to be applied by consideration not only of the form

but also ‘the substance and actual operation’ of the federal law [reference omitted].

In Austin, the majority justices re-formulated the Melbourne Corporation principle into a single rule that comprised both limbs of the doctrine. The first limb has been subsumed within a broader second limb, with ‘discrimination’ now said to be but an ‘illustration of a law which impairs the capacity of the State to function in accordance with the constitutional conception of the Commonwealth and States as constituent entities of the federal structure’: see Clarke v Commissioner of Taxation (2009) 240 CLR 272 at 306 per Gummow, Heydon, Kiefel and Bell JJ. Anne Twomey has criticised Austin, remarking that it is ‘difficult to see how a tax on judicial superannuation threatens the continued existence of the State or its ability to function’ (Twomey, 2003). The High Court’s decision in Austin can be contrasted with another case decided by the Full Federal Court, Parliamentary Trustee of Parliamentary Superannuation Fund v Commissioner of Taxation (2013) 216 FCR 329. In this case, the appellant was the trustee of a parliamentary contributory superannuation fund in Victoria, whose members were parliamentarians who received a defined benefits pension upon retirement. Between 1999 and 2009 the Commissioner of Taxation issued assessments to the fund for surchargeable contributions in respect of its members. The appellant subsequently lodged a notice of objection against all of those assessments on the basis that the Surcharge Acts ‘impaired, in a significant manner, the capacity of the State of Victoria to exercise its powers with respect to the remuneration of the members of its Parliament contrary to the requirements articulated by the High Court’ in Clarke v Federal Commissioner of Taxation and Austin v Commonwealth: at [1]. Clarke is explored in further detail at 3.20 below, a case which confirms that parliamentarians (like judges) are officials at the ‘higher levels of government’, and that a special tax on their superannuation

entitlements which singles them out infringes the Melbourne Corporation doctrine. The court unanimously rejected the appellant’s argument. Kenny, Perram and Robertson JJ held that there was nothing discriminatory in the surcharge Acts and nothing which restricts or burdens one or more of the states in the exercise of their constitutional powers: at [57]. Unlike Austin and Clarke, the superannuation fund was not a ‘constitutionally protected fund’ (at [37]) and there was no special legislation singling out high office-holders of the state (at [57]). Their Honours took the opportunity to note important points of distinction between this case and Austin: 47 … A distinct feature in Austin and Clarke was that the surcharge fell upon the member and not the entity operating the fund. In Austin, at least, the High Court concluded that the surcharge provided a strong incentive for the members to retire early in order to reduce the size of their surcharge obligations on retirement.

[page 70] 48 The longer the member served the larger the surcharge liability would be. In the case of Justice Austin himself, Gaudron, Gummow and Hayne JJ observed at [91] that if the judge had served until the statutory age of retirement his surcharge liability would have been in the order of $550,000 which was more than double the gross pension he would have received in the year that liability fell due. This significant effect encouraged, indeed probably compelled, persons subject to the surcharge to retire before serving the ‘maximum possible term’: at [169]. 49 The surcharge law in question, therefore, directly interfered with the terms upon which the State retained its judges because it strongly encouraged them to retire at the earliest moment. Further, as the Court also noted at [169] it interfered with the interests of the State in providing adequate remuneration to its judges. The legislative response in those cases was designed to reverse that effect by allowing the members to commute a part of their pension to meet the surcharge obligation on retirement. The High Court observed that the occasion for that legislative response was ‘supplied solely by the operation of the federal legislation’: at [173]. 50 That is not what has occurred in this case. The tax levied by the Surcharge Acts never fell on the members. The effect which arose in Austin and Clarke has never

occurred in this case. The legislative response of the State embodied in the Superannuation Acts (Amendment) Act 2000 was not the removal from its senior officials of the burden of a tax which constituted an interference with the terms of their remuneration and an incentive to retire but instead the transfer of a tax liability which had previously fallen on the State to the members of the Fund. This marks the facts in this case as being fundamentally different to those in Austin and Clarke.

3.19 After achieving majority control of the Senate, and expressing the opinion that the government’s Senate majority should be used ‘very carefully and very soberly’, Prime Minister Howard announced that he had ‘never been one to genuflect uncritically at the altar of States’ rights’, and announced sweeping reforms of the industrial relations system with the stated objective of achieving a single, national system. New federal legislation was enacted to achieve this objective. The legislation relied principally on s 51(xx) of the Constitution (as to which, see 8.21). It was upheld by a majority of the High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Kirby and Callinan JJ dissenting): New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1. While the case did not consider a Melbourne Corporation challenge, the majority, in their joint judgment, reaffirmed the orthodox approach to the division of Commonwealth and state legislative power in the following terms: 190 No party sought to challenge the approach to constitutional construction that underpinned the decision in the Engineers’ Case to reject the doctrine of implied immunities and the doctrine of reserved powers. But it is important not to overstate either the propositions about constitutional construction applied in and after the Engineers’ Case or the consequences of their adoption. 191 The doctrine of implied immunities, or as Sir Robert Garran described it (Garran, ‘The Development of the Australian Constitution’, Law Quarterly Review, vol 40 (1924) 202, at p 215), ‘the reciprocal doctrine of non-interference’, was founded in an implication. Whether that implication was to be drawn depended greatly upon how the constitutional structure was viewed. If, as the founding members of the Court (Griffith CJ, Barton and O’Connor JJ) saw it, the Constitution created a federation of separate, co-ordinate, governments, each substantially independent of the other, supreme in its own sphere but each of which had yielded some of their powers to a central government, the implication of a reciprocal doctrine of non-interference

[page 71] could be described (Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 at 505) as a necessary implication. But if the inquiry begins from a different starting point — the constitutional text, rather than a view of the place of the States that is formed independently of that text — a different conclusion is reached. There is then no necessity to imply a reciprocal doctrine of non-interference. 192 So, too, the doctrine of reserved powers depended upon drawing negative implications from the positive grants of legislative power to the federal Parliament, and sought to draw support for that approach from s 107 of the Constitution. As Dixon J pointed out in Melbourne Corporation v Commonwealth ((1947) 74 CLR 31 at 83), ‘the attempt to read s 107 as the equivalent of a specific grant or reservation of power lacked a foundation in logic’. But no less fundamentally, the doctrine of reserved powers could be supported only if the Constitution was understood as preserving to the States some legislative power formerly held by the unfederated Colonies. Thus, like the doctrine of implied immunities, much depended upon what was taken as the starting point for the analysis. 193 As Windeyer J rightly pointed out in the Payroll Tax case ((1971) 122 CLR 353 at 396), the Engineers’ case is not to be seen ‘as the correction of antecedent errors or as the uprooting of heresy’. There is no doubt that, as he continued (Payroll Tax case (1971) 122 CLR 353 at 396), ‘[t]o return today to the discarded theories would indeed be an error and the adoption of a heresy’. But the Engineers’ case was both a consequence of developments outside the law courts (not least a sense of national identity emerging during and after the First World War) and a cause of future developments. As Windeyer J went on to say (Payroll Tax case (1971) 122 CLR 353 at 396–397): That is not surprising for the Constitution is not an ordinary statute: it is a fundamental law. In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances. This does not mean that courts have transgressed lawful boundaries: or that they may do so. 194 What was discarded in the Engineers’ Case was an approach to constitutional construction that started in a view of the place to be accorded to the States formed independently of the text of the Constitution. The Engineers’ Case did not establish that no implications are to be drawn from the Constitution. So much is evident from Melbourne Corporation ((1947) 74 CLR 31) and from R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) ((1956) 94 CLR 254). Nor did the Engineers’ Case establish that no regard may be had to the general nature and structure of the

constitutional framework which the Constitution erects. As was held in Melbourne Corporation ((1947) 74 CLR 31 at 82. See also Austin v The Commonwealth (2003) 215 CLR 185): The foundation of the Constitution is the conception of a central government and a number of State governments separately organised. The Constitution predicates their continued existence as independent entities. And because the entities, whose continued existence is predicated by the Constitution, are polities, they are to continue as separate bodies politic each having legislative, executive and judicial functions. But this last observation does not identify the content of any of those functions. It does not say what those legislative functions are to be. 195 In the present matters, the appeals made to notions of federal balance, no matter whether the appeal was explicit or only implicit, were propositions about a ‘balance’

[page 72] of legislative power between the Commonwealth and the States. Two points must be made about those propositions. First, as Dixon J said (Melbourne Corporation (1947) 74 CLR 31 at 82–83) in Melbourne Corporation: The position of the federal government is necessarily stronger than that of the States. The Commonwealth is a government to which enumerated powers have been affirmatively granted. The grant carries all that is proper for its full effectuation. Then supremacy is given to the legislative powers of the Commonwealth. Secondly, again as Dixon J pointed out (Melbourne Corporation (1947) 74 CLR 31 at 82) in Melbourne Corporation, the framers ‘appear … to have conceived the States as bodies politic whose existence and nature are independent of the powers allocated to them’ (emphasis added). Thus when it is said that there is a point at which the legislative powers of the federal Parliament and the legislative powers of the States are to be divided lest the federal balance be disturbed, how is that point to be identified? It cannot be identified from any of the considerations mentioned thus far in these reasons, and no other basis for its identification was advanced in argument. 196 Whether a basis for choosing a point of balance is identified or not, the fundamental question which lies behind the plaintiffs’ submissions is: what exactly is the content of the proposition that a particular construction of s 51(xx) would, or would not, impermissibly alter the federal balance? It is a proposition that stops well short of asserting that the favoured construction must be adopted lest the States could no longer operate as separate governments exercising independent functions. Instead it

is advanced by proposing particular limitations to the connection which must be established to demonstrate that a law is a law with respect to constitutional corporations and is advanced in that form on the basis that the result is said to be evidently desirable, even necessary. It may be suggested that the proposition should be criticised as being more a political proposition than a legal proposition. But ‘[t] he Constitution is a political instrument. It deals with government and governmental powers’ (Melbourne Corporation (1947) 74 CLR 31 at 82). To state that the proposition is political rather than legal may, therefore, have a specious plausibility but really be meaningless (cf Melbourne Corporation (1947) 74 CLR 31 at 82) and the suggested criticism would be ill-founded. But to be valuable, the proposition, that a particular construction of s 51(xx) would or would not impermissibly alter the federal balance, must have content, and the plaintiffs made no attempt to define that content.

3.20 The superannuation tax challenged in Austin v Commonwealth (2003) 215 CLR 185 (see 3.18) was again challenged in Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272. Clarke had been a parliamentarian in South Australia for nine years, and the Commissioner of Taxation took steps to impose the surcharge on him. Clarke sought review in the Administrative Appeals Tribunal. The tribunal referred a number of questions to the Federal Court, including whether the scheme was invalid for infringing the Melbourne Corporation principle and s 114 of the Constitution. On appeal, the High Court focused on the Melbourne Corporation point. The six judges who sat unanimously upheld Clarke’s argument that the laws were invalid in their application to him on the ground that they so discriminate against the State of South Australia, or so place a particular disability or burden upon the operations and activities of that state, as to be beyond the legislative power of the Commonwealth. French CJ struck down the law on the basis of a ‘multifactorial assessment’ he set out at 298, [33]–[35]. The plurality, Gummow, Heydon, Kiefel and Bell JJ, applied the ‘one limitation’ test enunciated in Austin (at 249, quoted above), and concluded that the federal law struck down in Austin [page 73]

had the same ‘practical operation’ with respect to state parliamentarians as the state judges whose position had been considered in Austin. While parliamentarians are not judges, the states have an interest in attracting competent people to serve as legislators by making suitable remuneration available: at 307–8. The laws curtailed the liberty of action of South Australia in respect of a ‘longstanding constitutional value’. The tendency of the laws was to ‘induce the States to vary their method of remuneration of members of the legislatures’: at 309. Hayne agreed at 315–16. 3.21 In the years following Austin and Clarke, a number of Melbourne Corporation challenges to similar superannuation surcharge schemes ensued, but for the most part were unsuccessful. In Albrecht v Commissioner of Taxation (2013) 97 ATR 761, nine commissioned Western Australian police officers challenged the validity of the two superannuation contribution surcharge tax laws that had been challenged in Austin and Clarke, as it applied to them (as senior police officers). Like Austin and Clarke, these Acts provided for the imposition of a superannuation surcharge on contributions in respect of constitutionally protected funds established under state legislation: at [1]. The nine applicants were members of constitutionally protected superannuation funds to which the Acts applied: at [7]. They sought to rely on the holding in Austin that the imposition of a federal superannuation contributions tax on those funds was invalid by reason of the Melbourne Corporation principle. The applicants made two submissions in support of this argument. First, that ‘“policing is a core and essential function of government” and that it is protected by principle “at all levels”’, given the important constitutional role and function of commissioned police officers: at [27]. Second, in the event the first submission was not accepted, that the reasoning in Re Australian Education Union and Austin be applied in this case because the function and role of commissioned officers in state governmental

operations were such as to warrant inclusion within the category of persons ‘at the higher levels of government’: at [28]. Siopis J, sitting in the Federal Court, decided that both submissions (with the exception of a small caveat) should fail. Regarding the first submission, his Honour found that the High Court had already decided the very issue in Re Australian Education Union; with the majority in that case deciding not to accept the prosecutor’s argument that the maintenance of a police force is a ‘core or primary and inalienable government function’: at [102]–[107]. Siopis J also held that the applicant’s second submission should be dismissed, as ‘senior’ police officers do not necessarily answer the description of statutory office holders or employees ‘at the higher levels of government’: at [112]–[126]. However, Siopis J was prepared to accept that the superannuation contributions tax was invalid, as it applied to the ninth applicant, during which time he was the Acting Commissioner of Police. That rank was sufficient enough to fall within the definition of a ‘high level statutory office holder’, as identified by the High Court in Re Australian Education Union: at [130]. On appeal to the Full Federal Court, Perram, Robertson and Griffiths JJ upheld the primary judge’s finding that the Commonwealth can validity impose a superannuation surcharge tax upon commissioned officers of state police forces: Albrecht v Federal Commissioner of Taxation (2014) FCR 177. In particular, the Full Court accepted that while the police perform an important role in the maintenance of peace and order, the tax had ‘no impact upon the performance by the state of the policing function’. [page 74] It did ‘not affect the number of police, the way in which their duties

are performed, how they are supervised, what standards they are subject to or, indeed policing in any way at all’: at [19]. Accordingly, there was no breach of the Melbourne Corporation principle on account that the law impaired an area of core constitutional significance. However, the Full Court did accept part of the appellants’ second argument that some commissioned police officers, apart from the Commissioner of Police, are capable of falling within the description of ‘high level statutory officers’. The court identified that out of the six commissioned ranks (that being, Commissioner, Deputy Commissioner, Assistant Commissioner, Commander, Superintendent and Inspector), the salaries of those top three ranks (Commissioner, Deputy Commissioner and Assistant Commissioner) are set by the Salaries and Allowances Tribunal of Western Australia pursuant to legislation, the same body that determines the salaries and allowances of the Governor, Ministers, Parliamentary Secretaries, officers and members of parliament and judicial officers: at [28]. The Full Court accordingly allowed in part the appeals for those applicants who held the rank of Deputy Commissioner of Police (operations), Deputy Commissioner of Police (specialist services) or Assistant Commissioner. The officers could claim immunity from the federal superannuation contributions tax whilst they held those ranks: at [36]. 3.22 The Full Federal Court has also recognised, in United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497, that an enterprise bargaining agreement entered into with the consent of the state or its agencies, as opposed to being mandatorily imposed by the Commonwealth, does not infringe the Melbourne Corporation principle. The s 51(xx) implications of this case are considered at 8.12. Prior to the Victorian state election in 2010, the Labor government entered into an enterprise bargaining agreement with the United Firefighters’ Union under the Fair Work Act 2009 (Cth). Following the change of government at the election, the CFA

failed to comply with the agreement and the Union sought to get it enforced. The CFA submitted that the Fair Work Act 2009 was beyond the legislative power of the Commonwealth in respect of its application to several clauses (26, 27, 28 and 122) of the Agreement by reason of the Melbourne Corporation doctrine. These clauses related to contracting out/maintenance of classifications, safe staffing levels, secondment and lateral entry: at [5], see also at [144]. This argument was rejected by the court. It is very unlikely that a Commonwealth law will impose a special disability or burden on the exercise of the powers and functions of the state which curtails its capacity to function as a government where the state government or its agencies have voluntarily agreed to a course of action under a federal law: 207 The relevant provisions of the FW Act did not single out any State or its agencies. The relevant question is whether those provisions imposed some special disability or burden on the exercise of the powers and fulfilment of the functions of the State of Victoria or the CFA which curtailed the State’s capacity to function as a government. In circumstances where the CFA voluntarily agreed to make the enterprise agreement, we do not consider that the provisions offended the implied limitation. In particular, we do not consider that the statutory regime for the making and approval of an enterprise agreement had the effect on the State’s governmental functions of the Commonwealth imposing on the State of Victoria or the CFA a significant ‘impairment’, ‘interference’, ‘curtailment’, ‘control’ or ‘restriction’ so as to attract the implied limitation. In our view, the voluntary nature of the agreement is inconsistent with those concepts, which lie at the heart of the doctrine.

[page 75] 208 Both the CFA and Attorney-General for Victoria also argued that an exception to the Melbourne Corporation principle should not be carved out in respect of enterprise agreements which have been voluntarily entered into by a State or a State agency because that would be inconsistent with the constitutional underpinnings of the principle, which should not be avoided by a contractual arrangement. We consider that this argument should also be rejected, primarily because it reverses the relevant question. In our view, the correct question is not simply whether the State of Victoria has voluntarily given the Commonwealth any power. Rather, the correct question is whether the relevant provisions of the FW Act which provided for the making of

voluntary enterprise agreements and their approval by the FWA validly applied to the States without offending the Melbourne Corporation principle. For the reasons we have given, we consider that the statutory scheme of the FW Act did not involve a significant impairment of the type which was found to exist in AEU, which involved the imposition of a binding award in an arbitrated context and in the context of a different statutory regime. We accept the UFU’s submission that holding a State or its agency to its ‘determination’ for the limited period of an enterprise agreement which had been voluntarily made by the parties has a very different quality to the imposition by the Commonwealth of an arbitrated outcome on a State or its agencies which have opposed that outcome.

3.23 The High Court has most recently discussed the application of the Melbourne Corporation principle in Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548. The minerals resource rent tax (MRRT) was a federal economic rent tax on the above normal profits made by mining companies from the extraction of iron ore. It was imposed by three Acts, the stated object of which was to ensure that the ‘Australian community received an adequate return for its taxable resources having regard to the inherent value and non-renewable nature of the resources, and the extent to which they were subject to Commonwealth, State and Territory royalties’: at 561. Liability would accrue where a mining company’s annual profits exceeded $75m, having deducted all applicable allowances and tax offsets. Mining royalties paid by a mining company to a state was included in the allowances. Once the $75m threshold was reached, a tax rate of 22.5 per cent would be imposed on the above normal profits. Fortescue, a mining company affected by the imposition of the MRRT, alleged that this legislation was contrary to ss 51(ii) and 99 of the Constitution, and that it breached the Melbourne Corporation principle, because it ‘interfered with the States’ management of the mineral resources under its control’ (at 607–8). Kiefel J outlined the crux of the plaintiffs’ argument in the following terms (at 625): The plaintiffs allege that the MRRT legislation has the effect of detracting from, impairing or curtailing the ability of a State to differentiate itself from other States by determining an applicable rate of mining royalties. Any reduction a State makes

simply results in an increase in MRRT payable by a miner. This is alleged to affect the capacity of a State to function as a government with sovereign control over its territory and the economic development of its natural resources. The abovementioned effect, of an increase in the amount of MRRT payable by a miner, which results where a State reduces its rate of mining royalties or exempts a miner from paying them, is also said to detract from, impair or curtail a State in granting aid to mining contrary to the terms of s 91 of the Constitution.

The Melbourne Corporation argument was rejected unanimously by the court: at 611 per Hayne, Bell and Keane JJ (with whom French CJ agreed at 563, Crennan J [page 76] at 614 and Kiefel J at 636–7). The majority of Hayne, Bell and Keane JJ explained that the Melbourne Corporation principle is predicated on the continued existence of states as independent entities, ‘each having legislative, executive and judicial functions … [It] requires consideration of whether impugned legislation is directed at States, imposing some special disability or burden on the exercise and powers and fulfillment of functions of the States which curtails their capacity to function as governments’: at 609. The justices subsequently explained that the plaintiffs’ case did not reach the requisite threshold to engage the Melbourne Corporation principle: at 609–11. The majority dismissed the submission made by the State of Western Australia, intervening, that integral to the capacity of the states to function as a government under the Constitution is its power to manage and control their natural resources unencumbered. Their Honours noted that a similar submission had been made by Western Australia in the Second Native Title case: see 3.16. Citing the reasons of the court for rejecting the Melbourne Corporation principle in that case (for example, the Act had not affected the machinery of government etc), Hayne, Bell and Keane JJ observed that any effect that the MRRT

legislation had over the state’s control of its land and resources was even ‘less direct and more speculative’ than the effect of the Native Title Act: at 610. Repeating their reading of the doctrine at 609, their Honours found that in no way had the legislation imposed ‘any special burden or disability on the exercise of powers and fulfillment of functions of the States which curtails their capacity to function as governments’: at 611. The reason for this was (at 611): The MRRT Legislation does not deny the capacity of any State to fix the rate of royalty for minerals extracted by miners, and no burden upon a State attaches to any decision by the State to raise or lower that rate. If, as the plaintiffs asserted, the MRRT Legislation affects the States’ ability to use a reduction in royalty rate as an incentive to attract mining investment in the State, the MRRT Legislation does not impose any limit or burden on any State in the exercise of its constitutional functions.

Kiefel J concurred accordingly (at 636–7): The MRRT legislation is not directed to the States and does not affect the government of a State. It does not deny the ability of a State to fix a rate of mining royalty. Any effect upon a State’s ability to offer incentives, by reducing that rate or providing an exemption, is not a burden or limit respecting a State’s constitutional functions. I agree with the reasons of Hayne, Bell and Keane JJ on this issue.

Concurrent powers and exclusive powers 3.24 The federal legislative supremacy established by the Engineers’ case does not mean that the states cannot enter federal fields, only that their laws may be overridden by virtue of the operation of s 109 in the event of a clash. There are, broadly speaking, two types of legislative power: concurrent powers and exclusive powers. Concurrent powers are listed in s 51 and, subject to the observations made in the following paragraphs, are enjoyed by the Commonwealth and the states. Although the Engineers’ case confirmed the legislative supremacy of the Commonwealth, the Commonwealth’s concurrent powers do not operate automatically to reserve any topics of legislation to the Commonwealth. State laws can operate in a field left vacant by federal law.

[page 77] This principle was confirmed in Pirrie v McFarlane (1925) 36 CLR 170. Pirrie laid an information charging McFarlane with driving on a public highway without a Victorian driver’s licence. McFarlane, a member of the Air Force, argued that he was immune from the operation of state laws regulating traffic and licensing on the basis that he was employed by the Commonwealth and engaged in Commonwealth business at the relevant time. At trial this argument was accepted and the principle of implied prohibition (see 3.5) was applied. McFarlane was held to be immune from the operation of the state law. On appeal to the High Court, McFarlane put the same argument, and stressed that members of the defence forces were expected to obey orders, and that this might, in some circumstances, require them to break state laws. Besides, it was argued, s 52 gave the Commonwealth exclusive power with respect to the regulation of defence public servants, and therefore no s 109 inconsistency could arise — state laws were to be interpreted, or ‘read down’, as not applying to soldiers on duty. Knox CJ, with whom Higgins and Starke JJ agreed (Isaacs and Rich JJ dissented), rejected McFarlane’s argument that he was immune from the operation of state law. The doctrine of implied intergovernmental immunities had to be read in light of the decision of the High Court in the Engineers’ case: at 181. The state law would only be inoperative if it was invalid to the extent of its inconsistency with a federal law by virtue of the operation of s 109. Where there was no federal law immunising McFarlane from the operation of state laws, he was subject to those laws, and no issue of inconsistency arose: at 182. In conclusion, Knox CJ said (at 184): The Commonwealth has exclusive powers to make laws with respect to matters relating to naval or military defence. If the prohibition against driving a motor car

without being licensed under State law is reasonably capable of interfering with the naval or military defence of the Commonwealth or of the States, the Commonwealth Parliament has ample power by legislation to confer on members of the Defence Force the right to drive a motor car in the performance of their duty without being licensed under State law. If Parliament chose, it can exempt them from the obligation to obey this provision of State law; but, in my opinion, it has not yet done so. No repugnant or inconsistent Commonwealth legislation stands in the way of the State law on this subject, and such law remains valid and binding in Victoria by virtue of sec 107 of the Constitution.

3.25 In respect of a number of topics, the Commonwealth enjoys exclusive power that gives it special immunity from the operation of state laws. These powers include ss 52 (the Commonwealth has exclusive power to regulate its public service, the seat of government, and Commonwealth public places), 90 (the Commonwealth has exclusive power to levy customs duties and excise duties: see further Chapter 7), 114 (the Commonwealth can enjoy exclusive power to regulate defence) and 115 (the states shall not coin money, making the currency power (s 51(xii)) an exclusive power). 3.26 A leading case on s 52 of the Constitution is Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89. The question raised in Worthing’s case was whether state occupational health and safety legislation applied within a Royal Australian Air Force base, a Commonwealth place. A majority of the High Court (Barwick CJ, Menzies, Windeyer and Walsh JJ; McTiernan, Kitto and Owen JJ dissenting) held [page 78] that s 52 gave the Commonwealth sole legislative authority in Commonwealth places, excluding the legislative authority of the states in those places: at 103, 120, 131, 139 respectively. This means that a state law has no force in a place that is acquired by the

Commonwealth: R v Phillips (1970) 125 CLR 93. The measure of exclusivity is underscored by the fact that even in the event that the Commonwealth gives up its Commonwealth place, state laws do not automatically revive and operate in the vacant field: Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262. These principles were explained by Brennan CJ in Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 at 638: The denial of power to the parliaments of the States does not depend upon the enactment of a law in exercise of a power conferred on the Commonwealth Parliament by s 52. Section 52, unlike s 109, does not suspend the operation of a valid State law that is inconsistent with a valid Commonwealth law; it denies the validity of a measure enacted by the State Parliament to the extent that s 52 confers on the Parliament of the Commonwealth power to enact a measure having the same operation.

So, in Allders it was held that a state cannot impose stamp duty on a lease on premises in a Commonwealth place: at 638, 674. These principles were recently confirmed in Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) (2003) 219 CLR 376, which is considered further below. Commonwealth Places (Application of Laws) Act 1970 (Cth) 3.27 The effect of Allders and the preceding s 52 cases was reversed by Commonwealth law. Section 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth), entitled ‘Application of laws in Commonwealth places’ reads (in part): (1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time. (1A) Subsection (1) does not apply to the provisions of the laws of a State to the extent that those provisions have effect, as laws of the Commonwealth, under the Commonwealth Places (Mirror Taxes) Act 1998. (2) This section does not: (a) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or in relation to

that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth places; or (b) operate so as to make applicable the provisions of a law of a State in or in relation to a Commonwealth place if that law would not apply, or would not have applied, in or in relation to that place if it were not, or had not been, a Commonwealth place. (3) To the extent that the laws of a State would, but for subsection (1) of this section, have, or have had, the same effect, at a particular time, with respect to an act, matter or thing having a connexion with a place in that State that is, or was, at that time, a Commonwealth place as they would have, or would have had,

[page 79] at that time, if the act, matter or thing did not have such a connexion, that subsection does not have effect with respect to the provisions of those laws. (4) In so far as a law of a State has effect in another State, subsection (1) of this section operates to make the provisions of that law applicable in or in relation to a Commonwealth place in that other State. (5) Subsection (1) of this section does not: (a) have effect so as to impose any tax; (b) have effect so as to confer any judicial power; or (c) extend to the provisions of any law of a State in so far as it is not within the authority of the Parliament to make those provisions applicable in or in relation to a Commonwealth place.

The purpose of the Act was to ensure that ordinary laws of the states, such as, for example, motor traffic regulations, continue to apply in Commonwealth places in the states. 3.28 In Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) (2003) 219 CLR 325, the High Court held that state land tax legislation enacted in 1956 validly imposed a land tax in respect of land that had been acquired by the Commonwealth for public purposes in 1922 after it was transferred to the appellant, a private company, in January 1998. The court held that at the time the notices of assessment to land tax were issued the state land tax legislation was no longer legislation

with respect to a place acquired by the Commonwealth for public purposes within the meaning of s 52(i) of the Constitution, because the land ceased having that character when the Commonwealth transferred it to the company. As Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ observed (at 352): The interest or concern of the Commonwealth in aid of which s 52(i) gave to the Parliament exclusive legislative power subsisted for so long as the Commonwealth held the land for public purposes and the grant of exclusive power was correspondingly circumscribed. That interest or concern did not extend to the exclusion of any exercise of State legislative power which might tax the ownership of the Land in the hand of a transferee from the Commonwealth. To the extent that it could be shown that the projected operation of a State tax regime might or could affect the price obtained on a transfer by the Commonwealth when land was no longer held for public purposes, the connection would be so insubstantial, tenuous and distant as to be beyond the preserve of federal exclusive legislative power. That is a consequence of the construction of the second limb of s 52(i) which sees it as being concerned with the fulfilment of the public purpose, freed from any exercise of State legislative power with respect to the place.

Special powers 3.29 In addition to those powers that are expressly exclusive to the Commonwealth, the language of some of the Commonwealth’s notionally concurrent legislative powers (in s 51) indicates that the power over the given topic is, for all intents and purposes, exclusive. A number of powers might fall into this category, including s 51(iv) (‘Borrowing money on the public credit of the Commonwealth’); (xix) (‘Naturalisation and aliens’); (xxx) (‘The relations [page 80] of the Commonwealth with the islands of the Pacific’); (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’);

(xxxvi) (‘Matters in respect of which this Constitution makes provision until the Parliament otherwise provides’) and (xxxix) (‘Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth’). None of these powers could be exercised concurrently without the active involvement of the Commonwealth. Federal powers contemplating state regulation 3.30 A number of federal powers can be described as contemplating state regulation. So, for example, s 51(i), the trade and commerce power, refers to trade and commerce ‘with other countries and among the States’. The subsection does not confer a general power to regulate trade and commerce: see 6.4. This does not mean that the Commonwealth may not use some other power, such as s 51(xx), to the same end: see further 8.16. So the Commonwealth could regulate the purely intrastate trading activities of a s 51(xx) corporation, but would not have power to regulate the intrastate trading activities of an individual, partnership or other non-corporate entity unless those activities touched and concerned a s 51(xx) corporation: see 8.19. Sections 51(iii), 90 and 91 condition the Commonwealth’s power to grant bounties: see further Chapter 7. Section 51(x) appears to limit the geographical scope of the Commonwealth’s power with respect to regulating fisheries. Section 51(xiii) and (xiv) limit the Commonwealth’s power with respect to state banking and state insurance. It seems that s 51(xx) limits the Commonwealth’s power to incorporate trading or financial corporations, as s 51(xx) refers to ‘formed’ corporations; that is, corporations already formed within the Commonwealth within the states: see further 8.13. The Commonwealth’s power to prevent and settle industrial disputes by way of conciliation and arbitration in s 51(xxxv) is limited to disputes

extending beyond the limits of any one state, giving rise to an implication that the Commonwealth has no direct power to regulate purely intrastate industrial disputes: see further Chapter 12. State powers subject to Commonwealth veto and state powers to reserve consent 3.31 A number of state powers are subject to a Commonwealth right of veto. So, a state shall not raise or maintain a naval or military force without the consent of the Commonwealth: s 114. The states may levy charges on imports and exports necessary for the execution of state inspection laws, but the revenue derived from these charges is for the use of the Commonwealth and the Commonwealth may annul these inspection laws: s 112. In other areas, the states have power to reserve consent to Commonwealth regulation. Not surprisingly, the states have power to consent (or withhold consent) to the increase, diminution or alteration of the limits of the state (s 123) and the states retain the power to consent to the formation of a new state formed from the territory of that state: s 124. The states also retain the [page 81] power to consent to Commonwealth acquisition of railways and the construction of railways: s 51(xxxiii) and (xxxiv), respectively. Where assistance, co-operation or equality required 3.32 A number of provisions require the states and the Commonwealth to assist each other. The states shall make provision for custody of offenders against Commonwealth laws: s 120; see further Leeth v Commonwealth (1992) 174 CLR 455 at 477–81 per Brennan J. In addition, the Commonwealth must assist the states by protecting them against invasion and domestic violence: see s 119,

coupled with s 51(vi). A number of constitutional provisions contemplate that the state will co-operate in respect to certain matters or ensure equality of treatment of the residents of the states. So, the states may not discriminate against the subjects of other states on the basis of residence: s 117; see further Chapter 17.

‘Full faith and credit’ 3.33 Section 118 of the Constitution provides that ‘[f]ull faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State’. The section has recently become relevant to the determination of matters in which there is a conflict between state laws. At common law, when a person sued to recover damages in respect of a wrong that took place in another jurisdiction, it was necessary to demonstrate that the relevant act or omission was wrongful under the lex loci delicti (the law of the place of the wrong), and also actionable in the forum. This was the rule in Phillips v Eyre (1870) LR 6 QB 1. If both limbs of the rule were satisfied, then the lex loci delicti would be applied — except to questions of procedure (which included questions of personal injury claims). In Breavington v Godleman (1988) 169 CLR 41 the plaintiff commenced an action in the Supreme Court of Victoria to recover damages sustained in a motor vehicle accident in the Northern Territory. It was alleged that the accident had been caused through the negligence of one or more of the defendants. Northern Territory legislation excluded any entitlement to recover damages in an action in the territory for loss of earnings or loss of earning capacity. The plaintiff brought an action in Victoria, where such damages were recoverable. In the High Court the defendant argued that s 118 of the Constitution required the Victorian court to apply Northern Territory

law in determining the matter. The court disposed of this argument on the basis that s 118 applies to the states, and not the territories. Toohey J went no further than this, but the six other justices of the court took the opportunity to reflect on the meaning of s 118. Mason CJ, Brennan and Dawson JJ gave s 118 a narrow interpretation, and Wilson, Deane and Gaudron JJ gave s 118 a broad interpretation. The narrow view, which later attracted the support of a majority of the court in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 and Stevens v Head (1992) 176 CLR 433, was expressed by Dawson J (at 150) in these terms: [page 82] In my opinion the requirement that full faith and credit be given to the law of a State, statutory or otherwise throughout the Commonwealth affords no assistance where there is a choice to be made between conflicting laws. Once the choice is made then full faith and credit must be given to the law chosen, but the requirements of full faith and credit does nothing to effect a choice.

3.34 The wider approach was that s 118 of the Constitution requires the courts of the state taking jurisdiction over the claim to apply the laws of that state in which the wrong took place, as to do so complied with a requirement of s 118 that a court must give full faith and credit to the laws of that state. This approach was ultimately upheld by the entire court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. The applicant argued that common law principles of choice of law in tort should be adapted to the Constitution, including the rule in s 118. The court rejected the double actionability rule in Phillips v Eyre as reformulated by the majorities in McKain and Stevens, and consistent with s 118 of the Constitution, developed a new common law rule: that in intranational torts involving an interstate element, the lex loci delicti will apply. This extends to matters of substance and procedure,

including laws relating to limitation periods and damages awards, but excepting rules that are directed to regulating the mode or conduct of court proceedings (which, presumably, are a matter of state ‘autonomy and integrity’): at 543–4 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

References, co-operation and uniform legislation 3.35 The Constitution contemplates that the Commonwealth and the states may co-operate in a variety of ways. Section 51(xxxvii) enables the state to refer powers to the Commonwealth. For example, the states have referred power over the maintenance, custody and guardianship of ex-nuptial children to the Commonwealth, and state jurisdiction over corporate law matters exercised by the Federal Court under the defunct cross-vesting scheme: see Re Wakim; Ex parte McNally (1999) 198 CLR 511 and below at 20.24–20.26. But this is not the only way in which uniformity of laws can be achieved. The Commonwealth and the states can agree to pass complementary legislation or make co-operative administrative arrangements. The Financial Agreement of 1927 authorised by s 105A is a notable example of Commonwealth/state co-operation: see further 14.13. The Commonwealth and the states have also co-operated on major public works schemes such as the Snowy Mountains Hydro-Electric scheme and co-operative schemes relating to the marketing of primary products: see Richardson, 1977, Ch 4. 3.36 When the Commonwealth and states enact laws to complement the work of each other, prevailing constitutional requirements must still be observed. The issue was raised in R v Hughes (2000) 202 CLR 535. The High Court was asked to consider whether it was unconstitutional for the Commonwealth Director of Public Prosecutions to exercise state powers in prosecuting offences

against state corporations law. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ held that cross-vesting of executive functions could be validly done through co-operative state and federal laws, so long as the federal parliament could point to a relevant head of power to support the law concerned. In this case, the Commonwealth law, in as much as it concerned overseas financial transactions [page 83] by a trading corporation, could be supported by s 51(i), (xx) and (xxix): at 556. But a state could not unilaterally vest functions in officers of the Commonwealth, whose offices are created by Commonwealth law and who have powers vested in them by that law: Re Cram; Ex parte New South Wales Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 at 127–8; Bond v The Queen (2000) 201 CLR 213 at 219–20 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ. It follows that if a Commonwealth law prescribes the power and authority of an officer of the Commonwealth to perform a function under state law under a co-operative arrangement, a state law which grants some wider power or authority to that officer would be to that extent inconsistent with the Commonwealth law and invalid under s 109 of the Constitution. For consideration of legislation dealing with the deficiency identified in Bond, see Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287 at 297–8.

[page 85]

Chapter Four

The States and the Constitution Introduction 4.1 This chapter considers a number of topics: first, the constitutional origin of the states; second, their legislative power; third, restrictions on state legislative power emanating from state constitutional law; and fourth, the extent of state power to regulate the Commonwealth. The legal dimensions of Australian federalism are considered in Chapter 3. The fiscal imbalance between the Commonwealth and the states is considered in Chapter 14. 4.2 The states did not exist before Federation. The states were created by the Constitution. Their existence is guaranteed by s 106 of the Constitution: Victoria v Commonwealth (1971) 122 CLR 353 at 371–2 per Barwick CJ. Section 106 provides: The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

This provision ensures the continued existence of ‘those provisions or terms, wherever found, which really define and describe the framework and scheme of its government’: Stuart-Robertson v Lloyd (1932) 47 CLR 482 at 491 per Evatt J. Section 106 is reinforced by the Melbourne Corporation doctrine (Melbourne Corporation v Commonwealth (1947) 74 CLR 31), which protects the states from Commonwealth

laws that impact negatively on the autonomy and integrity of the states. This doctrine is considered at 3.10–3.23. 4.3 There are a number of provisions in the Constitution that define the powers of states. For example, the states have the power to withhold consent to any attempts to change their territorial boundaries: s 123. The states can agree to the formation of new states: s 124. The admission of new states under s 121 of the Constitution would, like any other legislative action by the Commonwealth, be subject to the review of the Senate, which was designed to represent the states (see 3.4). To change any constitutional provisions affecting the states it would be necessary to receive the assent of the majority of people in a majority of states: s 128.

Legislative power of the states ‘Peace, welfare and good government’ 4.4 Subject to the Commonwealth Constitution and any express or implied restrictions on state power arising from that source, the states enjoy general [page 86] legislative power to make laws for the ‘peace, welfare and good government’ or ‘peace, order and good government’ of the respective state: Constitution Act 1902 (NSW) s 5; Constitution Act 1867 (Qld) s 2 (see Constitution of Queensland 2001 s 8); Constitution Act 1975 (Vic) s 16 (‘in and for Victoria in all cases whatsoever’); Constitution Act 1889 (WA) s 2(1) (‘for the peace, order, and good government of the colony of Western Australia’); Constitution Act 1934 (SA) s 5, in conjunction with the Australian Constitutions Act (No 2) 1850 (UK) s

14; and in Tasmania through s 14 of the Australian Constitutions Act (No 2) 1850 (Imp). These state constitutional provisions are reinforced by s 2(1) of the Australia Act 1986 (Cth) (see further 4.7). These state legislative powers, while differently worded, have been held to be ‘indistinguishable’ in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9. The nature of state legislative power was considered in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. In that case, the New South Wales Compensation Court made an order under s 46 of the Workers’ Compensation Act 1926 (NSW) awarding King, an employee of Union Steamship on a ship registered in New South Wales, compensation for ‘boilermakers’ deafness’. Union Steamship challenged the award on two grounds in the High Court: first, on the ground that s 46 was not a valid law for the peace, welfare and good government of New South Wales; and second, on the ground that the provisions of the state law were inconsistent with the Seamen’s Compensation Act 1911 (Cth), thus rendering the state law invalid to the extent of its inconsistency by virtue of s 109 of the Constitution. The High Court rejected the application on both grounds (at 10): … within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words ‘for the peace, order and good government’ are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law … is another question which we need not explore.

4.5 The decision of the High Court was based on the doctrine of parliamentary supremacy (sometimes referred to as ‘parliamentary

sovereignty’). Imperial parliamentary power was described by the eminent 19th-century constitutional scholar AV Dicey as ‘the right to make or unmake any law whatever’. For most of the 20th century, the Australian states were regarded as enjoying, subject to any express or implied limitations arising from the Constitution, plenary power. In Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, the High Court was invited to consider a constitutional challenge to the Community Protection Act 1994 (NSW). The Act conferred jurisdiction on the New South Wales Supreme Court to order the imprisonment of Gregory Wayne Kable on the [page 87] basis that he was a danger to the community, but without a finding of criminal guilt. Further details regarding this legislation and the constitutional challenge are set out at 19.45. One of the arguments advanced in Kable was that the law was beyond the legislative power of the New South Wales Parliament in s 5 of the New South Wales Constitution. Dawson J (with whom Brennan CJ and McHugh J agreed), in a passage that was subsequently approved in Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, rejected the argument (at 71–6): The New South Wales Parliament derives its legislative power from s 5 of the Constitution Act 1902 which provides that ‘[t]he Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever. …’ It is unnecessary at this point to trace the history which lies behind this provision because it is firmly established that its words confer a plenary power ‘and it was so recognised, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies’. That was clear before the passage of the Australia Acts but it is put beyond question by s 2 of those Acts. The legislative power of the New South Wales legislature is no less than the legislative power of the Parliament of the United Kingdom within the scope of the grant of its power. As s 5 of

the Constitution Act 1902 itself recognises, the power is subject to the Commonwealth of Australia Constitution Act 1900 (Imp). Section 106 of the Commonwealth Constitution makes it clear that the Constitution of each State is subject to the Commonwealth Constitution, and under s 5 of the Australia Acts the powers of the States do not extend to legislation affecting the Commonwealth Constitution, the Commonwealth of Australia Constitution Act, the Statute of Westminster 1931 (Imp) or the Australia Acts themselves. And under s 6 of the Australia Acts the States are bound to observe any manner and form requirements for laws respecting the Constitution, powers or procedures of their parliaments. In addition, the words ‘peace, welfare, and good government of New South Wales’ may be the source of whatever territorial restrictions upon the State’s legislative powers are made necessary by the federal structure. But the important thing is that for present purposes the words ‘peace, welfare, and good government’ are not words of limitation. As this court observed in Union Steamship Co of Australia Pty Ltd v King: They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Up to that point, that passage would appear to be a complete answer to any suggestion that there are common law rights which are so fundamental that they cannot be overturned by legislation, but the court added: Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v Road Carriers; Fraser v State Services Commission; Taylor v New Zealand Poultry Board); a view which Lord Reid firmly rejected in Pickin v British Railways Board, is another question which we need not explore.

[page 88] Those words were prompted by remarks of Cooke J in the New Zealand Court of Appeal to the effect that ‘some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them’. As this court

observed, that view was rejected by Lord Reid in Pickin v British Railways Board. There he said: The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our Constitution … I must make it plain that there has been no attempt to question the general supremacy of Parliament. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete. Lord Reid’s reference to earlier times would appear to hark back to the view expressed by Coke CJ in Bonham’s case. He said: And it appears in our books, that in many cases, the common law will … control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void. Academic debate over the meaning of those words continues to the present time. It is unclear whether Coke CJ was intending to say that Acts of Parliament which are repugnant to the common law are void or whether he was merely laying down a rule of statutory interpretation. If he was intending the former, he appears to have had second thoughts, because in his Fourth Institute he described parliament’s power as ‘transcendent and absolute’, not confined ‘either for causes or persons within any bounds’. He there contemplated the enactment of bills of attainder without trial and statutes contrary to Magna Carta without any suggestion of their invalidity. However, Coke was not alone and there were other early expressions of opinion which appear to suggest that courts might invalidate Acts of Parliament which conflict with natural law or natural equity. But they are of academic or historical interest only for such views did not survive the Revolution of 1688 or, at the least, did not survive for very long after it. Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind. Indeed, it is a principle of the common law itself ‘that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor’. There is more academic writing on the subject but it tends to dwell upon the apparent riddle posed by the question whether parliament can relinquish its powers by exercising them in order to do so. The answer to that riddle appears to lie in that area where law and political reality coincide. The

same may be said of examples of extreme laws which would offend the fundamental values of our society which are sometimes suggested in disproof of parliamentary supremacy. It may be observed that a legislature wishing to enact a statute ordering that all blue-eyed babies be killed would hardly be perturbed by a principle of law which purported to deny it that power. Whether one speaks as Salmond does of ‘ultimate legal principles’, or as Kelsen does of a grundnorm, or as Hart does of the ‘ultimate rule of recognition’, there can be no doubt that parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom …

[page 89] … [I]n Union Steamship Co of Australia Pty Ltd v King this court reserved the question whether the exercise of that legislative power is subject to restraints to be found in fundamental principle. This case throws up the question reserved in those cases and it should now be answered by saying that no non-territorial restraints upon parliamentary supremacy arise from the nature of a power to make laws for peace, order (or welfare), and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature. The doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law. It is of its essence that a court, once it has ascertained the true scope and effect of an Act of Parliament, should give unquestioned effect to it accordingly.

4.6 As noted above, this statement of the law was later approved in Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399. Durham Holdings owned coal deposits which were vested in the State of New South Wales by s 5 of the Coal Acquisition Act 1981 (NSW). Section 6 of the Act authorised the Governor to make statutory ‘arrangements’ providing compensation to affected landowners. Interim payments were made to Durham Holdings. Section 6(3) was later enacted to provide for limits on amounts payable. Further arrangements were made. Without the limits, the compensation payable would have been $93,397,327. After the limits were imposed, Durham was entitled to $23,250,000. Durham Holdings commenced proceedings in the Supreme Court of New South Wales claiming compensation of $93,397,327 and applied for declarations of invalidity

of the legislative scheme. The New South Wales Court of Appeal upheld the legislation and Durham Holdings appealed, arguing (at 401) that: The legislative power of the New South Wales Parliament is subject to specific legal restrictions, including the restriction that Parliament may not acquire property without full compensation. There is no binding authority for the proposition that there are no constitutional limits on the legislative power of the British Parliament. Dicey’s theory of parliamentary sovereignty was an unfounded oversimplification. Recent cases show that there is no doubt that courts have the power to define the powers of the legislature. The exercise of legislative power is limited by the inviolability of fundamental legal rights. There is a common law constitutional limitation that denies the legislature the power to make a law providing for the acquisition of property without full compensation. United States cases evidence a long standing common law principle requiring an expropriatory statute to provide approximately full compensation. This principle became part of the law of New South Wales before 1828. There appears to be no case in which a court has held that a property owner has no right to compensation [references omitted].

The court rejected the argument that there was a ‘deeply rooted right’ to receive just compensation for property acquired under state legislation: at 409–10, 425, 433. Gaudron, McHugh, Gummow and Hayne JJ said (at [12]–[14]): The question that the applicant posed for the Court of Appeal thus was whether or not the right to receive ‘just’ or ‘properly adequate’ compensation is such a ‘deeply rooted right’ as to operate as a restraint upon the legislative power of the New South Wales Parliament. What the Court of Appeal said is true of the application to this Court, namely: The [applicant] was unable to point to any judicial pronouncements, let alone a decided case, which indicated, at any time, that any such principle existed in

[page 90] the common law of England, or of the colonies of Australasia, or of Australia. It advocated the development of the common law, by the recognition of such a principle for the first time in this case.

… The applicant must seek to introduce into the constitutional text, in particular s 2(2) of the Australia Act, a limitation not found there. Undoubtedly, having regard to the federal system and the text and structure of ‘[t]he Constitution of each State of the Commonwealth’ (the phrase used in s 106 of the Constitution), there are limits to the exercise of the legislative powers conferred upon the Parliament which are not spelled out in the constitutional text. However, the limitation for which the applicant contends is not, as a matter of logical or practical necessity, implicit in the federal structure within which State Parliaments legislate. Further, whatever may be the scope of the inhibitions on legislative power involved in the question identified but not explored in Union Steamship, the requirement of compensation which answers the description ‘just’ or ‘properly adequate’ falls outside that field of discourse.

Kirby and Callinan JJ also rejected the challenge. The High Court unanimously approved Union Steamship and Kable in Duncan v New South Wales (2015) 255 CLR 388. In this case the court upheld the validity of Sch 6A of the Mining Act 1992 (NSW), inserted by the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW). The background to the case may be summarised briefly. The Independent Commission Against Corruption (ICAC) investigated alleged corrupt conduct by individuals in relation to the grant of three mining exploration licences. Two ICAC reports, ‘Operation Acacia’ and ‘Operation Jasper’, were presented to the New South Wales Houses of Parliament in 2013. In each report, ICAC found that the minister had ‘acted contrary to his public duty as a Minister in circumstances which … would have established that [he] had committed one or other of the common law offences of misconduct in public office or of conspiracy to defraud’: at 399. A number of other individuals were also implicated in the reports. A third ICAC report, the ‘December’ report, prepared in relation to the ‘Acacia’ and ‘Jasper’ reports, was submitted to the New South Wales Parliament in early 2014. On the basis of the findings made in the two reports, the third report expressed the view that the granting of the three mining exploration licences ‘“was so tainted by corruption that [they] should be expunged or cancelled and any pending applications regarding them should be refused”. ICAC recommended that the

New South Wales Government consider enacting legislation to achieve that expunging’: at 400. The New South Wales Parliament thereafter passed the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW), which specifically cancelled the three exploration licences without compensation. The purposes of Sch 6A, as provided in cl 3(1) of the Amendment Act, included restoring public confidence in the allocation of valuable resources, and promoting integrity in public administration above all other considerations, and deterring future corruption. The specific objects in cl 3(2) included ensuring that no person could derive any further direct or indirect financial benefit from the tainted processes, and to protect the state against further loss or damage and claims for compensation. The plaintiffs commenced three separate proceedings in the original jurisdiction of the High Court seeking declarations that the amendments introduced into the Mining Act 1992 by the Amendment Act were invalid: at 396. The first ground [page 91] upon which the law was challenged was that the Amendment Act was ‘not a “law” within the meaning of the provision of the Constitution Act 1902 (NSW) which provides for the legislative competence of the New South Wales Parliament’: at 396. The principal ground of challenge in each of the proceedings was that the Amendment Act involved ‘an exercise of judicial power in the nature of, or akin to, a bill of pains and penalties … and that such a limitation derives either from Ch III of the Constitution or from an historical limitation on colonial, and subsequently State, legislative power’: at 405. In particular, the first and third plaintiffs alleged that Sch 6A amounted

to a bill of pains or penalties, which rendered it not a ‘law’ for the purposes of s 5 of the New South Wales Constitution Act, because it ‘does not merely vary existing rights but destroys them by way of punishment for what the Parliament has judged to be “serious corruption”’: at 406. The High Court rejected this argument, holding that the amendments were a ‘law’ within the meaning of the New South Wales Constitution. According to the unanimous High Court, the legislative power conferred in state constitution Acts ‘is as ample as the power possessed by the Imperial Parliament itself’: at 406 per French CJ, Hayne, Kiefel, Bell, Gageler, Keane and Nettle JJ. In relation to the plaintiffs’ specific argument, the court observed: 39 The word ‘laws’ in s 5 of the Constitution Act implies no relevant limitation as to the content of an enactment of the New South Wales Parliament. In particular, the word carries no implication limiting the specificity of such rights, duties, liabilities or immunities as might be the subject of enactment or the purpose of their enactment. 40 Mr Duncan’s and the Cascade parties’ contention that the Amendment Act is not a law within the competence of the New South Wales Parliament to enact under s 5 of the Constitution Act necessarily fails. The Amendment Act is a law.

Extraterritorial power 4.7

Section 2(1) of the Australia Act 1986 (Cth) states:

2 Legislative powers of Parliaments of States (1) It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.

While s 2(1) confirms that the states have power to pass legislation with extraterritorial operation, it has been held before and after the passage of the Australia Act that there must be a connection between the state and the subject matter regulated for a law to be a valid exercise of extraterritorial legislative power. This requirement was stated and explored in Pearce v Florenca (1976) 135 CLR 507. Florenca, a fisherman in Geraldton, Western Australia, was charged under state

fisheries legislation with the offence of possession of undersized rock lobsters. The Western Australian law referred to ‘Western Australian waters’ which were defined to include, among other places, ‘the sea from high-water mark to three nautical miles from low-water mark’. It was alleged that Florenca had committed the offence one-and-a-half nautical miles off the coast of Geraldton. A Western Australian magistrate dismissed the charges on the basis that the Seas and [page 92] Submerged Lands Act 1973 (Cth), a federal law regulating Australia’s off-shore waters, rendered the Western Australian law inoperative in any area below the low-water mark of the coast of Western Australia. The High Court was invited to consider whether the federal law rendered the state Act invalid and inoperative by virtue of s 109 of the Constitution. A threshold question was whether the state law was invalid. Gibbs J said (at 518) that the power of a state to legislative with extraterritorial effect: … should be liberally applied, and that legislation should be held valid if there is any real connexion — even a remote or general connexion — between the subject matter of the legislation and the State.

4.8 In previous decisions the High Court invalidated state laws on the ground that the connection between the legislating state and the subject matter of the law was too remote. In Welker v Hewett (1969) 120 CLR 503, New South Wales legislation imposed a penalty on any director, board member or manager of a company owning commercial vehicles which failed to pay road registration fees. The appellant was a resident of South Australia and a director of a company that owned a truck involved in an offence that occurred when it was driven unregistered on New South Wales roads. Kitto J, with whom Barwick CJ, Menzies and Windeyer JJ agreed, held that there was an

insufficient connection between the director of a company incorporated interstate and road usage in a different state. Kitto J said (at 513): … what is being described is a connexion between the person upon whom the liability is imposed and the State — a connexion through the selected fact, circumstance, occurrence or thing and therefore a connexion one link of which is a concern, in the sense of a personal implication or involvement in that fact, circumstance, occurrence or thing.

The majority held that because the director had no personal involvement in the offence, the required constitutional connection could not be established. Similarly, in Cox v Tomat (1972) 126 CLR 105, Western Australian law required directors to pay a penalty if they were directors of a company using vehicles that were not licensed to use Western Australian roads. Tomat was a director of a company that owned a truck driving in contravention of the Western Australian law. Tomat said he was not personally in Western Australia at any material time and therefore the law ought not to apply to him. A majority of the court applied Welker v Hewett, and emphasised that a director of a corporation may not have the ability to control the operation of vehicles in Western Australia, and this would mean that in this instance there would be an insufficient connection between the state law regulating the behaviour of company directors and its object, the control of road usage. Barwick CJ said (at 112) that: … [the] stretch of the State’s legislative power, founded on that territorial event, does not reach, in my opinion, beyond those who are in a substantial sense participants in that event. Neither the interest of the director in the result of the company’s business nor his undoubted duty to exercise his power as a member of the board of directors of the company, in my opinion, necessarily involves the director in participation in the physical [events].

[page 93]

It is unlikely that these cases would be decided the same way today, especially since the broader view of state power to legislate with extraterritorial effect was endorsed in Pearce v Florenca. 4.9 In Port Macdonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340, the High Court unanimously upheld South Australian legislation that implemented an agreement between South Australia and the Commonwealth authorising South Australia to control rock lobster fishing in Commonwealth waters beyond South Australian waters. The law was confined to Commonwealth waters that were on the South Australian side of the line of equidistance from Victorian waters. The court noted s 2(1) of the Australia Act and, approving the test developed in the judgment of Gibbs J in Pearce v Florenca (1976) 135 CLR 507, said that the relevant connection ‘should be liberally applied’ and concluded that the connection in this case was ‘real and substantial’. The fishery was a finite resource that could be accessed by South Australian residents and a significant source of trade and employment for them. The court in the Port Macdonnell case noted the court’s observation in the Union Steamship case that there is a ‘territorial limitation’ on the extraterritorial power of the states that is necessary to avoid the spectre of the legislation of one state encroaching on matters dealt with in the legislation of another state ((1988) 166 CLR 1 at 14): As each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: see Australia Act 1986 (Cth), s 2(1); Australia Act 1986 (UK), s 2(1). That new dispensation is, of course, subject to the provisions of the Constitution (see s 5(a) of each Act) and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. That being so, the new dispensation may do no more than recognise what has already been achieved in the course of judicial decisions. Be this as it may, it is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce (1976) 135 CLR, at p 518 where His Honour stated that the requirement for a relevant connexion

between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connexion between the subjectmatter of the legislation and the State will suffice.

The extent of state extraterritorial power 4.10 Once a connection has been established pursuant to the test enunciated in Pearce v Florenca, a state parliament enjoys plenary power with respect to the matter regulated. This principle may be drawn from the judgment of Dixon J in Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337. In that case, New South Wales legislation provided that interest earned on money secured by the mortgage of property in New South Wales was deemed to be derived from a source in the state, and subject to state income tax. A question arose whether interest paid outside New South Wales in respect of property situated within New South Wales could be subject to New South Wales tax. The High Court held by majority that there was a sufficient connection between the payment of interest [page 94] outside the state (in respect of the property in the state) and the tax liability imposed by the state. Dixon J made the following remarks about the nature of the connection required between the state and the subject matter regulated (at 375): … it is within the competence of the State legislature to make any fact, circumstances, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicile, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of jurisdiction or authority

courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases that cannot have been foreseen.

This is a natural extension of the principle that, subject to express overriding federal or state constitutional limitations, the states enjoy parliamentary supremacy. To what extent may state laws encroach upon the laws of another state? 4.11 The issue to what extent may state laws encroach the laws of another state was considered in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1. Mobil challenged the validity of provisions of Victorian legislation authorising the conduct of group proceedings — provisions wide enough to contemplate proceedings in respect of wrongs that might have occurred in other states. Mobil argued that an implication arose from the federal structure of government created by the Constitution that prohibits state legislation that, if given extraterritorial effect, would affect the relationship between another state or territory and its residents or would determine the legal consequences of actions in another state or territory. The High Court rejected the argument. Gleeson CJ said (at 26): That proposition is far too broad. There is nothing either uncommon, or antithetical to the federal structure, about legislation of one State that has legal consequences for persons or conduct in another State or Territory … The idea that all transactions and relationships giving rise to legal consequences can be located ‘in’ one particular State or Territory is unrealistic. Furthermore, the concept of the relationship between a State and its residents requires a much narrower focus if it is to be of assistance in the resolution of a problem such as arises in the present case. For the claim of a resident of New South Wales against a Victorian company which has manufactured, in Victoria, a defective product that was later supplied in New South Wales to be brought into representative proceedings in a Victorian court does not impinge on the relationship between the New South Wales resident and the New South Wales Government. Different considerations might arise, for example, if the New South Wales Parliament,

adopting a policy hostile to group proceedings, or class actions, set out to prevent residents of New South Wales from participating in litigation of that kind. But no such problem arises here.

Gaudron, Gummow and Hayne JJ gave similar reasons at 36–8. Kirby J agreed at 61. Callinan J found that the provisions failed to satisfy the ‘remote connexion’ [page 95] test articulated by Gibbs J in Pearce, and concluded that the provisions should be read down: see 82–3.

State power to regulate the Commonwealth 4.12 As Gleeson CJ noted in the Mobil Oil case (see 4.11), the states can enact laws with legal consequences for people and conduct in other states and territories. But to what extent can the states regulate the Commonwealth? The starting point is the principle that the states may not, by legislation, directly restrict the capacity of the Commonwealth to exercise its executive power (that is, the power of the Commonwealth, its servants or agents to execute the laws of the Commonwealth). As Dixon J explained in his dissenting judgment in Re Richard Foreman and Sons Pty Ltd; Uther v Federal Commissioner of Taxation (Uther’s case) (1947) 74 CLR 508 at 528–9 (and in earlier dissenting judgments in Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (1940) 63 CLR 278 at 308 and 312–13 and City of Essendon v Criterion Theatres Ltd (1947) 74 CLR 1 at 22–3), this is because the executive power of the Commonwealth: … is a matter lying completely outside State power … to define or regulate the rights or privileges, duties or disabilities, of the Commonwealth in relation to subjects of the Crown is not a matter for the States. General laws made by a State may affix legal

consequences to given descriptions of transaction and the Commonwealth, if it enters such a transaction, may be bound by the rule laid down … But these applications of State law, although they may perhaps be a source of confusion, stand altogether apart from the regulation of the legal situation which the Commonwealth as a government, shall occupy with reference to private rights.

In Uther’s case, the High Court had been invited to consider the validity of state legislation that gave the New South Wales Government priority over the Commonwealth Government for unpaid revenue in the event of a corporate bankruptcy. A majority of the court (Latham CJ, Rich, Starke and Williams JJ) said that it was within the power of the New South Wales Parliament to restrict or abolish the prerogative right of the Commonwealth in respect of such bankruptcy debts. Dixon J vigorously dissented, saying (at 528): Can s 282 of the Companies Act 1936 of New South Wales operate as a local statute to limit or destroy this priority of the Commonwealth? This is perhaps the chief question in the case and my answer to it is a very definite denial of the constitutional competence of the State to prescribe for the Commonwealth the relative rights of the subjects of the Crown and the Crown in right of the Commonwealth in a competition between them. We are here concerned with nothing but the relation between the Crown in right of the Commonwealth as a creditor for public moneys and the subjects of the Crown as creditors for private moneys. There are no conflicting claims between State and Commonwealth. The conflict is between the Commonwealth and its own subjects. What title can the State have to legislate as to the rights which the Commonwealth shall have as against its own subjects? … General laws made by a State may affix legal consequences to given descriptions of transaction and the Commonwealth, if it enters into such a transaction, may be bound by the rule laid down.

[page 96] Dixon J went on to say (at 529): A federal system is necessarily a dual system. In a dual political system you do not expect to find either government legislating for the other. But supremacy, where it exists, belongs to the Commonwealth and not to the States.

4.13 In 1949 the Commonwealth set up a number of migrant hostels, to be managed by a Commonwealth department. In 1952 the Commonwealth incorporated a company under Victorian law called Commonwealth Hostels Ltd, to manage the hostels. The shares in the company were held by Commonwealth public servants, and directors could be removed by a Commonwealth minister. Commonwealth Hostels Ltd announced that it was raising accommodation charges. In Commonwealth v Bogle (1953) 89 CLR 229, Bogle challenged the decision on the basis that it was inconsistent with a Victorian regulation which limited the charges that could be made for board and lodging. The Commonwealth and Commonwealth Hostels Ltd sued Bogle for unpaid charges. The High Court held that Commonwealth Hostels Ltd was not an agent of the Commonwealth and therefore the Victorian regulation applied to it. However, Fullagar J, with whom Dixon CJ, Webb and Kitto JJ agreed, said that the state regulation did not apply to the Commonwealth because it had not consented to its application (at 259–60): To say that a State can enact legislation which is binding upon the Commonwealth in the same sense in which it is binding upon a subject of the State appears to me to give effect to a fundamental misconception … The Crown in right of the State has assented to the statute, but the Crown in right of the Commonwealth has not, and the constitutional question, to my mind, is susceptible of only one answer, and that is that the State Parliament has no power over the Commonwealth. The Commonwealth — or the Crown in right of the Commonwealth, or whatever you choose to call it — is, to all intents and purposes, a juristic person, but it is not a juristic person which is subjected either by any State Constitution or by the Commonwealth Constitution to the legislative power of any State Parliament. If, for instance, the Commonwealth Parliament had never enacted s 56 of the Judiciary Act 1903–1950 (which makes the Commonwealth liable to judgment in tort actions), it is surely unthinkable that the Victorian Parliament could have made a law rendering the Commonwealth liable for torts committed in Victoria. The Commonwealth may, of course, become affected by State laws [emphasis added]. If, for example, it makes a contract in Victoria, the terms and effect of that contract may have to be sought in the Goods Act 1928 (Vict.) (see Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (In Liquidation), at p 308 and In re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation, at p 528). But I should think it impossible to hold that the Parliament of Victoria could

lawfully prescribe the uses which might be made by the Commonwealth of its own property, the terms upon which that property might be let to tenants, or the terms upon which the Commonwealth might provide accommodation for immigrants introduced into Australia.

In other words, if a state purported to regulate the Commonwealth directly, that would be beyond the constitutional power of that state. But if the Commonwealth engages in an activity that is regulated by state law, then state law applies. That outcome also seems to follow from Pirrie v MacFarlane (1925) 36 CLR 170 (as to which see 3.24). The principle that a state cannot regulate the Commonwealth in the exercise of its executive capacities was approved by a majority of the court in Commonwealth [page 97] v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372. That case, like Uther’s case, concerned Commonwealth and state competition for payment of taxation debts in a bankruptcy. The Commonwealth sought a declaration that Cigamatic Pty Ltd, a company in liquidation, should pay federal sales tax and other charges, and these sums should be paid in priority to unsecured creditors. The defendants demurred to the statement of claim on the basis that they were bound by state company law which said that priority should be given to the payment of state taxes in the winding-up of an insolvent company. A majority of the High Court, now led by Dixon CJ, adopted the views he had previously expressed in dissent in Uther’s case (1947) 74 CLR 508 at 528. Referring to the majority holding in Uther’s case, Dixon CJ said (at 377–8): … it seems to me now as it seemed to me then to imply a fundamental proposition about the power of legislatures of the States which ought not to be entertained. The proposition that is implied is that an exercise of State legislative power may directly derogate from the rights of the Commonwealth with respect to its people. It is a

proposition which must go deep in the nature and operation of a federal system … to treat those rights as subject to destruction or modification or qualification by the legislature of a State must mean that under the Constitution there resides in a State or States a legislative power to control legal rights and duties between the Commonwealth and its people … I cannot see how it could be thought that the State legislative power could directly deprive the Commonwealth of the priority to which it is entitled under the law derived from the prerogative. Believing, as I do, that the doctrine thus involved is a fundamental error in a constitutional principle that spreads far beyond the mere preference of debts owing to the Commonwealth, I do not think we should treat Uther’s case as a decisive authority upon that question which we should regard as binding.

4.14 The Cigamatic doctrine and Fullagar J’s comments in Bogle were explained in Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410. The Defence Housing Authority (DHA), an agency set up under federal statute to provide housing for the defence forces, argued that the Cigamatic principle protected them from the operation of state residential tenancies legislation. Dawson, Toohey and Gaudron JJ, with whom Brennan CJ, McHugh and Gummow JJ agreed, rejected the DHA’s submission and explained Cigamatic in the following way (at 439–44): In Cigamatic it was held that a State legislature had no power to impair the capacities of the Commonwealth executive, but at the same time it was recognised that the Commonwealth might be regulated by State laws of general application in those activities which it carried on in common with other citizens. Dixon J had drawn the same distinction in FCT v Official Liquidator of EO Farley Ltd … … Both in Uther and Cigamatic a distinction is drawn between State laws affecting Commonwealth executive capacities and State laws of general application regulating activities carried on by the Crown in the exercise of those capacities in the same manner as its subjects … … There is nothing in the principle recognised in Melbourne Corp v The Commonwealth or in any extrapolation of those principles to be found in the judgment of Dixon J in Uther or in the reasons of the majority in Cigamatic which would suggest that

[page 98]

the Crown or its agents enjoy any special immunity from the operation of laws of general application, State or federal. Indeed, the contrary is affirmed. The rule of law requires such a result … … Whilst the principle that executive power must be exercised in accordance with the law applies to both Commonwealth and State government, the Commonwealth enjoys a paramount position within its areas of legislative competence because of s 109 of the Constitution …

Sections 79 and 80 of the Judiciary Act 1903 (Cth) 4.15 The capacity of the states to affect the Commonwealth is also regulated by Commonwealth statute, in particular by ss 64, 79 and 80 of the Judiciary Act 1903 (Cth). For further details see Clarke, Keyzer and Stellios, 2013, [5.2.89]–[5.2.93].

State constitutional limits on state constitutional power Manner and form restrictions 4.16 A ‘manner and form’ restriction entrenches a law respecting the Constitution, powers and procedures of a legislature by requiring that a law to change such things must be enacted in a particular way. The purpose of manner and form provisions was explained by Rich J in Attorney-General (NSW) v Trethowan (1931) 44 CLR 394. Rich J said that a parliament might decide that the ‘constitutional salvation of the State’ must be decided by ‘cautious and well considered steps rather than by rash and ill considered measures’: at 420. This justification for manner and form provisions may be contrasted with what Michael Detmold (1985, p 208) calls the ‘simple democratic value’ of ‘intertemporal equivalence’ — that ‘[t]he people of one time are to be as free in their Parliament as those of another; their will in Parliament is of constitutionally equivalent status to that of their successors’.

The states have the power to impose restrictions on their own legislative powers in respect of the ‘Constitution, Powers and Procedure’ of their legislatures. This power is confirmed by s 6 of the Australia Act 1986 (Cth), which provides: Notwithstanding ss 2 and 3(2) above, a law made after the commencement of this Act by the Parliament of a State respecting the Constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

Previously, the power was drawn from s 5 of the Colonial Laws Validity Act 1865 (Imp), which provided: 5 Every Colonial Legislature shall have, and be deemed at all Times to have had, full Power within its Jurisdiction to establish courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature, provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony.

[page 99] 4.17 Manner and form provisions come in a variety of shapes. The upper house in a bicameral legislature, which typically does not enjoy the power to initiate any bill, can protect its existence if it can secure the passage of a sufficiently rigorous manner and form provision; for example, a requirement that a bill to abolish the council was subject to the condition that a ‘free conference’ of the representatives of both Houses attend a joint sitting to hold a vote to do so: see Clayton v Heffron (1960) 105 CLR 214. It may also improve its security by requiring that the manner and form provision be doubly entrenched, requiring further procedures to be followed to change the manner and

form provision itself. Where there is no such entrenching provision, and subject to compliance with all the other relevant legislative procedures, the Legislative Council could have been abolished: see, for example, Taylor v Attorney-General of Queensland (1917) 23 CLR 457. 4.18 To fall within the terms of s 6 of the Australia Act and its predecessor, s 5 of the Colonial Laws Validity Act, a manner and form requirement must concern the Constitution, powers or procedures of the legislature. This requirement was not met in South Eastern Drainage Board v Savings Bank of South Australia (1939) 62 CLR 603. In that case, South Australian real property legislation purported to entrench legislation unless a future law expressly indicated that it applied notwithstanding the provisions of the initial legislation was not a law respecting the ‘constitution, powers or procedures’ of the legislature. The High Court held that the legislation which purported to entrench itself was subject to the ordinary rule that any subsequent statute which was inconsistent with it would impliedly repeal it: see also West Lakes Ltd v South Australia (1980) 25 SASR 389. On this basis, any provision of a state Constitution which is not entrenched in some way can be altered by ordinary legislation enacted by ordinary means as if it were no more significant than a state ‘Dog Act’: McCawley v The King [1920] AC 691. This observation operates subject to any express or implied limitation on state power arising from the Commonwealth Constitution: see, for example, Kable v DPP (NSW) (1996) 189 CLR 51 (a state cannot abolish its Supreme Court since these courts are required by Ch III); and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (a state cannot pass legislation that infringes the implied freedom to discuss political and governmental affairs). 4.19 In Attorney-General (WA) v Marquet (2003) 217 CLR 545 the High Court upheld a requirement of a 1947 Western Australian law that required laws affecting electoral redistributions to be passed by absolute majorities in the Western Australia Legislative Assembly and

Legislative Council. Section 13 of the Electoral Distribution Act 1947 (WA) provided: ‘It shall not be lawful to present to the Governor for Her Majesty’s assent any Bill to amend this Act, unless the second and third readings of such bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively’. Section 6 of the Australia Act 1986 (Cth) states that ‘a law made after the commencement of this Act by the Parliament of a state respecting the constitution, powers or procedure of the Parliament of the state shall be of no force or effect unless it is made in such manner and form as may from time to [page 100] time be required by a law made by that Parliament, whether made before or after the commencement of this Act’. The Electoral Distribution Repeal Act 2001 (WA) and the Electoral Amendment Act 2001 (WA) had been passed by an absolute majority of the Legislative Assembly of Western Australia, but by only a majority of the Legislative Council then present and voting, not an absolute majority of the members for the time being of that House. The Clerk of the Parliament commenced proceedings seeking a declaration whether the bills could be presented to the Governor for assent. Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ (Kirby J dissenting) held that s 13 of the Electoral Distribution Act applied to the bills on the basis that each was for a law respecting the Constitution of the state parliament. Hence s 6 of the Australia Act 1986 (Cth) required compliance with the manner and form provisions of s 13 of the Electoral Distribution Act.

The plurality concluded that the legislation, dealing as it did with the topic of electoral redistribution, was legislation concerned with the constitution of Western Australia, and therefore the manner and form provision applied. The bills could not be presented to the Governor of Western Australia for assent.

[page 101]

Chapter Five

The Constitution and the Territories Introduction 5.1

Section 122 of the Constitution provides:

Government of territories The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on terms which it thinks fit.

5.2 This chapter briefly describes the ambit of s 122 of the Constitution, the extent to which federal constitutional limitations apply to the territories, and the legislative power of the self-governing territories. Further, details about the context of the decisions considered in this chapter, and details about the executives and judicatures of the self-governing territories, can be found in Ch 4 of Hanks Australian Constitutional Law. Is the territories power plenary? 5.3 The traditional view was that s 122 was plenary; that is, the power was not subject to any limitations. For example, in Buchanan v Commonwealth (1913) 16 CLR 315, the High Court was invited to consider whether a tax law applying in the territories should be restricted by s 55 of the Constitution (as to which, see 7.33–7.36). The court rejected that argument. Barton ACJ, with whom Gavan Duffy

and Rich JJ agreed, said (at 327): … it must be observed that s 122, by itself, contains all the necessary power to legislate for a territory … It does not need any assistance from s 51 in respect either of taxation, or of anything else. It would suffice for all its purposes if there were no s 51 at all. It is more ample than s 51 for all the purposes of a territory.

In the course of the cases, the conclusion that s 122 is plenary has been supported on two principal grounds. One has been that s 122 is cast in general and unqualified terms. For example, in Spratt v Hermes (1965) 114 CLR 226 at 242, Barwick CJ said: Section 122 gives to the Parliament legislative power of a different order to those given by s 51. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory — an expression condensed in s 122 to ‘for the government of the Territory’. This is as large and universal a power of legislation as can be granted. It is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States.

[page 102] The second justification for the conclusion that s 122 is plenary is that it is not, like the subsections of s 51, expressed to be ‘subject to the Constitution’. On that basis, it has been argued that s 122 must therefore trump s 51, and, in particular, any limitations described in that section (such as s 51(xxxi)). As McHugh J observed in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 577: The relationship of s 122 to the rest of the Constitution In interpreting the Constitution, no section or paragraph can be interpreted without recourse to the other provisions of the instrument. Effect must be given to every word of the Constitution that is capable of a sensible meaning. So far as the Constitution permits, conflicting provisions must be interpreted in a way that maximises the scope for operation of each provision. But this does not mean that, where conflict arises, every provision of the Constitution must be given equal weight. Either expressly or by necessary implication, the Constitution may indicate that some provisions must be read subject to one or more of the other provisions. Thus, to confer a power ‘subject to this Constitution’ is ‘a standard way of making clear’ that, where another provision of

the Constitution which is not so qualified conflicts with that power, the unqualified provision is to prevail. It is not possible therefore to treat the phrase ‘subject to this Constitution’ or any similar word or phrase as superfluous or to ignore its declaration of priority. If the provisions conflict, it is a mistake to attempt to reconcile them in a way that gives the maximum possible effect to both the dominant and the subordinate provision [references omitted].

These textual justifications for interpreting s 122 as plenary were buttressed by the status of the territories, in the opinions of the people who wrote the Constitution and the early justices of the court, as far flung outposts peopled by inferior races that had to be controlled and could not be trusted to understand or operate institutions of representative government: see Isaacs J in R v Bernasconi (1915) 19 CLR 629 at 638.

Limits on the territories power 5.4 As will be seen from the decisions that follow, the ‘plenary power’ approach to the territories power has been almost completely dismantled. In more recent cases, the High Court has adopted an approach that considers the relationship between s 122 and other provisions of the Constitution on a section-by-section basis, with the consequence that some provisions will be held to restrict s 122 and others will not. This approach was endorsed in Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248. In that case, the High Court was invited to consider whether s 122 was restricted by s 90 of the Constitution — could a self-governing territory levy an excise duty? Or did the word ‘exclusive’ in s 90 mean exclusive of all other governments? Brennan, Deane, Toohey and Gaudron JJ said ‘no’, as this would disturb the common market created by Ch IV of the Constitution. Brennan, Deane and Toohey JJ said (at 272): … the scope of s 122 may be qualified by other provisions in the Constitution. Although the territories power has been said to be ‘a disparate non-federal matter’ (Attorney-General (Cth) v The Queen [1957] AC 288 at 320) it is necessary to adopt ‘an

interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for the territories’ (Lamshed v Lake (1958) 99 CLR 132 at 154 per Kitto J).

[page 103] It would therefore be erroneous to construe s 122 as though it stood isolated from other provisions of the Constitution which might qualify its scope.

This approach had been foreshadowed by Barwick CJ in Spratt v Hermes (1965) 114 CLR 226 at 242, who, straight after describing s 122 as ‘universal’ (in the quote extracted at 5.3 above), said that the conclusion that s 122 was a wide power: … does not mean that the power is not controlled in any respect by other parts of the Constitution or that none of the provisions to be found in chapters other than Chap. VI are applicable to the making of laws for the Territory or to its government. It must remain, in my opinion, a question of construction as the matter arises whether any particular provision has such an operation, the construction being resolved upon a consideration of the text and of the purpose of the Constitution as a whole.

The complexity of the jurisprudence in this area has been compounded by the fact that, as Gleeson CJ, McHugh and Callinan JJ observed in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 331: One of the reasons for the difficulty in giving the relevant provisions a meaning which achieves internal consistency, and at the same time accommodates the realities of government and administration with which the Constitution must deal, is the disparate nature of territories. Some (such as the ACT, the Northern Territory, and the Jervis Bay Territory) are internal. Others (such as Norfolk Island, the Coral Sea Islands, the Australian Antarctic Territory, the Ashmore and Cartier Islands, the Cocos (Keeling) Islands, Christmas Island, and the Heard and McDonald Islands) are external. The Northern Territory has already obtained a substantial measure of responsible government. There is a view that the ACT, by reason of certain provisions of the Constitution, can never become a State. There have been various circumstances in which external territories have come to be under the authority of the Commonwealth. In R v Bernasconi, for example, Isaacs J referred to ‘recently conquered territories’ with German and Polynesian populations. The territories have been, still are, and will probably continue to be, greatly different in size, population, and

development. Yet they are all dealt with, compendiously and briefly, in s 122 [references omitted].

These ‘difficulties’ have yielded a jurisprudence that Windeyer J described in Spratt v Hermes (1965) 114 CLR 226 at 274 as ‘notoriously difficult and technical’. The material below concentrates on the extent to which express and implied rights and freedoms restrict the Commonwealth’s power in the territories (with the exception of s 116, which is considered in Chapter 16). Sections 51(ii), (xiii), (xiv), 92, 88, 117 and 118 refer to states and cannot be invoked to protect people in the territories: see, for example, Breavington v Godleman (1988) 169 CLR 41. Does s 51(xxxi) apply in the territories? 5.5 In Teori Tau v Commonwealth (1969) 119 CLR 564, the plaintiff challenged Commonwealth legislation relying on s 122, which made provision for the compulsory acquisition of property in the formerly Australian territory of Papua and New Guinea. Barwick CJ, for a unanimous High Court, said (at 570, 571): Section 122 of the Constitution of the Commonwealth of Australia is the source of power to make laws for the government of the territories of the Commonwealth. In terms, it is general and unqualified. It is apt to confer, amongst other things, a power to make laws for the compulsory acquisition of property …

[page 104] It is submitted by counsel that … s 122 is subject to s 51(xxxi) and that s 51(xxxi) is the only source of power to make laws for the acquisition of property to operate in or in connexion with the government of any territory of the Commonwealth … In our opinion, this submission is clearly insupportable. Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point

of subject matter. In particular, it is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section … While the Constitution must be read as a whole and as a consequence, s 122 be subject to other appropriate provisions of it as, for example, s 116, we have no doubt whatever that the power to make laws providing for the acquisition of property in the territory of the Commonwealth is not limited to the making of laws which provide just terms of acquisition. What we decide in this respect is not, of course, limited to the Territory of Papua and New Guinea, although it happens that the question has first arisen expressly for decision in connexion with that territory. Our decision applies to all the territories, those on the mainland of Australia as well as those external to the continent of Australia.

Provisions of territory self-government legislation extend the protection of s 51(xxxi) within the territories, reversing the effect of Teori Tau, at least where the territory seeks to acquire land compulsorily: Northern Territory (Self-Government) Act 1978 (Cth) s 50 (NT Act); Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1)(a) (ACT Act). However, after Teori Tau the question remained whether the Commonwealth could take property in a territory without compensation. 5.6 The question arose in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513. The Commonwealth enacted legislation expanding Kakadu National Park, with the effect that mining leases owned by Newcrest were resumed. A dispute over the amount of compensation that Newcrest should receive emerged. Newcrest sought to advance its position by challenging Teori Tau, arguing that it should be reopened and overruled. They also argued that the law expanding Kakadu National Park could be characterised as a law supported by the external affairs power in s 51(xxix), since the legislation expanded a national park that was part of the World Heritage Estate. (Australia is a signatory to the World Heritage Convention, which creates an international register of areas of world significance — Kakadu is on the register.) If the legislation could be

characterised as being supported by s 51(xxix), then that power is expressed to operate ‘subject to the Constitution’, which, of course, includes s 51(xxxi). This argument would outflank the counterargument that s 122 is plenary, precisely because it is not expressed to be ‘subject to the Constitution’. Newcrest won compensation, but the decision has a difficult ratio. The majority, Toohey, Gaudron, Gummow and Kirby JJ, said that s 51(xxxi) applied, and Newcrest was entitled to just terms compensation. But a differently constituted majority, Brennan CJ, Dawson, Toohey and McHugh JJ, declined to overrule Teori [page 105] Tau. To unravel the judgments it is convenient to consider the majority judgments in order of seniority. Toohey J agreed with Gaudron J’s conclusions about the applicability of the external affairs power. Gaudron J said that Teori Tau should be overruled. However, even if it were not overruled, s 51(xxxi) would still apply because the law could be supported by s 51(xxix) (at 564–7): I agree generally with the reasons for judgment of Gummow J and with the orders he proposes. While I agree with his Honour that the constitutional guarantee contained in s 51(xxxi) of the Constitution operates in respect of laws passed in reliance upon the power conferred by s 122 of the Constitution, there are other routes leading to the conclusion that par (xxxi) operated in respect of the National Parks and Wildlife Conservation Act 1975 (Cth) (the Conservation Act) and the Proclamations made under that Act in relation to Kakadu National Park (Kakadu) … the situation here is that the Conservation Act is supportable under s 51(xxix) as claimed by the respondents.

Gummow J agreed with Gaudron J as to the interrelationship of s 51(xxix) and s 51(xxxi) (at 614), and gave an extensive judgment systematically dismantling Teori Tau, which was later summarised in

his joint judgment in Wurridjal v Commonwealth (2009) 237 CLR 309 (considered at 5.7). Kirby J also agreed with Gaudron J and added (at 657) that the question should be resolved in Newcrest’s favour because of the ‘interpretative principle’ (see analysis at 2.16): There is one final consideration which reinforces the view to which I am driven by the foregoing reasons. Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights.

5.7 In Wurridjal v Commonwealth (2009) 237 CLR 309 a majority of the High Court (French CJ, Gummow, Kirby and Hayne JJ) overruled Teori Tau. The case concerned a constitutional challenge to the Commonwealth’s ‘Northern Territory Intervention’. In August 2007, the Commonwealth enacted five bills, including the Northern Territory National Emergency Response Bill, which was said to address the issues raised in the Little Children Are Sacred report on widespread sexual abuse of Aboriginal children in the Northern Territory. Provision was made for five-year leases in favour of the Commonwealth over land that was otherwise subject to native title; land designated under Commonwealth land rights legislation (Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)), and land held by Aboriginal trusts which required a permit for entry to townships (pursuant to the Aboriginal Land Act (NT)). The Minister, introducing the legislation into the House of Representatives, indicated that underlying ownership of the land by traditional owners was to be preserved and compensation would be paid ‘when required by the Constitution’ (at 334). Wurridjal tested the constitutional underpinnings of this undertaking. The Commonwealth demurred to the plaintiffs’ statement of claim on the basis that it disclosed no cause of action on the basis (among other bases) that the legislation — which applied in

the Northern Territory and was, therefore, supported by s 122 — was not subject to the s 51(xxxi) requirement of just terms. [page 106] French CJ concluded (at 357) that ‘ordinary principles of construction, the weight of authority, other than Teori Tau, and the inconvenience of the contrary position, support a construction of s 122 that subjects it to the just terms guarantee’. Gummow and Hayne JJ rereviewed the jurisprudence considered by Gummow J in Newcrest, endorsed that analysis and pointed out (at 387–8) that subsequent decisions of the court, such as North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 (see further 5.14), have indicated a further ‘retreat from the “disjunction”’ theory of the relationship between s 122 and the rest of the Constitution. Kirby J at 419, while dissenting in the order, agreed that Teori Tau should be overruled, and endorsed the reasoning of Gummow and Hayne JJ on this point. Gummow and Hayne JJ wrote (at 385–6): Teori Tau (1969) 119 CLR 564 at 569–70 is a unanimous judgment of the Court given at the conclusion of oral argument on behalf of the plaintiff, without calling upon counsel for the defendants. As the judgment records, the point was seen as not attended by doubt. The Court held ‘that the power to make laws providing for the acquisition of property in the territory of the Commonwealth is not limited to the making of laws which provide just terms of acquisition’. Examination of the transcript of argument shows that counsel for the plaintiff put the plaintiff’s case on the basis that s 51(xxxi) was the sole power of the Parliament with respect to the acquisition of property in the Territory. On the footing that s 122 is a ‘plenary’ power, the Court then held that the territories power authorises laws with respect to the acquisition of property in the territories and that that power is distinct from the power conferred by s 51(xxxi). Echoes may be heard in Teori Tau of the proposition that a law which may be regarded as bearing two characters nevertheless must be characterised as a law with respect to a single head of legislative power and cannot bear a dual character. The doctrine of the Court is quite different …

Writing in 1945, Dixon J had said that for his part he had ‘always found it hard to see why s 122 should be disjoined from the rest of the Constitution’ (Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 at 85). Thereafter, in Lamshed v Lake (1958) 99 CLR 132 at 141, Dixon CJ pointed out that ‘[i]n considering the operation of s 122 an obvious starting point is that it is “the Parliament” that is to make the law pursuant to the power s 122 confers’. And as Dixon CJ went on to say (at 143–4): [W]hen s 122 gives a legislative power to the Parliament for the government of a territory the Parliament takes the power in its character as the legislature of the Commonwealth, established in accordance with the Constitution as the national legislature of Australia, so that the territory may be governed not as a quasi foreign country remote from and unconnected with Australia except for owing obedience to the sovereignty of the same Parliament but as a territory of Australia about the government of which the Parliament may make every proper provision as part of its legislative power operating throughout its jurisdiction … It has been well said of the reasoning in Teori Tau that it is ‘totally at odds’ with that in Lamshed v Lake (Zines, ‘The Nature of the Commonwealth’ (1998) 20 Adel L Rev 83, 83). Further, as the Territory, in particular, illustrated by the many instances given in its written submissions, the tenor of decisions since Teori Tau indicates a retreat from the ‘disjunction’ seen in that case between s 122 and the remainder of the structure of government established and maintained by the Constitution (the cases include Davis v The Commonwealth (1988) 166 CLR 79; Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248; Re Wakim; Ex parte McNally (1999) 198 CLR 511

[page 107] at 565 [82], 595–596 [175], 636 [312]; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163). Further, s 128 of the Constitution since 1977 has engaged electors in the territories (Constitution (Alteration) Referendums 1977 (Cth)), and valid provision has been made by the Parliament for representation in both chambers of the Parliament of electors in the two populous territories (see Newcrest (1997) 190 CLR 513 at 608–609). To preserve the authority of Teori Tau would be to maintain what was an error in basic constitutional principle and to preserve what subsequent events have rendered an anomaly. It should be overruled.

Attorney-General (NT) v Emmerson (2014) 253 CLR 393, the most recent High Court case involving s 51(xxxi) in the territories, is not

considered in this section as there was no constitutional question as to the relationship between ss 51(xxxi) and 122: see at 445 per Gageler J. The Kable aspect of this case is considered later at 19.62. Does Ch III apply in the territories? 5.8 The first case to consider whether Ch III of the Constitution applies in the territories was R v Bernasconi (1915) 19 CLR 629. Bernasconi was charged in the Central Court of Papua with the indictable offence of assault causing bodily harm. He was found guilty in summary proceedings and sentenced to 12 months’ imprisonment with hard labour. He appealed to the High Court on the basis that the conviction was wrongful as the constitutional guarantee of trial by jury in s 80 extended to the territory of British New Guinea, a territory administered by the Commonwealth of Australia. It was contended that s 80, by referring to a guarantee that attaches to ‘any law of the Commonwealth’, attached to any law supported by the Constitution, including the Criminal Code of British New Guinea. The High Court held that the location of s 80 in Ch III gave rise to an inference that its protection did not extend to the territories. The High Court held that Ch III (and, consequently, s 80) was ‘limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the states, and has no application to territories’: at 635 per Griffith CJ. Isaacs J said (at 637): … the provision is clearly enacted as a limitation on the accompanying provisions, applying to the Commonwealth as a self-governing community. And that is its sole operation … When the Constitution, however, reaches a new consideration, namely, the government of territories, not as constituent parts of the self-governing body, not ‘fused with it’ … but rather as parts annexed to the Commonwealth and subordinate to it, then sec 122 provides the appropriate grant of power.

Isaacs J held that the territories were not part of the Commonwealth

(at 637) nor were they ‘fused with’ the Commonwealth; rather, they were ‘annexed’ to and subordinate to it. Griffith CJ, with whom Gavan Duffy and Rich JJ agreed, took a slightly different approach, but with the same result, holding (at 634) that Ch III is ‘limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the states, and has no application to territories’. [page 108] 5.9 The broad proposition that the territories were not subject to Ch III led three members of the court to suggest, in Porter v The King; Ex parte Chin Man Yee (1926) 37 CLR 432, that the Commonwealth could not confer appellate jurisdiction on the High Court from a territory court under s 122: at 438 per Knox CJ and Gavan Duffy J; at 440–1 per Isaacs J; but cf Higgins J at 447 and Starke J at 449. In Mitchell v Barker (1918) 24 CLR 365 at 367–8, Griffith CJ, Gavan Duffy, Powers and Rich JJ held that a Special Magistrate of the Northern Territory could not constitute a ‘federal court’ within the meaning of s 73 of the Constitution, with the consequence that an appeal could not lie to the High Court under that provision. In Ffrost v Stevenson (1937) 58 CLR 528, Latham CJ supported that line of cases. Because Bernasconi had not been overruled, Fullagar J concluded in Waters v Commonwealth (1951) 82 CLR 188 at 191 that the High Court did not enjoy original jurisdiction in territory matters under s 75 of the Constitution for the same reasons. While Bernasconi has been criticised (see, for example, the comments of Windeyer J in Spratt v Hermes (1965) 114 CLR 226 at 275), it is, at the time of writing, a standing authority of the High Court.

The question today is whether Bernasconi can still command respect as authority for the wide proposition that Ch III does not apply in the territories. While a number of cases have applied that principle, North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 (see 5.14) indicates the High Court’s willingness to reject an approach that disjoins the territories from Ch III. 5.10 Section 71 of the Constitution contemplates that judicial power of the Commonwealth can be vested in the High Court, federal courts the parliament creates, and other courts. Section 72 contemplates that judges of courts ‘created by the [Commonwealth] Parliament’ will have judicial tenure. Are territory courts created by the parliament ‘federal courts’ for the purposes of s 72 of the Constitution? This question arose in Spratt v Hermes (1965) 114 CLR 226. In 1930, the Commonwealth established a Court of Petty Sessions for the Australian Capital Territory. In 1963, Hermes was appointed to the position of stipendiary magistrate of the Australian Capital Territory, but not with the conditions described in s 72 of the Constitution. Spratt was charged with an offence under the Commonwealth Post and Telegraph Act 1901 (Cth). A summons came on for hearing in front of Hermes, and Spratt objected to the jurisdiction of the court on the basis that Hermes’ judicial appointment was unconstitutional. Hermes rejected this submission and took jurisdiction. Spratt then sought a writ of prohibition in the Supreme Court of the Australian Capital Territory. The Supreme Court stated a case for the consideration of the Full High Court whether s 72 applied to the appointment of a stipendiary magistrate in the Australian Capital Territory Court of Petty Sessions. The court held unanimously that s 122 was not restricted by s 72. Barwick CJ said (at 243): Unless s 72 is of universal application to all courts created by the Commonwealth pursuant to any legislative power, these decisions determine the answer to the second

question. However, s 72, in my opinion, is not of such universal application. Upon its proper construction, in my opinion, it refers in the expression ‘the other

[page 109] courts created by the Parliament’ to the other courts to which reference is made in s 71, namely, such other federal courts as the Parliament creates, courts created by laws made in pursuance of the ‘federal’ legislative powers contained in s 51 of the Constitution. A court created by a law made by the legislative power given by s 122 is not a ‘federal’ court. Thus the section is not a limitation upon the power to create courts of judicature which is included within the complete power of legislation given by s 122 for the government of the Territories.

Barwick CJ applied the ‘plenary power’ approach, referring to s 122 as a ‘complete power of legislation’, but resisted the conclusion that s 122 was entirely unaffected by Ch III: at 239–41. The rest of the court agreed that s 72 does not restrict s 122: per Kitto J at 250–1; Taylor J at 264; Menzies J at 260–70; Windeyer J at 274; Owen J at 280–1. 5.11 Spratt v Hermes was applied in Capital TV and Appliances Ltd v Falconer (1971) 125 CLR 591. In that case, Capital TV was convicted of an offence against an Australian Capital Territory Ordinance in the Australian Capital Territory Court of Petty Sessions. An appeal to the Supreme Court of the Australian Capital Territory was dismissed. Capital TV then appealed to the High Court on the basis that s 73 of the Constitution accorded them a right of appeal. The respondent opposed this submission, and the High Court unanimously held that the Supreme Court of the Australian Capital Territory was created pursuant to s 122 of the Constitution and was not a ‘federal court’ or a ‘court exercising federal jurisdiction’ within the meaning of those terms in s 73 of the Constitution. Consequently, in the absence of a statutory appeal, the High Court had no jurisdiction to hear the appellant’s appeal. Barwick CJ said that the authorities of the court were that a territorial court exercising jurisdiction under a law made

pursuant to s 122 is exercising territory jurisdiction, not federal jurisdiction. 5.12 In Northern Territory v GPAO (1999) 196 CLR 553 at 591, Gleeson CJ and Gummow J (with whom Hayne J generally agreed) held that: … s 76(ii), in conjunction with s 77(i) of the Constitution, operates in accordance with its terms and permits the conferral of jurisdiction on federal courts in matters arising under laws made under s 122 of the Constitution: in such cases, the constitutional source of the jurisdiction is s 76(ii) and s 77(i) and the jurisdiction is federal.

Gaudron J expressed a similar view. However, the majority justices in GPAO expressly limited their conclusions to the facts before them: they did not decide whether territory courts invested with jurisdiction under s 122 of the Constitution exercised federal jurisdiction (at 592). 5.13 Spratt v Hermes was attacked in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322. Eastman had been convicted of murder in the Supreme Court of the Australian Capital Territory. The murder trial was presided over by an ‘acting judge’ of the court, a judge appointed for a short period and therefore without s 72 tenure. Eastman argued that Spratt v Hermes was wrongly decided and should be reopened and overruled. The High Court rejected this argument by majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting). Gleeson CJ, [page 110] McHugh and Callinan JJ reflected on Barwick CJ’s approach in Spratt v Hermes and said (at 322): That construction, which gives a negative answer, not to a wide question as to the relationship between Ch III and s 122, but to a particular question as to whether s 72 addresses the position of courts created pursuant to s 122, is open on the language, and

produces a sensible result, which pays due regard to the practical considerations arising from the varied nature and circumstances of territories.

Gaudron J upheld Spratt v Hermes, though not with any enthusiasm, indicating that if the question had not been the subject of previous authority her Honour would have decided that s 72 does apply in the territories. Gaudron J observed (at 340) that: One other matter should be noted with respect to the vesting of federal jurisdiction in a court created under s 122 or the existence of which is sustained by a law under that section. If it is not necessary for a court of that kind to conform to the requirements of s 72 of the Constitution, a question could arise as to whether, in accordance with the principles recognised in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, there is not some implicit requirement in Ch III with respect to the nature of the matters that may be dealt with by it and perhaps, also, with respect to the manner in which it is constituted before federal jurisdiction can be vested in it.

A variation of this argument was later advanced successfully in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, considered at 5.14. Gummow and Hayne JJ held (at 348) that: The preferable construction is that a court created by the Parliament for the government of a territory is not a federal court created under ss 71 and 72 but may answer the description of one of the ‘other courts’ which are invested by laws made by the Parliament with federal jurisdiction within the meaning of s 71 and thus are recipients of the judicial power of the Commonwealth. The investment of federal jurisdiction in such a non-federal Territory court would be by a law supported not by s 77 but by s 122. Such a construction was considered by Gaudron J in Northern Territory v GPAO (1999) 196 CLR 553 at 604. If that construction be accepted, it follows (contrary to the case for the applicant) that s 72 had no necessary operation with respect to a court created by the Parliament in exercise of its authority under s 122 of the Constitution. This would be so, even though the Parliament invested that court with federal jurisdiction.

Kirby J dissented. 5.14 The constitutional underpinnings of judicial independence in the Northern Territory arose for consideration in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146. Hugh Bradley was appointed by the Northern Territory Government to the

office of Northern Territory Chief Magistrate until retirement age, but with a remuneration package that only lasted two years. The arrangement had not been developed by the Remuneration Tribunal but was negotiated in confidential communications between Bradley and the Northern Territory Government that were only made available after contested discovery. This was plainly a less secure arrangement than that contemplated by s 72 of the Constitution. Section 68 of the Judiciary Act 1903 (Cth) allows territory courts to exercise jurisdiction over persons charged with offences under Commonwealth [page 111] laws. The North Australian Aboriginal Legal Aid Service (NAALAS) challenged the constitutionality of Bradley’s appointment on the basis that the two-year pay deal that took effect upon his appointment created a relationship of looming dependence on the Northern Territory executive. It did so because as the end of the two-year period loomed, Bradley would have to take steps to ensure that he continued to be paid if he decided to stay in office until the retirement age of 65 (Bradley was 57 when he was appointed). NAALAS argued that despite the High Court’s decisions on s 72 of the Constitution and its inapplicability in the territories, the separation of judicial power effected by Ch III of the Constitution required that judicial officers exercising federal judicial power (as the Chief Magistrate might under s 68 of the Judiciary Act 1903 (Cth)) needed to be, and be seen to be, independent of the executive government. This gave rise to an implication that territory judges must enjoy judicial independence, and that Bradley’s arrangement was one of dependence, not independence.

The Full Federal Court rejected this challenge by majority, holding Bradley’s appointment valid. The High Court unanimously dismissed the NAALAS appeal. However, the plurality (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) upheld a number of the integers of the NAALAS argument (at 163): Counsel for the Legal Aid Service put an argument in three steps. The first is that a court of the Territory may exercise the judicial power of the Commonwealth pursuant to investment by laws made by the Parliament. That proposition, to which there was no demurrer by the Territory or by the Attorney-General of the Commonwealth who intervened in this Court, is supported by authority … It should be accepted. The second step in the Legal Aid Service’s argument is that it is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal. That proposition … also should be accepted. The difficulty arises with the third step. This requires discernment of the relevant minimum characteristic of an independent and impartial tribunal exercising the jurisdiction of the courts over which the Chief Magistrate presides. No exhaustive statement of what constitutes that minimum in all cases is possible. However, the Legal Aid Service refers in particular to the statement by McHugh J in Kable ((1996) 189 CLR 51 at 119; see also at 98, per Toohey J; at 108, per Gaudron J; at 133–134, per Gummow J) that the boundary of legislative power, in the present case that of the Territory: is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the [Territory] court as an institution was not free of government influence in administering the judicial functions invested in the court. Much then turns upon the permitted minimum criteria for the appearance of impartiality …

The plurality went on to say that Bradley’s confidentially negotiated remuneration arrangements were not constitutionally defective because there had been no impermissible hiatus in his receipt of remuneration — before the two-year deal came to an end, the Northern Territory authorised a continuing remuneration arrangement. The court held that if the Northern Territory executive failed to pay

[page 112] Bradley beyond the end of the two-year period, he could seek the judicial remedy of mandamus to compel payment. 5.15 The conclusion in North Australian Aboriginal Legal Aid Service Inc v Bradley that an implication arising from Ch III of the Constitution applies in the territories indicates that the ‘sweeping generalisation’ made by Griffith CJ in Bernasconi that ‘the power conferred by s 122 is not restricted by Chap III of the Constitution’ — that was Windeyer J’s comment in Spratt v Hermes (1965) 114 CLR 226 at 275 — is unlikely to be upheld in future. This means that, should the question whether s 80 applies in the territories come up again, it is almost certain that Bernasconi would be reopened and overruled. On the other hand, the decisions in Spratt, Eastman and NAALAS on the constitutional underpinnings of judicial independence in the territories may be less likely to change because a decision, say, to grant territory judges s 72 tenure could lead to the invalidation of innumerable previous decisions of those judges, as Gleeson CJ. McHugh and Callinan JJ observed in Eastman (at 330): What is at stake is not only the lawfulness of the conviction and sentence in the instant case. The validity of the appointment, and the lawfulness of past decisions of, judicial officers in any territory who were appointed by a local Executive acting on the advice of local ministers, or who did not have the tenure required by s 72, is in question.

5.16 It certainly appears, given the court’s decision in North Australian Aboriginal Legal Aid Service Inc v Bradley that territory courts may be subject to Ch III of the Constitution. However, it is not so that territory courts are subject to the same Ch III standards as ‘federal courts’, the formal repositories of federal judicial power. This will be explored shortly. It is worth noting, for present purposes, that federal courts (also referred to as ‘Ch III courts’) are strictly bound by the separation of judicial power (a point introduced at 1.12 and discussed

in detail in Chapter 19). Established at 19.3–19.4 are the two fundamental rules pertaining to separation of judicial power under Ch III of the Constitution: first, only Ch III courts can exercise judicial power; and second, Ch III courts can only exercise judicial power, and powers which are incidental to judicial power: see, respectively, New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54 and R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254. These two rules help to ensure that a strict division of power is maintained between the legal and political arms of government; that is, between the judiciary and the legislature and the executive, so as to prevent non-Ch III bodies from exercising judicial power and Ch III courts from exercising non-judicial power. This means that the Commonwealth Parliament may only vest federal judicial power in ‘courts’; and that the Commonwealth Parliament may vest in those courts (mainly federal courts but also courts capable of being vested with federal jurisdiction, like state and territory courts) those powers which constitute the judicial power of the Commonwealth. It is crucial that the judiciary be protected from any interference or encroachment (even if this might be perceived) by the legislature or the executive. As McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ stated in North Australian Aboriginal Legal Aid Service Inc v Bradley, it is implicit in the terms of Ch III that a ‘court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal’: at 163 (emphasis added). [page 113] In this case their Honours held that the implication applies to territory courts capable of exercising the judicial power of the Commonwealth.

This is an important comment. It reveals that territory courts, much like the constitutional arrangement with state courts, may be subject to Ch III limitations, but only where they are capable of exercising the judicial power of the Commonwealth. These courts, however, must first be vested with federal jurisdiction (that is, to decide ‘matters’ under federal legislation). The Supreme Court of the Northern Territory, for example, has been invested under s 122 of the Constitution with jurisdiction in respect of matters arising under Commonwealth laws applicable throughout Australia: AttorneyGeneral (NT) v Emmerson (2014) 253 CLR 393 at 441 per Gageler J. The power to vest the states with federal jurisdiction is expressly provided for in ss 71 and 77(iii) of the Constitution. Territory courts, on the other hand, lack formal recognition in Ch III. Notwithstanding, a majority of the High Court held in Northern Territory v GPAO (1999) 196 CLR 553 (see also 5.12) that laws made under s 122 are ‘laws made by the Parliament’ for the purposes of s 76(ii) of the Constitution. These sections (in conjunction with s 77(i)) enable the Commonwealth Parliament to confer federal jurisdiction on territory courts: Northern Territory v GPAO (1999) 196 CLR 553 at 591–2 per Gleeson CJ and Gummow J; at 605 per Gaudron J; at 650 per Hayne J. Section 122 is the source of such power, as it creates a ‘matter’ arising under law which the territory court must decide. The fact that territory courts may be placed within the purview of Ch III represents a departure from the original view of the relationship between s 122 and Ch III. As may be recalled from 5.8–5.11 above, territory courts were conceived by the early members of the High Court to be completely separate from Ch III. This view still found favour some years later, as may be gleaned from the judgments of Dawson J and McHugh J in Kruger v Commonwealth (Stolen Generations case) (1997) 190 CLR 1 and the joint judgment of McHugh and Callinan JJ in Northern Territory v GPAO. In GPAO, their Honours maintained the

traditional line that the exercise of judicial power under a law, enacted pursuant to s 122, is not an exercise of ‘federal jurisdiction’: at 616–7. The position currently adopted by the High Court goes much further than the early view of the High Court but falls short of the opposing view that all jurisdiction which may be vested in territory courts, both by the Commonwealth and territory parliaments (given that both parliaments can establish territory courts), is ‘federal jurisdiction’ (see McDonald, 2005). This would mean that the only power that territory courts could exercise would be Commonwealth judicial power, which would put territory courts on par with federal courts, thus subjecting territory courts to the same limitations in Ch III which apply to federal courts. The better position, which has been reinforced by the High Court recently in North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16, is that territory courts may be vested with federal jurisdiction, and as such are capable of exercising federal judicial power, but are not ‘federal courts’ for the purposes of Ch III. Territory courts are creatures of the judicial systems of the territories, not the federal judicial system established by Ch III of the Constitution (a point noted by Keane J at [147]). As a result, territory courts are subject to the same Ch III limitations which apply to state courts: see 19.61 onwards. This effectively means [page 114] that territory courts have been partly (but not fully) integrated into Ch III. Whilst this position acknowledges that territory courts may be subject to Ch III of the Constitution (see North Australian Aboriginal Legal Aid Service Inc v Bradley), it nevertheless preserves much of the High Court’s jurisprudence on s 72 (Spratt and Eastman) and s 73(ii) (Falconer), provisions of Ch III which the court has held do not apply in the territories.

5.17 In North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16, the plaintiffs contended that all exercises of judicial power in the Northern Territory should be regarded as the judicial power of the Commonwealth. The effect of this proposition, should it be accepted, would be to elevate the status of territory courts to that of federal courts. One of the most common characteristics of judicial power is enforceability; that courts have power to enforce their decisions by imposing punitive or coercive measures (for example, imprisonment following a finding of criminal guilt). As Deane, Dawson, Gaudron and McHugh JJ remarked in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268, ‘one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal … is the enforceability of decisions given in the exercise of judicial power’. It follows, given the strict separation of judicial power in Ch III of the Constitution, that the involuntary detention of a citizen by a branch of government other than the judiciary (that is, the executive) is almost always ‘punitive’ and runs counter to Ch III of the Constitution. Accordingly, detention exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt: see Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ. One of the ‘exceptional cases’ to this is the arrest and detention in custody of a person who is accused of a crime, to ensure that he or she is available to be dealt with by the courts: at 28–9. Because the detention of a citizen by the executive (for example, the police) is generally considered ‘punitive’ and, as such, a reliable indicator of judicial power (which may only be exercised by Ch III courts), the effect of the plaintiffs’ submission in North Australian Aboriginal Justice Agency Ltd v Northern Territory would have been that a territory law conferring powers of detention on a person or body other than a court would be invalid. North Australian Aboriginal Justice Agency Ltd v Northern Territory will now be explored in further detail.

By way of background context, s 6 of the Northern Territory (SelfGovernment) Act 1978 (Cth) gives power to the Northern Territory Legislative Assembly to make laws, subject to the Act, for the peace, order and good government of the territory (with the assent of the Administrator or the Governor-General, as provided by the Act). In December 2014 the Legislative Assembly passed the Police Administration Amendment Act 2014 (NT), a law which gives police the power to detain a person, without a warrant, for up to four hours if the police officer believes the person had committed, was committing or was about to commit an infringement notice offence (described in s 7 of the Act as an offence ‘under another Act for which an infringement notice may be served’). Section 7 of the Amendment Act introduced Div 4AA (‘Taking a person into custody for infringement notice offence’) into the Police Administration Act (NT). Division 4AA consists of three sections, with s 133AB being the most relevant for the purposes of this discussion. Section 123 of [page 115] the Act provides that a police officer may, in the absence of a warrant, arrest and take into custody any person where the police officer believes that the person has committed, is committing or is about to commit an offence. This was extended by s 133AB(1) to include an ‘infringement notice offence’. The police officer may hold the person for a period of up to four hours (s 133AB(2)(a)), or if the person is intoxicated, for a period longer than four hours, until the officer reasonably believes the person is no longer intoxicated: s 133AB(2)(b). Section 133AB(3) holds that, at the expiry of the period in s 133AB(2), the police officer may either release the person unconditionally, with an infringement notice or on bail, or may bring the person before a

justice of the peace or court for the infringement notice offence or another offence allegedly committed by the person. The second plaintiff, an Aboriginal woman called Miranda Bowden, was arrested without a warrant by Northern Territory police officers in Katherine in March 2015. She was detained for a period of close to 12 hours. The second plaintiff, along with the first plaintiff (an agency which provides legal services to Aboriginal people in the Northern Territory) commenced proceedings in the original jurisdiction of the High Court seeking a declaration that Div 4AA was constitutionally invalid. The plaintiffs made two constitutional arguments founded on Ch III grounds. First, that Div 4AA conferred powers on the Northern Territory Executive (namely, police officers) which were penal or punitive in character and which were therefore beyond the legislative power of the Northern Territory Legislative Assembly, by virtue of the fact that powers conferred on that parliament by s 6 of the Northern Territory (Self-Government) Act 1978 (Cth) are an exercise of s 122 of the Constitution, a power of the Commonwealth Parliament. All exercises of federal legislative power by the parliament are subject to the doctrine of separation of judicial power. It followed that the legislative power of the Northern Territory, a power deriving from s 122, was subject to the same doctrine that limits the legislative power of the Commonwealth. The plaintiffs’ second argument was that Div 4AA was in breach of the Kable principle which conferred powers on the Northern Territory Executive that undermined or interfered with the institutional integrity of territory courts (‘institutional integrity’). In particular, the plaintiffs contended that Div 4AA withheld ‘from the courts of the Territory judicial supervision of the exercise of the detention power’: at [10] per French CJ, Kiefel and Bell JJ. The plaintiffs’ Kable argument, dismissed 6:1 by the justices of the court, is considered at 19.45. This discussion is concerned only with the plaintiffs’ first constitutional argument.

As pointed out above, the plaintiffs’ first contention depended upon acceptance of two propositions. First, that Div 4AA (in which s 133AB is found) authorised executive detention which was penal or punitive in character, an exclusively judicial power which resides with courts (refer to the first fundamental rule of Ch III judicial power at 5.16). Second, that the legislative powers of the Northern Territory Legislative Assembly is limited in the same way that the federal parliament is limited by the separation of judicial power in Ch III of the Constitution. Of course this argument depends, as French CJ, Kiefel and Bell JJ explained at [9], on an certain reading of s 122; first, that s 122 is limited by Ch III and second, more controversially, that this limitation extends to the legislative power of the [page 116] Legislative Assembly, given that its power to enact laws is conferred by the Northern Territory (Self-Government Act) 1978 (Cth), a federal law made pursuant to s 122 of the Constitution. As Keane J put the issue, the plaintiffs submitted that ‘the separation of powers at the Commonwealth level somehow percolates down to the Territories through the exercise of the power conferred by s 122’: at [157]– [158]. The High Court unanimously dismissed this argument. While Gageler and Keane JJ discussed the issue in depth, French CJ, Kiefel and Bell JJ in a joint judgment, and Nettle and Gordon JJ in a separate joint judgment, dismissed the plaintiffs’ contention at the threshold, rejecting on statutory construction grounds the first part of the argument; that the power conferred on the executive to detain a person for a period could be properly characterised as penal or punitive, and therefore judicial: at [36]–[38] per French CJ, Kiefel and Bell JJ; at [214]–[231] per Nettle and Gordon JJ. According to the

plurality, the law did not disclose a punitive purpose, and besides, it fell within one of the ‘exceptional cases’ identified in Lim (that is, arrest and detention in custody of a person accused of a crime to ensure that he or she would be available to be dealt with by the courts): at [37]. The reasons of Nettle and Gordon JJ were more elaborated. For their Honours, the statutory language of Div 4AA, when properly construed, demonstrated that s 133AB did not confer powers on the police force which could be considered punitive. The impugned law authorised police to detain persons for no longer than was reasonably practicable to determine which of the options under s 133AB(3) should be exercised: at [230]–[231]. Seven reasons were identified by Nettle and Gordon JJ in support of this view (discussed at [215]–[229]). It is worth noting, briefly, that although French CJ, Kiefel and Bell JJ considered a four-hour period of detention to be reasonable in this case, that is not to say that a scheme which imposed a ‘significantly greater’ period for which a person could be held in detention would be constitutionally valid: 38 If the maximum period for which a person could be held in detention in respect of an infringement notice offence were significantly greater than that specified under s 133AB, then a question might arise as to whether such an extended detention could be justified under any circumstances by reference to purposes of the kind relied upon by the Northern Territory and whether, beyond a certain point, it could still be characterised as administrative rather than punitive.

Gageler and Keane JJ were the only justices of the court to address the second of the plaintiffs’ propositions. Gageler J was prepared to accept the first proposition — that Div 4AA was penal or punitive in character (and would have invalidated Div 4AA on the basis of the Kable principle (that is, ‘institutional integrity’)) — but concluded that it was not contrary to the separation of powers enshrined in Ch III of the Constitution. First of all, Div 4AA was not enacted by the Commonwealth Parliament; it was enacted by the Legislative Assembly of the Northern Territory in the exercise of its distinct legislative power to make laws for the peace, order and good

government of the territory (s 6 of the Northern Territory (SelfGovernment) Act 1978 (Cth)). The exercise by the Legislative Assembly of that distinct legislative power, although derived from the Commonwealth Parliament, is not an exercise of the parliament’s legislative power: at [105]. Consequently, it is incorrect to equate [page 117] judicial power conferred by a law enacted in the exercise of a distinct legislative power conferred under s 122 with the judicial power of the Commonwealth. These powers derive ‘immediately and directly’ from territory parliaments, not the federal parliament: see at [147] per Keane J. According to Gageler J, the plaintiffs’ premise had been heard and rejected by the High Court in Kruger v Commonwealth (1997) 190 CLR 1. Four of the justices in that case specifically rejected the argument that ‘judicial power invested by a law enacted in the exercise of legislative power conferred under s 122 is judicial power of the Commonwealth’: at [107]. Gageler J, being of the opinion that there was no sufficient justification for departing from the answer given in Kruger, declined to reopen the case: at [108], [118]. For largely the same reasons, Keane J decided that the invitation to reopen Kruger should not be accepted: at [161]. His Honour outlined his reasons at [163]–[169]. Keane J said that ‘powerful considerations of constitutional text and structure’ support Spratt and Kruger: at [165]– [166]. The territories were never part of the compact between the Commonwealth and the states, and given the fact that the separation of powers at the Commonwealth level ‘does not require the separation of powers at the level of the States’; it makes very little sense to expect why territory residents ‘should be in a better position in relation to immunity against executive detention than residents of the States’: at [167]–[168].

Second, accepting the argument that all jurisdiction exercised by a territory court is federal jurisdiction, would represent an overextension of the principle in North Australian Aboriginal Legal Aid Service Inc v Bradley. It is important to understand that the decision in that case proceeded on the basis that not all judicial power exercised by territory courts is the judicial power of the Commonwealth. Rather, only that judicial power which is exercised pursuant an investment of jurisdiction directly under a law made by the federal parliament is considered to be the ‘judicial power of the Commonwealth’: at [115]. The result of North Australian Aboriginal Legal Aid Service Inc v Bradley, therefore, was to place on territory parliaments the same constraints on legislative power that applies to the states (at [116]), given the effect of the court’s decision in Kable to preclude state legislatures from enacting laws which impair the ‘institutional integrity’ of state courts: at [115]. Gageler J considered that the High Court’s reasoning in North Australian Aboriginal Legal Aid Service Inc v Bradley would be made redundant if the doctrine of separation of powers were applicable. State and territory courts are only capable of exercising federal jurisdiction, so it follows that these courts may but do not always exercise the judicial power of the Commonwealth. Gageler J concluded accordingly that the ‘legislative power of the Legislative Assembly is not constrained by the doctrine of separation of powers enshrined in Ch III of the Constitution’: at [118]. Keane J reached the same conclusion: at [146]. He rejected the argument that all judicial power exercised by territory courts is judicial power of the Commonwealth: at [172]–[181]. Like Gageler J, he held that territory courts do not always exercise the judicial power of the Commonwealth. Territory courts only ‘exercise the judicial power of the Commonwealth to the extent that it is expressly vested in them by the Commonwealth Parliament pursuant to a law made under s 122 of the Constitution’: at [173]. It follows that the enforcement of Div 4AA would have to involve the exercise of federal jurisdiction. It did not.

Acceptance of the opposite view would [page 118] be inconsistent with Spratt and Falconer, and would produce ‘great instability’ for the apparatus of government in the Northern Territory and Australian Capital Territory if those cases were now set aside: at [174]–[175]. In the end, Div 4AA and the power which was conferred thereby was an exercise of the legislative power of the Legislative Assembly. It was not an exercise of the Commonwealth Parliament. The whole point of the Commonwealth Parliament establishing the Northern Territory Legislative Assembly was to allow it ‘to exercise not the legislative power of the Commonwealth Parliament, but its own’: at [179]. Freedom of intercourse and the territories 5.18 The constitutional guarantee of freedom of interstate trade, commerce and intercourse among the states in s 92 has been given territorial application in both the Northern Territory and the Australian Capital Territory: Northern Territory (Self-Government) Act 1978 (Cth) s 49 (see, for example, AMS v AIF (1999) 199 CLR 160, considered at 6.29; Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298 at 315–6 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)) and Australian Capital Territory (Self-Government) Act 1988 (Cth) s 69, respectively. Freedom of speech and the territories 5.19 In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567, the unanimous High Court stated that a law of a territory legislature may not infringe the implied freedom of political communication. This would, presumably, extend to any other

freedoms that spring from that source, such as the implied freedom of association for political purposes (as to which see 18.34–18.35). The relationship between s 122 and s 52(i) 5.20 The Commonwealth enjoys exclusive power with respect to Commonwealth ‘public places’ under s 52(i) of the Constitution: see 3.26–3.28. If the Commonwealth has a public place in a territory, is s 52(i) the only source of (exclusive) power for that place? The relationship between ss 52(i) and 122 of the Constitution was considered in Svikart v Stewart (1994) 181 CLR 548. Stewart was charged under Northern Territory law with traffic offences, which were alleged to have occurred within the Royal Australian Air Force Base, a Commonwealth public place, in Darwin. Several constitutional questions were raised, including whether s 52(i) of the Constitution applies to places in the Northern Territory acquired by the Commonwealth for public purposes and, second, whether the RAAF Base in Darwin was a Commonwealth public place within the meaning of s 52(i) of the Constitution. If the answer is ‘yes’, then the territory law could not apply because the Commonwealth’s power in its public places under s 52(i) is expressed to be exclusive. Both questions were answered in the negative by the entire court. Mason CJ, Deane, Dawson and McHugh JJ, in their joint judgment, said (at 563): As Capital Duplicators Pty Ltd v Australian Capital Territory shows, there may be some qualifications to the power to make laws under s 122 which are to be found elsewhere in the Constitution but which as yet remain unidentified but … there is nothing elsewhere in the Constitution which would inhibit s 122 so as to prevent it conferring power upon a Territory legislature to legislate with respect to Commonwealth places in a Territory. And if s 52(i), which is the source of the exclusive power to make laws

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with respect to Commonwealth places, does not confine the Parliament’s power under s 122 because the places referred to are places in a State, then there is no reason why, in a Territory, a separate legislature should not have power conferred upon it by the Parliament to legislate with respect to places acquired by the Commonwealth within the Territory.

Territory self-government How are Australian territories created? 5.21 One way territories can be created is through surrender by a state to the Commonwealth (see s 111 of the Constitution). The Northern Territory was surrendered by South Australia and accepted by the Commonwealth in 1911. Similarly, the Australian Capital Territory was surrendered by New South Wales and accepted by the Commonwealth in 1911. The Jervis Bay Territory was surrendered by New South Wales, accepted by the Commonwealth in 1915, and annexed to the Australian Capital Territory. The creation of the Australian Capital Territory was also contemplated by s 125 of the Constitution, which refers to the ‘Seat of Government’ of the Commonwealth. This section was exhausted when the Australian Capital Territory was surrendered by New South Wales and accepted by the Commonwealth in 1911. A second way that territories can be created is, as s 122 states, when they are ‘placed by the Queen under the authority of and accepted by the Commonwealth’. The Australian Antarctic Territory was placed under Australian control by the British in 1933 and accepted by the Commonwealth in 1936. Previously, Papua New Guinea and Nauru were territories of Australia created in this way (see, for example, Re MIMIA; Ex parte Ame (2005) 222 CLR 439; Ruhani v Director of Police (2005) 222 CLR 489). The rest of Australia’s territories have been acquired by the Commonwealth under s 122, including: Norfolk Island (acquired from

New South Wales in 1914: see Berwick Ltd v Gray (1976) 133 CLR 603 at 608–9; Bennett v Commonwealth (2007) 231 CLR 91 at 101–6); Christmas Island (acquired from Singapore in 1957; some aspects of the history are discussed in Ex-Christmas Islanders Association Inc v AttorneyGeneral (Cth) (2005) 149 FCR 170 at 173–4); Heard Island and McDonald Island (declared a territory in 1953); the Coral Sea Islands (declared in 1969); the Cocos (Keeling) Islands (acquired from Singapore in 1955, and considered in Clunies-Ross v Commonwealth (1984) 155 CLR 193 at 206–7); and Ashmore and Cartier Islands (acquired in 1931): see further Hanks Australian Constitutional Law, [4.2.2]. 5.22 In Berwick Ltd v Gray (1976) 133 CLR 603, Mason J, with whom Barwick CJ, McTiernan and Murphy JJ agreed, said (at 607): The power conferred by s 122 is a plenary power capable of exercise in relation to Territories of varying size and importance which are at different stages of political and economic development. It is sufficiently wide enough to enable the passing of laws providing for the direct administration of a Territory by the Australian Government without separate fiscus; yet on the other hand it is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus.

[page 120] The Australian Capital Territory, the Northern Territory and Norfolk Island have each been given a substantial measure of selfgovernment: Australian Capital Territory (Self-Government) Act 1988 (Cth) (ACT Act); Northern Territory (Self-Government) Act 1978 (Cth) (NT Act); Norfolk Island Act 1979 (Cth) (NI Act). However, the Commonwealth Parliament removed Norfolk Island’s selfgovernment powers in May 2015 with the enactment of the Norfolk Island Legislation Amendment Act 2015 (Cth). It abolished the Norfolk Island Legislative Assembly and Executive Council in favour

of a Regional Council, which commenced on 1 July 2016. The new council is comprised of five members, with a mayor to be appointed from among the appointed councillors. With the abolition of selfgovernment on Norfolk Island, New South Wales state law is applied to Norfolk Island (see 5.23 below). Of course, most Commonwealth laws (for example, regarding taxation, immigration, federal health and social security) now extend to Norfolk Island. The Act was part of a package of eight initial laws to reform governance for Norfolk Island. The Commonwealth Government decided to end self-government on Norfolk Island due to concerns over the provision of services on the Island. Norfolk Island’s economy struggled as a result of the Global Financial Crisis in 2008, which prompted the government to seek financial assistance from the Commonwealth Government in 2010. The new arrangement permits the Commonwealth to enter into arrangements with the New South Wales Government to deliver state level services (for example, health and education services). The provision of public services through a service delivery agreement with New South Wales is similar to the current arrangement which exists between the Commonwealth and Western Australia for the delivery of services on Christmas Island and the Cocos (Keeling) Islands. Authority for this arrangement is provided in s 18C(1) of the NI Act. This section provides that the ‘Commonwealth may enter into arrangements with New South Wales for the effective application and administration of the laws in force in the Territory’. The Northern Territory and the Australian Capital Territory are normally bound by Commonwealth laws. This flows both from covering cll 5 and 6 of the Constitution, which include the ‘internal’ territories in ‘the States’ to which Commonwealth law applies and make Commonwealth laws applicable throughout the Commonwealth, but also from provisions of the self-government Acts

which provide that ‘the Crown in right of the Territory’ is bound by Commonwealth laws as the states are bound: see NT Act s 51; ACT Act s 69A. Norfolk Island’s position used to be different. Prior to the Norfolk Island Legislation Amendment Act 2015 (Cth), a Commonwealth Act did not extend to Norfolk Island unless it was expressly stated to extend to the territory: NI Act s 18 (repealed). However, following the enactment of Sch 5 of the Norfolk Island Legislation Amendment Act, this presumption was reversed. Schedule 5 of this Act amends s 18 of the NI Act by extending all Commonwealth Acts to Norfolk Island, unless otherwise provided. This effectively means that Commonwealth Acts extend to Norfolk Island if they state or are otherwise silent on their application to Norfolk Island. For a Commonwealth Act not to apply to Norfolk Island, it must expressly state that it does not extend to the territory. [page 121] Scope of legislative power 5.23 The legislative powers of the Assemblies are not complete. The self-government Acts withhold power to make laws on some subjects which are denied to state parliaments, although these restraints are not imposed consistently. For example, the Australian Capital Territory but not the Northern Territory Assembly is denied power to raise defence forces or to coin money (compare ss 114 and 115 of the Constitution): ACT Act s 23. Both the Northern Territory and Australian Capital Territory Assemblies are denied power to make laws authorising the acquisition of property other than on just terms (NT Act s 50(1); ACT Act s 23(1)(a)), as well as laws authorising euthanasia, assisted suicide or associated withdrawal of medical treatment, or to repeal pre-

existing laws criminalising attempted suicide (ACT Act s 23(1A), (1B); NT Act s 50A, inserted by the Euthanasia Laws Act 1997 (Cth)). The Australian Capital Territory Assembly is also denied power to make laws about: the provision of territory police services by the Australian Federal Police; the classification of materials for the purposes of censorship; and a number of matters on which Commonwealth laws are in force in the territory: corporations, the securities and futures industries (s 23). The Governor-General enjoys continuing power to make Ordinances for the Australian Capital Territory on some of these matters under the Seat of Government (Administration) Act 1910 (Cth) s 12. This law-making power also extends to some other subject matters (for example, unlawful assembly). The Northern Territory Assembly is denied power to make laws authorising the destruction of Aboriginal sacred sites or interfering with traditional use of Aboriginal land, waters or wildlife use: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Norfolk Island Assembly previously shared legislative power with the Governor-General, as both had the power to introduce a proposed law into the Assembly for its enactment or make the law himself or herself as an Ordinance if satisfied that it does not trespass on the legislative ground notionally allocated to the Assembly by Sch 2 and Sch 3 of the Act: NI Act s 27(1) (repealed). But following the abolition of self-government on Norfolk Island, legislative power is vested in the Governor-General to make Ordinances for the peace, order and good government of the territory: NI Act 19A(1). The Norfolk Island Legislation Amendment Act 2015 (Cth) established an ‘applied laws’ scheme for Norfolk Island. ‘Applied laws’ refers to a situation where the laws of one jurisdiction are applied by another jurisdiction as laws of that jurisdiction. In this

context, the laws of New South Wales, as in force from time to time, form part of the law of Norfolk Island. The ‘applied laws’ scheme was introduced into the NI Act by s 18A of the Amendment Act. Section 18A(1) provides that laws which are in force in New South Wales (whether made before or after the final transition time) are also in force on Norfolk Island. This allows for New South Wales laws to be applied to Norfolk Island. Section 18A(2) then provides that a law in force under s 18A(1) may be incorporated, amended [page 122] or repealed by a s 19A Ordinance or a law made under a s 19A Ordinance. As explained in the Explanatory Memoranda, s 18A(2) ‘enables the modification of applied NSW laws, of the disapplication of such laws, by Ordinance, where that is appropriate or desirable in the context of Norfolk Island’: p 37. See also Norfolk Island Applied Laws Ordinance 2016. Otherwise, provision is made for the continuation of laws prior to self-government in 1979 (s 16 of the NI Act) and laws in force before the interim transition time (s 16A). Section 17 of the NI Act provides for the amendment and repeal of existing laws while s 15 describes the laws currently in force in the territory.

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Chapter Six

Trade, Commerce and Intercourse and the Constitution Introduction 6.1 This chapter considers the Commonwealth’s power over trade and commerce (Constitution s 51(i); see also s 98) and the constitutional guarantee of freedom of trade, commerce and intercourse among the states (Constitution s 92). While ss 51(i) and 92 have different fields of operation, it is convenient to discuss them together as they have key concepts in common, namely ‘trade’ and ‘commerce’.

The trade and commerce power 6.2 The Commonwealth’s power over interstate and overseas trade and commerce has been used to regulate a wide variety of activities, including import and export trade, trade practices, the operation of federal government business enterprises, international shipping, aviation, and the regulation of interstate road transport. The power was important to the development of an Australian national economy, especially in the post-World War II period. Since the 1970s its significance has been eclipsed by an expansive reading of the corporations power: see Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, discussed at 8.16.

6.3 Notwithstanding its declining significance as a head of Commonwealth legislative power, the High Court’s s 51(i) jurisprudence provides an informative introduction to a number of the general principles of constitutional interpretation, including exposure to a number of the key judicial policy concerns that animate judicial decision-making in Australian constitutional law (particularly the need to interpret the Constitution to maintain federal distinctions), illuminating examples of the operation of the implied incidental power, and useful illustrations of the principles of characterisation. In this way, this chapter elaborates on and amplifies some of the themes discussed in Chapter 2. 6.4 A preliminary observation that should be made about the trade and commerce power is that it is directed to trade and commerce ‘with other countries, and among the States’. It does not, in terms, enable the federal parliament to regulate purely intrastate trade and commerce in a direct way. However, this limitation is more apparent than real, and can be circumvented in a number of ways. [page 124] Further, it should be noted that s 51(i) is only one of a number of overlapping powers that deal with topics that touch and concern trade and commerce. The Commonwealth enjoys power to regulate postal, telegraphic, telephonic and other like services (which includes broadcasting, the internet and social media, under s 51(v)), quarantine (s 51(ix)), currency (s 51(x)), banking (other than state banking: s 51(xiii)), insurance (other than state insurance: s 51(xiv)), bills of exchange and promissory notes (s 51(xvi)), bankruptcy and insolvency (s 51(xvii)), copyrights, patents of inventions and designs, and trade marks (s 51(xviii)), and, as indicated above, foreign, trading or

financial corporations (s 51(xx)). It should also be noted that the Commonwealth can use powers over subject matters that are less obviously ‘commercial’ in character and adapt them to effect policies that circumvent the apparent restriction on the regulation of intrastate trade and commerce. For example, the Commonwealth could use the defence power (s 51(vi)) to regulate the price of food during war; it could regulate foreign investment in Australia using the aliens power (s 51(xix)); or intrastate industrial disputes using s 51(xxxv). And the Commonwealth can use its territories power (s 122) to regulate trade and commerce within territories, between territories and between territories and states. Finally, the Commonwealth can use its incidental power to regulate things and activities that are physically located within a state so long as they are sufficiently connected to interstate or overseas trade or commerce. As Fullagar J once remarked, the incidental power is ‘a most welcome aid and assistance’ in the construction of constitutional powers such as s 51(i), allowing the Commonwealth to go beyond the distributive aspects of a business conveyed by the terms ‘trade’ and ‘commerce’ and enable the regulation of activities in ‘the factory, the field or the mine’: O’Sullivan v Noarlunga Meat Ltd (No 1) (1954) 92 CLR 565 at 598. The jurisprudence of the incidental power is considered at 6.11–6.13.

Interpretation of the power Give the words their practical meaning 6.5 The meaning of the words ‘trade’ and ‘commerce’ in the Constitution was considered by the High Court in an early s 92 case, W & A McArthur Ltd v Queensland (1920) 28 CLR 530 (the Privy Council later confirmed that s 92 cases that consider the meaning of the words ‘trade’ and ‘commerce’ are relevant to the consideration of s

51(i)): James v Commonwealth (1936) 55 CLR 1 at 59–60). The case concerned Queensland legislation that prohibited the sale of certain commodities at a price higher than a price declared in the Government Gazette. W & A McArthur Ltd, a Sydney company, had travelling sales personnel in Queensland who sold calico contrary to the regulation. They were charged under the Queensland law, and they argued the law was constitutionally invalid because it infringed s 92 of the Constitution, which guarantees freedom of trade, commerce and intercourse among the states. Knox CJ, Isaacs and Starke JJ took the opportunity to consider the meaning of the words ‘trade and commerce’, and urged that a practical approach to the words be adopted, [page 125] saying that the words were ‘not terms of art. They are expressions of fact … as well known to laymen as to lawyers, and better understood in detail by traders and commercial men than by judges’: at 547. Adopting this approach, these justices said (at 546–7): … all the commercial arrangements of which transport is the direct and necessary result form part of trade and commerce. The mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and the delivery are all, but not exclusively, parts of that class of relations between mankind [sic] which the world calls trade and commerce.

The High Court struck down the Queensland law by majority. Knox CJ, Isaacs and Starke JJ said ‘the Queensland statute appears to be intended to penalize the sales, agreements of sale and offers for sale in Queensland by merchants in other states of goods for the use of the people of Queensland, unless they sell or offer their goods on terms regulated by Queensland conditions’: at 542. Their Honours observed that if this contention were upheld it ‘would render s 92 practically

useless’: at 545. See also Higgins J at 563. Navigation, shipping and railways 6.6 Section 98 confirms that s 51(i) extends to enable the regulation of ‘navigation, shipping and railways the property of any state’. However, s 98 does not provide an independent source of power over these subjects — the federal power is limited to navigation etc, relating to overseas or interstate (not purely intrastate) trade and commerce: Owners of the SS Kalibia v Wilson (1910) 11 CLR 689. The Commonwealth may use these provisions to establish a government shipping line (Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46) or to regulate employer– employee relations in interstate and overseas shipping: Australian Steamships Ltd v Malcolm (1914) 19 CLR 298; Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120. Flexible interpretation of power 6.7 The High Court has confirmed in numerous cases that the Commonwealth’s constitutional powers should be construed broadly and flexibly, in order to accommodate changing circumstances: see 2.12. In the trade and commerce power jurisprudence, Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 is authority for this proposition. The case concerned the constitutional validity of the Australian Airlines Act 1945 (Cth), which set up a government airline to run interstate and territorial air transport services. Australian National Airways (ANA), a private competitor, challenged the legislation on two grounds which are relevant here: they argued that the trade and commerce power did not give the Commonwealth power to undertake trading or commercial activities, and that the trade and commerce power did not extend to authorise the interstate transportation of persons who were not themselves engaged in trading activities. The court held that s 51(i) enabled the federal

parliament to incorporate a company to conduct an interstate or export trading and commercial business (see Latham CJ at 58, with whom Rich, Starke, Williams and Dixon JJ agreed at 71, 76–7 and 83 respectively). Latham CJ said that ‘inter-State transportation, certainly when conducted [page 126] for profit, is itself inter-State trade and commerce’: at 54. Dixon J, rejecting the arguments advanced by ANA and, echoing the broad and literal approach to the interpretation of constitutional powers endorsed in the Engineers’ case, said (at 81): I am of opinion that this argument ought not be accepted. It plainly ignores that fact that it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances. It confuses the unexpressed assumptions upon which the framers of the instrument supposedly proceeded with the expressed meaning of the power. A law authorizing the government to conduct a transport service for inter-State trade, whether as a monopoly or not, appears to me to answer the description, a law with respect to trade and commerce amongst the States. It is only by importing a limitation into the descriptive words of the power that such a law can be excluded.

Not a general power to regulate ‘the national economy’ 6.8 In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, the High Court considered whether the Commonwealth Government’s ‘economic stimulus package’ of tax bonus payments designed to counteract the economic impact of the global financial crisis of 2008 was a valid regulation of trade and commerce under s 51(i). To establish a relationship between s 51(i) and the stimulus package, the Commissioner of Taxation said that (in Heydon J’s words), ‘the key question’ was ‘does this law have a substantial economic effect on the flow of commercial transactions, goods, services, money, credit

among the States?’. French CJ, along with Gummow, Crennan and Bell JJ, declined to consider the argument, upholding the legislation on other grounds: at [8] and [256] respectively. However, Hayne, Kiefel and Heydon JJ dissenting rejected the Commonwealth’s attempt to invoke s 51(i) to support the law. Hayne and Kiefel JJ observed: 375 It may be accepted that the Impugned Act was promoted and passed with the hope that many recipients would spend the sum paid. Those who do spend the money may spend it in a way that constitutes international or interstate trade and commerce. But neither the legal nor the practical effect of the Impugned Act is such as to make it a law with respect to either or both of international or interstate trade and commerce. 376 The Commonwealth did not press for any reconsideration of the accepted doctrine of the Court about the trade and commerce power. The Commonwealth submitted that the question critical to the engagement of s 51(i) in this case was one about the practical effect of the Impugned Act. In particular, would the Impugned Act have ‘a substantial economic effect on the flow of commercial transactions, goods, services, money, credit, among the States?’ 377 It is not necessary to decide whether an affirmative answer to the question posed by the Commonwealth would suffice to show that the Impugned Act is a law supported by s 51(i). It was not submitted that the material in the Special Case directly answered the factual question posed by the Commonwealth. The material in the Special Case showed that the ‘$42 billion Nation Building and Jobs Plan’ announced in February 2009 (of which the Impugned Act was one component) was designed to provide ‘a boost to the economy of around ½ per cent of [Gross Domestic Product] in 2008–09 and around ¾ to 1 per cent of GDP in 2009–10’. About $12.77 billion of the total sum of $42 billion is intended to be spent in 2008–09. Sums expected to be payable under the Impugned Act during 2008–09 total $6.95 billion and this would account for more than half of the expenditure of $12.77 billion to be made during [page 127] 2008–09. But the material in the Special Case shows no estimation of how the increase in Gross Domestic Product relates to trade and commerce with other countries, or among the States. As the Commonwealth acknowledged in argument, ‘nobody has modelled the precise effect on the flow [of transactions] among the States’. 378 The Impugned Act is not a law with respect to trade and commerce with other countries, and among the States.

Heydon J reached the same conclusion: 436 Section 51(i) of the Constitution gives power to make laws with respect to ‘trade and commerce with other countries, and among the States’. It compels a distinction between trade and commerce with other countries, and among the States, on the one hand, and other forms of trade and commerce, on the other (Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54 at 88, 115, 128, 142–144 and 155; AttorneyGeneral (WA) v Australian National Airlines Commission (1976) 138 CLR 492 at 499, 502– 503 and 508–511; cf at 529–530. Despite indicating a conditional desire to reopen these cases, and despite reminders from New South Wales of the necessity to do so if the defendants were to win on s 51(i), the defendants did not in fact apply to do so. It does not permit an argument that trade and commerce in Australia is one indivisible whole. Nor does it permit an argument that any legislation having an effect on trade and commerce in Australia must inevitably have an effect on trade and commerce with other countries, and among the States. While it may not be necessary to demonstrate that the Tax Bonus Act is exclusively related to trade and commerce with other countries, and among the States, it is necessary to show at least that it has some definable relationship with that class of trade and commerce.

Extensive definition of ‘trade and commerce’ 6.9 An extensive definition of the words ‘trade’ and ‘commerce’ was provided by Dixon J in Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1. The case concerned the Chifley Government’s second attempt to nationalise private banks (see also 3.10). Section 3 of the Banking Act 1947 (Cth) sets out the objects of the relevant legislation in the following terms: (a) the expansion of the banking business of the Commonwealth Bank as a publicly owned bank conducted in the interests of the people of Australia and not for private profit; (b) the taking over by the Commonwealth Bank of the banking business in Australia of private banks and the acquisition on just terms of property used in that business; (c) the prohibition of the carrying on of banking business in Australia by private banks.

The law was challenged on a number of grounds, including that s 46(4)–(8) of the Banking Act contravened s 92 of the Constitution. Section 46 was the only section in Pt VII of the 1947 Act, and was entitled ‘Prohibition of the Carrying on of Banking Business by Private

Banks’. Subsections (4)–(8) empowered the Commonwealth Treasurer to issue a notice requiring a private bank to cease banking, and purported to penalise contraventions. Dixon J said that the phrase ‘trade, commerce and intercourse’ in s 92 (and, by parity of reasoning, s 51(i)) extended to a wide range of activities (at 381–2): It covers intangibles as well as the movement of goods or persons. The supply of gas and the transmission of electric current may be considered only an obvious extension of the movement of physical goods. But it covers communication. [page 128] The telegraph, the telephone, the wireless may be the means employed. It includes broadcasting and, no doubt, it will take in television. In principle there is no reason to exclude visual signals. The conception covers, in the United States, the business of press agencies and the transmission of all intelligence, whether for gain or not. Transportation, traffic, movement, transfer, interchange, communication, are words which perhaps together embrace an idea which is dominant in the conception of what the commerce clause requires. But to confine the subject matter to physical things and persons would be quite out of keeping with all modern developments.

A majority of the court (Rich, Starke, Dixon and Williams JJ; Latham CJ and McTiernan J dissenting) struck down s 46(4)–(8) for contravening s 92: see Rich and Williams JJ at 290–1, 296; Starke J at 308–9, 324–5. Dixon J said that the law contravened s 92 on the basis that it would impede ‘a large part of the business of banking’ which is ‘transacted across State lines’ and therefore ‘involves trade, commerce and intercourse among the States’: at 383. Does s 51(i) cover activities preparatory to trade? 6.10 While the words ‘trade’ and ‘commerce’ have been given a broad interpretation, doubt was expressed in a number of cases whether the words could include manufacturing, production or mining — on one view these are activities preparatory to trade. Quick and Garran (1901, p 518) wrote that ‘the growth, production and manufacture of commodities, and their preparation for transit, do not

constitute commerce. Commerce only begins where manufacture and production end’. In Granall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55, Marrickville Margarine challenged the constitutional validity of s 22A of the Dairy Industry Act 1915 (NSW), which prohibited the manufacturing of margarine without a licence. The New South Wales Act also contained a quota on production. Marrickville Margarine, which had a number of interstate customers, challenged the provisions on the basis that they infringed s 92 of the Constitution. Dixon CJ, McTiernan, Webb and Kitto JJ accepted that manufacture, production or importation might be an ‘essential preliminary condition to trade and commerce between the States in merchandise. But that does not make manufacture, production or importation trade and commerce among the States’: at 71–2. In Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283, Beal laid an information that Marrickville Margarine had failed to comply with state dairy industry regulations which placed a quota on their production. Marrickville Margarine argued that the regulations authorising the quota infringed s 92 of the Constitution, on the basis that their manufacturing processes were geared specifically to fulfil orders from their interstate customers. Accordingly, it was argued that the ‘inter-State trade’ protected by s 92 commenced at the first stage of manufacture. The High Court rejected the argument, Menzies J saying: ‘[A] manufacturer is usually a trader because part of his business is to sell his products but to manufacture is not, of itself, to trade, and it is an error to treat all aspects of the business of manufacturing to meet orders as trading’: at 306. The court (McTiernan, Kitto, Menzies, Williams and Owen JJ) found Marrickville Margarine guilty of breaching the state dairy industry regulations: at 299, 304–5, 308, 309 and 311 respectively.

[page 129] ‘With respect to’ 6.11 While manufacturing, production and mining may be distinguished from trade and commerce, the power in s 51(i) is one ‘with respect to’ trade and commerce, and this contemplates the regulation of topics incidental to the regulation of trade. In Granall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77–8, Dixon CJ, McTiernan, Webb and Kitto JJ, after considering the distinction between production and trade, said: Nothing which has been said above implies that under the power conferred by s. 51 (i) of the Constitution to make laws with respect to trade and commerce with other countries and among the States legislation of the Commonwealth Parliament can never reach or touch production. In the first place, the power is to legislate with respect to trade and commerce. The words ‘with respect to’ ought never be neglected in considering the extent of a legislative power conferred by s. 51 or s. 52. For what they require is a relevance to or connection with the subject assigned to the Commonwealth Parliament, a conception very different from those which have been employed in the exposition of s. 92. In the next place, every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter … In the United States of America the difficulty of saying categorically and without qualification that manufacture or production can never fall within the legislative power has been clearly perceived, although only after a long attempt to apply early dogmatic assertions of a total denial of such a possibility. Perhaps the view now accepted in the Supreme Court of the United States may go too far, but it is expressed in Mandeville Island Farms Inc. v. American Crystal Sugar Co. 334 US 219 (1948). Speaking for the majority of the Court Rutledge J. says: ‘The artificial and mechanical separation of “production” and “manufacturing” from “commerce”, without regard to their economic continuity, the effects of the former two upon the latter, and the varying methods by which the several processes are organized, related and carried on in different industries or indeed within a single industry, no longer suffices to put either production or manufacturing and refining processes beyond reach of Congress authority’ (1948) 334 US, at p 229.

‘Implied incidental power’

6.12 The power to make laws ‘with respect to’ the topics in s 51(i) (and other powers in s 51) is sometimes referred to as the ‘implied incidental power’. The concept can be traced to the very earliest High Court decisions. In D’Emden v Pedder (1904) 1 CLR 91 at 110, the High Court said that even if s 51(xxxix) were not included in the Constitution, a power to legislate with respect to matters incidental to the effective exercise of the legislative powers in s 51 would be assumed. The concept can be traced to the decision of the United States Supreme Court in McCulloch v Maryland 17 US 316 (1819). That case concerned the constitutional validity of a law of the United States Congress to incorporate a national bank. No express power to do so could be located in the United States Constitution. The law was upheld as being incidental to other powers, including the commerce, taxation and defence powers. Marshall CJ pointed to Art I, s 8, cl 18 of the United States Constitution, which gives the Congress power ‘[t]o make all Laws which shall be necessary and proper for carrying into Execution … all … powers vested by this [page 130] Constitution in the Government of the United States, or in any Department or Officer thereof’: the equivalent to Australia’s s 51(xxxix). Marshall CJ concluded that a national bank was a convenient and useful institution for the administration of the federal government’s fiscal activities and upheld the law. In doing so, Marshall CJ stated a principle of constitutional interpretation that is frequently cited in both the United States and in Australia when a court is faced with the task of determining the ambit of a constitutional power (at 421):

Let the end be legitimate, let it be within the scope of the Constitution, and all the means which are appropriate, which are plainly adapted to that end, which are not prohibited, but which consist with the letter and spirit of the Constitution, are constitutional.

In Australia, the implied incidental power extends to enable the regulation of ‘things which may reasonably and properly be done’ for the effective execution of an express power: British Medical Association v Commonwealth (1949) 79 CLR 201. 6.13 A classic example of the operation of the implied incidental power is provided by O’Sullivan v Noarlunga Meat Ltd (No 1) (1954) 92 CLR 565. The plaintiff charged the defendant with failure to comply with provisions of a South Australian statute that required persons using ‘any premises for the purpose of slaughtering stock for export as fresh meat in a chilled or frozen condition’ in that state to hold a licence issued by the state Minister for Agriculture. Noarlunga Meat challenged the validity of the state law on the basis that it was inconsistent with federal meat export regulations and, consequently, invalid to the extent of the inconsistency under s 109 of the Constitution. To resolve the inconsistency issue, the High Court had to consider whether the federal regulations were a valid exercise of the Commonwealth’s power with respect to overseas trade and commerce (there must be a valid and operative Commonwealth law before any question of inconsistency of laws arises: see further Chapter 21). Fullagar J, with whom Dixon CJ, Kitto and McTiernan JJ agreed, confirmed that the trade and commerce power extended to enable the prohibition of export trade except upon compliance with certain conditions: at 595–7. Fullagar J described the implied incidental power as ‘a most welcome aid and assistance’ in interpreting the scope of s 51(i), and said (at 598): 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 the Commonwealth. Such matters include not only grade and quality of goods but packing, get-up, description, labelling, handling, and anything at all that may reasonably be considered likely to affect an export market by developing it or impairing it. It seems clear enough that the objectives for which the power is conferred may be impossible of achievement by means of a mere prescription of standards for export and the institution of a system of inspection at the point of export. It may very reasonably be thought necessary to go further back, and even to enter the factory or the field or the mine. How far back the Commonwealth may constitutionally go is a question which need not now be considered, and which must in any case depend on the particular circumstances attending the production or manufacture of particular commodities. But I think it safe to say that the power of the Commonwealth extended to the supervision and control of all acts or processes which can be identified as being done or carried out for export.

[page 131] While the Commonwealth has no express power to regulate the treatment of beef carcasses in an abattoir (on one view, a production activity that was preparatory to trade occurring wholly within one state), O’Sullivan v Noarlunga Meat demonstrates that the Commonwealth can prescribe standards for production if the relevant goods are destined for interstate or export trade. 6.14

Section 51(i) has been held to extend to:

•

the regulation of employment relations between stevedoring companies and waterside workers: Huddart Parker Ltd v Commonwealth (1931) 44 CLR 492; R v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528; R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256;

•

the imposition of penalties in respect of prohibited imports, and seizure and forfeiture of such goods: Burton v Honan (1952) 86 CLR 169;

•

the imposition of a statutory lien on aircraft designed to secure payment of charges where such a device was reasonably and

appropriately adapted to the achievement of a purpose incidental to the regulation of air navigation: Airservices Australia v Canadian Airlines (1999) 202 CLR 133 at 256 per McHugh J; and •

plain-paper packaging of cigarettes (assuming the cigarettes were the subject matter of interstate or overseas trade): JT International SA v Commonwealth (2012) 250 CLR 1; (2012) 86 ALJR 1297 at [314].

Trade and commerce ‘with other countries’ Plenary power to regulate import and export trade 6.15 Section 51(i) includes power to regulate trade and commerce ‘with other countries’. This phrase is wide enough to enable the Commonwealth to ‘prohibit, regulate and control the importation and exportation of goods’ for any purpose: Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 18–19. In this case, the High Court considered the constitutional validity of federal customs regulations that prohibited the export of mineral sands without a permit from the Federal Minister for Minerals and Energy. Murphyores was engaged in sand mining on Fraser Island in Queensland, and applied for an export permit. After the Minister rejected their application on environmental grounds, Murphyores challenged the constitutional validity of the customs regulations on the basis that s 51(i) did not enable the federal parliament to prohibit export trade on environmental grounds. The High Court rejected this argument, saying that the fact that the Minister for Minerals and Energy had regard to environmental considerations in making a decision to refuse permission to export did not affect the validity of the regulation. Mason J observed (at 19–20): The power to legislate with respect to trade and commerce with other countries, including as it does power to prohibit and regulate the exportation of goods from Australia, necessarily comprehends the power to select and identify the persons who

engage in, and the goods which may become the subject of, that activity: see Huddart Parker Ltd v The Commonwealth (1931) 44 CLR 492; Australian National [page 132] Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29. It is then for Parliament in its wisdom or for the person to whom Parliament delegates the power to decide who may export and what goods may be exported. The means and the criteria by which this choice is to be made are for Parliament to decide. There is nothing in the subject matter of the constitutional power which justifies the implication of any limitation on Parliament’s power of selection. It does not follow, for example, that because the subject of the power is trade and commerce, selection of the exporter or of the goods to be exported must be made by reference to considerations of trading policy. It is enough that the law operates on the topic of trade and commerce with other countries. A law which absolutely or conditionally prohibits exportation of goods is a law that operates on that topic. It is not a law which ceases to deal with that topic because it confers a discretion, unlimited in scope, to permit exportation of particular goods … The point here is that by imposing a conditional prohibition on exportation, a prohibition which may be relaxed according to the exercise of a discretion, the law is dealing with exportation of goods, a matter at the heart of trade and commerce with other countries. It is not to the point that the selection may be made by reference to criteria having little or no apparent relevance to trade and commerce; it is enough that the law deals with the permitted topic and it does not cease to deal with that topic because factors extraneous to the topic may be taken into account in the relaxation of the prohibition imposed by the law. It is now far too late in the day to say that a law should be characterized by reference to the motives which inspire it or the consequences which flow from it.

6.16 Section 51(i) enables regulation of a diverse and extensive range of export and import-related activities. The power has authorised laws regulating charges to be paid for air flights in respect of travel to or from Australia on all sectors of flights to overseas destinations — including sectors beyond the first stopping place outside Australia: R v Halton; Ex parte AUS Student Travel Pty Ltd (1978) 138 CLR 201 at 207. The Commonwealth may compel persons engaged in trading and commercial transactions within Australia involving prohibited imported narcotics to pay pecuniary penalties in

respect of particular dealings, even transactions that take place after the process of importation has come to an end: R v Smithers; Ex parte McMillan (1982) 152 CLR 477 at 485. Section 51(i) also supports the regulation of extraterritorial trading activities connected to overseas trade, including the conditions of sale of goods arriving in a foreign destination (Crowe v Commonwealth (1935) 54 CLR 69) and the regulation of investments in foreign countries: R v Hughes (2000) 202 CLR 535 at 556.

Trade and commerce ‘among the States’ No direct power to regulate intrastate trade and commerce 6.17 Considered in isolation, an inference can be readily drawn from the language of s 51(i) that the Commonwealth has no power to regulate intrastate trade directly. If the people who wrote the Constitution had intended to enable the Commonwealth to exercise such a power, it is unlikely that the power would be qualified by the words ‘with other countries and among the States’. This proposition is based on the approach to constitutional interpretation established in the Engineers’ case: that the intention of the enacting parliament (in this case, the Imperial Parliament) should be derived from analysis of the language chosen by [page 133] that parliament: see further 2.6. The conclusion that the Commonwealth cannot use s 51(i) to regulate intrastate trade does not rest on the application of the doctrine of State reserved powers that was rejected in that case. Section 51(i) contains no explicit prohibition on the regulation of intrastate matters and does not reserve the subject

of intrastate trade to the states: Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 488–9. The cases that follow indicate that the distinction between interstate trade and intrastate trade can be a difficult distinction to maintain in some contexts. As Windeyer J observed in Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 150, trade and commerce ‘cannot be confined in compartments’ and does not necessarily respect geographical boundaries. Notwithstanding this, the court has consistently confirmed that the distinction is important. As Heydon J observed in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at [436], s 51(i) ‘compels a distinction between trade and commerce with other countries, and among the States, on the one hand, and other forms of trade and commerce, on the other … It does not permit an argument that trade and commerce in Australia is one indivisible whole’. 6.18 One type of trade and commerce that has exposed the difficulty of this distinction is air navigation. As Latham CJ pointed out in R v Burgess; Ex parte Henry (1936) 55 CLR 608, aircraft flying interstate or overseas and aircraft flying intrastate use, as a matter of absolute necessity, the same air, and as a matter of practical necessity, the same airports: at 627. A uniform set of rules governing air safety is clearly desirable to avoid the risk of accident and to maximise efficiency. An attempt by the Commonwealth to secure this objective using s 51(i) was considered in Burgess (the Commonwealth also relied on s 51(xxix): see 10.9). The High Court considered the validity of s 4 of the Air Navigation Act 1920 (Cth) which enabled the Governor-General to make regulations for the control of air navigation ‘in the Commonwealth’. The provision was challenged on the basis that it could not be supported by s 51(i), because it made no distinction between aircraft flying across and flying within the boundaries of a state. Latham CJ said (at 628–9):

On several occasions the argument has been pressed upon this court that, where interState or foreign and intra-State maritime trade and commerce are so intermingled that it is practically essential to control all of them as one subject matter [then the Commonwealth should enjoy this power]. This argument, however, has always been rejected by the court. Although foreign and inter-State trade and commerce may be closely associated with intra-State trade and commerce, the court has uniformly held that the distinction drawn by the Constitution must be recognised, and that the power to deal with the former subject does not involve an incidental power to deal with the latter subject.

Dixon J said (at 672) that even though ‘the inconvenience and difficulty of maintaining the distinction’ between interstate and intrastate air travel needed ‘no demonstration’: The express limitation of the subject matter of the power to commerce with other countries and among the State compels a distinction however artificial it may appear and whatever interdependence may be discovered between the branches into which [page 134] the Constitution divides trade and commerce. This express limitation must be maintained no less steadily in determining what is incidental to the power than in defining its main purpose.

Dixon J was probably overstating the true position. For example, these conclusions did not mean that the Commonwealth lacked power over intrastate activities that had a ‘direct and proximate relationship’ to interstate activities: per Evatt and McTiernan JJ at 677. The Commonwealth simply could not exercise power over the intrastate activity solely on the ground of ‘intermingling’ of interstate and intrastate activity, ‘practicality’ or ‘necessity’. The limits of the Commonwealth’s power to secure a uniform system of air navigation regulation by using s 51(i) were again considered in Airlines of NSW Pty Ltd v State of New South Wales (No 2) (1965) 113 CLR 54: see also 10.32. State law governed intrastate air navigation and federal law governed air navigation which directly affected overseas or interstate air navigation. Both laws established

licensing systems. Airlines of New South Wales held a federal permit to operate from Sydney to Dubbo, but no state permit. It was argued that the state regulations were invalid pursuant to s 109 on the basis that they were inconsistent with the federal law, which could be supported by s 51(i) and (xxix). A majority of the High Court characterised the laws as dealing with different subject matters: the federal law dealt with landings and departures at Commonwealth airports, and with ‘the safety, regularity and efficiency of air navigation and to no other matters’: at 54. The state law was characterised as dealing with intrastate air navigation, particularly the character, suitability and fitness of licence applicants: at 55. Accordingly, no inconsistency issue arose. One of the issues raised in this case was whether s 51(i) could support federal air navigation regulations enabling the Commonwealth to license intrastate air service operators using intrastate airspace, and also to authorise air service operators to offer intrastate services, on the basis that this was necessary for the ‘safety, regularity and efficiency’ of interstate and international air navigation. In argument before the High Court it was suggested that intrastate matters could be regulated under s 51(i) if intrastate matters ‘commingled’ with interstate or overseas trade and commerce to such an extent that it was necessary to enable the regulation of those intrastate activities to effectively regulate the interstate or overseas trade and commerce. However, a majority of the court rejected the argument that intrastate matters could be regulated on the basis that they ‘commingled’ with interstate matters. Windeyer J referred to the ‘commingling’ argument and the American constitutional jurisprudence on the topic as ‘exotic doctrine’ (at 150), and Barwick CJ stated (at 77): This proposition so far as it is placed upon the power given by s 51(i) is demonstrably insupportable. It is a claim that the Commonwealth has in some circumstances power to make laws with respect to some aspects of intra-State trade and commerce as

themselves topics of legislative power. But the Commonwealth has not and, without constitutional amendment, cannot obtain such legislative power with respect to any aspect of such trade and commerce … No so-called ‘integration’ of inter-State and intra-State air navigation or air transport, commercial or otherwise, no intermingling or commingling of the two to any degree, however ‘complete’, can enlarge the subject matter of Commonwealth legislative power in the relevant field. It remains a power with respect to inter-State and foreign trade and commerce [emphasis added].

[page 135] Nevertheless, a majority of the court held that a federal licensing system applying to intrastate operators was valid on the basis that s 51(i) was wide enough to enable the making of laws to ensure the safety, efficiency and regularity of interstate and overseas air navigation, and a uniform licensing scheme was sufficiently connected to that objective: see Barwick CJ at 92–3. In this regard, Barwick CJ was of the view that: A clear conclusion must be drawn that the safety of air operations in Australia does not admit of any distinction being drawn between aircraft engaged in intra-State and those in inter-State or international air operations in connection with all those matters which go to make up what I can compendiously call safety precautions and procedures.

This approach was approved by Gleeson CJ and Kirby J in Airservices Australia v Canadian Airlines (1999) 202 CLR 133 at 174–5. See also Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502 at [120]–[122]. However, the entire court rejected the regulation purporting to give the Commonwealth power to authorise intrastate air transport operations on the basis that it could not be demonstrated that the regulation was supported by s 51(i). Barwick CJ said (at 97–8): The State has power and the Commonwealth has none to prohibit or to authorize the carriage of passengers and goods by air between places within the State. The Commonwealth has power, as a safety measure securing the safety of the air for interState and foreign commerce to prohibit the use of aircraft in the course of regular public transport operations within Australia, including such operations wholly within any State [emphasis added].

An economic connection may not be ‘sufficient’ 6.19 The artificiality of the distinction between interstate and intrastate trade has led to attempts to argue that an economic connection between intrastate and interstate trade might be sufficient to authorise federal regulation of intrastate trade. The notion was rejected in Wragg v New South Wales (1953) 88 CLR 353, a s 92 case. The case concerned a New South Wales regulation that fixed the maximum price for potatoes sold in that state. A number of Tasmanian potato growers challenged the constitutional validity of the regulation on the basis that it infringed s 92 of the Constitution by imposing a burden on interstate trade in potatoes. The High Court rejected the argument, saying that the sale had happened within the state and that any effect of the regulation was economic only, and therefore s 92 did not apply. Dixon CJ remarked (at 385–6): The distinction which is drawn between inter-State trade and the domestic trade of a State for the purpose of the power conferred upon the Parliament by s 51(i) to make laws with respect to trade and commerce with other countries and among the States may well be considered artificial and unsuitable to modern times. But it is a distinction adopted by the Constitution and it must be observed however much inter-dependence may now exist between the two divisions of trade and commerce which the Constitution thus distinguishes.

Later the High Court confirmed that the first sale of goods imported from another state could be federally regulated under s 51(i) (North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559; Permewan Wright [page 136] Consolidated Pty Ltd v Trewhitt (1979) 145 CLR 1); however, the approach of Dixon CJ to s 51(i) in Wragg v New South Wales (1953) 88 CLR 353 that emphasises the legalistic distinction between interstate and intrastate trade was endorsed in Attorney-General (WA); Ex rel

Ansett Transport v Australian National Airlines Commission (1976) 138 CLR 492. The case concerned the constitutional validity of regulations authorised by the Australian National Airlines Commission, a federal body which was authorised to provide interstate airline services. It had the power to make regulations enabling the government airline to offer services enhancing the efficiency, competitiveness and profitability of their interstate services. Exercising this power, the commission made regulations enabling the commencement of a service between Perth and Darwin, with a stopover in Port Hedland, Western Australia to pick up passengers and freight. The Minister for Justice, ‘on the relation of’ (that is, at the request of) Ansett, challenged the scheme on the basis that it authorised a federally-operated intrastate air service, and therefore could not be supported by s 51(i). A majority of the High Court, comprising Stephen, Mason and Murphy JJ held that the proposed scheme, insofar as it operated between the Northern Territory and other parts of the territory, and between the Northern Territory and parts of Western Australia, involved a constitutionally valid exercise of the territories power: s 122. However, in as much as the scheme contemplated an intrastate air transport journey between Perth and Port Hedland, it was constitutionally invalid. Gibbs J remarked (at 504): It has been held again and again — and in my respectful opinion, correctly held — that s 51(i) recognises a distinction between inter-State trade on the one hand and the domestic trade of the States on the other, and that this distinction must be maintained however much interdependence may now exist between those two divisions of trade and however artificial the distinction may be thought to be. It is also established that the incidental power cannot be given an operation that would obliterate the distinction.

Neither ‘necessity’ nor the economic interdependence of intrastate and interstate trade and commerce will provide a sufficient ground for the regulation of intrastate trade and commerce via s 51(i). This distinction between intrastate and interstate trade was again considered in Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR

194. The case concerned the constitutional validity of provisions of the Australian Industries Preservation Act 1906 (Cth), which made persons liable in respect of conduct engaged in with the intention or result of restraining interstate or overseas trade and commerce. Resale price maintenance — the practice whereby wholesalers or distributors of products require retailers to charge a particular price for those products — is such a restrictive trade practice. In this case, the plaintiffs alleged that as a consequence of a restrictive trade agreement between the wholesalers and the distributors that applied to tyre sales, they were unable to buy tyres and other rubber materials at the wholesale prices at which they would otherwise have been available or at prices other than current trade list prices. The tyre company defendants argued that the Act was unconstitutional in that a particular trade sale may be entirely intrastate, and s 51(i) could not validly apply to authorise a regulation operating in such circumstances. However, Taylor J said (at 213): [page 137] Once it is conceded that the Commonwealth Parliament may legislate to prohibit or declare unlawful contracts and combinations of a particular character in relation to trade and commerce with other countries and among the States it is not, I think, a valid objection that some contracts or combinations may be found to relate also to other matters [emphasis added; see also at 208–9, 210, 220, 228–9, 230–1].

The power could not authorise regulation of a purely intrastate arrangement, even if this had an economic effect on interstate trade: at 217; see further Bourke Appliances Pty Ltd v Wonder [1965] VR 511. In Redfern, Menzies J explained this conclusion in the following way (at 221): Commonwealth power over trade and commerce can only extend to such intra-State trade and commerce as is inseparably connected with inter-State trade and commerce, but full acceptance of this limitation is quite consistent with the Commonwealth power

to prohibit or regulate acts which relate to intra-State trade and commerce if they relate to inter-State or overseas trade and commerce as well … It is true that the constitutional distinction between overseas and inter-State trade and other trade would enable a person engaged in trade to make arrangements relating to his intra-State trade free from control under Commonwealth legislation but it does not enable such a person, by making arrangements relating to trade generally, to put these arrangements beyond Commonwealth control if they do relate to inter-State or overseas trade [emphasis added].

Characterisation A sufficient connection is required 6.20 In Re The Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397 the High Court summarised the principles of characterisation to be applied in determining whether a law is supported by s 51(i). CSL Pacific Shipping Inc, a company registered in Barbados, owned a ship called the CSL Pacific, which was registered in the Bahamas. It granted a time charter of the ship to an Australian company, which operated the ship in Australian waters between ports in a number of Australian states. CSL Pacific Shipping Inc was responsible for the supply of the ship’s crew. They hired Ukrainian crew and negotiated employment contracts with them under Ukrainian law. The ship operated under permits granted under s 286 of the Navigation Act 1912 (Cth), permits that did not impose any conditions relating to pay, terms and conditions of the crew. The Maritime Union of Australia and two other unions applied to the Australian Industrial Relations Commission (the AIRC) for a variation of an award to add CSL Pacific Shipping Inc, with the intention that the award offer its crew the same conditions granted to Australian crew. The AIRC took jurisdiction and CSL Shipping applied to the High Court for writs of prohibition and certiorari (as to which, see 20.21). CSL argued that it was not engaged in interstate trade or in trade between Australia and places outside Australia, and that use of

the ship in Australian waters by the Australian charterers did not draw the topic of the terms and conditions of the crew within s 51(i) of the Constitution. The High Court unanimously rejected this argument, and said: 35 It is well settled that the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates and that its practical as well as legal operation must be examined to determine whether [page 138] there is a sufficient connection between the law and the head of power in s 51(i) (Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16]; cf at 515 [89]). If a connection exists between the law and the relevant head of power the law will be ‘with respect to that head of power’ unless the connection is ‘so insubstantial, tenuous or distant that it cannot sensibly be described as a law with respect to that head of power’ (Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 369. See Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 79 per Dixon J). 36 It is also well settled that, in the exercise of the trade and commerce power, the Parliament can validly regulate the conduct of persons employed in those activities which form part of trade and commerce with other countries and among the States (Australian Steamships Limited v Malcolm (1914) 19 CLR 298 at 329–330; Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120 at 138, 152). A ship journeying for reward is in commerce; those who co-operate in the journeying of the ship are in commerce and the wages of those persons and the conditions of their employment relate to that commerce (cf the argument of Sir Garfield Barwick QC in R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 264).

The connection (or ‘connexion’, as it is sometimes referred to in the earlier cases) between the matter, thing or activity to be regulated (including intrastate matters) and interstate or overseas trade and commerce must be sufficient before s 51(i) can be invoked to support a federal law: O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565. The sufficiency of the connection depends on the context. In O’Sullivan, a sufficient connection was supplied by the fact that the production processes were objectively geared for export trade. However, while it is clear that this method of characterisation can enlarge the scope of the trade and commerce power, it must be emphasised again that the

High Court has previously held that a sufficient connection is not supplied by a mere economic relationship between the intrastate matter and interstate or overseas trade: see Attorney-General (WA); Ex rel Ansett Transport v Australian National Airlines Commission (1976) 138 CLR 492. Ebb and flow in the United States cases 6.21 The Australian approach to the sufficient connection requirement may be contrasted with the approach the United States Supreme Court has at times taken to the equivalent clause in its Constitution. Article I, s 8(2) of the United States Constitution gives Congress the power ‘to regulate commerce with foreign relations and among the several States …’. Traditionally, the United States commerce clause has been interpreted more broadly than s 51(i), enabling the regulation of intrastate activities which have an economic impact on interstate or overseas trade. So, the commerce clause has been used to regulate wheat production for personal and local consumption on the basis that home-consumed wheat would influence price and market conditions for interstate trade in wheat: Wickard v Filburn 317 US 111 at 128 (1942). The commerce power has been used to prohibit racial discrimination in motels that serve interstate travellers (Heart of Atlanta Motel v United States 379 US 241 (1964)) and to regulate local loan-sharking activity that might provide a source of revenue for organised interstate criminals: Perez v United States 402 US 146 (1971). More recently the United States Supreme Court has signalled an intention to wind back the scope of the commerce clause. An American law that prohibited the possession of firearms in a school zone was struck down as unconstitutional [page 139]

in United States v Lopez 514 US 549 (1995). The United States argued that the law could be supported by the commerce clause. In Lopez, the United States Supreme Court adopted a narrower test of characterisation than the traditional approach, saying that the intrastate thing or activity to be regulated must have a substantial, commercial effect on interstate or overseas commerce before it can be regulated under the commerce clause. Policy and purpose 6.22 In Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 Mason J said (at 16–17): The power to legislate with respect to trade and commerce with other countries, including as it does power to prohibit and regulate the exportation of goods from Australia, necessarily comprehends the power to select and identify the persons who engage in, and the goods which may become the subject of, that activity … It is then for Parliament in its wisdom … to decide who may export goods and what goods may be exported. The means and criteria by which this choice is to be made are for Parliament to decide. There is nothing in the subject matter of the constitutional power which justifies the implication of any limitation on Parliament’s power of selection.

The policy that motivates a law, which is irrelevant, should not be confused with the purpose of the law. While the court will disregard the policy of a law when it determines its validity under a head of power, it can have regard to its purpose, to determine whether it is sufficiently connected to an end within power or, as noted at 6.11–6.13, something incidental to the power. So the Commonwealth has enacted valid laws for many different trading and commercial purposes: for the purpose of setting up a trading enterprise (Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29); for the purpose of enhancing export trade (O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565); for the purpose of protecting interstate trade (Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194); or for the purpose of securing payment of statutory charges that are reasonably necessary for the regulation of air navigation (Airservices Australia v

Canadian Airlines (1999) 202 CLR 133).

Freedom of trade, commerce and intercourse among the states 6.23

Section 92 relevantly provides:

Trade within the Commonwealth to be free On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

A uniform system of customs duties was imposed at 4.00pm on 8 October 1901 (see Ha v New South Wales (1997) 189 CLR 465 at 491). The field of operation of the freedom 6.24 Section 92 limits the power of the Commonwealth and the states: James v Commonwealth (1936) 55 CLR 1. [page 140] ‘Trade’ and ‘commerce’ 6.25 In James v Commonwealth (1936) 55 CLR 1 at 60, the Privy Council stated that ‘trade and commerce mean the same thing in s 92 as in s 51(i)’. Consequently, in defining trade and commerce regard may be had to the definition of those terms in the trade and commerce power cases. ‘Intercourse’ 6.26 The meaning of ‘freedom of intercourse’ in s 92 was considered in R v Smithers; Ex parte Benson (1912) 16 CLR 99. A New South Wales law made it a criminal offence for persons convicted and sentenced to a term of imprisonment of one year or longer to enter New South

Wales within three years after completing their term of imprisonment. Benson was charged with the offence upon entering New South Wales three weeks after his release from a Victorian prison where he had served 10 months of a one-year sentence for ‘having insufficient lawful means of support’. The High Court quashed his conviction, with Isaacs J stressing that the borders of the states were not to operate as barriers to free movement in the Commonwealth. Griffith CJ and Barton J suggested that s 92 provides a right of access to the seat of government: at 108 and 109–10 respectively. Barton J observed: The reasoning of the Supreme Court of the United States in the case of Crandall v. State of Nevada 6 Wall 35, as expressed by Miller J … is as cogent in relation to the Constitution of this Commonwealth, as it was when applied to the Constitution of the United States. The whole of that memorable judgment is instructive upon the rights of the citizens of a federation. The reasoning shows that the creation of a federal union with one government and one legislature in respect of national affairs assures to every free citizen the right of access to the institutions, and of due participation in the activities of the nation. In my opinion the reasons for the decision are conclusive as to all parts of Australia.

Barton J’s observations have been approved in a number of cases: see, for example, Kruger v Commonwealth (1997) 190 CLR 1 at 69, 90, 116. For consideration of freedom of intercourse between the territories and the states, see Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 at 550. 6.27 In Gratwick v Johnson (1945) 70 CLR 1 the High Court considered the constitutional validity of an order made under defence regulations which prohibited interstate travel without a permit granted by a federal agency (travel for defence purposes was exempted). Johnson was refused a permit on the ground that her reasons for travel were insufficient, yet travelled to Perth from Sydney without a permit to visit her fiancé. Starke J said that s 92 referred to freedom ‘to pass to and fro among the States without burden, hindrance or restriction’: at 17. This statement was endorsed by a unanimous High Court in Cole v Whitfield (1988) 165 CLR 360 at 393.

6.28 In Cunliffe v Commonwealth (1994) 182 CLR 272, the plaintiffs, who were legal practitioners, challenged Pt 2A of the Migration Act 1958 (Cth) on a number of grounds, including that it infringed the freedom of intercourse established by s 92. Part 2A established a registration system for persons who gave assistance to or made representations on behalf of immigrants. A person who was not a registered agent was prohibited from giving immigration assistance. There were a [page 141] number of exceptions, including exceptions allowing lawyers to give immigration legal assistance. Sections 114G and 114H made it an offence for a person who was not a registered agent to ask for or receive a fee or other reward for the giving of immigration assistance (or representations), excepting immigration legal assistance (or representations). An annual fee was levied for registration. Brennan, Dawson, Toohey and McHugh JJ (Mason CJ, Gaudron and McHugh JJ dissenting) held that Pt 2A did not infringe the freedom of interstate intercourse in s 92 of the Constitution. Brennan J said that s 92 does not ‘purport to place interstate intercourse in a position where it is immune from the operation of laws of general application which are not aimed at interstate intercourse’. Since Pt 2A was not ‘aimed at’ interstate intercourse, it was not invalid: at 333. Dawson J said (at 366– 7): The plaintiffs submit that, in restricting the persons who may give immigration assistance or make immigration representations, the legislation restricts interstate intercourse in the form of communications by telephone, facsimile transmission or post, including communications with government officials. It is convenient to assume for the purpose of argument that interstate communications are involved in the giving or receiving of immigration assistance or the making of immigration representations and that some communications of that kind, which would otherwise have occurred,

will not occur if the legislature is validly in force … The freedom guaranteed by s 92 is freedom of movement, including communication, across State borders. But it does not confer immunity from all regulation. In pursuit of an object which is not the erection of State borders as barriers against freedom of intercourse, a law may incidentally restrict movement interstate, provided the means adopted are neither inappropriate nor disproportionate. The means adopted will be inappropriate or disproportionate, having regard to s 92, if the impediment to freedom of interstate intercourse is greater than is reasonably required to achieve the object of the legislation which is otherwise within power. Proportionality is in this instance a proper test of validity because freedom of intercourse amongst the States is a freedom which is constitutionally guaranteed and a law which has the purpose or effect of interfering with that freedom is invalid. The duty of determining invalidity is a duty which falls ultimately to the court. The achievement of the object of the legislation in question — the protection of aliens seeking advice or assistance with regard to permanent entry to the country — necessarily interferes with communication. Upon the assumption that some of that communication is between States, the legislation necessarily interferes with interstate communication. But it is clearly not the purpose of the law to impede interstate communication and the extent to which it does so is no more, in my view, than is reasonably required to achieve the purpose of the legislation. Any scheme which would seek to protect aliens against advice of an unsuitable kind must necessarily inhibit communication to some extent. The extent to which Pt 2A of the Migration Act does so is fairly incidental to the object of the legislation. For these reasons, Pt 2A of the Migration Act is in my view validly enacted.

Toohey J held that Pt 2A did not restrict movement across state borders: at 385. McHugh J held (at 396–7): Part 2A is not aimed at interstate intercourse. It is a general law regulating the activities of those who give ‘immigration assistance’. In so far as it restricts or burdens interstate communication, it does so incidentally as a consequence of prohibiting persons from giving immigration assistance unless those persons, subject to specified [page 142] exceptions, are registered as agents. It cannot be doubted that there is a real need to protect ‘entrance applicants’ from those who would exploit their vulnerability and from those who, though honest and well-meaning, do not have the competence to give appropriate advice and assistance to entrance applicants. The fears and hopes of entrance applicants make them peculiarly susceptible to exploitation; incompetent advice and assistance can often delay the realization of, and sometimes defeat, the

legitimate hopes and expectations of those who seek residence in this country. To prohibit persons from giving immigration assistance unless they register as agents is not a measure that is disproportionate to the need to protect entrance applicants from exploitation or incompetence.

6.29 The differing tests developed in Cunliffe were to some extent rationalised in AMS v AIF (1999) 199 CLR 160. In that case, the court considered the validity of provisions of Western Australian legislation that empowered the Western Australia Family Court to make orders preventing a parent from changing the principal residence of a child, and thereby preventing her from moving from Perth to Darwin. The ambit of s 92 was relevant because s 49 of the Northern Territory SelfGovernment Act 1978 (Cth) reproduces the s 92 guarantee but with reference to the Northern Territory: see 5.18. The court held that a law will not contravene s 92 if its incidental effect on interstate intercourse does not go beyond what is reasonably appropriate and adapted to some other legitimate end, having regard to the circumstances of the case: at 178 per Gleeson CJ, McHugh and Gummow JJ; Hayne J agreeing at 232–3; similarly Gaudron J at 193 and Kirby J at 217. In this case, the Western Australia Family Court order was directed to the legitimate objective of ensuring that both parents would still have practical access to the child of the partnership. 6.30 The AMS v AIF test was applied in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322. It was argued that New South Wales regulations (Pt 14 of the Legal Profession Regulation 2002 (NSW), made under s 216 of the Legal Profession Act 1987 (NSW)) prohibiting New South Wales barristers or solicitors from publishing advertisements for legal services relating to personal injury claims were invalid because they discriminated against freedom of intercourse. A majority of the High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) rejected this argument. Gummow J

summarised the principles as follows: 177 More recently, in AMS v AIF ((1999) 199 CLR 160 at 178–179 [43]–[45]), Gleeson CJ, McHugh and Gummow JJ said that, in working out the measure of freedom from interference which s 92 now is to be taken to provide in respect of interstate intercourse, the question becomes one whether the impediment imposed on that intercourse is greater than that reasonably required to achieve the objects of the legislation in question. Their Honours pointed out that the circumstance that the order made by the State Family Court in exercise of jurisdiction conferred by State legislation had a practical operation of hindering or restricting movement by the mother (by reason of the requirement that she not change the principal place of residence of the child) was not necessarily fatal to validity. Hayne J said in the same case ((1999) 199 CLR 160 at 233, [221]. See also at 249, [278] per Callinan J): I agree that custody and guardianship legislation may present a question whether the statute empowers the making of orders that have a practical effect of imposing upon freedom of intercourse an impediment greater than reasonably required to achieve the object of the legislation. [page 143] This approach should be accepted as the doctrine of the Court. … 179 In the present case, on the assumption that the prohibition imposed by Pt 14 may apply to interstate communication which answers the description of ‘intercourse’ in s 92, nevertheless, in that operation, Pt 14 is not invalid. This is because the effect of the prohibition on interstate communications is no greater than is reasonably required to achieve the object of Pt 14. That object could not be fully achieved if legal practitioners were permitted to direct from outside New South Wales to persons in New South Wales advertisements promoting the provision in New South Wales of the particular legal services with which the legislation is concerned.

Gleeson CJ and Heydon J also applied AMS v AIF in reaching their result: at 353. Hayne J upheld the law for similar reasons: at 463. At 482, Callinan J observed: Even if the advertisements were sought to be published interstate in any relevant sense, their prohibition would not be an impediment to or a burden upon any freedom of interstate trade, commerce or intercourse. Nothing in the contested provisions prohibits or restricts the provision of legal services in New South Wales by personal injury practitioners, wherever situated. At most, they regulate the manner in which clients may be solicited by persons practising as solicitors or barristers in New South

Wales. And nothing in them would operate to prevent the free passage of lawyers to and from other places in the Commonwealth to New South Wales. The position is the same whether the communications are made by profit or non-profit organisations and people, and whether they are involved in trade and commerce or not.

The scope of s 92 Cole v Whitfield 6.31 In Cole v Whitfield (1988) 165 CLR 360 the High Court said that s 92 ‘had not achieved a settled or accepted interpretation at any time since federation’, and this was ‘an unacceptable state of affairs’: at 384–5. The court stated (at 383–4): No provision of the Constitution has been the source of greater judicial concern or the subject of greater judicial effort than s 92.

In Cole v Whitfield the court took the opportunity to develop a new approach to s 92. The facts of the case will be considered below after a brief account of the development of the new approach. An historical and purposive approach 6.32 The High Court in Cole v Whitfield endorsed an historical and purposive approach to the interpretation of s 92 (at 385): Reference to history may be made, not for the purpose of substituting for the meaning of the words used the scope and effect — if such could be established — which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

After considering the progress of the draft clause through the Convention Debates, the High Court concluded that ‘the delimitation of the precise scope and [page 144]

effect of the guarantee was left as an unresolved task for the future’ (at 391). This enabled the High Court to develop a new approach to the section based on its purpose (at 391): The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny the Commonwealth and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries.

Freedom, but not absolute freedom 6.33 ‘Freedom, but not absolute freedom’ embodied a ‘principal goal’ of the federalists, who wanted to eliminate discriminatory burdens and preferences in intercolonial trade: at 392. Section 92, however, does not guarantee absolute freedom, ‘in the sense of anarchy’ (at 393–4) even though its words state a requirement of ‘absolute’ freedom (at 394): Implicit in the rejection of the notion that the words ‘absolutely free’ are to be read in the abstract as a guarantee of anarchy is the recognition of the need to identify the kinds or classes of legal burdens, restrictions, controls or standards from which the section guarantees the absolute freedom of interstate trade and commerce.

Freedom from ‘discriminatory burdens of a protectionist kind’ 6.34 The High Court then enunciated the principle that the freedom described in s 92 would be a freedom from ‘discriminatory burdens of a protectionist kind’ (at 394–5): The history of s 92 points to the elimination of protection as the object of s 92 in its application to trade and commerce. The means by which that object is achieved is the prohibition of measures which burden interstate trade and commerce and which also have the effect of conferring protection on intrastate trade and commerce of the same kind. The general hallmark of measures which contravene s 92 in this way is their effect as discriminatory against interstate trade and commerce in that protectionist sense. There can be no doubt that s 92 guarantees absolute freedom of interstate trade and commerce from all interstate border duties and other discriminatory fiscal charges levied on transactions of interstate trade and commerce … But the section cannot be easily confined to such matters because protection against interstate trade and commerce can be secured by non-fiscal measures [emphasis added].

Later in their judgment, their Honours expressed the test of s 92 infringement in the following way (at 408): In the case of a State law, the resolution of the case must start with a consideration of the nature of the law impugned. If it applies to all trade and commerce, interstate and intrastate alike, it is less likely to be protectionist than if there is discrimination appearing on the face of the law. But where the law in effect, if not in form, discriminates in favour of interstate trade, it will nevertheless offend against s 92 if the discrimination is of a protectionist character. A product or a service or a norm of commercial conduct will not ordinarily be grounded in protectionism and will not be prohibited by s 92. But if a law, which may be otherwise justified by reference to an object which is not protectionist, discriminates against interstate trade or commerce in pursuit of that object in a way or to an extent which warrants characterization of the law as protectionist, a court will be justified in concluding that it nonetheless offends s 92.

[page 145] The court will consider the purpose, form and substance (or ‘effect’) of any law challenged under s 92. The characterisation of laws alleged to infringe s 92 6.35 On the method of characterisation to be adopted when considering whether a law infringes s 92, the court concluded (at 399) that: The concept of discrimination in its application to interstate trade and commerce necessarily embraces factual discrimination as well as legal operation. A law will discriminate against interstate trade or commerce if the law on its face subjects that trade or commerce to a disability or disadvantage or if the factual operation of the law produces such a result.

The new approach was recommended on the basis that the guarantee in s 92 was to be treated as a guarantee of substance rather than of legislative form: at 382. So, if a law is discriminatory or protectionist in form or substance, it will be susceptible to a s 92 challenge: at 401, 408; see also Bath v Alston Holdings Pty Ltd (1988) 165

CLR 411 at 425, 432; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 466–7; Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182 at 199. The rejection of earlier approaches 6.36 In developing these principles, the High Court rejected a number of earlier approaches which did not give a substantive reading to s 92. The High Court expressly rejected the ‘criterion of operation’ approach adopted in Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1 and ‘in vogue during the twenty-five years that began’ with that decision. Under this approach, which may be readily compared to the discredited criterion of liability approach adopted in the excise cases (see 7.49), the court would consider the form of the challenged legislation only, and ignore its real or substantive effect. If the criterion of the operation of the challenged law was a fact, event or thing forming an essential part of trade, commerce or intercourse, and the law imposed a restriction, burden or liability on that fact, event or thing, then the law would infringe s 92. The court criticised this approach as being ‘highly artificial’ (at 401): It depends on the formal and obscure distinction between the essential attributes of trade and commerce and those facts, events or things which are inessential, incidental, or indeed, antecedent or preparatory to that trade and commerce.

The High Court specifically criticised a number of earlier cases which adopted the criterion of operation approach. One such case was Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390, where a tax on the keeping of hens for producing eggs for interstate trade was not seen as a tax on an essential attribute of that trade. Another was Mansell v Beck (1956) 95 CLR 550, in which legislation prohibited the sale of tickets in a foreign lottery and the acceptance of money in respect of the purchase, but the law was not struck down because it did not select an attribute of interstate trade, commerce or intercourse as the basis of its operation. The criterion of operation approach was

also criticised for creating ‘protectionism in reverse’ by providing, in some circumstances, preferential treatment to interstate trade to the detriment of local trade. [page 146] The facts and holding in Cole v Whitfield 6.37 In Cole v Whitfield, South Australian crayfish producers challenged the constitutional validity of Tasmanian regulations which prescribed a minimum size under which crayfish could not be caught or sold in Tasmania. It was argued that this regulation hindered free trade among the states, as similar restrictions did not apply in South Australia. In defence of the regulations, it was argued that the protection of Tasmanian crayfish, a scarce natural resource, was warranted, and the additional prohibition on sale was necessary to ensure compliance with the minimum size requirements. The court concluded that the Tasmanian regulations were not discriminatory in form — the regulations prohibiting the sale or possession of undersized crayfish applied equally to crayfish caught in Tasmania and South Australia. The court concluded that the prohibitions were ‘a necessary means of enforcing the prohibition against the catching of undersized crayfish in Tasmanian waters’, and the ‘State cannot undertake inspections other than random inspections and the local crayfish are indistinguishable from those imported from South Australia’: at 409–10. While these prohibitions placed a burden on interstate trade, the object or purpose of the regulations was the conservation of Tasmanian crayfish stock, not the protection of Tasmanian crayfish production or intrastate trade and commerce. The regulations did not have the effect of providing intrastate traders with a competitive advantage over interstate traders.

Applying Cole v Whitfield 6.38 The High Court handed down its decision in Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 on the same day as Cole v Whitfield. The case concerned provisions in Victorian legislation requiring that persons selling tobacco brought in from other states be licensed. The cost of the licence was a nominal amount, plus an amount equal to 25 per cent of the value of the tobacco sold by the applicant in the course of tobacco retailing in the relevant period other than tobacco purchased in Victoria from the holder of a wholesale tobacco merchant’s licence. The defendant imported tobacco from Queensland and sold it in Victoria, and the plaintiff sought an injunction in the Supreme Court of Victoria to restrain this unlicensed activity. The defendant argued that the regulation infringed s 92; that by requiring Victorian retailers who purchased their tobacco from interstate wholesalers to pay a higher licence fee, the law was discriminatory. The defendant said the law was also protectionist because it conferred an advantage on those holding Victorian licences. The High Court unanimously agreed that the mere requirement that a person be licensed in order to sell tobacco brought in from another state did not infringe s 92: Mason CJ, Brennan, Deane and Gaudron JJ at 424; Wilson, Dawson and Toohey JJ at 432. However, their Honours differed in their treatment of the effect of the provisions which imposed a different fee in respect of tobacco purchased from interstate wholesalers. Mason CJ, Brennan, Deane and Gaudron JJ, in a joint judgment, concluded that the provisions were discriminatory and protectionist ‘in form and substance’, [page 147]

by distinguishing tobacco ‘purchased in Victoria’ from a licensed wholesaler from tobacco purchased from other (interstate) wholesalers, and, in substance, by protecting local wholesalers from competition with interstate wholesalers: at 425–6. The majority stressed that the regulation infringed s 92 because it operated at the wholesale level — the point of supply of the tobacco to the Victorian retail market: at 429. Wilson, Dawson and Toohey JJ dissented in a joint judgment. Their Honours described the argument that the method of calculating the licence fees was discriminatory as having a ‘superficial plausibility’, but stressed that the legislation would not have a discriminatory effect on the sale of tobacco in Victoria. Focusing on the impact of the legislation at the retail level rather than at the wholesale level, the minority said that any advantage enjoyed by an interstate wholesaler who would not have to pay the franchise fee would be (at 432): … balanced by the fact that any Victorian retailer would have to pay a fee calculated by reference to its value when it is sold in Victoria and this fee will be reflected in the price of the product to the ultimate consumer. The legislation does not seek to operate to the advantage or disadvantage of the retailer according to whether he obtains his tobacco within or outside the State.

The legislation was not protectionist because ‘all trade in tobacco in Victoria is subjected to the expense of the franchise fee at one point or another and the economic effect of the tax is the same, whether the tobacco is acquired by the retailer from within or outside the State’: at 432. So, while the High Court has rejected a ‘criterion of operation’ approach in respect of s 92, it seems that some members of the court will be swayed by evidence of the effect of any state laws on trade at the point of entry into a state market, even though transactions which occur after goods have entered a state market may ameliorate the discriminatory or protectionist effect of the relevant state law.

Compulsory acquisition schemes 6.39 The constitutional validity of a state scheme for the compulsory acquisition and marketing of barley was considered in Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182. After the decision of the High Court in Cole v Whitfield, the Barley Marketing Board advised maltsters and brewers that it would no longer divest malting grade barley. Shortly after receiving this advice, the first and second defendants, barley producers, contracted with the third defendant, a maltster in Victoria, to process their barley. The board commenced proceedings in the Supreme Court of New South Wales for a declaration that the contract was void, on the basis that the ownership of the first and second defendants’ barley was vested in the board under the state scheme. The defendants contended that the scheme was invalid under s 92 of the Constitution, on the basis that it was discriminatory and protectionist. In particular, it was argued that the scheme, by seeking to ensure a minimum price for producers, necessarily protected smaller producers by giving them more bargaining power against large purchasers, especially interstate maltsters. The board argued that the scheme was not discriminatory or protectionist, and that ‘any burden on interstate trade flowing from the operation [page 148] of the Act is incidental to the attainment of a non-protectionist object and is not disproportionate to the attainment of that object’. The High Court treated the defendants’ submission in the following way (at 202): … this element of ‘protection’ in favour of growers, especially smaller growers, is not accompanied by any element of discrimination against the interstate trade in barley or interstate traders in that commodity. The scheme may terminate an advantage

formerly enjoyed by New South Wales border growers but that is not to the point. The curious consequence of establishing a New South Wales minimum price for malting grade barley (which is a higher price in virtue of the plaintiff’s increased bargaining power than it would otherwise be) is that it might well enhance the competitive selling position of growers outside New South Wales. In so far as the marketing scheme terminates an advantage in the form of lower prices obtainable by Victorian maltsters from New South Wales border growers — this being an avowed object of the divesting of malting grade barley — those maltsters may now pay more than they did when they purchased from border growers in that State, but they are treated equally with maltsters in that State. In-State and out-of-State maltsters must buy from the plaintiff if they wish to make purchases of barley produced in New South Wales. Accordingly, there is no discrimination against the out-of-State maltster.

Denial of direct access to New South Wales barley growers did not involve discrimination against interstate traders because it did not exclude anyone from the market and did not lead to any difference in the price of the barley to the maltsters in the two states. The court distinguished this situation from a situation where state legislation with a protectionist motive might discriminate against interstate traders (at 204): At the same time it could scarcely be denied that a prohibition or restriction upon the export of a commodity from a State with a view to conferring an advantage or benefit on producers within the State over out-of-State producers would amount to discrimination in a protectionist sense. If a State having a scarce resource or the most inexpensive supplies of a raw material needed for a manufacturing operation prohibited the export of material from that resource or those supplies in order to confer a benefit on its domestic manufacturers as against out-of-State competitors, that prohibition would discriminate against interstate trade and commerce in a protectionist sense. However, in the present case, there is no evidence to suggest that the marketing scheme operates in such a way as to restrict the supply of barley to interstate maltsters. They are able to compete on an even footing with domestic maltsters in purchasing malting grade barley from the plaintiff.

The court concluded that the barley marketing scheme did not impose a discriminatory burden of a protectionist kind. Permissible exceptions to the Cole v Whitfield test 6.40 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 is an important decision because it provides some indication of the basis

upon which the court will uphold state laws challenged under s 92 after Cole v Whitfield. The case concerned South Australian regulations which prescribed a refund amount of 15c applying to non-refillable glass beer bottles and metal beer containers. A refund of 4c applied to refillable glass beer bottles. Refunds were [page 149] paid at point of sale. They also argued that the regulations required interstate beer suppliers to make their own arrangements for the collection of bottles for refilling. Castlemaine Tooheys argued that this scheme was discriminatory and protectionist, on the basis that the different return rates for the different types of beer bottles discriminated against interstate producers who bottled their beer in non-refillable bottles; and that the requirement that suppliers make their own arrangements for the collection of their bottles imposed a significant burden on interstate traders in a price-sensitive commodity. Evidence was led by the plaintiff that the object and effect of the legislation was to disadvantage trade in beer in non-refillable bottles. In response, South Australia argued that the objectives of the legislation were the control of litter and the preservation of natural gas resources. The legislation applied to both local and interstate producers, and any difficulty in entry to the South Australian market was the result of the plaintiff’s manufacturing process. Mason CJ, Brennan, Deane, Dawson and Toohey JJ delivered a joint judgment, and held that the legislation was discriminatory because of the different rates of refund and the collection requirements imposed on interstate traders who used non-refillable bottles, and also that it

was likely that the plaintiff would have continued to increase its market share in South Australia if the regulations had not come into force, and the practical effect of the scheme was to prevent the plaintiff’s incursion into the South Australian packaged beer market. The legislation was also protectionist because it gave South Australian brewers a competitive advantage by raising the price and production costs of the plaintiff’s beer. Their Honours treated the issue of ‘protectionism’ in the following way (at 471–2): … the fact that a law regulates interstate and intrastate trade even-handedly by imposing a prohibition or requirement which takes effect without regard to considerations of whether the trade affected is interstate or intrastate suggests that the law is not protectionist. Likewise, the fact that a law, whose effects include the burdening of the trade of a particular interstate trader, does not necessarily benefit local traders, as distinct from other interstate traders, suggests that the purposes of the law are not protectionist. On the other hand, where a law on its face is apt to secure a legitimate object but its effect is to impose a discriminatory burden upon interstate trade as against interstate trade, the existence of reasonable non-discriminatory means of securing that legitimate object suggests that the purpose of the law is not to achieve that legitimate object but rather to effect a form of prohibited discrimination. There is also some room for a comparison, if not a balancing, of means and objects in the context of s 92. The fact that a law imposes a burden upon interstate trade and commerce that is not incidental or that is disproportionate to the attainment of the legitimate object of the law may show that the true purpose of the law is not to attain that object but to impose the impermissible burden.

Legislation which discriminates against interstate traders may be valid if the burdens imposed on interstate trade are ‘a necessary means for achieving the conservation of the natural resource or other public object which the legislation seeks to protect or promote’ (at 468). The states have a legitimate interest in addressing social and economic problems (at 472) and in implementing regulation with the purpose of enhancing the safety, health and well being of the community (at 469). [page 150]

Mason CJ, Brennan, Deane, Dawson and Toohey JJ said (at 472): Accordingly, interstate trade, as well as intrastate trade, must submit to such regulation as may be necessary or appropriate and adapted either to the protection of the community from a real danger or threat to its welfare or to the enhancement of its welfare.

The question is whether the regulatory means adopted by the state is proportionate to the ends to which the legislation is directed (at 473). But while the court will accept that the legislature had legitimate reasons for pursuing the relevant objectives, the court will consider whether there are any reasonable or adequate alternatives available to the means adopted by the legislature. If necessary, the court will compare, if not balance, the means adopted and the ends achieved (at 472): The fact that a law imposes a burden upon interstate trade and commerce that is not incidental or that is disproportionate to the attainment of the legitimate object of the law may show that the true purpose of the law is not to attain that object but to impose the impermissible burden.

Here, the question was whether the scheme was an appropriate and adapted response to the need for litter control and conservation of the state’s gas resources. The court concluded that the measures were not proportionate. The difference in refund rates between non-refillable bottles and refillable bottles was in excess of what was necessary to ensure the success of the objective of ensuring the return of the nonrefillable bottles. The fact that a collection system had worked well previously did not justify a system of retail return for non-refillable bottles that did not also apply to refillable bottles. Here, the measures taken were not considered to be a proportionate response to the legitimate aims of controlling litter and preventing the depletion of gas resources. Only ‘extremely meagre’ evidence could be led to support the state’s argument that the legislation served the purpose of protecting finite energy resources — any difference in energy consumption caused by a shift in production methods by South

Australian brewers to non-refillable bottles would only result in an increase in gas consumption measurable in tenths of a per cent — and, at any rate, the production of non-refillable bottles interstate would not cause a depletion of South Australian natural gas resources: at 476–7. A proportionate response might have been to prohibit the sale of beer in the state in non-refillable bottles produced in the state, or perhaps to prohibit the sale of beer in bottles made using natural gas: at 477. Gaudron and McHugh JJ agreed, in a substantially similar judgment. However, their Honours dealt with the concept of ‘discrimination’ in the following way (at 479): To justify a discrimination as relevant to an objective it is necessary to show that the distinction made is a real distinction. That involves the identification of a difference or differences explaining the distinction. It also involves showing a connexion between the distinction and the objective such that the object is reasonably capable of being seen as likely to be achieved — other than to an extent that is trifling or insignificant — by different treatment based on that distinction.

Here, once again, South Australia had only led ‘meagre’ evidence justifying the law, and the law was not proportionate to objectives which might justify the discrimination. The law did not ameliorate the problem of conserving natural [page 151] gas resources other than to a trifling extent, and the litter problems referable to non-refillable bottles did not differ from those referable to refillable bottles: at 478–80. Consequently, the regulations were not a permissible exception to the test of s 92 infringement enunciated by the court in Cole v Whitfield. 6.41 In APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, it was argued that New South Wales regulations that

prohibited a barrister or solicitor from publishing advertisements for legal services relating to personal injury claims were invalid because they discriminated against interstate trade and commerce in a protectionist sense (the ‘freedom of intercourse’ argument advanced in this case is set out at 6.30). Gleeson CJ and Heydon J accepted that advertising for the provision of legal services was a type of trade or commerce, but that the regulations were not protectionist (at 353). Gummow J gave similar reasons (at 391), as did Hayne J (at 463) and Callinan J (at 481–2). 6.42 The sometimes very detailed consideration of competing economic and social considerations that is necessary to resolve a s 92 case in the post-Cole v Whitfield world was well evident in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418. Betfair operated a betting exchange in Tasmania using a telephone call centre and computers connected to the internet. Western Australian legislation amended in 2006 made wagering through a betting exchange illegal and made wagering on races on Western Australian race fields illegal without a permit. Betfair’s application for such a permit was rejected and they challenged the validity of the Western Australian betting controls on the basis that they infringed s 92. The court held that the Western Australian provisions were invalid because they imposed a discriminatory burden on interstate trade of a protectionist character by operating to protect Western Australian bookmakers from the competition that Betfair would present. Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ said: 9 The plaintiffs (with the support of Tasmania, one of the interveners) challenge the validity of the relevant provisions of the law of Western Australia, principally by reliance upon s 92 of the Constitution. They put their case for the application of s 92 upon two bases. The first is that the legislation of Western Australia impermissibly precludes, with respect to internet transactions having a geographical connection with that State, that increase in competition, on the supply side, within the national market for betting services which would be provided, on the demand side, by the presence within Western Australia at any one time of such persons as Mr Erceg [one of the

plaintiffs, a gambler who used the Betfair service]. The second is that the legislation also applies to deny to the out-of-State operator in the position of Betfair access for the purposes of its Australia-wide operations to information respecting race fields which is generated by racing operators in Western Australia, whilst in-State wagering operators do not suffer that disadvantage. As will appear in these reasons, the case formulated by the plaintiffs in these terms should be accepted. Continuity, change and s 92 10 All parties accept as the source of present doctrine respecting s 92 what was said twenty years ago in Cole v Whitfield (1988) 165 CLR 360 and further developed and applied in the authorities decided shortly thereafter, namely Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 and Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182.

[page 152] After reviewing the history of free trade policies in the Australian colonies in the 19th century and reviewing the United States authorities on freedom of trade and commerce, their Honours reviewed the Tasmanian legislation, which embraced betting exchanges, and the Western Australian legislation, which was designed to prevent their operation in Western Australia. The analysis included detailed reference to government reports on gambling that pointed to the increasing market share of internet gambling, and the risk that internet gambling posed to state revenues derived from traditional bookmaking: Acceptable explanation or justification? 106 The reasons for the policy adopted by Western Australia were spelled out in the legislative preamble as being ‘to prohibit betting through, and the establishment and operation of, betting exchanges’. Those reasons had been expressed earlier by an answer given by the Minister for Racing and Gambling to a question asked in the Legislative Assembly on 4 May 2005. The Minister had said: The racing industry is very important to the state of Western Australia. It is one of the six biggest industries in the state. It employs thousands of citizens across the state. It provides a great deal of interest and enjoyment for many hundreds of thousands of Western Australian citizens.

… The reasons we are opposed to betting services are that, first, they make no contribution to the racing industry in Australia and, secondly, betting exchanges allow punters to bet on any of the racing codes and lose. That means that the integrity of the racing industry is put under threat by betting exchanges. They are absolutely opposed by all three racing industry codes in Western Australia. They are opposed by the government. They are opposed by virtually all state governments. However, we have a problem: we cannot control the Internet. We have written to the federal government and to the minister for communications asking whether she will ensure that betting exchanges are made illegal under the Interactive Gambling Act. She has declined to do so. (emphasis added) 107 First, as to the absence of contribution to the racing industry in Australia, so far as that may be relevant. The evidence shows that by agreement with the Victorian regulator, Betfair undertook to return an amount equivalent to 1 per cent of the value of bets taken by it on races in Victoria; this is the same level of return as that required from bookmakers in that State. Betfair has been meeting that obligation. There is no reason to doubt the assertion by Betfair that it remains ready to undertake obligations of this kind in Western Australia and to ensure that the organisers of races in that State obtain a reward from Betfair as well as from other wagering operators in that State. 108 In its submissions Western Australia also contended that any practical effect of the impugned legislation in protecting the turnover of in-State operators from diminution as a result of competition from Betfair, with consequent prejudice to the returns to the racing industry and in-State revenue provided by it, could not be protectionist in nature. But a proposition which asserts that an object of revenue protection of this kind may justify a law which discriminates against interstate trade is contrary to authority: Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 at 426–427; Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63 at 80. And it is contrary to principle, for such a justification, if allowable, would support the re-introduction of customs duties at State borders. 109 Much effort on this branch of the case was expended in developing the second reason to which the Minister referred in the above passage. This was to the effect that Betfair’s operations, if permitted by the law of Western Australia, would or would [page 153] be likely to have, or were reasonably apprehended to have, an adverse effect upon the integrity of the racing industry conducted in that State. It was said to be easier to lose a multiparty sporting event than to win it. To permit punters to back an entrant to lose rather than to win, as does Betfair, was said in the Report to pose a threat to the integrity of the process above that which might be thought to be present already in the

racing industry. It was this alleged threat to the integrity of the racing industry which was said by Western Australia to justify the course taken by its legislation. 110 What is involved here is an attempt at an evidentiary level to measure something of an imponderable. But, allowing for the presence to some degree of a threat of this nature, a method of countering it, which is an alternative to that offered by prohibition of betting exchanges, must be effective but non-discriminatory regulation. That was the legislative choice taken by Tasmania and it cannot be said that that taken by Western Australia is necessary for the protection of the integrity of the racing industry of that State. In other words, the prohibitory State law is not proportionate; it is not appropriate and adapted to the propounded legislative object …

Heydon J also held the Western Australian provisions were invalid. Further consolidation of Cole v Whitfield 6.43 After their success in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418, Betfair challenged the constitutional validity of provisions of the Racing Administration Act 1998 (NSW), which imposed a fee for the use of betting information in relation to New South Wales races, in Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217. Specifically, Betfair challenged s 33A(2) of the Act, which allowed Racing New South Wales (RNSW) or Harness Racing New South Wales (HRNSW) to impose a fee of 1.5 per cent of a wagering operator’s ‘wagering turnover’ for the use of New South Wales race field information. A ‘wagering operator’ is a bookmaker, totalisator or (in the case of Betfair) a betting exchange. ‘Wagering turnover’ is defined as ‘the total amount of wagers made on the backers side of wagering transactions made in connection with that race or class of races’: cl 14(1) of the Racing Administration Regulations 2005 (NSW). The ‘use of’ race field information covers the publication, communication, record or acknowledgment or confirmation of any ‘NSW race field information’: s 32A. ‘NSW race field information’ means the ‘information that identifies, or is capable of identifying, the name or number of a horse or greyhound’ that has been nominated for, or is otherwise taking part at a race meeting on a licensed racecourse in New South Wales; or has been scratched or withdrawn

from a race held at a race meeting on a licensed racecourse in New South Wales: s 27. Section 33 of the Act proscribed wagering operators from using New South Wales race field information unless approval has been granted by RNSW or HRNSW under s 33A. One of the conditions for approval by the relevant racing control body is the payment of a fee by the wagering operator (s 33A(2)(a)) of no more than 1.5 per cent of its ‘wagering turnover’ (see cl 16(2) of the regulations). 6.44 Importantly, RNSW and HRNSW were forbidden from having regard to the location of the head office or principal place of business when determining an application for a licence under the Act (cl 20(b) of the regulations). Betfair nevertheless challenged s 33A(2) on the basis that the fixed fee of 1.5 per cent had a greater impact on it because it had lower costs than bookmakers and totalisators. Betfair is a lower cost operator because it does not take commission on all back [page 154] bets; only those bets which are successful. This meant that a greater percentage of Betfair’s gross revenue would be taken when compared with bookmakers and totalisators with a higher profit margin. It was estimated that the 1.5 per cent fee represented between 54 and 61 per cent of Betfair’s commission, while the fee only represented 10 per cent of TAB’s commission (see at 284 per Kiefel J; also at 274 per Heydon J). Despite the inequitable effect of the fee on Betfair compared to that of its competitors, the High Court rejected the s 92 challenge. Betfair could not establish that the law was ‘discriminatory’ or ‘protectionist’ in character. As French CJ, Gummow, Hayne, Crennan and Bell JJ noted (at 262–3): The standard fee for use of NSW race field information is imposed by RNSW and

HRNSW by reference to the total amount of wagers made on the backers side and has several distinct characteristics. First, on its face, the fee is neutral as between the various wagering operators, the bookmakers, totalizators such as TAB and Betfair. Secondly, the fee is imposed without distinction between the activities of wagering operators and customers located in New South Wales or elsewhere. Thirdly, no distinction is drawn between use of NSW race field information in wagering activities which form part of trade between the States and those which do not do so. It will be necessary later in these reasons to refer further to this facial neutrality of the standard fee.

Although the imposition of the fee produced an adverse effect between competitors, the majority emphasised that not every measure which has that effect will attract the operation of s 92. Indeed, s 92 will only be engaged where the impugned Act falls within the ‘confined area’ identified in Cole v Whitfield at 406–7 per the court. This was explained by French CJ, Gummow, Hayne, Crennan and Bell JJ at 265. It was for Betfair to establish that the ‘fee conditions imposed upon it by RNSW and HRNSW were unauthorised because their practical effect is to discriminate against interstate trade and thereby protect intrastate trade of the same kind’ (citing Cole v Whitfield at 407, 409). Their Honours thereby confirmed the conventional understanding of Cole v Whitfield (see 6.34 above): ‘It is the concept of protectionism which supplies the criterion by which discriminatory laws may be classified as rendering less than absolutely free trade and commerce among the States’: at 265. 6.45 French CJ, Gummow, Hayne, Crennan and Bell JJ rejected Betfair’s argument. Their Honours said: 52 The questions presented in the present appeal … (are): (i) whether the practical operation of the fee structure shows an objective intention to treat interstate and intrastate trade in wagering transactions alike, notwithstanding a relevant difference between them; and, if so, (ii) whether the fee structure burdens interstate trade to its competitive disadvantage; and, if so, (iii) whether that burden nonetheless is reasonably necessary for New South Wales to achieve a legitimate non-protectionist purpose. If an affirmative answer were given to (i) and (ii) then, unless (iii) be answered in the negative, the conclusion would be that the fee structure gives to intrastate wagering transactions which utilise NSW race field information such a competitive or market advantage over those interstate wagering transactions which

also do so, as to raise a protective barrier around those intrastate transactions. For the reasons which follow the case presented by Betfair fails at step (i), and, in any event, at step (ii), so step (iii) is not presented for decision. 53 Betfair relied upon the decision in Castlemaine Tooheys, that the law of South Australia prescribing 15 cents as the refund amount in relation to non-refillable beer bottles, where four cents was payable for refillable bottles used by the competitors of [page 155] the plaintiffs, the Bond brewing companies, was contrary to s 92 of the Constitution. It was said in the joint reasons that this regime ‘subjected the Bond brewing companies’ interstate trade to serious competitive disadvantages by reason of their selling beer in non-refillable bottles’, and that: The practical effect of the [regime] was to prevent the Bond brewing companies obtaining a market share in packaged beer in South Australia in excess of 1 per cent whilst their competitors used refillable beer bottles. It is uneconomic for the Bond brewing companies to convert their existing interstate plants to use refillable bottles. 54 These conclusions, however, were facilitated by what was laid out in pars 77 and 79 of the Case Stated (in Castlemaine Tooheys). This has no counterpart with respect to the case presented by Betfair. Paragraph 77 read: By reason of the unavailability to the Bond Brewing Companies in and subsequent to October 1986 of plant capable of use for refilling refillable bottles for the South Australian market combined with its extra transport costs of returning bottles to the breweries for refilling, the Bond Brewing Companies would incur substantial extra costs in using refillable bottles for that market compared with its major competitors in that market. By reason of the increased prices that it would be necessary to charge for the products of the Bond Brewing Companies to recover these increased costs, the Bond Brewing Companies would be unable to obtain a market share in excess of about 1 per cent of the market in packaged beer in South Australia even if they used refillable bottles for their products. Paragraph 79 read: The object and effect of the [regime] has been to make the sale of beer in non-refillable bottles commercially disadvantageous. 55 In the present case, the circumstance that the fee structure adopted by Betfair for its wagering operations differed from that adopted by other wagering operators did not

constitute a relevant difference which, consistently with s 92, could not be disregarded by treating alike interstate and intrastate wagering transactions utilising NSW race field information. All that Betfair established was that by maintaining its current pricing structures, and given its low margin, the fees imposed by RNSW and HRNSW absorbed a higher proportion of its turnover on interstate transactions than that of the turnover of TAB, the principal intrastate wagering operator. 56 Nor did Betfair demonstrate that the likely practical effect of the imposition of the fees will be loss to it of market share or profit or an impediment to increasing that share or profit. As the Full Court (of the Federal Court, below) emphasised, Betfair did not: seek to show that, as a matter of fact, it is likely that this possible effect will be sufficiently significant in the demand side of the market — which is assumed to be made up of both sophisticated and unsophisticated punters — to affect adversely Betfair’s niche in the supply side of the market — which includes operators on a higher margin than Betfair who must also choose whether or not to pass on the 1.5% fee to punters. We are unable to conclude that, notwithstanding the ex facie uniform application of the fee, it is apt to diminish Betfair’s competitive advantages in a material way.

Although the 1.5 per cent fee had a greater impact on Betfair’s business than its competitors, s 33A(2) of the Racing Administration Act 1998 (NSW) did not impose a discriminatory burden of a protectionist kind. See further Heydon J at 274–7 and Kiefel J at 294–6. Betfair’s appeal was dismissed. [page 156] 6.46 In Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298, Sportsbet, which had its registered office and principal place of business in the Northern Territory, challenged s 33A(2) of the Racing Administration Act 1998 (NSW). As noted at 6.43, s 33A(2) conferred a power on RNSW and HRNSW, as the relevant thoroughbred and harness racing control bodies in New South Wales, to approve use of New South Wales betting information upon payment of a fee. Section 92 does not protect territory traders from discriminatory/protectionist

measures, but s 49 of the Northern Territory Self-Government Act 1978 (Cth) confers s 92-style protection on territory traders (see 5.18 and 6.29). Another point of distinction between Sportsbet and Betfair was that Sportsbet is not a betting exchange operator but a corporate bookmaker (meaning that its ‘wagering turnover’ was different to that of Betfair’s): at 315. Otherwise, the reasons in the two cases are to be read together: at 313. The High Court rejected Sportsbet’s argument that the law breached s 49: 16 The substance of the case pleaded by Sportsbet was: (a) that the State legislation imposed a burden or disadvantage on trade and commerce between the Northern Territory and New South Wales which was not imposed on intrastate trade and commerce of the same kind; and (b) that (i) the legal effect, or (ii) the practical effect, of the State legislation was to protect wagering operators ‘in’ New South Wales ‘from competition from wagering operators in the [Northern Territory]’. 17 The focus of the pleading upon the situs of wagering operators in a particular political and geographic subdivision in Australia tends to mislead where, as is the case here, wagering operators and their customers conduct transactions across the borders of those subdivisions, as well as wholly within them. It misleads by distracting attention from the impact of the New South Wales law, as a legal and practical matter, upon trade and commerce represented by wagering operations conducted between the Territory and the State. Further, the New South Wales law, as emphasised in the reasons in the Betfair appeal, is facially neutral. Its legal effect is not discriminatory in a protectionist sense. The question then becomes whether, as a matter of its practical operation or effect, the Act does have that character. … 20 The term ‘practical operation’, in its present use as a criterion of constitutional validity, is not ‘virtually devoid of content’. However, its imprecision in meaning and application is apt to generate significant differences of opinion when the term is applied in particular disputes. Both in this case and Betfair the appellant fixes upon the practical operation of the fee structure in the State licensing systems upon its business operations as an interstate (or extra-Territorial) trader and contrasts this with the position of what it categorises as one or more competitors who are intrastate traders. But the minute analysis of business models, as applied from time to time, which this approach invites distracts attention from the concern of s 92 with effect upon trade, not prejudice to particular traders.

French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ examined whether the practical operation of the fee condition upon Sportsbet’s

on-course competitors in New South Wales was discriminatory in a protectionist sense. Their Honours found that the measure did not perpetuate intrastate protectionism: 26 The fee condition imposed by RNSW gave to all wagering operators the benefit of an exemption in respect of the first $5 million of turnover. Locally based wagering operators, such as on-course bookmakers, with a turnover of less than $5 million were not liable to pay the fee. Out of State based wagering operators likewise escaped liability if their turnover was below the threshold. All operators paid the [page 157] fee on so much of their turnover as exceeded $5 million. With respect to the HRNSW fee, those operators with a turnover in excess of $2.5 million on New South Wales harness racing paid a fee on the whole amount of turnover. 27 Respecting the practical operation of the $5 million and $2.5 million exemptions, there was evidence that: (a) 17 locally based wagering operators (TAB and 16 on-course bookmakers) and 22 wagering operators based outside the State (seven totalizator operators, Betfair, ten corporate bookmakers and four on-course bookmakers) have a turnover on New South Wales thoroughbred racing in excess of $5 million and thus paid the fee; and (b) the fee would be payable on approximately the same percentage of wagering turnover, within and without the State, on New South Wales harness racing (95.9 per cent to 98.7 per cent). The practical operation of the thresholds is not to provide a protectionist measure to insulate New South Wales on-course bookmakers from the economic burden of the fee. Both intrastate and out of State competitors could benefit from the threshold, and, in any event, there was no necessary connection between the location from which a wagering operator conducted its business and the turnover of that business.

Heydon J similarly held that the impugned Act imposed the burden uniformly on interstate and intrastate traders: at 328–9. Sportsbet drew attention to an arrangement between RNSW and HRNSW under which TAB Ltd, a company holding an exclusive licence to operate a totalisator in New South Wales, was released from obligations to pay the fees under s 33A(2) for a nine-month period. However, the High Court concluded that this arrangement did not result in discrimination against interstate trade, ‘let alone of a protectionist nature’: at [36]. The temporary release of TAB’s

obligation to pay the 1.5 per cent fee was in settlement of a contractual dispute which had arisen because TAB had already paid for a ‘royalty-free licence’ to use ‘NSW race field information’ under a separate agreement: at [30]. Relevantly, the amount ‘by way of compromise under [the Release] was much less than the amount payable by TAB, by way of the fee under its approval under [the Act]. TAB did not obtain a discriminatory advantage, protectionist or otherwise over Sportsbet by virtue of the payment to TAB’ because the compromise in the release ‘was a form of vindication of the preexisting entitlement of TAB’: at [33]. Heydon J also agreed that this argument should fail: at 329–30. The appeal was dismissed.

[page 159]

Chapter Seven

Taxation under the Constitution Introduction The format of this chapter 7.1 This chapter outlines Australian constitutional jurisprudence relating to the taxation power (Constitution s 51(ii)), limitations on that power (both within s 51(ii) and also by the operation of s 99), the rule against ‘tacking’ in s 55 of the Constitution, the Commonwealth’s exclusive power to levy excise duties (Constitution s 90) and the prohibition against Commonwealth taxes on state property and state taxes on Commonwealth property (Constitution s 114). Transition from colonies to Commonwealth 7.2 Colonial anxiety to ensure equal treatment of the states in the new Commonwealth was resolved in a series of restrictions placed on the federal taxation power that are considered later in this chapter. So, federal tax laws must not discriminate between states or parts of states (s 51(ii)), and to prevent reverse discrimination the Commonwealth cannot provide legislative preferences to states or parts of states: s 99 (the preference prohibition in s 99 also applies to laws supported by the trade and commerce power). In addition, the Commonwealth may not enact tax laws that contain non-taxing provisions: s 55. Further to these restrictions on the taxation power, the Senate enjoys power to withhold its consent to parliamentary bills (s 53), a power that was

used with devastating effect in the constitutional crisis of 1975 (see 1.16). As well, s 114 prohibits the Commonwealth from taxing state property (s 114 also prohibits the states from taxing Commonwealth property). The weak fiscal position of the states 7.3 The Commonwealth has covered the field in many areas of taxation, and expansive construction of the Commonwealth’s taxation and grants powers since Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) (1920) 28 CLR 129 (see 3.8) has resulted in federal dominance in revenue raising, and therefore power: South Australia v Commonwealth (Uniform Tax case (No 1)) (1942) 65 CLR 373; Victoria v Commonwealth (Uniform Tax case (No 2)) (1957) 99 CLR 575; see further 14.14–14.17. [page 160]

‘Taxation’ The classic definition of a tax 7.4 The classic definition of a tax comes from the judgment of Latham CJ in Matthews v The Chicory Marketing Board (Vic) (1938) 60 CLR 263. The Chicory Marketing Board was authorised by a Victorian statute to impose a levy of £1 on producers for every half acre of land they planted with chicory. It was argued that the levy was an excise (an inland tax on the production of goods) and therefore invalid because the Commonwealth has exclusive power to levy excise duties under s 90 of the Constitution. The court struck down the levy on this ground. Latham CJ formulated a definition of a ‘tax’ that has been repeatedly cited as authoritative; that a ‘tax’ is ‘a compulsory exaction

of money by a public authority for public purposes, enforceable by law, and not a payment for services rendered’: at 276. (It had previously been established that there can be no taxation except under the authority of statute: Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 433–4; see also Williams v Commonwealth [2012] HCA 23; (2012) 86 ALJR 713 at [135], [398], [511].) The Matthews test is not an exhaustive test 7.5 In Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 476, the High Court confirmed that a law that adheres to that description would properly be characterised as a tax. However, this test is not an exhaustive statement of what constitutes a tax. As Mason CJ, Deane, Toohey and Gaudron JJ explained in Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 at 586: In Air Caledonie International v Commonwealth ((1988) 165 CLR 462 at 466–7), this court affirmed that it ‘suffice[s] to stamp an exaction of money with the character of a tax’ if those positive attributes are present in combination with the negative attribute identified by Latham CJ in Matthews v Chicory Marketing Board (Vic) ((1938) 60 CLR 263 at 276), namely, that the levy is ‘not a payment for services rendered’. But, as the court emphasized in Air Caledonie, this proposition is not to be applied as an exhaustive definition of a tax (at 467). In particular, the negative attribute ‘not a payment for services rendered’ should be seen ‘as intended to be but an example of various special types of exaction which may not be taxes even though the positive attributes … are all present’ (at 467) for the reason that the presence of other characteristics may indicate that the exaction is not in its true character a tax.

7.6 The Matthews test has been qualified in more recent decisions. Air Caledonie International v Commonwealth (1988) 165 CLR 462 concerned a constitutional challenge to a provision in federal migration legislation that levied a fee on inbound international passengers to fund the administration of immigration clearance. The levy applied indiscriminately to returning citizens and non-citizens. The law directed international air operators to collect the fee and, if

payment was not collected, the amount was payable by the operator to the Commonwealth. The Commonwealth defended the law imposing the fee on the basis that it was [page 161] incidental to the regulation of immigration under s 51(xix) and (xxvii). The High Court, in a unanimous judgment, reconsidered Latham CJ’s test (at 467): There are three comments that should be made in relation to the above general statement of Latham CJ. The first is that it should not be seen as providing an exhaustive definition of a tax. Thus, there is no reason in principle why a tax should not take a form other than the exaction of money or why the compulsory exaction of money under statutory powers could not be properly seen as taxation notwithstanding that it was by a non-public authority or for purposes which could not properly be described as public. The second is that, in Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59 Gibbs J made explicit what was implicit in the reference by Latham CJ to ‘a payment for services rendered’, namely, that the services be ‘rendered to’ — or (we would add) at the direction or request of — ‘the person required’ to make the payment. The third is that the negative attribute — ‘not a payment for services rendered’ — should be seen as intended to be but an example of various special types of exactions of money which are unlikely to be properly characterised as a tax notwithstanding that they exhibit those positive attributes. On the other hand, a compulsory and enforceable exaction of money by a public authority for public purposes will not necessarily be precluded from being properly seen as a tax merely because it is described as a ‘fee for services’. If the person required to pay the exaction is given no choice about whether or not he acquires the services and the amount of the exaction has no discernible relationship with the value of what is acquired, the circumstances may be such that the exaction is, at least to the extent that it exceeds that value, properly to be seen as a tax.

The court concluded that the immigration clearance fee satisfied the positive attributes of a tax; it was compulsory, it was exacted by a public authority (the Commonwealth) and it was for public purposes (see 7.9). Accordingly, it was ‘therefore necessary to consider whether there was something special about the fee (eg a “fee for services”) or the circumstances in which it was purportedly exacted (eg as a

penalty for an offence) which, notwithstanding the presence of those positive attributes, might preclude its characterization as “taxation”’: at 468. The court struck down the fee on the basis that it was not a fee for services rendered. This aspect of the decision is analysed further below (at 7.11). The positive attributes of a tax and the negative attributes of a levy or charge that is not properly characterised as a tax, will now be considered in turn. A compulsory exaction or charge 7.7 A critical element of a tax is compulsion by statute — a person must have no choice but to pay the charge. The test is applied by reference to the practical operation of the law under challenge. So a charge will be regarded as compulsory even if the statutory scheme offers an alternative to payment if the alternative to payment is a burden that the taxpayer would naturally seek to avoid. This approach to the requirement of compulsion was taken by Dixon J in Attorney-General (NSW) v Homebush Flour Mills Ltd (1937) 56 CLR 390. That case concerned a compulsory acquisition scheme under which the state expropriated flour from millers, who were then given compensation and a first option to buy their flour back at a higher price. The millers were required to store the flour until it was sold by the state. Homebush Flour Mills challenged the constitutional validity of the scheme on the basis that it was an excise duty, and therefore ultra vires the [page 162] states due to s 90. The court held unanimously that this scheme imposed an excise duty. Dixon J emphasised that it was the effect of the law which must be taken into account, not just its terms (at 413): When the desired contributions are obtained not by direct command but by exposing

the intended contributor if he does not pay, to worse burdens or consequences which he will naturally seek to avoid the payment becomes an exaction. The fact that no legal obligation to pay is imposed or enforced by direct legal remedies, civil or criminal, will not, in my opinion, prevent the exaction fulfilling the description of a tax; because in truth it is exacted by means of sanctions designed to that end, sanctions consisting in the detriments arising from the adoption by the taxpayer of the alternative left open by the legislation.

No requirement that a public authority collect the tax 7.8 As indicated in the extract from Air Caledonie International v Commonwealth (1988) 165 CLR 462, the High Court has said there is no requirement that a tax be levied ‘by a public authority’. This proposition was confirmed in Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480. The case concerned the constitutional validity of provisions of the Copyright Amendment Act 1989 (Cth), which imposed a ‘royalty’ charge on vendors of blank tapes. The purpose of the scheme was to compensate record companies and performers for losses suffered as a result of unauthorised duplication of sound recordings. The proceeds of the levy were payable to a collecting society, a company limited by guarantee, which in turn would dispense the proceeds to copyright owners. The plaintiffs challenged the law on a number of grounds, including that the charge imposed a tax and, consequently was invalid under s 55 of the Constitution as a law that dealt with taxation in a non-tax Act: see further 7.33–7.36. The Commonwealth argued that the law did not impose a ‘tax’, because the government itself did not receive the moneys levied, and that the law could be supported by s 51(xviii) as a law with respect to copyright. Mason CJ, Brennan, Deane and Gaudron JJ held that the royalty charge was a tax, and, as a consequence, the scheme was invalid under s 55. Their Honours referred to the ‘influential’ statement of principle by Latham CJ in the Matthews case, and said (at 500–1): It would seem to be a remarkable consequence if a pecuniary levy imposed for public

purposes by a non-public authority acting pursuant to a statutory authority falls outside the concept of a tax simply because the authority which imposes the levy is not a public authority, when the amount of the levy is to be expended on public purposes, more particularly, if those purposes are Commonwealth purposes. It is scarcely to be contemplated that the character of the impost as a tax depends on whether the authority is a public authority, unless it be a case in which the character of the authority will be relevant and influential in deciding whether the purposes on which the moneys raised are to be expended are themselves public. Of course it is a misnomer to describe an authority as non-public when one of its functions is to levy, demand or receive exactions to be expended on public purposes. To that extent, at least, the authority should be regarded as a public authority. But the better view is that it is not essential to the concept of a tax that the exaction should be by a public authority.

Interestingly, in Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2011) 244 CLR 97 at [37], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ [page 163] observed that the ‘suggestion’ in the Tape Manufacturers case that ‘it is not essential to the concept of a tax that the exaction should be by a public authority’ was ‘a large and controversial step beyond what was said in Matthews’ and that it ‘was not necessary to decide that question in Tape Manufacturers and that the majority in that case did not do so’ (emphasis added). Heydon J observed (at [68]) that it was not necessary to consider that question in the Roy Morgan case (as to which, see 7.10 below. No requirement that a tax be levied for ‘public purposes’ 7.9 In the Air Caledonie case (at 467), the High Court had said that ‘there is no reason why … a compulsory exaction of money … could not be properly seen as taxation notwithstanding that it was by a nonpublic authority or for purposes which could not properly be described as public’ (emphasis added). This proposition was confirmed in

Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480. Dealing with an argument that the charge on blank tapes was not for public purposes because it was for the benefit of a particular group, rather than the entire public, the majority remarked (at 504–5): In one sense it may be said that the purpose is private in that it concerns the interests of the two groups only. But in truth, the legislative solution to the problem proceeds on the footing that it is imposed in the public interest. Indeed, the purpose of directing the payment of the levy to the collecting society for ultimate distribution of the net proceeds to the relevant copyright owners as a solution to a complex problem of public importance is of necessity a public purpose.

If a legislature’s assessment of the public interest satisfies the ‘public purposes’ attribute of a tax established in the Matthews decision, it is difficult to imagine the High Court ever striking down a law on the basis that it is not for a public purpose. 7.10 In Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2011) 244 CLR 97, the appellants challenged the constitutional validity of provisions of the Superannuation Guarantee Charge Act 1992 (Cth) and a related Administration Act. The effect of the legislation is that (at [3]): … if, as specified in the Administration Act, an employer fails to provide to all employees a prescribed minimum level of superannuation then any shortfall represented by failure to meet that minimum level in full, becomes the Charge. This impost is levied on the employer by the Charge Act. The amount of the Charge is a debt due to the Commonwealth and payable to the respondent, the Commissioner of Taxation.

The Full Court of the Federal Court (Keane CJ, Sundberg and Kenny JJ) held that relevant provisions of the Administration Act were supported by s 51(xxiii), the Commonwealth’s power to make laws with respect to ‘invalid and old age pensions’. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ rejected the argument that the laws were not supported by s 51(ii) (at [11]): … the appellant challenges the validity of the provisions made in the Administration

Act and the Charge Act dealing with the Charge itself. It submits, first, that these provisions confer a ‘private and direct benefit’ on the employees of those employers who pay the Charge and that this is effected by the compulsory transfer of money [page 164] from the employers. The second submission is that by reason of the conferring of a private and direct benefit in this way, the Charge is not imposed for ‘public purposes’. The third submission is that an essential element for the characterisation of a ‘tax’ is that it be imposed for ‘public purposes’. It follows, the appellant submits, fourthly and finally, that neither the Charge Act nor the Administration Act is a law with respect to ‘taxation’ within the meaning of s 51(ii) of the Constitution, and that, there being no other head of supporting power to be found in s 51, the legislation establishing the Charge and providing for its administration is invalid.

After reviewing the authorities on the taxation power, and pointing to a number of authorities where the expression ‘for public purposes’ was a generic expression that had been used interchangeably with expressions such as ‘for governmental purposes’, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: 49 The submission by the appellant that the Charge is invalid because the legislation confers upon employees a ‘private and direct benefit’ cannot be accepted. Nor does this ‘linkage’ indicate that the Charge is not imposed by the Parliament for ‘public purposes’. It is settled that the imposition of a tax for the benefit of the Consolidated Revenue Fund is made for public purposes. That is not to say that the receipt of funds into the Consolidated Revenue Fund conclusively establishes their character as the proceeds of a tax. But it does establish in the present case that the Charge is imposed for ‘public purposes’ and thus, if other necessary criteria are met, as they are in this case, the Charge is a valid tax. 50 Moneys received into the Consolidated Revenue Fund are available to be appropriated for any purpose for which the Parliament may lawfully spend money … 51 The case presented by the appellant appears to depend upon the proposition that payments of the Charge by an employer can be traced through the Consolidated Revenue Fund with the consequence that any payments made to employees under Pt 8 of the Administration Act are properly viewed as having come from the employer. That would involve earmarking of the very kind that the establishment of the Consolidated Revenue Fund (and its predecessors in the United Kingdom and the Australian colonies) was designed to prevent. When the Charge is paid by a particular employer

into the Consolidated Revenue Fund, its identity is lost. The funds raised by the Charge are thereafter available under s 83 of the Constitution for an appropriation to be spent on any purpose for which the Commonwealth may lawfully spend money.

Heydon J reached the same conclusion (at [54]).

Fees that are not taxes Fees for services rendered 7.11 In Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 467 the court said that there are ‘various special types of exactions of money which are unlikely to be properly characterised as a tax notwithstanding that they exhibit the positive attributes of a tax’. The class of these special types of exactions is not closed: at 468. However, a number of established exceptions are fees for services rendered, charges for the acquisition of property, fines and penalties, and particular types of licence fees. These types of charges will be considered in turn. [page 165] One type of compulsory exaction that is not properly characterised as a tax is a fee for services rendered. In Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 467 the High Court said that a key feature of a fee or payment for services rendered is that: … the services be ‘rendered to’ — or (we would add) at the direction or request of — ‘the person required’ to make the payment … a compulsory and enforceable exaction of money by a public authority for public purposes will not necessarily be precluded from being properly seen as a tax merely because it is described as a ‘fee for services’. If the person required to pay the exaction is given no choice about whether or not he acquires the services and the amount of the exaction has no discernible relationship with the value of what is acquired, the circumstances may be such that the exaction is, at least to the extent that it exceeds that value, properly to be seen as a tax [emphasis added].

Although it was argued that services were provided in Air Caledonie (at least to non-citizens who were visiting Australia) these services were not provided at the request or direction of the taxpayer: at 468. Furthermore, there was no relationship between the charge and the value of what was acquired. Payment was required regardless of the citizenship status of the passenger. 7.12 One of the indicia of a fee for services rendered is that there is a relationship between the amount of the exaction and the value of what is acquired. The need for a connection between the amount charged and the benefit provided may be illustrated by reference to two decisions, Harper v Victoria (1966) 114 CLR 361 and Parton v Milk Board (Vic) (1949) 80 CLR 229. Harper’s case concerned a charge imposed on egg producers by the Victorian Egg and Egg Pulp Marketing Board for the grading, testing, marking and stamping of eggs. Harper challenged the constitutional validity of the law on the ground that it was contrary to s 90 because it was tantamount to an excise duty; and also on the basis that it was contrary to freedom of trade, commerce and intercourse mandated by s 92 on the basis that the law would require him to submit his eggs for grading etc, if he wished to sell them in Victoria, and this would impose a burden on interstate trade in eggs. Section 90 of the Constitution gives the Commonwealth exclusive power to levy excise duties. An excise duty is ‘an inland tax on a step in production, manufacture, sale or distribution of goods’: Ha v New South Wales (1997) 189 CLR 465 at 496. Accordingly, in a s 90 challenge it is first necessary to determine that the state law under challenge levies a tax. In Harper v Victoria the respondent state argued that the charge was a fee for services rendered, not a tax. McTiernan, Menzies and Owen JJ upheld this argument, and emphasised that the charge was determined by the Board on the basis of an estimate of the cost of rendering the services: at 378. Owen J said that ‘under the Act the fee

payable to the Board is payable for services rendered by it and its amount is determined by the cost to the Board or the cost, as estimated by the Board, of rendering those services’: at 382. The egg levy was therefore not a tax, and consequently the state law did not impose an excise duty and did not infringe s 90. Harper v Victoria can be contrasted with Parton v Milk Board (Vic) (1949) 80 CLR 229. This case concerned the validity of a levy imposed by the Milk Board Act 1933 (Vic) which required dairy operators to pay contributions into a fund from which the Victorian Milk Board would meet its expenses. The Victorian Milk Board was [page 166] set up to regulate the supply and trade of milk in Melbourne. Regulations fixed the amount of the levy at ¼ pence per gallon. It was argued that the Victorian law levied an excise, and thereby infringed the power exclusive to the Commonwealth under s 90. It was argued that the general benefit returned to the industry by the operations of the Victorian Milk Board was sufficient to constitute a service, and the levy on milk was merely a fee for this service. A majority of the High Court held that the law imposed an excise duty and was therefore invalid: Rich, Dixon and Williams JJ; Latham CJ and McTiernan J dissenting. Dixon J emphasised the need for a close relationship between the amount levied and the benefit provided, saying (at 258): It is not a charge for services. No doubt the administration of the Board is regarded as beneficial to what may loosely be described as the milk industry. But the Board performs no particular service for the dairyman or the owner of a milk depot for which his contribution may be considered as a fee or recompense.

7.13 When a government seeks to defend the validity of a charge, it must demonstrate that the amounts collected are hypothecated to a particular service; it cannot collect funds for general administrative

expenses. In Swift Australian Co Pty Ltd v Boyd-Parkinson (1962) 108 CLR 189, the High Court was invited to consider the question whether a Queensland regulation for the purpose of defraying meat inspection expenses was an excise and therefore invalid under s 90. Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ held that the fee was an excise. Dixon CJ, with whom Kitto and Windeyer JJ specifically agreed, said (at 200): It is evident from the introductory words of the regulation that some attempt is made to represent the fees as a charge for services. But when the regulation is examined it appears that the fees are not payable in respect of any particular service but generally for the purpose of defraying expenses. Further, and this perhaps is fatal to the argument, the expenses are not merely those of inspecting meat but those of carrying the Act considered as a whole into effect, that is to say, for administration expenses generally. The fees collected are payable into Consolidated Revenue and there they are of course subject to appropriation by Parliament. They are not directed by law into any particular fund the expenditure of which is limited even to the administration of the Act [see Kitto J at 209; Windeyer J at 224].

The charges only need to be reasonably related to the relevant expenses. It is not necessary to demonstrate the charges directly correspond to the value of the use of the services or facilities provided or to the actual cost of providing the services: Airservices Australia v Canadian Airlines (2000) 202 CLR 133 at 176 per Gleeson CJ and Kirby J; at 188–9 per Gaudron J; at 241 per McHugh J; at 261 per Gummow J; at 302 per Hayne J. In Airservices, the court upheld statutory liens imposed on aircraft by the appellant for the purpose of securing statutory charges used to fund a statutory corporation set up to regulate air safety matters. An argument requiring a direct relationship between fee and service was rejected. There was no evidence to support the conclusion that the statutory liens were imposed for a more general purpose of raising revenue for the Commonwealth. 7.14 Another decision that considered the distinction between taxes and fees for services rendered was Northern Suburbs General Cemetery

Reserve Trust v Commonwealth (1993) 176 CLR 555. In that case, the plaintiff challenged the validity of legislation that set up a training guarantee scheme. The scheme required [page 167] employers to expend money on workforce training. If employers did not spend the required amount they would pay the shortfall as a tax to the Commonwealth. The money collected was then to be expended by the states or territories on facilities and services relating to workforce training. It was argued (at 558) that: The charge is akin to a fee for services, in that it directly finances the guaranteed provision, through the Training Guarantee Scheme, of training facilities, opportunities and ancillary services of a kind which an employer could choose to provide for itself by its own direct expenditure, and of a kind calculated to provide benefits to the larger body of employers who draw on the employment-related skills of the Australian workforce … [emphasis added].

The High Court concluded that the training guarantee levy was not a fee for services rendered because (at 568): The Administration Act imposes no requirement that the State or Territory agree to expend the money paid under an agreement on eligible training programs for those employers who have paid money to the Commonwealth in discharge of an obligation to pay the charge [emphasis added].

In short, the legislation did not connect the charges made with the benefit provided. Consequently, the legislation levied a tax and not a fee for services rendered. 7.15 Generally speaking, a compulsory fee for the mere service of considering an application for a statutory licence will not be a tax. In General Practitioners Society in Australia v Commonwealth (1980) 145 CLR 532, federal legislation required the payment of application fees by pathology service providers. The legislation was challenged on a number of grounds, and the question arose whether an application fee

of this nature was a tax or a fee for services rendered. Gibbs J, with whom the court agreed on this point, said that the $10 application fee was a fee for services rendered (at 561–2): The Act provides a practical compulsion upon some medical practitioners to become approved pathology practitioners, and this of course means that those persons are practically compelled to pay the fee … I shall assume, without deciding, that practical, as distinct from legal, compulsion is enough to constitute a charge a tax … I therefore may accept that the fee is a compulsory exaction by a public authority for public purposes. However, in my opinion, it is a fee for services. It is the price which a medical practitioner, who seeks to become an approved pathology practitioner, must pay for the purpose of having his undertaking considered by the Minister … the fact that the service for which the fee is charged is one which the practitioner is in effect compelled to obtain does not in my opinion alter the character of the fee or convert it into a tax.

However, a large fee that bears no practical relationship to the service might be characterised as a tax in appropriate circumstances. Gibbs J recognised (at 562) that: The amount of an exaction may … be relevant to the question whether it is a fee for services, since an exaction may be so large that it could not reasonably be regarded as a fee.

Aickin J agreed, concluding that a power to authorise regulations proscribing an application fee should not be construed as authorising amounts which could [page 168] not properly be characterised as a fee: at 571. However, in General Practitioners, the nominal amount of the fee and the nature of the service provided suggested that the charge was a fee rather than a tax. 7.16 The observations made by Gibbs and Aickin JJ in General Practitioners Society in Australia v Commonwealth (1980) 145 CLR 532 regarding the significance to be attached to the size of the impost have been made in a number of cases. So, if a fee or charge appears to be

‘devoted to building up consolidated revenue’ then this will point to it being a tax. In Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 a fee for a licence to operate an oil pipeline was held to be a tax because it was an ‘enormous impost’ on the production of oil: at 647. In that case, the Pipelines Act 1967 (Vic) s 25(1) provided that no person should construct or operate a pipeline unless that person held a licence issued by ‘the Minister’. A licensee was prohibited from operating a pipeline unless the current annual pipeline operation fee had been paid: s 35(1). Until 1981, this fee was fixed at $35 per kilometre of pipeline. By the Pipelines Fees Act 1981 (Vic), new subsections were added to s 35: (2) The pipeline operation fee shall be in the financial year 1981–1982: (a) in the case of a trunk pipeline, the amount of $10,000,000; (b) in the case of any other pipeline, an amount equal to $40 for every complete kilometre of pipeline operated under the licence.

Section 35(3) provided for annual adjustment of the fees by reference to the consumer price index. Section 35(8) defined ‘trunk pipeline’ to mean the pipelines to which specific licences had been issued. These were two pipelines, owned and operated by the plaintiffs, and a pipeline owned and operated by the Gas and Fuel Corporation of Victoria. The plaintiffs had, since 1968, been recovering oil and gas from wells in Bass Strait off the Victorian coast. The oil and gas were carried to Longford, on the east coast of Victoria, where they were separated into crude oil, liquefied petroleum gas and natural gas. The first two products were then transported, through the two pipelines owned and operated by the plaintiffs, to a processing plant on Westernport, 184 km away on the south coast of Victoria. After further processing at that plant, the end products (propane, butane, ethane and crude oil) were either shipped or transported by road to the plaintiffs’ customers. The plaintiffs began an action against Victoria in

the High Court of Australia, in which they sought a declaration that the subsections added in 1981 to s 35 of the 1967 Act were invalid, and an order that Victoria repay to the plaintiffs approximately $20m in licence fees paid by them under protest. The defendant demurred and the demurrer came on for hearing before the Full Court of the High Court. A majority struck down the excise. Mason J said (at 634–5): Here the significant features of the pipeline operation fee are: (1) that it is levied only upon a trunk pipeline, ie the Gas and Fuel Corporation pipeline, the gas liquids pipeline and the crude oil pipeline, through which flow the entirety of the hydrocarbons recovered from the Bass Strait fields; (2) that it is a fee payable for permission to operate a pipeline for which the plaintiffs otherwise hold a permit to own and use; (3) that the fee is a special fee which is extraordinarily large in amount, having no relationship at all to the amount of the fees payable for other pipeline [page 169] operation licences — the fee payable for a trunk pipeline is $10,000,000 whereas the fee payable for any other pipeline is $40 per kilometre; and (4) that the fee is payable before an essential step in the production of refined spirit can take place — the transportation of the hydrocarbons from Longford to Long Island Point where the refinery is situated. The co-existence of these features indicates that the pipeline operation fee payable by the plaintiffs is not a mere fee for the privilege of carrying on an activity; it is a tax imposed on a step in the production of refined petroleum products which is so large that it will inevitably increase the price of the products in the course of distribution to the consumer. The fee is not an exaction imposed in respect of the plaintiffs’ business generally; it is an exaction of such magnitude imposed in respect of a step in production in such circumstances that it is explicable only on the footing that it is imposed in virtue of the quantity and value of the hydrocarbons produced from the Bass Strait fields. To levy a tax on the operation of the pipelines is a convenient means of taxing what they convey for they are the only practicable method of conveying the hydrocarbons to the next processing point.

7.17 Queanbeyan City Council v ACTEW Corporation Ltd (2009) 178 FCR 510 was a constitutional challenge to two compulsory charges imposed by the Australian Capital Territory Government. The first charge was imposed by the Utilities (Network Facilities) Tax Act 2006 (UNFT Act). The Act imposed a tax on utilities that had networks on

Australian Capital Territory land. The Utilities (Network Facilities) Tax (UNFT) was calculated by reference to the length of the network. The Australian Capital Territory authorised ACTEW, its whollycontrolled water utility, to pass the UNFT on to water consumers in the form of higher prices. Queanbeyan City Council, the largest consumer of Australian Capital Territory water, challenged the constitutional validity of the UNFT on the basis that it satisfied the constitutional definition of a tax and that it was, in substance, an excise. Queanbeyan argued that the tax was: •

compulsory, because water is a necessity of life and the water service provided by ACTEW was an effective monopoly (for further details, see 7.13);

•

imposed by a public authority (the Australian Capital Territory’s wholly owned utility); and

•

for revenue-raising purposes (the evidence was that the tax collected went into consolidated revenue and was not hypothecated for special purposes associated with the charge).

Queanbeyan also pointed out that the charge was called a ‘tax’ and administered like a tax. The Australian Capital Territory and ACTEW argued that the UNFT was not an excise (and therefore unconstitutional, pursuant to the principle in Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1993) 177 CLR 248 (see 7.40). The respondents argued that the UNFT was a land use charge which they had constitutional power to impose. Justice Buchanan of the Federal Court upheld Queanbeyan’s challenge to the UNFT, pointing out that there was no connection between the amount charged under the UNFT Act and the land use rights that were conferred under other statutes ((2009) 178 FCR 510 at [133]–[136]).

[page 170] The Australian Capital Territory and ACTEW appealed to the Full Federal Court. Keane CJ and Stone J allowed the appeal and Perram J dissented (Australian Capital Territory v Queanbeyan City Council (2010) 188 FCR 541). Keane CJ (at [125]), with whom Stone J (at [160]) and Perram J (at [180]) agreed, held that it was unnecessary to decide whether the UNFT Act imposed a tax, because it was not an excise (this aspect of the case is dealt with at 7.48). Queanbeyan’s appeal to the High Court was dismissed: see 7.19. 7.18 As noted at the commencement of 7.17, Queanbeyan City Council v ACTEW Corporation Ltd was a constitutional challenge to two compulsory charges imposed by the Australian Capital Territory Government. The second charge was a ‘water abstraction charge’ (WAC). Section 13 of the Water Resources Act 1998 (ACT), and later s 7 of the Water Resources Act 2007 (ACT), vested in the Australian Capital Territory the rights to the use and control of all water in the territory. This includes the Cotter water catchment area and the Googong Dam area in New South Wales. The Googong Dam had been acquired by the Commonwealth from New South Wales in October 1973 for the purpose of water supply to the Australian Capital Territory. The Canberra Water Supply (Googong Dam) Act 1974 (Cth) vested the rights to use and dispose of all waters in the Googong Dam area in the Commonwealth, but gave the Australian Capital Territory the power to exercise such rights (s 11(2)). The Commonwealth had also granted the Australian Capital Territory a 150-year lease over the Googong Dam area. These arrangements effectively deprived Queanbeyan City Council of access to local water and made it dependent on the Australian Capital Territory (and its wholly owned water utility, ACTEW) for water supply.

The Water Resources Act 1988 made it an offence for a person to take water without a licence: s 33(1). Similar provision was made under the 2007 Act (s 77a). ACTEW held licences under these successive Acts. These licences authorised ACTEW to provide water services and to take water under the control of the Australian Capital Territory for that purpose. These Acts also provided that the licences might be granted subject to conditions, including subject to a power exercisable by the responsible minister of the Australian Capital Territory Government to set fees payable for licences. Exercising this power in a series of determinations, the Territory imposed a WAC on ACTEW as a licensee. The WAC was introduced at 10c per kilolitre, rising to 20c and then 25c per kilolitre before the Territory imposed an additional ‘water fee’ of 30c per kilolitre as a ‘revenue-raising measure’ in its difficult budget of 2006 (it was reset to 51c per kilolitre during the litigation). The WAC was described in Australian Capital Territory Government documents as a revenue-raising measure and a measure designed to moderate demand for water. ACTEW was authorised to pass the WAC on to consumers in the form of higher prices. The WAC was not hypothecated to the costs of supply, and there was no evidence to suggest that the amount of the WAC was determined by reference to the value of the water. Queanbeyan therefore argued that the WAC was an excise duty, because it was a tax on a traded good: water. The question whether the WAC imposed an excise is dealt with at 7.53. The question whether the WAC imposed a tax was dealt with by the Federal Court and [page 171]

the Full Federal Court (the High Court dismissed Queanbeyan’s appeal from the decision of the Full Federal Court on grounds explored in 7.19). In the Federal Court, Buchanan J was critical of the ‘water fee’ component of the WAC (at [116]), but concluded that the water was controlled by the Australian Capital Territory and they could charge what they liked for it (at [122]–[126]). The Full Federal Court dismissed Queanbeyan’s appeal: (2010) 188 FCR 541. 7.19 In the High Court, the matter was dealt with on different grounds. The court held that the UNFT and WAC could not be characterised as taxes because the charges were imposed by the Australian Capital Territory on its own, wholly-owned corporation, ACTEW. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (Heydon J giving similar reasons) said (Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530): 120 … of its nature, the exaction of money by a polity for receipt into its fisc cannot be a tax if the exaction is imposed upon an entity which, properly characterised, is indistinct from the polity itself. Further, Queensland submits that ACTEW is so closely identified with the Territory that the exaction of money from ACTEW by the water licence fees and the utilities tax cannot be of the character of taxes as understood in the Constitution and thus these imposts cannot amount to duties of excise within the meaning of s 90. 121 The result is said to be that there is no constraint placed by s 90 upon what otherwise are the powers conferred upon the Territory pursuant to the SelfGovernment Act to legislate for the imposition of the water licence fees and the utilities tax. It then would follow that Queanbeyan cannot recover its payments to ACTEW representing the passing on to it by ACTEW of burdens illegally imposed upon ACTEW by the Territory laws. Nor could Queanbeyan resist the cross-claim against it by ACTEW to recover unpaid amounts in respect of the utilities tax.

This decision is considered further below at 7.48. 7.20 In Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, the High Court considered whether the Commonwealth Government’s ‘economic stimulus package’ designed to counteract the economic

impact of the global financial crisis of 2008 was a valid use of the taxation power (for consideration of whether s 51(i) supported the law, see 6.8; for consideration of whether the executive power, together with s 51(xxxix), supported the law, see 13.32). In early 2009, the Tax Bonus for Working Australians Act (No 2) (Cth) (Tax Bonus Act) was introduced into federal parliament. Section 6 stated: Amount of tax bonus If a person is entitled to the tax bonus for the 2007–08 income year, the amount of his or her tax bonus is: (a) if the person’s taxable income for that income year does not exceed $80,000 — $900; or (b) if the person’s taxable income for that income year exceeds $80,000 but does not exceed $90,000 — $600; or (c) if the person’s taxable income for that income year exceeds $90,000 but does not exceed $100,000 — $250.

[page 172] The stated purpose of the law was to ‘immediately support jobs and strengthen the Australian economy during a severe global recession’: per French CJ at [1]. On 26 February 2009, Bryan Pape, a person entitled to receive $250 under the Tax Bonus Act, issued a writ against the Commissioner of Taxation claiming declarations that the Tax Bonus Act was invalid. Gummow, Crennan and Bell JJ said (at [255]): In Moore v The Commonwealth (1951) 82 CLR 547 at 569, Dixon J said that the power conferred by s 51(ii) covers ‘what is incidental to the imposition and collection of taxation’. The Bonus Act takes as the criterion of its operation certain taxpayers for the 2007–2008 income year. But that does not render the Bonus Act a law with respect to the imposition and collection of taxation. In particular … the Bonus Act cannot be said to be ‘in substance’ a law conferring a rebate of tax on income brought to account for 2007–2008.

French CJ did not consider whether s 51(ii) supported the law. Hayne and Kiefel JJ identified the legal question arising in the case as

‘whether a law which requires payment of money to those who have been taxpayers is a law with respect to taxation’: at [383]. Hayne and Kiefel JJ continued: 386 Here, it is said that the Impugned Act, in all its operations, is a law with respect to taxation because it takes as the critical criterion for its operation the identification of a person as one who has paid tax for the most recently completed financial year. And because those, and only those, who have paid tax (and whose taxable income for that year did not exceed $100,000) are eligible for the payment, the law is said to be a law with respect to taxation. But as in Fairfax, that fact, standing alone, directs attention to why the legislators may have enacted the Impugned Act. While it may readily be accepted that the Impugned Act seeks to single out certain taxpayers for the benefit for which it provides, that does not make the Impugned Act a law with respect to taxation. Further, although the payment to be made under the Impugned Act is called a ‘tax bonus’, attribution of that name adds nothing to the debate about characterisation. The character of the Impugned Act depends upon ‘the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes’ (Fairfax (1965) 114 CLR 1 at 7). 387 The amount to be paid depends upon a person’s taxable income for 2007–08. On the face of the Impugned Act there is no direct connection, in all operations of the Act, between the amount of the bonus and the amount that has been paid in tax. As the Act is written, the amount that is paid under the Impugned Act may be more or it may be less than the amount of tax the person paid for that year. By the time payments must be made under the Impugned Act it will not be known whether a person to whom the payment is made will be liable to pay income tax for 2008–09.

Heydon J reached the same conclusion (at [449]–[457]). Charges for the acquisition of property 7.21 One of the types of charge that may carry the positive attributes of a tax but may not be properly characterised as a tax is a charge for the acquisition of property. This type of charge was considered in Harper v Minister for Sea Fisheries (1989) 168 CLR 314. Harper challenged the constitutional validity of a Tasmanian abalone fishing licence fee on the basis that it was an excise duty. The plaintiff argued that the amount payable for the licence fee was referable to the quantity of abalone taken in the previous year, and this made the licence fee a tax on the first step in the production of abalone meat and shell. Brennan J, with whom the

[page 173] rest of the court agreed on this point, characterised the fee as consideration for the privilege of exploiting a finite natural resource. Brennan J said (at 335) that: When a natural resource is limited so that it is liable to damage, exhaustion or destruction by uncontrolled exploitation by the public, a statute which prohibits the public from exercising a common law right to exploit the resource and confers statutory rights on licensees to exploit the resource to a limited extent confers on those licensees a privilege analogous to a profit a prendre in or over the property of another … A fee paid to obtain such a privilege is analogous to the price of a profit a prendre; it is a charge for the acquisition of a right akin to property.

Mason CJ, Deane and Gaudron JJ emphasised the environmental objective of the charge: at 335. Dawson, Toohey and McHugh JJ also held that the essential nature of the distinction between a fee payable for the acquisition of property and a tax is that a fee for the acquisition of property must have a ‘discernible relationship with the value of what is acquired’ if it is to be characterised as such a fee rather than a tax (at 336): Whilst the proper conclusion is that the amount paid for a commercial abalone licence is not a tax and, therefore, is not a duty of excise, that conclusion flows from all the circumstances of the case. Most important is the fact that it is possible to discern a relationship between the amount paid and the value of the privilege conferred by the licence, namely, the right to acquire abalone for commercial purposes in specified quantities. In discerning that relationship it is significant that abalone constitute a finite but renewable resource which cannot be subjected to unrestricted commercial exploitation without endangering its continued existence. However, the conclusion reached by Brennan J by no means carries with it the consequence that no exaction of money can constitute a tax if it is demanded for the purpose of conserving a public natural resource. If such an exaction otherwise exhibits the characteristics of a tax it will properly be seen as such.

For further consideration of Harper, see Queanbeyan City Council v ACTEW Corporation (2009) 178 FCR 510 at 525–8. Fines and penalties are not taxes

7.22 In R v Barger (1908) 6 CLR 40 at 99, Isaacs J said that a fine or penalty could be distinguished from a tax by asking the following question: Is the money demanded as a contribution to revenue irrespective of any legality or illegality in the circumstances upon which the liability depends, or is it claimed as solely a penalty for an unlawful act or omission, other than non-payment of or incidental to tax?

The distinction between penalties and taxes was also explored in Re Dymond (1959) 101 CLR 11. Dymond applied for the annulment of a sequestration order made in respect of his bankruptcy. The Commissioner of Taxation opposed Dymond’s motion on the basis that unpaid sales tax was owing from transactions made in the years leading up to his bankruptcy. Dymond challenged the constitutional validity of a federal sales tax provision, which levied an ‘additional tax’ on persons who had failed to furnish relevant tax returns. Dymond challenged this provision under s 55 of the Constitution on the basis that it imposed taxation in an Act which did not deal with the imposition of a tax: see further at 7.33–7.36. Fullagar J, with [page 174] whom Dixon CJ, Kitto and Windeyer JJ agreed, characterised the ‘additional tax’ provision as a penalty (at 22): The liability is imposed by the Act not as a consequence of a sale of goods but as a consequence of an attempt to evade payment of a tax on a sale of goods. The exaction is directly punitive, and only indirectly fiscal. It is imposed for the protection of the revenue, but as a sanction and not for the sake of revenue as such.

In MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 at 639 and Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 at 571, penalties arising in tax legislation were distinguished from taxing provisions because the penalties operated only in circumstances where there had been a

‘failure to discharge antecedent obligations on the part of the person on whom the exaction falls’.

Discrimination and preference Scope of the anti-discrimination prohibition 7.23 The anti-discrimination requirement of s 51(ii) only affects the federal parliament’s taxation power — it does not limit the power of the parliament to grant money to the states pursuant to s 96 in a way that discriminates against the states or parts of the states. The authority for this principle is WR Moran Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) (1940) 63 CLR 338. In Moran’s case, a federal flour tax scheme including a separate law granting money to Tasmania was challenged on the basis that it infringed the prohibition in s 51(ii) that laws with respect to taxation must not discriminate between states and parts of states. The court held by majority (Latham CJ, Rich, Starke and McTiernan JJ; Evatt J dissenting) that the scheme, including the grants law, was valid, and that the anti-discrimination requirement in s 51(ii) only limited the Commonwealth’s taxing power, not its granting power. 7.24 The constitutional restriction on tax laws within s 51(ii) does not apply to laws supported by the territories power in s 122 (Buchanan v Commonwealth (1913) 16 CLR 315) on the basis that territories are not ‘States’ or ‘parts of States’. Nor does it apply to laws supported by s 52(i), the Commonwealth’s exclusive power with respect to its public places: see Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 at 662, 679. An application to reopen Allders was rejected in Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388: see further 3.26.

Scope of prohibition in s 99 7.25 Section 99 only applies to laws which are supported by s 51(i) or (ii): see Morgan v Commonwealth (1947) 74 CLR 421. It has been held that this implication may be drawn from the fact that s 99 refers specifically to ‘any law or regulation of trade, commerce, or revenue’. On this reading, a law supported by another subsection of s 51 such as (xx) or (xxix) which had the incidental effect of providing a preference to a state or part of a state may not offend s 99. See also Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388 at 421–6, considered further at 7.29. [page 175] ‘Discrimination’ 7.26 The ‘discrimination’ requirement of s 51(ii) was considered by Isaacs J in R v Barger (1908) 6 CLR 41. In that case, Barger argued that the challenged excise duty had a differential operation depending on the locality of the taxpayer, and was therefore invalid for failure to comply with the anti-discrimination requirement. Isaacs J said (at 110): Discrimination between localities in the widest sense means that, because one man or his property is in one locality, then, regardless of any other circumstance, he or it is to be treated differently from the man or similar property in another locality.

In the circumstances, the excise in its terms applied generally to all parts of the Commonwealth, and the fact that its practical operation in different localities was unequal did not arise ‘from anything done by the Parliament’: at 110–11. Higgins J also stressed that the appropriate test of characterisation was to consider the ‘face’ of the challenged Act. So, for example, there could not be ‘one rate of Excise for Queensland and another for Western Australia. Nor is there one set of conditions

of exemption for Tasmania and another for Victoria’: at 130–1. The constitutional requirement of anti-discrimination was not directed to the effect of tax legislation. As Higgins J said (at 131): It is not prescribed in the Constitution that taxation must be uniform — uniform in any of its numerous senses.

While Isaacs and Higgins JJ were in the minority in Barger’s case, their approach was applied by the whole court in Cameron v Deputy Federal Commissioner of Taxation for Tasmania (1923) 32 CLR 68. Here, Cameron challenged statutory rules authorised by federal tax legislation that gave the Commissioner a discretion to determine the value of livestock according to a table which set differing amounts depending on the state in which the livestock were located. It was held that the rules were constitutionally invalid on the basis that they discriminated between states and parts of states contrary to s 51(ii). Knox CJ, Isaacs, Higgins and Rich JJ referred to the statements of Isaacs J in Barger’s case with approval. Knox CJ said that in the circumstances the relevant question set by the statutory rules was: ‘In what State were such cattle at the relevant date?’. Starke J agreed, confirming that the orthodox approach is to consider the intention of the Commonwealth reflected in the text of the regulation rather than the effect or operation of the regulation (at 79): A law with respect to taxation applicable to all States and parts of States alike does not infringe the Constitution merely because it operates unequally in the different States — not from anything done by the law-making authority, but on account of the inequality of conditions obtaining in the respective States. On the contrary, a law with respect to taxation which takes as its line of demarcation the boundaries of States or parts of State necessarily discriminates between them, and gives a preference to one State or part thereof over another State or part thereof.

7.27 Questions of characterisation can lead to differences of opinion. This was apparent in Conroy v Carter (1968) 118 CLR 90. Carter kept hens for commercial purposes at a hen house in Werribee, Victoria. Federal legislation regulating the egg industry, including

provisions and regulations of the Poultry Industry Levy [page 176] Collection Act 1965 (Cth), imposed a levy on poultry and required that owners of hens kept for commercial purposes had to file certain information with their state Egg Board. Under the federal law, the Commonwealth was authorised to enter into arrangements with states for the collection of the federal poultry levy in each state. Conroy, a federal police officer, laid an information against Carter alleging failure to comply with the law. It was argued that the law, which enabled the Commonwealth to enter into arrangements with any given state for the collection of levies and the regulation of the poultry industry, could correspondingly discriminate between states or parts of states in circumstances in which the Commonwealth had made arrangements with some states but not with others. The Commonwealth argued that the law itself was expressed to apply generally throughout the Commonwealth, and that any lack of uniformity in its operation did not render it discriminatory in the relevant sense. The members of the court disagreed as to the effect of the legislation and the court delivered a split decision with the Chief Justice casting the deciding vote. Menzies J, with whom Barwick CJ and McTiernan J agreed, said (at 103): The requirement of s 51(ii) of the Constitution that laws with respect to taxation must not discriminate between States or parts of States does not mean that such laws must operate with complete uniformity throughout the Commonwealth. This is clear from a comparison between s 51(ii) and s 51(iii). The latter provision requires bounties to ‘be uniform throughout the Commonwealth.’ Nor does s 51(ii) require that taxation laws must operate uniformly throughout the States of the Commonwealth; had this been meant it would no doubt have been said in language similar to that used in s 51(iii). What the more elaborate provisions of s 51(ii) forbid is a taxation law which would

impose a taxation burden upon a person because of some connexion with a State or a part of a State, which would not fall upon other persons not having that connexion. Furthermore, in determining whether a law imposes such a discriminatory burden, it is to the law itself that attention must be paid, not to the laws of any State or States.

7.28 Section 99 of the Constitution was considered in some detail in Elliott v Commonwealth (1936) 54 CLR 657. The case concerned federal transport regulations which made provision for the licensing of seamen, with licensing officers appointed at prescribed ports, including Sydney, Melbourne, Brisbane, Newcastle and Port Adelaide. No other ports were specified, and thus there was no prescribed port in Western Australia or Tasmania. It was argued that the regulation preferred Western Australia and Tasmania because there was no port in either of those states to which the regulation applied. Latham CJ said that while the regulations were discriminatory, something more than discrimination or lack of uniformity needed to be shown before s 99 could operate. Citing Rich J in Crowe v Commonwealth (1935) 54 CLR 69, Latham CJ said that a s 99 preference was a ‘tangible advantage of a commercial character’: at 83. Starke J said that ‘the preference prohibited is preference to localities, though the practical result may be a preference to persons or goods’: at 680. The law discriminated against some ports, but laws under s 51(i) can discriminate, though they may not provide preferences. To infringe s 99 it would be necessary to demonstrate that the federal law gave an express preference to a state or part of a state rather than a port or ports in Australia, as such. For that reason, the court reached the conclusion that the law provided no preference to Fremantle: at 669–71, 675 per Latham CJ. [page 177] 7.29

The High Court had the opportunity to consider s 99 in

Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388. The case considered the Commonwealth Places (Mirror Taxes) Act 1998 (Cth) (Mirror Taxes Act) which was designed to ensure that state tax laws continued to apply in the Commonwealth’s exclusive public places (as to which, see 3.27). Section 6(2) of the Mirror Taxes Act declares that, subject to the Act: … the excluded provisions of a State taxing law, as in force at any time before or after the commencement of this Act, apply, or are taken to have applied, according to their tenor, at that time, in relation to each place in the State that is or was a Commonwealth place at that time.

Section 6(1) of the Mirror Taxes Act defines ‘excluded provisions’ as meaning the provisions of a state taxing law that would be excluded by s 52(i) of the Constitution. A ‘State taxing law’, according to s 3 of the Act, is a state law listed in the Schedule to the Act or a state law imposing taxation that is prescribed by regulations. Section 8(2) and (4) of the Act contemplates that state treasurers could modify taxation liabilities to ensure that taxpayers in Commonwealth public places would have, as near as possible, the same taxation liabilities as taxpayers in the state who were not in Commonwealth public places. In 2001, the Commissioner of State Revenue made an assessment of stamp duty in respect of an instrument of lease that concerned a hotel development on land at Melbourne’s Tullamarine Airport. The land had previously been vested in the Commonwealth, which had leased it to a company for use as an airport. Permanent Trustee had a financial interest in the development. It objected to the assessment on a number of grounds, including that a law made under s 52 of the Constitution is subject to the manner and form requirements in s 55 of the Constitution, and also to the anti-preference provision, s 99 of the Constitution. As to s 99, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said: 83 … the prohibition in s 99 is not limited to laws supported by s 51(ii) of the Constitution. That submission should be accepted … The appellant accepts that there

would be no infringement of s 99 by the imposition by federal law of a stamp duty which applied to all Commonwealth places whatever their location, even though the result could be that within the one State different rates would apply depending on the situation of a locality inside or outside a Commonwealth place in that State. What the appellant does assert is that the Mirror Taxes Act has an effect of preferring one State over another State because different rates of taxation and exemptions from taxation apply depending solely on whether the relevant Commonwealth place is in one State rather than another. The rates of taxation and, indeed, the types of taxes that are imposed by federal law differ from State to State. … 86 These submissions should not be accepted … [the plurality referred to the judgment of Dixon J in Elliott v Commonwealth and said]: … 88 … To give preference to one State over another State discrimination or differentiation is necessary. Without discrimination between States or parts of respective States, it is difficult to see how one could be given preference over the other.

[page 178] 7.30 In Fortescue Metals Group Limited v Commonwealth (2013) 250 CLR 548, Fortescue and several subsidiaries challenged the constitutional validity of four pieces of Commonwealth legislation which collectively imposed a minerals resource rent tax. The facts are set out in the judgment of French CJ in the following terms: 2 The stated object of the MRRT Act is to ensure that the Australian community receives an adequate return for its ‘taxable resources’ having regard to their inherent value, their non-renewable nature and the extent to which they are subject to Commonwealth, state and territory royalties. The Act makes allowance, in fixing the MRRT liability of a miner, for mining royalties payable under state laws. Because the MRRT Act makes those allowances, the liabilities it imposes can vary according to state mineral royalty regimes. That potential for a differential operation from state to state underpins the plaintiffs’ argument that the Act discriminates between states contrary to s 51(ii) of the Constitution and gives preference to one state over another contrary to s 99 of the Constitution. The plaintiffs also assert that, contrary to s 91 of the Constitution, the MRRT Act detracts from, impairs or curtails the grant by states of aid to mining for iron ore by the reduction of royalty rates applicable to the mining of iron ore. The Act is also said to detract from, impair or curtail the capacity of the states to

function as governments contrary to the principles enunciated in Melbourne Corporation v The Commonwealth. The Imposition Acts are challenged, along with the MRRT Act, because s 3 of each of them imposes the MRRT. A reference to the MRRT Act in these reasons is a reference to that Act read with the Imposition Acts [footnotes omitted].

Hayne, Bell and Keane JJ, with whom French CJ, Crennan and Kiefel JJ agreed (in separate judgments), provided additional detail about the operation of the MRRT regime, and the arguments raised in the challenge: 53 In conformity with the intention declared in s 1-10 of the MRRT Act to tax ‘above normal profits’ from certain mining operations, MRRT is not exigible until a miner’s group mining profit exceeds a prescribed threshold. Under the MRRT Act, a liability to pay MRRT arises only when a miner derives an annual profit of a given amount after taking into account all deductions for expenditure (including of capital), all allowances (including those carried forward at uplifted rates) and any applicable tax offsets. Once MRRT is payable, however, the formula by which its amount is calculated operates so that a reduction in the mining royalty payable to a state government would, other things being equal, result in an equivalent increase in the amount of the MRRT liability, and an increase in the royalty would, other things being equal, result in an equivalent decrease in the miner’s MRRT liability. As it happens, state mining royalties differ between the states within the federation. … 55 The plaintiffs founded their challenge to the validity of the MRRT Act and s 3 of each of the Imposition Acts (together ‘the MRRT legislation’) principally on the ground that s 51(ii) of the Constitution expressly precludes the imposition by the Commonwealth of a tax which would exact a greater amount of tax from a taxpayer whose mining operations are conducted in a state with a lower mining royalty rate than would be exacted from the same miner if the same mining operations were conducted by it in a state with a higher state royalty rate. The plaintiffs also contended for the same result by invoking the constitutional implication associated with this court’s decision in Melbourne Corporation v The Commonwealth … and by reference to s 99 of the Constitution and its prohibition against the Commonwealth, by any law or regulation of trade, commerce or revenue, giving ‘preference to one state or any part thereof over another state or any part thereof’. Finally, the plaintiffs argued that the MRRT legislation is invalid because it is inconsistent with s 91 of the Constitution. The Attorneys-General for the States of Queensland and Western Australia intervened to support the plaintiffs’ challenge.

[page 179]

Accepting the Commonwealth’s argument that the MRRT legislation did not discriminate between states because it applied the same rules ‘throughout the Commonwealth even though, by reason of circumstances existing in one or other states, it may not operate uniformly’ (at [80], original emphasis), the plurality noted that ‘the limiting words of s 51(ii) do not speak of a law that discriminates against States or parts of States and should be read as referring to geographic differentiation, not to the effect of the relevant law on a State as a polity’ (at [110], original emphasis). Their Honours concluded that: 121 The MRRT legislation does not discriminate between states. If the states had enacted no provision for royalties or if all states had chosen to exact royalties at identical rates, the plaintiffs’ argument of discrimination would evidently be without foundation. The possibility that a law of the federal parliament might become invalid upon, and by reason of, one state changing its royalty rate would not be consistent with the … the decision in the Engineers’ Case (1920) 28 CLR 129 at 144–145, 154.

As to the s 99 argument, the plurality held that because the MRRT did not discriminate between states, there was no preference of one state over another: at [125]. Likewise, there was no Melbourne Corporation-style discrimination: 137 The MRRT legislation is not aimed at the states or their entities as was the legislation considered in each of Melbourne Corporation, Queensland Electricity Commission, Austin and Clarke. The MRRT legislation does not impose any special burden or disability on the exercise of powers and fulfilment of functions of the states which curtails their capacity to function as governments. The MRRT legislation does not deny the capacity of any state to fix the rate of royalty for minerals extracted by miners, and no burden upon a state attaches to any decision by the state to raise or lower that rate. If, as the plaintiffs asserted, the MRRT legislation affects the states’ ability to use a reduction in royalty rate as an incentive to attract mining investment in the state, the MRRT legislation does not impose any limit or burden on any state in the exercise of its constitutional functions.

The argument that the MRRT infringed s 91 of the Constitution because it restricted the capacity of a state to grant aid to or bounties on mining was rejected on the basis that provision ‘does not limit the legislative powers of the federal parliament’: at [143].

Crennan and Kiefel JJ gave similar reasons to the plurality and accepted their Honours’ conclusions. 7.31 Section 99 was again considered in the recent challenge to the (now repealed) carbon tax legislation, Queensland Nickel Pty Limited v Commonwealth (2015) 255 CLR 252. Nettle J delivered a judgment with whom every other member of the court (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ) agreed. As Nettle J explained: 9 The Clean Energy Act 2011 (Cth) (‘the Act’) was enacted with the object of imposing a tax on entities responsible for the emission of greenhouse gases. Until its repeal, it applied to any ‘liable entity’ operating a facility in Australia which emitted a volume of ‘covered emissions’ of greenhouse gases in excess of a specified threshold volume. The tax was exigible on the excess. 10 In order to alleviate the burden of the tax on liable entities operating certain types of emissions-intensive trade-exposed activities (‘eligible persons’), the Act provided for the creation by regulation of a Jobs and Competitiveness Program (‘JCP’). [page 180] The JCP was set out in Sch 1 to the Regulations. It enabled the issue of free ‘units’ to each eligible person and thereby allowed the eligible person to set off its free units in reduction of the volume of its covered emissions on which tax was charged. 11 Section 99 of the Constitution prohibits the Commonwealth, by any law or regulation of trade, commerce or revenue, giving preference to one state or any part thereof over another state or any part thereof. 12 In brief substance, the issue raised by the special case is whether the Regulations contravened s 99 because they provided that the number of free units which could be issued under the JCP to each nickel producer in Australia was to be calculated by reference to an industry average volume of greenhouse gases emitted per unit volume of nickel production and, therefore, made no allowance for differences between producers in greenhouse gas emissions which were said to be due to differences between the States in which the producers respectively carried on production (internal references omitted).

Queensland Nickel and a number of other nickel miners (Murrin Murrin, First Quantum and Nickel West) took different approaches to the inputs, production processes and outputs of their mining

operations across the states of Queensland and Western Australia. It was argued that those differences ‘were at least to some extent caused by differences in the natural, business or other circumstances as between the places in which the mining operations took place, and therefore the States’ (at [51]). The result, so they argued, was that the JCP ‘in effect treated as alike activities which were not alike and thereby mandated a different or unequal taxation outcome for nickel producers according to whether their processing operations were located in Queensland or Western Australia. This was said to result in a “preference” being given to Western Australia within the meaning of s 99 of the Constitution’ (at [51]). Nettle J reviewed the many authorities on s 99, including Fortescue Metals (2013) 250 CLR 548, in which Hayne, Bell and Keane JJ observed (at 605): It may be accepted that consideration of whether a law discriminates between States or parts of States is not to be resolved by consideration only of the form of the law. The legal and practical operation of the law will bear upon the question. It by no means follows, however, that the law is shown to discriminate by demonstrating only that the law will have different effects on different taxpayers according to the State in which the taxpayer conducts the relevant activity or receives the relevant income or profit. In particular, a law is not shown to discriminate between States by demonstrating only that it will have a different practical operation in different States because those States have created different circumstances to which the federal Act will apply by enacting different State legislation.

Nettle J then concluded (at 605–7): Construed accordingly, it is apparent that the JCP did not discriminate between States. In terms, it applied equally to eligible persons carrying on the production of nickel regardless of the State of production and, in terms of practical effect, the plaintiff did not suggest that the differences in inputs, production processes and outputs were due to anything other than differences in natural, business and other circumstances as between the States of production. Different circumstances in different States Counsel for the plaintiff contended that none of the previous authorities concerning the application of s 99 involved the validity of a Commonwealth taxation law which treats

[page 181] activities of necessity carried out differently in different parts of the Commonwealth as if they were the same activity. Thus, although the Court in Fortescue dealt with the situation where a Commonwealth taxing Act produces different consequences in different States due to differences between States’ legislation, their Honours should be taken to have left open for consideration the kind of situation which arises where a Commonwealth law results in different consequences in different States due to differences between States in natural, business or other circumstances. Leastways, it was submitted, none of those authorities should be regarded as controlling, and any a priori rule which placed differential treatment of that kind beyond the reach of s 99 would so denude the section of practical operation that it should not be adopted. The difficulty with that contention, however, is that, even allowing that there might be cases in which s 99is attracted to a Commonwealth taxing Act because it produces different consequences in different States as the result of differences between States in natural, business or other circumstances, in this case it does not appear that any of the differences between the plaintiff’s and the Western Australian nickel producers’ inputs, production processes or outputs were due to differences between Queensland and Western Australia in natural, business or other circumstances.

States or parts of states 7.32 There has been some difference of opinion about the meaning of the phrase ‘parts of States’ in ss 51(ii) and 99. The more expansive view, drawn from the majority judgment of Griffith CJ, Barton and O’Connor JJ in R v Barger (1908) 6 CLR 41, was that (at 78): The words ‘States or parts of States’ must be read as synonymous with ‘parts of the Commonwealth’ or ‘different localities within the Commonwealth’. The existing limits of the States are arbitrary, and it would be a strange thing if the Commonwealth Parliament could discriminate in a taxing Act between one locality and another, merely because such localities were not coterminous with States or with parts of the same State.

A narrower and perhaps more literal view, expressed by Isaacs J in the same case, was that (at 107–8): … the treatment that is forbidden, discrimination or preference, is in relation to the localities considered as parts of States, and not as mere Australian localities or parts of the Commonwealth considered as a single country … the pervading idea is the preference of locality merely because it is a locality, and because it is a particular part of a particular State [emphasis added].

The latter narrow view was approved in Cameron v Deputy Federal Commissioner of Taxation (1923) 32 CLR 68 and by the Privy Council in Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735, and seems to have formed the basis of the court’s reasoning in Elliott v Commonwealth (1936) 54 CLR 657.

Section 55: ‘Tacking’ in tax laws 7.33

Section 55 of the Constitution provides:

Tax Bills Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. [page 182] Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.

The purpose of s 55 7.34 The purpose of s 55 is to prevent ‘the tacking of extraneous matter to a tax bill’ and ‘the tacking together of tax bills of different kinds and unlimited number in one measure’: Osborne v Commonwealth (1911) 12 CLR 321 at 342 per Barton J; at 373–4 per Higgins J. The intention of the provision was to ensure separate consideration of every taxation measure by each House of Parliament, with the second paragraph fulfilling ‘an important role in enabling the Senate to protect the people of the States from financial aggression on the part of the Commonwealth’: State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 343 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ; see also Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 190 per Isaacs J.

‘Laws imposing taxation shall deal only with the imposition of taxation’ 7.35 In Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) (2004) 220 CLR 388 (for the facts, see 7.29) Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ delivered the following statement about s 55: 57 … what the delegates to the Conventions that led to federation would have had well in mind was the turbulent relations concerning financial measures between the variously constructed colonial bicameral legislatures after the grants to the Australian colonies of responsible and representative government … … 60 ‘Tacking’ was said by Deakin to have (Stephens v Abrahams [No 2] (1903) 29 VLR 229 at 235, arguendo): consisted invariably in the attempt to pass some foreign and usually very important measure by including it in some measure with regard to which the will of the people is believed to lie in a particular direction; and in the one legislative body seeking to take advantage of that to put the other in the position that it must either reject something which the people desire, or, if it accepts it, must accept also some other measure to which it has objections, and which it would reject if sent up as a separate measure. When s 55 is seen as directed to alleviating the mischief thereby indicated, a point made in the Convention Debates at Melbourne in 1898 by Mr R E O’Connor and Mr Kingston is of some force. This is the need for a construction of the first limb of s 55 that, while acknowledging the mischief against which it was directed, namely the abuses through ‘tacking’ by the House of Representatives of its powers with respect to taxation, at the same time guards against abuse by the Senate of the protection given against tacking of non-taxation measures by assertion of a power in the Senate to frustrate the enactment of effective taxation laws. … Conclusions respecting the first limb of s 55 69 These formulations by Higgins J and Starke J should be accepted. They are consistent with the evident purpose of s 55, supported by its history, of restraining [page 183] abuse by the House of Representatives of its powers with respect to taxing measures

by the tacking of other measures and so placing the Senate in the invidious position of which Deakin spoke in his argument in Stephens. ‘Tacking’ is quite a different matter to the insertion in a taxing statute of provisions for the assessment, collection and recovery of that tax. 70 To accept these propositions means that a law containing added provisions of this nature is still a ‘law imposing taxation’ to which there attaches the stipulation in s 53 of the Constitution denying to the Senate a power of amendment but enabling a return of Bills with a request, by message, for omission or amendment of any items or provisions therein. 71 However, the construction of the first limb of s 55 which should be accepted does not foreclose further observance of a practice or convention of splitting Bills between a taxing Act and an assessment Act. An assessment Act of the character of those in the numerous decisions of this Court discussed earlier in these reasons will not be a law imposing taxation with respect to which s 53 will restrict the powers of the Senate … … 74 The result is there should be answered ‘No’ to the question … whether the Mirror Taxes Act is invalid or ineffective to permit the assessment of duty under the assessment on the ground that, contrary to s 55 of the Constitution, it is a law imposing taxation and deals with a subject-matter or subject-matters other than the imposition of taxation.

‘Laws imposing taxation … shall deal with one subject of taxation only’ 7.36 In State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329, Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ approved (at 350) the test developed by Isaacs J in Harding v Federal Commissioner of Taxation (1917) 23 CLR 119 at 135: [I]n order to bring into operation the second paragraph of s 55 of the Constitution the plaintiffs must show that the legislation operates in such a way as to deal with ‘a necessarily distinct and separate’ subject of taxation.

The second paragraph of s 55 does not mean that federal tax laws may not impose liability on a variety of objects. For example, fringe benefits tax can affect cars, accommodation, food, travel etc: see State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329. A tax imposed on both capital receipts and income receipts would survive a s 55 challenge: Resch v Federal Commissioner of Taxation (1942)

66 CLR 198. Rather, the paragraph was intended to prevent the Commonwealth from passing omnibus tax Acts; for example, a single Act which taxed income, legal transactions, retail sales etc.

Section 114 7.37

Section 114 provides that:

A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

[page 184] 7.38 As Gleeson CJ, Gaudron, McHugh and Hayne JJ pointed out in SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 at 79: At least three kinds of issue may arise. First, what is meant by ‘tax on property’? That requires consideration of what constitutes a tax and what constitutes a tax on property. Secondly, what is meant by ‘property … belonging to’ a State? Thirdly, how is ‘State’ to be understood? [original emphasis]

‘Any tax on property of any kind’ 7.39 The definition of ‘tax’ was considered in the first section of this chapter. The concept of property has typically been given a broad interpretation by the High Court: see Chapter 11, especially at 11.7. In Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349 Dixon J said that s 51(xxxi): … is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognised at law or in equity and to some specific form of property in a chattel or chose in action similarly recognised, but … it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control … of any subject of property.

Property is a thing — though it may be intangible, like intellectual property — but it is also defined by reference to our relationship to it: whether we can use it, control it or enjoy it. The phrase ‘property of any kind’ reinforces the breadth of the concept of ‘property’ in s 114. Property belonging to the Commonwealth or a state 7.40 Section 114 refers to property belonging to the Commonwealth or a state or states. Accordingly, as Gummow J pointed out in SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 at 79: The constitutional phrase ‘any tax on property of any kind’ belonging to the Commonwealth or a State does not confer exemption upon such property from any form of tax; the tax must be imposed by reference to the relationship between the taxpayer and the relevant property, and tax the ownership or holding thereof [emphasis added].

So, as the High Court explained in Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219 at 227: … a tax imposed on the use or occupation of land by the owner would be a tax on property for the purposes of the section for the reason that it is tantamount to a tax upon the ownership or holding of the relevant property [emphasis added].

However, a law that imposes tax on income derived from owned or held property would not fall within s 114: South Australia v Commonwealth (Superannuation Fund Investment Trust case) (1992) 174 CLR 235. Similarly, a tax on a transaction involving property, such as a stamp duty imposed on an instrument creating an interest in land, would not be a tax on property for the purpose of s 114: Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330; Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630; but cf, Attorney-General Qld; Ex rel Goldsbrough, Mort & Co Ltd v Attorney-General [page 185]

(Cth) (1915) 20 CLR 148 at 162 per Griffith CJ (‘the right of alienation is a part or incident of property, and not something extrinsic or additional to it’). On the other hand, a sales tax on goods owned and used by the State Bank of New South Wales (at that time, an emanation of the Crown) was a tax on the ownership and use of goods within s 114: Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219. ‘Commonwealth’ and ‘State’ in this context 7.41 The definition of ‘State’ for the purposes of s 114 was considered in SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51. The Queensland Government had enacted legislation to bail out failing building societies. The predecessor to SGH Ltd, which had received payments pursuant to this scheme, was later assessed for taxation on income received under the bail-out package. A constitutional question arose whether SGH was to be treated as the State of Queensland, or its agency or instrumentality. If so, it might be immune from federal income tax by the operation of s 114. Gleeson CJ, Gaudron, McHugh and Hayne JJ delivered a joint judgment. Their Honours said that the decision of a state to conduct its activity as a corporation does not, by itself, indicate that the executive government of a state has ceded any immunity that it might enjoy under s 114. Historically, the interposition of a corporation did not remove railways from the constitutional reference to railways (Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (Railway Servants case) (1906) 4 CLR 488 at 535), nor banks from constitutional references to state banking: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 52. In Deputy Commissioner of Taxation v State Bank (NSW) (State Bank case) (1992) 174 CLR 219 at 230, the court rejected a submission that the question whether a polity is a

state (or the Commonwealth) for the purposes of s 114 is to be determined by asking whether a body is entitled to Crown privileges or immunity (raising different questions, considered at 13.39). Rather, it is relevant to consider every feature of the entity which bears upon its relationship with the polity including (but not limited to) the activities undertaken by that entity, the legal relationship between the entity and the executive government of the state and to identify what rights or powers the executive government of the state has over the use and disposal of the property in question: SGH at 69–70. SGH Limited submitted that the circumstances of its establishment were of an ‘essentially public character’, to provide stability in the building society industry in Queensland and to enhance investor confidence in the industry. But unlike the banks found to be part of the relevant polities in Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334, State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 or Deputy Federal Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219, there was no provision in the rules of SGH, or in its governing statute, that it should pursue the interests of the state or the public or that its policies could be determined by the executive government. Furthermore, the control that could be exercised by the state over the affairs of SGH (whether through the board or at a general meeting) was hedged about by the obligation [page 186] not to disregard the interests of persons other than the state. Accordingly, the justices concluded that SGH Ltd was not the state for the purposes of s 114. Approach to characterisation

7.42 Consistent with the approach taken to many other constitutional prohibitions, s 114 must be given a substantive operation, and this requires that the substantive effect of Commonwealth or state laws that are alleged to infringe s 114 must be taken into account. This was confirmed in Deputy Federal Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219 at 227: In the context of a constitutional immunity from taxation on property, it is not possible to make a rigid dichotomy between a tax on property and a tax on transactions. A tax framed as a tax on transactions may in some circumstances amount to a tax on property. Such a tax, though it may take the form of a tax on transactions, may yet be in truth and substance a tax on property. If it were otherwise, the constitutional immunity would be little more than an empty shell, easily circumvented by framing the tax as a tax on transactions, though upon analysis, the tax is tantamount to a tax upon the ownership or holding of property.

An opportunity to review this approach was specifically declined in SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 at 67.

Excise 7.43

Section 90 of the Constitution relevantly provides:

On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive …

Section 90 deals with three topics 7.44 The first of the three topics dealt with in s 90 is customs duties. A customs duty is a type of tax imposed on import or export goods. On 8 October 1901 at 4.00pm the Commonwealth imposed a uniform system of customs duties and the power to levy customs duties has been exercised exclusively by the Commonwealth from that date. The second paragraph of s 90 was exhausted after this date. The second topic covered in s 90 is duties of excise. An excise is a tax on goods within a trading area, such as Australia (the definition of ‘excise’ in s 90 is considered further below). The third topic covered in s 90 is

bounties. A bounty is a type of financial incentive which may be given to produce or export certain types of goods. This power is also exclusive to the Commonwealth: see ss 51(iii) and 90. However, the exclusive power to grant bounties is subject to the exceptions outlined in s 91, which are concerned with the encouragement of mining development in the states and the coordination of federal/state bounty policy. ‘Exclusive’ power 7.45 The Commonwealth’s exclusive power to levy duties of customs and excise is exclusive of the states: Peterswald v Bartley (1904) 1 CLR 497. It is also exclusive of the territories: Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1993) 177 CLR 248. [page 187] The purpose of s 90 7.46 It is generally agreed that one of the primary objectives of Federation was the removal of colonial barriers to free trade within the Commonwealth. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561, Mason CJ, Brennan, Deane and McHugh JJ gave the following account of the purpose of ss 90 and 92 (at 585): … ss 90 and 92, taken together with the safeguards against Commonwealth discrimination in s 51(ii) and (iii) and s 88, created a Commonwealth economic union, not an association of States each with its own separate economy: Philip Morris at 426. Section 92 of the Constitution ensured that the domestic market of each State be opened equally to goods from interstate and goods of local production or manufacture (Cole v Whitfield at 391), but that would not have been sufficient by itself to create a Commonwealth economic union. Differential taxes on goods, if permitted, could have distorted local markets within the Commonwealth. That possibility was averted by ss 51(ii) and (iii), 86, 88, 90 and 92 of the Constitution which created a single legislative authority to impose taxes on goods and to grant bounties and required those powers to

be exercised uniformly. Sections 90 and 92 of the Constitution both came into operation when uniform duties of customs were imposed by the Commonwealth. The constitutional contemporaneity of those events together with the provisions of s 51(ii) and (iii) show that the customs and excise imposts to be paid to government in respect of particular goods and the bounties to be paid by government on particular goods were to be uniform throughout the Commonwealth (as Deane J observed in Hematite Petroleum at 660). The purpose is not difficult to detect. It was to ensure that differential taxes on goods and differential bonuses on the production or export of goods should not divert trade or distort competition. Of course, trade and competition are affected by a variety of factors but the imposition of a tax on goods is a particular way by which a government may attract or discourage trade and distort competition.

Their Honours also approved the statement of Dixon J in Parton v Milk Board (Vic) (1949) 80 CLR 229 at 260, that s 90: … was intended to give the Parliament a real control of the taxation of commodities and to ensure that the execution of whatever policy it adopted should not be hampered or defeated by State action.

The members of the minority in Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561, Dawson, Toohey and Gaudron JJ, adopted a different approach. The majority approach has since attracted the support of a second majority in Ha v New South Wales (1997) 189 CLR 465. What is an ‘excise’? 7.47 To determine the extent of the Commonwealth’s exclusive power under s 90 of the Constitution it is first necessary to consider the meaning of the word ‘excise’. The early view of the court, from Peterswald v Bartley (1904) 1 CLR 497, was that excises were ‘taxes on the production and manufacture of articles’. This narrower view attracted the support of Dawson, Toohey and Gaudron JJ in Ha v New South Wales (1997) 189 CLR 465: see below. The broader view, and one which was approved by a majority of the High Court in Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561 and in Ha v New South Wales (1997) 189 CLR 465 was that an excise duty is ‘a tax in respect of goods at any step

[page 188] in the production or distribution to the point of consumption’ (Capital Duplicators at 583) or ‘an inland tax on a step in production, manufacture, sale or distribution of goods’ (Ha at 496). Relationship of charge to goods 7.48 The early view was that an excise duty could only be a tax which was directly related to the quantity or value of goods. For example, in Bolton v Madsen (1963) 110 CLR 264, Queensland transport legislation required persons using Queensland roads to be licensed, with the licence fee calculated by reference to the carrying capacity of the vehicle. The legislation was challenged on the basis that the fee was sufficiently related to the quantity of goods to warrant the characterisation of the law as an excise. It was argued that the movement of goods from the place of production to the market is an essential step in the production of goods, and that a tax on transport was tantamount to a tax on the goods transported. In a unanimous judgment, the High Court held (at 271) that the licence fee was not an excise, because the charge did not ‘directly relate’ to the goods: … it is the criterion of liability that determines whether or not a tax is a duty of excise. The tax is a duty of excise only when it is imposed directly upon goods or, to put the same thing in another way, when it directly affects goods, and to establish no more than its imposition has increased the cost of putting goods upon the market by a calculable amount falls shorts of establishing the directness of relation between the tax and the goods that is the essential characteristic of a duty of excise [emphasis added].

Similar legislation had been upheld previously in Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117. The ‘criterion of liability’ approach 7.49 The discredited view that an excise duty must have a direct relationship to goods was allied to a discredited approach to

characterisation based on the ‘criterion of liability’ of a challenged law. Under the criterion of liability approach, the court would consider the ‘form’ and not the ‘substance’ of state laws which were alleged to impose excise duties contrary to s 90. If, for example, a state law required payment for a licence to conduct a business selling certain goods calculated by reference to previous sales, then the ‘criterion of liability’ of the charge was not the quantity or value of the goods currently for sale (which would make the charge an excise), but rather, the charge was characterised as a licence fee to conduct a business. The connection between the charge and the sale of goods was broken, and consequently the charge could not be characterised as an excise, which must, under the old view, ‘directly relate’ to the goods in question. So, for example, in Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529, the High Court considered the validity of South Australian legislation which imposed a licence fee to conduct a liquor retail business calculated as a percentage (6 per cent) of the value of all liquor sold in a previous 12-month period. A second licence fee for ‘temporary’ licences imposed a 6 per cent charge on daily sales. The first scheme was upheld and the second struck down. Kitto J described the criterion of liability approach in the following way: ‘[A] tax is not a duty of excise unless the criterion of liability is the taking of a step in a process of bringing goods into [page 189] existence or to a consumable stage, or passing them down the line which reaches from the earliest stage in production to the point of receipt by the consumer’: at 559; semble Taylor J at 575; Menzies J at 591. The criterion of liability approach to characterisation enabled the

state to evade s 90 by using the ‘backdating’ device which broke down the connection between the levy and the sale of goods. These devices were used in the ‘franchise cases’, which each involved backdated licence fees: Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 (alcohol retailers’ business licence fee); Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 (tobacco retailers’ licence fee); H C Sleigh Ltd v South Australia (1977) 136 CLR 475 (petrol retailers’ licence fee). State reliance on revenue 7.50 Until the landmark decision of the High Court in Ha v New South Wales (1997) 189 CLR 465, the states had grown to rely on the revenue supplied by the schemes upheld in the franchise cases. This caused members of the court some concern and delayed the rejection of the criterion of liability approach. In H C Sleigh Ltd v South Australia (1977) 136 CLR 475, Mason J said (at 501): Generally speaking, the court should be slow to depart from its previous decisions, especially in constitutional cases where the overturning of past decisions may well disturb the justifiable assumptions on which legislative powers have been exercised by the Commonwealth and the States and on which financial appropriations, budget plans and administrative arrangements have been made by governments. This comment applies with equal force to excise cases for, as a result of the contraction of the financial powers of the States in consequence of s 105A of the Financial Agreement and the Uniform Tax Cases (1942) 65 CLR 373; (1957) 99 CLR 575, any expansion in the constitutional concept of excise has a marked effect on the capacity of the States to raise revenue for government.

In Evda Nominees Pty Ltd v Victoria (1983) 154 CLR 311 the High Court decided not to reconsider the franchise cases. Gibbs CJ, Mason, Murphy, Wilson, Brennan and Dawson JJ (with whom Deane J agreed on this point) said (at 316): In the present case, the legislation which the plaintiffs seek to impugn as imposing a duty of excise was upheld in Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177. In that case, the court heard argument directed to show that the earlier decision in Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 should not be followed, but declined to accept that argument. Again, in H C Sleigh Ltd v South Australia (1977) 136 CLR 475 the court held that those cases should be followed. The court does not consider that it

should now depart from the actual decisions reached in those cases, particularly since the States have organised their financial affairs in reliance on them.

For a more detailed account of the operation of precedent in constitutional law see 2.24–2.35. The rejection of the criterion of liability approach 7.51 In the very first excise case, Peterswald v Bartley (1904) 1 CLR 497, the High Court said (at 511) that: … in considering the validity of laws of this kind we must look at the substance and not the form. If the Statute is good in substance, the court will regard the substance, and hold the law to be valid, whatever the form may be.

[page 190] A ‘substance’ approach to characterisation was not taken in the transport cases or the franchise cases (see Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 at 365). However, in a number of decisions, culminating in Ha v New South Wales (1997) 189 CLR 465, members of the High Court have expressed a preference for the ‘substance approach’: for example, in Western Australia v Hamersley Iron Pty Ltd (No 1) (1969) 120 CLR 42 and Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 at 15 (state law imposing stamp duties in respect of payments received for goods were excise duties); Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59 at 76–7 (a state law imposing a tax on stock was in substance a tax on stock progeny); Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 (a lump sum fee to use a pipeline was in substance an excise on oil production); Gosford Meats Pty Ltd v New South Wales (1985) 155 CLR 368 (an abattoir licence fee calculated by reference to animals slaughtered in a previous year was an excise on meat production); and Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR

561 at 583 (a licence to sell X-rated videos by wholesale or retail was in substance a tax on the production of such videos). In Queanbeyan City Council v ACTEW Corporation Ltd [2009] FCA 943 the Federal Court held that a tax imposed on the Australian Capital Territory water network was a tax on the water conveyed by that network. In Gosford Meats, Mason and Deane JJ said (at 32): … a general proposition that a tax cannot be a duty of excise if it takes the form of a licence fee that is quantified by reference to goods produced, manufactured or sold during some period prior to the actual period of the licence is simply inconsistent with the well established and fundamental principle … that the question whether a tax is an excise must be determined by reference to substance rather than form.

The triumph of the ‘substance’ approach? 7.52 The criterion of liability approach no longer commands the support of a majority of the court. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561, Mason CJ, Brennan, Deane and McHugh JJ said (at 583): In Bolton v Madsen and Dennis Hotels the character of an impost on goods, whether a duty of excise or a licence fee exacted only in respect of the business generally, was determined by reference solely to the terms of the relevant legislation. By construing the legislation, the characteristic ‘criterion of liability’ was identified. The criterion of liability was the means by which it was ascertained whether an exaction was a tax ‘directly related to goods imposed at some step in their production or distribution before they reach the hands of consumers’. Subsequent cases have rejected both this application of criterion of liability … and … the proposition that it is the exclusive determinant of the question whether an exaction is an excise. Instead, in determining whether an exaction is an excise, the court has regard to matters of substance rather than form … That approach, which looks to the practical or substantial operation of the statute as well as to its legal operation, requires that a variety of factors be taken into account … The rejection of the criterion of liability as an exclusive test has not disturbed general acceptance of the proposition that a tax in respect of goods at any step in the production or distribution to the point of consumption is an excise. That is the fundamental proposition for which Bolton v Madsen stands as authority, subject only to the qualification that it speaks of taxes ‘directly related to goods’ [references omitted].

[page 191] In Ha v New South Wales (1997) 189 CLR 465, the High Court was invited to consider the constitutional validity of state legislation which prohibited the sale of tobacco whether by wholesale or retail without a business franchise licence calculated by reference to 100 per cent of the value of the tobacco sold in a previous month. Brennan CJ, McHugh, Gummow and Kirby JJ held that the law was invalid on the basis that the licence fee was in substance a tax on goods, and made the following remarks relating to the characterisation of laws that are alleged to infringe a constitutional prohibition (at 498): When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates — its practical operation — must be examined as well as its terms in order to ensure that the limitation or restriction is not circumvented by mere drafting devices. In recent cases, this court has insisted on an examination of the practical operation (or substance) of a law impugned for contravention of a constitutional limitation or restriction on power.

Ha v New South Wales was approved in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 and British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30. 7.53 The decisions of the Federal Court, Full Federal Court and High Court in Queanbeyan City Council v Australian Capital Territory were summarised above at 7.17–7.19. In the Queanbeyan case, it was argued that the UNFT (as to which, see 7.17) and the WAC (as to which, see 7.18) were excise duties, and therefore contrary to s 90 as ultra vires the Australian Capital Territory (see Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1993) 177 CLR 248: 7.45–7.46). Buchanan J, in the Federal Court, considered the substantive operation of the UNFT and concluded it was a tax and an excise. His Honour also considered the substantive operation of the WAC, but ultimately concluded that the WAC could also be characterised as a

charge for the acquisition of a scarce natural resource, and was therefore not an excise. The decision of Keane CJ (with whom Stone J agreed) in the Full Federal Court may signal a retreat from the principles of substantive characterisation reflected in the balance of modern authorities. Keane CJ held that it would be necessary for Queanbeyan to demonstrate that ACTEW was legally compelled to take water from the Australian Capital Territory: (2010) 188 FCR 541 at 561. (This is a deviation from the practical compulsion test laid down by Dixon J in Attorney-General (NSW) v Homebush Flour Mills (1937) 56 CLR 390 (see 7.7).) As Perram J pointed out in his judgment, which dissented on this point, the applicable test is one of practical compulsion. ACTEW was whollyowned by the Australian Capital Territory and there could be no doubt that it would continue to operate as a water utility and seek a water licence from the Territory. Indeed, that is the utility’s raison d’etre. Stone J’s approach also reflected an unwillingness to apply the practical compulsion test stated in the Homebush Flour Mills case. Stone J concluded that the WAC was the quid pro quo for ACTEW obtaining a valuable resource from the territory (at [168]): In my view there is no need to go beyond the plain words of the statute to characterise ACTEW’s rights to take water. ACTEW pays a licence fee in return for which it [page 192] enjoys the privilege of taking water in accordance with the terms of its licence. In the absence of the licence that taking that would be illegal.

Neither of the majority judgments in the Full Federal Court focused on the impact that the pass through of these charges had on consumers (raising the price of a traded good), a factor that was regarded as critical in the analogous case, Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 (see 7.16). A similar criticism can be made of the High Court’s decision. The

fact that the relationship between the Australian Capital Territory and its utility could be described as ‘intergovernmental’ did not preclude the conclusion that the UNFT and WAC were also, in substance, excise duties. After all, the charges that were imposed on ACTEW under the UNFT and the WAC were ultimately passed on to water consumers. It is arguable that neither the Full Federal Court (with the exception of Perram J, in relation to the UNFT) nor the High Court considered the substantive effect of these charges on consumers, including Queanbeyan City Council.

[page 193]

Chapter Eight

The Constitution and Corporations Introduction 8.1

Section 51(xx) of the Constitution provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: (xx) foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth.

What is a corporation? 8.2 A corporation is an association of people who join for particular purposes, characteristically for the conduct of business. Incorporation, historically effected by royal charter or by an Act of Parliament, is now typically effected by a procedure governed by statute. A corporation has a distinct legal identity from the individuals who form it, including legal rights and duties under statute and at common law such as the capacity to sue and be sued, to enter contracts, to own property and to be prosecuted for criminal offences. The distinctive feature of most modern corporations is limited liability, denoted by the label ‘Limited’ in the case of a public company and ‘Proprietary Limited’ in the case of a private company. ‘Limited liability’ means that the company may limit its liability to creditors to the value of its share capital or to an amount nominated by the members. The significance of corporations

8.3 A substantial proportion of the business activity in Australia is undertaken by or with corporations. Consequently, s 51(xx) provides the Commonwealth with a significant power to regulate Australian business. The corporations power has been used to support legislation regulating trading and financial corporations in both the private and public sectors, corporate trade practices, their activities preparatory to trading and the activities of corporate officers. Section 51(xx) also enables the Commonwealth to regulate the industrial relations of foreign, trading or financial corporations (that is, their trade in labour). A first step to understanding the reach of the power is to define its subject matter: ‘foreign’, ‘trading’ or ‘financial’ corporations (these are explored at 8.4–8.7 below). The subject matter of s 51(xx) is not directed to ‘corporations’: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171 at 180 per French CJ, Hayne, Kiefel, Bell, Keane and Nettle JJ. However, where the entity argues that it is not a ‘corporation’, let alone a ‘trading’ or ‘financial’ [page 194] corporation, it may be necessary to examine the meaning of the phrase. In this case, Queensland Rail, a statutory authority established under the Queensland Rail Transit Authority Act 2013 (Qld), declared itself not to be a body corporate: s 6(2). It did so to remove itself from the operation of the Fair Work Act 2009 (Cth), which ‘governs employment by constitutional corporations to the exclusion of state and territory industrial laws’ (at 191). As Gageler J explained, ‘removal of Queensland Rail from the operation of the Fair Work Act was part of the legislative design of the Queensland Rail Transit Authority Act, as is made plain’ by provisions expressly contemplating that ‘employment by Queensland Rail would be

governed by the Industrial Relations Act 1999 (Qld)’: at 191. French CJ, Hayne, Kiefel, Bell, Keane and Nettle JJ rejected the argument that the statutory declaration in s 6(2) that Queensland Rail was not a ‘corporation’ sufficed to extricate it from susceptibility to s 51(xx): at 184. Their Honours did not consider it necessary to ‘state exhaustively the defining characteristics of a corporation … Whether the authority is a trading corporation can be answered without attempting that task’: at 181. This implies that, for the majority, the question of whether an authority is a ‘corporation’ is to be answered in the course of determining whether it is a ‘trading’ or ‘financial’ corporation. There was no question that Queensland Rail had the ‘full character of a corporation’: at 187–8. Gageler J took a slightly different tact. His Honour was prepared to accept, as an anterior question to whether the entity was a ‘trading’ or ‘financial’ corporation, whether ‘constituted under state legislation [it] answers the constitutional description of a “corporation”’: at 191. Gageler J clearly thought it did. It answers ‘that description because it is an entity established by law with capacity to own property, to contract and to sue’: at 191–2. Both the joint judgment and Gageler J then concluded that Queensland Rail answered the description of a ‘trading corporation’ (see further 8.8). Regarding the interpretation of the term ‘corporations’, all members of the court in Queensland Rail adopted an ambulatory approach and concluded that it should not be interpreted narrowly. There is no compelling reason or justification for reading s 51(xx) as conferring power to ‘deal only with classes of artificial legal entities having characteristics fixed at the time of federation. To read the provision in that way would hobble its operation’ (at 183 per French CJ, Hayne, Kiefel, Bell, Keane and Nettle JJ). Accordingly, it makes no textual or contextual sense to hold that parliament’s power with respect to foreign corporations, or trading or financial corporations formed within the limits of the Commonwealth, ‘should be frozen in time by

limiting the power to entities of the kind that existed at federation’: at 183. Gageler J also observed (at 198–9): The term ‘corporations’ is, and was in 1900, readily capable of encompassing all artificial legal persons; that is to say, all entities, not being merely natural persons, invested by law with capacity for legal relations. There is nothing in the context or in the rest of the Constitution to indicate that any narrower interpretation would best carry out the object and purpose of the conferral by s 51(xx) of a national legislative power with respect to both foreign corporations and trading or financial corporations formed within the limits of the Commonwealth. The constitutional context, both structural and historical, points in favour of the application of the broad orthodox historical meaning.

[page 195]

‘Foreign’, ‘trading’ or ‘financial’ corporations ‘Foreign corporations’ 8.4 ‘Foreign corporations’ have been defined (obiter) as corporations formed outside the limits of the Commonwealth: New South Wales v Commonwealth (1990) 169 CLR 482 at 497–8 per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ; at 504 per Deane J; see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171 at 183 per French CJ, Hayne, Kiefel, Bell, Keane and Nettle JJ. ‘Trading’ 8.5 The meaning of the word ‘trade’ was considered at 6.5. The word ‘trading’ can be interpreted in its current and popular sense, and is not restricted to the denotation it had in 1900: R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (Adamson’s case) (1979) 143 CLR 190 per Mason J at 233.

On the footing that the word ‘trade’ refers to the same phenomena in s 51(xx) as it does in the s 51(i) and s 92 cases, ‘trade’ includes, but is not limited to, buying and selling, negotiations, bargains, transport for reward and the purchase or sale of money, credit, news or information, tangibles or intangibles. 8.6 ‘Trading’ is a gerund or ‘verbal noun’ that denotes activity. It refers to the activity of engaging in trade. Should any significance be attached to the fact that s 51(xx) refers to ‘trading corporations’ rather than, say, ‘corporations that trade’? In Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 182–3, Gibbs CJ, in a passage cited with approval by Dawson J in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 346, said: The words of par (xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid … In other words, in the case of trading and financial corporations, laws which relate to their trading and financial activities will be within the power. This does not mean that a law under s 51(xx) may apply only to the foreign activities of a foreign corporation … It means that the fact that the corporation is a foreign corporation should be significant in the way in which the law relates to it.

The use of the word ‘trading’ in s 51(xx) has given rise to some differences of opinion about the ambit of s 51(xx) and the correct approach to the characterisation of laws said to be supported by s 51(xx) (see 8.18–8.19). ‘Financial’ 8.7 As with the word ‘trading’, the word ‘financial’ is interpreted in its current or ‘popular’ sense: Adamson’s case. In Re Ku-Ring-Gai CoOperative Building Society (No 12) (1978) 22 ALR 621 the Federal Court was asked to consider whether provisions of the Trade Practices Act 1974 (Cth) (TPA) applied to the Ku-Ring-Gai and Dee Why Cooperative Building Societies, which were set up with the primary purpose of providing low interest loans to their members for housing,

but with the ancillary purpose of making a profit from providing this finance. The Full Court agreed that the building societies were ‘financial corporations’ for the [page 196] purposes of s 51(xx). Brennan and Deane JJ expanded on the meaning of ‘financial corporations’. Brennan J described the Ku-Ring-Gai Cooperative in the following way (at 634): … its predominant activity is the activity which it was formed to undertake — the borrowing of moneys to lend to its members, the lending of those moneys, the receipt of repayments and the ultimate repayment of moneys to the source from which they came. These are money dealings. The activities of borrowing in order to lend and lending at interest are financial activities which give to each corporation the character, and place it within the category of financial corporation.

Deane J also considered the activities of the building societies in reaching the same conclusion, and provided additional guidance on the meaning of the phrase ‘financial corporation’ (at 642): … the phrase ‘financial corporation’ is a composite one. It does not refer to solvency. An obvious reference point is to the activity of commercial dealing in finance. Another possible reference point is the provision of financial management or advisory services in relation to financial matters … A common but not invariable characteristic of the relevant type of transaction is that the obligation on each side is to pay money.

It was argued that the building societies were ‘co-operative’ in nature, were incorporated for altruistic reasons, and they engaged in financial arrangements that distinguished them from typical commercial lending enterprises. However, Deane J concluded (at 643): Whatever may have been the motivation of borrower or lender or of those involved in making or assisting in making the relevant funds available, the borrowing from the bank by each applicant was a secured borrowing at interest and was a commercial dealing in finance … The lending to members is the raison d’être of the applicants and both the purpose and the culmination of their operations [see also Bowen CJ at 624].

The High Court had the opportunity to consider the meaning of the

phrase ‘financial corporation’ in State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR 282. The case concerned the Victorian State Superannuation Board, which administered a fund established to provide pension payments for state public servants. The board’s employees were public servants and their salaries were paid by the Victorian Government, and half the members of the board were appointed by the Governor in Council. The board was authorised to make investments with the objective of increasing the size of the superannuation fund, which, at 30 June 1980, totalled some $487m. The constitutional question was whether the TPA applied to the board — was it a ‘financial corporation’ for the purposes of s 51(xx) even though its functions and set-up had a ‘public service’ character? Mason, Murphy and Deane JJ, in a joint judgment (Gibbs CJ and Wilson J dissenting), held that the board was a ‘financial corporation’ within s 51(xx), and expanded on the meaning of the phrase (at 305– 6): [L]ike the expression ‘trading corporation’, the words ‘financial corporation’ are not a term of art; nor do they have a special or settled legal meaning. They do no more than describe a corporation which engages in financial activities or perhaps is intended to do so … a finance corporation … deals in finance for commercial purposes, whether by way of making loans, entering into hire purchase agreements or providing credit in other forms, and this activity is not undertaken for the purpose of carrying on [page 197] some other business. However, just as a corporation may be a trading corporation, notwithstanding that its trading activities are entered into in the course of carrying on its primary or dominant undertaking, thus a corporation which is formed by an employer to provide superannuation benefits for its employees and those of associated employers may nevertheless be a financial corporation if it engages in financial activities in order to provide or augment the superannuation benefits.

In other words, a corporation may be a ‘financial corporation’ for the purposes of s 51(xx) even if it is directed to activities other than the provision of finance. It need only have financial activities.

Character determined by actual or intended activities 8.8 The character of a corporation — whether it is a trading or financial corporation — is a matter that may be determined by reference to the nature of its activities, either actual or intended: New South Wales v Commonwealth (Incorporation case) (1990) 169 CLR 482. If a corporation is formed with the purpose of engaging in trading or financial activities, this will be sufficient to mark the corporation a trading or financial corporation for the purposes of s 51(xx). However, a corporation may not be formed for the purpose of engaging in trading or financial activities, even though it engages in ‘trading’ as an activity incidental to its core functions. Depending on whether the ‘purposes’ test (intended activities) or the ‘actual activities’ test (current activities) is applied, the corporation may (or may not) be regarded as a ‘trading’ or ‘financial’ corporation. Where the corporation’s current and intended activities have inconsistent purposes, courts have tended to favour the actual activities test. Thus, if the corporation is engaged in trading or financial activities, even though it may have been formed for other purposes, it will be a trading or financial corporation within the meaning of s 51(xx) if its trading or financial activities constitute a substantial or significant part of its activities (though those activities need not form a predominant part of its activities). The ‘purposes’ test and the ‘actual activities’ test are respectively considered at 8.9 and 8.11 below. In determining whether a corporation answers the description of a constitutional corporation, both the corporation’s substantial trading purpose and its substantial trading activity may be taken into account. In the event that the two tests produce inconsistent characterisations, preference is usually given to the corporation’s actual trading activities. The High Court

recently applied both the purposes and actual activities tests in characterising the Queensland Rail Statutory Authority as a trading corporation in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171. Gageler J was the most unequivocal, explicitly approving both tests (at 200): The basic point that the constitutional description of trading is capable of being applied to a corporation either by reference to its substantial trading purpose (irrespective of activity) or by reference to its substantial trading activity (irrespective of purpose) is sound in principle and is supported by authority.

Like Gageler J, French CJ, Hayne, Kiefel, Bell, Keane and Nettle JJ refused to countenance the submission advanced by the AttorneyGeneral of Victoria that the actual activities test should be replaced by a different test which uses as a substitute inquiry the ‘characteristic activity’ of a corporation. The majority [page 198] instead confined their remarks to the facts at hand, but seemed to implicitly accept the merit of both the ‘purposes’ and ‘activities’ tests (at 188–9): In order to decide this case, however, it is not necessary to examine those submissions in any detail. Instead, it is enough to conclude that no matter whether attention is directed to the constitution and purposes of the authority, or what it now does, or some combination of those considerations, the authority must be found to be a trading corporation.

The court unanimously characterised the Queensland Rail Statutory Authority as a trading corporation by virtue of its functions and purposes in the Queensland Rail Transit Authority Act 2013 (at 189 per the majority; at 200–1 per Gageler J). Its functions ‘included “managing railways”, “controlling rolling stock on railways”, “providing rail transport services, including passenger services” and

“providing services relating to rail transport services”’. Importantly, the Act also provided that the authority was to ‘carry out its functions as a commercial enterprise’, with provision ‘made for the authority to pay dividends to the state’ and to give ministers an annual ‘estimate of its profit for the financial year’: ss 9(1)(a)–(d), 10(1), 55 and 56(1)(a). For the majority, these provisions led to the irresistible conclusion that the ‘authority was constituted with a view to engaging in trading and doing so with a view to profit’: at 189. Both judgments also recognised that ‘profit-making’ is not an indispensible characteristic of a corporation’s trading activity (at 189 per the majority; at 200 per Gageler J). As for the corporation’s current activities, the authority supplied labour under contract to Queensland Rail Limited (a related entity) for the purpose of providing rail services. French CJ, Hayne, Kiefel, Bell, Keane and Nettle JJ had no trouble concluding that ‘the engagement of personnel by one enterprise for the supply of labour to another enterprise is a trading activity’ (at 189). Gageler J agreed (at 200–1). This meant that the Queensland Rail Statutory Authority was a ‘trading corporation’ for the purposes of s 51(xx) of the Constitution, thus subjecting it to federal industrial relations law. Not all cases are as straightforward as Queensland Rail. The authority’s statutory functions as well as its actual activities pointed to it being a trading corporation. But what if a corporation is formed for primarily non-trading or non-financial purposes (for example, municipal corporations)? The corporation may not have been formed with a view to profit, yet it derives some revenue from its activities. It therefore follows that a corporation’s purposes and actual activities may not always be consistent. Where the corporation’s activities reveal different purposes, either test may be applied. As is revealed in the following cases, there has been judicial disagreement as to which test should apply. The ‘purposes’ test was favoured by a bare majority of 3:2 in R v Trade Practices Tribunal; Ex parte St George County Council (St

George County Council case) (1974) 130 CLR 533, however the ‘actual activities’ test prevailed in an equally close 4:3 split in R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (Adamson’s case) (1979) 143 CLR 190. Intended activities or ‘purposes’ 8.9 The earlier view, preferred by Menzies and Gibbs JJ in R v Trade Practices Tribunal; Ex parte St George County Council (St George County Council case) (1974) 130 CLR 533, was that a corporation was defined by reference to its purposes, rather than [page 199] its activities. In that case, the question was whether provisions of the TPA extended to the St George County Council. The council was a corporation set up under Pt XXIX of the Local Government Act 1919 (NSW). It was formed to buy and sell electricity in a local government district in New South Wales, and it also sold electrical appliances from which it derived profits. The Local Government Act provided that the council should ‘endeavour to conduct each trading undertaking in such a way that without any loss being incurred the service, product, or commodity of the undertaking may be supplied to the consumer as cheaply as possible’. St George County Council argued that they were a public service organisation and should not be subject to the TPA. The High Court held that the council was not a trading corporation. McTiernan J characterised the council’s activities as a ‘municipal trading undertaking’ and the council as having a public purpose rather than a private enterprise purpose. Accordingly, it was not a trading corporation: at 547. Menzies J considered that the ‘character and purpose’ of the council was to serve the public interest, and that

the council was properly characterised as a ‘municipal corporation’ rather than a trading corporation: at 551–3. (In dicta, Menzies J expressed the view that universities, water and sewage utilities, churches, councils and public authorities could not be characterised as ‘trading corporations’: at 553.) Menzies J adopted an historical approach to the language in s 51(xx), and expressed the view that ‘trading corporations’ were distinguishable from ‘municipal corporations’ in 1900, and that this distinction was reflected in the language of s 51(xx), which referred specifically to ‘trading corporations’. Gibbs J provided substantially similar reasons, saying (at 561): The question is whether the County Council is a trading corporation. In my opinion, the words ‘trading corporation’ in s 51(xx) do not mean ‘a corporation which is trading’. The word ‘trading’ forms part of a composite expression and indicates the essential attribute of the kind of corporation to which it refers. It is common to describe corporations according to their nature, and to speak, for example, of ecclesiastical, eleemosynary or municipal corporations … the words ‘trading corporations’ … refer to corporations of a particular kind … [an eleemosynary corporation was a corporation established with the purpose of providing welfare].

Accordingly, s 51(xx) corporations were to be defined by reference to some criteria other than their activities. Gibbs J continued (at 562): … the power given by s 51(xx) is not in respect of trading, and it does not extend to corporations generally; a corporation, even if trading, is not within the power unless it is a foreign, trading or financial corporation … A trading corporation is one formed for the purpose of trading [emphasis added].

Applying this test to the council, Gibbs J emphasised the provisions of the Local Government Act and the intention that councils not engage in activities for profit and concluded that it was not a s 51(xx) corporation because it was not set up for the purpose of engaging in trading activities. Barwick CJ and Stephen J dissented, preferring a test based on the extent and relative significance of a corporation’s actual activities: at 543 and 568 respectively. A test of intended activities applies to ‘shelf’ companies

8.10 In subsequent decisions, the High Court has preferred a test which makes reference to the actual activities of corporations rather than the purposes for which [page 200] they were incorporated. However, in Fencott v Muller (1983) 152 CLR 570 the High Court was required to consider whether or not the TPA extended to regulate Oakland Nominees Pty Ltd, a ‘shelf company’ (a company which has been incorporated and placed on the ‘shelf’, not yet having engaged in any trading or financial activities). A majority of the High Court (Mason, Murphy, Brennan and Deane JJ; Gibbs CJ, Wilson and Dawson JJ dissenting) agreed that a test of the purposes (or ‘intended activities’) could be applied in circumstances where a corporation had not yet commenced activities (at 601–2): … in such a case as the present where a corporation has not begun, or has barely begun, to carry on business … its constitution, including its objects, assumes particular significance as a guide (see State Superannuation Board (1982) 150 CLR at 304). Oakland’s memorandum and articles of association reveal that the objects for which it was established include engaging in financial activities and carrying on a large variety of businesses, though it lay dormant — ‘on the shelf’ — after its incorporation. In the circumstances of the present case, there is no better guide to its character as a trading or financial corporation. It is immaterial whether it is a trading corporation or a financial corporation or which of those characters its future activities may give it.

Accordingly, the character of a corporation as a trading or financial corporation can be determined by reference to its objects contained in its memorandum and articles of association. The objects, a list of the purposes for which an association was set up, can be referred to as a guide to whether the association is a trading or financial corporation, where it was a ‘shelf’ company which had not yet carried on business: at 602. Substantial or significant activities

8.11 Typically, the High Court will examine the actual activities of a corporation to determine whether it is a s 51(xx) corporation: see R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (Adamson’s case) (1979) 143 CLR 190. This case concerned an Australian Rules football player named Adamson, who alleged that the Western Australian National Football League, the South Australian National Football League and the West Perth Football Club Incorporated had contravened the TPA by disallowing him from leaving a Western Australian football club to join Norwood, a South Australian club. In order for the TPA to apply, the Western Australian and South Australian Leagues would have to be found to be ‘trading corporations’ within the meaning of the Act and s 51(xx). The object of each of the leagues and club was to promote football. The leagues earned substantial income from matches, broadcasting, fees, advertising, membership subscriptions and club patrons. The leagues also had non-profit objectives including the promotion of the sport of Australian Rules Football. The majority of the court (Barwick CJ, Mason, Jacobs and Murphy JJ; Gibbs, Stephen and Aickin JJ dissenting) characterised the leagues and club as trading corporations by reference to their activities. Barwick CJ (at 208) said they had ‘substantial’ trading activities. Mason J, with whom Jacobs J agreed, also applied an activities test, saying (at 233): ‘Trading corporation’ is not and never has been a term of art or one having a special legal meaning. Nor, as the Chief Justice pointed out, was there a generally accepted [page 201] definition of the expression in the nineteenth century. Essentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation.

Murphy J, the fourth member of the majority on this point, said (at 239):

Even though trading is not the major part of its activities, the description, ‘trading corporation’ does not mean a corporation which trades and does nothing else or in which trading is the dominant activity. A trading corporation may also be a sporting, religious, or governmental body. As long as the trading is not insubstantial, the fact that trading is incidental to other activities does not prevent it being a trading corporation.

8.12 The view that the trading activities of a corporation need not form a predominant part of the activities of a corporation for it to be a ‘trading corporation’ for the purposes of s 51(xx) was confirmed by majority in State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR 282. Mason, Murphy and Deane JJ said (at 304): … there is nothing in Adamson which lends support for the view that the fact that a corporation carries on independent trading activities on a significant scale will not result in its being properly categorized as a trading corporation if other more extensive non-trading activities properly warrant its being also categorized as a corporation of some other type.

Since most corporations engage in some trading or financial activities in the course of carrying on their primary or dominant undertakings, it might be concluded that the focus of any assessment relating to the character of a corporation has shifted to the quantum of trading or financial activities engaged in by the relevant corporation. In Quickenden v O’Connor (2001) 109 FCR 243 the Full Federal Court held that the University of Western Australia was a trading corporation for the purposes of s 51(xx). Carr J calculated that at least 28 per cent of the university’s revenue came from trading activities. Carr J noted that at trial it was found that the figure was 18 per cent but either figure pointed to substantial trading activities that formed a significant proportion of the university’s overall activities. Carr J remarked (at 273) that ‘substantiality in this context, when measured in dollars, does not mean a large absolute figure … it is a relative measure ie, compared to the total income generated by the corporation’. Determining whether a corporation answers the

description of a ‘trading corporation’ does not involve, as Perram, Robertson and Griffiths JJ stated in United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497, ‘the application of a formula or equation nor the substitution of percentages or other measures of monetary value as between the activities found to be trading activities and the activities not so found’: at 525. To repeat Carr J’s sentiments in Quickenden, the ascertainment of what constitutes substantial trading activities or revenue is a relative measure, bearing in mind the nature, and the extent or volume of the corporation’s activities: see at 524–5 per Perram, Robertson and Griffiths JJ. As their Honours confirmed, relying on settled High Court precedent in Adamson’s case, State Superannuation Board and Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1, whether the corporation carries on trading activities on a ‘significant scale’, compared with the extent of the corporation’s overall activities, is very much a question of ‘fact and degree’, to be determined in individual cases. [page 202] Previously, in E v Australian Red Cross Society (1991) 27 FCR 310 at 340–5, Wilcox J found that the Australian Red Cross Society was a s 51(xx) corporation (earning $2m in 1984–85 from the sale of goods). Wilcox J also held that the New South Wales Division of the Society of the Prince Alfred Hospital was a trading corporation on the basis that it received $12m in state government funding, $14m in patient fees and $3.7m from ‘business activities’. The quantum of trading activity was decisive. United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497 provides another interesting example. Prior to the Victorian state election in 2010, the Brumby Labor Government entered into an enterprise bargaining agreement with the

United Firefighters’ Union, in which the Country Fire Authority (CFA) would commit to employ an additional 340 firefighters over a six-year period. The CFA is a statutory authority established by the Country Fire Authority Act 1958 (Vic). As a public organisation, the CFA relies on the state government for funding. Funding is provided by ratepayers via a fire service levy on council rates. However, the CFA also receives substantial revenue from trading activities. Following the 2010 election, the newly elected Liberal–National Coalition failed to comply with the agreement and the union took action to get it enforced. The union claimed that the CFA’s refusal to adhere to the agreement breached the Fair Work Act 2009 (Cth). An important threshold question was whether the CFA was a trading corporation. In characterising the CFA as a trading corporation, the primary judge determined that the CFA’s trading revenue, amounting to nearly $13m, was not ‘minimal, trivial or insignificant’: United Firefighters’ Union of Australia v Country Fire Authority (2014) 218 FCR 210 at 510 per Murphy J. This was re-affirmed by the Full Court on appeal: (2015) 228 FCR 497 at [53] per Perram, Robertson and Griffiths JJ. Although the CFA was properly categorised as a ‘volunteer and community based fire and emergency services organisation’, it also carried on ‘substantial’ or ‘not insubstantial’ trading activities (at [134]), which characterised it as a trading corporation (at [140]). This was despite the fact that, ‘as a proportion of its total revenue’, its ‘trading activities accounted for about 2.7%’: at [29]. This, proportionally, is a low percentage. The quantum of the CFA’s trading activities was $12.93m, but this paled in comparison to its total revenue of $466.5m in 2010–11. Notwithstanding, the Full Court upheld the primary judge’s decision that its trading activities were ‘not peripheral, insignificant, incidental or trivial when considered either in absolute terms or relative to its overall activities’: at [30]. This suggests that a significant quantum derived through trading activities will be a crucial factor in characterising the corporation as a trading

corporation. At the very least it ensures that a substantial sum will not be dismissed out-of-hand as ‘trivial’ in relation to its overall activities.

‘Formed within the limits of the Commonwealth’ No general power to incorporate trading or financial corporations 8.13 Section 51(xx) does not give the federal parliament the power to incorporate companies under s 51(xx). A unanimous judgment of the High Court in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 to this effect was confirmed in New South Wales v Commonwealth (Incorporation case) (1990) 169 CLR 482. This case concerned the validity of certain provisions of the Corporations Act 1989 (Cth), which purported to give the Commonwealth the power to incorporate trading [page 203] and financial corporations. The majority (Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ; Deane J dissenting) interpreted the word ‘formed’ in s 51(xx) as a word (at 501): … used to describe corporations which have been or shall have been created in Australia.

Consequently, s 51(xx) only gives the Commonwealth power over foreign, trading or financial corporations that are already formed. The majority referred to comments made during the Convention Debates to support their conclusion. Huddart, Parker was upheld on this point, even though the decision was made during the currency of the doctrine of state reserved powers, and by a High Court the majority of which was preoccupied with the preservation of state power. The majority in the Incorporation case said that the question of the power to

incorporate was determined ‘by reference to purely textual considerations, quite apart from the now discarded doctrine’. The majority also supported their conclusion on the basis of the principle of expressio unius est exclusio alterius: the presence of express words in s 51(xiii) providing power to incorporate banks and the omission of such a power from s 51(xx) indicated the intention of the people who wrote the Constitution that s 51(xx) has a more limited scope. The Commonwealth may incorporate companies under other powers 8.14 While the Commonwealth does not enjoy a power to incorporate trading or financial corporations under s 51(xx), it may incorporate companies for purposes incidental to other heads of power: see Barwick CJ in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 488. In Australian National Airways Pty Ltd v Commonwealth (No 1) (1945) 71 CLR 29 the High Court said that the Commonwealth may incorporate a company under s 51(i) to conduct an interstate trading business. The Commonwealth can also incorporate companies in territories using s 122.

The scope of the corporations power The early view 8.15 The early view of the court in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 was that s 51(xx) had a limited scope, and could not be used to regulate the intrastate activities of foreign, trading or financial corporations. The case concerned the constitutional validity of a number of provisions of the Australian Industries Preservation Act 1906 (Cth) which extended to control the restraint or monopolisation of intrastate trade. The High Court applied the doctrine of state reserved powers (see 3.6), and concluded

that the power to regulate intrastate trade had been reserved to the states and consequently any provisions affecting intrastate trade were invalid: Griffith CJ at 352–4; Barton J at 364; O’Connor J at 370–1. Isaacs and Higgins JJ, dissenting, took a more expansive view regarding the scope of s 51(xx). Isaacs J expressed the view (at 395) that the power could be used to regulate a corporation’s ‘relations to outsiders’ and that this might, in some circumstances, include matters of ‘internal management’ which might have some ‘connection with outward transactions’ such as ‘balance sheets, registers of [page 204] members, (and) payment of calls’. Higgins J said (at 412) that s 51(xx) ‘can regulate such companies as to their status, and as to the powers they may exercise within Australia, and as to the conditions under which they shall be permitted to carry on business’. A wider view 8.16 The High Court’s approach to s 51(xx) in Huddart, Parker was rejected in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468. This case concerned the constitutional validity of provisions of the Trade Practices Act 1965 (Cth), and, specifically, whether provisions that regulated the intrastate trading activities and practices of trading or financial corporations could be supported by s 51(xx). In the Commonwealth Industrial Court, Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 was applied and these provisions were found to be constitutionally invalid. On appeal to the High Court, Huddart, Parker was disapproved on the basis that it was decided during the currency of the doctrine of state reserved powers, a doctrine ‘which was exploded and

unambiguously rejected by this court in the year 1920 in the decision of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) [(1920) 28 CLR 129]’: per Barwick CJ at 485. The rest of the court agreed: McTiernan J at 499; Menzies J at 510–11; Windeyer J at 512; Owen J at 513; Walsh J at 515; Gibbs J at 522. The court confirmed (per Gibbs J at 523; see also at 488, 499, 510, 512, 515) that: … a law may be a law with respect to a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth notwithstanding that it affects the corporation in the conduct of its intrastate trade.

Expressing a wish not to make a definitive statement regarding the scope of s 51(xx), Barwick CJ yet proceeded on the footing that the corporations power extended to enable the regulation of ‘amongst other things the trading activities of foreign corporations and trading or financial corporations formed within the limits of the Commonwealth’: at 489. The other justices appeared to proceed on the same basis: McTiernan J at 499; semble Menzies J at 511; Windeyer J at 512; Owen J at 513; Walsh J at 515; Gibbs J at 523. The court has since confirmed that the power extends to authorise offences subjecting individuals to civil liability under the trade practices legislation it had upheld in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468. So, in R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235, CLM Holdings Pty Ltd was charged with offences under federal trade practices law with respect to the false description of goods offered for sale. It was argued that provisions extending liability to persons who were not themselves s 51(xx) corporations were not laws with respect to corporations but laws with respect to natural persons. Mason J, with whom the rest of the court agreed, said (at 246–7): The point here is that if a head of constitutional power enables the Parliament to legislate so as to create a particular offence, then that head of power or the incidental power will authorize a provision having the same effect as s 5 of the Crimes Act in its application to a person who is knowingly concerned in the commission of the offence.

[page 205] A similar issue was raised in Fencott v Muller (1983) 152 CLR 570. The decision concerned a provision of the TPA that extended civil liability to persons involved in corporate contraventions of the Act. It was argued that the provision extending liability to corporate officers was not a law with respect to corporations but a law with respect to natural persons. A joint judgment was delivered by Mason, Murphy, Brennan and Deane JJ (with whom the rest of the court agreed on this point; see also Gibbs CJ at 583–4, Wilson J at 611 and Dawson J at 620). The court confirmed that s 51(xx) extends to enable the regulation of the trading activities of trading corporations (at 598–9): … it was argued that the casting of the net of civil liability over persons ‘involved’ in the contravention does not affect the corporation’s rights and duties and therefore is not a valid law. The argument is too narrow. Once it is accepted, as it now is, that the corporations power extends to the regulation of the trading activities of trading corporations, it necessarily follows that, in some circumstances at least, the power must extend to the imposition of duties on natural persons. Two considerations combine to sustain this conclusion. The first is that corporations act through natural persons. The second — and it is a consequence of the first — is that, in order to be effective, a regulation of the activities of corporations calls for the imposition of duties on those natural persons who would, or might, in the ordinary course of events, participate in the corporate activities, the subject of the intended regulation. Accordingly, when in the legitimate exercise of the corporations power duties are imposed on corporations in relation to their trading activities, breach of which creates a civil liability, the power extends to the imposition of duties on natural persons, breach of which also creates a civil liability, not to engage in conduct which assists or facilitates a contravention by a corporation of duties thus imposed on it. Then the imposition of duties on natural persons is seen to be an element or incident in the regulation of the corporate trading activities [emphasis added].

Wider still 8.17 The wider view of the corporations power expressed in Strickland v Rocla Concrete Pipes Ltd and the CLM Holdings case enabled the Commonwealth in Actors and Announcers Equity Association v

Fontana Films Pty Ltd (1982) 150 CLR 169 to protect the trading activities of s 51(xx) corporations from entities that were not s 51(xx) corporations. The case concerned the constitutional validity of s 45D of the TPA which prohibited secondary boycotts. Section 45D(1)(b)(i) of the Act prohibited persons (the ‘first’ and ‘second’ person) from acting in concert to hinder or prevent the supply of goods or services by a third person to a fourth person where that fourth person is a corporation and the conduct is engaged in for the purpose of causing substantial loss or damage to the business of the fourth person or of a body corporate related to that person. Fontana Films alleged that Actors Equity had engaged in conduct that had prevented the supply of services by theatrical agents to Fontana. The constitutional question was whether s 45D was a constitutionally valid exercise of s 51(xx). The High Court upheld the provision. Gibbs CJ, with whom Stephen and Wilson JJ agreed, treated the provision as a law directed to ‘conduct that is calculated to damage the trading activities of a trading corporation’ and therefore within power: at 183, semble Stephen J at 195, Wilson J at 215. Mason J, with whom Aickin J agreed, went further, stating that s 45D(1)(b)(i) was valid because it was [page 206] a law with respect to trading corporations — a law, to be supported by s 51(xx), did not need to be limited to the regulation of the trading activities of trading corporations (at 207): I should not wish it to be thought from what I have said that the corporations power is confined in its application to trading corporations to laws that deal with their trading activities. The subject of the power is corporations — of the kind described; the power is not expressed as one with respect to the activities of corporations, let alone activities of a particular kind or kinds.

Murphy J and Brennan J each described s 51(xx) as a plenary power

with respect to the types of corporations listed in it, and best understood as a power to legislate with respect to a type of legal person (at 212 and 216, respectively). A power to regulate any activities of a s 51(xx) corporation? 8.18 The scope of s 51(xx) was again considered in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1, and the question whether the power extends beyond the trading activities of s 51(xx) corporations was specifically addressed. In that case, the High Court considered the validity of certain regulations made under the World Heritage Properties Conservation Act 1983 (Cth). A majority of the court confirmed that s 51(xx) extended to enable the regulation of activities of a trading or financial corporation undertaken for the purpose of trading activities: Gibbs CJ at 119; Mason J at 157; Murphy J at 179; Brennan J at 241; Deane J at 271. However, Mason, Murphy and Deane JJ went further. Mason J said (at 148–9): It would be unduly restrictive to confine to the regulation and protection of the trading activities of trading corporations. After all, the subject matter of the power is persons, not activities … It can scarcely have been intended that the scope of the power was to be limited by reference to the foreign aspects of foreign corporations and the financial aspects of financial corporations. And it would be irrational to conclude that the power is plenary in the case of those corporations, but limited in the case of trading corporations.

Speaking of the view that the power was limited to the regulation of the trading activities of trading corporations, Mason J remarked (at 149): … that the interpretation fails to give effect to the principle that a legislative power conferred by the Constitution should be liberally construed … a power to make laws with respect to corporations (of designated categories), as in the case of a power with respect to natural persons, would seem naturally to extend to their acts and activities.

Murphy J (at 179) again described s 51(xx) as ‘plenary’: The power under s 51(xx) extends to any command affecting the behaviour of a foreign corporation or a trading or financial corporation and is not restricted to commands

about the trading activities of trading corporations or about the financial activities of financial corporations.

Deane J agreed, saying (at 269): It was submitted … that the power to legislate with respect to trading corporations should be construed as being restricted to a power to make laws with respect to the trading activities of trading corporations … I find it more than difficult to accept [page 207] that such a construction of s 51(xx) accords with the well-established principle that constitutional grants of legislative power should be construed expansively rather than pedantically. Examination of the words and structure of s 51(xx) discloses no reason in language or in principle of legal interpretation why the power to legislate with respect to trading corporations should be given such a restricted meaning.

So, once a corporation has been identified as a ‘foreign’, ‘trading’ or ‘financial’ corporation in accordance with the tests considered above, then the Commonwealth’s power over that corporation is plenary (that is, not subject to limitations or exceptions). Does this mean that the Commonwealth can regulate any activity of a foreign, trading or financial corporation? Or is the power impliedly limited by the fact that it describes particular types of corporations in a particular way? That is, is it relevant that the power refers to specific types of corporations — corporations that have a particular origin (for example, foreign), or engage in particular activities (for example, trading or financial activities) — rather than simply referring to ‘corporations’? In Strickland v Rocla Concrete Pipes, the justices of the High Court seemed reluctant to reach the conclusion that s 51(xx) would extend to enable the regulation of any activity of a s 51(xx) corporation. In that case, Barwick CJ remarked (at 489–90): I ought to observe that it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, from the validity of these sections, that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations formed within the limits of the Commonwealth is necessarily a

law with respect to the subject matter of s 51(xx). Nor does it follow that any law which is addressed specifically to such corporations or some of them is such a law [emphasis added].

So what are the limits of s 51(xx)? Can the Commonwealth use s 51(xx) to regulate any activity of a foreign, trading or financial corporation? This point is considered further in the next paragraph. 8.19 The ambit of s 51(xx) and the tests of characterisation to be applied were considered in detail in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323. As Gaudron J explained at 356, the case arose out of timber gathering arrangements involving Tasmanian Pulp and Forest Holdings Ltd, its contractors, Mr and Mrs Wagner, and their subcontractors, Mr and Mrs Dingjan and Mr and Mrs Ryan. As previously explained at 2.20, Tasmanian Pulp contracted for the harvesting and transport of timber to individual harvest contractors, who performed their obligations partly by their own efforts and partly by subcontracting to owner-drivers. At the relevant time, Mr and Mrs Wagner had entered into subcontracts with Mr and Mrs Dingjan so that they could satisfy their contracts with Tasmanian Pulp. When Tasmanian Pulp altered its practices and requirements, the Wagners in turn altered their arrangements with the subcontractors. The union to which Mr Dingjan belonged and other subcontractors then made an application for review of the subcontracts under provisions of the Industrial Relations Act 1988 (Cth). These provisions authorised the Australian Industrial Relations Commission to review and vary contracts for services which bind an independent contractor and which relate to ‘the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract’. [page 208]

Another provision of the law tied these review provisions back to s 51(xx) by requiring that the contracts relate to the business of a s 51(xx) corporation. Could the Commonwealth use s 51(xx) to regulate contracts entered into for the purposes of the business of a trading corporation? Was there a sufficient connection between the s 51(xx) corporation (A) and a subcontract entered into by B with C for the supply of services that would ultimately affect the business activities of A? The provisions were held invalid by majority (Brennan, Dawson, Toohey and McHugh JJ; Mason CJ, Deane and Gaudron JJ dissenting). The members of the court expressed different opinions as to the scope of s 51(xx) (discussed here), and the correct approach to the characterisation of laws said to be supported under the power. Mason CJ adopted the wide approach to the ambit of the power that he had previously taken in the Tasmanian Dam case. Mason CJ said that the corporations power must be construed as a plenary power with respect to the categories of corporations mentioned in s 51(xx). It is not confined in its application to the trading activities of trading corporations and the financial activities of financial corporations. It is not limited to the regulation of the functions, activities and relationships of constitutional corporations. The proposition that the characterisation of a law is to be determined by reference to its direct legal operation according to its terms means that the character of the law is to be ascertained by reference to the nature of the rights, duties and privileges which it creates, changes, abolishes or regulates. But a law that exhibits in its practical operation a substantial or sufficient connection with the relevant head of power is a law with respect to that power. The relevant provisions allowed the Australian Industrial Relations Commission to exercise its power to review ‘in relation to a contract relating to the business of a constitutional corporation’. On these facts, a practical relationship existed between the subcontract

and a s 51(xx) corporation, and this was sufficient to satisfy the requirement of connection. Brennan J said that s 51(xx) is expressed as a power with respect to types of legal persons. To attract the support of s 51(xx), it is not enough that the law applies to constitutional corporations and to other persons indifferently. To attract that support, the law must discriminate between constitutional corporations and other persons, either by reference to the persons on whom it confers rights or privileges or imposes duties or liabilities or by reference to the persons whom it affects by its operation. A law conferring power to vary or set aside a contract between a constitutional corporation and an independent contractor for work to be done for the purposes of the corporation’s business where the contract is unfair or harsh or contrary to the public interest would be a law supported by s 51(xx). A contract of that kind would be of a kind amenable to control by a law enacted under s 51(xx) because such a law would limit the corporation’s freedom to contract and qualify its contractual rights to have the work done for the purposes of its business. But the provisions at issue might apply to contracts (such as one between the Wagners and Dingjans) that may have no direct effect on constitutional corporations (such as Tasmanian Pulp) or on their businesses, and are therefore invalid. The connection between law and power in the circumstances was fortuitous and adventitious, and therefore insufficient. [page 209] Deane J agreed with Gaudron J. Dawson J, the second member of the majority, said the phrase ‘trading or financial corporation’ should be understood as a composite

expression embracing both the corporate nature of the entity as well as its trading or financial character, and for a law to be a valid law with respect to a trading or financial corporation, the fact that it is a trading or financial corporation should be significant in the way in which the law relates to it. On this basis, the Commonwealth provisions at issue were invalid because they regulated contracts, including contracts that may not be connected to s 51(xx) corporations in any way relevant to their character. Adopting Barwick CJ’s observation in Strickland v Rocla Concrete Pipes, Dawson J said it is not the case that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations formed within the limits of the Commonwealth is necessarily a law with respect to the subject matter of s 51(xx). For Dawson J, the reference to contracts involving s 51(xx) corporations seemed to be adopted by the Commonwealth merely as a means of introducing those corporations ‘as a peg upon which to hang legislation, not upon the subject of constitutional corporations, but upon an entirely different subject’: at 347. Toohey J suggested that the approach taken by Dawson J focused too narrowly on the process of characterisation. Toohey J held that s 51(xx) is a plenary power, to be ‘construed with all the generality which the words used admit’. The test of characterisation was simply whether there is a sufficient connection between the law and the subject matter to be able to say that the law is one with respect to that subject matter. The connection must be substantial, not merely tenuous, and such a test would be applied whether the law referred to s 51(xx) corporations or not. The law must operate on the rights, duties, powers or privileges of corporations in such a way as to evidence a sufficient connection between the law and the corporations. It would not be enough to identify corporations as a reference point so as to affect the activities of others. On these facts,

Toohey J concluded that there might be no connection other than that the contract sought to be reviewed relates in some unidentified way to the business of such a corporation. This would be a connection that was no more than remote and tenuous. The contract might have only the most indirect effect on the corporation or none at all. For these reasons, the relevant provisions were invalid. Gaudron J held (at 364) that s 51(xx) is a plenary power, to be construed according to its terms and not by reference to unnecessary implications and limitations. On the topic of characterisation, Gaudron J held that a law expressed to operate on or by reference to the business functions, activities or relationships of constitutional corporations (including contracts with individuals, partnerships or other non-corporate entities) is a law with respect to those corporations. To the extent that the provisions extended to enable review and variation of some aspect of a contract that had no connection with the business activities of a constitutional corporation and which, thus, is separate and distinct from the business functions and activities which an individual performs for the corporation or the business relationship which he or she has with it, the law might be invalid. But here, that question did not arise because the subcontract was related to the business of a s 51(xx) corporation. [page 210] McHugh J, like Toohey J, said that s 51(xx) is plenary, and should be construed with all the generality that its words will admit. Although laws that regulate the activities, functions, relationships or business of corporations are clearly laws with respect to corporations, the power conferred by s 51(xx) extends to any subject that affects the corporation. Disagreeing with Dawson J, McHugh J pointed out that as long as the

law in question can be characterised as a law with respect to trading, financial or foreign corporations, the Parliament of the Commonwealth may regulate many subject matters that are otherwise outside the scope of Commonwealth legislative power. That does not mean, however, that any law that refers to s 51(xx) corporations will be valid. For a law to be characterised as a law with respect to a head of power in s 51, the law must do more than simply refer to the subject matter of the power. McHugh J provided a lucid description of the orthodox principles (at 368–71): In determining whether a law is ‘with respect to’ a head of power in s 51 of the Constitution, two steps must be taken. First, the character of the law must be determined. That is done by reference to the rights, powers, liabilities, duties and privileges which it creates. Secondly, a judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to a head of power conferred by s 51. In determining whether the connection exists, the practical, as well as the legal, operation of the law must be examined. If a connection exists between the law and a s 51 head of power, the law will be ‘with respect to’ that head of power unless the connection is, in the words of Dixon J, ‘so insubstantial, tenuous or distant’ that it cannot sensibly be described as a law ‘with respect to’ the head of power. Where a law purports to be ‘with respect to’ a s 51(xx) corporation, it is difficult to see how it can have any connection with such a corporation unless, in its legal or practical operation, it has significance for the corporation. That means that it must have some significance for the activities, functions, relationships or business of the corporation. If a law regulates the activities, functions, relationships or business of a s 51(xx) corporation, no more is needed to bring the law within s 51(xx). That is because the law, by regulating the activities, etc, is regulating the conduct of the corporation or those who deal with it. Further, if, by reference to the activities or functions of s 51(xx) corporations, a law regulates the conduct of those who control, work for, or hold shares or office in those corporations, it is unlikely that any further fact will be needed to bring the law within the reach of s 51(xx). It is not enough, however, to attract the operation of s 51(xx) that the law merely refers to or operates upon the existence of a corporate function or relationship or a category of corporate behaviour. The activities, functions, relationships and business of s 51(xx) corporations are not the constitutional switches that throw open the stream of power conferred by s 51(xx). In Actors and Announcers Equity Association v Fontana Films Pty Ltd, Brennan J said: It is of the nature of the power that it is a power to make laws with respect to corporate persons, not with respect to functions, activities or relationships. So, where a law seeks to regulate the conduct of persons other than s 51(xx)

corporations or the employees, officers or shareholders of those corporations, the law will generally not be authorised by s 51(xx) unless it does more than operate by reference to the activities, functions, relationships or business of such corporations. A law operating on the conduct of outsiders will not be within the power conferred by s 51(xx) unless that conduct has significance for trading, financial or foreign [page 211] corporations. In most cases, that will mean that the conduct must have some beneficial or detrimental effect on trading, financial or foreign corporations or their officers, employees or shareholders. Thus, laws that regulate conduct that promotes or protects the functions, activities, relationships or business of such corporations or laws that regulate conduct-conferring benefits on those corporations are laws with respect to s 51(xx) corporations even though they are also laws with respect to that conduct. … The validity of the (relevant provision) does not depend upon the directness or indirectness of the relationship between the contract and the business of a s 51(xx) corporation. The validity of the paragraph depends upon whether a contract referred to in (the relevant provision) has significance for such a corporation. A contract would have significance if it conferred some benefit or imposed some detriment on a s 51(xx) corporation or if it affected the activities, functions, relationships or business of such a corporation. But the jurisdiction conferred (on the Commission) is not dependent upon the contract having any effect on, or any other significance for, the corporation. The Commission is given jurisdiction to intervene and set aside a contract on the bare condition that the contract relates to the business of a s 51(xx) corporation. Whether the unfairness, harshness or contrariety to the public interest of the contract has any consequences or significance for the corporation is of no relevance whatever. Jurisdiction to make orders arises once a relationship between the contract and the business of a s 51(xx) corporation exists. That is not enough in my opinion to make the provisions a law with respect to a s 51(xx) corporation.

8.20 Re Dingjan was summarised by Kenny J of the Federal Court in Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 at 488–9 in the following terms: The scope of the corporations power has been delineated in a series of decisions of the High Court. Plainly enough, the subject matter of the power is the corporations to which it refers. On the one hand, it is now generally accepted that the power is not confined in its application to the trading activities of trading corporations or to the financial activities of financial corporations: see, eg, Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 (Re Dingjan) at 333 per Mason CJ, 336 per Brennan J, 352 per Toohey J, 364 per Gaudron J and 368 per McHugh J. On the other hand, as Deane J observed in The

Commonwealth v Tasmania (1983) 158 CLR 1 at 272, a law does not necessarily come within the corporations power ‘simply because’ it happens to apply to constitutional corporations. See also Re Dingjan at 334–5 per Dawson J. In Re Dingjan, four of the seven members of the Court acknowledged that a law which regulates the business functions, activities and relationships of corporations of the kind referred to in s 51(xx) is within power: see 183 CLR at 333–4 per Mason CJ, 364 per Gaudron J (with whom Deane J agreed at 342) and 368 per McHugh J. According to the reasons for judgment of their Honours, the power may very well extend further, presumably to the regulation of all the activities and relationships of constitutional corporations. It is unnecessary in this case to decide whether or not it does.

The broader approach identified by Kenny J in her Honour’s conclusions are consistent with orthodox principles of constitutional interpretation. Where there is conflict regarding the natural and ordinary meaning of the words in constitutional powers, the High Court has indicated a preference for the broader [page 212] or wider interpretation of a word or phrase. This approach to constitutional interpretation was endorsed by O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 367–8: … it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the court should, in my opinion, always lead to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.

In addition, it is a well-established principle that the words of a power are to be construed with all the generality the words admit. The conclusion is irresistible when one considers the absurdity of the narrow view, as Mason J pointed out in the Tasmanian Dam case (1983)

158 CLR 1 at 148–9: It can scarcely have been intended that the scope of the power was to be limited by reference to the foreign aspects of foreign corporations and the financial aspects of financial corporations. And it would be irrational to conclude that the power is plenary in the case of those corporations, but limited in the case of trading corporations.

In the Engineers’ case, the High Court said that the powers of the federal parliament are not to be construed as if they are beset by unexpressed or implied limitations on power. The same approach should be taken to s 51(xx). In Dingjan’s case, Dawson J (at 346) said: ‘[F]or a law to be a valid law with respect to a trading or financial corporation, the fact that it is a trading or financial corporation should be significant in the way in which the law relates to it’. But since a majority of the court in Re Dingjan concluded that s 51(xx) is not limited to the foreign, trading or financial activities of foreign, trading or financial corporations, but extends to enable the regulation of any matter that is sufficiently connected to a s 51(xx) corporation, Toohey J was right to observe that Dawson J’s test of characterisation is too narrow. In addition, Dawson J’s comment that the Commonwealth was merely using s 51(xx) ‘as a peg upon which to hang legislation, not upon the subject of constitutional corporations, but upon an entirely different subject’ misconceives the way in which the Commonwealth’s powers under s 51 can and have been used. It is now well established that the Commonwealth can use its powers to regulate, indirectly, activities and things that fall outside the strict subject matter of a power (consider, for example, Murphyores case (s 51(i) power over export licensing used to effect the environmental policy of preventing sandmining on Fraser Island by rendering operations economically unviable) or the Fairfax case (s 51(ii) used to provide tax incentives for people investing in government bonds)): see 6.15. 8.21

After the Liberal–National Coalition achieved majority control

of the Senate following the 2004 federal election, Prime Minister John Howard expressed the opinion that the government’s Senate majority should be used ‘very carefully and very soberly’. Several months later he announced that he had ‘never been one [page 213] to genuflect uncritically at the altar of States’ rights’ and announced sweeping reforms of the industrial relations system with the stated objective of achieving a single, national system. The Workplace Relations Act 1996 (Cth), the primary piece of industrial relations legislation in Australia at the time, was significantly amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). Up until that point, federal laws which regulated industrial relations had been based primarily on s 51(xxxv) of the Constitution. Section 51(xxxv) (see further Chapter 12) authorises the parliament to make laws with respect to ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’. This power therefore imposed content and geographical constraints. Laws enacted under this head of power were limited to the resolution of interstate industrial disputes. Most aspects of industrial relations not concerned with the ‘prevention and settlement’ of interstate industrial disputes remained with the states. However, the states had the ability to refer their powers over industrial relations to the Commonwealth pursuant to s 51(xxxvii) of the Constitution. Victoria had already referred their power to the Commonwealth in 1996: Commonwealth Powers (Industrial Relations) Act 1996 (Vic). Although the Workplace Relations Act 1996 (Cth) had relied on s 51(xxxv) of the Constitution, between 1996 and 2005 the Commonwealth began to consider the viability of s 51(xx) to regulate aspects of industrial relations linked to ‘constitutional

corporations’. However, the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (herein ‘Work Choices’) marked a dramatic shift in Commonwealth–state relations. The ‘Work Choices’ legislation was enacted on the footing that the Commonwealth Government had constitutional power under s 51(xx) to regulate the industrial relations activities of s 51(xx) corporations and their employees. The notion that the Commonwealth had power to comprehensively regulate the industrial rights and obligations of trading and financial corporations was extremely controversial, given that industrial relations had traditionally been the subject of state industrial relations laws. Certainly s 51(xx) is cast in wide terms, but had the framers of the Constitution not intended to confine the Commonwealth’s power over ‘industrial relations’ to the ‘prevention and settlement’ of interstate disputes? This argument was advanced by the plaintiffs and accepted by the minority of Kirby and Callinan JJ. The creation of a single, national system of industrial relations may have been a questionable proposition, but its validity was upheld by a majority of the High Court. The stated purpose of implementing the new national workplace relations system, as outlined in the Bill’s Explanatory Memorandum, was to raise productivity (and by extension living standards). The Explanatory Memorandum also stated that the new framework would ‘reduce unnecessary restrictions on labour market flexibility and reduce the burden on employers and employees in complying with workplace relations regulation’: at p 7. What brought the uniform system of industrial relations within the purview of s 51(xx) of the Constitution were ss 4, 5 and 6 of the amended Workplace Relations Act 1996 (Cth). ‘Australian employers’ was held to include trading or financial corporations formed within the limits of the Commonwealth: s 4. An ‘employer’ was defined in s 6(1)(a) of the Act as ‘a constitutional corporation, so far as it employs, or usually employs,

[page 214] an individual’. Section 6 further prescribed that an ‘employer’ included the Commonwealth as well as Commonwealth authorities. It is obvious that all corporations act through their employees. Section 5(1) defined an ‘employee’ as an ‘individual so far as he or she is employed or usually employed, as described in the definition of employer’ in s 6(1) of the Act. The operation of s 51(xx) in this context, along with s 122 (to regulate industrial relations in the territories) and powers already conferred by Victoria, meant that the new federal industrial relations system would extend to 85 per cent of Australian employees (see p 9 of the Explanatory Memorandum), with the remaining 15 per cent of employees continuing to be regulated by state laws (which effectively exempted only sole traders and partnerships from regulation). The ‘Work Choices’ legislation was contentious from its inception. It was strongly opposed by the Australian Labor Party and the Australian Council of Trade Unions. Among the various reasons for their opposition to the legislation were controversial changes to unfair dismissal laws. For example, under ‘Work Choices’ an employee was excluded from making an application to the Australian Industrial Relations Commission for relief on the grounds that their termination was ‘harsh, unjust or unreasonable’ where the employer employed 100 employees or fewer, or where the dismissal was animated by a genuine operational reason, broadly defined as reasons of an economic, technological, structural or similar nature relating to the service or business of the employer: s 643(8)–(10). This potentially affected a great number of employees, given the fact that most Australian businesses employ 20 or fewer employees. The width of the phrase ‘genuine operational reason’ would have further compounded these concerns given the relative ease with which an

employer could dismiss an employee. 8.22 The States of New South Wales, Victoria, Queensland, South Australia and Western Australia, along with two trade union organisations, initiated a High Court challenge. The plaintiffs sought declarations that the ‘Work Choices’ legislation was constitutionally invalid. The Attorneys-General of Tasmania, the Northern Territory and the Australian Capital Territory intervened in support of the plaintiffs. In New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1, a majority of the High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Kirby and Callinan JJ dissenting) upheld the validity of the ‘Work Choices’ legislation, holding that the Commonwealth was able to rely on s 51(xx) to establish a single, uniform industrial relations system based around the definition of an ‘employer ’. Section 51(xxxv) had undoubtedly been supplanted by an alternative, more expansive head of Commonwealth legislative power. The plaintiffs advanced three submissions in support of the view that s 51(xx) was of limited operation. As Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ noted in the joint judgment, there were three principal strands to the plaintiffs’ case (at 75): 57 First, it was submitted that s 51(xx) permits the making of a law with respect to only the external relationships of constitutional corporations, not their internal relationships, and that the relationship between a constitutional corporation and its [page 215] employees should be classified as ‘internal’. Secondly, both in amplification of and as an alternative to the first submission, it was submitted that it is insufficient for a law to be characterised as a law with respect to constitutional corporations that the law confers rights or imposes obligations upon them. If a positive test is to be adopted, the preferred test was said to be a distinctive character test — that the nature of the corporation is significant as an element in the nature or character of the laws. Thirdly … it was submitted that s 51(xx) is to be read down, or confined in its operation, by reference to s 51(xxxv), with the consequence that the parliament has no power to

legislate with respect to the relationship between a constitutional corporation and its employees except pursuant to s 51(xxxv).

Elaborating on these submissions further, the first argument was animated by the judgment of Isaacs J in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, in which his Honour held that s 51(xx) applied to laws regulating the ‘external relationships’ of corporations (envisaged as the ‘conduct of corporations in relation to outside persons’: at 396), not their ‘internal relationships’. According to Isaacs J, the Commonwealth could use s 51(xx) to regulate ‘the conduct of the corporations in their transactions or as affecting the public’ (that is, ‘outward transactions’) (at 395), but not matters which affect the ‘purely internal management’ of corporations. This would prohibit the Commonwealth from prescribing the amount of wages and hours of work by employees of corporations and the qualifications of company directors: at 396. Isaacs J considered that the Commonwealth was also precluded from creating and extinguishing (including the liquidation of) corporations: at 395–6. In the context of the Work Choices case, the plaintiffs argued that ‘industrial relations’ fell into the category of an ‘internal relationship’, which should not be regulated under s 51(xx). This argument was rejected by the majority in Work Choices. The majority held that the division between internal and external relationships was of ‘doubtful stability’. Not only does it make sense to ‘treat relationships with employees as a matter external to the corporation’ (at 78), the suggested distinction between the internal and external relationships of a corporation detracts from more immediate issues. As the majority put it, ‘those issues focus upon the text of s 51(xx) and the ambit of the power it confers on the federal parliament, not upon such matters as whether, for example, a corporation’s dealings with persons the corporation hopes [may engage in] … “internal” or “external” dealings’: at 89. The second argument proffered by the plaintiffs was that s 51(xx) was of limited operation because the power may only be used to

regulate the trading or financial activities of trading or financial corporations (the ‘distinctive character’ test favoured by Dawson J in Re Dingjan). This was a very important issue because it related to whether the High Court should embrace a narrow or wide interpretation of s 51(xx). If the Tasmanian Dam case and Re Dingjan stand for the proposition that the so-called ‘wide’ approach had been in the ascendency prior to the Work Choices case, this was strongly confirmed by the majority in this case. The majority justices contrasted the ‘distinctive character’ test with the ‘object of command’ test. At the narrow end, the distinctive character test was described as ‘an approach which would read the power as confined to making laws with respect to the trading activities of Australian trading corporations and the financial activities of Australian financial corporations’: at 112. This clearly prevents the Commonwealth [page 216] from regulating broader aspects of ‘constitutional corporations’, such as industrial relations between employers and employees. The majority had remarked earlier in the joint judgment (at 103): 140 The plaintiffs submitted that in the cases decided after Huddart Parker there could be found views ‘as to the scope of s 51(xx), or the appropriate test for characterisation of a law with respect to foreign, financial and trading corporations’. Two tests were said to be thus revealed — a ‘distinctive character test’, and an ‘object of command test’ — the former of which was to be preferred, and the latter to be regarded as having been rejected, or at least not endorsed, in the cases. The ‘distinctive character test’ was said to be ‘the fact that the corporation is a foreign, trading or financial corporation should be significant in the way in which the law relates to it’ if the law is to be valid. The ‘object of command test’ was said to be: that a constitutional corporation is ‘an “object of command” [of a law], permitting or prohibiting a trading or financial corporation from engaging in conduct or forming relationships’.

At the broad end of the spectrum is the ‘object of command’ test. The members of the majority would endorse ‘object of command’ as

the appropriate test in the Work Choices case. This requires the law to ‘single out constitutional corporations as the object of statutory command’. The impugned parts of the ‘Work Choices’ legislation, in so far as they applied to the definition of an ‘employer’ within s 6(1)(a) of the Act, ‘singled out’ constitutional corporations as the object of statutory command (see, for example, at 136–7), notwithstanding that the legislation also simultaneously ‘singled out’ employees. This confirms that the scope of s 51(xx) is very wide. According to this reasoning, a law may be upheld under s 51(xx) even though the ‘character’ or ‘activities’ of the corporation may not be significant in the way in which the law relates to it. This is a mediocre, and to some extent slightly confusing, description. Does this mean that it is no longer necessary to determine whether the corporation is a ‘trading’ or ‘financial’ corporation? Surely this is not the case, for that would be absurd. As a matter of logic (especially given the recent authority of Communications, Electrical, Electronic Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171, in which the public railway operator in Queensland was held to be a ‘trading corporation’), the better view is that the corporation must be capable of being ‘characterised’ as either a trading or financial corporation, should the issue arise. This would be required if the character of the corporation was in dispute. However, the law in question does not have to be directed to the ‘trading’ or ‘financial’ activities of trading or financial corporations. This is the point to be taken from the ‘object of command’ test in the Work Choices case. The ‘character’ of the corporation need not be ‘significant’ in the way the law relates to it, for the law to be valid. The broad nature of the ‘object of command’ test means that, as a matter of interpretation, few controls are placed on the exercise of the power. A law may simply state that a corporation ‘shall’ or ‘shall not’ do something. 8.23

The majority, in their joint judgment, reflected on the

arguments made by the states that s 51(xx) should be given a restricted operation. The following passages from the Work Choices case illustrate their dissatisfaction with these arguments (at 116 onwards): 183 An important element underpinning … all of the plaintiffs’ arguments about s 51(xx), was that it is necessary to limit the reach of the power. The step of taking [page 217] ‘a different approach’ (Re Dingjan (1995) 183 CLR 323 at 345) to s 51(xx) was said by Dawson J to be required because s 51(xx) is a power with respect to persons. But what necessarily underpins the proposition that a different approach is required to the task of determining whether a law is supported by s 51(xx) is an implicit assertion about federal balance and, in particular, an implicit assertion that to give the ordinary scope to the legislative power with respect to the particular persons mentioned in s 51(xx) could or would distort that balance. So much was made explicit by Gibbs CJ in Fontana Films (Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 182) — ‘extraordinary consequences would result if the Parliament had power to make any kind of law on any subject affecting such corporations’. And if there is no underlying assertion about federal balance, there could be no reason to adopt a different approach to determining the sufficiency of connection between an impugned law and the relevant head of power. The bare fact that s 51(xx) is a power to legislate with respect to particular persons rather than functions, activities or relationships, requires no such conclusion. 184 Each of the arguments advanced by the plaintiffs proffered a form of limit on the reach of s 51(xx): only ‘external’ relationships, ‘something more’ than object of command, ‘distinctive character’ or ‘discriminatory operation’. As noted earlier, because the new Act prescribes norms which regulate or affect the relationship between constitutional corporations and their employees, the limits proffered by the plaintiffs must be seen as contentions about what is meant by a law being ‘with respect to’ constitutional corporations. 185 Again, as noted earlier, it is well established that the heads of legislative power in s 51 are to be construed ‘with all the generality which the words used admit’. But no question arises in these matters about what are constitutional corporations… 186 From time to time reference will be found in the cases to powers in s 51 being ‘plenary’. To describe s 51(xx) as a ‘plenary’ power is at best unhelpful in the present matters and, at worst, would be misleading. It is unhelpful because neither the identity nor the characteristics of the persons who are the subject of s 51(xx) is in issue. It would be misleading if it suggested that some new and wider test was to be applied in

deciding whether a law is a law with respect to those persons. 187 Reference has often been made in the cases to what are said to be the possible consequences of concluding that a law whose object of command is only constitutional corporations is a valid law. In Huddart Parker, Higgins J spoke of possibilities that he saw as distorting constitutional arrangements. Reference was made to the possibility of the Federal Parliament framing a new system of libel laws applicable to newspapers owned by corporations, and to licensing Acts creating a new scheme of administration and of offences applicable only to hotels belonging to corporations. 188 In part, reference to such consequences seeks to present possible social consequences that it is said could flow if further legislation is enacted, and which it is said are to be seen as absurd or inconvenient, as a reason to confine the reach of the legislative power. Section 51(xx), like other powers, should not be given a meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application to future laws. While there may be room for debate about whether the particular examples proffered by Higgins J are properly to be characterised as extreme examples or distorting possibilities, what is plain is that, as Professor Zines has written: It is clear that any power of the Commonwealth, on the most restricted or the widest interpretation, might, if the federal Parliament were so inclined, produce results which, when viewed together with State laws, are inefficient, socially bad or downright ridiculous. … That does not mean that the powers [page 218] concerned should be construed restrictively so as to prevent those results. The object of the power, as an aid in its interpretation, is not to be seen as an accumulation of desirable laws. (Emphasis added) … General conclusions 197 It is convenient to summarise at this point the conclusions that follow from the preceding discussion of the arguments about s 51(xx), before dealing with the arguments advanced by the parties concerning the relationship between s 51(xxxv) and (xx). The distinction between external and internal relationships of corporations proffered by the plaintiffs as a limit to the legislative power conferred by s 51(xx) should be rejected as an inappropriate and unhelpful distinction. As explained earlier, transposing a distinction originating in choice of law rules into the present context is inappropriate. The distinction finds no reflection in the Convention Debates or the drafting history of s 51(xx) and, in any event, is unstable. Adopting it would distract attention from the tasks of construing the constitutional text, identifying the legal and

practical operation of the impugned law, and then assessing the sufficiency of the connection between the impugned law and the head of power. 198 In so far as the plaintiffs contended that a test of distinctive character or discriminatory operation is to be adopted it is enough to say that, as these reasons will explain, the impugned provisions of the Amending Act which depend upon s 51(xx) either single out constitutional corporations as the object of statutory command (and in that sense have a discriminatory operation) or, like the legislation considered in Fontana Films, are directed to protecting constitutional corporations from conduct intended and likely to cause loss or damage to the corporation. In so far as the plaintiffs’ contentions required tests of distinctive character or discriminatory operation to be understood as inserting a new or different filter into the process of characterisation those contentions should be rejected. A law which prescribes norms regulating the relationship between constitutional corporations and their employees, or affecting constitutional corporations in the manner considered and upheld in Fontana Films or, as Gaudron J said in Re Pacific Coal ((2000) 203 CLR 346 at 375 [83]), ‘laws prescribing the industrial rights and obligations of [constitutional] corporations and their employees and the means by which they are to conduct their industrial relations’ are laws with respect to constitutional corporations.

Reviewing this last paragraph, there is no reason to think that the word ‘industrial’ imports any necessary content into the correct approach to ‘constitutional corporations’. In other words, a law will be a law ‘with respect to’ constitutional corporations if it prescribes their rights, obligations or conduct. There is no sensible reason to resist the conclusion that the classic test of characterisation identified by Kitto J in Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 6–7 should not be applied (see further 2.18). As Kitto J observed: Under [s 51] the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, ‘with respect to’, one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character?

Accordingly, a law that regulates the rights, duties, powers or privileges of foreign, trading or financial corporations will be a valid law of the Commonwealth.

[page 219] With respect to corporations, the ‘object of command’ test affords significant power to the Commonwealth to regulate their rights, obligations and conduct. A natural consequence of this is that equivalent state laws may be displaced. However, any potential distortion to the ‘federal balance’ should not be relevant in the calculations of the court. As Professor Zines pointed out (which was approved by the majority justices at 117–8), potential exercises of federal legislative power producing social consequences considered by the states to be ‘inefficient, socially bad or downright ridiculous … does not mean that the powers concerned should be construed restrictively so as to prevent those results’. All a law must do is to make the corporation an ‘object of command’, meaning that the law must impose a duty or liability, or confer a right or privilege, on a constitutional corporation: at 115. The importance of preserving the ‘federal balance’ was an influential factor in the dissenting judgments of Kirby and Callinan JJ. In a very long but erudite judgment, Callinan J emphasised the constitutional imperative of the ‘federal balance’ (at 320–33), concluding at 385 that the validation of the ‘Work Choices’ legislation would constitute an ‘unacceptable distortion of the federal balance’ contemplated by the framers, accepted by justices of the court, and evidenced by the text and structure of the Constitution. Also in dissent, Kirby J held that the ‘unnuanced interpretation of the corporations power’ adopted by the majority ‘risks a destabilising intrusion of federal lawmaking into areas of legislation which, since federation, have been the subject of State laws’: at 244. His Honour had already addressed this issue earlier (at 224), stating that a wide power over corporations may allow the Commonwealth to ‘radically reduce the application of State laws in many fields that, for more than

a century, have been the subject of the States’ principal governmental activities’. Kirby J identified some hypothetical examples: 539 The states, correctly in my view, pointed to the potential of the Commonwealth’s argument, if upheld, radically to reduce the application of State laws in many fields that, for more than a century, have been the subject of the States’ principal governmental activities. Such fields include education, where universities, tertiary colleges and a lately expanding cohort of private schools and colleges are already, or may easily become, incorporated. Likewise, in healthcare, where hospitals (public and private), clinics, hospices, pathology providers and medical practices are, or may readily become, incorporated. Similarly, with the privatisation and out-sourcing of activities formerly conducted by state governments, departments or statutory authorities, through corporatised bodies now providing services in town planning, security and protective activities, local transport, energy, environmental protection, aged and disability services, land and water conservation, agricultural activities, corrective services, gaming and racing, sport and recreation services, fisheries and many Aboriginal activities. All of the foregoing fields of regulation might potentially be changed, in whole or in part, from their traditional place as subjects of State law and regulation, to federal legal regulation, through the propounded ambit of the corporations power.

8.24 The third argument advanced by the Australian Workers Union and the State of New South Wales was that s 51(xxxv) qualified the operation of s 51(xx) in respect of ‘industrial relations’. The thread of their submission was that s 51(xxxv), [page 220] and not s 51(xx), indicated the extent of federal legislative power over industrial regulation and industrial matters (at 122): 200 The Australian Workers Union submitted that…] laws with respect to interstate and foreign commerce, and defence might encompass industrial matters. But, such instances apart, unless the nature of any one of the other powers in s 51 so suggested, the power should not be read as extending to ‘similar matters’ to those dealt with in s 51(xxxv). The result was said to be that the selection in s 51(xxxv) of one method of preventing and settling industrial disputes and the limitation of that paragraph to disputes extending beyond the limits of any one state indicated that other powers, particularly s 51(xx), should not be construed so as to support laws without those

limitations. The AWU submitted that there is nothing in s 51(xx) which suggests it should be treated as dealing with the subject of employment. (This submission by the AWU went beyond the consequences for Pts 7, 8, 9 and 13 of the new Act; it went also to the central definition of ‘employer’ in s 6(1)(a), which speaks of ‘a constitutional corporation’.)

The majority also rejected this submission. There is nothing to support the view, either in the text or structure of the Constitution, that the ordinary operation of s 51(xx) should be restricted by reference to s 51(xxxv). Section 51(xxxv) is directed to a ‘narrower subject matter than industrial matters or relations and their regulation’: at 123. As mentioned earlier, the Act centred on ‘employers’, defined inter alia in s 6(1) as a ‘constitutional corporation’ that employs individuals. The ‘Work Choices’ legislation, which regulated particular aspects of the employment relationship, was not concerned with the prevention and settlement of interstate disputes; but since it targeted ‘employers’, it was capable of being characterised as a law with respect to ‘constitutional corporations’. As the majority remarked (at 123): … legislation may prescribe, independently of any mechanism for the resolution of disputes, a wide range of matters which may fairly be regarded as affecting the mutual relations of employers and employees who from time to time are engaged in an industry… Why should other heads of power, particularly s 51(xx), which is relied on by the Commonwealth to support the ‘Work Choices’ law, be construed as not doing so for the reason that s 51(xxxv) identifies particular means for the prevention and settlement of certain industrial disputes?

This would be inconsistent with the ordinary principles of ‘characterisation’ developed and consistently applied by the court. The majority found that the text and structure of the Constitution did not support the plaintiffs’ submission; buttressed by the rejection of the reserved powers doctrine in 1920 and recourse to the drafting history and interpretation of s 51(xxxv): at 124–7. The lack of qualifying language in s 51(xxxv) was significant. Proceeding from the basic proposition that a ‘law with respect to a subject matter within Commonwealth power does not cease to be

valid because it affects a subject outside power or can be characterised as a law with respect to a subject matter outside power’ (see 2.19), the majority confirmed that the proposition does not apply where the ‘second subject matter with respect to which the law can be characterised is not only outside power but is the subject of a positive prohibition or restriction: Bourke v State Bank of New South Wales (1990) 170 CLR 276 at 285 per the court. Importantly, the majority in the Work Choices case explained that this ‘positive prohibition or restriction may merely confine the ambit of the particular head of power within [page 221] which it is found, or it may be of general application. If the latter, then the other paragraphs in s 51 are to be construed as subject to the limitation’: at 127. It is very hard to disagree with this approach, partly because the requisite analysis is grounded in the constitutional text. Value-laden judgments are eschewed in favour of an objective process of analysis. Interpretative techniques of this kind are consistent with conservative principles of constitutional characterisation (for example, literalism) that have been endorsed by many justices of the court. The question in this instance was whether s 51(xxxv) contained any terms qualifying the operation of other paragraphs in s 51 (including s 51(xx)?) In other words, did s 51(xxxv) positively prohibit or restrict s 51(xx)? Paragraphs 51(xiii) and 51(xiv) are two examples of the former — that is, a positive prohibition or restriction confining the ambit of the particular head of power within which it is found. These provisions confirm that the Commonwealth has legislative power over ‘banking’ and ‘insurance’, but not ‘state banking’ or ‘state insurance’. These sections self-qualify. There is no statement in s 51(xxxv) to the effect that it qualifies itself or any other paragraph in s 51, including s 51(xx). According to the majority:

221 Paragraph (xxxv) is to be read as a whole; it does not contain any element which answers the description in Bourke of a positive prohibition or restriction upon what otherwise would be the ambit of the power conferred by that paragraph. Accordingly, there does not arise the further question addressed in Bourke, namely, whether other paragraphs of s 51, in particular par (xx), are to be construed subject to a positive prohibition or restriction found elsewhere, and, in particular, in s 51(xxxv). 222 The phrase ‘conciliation and arbitration’ identifies a species of process or procedure embarked upon or engaged in with the objectives introduced by the word ‘for’, namely, the prevention and settlement of certain industrial disputes, those ‘extending beyond the limits of any one State’. The AWU submits that the latter words are ‘functionally equivalent’ to the imposition of a direct limit on the powers of the Parliament of the Commonwealth ‘to deal with industrial matters’. But the constitutional text (and, as will appear, its origins to be seen in the Convention Debates) treats the characteristic of interstate industrial disputation as the object of the application of processes and procedures of conciliation and arbitration. The text of par (xxxv), like that of par (i), expresses a compound conception; the paragraph contains within it, and not as an exception or reservation upon what otherwise would be its scope, the element of interstate disputation.

This ground was the main basis upon which the minority of Kirby and Callinan JJ declared the ‘Work Choices’ legislation invalid. Kirby J read the terms of s 51(xxxv) as establishing two ‘essential safeguards’ which restrict the power of parliament to enact laws with respect to ‘industrial affairs’ generally. The first is ‘interstateness’; the idea that there must first be an actual or potential dispute extending beyond the limits of any one state; and the second is ‘independent resolution’, meaning that s 51(xxxv) restricts the parliament from legislating generically or directly with issues in dispute, thus limiting the parliament’s power to the provision of an ‘independent conciliator or arbitrator to resolve the dispute between the parties’: at 184–5. In the opinion of Callinan J, the ‘Work Choices’ legislation could easily be characterised as a law with respect to ‘industrial affairs’, a subject matter which pertains to s 51(xxxv), not s 51(xx). His Honour reasoned that the ‘corporations power has nothing to say about industrial relations or their regulation by the

[page 222] Commonwealth. To the extent, if any, that s 51(xx) might otherwise appear to confer such power, it must be subject to the implied negative restriction imposed by s 51(xxxv)’: at 384. 8.25 The preceding paragraphs give a good indication of the apparent broad scope of s 51(xx). The majority adjudged, following the dictum of Gaudron J in Re Pacific Coal; Ex parte CFMEU (2000) 203 CLR 346 at 375, that ‘“laws prescribing the industrial rights and obligations of [constitutional] corporations and their employees and the means by which they are to conduct their industrial relations” are laws with respect to constitutional corporations’: at 121–2. To reach this point, the majority controversially relied on other parts of Gaudron J’s judgment in Re Pacific Coal. In that case, her Honour speculated on the extent of the ambit of s 51(xx) (at 375): I have no doubt that the power conferred by s 51(xx) of the Constitution extends to the regulation of the activities, functions, relationships and the business of a corporation described in that sub-section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business [emphasis added].

This statement was adopted by the majority in the Work Choices case without qualification: at 114–5. The adoption of this reasoning, without explanation or elaboration, is one of the most disappointing aspects of the majority’s judgment. It does not demarcate clearly the exact boundaries of the power. For present purposes, it may be the case that those aspects following the words ‘in respect of those matters’ fall within the incidental scope of the power. This appears consistent with the reasons of Gaudron J in Re Dingjan, where her Honour identified a number of ‘steps’ associated with the scope of s 51(xx). ‘At the very least’, the core of s 51(xx) concerns the ‘business

functions and activities of constitutional corporations’. Once this is accepted, it then follows that the power ‘also extends’ to the persons through whom the corporation carries out those functions and activities and with whom they enter into relationships: at 114. In dissent, Kirby J argued that the majority had erred in endorsing Gaudron J’s statement. His Honour made three observations: (1) in Re Pacific Coal, Gaudron J had been in dissent, therefore her reasoning formed no part of the ratio decidendi of the case; (2) the majority had selectively quoted Gaudron J, ignoring a sentence which confined her remarks to the issue in hand, thus casting doubt on whether the approved passage was intended by Gaudron J ‘to be as unqualified as the words quoted in isolation might suggest’; and (3) Re Pacific Coal did not address the issue of the reconciliation of powers granted by s 51(xx) and (xxxv) of the Constitution (at 124). In conclusion, the effect of the Work Choices decision is that the Commonwealth can regulate ‘constitutional corporations’ in their entirety, without any impediment to subject matter. The scope of s 51(xx) is apparently plenary, reinforced by the ‘object of command’ test and the wide view of s 51(xx) taken from Gaudron J in Re Pacific Coal. This allows the Commonwealth to regulate activities, functions, relationships and business of corporations, as well as permitting the Commonwealth to create [page 223] rights and impose obligations on corporations. Section 51(xx) also gives power to the Commonwealth to regulate the conduct of other parties: those through whom it acts (employees, shareholders and directors), and those whose conduct is or is capable of affecting its activities functions relationships or business (that is, other

constitutional corporations, unincorporated associations or natural persons). As the regulation of conduct of other parties is likely to fall within the incidental scope of the power, characterisation becomes a relevant issue. Their actions or behaviour must have a ‘sufficient connection’ to the ‘constitutional corporation’. Although this point was not raised in Work Choices, it is suggested that McHugh J’s obiter comments in Re Dingjan are persuasive. In that case (at 8.19 above), McHugh J stated that it will be difficult to ascertain how the law has a connection with a constitutional corporation unless ‘in its legal or practical operation, it has significance for the corporation’: at 369 (emphasis added). His Honour understood this as requiring the conduct to have some ‘beneficial or detrimental effect on trading, financial or foreign corporations’: at 370. 8.26 The Work Choices decision received its share of criticism in academic circles. Writing in The Australian newspaper in the aftermath of the decision, Professor Greg Craven called it a ‘shipwreck of Titanic proportions. Not since the 1920s [referring to the Engineers’ case in 1920] has the court struck such a devastating blow against Australian federalism … In terms of fallout, it is the constitutional equivalent of a dirty bomb’ (Craven, 2006). Professor Nicholas Aroney (2008, pp 2–3) adopted a more measured tone. While he accepted that the decision had ‘far-reaching implications for the balance of power between the Commonwealth and the states’, he also said that it may be read ‘as the entirely predictable application of long established methods of interpreting federal legislative power’. For Aroney, the case is best understood ‘by reference to a series of interpretative choices that have been made by the High Court over the course of its history and which are recapitulated in the Work Choices Case’: at p 3. The rub, as Professor George Williams rightly observed, was that the case carried ‘extraordinary policy and political consequences’ (Williams in Aroney, 2008, p 3).

This might explain why the High Court was reluctant to re-explore the scope of s 51(xx) in Williams v Commonwealth (No 2) (2014) 252 CLR 416. The background to, and the case itself, is examined at 13.36–13.38. The initial challenge to the validity of the National School Chaplaincy Programme (NSCP) was upheld by the court on the basis that s 61 of the Constitution requires statutory authority for expenditure of public moneys, separate to that of the relevant appropriations legislation. The NSCP was supported by statutory appropriation but otherwise lacked authorisation for the expenditure. It was commonly believed, prior to Williams v Commonwealth (No 1) (2012) 248 CLR 156, that it was unnecessary for parliament to enact a law authorising the proposed expenditure of public moneys, provided that the Commonwealth believed that it had the necessary legislative power to give it statutory authority (see, for example, 13.33 and 13.35). However, the apparent veracity of the ‘common assumption’ was rejected in the first Williams case. The Commonwealth responded by enacting legislation to provide the statutory authority required to fund the NSCP (as well as a great number of other programs). The Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) inserted [page 224] s 32B into the Financial Management and Accountability Act 1997 (Cth) and a new reg 16 and Sch 1AA into the Financial Management and Accountability Regulations 1997 (Cth). The effect of these amendments to the regulations was to identify the federal programs subject to s 32B. Section 32B(1)(b) of the Act provided the Commonwealth with power to spend public money to ‘make, vary, or administer the arrangement or grant’ that is ‘specified in the regulations’, ‘included in a class of arrangements or grants specified in

the regulations’, or ‘is for the purposes of a program in the regulations’. Williams brought another proceeding in the High Court, this time challenging the constitutional validity of the legislative scheme on the basis that it was not supported by any of the Commonwealth’s legislative powers. One of the powers advanced by the Commonwealth, in support of its funding agreement with Scripture Union Queensland (SUQ) (in all likelihood a ‘constitutional corporation’), was s 51(xx) of the Constitution. 8.27 Given the wide ambit of the power discussed at 8.25, it was not out of the question that s 51(xx) might have supported s 32B (which provided statutory authorisation for the expenditure) by virtue of SUQ potentially being a ‘trading corporation’. However, the argument was unanimously rejected by the High Court: at 460–1 per French CJ, Hayne, Kiefel, Bell and Keane JJ; at 471 per Crennan J. The problem was that item 407.013 of Sch 1AA (which specified the School Chaplaincy Programme) and s 32B(1)(b)(iii) (which gave power to the Commonwealth to make, vary or administer an arrangement for the purposes of a program in the regulations) were not laws specifically ‘with respect to’ constitutional corporations. As the Queensland Solicitor-General had stated in argument to the court (at 432–3): none of the heads of power on which the Commonwealth relies would authorise the making and variation of the SUQ agreement. Section 51(xx) would not do so because the provisions are not laws with respect to constitutional corporations. The characterisation of a law depends on the rights, powers, liabilities, duties and privileges which the law creates. Item 407.013 nowhere mentions activities, functions, or relations of trading or financial corporations. Moreover, the program … is not limited to constitutional corporations: funding recipients may be non-government schools or school community organisations.

This reading of s 51(xx) was evidently approved by the court. The contested provisions were ill-suited to s 51(xx); although French CJ, Hayne, Kiefel, Bell and Keane JJ accepted that the law authorised the Commonwealth to make agreements for the provision of chaplaincy services by a trading corporation (at 460–1) (interestingly their

Honours did not find it necessary to determine if SUQ was a trading corporation: at 461), the impugned provisions were deemed in any event not to be a law with respect to trading corporations. They observed: 50 A law which gives the Commonwealth the authority to make an agreement or payment of that kind is not a law with respect to trading or financial corporations. The law makes no provision regulating or permitting any act by or on behalf of any corporation. The corporation’s capacity to make the agreement and receive and apply the payments is not provided by the impugned provisions. Unlike the law considered in New South Wales v The Commonwealth (Work Choices Case), the law is not one authorising or regulating the activities, functions, relationships or business of constitutional corporations generally or any particular constitutional corporation; it is not one regulating the conduct of those through whom a constitutional [page 225] corporation acts or those whose conduct is capable of affecting its activities, functions, relationships or business.

The law merely provided for the funding of particular services; it did not purport to regulate or permit an act by or on behalf of a trading corporation. This meant that s 32B and Sch 1AA could not be supported by s 51(xx). That was the end of the issue for the majority. However, there are difficulties with this reasoning. For example, French CJ, Hayne, Kiefel, Bell and Keane JJ largely repeated much of what the majority had said in the Work Choices case; namely that the scope of the corporations power extended to the regulation of the activities, functions, relationships or business of corporations, as well as the conduct of those through whom it acts or those whose conduct is capable of affecting its activities, functions, relationships or business. This much is clear and corresponds to the first, fourth and fifth aspects of Gaudron J’s statement in Re Pacific Coal. However, what has happened to the second and third aspects? In Work Choices, the majority said that ‘the power conferred by s 51(xx) of the Constitution extends to the regulation of … the creation of rights, and

privileges belonging to’ a corporation. This has, by all accounts, been ignored by the court in Williams (No 2). The selective reading of Work Choices may represent a narrowing of the scope of s 51(xx), although the court remained silent on the issue. What is clear enough is that for the law to have had any chance of being upheld under s 51(xx), it would have been on account of it conferring a right or privilege on trading corporations; that is, through the authorisation of funding agreements between the Commonwealth and chaplaincy providers, for the latter to provide chaplaincy services for payment at participating schools. This is reinforced by the majority’s admission at that ‘it may be assumed that the opposite party to an agreement … and the recipient of payments made under that program can be, even must be, a trading or financial corporation’: at [49]. This would likely satisfy the test of ‘sufficient connection’ given the proximity of the relationship. Despite these problematic aspects, it is possible that the majority’s decision may be supported on a different basis. Indeed, it is arguable that the law did not ‘single out’ constitutional corporations as the ‘object of statutory command’ (see 8.22), given that s 32B merely authorised the government to expend public moneys while Sch 1AA identified the chaplaincy scheme as a program subject to s 32B. As the impugned provisions were not directed to identifying constitutional corporations as the ‘object of statutory command’, it follows that what French CJ, Hayne, Kiefel, Bell and Keane JJ said was right: that a ‘law which gives the Commonwealth the authority to make an agreement or payment of that kind is not a law with respect to trading or financial corporations’: at 461. To what extent this argument is negated by the majority’s assumption that all recipients of payments under the program must be trading or financial corporations, and indeed whether this implicit acceptance constitutes ‘singling out’, was an issue not explored by the court.

[page 227]

Chapter Nine

The Constitution and the Races Power Introduction 9.1

Section 51(xxvi) of the Constitution provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

9.2 This chapter considers the High Court’s construction of s 51(xxvi), the ‘races power’. The format of the chapter is as follows. First, what is a ‘race’? Second, why was the races power introduced into the Constitution? Third, what was the significance of the 1967 amendment to the power? Fourth, what is the contemporary approach to the scope of the power? Fifth, how are laws to be characterised when consideration is given to their validity under s 51(xxvi)? Finally, recent efforts to reform constitutional treatment of races are briefly noted.

What is a ‘race’? 9.3 The object of s 51(xxvi) of the Constitution is ‘the people of any race’. In Hanks Australian Constitutional Law, 2013, p 156, Jennifer

Clarke writes: Incredibly, this term is still found in two provisions of the Constitution … Section 25 and the original s 51(xxxi) were adopted, along with most other provisions of the Constitution, at an historical high-point for racialised thinking. In 1901, ‘white’ superiority was accepted in Australian public culture, which held (under the influence of social Darwinism) that the identity and fate of the ‘aboriginal race’ could be explained biologically. Thus, although in 1901 Aboriginal poverty, illness and premature death stemmed from loss of the means of subsistence (land), untreated diseases, displacement from the workforce during the 1890s depression (in the east) and rapid colonisation and associated violence (in the west and north), public culture tended to regard Aboriginal people’s predicament as genetically inherited and therefore unchangeable. It was anticipated that ‘indigenous’ Australians would ‘die out’ under pressure from later migrants. Purportedly to ‘protect’ these populations while they remained alive, during the late 19th and early 20th centuries most Australian jurisdictions introduced ‘Aboriginal Protection’ Acts limiting the civil rights (freedom of movement and association, the right to work, the right to education and other privileges, eg, access to alcohol) of people of predominantly Aboriginal or Torres Strait Islander descent (and sometimes their ‘mixed race’ children). The definition of ‘Aboriginal’, central to the operation of these regimes, was based on degrees of indigenous descent, ie, numbers of indigenous ancestors.

[page 228] Clarke also notes (2013, p 157): [It] has been accepted since the mid-20th century that all ‘racial’ identity, including the privileged social status sometimes known as ‘white’ identity, is socially constructed. Unlike Australia’s ‘founding fathers’, we know that more than 99 per cent of human genes are shared, and that there is no identifiable ‘Aboriginal gene’: Human Genome Project, 2007.

9.4 High Court justices have acknowledged the difficulty in defining the concept of ‘race’ in modern times when racial discrimination is regarded as abhorrent, and biological notions of race have been rejected. In Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1, the High Court was invited to consider the validity of provisions of the World Heritage Properties Conservation Act 1983

(Cth) which had, as one of its purposes, the protection of Aboriginal sites, artefacts and relics. The Act included a declaration that the provisions of the Act intended to protect the sites etc were special laws for the people of the Aboriginal race. Tasmania argued that the provisions were not ‘special laws’ for the people of the Aboriginal race because a special law for the people of a particular race ‘is one which operates only upon the people of that race or upon people generally but in respect of their dealings with people of that race’: at 26 (see also at 37). It was also argued that the laws protected Aboriginal sites only if they were significant to the whole of mankind — they could not, therefore, be ‘special laws’ for the purposes of s 51(xxvi). The Commonwealth argued (at 44) that a law ‘which enables people of a particular race to express particular concern about the protection or conservation of a site which is of particular significance to them is a law with respect to the people of that race’. The court upheld the law by majority (see 10.4). Brennan J, one of the members of the majority, briefly described the development of s 51(xxvi), its purpose and the 1967 change to its text. His Honour said that the concept has a ‘biological’ element but is also a ‘popular notion (at 243–4): Section 51(xxvi) of the Constitution was amended in 1967 by deleting the words ‘other than the aboriginal race in any State’ from the original text which granted power to make laws with respect to ‘(t)he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’. No doubt par. (xxvi) in its original form was thought to authorize the making of laws discriminating adversely against particular racial groups; see Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) p. 623. The approval of the proposed law for the amendment of par. (xxvi) by deleting the words ‘other than the aboriginal race’ was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial. The passing of the Racial Discrimination Act manifested the Parliament’s intention that the power will hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws … ‘Race’ is not a term of art; it is not a precise concept … There is, of course, a biological element in the concept. The UNESCO studies on race and racial discrimination reveal

some difficulty in giving a precise definition even to this element. Senor Hernan Santa Cruz, the Special Rapporteur on Racial Discrimination, in his report to the United Nations (‘Special Study on Racial Discrimination in the Political, Economic, Social and Cultural Spheres’?(1971), U.N. Document No. E/CN.4/Sub 2/307Rev.1, pp. 12–13) traces some of the findings of experts: [page 229] A conference of experts assembled in Moscow by UNESCO in August 1964 to give their views on the biological aspects of the race question, adopted a set of proposals on this subject. They stated inter alia that all men living today belong to a single species and are derived from a common stock (Art.I); that pure races in the sense of genetically homogeneous populations do not exist in the human species (Art.III); and that there is no national, religious, geographic, linguistic or cultural group which constitutes a race ipso facto (Art.XII). The proposals concluded: The biological data given above stand in open contradiction to the tenets of racism. Racist theories can in no way pretend to have any scientific foundation … Popular notions of ‘race’, however, have frequently disregarded the scientific evidence. Prejudice and discrimination on the ground of race, colour or ethnic origin occur in a number of societies, where physical appearance — notably skin colour — and ethnic origin are accorded prime importance.

Deane J also favoured what he referred to as a ‘non-technical’ approach, concluding that the phrase is ‘apposite to refer to all Australian Aboriginals collectively’: at 273–4. 9.5 More recent decisions of Australian courts have considered a range of factors, with descent, communal recognition and selfidentification emerging as prominent considerations. In Shaw v Wolf (1998) 83 FCR 113, a dispute arose in respect of an election to the Aboriginal and Torres Strait Islander Commission (ATSIC). To be an elected member of a regional board of ATSIC it was necessary to be an Aboriginal person, defined under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act) as (relevantly) ‘a person of the Aboriginal race of Australia’. Wolf and 10 other respondents in this case were elected and their aboriginality was

challenged by Shaw and others. Merkel J of the Federal Court dealt with the submission in the following way (at 118): An Aboriginal person A number of cases have considered the criteria for determining whether persons are Aboriginal persons or persons of the Aboriginal race of Australia. Several of the cases were drawn together in Gibbs v Capewell (1995) 54 FCR 503; 128 ALR 577 by Drummond J who determined, as a preliminary issue, the meaning of the expression ‘Aboriginal person’ as defined in s 4(1) of the Act. The substance of Drummond J’s conclusions may be summarised as follows: •

the words ‘Aboriginal race of Australia’ bear the meaning they have in ordinary usage subject to any qualification that the statutory context in which they appear may require (505; 578);

•

the Aboriginal race of Australia refers to the group of persons in the modern Australian population who are descended from the inhabitants of Australia at the time immediately prior to European settlement (506; 580);

•

some degree of descent is a necessary, but not of itself a sufficient, condition of eligibility to be an Aboriginal person (508; 581);

•

a small degree of Aboriginal descent coupled with genuine self-identification or with communal recognition may, in a given case, be sufficient for eligibility (510– 512; 583–585); [page 230]

•

a substantial degree of descent, given the general communal recognition of Aboriginality that usually accompanies it, may by itself be enough to require that the person be regarded as an ‘Aboriginal person’ (511; 584);

•

communal recognition as an Aboriginal person may, given the difficulties of proof of Aboriginal descent flowing from, among other things, the lack of written family records, often be the best evidence available of proof of Aboriginal descent (512; 585).

In adopting a definition based on a person being of ‘the Aboriginal race of Australia’ rather than a ‘descendant of an indigenous inhabitant of Australia’ or ‘a descendant of the persons of the Aboriginal race inhabiting Australia before European settlement’ the legislature appears to have intended that descent alone is not a sufficient criterion for recognition as an ‘Aboriginal person’.

The purpose of the races power

9.6

Section 51(xxvi) originally read:

The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

It is widely accepted that the races power was included in the Constitution to give the federal parliament the power to control migrant workers. Gibbs CJ observed in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 186: As Professor Sawer has pointed out in an article, ‘The Australian Constitution and the Australian Aborigine’, published in the Federal Law Review, vol. 2 (1966) 17, at p 20: … (xxvi) was intended to enable the Commonwealth to pass the sort of laws which before 1900 had been passed by many States concerning ‘the Indian, Afghan and Syrian hawkers; the Chinese miners, laundrymen, market gardeners, and furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of Queensland, and the various coloured races employed in the pearl fisheries of Queensland and Western Australia’. Such laws were designed ‘to localize them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came’.

The reason why Aboriginal people in states were excluded from the original s 51(xxvi) was because the states were seen as local governments, in a better position to control aboriginal people directly. 9.7 The races power was amended in 1967 to give the Commonwealth the power to regulate aboriginal affairs. Section 51(xxvi) was altered to read: The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

The expression ‘other than the aboriginal race in any State’ was

removed by referendum. Section 127 was repealed in its entirety. It originally read: [page 231] In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

As noted above, s 25 has not been removed from the Constitution. Section 25 reads: Provision as to races disqualified from voting For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

In Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381–3 (considered further at 9.9), Gummow and Hayne JJ said: The 1967 Act It was submitted that the circumstances surrounding the passage of the 1967 Act and its submission to the electors under s 128 of the Constitution favoured, if they did not require, a construction of s 51(xxvi) in its amended form which would support only those special laws which were for the ‘benefit’ of the indigenous races. Reliance was placed, in particular, upon the statement by Deane J in the Tasmanian Dam Case (1983) 158 CLR 1 at 273: The power conferred by s 51(xxvi) remains a general power to pass laws discriminating against or benefiting the people of any race. Since 1967, that power has included a power to make laws benefiting the people of the Aboriginal race. Another interpretation of the events of 1967 is that, whilst the purpose of the 1967 Act was to ensure that the Parliament could legislate beneficially in respect of the indigenous races, this was implemented by including them within the generality of the power in s 51(xxvi). Moreover, it is as well to recall that it is the constitutional text which must always be controlling. The text is not limited by any implication such as that contended for by the plaintiffs (McGinty v Western Australia (1996) 186 CLR 140 at 169–170). This is so whether one has

regard alone to the terms of the Constitution after the 1967 Act took effect or also to that statute. The circumstances surrounding the enactment of the 1967 Act, assuming regard may properly be had to them, may indicate an aspiration of the legislature and the electors to provide federal legislative powers to advance the situation of persons of the Aboriginal race. But it does not follow that this was implemented by a change to the constitutional text which was hedged by limitations unexpressed therein. The bill for the 1967 Act did not attract any opposition in Parliament so as to lead to the distribution to each elector of an argument against the proposed law by the Chief Electoral Officer. Section 6A of the Referendum Act provided for the distribution of ‘yes’ and ‘no’ cases authorised by a majority of those members of both Houses of Parliament who voted for and against the proposed law. Only a ‘yes’ case was authorised and distributed to each elector. It stated that the proposed alteration of s 51(xxvi) would do two things and continued (Chief Electoral Officer Commonwealth, The Arguments For and Against the Proposed Alterations Together with a Statement Showing the Proposed Alterations, 6 April 1967, p 11): First, it will remove words from our Constitution that many people think are discriminatory against the Aboriginal people. [page 232] Second, it will make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Parliament considers it necessary. This cannot be done at present because, as the Constitution stands, the Commonwealth Parliament has no power, except in the Territories, to make laws with respect to people of the Aboriginal race as such. This would not mean that the States would automatically lose their existing powers. What is intended is that the National Parliament could make laws, if it thought fit, relating to Aboriginals — as it can about many other matters on which the States also have power to legislate. The Commonwealth’s object will be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia. The treatment in the ‘yes’ case of the proposed alteration to the power of the Commonwealth legislature emphasised considerations of federalism. It did not speak of other limitations upon the nature of the special laws beyond confirming that they might apply to the people of the Aboriginal race ‘wherever they may live’ rather than be limited to the Territories. Further, the proposed law took its form after the expression of learned opinion that complete repeal of s 51(xxvi) would have been preferable to any amendment intended to extend to the Aboriginals ‘its possible

benefits’ (Sawer, ‘The Australian Constitution and the Australian Aborigine’, Federal Law Review, vol 2 (1966) 17, at p 35). The omission in the 1967 Act of any limitation, making specific reference to the provision of ‘benefits’ to persons of the Aboriginal race, upon the operation of the amended s 51(xxvi), is consistent with a wish of the Parliament to avoid later definitional argument in the legislature and the courts as to the scope of its legislative power. That is the effect of what was achieved.

Kirby J, dissenting, said (at 413): Whatever the initial object of the original exception to par (xxvi), by the time that the words were removed, the amendment did not simply lump the Aboriginal people of Australia in with other races as potential targets for detrimental or adversely discriminatory laws. It was the will of the Australian Parliament and people that the race power should be significantly altered. If the Constitution were not to be changed to provide the power to make laws with respect to the advancement of Aboriginal people and to forbid discrimination on racial grounds (as Mr Wentworth had proposed), it was to be altered, at least, to remove their exclusion from the Parliament’s law-making power in order that the Parliament might have the power to make special laws with respect to them. To construe the resulting power in par (xxvi) as authorising the making of laws detrimental to, and discriminatory against, people on the ground of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment to par (xxvi). It would amount to a refusal to acknowledge the unprecedented support for the change, evident in the vote of the electors of Australia. This Court should take notice of the history of the amendment and the circumstances surrounding it in giving meaning to the amended paragraph.

9.8 The High Court’s first opportunity to consider the effect of the change to s 51(xxvi) was in Koowarta v Bjelke-Petersen (1982) 153 CLR 168. Koowarta was a member of a group of Aboriginal people known as the Winchyanam people. The Aboriginal Land Fund Commission had contracted to buy a Crown lease of pastoral property. The consent of the Queensland Minister for Lands was required. The minister declined to give consent on the ground that ‘the government did [page 233] not view favourably proposals to acquire large areas of land for

development by Aborigines in isolation’: at 169–70. Koowarta argued that this decision was racially discriminatory and contrary to ss 9 and 12 of the Racial Discrimination Act 1975 (Cth) (RDA), which was enacted to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination. The RDA partly implements the Convention on the Elimination of All Forms of Racial Discrimination. The Act prohibits racial discrimination (s 9) and provides a guarantee of equal rights under the law (s 10). The Convention defines racial discrimination in Art 1 as: … any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Section 9(1) of the RDA provides: Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Section 12 made it unlawful to refuse to dispose of an interest in land to a second person etc on the ground of, amongst other grounds, their race. Section 24 provided that a ‘person aggrieved’ by an act that was unlawful under ss 9 or 12 could claim damages for that act. Joh Bjelke-Petersen, the then Premier of Queensland, challenged the constitutional validity of the RDA on the ground that it could not be supported by s 51(xxvi) of the Constitution because that section ‘does not confer power to make laws which apply to all races. In this context “any” does not mean “all”. It was argued that the law must be a special law for the people of any race’: at 170. The Commonwealth argued (at 174) that the Act was supported by s 51(xxvi) because: so much of the Act as prohibits discrimination and encourages the elimination of

discrimination on the ground of race is a law with respect to the people of each race discriminated against by reason of that race. It is a special law because it selects as its subject the people of any race against which discrimination on racial grounds is practised.

The High Court also considered an argument that the law was supported by the external affairs power, s 51(xxix), which was upheld by a majority (as to which see 10.22). A majority of the court upheld Queensland’s argument and reached the surprising conclusion that the races power could not be used to protect people from racial discrimination (Gibbs CJ, Stephen, Mason, Aickin, Wilson and Brennan JJ; Murphy J dissenting). Gibbs CJ (the other members of the majority gave similar reasons on this point) said (at 187) that: … ss 9 and 12 are not directed to the protection of people of the Aboriginal race. They prohibit discrimination generally on the ground of race; that is, they protect the persons of any race from discriminatory action by reason of their race. On behalf of the Commonwealth it was submitted that the Act is a special law within par. (xxvi) [page 234] because it selects as its subject the people of any race against whom discrimination on racial grounds is, or may be, practised. This argument cannot be accepted, for it gives insufficient weight to the words ‘for whom it is deemed necessary to make special laws’. It is true that in some contexts the word ‘any’ can be understood as having the effect of ‘all’, but it would be self-contradictory to say that a law which applies to the people of all races is a special law. It is not possible to construe par. (xxvi) as if it read simply ‘The people of all races’. In the context provided by par. (xxvi), the word ‘any’ is used in the sense of ‘no matter which’. The Parliament may deem it necessary to make special laws for the people of a particular race, no matter what the race. If the Parliament does deem that necessary, but not otherwise, it can make laws with respect to the people of that race. The opinion of Parliament that it is necessary to make a special law need not be evidenced by an express declaration to that effect; it may appear from the law itself. However, a law which applies equally to the people of all races is not a special law for the people of any one race. Sections 9 and 12 of the Act deal with discrimination against the people of all races. It is impossible to describe those sections as laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’.

9.9

In Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 209, Stephen J

observed that laws made under s 51(xxvi) ‘may be benevolent or repressive; they may be directed to any aspect of human activity; so long as they are with respect to the people of a race such as is described’. The question whether s 51(xxvi) was restricted to the enactment of laws that benefit the people of the Aboriginal race was raised directly in Kartinyeri v Commonwealth (Hindmarsh Island Bridge case) (1998) 195 CLR 337. In 1984 the Commonwealth enacted the Aboriginal and Torres Strait Islander Heritage Protection Act. The purpose of the Act was to enable Aboriginal people to seek and effect statutory protection for Aboriginal sacred sites. Doreen Kartinyeri and other members of the Ngarrindjeri people who lived on Hindmarsh Island in South Australia applied for a ministerial declaration that a particular area was sacred and should be protected. The Commonwealth enacted the Hindmarsh Island Bridge Act 1997 which repealed the Heritage Protection Act thereby removing its application in the Hindmarsh Island area, with the effect that no statutory protection of Aboriginal sacred sites would stand in the way of the building of a bridge between mainland South Australia and the island. Kartinyeri sought a declaration that the Hindmarsh Island Bridge Act 1997 was invalid. Her counsel argued, amongst other things, that ‘[w]hatever its original scope, s 51(xxvi) should no longer extend to laws which are detrimental to people of a race. The history of the 1967 referendum and subsequent amendment shows that the sole purpose was to permit the Commonwealth to pass laws beneficial to Aboriginal Australians’. A majority of the court rejected the challenge (Brennan CJ, Gaudron, McHugh, Gummow and Hayne JJ; Kirby JJ dissenting). Three justices specifically rejected the argument that s 51(xxvi) can only be used to pass laws for the benefit of Aboriginal people (Gaudron J at 363; Gummow and Hayne JJ at 379–81). Gummow and Hayne JJ said (at 378):

The plaintiffs further submitted that the word ‘special’ gave to s 51(xxvi) a ‘fluctuating content’ and a ‘purposive aspect’ like the defence power. This meant that the permissible purpose of the Bridge Act must be one which did not ‘discriminate against’ the Aboriginal race. The plaintiffs eschewed the suggestion that the [page 235] benefits conferred by the Heritage Protection Act, once conferred upon them, were ‘constitutionalised’ and insusceptible of any repeal. However, they contended that the Bridge Act inflicted upon the Ngarrindjeri people a discriminatory detriment by loss of the opportunity to obtain the declaration under s 10 of the Heritage Protection Act which was sought by the plaintiffs’ application. The plaintiffs were supported by the Attorney-General for New South Wales. He submitted that the federal concurrent legislative power was limited such that the exclusion by the Bridge Act of some members of the Aboriginal race from the benefits of the earlier statute would be invalid unless there was ‘a rational and proportionate connection between that exclusion and [some] legitimate governmental purpose’. These submissions should be rejected. It is true that ‘unlike the aliens power or the corporations power’, s 51(xxvi) ‘is not expressed to be a power to make laws simply with respect to persons of a designated character’ (Western Australia v Commonwealth (the Native Title Act case) (1995) 183 CLR 373 at 460). A law will only answer the constitutional description in s 51(xxvi) if it (i) is ‘deemed necessary’ (ii) that ‘special laws’ (iii) be made for ‘the people of any race’. The term ‘deem’ may mean ‘to judge or reach a conclusion about something’ (Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65). Here, the judgment as to what is ‘deemed necessary’ is that of the Parliament (Native Title Act case (1995) 183 CLR 373 at 460–461). Nevertheless, it may be that the character of a law purportedly based upon s 51(xxvi) will be denied to a law enacted in ‘manifest abuse’ of that power of judgment (Native Title Act case (1995) 183 CLR 373 at 460). Even if such a restraint (in addition to those stated or implied elsewhere in the Constitution, such as in s 51(xxxi)) exists there is no occasion for its application to the Bridge Act.

Kirby J, who dissented, interpreted the effect of the 1967 referendum quite differently, and after a review of the anti-Semitic laws of Germany and the apartheid regime in South Africa, his Honour said (at 416–17): The laws of Germany and South Africa to which I have referred provide part of the context in which par (xxvi) is now understood by Australians and should be construed by this Court. I do not accept that in late twentieth century Australia that paragraph

supports detrimental and adversely discriminatory laws when the provision is read against the history of racism during this century and the 1967 referendum in Australia intended to address that history. When they voted in that referendum, the electors of this country were generally aware of that history. They knew the defects in past Australian laws and policies. And they would have known that the offensive legal regimes in Germany during the Third Reich and South Africa under apartheid were not the laws of uncivilised countries. Both in Germany and in South Africa the special laws enacted would probably have been regarded as unthinkable but a decade before they were made. They stand as a warning to us in the elaboration of our Constitution. The purpose of the race power in the Australian Constitution, as I read it, is therefore quite different from that urged for the Commonwealth. It permits special laws for people on the grounds of their race. But not so as adversely and detrimentally to discriminate against such people on that ground.

Characterisation 9.10 The courts take a three-step approach to determine if laws can be supported by s 51(xxvi). First, as foreshadowed in the extract from Koowarta v Bjelke-Petersen [page 236] (1982) 153 CLR 168 at 9.6, the court determines whether the Commonwealth has passed a law that singles out and affects a particular race. It can also be noted that there is substantial judicial authority for the proposition that the races power can be used to regulate ‘sub-groups’ of races. In Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1, Deane J observed (at 274): Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par. (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. By ‘Australian Aboriginal’ I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal.

This proposition was supported by Gummow and Hayne JJ (with whom Gaudron at 368 and Kirby at 394–5 agreed on this point) in Kartinyeri v Commonwealth (1998) 195 CLR 337 at 377–8: The legislative power is to be construed with all the generality of which the phrase ‘the people of any race’ admits. That being so, why should the phrase ‘the people …’ be read as if limited to ‘all the people’, rather than as including within the reach of the power any members of that class identified by the expression ‘the people of’ the race in question? The state of authority in this Court affirms that the phrase is ‘apposite to refer to any identifiable racial sub-group among Australian Aboriginals’. The Native Title Act case was determined on the basis that those for whom the Native Title Act 1993 (Cth) was a ‘special’ law were those Aboriginal and Torres Strait Islanders who were holders of native title, and that it was not essential to determine whether the statute conferred a benefit upon all the people of those races [references omitted].

9.11 Second, the court ascertains whether the law under challenge is ‘special’. As stated in Western Australia v Commonwealth (Second Native Title Act case) (1995) 183 CLR 373 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 460–1: [the word] ‘[s]pecial’ qualifies ‘law’; it does not relate to necessity. Therefore the special quality of a law must be ascertained by reference to its differential operation upon the people of a particular race (Koowarta v. Bjelke-Petersen (1982) 153 CLR at 186, 245, 261), not by reference to the circumstances which led the Parliament to deem it necessary to enact the law. A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race [emphasis added].

The majority position in the Native Title Act case affirms obiter comments made by Murphy J at 80, Brennan J at 242 and Deane J at 273 in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1. 9.12 Third, for a law to be supportable under s 51(xxvi), it must be ‘deemed necessary’ for the race concerned. In Kartinyeri v Commonwealth (1998) 195 CLR 337 at 363–5, Gaudron J (with whom Kirby J agreed at 411–16) said: … s 51(xxvi) does not simply confer power to legislate with respect to ‘the people of any race’. It confers power to legislate with respect to ‘the people of any race for whom it is deemed necessary to make special laws’.

[page 237] Were s 51(xxvi) simply a power to legislate with respect to ‘the people of any race’, there would, in my view, be no doubt that Parliament might legislate in any way it chose so long as the law in question differentiated in some way with respect to the people of a particular race or dealt with some matter of ‘special significance or importance to the[m].’ However, the words ‘for whom it is deemed necessary to make special laws’ must be given some operation. And they can only operate to impose some limit on what would otherwise be the scope of s 51(xxvi) … The criterion for the exercise of power under s 51(xxvi) is that it be deemed necessary — not expedient or appropriate — to make a law which provides differently for the people of a particular race or, if it is a law of general application, one which deals with something of ‘special significance or importance to the people of [that] particular race.’ Clearly, it is for the Parliament to deem it necessary to make a law of that kind. To form a view as to that necessity, however, there must be some difference pertaining to the people of the race involved or their circumstances or, at least, some material upon which the Parliament might reasonably form a political judgment that there is a difference of that kind. Were it otherwise, the words ‘for whom it is deemed necessary to make special laws’ would have no operation and s 51(xxvi) would simply be a power to make laws for the people of any race.

9.13 Could the Commonwealth use s 51(xxvi) to enact anti-Semitic or apartheid-style laws in Australia? Would the High Court have any constitutional grounds for striking down such laws? The scope to strike down such a law is a matter of some disagreement. In Western Australia v Commonwealth (Second Native Title Act case) (1995) 183 CLR 373 at 460, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said: The requirement that laws enacted under par (xxvi) be ‘special’ was referred to by Stephen J. In Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 210: Although it is people of ‘any’ race that are referred to, I regard the reference to special laws as confining what may be enacted under this paragraph to laws which are of their nature special to the people of a particular race. It must be because of their special needs or because of the special threat or problem which they present that the necessity for the law arises; without this particular necessity as the occasion for the law, it will not be a special law such as s 51(xxvi) speaks of.

If, as this passage suggests, the requirement that a law enacted under s 51(xxvi) be special were held to evoke a judicial evaluation of the needs of the people of a race or of the threats or problems that confronted them in order to determine whether the law was, or could be deemed to be, ‘necessary’, the Court would be required to form a political value judgment. Yet it is clear that that judgment is for the Parliament (and was so intended by the Constitutional Conventions of Sydney in 1891 (Official Report of the National Australasian Convention Debates, 3 April 1891, pp 703–704) and Melbourne in 1898 (Official Record of the Debates of the Australasian Federal Convention, 28 January 1898, pp 248, 253–254), not for the Court. If the Court retains some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse of the races power (cf Gerhardy v Brown (1985) 159 CLR 70 at 138–139), this case is not the occasion for an examination of that jurisdiction. The removal of the common law general defeasibility of native title by the Native Title Act is sufficient to demonstrate that the Parliament could properly have deemed that Act to be ‘necessary’.

9.14 Gummow and Hayne JJ noted the possible existence of a ‘manifest abuse’ ground for restricting s 51(xxvi) in Kartinyeri v Commonwealth (1998) 195 CLR 337 [page 238] at 378. Kirby J was critical of this notion, saying it was ‘unworkable’ and would not prevent the Commonwealth Parliament from enacting racist laws (at 416): Laws such as those set out above would, now, be expressly forbidden by the constitutions of both Germany and South Africa. Yet, in Australia, if s 51(xxvi) of the Constitution permits all discriminatory legislation on the grounds of race excepting that which amounts to a ‘manifest abuse’, many of the provisions which would be universally condemned as intolerably racist in character would be perfectly valid under the Commonwealth’s propositions. The criterion of ‘manifest abuse’ is inherently unstable. The experience of racist laws in Germany under the Third Reich and South Africa under apartheid was that of gradually escalating discrimination. Such has also been the experience of other places where adverse racial discrimination has been achieved with the help of the law. By the time a stage of ‘manifest abuse’ and ‘outrage’ is reached, courts have generally lost the capacity to influence or check such laws. A more stable and effective criterion is required for validity under par (xxvi). It should be one apt to the words and character of the Australian Constitution; but also to

the shared experience of the Australian people that lay behind the amendment of par (xxvi) in 1967 [reference omitted].

9.15 The RDA, as a federal law, overrides state laws to the extent of its inconsistency by the operation of s 109 of the Constitution: see, for example, Gerhardy v Brown (1985) 159 CLR 70; Koowarta v BjelkePetersen (1982) 153 CLR 168; Viskauskas v Niland (1983) 153 CLR 280; University of Wollongong v Metwally (1984) 158 CLR 447; Mabo v Queensland (No 1) (1988) 166 CLR 186; and Western Australia v Commonwealth (Second Native Title Act case) (1995) 183 CLR 373. However, the Commonwealth can repeal the RDA in whole or in part, and has done so on occasion. This has led many commentators to argue that the Constitution must be reformed. A Commonwealth Expert Panel reporting in 2012 summarised these attempts and concluded that a new s 116A should be included in the Constitution, reading: Prohibition of racial discrimination (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. (2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Constitutional recognition 9.16 Constitutional recognition of Indigenous Australians (that is, Aboriginal and Torres Strait Islander peoples) is an important social issue that has taken on added significance in recent times. In October 2007, Prime Minister John Howard, as part of his unsuccessful campaign for re-election, announced at the Sydney Institute that ‘if reelected, I will put to the Australian people within 18 months a referendum to formally recognise Indigenous Australians in our Constitution — their history as the first inhabitants of our country, their unique heritage of culture and languages, and their special

(though not separate) place within a reconciled, indivisible nation’. The preferred method of constitutional recognition of Indigenous Australians, according to the then Prime Minister, was to have a ‘Statement of Reconciliation incorporated into the Preamble of [page 239] the Australian Constitution’. This policy was also supported by the Australian Labor Party, who re-affirmed its support for constitutional recognition in the wake of Howard’s announcement. Although in the subsequent parliamentary term an apology was made to the Stolen Generations, constitutional recognition for Indigenous Australians stalled. The process lacked impetus until after the following federal election in 2010 when, as part of the power sharing arrangement with the Greens Party and two Independents, the Gillard Government announced that an Expert Panel would be appointed to explore and report on the possible options for constitutional change. The progress made towards the constitutional recognition of Indigenous Australians is examined in further detail at 9.17–9.20. Prior to discussing the issue of Indigenous recognition in the Commonwealth Constitution, it is appropriate to note the position adopted by parliaments at the state and federal level. Four of the states have legislated to expressly recognise Aboriginal people in their constitutions: s 2 of the Constitution Act 1902 (NSW); preamble of the Constitution of Queensland 2001 (Qld); s 2 of the Constitution Act 1934 (SA); s 1A of the Constitution Act 1975 (Vic). The States of New South Wales, South Australia and Victoria recognise that Aboriginal people have a unique status as Australia’s first people and that they possess a spiritual, social, cultural and economic relationship with their traditional lands and waters and continue to make a unique

contribution to the identity of the state. In the State of Queensland, it is recognised that the people of Queensland honour ‘Aboriginal and Torres Strait Islander peoples, the First Australians, whose lands, winds and waters we all now share; and pay tribute to their unique values, and their ancient and enduring cultures, which deepen and enrich the life of the community’. These four states identify the importance of constitutional recognition for many Indigenous people, including its potential to bring people together as well as the mitigating effect it may have on racial discrimination: Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples Final Report, 2015, pp 86–7. It sends the symbolic message to all Australians that Australia as a nation is a place of fairness and equality for all its citizens. It is for this reason that the enactment of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) by the Commonwealth Parliament on 13 February 2013 was widely praised. The Commonwealth Parliament recognised, in a symbolic gesture, the first occupation of Australia by the Aboriginal and Torres Strait Islander peoples: s 3(1). Furthermore, the parliament acknowledged the continuing relationship that Indigenous peoples have with their traditional lands and waters, and the continuing cultures, languages and heritage of Indigenous peoples: s 2(2) and (3). 9.17 As noted above, in 2010 the Gillard Government established an Expert Panel to advise on the possible options for constitutional change. The Report of the Expert Panel was handed down in January 2012. Between May and October 2011 the Panel conducted a broad national consultation and community engagement program, which included ‘public consultation meetings, individual discussions with high-level stakeholders, presentations at festivals and other events, a website, and a formal public submissions process’. An integral part of the program was to ‘capture the views of as many Aboriginal and

Torres Strait Islander people and communities as possible within available timeframes’. The Panel also sought [page 240] legal advice from constitutional law experts ‘on options for, and issues arising in relation to, constitutional recognition to ensure that its proposals were technically and legally sound’: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2012, p xi). The Panel recommended five amendments to the Constitution (at pp xviii-xix). These included the abolition of ss 25 and 51(xxvi) of the Constitution and the introduction of three new substantive sections. The introduction of proposed s 51A constitutes a direct swap for the proposed repeal of s 51(xxvi). The Panel recommends: 1

That section 25 be repealed.

2

That section 51(xxvi) be repealed.

3

That a new ‘section 51A’ be inserted, along the following lines:

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples; The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples. The Panel further recommends that the repeal of section 51(xxvi) and the insertion of the new ‘section 51A’ be proposed together.

4

That a new ‘section 116A’ be inserted, along the following lines: Section 116A Prohibition of racial discrimination (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. (2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

5

That a new ‘section 127A’ be inserted, along the following lines: Section 127A Recognition of languages (1) The national language of the Commonwealth of Australia is English. (2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

It is interesting to note that these recommendations exceed the proposed, some would say ‘tokenistic’, recognition of Indigenous Australians in the preamble of the Constitution, announced by Prime Minister Howard in 2007. The inclusion of a new s 51A, for instance, would preserve the Commonwealth Parliament’s power to pass laws only for the benefit of Aboriginal and Torres Strait Islander peoples. It may be recalled that this was the preferred interpretation of s 51(xxvi) advanced [page 241] by Kirby J in Kartinyeri v Commonwealth (see 9.7 and 9.9 above). As Jennifer Clarke writes in Hanks Australian Constitutional Law (2013, p 166), ‘in combination with the Panel’s proposed anti-discrimination clause, these “recognition statements” appear to limit the power conferred by proposed s 51A so that it could not be used in the adverse manner in which the High Court as held [in Kartinyeri] the present s 51(xxvi) may be used’. However some concerns have been expressed over the suitability of

some of the recommendations in the Report of the Expert Panel. For example, Professor Anne Twomey (2014) questioned the broadness of proposed s 116A (pp 405–7) and the uncertainty and ambiguity surrounding proposed s 127A (p 410). In addition, Frank Salter, writing in Quadrant magazine (December 2013), took exception to the terminology used in proposed s 127A(2). He argued (at p 30) that it is: … generally untrue that indigenous languages are part of the national heritage, which is overwhelmingly of British and European origin … the recommendation is valid when it recognises that indigenous language came first. Those languages would become part of the national heritage should they become integrated into the national community. But the proposed amendment disrespects the nation by treating English as inferior.

9.18 The Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) (introduced at 9.16) is also important for its inclusion of s 4 (‘Review of support for a referendum to amend the Constitution’); a section providing for a Review Panel to consider the readiness of the Australian public (and the levels of support amongst Indigenous peoples, the wider Australian public and the governments of the states and territories) to support a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution: s 4(2)(a) and (d). The Review Panel was also tasked with considering proposals for constitutional change and to identify which of those proposals would be most likely to obtain the support of the Australian public at a referendum: s 4(b) and (c). In its Final Report published in September 2014, the Review Panel proposed that a Referendum Council be established to ‘settle the final form of words and draw debate on the model to a conclusion’. As discussed in further detail at 9.20, a Referendum Council was announced on 7 December 2015 and had its first meeting on 14 December 2015. The Council has met a subsequent three times during 2016. According to the Review Panel, a Referendum Council would ‘advise on the final proposition and gain agreement … from

Indigenous peoples, constitutional experts, parliaments and the wider public’. In doing so, the Referendum Council would draw on the work of Review Panel’s Final Report and the Final Report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (see further 9.19). In terms of its findings, the Review Panel proposed that a statement of recognition be included in the Constitution to recognise Aboriginal and Torres Strait Islander peoples as the country’s first Australians. The Panel also recommended that s 25 be repealed and that s 51(xxvi) either be amended (to prevent adverse outcomes) or repealed (and replaced by another section). Finally, the Review Panel reported that there was a lack of support for a standalone clause for the constitutional recognition of Indigenous languages (the proposed s 127A). [page 242] 9.19 The Joint Select Committee (JSC) on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples released its Final Report in June 2015. This report built on the recommendations in the JSC’s Progress Report in October 2014. In its Final Report, the JSC identified a number of recommendations (see xvii–xvi). With respect to constitutional alteration, it was recommended that ss 25 and 51(xxvi) be repealed, with s 51(xxvi) to be replaced by one of three options. Each option works to recognise and protect Indigenous peoples by providing the Commonwealth with legislative power to make laws ‘with respect to Aboriginal and Torres Strait Islander peoples’, but so as not to discriminate adversely against them. Option one, which reflects the recommendations of the Expert Panel (with the exception of the fourth line of preambular language in proposed s 51A), goes even further by advocating a complete prohibition on racial discrimination (regardless of racial group). Although proposed s 127A

is not included as a standalone clause in any of the options, it is situated in the preambular language in options two and three: … The committee recommends that the three options, which would retain the persons power, set out as proposed new sections 60A, 80A and 51A & 116A, be considered for referendum. The first option the committee recommends for consideration is its amended proposed new section 51A, and proposed new section 116A… 51A Recognition of Aboriginal and Torres Strait Islander Peoples Recognising that the continent and its islands new known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples. 116A Prohibition of racial discrimination (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. (2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group. … The second option was proposed… CHAPTER IIIA Aboriginal and Torres Strait Islander Peoples Section 80A (1) Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;

[page 243] Respecting the continuing cultures and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage; the Parliament shall, subject to this Constitution, have power to make laws with respect to Aboriginal and Torres Strait Islander peoples, but so as not to discriminate against them. (2) This section provides the sole power for the Commonwealth to make special laws for Aboriginal and Torres Strait Islander peoples. … The third option which would retain the persons power is the proposal… 60A Recognition of Aboriginal and Torres Strait Islander Peoples Recognising that the continent and its islands new known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage; (1) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples. (2) A law of the Commonwealth, a State or a Territory must not discriminate adversely against Aboriginal and Torres Strait Islander peoples.

The Joint Select Committee considered that all three options were legally and technically sound. Option one is the broadest option (that is, prohibiting discrimination on the grounds of race, colour or ethnic or national origin) while option two is the narrowest, in that it only offers protection from racial discrimination for Indigenous

Australians. It should also be noted that while proposed s 116A would limit Commonwealth, state and territory laws, proposed s 80A is expressed to apply only to the Commonwealth. The third option is both narrow and broad: narrow in that protection against racial discrimination is limited to Indigenous Australians (like option two), but broad in the sense that the prohibition would limit Commonwealth, state and territory laws. It appears that the Joint Standing Committee favoured option one, given their strong support of proposed s 116A (see pp 63–4). 9.20 As mentioned at 9.18, the body now responsible for finalising the referendum question is the Referendum Council. The Referendum Council was established in December 2015 and held its first meeting that month. The council is comprised of sixteen Indigenous and nonIndigenous members and its function is to advise the Prime Minister and the Leader of the Opposition on the form of the question to take to a referendum, and when the referendum should be held. Following the council’s fourth meeting in May 2016, a communiqué was released outlining the [page 244] framework for consultation (which was previously discussed at the second and third meetings of the council). Commencing with three meetings with Aboriginal and Torres Strait Islander leaders about the options for recognition, the council also plans to hold a series of Indigenous and community-wide consultations in the second half of 2016. Among the questions to be discussed is the repeal of s 25, the future of s 51(xxvi), whether another legislative power should be enacted to make laws beneficially for Indigenous peoples and whether a constitutional prohibition on racial discrimination (that is, proposed

s 116A) should be included in the referendum question.

[page 245]

Chapter Ten

External Affairs and the Constitution Introduction 10.1

Section 51(xxix) of the Constitution provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxix) External affairs.

‘External affairs’ 10.2 The phrase ‘external affairs’ in s 51(xxix) has been interpreted widely. The Commonwealth can use s 51(xxix) to legislate with respect to anything geographically external to Australia. It can also use s 51(xxix) to implement international obligations into domestic law, to regulate Australia’s relations with other countries (or ‘external relations’) and matters of international concern. The next few paragraphs outline the general interpretive principles applied to s 51(xxix), and then identify the many different types of law that can be supported by the power, considering the facts of the cases in more detail. Flexible interpretation 10.3 In Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 at 482 (discussed previously at 3.17), Brennan CJ,

Toohey, Gaudron, McHugh and Gummow JJ said: … the Commonwealth of Australia was established at a time of evolving law and practice in the external relations between sovereign powers and between the selfgoverning units of the Empire. It would be a serious error to construe par (xxix) as though the subject-matter of those relations to which it applied in 1900 were not continually expanding. Rather, the external relations of the Australian colonies were in a condition of continuing evolution and, at that time, were regarded as such. Accordingly, it is difficult to see any justification for treating the content of the phrase ‘external affairs’ as crystallised at the commencement of federation, or as denying it a particular application on the ground that the application was not foreseen or could not have been foreseen a century ago [references omitted].

This passage was approved in XYZ v Commonwealth (2006) 227 CLR 532 at 546 (Gummow, Hayne and Crennan JJ) and by Gummow and Crennan JJ in Thomas v Mowbray (2007) 233 CLR 307 at 365. This view has not been favoured by every member of the High Court (see XYZ v Commonwealth (2006) 227 CLR 532 at 583 per Callinan and Heydon JJ; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at [411]–[425] per [page 246] Heydon J). However, the approach that s 51(xxix) should be interpreted flexibly to accommodate unforeseen circumstances has been, and remains, in the ascendancy. Construe the power broadly 10.4 The principle that constitutional powers should be interpreted broadly was enunciated by O’Connor J in Jumbunna Coal Mine v Victorian Coal Miners’ Association (No 2) (1908) 6 CLR 309 at 368 (and was considered at 2.12). Generally, it has been applied to s 51(xxix). However, over the course of its history, Australia has joined a great many treaties, and so the range of topics the Commonwealth can

regulate via the external affairs power has expanded considerably. This has given rise to concern that the Commonwealth’s power has expanded too far, and at the expense of the states. This concern was evident in the Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1. Some other aspects of this case are considered at 8.18 and 9.4. In 1982 Tasmania enacted the Gordon River Hydro-Electric Power Development Act which authorised a government-controlled statutory corporation, the Hydro-Electric Commission of Tasmania, to construct a dam on the Gordon River (the Franklin Dam). The Franklin Dam was to be built within national parks that had been nominated for World Heritage listing under the Commonwealth World Heritage Convention Act. There was vigorous opposition to the building of the Dam, particularly from the Tasmanian Wilderness Society, and the question whether the dam should be built figured large in the 1983 federal election. After the election and a change of government, federal regulations and legislation were implemented prohibiting the construction of a dam or associated works in the area covered by the Tasmanian legislation, except with the consent of the Federal Minister for the Environment. Tasmania challenged the legislation on a number of grounds, including that the Commonwealth had exceeded the limits of s 51(xxix), and had breached the Melbourne Corporation doctrine (as to which, see 3.10). Gibbs CJ, in his dissenting judgment, remarked (at 100): … there is almost no aspect of life which under modern conditions may not be the subject of an international agreement, and therefore the possible subject of Commonwealth legislative power. Whether Australia enters into any particular international agreement is entirely a matter for decision by the Executive. The division of powers between the Commonwealth and the States which the Constitution effects could be rendered quite meaningless if the federal government could, by entering into treaties with foreign governments on matters of domestic concern, enlarge the legislative powers of the Parliament so that they embraced literally all fields of activity … Section 51(xxix) should be given a construction that will, so far as possible, avoid the consequence that the federal balance of the Constitution can be destroyed at the will of

the Executive.

From time to time, dissenting justices have expressed concern that an expansive approach to the external affairs power has upset the ‘federal balance’: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 198 per Gibbs CJ (with whom Wilson J agreed); Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 at 99–100 per Gibbs CJ; Wilson J at 197–8; Dawson J at 302; Richardson v Forestry Commission (1988) 164 CLR 261 at 320–2 per Dawson J; New South Wales v Commonwealth (2006) 229 CLR 1 at 234–5. However, an expansive, literal approach to s 51(xxix) has been, and remains, in the ascendancy. [page 247]

Geographic externality 10.5 The external affairs power can be used to regulate anything geographically external to Australia. This approach to s 51(xxix) was taken by three members of the court in New South Wales v Commonwealth (Seas and Submerged Lands case) (1975) 135 CLR 337. This case concerned the federal Seas and Submerged Lands Act 1973 (Cth), which regulated mining and related activities in Australia’s territorial sea, the sea bed and subsoil (Australia’s continental shelf), beyond the low water mark of the Australian coast. The Act defined the territorial seas as including the internal waters of the sea on the landward side of the baseline of the territorial sea, but saved the powers of the states with respect to bays, gulfs, estuaries, rivers, creeks, inlets, ports and harbours which fell within the limits of the colonies before Federation. The legislation was challenged by the states on the ground that the states retained the power over colonial local waters in spite of Federation, and this power extended beyond the low water mark. The Seas and Submerged Lands Act was found valid on the basis

that it implemented Australian international treaty obligations under the Convention on the Territorial Sea and Contiguous Zone and the Convention on the Continental Shelf. However, the law was also upheld by three members of the court on the further ground that the external affairs power extended to allow the federal parliament to pass laws regulating affairs which are geographically external to Australia: at 360 per Barwick CJ; at 470–1 per Mason J; at 498 per Jacobs J. 10.6 The principle that the external affairs power extends to allow the federal parliament to regulate matters outside Australia was confirmed, and confirmed to enable legislation with retrospective effect, in Polyukhovich v Commonwealth (War Crimes Act case) (1991) 172 CLR 501. Provisions of the War Crimes Act 1945 (Cth) as amended by the War Crimes (Amendment) Act 1988 (Cth) made it a criminal offence to have engaged in activity that would be a criminal offence under Australian law if that conduct had taken place in Axis-occupied Territories in Europe during World War II. The plaintiff, who was alleged to have committed Nazi war crimes in the Ukraine during 1942 and 1943, challenged the constitutional validity of the legislation on the basis that the external affairs power could not authorise a law ‘merely because it deals with a matter external to Australia’: at 514. It was argued that the power was concerned with ‘matters concerning other countries and Australia’s relations with them’, and that the war crimes legislation did not satisfy that test. The court rejected these arguments and upheld the legislation on the basis that it operated upon conduct that had taken place outside Australia: at 528 per Mason CJ; at 550 per Brennan J; at 602 per Deane J; at 636 per Dawson J; at 652 per Toohey J; at 695–6 per Gaudron J; at 714 per McHugh J. See also 19.38. 10.7 In Polyukhovich v Commonwealth (1991) 172 CLR 501, Brennan and Toohey JJ suggested there may be a need for legislation relying on

the geographic externality denotation of the power to display some additional connection with Australia to be valid. Brennan J said: ‘I would not hold that the Constitution confers power to enact laws affecting affairs which, though geographically external, have nothing to do with Australia … (there) must be some nexus, not necessarily substantial, between Australia and the “external affairs”’: at 551. Toohey J said that even if [page 248] something was geographically external to Australia, it would not qualify as an external affair for the purposes of s 51(xxix) unless ‘the Parliament recognises [it] as touching and concerning Australia in some way’: at 654. The possibility that these comments might qualify the geographic externality test was kept alive in Horta v Commonwealth (1994) 181 CLR 183 at 194 and R v Hughes (2000) 202 CLR 535 at 556. In Horta v Commonwealth the court unanimously upheld the Petroleum (Australia-Indonesia Zone of Co-operation) Act 1990 (Cth) on the basis that it regulated exploration and exploitation of petroleum resources in the Timor Gap, an area of the continental shelf between the East Coast of Timor and the north-western coast of Australia. The court said that each ‘of these matters is geographically external to Australia. There is an obvious and substantial nexus between each of them and Australia. As the enactment of the Act demonstrates, they are all matters which the Parliament recognizes as affecting or touching Australia’: at 194. In R v Hughes (2000) 202 CLR 535 the High Court unanimously upheld legislation that created offences relating to the making of investments in a foreign country because they ‘relate to matters territorially outside Australia, but touching and concerning

Australia, and so would attract s 51(xxix)’: at 556. However, the suggestion that some additional connection might be required has apparently been rejected. The following statement by Dawson J in Polyukhovich v Commonwealth (1991) 172 CLR 501 at 695–6 regarding the scope of the external affairs power was approved by Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 at 485: [T]he power extends to places, persons, matters or things physically external to Australia. The word ‘affairs’ is imprecise, but it is wide enough to cover places, persons, matters or things. The word ‘external’ is precise and unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase ‘external affairs’.

Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ concluded that this view ‘must now be taken as representing the view of the court’: at 145. This statement was also approved by Gleeson CJ and by Gummow, Hayne and Crennan JJ (in a joint judgment) in XYZ v Commonwealth (2006) 227 CLR 532 at 538 and 546 respectively. 10.8 In XYZ v Commonwealth (2006) 227 CLR 532, provisions of the Crimes Act 1914 (Cth) prohibited Australian citizens or residents from engaging in sexual intercourse or acts of indecency with people under the age of 16. The legislation was designed to stop child sex tourism by Australians, particularly in South East Asia. XYZ was charged with offences under these provisions and challenged their constitutional validity on the basis that the expression ‘external affairs’ in s 51(xxix) was limited to Australia’s ‘foreign affairs’ — the negotiation of treaties between governments and diplomatic relations as such — and could not support laws with respect to things that were merely geographically external to Australia. This argument was rejected by a majority of the court, which applied the principle laid down by the majority in Victoria v Commonwealth: see Gleeson CJ (at 538–9); Gummow, Hayne and Crennan JJ (in a joint judgment at 546). Kirby J upheld the law on the ground that ‘the contested law is one with

respect to the international [page 249] relationships of Australia with other nation states and international organisations and on that basis is within the external affairs power of the Constitution’ (at 575). In Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1 (at 51), Gummow J noted that a law governing the movement of people between Australia and places physically external to Australia could be supported by s 51(xxix). Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 concerned the constitutional validity of Australia’s offshore processing scheme. The plaintiff, an asylum seeker intercepted at sea on an Indian vessel that entered Australia’s maritime zone, was declared an ‘unauthorised maritime arrival’ under s 5AA of the Migration Act 1958 (Cth) and was transferred to Nauru. She challenged the validity of her detention, contending inter alia that the arrangement with Nauru for the processing of refugees was not supported by a source of federal legislative power, including s 51(xxix). This case is explored in detail at 13.20. In the plaintiff’s submissions, it was argued that s 198AHA could not be supported by the ‘external relations’ (at [89]) (see 10.30 below) or ‘geographic externality’ elements of s 51(xxix) (at [90]). The Commonwealth, in response, stated that s 198AHA (which authorised the Commonwealth’s participation, to the extent that the Commonwealth participated, in relation to the regional processing functions of a country) was supported by both aspects of the external affairs power. With respect to externality, it was submitted that s 198AHA was a law with respect to ‘places, persons, matters or things physically external

to Australia’ because it was ‘with respect to the regional processing functions of another country, necessarily a matter external to Australia’. It was further argued that this aspect of s 51(xxix) was not limited by the fact that the law ‘regulates conduct within Australia, since any such conduct is directed to carrying out an object physically external to Australia’ (at [50] of the Commonwealth’s submissions, citing the judgment of Gummow and Crennan JJ in Thomas v Mowbray (2007) 233 CLR 307 at 365 [153]). Although this argument was not addressed by the court, it was accepted by the primary judge and Court of Appeal judges in the Alqudsi cases (see below). In Plaintiff M68/2015, a majority of the court upheld s 198AHA as a valid exercise of s 51(xix) (the ‘aliens power’). Only two justices accepted that s 51(xxix) was the relevant head of power: Gageler J at [182] and Gordon J at [407] (however Gordon J declared the law invalid because it impermissibly infringed Ch III of the Constitution: at [408]). It would appear that their Honours favoured the ‘external relations’ limb of s 51(xxix), rather than ‘geographic externality’. In Alqudsi v Commonwealth [2015] NSWCA 351 the New South Wales Court of Appeal confirmed that the external affairs power, in extending to laws regulating persons, places, matters, or things physically external to Australia, is not confined to conduct and tangible things: at [3] per Basten JA; at [104]–[113] per Leeming JA; at [171]–[172] per McCallum J. Alqudsi stood accused of breaching s 7(1) (e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), which provided that a person shall not, within or outside Australia, give money to, or provide services for, ‘any other person … with the intention of supporting or promoting the commission of an offence against section 6’. Section 6 of the Act provided that a person shall not ‘enter a foreign State with intent to engage in a hostile activity in that foreign State’, or engage in a hostile activity in ‘a foreign State’ (emphasis added).

[page 250] These provisions therefore operated to prevent foreign fighter activity (including the facilitation of that activity) by Australian citizens and residents. Alqudsi allegedly provided material support to seven Australians in 2013 to travel from Australia to Syria (via Turkey) to engage in armed hostilities against the al-Assad Government. Leeming JA (with Basten JA and McCallum J concurring), agreed with the reasoning of the primary judge that, for the purposes of ‘externality’, it was immaterial that Alqudsi did not enter the territory of the ‘foreign State’ (Syria) in respect of engaging in foreign fighter activity. Leeming JA observed: 104 The primary judge also rejected the submission that the requirement for an external place, matter or thing outside the geographical limits of Australia was only satisfied by tangible things. Her Honour discerned no basis in limiting the geographic externality aspect of the power to tangibles, and indeed said, ‘I regard this submission as foreclosed by the dicta of Gummow and Crennan JJ in Thomas v Mowbray at [153]’: at [56]. The passage in Thomas v Mowbray, which followed a quotation from the judgment of Gummow, Hayne and Crennan JJ in XYZ, was: The legislative scheme in Div 104 of the Code for prevention through the interim control order system of ‘terrorist acts’ done or threatened with the intention of coercing or influencing by intimidation the government of a foreign country or part thereof or intimidating the public or a section of the public of a foreign country is a law with respect to a ‘matter or thing’ which lies outside the geographical limits of Australia. The ‘matter or thing’ is the apprehended intimidation or injury to the government or public of a foreign country. … 112 What is required by s 7(1)(e) is some conduct by the supporter (say, giving money, giving a plane ticket or a false passport, or providing information about routes and contacts) with the supporter having an intention that the conduct will support or promote an offence against s 6(1)(a). It follows that there must be an intention that the conduct will support or promote a militant’s entry into a foreign State. Undoubtedly, as the primary judge observed, the mental state has a connection with a matter which is geographically external to Australia (entering into a foreign State with s 6(3) intent). But so too does the conduct, if it is to be conduct which is undertaken with the intention

of supporting or promoting the commission of an offence against s 6(1)(a). 113 … The conduct which is undertaken with the intention of supporting or promoting the commission of an offence against s 6 is itself conduct which is linked to a place outside Australia, even if the only physical activities by the supporter take place in Australia. Only if the conduct is intended to support or promote the entry of a militant into a foreign country can the offence against s 6(1)(a) be made out. In other words, what is regulated is conduct intended to support something happening in a foreign State. Consistently with the approach taken in Thomas v Mowbray at [153], I think that is sufficient for the law to be one which is with respect to external affairs [original emphasis].

Australia’s international relations, obligations and concerns 10.9 The phrase ‘external affairs’ also refers to Australia’s international or foreign relations, international obligations and international concerns. The locus classicus is the joint judgment of Evatt and McTiernan JJ in R v Burgess; Ex parte Henry (1936) [page 251] 55 CLR 608 at 687. This case concerned the Air Navigation Act 1920 (Cth) and regulations, which were enacted for the purpose of implementing the International Convention for the Regulation of Aerial Navigation, to which Australia was a party. The convention prohibited flying below a certain height limit in airport (aerodrome) ‘landing areas’, but provided for a ‘neutral zone’ adjacent to the landing area in which aircraft could manoeuvre on the ground. The domestic regulation prohibited flying below the height limit throughout the aerodrome. Henry, who ran joy flights in the neutral zone of the aerodrome, was charged with a breach of the federal regulation and challenged its validity on a number of grounds (see also 6.18), including the ground that there were substantial

differences between the convention obligations and the regulations relating to the use of aerodromes and landing places. In particular, Henry argued that the Commonwealth had no constitutional power under the convention to extend any limitations on flying height applicable to ‘landing areas’ to the ‘neutral zone’ adjacent to the landing area. It was argued that while anything incidental to the purpose of the convention would be within power, the expanded regulation of the neutral zone was unnecessary, inconsistent with the convention and consequently outside the scope of the external affairs power. This argument was accepted and the regulations were struck down as invalid for exceeding the purpose of the convention. Evatt and McTiernan JJ said (at 687–8): It would seem clear, therefore, that the legislative power of the Commonwealth over ‘external affairs’ certainly includes the power to execute within the Commonwealth treaties and conventions entered into with foreign powers. The legislative power in sec. 51 is granted ‘subject to this Constitution’ so that such treaties and conventions could not be used to enable the Parliament to set at nought constitutional guarantees elsewhere contained, such, for instance, as secs 6, 28, 41, 80, 92, 99, 100, 116, or 117. But it is not to be assumed that the legislative power over ‘external affairs’ is limited to the execution of treaties or conventions; and, to pursue the illustration previously referred to, the Parliament may well be deemed competent to legislate for the carrying out of ‘recommendations’ as well as the ‘draft international conventions’ resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations … No suggestion has been made that the entry into the convention was merely a device to procure for the Commonwealth an additional domestic jurisdiction and that suggestion could easily be refuted by referring to the setting up under chapter VIII of the Convention of the Permanent International Commission for Air Navigation. But it is a necessary corollary of our analysis of the constitutional power of Parliament to secure the performance of an international convention that the particular laws or regulations which are passed by the Commonwealth should be in conformity with the convention which they profess to be executing. In other words, it must be possible to assert of any law which is, ex hypothesi, passed solely in pursuance of this head of the ‘external affairs’ power, that it represents the fulfilment, so far as that is possible in the case of laws operating locally, of all the obligations assumed under the convention. Any departure from such a requirement would be completely destructive of the general scheme of the Commonwealth Constitution, for, as we are assuming for the moment, it is only because, and precisely so far as, the Commonwealth statute or

regulations represent the carrying into local operation of the relevant portion of the international convention, that the Commonwealth Parliament or Executive can deal at all with the subject matters of the convention. Doubtless this requirement [page 252] does not necessarily preclude the exercise of wide powers and discretions by the Parliament or the Executive of the Commonwealth, for the international convention may itself contemplate that such powers and discretions should be exercisable by the appropriate authority of each party to the convention. Everything must depend upon the terms of the convention, and upon the rights and duties it confers and imposes. But the general requirement must be fulfilled or the Commonwealth will be exceeding its lawful domain.

The judgment of Evatt and McTiernan JJ contemplates a number of matters that can give rise to ‘external affairs’ within s 51(xxix), including treaties and conventions, draft conventions, recommendations of international organisations, and ‘requests from other countries upon other subject matters of concern to Australia as a member of the family of nations’ (what have become known as ‘matters of international concern’).

Implementation of treaty obligations Treaty-making power 10.10 Treaties are agreements between states (nations) at international law. The treaty-making process demonstrates the state’s intention to be bound by the agreement under international law. Treaties may be bilateral (between two nations) or multilateral (between three or more nations). Multilateral treaties include covenants, conventions and declarations. Covenants are understood to be broadly framed compacts relating to human rights (for example, the International Covenant on Civil and Political Rights (ICCPR)). It is a binding agreement between nations in which a state undertakes to perform (or refrain from) some action. Conventions are binding

agreements between states to create international norms and standards in respect of particular subject matters (for example, the International Convention on the Elimination of All Forms of Racial Discrimination or the Convention on the Rights of the Child). Once ratified, member states are required to act in accordance with the convention (usually by taking necessary action to further its objectives). Unlike covenants and conventions, declarations (like international recommendations) are not binding agreements. Declarations instead refer to documents that outline appropriate standards which states are expected to meet (for example, the United Nations Declaration on the Rights of Indigenous Peoples, affirming inter alia that indigenous peoples are equal to all other peoples and reaffirming that indigenous peoples, in exercising their rights, should be free from discrimination of any kind). By contrast, an example of a bilateral treaty is the ANZAC Pact between Australia and New Zealand in 1944, relating to security and defence as well as civil aviation and the welfare and advancement of native peoples in the Pacific. One of the post-war objectives of the treaty is for the two governments to ‘agree to act together in matters of common concern in the South West and South Pacific areas’ (see cl 5). 10.11 The power to enter into treaties is a function that belongs to the executive, with such power conferred by s 61 of the Constitution. For an examination of executive prerogative powers, see 13.21–13.26. Accordingly, it is the responsibility of the executive (not the parliament) to negotiate, sign and ratify treaties. While it is accepted that treaty-making is an executive act, the implementation of treaty [page 253] terms into domestic law requires legislative action on the part of the

parliament (discussed at 10.12). According to Moens and Trone (2012, p 172) ‘the Governor-General exercises the executive power of the Commonwealth in relation to the making of treaties’. This should be placed in the correct context. Convention requires Cabinet agreement prior to approval by the Federal Executive Council, the constitutional institution which advises the Governor-General (as the Queen’s representative exercising the executive power of the Commonwealth) to formally approve Australia’s entry into the treaty. Reforms in 1996 also require a number of intermediate steps prior to ratification. After negotiation by government officials and signature by the Minister for Foreign Affairs on the international plane, state and territory governments are consulted. Discussions may also take place with appropriate stakeholders, such as NGOs (non-government organisations). Cabinet approval is required in the event of amendments to the proposed treaty. The treaty is thereafter tabled in parliament (along with a National Interest Analysis) and is also referred to the Joint Standing Committee on Treaties for scrutiny. After this occurs the Federal Executive Council approves the decision to enter into the treaty and formally advises the Governor-General to ratify it. Ratification is the act of conveying the State’s consent to be bound by the treaty. PH Lane (1979, p 239) described the process of ratification in the following terms: ‘The international agreement enters into force after it has been ratified and the instruments of ratification have been exchanged or deposited with some agency and/or after a prescribed number of Signatory States have become parties to the agreement, and so on’. At this time, the State becomes bound at international law not to defeat or frustrate the object or purpose of the treaty. But because treaties are not self-executing, mere ratification of a treaty does not mean that obligations and rights are automatically enforceable under Australian domestic law. In Australia a treaty cannot operate with domestic effect unless parliament has implemented the terms of the treaty in statute.

Treaties are not self-executing 10.12 It is a well-established principle of constitutional law that treaties are not self-executing — that is, a treaty will not form part of Australian domestic law until it has been implemented in a valid federal law: Walker v Baird [1892] AC 491 at 497; Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 at 480. In the latter case, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ observed (at 480): ‘entry by the Executive into a treaty is insufficient, without legislation to implement it, to modify the domestic or municipal legal order by creating or changing public and private legal rights and obligations’. There is no requirement that the parliament implement international treaty obligations that are negotiated and settled by the executive. However, where parliament has implemented the obligations into domestic law, the principal head of power relied on by the Commonwealth will be the external affairs power (namely the implementation of treaty obligations limb). Although the states lack international standing (meaning that they cannot enter into treaties), because ‘external affairs’ is a concurrent power situated in s 51 of the Constitution, a state may use its general legislative power to make laws for the ‘peace order and good government’ of that state. This effectively means that the Commonwealth, or both the Commonwealth and the [page 254] states, may legislate with respect to external affairs. Once legislation is enacted, the international obligations become domestic obligations and are binding in Australian domestic law. Notwithstanding the above, this process does not mean that treaty

obligations which have yet to be implemented in federal legislation are irrelevant to Australian law. It has been held that where Australia is a party to a treaty, the text of that treaty may assist in the interpretation of ambiguous domestic law or in the exercise of statutory discretion: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. More specifically, it is said to be a principle of Australian statutory interpretation that statutes are to be interpreted and applied in conformity and not in conflict with established principles of international law: Polites v Commonwealth (1945) 70 CLR 60 at 68–9, 77 and 80–1 per Latham CJ, McTiernan J and Williams J respectively. So, for example, the High Court has determined that an applicant for permanent residency whose deportation would cause his wife and children hardship would have a legitimate expectation that the Federal Immigration Review Panel would have regard to the United Nations Convention on the Rights of the Child, an international convention to which Australia was a party but had not yet implemented, in determining his migration status: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287–9 per Mason CJ and Deane J; at 303 per Toohey J; at 305 per Gaudron J. While the United Nations Convention on the Rights of the Child had not yet been implemented into Australian domestic law, where federal immigration law was ambiguous a legitimate expectation might be created that administrative action by government would be consistent with that convention. 10.13 If the parliament chooses to implement Australia’s international obligations into domestic law, that law must demonstrate a clear intention to create legally operative domestic obligations. For example, in Bradley v Commonwealth (1973) 128 CLR 557, it was suggested that where the federal government merely approves an international treaty to which Australia is a party, without

describing in specific terms the domestic obligations which flow from this approval, no domestic obligations will be created. The case concerned the Charter of the United Nations Act 1945 (Cth). Section 3 of the Act called upon members of the United Nations to ensure that they did not recognise the illegal regime in Rhodesia. However, the Act did not create any specific domestic legal obligations relating to the Charter. Acting pursuant to s 3 of the Act, the Commonwealth discontinued postal services to Bradley, the acting director of the Rhodesia Information Centre. Postal services were discontinued on the basis that United Nations Security Council resolutions had described the regime in power in Rhodesia as illegal, and under these resolutions members of the United Nations (including Australia) were called upon to take any action necessary, including the interruption of postal services, to ensure that any actions of the illegal regime and their agents should not be given recognition. Bradley sought an injunction to restrain the Commonwealth from discontinuing postal services to the centre, arguing that the Act created no domestic legal obligations. Barwick CJ and Gibbs J, and Stephen J in a separate concurring judgment, said that resolutions of the Security Council did not form part of the law of Australia, [page 255] because no intention to create domestic obligations was manifest from s 3 of the Act (at 582–3): … resolutions of the Security Council neither form part of the law of the Commonwealth nor by their own force confer any power on the Executive Government of the Commonwealth which it would not otherwise possess. The parliament has passed the Charter of the United Nations Act 1945 (Cth), s 3 of which provides that ‘The Charter of the United Nations (a copy of which is set out in the Schedule to this Act) is approved.’ That provision does not make the Charter itself

binding on individuals within Australia as part of the law of the Commonwealth … Section 3 of the Charter of the United Nations Act 1945 was no doubt an effective provision for the purposes of international law, but it does not reveal any intention to make the Charter binding upon persons within Australia as part of the municipal law of this country, and it does not have that effect. Since the Charter and the resolutions of the Security Council have not been carried into effect within Australia by appropriate legislation, they cannot be relied upon as a justification for executive acts that would otherwise be unjustified, on the grounds for resisting an injunction to restrain an excess of executive power, even if the acts were done with a view to complying with the resolutions of the Security Council.

Identification of international obligations 10.14 The identification of an international obligation can be a difficult task. This will be especially so where the Commonwealth enacts a law to implement an international obligation and there is no treaty text reciting the obligation; for example, where the basis of the international obligation is said to be (only) a matter of international concern, or perhaps on the basis of principles of customary international law. Even where the international obligation is included in a text of some sort, the meaning of that text may be contested. While these are significant problems, they are not seen to be insurmountable. In Victoria v Commonwealth (1996) 187 CLR 416 at 486 Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ approved the following comments by Deane J in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 at 261–2: [A]bsence of precision does not, however, mean any absence of international obligation. In that regard, it would be contrary to both the theory and practice of international law to adopt the approach which was advocated by Tasmania and deny the existence of international obligations unless they can be defined with the degree of precision necessary to establish a legally enforceable agreement under the common law.

The principle that the High Court has the ultimate power to determine the facts upon which conclusions relating to international obligations are based was confirmed in Queensland v Commonwealth (Daintree Rainforest case) (1989) 167 CLR 232. This case concerned

federal legislation implementing Australian treaty obligations under the World Heritage Convention. The convention includes a World Heritage List of areas of international environmental significance. Under the convention, parties have the power to nominate areas of land for inclusion in the list. The federal law authorises the GovernorGeneral to proclaim certain land as land to which these international obligations extend. The Act also gave the Governor-General power to protect property from damage or destructive activities in the event that such a proclamation is likely to be made. Relying on this power, [page 256] the Commonwealth made a proclamation in respect of the Daintree Rainforest in Queensland. Queensland challenged the validity of the provision authorising the proclamation. Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, in a joint judgment, noted the scheme and the fact that the Commonwealth had the power under the scheme to determine whether property should be nominated for World Heritage listing; that is, to define the subject matter of its international obligations. Their Honours concluded that in the absence of any suggestion of ‘bad faith’ either in the nomination or the listing of the relevant property, the inclusion of the property in the list was ‘conclusive of its status in the eyes of the international community’ and ‘conclusive of Australia’s international duty to protect and conserve it’: at 242. The existence of this obligation (and, presumably the determination of any question relating to an allegation of bad faith on the part of the Commonwealth) was a question of fact for the court to determine in the circumstances: at 239. This, of course, is consistent with the basic principle of judicial review that only the High Court has the ultimate power to determine the facts and the law where its jurisdiction has been invoked.

Objectives and a specific regime for their achievement 10.15 In R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687, Evatt and McTiernan JJ said that ‘it must be possible to assert of any law which is, ex hypothesi, passed solely in pursuance of this head of the “external affairs” power, that it represents the fulfilment, so far as that is possible in the case of laws operating locally, of all the obligations assumed under the convention’ (emphasis added). However, in Victoria v Commonwealth (1996) 187 CLR 416, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said (at 486): It is competent for the Parliament, in a law under s 51(xxix), partly to carry a treaty into effect or partly to discharge treaty obligations leaving it to the States or to other Commonwealth legislative or executive action to carry into effect or discharge the outstanding provisions or obligations or leaving the outstanding provisions or obligations unimplemented or unperformed. On the other hand, if the relevant law ‘partially’ implements the treaty in the sense that it contains provisions which are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those terms, it would be extremely unlikely that the law could properly be characterised as a law with respect to external affairs on the basis that it was capable of being reasonably considered to be appropriate and adapted to giving effect to the treaty.

Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ then remarked (at 489): Deficiency in the implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.

Domestic law must conform to the treaty 10.16 If the federal law demonstrates a clear intention to create legal obligations, it is then necessary to consider whether the domestic law conforms to the international treaty. As noted above, the test of conformity was considered in R v Burgess; Ex parte Henry (1936) 55 CLR 608. The facts were considered earlier in

[page 257] this chapter (see 10.9). The members of the court were in substantial agreement on the test of conformity to be applied, although they adopted different language in formulating the test. Evatt and McTiernan JJ, in their joint judgment that has often been cited, required federal regulations implementing international obligations to be ‘sufficiently stamped with the purpose of carrying out the terms of the Convention’: at 688. Latham CJ required that the regulations ‘must in substance be regulations for carrying out and giving effect to the Convention’: at 646. Starke J said that ‘all means which are appropriate, and are adapted to the enforcement of the convention and are not prohibited, or are not repugnant to or inconsistent with it, are within power’: at 659–60. Similarly, Dixon J required ‘a faithful pursuit of the purpose, namely, a carrying out of the obligation’: at 674. This would allow the Commonwealth to do ‘anything reasonably incidental to the execution of the purpose’, but ‘wide departure from the purpose is not permissible’. Meticulous adherence to the terms of the treaty is not required 10.17 In R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634 the court had the opportunity to clarify the applicable test. The case also concerned Henry’s joy flights: see 10.9 and 10.16. But here the federal provisions were upheld by the majority, on the basis that the regulations at issue were incidental to the convention. Here, the Air Navigation Act 1902 (Cth) gave the Governor-General the power to make regulations for the purpose of giving effect to the Paris Convention for the Regulation of Air Navigation. That convention contained a provision stating that ‘subject to any special local regulation which may exist: (a) Flight over a landing area at a lower height than 700 metres is prohibited, save in the case of a departure or

landing’. The convention defined the ‘landing area’ of aircraft as that part of an aerodrome used for the departures and landings of aircraft. A domestic regulation made pursuant to the convention stated that ‘aircraft shall not, except when departing or landing, fly over an aerodrome at a lower height than 2,300 feet’. The domestic regulations defined ‘aerodrome’ as including ‘the landing area, neutral zone, and building area’. A majority of the court (Rich, Starke, Evatt and McTiernan JJ; Latham CJ dissenting) upheld the domestic regulations on the basis that they were an appropriate means of implementing the convention, notwithstanding the broader definition of the relevant area in the domestic regulations. The language used by the judges provides some indication of the types of considerations which are relevant in testing conformity. The new regulation was ‘not improper’: Rich J at 644. It was not necessary to demonstrate ‘meticulous adherence to each provision’ in the convention: Starke J at 648. Section 51(xxix) must be construed liberally and much must necessarily be left to the contracting states. So long as the domestic provisions were ‘well adapted and appropriate to ensure the observance’ of the convention or it was ‘an appropriate and effective means of carrying out and giving effect to the convention’ then it would be within power: at 647, 648 respectively. So, when the Commonwealth regulates a matter that is incidental to the effective implementation of an international treaty, it is not necessary for the domestic law to be referable to any explicit obligation in the treaty. The principle that the external affairs power extends to enable the Commonwealth to realise Australia’s reasonably apprehended treaty obligations was confirmed in Commonwealth v Tasmania (Tasmanian Dam case) [page 258]

(1983) 158 CLR 1 and Richardson v Forestry Commission (1988) 164 CLR 261 at 295 per Mason CJ and Brennan J; at 298 per Wilson J; at 313 per Deane J; at 327 per Dawson J; at 343 per Gaudron J. 10.18 The Henry cases illustrate that the conformity between the law and the treaty must be appreciable. It is clear that the domestic law implementing the treaty must be commensurate with the obligations contained in the treaty. Beyond this, to what extent should the domestic law and the terms of the treaty correspond? The High Court has apparently resolved the issue as to how close this adherence must be. To be a law with respect to ‘external affairs’, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty. This is a very liberal characterisation test. This conformity test was considered at length by Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in Victoria v Commonwealth (1996) 187 CLR 416. As discussed previously (at 3.17) the case concerned the constitutional validity of federal legislation which made provision for collective bargaining and the right to strike, and imposed obligations on employers with respect to minimum wages, equal pay, termination of employment, discrimination in employment and family leave. The law was challenged on a number of grounds, including that it was not within the external affairs power. It was argued that the external affairs power did not enable the implementation of treaty obligations unless the subject matter of the treaty was a matter of international concern, that recommendations of international organisations could not impose ‘obligations’ in the relevant sense, and further, that the domestic provisions were not appropriate or adapted to the implementation of the obligations. The Commonwealth argued that the law could be supported on the basis that it dealt with the subject matter of international treaties, recommendations and customary international law, all of which could provide a source of international obligation. As far as the test of conformity was concerned, Brennan CJ,

Toohey, Gaudron, McHugh and Gummow JJ said (at 486–8): Where the legislative power is said to be enlivened by a treaty binding on the Commonwealth of Australia, and the law prescribes a regime affecting a domestic subject-matter, a question arises as to the connection which must exist between the law and the treaty. To be a law with respect to ‘external affairs’, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty. Thus, it is for the legislature to choose the means by which it carries into or gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end: Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54 at 136; the Tasmanian Dam case (1983) 158 CLR 1 at 130– 1, 172, 232, 259; Richardson v Forestry Commission (1988) 164 CLR 261 at 288–9, 303, 311– 12, 336, 342. But that is not to say that an obligation imposed by treaty provides the outer limits of a law enacted to implement it (see the statements collected by Gaudron J in Richardson v Forestry Commission (1988) 164 CLR 261 at 341– 2). The term ‘purpose’ has been used to identify the object for the advancement or attainment of which a law was enacted. Hence, the statement by Brennan J in Cunliffe v The Commonwealth (1994) 182 CLR 272 at 322 that the external affairs power has ‘a purposive aspect’. As this phrase indicates, care is required in relevant analysis. Where a treaty relating to a domestic subject-matter is relied on to enliven the legislative power conferred by s 51(xxix) the validity of the law depends on whether its purpose or object is to implement the treaty. This was explained, in a passage with which we respectfully agree, by Dawson J in Richardson v Forestry Commission (1988) 164 CLR 261 at 326: [page 259] The power to make laws with respect to external affairs contains no expression of purpose and in that respect it is like most of the other powers contained in s 51 of the Constitution. It is not a power to make laws for the purpose of cementing international relations or achieving international goodwill or even for implementing international treaties. The implementation of treaties falls within the power because it is a subjectmatter covered by the expression ‘external affairs’. And the purpose of legislation which purports to implement a treaty is considered not to see whether it answers a requirement of purpose to be found in the head of power itself, but to see whether the legislation operates in fulfilment of the treaty and thus upon a subject which is an aspect of external affairs. In this context, purpose is not something found in the head of power. Rather, it is a test for determining whether the law in question is reasonably capable of being considered as giving effect to the treaty and therefore as being a law upon a subject which is an aspect of external affairs.

It has been said that a law will not be capable of being seen as appropriate and adapted in the necessary sense unless it appears that there is ‘reasonable proportionality’ between that purpose or object and the means adapted by the law to pursue it: Richardson v Forestry Commission (1988) 164 CLR 261 at 311–12. The notion of ‘reasonable proportionality’ will not always be particularly helpful. The notion of proportion suggests a comparative relation of one thing to another as respects magnitude, quantity or degree; to ask of the legislation whether it may reasonably be seen as bearing a relationship of reasonable proportionality to the provisions of the treaty in question appears to restate the basic question. This is whether the law selects means which are reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty, so that the law is one upon a subject which is an aspect of external affairs. It would be a tenable proposition that legislation purporting to implement a treaty does not operate upon the subject which is an aspect of external affairs unless the legislation complies with all the obligations assumed under the treaty. That appears to have been the view taken by Evatt and McTiernan JJ in R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 688. But the Tasmanian Dam case and later authorities confirm that this is not an essential requirement of validity: (1983) 158 CLR 1 at 172, 233–4, 268 and Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 75.

As Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ noted in the above extract, a federal statute may be characterised as a law implementing a treaty if the legislation is regarded as reasonably capable of being considered appropriate and adapted to the purpose or end of those obligations. For it is for the Commonwealth Parliament to choose the means by which it gives effect to the treaty, provided that the means chosen (that is, the legislative instrument or method used to attain that end) are reasonably capable of being considered appropriate and adapted to the object or purpose of the relevant obligations. This test of characterisation is thus based on the notion of ‘reasonably proportionality’; which, according to the majority, requires judgment of whether the ‘law selects means’ which are proportionate ‘to achieving the purpose or object of giving effect to the treaty’. A positive relation gives the law its external affairs character. The fact that ‘reasonably capable of being considered appropriate and adapted’ is a liberal derivative of the ‘appropriate and adapted’ test establishes that the treaty implementation limb of s

51(xxix) is a purposive power. [page 260] Ultimately, the federal provisions were read down on the basis that they infringed the Melbourne Corporation doctrine: this feature of the decision was considered at 3.17. Before this occurred, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ considered whether the federal provisions conformed to the international obligations. The language used by the justices in analysing the federal provisions gives some indication of the ways in which the test can be applied. On the facts, the minimum wage obligations ‘closely followed the requirements of the treaty’, and so were valid. The equal remuneration provisions gave the commission a discretion to make orders which were ‘appropriate and adapted to giving effect to the treaty’ and were, therefore, valid. The unfair dismissal provisions, by creating a criterion of ‘harsh, unjust or unreasonable’ dismissals, went beyond the relevant treaty that only referred to dismissals that were not ‘valid’. In so far as the domestic law contemplated that there might be otherwise valid dismissals which could be challenged on the grounds that they were ‘harsh, unjust or unreasonable’, the provisions were not supported by the external affairs power. The antidiscrimination provisions were valid, except those provisions referring to discrimination on the grounds of ‘mental disability’, which was not dealt with in the treaty that was said to create the relevant international obligations. International agreements falling short of treaties 10.19 Some High Court justices have speculated in obiter that documents made by international organisations (for example, recommendations of the International Labour Organization) may be

the subject of legislative action, with such action supported by s 51(xxix). This is a controversial proposition given that recommendations lack the status of treaties and only serve as nonbinding guidelines on states. Evatt and McTiernan JJ in R v Burgess; Ex parte Henry (1936) 55 CLR 608 (at 687) envisaged the possibility that s 51(xxix) may support non-obligatory international documents: … the Parliament may well be deemed competent to legislate for the carrying out of ‘recommendations’ as well as the ‘draft conventions’ resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations. The power is a great and important one.

Rothwell (1993, p 234) speculates that the premise behind this statement was the growing recognition that Australia, in the 1930s, was ‘beginning to assert a more active role in international affairs’ and that its ‘position in such organisations would have been weakened if appropriate recommendations of the organization could not be implemented into Australian law’. Periods of significant social progression in Australia in the mid-1970s and mid-1980s arguably led to a greater commitment to various international instruments during this time. Examples include the enactment of legislation supported by s 51(xxix) in relation to anti-discrimination (Koowarta v Bjelke-Petersen (1982) 153 CLR 168) and environmentalism (Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1; Richardson v Forestry Commission (1988) 164 CLR 261; Queensland v Commonwealth (Daintree Rainforest case) (1989) 167 CLR 232). In particular, in the Tasmanian Dam case and Richardson, statements were made suggesting that s 51(xxix) may support legislation implementing international agreements which establishes a non-obligatory regime to which Australia is a party. [page 261]

In Commonwealth v Tasmania (Tasmanian Dam case) 158 CLR 1, Deane J said that ‘the responsible conduct of external affairs in today’s world will, on occasion, require … compliance with recommendations of international agencies and pursuit of international objectives which cannot be measured in terms of binding obligation’: at 258–9. Murphy J said that a law with respect to external affairs extends beyond the implementation of treaties; it includes implementation of ‘any recommendation or request of the United Nations organization or subsidiary organizations such as the World Health Organization, the United Nations Education, Scientific and Cultural Organization, the Food and Agriculture Organization or the International Labour Organization’: at 171–2. Earlier, Mason J had observed (at 129–30) that: if the carrying out of, or the giving effect to, a treaty or convention to which Australia is a party is a matter of external affairs, and so much is now accepted, it is very difficult to see why a law made under s 51(xxix), ie a law with respect to the matter of external affairs, should be limited to the implementation of an obligation.

In Richardson, Gaudron J approved the obiter remarks of Mason, Murphy and Deane JJ and concluded that ‘it is not necessary for a treaty to which Australia is a party to impose an obligation upon Australia as a condition precedent to engaging the external affairs power’: at 342. Conversely, in the Tasmanian Dam case Brennan J adopted a more restrictive interpretation of non-obligatory agreements. According to his Honour, the parliament may only enact legislation based on an international agreement, in the absence of an obligation, where the subject matter affects, or is likely to affect, Australia’s relations with other nations: at 220. 10.20 In Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416, the judgment of Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ signifies a retreat from the broad premise that s 51(xxix) may support legislation implementing the recommendations of international agencies which are devoid of obligations. An issue

was whether s 170BC(3) — which conferred power on the Industrial Relations Commission to make orders it deemed appropriate to ensure there would be ‘equal remuneration for work of equal value’ — only did so where the order could reasonably be regarded as appropriate and adapted to giving effect to: (i) one or more of the Conventions; or (ii) the provisions of the Equal Remuneration Recommendation (Recommendation No 90) or the Discrimination (Employment and Occupation) Recommendation (Recommendation No 111). The majority confirmed that the recommendations alone were insufficient to support a law, but recommendations contained in statute which are reasonably regarded as appropriate and adapted to giving effect to the appropriate treaty may nevertheless be valid. The majority observed (at 508–9): The plaintiff States do not dispute that the legislation follows the terms of the various Conventions. The issues that arise are in relation to s 170BC(3). They are (a) whether the power of the Commission may be limited in the manner attempted by the section and (b) the effect of the reliance on the ILO Recommendations. The power of the Commission in s 170BC(3) to make an order is conditional upon the requirement that the order ‘can reasonably be regarded as appropriate and adapted to giving effect to’ one of the Conventions or Recommendations referred to. That wording plainly reflects the criterion for validity of a law enacted in reliance on s 51(xxix) to implement a treaty. It was supported by a number of members of this Court in the Tasmanian Dam Case. If the broad provisions of the Division had the [page 262] effect that they allowed the Commission to make orders that were not so limited, arguably the section would be beyond power. The limitation has the effect that the general nature of the provision is confined in effect by the constitutional limit on the power of the Parliament to enact such legislation. It is not the case that the Commission is given the power to determine the constitutionality of its own order as might be the case if the words of par (b) were preceded by the words that appear in par (a), ‘the Commission is satisfied that’. Rather, the test is an objective one, and is subject to judicial review by this Court or the Industrial Relations Court of Australia (‘the Industrial Relations Court’). The section refers separately to a measure being reasonably regarded as appropriate

and adapted for giving effect to Recommendation No 90 or Recommendation No 111. That provision can be supported under s 51(xxix) if, but only if, the terms of these Recommendations themselves can reasonably be regarded as appropriate and adapted to giving effect to the terms of the Conventions to which they relate. In our view, they can be so regarded. Hence measures that fall within the terms of s 170BC(1) and implement the terms of the Recommendations will fall within the terms of s 170BC(3) (b)(i). On this line of reasoning, the words ‘can reasonably be regarded as appropriate and adapted to’ in s 170BC(3)(b) may be superfluous in relation to the Recommendations but are obviously designed to cover the situation where the Recommendations are relied upon of themselves to support an exercise of the external affairs power. This is a point which, at this stage, it is not necessary to decide.

The majority’s decision therefore casts significant doubt on the proposition that s 51(xxix) allows the parliament to directly legislate to carry out recommendations by international bodies. The international recommendations should at least give rise to obligations contained in an associated treaty. As noted in the judgment, a provision giving effect to a recommendation will be supported by the treaty implementation limb of s 51(xxix) only where the ‘terms of these recommendations themselves can reasonably be regarded as appropriate and adapted to giving effect to the terms of the Conventions to which they relate’. Freestanding international recommendations will not, for the purposes of implementing legislation, suffice without a related treaty. 10.21 This reading of non-obligatory agreements appears to have carried forward in Pape v Commissioner of Taxation (2009) 238 CLR 1. For a précis of the facts of the case see 13.32. The minority judgments of Hayne and Kiefel JJ and Heydon J (constituting the majority on this point) rejected the Commonwealth’s argument that the impugned legislation, the Tax Bonus for Working Australians Act (No 2) 2009 (Cth), could be upheld on the basis that it implemented recommendations set down in the Declaration of the Summit on Financial Markets and the World Economy (‘the G-20 Declaration’). The same also went for the International Monetary Fund and the Organisation for Economic Co-operation and Development

recommendations: at 127–8 per Hayne and Kiefel J; at 162–7 per Heydon J. Hayne and Kiefel JJ said: As was pointed out in Victoria v The Commonwealth (Industrial Relations Act Case) legislation may be supported under the external affairs power if the legislation gives effect to some international obligation. But as also pointed out in that case, what is said to be the legislative implementation of a treaty may present some further questions for consideration, including whether the treaty in question sufficiently identified the means chosen in legislation as one of the ways in which parties to [page 263] the treaty are to pursue some commonly held aspiration expressed in the treaty. In the present case, however, it is not necessary to examine these questions. It is sufficient to observe that neither the Declaration by the leaders of the G-20, nor the recommendations of either the IMF or the OECD, imposed any obligation on Australia to take action of the kind now in question. The chief focus of the Declaration by the leaders of the G-20 was the articulation of some ‘common principles for reform of financial markets’ and the statement of an ‘action plan to implement principles for reform’. Whether the statement of these principles, or the settling of an action plan, are to be understood as imposing obligations on participants need not be considered. What the Commonwealth submitted to be the relevant obligation was not contained in these parts of the Declaration. Rather, the relevant obligation was said to be contained in a part of the Declaration that described ‘Actions Taken and to Be Taken’. Under that heading, the Declaration recorded that the nations represented had taken certain actions and would take a number of steps to ‘restore growth, avoid negative spillovers and support emerging market economies and developing countries’. Six steps were set out. One of them was: Use fiscal measures to stimulate domestic demand to rapid effect, as appropriate, while maintaining a policy framework conducive to fiscal sustainability. Read in the context of the Declaration as a whole it is evident that none of the six steps described was intended to bind the nations whose leaders signed the Declaration to any particular course of action. Rather, the document as a whole made plain (by its use of expressions like ‘as appropriate’) that it was for each nation to chart its own course in responding to the circumstances that have arisen. The Impugned Act was not enacted in fulfilment of any obligation on Australia recorded in the Declaration of the leaders of the G-20.

The recommendations made by the IMF and the OECD are of a similarly advisory or hortatory character. In a World Economic Outlook Update, published in January 2009, the IMF said that ‘[m]onetary and fiscal policies need to become even more supportive of aggregate demand and sustain this stance over the foreseeable future, while developing strategies to ensure long-term fiscal sustainability’ and further, that ‘the timely implementation of fiscal stimulus across a broad range of advanced and emerging economies must provide a key support to world growth’. But these and similar statements made by staff of the IMF in a paper presented to a meeting of the Deputies of the G-20 did no more than point to the perceived need for action to be taken by individual nations if there was to be a durable recovery in global economic activity. They imposed no obligation upon any nation.

Heydon J also rejected the Commonwealth’s argument, holding that the law was not one with respect to external affairs. His Honour dismissed the IMF and OECD recommendations as a basis for invoking the external affairs power (at 166–7). With respect to recommendations contained in the G-20 Declaration, Heydon J critically analysed the dictum in R v Burgess; Ex parte Henry and Victoria v Commonwealth, arguing that parliament could not rely on s 51(xxix) to implement recommendations of international organisations: 479 Recommendations by international agencies cannot support the validity of the Tax Bonus Act. Any support they can give to a law enacted in reliance on s 51(xxix) exists only where they are pronounced in order to give effect to the terms of a treaty to which they relate. The defendants relied on the following words of Evatt and McTiernan JJ in R v Burgess; Ex parte Henry: [page 264] [T]he Parliament may well be deemed competent to legislate for the carrying out of ‘recommendations’… resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations. (emphasis added.) The defendants said that that passage, which was quoted in Victoria v The Commonwealth, was actually applied in that case. That is not so. In that case the Court specifically declined to decide whether legislation enacted to carry out the recommendations of international agencies made otherwise than in order to give effect

to the terms of a treaty to which they relate could be supported by s 51(xxix). The better view is that it cannot, because mere recommendations do not create international obligations. In any event, even if some recommendations could do so, the recommendations relied on in this case are too vague.

His Honour had earlier stated that the language adopted in the G-20 Declaration was no more than ‘aspirational’. In other words, the Declaration did not impose any international obligations. It failed to specify which fiscal measures were to be used and the words ‘as appropriate’ left it ‘very much open to individual governments to decide whether to use fiscal measures, and if so, which ones’: at 162. Heydon J further remarked (at 162–3): It is what might be expected of an organisation like the G-20, which concentrates on discussion, dialogue and influence, and which has a diverse membership. It is highly improbable that in the ordinary course the deliberations of such a body would generate obligations in international law. In Victoria v The Commonwealth it was said that an ‘external affair’ did not exist where all that was stated was a ‘broad objective with little precise content and permitting widely divergent policies by parties’: [at 486]. Yet that is all the G-20 Declaration does. The defendants submitted that it went further, because the ‘words of commitment’ given by the G-20 nations had triggered ‘an overall sameness about the nature of the responses’. That was not demonstrated by the material the defendants referred to. In any event, the existence of parallel conduct does not necessarily demonstrate a commitment to pursue it. The defendants submitted that the relevant passage was ‘expressed in terms as specific as one gets in international agreements’. With respect, that submission is entirely incorrect. The G-20 Declaration lacks ‘sufficient specificity to direct the general course to be taken: [at 486].

Following the reasoning adopted by the majority in Victoria v Commonwealth and Hayne and Kiefel JJ and Heydon J in Pape v Commissioner of Taxation, the Court of Appeal of South Wales recently held in Alqudsi v Commonwealth [2015] NSWCA 351 that s 51(xxix) is not engaged merely by the fact that legislation has as its purpose the implementation of a recommendation of an international body: at [148]–[167] per Leeming JA (with whom Basten JA agreed at [3]; at [171]–[172] per McCallum J).

Matters of ‘international concern’

10.22 In Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (see also 9.8) it was suggested that a law would not fall within the external affairs power unless it dealt with a matter of international concern. In that case, Koowarta had applied for federal funding to buy a Crown pastoral lease in Queensland. The Queensland Minister for Lands refused to transfer the land on the basis that it was contrary [page 265] to state government policy to grant consent to large Aboriginal land claims. Koowarta challenged this decision on the basis that it was racially discriminatory, and unlawful under the federal Racial Discrimination Act 1975. The State of Queensland argued that the Act could not be supported by the external affairs power, on the basis that the mere existence of the convention was not an external affair. It was argued by the State of Victoria, intervening, that extension of the external affairs power to authorise federal law applying to state government decisions might ‘be the vehicle for the obliteration of the legislative powers of the States’: at 171. Mason, Murphy and Brennan JJ upheld the law, and its application to the states. Concerns relating to the potential for abuse of the external affairs power — that is, the use of the power to subvert the ‘federal balance’ — occupied the judgments of the minority judges, Gibbs CJ, Wilson and Aickin JJ. Mason, Murphy and Brennan JJ confirmed that acceptance of an international treaty obligation and implementation of that obligation were external affairs and prima facie within power. Stephen J joined Mason, Murphy and Brennan JJ in the result, but said that it was also necessary that the matter be one of international concern before the law would be valid. Stephen J observed (at 216–17):

So long as treaties departed little from their early nature as compacts between princes, having no concern with domestic affairs, the conflict was muted; but in this century international conventions have come to assume a more extensive role. They prescribed standards of conduct for both governments and individuals having wide application domestically in areas of primarily regional concern, the very areas which, in federation, have tended to be entrusted to the legislative competence of the regional units of governments. This has necessarily exacerbated the problem which federations encounter in the implementation of international treaties while emphasizing the need for regional units in federations to recognize the legitimacy of national governments’ increased concern regarding domestic observance of internationally agreed norms of conduct. I have already referred to one clear limitation upon the ambit of the Commonwealth’s external affairs power, that which arises from the words ‘subject to this Constitution’ in the opening words of s 51. There no doubt also exist limitations to be implied from the federal nature of the Constitution and which will serve to protect the structural integrity of the State components of the federal framework, State legislatures and State executives: Melbourne Corporation v The Commonwealth (1947) 74 CLR 31. It is when one ventures into further possible reaches of implied restrictions that real controversy exists. Henkin, in Foreign Affairs and the Constitution, rehearses the various arguments in support of other limitations which, over time, have been sought, largely unsuccessfully, to be placed upon the treaty power in the United States. Two of these recur in some judgments in this Court: that to fall within power, treaties must be bona fide agreements between states and not instances of a foreign government lending itself as an accommodation party so as to bring a particular subject-matter within the other party’s treaty power; and that to fall within power a treaty must deal with a matter of international rather than merely domestic concern. Limitations such as these accord better with the terms of our Constitution than with that of the United States, where the power is with respect not to ‘external affairs’ but to treaties. For courts to deny legitimacy, under a power to make foreign treaties, to what is in form a treaty and no sham presents very real difficulties. But where the grant of power is with respect to ‘external affairs’ an examination of subject-matter, [page 266] circumstance and parties will be relevant whenever a purported exercise of such power is challenged. It will not be enough that the challenged law gives effect to treaty obligations. A treaty with another country, whether or not the result of a collusive arrangement, which is on a topic neither of especial concern to the relationship between Australia and that other country nor of general international concern will not be likely to survive that scrutiny.

The criterion of a matter of ‘international concern’ was satisfied on these facts — racial discrimination was and unquestionably remains a matter of international concern. 10.23 Commenting on the matter of ‘international concern’ in this case (that being, the suppression of racial discrimination), Stephen J observed in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 220: Even were Australia not a party to the Convention, this would not necessarily exclude the topic as a part of its external affairs. It was contended on behalf of the Commonwealth that, quite apart from the Convention, Australia has an international obligation to suppress all forms of racial discrimination because respect for human dignity and fundamental rights, and thus the norm of non-discrimination on the grounds of race, is now part of customary international law, as both created and evidenced by state practice and as expounded by jurists and eminent publicists. There is, in my view, much to be said for this submission and for the conclusion that, the Convention apart, the subject of racial discrimination should be regarded as an important aspect of Australia’s external affairs, so that legislation much in the present form of the Racial Discrimination Act would be supported by power conferred by s. 51 (xxix). As with slavery and genocide, the failure of a nation to take steps to suppress racial discrimination has become of immediate relevance to its relations within the international community.

However, in Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 at 570, Dawson J criticised the apparent reach of ‘international concern’. He said: … the requirement of international concern as it has developed since Koowarta has not served to confine the ambit of the external affairs power but has expanded it. International concern of itself has become a touchstone, and thus there is no need for a treaty at all (the Tasmanian Dam case (1983) 158 CLR 1 at 131–132 per Mason J; 171–172 per Murphy J). And the matters which are capable of being the subject of international concern, albeit of an entirely domestic character, are even more extensive, if that is possible, than the matters which are likely to be the subject of a treaty.

10.24 Furthermore, any notion that there was an additional requirement of international concern, as suggested by Stephen J in Koowarta v Bjelke-Petersen (1982) 153 CLR 168, was removed by the Tasmanian Dam case (1983) 158 CLR 1 and Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416. Indeed, if matters of

‘international concern’ actually exist, it may now constitute a separate and independent basis for invoking the external affairs power. In the Tasmanian Dam case, Mason, Murphy, Brennan and Deane JJ recognised this possibility: at 131, 171–2, 222, 258–9 respectively. Murphy and Deane JJ were the most emphatic. Murphy J argued (at 172): The fact that a subject becomes part of external affairs does not mean that the subject becomes, as it were, a separate, plenary head of legislative power. If the only basis upon which a subject becomes part of external affairs is a treaty, then the [page 267] legislative power is confined to what may reasonably be regarded as appropriate for implementation of provisions of the treaty. This does not mean that either all of the provisions must be implemented or else none can be implemented. It does not mean that there must be any rigid adherence to the terms of the treaty. Again, if the subject of external affairs is some other circumstance, the legislative power will extend to laws which could reasonably be regarded as appropriate for dealing with that circumstance.

Deane J said (at 258–9): The establishment and protection of the means of conducting international relations, the negotiation, making and honouring (by observing and carrying into effect) of international agreements, and the assertion of rights and the discharge of obligations under both treaties and customary international law lie at the centre of a nation’s external affairs and of the power which s. 51(xxix) confers. They do not, however, cover the whole field of ‘external affairs’ or exhaust the subject matter of the legislative power … It is, however, relevant for present purposes to note that the responsible conduct of external affairs in today’s world will, on occasion, require observance of the spirit as well as the letter of international agreements, compliance with recommendations of international agencies and pursuit of international objectives which cannot be measured in terms of binding obligation … Circumstances could well exist in which a law which procured or ensured observance within Australia of the spirit of a treaty or compliance with an international recommendation or pursuit of an international objective would properly be characterized as a law with respect to external affairs notwithstanding the absence of any potential breach of defined international obligations or of the letter of international law.

10.25

Although no member of the High Court has ever upheld the

constitutional validity of a law solely on the basis of ‘international concern’, Merkel J of the Federal Court of Australia did so in Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584. In this case, Souliotopoulos alleged that he was unlawfully expelled from the La Trobe University Liberal Club because he suffered from obsessive compulsive disorder, anxiety and depression. This, he argued, violated s 27(2) of the Disability Discrimination Act 1992 (Cth). Merkel J held that at the time the Act commenced in 1992, up to and including the time that the law was allegedly breached in 1998, the prohibition of discrimination based on a person’s disability was a matter of international concern. His Honour observed: 29 The authorities to which I have referred establish that the external affairs power in s 51(xxix) is enlivened, inter alia, in respect of legislation that relates to matters of international concern in the sense that they have the capacity to affect Australia’s relations with other countries, irrespective of whether the legislation gives effect to a treaty to which Australia is a party. It is clear that a broad view has been taken of matters that have the capacity to affect Australia’s relations with other countries, particularly in the area of human rights, and such matters need not necessarily arise from a treaty obligation assumed by Australia. Thus, in addition to treaties, the provisions of other international instruments such as The Charter of the United Nations and Resolutions of the General Assembly of the United Nations can be significant guides to matters that are of international concern. … 53 The consequences that can follow from disability discrimination, and the ignorance from which it stems, afford a good example of how human rights violations have [page 268] extended “internal affairs into external affairs” (see Murphy J at 171 in The Tasmanian Dam Case).

In the recent New South Wales Supreme Court decision R v Alqudsi; Alqudsi v Commonwealth [2015] NSWSC 1222, Adamson J held that s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) was supported by a number of grounds under s 51(xxix): external relations, geographic externality, recommendations of

international agencies and, for the purpose of this discussion, matters of international concern. Alqudsi was charged with contravening s 7(1)(e) of the Act by providing assistance to seven men who travelled to Syria to engage in armed hostilities against the al-Assad Government. He allegedly assisted the men by providing instructions (including the measures to be taken to avoid detection by security officials) and support in facilitating travel from Australia to Syria via Turkey: at [1]. The provision stated that no person shall, ‘within or outside Australia … give money or goods to, or perform services for, any other person … with the intention of supporting or promoting the commission of an offence against section 6’. Section 6 provided that no person shall ‘enter a foreign State with intent to engage in a hostile activity in that foreign State’; or engage in a hostile activity in ‘a foreign State’. Alqudsi argued that s 71(1)(e) was beyond the power of the Commonwealth to legislate with respect to external affairs. This was rejected by the primary judge. The law was held to be a valid exercise of s 51(xxix), principally on the grounds of ‘external relations’ and geographic externality, although her Honour also found that the provision could be regarded as a matter of international concern; that is, the use of foreign fighters in internal state conflicts: at [160]–[161]. However, on appeal to the New South Wales Court of Appeal, this ground was rejected: see Alqudsi v Commonwealth [2015] NSWCA 351. In obiter, Leeming JA (Basten JA agreeing at [3]; McCallum J agreeing at [171]– [172]) identified that there is no separate ‘international concern’ aspect of the external affairs power (see [138]–[147]), approving the judgment of Kirby J and the dissenting judgment of Callinan and Heydon JJ in XYZ v Commonwealth (2006) 227 CLR 532. Callinan and Heydon JJ were particularly scathing of the notion of ‘international concern’, a sentiment reflected in the judgment of Heydon J in Pape v Commissioner of Taxation (2009) 238 CLR 1, in which his Honour described the ‘supposed doctrine’ as having ‘no merits’: at 161.

As indicated, the width of the ‘matter of international concern’ criterion has attracted some critics: see Richardson v Forestry Commission (1988) 164 CLR 261 at 322–3 per Dawson J; Victoria v Commonwealth (1996) 187 CLR 416 at 570 per Dawson J; XYZ v Commonwealth (2006) 227 CLR 532 at 572–3 per Kirby J; at 607–12 per Callinan and Heydon JJ; Pape v Commissioner of Taxation (2009) 238 CLR 1 at 161 per Heydon J. In XYZ v Commonwealth, Kirby J also expressed difficulties with the doctrine of ‘international concern’ (at 574–5): The plaintiff complained that the suggested criterion of a ‘matter of international concern’ was far too broad to provide a stable and meaningful foundation for the legislative validity of federal laws under s 51(xxix) of the Constitution. On this view, some additional adjectival qualification (such as ‘real’, ‘genuine’, ‘widespread’, ‘pressing’, ‘established’ or ‘undisputed’) had to be deployed to confine the power [page 269] to an ambit that is clear and proper to its context. Alternatively, some other controlling requirement must be introduced, by an alternative verbal formula (such as having a strong ‘nexus between Australia and the supposed subject of external affairs’ or ‘capable of being reasonably considered to be “appropriate or adapted”’ to addressing the concern) so as to prevent any suggested ‘matter of international concern’ from becoming a means that would destroy the federal character of the Australian Constitution. Certainly, a vastly increased number of matters are now of ‘international concern’. They expand every day. As a criterion of federal law, the concept would therefore be virtually limitless and potentially destructive of Australian federal arrangements.

According to Kirby J, a ‘controlling requirement’ is necessary to limit the confines of the power, so that the Commonwealth would not be able to engage any matter which may resemble a matter of ‘international concern’. To expect otherwise would run counter to the federal structure of the Constitution. His Honour suggested that an ‘additional adjectival qualification’ or an ‘alternative verbal formula’ is required in order for ‘international concern’ to be a valid source of

legislative power. The latter might involve imposing a purposive test of characterisation, similar to that currently used to support laws under the treaty implementation limb of s 51(xxix). This issue, with respect to Callinan and Heydon JJ, has yet to be conclusively resolved. Most members of the court, for the present time at least, have eschewed ‘international concern’. In XYZ and Pape, the majority justices found it unnecessary to decide the issue. As such, there has been no discussion as to the appropriate test of characterisation to be applied. (However, in R v Alqudsi; Alqudsi v Commonwealth of Australia [2015] NSWSC 1222, Adamson J speculated that no limb of s 51(xxix), other than treaty implementation, was subject to the requirement of proportionality: at [128]–[129].)

Relations with other countries 10.26 In R v Burgess; Ex parte Henry (1936) 55 CLR 608, Evatt and McTiernan JJ acknowledged that the term ‘external affairs’ was of wide import. In the course of this chapter it has been demonstrated that the power is certainly wide enough to support legislation regulating persons, places, matters or things physically external to Australia as well as the implementation of treaty obligations. It may also be the case that the power supports non-obligatory international agreements and matters of international concern. It has never been disputed that one of the chief aspects of s 51(xxix) is the power for the Commonwealth to enact legislation with respect to Australia’s relations with other countries. In Burgess, Evatt and McTiernan JJ said that the power covers the ‘whole series of relationships which may exist between States in times of peace or war. It may also include measures designed to promote friendly relations with all of any of the nations’ (that is, comity): at 684. Subsequent cases confirmed that the relations of Australia with all other countries are matters which fall directly within the subject of ‘external affairs’. In XYZ v Commonwealth

(2006) 227 CLR 532 at 543 Gleeson CJ noted that the parliament had undisputed authority to make laws with respect to matters affecting Australia’s relations with other countries. This was recognised by the High Court much earlier in the seminal case of R v Sharkey (1949) 79 CLR 121. [page 270] 10.27 In R v Sharkey (1949) 79 CLR 121, Sharkey had been convicted of sedition under s 24D(1) of the Crimes Act 1914 (Cth). The offence consisted, according to s 24B(2), of publishing any matter with a ‘seditious intention’ which was defined, in s 24A(1), to include an intention to excite disaffection against the Sovereign or the Government or Constitution of the United Kingdom or against either House of the Parliament of the United Kingdom; or to excite disaffection against the Government or Constitution of any of the King’s Dominions. When Sharkey challenged the validity of those provisions, the High Court held that s 24A(1)(c) was valid under the external affairs power because it was concerned with the relations of the Commonwealth with other countries. Latham CJ expressed this view in the following terms (at 136–7): The Commonwealth of Australia is a political organization which is associated with the other Dominions by political conventions which are recognized both by the King’s Dominions and internationally. The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs, a subject with respect to which the Commonwealth Parliament has power to pass laws — Constitution, s 51(xxix). The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the Commonwealth. The preservation and punishment of the excitement of disaffection within the Commonwealth against the Government or Constitution of any other Dominion may reasonably be thought by Parliament to constitute an element in the preservation of friendly relations with other Dominions.

See also at 149 per Dixon J; 157 per McTiernan J; 163 per Webb J. Dixon J said (at 149) that: … the constitutional relations of Australia as part of the British Commonwealth with the established Government of the United Kingdom are such that it may be considered that a law to safeguard the Constitution and parliament of the United Kingdom from disaffection is a law upon a matter incidental to the protection and maintenance of the Australian Federal Polity itself.

McTiernan J added (at 157): [‘External affairs’ is an] expression [which] has a wider meaning than strictly foreign affairs. It covers the relations between the Government of this country and the Government of another Dominion. These relations could be affected if seditious offences against the Government or Constitution of another Dominion were committed here with impunity. The power to legislate with respect to external affairs extends to the punishment in Australia of such offences.

It is evident that this aspect of s 51(xxix) ‘gives to the Commonwealth the ability to deal with legislative aspects of Australia’s international relations’: Rothwell, 1993, p 236. On the other hand, non-legislative aspects of Australia’s international relations (including the power to enter into treaties and to declare war and peace) are common law prerogative powers exercised by the executive under s 61 of the Constitution. In PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240, the High Court held that provisions of the Foreign States Immunities Act 1975 (Cth) could be supported by s 51(xxix) as the provisions concerned ‘foreign relations’: at 246 per French CJ, Gummow, Hayne and Crennan JJ. [page 271] Repeal of Imperial legislation 10.28 In Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351, some members of the High Court adopted a similar approach in

reaching the conclusion that the Commonwealth Parliament could legislate, under s 51(xxix), so as to repeal provisions of the Merchant Shipping Act 1894 (UK), which extended to Australia. The provisions of the Merchant Shipping Act limited the liability of a ship owner to damages for personal injury to £15 for each tonne of the ship’s tonnage. The owners of a ship used exclusively within New South Wales, displacing some 283 tonnes, sought to invoke the limitation of liability contained in the Merchant Shipping Act when sued for damages by a person who had been injured while travelling on the ship. The question then arose whether s 104(3) of the Navigation Amendment Act 1979 (Cth), which purported to repeal the provisions of the Merchant Shipping Act in Australia, was a valid law. Until the passage of the Australia Act 1986 (UK and Cth), state parliaments were not regarded as competent to repeal those provisions: Colonial Law Validity Act 1865 (UK) s 2. But the enactment of the Navigation Amendment Act raised the question whether the Commonwealth had any constitutional power to enact its repealing legislation, particularly in relation to activities which did not form part of overseas or interstate trade and commerce. Mason, Murphy and Deane JJ decided that s 104(3) of the Navigation Amendment Act was supported by s 51(xxix) of the Constitution. Mason J noted ‘that the expression “external affairs” was adopted in preference to “foreign affairs” [in s 51(xxix)], so as to make it clear that the relationships between the Commonwealth and other parts of the British Empire, especially the United Kingdom, were comprehended’ (159 CLR at 379). Deane J also saw the question of the direct operation of United Kingdom legislation in Australia as lying at the heart of relations between the two countries. Once that conclusion was reached, he said (at 439): … it follows that a law repealing such a local operation of a United Kingdom Act is a law for the peace, order and good government of Australia with respect to ‘external affairs’ since, as has been seen, the ‘relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs’: per Latham CJ, R v Sharkey 79 CLR at 136.

Since the decision in Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351, the Australia Act 1986 (Cth) has removed the residual authority of the United Kingdom Parliament to legislate for Australia (s 1) and empowered state parliaments to repeal United Kingdom statutes extending to the states (s 3): see 1.18. Extradition — with or without a treaty with the relevant country 10.29 The power to regulate extradition falls within s 51(xxix) as an aspect of the ‘international relations’ denotation of the power (Vasiljkovic v Commonwealth (2006) 227 CLR 614 at 630 per Gleeson CJ; at 643 per Gummow and Hayne JJ; at 675 per Kirby J). Gleeson CJ, Gummow and Hayne JJ referred with approval to French J’s observations (as his Honour then was) in Hempel v Attorney-General (Cth) (1987) 29 A Crim R 133 at 162–3 that ‘the subject matter of extradition is directly concerned with international relations … The nature of extradition is [page 272] such that a law with respect to it is likely to be a law with respect to external affairs whether or not there is in existence any supporting treaty’. See also Kirby J at 675. See also O’Donoghue v Ireland (2008) 234 CLR 599 at 610, 623. Regulation of matters ‘conducive to the pursuit of comity’ 10.30 The external affairs power also extends to measures to combat terrorism. In Thomas v Mowbray (2007) 233 CLR 307 Gummow and Crennan JJ, with whom Gleeson CJ agreed (at 324), upheld the constitutional validity of Div 104 of the Commonwealth Criminal Code. Section 104.4 (in that Division) empowered an ‘issuing court’ (by s 100.1, the Federal Court of Australia, the Family Court of

Australia or the Federal Magistrates Court) to make an interim control order in relation to a person if it was satisfied on the balance of probabilities of certain matters, including either ‘that making the order would substantially assist in preventing a terrorist act’ or ‘that the person has provided training to, or received training from, a listed terrorist organisation’ (s 104.4(1)(c)), and also ‘that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act’ (s 104.4(1)(d)). The expression ‘terrorist act’ was defined by s 100.1 as an action or threat of action of specified kinds which is done with the intention of ‘advancing a political, religious or ideological cause’ and with the intention of ‘coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country’ or of ‘intimidating the public or a section of the public’ of Australia or a foreign country. Gummow and Crennan JJ said (at 364– 5): The pursuit and advancement of comity with foreign governments and the preservation of the integrity of foreign states may be a subject matter of a law with respect to external affairs. In XYZ v The Commonwealth (2006) 227 CLR 532 at 543, Gleeson CJ noted (with evident approval) that it was accepted that the external affairs power at least includes power to make laws in respect to matters affecting Australia’s relations with other countries. The commission of ‘terrorist acts’ in the sense defined in s 100.1 of the Code is now, even if it has not been in the past, one of these matters. In Suresh v Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada said [2002] 1 SCR 3 at 50: It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries. But after the year 2001, that approach is no longer valid. The Court added [2002] 1 SCR 3 at 50: First, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Secondly, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on a distant locale,

but the violent acts that support it may be close at hand. Thirdly, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourthly, Canada’s [364/365] national security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism. [page 273] Further, in XYZ, Gummow, Hayne and Crennan JJ (2006) 227 CLR 532 at 546 [30] referred to the important statement by five members of the Court in the Industrial Relations Act Case, Victoria v Commonwealth (1996) 187 CLR 416 at 485 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ that: Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth (1991) 172 CLR 501. Dawson J expressed the doctrine in these terms (at 632): [T]he power extends to places, persons, matters or things physically external to Australia. The word ‘affairs’ is imprecise, but is wide enough to cover places, persons, matters or things. The word ‘external’ is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase ‘external affairs’. Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ (at 528–531); Deane J (at 599–603); Gaudron J (at 695–6); and McHugh J (at 712–714). They must now be taken as representing the view of the Court. The legislative scheme in Div 104 of the Code for prevention through the interim control order system of ‘terrorist acts’ done or threatened with the intention of coercing or influencing by intimidation the government of a foreign country or part thereof or intimidating the public or a section of the public of a foreign country is a law with respect to a ‘matter or thing’ which lies outside the geographical limits of Australia. The ‘matter or thing’ is the apprehended intimidation or injury to the government or public of a foreign country.

As noted at 10.8, had the impugned provision not impermissibly restricted Ch III of the Constitution, Gordon J would have held that s 198AHA implemented the second Memorandum of Understanding

(MOU), entered into by the Australian and Nauru governments (see 13.20): Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 at [407]. According to her Honour, the second MOU between Australia and Nauru for the transfer of ‘authorised maritime arrivals’ for processing (that is, persons who have travelled irregularly by sea to Australia or have been intercepted by Australian authorities in the course of trying to reach Australia by irregular maritime means: see cl 9 of the MOU) ‘is necessarily a matter which concerns Australia’s external relations’. See also Gageler J at [182]. Another recent case which advances the ‘pursuit of comity’ argument is Alqudsi v Commonwealth [2015] NSWCA 351. Basten JA (with whom McCallum J agreed at [173]) determined that s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), in its application to s 6(3)(aa), was a valid law with respect to s 51(xxix), as it related to relations between Australia and other countries (in this case, Syria): at [22]–[33]. His Honour, relying on the dicta of Gummow and Crennan JJ in Thomas v Mowbray (at 364–5) and Gleeson CJ in XYZ v Commonwealth (at 543), concluded that s 7(1)(e) was supported by the ‘external relations’ limb of s 51(xxix). Leeming JA on the other hand, fully aware that at this time the High Court was considering submissions in Plaintiff M68/2015, was unwilling to countenance ‘external relations’: at [122]–[125]. At the hearing, counsel for Plaintiff M68 submitted that ‘external relations’ should be subject to ‘reasonable proportionality’; that is, an assessment of whether the law is reasonably [page 274] appropriate and adapted to the object of pursuing Australia’s international relations. The Commonwealth Solicitor-General

countered by contending that ‘external relations’ is a subject matter power, not a purposive power like defence or treaty implementation. He maintained that what Brennan J said in Koowarta was a correct statement of principle for cases involving relations with other countries. In Koowarta, Brennan J observed: ‘When a particular subject affects or is likely to affect Australia’s relations with other international persons, a law with respect to that subject is a law with respect to external affairs. The effect of the law upon the subject which affects or is likely to affect Australia’s relationships provides the connexion which the words “with respect to” require’: at 258. The Solicitor-General argued that the introduction of ‘purposive elements and proportionality exercises’ was ‘not consistent with principle’ and that the ‘external relations’ limb has not been seen to be a purposive power to date and we would resist that endeavour’. In Plaintiff M68/2015, no member of the court considered it necessary to address the plaintiff’s argument.

What are the limits on the external affairs power? Section 51(xxix) is ‘subject to’ the Constitution 10.31 The external affairs power is expressed to be ‘subject to’ the Constitution and is, accordingly, subject to any express or implied limitations on the Constitution. 10.32 As noted above, it is a well-established principle of constitutional interpretation that federal powers are to be read ‘with all the generality the words admit’, and are only to be limited by any express or necessarily implied limitations in other provisions. So, for example, the external affairs power is not limited by the trade and commerce power. This point was explored in Airlines of New South Wales v New South Wales (No 2) (Airlines case (No 2)) (1965) 113 CLR 54: see also 6.18. This case concerned a federal law which implemented

new air navigation regulations based on the 1944 Convention on International Civil Aviation. The convention created standards relating to the safety, efficiency and regularity of civil aviation, which was to be achieved through uniform regulations, standards, practices and procedures in relation to aircraft personnel, airways and auxiliary services: see Barwick CJ at 86. The Commonwealth law and regulations implemented the international standards but also set up a licensing system requiring compliance with the standards. The regulations implementing the standards were upheld by majority but the licensing system was struck down by the whole court, on the basis that the convention did not impose an obligation on Australia to set up a licensing system, which was not incidental to the achievement of uniform standards, practices and procedures in civil aviation: at 86–8, 106–7. While some concern was expressed that the standards that were upheld would effectively remove state legislative power over intrastate airline operations, it was accepted that the external affairs power was not limited by the trade and commerce power in any way. Barwick CJ said (at 85–6): Once it is decided, however, that some treaty or convention is, or brings into being, an external affair of Australia, there can be no question that the power under s 51(xxix) of the Constitution thus attracted is a plenary power and that laws properly made under it may operate throughout Australia subject only to constitutional prohibitions [page 275] express or implied. In particular, laws properly made under this power may operate throughout Australia without regard to the distinction between interstate and intrastate trade and commerce to which observance must be paid in other connections.

The licensing regime was upheld under s 51(i): see 6.18. Status of unlawful treaties 10.33 In a number of decisions there are dicta that suggest that the Commonwealth may not enter into an international treaty merely as a

device to attract jurisdiction to itself which it would not otherwise have: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216 per Stephen J; at 231 per Mason J; at 260 per Brennan J; Commonwealth v Tasmania (1983) 158 CLR 1 at 218–19 per Brennan J; at 259 per Deane J. It has been suggested that any international treaty to which Australia is a party must be bona fide: R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642 per Latham CJ; at 658 per Starke J; at 669 per Dixon J; at 687 per Evatt and McTiernan JJ. However this prospective restraint was criticised by Gibbs CJ in Koowarta as being ‘at best a frail shield, and available in rare cases’: at 200. This contention was advanced in Horta v Commonwealth (1994) 181 CLR 183. In that case, the court considered the question whether the propriety of the recognition by the executive of the sovereignty of a foreign nation over foreign territory was justiciable: at 195–6. The court remarked that this question could only be considered in circumstances where there was a ‘sham or circuitous device to attract legislative power’: at 196. This would be a question of fact for the court to decide, when it is determining whether an international obligation exists: see 10.14. Horta v Commonwealth (1994) 181 CLR 183 concerned federal legislation implementing a maritime boundary treaty between Australia and Indonesia relating to petroleum exploration and mining in the Timor Gap: see 10.7. Horta argued that the legislation was an invalid exercise of the external affairs power on the basis that the treaty was void under international law. Horta argued that Indonesia had annexed East Timor unlawfully in 1975 and therefore the treaty entered into between Australia and Indonesia dividing the oil reserves of the Timor Gap was likewise unlawful. Further, Horta argued that the terms and performance of the treaty were inconsistent with Australia’s obligations under several international conventions and customary international law. The court, in a unanimous judgment,

said (at 195): … even if the Treaty were void or unlawful under international law, the [Acts] … would not thereby be deprived of their character as laws with respect to ‘External affairs’ for the purposes of s 51(xxix). Neither s 51(xxix) itself nor any other provision of the Constitution confines the legislative power with respect to ‘External affairs’ to the enactment of laws which are consistent with, or which relate to treaties or matters which are consistent with, the requirements of international law.

[page 277]

Chapter Eleven

Acquisition of Property on Just Terms under the Constitution Introduction 11.1 Section 51(xxxi) of the Constitution provides that the parliament has the power to make laws for the peace, order and good government of the Commonwealth with respect to: 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. A power and a contingent guarantee 11.2 Section 51(xxxi) is both a power and a constitutional guarantee of just compensation for property rights contingent on its exercise: Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349 per Dixon J. In Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269 at 290–1, Dixon J described s 51(xxxi) in the following terms: … [it is] not, like the Fifth Amendment [to the United States Constitution], for the purpose of protecting the subject or citizen, but primarily to make certain that the Commonwealth possessed a power compulsorily to acquire property, particularly from the States. The condition ‘on just terms’ was included to prevent arbitrary exercises of the power at the expense of a State or a subject.

The presence of the contingent right in s 51(xxxi) means that the requirement of just terms operates at any time the Commonwealth

makes a compulsory acquisition of property: Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371–2. 11.3 The executive may have a power to acquire property in a time of national emergency unencumbered by the requirement of just terms: Johnston Fear & Kingham v Commonwealth (1943) 67 CLR 314 at 318–19. In that case, Latham CJ said: ‘It may be that the prerogative of the Crown authorizes the seizure and use of property in the course of war-like operations without any compensation to the owner’. Certainly, though, when the Commonwealth uses its legislative power to authorise an acquisition of property, it is subject to the just terms guarantee in s 51(xxxi) (at 323, 327, 334). Effect on states and state powers 11.4 If state land is otherwise lawfully acquired by the Commonwealth under s 51(xxxi), the land is unencumbered by any state prerogative rights, such as mineral royalties: Commonwealth v New South Wales (1923) 33 CLR 1. [page 278] Section 51(xxxi) does not stop the states from acquiring property on a compulsory basis: Pye v Renshaw (1951) 84 CLR 58 at 79–80. There is no ‘deeply rooted right’ to receive just compensation for property acquired under state legislation: Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 409–10, 425, 433. However, a federal grant supported by s 96 of the Constitution for the purpose of enabling the state to acquire property would be subject to the s 51(xxxi) requirement of just terms because ‘the Commonwealth is not authorized by s 96 or any other provision of the Constitution to provide money for a State in order that the State may resume land

otherwise than on just terms’: Pye v Renshaw (1951) 84 CLR 58 at 83. Effect on territories and territory powers 11.5 In Teori Tau v Commonwealth (1969) 119 CLR 564 at 570, the High Court held unanimously that s 51(xxxi) did not operate to restrict the territories’ power, s 122. Teori Tau was challenged in Newcrest Mining WA Ltd v Commonwealth (1997) 190 CLR 513 and ultimately overturned in Wurridjal v Commonwealth (2009) 237 CLR 309. For further consideration of the applicability of s 51(xxxi) in the territories, see 5.5–5.7. The ‘just terms’ guarantee 11.6 The High Court has said that s 51(xxxi) abstracts all the property-acquiring power from the other heads of legislative power in the Constitution and requires that such acquisitions be subjected to the ‘just terms’ requirement in s 51(xxxi): Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371–2. However, before the just terms guarantee applies, the person challenging Commonwealth legislation under s 51(xxxi) must demonstrate that: •

what the Commonwealth has acquired is property;

•

the Commonwealth has effected an acquisition;

•

where property has been acquired, just terms compensation has been provided; and

•

the property had been acquired for a purpose in respect of which the Commonwealth has power to make laws. These four requirements are now considered in turn.

Property 11.7 The High Court has endorsed a broad approach to the language of s 51(xxxi): Bank of New South Wales v Commonwealth (1948)

76 CLR 1 at 299, 349. A liberal construction to the definition of ‘property’ is said to be appropriate to constitutional powers and constitutional guarantees: Clunies-Ross v Commonwealth (1984) 155 CLR 193 at 201–2. 11.8 In Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 263, Rich J said: The language used in s 51(xxxi) is perfectly general … It is not restricted to acquisition by particular methods or of particular types of interests, or to particular types of property. It extends to any acquisition of any interest in any property [emphasis added].

[page 279] Dalziel was the occupier and weekly tenant of vacant land owned by the Bank of New South Wales and located at the corner of Wynyard and York Streets, Sydney. He operated a car parking station there and had done so for 13 years. National Security Regulations gave the Commonwealth power to take exclusive possession of any land for an indefinite period and gave the minister power to determine the amount of compensation to affected landowners. The Commonwealth resumed the land for defence purposes and awarded compensation that did ‘not exceed the amount which would, but for any increase in rental value attributable to the war, be the fair market rental of the land at the date when possession was taken’. Dalziel sued for just terms, which he argued should include lost profits. The court accepted this argument by majority (Rich, McTiernan and Williams JJ; Latham CJ and Starke J dissenting). Lost profits from a rented car park satisfied the broad test offered by Rich J above (see also Starke J at 290; McTiernan J at 295). Starke J (at 290) said that the term ‘property’ includes: … every species of valuable right and interest including real and personal property, incorporeal hereditaments such as rents and services, rights of way, rights of profit or

use in land of another, and choses in action.

11.9 In Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1, the Bank of New South Wales and others challenged federal legislation that enabled the Commonwealth Bank (at that time, a government-owned and controlled bank), to acquire the business of private banks in Australia. The federal law contemplated three methods to achieve this end. First, the Commonwealth Bank was authorised to buy shares in private banks. Second, the Federal Treasurer was given the power to direct that shares in private banks be vested in the Commonwealth. Third, on a certain date all of the directors of private banks in Australia would no longer hold office, and the Governor of the Commonwealth Bank, on the advice of the Federal Treasurer, was given the power to appoint new directors with full power to run the banks. The legislation was challenged on a number of grounds, including that the provisions relating to removal of the private banks’ directors and their replacement with Commonwealth nominees constituted a compulsory acquisition of property on other than just terms. Dixon J characterised the provisions as removing effective control over the property of the private banks. At 349 the court said that the effect of the legislation was such that while the legal ownership of the banks might remain with the shareholders, those: … legal conceptions involved in the continuance of the corporate existence of the banking company as the repository of the title to the undertaking is all that is left … The company and its shareholders are in a real sense, although not formally, stripped of the possession and control of the undertaking.

Dixon J concluded that this was, in the essential sense, an acquisition of a proprietary right. Dixon J took a broad approach and said (at 349) that s 51(xxxi): … is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognised at law or in equity and to some specific form of property in a chattel or chose in action similarly recognised, but … it

extends to innominate and anomalous interests and includes the assumption and

[page 280] indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property.

11.10 ‘Property’ has been defined as a ‘bundle of rights’ (including, for example, the right of possession, the right of alienation etc), with each right in the bundle capable of acquisition: Commonwealth v Western Australia (1999) 196 CLR 392 at 489 per Callinan J. In Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210 (see further at 11.11), the unanimous High Court said: In the present case it is also useful to recognise the different senses in which the word ‘property’ may be used in legal discourse. Some of those different uses of the word were identified in Yanner v Eaton. In many cases, including at least some cases concerning s 51(xxxi), it may be helpful to speak of property as a ‘bundle of rights’. At other times it may be more useful to identify property as ‘a legally endorsed concentration of power over things and resources’. Seldom will it be useful to use the word ‘property’ as referring only to the subject matter of that legally endorsed concentration of power.

In Telstra, the court referred in passing to Yanner v Eaton (1999) 201 CLR 351. That was a case in which an Aboriginal man claimed a native title right to hunt and consume wild crocodile that he argued had not been displaced by fauna protection legislation. At 365–6 Gleeson CJ, Gaudron, Kirby and Hayne JJ elaborated on the meaning of ‘property’: The word ‘property’ is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, ‘property’ does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of ‘property’ may be elusive. Usually it is treated as a ‘bundle of rights’. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said, that ‘the ultimate fact about property is that it does not really exist: it is mere illusion’. Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the

difficulties in deciding what is meant by ‘property’ in a subject matter. So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of ‘property’ as an analytical tool. No doubt the examples could be multiplied. Nevertheless, as Professor Gray also says, ‘An extensive frame of reference is created by the notion that ‘property’ consists primarily in control over access. Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.’ ‘Property’ is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not ‘a monolithic notion of standard content and invariable intensity’. That is why, in the context of a testator’s will, ‘property’ has been said to be ‘the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have’ [references omitted].

The court concluded that traditional hunting rights stemming from native title, that were protected by federal legislation, overrode state fauna conservation legislation to the extent of its inconsistency under s 109 of the Constitution: as to which, see further Chapter 21. [page 281] 11.11 A ‘legally endorsed concentration of power over things’ was not enjoyed by the unsuccessful applicant in Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210 at 230–1. In that case, the court rejected an argument mounted by Telstra that Commonwealth legislation that licensed other telecommunications carriers to use their network constituted an acquisition of property. The court said: 51 There are three cardinal features of context and history that bear upon the constitutional issues which are raised. First, the PSTN [public switched telephone network] which Telstra now owns (and of which the local loops form part) was originally a public asset owned and operated as a monopoly since Federation by the Commonwealth. Second, the successive steps of corporatisation and privatisation that have led to Telstra now owning the PSTN (and the local loops that are now in issue)

were steps which were accompanied by measures which gave competitors of Telstra access to the use of the assets of that network. In particular, as noted earlier in these reasons, the step of vesting assets of the PSTN in Telstra, in 1992, was preceded by the enactment of the Telecommunications Act 1991. At all times thereafter Telstra has operated as a carrier, first under the Telecommunications Act 1991, and later under the Telecommunications Act 1997, within a regulatory regime by which other carriers have the right to interconnect their facilities to Telstra’s network and to obtain access to services supplied by Telstra, and Telstra has like rights with respect to other carriers. Telstra has never owned or operated any of the assets that now comprise the PSTN except under and in accordance with legislative provisions that were directed to ‘promoting … competition in the telecommunications industry generally and among carriers’ and sought to achieve this goal by ‘giving each carrier the right … to obtain access to services supplied by the other carriers’. And the third feature of context and history which is of cardinal importance is that in 1992, when the assets of the PSTN were vested in Telstra, Telstra was wholly owned by the Commonwealth. 52 When proper account is taken of these three considerations, it becomes apparent that Telstra’s argument that there is an acquisition of its property otherwise than on just terms is, as Dixon J said in British Medical Association v The Commonwealth, ‘a synthetic argument, and … unreal’. The argument is synthetic and unreal because it proceeds from an unstated premise that Telstra has larger and more ample rights in respect of the PSTN than it has. But Telstra’s ‘bundle of rights’ in respect of the assets of the PSTN has never been of the nature and amplitude which its present argument assumes. Telstra’s bundle of rights in respect of the PSTN has always been subject to the rights of its competitors to require access to and use of the assets [references omitted].

Commonly, property will be assignable and the want of assignability of a right is a factor tending against the characterisation of a right as property: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 166; Commonwealth v Western Australia (1999) 196 CLR 392 at 488. So, for example, it is said that a mere personal licence is not assignable and is therefore not property: Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290. On the other hand, it has been said that assignability is not in all circumstances an essential characteristic of a right of property: Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235 at 245; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342. 11.12

There are a large number of cases that identify particular

features of ‘property’ that are not ‘rights’ per se. In National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247–8, Wilberforce LJ said: Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable

[page 282] in its nature of assumption by third parties, and have some degree of permanence or stability.

The requirement of identifiability referred to by Wilberforce LJ was approved in Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 by Dawson and Toohey JJ at 528 and in Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 by Brennan J at 176. 11.13 In JT International SA v Commonwealth (2012) 250 CLR 1, a number of tobacco companies challenged the constitutional validity of the Tobacco Plain Packaging Act 2011 (Cth) (TPP Act), which prohibits the use of trade marks on such packaging, other than as permitted. The Commonwealth admitted that the tobacco company trade marks were property. JT International also claimed proprietary rights in the ‘distinctive trade dress and get-up, including arrangements of words, colours, designs, logos, lettering and markings’ on their cigarette packaging: at [19]. British American Tobacco, a second company seeking a declaration of invalidity, claimed proprietary rights in its ‘registered and unregistered trade marks, copyright, get-up, licensing goodwill, design, patents, packaging rights, packaging goodwill and intellectual property licensing rights’: at [28]. 11.14 The principle that property extends to include choses in action has been confirmed in a number of cases: see, for example,

Georgiadis v Australian and Overseas Telecommunication Corporation (1994) 179 CLR 297 at 305; Smith v ANL Ltd (2000) 204 CLR 493. See also Attorney-General (NT) v Chaffey (2007) 231 CLR 651 at 663–4, considered further at 11.20.

Acquisition 11.15 Section 51(xxxi) refers to the ‘acquisition’ of property. According to the court, an acquisition for the purposes of s 51(xxxi) involves ‘compulsion’: Poulton v Commonwealth (1953) 89 CLR 540. An acquisition does not take place where the Commonwealth has acquired an interest in land by agreement: John Cooke & Co Pty Ltd v Commonwealth (1924) 34 CLR 269 at 282. It refers to a ‘taking’, however that is effected. As Deane and Gaudron JJ observed in their joint judgment in Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 184–5: The word ‘acquisition’ is not to be pedantically or legalistically restricted to a physical taking of title or possession. Once it is appreciated that ‘property’ in s 51(xxxi) extends to all types of ‘innominate and anomalous interests’ it is apparent that the meaning of the phrase ‘acquisition of property’ is not to be confined by reference to traditional conveyancing principles and procedures.

11.16 An ‘acquisition’ within s 51(xxxi) is not effected when property rights are merely affected by a Commonwealth law (for example, where a state is restricted from using its land in a certain way as a result of the operation of a federal statute: Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1). An acquisition involves something more than the extinguishment of a right. In Australian Tape Manufacturers Association Ltd v Commonwealth of Australia (1993) 176 CLR 480 at 528, Dawson and Toohey JJ expressed the principle in the following terms: … the mere extinction or diminution of a proprietary right residing in one person does not necessarily result in the acquisition of a proprietary right by another.

[page 283] In Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 185, Deane and Gaudron JJ emphasised that: … s 51(xxxi) is directed to ‘acquisition’ as distinct from deprivation. The extinguishment, modification or deprivation of rights in relation to property does not of itself constitute an acquisition of property. For there to be an ‘acquisition of property’, there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of property.

In Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, a Commonwealth law that expanded Kakadu National Park extinguished Newcrest’s rights to carry on operations for the recovery of minerals under several mining leases. The Commonwealth was left in undisturbed possession of the minerals on or under the land. Its interests were enhanced by the sterilisation of Newcrest’s interests. This effected an acquisition of property — the Commonwealth had obtained an identifiable benefit or advantage: see, for example, Brennan CJ at 530. There is ‘no acquisition of property unless some identifiable and measurable advantage is derived by another’: ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at [147] per Hayne, Kiefel and Bell JJ (original emphasis). The putative acquirer must acquire ‘an interest in property, however slight or insubstantial it may be’: at [147] per Hayne, Kiefel and Bell JJ. An acquisition is distinguishable from a ‘taking’, and as such neither a deprivation nor destruction of property is sufficient to constitute an acquisition: at [81]–[82] per French CJ, Gummow and Crennan JJ. The plaintiffs in ICM, who conducted farming businesses on land in the area covered by the Lower Lachlan Groundwater System in New South Wales, held bore licences under the Water Act 1912 (NSW) which entitled them to extract and use groundwater. The Water

Management Act 2000 (NSW) repealed the 1912 Act. The plaintiffs’ bore licences were replaced with acquifer access licences under the 2000 Act. These licences permitted the plaintiffs to take less water than under their bore licences. The loss, as one of the joint judgments explained, represented a decrease in entitlements under the bore licences of about 70 per cent in the case of two of the plaintiffs, and about 66 per cent in the case of one of the plaintiffs: see at [6]. Section 6 of the National Water Commission Act 2004 (Cth) (NWC Act) established the National Water Commission. Its functions included assisting with the implementation of an intergovernmental agreement known as the National Water Initiative, one of the objectives of which was to return ‘overallocated and overused water systems to environmentally sustainable levels of extraction’: at [12]. The NWC Act established the Australian Water Fund Account which, by s 42, could be debited for a number of purposes, including, relevantly, to ‘provide financial assistance’ awarded by the Minister to particular projects relating to Australia’s water resources and ‘determined by the Minister to be provided from the Account’: at [13]– [14]. The Commonwealth — acting through the National Water Commission — and New South Wales had entered into a Funding Agreement, which relevantly provided for New South Wales to reduce water entitlements of licence holders ‘to ensure sustainable future use of a number of groundwater systems’, including the Lower Lachlan Groundwater System, and to provide up-front ex gratia structural [page 284] adjustment payments to licence holders. Under the Funding

Agreement, the Commonwealth provided funding for the structural adjustment payments: see at [10]–[11]. The plaintiffs sought to impugn the validity of the instruments under state law by which their bore licences were replaced with acquifer access licences. Relevantly, the plaintiffs argued that neither the NWC Act nor the Funding Agreement were valid to the extent to which they provided for or contemplated the acquisition of their property otherwise than on just terms. Because, so the argument ran, the instruments promulgated by the state to further the Funding Agreement were steps taken in breach of the Constitution and the just terms guarantee in s 51(xxxi), those instruments were invalid. That followed as a consequence either of covering cl 5 or s 106 of the Constitution: see at [102]. The plaintiffs’ argument raised questions concerning the interrelationship between s 96 and s 51(xxxi). Section 96 provides for parliament to grant financial assistance to a state on such terms and conditions as it thinks fit. That aspect of this case is considered at 14.12. A critical premise of the plaintiffs’ argument was that the replacement of their bore licences under the 1912 Act with acquifier access licences under the 2000 Act effected an acquisition of property which, as explained above, is more than a ‘taking’ and involves another deriving some identifiable and measurable advantage. By majority, the High Court rejected that premise. French CJ, Gummow and Crennan JJ, in the majority, published joint reasons. Hayne, Kiefel and Bell JJ, also in the majority, published separate joint reasons. Heydon J dissented. Hayne, Kiefel and Bell JJ reasoned: 149 The four considerations set out earlier in these reasons (the replaceable and fugitive nature of groundwater; that the licences in issue are a create of statute and inherently fragile; that groundwater has not hitherto been thought to be a subject of

property; and that the rights vested in the state are statutory rights for the purpose of controlling access to a public resource) all point towards the conclusion that the state gained no identifiable or measurable advantage from the steps that have been taken with respect to the plaintiffs’ water licences and entitlements. 150 Since at least 1966 no landowner in New South Wales has had any right to take groundwater except pursuant to licence. The rights the plaintiffs had under their bore licences (in particular, their right to extract certain volumes of water) did not in any sense ‘return’ to the state upon cancellation of the licences. The state gained no larger or different right itself to extract or permit others to extract water from that system. It gained no larger or different right at all [emphasis added].

The reasons of French CJ, Gummow and Crennan JJ were to similar effect: see at [84]. Heydon J, in dissent, accepted the plaintiffs’ submission that the: 233 … necessary element of benefit or advantage accruing to New South Wales was that the expropriation caused it to regain complete control over water resources, namely the difference between the actual allocations under the bore licensees’ entitlements and the allocations under the acquifer access licences.

As discussed at 11.13, in JT International SA v Commonwealth (2012) 250 CLR 1, a number of tobacco companies challenged the constitutional validity of the [page 285] TPP Act, which imposes significant restrictions upon retail packaging for tobacco products. The Act prohibits the use of trade marks on such packaging, other than as permitted. The Commonwealth admitted that the tobacco company trade marks were property, but denied that there had been an ‘acquisition’ of property within s 51(xxxi). French CJ (at [42]) said: Importantly, the interest or benefit accruing to the Commonwealth or another person must be proprietary in character. On no view can it be said that the Commonwealth as a polity or by any authority or instrumentality, has acquired any benefit of a proprietary character by reason of the operation of the TPP Act on the plaintiffs’ property rights. In this respect I agree with the reasons of Gummow J (at [144]–[154])

and the reasons of Hayne and Bell JJ (at [180]–[189]).

Gummow J observed: 149 In its submissions Philip Morris contended that it was sufficient that there has been obtained no more than some identifiable benefit or advantage, which, while not of a proprietary character, is at least a benefit or advantage ‘relating to the ownership or use of property’ [emphasis added]. For this proposition Philip Morris relied upon the use of such words by Deane and Gaudron JJ in Mutual Pools & Staff Pty Ltd v The Commonwealth. Philip Morris then submitted that the Packaging Act conferred such a benefit on the Commonwealth because the statutory regime ‘controlled’ the exploitation of the trade marks on the packaging even though the Commonwealth itself did not exploit the trade marks; it was sufficient that the control related to the use of the trade marks … 150 However, as Hayne and Bell JJ explain in passages in their reasons with which I agree, to characterise as ‘control’ by ‘the Commonwealth’ compliance with federal law which prescribes what can and cannot appear on the retail packaging of tobacco products diverts attention from a fundamental question presented by s 51(xxxi) of the Constitution. Compliance with the federal law does not create a relationship between ‘the Commonwealth’ and the packaging which is proprietary in nature.

Crennan J also rejected the submissions of the tobacco companies that an acquisition had been effected: 304 The plaintiffs relied, for similar purposes, on a statement in Mutual Pools & Staff Pty Ltd v The Commonwealth by Deane and Gaudron JJ, to the effect that it will be sufficient to demonstrate an acquisition of property if there is some benefit or advantage obtained ‘relating to the ownership or use of property’. The plaintiffs also relied on a later statement in ICM Agriculture Pty Ltd v The Commonwealth: [T]here can be no acquisition of property unless some identifiable and measurable advantage is derived by another from, or in consequence of, the replacement of the plaintiffs’ licences or reduction of entitlements. That is, another must acquire ‘an interest in property, however slight or insubstantial it may be’ [original emphasis]. 305 Reliance was placed only on the first sentence in that passage as supporting a proposition that what is acquired need not be of a proprietary nature. Read in context, neither statement represents any retreat from settled doctrine that an acquisition for the purposes of s 51(xxxi) requires that either the Commonwealth or another must acquire, for the purposes of the Commonwealth, ‘an interest in property, however slight or insubstantial it may be’. The plaintiffs’ submissions on this branch of their argument must also be rejected.

Kiefel J gave similar reasons (at [352]–[373]); Heydon J dissented.

[page 286] Rights susceptible to modification or extinguishment 11.17 If a proprietary interest is conferred by statute, can it be removed by statute without an acquisition having been effected? In Georgiadis v AOTC (1994) 179 CLR 297 at 305–6, Mason CJ, Deane and Gaudron JJ held that ‘in the absence of a recognised legal relationship giving rise to some like right, a right which has no existence apart from statute is one that, of its nature, is susceptible of modification or extinguishment’. So, in Health Insurance Commission v Peverill (1994) 179 CLR 226, Peverill, a doctor, had made claims under the Medicare scheme for pathology services he had performed between December 1984 and July 1989 on the basis of a schedule of charges in the Health Insurance Act 1973 (Cth). In 1991, parliament passed the Health Insurance (Pathology Services) Amendment Act 1991 (Cth), which operated with retrospective effect to reduce the amounts payable for the types of services Peverill had provided. Peverill challenged the Amendment Act on the basis that it effected a compulsory acquisition of property on other than just terms. The High Court disagreed. Mason CJ, Deane and Gaudron JJ said (at 237): It is significant that the rights that have been terminated or diminished are statutory entitlements to receive payments from consolidated revenue which were not based on antecedent proprietary rights recognized by the general law. Rights of that kind are inherently susceptible of variation.

Mason CJ, Deane and Gaudron JJ characterised the reduction in Medicare rebates for pathology services as being animated by the purpose of producing a ‘genuine adjustment of competing claims, rights and obligations in the common interests between parties who stand in a particular relationship’: at 236. 11.18

The ‘genuine adjustment’ approach was also taken in Mutual

Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155. In that case, the High Court held that the Commonwealth could limit the right of Mutual Pools and other manufacturers to recover from the money paid by the manufacturer to the Commonwealth as an unconstitutional tax. The legislation was supported by s 51(ii) of the Constitution and did not infringe s 51(xxxi). Mason CJ said that an acquisition under the taxation power provided a means of resolving or adjusting competing claims, obligations or property rights of individuals as an incident of the regulation of their relationship’ and was therefore not susceptible to ‘just terms’: at 171. Deane and Gaudron JJ provided a number of additional examples of acquisitions of property that are not subject to the just terms guarantee, including: the imposition of taxation; the forfeiture of property as a consequence of illegal behaviour (see, for example, Theophanous v Commonwealth (2006) 225 CLR 101); the imposition of a pecuniary penalty in civil proceedings; the seizure of property of subjects of an enemy for use in paying reparations; and the vesting of a bankrupt’s estate in an official receiver: at 187–8. So too, was a law designed to ensure payment of a statutory lien imposed on an aircraft operator to ensure the payment of statutory charges under air navigation laws: Airservices Australia v Canadian Airlines (2000) 202 CLR 133. 11.19 It has been suggested in some cases that the power that the Commonwealth invokes to support a law may have an effect on whether the just terms guarantee is relevant. So, for example, in Nintendo Co Ltd v Centronics Systems Pty Ltd (No 2) [page 287] (1994) 181 CLR 134, the court was invited to consider whether the

intellectual property power, s 51(xviii), could be used to support legislation removing intellectual property protection without compensation. In Nintendo, the Circuit Layouts Act 1989 (Cth) removed copyright protection for integrated circuits and replaced it with a special regime of protection. It was argued that this involved a compulsory acquisition of property on other than just terms. Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ made the following statement regarding the relationship between s 51(xxxi) and s 51(xviii) (at 160–1): The grant of Commonwealth legislative power which sustains the Act is contained in s 51(xviii) … It is of the essence of that grant of legislative power that it authorizes the making of laws which create, confer, and provide for the enforcement of, intellectual property rights in original compositions, inventions, designs, trade marks and other products of intellectual effort. It is of the nature of such laws that they confer such rights on authors, inventors and designers, other originators and assignees and that they conversely limit and detract from the proprietary rights which would otherwise be enjoyed by the owners of affected property. Inevitably, such laws may, at their commencement, impact upon existing proprietary rights. To the extent that such laws involve an acquisition of property from those adversely affected by the intellectual property rights which they create and confer, the grant of legislative power contained in s 51(xviii) manifests a contrary intention which precludes the operation of s 51(xxxi). The cases also establish that a law which is not directed towards the acquisition of property as such but which is concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity is unlikely to be susceptible of legitimate characterization as a law with respect to the acquisition of property for the purposes of s 51 of the Constitution. The Act is a law of that nature. It cannot properly, either in whole or in part, be characterized as a law with respect to the acquisition of property for the purposes of that section. Its relevant character is that of a law for the adjustment and regulation of the competing claims, rights and liabilities of the designers or first makers of original circuit layouts and those who take advantage of, or benefit from, their work. Consequently, it is beyond the reach of s 51(xxxi)’s guarantee of just terms [references omitted].

As the purpose of the law was to create a special regime of intellectual property protection, and not the compulsory acquisition of property, the alteration of property rights occasioned by the law was said to be not susceptible to the s 51(xxxi) requirement of just terms.

11.20 The justification for statutory variation of property rights reflected in the ‘genuine adjustment’ formula has been criticised as reflecting circular reasoning and characterised as ‘little more than a fiction intended to beautify what is disagreeable to the sufferers’: Airservices Australia v Canadian Airlines (2000) 202 CLR 133 at 299 (Gummow J, adopting the language of Holmes J in Tyson & Brother v Banton 273 US 418 at 446 (1927)). In Commonwealth v WMC Resources Ltd (1998) 194 CLR 1, divisions appeared within the court about its persuasiveness. A majority of the High Court (Brennan CJ, Gaudron, McHugh and Gummow JJ; Toohey and Kirby JJ dissenting) held that Commonwealth legislation, which reduced the area covered by a federal petroleum exploration permit held by WMC, was not an acquisition of property subject to the just terms guarantee. Gaudron, McHugh and Gummow JJ stressed the fact that the rights formerly held by WMC had been created by statute, [page 288] and, because those rights depended for their creation on statute, they could be removed by statute: at 38, 51 and 70, respectively. McHugh J said (at 51–2): The power to make laws with respect to a subject described in s 51 carries with it the power to amend or repeal a law made on that subject. A property interest that is created by federal legislation, where no property interest previously existed, is necessarily of an inherently determinable character and is always liable to modification or extinguishment by a subsequent federal enactment. Section 51(xxxi) therefore does not ordinarily withdraw from the parliament the authority to use another s 51 power to revoke or amend legislation that has been passed under that power, even when the legislation has created a property right. The fact that the Commonwealth or some other person might be viewed as benefiting from that alteration or revocation is irrelevant [emphasis added].

However, Gummow J criticised this approach as being ‘too broad’ (at 70), suggesting that the true distinction is between acquisition of a

right and reduction in the content of that right: an acquisition would be subject to s 51(xxxi) but a reduction in the content of a right would not be. Gummow J’s criticism appears to have been accepted by Gleeson CJ, Gummow, Hayne and Crennan JJ in Attorney-General (NT) v Chaffey (2007) 231 CLR 651 at 664. In Chaffey, the plurality rejected an argument that Chaffey’s statutory right to worker’s compensation under the Northern Territory’s Work Health Act was ‘property’ (and therefore within the s 51(xxxi) guarantee conferred by s 50 of the Northern Territory Self-Government Act 1978 (Cth)). Amendments in 2004 had retrospectively removed the right to seek compensation for lost superannuation payments. Chaffey, who had been injured in 2003, was caught by the amendments and contended that the 2004 amendments to the Work Health Act effected an acquisition of his proprietary interest in a chose in action to recover his superannuation payments. Both the Work Health Act and its 2004 amendments were specifically introduced with the purpose of abrogating any common law rights that might otherwise persist. The plurality offered the following analysis (at 663–4): In the Industrial Relations Act Case Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ observed: It is well established that the guarantee effected by s 51(xxxi) of the Constitution extends to protect against the acquisition, other than on just terms, of ‘every species of valuable right and interest including … choses in action’. It has been held to prohibit the extinguishment of vested causes of action. At least that is so if the extinguishment results ‘in a direct benefit or financial gain … and the cause of action is one that arises under the general law’. Further, contraction in what otherwise would be the measure of liability in respect of a cause of action or other ‘right’, may constitute an ‘acquisition’ of property for the purposes of s 51(xxxi). Hence the change brought about by the 2004 Act in the content of the ‘remuneration’ by reference to which the right of Mr Chaffey to compensation had been measured since 2003 could, all else being equal, constitute an ‘acquisition’ of property in the necessary sense.

… the first task is to identify that bundle of rights which is said to constitute the ‘property’ to which s 50 of the Self-Government Act applies. Counsel for Mr Chaffey did not dispute this. [page 289] The term ‘property’ is used in various settings to describe a range of legal and equitable estates and interests, corporeal and incorporeal. In its use in s 51(xxxi) the term readily accommodates concepts of the general law. Where the asserted ‘property’ has no existence apart from statute further analysis is imperative. It is too broad a proposition, and one which neither party contended for in these appeals, that the contingency of subsequent legislative modification or extinguishment removes all statutory rights and interests from the scope of s 51(xxxi). Newcrest Mining (WA) Ltd v The Commonwealth is an example to the contrary. That case concerned the use of statute to carve out mining interests from the radical title enjoyed by the Commonwealth upon the acceptance of the Territory pursuant to s 111 of the Constitution. Again, a law reducing the content of subsisting statutory exclusive rights, such as those of copyright and patent owners, would attract the operation of s 51(xxxi). On the other hand, the statutory licensing scheme for off-shore petroleum exploration the validity of which was upheld in The Commonwealth v WMC Resources Ltd was constructed so as to subject the scope and incidents of licences to the form of the legislation from time to time. In WMC, as with Pt V of the Work Health Act, by express legislative stipulation in existence at the time of the creation of the statutory ‘right’, its continued and fixed content depended upon the will from time to time of the legislature which created that ‘right’ [references omitted; emphasis added].

Commonwealth may acquire for third party 11.21 It is not necessary for the Commonwealth or its agent to acquire the property in question for an acquisition to take place under s 51(xxxi). The property may be acquired by someone else for the purposes of the Commonwealth: McClintock v Commonwealth (1947) 75 CLR 1 at 23 and 26; see also Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397. In McClintock, it was held that the Commonwealth could use s 51(xxxi) to compel pineapple growers to deliver their produce to agents of the Commonwealth. In PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 at 401, Latham CJ, with

whom Williams and Rich JJ agreed on this point, remarked: It is obvious that a constitutional provision could readily be evaded if it did not apply to the acquisition by a corporation constituted by the Commonwealth or by an individual person authorised by a Commonwealth statute to acquire property.

Circumstances which ‘do not admit of just terms’ 11.22 In Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270, federal fisheries law gave a court exercising jurisdiction in proceedings for breach of the law the discretion to order forfeiture of any boat or equipment used in the commission of an offence. In proceedings relating to such an offence, a magistrate at first instance ordered that the boat used in the commission of the offence be forfeited, and the applicants challenged the order on the ground that it constituted an acquisition of property on other than just terms. The applicants were the owners of the boat. They led evidence that they had no connection with, or knowledge of, the use of the boat for illegal fishing. It was argued that it would be unjust for the Commonwealth to acquire property in this way. Deane and Gaudron JJ pointed out (at 285) that: … the power conferred by s 51(xxxi) is one with respect to ‘acquisition of property on just terms’. That phrase must be read in its entirety and, when so read, it indicated that s 51(xxxi) applies only to acquisitions of a kind that permit of just terms. It is

[page 290] not concerned with laws in connection with which ‘just terms’ is an inconsistent or incongruous notion. Thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorizing seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to ‘acquisition of property’, as that expression is used in s 51(xxxi). It follows that a law which effects or authorizes forfeiture of property in consequence of its use in the commission of an offence against the laws of the Commonwealth stands outside s 51(xxxi).

See also Theophanous v Commonwealth (2006) 225 CLR 101 (at [55]– [60]). Similarly, laws imposing taxation obligations are generally not likely to be legitimately characterised as laws directed towards the acquisition of property: Moore v Commonwealth (1951) 82 CLR 547; Federal Commissioner of Taxation v Clyne (1958) 100 CLR 246 at 263 per Dixon CJ; at 270 per Webb J. Also, laws imposing pecuniary penalties or requiring the forfeiture of property as a penalty for an offence will be unlikely to be characterised as laws directed towards the acquisition of property: Burton v Honan (1952) 86 CLR 169 at 180–1. In Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, Aickin J suggested that the rationale for these exceptions was historical, as they were well known in 1900 and would not then or now ordinarily be described as the acquisition of property: at 455. So, too, in Airservices Australia v Canadian Airlines (2000) 202 CLR 133 a law imposing a lien on aircraft to ensure payment of statutory charges that were reasonably related to the regulation of air navigation (and therefore within s 51(i)) did not attract the s 51(xxxi) requirement of just terms compensation: at 180–1, 251, 304, 330. As McHugh J pointed out (at 251): If the circumstances are such that the notion of fair compensation to the transferor is irrelevant or incongruous, the law is not a law with respect to s 51(xxxi).

Attorney-General for the Northern Territory v Emmerson (2014) 253 CLR 393 is a further manifestation of the general principle that s 51(xxxi) only applies to acquisitions of a kind that permit of just terms. As explained at 19.62, that case concerned a challenge to a Northern Territory statutory scheme that provided for the property of a person who had been declared a ‘drug trafficker’ to be forfeited to the Northern Territory whether or not that property had any connection to a criminal offence. Section 50(1) of the Northern Territory (SelfGovernment) Act 1978 (Cth) is the equivalent of s 51(xxxi). By

majority, the court concluded, consistently with the Northern Territory Court of Appeal below (see at [11]), that the statutory scheme was not contrary to s 50(1). The starting point of the majority’s analysis was that the relevant operation of the Criminal Property Forfeiture Act (NT) (‘the Forfeiture Act’) depended on a person’s conviction for crime. The Act prescribed ‘penal consequences which flow from a person’s conviction of crime’: at [74]. Two consequences followed. First, 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’ (at [75]), and therefore, consistent [page 291] with prior authority, was an exaction of a kind in respect of which just terms compensation was an inconsistent or incongruous notion: at [77], [84]. Second, any want of proportion between the objectives of the statutory scheme and the means used to attain those objectives — forfeiture — was irrelevant: at [75]. The objectives of the scheme included ‘to target the proceeds of crime in general and drug-related crime in particular in order to prevent the unjust enrichment of persons involved in criminal activities’ and ‘to compensate the Territory community for the costs of deterring, detecting and dealing with’ those activities: at [34]–[35]. Emmerson attempted to distinguish the scheme from other statutory forfeiture schemes on the basis that it went further than those schemes by targeting ‘legitimately generated wealth’: at [79]. The majority rejected that attempt. The question was whether the Forfeiture Act could be characterised as a law that ‘exacts

or imposes a penalty or sanction for breach of provisions which prescribe a rule of conduct’ (and therefore outside the scope of the just terms guarantee): at [80]. The ‘justice, wisdom, fairness or proportionality’ of the law was a matter for the legislature, not courts: at [85]; see also at [75], [80]. Gageler J dissented. The constitutional purpose of the just terms condition is to ‘prevent arbitrary acquisition’: at [116]. A law that acquires property without attracting the just terms condition has three characteristics: at [118]. First, the objective of the law must be within power. Second, the acquisition must be a necessary or characteristic feature of the means the law selects to achieve the objective within power. And, third, the means must be appropriate and adapted to achieve the objective. The legislative purpose of the Forfeiture Act — ‘to compensate the Territory community for the costs of deterring, detecting and dealing with the [person’s] criminal activities’ — could not explain the ‘extent of the forfeiture consonantly with the constitutional purpose of the just terms condition to prevent arbitrary acquisition’: at [132]. That followed because the means chosen by the law were not appropriate and adapted to achieving the legislative purpose, there being no attempt to ‘link the value of the property forfeited to the amount of the costs identified’: at [132].

Just terms Just terms a question of fact 11.23 If the Commonwealth acquires property within the meaning of s 51(xxxi), it must provide ‘just terms’ compensation: see, for example, Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269 at 290. The court has indicated a preference for a broad interpretation of s 51(xxxi). But this does not mean that the court will always accept the

plaintiff’s conception of ‘just terms’. All the circumstances of the case are taken into account. This was explored in Andrews v Howell (1941) 65 CLR 255. The case concerned a federal scheme under which apples and pears were acquired on a compulsory basis. The scheme specified the occasion when compensation would be paid, with a federal minister retaining discretionary power to determine compensation. The provisions were challenged on the basis that the discretion to [page 292] choose when and how much compensation was to be paid infringed the just terms requirement. Dixon J said (at 282): … the court would not arrive at the conclusion that terms were unjust except after an examination of the facts upon which the law operated, of the circumstances affecting the subject matter, and of the considerations which appear to have actuated the legislature. Further, if it appeared from the terms of the enactment that the legislature had considered that a particular form or measure of compensation was just, the court would give great weight to the conclusion of the legislature.

So, the mere existence of a wide discretionary power to determine compensation will not necessarily result in an injustice. The court takes all the circumstances of the case into account when making its determination of just terms, including prevailing economic conditions and the needs of society generally. 11.24 The High Court would defer to the wisdom of the legislature or executive during wartime more readily than it would during peacetime. As Starke J remarked in Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290–1: It does not follow that terms are unjust merely because ‘the ordinary established principles of the law of compensation for the compulsory acquisition of property’ have been altered, limited or departed from, any more than it follows that a law is merely unjust because the provisions of the law are accompanied by some qualification or exception which some judges think ought to be there. The law must be so unreasonable

as to terms that it cannot find justification in the minds of reasonable men [sic].

Market relevance and just terms 11.25 Typically, a determination of just terms based on the market value of the property at the time of acquisition will be sufficient to satisfy the requirement of just terms. But the Commonwealth is not restricted by any requirement to provide compensation on the basis of the market value. This point was considered in Nelungaloo Pty Ltd v Commonwealth (1947) 75 CLR 495, which concerned a compulsory acquisition scheme for wheat. Latham CJ rejected the plaintiff’s argument that the measure of compensation payable by the Commonwealth be compared to that available in the free market (at 540–1): In my opinion the hypothesis of ‘a free market’ should, in its application to questions of compensation, be taken to mean only that the assessing tribunal should endeavour to ascertain the price which a willing purchaser would give to a not unwilling vendor of the property in question, neither being under any compulsion, the price to be assessed at the value to the owner. This does not mean that the assessing tribunal is to assume a legislative void. It is one thing to assume that an acquiring authority does not exist, or that it exists, but without power of compulsory acquisition, so that it can be regarded as a potential purchaser. It is quite a different thing to assess value upon an hypothesis that there are no laws which affect that value, or that some of such laws do not exist. Such an assumption imagines a market which could never have existed. It is not upon a basis so unreal that ‘true value’ is to be assessed. Neither a duty to provide just terms for the acquisition of property nor an obligation to pay fair compensation involves a complete exclusion of all consideration of the interests of the community, or, more particularly, of the laws which protect such interests. Justice and fairness to the community are not precise standards; but laws directed to those objectives, if their terms are clear, are not open to such criticism. The necessity of paying compensation under the law and of giving just terms to persons whose property is acquired under the law does not in my opinion compel

[page 293] the community to submit to the exaction of the uttermost farthing upon the basis that laws protecting the community against excessive prices are to be disregarded when

compensation is being assessed.

However, where a market exists, market compensation is appropriate (as Williams J observed in Nelungaloo at 509), calculated as ‘the price which a reasonably willing vendor would have been prepared to accept and a reasonably willing purchaser would have been prepared to pay for the property at the date of the acquisition’. Property’s special nature considered 11.26 The requirements of justice may mean, in an individual case, that the peculiar value of the property should be taken into account in determining just terms. So, for example, in Johnston Fear & Kingham v Commonwealth (1943) 67 CLR 314 it was held that the compulsory acquisition by the Commonwealth of a three-colour offset press electronic printing machine would require more than the mere payment of the price of the goods because such machines were rare. As Latham CJ explained at 322–3, the determination of just terms compensation would depend on the circumstances: Where goods are acquired from a person who deals in those goods, the price of the goods would, as a general rule, be fair compensation to him [sic]. The price of goods depends upon the characteristics of the goods and the state of the market for them, if any. The just compensation to be paid to a person for compulsory taking of goods depends upon these circumstances, but also possibly upon particular circumstances which may vary in different cases … In the case of goods (such as a machine) which a person uses in his business, such a price might fall below fair compensation if the machine could not be replaced without long delay. In such a case the payment to the dispossessed owner only of the price at which such a machine could, after some lengthy period, be bought, would not give him compensation on just terms, even if, by a generous interpretation of the word ‘price’, interest was added to the sum paid. ‘Just terms’ involve full and adequate compensation for the compulsory taking. There are cases in which the payment of a ‘price’ for goods (as the term price must be interpreted in these Regulations) does not provide a just measure of compensation. The Regulations provide only for a price to be paid in all cases, and, therefore, do not satisfy the constitutional requirement of just terms.

11.27 In Wurridjal v Commonwealth (2009) 237 CLR 309 at 425, Kirby J held that a special degree of care may be needed in making

assessment of just terms in cases involving Aboriginal property: At least arguably, ‘just terms’ imports a wider inquiry into fairness than the provision of ‘just compensation’ alone. The latter, measured in monetary value, is objectively ascertainable in most cases. Identifying the ‘terms’ required for an acquisition of property to be ‘just’ invites a broader inquiry. It is one that could cut both ways. Take, for example, acquisition of property during wartime. The acquisition of an interest in property might be essential, temporary and involve very limited federal interference. Such property interests might be controlled by the Commonwealth briefly, for the defence of the nation. So long as proper procedures were instituted and observed and the property owners duly informed and quickly restored to full rights once the danger had passed, ‘just terms’ might require little or no monetary compensation. By contrast, however, an acquisition of legal interests in property belonging to traditional Aboriginals, even if only temporary, is not of such a character. Such interests are, or may be, essential to the identity, culture and spirituality of the [page 294] Aboriginal people concerned. The evidence might ultimately show in this case that they do indeed love their traditional ‘property’ interests in a way that conventional ‘property’ is rarely if ever cherished in the general Australian community. This might oblige a much more careful consultation and participation procedure, far beyond what appears to have occurred here. As stated by Dixon J, the ‘terms’ which s 51(xxxi) guarantees are ‘concerned with fairness’ (Nelungaloo (1947) 75 CLR 495 at 569) and potentially the inquiry is a wide one. It is enlivened by the type of Aboriginal ‘property’ affected in consequence of the impugned legislation. As such, the ‘just terms’ requirement of the Constitution arises for consideration. Its application would depend upon evidence, including evidence as to the way the Commonwealth went about the process of ‘acquisition’.

Just terms determined by impartial tribunal 11.28 The measure of justice must be determined by an impartial tribunal: Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 at 560 per Dixon J. It is conceivable that the tribunal could be constituted by a minister, if the facts indicated that an impartial assessment has been made: Andrews v Howell (1941) 65 CLR 255 per Dixon J at 283–4; cf Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 217–18, 319, 350–1, 394–5. But the determinations of the tribunal must be

amenable to judicial review: Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77 at 99, 109. In addition, it will be necessary for the owner of the property to have an opportunity to be heard in respect of the acquisition: Johnston Fear & Kingham v Commonwealth (1943) 67 CLR 314 at 322; Australian Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77 at 86–7, 99, 109. For further consideration of the constitutional requirements applicable to a non-judicial tribunal vested with power to determine ‘just terms’, see Commonwealth v Western Australia (1999) 196 CLR 392 at 463 per Kirby J; contra Callinan J at 491. Community interests in the acquisition 11.29 In determining just terms, the impartial tribunal may take into account the interests of the property owner and the interests of the community in the acquisition. In Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269, the court (Latham CJ, Starke, Dixon, McTiernan JJ; Williams J dissenting on this point) upheld the validity of federal land acquisition legislation which nominated the date of 1 January preceding the date of acquisition as the date at which just terms compensation was to be assessed. Latham CJ said (at 280) that ‘[j]ustice involves consideration of the interests of the community as well as of the person whose property is acquired’.

‘In respect of which the Parliament has power to make laws’ 11.30 The Commonwealth may only acquire property on just terms under s 51(xxxi) for a ‘purpose in respect of which the Parliament has power to make laws’. This means that every law supported by s 51(xxxi) must also be supported by at least one additional legislative power: PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 at 402– 3 per Latham CJ. This could be a power under s 51 of the Constitution

such as s 51(xxix) (for example, Newcrest Mining Pty Ltd v Commonwealth (1997) 190 CLR 513) or it could be s 122: Wurridjal v Commonwealth (2009) 237 CLR 309.

[page 295]

Chapter Twelve

The Conciliation and Arbitration Power under the Constitution Introduction 12.1

Section 51(xxxv) of the Constitution provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

12.2 The notion that the Commonwealth might have power to regulate industrial relations was initially rejected by participants in the Constitutional Conventions who were anxious to preserve the autonomy of the states to regulate state industrial matters: Quick & Garran, 1901, pp 646–7. During the 1890s a number of significant industrial disturbances and growing recognition of the need for national solutions to multi-state disputes caused the Convention delegates to reconsider, and s 51(xxxv) was inserted into the Constitution: R v Commonwealth Court of Conciliation and Arbitration and Australian Builders’ Labourers’ Federation (Builders’ Labourers’ case) (1914) 18 CLR 224 at 241. The conciliation and arbitration of industrial disputes, an approach also taken in New Zealand, has been regarded internationally as a characteristically Australasian approach to the regulation of industrial

relations (Macintyre, 1989). 12.3 Section 51(xxxv) of the Constitution does not provide a general power over ‘industrial relations’ (Harrison Moore, 1910, p 286). To prosecute its policy objectives in industrial relations generally, the Commonwealth has resorted to other powers. The most important of these powers is s 51(xx): see New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1, discussed at 8.21–8.25. In the Work Choices case (at [198]), five justices of the High Court approved Gaudron J’s statement in Re Pacific Coal Pty Ltd; Ex parte CFMEU (2000) 203 CLR 346 at 375, [83], that ‘laws prescribing the industrial rights and obligations of [foreign, trading or financial] corporations and their employees and the means by which they are to conduct their industrial relations’ fall within s 51(xx). The corporations power is now the principal constitutional head of power for regulating industrial relations, supplanting s 51(xxxv) of the Constitution. The Fair Work Act 2009 (Cth), the primary piece of industrial relations legislation in Australia, is based on s 51(xx) of the Constitution. For instance, s 14(1)(a) of the Act includes, in its definition of a ‘national system employer’, a ‘constitutional corporation, so far as it employs, [page 296] or usually employs, an individual’. The Full Federal Court has recently observed that, under the Fair Work Act, ‘awards are no longer made in reliance upon the conciliation and arbitration power in s 51(xxxv) of the Constitution, but under other heads of power, principally the corporations power’: Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at [13] per the court. Before the 2006 changes to federal industrial legislation wrought by

the ‘Work Choices’ legislation (considered in the Work Choices case and also in Informax International Pty Ltd v Clarius Group Limited (No 2) (2011) 214 IR 80 at [22]–[27]), the Commonwealth had previously used other heads of legislative power to regulate industrial relations: the Commonwealth previously used s 51(i) of the Constitution to regulate industrial relations in the course of interstate or overseas trade (Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397). It has also used s 51(xxix) to ensure that employers satisfy Australia’s international obligations in the workplace (Victoria v Commonwealth (Industrial Relations case) (1996) 187 CLR 416). The Commonwealth can also regulate industrial relations matters that are incidental to its other enumerated powers, notably its powers with respect to defence, the public service and the territories: ss 51(vi), 52(ii) and 122 respectively. 12.4 Section 51(xxxv) is not a general power over ‘industrial relations’. The power may only be exercised in specific circumstances — where there are industrial disputes extending beyond the limits of any one state — and then only for specific purposes — their prevention or settlement. Even then, those disputes can only be resolved through conciliation and arbitration — specific techniques of dispute resolution. Accordingly, to explore the scope of s 51(xxxv) the following questions will be considered: •

What constitutes an ‘industrial dispute’?

•

In what circumstances is it said that an industrial dispute extends beyond the limits of any one state?

•

How can industrial disputes be prevented or settled by conciliation and arbitration?

•

What principles govern the characterisation of laws said to be authorised by s 51(xxxv)?

Industrial dispute 12.5 The object of s 51(xxxv) is the phrase ‘industrial disputes’. In R v Coldham; Ex parte Australian Social Welfare Union (CYSS case) (1983) 153 CLR 297, members of the Australian Social Welfare Union who worked for Community Youth Support Scheme (CYSS) Committees served a ‘log of claims’ (a document detailing industrial demands) on their employers relating to the pay and conditions of CYSS project officers and sought an award settling their claims in the Commonwealth Conciliation and Arbitration Commission. [page 297] The High Court adopted an expansive approach in the CYSS case on the basis that the phrase should be given its ‘popular meaning’ (at 312–13): It is, we think, beyond question that the popular meaning of ‘industrial disputes’ includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective ‘industrial’ imports some restriction which confines the constitutional conception of ‘industrial disputes’ to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern.

The High Court has held that matters which have only an indirect, consequential or remote effect on employer–employee relations are not the proper subject matter of ‘industrial disputes’. In R v Kelly; Ex parte Victoria (1951) 81 CLR 64 it was argued that a federal award authorised by s 51(xxxv) could not extend to cover the trading hours of butchers’ shops, on the basis that this concerned a matter which

only indirectly affected the relationship between an employer and employees. Under the Conciliation and Arbitration Act 1904 (Cth), the Commonwealth Court of Conciliation and Arbitration was authorised to make awards in respect of ‘industrial matters’, which were defined as ‘all matters pertaining to the relations of employers and employees’. The court held (at 84–5) that the trading hours of a shop were not an ‘industrial matter’, as these words: … must refer to the relation of an employer as employer with an employee as employee. The time at which a shopkeeper (who may or may not employ anybody) may open and close his shop is not a ‘matter’ which belongs to or is within the sphere of the relation of that shopkeeper as employer with any person as employee … Trading hours of an employer are not the same subject as working hours of an employee, and a prescription of trading hours as distinct from working hours does not ‘affect or relate to work done or to be done’. Provisions with respect to trading hours may affect the turnover of shopkeepers who employ persons and so indirectly affect their ability to pay award rates, and this state of affairs may in turn affect the relations of those shopkeepers and their employees. But this is the most that can be said, and it is obviously not enough. It shows only the possibility of an indirect, consequential and remote effect upon the relations of the last-mentioned persons. All kinds of matters, eg, supply and prices of raw material, the state of the money market, may affect the capacity of employers to pay wages at a certain standard. But these are not industrial matters … If once we begin to introduce and include in its scope (ie the scope of the Act) matters indirectly affecting work in the industry, it becomes very difficult to draw the line so as to prevent the power of the Arbitration Court being extended to the regulation and control of businesses and industries in every part … A matter does not become an ‘industrial matter’ or the subject of an ‘industrial dispute’ simply because it is a matter with respect to which persons who are employers and employees are disputing [references omitted].

The question whether a particular topic falls within the scope of the constitutional criterion of ‘industrial disputes’ has generated a significant case law. [page 298]

12.6 In R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353 the High Court considered a union claim that employers pay union dues out of salaries earned by employees. The leading judgment was delivered by Menzies J (with whom Barwick CJ and McTiernan J agreed). Menzies J said (at 360) that the ‘critical question’ was: … whether the imposition upon an employer of an obligation to make deductions and payments from salary in accordance with the authority of the employee to whom the salary has become due and payable affects the industrial relationship of employers and employees. The identity of the payee does not seem to me to be significant in determining the character of such a dispute, unless, of course, the payment relates to an incident of the employment such as a deduction for and payment to a superannuation fund. In my opinion, the relationship that would be affected by such an obligation is a financial relationship of debtor and creditor arising from the earning of salary, not the industrial relationship in which the salary has been earned and has become payable. What is sought, in reality, is to make the employer the financial agent of the employee for the benefit of the association.

Stephen J commented (at 371): Not every demand for reward for work performed will render the subject matter of the demand an industrial matter. The matter demanded must always pertain to the employer–employee relationship so that the subject matter of demands by either party which are, for example, of a political or social or managerial nature will not be industrial matters. There is, in my view no necessary connexion between the service which the association, on behalf of employees, demands should be rendered by the employer banks for their employees and the relationship between them of employer and employee.

12.7 In Re Cram; Ex parte New South Wales Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 at 135, the High Court said that a dispute about the number of workers and methods of recruitment was a matter in which employees had a direct and legitimate interest, falling within the scope of matters which could form the basis of an ‘industrial dispute’. The High Court noted that it was: … received doctrine at an earlier time — that it was the prerogative of management to decide how a business enterprise should operate and whom it should employ, without the workforce having any stake in the making of such decisions. In that climate of

opinion, disputes about the making of such decisions, despite their impact on working conditions and work to be done, might not necessarily be regarded as industrial matters susceptible of resolution by industrial arbitration. Over the years that climate of opinion has changed quite radically … … [Today] [m]any management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an ‘industrial matter’. A dispute about the level of manning [sic] is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both these matters.

[page 299] 12.8 In Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 the High Court considered a claim that employers pay union dues out of salaries earned by employees, coupled with a second claim for a wage increase by an amount equivalent to union dues. The High Court applied R v Portus but said (at 107): The considerations which lead to the conclusion that a dispute as to deduction of union dues (at least, where authorized by individual employees) is an industrial dispute within s 51(xxxv) of the Constitution, tend in favour of the conclusion that the subject matter does not pertain to the relationships of employers and employees in their capacity as such. Those considerations, which depend on the nature and role of trade unions in Australia, show that although the subject matter pertains to a relationship between employers and employees, it is a relationship involving employees as union members and not at all as employees. That appears even more clearly if, as earlier suggested, the industrial character of the claim for the purposes of s 51(xxxv) comes about only in the case of a claim for employee-authorized deductions. Finally and so far as the statutory definition of ‘industrial dispute’ is concerned, the character of a claim for the deduction of union dues is not altered simply because it is bound up with a claim for a wage increase equivalent to the dues to be deducted.

As the Full Federal Court explained in Australian Maritime Officers Union v Sydney Ferries Corporation (2009) 190 IR 193 at [11]: ‘On this occasion the difficulty appeared to be that the relationship in question was one with employees as union members rather than simply as employees’. 12.9 In Re Manufacturing Grocers’ Employees Federation of Australia; Ex parte Australian Chamber of Manufactures (1986) 160 CLR 341 the High Court found that a claim for payment into superannuation funds for the benefit of employees did fall within the ambit of ‘industrial dispute’. The High Court said (at 353): The words ‘pertaining to’ in the definition of industrial matters mean ‘belonging to’ or ‘within the sphere of’ and the expression ‘the relations of employers and employees’ refers to the relation of an employer as such with an employee as such … For present purposes, it is sufficient to say that a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential for it to be an industrial matter capable of being the subject of an industrial dispute [references omitted].

In Re Manufacturing Grocers the court noted that the claims for superannuation were (at 355): … no more than demands for the payment during the currency of an award of employer contributions to superannuation schemes which will take an approved form. It is because the claims are in this limited form that it is, in our view, impossible to sustain the argument that they are not made with respect to industrial matters, whatever may have been the position had the claims been made in a more elaborate form.

Distinguishing the claim for employer contributions to employee superannuation from the claim rejected in Portus, the court said (at 357): Because the payments are to a superannuation fund, they form, to use the words of Menzies J., an incident of the employment. Nor can it be said that the payments

[page 300]

contemplated by the claims in the present case will be made by the employer as the agent for the employee. There is no reason why those payments should be seen in any other way than as contributions by an employer to a fund for the benefit of an employee. No doubt the payments represent money earned in an industrial relationship, but they do not represent money to which an employee is himself presently entitled. They must be regarded as having been made to the fund by the employer in his capacity as employer and not as an agent acting on behalf of an employee.

In Re Amalgamated Metal Workers Union; Ex parte Shell Co of Australia Ltd (1992) 174 CLR 345 at 356; and Finch v Telstra Super Pty Ltd (2010) 242 CLR 254 at [33] the High Court confirmed that disputes about employer contributions to superannuation fall within the ambit of the phrase ‘industrial dispute’ in s 51(xxxv). 12.10 In Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 the High Court was invited to consider whether a claim by a trade union that an employer should deduct a ‘bargaining agent’s fee’ from the wages of employees and pay it to the union was a matter pertaining to the relationship between employers and their employees. A majority of the court (Gleeson CJ, Gummow, Hayne and Heydon JJ) held that this claim was ultra vires the concept of an ‘industrial dispute’. Gleeson CJ remarked (at [9]): In one sense, anything that is capable of being made the subject of an agreement between an employer and employees could be said to be a matter pertaining to their relationship. An employer could agree, for example, to make regular donations to a particular political party. The established principle, however, is that, in the context with which this legislation is concerned, it is matters which affect employers and employees in their capacity as such that ‘pertain to the relations of employers and employees’.

12.11 In Australian Maritime Officers Union v Sydney Ferries Corporation (2009) 190 IR 193, the Full Federal Court considered whether a claim for income protection insurance in an agreement between the parties (a claim made by the union but not honoured by the Sydney Ferries Corporation) could be a matter pertaining to the relationship between an employer and employee. If it was not, the

workplace agreement clause containing the claim would be unenforceable because it would concern ‘prohibited content’ for the purposes of the Workplace Relations Act 2006 (Cth). The court concluded that the claim was within power, providing the following helpful analysis which is worth setting out at length: 3 The concept of matters pertaining to an employment relationship has long been used in statutory formulations identifying matters within the province of industrial tribunals, or about which there might be industrial regulation. In R v Kelly; Ex parte The State of Victoria [1950] HCA 7; (1950) 81 CLR 64, one of the seminal cases on that question, the High Court said (at 84): The words ‘pertaining to’ mean ‘belonging to’ or ‘within the sphere of,’ and the expression ‘the relations of employers and employees’ must refer to the relation of an employer as employer with an employee as employee. (Emphasis added.) … 16 In Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association [1952] HCA 38; (1952) 86 CLR 283 (‘Hamilton Knight’) a majority of the High Court took the [page 301] view that a claim which sought, amongst other things, payment of compensation to an employee for personal injury, illness or accident arising out of or in the course of the employment pertained to the relations of employers and employees (see per Dixon CJ at 295–6, per Webb J at 307–8 and per Kitto J at 328–9). 17 Hamilton Knight was applied by the New South Wales Court of Appeal when it upheld the validity of an award made by the Industrial Commission of New South Wales granting accident pay (an extra payment by employers to finance an insurance scheme to provide additional ‘accident pay’, or ‘make up pay’, for employees receiving workers compensation) (Ex parte Master Builders’ Association of New South Wales; Re Industrial Commission of New South Wales [1971] 1 NSWLR 655 (‘the Accident Pay Case’)). … 20 Assessment of the character of the agreed term must take place in a context where there are few hard and fast rules about what does, and what does not, pertain to an employment relationship. Ultimately, the question is one of appropriate characterisation based on all the relevant circumstances. The primary judge came to the view … that the agreed term did not pertain to the relations of employers and employees. We have reached a different view …

21 As a general rule, a payment made to, or for the benefit of, an employee by an employer is normally presumed to pertain to their relations unless it falls into a category identified as outside the relationship. Neither the fact that an injury or illness does not arise directly from attendance at work (or going to or from work), nor the fact that an entitlement might be generated which subsists after employment ceases, are necessarily indicative of a matter that does not pertain to the relations of employers and employees. There are examples of such entitlements which indisputably pertain to the relations of employers and employees and which have similar features to the agreed term. Three such examples will suffice to make the point. 22 Sick leave is an example of protection against loss of income arising from circumstances or incidents away from the workplace. The fact that payments may continue after employment has ceased, pursuant to insurance arrangements, is a characteristic of workers’ compensation schemes. The notion of economic security after the cessation of employment, funded by employer payments during employment, is the hallmark of superannuation and pension schemes, many of which contain arrangements which are activated by medical incapacity to continue working although an ordinary retirement age has not been reached. 23 A term directed to the protection of income in the event of illness or injury may pertain to the relationship of employers and employees in the same way as those other forms of employment benefit and may do so where the protection endures after the obligation to make the payment which secures it has ended. Whether or not the term pertains to the relationship of employers and employees depends upon all the circumstances. 24 What of the decided cases? Much of the debate at first instance took place by reference to the facts and circumstances of earlier cases, none of which provide a direct analogy with the agreed term. However, the circumstances of the present case are much closer in principle to Manufacturing Grocers than any of Portus, Alcan or Electrolux. The agreed term in the present case does not suffer from the defect identified in Portus and Alcan. It does not direct a payment from a pre-existing entitlement to satisfy an obligation arising outside the employment relationship. Neither is it directed, as in Electrolux, to ensuring that a payment is made by employees to a union, regardless of choice or of union membership. The agreed term operates during the employment relationship only. There is no obligation upon [page 302] SFC to pay a premium in respect of a non-employee. The circumstance against which an employee would be protected is the loss of income arising from the employment relationship. …

26 Despite the careful analysis of the authorities by the trial judge, in our view ultimately the wrong conclusion was reached. The appeal should be upheld. The order of the trial judge should be set aside and declarations made in lieu thereof that the agreed term does not contain prohibited content and has been breached by SFC. The matter must be remitted to the trial judge to assess any penalty for breach of the Agreement.

‘Dispute’ 12.12 The essence of a dispute is disagreement, not industrial disturbance. As Gavan Duffy, Rich, Starke and Dixon JJ explained in Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (No 1) (1930) 42 CLR 527 at 552: … to constitute an industrial dispute there must be disagreement between people or groups of people who stand in some industrial relation upon some matter which affects or arises out of the relationship. Such a disagreement may cause a strike, a lockout and disturbance and dislocation of industry; but these are the consequences of the industrial dispute and not the industrial dispute itself, which lies in the disagreement.

‘Paper’ disputes 12.13 An industrial dispute under s 51(xxxv) can be a ‘paper dispute’. If one of the parties to an employer–employee relationship makes demands of the other party (often referred to as a ‘log’ of claims or demands) in respect of an industrial matter, and this demand is refused, then subject to the other requirements of s 51(xxxv), this will normally be sufficient to create a ‘dispute’ for the purposes of s 51(xxxv). As Dixon J explained in Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 at 429: The foundation of the system of creating such disputes by logs of demands is the doctrine that the essential quality of an industrial dispute is not the suspension of industrial relations but disagreement, difference, or dissidence.

Industrial dispute must be ‘real and genuine’ 12.14 Mere disagreement between employers and employees is insufficient to create an industrial dispute. In Re Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181, the High

Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) said: Because disagreement rather than disturbance or dislocation of industrial relations is the essential characteristic of an industrial dispute, a ‘paper dispute’ evidenced by delivery and non-acceptance of a log of claims is sufficient to create a dispute. But from the beginning it has been recognized that the dispute must be real and genuine, the formal demand being viewed prima facie as real and genuine, the prosecutor bearing the onus of clearly establishing the contrary.

In that case, the Electrical Trades Union of Australia (ETU) initiated proceedings in the Conciliation and Arbitration Commission serving a log of claims on the Queensland Electricity Commission and electricity authorities in the territories and [page 303] in every state except New South Wales. The Queensland Electricity Commission objected to the jurisdiction of the commission on the basis that the only genuine dispute existed between the South-East Queensland Electricity Board and the Queensland Branch of the ETU, relating to the use of contract labour by the board. It was argued that the union action in the commission was therefore only a colourable attempt to attract its jurisdiction; the delivery of the log of claims was not a bona fide demand; and that consequently the rejection of the claims did not create an ‘industrial dispute’ within s 51(xxxv). The court referred to the requirement that the dispute be ‘real and genuine’ and continued (at 182): ‘This means that the demands must be bona fide in the sense that they are being genuinely advanced’. The court said that it is not an objection to the genuineness of a claim that it has been created to attract the jurisdiction of the commission, or that it originated in one state, or that the demandants do not expect to get everything they ask for, or that they make inflated demands: at 182–3. Rather (at 183):

… the question is whether the demand for the conditions in the log is genuine or a sham … The demand is genuine if it emerges that the organisation has put forward the log of claims with the intention of obtaining improved terms and conditions of employment within the framework of the claims made in the log, notwithstanding that there is no intention of obtaining immediately the claims as they have been expressed in the log. Whether the dispute is real and genuine, whether it is founded on a real and genuine demand is a question of fact [references omitted].

The court reviewed the history of the Queensland Electricity dispute and noted that the claims in question had been prepared some months before newspaper reports suggested that the ETU intended to deliberately provoke a national dispute, and concluded that the National Executive and Queensland branch of the ETU genuinely sought federal award coverage: at 190. So long as the demandants demonstrate an intention to obtain improved conditions and there is no evidence that the claims are a sham, then any resulting disagreement can create an industrial dispute for the purposes of s 51(xxxv). A claim will not be considered ‘genuine’ if it is ‘fanciful’. In Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia (1993) 178 CLR 249, an employee organisation served a log of claims on a state government employer demanding, among other things, a minimum wage of $5000 per week for all employees. Mason CJ, Deane and Gaudron JJ, with whom Brennan, Dawson and McHugh JJ agreed, said that such a claim was not genuinely made, as it did no more than make ‘a bare claim for increased wages and conditions’. Such a claim could not give rise to an industrial dispute within s 51(xxxv) because it was based on an incorrect assumption that the commission has general regulatory power, rather than a specific power to conciliate and arbitrate industrial disputes. The ‘genuineness’ requirement was revisited in Attorney-General (Qld) v Riordan (1997) 192 CLR 1. Brennan CJ and McHugh J said (at

17–18): The distinction that needs to be made is between what the claimant Union really and genuinely demands and what it expects to be granted. Apparent extravagance in the

[page 304] demands made is not inconsistent with the reality or genuineness of those demands … inflation is not the only factor which might bring claims that at first appear to be extravagant within the realm of the attainable. Changes in productivity, technology, work practices or industrial relations generally may also have to be taken into account in framing a log of claims that is capable of grounding an industrial dispute.

Whether a claim is fanciful is a question of degree. The claim can have regard to possible future developments and can allow some reasonable latitude in its formulation but it cannot exceed what might reasonably be thought to be attainable in the foreseeable future: Attorney-General (Qld) v Riordan (1997) 192 CLR 1 at 18 per Brennan CJ and McHugh J. Apparent extravagance will not in itself indicate that a claim made is not genuine: Attorney-General (Qld) v Riordan at 17, 22, 60. The ‘ambit’ doctrine and ‘ambit claims’ 12.15 As discussed above, s 51(xxxv) refers to two very specific types of dispute resolution: conciliation and arbitration. It is not a general power to regulate industrial relations. In order to conciliate or arbitrate a dispute, the dispute must have an ascertainable ambit. This is the so-called ‘ambit’ doctrine. A dispute will not have an ascertainable ambit where the demands made in the log of claims are ambiguous, meaningless or contradictory. In R v Heagney; Ex parte ACT Employers Federation (1976) 137 CLR 86, Mason J, with whom Stephen and Jacobs JJ agreed, said (at 91–2): If one claim in a log is so expressed as to be meaningless, either because it contains

contradictory demands which cannot be reconciled, or for any other reason, then the ambit of the dispute will not be extended by that claim. If it be the only claim in the log then … there can be no industrial dispute within the meaning of s 51(xxxv). It is otherwise if, in accordance with the liberal interpretation which should be given to industrial claims, a meaning can be assigned to the log, notwithstanding its inadequacies of expression.

Where the claims made are meaningful, but have no limits, a conciliator or arbitrator has no effective reference points for the prevention or settlement of the industrial dispute. In these circumstances it would be impossible to conciliate or arbitrate an award. A useful illustration of the ambit doctrine is provided by Australian Insurance Staffs’ Federation v Atlas Assurance Co (1931) 45 CLR 409. In 1927 the parties to this industrial dispute served each other logs of claims — the Federation’s log demanding, among other things, a minimum salary of £265 per annum for employees in their seventh year of service. The employers’ log claimed that the lesser sum of £220 be paid. After conciliation failed, the dispute was arbitrated and a sum of £225 was determined. In 1931 a number of employers bound by the award applied to the Commonwealth Court of Conciliation and Arbitration for variation of the award by way of a reduction of all wages by 10 per cent. The Federation opposed the application on the basis that the proposed reduction was outside the ambit of the dispute leading to the award, which was limited by the terms of the competing logs of claims. The court made an award granting the employers’ request and the Federation raised the question of the court’s constitutional competence to make the award. [page 305]

The High Court upheld the Federation’s argument (Rich, Dixon, Evatt and McTiernan JJ; Gavan Duffy CJ and Starke J dissenting). Evatt J referred, with approval, to the comments of Isaacs J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow (1910) 11 CLR 1 at 61 and said: There is nothing in the world to prevent employers or employees from making their claims as wide as they please; but when they choose to select one particular limited demand as the subject or point of dispute, and refer that to the court, then that is what the court has to decide. It may give anything between the maximum and the minimum limits of the dispute, but it can pass neither further forward than the maximum, nor further back than the minimum.

However, as was noted at 12.14, the High Court has rejected the view that the parties to an industrial relationship can make fanciful claims where to do so would involve a colourable attempt to attract the jurisdiction of the Australian Industrial Relations Commission. So, while an industrial disputant may make demands or claims which are very hopeful, it appears that the claims may not be so fanciful that they are no more than a bare claim for increased wages and conditions: see Re State Public Services Federation; Ex parte Attorney-General for the State of Western Australia (1993) 178 CLR 249.

‘Extending beyond the limits of any one State’ Refers to the dispute, not the industry 12.16 The object of s 51(xxxv) is ‘industrial disputes’ and it is the dispute, not the industry or the disputants, that must extend beyond the limits of any one state. In Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, Higgins J said (at 313–14) that: … the phraseology of sub-sec xxxv treats an industrial dispute as if it were an epidemic disease or fire. Of course each of the victims has a separate disease; and each blade of grass has its separate blaze. But there is such a connection between the various sufferers, or the various blades of grass, that it is not unusual or incorrect to speak of the disease, or of the fire as ‘extending’ or as ‘spreading’. So with an industrial dispute.

The ‘extension’ requirement 12.17 Section 51(xxxv) requires that the industrial dispute must extend beyond the limits of any one state. It is inaccurate to refer to this as a requirement of ‘interstateness’, although the requirement may be satisfied where a dispute extends from one state to another state. Under s 51(xxxv) it is only necessary that the dispute extend beyond the limits of any one state — the dispute may extend from a state to a territory or from a state to overseas: R v Foster; Ex parte Eastern and Australian Steamship Co (1959) 103 CLR 256. Accordingly, this requirement of s 51(xxxv) will be referred to as the ‘extension requirement’ rather than an ‘interstateness’ requirement. The extension requirement will usually be satisfied where a dispute has arisen between employers and employees where one or both of the following conditions are satisfied: first, the employees are in more than one state (or in one state and a territory, or in one state and overseas); second, the employers are in more [page 306] than one state (or in one state and a territory, or in one state and overseas). The extension requirement was considered in R v Commonwealth Court of Conciliation and Arbitration and Australian Builders’ Labourers’ Federation (Builders’ Labourers’ case) (1914) 18 CLR 224. Isaacs J said that the purpose of the requirement was to avert the national industrial disputes which characterised the 1890s, and said (at 243) that: The industrial disputes referred to in the Constitution are disputes which at the given moment are seen to possess, besides their industrial quality, a certain indispensable character of extent. They are industrial disputes which at the moment do in fact extend beyond the limits of any one State, that is, which cover Australian territory that is not confined to the limits of any one State. They may originate in one part or several parts

of the Commonwealth, just as a physical eruption may originate in one or several portions of the body and spread, or they may originate — as in the present case — by a synchronous growth all over the area affected [emphasis added].

This view was adopted by Dixon CJ in Lamshed v Lake (1958) 99 CLR 132 at 143. However, in the Builders’ Labourers’ case, Gavan Duffy and Rich JJ, with whom Powers J agreed, appeared to take a more restricted view in their joint judgment, requiring participants in more than one state (at 255): A dispute extends beyond the limits of any one State when it exists in more than one State, that is to say, extends over an area which embraces territory of more than one State. When persons engaged in industrial disputes, and living some in one State and some in another, join together to insist, and do insist, on the concession of common industrial conditions which are definitely and finally refused by those from whom they are demanded, the words of the sub-section are satisfied, and that is so here [emphasis added].

The territorial limits of the extension requirement were revisited in R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256. In that case, an industrial dispute arose between a shipping company and their employees relating to working conditions at sea and in port, including foreign ports. Dixon CJ, with whom Fullagar and Kitto JJ agreed (Taylor J gave similar reasons), said that such a dispute extended beyond the limits of any one state and so long as there was some connection between the dispute and a single state of the Commonwealth, s 51(xxxv) could extend to reach it: at 275. Federal registration 12.18 Satisfaction of the extension requirement is a formality in circumstances where the employee organisation is ‘federally registered’ — that is, it has been registered as a federal organisation under federal industrial relations law. In order to be federally registered an organisation must have members in at least one state. In Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 the High Court confirmed that it is incidental to s 51(xxxv) to

enable the Commonwealth to set up a register of federal unions, that is, unions with members in more than one state, therefore satisfying the extension requirement: see Higgins J at 321–2; and, on appeal, Griffith CJ at 337; Barton J at 343; O’Connor J at 353; Isaacs J at 376–8. Need for a ‘common purpose’ across state boundaries 12.19 An industrial dispute will not genuinely extend beyond the limits of any one state where the employees in the different states (or territories, or overseas) are not [page 307] united in their demands. This principle was enunciated in Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (No 1) (1930) 42 CLR 527. The case concerned an industrial dispute over wages which broke out in New South Wales after employers at a number of mines proposed to reduce wages. The outcome of the dispute was viewed with interest by employers and employees in other states, who expected that similar disputes, and perhaps outcomes, would arise in their states. During the dispute, the secretary of the employees’ organisation contacted branches in Queensland and New South Wales, and in response, workers in each of the three states stopped work. The question was raised whether the action of the workers in Queensland and Victoria was sufficient to create an industrial dispute extending beyond the limits of any one state. It was argued that the union branches in Queensland and Victoria did not share a common cause with their New South Wales counterparts, and their involvement in the dispute was merely a show of sympathy, and that in fact, there was no actual or probable interstate industrial dispute. Gavan Duffy, Rich, Starke and Dixon JJ said (at 554–6): … let it be assumed that the miners in Queensland and Victoria were strongly opposed

to any reduction of wages in New South Wales, not only upon principle, but because their own wages would be endangered by such a reduction, and that they were prepared to stop the production of coal in order to aid the general resistance to the attempt in New South Wales to lower wages. But how does all this make the lowering of wages a matter of dispute between miners and mine-owners in Queensland or Victoria? The closing of the mines in the northern district of New South Wales greatly increased the selling price of coal, and unless and until these mines resumed production at lower costs no one contemplated a reduction in Victoria or Queensland. … (it was) boldly argued that an inter-State dispute existed whenever men in two States combined for the common interest in resisting the demands made in one State. This contention cannot be sustained … This dispute in New South Wales did not extend to Victoria or Queensland.

A dispute must be a ‘genuinely’ interstate dispute 12.20 As with the ‘industrial dispute’ component of s 51(xxxv), it has been held that for s 51(xxxv) to operate the industrial dispute must genuinely extend beyond the limits of any one state: see 12.14. However, it is now settled that this requirement does not preclude cooperation among organisations in order to attract the jurisdiction of the federal industrial commission, even where the activities of the respective unions typically lie in one state: Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 352; Re Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 182.

Conciliation and arbitration What is ‘conciliation and arbitration’? 12.21 Section 51(xxxv) provides for two specific types of dispute resolution: conciliation and arbitration. In Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 358 Isaacs CJ defined conciliation as ‘the coming together of the parties for the discussion of questions with a view to amicable settlement’. In the same judgment, Isaacs CJ defined ‘arbitration’ as

[page 308] including ‘the settlement of the dispute by a tribunal which included disputing employers and disputing employees as well as an independent umpire’: at 356. Generally speaking, the two methods of dispute resolution can be distinguished in the following way: conciliation is characterised by the voluntary involvement of the parties, and arbitration is characterised by reference to the power of an independent and impartial umpire to determine the dispute where conciliation, or voluntary agreement, has failed: at 356–7. Conciliation and arbitration only bind the parties to a dispute 12.22 As discussed above, s 51(xxxv) provides the Commonwealth with a specific power that can only be exercised in specific circumstances — s 51(xxxv) is not a general power with respect to industrial relations in Australia. This point was stressed in Whybrow’s case (1910) 11 CLR 311. The case concerned the constitutional validity of a provision of the Commonwealth Conciliation and Arbitration Act 1904 which gave the Commonwealth Court of Conciliation and Arbitration a power to declare that an award should operate as a ‘common rule’ throughout an industry. It was argued that this was beyond the power described in s 51(xxxv), in particular, that the reference to ‘arbitration’ in the section limited the power to the settlement of definite disputes between definite parties. The High Court agreed. Barton J said (at 323): To empower the court to declare that any condition of employment, or the like, prescribed by its award shall be a common rule binding the whole industry and all engaged in it, is plainly to extend the authority of the court beyond the ambit of the dispute and to bind persons other than the disputants by the decisions of the court. This can by no means be considered in its nature incidental to the settlement of a dispute which only the disputants brought or could bring before the court. The award itself is the means prescribed for the settlement of the dispute as between the actual parties.

O’Connor J said (at 328–9): … the sub-section carries on the face of it one hard and fast limit to the exercise of the authority it confers. The power, whether it is to settle, or to prevent, industrial disputes, must be exercised by way of conciliation and arbitration, and can be exercised in no other way. One can have no mental conception of arbitration without parties in difference over some matter capable of … adjustment by an arbitrator. The exercise of an authority to impose conditions of employment upon employers and employees between whom there exist no such differences, even though it may be exercised by a standing arbitral tribunal, is not and cannot be an application of arbitral power.

Isaacs J emphasised that while s 51(xxxv) was to be given a plenary reading, the provision simply did not extend to enable general industrial regulation of the type envisaged: at 338–9. Higgins J remarked (at 342): … conciliation and arbitration are a means to an end — industrial peace; but they are the only means to that end provided by the Constitution; and any laws, to be valid under the power, must be directed to conciliation and arbitration. It is not enough for them to be directed to the prevention or settlement of industrial disputes; they must be directed to the particular method of prevention and settlement mentioned.

[page 309] This point was reinforced by the court (Latham CJ, Rich, Dixon, McTiernan and Webb JJ) in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 401: The power conferred upon the Commonwealth Parliament by this paragraph of the Constitution does not enable the Commonwealth Parliament to make laws with respect to industry or to industrial matters or to all industrial disputes, but only with respect to conciliation and arbitration for the prevention and settlement of certain industrial disputes, namely, industrial disputes extending beyond the limits of any one State. The laws cannot be laws simply for the prevention and settlement of such industrial disputes; they must be laws for the prevention and settlement thereof by means of conciliation and arbitration.

The Commonwealth Court of Conciliation and Arbitration could

not, for example, determine a ‘basic wage’ applicable to all unskilled workers in an industry, outside the terms of an award determination: at 402. The Whybrow principle was recently approved in Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [14], [50]. Qualifications to the Whybrow principle 12.23 While s 51(xxxv) provides no general power to regulate industrial relations, several subsequent decisions of the High Court have relaxed the Whybrow principle, considerably expanding award coverage beyond those parties who are actually in dispute at the time of the award determination. So, in Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528, it was confirmed that s 51(xxxv) would support awards binding employers who employed no unionised workers. Here, the Australian Theatrical and Amusement Employees’ Association (the Association), a federally-registered employee organisation, served a log of claims upon a number of employers in a number of states, including Burwood Cinema. Burwood Cinema argued that they were not in dispute with their employees, who were not members of the Association. A majority of the High Court (Isaacs, Powers, Rich and Starke JJ; Knox CJ and Gavan Duffy J dissenting) rejected this argument, confirming that valid awards made under s 51(xxxv) can extend to bind employers who do not employ union members. Isaacs J explained (at 541) that the purpose of s 51(xxxv) was to enable the Commonwealth ‘to settle national industrial disputes efficaciously, completely and justly’ through a uniform, national system of collective bargaining. This power was significant because it could remedy ‘an evil of the first magnitude — the disruption of industry beyond the limits of a State’. If the Commonwealth did not

enjoy the power to prevent and settle such disputes, this would produce inequalities, dissatisfaction, instability and ‘contribute materially to the disturbance of industrial peace’. Further, divergent state regulation might ‘accentuate inequalities and militate in a very practical way against the commercial freedom of interstate trade which the Constitution broadly declares’: at 536. If the purpose of s 51(xxxv) was to provide the Commonwealth with an effective means of resolving such disputes, then: The term ‘industrial disputes’ cannot by any possibility be limited to disputes between persons standing in the actual present contractual relation of employer and employee.

[page 310] Accordingly, s 51(xxxv) extended to employers who did not employ any members of the Association. Starke J took a similar approach. Section 51(xxxv) was to be construed as a power enabling the Commonwealth to regulate collective bargaining in industrial disputes extending beyond the limits of any one state. In this context, the employee organisation acts as a representative of a class of workers, including non-members. The employee association ‘is not a mere agent of its members: it stands in their place, and acts on their account and is a representative of the class associated together in the organisation’: at 551. Starke J explained (at 548–9): Industrial disputes are, as a rule, collective disputes … the existence of an industrial dispute does not depend upon the actual relation of employer and employee … between the participators in the dispute. It is equally clear that absolute definiteness of the individuals engaged in the dispute cannot be essential, for in industrial disputes, claims and demands are usually made for the benefit of ‘the ever changing body of workmen that constitute the trade’ (see Hudson’s case (1923) 32 CLR at 454). An industrial dispute is constituted, both historically and in point of fact, where a difference exists between workmen themselves, or perhaps between employers themselves, or between employers or classes of employers, and workmen engaged in

some common industry or calling, concerning industrial conditions affecting a class so engaged and not merely affecting individual and definite members thereof. An industrial relationship, and not a contractual relationship, is all that is necessary to constitute an industrial dispute. The nexus is to be found in the industry or in the calling or avocation in which the participators are engaged.

An award also binds the successors and assignees 12.24 This qualification to the Whybrow principle was recognised in George Hudson Ltd v Australian Timber Workers’ Union (1923) 32 CLR 413. An amendment to the federal Conciliation and Arbitration Act purported to bind not only the parties to an award but also ‘any successor, or any assignee or transmittee of the business of a party bound by the agreement, including any corporation which has acquired or taken over the business of such party’. George Hudson Limited challenged the constitutional validity of this amendment on the basis that it infringed the Whybrow principle, in that it purported to extend the coverage of an award authorised by s 51(xxxv) beyond the parties in dispute, and beyond s 51(xxxv). A majority of the court (Isaacs, Higgins and Starke JJ; Knox CJ and Gavan Duffy J dissenting) upheld the amendment. Isaacs J said that it would be ‘grossly unfair to employees’ to hold otherwise and that a successor to a business could properly be expected to know the statutory obligations of his or her predecessor to his or her employees: at 435–7. Higgins J upheld the provision on the basis that it was incidental to s 51(xxxv), and that there was a direct relationship between the disputants and their assignees, providing a basis for distinguishing the Whybrow principle: at 451. Starke J agreed with Isaacs J, saying that s 51(xxxv) extended ‘to the ever changing body of persons within the area’ of ‘industrial disputes’: at 455. Extension of award protection to non-union members 12.25 Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 confirmed that the Whybrow principle did not

exclude extension of award protection to non-union members. In Metal Trades, the Amalgamated [page 311] Engineering Union (AEU), which represented employees in a number of states, served a log of claims on the Metal Trades Employers’ Association (MTEA), including members of that association which employed no union members. The AEU argued that employers and employees were capable of having industrial disputes about the conditions of employment of non-union members, and correspondingly, the claims made were the proper subject matter of an award. The MTEA refused to accede to the demands in the log of claims on the basis that the arbitration power enabled the resolution of definite disputes between definite parties, that unions could not be said to be representative of non-union labour, and that to enable s 51(xxxv) to be interpreted in such a way as to extend award coverage to non-union members would be ‘tantamount to legislation in lieu of arbitration’: at 395. A majority of the court (Latham CJ, McTiernan, Rich and Evatt JJ; Starke and Dixon JJ dissenting) confirmed that award coverage may extend to the employment conditions of non-union labour. Latham CJ said that there was ‘no reason why’ a dispute ‘should not relate to the industrial relations between one set of disputants and third persons’, which could be a subject of legitimate interest to unionists (at 402). Rich and Evatt JJ (with whom McTiernan J agreed) said that unions have a ‘material interest’ in the employment conditions of non-union labour, and that it was in any case an ‘industrial matter’ which could be the subject matter of a dispute (at 418): In such case, the union has an equally direct concern in removing the obstacles to the employment of its own members and to the maintenance and protection of the union

standard wages, even although the removal of such obstacle by the granting of the demand will incidentally benefit persons, non-unionists, who are not parties to the dispute, but the terms of whose employment by their employers (parties to the dispute) is the subject matter of the industrial dispute [original emphasis].

12.26 The principle of ‘representation’ adopted by Starke J to explain the function of employee organisations in Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528 does not extend in the opposite direction — that is, where employers seek to bind non-union members to award conditions. This much seems clear from R v Graziers’ Association of New South Wales; Ex parte Australian Workers’ Union (1956) 96 CLR 317. In that case, the Graziers’ Association of New South Wales and other employers made such a demand on the Australian Workers Union. The court held by majority (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ; Taylor J dissenting) that a union does not represent people who are not and do not become members; rather, it represents ‘those who are members from time to time, present and future members’: per Dixon CJ, McTiernan and Kitto JJ at 323. Conciliation and arbitration for the prevention and settlement of industrial disputes 12.27 The power to resolve industrial disputes under s 51(xxxv) extends beyond their settlement to their prevention. The scope of the prevention aspect of s 51(xxxv) was considered by Mason CJ in Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311, who indicated that s 51(xxxv) might extend to enable the federal parliament ‘to legislate for the [page 312] prevention by conciliation and arbitration of industrial disputes which

fall short of being threatened, impending or probable’: at 320. Deane J went further, saying (at 328): If the Constitution means what it says when it confers a broad power to make laws with respect to conciliation and arbitration for the prevention of interstate industrial disputes in the abstract, it is far from evident either that there is any constitutional need to make the manufacture of an interstate dispute, whether paper or real, a condition of the exercise of jurisdiction conferred pursuant to that grant of legislative power or that it would not suffice for constitutional purposes if, eg, the grant of jurisdiction to an expert tribunal such as the [Australian Industrial Relations] Commission were merely conditioned upon the opinion of the tribunal that circumstances exist in which the tribunal’s conciliation and arbitration procedures may be conducive to the prevention of interstate industrial disputes.

The suggestion that the reference to ‘prevention’ in s 51(xxxv) may eliminate the need for an actual industrial dispute to activate the jurisdiction of an institution set up for the purposes of conciliating and arbitrating industrial disagreements was picked up by Gaudron and Gummow JJ in Attorney-General (Qld) v Riordan (1997) 192 CLR 1 at 30: If s 51(xxxv) is viewed by reference to its component parts, it is arguable that that aspect concerned with settlement of disputes only permits of laws for the conciliation and arbitration of actual disputes. However, even on that approach, its preventive aspect clearly extends to authorise laws conferring powers of conciliation and arbitration if the Commission considers that an interstate dispute is otherwise likely to occur.

In Re Pacific Coal Pty Ltd; Ex parte CFMEU (2000) 203 CLR 346 it was argued that an ‘award simplification law’ that excluded a range of matters that could be determined under the conciliation and arbitration scheme, and imposed a sunset clause on all existing awards that dealt with such matters, was unconstitutional because it was not a law ‘for the prevention and settlement of industrial disputes’ etc (emphasis added), and therefore could not be characterised as a law within s 51(xxxv): at 374 per Gaudron J; 390 per McHugh J; 440 per Kirby J. However, this view was rejected by the majority of the court. As Gummow and Hayne JJ explained, if all the awards that had

previously been done under the laws were valid under s 51(xxxv), then awards that restricted the ambit of any bargains made would also fall within the power (at 416): Here, the rights … which are changed … are some of those which were (previously) given by the Parliament … The effect of the changes may be very large, and may even be classified by some as unjust. But neither the size of that effect, nor any qualitative description of it, means that some other rights or duties are properly identified as having been the subject of legislative change.

The Commonwealth Parliament has the power to make laws restricting the range of matters that can be conciliated and arbitrated, and to that end, power to impose ‘sunset clauses’ prohibiting awards from operating after a specified point in time: at 359 per Gleeson CJ; at 419 per Gummow and Hayne JJ, with whom Callinan J agreed at 450. [page 313]

Characterisation 12.28 As discussed previously, the question whether a law is supported by a federal constitutional power depends in part on the characterisation of the federal law. Typically, a test of sufficiency of connection is applied — if a law is sufficiently connected to a power or powers invoked to support it, it will be said to be a law ‘with respect to’ the subject matter of the power. In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 Mason CJ said: The ascertainment of what is the main purpose or object of a particular power may in some cases be a matter of some difficulty. But in the case of s 51(xxxv) no such difficulty arises. The main, if not the sole, purpose or object of the power is the prevention and settlement of interstate industrial disputes and the sole means of achieving that object is by means of conciliation and arbitration [references omitted].

Nationwide News Pty Ltd v Wills concerned the validity of a provision of federal industrial relations legislation which made it an

offence to use words calculated to bring a member of the Australian Industrial Relations Commission into disrepute. A majority of the High Court held that the provision was unconstitutional on the basis that it was not appropriate and adapted to achieving the purpose of s 51(xxxv) — the curtailment of freedom of speech contemplated by the provision was disproportionate to the purpose of s 51(xxxv), and could not be regarded as incidental to the power or the workings of the commission. Deane and Toohey JJ said (at 68): Given that the legislative power conferred by s 51(xxxv) extends to the establishment of the Commission and the conferral upon it of its core powers and functions, it extends, if construed in isolation, to the making of laws conferring upon the Commission whatever powers and immunities are reasonably capable of being seen as appropriate and adapted to enabling or advancing the effective performance of those functions.

12.29 However, as noted at 12.27, the requirement that a law be ‘for the prevention and settlement of industrial disputes’ (emphasis added) does not prevent the parliament from enacting a law limiting the range of matters that could be conciliated and arbitrated by a federal industrial commission: Re Pacific Coal Pty Ltd; Ex parte CFMEU (2000) 203 CLR 346. A law of this nature could be characterised as operating on or affecting the subject matter of the power: at 411–12 per Gummow and Hayne JJ, with whom Callinan J agreed at 450. The law simply altered the legal effect to be given to awards: at 360 per Gleeson CJ.

[page 315]

Chapter Thirteen

The Federal Executive Power under the Constitution Introduction 13.1

Section 61 of the Constitution provides:

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) of the Constitution provides: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

13.2 Section 61 is one of the Commonwealth’s most obscure powers. First, artificial terms are used in s 61 to ‘extend’ power to the Commonwealth to execute and ‘maintain’ the Constitution. Second, doubts remain as to the nature and ambit of common law executive powers. Third, recent jurisprudence has displaced long-term assumptions about the common law ‘capacities’ of the Crown (in this context, the Commonwealth’s ability to enter into contracts and spend public moneys was abridged in Williams v Commonwealth (No 1) (2012)

248 CLR 156). 13.3 The executive power and provisions for executive government more generally are situated in Ch II of the Constitution. Chapter II is quite short in length, comprising a meagre 10 sections, commencing with the executive power at s 61. The remainder of Ch II almost exclusively involves the constitutionally mandated features of executive government, which is the focus of the first part of this chapter. Following this, the chapter examines the executive power of the Commonwealth; that is, the Commonwealth’s power to execute and maintain the Constitution and the laws of the Commonwealth (s 61), and the ambit of its legislative power to make laws incidental to those ends (s 51(xxxix)). It is relevant in the course of this analysis to explore the traditional common law (or ‘prerogative’) powers and immunities of the Crown, which were subsumed within s 61 at Federation, as well as the related powers that the Commonwealth enjoys by virtue of its legal personality (‘capacities’). The chapter also considers the (related) jurisprudence of [page 316] ‘nationhood’ that has, in particular, developed around Mason J’s observation in Victoria v Commonwealth and Hayden (Australian Assistance Plan (AAP) case) (1975) 134 CLR 338 at 397 that: … there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss 51(xxxix) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.

The executive The Crown, the Queen and the Governor-General

13.4 Australia is a constitutional monarchy. Notwithstanding the overview of Australia’s system of government provided at 1.14–1.16, it is important to consider in more detail the underpinnings of executive government in Australia. A suitable starting point is the notion of ‘the Crown’. ‘The Crown’ was defined at 1.14 as a term that refers, in a formal sense, to the Queen and her representatives, including the Governor-Governor of the Commonwealth and the Governors of the states. This represents ‘the Crown’ at the apex of the federal system. However ‘the Crown’ is an abstract expression; it has several meanings. In Sue v Hill (1999) 199 CLR 462 at 497–502, Gleeson CJ, Gummow and Hayne JJ held that ‘the Crown’ had five discernible usages: (1) an expression to identify the body politic (‘the State’ represented as a collectively organised group of citizens); (2) the body politic with recognised international personality (for example, the ability to enter into treaties); (3) a term to identify ‘the Government’; (4) to describe the autonomy of political institutions, with the Constitution regarding the Commonwealth and states as distinct legal persons; and (5) in reference to ‘the Queen’ in provisions of the Constitution and to Her Majesty’s ‘heirs and successors’ (see covering cl 2). Despite the handful of variations, the term often refers to ‘the Crown’ in the third sense mentioned; that is, the executive government ‘as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business’: at 499. As discussed at 13.8–13.9, the executive government includes a collection of individuals and institutions that are either constitutionally prescribed (for example, Ministers of State and Departments of State) or exist through convention (for example, Cabinet). Also relevant here is the fourth meaning of ‘the Crown’ as identified by the majority in Sue v Hill. Implicit in the passage is the presumption that executive governments are entities capable of enjoying rights and accruing liabilities under statute (for example, to sue and be sued) and the common law (for

example, the prerogative right over royal mines). Distinct legal personality exists at both the Commonwealth and state level, with the federal executive government referred to as the ‘Crown in right of the Commonwealth’ and the ‘Crown in right of’ each of the six Australian states. 13.5 It is evident that the ‘the Crown’ in the fifth context outlined above refers to the current monarch Elizabeth the Second, described in the Royal Style and Titles Act 1973 as ‘Queen of Australia and Her other Realms and Territories’: see s 2(1). Although the Queen is Australia’s Head of State her executive powers are largely removed. The bulk of her powers are instead exercised by her representatives, [page 317] the Governor-General of Australia (s 2 of the Constitution) and the Governors of the states (see s 7(2) of the Australia Act 1986 (Cth)). Only limited exceptions exist. For example, s 59 of the Constitution permits the Queen to disallow any law within one year from the time the Governor-General has given royal assent (this has never been exercised). An exception at the state level is the power conferred by s 7(4) of the Australia Act. When personally present in a state, the Queen is allowed to exercise, unencumbered, her powers in respect of that state. The more common exception is the Queen’s executive power to appoint (and dismiss) the Governor-General (s 2 of the Constitution) and state Governors (see s 7(3) of the Australia Act). Convention dictates that the appointment of a Governor-General follows advice from the Prime Minister of Australia. This has taken place since the appointment of Sir Isaac Isaacs (on the advice of the Scullin Government) in 1930. It also follows that similar advice would be required to remove a Governor-General, likely in the event of

incapacity or misconduct. In 2003, Peter Hollingworth resigned from the office of Governor-General (on the basis that he had failed to take action over allegations of child abuse while he was the Archbishop of Brisbane in the 1990s) before any action was taken. 13.6 Although executive power is formally vested in the Queen, it is exercisable by the Governor-General as her representative: s 61. Despite the extensive powers that the Governor-General apparently possesses, s 2 of the Constitution states that ‘such powers and functions’ are ‘subject to this Constitution’. This may be taken to mean, inter alia, the Governor-General must (leaving to one side the ‘reserve powers’ to which reference will be made momentarily) act on the advice of the executive government (in this context, the political party which constitutes the majority in the House of Representatives) as the ‘Governor-General in Council’: s 63. This section, as well as ss 62 and 64, truncates the capacity of the Governor-General to exercise executive power independently. Section 64 refers to Ministers of State who are members of the Federal Executive Council, the institution mandated to advise the Governor-General (defined at 13.8). The role is therefore primarily ceremonial. The Governor-General formally exercises executive power, but it is exercised dependently (in truth on the advice of the Prime Minister). Non-executive powers of the Governor-General include: dissolving, proroguing and summoning parliament (s 5), issuing writs for new elections (s 32), dissolving the Houses in the event of deadlock (s 57), giving assent to bills (s 58), appointing federal judges (s 72) and submitting a proposed change to the Constitution to the people at a referendum (s 128). A notable executive power vested in the Governor-General is that of Commandin-Chief of the military forces: s 68. Custom dictates, however, that this role merely entails duties such as attending military parades and appointing chiefs and commissioned officers of the armed services. As such, the Governor General’s role as Command-in-Chief is ‘titular’

only. This point was made by Gageler J in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 620: ‘That ultimate command is in practice exercised by Ministers appointed by the Governor-General under s 64 of the Constitution and in particular, by those Ministers who collectively form the National Security Committee of Cabinet.’ 13.7 The so-called ‘reserve powers’ refer to those rare powers the Governor-General may exercise without advice. Rare as these are, they are worth recounting [page 318] for present purposes. Some of these powers overlap with those mentioned in 13.6. The Governor-General may or may not, for example, dissolve the parliament on the advice of the Prime Minister. Given the textual boundaries of s 57, this would likely extend to legislative deadlocks. History books would also suggest, based on the precedent set by Lord Northcote in 1904, that a Governor-General can refuse advice from the Prime Minister to dissolve the lower house in order to effectuate an election. The best-known ‘reserve power’ is the power to dismiss a Prime Minister. The central tenet of responsible government is that the executive is responsible to the legislature (being the House of Representatives). Provided the Prime Minister maintains the support of the House (that is, has not lost the confidence of the House, expressed in a vote, and refused to resign), the Governor-General should not dismiss the Prime Minister. The 1975 constitutional crisis provides the exception to the rule. It is described at 1.16–1.17 and requires no factual elaboration here. Prime Minister Whitlam retained the support of his colleagues in the lower house, but the reality that the country was facing an impending financial crisis

because the Senate was refusing to pass appropriations legislation is said to have prompted Sir John Kerr, remarkably, with the advice of Chief Justice Barwick, to reach the conclusion that a failure to secure supply through both Houses justified the withdrawal of Whitlam’s commission. Thus, convention was dispensed with and Kerr dismissed the Whitlam Government, putatively exercising power afforded by s 64 of the Constitution (‘shall hold office during the pleasure of the Governor-General’). Malcolm Fraser was installed as ‘caretaker Prime Minister’; the supply bills were passed and a double dissolution initiated. The constitutionality of Kerr’s decision is still debated to this day. This is understandable in light of Geoffrey Marshall’s claim that ‘dismissal would be appropriate if a government, by illegal or unconstitutional administrative action, were to violate some basic convention of constitutional behavior’ (1984, p 27). A better example might be the dismissal of the Lang Government in 1932. Sir Philip Game, Governor of New South Wales, formed the view that the government’s refusal to pay overdue debts to the Commonwealth (in breach of statute) constituted illegal behaviour. For a thorough discussion of the protracted affair, see Hanks (1994, pp 333–4). What animated Lang’s dismissal was the handbill he circulated to public servants instructing them to deliberately contravene the federal law (and proclamation) by not releasing taxes that were collected by the New South Wales Government to the Commonwealth. It is relevant to note that despite Game’s confidence that Lang acted illegally, the dismissal was effected before the legality of Lang’s actions could be tested in court. Institutions of the Commonwealth Executive 13.8 The eminent constitutional scholar PH Lane once noted that ss 62–64 are ‘interlocked’, ‘one section leading to the other, and the

sections as a whole building into the principle of responsible government’ (1997, p 444): … s 62 gives to or foists on — the Executive, in the form of the Governor-General, Executive Councillors; s 63 is a bare definition section; s 64 authorises the GovernorGeneral to appoint Ministers of State but, under s 64, these must come from the Executive Councillors and — and this is the rub — these Ministers-cum-Councillors, again under s 64, must sit in Parliament, presumably to be accountable there.

[page 319] Section 62 states that there ‘shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth’. This is a misleading provision. A literal reading of s 62 suggests that the Governor-General and Federal Executive Council are the power players of executive government. However, the Executive Council is as much a creature of convention as the office of Governor-General. The body operates simply to convey the views of Cabinet to the vice-regal ‘in-council’. According to the 2015 Federal Executive Council Handbook, meetings of the Council are held every two weeks, with a quorum consisting of the Governor-General and two executive councillors (or Vice-President of the Executive Council and two councillors in the Governor-General’s absence). Most meetings take place with the minimum number of two councillors. Meetings are summoned either by the Governor-General or VicePresident of the Executive Council. The business of the Council operates thus: the agenda is purely formal, involving the ‘presentation of a recommendation, in the form of a minute, that the GovernorGeneral in Council take some action. The Governor-General marks the minute “approved” and signs it’: Halsburys Laws of Australia, Constitutional Law, [90-2440]). The Executive Council functions as a formal institution to ratify decisions made by Cabinet; the body which in truth enjoys substantive executive power. Yet Cabinet is not

officially recognised in the Constitution; it is a creature of convention, as is too the office of Prime Minister. ‘Conventions’ are unwritten rules, understandings or habits which illuminate constitutional practice. In FAI Insurances Ltd v Winneke (1982) 151 CLR 342, Murphy J said: ‘The Cabinet, which has no place in the formal Constitution, is a committee of Ministers of the ruling parliamentary party or parties’: at 373. It is in Cabinet that the highest decisions of policy affecting the government of the nation are made: Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 15 FCR 274. It consists of an inner group of ministers who advise the Prime Minister. 13.9 Ministers of State, the decisive part of executive government, are members of the Federal Executive Council and may also be members of Cabinet. It is helpful to imagine it this way: Ministers of State (pursuant to s 64) must be members of the Executive Council. However, not all ministers are members of Cabinet. Only senior Executive Council members sit in the Cabinet. At the time of writing, the Australian Cabinet comprises 23 ministers. By contrast, the current ministry is comprised of 42 members (including the outer ministry and assistant ministers). Ministers of State in s 64 are appointed to ‘administer’ federal departments. All ministers must therefore have at least a portfolio representing the minister’s area of responsibility, whether it be foreign affairs, health, the environment, trade, etc. Section 64 imposes the restriction that no minister shall hold office for a period of longer than three months unless he or she is or becomes a member of either House of Parliament. This three-month grace period allowed John Gorton to be elected Prime Minister while serving as a senator until he contested (and won) the by-election in Harold Holt’s seat of Higgins, following Holt’s apparent drowning in 1967. Prime Ministers in Australia, by convention, are to be drawn from the House of Representatives. Also integral to executive government are departments and public

servants. Public servants (civil servants) are mentioned in s 67, only in relation to their appointment and removal, which vests in the Governor-General ‘in Council’. As it is impractical for the GovernorGeneral to exercise this power (given the size of [page 320] the public service), the words ‘unless the appointment (or removal) is delegated by the Governor-General in Council or by a law of the Commonwealth to some authority’ take on added significance. Generally a statute will authorise these powers to be delegated to others (under an instrument of delegation). Apart from s 64 (relating mainly to the function of ministers but also the power of the Governor-General to establish them), departments are only discussed in further detail (and only in the context of state departments) in ss 69, 84 and 85, whereby a state may transfer certain departments to the Commonwealth. For consideration of the executive in the states, see Halsburys Laws of Australia: Constitutional Law, [90-2450]–[90-2480].

Executive power of the Commonwealth 13.10 The expression ‘executive power of the Commonwealth’ refers to federal executive power, not executive power belonging to the states. Executive power reserved to the states is vested in the Governors of the states: Quick and Garran (1901, p 701). Section 61 says little about the scope of executive power. However, High Court decisions have confirmed that the words ‘execution and maintenance of the Constitution, and of the laws of the Commonwealth’ extend to the following matters:

•

the execution and maintenance of Commonwealth laws;

•

the execution and maintenance of the Constitution;

•

the common law prerogative powers and, as the case may be, other non-statutory executive powers ‘inherent’ to s 61;

•

a nationhood power to be deduced from the existence and character of the Commonwealth as a national government; and

•

the non-prerogative capacities of the Crown. Each of these matters will now be considered in turn.

The execution and maintenance of Commonwealth laws 13.11 This aspect of s 61 was described by Williams J in Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 230 as ‘the doing and the protection and safeguarding of something authorized by some law of the Commonwealth made under the Constitution’ (emphasis added). This is the most common limb of s 61. It refers to the day-today execution and maintenance of federal laws by government departments and agencies. The Australian Taxation Office, for instance, administers statutes for taxes, superannuation and excise to ensure that citizens and businesses comply with their legal obligations. With respect to taxpayers, the Federal Commissioner of Taxation is allowed to issue garnishee notices, freeze bank accounts and bankrupt individuals. Another example relates to legal restrictions on the reproduction of coin images and designs, administered by the Royal Australian Mint. Furthermore, the Department of Immigration and Border Protection is responsible for administering immigration, citizenship and border protection laws. The Australian Border Force, the enforcement arm of the department, carries out investigations and immigration detention centre

[page 321] operations. There are dozens of government departments and agencies authorised to execute and maintain the laws of the Commonwealth. 13.12 The preceding paragraph relates to laws made by parliament authorising executive action in the ordinary sense. It may be the case that Williams J’s reading of the limb also involves the execution of Commonwealth laws via executive act; meaning parliament may confer limited powers on members of the executive. The Governor-General (or another responsible person) may be provided with statutory authority to enact binding sub-laws, including regulations, rules and proclamations. Sub-laws are often known as subordinate legislation or legislative instruments. For instance, it was reported in mid-2015 that the Commissioner of Taxation would be given statutory power to modify the operation of taxation and superannuation laws, without the need for the parliament to make necessary amendments, if there were unforeseen or unintended outcomes in the way the laws operated: in other words, to stop individuals rorting the tax system. The Commissioner of Taxation could, as an example, make a ‘disallowable legislative instrument’ (that is, a type of sub-law that is tabled and open to parliamentary veto or disallowance for a set period, usually 15 days) to stop some taxpayers from directing company profits through self-managed superannuation funds. 13.13 Sub-laws of the type described in the example above are governed by the Legislative Instruments Act 2003 (Cth). Section 5(1) of the Act defines a legislative instrument as an instrument in writing that is of a legislative character and that is or was made in the exercise of a power delegated by the parliament. To constitute a ‘legislative character’, the sub-law should determine the law or alter the content

of the law and either affect privileges or interests, impose obligations, create rights or vary or remove obligations or rights: s 5(2). There are two basic rules with respect to legislative delegations: (1) the power to make a legislative instrument is found in an enabling Act (and in some cases, a legislative instrument); and (2) the enabling Act must specify who has authority to make the legislative instrument. As indicated in the above paragraph, the Governor-General has (at least historically) exercised delegated law-making power, usually in the form of regulations. However, other executive members are increasingly being vested with delegated power, whether this is the Prime Minister, a minister or a responsible person authorised to make an instrument. It is generally accepted that sub-delegation of legislative power may be valid, but the sub-delegation should be expressly recognised in the enabling Act. 13.14 As for the extent to which the parliament can grant legislative power to the Executive, the leading High Court case on this point — Victorian Stevedoring and General Contracting Co Ltd v Dignan (1931) 46 CLR 73 — is particularly instructive. In this case, s 3 of the Transport Workers Act 1928–1929 (the enabling Act) stated: The Governor-General may make regulations not inconsistent with this Act, which, notwithstanding anything in any other Act but subject to [Acts Interpretation Acts], shall have the force of law, with respect to the employment of transport workers, and in particular for regulating the engagement, service, and discharge of transport workers, and the licensing of persons as transport workers, and for regulating or prohibiting the employment of unlicensed persons as transport workers, and for the protection of transport workers.

[page 322] Acting pursuant to s 3, the Governor-General (on the advice of the Executive Council) created certain offences under the Waterside Employment Regulations. Of relevance in this case was the offence of

giving priority in employment for work as a waterside worker to a person not being a member of the Waterside Workers Federation of Australia or a returned solider or sailor as defined in the regulations: reg 1(3). Dignan, an inspector, laid a charge against Victorian Stevedoring and General Contracting Co Ltd for contravening the regulation. The company was alleged to have given ‘priority in picking up for work as a waterside worker’ to Aubrey Campbell, a person who was neither a member of the Waterside Workers Federation of Australia nor a returned soldier or sailor within the meaning of the regulations: at 83 per Gavan Duffy CJ and Starke J. 13.15 It is obvious on the facts that s 3 constituted a broad conferral of power, so much that the Governor-General was unencumbered in any exercise of law-making power. In other words, he had complete discretion to make any law with respect to the employment of transport workers. Such width had received traction in the High Court cases of Farey v Burvett (1916) 21 CLR 433 and Roche v Kronheimer (1921) 29 CLR 329; cases that assumed that the Governor-General had broad regulation-making powers. However, the extent of legislative delegation to the Executive was specifically challenged in Dignan. Victorian Stevedoring argued that the delegation was constitutionally invalid on the grounds it infringed the doctrine of the separation of powers. This argument was rejected by Dixon J (at 101–2): The interpretation by this Court of Chapter III of the Constitution and that of Chapters I and II which has now been adopted in view of Roche v Kronheimer, may appear to involve an inconsistency or, at least, an asymmetry, and there are not wanting those who think a course of judicial decision no sufficient warrant for anything so unsatisfactory. But the explanation should be sought not in a want of uniformity in the application to the different organs of government of the consequences of the division of powers among them, but in the ascertainment of the nature of the power which that division prevents the Legislature from handing over. It may be acknowledged that the manner in which the Constitution accomplished the separation of powers does logically or theoretically make the Parliament the exclusive repository of the legislative power of the Commonwealth. The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception of that legislative power which

depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law. In English law much weight has been given to the dependence of subordinate legislation for its efficacy, not only on the enactment, but upon the continuing operation of the statute by which it is so authorized. The statute is conceived to be the source of obligation and the expression of the continuing will of the Legislature. Minor consequences of such a doctrine are found in the rule that offences against subordinate regulation are offences against the statute (Willingale v Norris) and the rule that upon the repeal of the statute, the regulation fails (Watson v Winch). Major consequences are suggested by the emphasis laid in Powell’s Case and in Hodge’s Case upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands. After the long history of parliamentary delegation in Britain and the British colonies, it may be right to treat subordinate legislation which remains under parliamentary control as lacking the independent and unqualified authority which is an attribute of true legislative power, at any rate when there has been an attempt to confer any very general legislative capacity.

[page 323] The assertion by Dixon J that a strict division between the legislature and executive would produce impractical outcomes was similarly echoed by Evatt J (at 117–19): It is very difficult to maintain the view that the Commonwealth Parliament has no power, in the exercise of its legislative power, to vest executive or other authorities with some power to pass regulations, statutory rules, and by-laws which, when passed, shall have full force and effect. Unless the legislative power of the Parliament extends this far, effective government would be impossible … In my opinion every grant by the Commonwealth Parliament of authority to make rules and regulations, whether the grantee is the Executive Government or some other authority, is itself a grant of legislative power. The true nature and quality of the legislative power of the Commonwealth Parliament involves, as part of its content, power to confer law-making powers upon authorities other than Parliament itself. If such power to issue binding commands may lawfully be granted by Parliament to the executive or other agencies, an increase in the extent of such power cannot of itself invalidate the grant. It is true that the extent of the power granted will often be a very material circumstance in the examination of the validity of the legislation conferring the grant. But this is for a reason quite different and distinct from the absolute restriction upon parliamentary action which is supposed to result from the theory of separation of powers.

Evatt J subsequently considered (at 120–1) the limits arising from the power of delegation. There are three important determinations: (1) consistency between the federal law and the regulations (that is, compatibility); (2) connection of the regulations (and the federal law) to a Commonwealth head of power (that is, characterisation); and (3) whether parliament abdicated its powers of legislation to the executive (that is, abdication). The first determination involves assessing whether the sub-law (in this case the regulation) retains ‘the character of a law with respect to the subject-matter dealt with in the statute’: at 121. This ordinarily follows an assessment of the second determination, however given the factual relevance of this question, it may be pertinent to first ascertain whether the rule-maker acted consistently with the grant of power in the statute. Second, it is crucial to identify the scope and extent of the law-making power conferred; for as Evatt J observed: ‘the greater the extent of law-maker power conferred, the less likely is it that the enactment will be a law with respect to any subject matter assigned to the Commonwealth Parliament’: at 120. He continued his enquiry (at 121): The fact that the regulations made by the subordinate authority are themselves laws with respect to a subject matter enumerated in secs 51 and 52, does not conclude the question whether the statute or enactment of the Commonwealth Parliament conferring power is valid. A regulation will not bind as a Commonwealth law unless both it and the statute conferring power to regulate are laws with respect to a subject matter enumerated in sec 51 or 52. As a rule, no doubt, the regulation will answer the required description, if the statute conferring power to regulate is valid, and the regulation is not inconsistent with such statute.

Accordingly, both the enabling Act and the sub-law must be characterised as a law ‘with respect to’ (to quote the preamble in s 51) a federal head of power. The rules regarding characterisation of Commonwealth laws are discussed in Chapter 2. The third determination is arguably the most crucial: parliament cannot abdicate its law-making power to the executive. Law-making is as inherent to the

[page 324] legislature as judicial power is to the courts and executive power to the executive; it therefore follows that parliament lacks the competence to abdicate its core function. As Evatt J said (at 121): On final analysis therefore, the Parliament of the Commonwealth is not competent to ‘abdicate’ its powers of legislation. This is not because Parliament is bound to perform any or all of its legislative powers or functions, for it may elect not to do so; and not because the doctrine of separation of powers prevents Parliament from granting authority to other bodies to make laws or by-laws and thereby exercise legislative power, for it does so in almost every statute; but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the Constitution. A law by which Parliament gave all its law-making authority to another body would be bad merely because it would fail to pass the test last mentioned.

Evatt J’s reasoning, although circuitous, is nevertheless sound. The rule against abdication was restated four years later in Crowe v Commonwealth (1935) 53 CLR 69; that parliament cannot set up a ‘law making body in substitution for Parliament as for the purpose of giving … full and complete executive control’ (at 94 per Evatt and McTiernan JJ). It was also championed by Barwick CJ in Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365 at 373: ‘No doubt whilst Parliament may delegate legislative power it may not abdicate it’. Barring the limits outlined earlier, the court was prepared in Giris to uphold the validity of s 99A of the Income Tax Assessment Act 1936 (Cth), a provision which conferred power on the Commissioner of Taxation to apply a different method of assessing the tax payable by the trustee of an estate. The very fact that parliament retains power to ‘disallow’ legislative instruments is a good sign that it has not abdicated power. It is important to assess the specific terms of the enabling statute. Although the law may delegate extensive lawmaking powers, it should still retain the capacity to control the use of that power. As such, the law should not only have the authority to

‘disallow’ certain sub-laws, it should also retain the capacity to expressly recall the delegated power.

The ‘execution’ of the Constitution 13.16 The words ‘execution of this Constitution’ were interpreted by Williams J in Australian Communist Party v Commonwealth (1951) 83 CLR 1 as meaning ‘the doing of something immediately prescribed or authorized by the Constitution without the intervention of Federal legislation’: at 230. If the previous limb was the most common, this aspect of s 61 is the most straightforward. It refers to the execution of executive powers without the requirement for legislative authorisation. Put another way, authorisation to carry out specific functions is found in the Constitution itself, thus removing the need for legislative sanction. The Constitution contains some provisions conferring powers directly upon the Executive. The Governor-General is furnished with power to summon, prorogue and dissolve parliament (s 5); to dissolve the Senate and House of Representatives simultaneously in the event of a deadlock between the Houses following a joint sitting convened by the Governor-General (s 57); and to appoint and remove Ch III judges, the latter following an address from both Houses of Parliament in the same [page 325] session praying for removal on the ground of proved misbehavior or incapacity (see s 72(i) and (ii)). Furthermore, ministers are given the power to administer government departments: s 64. Interestingly (but hardly surprising), certain powers are also vested in the executive government of the Commonwealth. This includes the collection and control of customs and excise duties, and of payment of bounties (s

86); accepting territory surrendered by a state (s 111); and protection of states from invasion and (where the state requests assistance) from domestic violence: s 119.

The ‘maintenance’ of the Constitution 13.17 Of the three textual limbs of s 61, this is the most difficult to demarcate. In Australian Communist Party v Commonwealth (1951) 83 CLR 1 Williams J defined this aspect as (and note the subtle change of wording) the ‘protection and safeguarding of something immediately prescribed or authorized by the Constitution without the intervention of Federal legislation’: at 230 (emphasis added). Peter Gerangelos recently described this limb as ‘elusive’ (2015, p 433). It plainly authorises the executive government to protect Australia from invasion and subversion, in ‘which power in any event would come within the prerogative powers relating to war, defence and foreign relations’. This view has its genesis in the twin cases of Burns v Ransley (1949) 79 CLR 101 and R v Sharkey (1949) 79 CLR 121 (see 13.27: the two cases clearly fall within the ‘maintenance’ limb of s 61). However, problems arise when one tries to identify definitional properties that lie beyond the prerogatives or the core functions of the limb. For simplicity, ‘core functions’ may be described as emergencies which threaten ‘the very existence of the Commonwealth, its Constitution and its system of government’: Gerangelos, 2015, p 434. Part of the reason why there is difficulty ascertaining the scope of the ‘maintenance’ limb has a lot to do with the generality of s 61. As Isaacs J remarked in Commonwealth v Colonial Combing, Spinning & Weaving Co Ltd (Wooltops case) (1922) 31 CLR 421 at 437, s 61 ‘marks the external boundaries of the Commonwealth executive power, so far as that is conferred by the Constitution, but it leaves entirely untouched the definition of that power and its ascertainment in any given instance’.

The ‘maintenance’ aspect of s 61 went virtually unexplored until Professor George Winterton’s important book, Parliament, the Executive and the Governor-General (1983). In this seminal study of the executive, Winterton explained that this clause is problematic because ‘it is unclear whether it should be interpreted merely as a verbal peg on which to hang the prerogative, that is, as the language of the section justifying the incorporation of the prerogative, or whether it actually confers some statutory power in its own right’: at pp 31–2. The ‘vague and amorphous’ nature of the limb presented problems for Winterton; for one, a ‘power to protect or maintain the Constitution … may, especially in troubled times, authorize the executive to do almost anything’: at p 32. One of his concerns centres on the idea of powers that extend beyond the prerogatives, which could greatly add depth to federal executive power. He is, of course, referring to the ‘national power’ (that is, the nationhood power). The notion that the ‘maintenance’ limb could authorise such power is controversial; not so much because s 61 can be coupled with the incidental power (s 51(xxxix)) to protect the nation (in the event of internal [page 326] insurrection like sedition or subversion), but because additional legislative power may derive ‘from the character and status of the Commonwealth as a national polity’: Victoria v Commonwealth and Hayden (AAP case) (1975) 134 CLR 338 at 396 per Mason J. If this premise is to be accepted, the ambit of the ‘maintenance’ limb inflates beyond its traditional sphere to protect and safeguard (either in the presence or absence of federal legislation): it may also be used to enact laws to benefit or advance the nation, functions within the remit of the Commonwealth as the national government. In this context, executive power is not situated within the parameters of s 61 (or even ss 61 and

51(xxxix)); it manifests as an implied legislative power. The implied nationhood power is problematic for at least two reasons. First, the Commonwealth is permitted to exceed the legislative constraints prescribed in ss 51 and 52 of the Constitution. Second, accepting that such a power embodies the ‘positive’ aspect of ‘nationhood’ arguably contradicts the original intention of the clause. The scope of the limb is no longer confined to powers exercised by the executive government in cases of national emergency to protect and safeguard the Constitution. 13.18 Having traversed (albeit briefly) the three textual limbs of s 61, it becomes apparent that each limb is either an exercise of statutory or non-statutory executive power. ‘Statutory executive power’ incorporates the power of the Executive to do things authorised or prescribed by the Constitution (‘execution’ of the Constitution), or to execute laws or implement sub-laws made or authorised by the parliament (to execute and maintain the ‘laws of the Commonwealth’). By contrast, ‘non-statutory executive power’ refers to the power of the executive government to ‘maintain’ the Constitution. This effectively means that the executive government has the power to do certain things without legislative authorisation (the exception to this being the implied legislative nationhood power introduced in the previous paragraph). As Winterton stated in his book, ‘most of the federal executive power not derived from legislation consists of the executive power implied in, but not defined in s 61: the exercise of the executive prerogatives’ (1983, p 31). There has been some line of thought in recent years, based on the judgment of French J (as his Honour then was) in Ruddock v Vadarlis (Tampa case) (2001) 110 FCR 491, that some other kind of non-statutory executive power (apart from the common law prerogatives) might reside in s 61. For example, it is possible that s 61 gives rise to an ‘inherent’ nonstatutory power to prevent the entry of unauthorised aliens (that is,

non-citizens) into Australia. The power was inherent to s 61 because the Commonwealth lacked statutory authority to board the foreign ship, detain the asylum-seekers and forcibly remove them from Australian territorial waters. Instead, this power was to be found in the ‘maintenance’ limb of s 61. The Commonwealth’s ability to detain and expel asylum seekers is explored below. 13.19 The decision of the Full Federal Court in Ruddock v Vadarlis (Tampa case) (2001) 110 FCR 491 provides a useful introduction to the concept of non-statutory executive power under the Constitution. On 26 August 2001, the MV Tampa, a Norwegian cargo ship, rescued 438 Afghans from a distressed fishing vessel in international waters. The rescuees wanted passage to Christmas Island, an Australian Territory. The Australian Government refused the Tampa entry into Australian waters and directed them to disembark elsewhere. The Captain of the [page 327] Tampa, Arne Rinnan, under insistence from a delegation of the rescued Afghans, repeatedly requested permission to dock at Christmas Island. He reported that many of the asylum seekers were unwell and that the ship was unseaworthy and could not sail elsewhere with so many passengers. The Australian Government provided medical assistance and food but continued to refuse permission for the ship to enter Australian territorial waters. Captain Rinnan declared a state of emergency and proceeded to enter Australian territorial waters without permission. The Australian Government responded by dispatching Australian troops to board the ship and prevent it from moving any closer to Christmas Island. The Australian Government was seeking to stop any of the asylum seekers from applying for asylum, which the asylum seekers could legally do

as soon as they entered Australian territory. The Australian troops instructed Captain Rinnan to move the ship back into international waters; he refused, claiming that the ship was unsafe to sail until the asylum seekers had been offloaded. The Norwegian Government warned the Australian Government not to seek to force the ship to return to international waters against the captain’s will. The Australian Government unsuccessfully tried to persuade both Indonesia and Norway to accept the asylum seekers. Norway reported Australia to the United Nations, the United Nations High Commissioner for Refugees, and the International Maritime Organisation for failure to obey its duties under international law. Eventually, the refugees from the Tampa were loaded onto a Royal Australian Navy vessel (HMAS Manoora), and most were transported to Nauru for processing as part of the so-called ‘Pacific Solution’ (as to which, see Blay, Burn and Keyzer, 2007). Others were diverted to New Zealand where they were granted asylum. Following unsuccessful attempts to communicate with the rescuees, a solicitor named Vadarlis and the Victorian Council for Civil Liberties Inc filed separate proceedings against the Commonwealth, three of its ministers, and a departmental officer seeking, amongst other things, orders in the nature of habeas corpus. On the first day of proceedings, it was announced that the Australian Government had arranged for the rescuees to be transferred to New Zealand and Nauru for initial processing and determination as to whether they were entitled to protection as refugees. The Federal Court held that the rescuees were detained aboard the vessel by the Government’s acts, without lawful authority, and made orders for the release of the rescuees onto the Australian mainland. The government respondents appealed to the Full Federal Court. Beaumont and French JJ (Black CJ dissenting) held that an incident of non-statutory executive power was the power to expel aliens. The

Commonwealth did not need statutory authority to prevent their entry into Australia. Accordingly, the actions of the Commonwealth were lawful. French J (with whom Beaumont J agreed) gave the following account of the Commonwealth’s executive power: The Executive Power of the Commonwealth — Source and General Character 176 … Section 61 is the primary source of executive power. Its content extends to the execution and maintenance of the Constitution and the laws of the Commonwealth. It is also limited by those terms in so far as it will not authorise the Commonwealth [page 328] to act inconsistently with the distribution of powers and the limits on power for which the Constitution provides. Nor will it authorise the Commonwealth to act otherwise than according to the laws of the Commonwealth. Other provisions of the Constitution vesting powers in the Governor-General may be seen as distinct sources of executive power on their specific topics and as giving content to the power conferred by s 61 … … 178 The modern relationship of the power to the prerogatives of the Crown was stated by Mason J in Barton v Commonwealth (1974) 131 CLR 477 at 498: The Constitution established the Commonwealth of Australia as a political entity and brought it into existence as a member of the community of nations. The Constitution conferred upon the Commonwealth power with respect to external affairs and, subject perhaps to the Statute of Westminster 1931 and the Balfour Declaration, entrusted to it the responsibility for the conduct of the relationships between Australia and other members of the community of nations, including the conduct of diplomatic negotiations between Australia and other countries. By s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law. 179 The use of the ‘prerogative’ to describe such a power may properly acknowledge its historical antecedents but not adequately illuminate its origins in s 61 of the Constitution. For it is s 61 that ‘… confers on the Commonwealth all the prerogative

powers of the Crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution and those denied by the Constitution itself.’ — Davis v Commonwealth (1988) 166 CLR 79 at 93 (Mason CJ, Deane and Gaudron JJ) citing The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (‘the Wooltops case’) (1922) 31 CLR 421 at 437–439. As Gummow J said in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 369: In Australia … one looks not to the content of the prerogative in Britain, but rather to s 61 of the Constitution, by which the executive power of the Commonwealth was vested in the Crown. 180 The ‘spheres of responsibility vested in the Crown by the Constitution’ and referred to by Mason J in Barton were described in Davis as ‘… derived from the distribution of legislative powers effected by the Constitution itself and from the character and status of the Commonwealth as a national polity’ (at 93). In like vein Brennan J agreed generally with the observation of Jacobs J in Victoria v Commonwealth and Hayden (the AAP case) (1975) 134 CLR 338 at 406 that the phrase ‘maintenance of the Constitution’ imports the idea of Australia as a nation. Jacobs J said in the AAP case: Within the words ‘maintenance of this Constitution’ appearing in s 61 lies the idea of Australia as a nation within itself and in its relationship with the external world, a nation governed by a system of law in which the powers of government are divided between a government representative of all the people of Australia and a number of governments each representative of the people of the various States. [page 329] Brennan J saw the phrase as assigning to the Executive government functions relating ‘not only to the institutions of government but more generally to the protection and advancement of the Australian nation’ — referring to Burns v Ransley (1949) 79 CLR 101 at 109–110 and Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 187– 188 … … 183 The Executive power of the Commonwealth under s 61 cannot be treated as a species of the royal prerogative, ‘The residue of a discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown’ — De Keyser at 526. While the Executive power may derive some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government reflected in Chs I, II and III of the Constitution and, as to legislative powers, between the polities that comprise the federation. The power is subject, not only to the

limitations as to subject matter that flow directly from the Constitution but also to the laws of the Commonwealth made under it. There is no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the Executive power in respect of that subject matter. The operation of the law upon the power is a matter of construction … 186 English courts have long recognised the general proposition of international law that: … the supreme power of every state has a right to make laws for the exclusion or expulsion of a foreigner … — In Re Adam (1837) 1 Moo PCC 460; 12 ER 889.

French J identified a number of key themes in the jurisprudence of executive power. The first is that the executive government can exercise some powers and engage in activities that are not the subject of legislative enactment. These include common law prerogative powers and the non-prerogative capacities of the Crown: see 13.21–13.26 and 13.33–13.38 respectively. The second is that the executive power of the Commonwealth is limited to the distribution of the powers within the Constitution amongst the Commonwealth and the states. The third is that, regardless of whether there is a prerogative power to detain and expel aliens, the Commonwealth’s non-statutory executive power in this case authorised the detention and removal of the Afghan refugees. This illustrates the depth of the Commonwealth’s non-statutory executive power. The interesting part of French J’s rationale is that the exclusion of the asylum seekers was seemingly justified on the grounds of ‘nationhood’. Consider especially [180]: ‘the phrase “maintenance of this Constitution” imports the idea of Australia as a nation … relating not only to the institutions of government but more generally to the protection and advancement of the Australian nation’. The fact that this type of nonstatutory executive power was held not to be a species of the prerogative (see [183]) suggests that there may be a non-statutory executive nationhood power (for example, to detain and expel aliens without legislative authorisation), as well as an implied legislative

nationhood power (for example, federal legislation enacted to commemorate the Australian bicentenary: see Davis v Commonwealth (1988) 166 CLR 79). It is salient to make the distinction. The contours of the non-statutory nationhood power have yet to be explored, other than it might apply to exclude friendly aliens. Although the Tampa case was a decision of the Full Federal Court, the High Court has also accepted that s 61 contains ‘inherent’ powers (that is, to act without legislative authorisation) which [page 330] extend beyond the common law prerogatives. In Pape v Commonwealth (2009) 239 CLR 1, French CJ (echoing his views in the Tampa case) said (at 60): Section 61 is an important element of a written constitution for the government of an independent nation. While history and the common law inform its content, it is not a locked display cabinet in a constitutional museum. It is not limited to statutory powers and the prerogative. It has to be capable of serving the proper purposes of a national government.

The plurality of Gummow, Crennan and Bell JJ also confirmed that non-statutory executive powers may exist independent of the prerogative (at 83): The conduct of the executive branch of government includes, but involves much more than, enjoyment of the benefit of those preferences, immunities and exceptions which are denied to the citizen and are commonly identified with ‘the prerogative’; the executive power of the Commonwealth enables the undertaking of action appropriate to the position of the Commonwealth as a polity created by the Constitution and having regard to the spheres of responsibility vested in it [emphasis added].

13.20 It is now appropriate to consider the executive power in light of two recent cases involving asylum seekers intercepted at sea while trying to enter Australia. In CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 the plaintiff (CPFC, a Sri Lankan Tamil)

and 156 other passengers were on board a vessel which had left India destined for Christmas Island. However, the vessel was intercepted by an Australian border protection patrol boat in Australia’s contiguous zone, a maritime zone adjacent to the 12 nautical mile territorial sea. The contiguous zone extends 12–24 nautical miles from the landward side of the baseline. In this zone Australia is able to enforce laws with respect to customs and immigration: see Seas and Submerged Lands Act 1973 (Cth). The Indian vessel and its occupants were detained by maritime officers of the Commonwealth. After a fire in its engine room which left the vessel unseaworthy, the 153 asylum seekers were transferred to the Australian patrol boat whereupon it set sail towards India. The decision to board the Indian vessel to remove the asylum seekers was made by the National Security Committee of Cabinet. At this time there was no agreement with India for the return of the asylum seekers and the two nations could not come to an agreement within a reasonable timeframe. The patrol boat was then instructed to sail to the Cocos (Keeling) Islands (an Australian territory) upon which the asylum seekers were taken into immigration detention. In total, the asylum seekers were detained at sea for 27 days. CPCF commenced proceedings in the original jurisdiction of the High Court claiming that his detention on the Australian boat was unlawful and seeking damages for wrongful imprisonment. In defending the proceeding, the Commonwealth contended that s 72(4) of the Maritime Powers Act 2013 (Cth) authorised the plaintiff’s detention. Section 72(4) provides that a maritime officer may detain a person and take the person to a place outside Australia on a vessel or aircraft. A majority of the High Court (4:3) held that the detention was lawful under statute: at 528–9 per French CJ; at 582–3, 587 per Crennan J; at 630 per Gageler J; at 656 per Keane J. Section 72(4) authorised a maritime officer to hold a person (CPCF) on a ‘detained vessel’ for the purpose of taking the person to a place outside

Australia (India). The Commonwealth’s alternative argument, that CPCF’s detention was authorised by the non-statutory [page 331] executive power of the Commonwealth, was unnecessary to determine: at 539 per French CJ; at 587 per Crennan J; at 630 per Gageler J; at 647 per Keane J. However, five justices made obiter remarks about the potential applicability of the power. French CJ, adopting a similar course to his decision in Ruddock v Vadarlis (Tampa case) (2001) 110 FCR 491, stated that ‘the content of the executive power may be said to extend beyond the prerogative powers, appropriate to the Commonwealth, accorded to the Crown by the common law. It does not follow that the prerogative content comprehensively defines the limits of the aspects of executive power to which it relates’: at 538. French CJ otherwise refused to be drawn on whether s 61 ‘would have authorised the actions taken by the Commonwealth in this case’: at 539. Keane J was more willing to countenance that the non-statutory executive power excluded the asylum seekers in this case. Accepting the leading judgment of French J in Tampa, Keane J said (at 648–9): 482 More recently, in Ruddock v Vadarlis French J (as his Honour then was) said [at 193]: ‘the Executive power of the Commonwealth, absent statutory extinguishment or abridgment, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion. This does not involve any conclusion about whether the Executive would, in the absence of statutory authority, have a power to expel non-citizens other than as an incident of the power to exclude. The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of a nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australian community, from entering’.

… 483 That power was ‘sufficient to authorise the barring of entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result’: Ruddock v Vadarlis (2001 110 FCR 491 at [197]. That the position is different in relation to non-citizens who are actually within Australia, as stated in Chu Kheng Lim v Minister for Immigration, does not suggest that Ruddock v Vadarlis was wrongly decided. … 484 … Given that it is clear that the executive power extends thus far, recognition that it extends to the compulsory removal from Australia’s contiguous zone of non-citizens who would otherwise enter Australia contrary to the Migration Act can hardly be controversial.

In contrast, Kiefel J rejected the argument that the Commonwealth had a non-statutory executive power to detain and expel non-citizens. Her Honour firstly discounted that such a power could be linked to ‘nationhood’ (as French J implied in Tampa). Kiefel J interpreted ‘nationhood’ narrowly (as did Hayne and Bell JJ at 565–6, arguing that it is only ‘capable of responding to events such as a national emergency. This case does not involve such a power, nor those powers relevant to conditions of war or the protection of Australia as a nation’: at 596. Having dispensed with considerations of ‘nationhood’, Kiefel J then turned her attention to whether prerogative powers are capable of authorising the Executive to exclude noncitizens. Preferring the dissenting judgment of Black CJ in Tampa, Kiefel J found that irrespective of whether there was a prerogative power to exclude and detain [page 332] aliens, statutes now provide for that power and ‘any Commonwealth executive power may in those circumstances be considered lost or displaced’: at 600. According to Kiefel J (with whom Hayne and Bell JJ agree on this point (at 567–8), Chu Kheng Lim v Minister for

Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 is authority for the premise that ‘a statute is required to authorise and enforce the detention by the Commonwealth Executive of aliens for the purpose of expulsion. Where conferred by statute, the power of the Commonwealth Executive to detain takes its character from the legislative powers to exclude and deport aliens [primarily the aliens power (s 51(xix))], of which it is an incident’: at 599. This means that the executive’s authority to detain and expel aliens is derived from the parliament, not the prerogative: at 600–1 per Kiefel J. The cumulative effect of the judgments of Kiefel J and Hayne and Bell JJ is to cast some doubt on the efficacy of the non-statutory executive ‘nationhood’ power (as envisaged by French J in Tampa) to prevent the entry of non-citizens into Australia. Given the importance of the issue, the exact contours of this power will have to be conclusively determined by the High Court at a later time. In the most recent case involving the executive power, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, the High Court considered the constitutionality of the Commonwealth’s offshore processing scheme. The case was brought by a Bangladeshi national who contested the validity of her detention at the Nauru Regional Processing Centre. Offshore processing functions in the following way: a person intercepted at sea is declared to be an ‘unauthorised maritime arrival’ as defined by s 5AA of the Migration Act 1958 (Cth) and steps are taken by the Australian Government (on the person’s behalf) to apply to the Nauru Government for a regional processing visa. Once the visa is granted, the person is sent to Nauru and placed in the Regional Processing Centre. Section 198AHA of the Migration Act authorises the Commonwealth’s participation, to the extent that the Commonwealth participated, in relation to the regional processing functions of a country. Nauru is classified as a ‘regional processing country’ under s

198AB(1) of the Migration Act (meaning Nauru determines an asylum seeker’s application for refugee status). There were two sets of agreements that informed the extent of Australia’s participation in the regional processing functions of Nauru. On 3 August 2013, the Australian and Nauru governments entered into an arrangement (the second Memorandum of Understanding (MOU)) relating to persons who have travelled irregularly by sea to Australia or have been intercepted by Australian authorities in the course of trying to reach Australia by irregular maritime means. Clause 9 of the MOU also stated that ‘persons to be transferred to Nauru are those persons who are authorised by Australian law to be transferred to Nauru’. Subsequent to the second MOU, the Commonwealth entered into a contract with Transfield to provide garrison and welfare services at the Centre. At this time the Commonwealth did not have the statutory authority to effect the arrangements made between the Commonwealth and Nauru by the second MOU. Implementing the arrangements contemplated by the second MOU only followed in statute in June 2015 after parliament enacted the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth), which added s 198AHA to the Migration Act. Presumably the reason why s 198AHA was enacted was to ward off a Williams-style challenge. In Williams v Commonwealth [page 333] (No 1) (2012) 248 CLR 156 the High Court invalidated a scheme which authorised the spending of money without statutory authorisation. It is important then that s 198AHA provided the necessary authority for the Commonwealth to contract with Transfield and to undertake further administrative arrangements with Nauru: see especially s 198AHA(2) which authorises the Commonwealth to take action or make

payments in relation to the arrangement or regional processing functions of a country. While in Australia receiving medical treatment the plaintiff brought proceedings in the original jurisdiction of the High Court seeking a declaration that the conduct of the Commonwealth was unlawful on account that such conduct was not authorised by a valid law of the Commonwealth. Of the 14 special questions put to the High Court, Questions 2A and 2B related to the constitutional validity of Australia’s role in the offshore processing scheme: Question (2a): Was the conduct of the Commonwealth in signing the Memorandum of Understanding authorised by s 61 of the Constitution? Question (2b): Was the conduct of the Commonwealth in giving effect to that arrangement authorised by a valid law of the Commonwealth?

The High Court answered both questions in the affirmative. As for Question 2B, s 198AHA of the Migration Act was declared to be a valid law of the Commonwealth. Giving effect to the second MOU, by funding and participating in the scheme, was supported by s 198AHA. The arrangement entered into by the Commonwealth with Nauru for the offshore processing of asylum seekers was supported by s 51(xix) of the Constitution (at [42] per French CJ, Kiefel and Nettle JJ; at [76]–[77] per Bell J; at [182] per Gageler J; at [259] per Keane J) or s 51(xxix) of the Constitution (at [182] per Gageler J; at [404]–[405] per Gordon J). All members of the court with the exception of Gordon J decided that s 198AHA did not infringe the principle against executive detention in Chu Kheng Lim (see Chapter 19). As Brennan CJ, Deane and Dawson JJ said in that case, ‘the involuntary detention of a citizen in custody is by the State is penal punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’: at 27. It was not breached because the Commonwealth had not physically participated in the plaintiff’s

detention. For French CJ, Kiefel and Nettle JJ (at [41]), Lim ‘does not refer more generally to a “concept of ‘authorise or enforce’ detention” which extends to a situation in which the detention is “not actually implemented” by the Commonwealth and its officers’. According to their Honours, ‘it is very much to the point that the restrictions applied to the plaintiff are to be regarded as the independent exercise of sovereign legislative and executive power by Nauru’: at [34]. Although Gordon J found that s 198AHA was prima facie supported by the external affairs power, the fact that it was inconsistent with Lim made it invalid. Gordon J held that the plaintiff was detained by the Commonwealth on Nauru: at [276]. Her Honour accepted the plaintiff’s argument that the detention had been ‘funded, authorised, caused, procured and effectively controlled by, and was at the will of, the Commonwealth’: at [352]. The list of reasons for this finding is provided at [353]. Since the plaintiff’s detention was authorised by s 198AHA of the Migration Act, it was unnecessary to decide whether the Commonwealth was otherwise ‘authorised [page 334] by s 61 of the Constitution, or as a matter of the non-statutory executive power, to participate in Nauru’s detention of the plaintiff’: at [41] per French CJ, Kiefel and Nettle JJ; see also at [66] per Bell J; at [265] per Keane J. Two justices, however, remarked that the executive power does not authorise the executive to detain persons in the absence of statutory authority: at [162] per Gageler J; at [372] per Gordon J. The issue of whether (and if so, the extent to which) the Commonwealth Government has a non-statutory executive power to detain and exclude non-citizens (and by extension the efficacy of the

Tampa decision) will have to wait for another day. Of more direct significance to this discussion is the second MOU entered into by the Australian and Nauru Governments that paved the way for the Commonwealth to give effect to the offshore processing arrangement (Question (2a)). The MOU was authorised by s 61 of the Constitution as part of the Commonwealth’s non-statutory prerogative power to establish relations with other countries. The joint judgment (French CJ, Kiefel and Nettle JJ) only gave the issue cursory examination. So did Bell J, except to say that ‘each Memorandum of Understanding was entered into in the exercise of the non-statutory executive power of the Commonwealth to establish relations with other countries’: at [68]; see also at [201] per Keane J. Gageler J similarly stated that ‘entering into the Second Memorandum of Understanding was not itself an act which falls within the scope of the authority retrospectively conferred by the section, but rather involved the exercise by the Executive Government of its non-statutory prerogative capacity to conduct relations with other countries’: at [178]. Making international agreements is one of the most basic prerogative powers belonging to the executive government (see below at 13.22).

Prerogative powers Definition and categorisation of prerogatives 13.21 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 recently re-confirmed that the negotiation and entry into international agreements is an executive prerogative relating to the Commonwealth’s external or foreign affairs. ‘Prerogatives’ refer to the common law powers of the Crown which are not ‘nonprerogative capacities’. The main difference between ‘prerogatives’ and ‘capacities’ is that while ‘capacities’ are functions carried on by

the government which it also shares with ordinary citizens by virtue of its legal personality (that is, the government has the same capacity as ordinary individuals to enter into contracts, acquire and dispose of property, etc), ‘prerogatives’ are special powers uniquely inherent to the executive which cannot be performed by any other entity. Having distinguished ‘prerogatives’ and ‘capacities’, it is now important to define the prerogative. There have been numerous definitions of the prerogative. In his 1924 doctoral thesis (published in 1987 as The Royal Prerogative), HV Evatt (later Justice Evatt) provided at least half a dozen definitions. Of these, there are three worth exploring. Writing in 1690, John Locke was one of the first to propose a definition of the prerogative (in his Second Treatise of Government). It was ‘a power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it’. He continued (Chapter XIV, s 160): [page 335] for since in some governments the lawmaking power is not always in being and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public … therefore there is latitude left to the executive power, to do many things of choice which the laws do not prescribe.

The eminent jurist William Blackstone adopted the crux of Locke’s argument: that government’s must be able to act outside the instruction of statute in cases of national exigency. He therefore argued that the prerogative ‘was the discretionary power of acting for the public good, where the positive laws are silent’: Commentaries on the Laws of England, 1827, pp 187–8. Earlier, in his Law of the Constitution (1959), Blackstone had given his famous definition of the prerogative (at p 180):

… [the] special preeminence which the King hath over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. It signifies, in its etymology something that is required or demanded before, or in preference to, all others … [it follows] that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects.

AV Dicey, on the other hand, considered the prerogative to be the ‘residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown‘ (1959, p 424). Blackstone’s definition is preferred for two reasons: (1) he makes the distinction between ‘prerogatives’ and ‘capacities’, while Dicey does not; and (2) it is not readily obvious from Dicey’s definition that the prerogative is part of the common law. The essential characteristic of prerogatives, according to Jacob Fajgenbaum and Peter Hanks (1972, p 49) is that they are ‘special powers and privileges exercisable by the Crown independent of any statutory grant: those prerogatives which the Crown may exercise today are remnants of English absolute monarchy — of the autocratic position of the medieval Crown’. One of the novel aspects of HV Evatt’s thesis is that he placed the prerogatives into three distinct categories (1987, pp 30–1): executive prerogatives, immunities and preferences and proprietary rights. First, executive prerogatives are understood to be international or domestic acts of state like the power to execute treaties, declare war, make peace, coin money, pardon offenders, confer honours and incorporate companies by royal charter. Immunities and preferences confer privileges or priorities to the Crown which are not otherwise enjoyed by others. Subject to statutory abrogation or modification, such immunities and preferences include: the priority of Crown debts over those owed to other creditors and immunity from the ordinary process of the courts. Finally, proprietary rights include the rights to: escheats (reverting of property to the Crown should a person decease without an heir), gold and silver mines, treasure trove, royal fish, ownership of the foreshores and the

bed of the ocean within territorial limits, and ownership of lands in a new colony: at p 31. Evatt J elaborated on his taxonomy of prerogatives in Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (1940) 63 CLR 278 (at 320–1): In the first place, there are many royal prerogatives by virtue of which the King or his representative … is entitled to act, e.g., to declare war, to make peace.

[page 336] Such prerogatives may be said to be executive in character, and, for want of a better phrase, they may be described as ‘executive prerogatives’. In the second place, the Crown is, by virtue of its common-law prerogatives, entitled to the benefit of certain preferences, immunities and exceptions which are denied to the subject. Illustration of such prerogatives are the right of the King to be paid by a debtor before all other creditors, and the rule that the King is immune from the processes of his courts. In the third place, there are certain royal prerogatives which partake of the nature of property, e.g., the right to escheats, the prerogative right in relation to royal metals, the right to treasure trove, the ownership of the foreshore and of the bed of the ocean within territorial limits. This third group may be described as constituting the proprietary rights of the King enjoyed by virtue of the prerogative.

Before proceeding to some of the Commonwealth’s major executive prerogatives it is worth noting the general distribution of prerogative powers between the Commonwealth and the states. In Parliament, the Executive and the Governor-General (1983, p 49) Professor Winterton conveniently made the following statement: The proprietary prerogatives were inherited by the Australian colonies and, except insofar as the Constitution transferred them to the Commonwealth, they remain with the States; the preferences and immunities are inherent in the very concept of ‘the Crown’, so both the Commonwealth and the States have inherited these; and the executive prerogatives have been divided between the Commonwealth and the States according to the division of legislative power between them.

This appraisal accords with HV Evatt’s conception of the prerogative. To take up Winterton’s last point, whether the

Commonwealth is entitled to exercise an executive prerogative depends on whether that prerogative power corresponds to a head Commonwealth legislative power. Take the two executive prerogatives of declaring war and entering into treaties. Although s 51(vi) is a concurrent power, ss 114 and 119 effectively make it ‘special’. Defence matters (including those during wartime) are therefore matters for the Commonwealth and not the states. As for the making of treaties, international affairs is plainly a subject matter that falls within s 51(xxix). It follows that similar prerogatives, such as appointing diplomats and requesting the extradition of fugitives, are exercisable by the Commonwealth. In this regard, it is also significant that the states lack international personality. On the other hand, the power to conduct inquiries resides with both the Commonwealth and the states. As demonstrated at 13.22, defence and foreign affairs are the Commonwealth’s two most robust executive prerogatives. 13.22 Prerogative powers were inherited by the Australian colonies prior to federation: Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195. There was some debate in the years after federation as to the precise extent to which the English common law prerogatives were imported into the federal system, especially the powers that were received by the Commonwealth and those remaindered to the states. It was hinted in R v Kidman (1915) 20 CLR 425 at 445 (per Isaacs J) that the prerogative powers were implicitly recognised in the Constitution. However, it was not until Farey v Burvett (1916) 21 CLR 433 that the executive prerogatives of the Commonwealth were expressly recognised. These executive prerogatives are incorporated in s 61 of the Constitution. For example, the Commonwealth enjoys a number of prerogative powers in relation to defence, including the power to declare war or peace: Farey v Burvett at 452 per Isaacs J; [page 337]

Marks v Commonwealth (1964) 111 CLR 549 at 564 per Windeyer J. It has also been suggested that the Commonwealth might enjoy a prerogative power to expropriate property for the purposes of defence exempt from any requirement of just terms under s 51(xxxi) of the Constitution (Johnston Fear & Kingham v Commonwealth (1943) 67 CLR 314 at 318 (see 11.3)); however, this would be unlikely outside of wartime, and perhaps then only in the event of an emergency. In City of Essendon v Criterion Theatres Ltd (1947) 74 CLR 1 at 18 Dixon J said that land used by the Commonwealth for defence purposes was immune from the operation of state taxes by virtue of the Commonwealth’s prerogative power to defend Australia (that case was also resolved pursuant to s 114 of the Constitution). The defence prerogative is very wide. For example, it may enable the regulation of prices charged for bread in local areas, even though local price control has typically been regarded as an area of legislation left to the states by virtue of the implicit restriction on s 51(i) that the Commonwealth cannot directly regulate intrastate trade and commerce: Farey v Burvett (1916) 21 CLR 433. In that case, Isaacs J said (at 452): These provisions carry with them the royal war prerogative, and all that the common law of England includes in that prerogative so far as it is applicable to Australia … The full extent of the prerogative … is certainly great in relation to the national emergency which calls for its exercise …

However, as Isaacs J indicated later in the judgment (at 453): Actual defence, and all that it connotes, comes only when we are at war. War creates its own necessities, proportioned to the circumstances, and not measurable in advance of the occasion; and defence is only complete when it meets those necessities, whatever they may prove to be. While peace prevails, the normal facts of national life take their respective places in general alignment, and are subject to the normal action of constitutional powers. Precedence as to their regulation is governed by recognized usage or expressed enactment, but always with reference to normal conditions.

A most significant executive power of the Commonwealth is the power to engage in international affairs. The appointment of

diplomats is one example. In R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 643–4 Latham CJ said: Australia was established as a new political entity and Australia was to be given control of her own external affairs. Under s 61 of the Constitution the Executive Government of the Commonwealth can deal administratively with the external affairs of the Commonwealth … The execution and maintenance of the Constitution, particularly when considered in relation to other countries, involves … the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane. The most obvious and striking example of such action is to be found in the negotiation and making of treaties with foreign countries.

In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 the second MOU was entered into in the exercise of the Commonwealth’s prerogative power to establish relations with Nauru (see 13.20). The conduct of foreign affairs generally, including entry into and execution of treaty obligations, and diplomatic matters, is part of the prerogative power of the [page 338] Crown: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 193, 215, 237, 249–50. The prerogative power with respect to international affairs also extends to enable the Executive to request the extradition of fugitives where there is no extradition treaty in place with the relevant country: Barton v Commonwealth (1974) 131 CLR 477 at 488, 498–9, 508; Oates v Attorney-General (Cth) (2003) 214 CLR 496; see also Vasiljkovic v Commonwealth (2006) 227 CLR 416. The executive also enjoys a number of prerogative powers relating to legal matters. At common law, the executive enjoyed power to conduct inquiries: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 378 per O’Connor J; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 31–4 per Kirby J

(dissenting) and references there cited. Reviewability of prerogative powers 13.23 The reviewability of the prerogative was considered in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] 4 All ER 1055, which concerned the British Indian Ocean Territory (‘BIOT’, also referred to as the Chagos Islands), located about halfway between Africa and Indonesia, south of the equator and about 1600 km south-west of the southern tip of India. The Chagossians were a community of about 1000 people, with their own distinctive dialect. After the 1962 Cuban missile crisis, the United States sought an Indian Ocean-based site for a military base. The United Kingdom and the United States entered into an agreement to establish a base on Diego Garcia, the largest (44 sq km) and most southerly island in BIOT. Acting under what the House of Lords held (by majority) were prerogative powers, the United Kingdom Government made a 1965 Order-in-Council giving a commissioner power to make laws for the peace, order and good government of the territory. In 1967, the United Kingdom bought all of the land in the archipelago, and between 1969 and 1973 the BIOT population was exiled to Mauritius and Seychelles. The House of Lords was invited to consider whether the expulsion of the Chagossians from BIOT was lawful. Lord Bingham made the following remarks in his judgment about the prerogative: 69 … The royal prerogative, according to Dicey’s famous definition (An Introduction to the Study of the Law of the Constitution (8th ed, 1915, p 420)), is ‘the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’. It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398E. Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged (British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, 79E). As an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival. When

the existence or effect of the royal prerogative is in question the courts must conduct an historical inquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. ‘If it is law, it will be found in our books. If it is not to be found there, it is not law’: Entick v Carrington (1765) 19 St Tr 1030, 1066. Such an inquiry was carried out by the Court of Appeal ([1919] 2 Ch 197) and the House ([1920] AC 508, 524–528, 538–539, 552–554, 563, 573) in Attorney-General v De Keyser’s Royal Hotel Limited. In Burmah Oil Company (Burma Trading) Limited v Lord Advocate [1965] AC 75, 101, Lord Reid said: [page 339] The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?

13.24 Some exercises of executive power have been regarded to be unreviewable by the courts. For example, the Attorney-General has ‘standing’ in every constitutional law case (see 20.2). An AttorneyGeneral can enable a person who does not have standing to obtain access to constitutional justice. The device is called a ‘relator action’. But the Attorney-General’s decision not to grant the standing right is referred to as a ‘fiat’ — it is unreviewable: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 218, 220. Similarly, the decision of an Attorney-General to enter an ex officio indictment and a nolle prosequi in criminal proceedings is non-justiciable: Barton v The Queen (1980) 147 CLR 75. Modification of prerogative powers 13.25 Because the prerogative powers emanated from the common law, they may be removed by legislation: Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372. French J (as his Honour then was) identified the principles to be applied in determining whether the prerogative has been displaced in Ruddock v Vadarlis (Tampa case) (2001) 110 FCR 491 (considered further at 13.19 above): The Executive Power of the Commonwealth — Subject to Parliamentary Control

181 The executive power can be abrogated, modified or regulated by laws of the Commonwealth. Its common law ancestor, the Royal Prerogative, was similarly subject to abrogation, modification or regulation by statute. As Lord Denning observed in Laker Airways Ltd v Department of Trade [1977] 1 QB 643 at 705, it was described by Blackstone, drawing on Locke’s True End of Civil Government, as: … the discretionary power of acting in the public good where the positive laws are silent. Lord Denning himself described it as ‘… a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision …’ …

French J held that the question whether a prerogative power under s 61 is displaced by statute involves a question of construction: 185 The executive power of the Commonwealth covers a wide range of matters, some of greater importance than others. Some are intimately connected to Australia’s status as an independent, sovereign nation State … The greater the significance of a particular executive power to national sovereignty, the less likely it is that, absent clear words or inescapable implication, the parliament would have intended to extinguish the power. In such a case close scrutiny will be required of any contention that a statute, without express words to that effect, has displaced the operation of the executive power by virtue of ‘covering the field’ of the subject matter …

13.26 It is evident from French J’s judgment that the prerogative may be modified or extinguished by statute. Regulation or displacement of the prerogative, however, requires express words or necessary implication to that effect. Only then does the executive no longer derive its ‘authority from Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the [page 340] subject’: Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 at 575–6 per Lord Parmoor.

Professor George Winterton adds that only rarely is the prerogative abrogated by express words. Whether or not parliament has ousted the prerogative will depend, in his view, ‘upon the subject matter and terms of the legislation, and the nature of the relevant prerogative’: 1983, p 113. Rather, it is more likely that parliament may condition the prerogative. Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 is the most recent case examining the historical modification of the Crown’s right over ‘royal metals’, a proprietary right identified by HV Evatt in his taxonomy of prerogative powers. In this case, Cadia and Newcrest owned land in New South Wales over which mining leases had been granted to Cadia under the Mining Act 1992 (NSW). A dispute had arisen over royalties concerning a mine containing bother copper and gold ore which could not be mined separately. The prerogative right over ‘royal mines’ traditionally extended to gold and silver mines but not base-metal mines (including copper, tin, iron and lead): Case of Stannaries (1606) 77 ER 1292. However, in the Case of Mines (1568) 75 ER 472 it was found that if ores of gold and silver were to be found in copper or base-metal mines, the comingled ore belonged to the English Crown without express reservation. In the last paragraph it was noted that the prerogative can be abrogated or modified where a statute uses express words to qualify the common law. In 1688 and 1693, the Royal Mines Act (Imp) was modified so that copper, tin, iron and lead mines were taken not to be ‘royal mines’, even though gold or silver may be extracted from them (s 3 of the 1688 Act). Relevantly, in 1828 the Australian Courts Act 1828 (Imp) was enacted, which provided that all statutes and laws (including common law) in force in England on 25 July 1828 should be applied in the courts of New South Wales (and Van Diemen’s land (now Tasmania)): at 207 per French CJ. This means that, in the words of the Chief Justice (at 200): The prerogative right to gold and the 1688 and 1693 Acts formed part of the law of the colony of New South Wales, probably from the time of its establishment and at least

from 1828, and affected the scope of Crown grants of land, including the land on which the copper and gold mining operations the subject of this appeal are conducted.

The 1688 Act clearly protected private interests in copper mines which contained gold by allowing their owners to retain the copper: at 200 per French CJ. The issue in Cadia was whether the mine (with its intermingled gold and copper) was capable of being characterised as a ‘copper mine’, thus entitling Cadia to the repayment of mining royalties from the New South Wales Government. Pursuant to s 282 of the Mining Act 1992 (NSW), holders of a mining lease are liable to pay royalties to the Minister for Mineral Resources on minerals recovered under lease that are ‘publicly owned minerals’ (defined in s 4 of the Act as a ‘mineral owned by, or reserved to, the Crown’). If minerals are ‘privately owned’, the lessee is nevertheless liable to pay royalties as if they were publicly owned (s 284(1)), but the Minister must pay 7/8 of the royalty back to the owner of the minerals (s 284(2)(a)). Cadia argued that it was entitled to the repayment of 7/8 of the royalty paid for the copper extracted from mine because it was a privately owned mineral. The Minister for Natural Resources claimed that the gold and copper was commixed in [page 341] the one ore and that the copper could not be extracted without extracting the gold. As gold was being extracted, the minister argued that it fell within the definition of a ‘royal mine’ and that the Crown was entitled to keep the full royalty paid by Cadia. The High Court disagreed. Although French CJ found that the value of gold from the mine substantially exceeded the value of copper recovered (at 201), the fact that the mine contained substantial amounts of copper meant that it answered the statutory description of a ‘copper mine’: at 201, 219. French CJ also affirmed that ‘patent

precise words’ (or necessary implication) would be required to abrogate or qualify the prerogative (as things stand after the 1688 Act). According to French CJ (at 200) and the joint majority (at 230–1), copper is a ‘privately owned mineral’. The joint judgment of Gummow, Hayne, Heydon and Crennan JJ ruled that following s 3 of the Royal Mines Act 1688, ‘a mine of copper thereafter could not be characterised as a “mine of gold” within the scope of the prerogative given by the Case of Mines where copper was mingled with gold in the ore’: at 231. To conclude, the majority said: It is to that abridged form of the prerogative in respect of gold mines and silver mines that that s 379 of the 1992 Act speaks. The consequence is that the copper upon which royalty was payable to the Minister by Cadia was a privately owned mineral within the meaning of s 284 of the 1992 Act.

Accordingly, Cadia was entitled to repayment of the portion of the royalty paid to the New South Wales government by virtue of the copper being a ‘privately owned mineral’ under s 284 of the Mining Act 1992 (NSW).

The ‘nationhood’ power 13.27 As discussed at 13.17, protecting the nation is central to the ‘maintenance’ limb of s 61. To recap, in Australian Communist Party v Commonwealth (1951) 83 CLR 1 Williams J defined the words ‘maintenance of this Constitution’ to mean the ‘protection and safeguarding of something immediately prescribed or authorised by the Constitution without the intervention of Federal legislation’: at 230. It is therefore apparent that the Commonwealth does not need to rely on federal laws to protect and safeguard the Constitution. Two examples are the non-statutory executive power (to the extent that it applies) (see 13.18–13.20) and the executive prerogative relating to defence (see 13.22). In order to assist the prosecution of executive aims, it is also possible that the federal parliament could use its power

in s 51(xxxix) to make laws with respect to ‘matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the federal judicature, or in any department or officer of the Commonwealth’ (emphasis added). It is well established that the executive power may be used to authorise legislation imposing criminal sanctions for seditious or subversive conduct. In two interesting cases, Burns v Ransley (1949) 79 CLR 101 and R v Sharkey (1949) 79 CLR 121, the court considered the validity of provisions of the Crimes Act 1914 (Cth), which made it a criminal offence to incite hatred of the Sovereign, the Government of the United Kingdom or the Government of Australia so as to endanger the Commonwealth. Exceptions [page 342] applied for criticisms made ‘in good faith’. In Burns v Ransley (1949) 79 CLR 101, Burns, a member of the Australian Communist Party, was participating in a public debate in Brisbane when the following exchange was reported to have taken place: We all realize the world could become embroiled in a third world war in the immediate future between Soviet Russia and the Western Powers. In the event of such a war what would be the attitude and actions of the Communist Party in Australia?

Burns replied: If Australia was involved in such a war it would be between Soviet Russia and American and British Imperialism. It would be a counter-revolutionary war. It would be a reactionary war.

Pressed for a direct answer, Burns said: We would oppose that war. We would fight on the side of Soviet Russia. That is a direct answer.

Burns was summarily convicted under the federal provisions and

challenged their constitutional validity on the basis that the Commonwealth had no general power to make laws with respect to crime and on the further basis that the Commonwealth had no power to make political criticism a criminal offence: see Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 118, 135. The court, well before the recognition of the implied freedom of political communication considered in Chapter 18, held that while the parliament ‘has no power to pass a law to suppress or punish political criticism … excitement to disaffection against a Government goes beyond political criticism’ (per Latham CJ at 110; semble Rich J at 111) the executive power and the express incidental power authorised the federal parliament to make laws for protection against subversive activities for the purpose of preserving the constitutional powers and operations of governmental agencies and the existence of government itself: per Latham CJ at 110; Rich J at 111; Dixon J at 116; McTiernan J at 120. In R v Sharkey (1949) 79 CLR 121, Sharkey made comments published in a newspaper to the effect that if the Soviet Union attacked Australia, the Australian Communist Party would welcome them. The provisions were challenged on similar grounds to those in Burns’ case and upheld: per Latham CJ at 135 (with whom Webb J agreed at 163); Rich J at 145; Dixon J at 148; McTiernan J at 157–8; Williams J at 159. Dixon J said (at 148): I do not doubt that the legislative power of the Commonwealth extends to making punishable any utterance or publication which arouses resistance to the law or excites insurrection against the Commonwealth Government or is reasonably likely to cause discontent with an opposition to the enforcement of Federal law or to the operation of Federal government. The power is not expressly given but it arises out of the very nature and existence of the Commonwealth as a political institution, because the likelihood or tendency of resistance or opposition to the execution of the functions of government is a matter incidental to the exercise of all its powers. But the legislative power is in my opinion still wider … The prevention of attempts to excite hostility where obedience is necessary for the effective working of government appears to be recognized as a proper purpose of the Government concerned …

[page 343] 13.28 The idea that Australian ‘nationhood’ gives rise to certain implied powers extending beyond any power drawn from a combination of ss 61 and 51(xxxix) was crystallised by Dixon J in Australian Communist Party v Commonwealth (1951) 83 CLR 1. The case concerned federal legislation with the purpose of banning the Australian Communist Party. The Governor-General was given the power to declare that certain organisations were communist organisations, which were then deemed to be unlawful. The legislation provided no opportunity for judicial review of the Governor-General’s determinations, nor did it prescribe any rule or conduct or prohibit specific acts or omissions by way of attack or subversion, which might enable a court to determine the basis upon which such a determination might be made. A majority of the court struck down the legislation on the basis that it could not be supported by ss 51(xxxix) and 61 of the Constitution read together, or under an implied power to protect the nation. Dixon J said (at 187–8): For myself I do not think that the full power of the Commonwealth Parliament to legislate against subversive or seditious courses of conduct and utterances should be placed upon s 51(xxxix) in its application to the executive power dealt with by s 61 of the Constitution or in its application to other powers. I do not doubt that particular laws suppressing sedition and subversive endeavours or preparations might be supported under powers obtained by combining the appropriate part of the text of s 51(xxxix) with the text of some other power. But textual combinations of this kind appear to me to have an artificial aspect in producing a power to legislate with respect to designs to obstruct the course of government or to subvert the Constitution. History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise within the institutions to be protected. In point of constitutional theory the power to legislate for the protection of an existing form of government ought not to be based on a conception, if otherwise adequate, adequate only to assist those attempts to displace them or the form of government they defend. As appears from Burns v Ransley and R v Sharkey, I take the view that the power to legislate against subversive

conduct has a source in principle that is deeper or wider than a series of combinations of the words in s 51(xxxix) with those of other constitutional powers.

13.29 This theme was developed further in Victoria v Commonwealth and Hayden (AAP case) (1975) 134 CLR 338. The case concerned the Appropriation Act (No 1) 1974–75 (Cth), which appropriated sums of money for expenditure by the Commonwealth Government. Among the specific expenditure projects was an item called ‘the Australian Assistance Plan’ which contemplated grants to Regional Councils for Social Development in the amount of $5,620,000 along with ‘development and evaluation expenses’ of $350,000. This expenditure was not authorised by any other legislation, nor was the Australian Assistance Plan established or regulated by legislation. It was conceded that the proposed Regional Councils would spend the money on various community welfare services and that the scope of the plan extended beyond the matters on which s 51 of the Constitution authorised the Commonwealth Parliament to legislate. Victoria and its Attorney-General began an action in the High Court against the Commonwealth and the Minister for Social Security, Bill Hayden, seeking a declaration that the appropriation of $5.9m was invalid, and an injunction to restrain [page 344] the Commonwealth and the Minister for Social Security from spending any of that money for the purposes of the Australian Assistance Plan. The defendants lodged a defence claiming that the Appropriation Act and the Australian Assistance Plan were valid. The plaintiffs demurred to the statement of defence and the demurrer was heard before the Full Court of the High Court. The States of New South Wales and Western Australia were given leave to intervene.

The court split on the question of the validity of the Appropriation Act. Barwick CJ, Gibbs and Mason JJ found the law invalid. Barwick CJ said (at 363): … [there] is no granted power which either alone, or in combination with other powers, could support a scheme for the rearrangement of the Australian community into regions for deriving financial support directly from the Commonwealth for integration of social welfare schemes or welfare planning as such. Nor is there power to grant money to or through the Regional Councils. An Act of the Parliament which sought to authorise the carrying out of the plan, including its financial provisions, would, in my opinion, be beyond the power of the Parliament.

His Honour did not consider the Commonwealth’s argument that the scheme could be supported by the executive power, together with the express incidental power. Gibbs J said that ‘it is quite apparent that under the Plan, the Councils may use their moneys in providing services although the Parliament would have no power to legislate for the provision of such services’: at 377–8. Accordingly, Gibbs J held that the expenditure would be unlawful. He then said that once ‘it is concluded that the Plan is one in respect of which legislation could not validly be passed, it follows that public moneys of the Commonwealth may not lawfully be expended for the purposes of the Plan’: at 379. Mason J gave a judgment that has often been cited and considered since (at 396–8): An appropriation, as I have explained, has a limited effect. It may provide the necessary parliamentary sanction for the withdrawal of money from Consolidated Revenue and the payment or subscription of money to a particular recipient or for a particular purpose but it does not supply legal authority for the Commonwealth’s engagement in the activities in connexion with which the moneys are to be spent. Whether the Commonwealth can engage in any specific activities depends upon the extent of the Commonwealth’s legislative, executive and judicial powers. Here, no legislation having been enacted to give effect to the Australian Assistance Plan, we must look to the executive power. In the words of s. 61, the executive power of the Commonwealth ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’. Although the ambit of the power is not otherwise defined by Ch. II it is evident that in scope it is not unlimited and that its

content does not reach beyond the area of responsibilities allocated to the Commonwealth by the Constitution, responsibilities which are ascertainable from the distribution of powers, more particularly the distribution of legislative powers, effected by the Constitution itself and the character and status of the Commonwealth as a national government. The provisions of s. 61 taken in conjunction with the federal character of the Constitution and the distribution of powers between the Commonwealth and the States make any other conclusion unacceptable … [page 345] However, in ascertaining the potential scope of the power there are several important considerations which need to be kept steadily in mind. First, the incidental power contained in s. 51 (xxxix) taken in conjunction with other powers, notably s 61 itself, adds a further dimension to what may be achieved by the Commonwealth in the exercise of other specific powers. So in Burns v Ransley and The King v Sharkey, ss 24A, 24B and 24D of the Crimes Act 1914–1946 (Cth) were held to be supported by the combination of ss 51 (xxxix.) and 61. Secondly, the Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity (Australian Communist Party v Commonwealth). So far it has not been suggested that the implied powers extend beyond the area of internal security and protection of the State against disaffection and subversion. But in my opinion there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss. 51 (xxxix.) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation. It is in the exercise of this capacity that the Commonwealth has established the Commonwealth Scientific and Industrial Research Organization to undertake scientific research on behalf of the nation. The Science and Research Act 1951, as amended, is an exercise of the power conferred by s 51 (xxxix) and s. 61 or perhaps of implied power. So also the Commonwealth may expend money on inquiries, investigation and advocacy in relation to matters affecting public health, notwithstanding the absence of a specific legislative power other than quarantine — see the Pharmaceutical Benefits case. No doubt there are other enterprises and activities appropriate to a national government which may be undertaken by the Commonwealth on behalf of the nation. The functions appropriate and adapted to a national government will vary from time to time. As time unfolds, as circumstances and conditions alter, it will transpire that particular enterprises and activities will be undertaken if they are to be undertaken at all, by the national government. However, the executive power to engage in activities appropriate to a national government, arising as it does from an implication drawn from the Constitution and

having no counterpart, apart from the incidental power, in the expressed heads of legislative power, is limited in scope. It would be inconsistent with the broad division of responsibilities between the Commonwealth and the States achieved by the distribution of legislative powers to concede to this aspect of the executive power a wide operation effecting a radical transformation in what has hitherto been thought to be the Commonwealth’s area of responsibility under the Constitution, thereby enabling the Commonwealth to carry out within Australia programmes standing outside the acknowledged heads of legislative power merely because these programmes can be conveniently formulated and administered by the national government.

13.30 The scope of the executive power, and the question whether there is also an implied power, were issues explored in Davis v Commonwealth (1988) 166 CLR 79. The case concerned federal legislation enacted to commemorate the bicentennial of Governor Phillip’s landing in Australia on 26 January 1788. The Act set up an Australian Bicentenary Authority which was given exclusive power to use particular symbols and trade marks associated with the event, including ‘1788’, ‘1988’, ‘88’, ‘Sydney’ with ‘1988’ and ‘Melbourne’ with ‘1988’. Davis, an Aboriginal political activist, printed shirts using these symbols within slogans, which protested against the commemoration of the bicentennial on the basis that there was no reason to celebrate the oppression of the Aboriginal peoples [page 346] occasioned by the arrival of Europeans in Australia in 1788. Davis challenged the law on the basis that it could not be supported by the intellectual property power (s 51(xviii)), the corporations power, the territories power or the executive or implied nationhood powers. Mason CJ, Deane and Gaudron JJ (with whom the rest of the court agreed on this point) struck down the provisions of the Act which gave the Australian Bicentenary Authority the exclusive power to use these symbols on the following grounds (at 100):

Here, the framework of regulation … reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorised use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power.

Brennan J took the opportunity to explore the nature and extent of the implied nationhood power and said (at 110–11): … With great respect to those who hold an opposing view, the Constitution did not create a mere aggregation of colonies, redistributing powers between the government of the Commonwealth and the governments of the States. The Constitution summoned the Australian nation into existence, thereby conferring a new identity on the people who agreed to unite ‘in one indissoluble Commonwealth’, melding their history, embracing their cultures, synthesising their aspirations and their destinies. The reality of the Australian nation is manifest, though the manifestations of its existence cannot be limited by definition. The end purpose of the Constitution is to sustain the nation … … If the executive power of the Commonwealth extends to the protection of the nation against forces which would weaken it, it extends to the advancement of the nation whereby its strength is fostered. There is no reason to restrict the executive power of the Commonwealth to matters within the heads of legislative power. So cramped a construction of the power would deny to the Australian people many of the symbols of nationhood — a flag, or anthem, for example — or the benefit of many national initiatives in science, literature and the arts. It does not follow that the Executive Government of the Commonwealth is the arbiter of its own power or that the executive power of the Commonwealth extends to whatever activity or enterprise the Executive Government deems to be in the national interest. But s 61 does confer on the Executive Government power ‘to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’, to repeat what Mason J said in the AAP case … In my respectful opinion, that is an appropriate formulation of a criterion to determine whether an enterprise or activity lies within the executive power of the Commonwealth. It invites consideration of the sufficiency of the powers of the States to engage effectively in the enterprise or activity in question and of the need for national action (whether unilateral or in cooperation with the States) to secure a contemplated benefit. The variety of enterprises or activities which might fall for consideration precludes an a priori development of detailed criteria but, as cases are decided, perhaps more precise tests will be developed.

13.31 Wilson and Dawson JJ agreed with the conclusions of Mason CJ, Deane and Gaudron JJ regarding the scope of the executive power

but doubted the existence of an implied nationhood power (at 103–4): [page 347] If the specifically enumerated powers are taken to include para (xxxix) of s 51, then we consider that in the ultimate analysis the Commonwealth Parliament does not possess any legislative power which could not be assigned to a particular provision or combination of provisions. The Commonwealth cannot be accorded a legislative power to cross the boundaries between State and Commonwealth responsibility laid down by the Constitution. It is axiomatic in constitutional law as it is elsewhere that the sum cannot be greater than its parts. Even if it is convenient in some circumstances to look at the totality rather than individual heads of power, the Commonwealth remains confined to that which is granted to it by the Constitution. Moreover, the range of activities which, not being expressly referred to elsewhere in the Constitution, are found on its proper construction to fall within s 61 will necessarily of their very nature lie outside the competence of the States for the reason that such powers will be exercisable only by the Commonwealth and for Commonwealth purposes. The truth is that the character and status of the Commonwealth as a national government are qualities which are themselves to be found within the confines of the Constitution. This is not to deny, of course, that implications may properly be made in the interpretation of the Constitution: see West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 681-2. However that is not called for in this case.

13.32 The ambit of s 61 together with s 51(xxxix) was again considered in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1. In early 2009, legislation was introduced into the federal parliament called the Tax Bonus for Working Australians Bill (No 2). It provided for payments ranging from $250 to $900 for taxpayers earning up to $100,000 for the year ending 30 June 2008. Their stated purpose was to ‘immediately support jobs and strengthen the Australian economy during a severe global recession’. On 26 February 2009, Bryan Pape, a person apparently entitled to receive $250 under the Tax Bonus Act, issued a writ against the Commissioner of Taxation claiming declarations that the Tax Bonus Act was invalid. On 13 March 2009, Gummow J ordered that the Special Case be referred to the Full Court

for hearing commencing on 30 March 2009. On 3 April 2009, a majority of the High Court upheld the legislation, delivering their reasons on 7 July 2009. French CJ, Gummow, Crennan and Bell JJ upheld the legislation as a valid exercise of s 61, together with s 51(xxxix) of the Constitution upholding the Commonwealth’s argument that these powers authorised the Parliament to legislate to meet a national fiscal emergency. Hayne and Kiefel JJ, and Heydon J in a separate judgment, dissented. French CJ said (at [23]): The executive power of the Commonwealth conferred by s 61 of the Constitution extends to the power to expend public moneys for the purpose of avoiding or mitigating the large scale adverse effects of the circumstances affecting the national economy disclosed on the facts of this case, and which expenditure is on a scale and within a time-frame peculiarly within the capacity of the national government.

French CJ went on to point out (at [24]): … [the] implications of these propositions for the scope of the executive power generally are limited. The aspect of the power engaged in this case involves the expenditure of money to support a short-term national fiscal stimulus strategy calculated to offset the adverse effects of a global financial crisis on the national

[page 348] economy. The legislative measures defining the criteria of that expenditure and matters incidental to it were authorised by s 51(xxxix).

His Honour later said (at [63]): Elucidation of the content of the executive power in s 61 and the incidental power conferred by s 51(xxxix) is a process to be distinguished from the discovery by implication of a ‘nationhood’ power as an implied head of legislative competence (reference omitted). This is not a case which depends for its resolution upon the existence of any such implied power. The executive power extends, in my opinion, to short-term fiscal measures to meet adverse economic conditions affecting the nation as a whole, where such measures are on their face peculiarly within the capacity and resources of the Commonwealth Government. This is consistent with the executive power as broadly explained by Mason CJ, Brennan, Deane and Gaudron JJ in Davis,

and by Mason J in the passage from Duncan quoted in Hughes. To say that the executive power extends to the short-term fiscal measures in question in this case does not equate it to a general power to manage the national economy. In this case the Commonwealth had the resources and the capacity to implement within a short timeframe measures which, on the undisputed facts, were rationally adjudged as adapted to avoiding or mitigating the adverse effects of global financial circumstances affecting Australia as a whole, along with other countries …

Gummow, Crennan and Bell JJ said (at [89]–[92]): In determining whether the Bonus Act is supported by s 61 and s 51(xxxix) of the Constitution, it is necessary to ask whether determining that there is the need for an immediate fiscal stimulus to the national economy, in the circumstances set out above, falls within executive power and then to ascertain whether s 51(xxxix) of the Constitution supports the impugned legislation as a law which is incidental to that exercise of executive power. As already mentioned, that there is a global financial and economic crisis is not contested in this proceeding. It can hardly be doubted that the current financial and economic crisis concerns Australia as a nation. Determining that there is the need for an immediate fiscal stimulus to the national economy in the circumstances set out above is somewhat analogous to determining a state of emergency in circumstances of a natural disaster. The Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis on the scale here. This power has its roots in the executive power exercised in the United Kingdom up to the time of the adoption of the Constitution but in form today in Australia it is a power to act on behalf of the federal polity. … The intervening States do not seriously dispute that only the Commonwealth has the resources available to respond promptly to the present financial crisis on the scale exemplified by the Bonus Act. The submissions of the interveners appear to have been moved more by apprehension of a wide reading of the scope of s 61. But in considering what enterprises and activities are peculiarly adapted to the government of the country and which cannot otherwise be carried on for its benefit, this case may be resolved without going beyond the notions of national emergency and the fiscal means of promptly responding to that situation. It is not to the point to regret the aggregation of fiscal power in the hands of the Commonwealth over the last century. The point is that only the Commonwealth has the resources to meet the emergency which is presented to it as a nation state by responding on the scale of the Bonus Act. That Australia is a federal state does not produce the consequence that the policy determined upon by the Executive [page 349]

Government cannot be put into effect by measures such as the Bonus Act. The present is an example of the engagement by the Executive Government in activities peculiarly adapted to the government of the country and which otherwise could not be carried on for the public benefit. To the extent that the implementation of this policy involves the creation by s 7 of the Bonus Act of a right to receive the tax bonus and the imposition by s 8 of an obligation to restore overpayments, legislation is necessary and the authority to enact it is supplied by s 51(xxxix) of the Constitution.

Hayne and Kiefel JJ (in dissent) said (at [122]–[123]): Reference to notions as protean and imprecise as ‘crisis’ and ‘emergency’ (or ‘adverse effects of circumstances affecting the national economy’) to indicate the boundary of an aspect of executive power carries with it difficulties and dangers that raise fundamental questions about the relationship between the judicial and other branches of government.

Their Honours went on to say (at [124]): Legislative measures with respect to taxation and social security benefits would find ready support in s 51(ii), s 51(xxiii) and s 51(xxiiiA). Legislation for some other forms of direct payments to recipients may likewise be supported by other heads of power within s 51. The question is whether a direct payment not otherwise supported by legislation made under an enumerated head of power may be made in exercise of the executive power of the Commonwealth. In the end the Commonwealth’s submissions about the executive and incidental powers came down to the proposition that the Commonwealth’s power to spend is limited only by the need to obtain parliamentary approval for the proposed expenditure. That contention should be rejected. The matters of history described earlier in these reasons do not require its acceptance. Its acceptance would not be consistent with what Mason J referred to as ‘the broad division of responsibilities between the Commonwealth and the States achieved by the distribution of legislative powers’ and would, by ‘enabling the Commonwealth to carry out within Australia programmes standing outside the acknowledged heads of legislative power merely because these programmes can be conveniently formulated and administered by the national government’, effect a radical transformation in what has hitherto been thought to be the constitutional structure of the nation.

Heydon J also dissented, stating (at [198]): Width of s 61 There is a fallacy in the defendants’ submission that there is a wide executive power which is capable of resulting in the enactment of valid Commonwealth legislation pursuant to s 51(xxxix) of a kind more extensive than that which could have been

enacted under s 51(i)-(xxxviii). The fallacy lies in the excessive width it attributes to the executive power.

The premise of Heydon J’s argument is that the ambit of the executive power is limited and cannot accommodate a ‘nationhood’ power. As Gibbs J stated in Victoria v Commonwealth and Hayden (AAP case) (1975) 134 CLR 338 at 379: ‘the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth’. Hayne and Kiefel JJ also remarked earlier in Pape that executive power is not unlimited in scope and ‘its content does [page 350] not reach beyond the area of responsibilities allocated to the Commonwealth by the Constitution’: at 115. Heydon J continued (at 181): Throughout their submissions, the defendants complained that if their arguments were not accepted, the Commonwealth would be shrunken or crippled in its powers, and insufficiently equipped to deal with the problems of modern life. But an essential aspect of federation is its concentration on the division and dilution of power. And not all federations confer the same powers on their central governments. Moreover it is inherent in the idea of a federation that the central government has less power than the central government of a non-federation. It would be fallacious, and antithetical to the Constitution which created the federation, with its central and State governments, to ascribe to the central government automatically all powers which, in a non-federal nation, might be thought to be inherent in the fact of nationhood or in the idea of national government.

Capacities of the Crown 13.33 Although Dicey’s definition of the prerogative (see 13.21) is seemingly wide enough to incorporate capacities, it is more appropriate to distinguish them. Both are common law powers, but the main difference lies in their availability. Whereas ‘prerogatives’ contain the executive and proprietary rights as well as preferences

and immunities, which are only available to the Crowns of the Commonwealth and of the individual states; ‘capacities’ are powers that are exercisable by both the Crown and ordinary citizens as autonomous legal entities. Some capacities of the Commonwealth and State Crowns include: •

the power to enter into contracts and spend money, providing that the undertaking is supported by law and satisfies constitutional requirements (that is, there is a valid appropriation by parliament under ss 81 and 83 of the Constitution and the expenditure is supported by an enumerated or exclusive power). Formerly, it was thought that a statute was unnecessary to authorise expenditure. Section 61, according to logic, was sufficient to enable the expenditure because it was otherwise within the power of the parliament to authorise the act by virtue of one of its enumerated (or exclusive) heads of power (the ‘common assumption’). However, the assumption was rejected in Williams v Commonwealth (No 1) (2012) 248 CLR 156. This case confirms that there must be legislation in place if the executive is going to enter into contracts and spend public moneys;

•

the power to create trusts; acquire and dispose of property; register corporations; and enter into partnerships.

Like the prerogative, capacities are subject to modification or extinguishment by statute. The rest of this section is concerned with the executive’s power to contract and spend. 13.34 Prior to 2012, it was widely believed that the Commonwealth could enter into contracts without legislative approval: New South Wales v Bardolph (1934) 52 CLR 455. As Dixon J said in that case, ‘No statutory power to make a contract in the ordinary course of administering a recognized part of the government of the State appears to me to be necessary’: at 508. Interestingly, and in contrast to

Williams v Commonwealth (No 1) (2012) 248 CLR 156 (see at 351–2 per Crennan J), [page 351] Dixon J, with whom Gavan Duffy CJ agreed, saw no detrimental effect on the principle of responsible government (at 509): It is a function of the Executive, not of Parliament, to make contracts on behalf of the Crown. The Crown’s advisers are answerable politically to Parliament for their acts in making contracts. Parliament is considered to retain the power of enforcing the responsibility of the Administration by means of its control over the expenditure of public moneys. But the principles of responsible government do not disable the Executive from acting without the prior approval of Parliament, nor from contracting for the expenditure of moneys conditionally upon appropriation by Parliament and doing so before funds to answer the expenditure have actually been made legally available.

Evatt J also added (at 475): No doubt the King had special powers, privileges, immunities and prerogatives. But he never seems to have been regarded as being less powerful to enter into contracts than one of his subjects.

13.35 In Williams v Commonwealth (No 1) (2012) 248 CLR 156, Ronald Williams had four children enrolled at Darling Heights State Primary School in Queensland. At the time of their enrolment, the Commonwealth, via the National School Chaplaincy Programme, had an agreement with an organisation called Scripture Union Queensland (SUQ) (the Darling Heights Funding Agreement), to fund chaplains to provide pastoral care and spiritual guidance at the school. Williams sought a declaration that the arrangement was constitutionally invalid as being beyond the executive power under s 61 of the Constitution and prohibited by s 116 of the Constitution (as to which, see 16.19). Williams argued that there was no legislation in place to support the appropriation of money to the Programme, and that the

Commonwealth could not appropriate money without legislation to do so. The Commonwealth defended the arrangement, arguing (per French CJ at 180) that subject to a general parliamentary appropriation, ‘the executive power of the Commonwealth extends generally to enable it to enter into contracts and undertake expenditure of public moneys relating to any subject matter falling within a head of Commonwealth legislative power’. Gummow and Bell JJ (at 234–9) took the opportunity to distinguish Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, a case in which legislation supported the relevant expenditures, and explain the interrelationship of constitutional provisions authorising expenditure of Commonwealth public moneys: 143 First, while the engagement of the legislative branch of government marked off Pape from cases where there is, by reason of the absence of such engagement, a deficit in the system of representative government, there remains in common with any assessment of the NSCP the considerations of federalism, stimulated by the by-passing by the Executive of s 96. Secondly, the outcome in Pape indicates that although the plaintiff’s submission is satisfactory as a partial description of the executive power to spend, it does not mark any outer limit of universal application. Thirdly, fuller attention to Pape nevertheless yields support to the conclusion sought by the plaintiff: that the executive power does not go so far as to support the entry by the Commonwealth into the Funding Agreement, and the making of payments by the Commonwealth to SUQ.

[page 352] 144 In Pape … approval was given to the statement by Mason CJ, Deane and Gaudron JJ in Davis v Commonwealth that: the existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence. In Davis, Brennan J invited consideration of ‘the sufficiency of the powers of the States to engage effectively in the enterprise or activity in question’. This consideration

reflects concern with the federal structure and the position of the States. 145 … the NSCP contracts, such as the Funding Agreement, present an example where within the Commonwealth itself there is a limited engagement of the institutions of representative government. The Parliament is engaged only in the appropriation of revenue, where the role of the Senate is limited. It is not engaged in the formulation, amendment or termination of any programme for the spending of those moneys. 146 The present case, unlike Pape, does not involve a natural disaster or national economic or other emergency in which only the Commonwealth has the means to provide a prompt response. In Pape, the short-term, extensive and urgent nature of the payments to be made to taxpayers necessitated the use of the federal taxation administration system to implement the proposal, rather than the adoption of a mechanism supported by s 96. However, the States have the legal and practical capacity to provide for a scheme such as the NSCP. The conduct of the public school system in Queensland, where the Darling Heights State Primary School is situated, is the responsibility of that State. Indeed, Queensland maintains its own programme for school chaplains. 147 Section 96 of the Constitution gives to the Parliament a means for the provision, upon conditions, of financial assistance by grant to Queensland and to any other State … 148 With respect to the significance of s 96 in the federal structure, the following passage from the reasons of Barwick CJ in the AAP Case is in point: Section 96 … has enabled the Commonwealth to intrude in point of policy and perhaps of administration into areas outside Commonwealth legislative competence. No doubt, in a real sense, the basis on which grants to the claimant States have been quantified by the Grants Commission has further expanded the effect of the use of s 96. But a grant under s 96 with its attached conditions cannot be forced upon a State: the State must accept it with its conditions. Thus, although in point of economic fact, a State on occasions may have little option, these intrusions by the Commonwealth into areas of State power which action under s 96 enables, wear consensual aspect. Commonwealth expenditure of the Consolidated Revenue Fund to service a purpose which it is not constitutionally lawful for the Commonwealth to pursue, is quite a different matter. If allowed, it not only alters what may be called the financial federalism of the Constitution but it permits the Commonwealth effectively to interfere, without the consent of the State, in matters covered by the residue of governmental power assigned by the Constitution to the State. 149 What then was said by the defendants for the conclusion contrary to that which would follow from the above?

The Commonwealth parties’ ultimate submission 150 With the support of SUQ, and the qualified support of South Australia, the Commonwealth parties presented their ultimate submission. This was that because the capacities to contract and to spend moneys lawfully available for expenditure do [page 353] not ‘involve interference with what would otherwise be the legal rights and duties of others’ which exist under the ordinary law, the Executive Government in this respect possesses these capacities in common with other legal persons. The capacity to contract and to spend then was said to take its legal effect from the general law. 151 A basic difficulty with that proposition is disclosed by the observation by Dixon CJ, Williams, Webb, Fullagar and Kitto JJ in Australian Woollen Mills Pty Ltd v Commonwealth that: the position is not that of a person proposing to expend moneys of his own. It is public moneys that are involved. The law of contract has been fashioned primarily to deal with the interests of private parties, not those of the Executive Government. Where public moneys are involved, questions of contractual capacity are to be regarded ‘through different spectacles’… … 157 … the Commonwealth parties’ assimilation submission was said to draw support as constitutionally coherent from (i) the relationship between s 61 and the appropriation provisions in s 81 and s 83, and (ii) the extent of the power to tax. The first consideration understates the significance of the holding in Pape respecting the relationship between the provision of an appropriation and the spending power … considerations of constitutional coherence point away from the existence of an unqualified executive power to contract and to spend. … 159 … These submissions by the Commonwealth parties as to the scope of the executive power to contract and to spend should not be accepted.

French CJ and Crennan J agreed with Gummow and Bell JJ that legislation other than an appropriation Act was necessary to support Commonwealth spending. The ‘common assumption’, defined by Heydon J (at 295) as the ability of the Commonwealth to enter into contracts without statutory authority as long as it had legislative

authority to give it statutory authority, was discarded by all members of the court except for his Honour. To contract and spend public moneys requires a statutory exercise of power capable of being characterised as a law with respect to the subject matter within the authority of the parliament. Without that legislative authority, s 61 does not extend to enable the executive to ‘enter into contracts and undertake expenditure of public moneys relating to any subject matter falling within a head of Commonwealth legislative power’: at 180 per French CJ; at 232–3 per Gummow and Bell JJ; at 358 per Crennan J. As a result, this severely limits the opportunities for the Commonwealth to expend moneys without parliamentary authorisation. One exception may be the expenditure of moneys in the ordinary administration and servicing of departments of State pursuant to s 64 of the Constitution: at 180 per French CJ; at 233 per Gummow and Bell JJ. The lesson to be taken from Williams (No 1) is that for the executive to enter into contracts and spend, the parliament must enact a statute (other than an appropriation Act) authorising the expenditure, and ensure that it has an available head of legislative power to support the statute should it be challenged. Without the requisite statutory authority, it was beyond the constitutional power of the Commonwealth Executive to enter into the funding agreement with SUQ to provide chaplaincy services at the Darling Heights State Primary School. [page 354] In obiter, Hayne and Kiefel JJ speculated that s 61 could not support Commonwealth expenditure on the National School Chaplaincy Programme because there was no legislative power within s 51 that could authorise such a programme. Heydon J dissented, holding that the National School Chaplaincy Programme could be characterised as

a ‘benefit to students’ within the meaning of s 51(xxiiiA) of the Constitution. 13.36 Following the High Court’s decision in Williams v Commonwealth (No 1) (2012) 248 CLR 156, the Commonwealth Parliament passed the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) to provide legislative support for many preexisting government programs, including the chaplaincy scheme. To validate the high number of federal programs not supported by statute, the Commonwealth inserted a new provision, s 32B, into the Financial Management and Accountability Act 1997 (Cth). This gave power to the Commonwealth to spend public moneys by making, varying or administering arrangements or grants that are specified in the regulations, or are included in a class of arrangements or grants (or for the purposes of a program) specified in the regulations. The 2012 Act also inserted a new reg 16 and Sch 1AA into the Financial Management and Accountability Regulations (Cth). The combined effect was to specify the hundreds of programs for the purposes of s 32B(1)(b) of the Act. These measures, it was hoped, would ward off another successful challenge to the National School Chaplaincy Programme. However, Ronald Williams brought another proceeding in the High Court challenging the validity of the applicable provisions of the Act and Regulations. 13.37 In Williams v Commonwealth (No 2) (2014) 252 CLR 416, the High Court unanimously held that the impugned provisions were invalid. Specifically, the provisions were not supported by any of the Commonwealth’s legislative powers. With the departure of Heydon J, no member of the court was prepared to accept that s 51(xxiiiA) supported the legislation. The court also found that s 32B and the new regulations were not supported by s 51(xx). Relevantly, French CJ, Hayne, Kiefel, Bell and Keane JJ (Crennan J not deciding) determined that the Commonwealth’s entry into the Darling Heights Funding

Agreement as well as the payments of public moneys made under that agreement was outside the executive power of the Commonwealth. The Commonwealth submitted in argument that the legislative scheme was supported by combining ss 61 and 51(xxxix) (the ‘express incidental power’); that is as a ‘matter incidental to the execution of any power vested by this Constitution in the Government of the Commonwealth’. This argument was rejected (at 470): The Commonwealth parties … further submitted that s 32B of the FMA Act was supported by the incidental power as a law incidental to the power to appropriate or the executive power under s 61 to spend and contract. … [T]o hold that s 32B of the FMA Act is a law with respect to a matter incidental to the execution of the executive power of the Commonwealth (to spend and contract) presupposes what both Pape and Williams (No 1) deny: that the executive power of the Commonwealth extends to any and every form of expenditure of public moneys and the making of any agreement providing for the expenditure of those moneys.

[page 355] 13.38 The Commonwealth also submitted that the ambit of the executive’s power to contract and spend was greater than what was recognised in Williams v Commonwealth (No 1) (2012) 248 CLR 156. As the majority put it in Williams v Commonwealth (No 2) (2014) 252 CLR 416 (at 465): The Commonwealth parties identified the central holding in Williams (No 1) as being ‘that many, but not all, instances, of executive spending and contracting require legislative authorisation’. They submitted that this holding was wrong and that there were only seven limitations on the Executive’s power to spend and contract. Those limitations can be identified shortly as follows. First, the Executive may not ‘stray into an area reserved for legislative power’. Second, an exercise of executive power cannot fetter the exercise of legislative power and cannot dispense with the operation of the law. Third, there can be no withdrawal of money from the Consolidated Revenue Fund without parliamentary authority in the form of appropriation legislation. Fourth, s 51 of the Constitution ‘provides every power necessary for the Parliament to prohibit or control the activity of the Executive in spending’. Fifth, through collective and

individual ministerial responsibility to the Parliament, the Parliament ‘exercises substantial control over spending’. Sixth, the Constitution assumes the separate existence and continued organisation of the States. Seventh, State laws of general application apply to spending and contracting by the Commonwealth without legislative authority. Although cast as an acknowledgment of what may be accepted to be important limitations on the power of the Executive to spend and contract, this argument was, in substance, no more than a repetition of what were referred to as the ‘broad basis’ submissions which the Commonwealth parties advanced in Williams (No 1) and which six Justices rejected.

The majority refused to countenance the proposition that only a specific number of restrictions limited the Commonwealth’s ability to contract and spend. They also rejected the argument that a power to contract and spend could be based around the notion of ‘nationhood’; that the ‘executive power to contract and spend under s 61 of the Constitution extends to all those matters that are reasonably capable of being seen as of national benefit or concern’: at 466 per French CJ, Hayne, Kiefel, Bell and Keane JJ. This was rebuffed on account of being too great a width. Finally, the majority rejected the Commonwealth’s argument that wide powers to contract and spend flowed from the assumption that the executive power of the Commonwealth is no less than the executive power of the British Executive (at 468). It was held (at 469 per French CJ, Hayne, Kiefel, Bell and Keane JJ): It may be assumed that, as the Commonwealth parties submitted, ‘what might be described as the inherent or traditional limits on executive power, as they emerged from the historical relationship between Parliament [at Westminster] and the Executive, have not hitherto been treated [in Australia or, for that matter, in Britain] as the source of any general limitation on the ability of the Executive to spend and contract without legislative authority’. But it by no means follows from this observation that the Commonwealth can be assumed to have an executive power to spend and contract which is the same as the power of the British Executive. This assumption, which underpinned the arguments advanced by the Commonwealth parties about executive power, denies the ‘basal consideration’ that the Constitution effects a distribution of powers and functions between the Commonwealth and the States. The polity which, as the Commonwealth parties rightly submitted, must

‘possess all the powers that it needs in order to function as a polity’ is the

[page 356] central polity of a federation in which independent governments exist in the one area and exercise powers in different fields of action carefully defined by law. It is not a polity organised and operating under a unitary system or under a flexible constitution where the Parliament is supreme. The assumption underpinning the Commonwealth parties’ submissions about executive power is not right and should be rejected.

Executive immunity 13.39 At common law, the executive (the ‘Crown’), its servants and agents were presumed to be immune in relation to their activities in the course of their functions or duties as such: Province of Bombay v Municipality of Bombay [1947] AC 58; Bropho v Western Australia (1990) 171 CLR 1 at 16. (This is often called the principle of ‘Crown immunity’; however, recently judges have expressed some dissatisfaction with that terminology, on the basis that is no longer consonant with Australia’s true constitutional arrangements: see Commonwealth v Western Australia (1999) 196 CLR 392 (at 410). A threshold question to consider was whether a person or corporation could be regarded as a servant or agent of the executive. The answer to this question depended on the extent to which the servant or agent was subject to direct ministerial control, or was independent of the government and enjoyed discretionary powers of its own (the ‘control’ test): Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 at 76 per Latham CJ. A second test involved a consideration of the overall nature of the functions and duties of the purported servant or agent (the ‘functions and duties’ test): see, for example, Registrar, Accident Compensation Tribunal v Commissioner of Taxation (Cth) (1993) 178 CLR 145 at 170 per Mason CJ,

Deane, Toohey and Gaudron JJ. A third test which was applied in order to determine whether a servant or agent enjoyed executive immunity was based on the proposition that some functions and duties were traditional to government, and should therefore enjoy the protection of executive immunity. This test has been criticised on the basis that concepts of the role of government change over time, and opinions may differ regarding the ‘traditional’ role of government: see, for example, Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 349 per Stephen J. For example, banking was traditionally regarded to be a function of government: see Bank of New South Wales v Commonwealth (1948) 76 CLR 1. But privatisation of former government instrumentalities such as banks underscores the weakness of an approach to the identification of the executive that relies on concepts of the ‘traditional’ functions and duties of government. Once a person or corporation has been identified as a servant or agent of the executive, that person will normally be entitled to the benefit of executive immunity from a statute if the interests of the executive would be prejudiced if such persons were bound: Bradken Consolidated Ltd v The Broken Hill Pty Co Ltd (1979) 145 CLR 107 at 113. However, executive immunity is not absolute, and servants or agents of the executive may be entitled to the benefit of executive immunity for some purposes but not for other purposes: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 132–3 per Barwick CJ; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 349–50 [page 357] per Stephen J; State Superannuation Board v Trade Practices Commission

(1982) 150 CLR 282; Registrar, Accident Compensation Tribunal v Commissioner of Taxation (Cth) (1993) 178 CLR 145. As Stephen J explained in the State Superannuation Board case (at 349–50): On occasions the legislative intent (to bind the Crown) may be a complex one, especially where a corporation has conferred upon it a number of quite distinct functions. The intention may be that only some of these should attract the immunities and privileges of the Crown. Again, whether a corporation possesses one or more functions, the intention of the legislation may be that only some of the Crown’s immunities and privileges should attach to it … In such cases (the legislative) indicia may at first sight appear to point in different directions, the apparent conflict only resolving itself by reference to the circumstances relevant to the case in hand and how they bear upon the particular function in question or the particular [sic] immunity or privilege to which claim is made.

13.40 The question whether a statute will be held to apply to and bind the Crown is a question of statutory interpretation. The test is whether the purpose, policy and subject matter of legislation discloses an intention that the Crown is to be bound: Bropho v State of Western Australia (1990) 171 CLR 1. This rule replaces the earlier rule that legislation was presumed not to bind the Crown unless a contrary intention was manifest by its terms: Province of Bombay v Municipality of Bombay [1947] AC 58. Where the question is whether the general words of a statute should be construed so as to impose criminal liability on the Crown itself, the presumption against such a legislative intent would be extraordinarily strong: Bropho at 23. The new rule purportedly applies specifically to statutes enacted after 20 June 1990: per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ (Brennan J dissenting on this point). In construing legislative provisions enacted prior to this date, it may be necessary to take account of the fact that the prior test of necessary implication was seen as of general application at the time when the provision was enacted. In Bropho v Western Australia (1990) 171 CLR 1, a provision of Western Australian legislation made it an offence for ‘any person’ to destroy or damage Aboriginal sites or objects on or under such sites.

Bropho brought an action against the State of Western Australia and the Western Australian Development Corporation alleging that the defendants were in breach of that provision. The defendants applied to strike out the statement of claim on the ground that the provision did not bind the Crown. The court applied the principles outlined above and concluded that the provisions bound the Crown. In particular, the court was swayed by the consideration that the intention of the legislature to protect Aboriginal heritage would be frustrated if the Crown was not bound: at 24–5. The Crown’s susceptibility to suit 13.41 The liability of the Commonwealth is discussed at length in the judgment of Gummow and Kirby JJ (with whom Brennan CJ agreed) in Commonwealth v Mewett (1997) 191 CLR 471 at 545–52. Their Honours explain that one of the consequences of the introduction of Ch III of the Constitution was the modification of the common law principles of Crown immunity (at 545–7): [page 358] The establishment of the judicial power of the Commonwealth as an essential element in the federal system meant that doctrines of executive immunity from curial process which had developed in England could not be carried immediately into the federal system. Chapter III required adjudication upon ‘matters’ of a nature unknown in England. It also required that in Australia the common law be informed by the structure and institutions established by the Constitution. The Commonwealth and States are thus treated by the Constitution as organisations or institutions of government, conceived as politically organised bodies having mutual relations and amenable to the jurisdiction of courts having federal jurisdiction. This new state of affairs, established by the Constitution, required adjustment to habits of thought former in a common law system with a unitary structure of government. Those earlier habits of thought assumed the historical derivation of the courts of justice as the Sovereign’s ‘own’ courts, thus supplying the principle that the Sovereign was not to be sued in the Sovereign’s courts.

Moreover, the acceptance in Australia of the principle in Marbury v Madison as axiomatic, placed a fundamental limitation upon any general acceptance in the exercise of federal jurisdiction of the maxim that the Sovereign could do no wrong. To the contrary, it was for the judicial branch of government to determine controversies as to whether the legislative or executive branches had exceeded their constitutional mandates …

Accordingly, principles of Crown immunity cannot oust the power of Ch III courts to determine controversies arising under s 75(iii) or 75(v) of the Constitution: Commonwealth v Mewett (1997) 191 CLR 471 at 547. The Commonwealth may exercise its constitutional powers to condition suits against it: see s 78 coupled with s 51(xxxix). Section 64 of the Judiciary Act is directed to this objective. Otherwise, the Constitution denies the operation of Crown or executive immunity, which might be pleaded in bar to any action to recover judgment for damages in respect of that common law cause of action: Commonwealth v Mewett (1997) 191 CLR 471.

[page 359]

Chapter Fourteen

Appropriations, Grants and the Management of State Debts Introduction 14.1 The people who devised the Constitution recognised that the Commonwealth should have the power to levy customs and excise duties in order to develop a national common market: see ss 86 and 90. But they were anxious to ensure that any surplus revenue derived from these duties would be apportioned to the states in a way that would prevent serious economic dislocation to their finances, especially during transition from colonial to federal government: Quick and Garran, 1901, pp 133–4, 188. Their task was complicated by the varying degrees of dependence of the colonies on excise revenue. A compromise was worked out in ss 87, 89 and 93 of the Constitution, with excess revenues returned to the states in accordance with particular formulae for a specified period of time. Once that time had expired and these provisions were spent, s 96 would give the Commonwealth the power to grant financial assistance ‘to any State on such terms and conditions as the Parliament thinks fit’. This would enable the parliament (including the states’ House, the Senate) to devise political solutions to state deficits. The constitutional history of the 20th and early 21st centuries indicates that colonial anxiety about state revenue was well founded.

Expansive construction of the Commonwealth’s taxation and grants powers has resulted in Commonwealth dominance of the states: South Australia v Commonwealth (Uniform Tax case (No 1)) (1942) 65 CLR 373; Victoria v Commonwealth (Uniform Tax case (No 2)) (1957) 99 CLR 575 (see further 14.14–14.17). 14.2 A number of the sections in Ch IV no longer operate, including s 89, the second limb of s 90, the second limb of s 92 and ss 93–95. Several provisions simply required that certain events took place at Federation or shortly afterwards, and now that these events have taken place the provisions have served their purpose: ss 86, 88. Other provisions have been overtaken by historical events; for example, ss 84 and 85, in conjunction with s 69, were designed to deal with transitional arrangements at Federation. Similarly, the Interstate Commission referred to in ss 101–104, and on whose existence the operation of those provisions is predicated, is now defunct. The financial arrangement envisioned by s 87 was replaced with a scheme of grants to the states upon the expiry of the 10-year limit in the provision. The audit arrangements contemplated by s 97 were replaced by Commonwealth audit legislation in 1901. [page 360] 14.3 As ss 90 and 92 are considered in other chapters, this chapter will focus on three topics covered in the remaining provisions of Ch IV: •

Commonwealth appropriations (ss 81–83);

•

grants to the states (s 96); and

•

the management of state debts (ss 105 and 105A).

Commonwealth appropriations The Commonwealth’s revenue-raising powers 14.4 Sections 81–83 of the Constitution concern the management of Commonwealth finances. Section 81 sets up a ‘Consolidated Revenue Fund’ made up of the revenues or moneys raised by taxation and other charges. Appropriations to fund federal programs and services under s 81 take place ‘in the manner and subject to the charges and liabilities imposed by the Constitution’. Two charges and liabilities on the Consolidated Revenue Fund specifically referred to in the Constitution appear in s 82: the first charge is the cost relating to its collection, and the second liability is the payment of Commonwealth expenditures. Section 83 imposes a condition on appropriations from Consolidated Revenue: ‘[N]o money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law’ (the second part of s 83 was exhausted shortly after Federation). This means that parliamentary authority is required for the expenditure of any moneys by the executive. An appropriations law must be passed before Treasury can disburse money: Victoria v Commonwealth (Australian Assistance Plan case) (1975) 134 CLR 338 at 386 per Stephen J. In addition, it has been held that an appropriation law must identify the purpose and quantum of any expenditure in order to be valid: Attorney-General (Vic) (Ex rel Dale) v Commonwealth (No 1) (Pharmaceutical Benefits case) (1945) 71 CLR 237. Appropriation ‘for the purposes of the Commonwealth’ 14.5 The most significant constitutional question arising from these provisions relates to the interpretation of the reference to ‘the purposes of the Commonwealth’ in s 81. Is the Commonwealth’s power to make appropriations limited to those topics which are explicitly described in the Constitution, including any express or

implied limitations which may operate? Or is the phrase ‘purposes of the Commonwealth’ in s 81 susceptible to a wider interpretation which provides the Commonwealth with a reservoir of fiscal power additional to its express (and enumerated) powers? 14.6 A division of opinion as to the meaning of this phrase was apparent in Attorney-General for Victoria (Ex rel Dale) v Commonwealth (Pharmaceutical Benefits case) (1945) 71 CLR 237. A majority of the High Court adopted a narrow interpretation of the phrase and concluded that a federal scheme to provide free medicine had to fit ‘within the four corners of the Constitution’ (Williams J at 282); that is, it must be supported by an express constitutional power and subject to any express or implied limitations on that power: see also Starke J at 266; Dixon J with whom Rich J agreed at 268. Latham CJ, with whom McTiernan J agreed, held [page 361] that the ‘purposes of the Commonwealth’ were a matter for the Parliament to determine: s 81 conferred ‘a general, and not a limited, power of appropriation … in the sense that it is for the Parliament to determine whether or not a particular purpose shall be adopted as a purpose of the Commonwealth’: at 254. Latham CJ also said (at 257): The Commonwealth can, in my view, authorize the expenditure of public money on inquiries, investigations, research and advocacy in relation to matters affecting public health. But the Parliament could not pass a law requiring citizens of the States to keep their premises clean or to submit to vaccination or immunization. The power to appropriate and expend money, however wide that power may be, does not enable the Commonwealth to extend its legislative powers beyond those marked out and defined by the Constitution although (in my opinion) those powers include a general appropriation power.

Following the High Court’s decision, a successful constitutional referendum added s 51(xxiiiA) to the Constitution.

14.7 The scope of the phrase ‘purposes of the Commonwealth’ was also considered in Victoria v Commonwealth (Australian Assistance Plan case) (1975) 134 CLR 338: see also 13.29. The case concerned the validity of an appropriations law which granted about $6m to the ‘Australian Assistance Plan’, a welfare scheme to be administered by Regional Councils for Social Development. The State of Victoria challenged the appropriation on the basis that s 81 appropriations could only be made in respect of matters listed in the Commonwealth’s express powers. This argument was accepted by Barwick CJ and Gibbs J but rejected by McTiernan and Murphy JJ. Stephen J decided that the plaintiff had no standing to sue: at 390. Mason and Jacobs JJ did not think the issue was susceptible to judicial review and also that Commonwealth purposes were a matter for parliament to determine. Mason J struck down the law on the basis that it was outside the legislative, executive and judicial powers of the Commonwealth. Jacobs J upheld the law on the basis that the appropriations power was not limited to the Commonwealth’s express powers, but extended to national issues and, at any rate, the provisions could be characterised as incidental to the Commonwealth’s social welfare powers: at 412–13. 14.8 The controversy may have been resolved in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1. The case concerned the Commonwealth Government’s ‘fiscal stimulus package’ to counteract the impact of the global financial crisis that took place in late 2008. The facts are considered at 13.32. The challenge was rejected by a majority (French CJ, Gummow, Crennan and Bell JJ; Hayne, Heydon and Kiefel JJ dissenting). As to s 81, the entire court rejected the wider view expressed by Latham CJ and McTiernan J in the Pharmaceutical Benefits case (at 254) that ‘it is for the Parliament to determine whether or not a particular purpose shall be adopted as a purpose of the Commonwealth’. French CJ’s summary, which fairly reflects the

opinion of five members of the court on this point, was as follows (at 55): In my opinion, the history, the text and the logic underlying the operation of ss 81 and 83 are inconsistent with their characterisation as the source of a ‘spending’ or ‘appropriations’ power, notwithstanding their description as such in some of the [page 362] judgments of Justices of this Court. There is no clear indication in the judgments of a majority consensus in support of a contrary view. The clearest statement of the character of ss 81 and 83 in this regard, with which I respectfully agree, is that of McHugh J in the passage quoted above from Northern Suburbs General Cemetery Reserve Trust. Neither provision confers power. Section 81 directs all revenues or moneys made by the Executive Government into the Consolidated Revenue Fund. Such moneys are only to be appropriated from that Fund for ‘the purposes of the Commonwealth’. By virtue of s 83 no money can be drawn from the Fund absent such an appropriation by law, that is to say by statute. Substantive power to spend the public moneys of the Commonwealth is not to be found in s 81 or s 83, but elsewhere in the Constitution or statutes made under it. That substantive power may be conferred by the exercise of the legislative powers of the Commonwealth. It may also be an element or incident of the executive power of the Commonwealth derived from s 61, subject to the appropriation requirement and supportable by legislation made under the incidental power in s 51(xxxix) [references omitted].

See also Gummow, Crennan and Bell JJ at 73; Heydon J at 212–13. Hayne and Kiefel JJ dissented, but made the following observations (at 103): Although it is convenient to begin the examination of this branch of the Commonwealth’s arguments by considering s 81 and what is meant in that section by ‘for the purposes of the Commonwealth’, it will ultimately be unnecessary to attempt some definitive exposition of the meaning of this phrase beyond saying that there is evident force in the view that it is not limited to purposes in respect of which the Parliament has express power to make laws. Not least is that so when it is recognised that there may be an appropriation for a valid exercise of the executive power of the Commonwealth and that, at least to the extent of matters going to the very survival of the polity and a class of matters like national symbols and celebrations, the executive power of the Commonwealth is not bounded by the express grants of legislative power. But it is neither necessary nor possible to attempt to chart the boundaries of the area encompassed by the phrase ‘for the purposes of the Commonwealth’ when it is used in s 81. And in particular, it is not necessary to decide whether the phrase

encompasses any purpose determined by the Parliament to be a purpose of the Commonwealth [references omitted].

In Williams v Commonwealth (No 1) (2012) 248 CLR 156 the High Court essentially repeated its holding in Pape that the Commonwealth’s power to appropriate revenue under ss 81 and 83 does not confer a substantive power upon the government to spend money for any purpose: at 193 per French CJ; at 224 per Gummow and Bell JJ; at 242, 248 per Hayne J; at 341 per Crennan J; at 362 per Kiefel J. Rather, these sections only provide for parliamentary control over expenditure of public moneys. Sections 81 and 83 are not, therefore, the source of power to authorise expenditure of public moneys by the executive. These sections only support the expenditure of money where there has been a valid appropriation by statute. In Williams, there was no statute conferring power on the executive to make payments to providers of chaplaincy services: at 193–4 per French CJ. The power to spend money is to be found elsewhere in the Constitution, namely the executive power (at 194 per French CJ; at 242, 252 per Hayne J). However the executive power in Williams did not extend to empower the Commonwealth, in the absence of statutory authority beyond an appropriation, to enter into contracts and spend public money on chaplaincy services at state schools: at 179 per French CJ; at 233 per Gummow and Bell JJ; at 358 per Kiefel J. In contrast to Pape, legislation [page 363] incidental to the execution of power under s 61 had not been enacted: at 218 per Gummow and Bell JJ; at 347 per Crennan J. Second, Pape concerned measures to mitigate the effects of a global financial crisis, which affected Australia as a nation and which ‘only the

Commonwealth had the capacity to implement’: at 235 per Gummow and Bell; at 362 per Kiefel J. Williams, by contrast, concerned a subject which is inherently the responsibility of the states, given that ‘States have the legal and practical capacity to provide for a scheme such as the NSCP’: at 235 per Gummow and Bell JJ (see further at 14.12). Legislative amendments were subsequently introduced by the federal parliament following the Williams decision to provide statutory authority for the chaplaincy scheme. Ronald Williams brought a second proceeding in the original jurisdiction of the High Court, challenging s 32B of the Financial Management and Accountability Act 1997 (Cth) and Sch 1AA of the Financial Management and Accountability Regulations 1997 (Cth), inserted by the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth). Given that there was legislative authority in this case, the High Court had to determine whether any of the Commonwealth’s grants of power supported the proposed expenditure. The court found that s 51(xx) and s 51(xxiiiA) did not support the challenged provisions. It was also argued that legislative power under s 51(xxxix) supported laws incidental to s 61 of the Constitution. In Williams v Commonwealth (No 2) (2014) 252 CLR 416, the court resisted the Commonwealth’s invitation to revisit its ‘broad basis’ submission from Williams (No 1) (at 465, 470 per French CJ, Hayne, Kiefel, Bell and Keane JJ) (see further at 13.37–13.38), holding that ss 61 and 51(xxxix) were insufficient in this context. Interestingly, the Commonwealth also made the submission that, ‘in so far as the Appropriation Acts provided authority to spend appropriated moneys, the Appropriation Acts were supported by s 51(xxxix) as laws incidental to the power to appropriate’: at 469–70. Given the court’s holding in Pape that ss 81 and 83 did not confer a substantive spending power, it was surprising that the Commonwealth would again run the argument that ss 81 and 83, this

time taken together with s 51(xxxix), supported the expenditure of public moneys under statute. Unsurprisingly, this argument was given short shrift. French CJ, Hayne, Kiefel, Bell and Keane JJ dismissed the Commonwealth’s submission (at 470): To hold that the Parliament may make a law authorising the expenditure of any moneys lawfully appropriated in accordance with ss 81 and 83, no matter what the purpose of the expenditure may be, would treat outlay of the moneys as incidental to their ear-marking. But that would be to hold, contrary to Pape, that any and every appropriation of public moneys in accordance with ss 81 and 83 brings the expenditure of those moneys within the power of the Commonwealth.

Grants to the states 14.9 A second source of fiscal power located in Ch IV of the Constitution is s 96, which provides: During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

[page 364] 14.10 The federal parliament may impose any terms and conditions on s 96 grants, and these terms and conditions need not relate to the matters in respect of which the parliament has the power to make laws. Payments provided to states by the Commonwealth, for which terms and conditions are placed on the use of such moneys, are known as ‘specific purpose grants’. Specific purpose grants are made pursuant to s 96 of the Constitution and are directed to particular objectives outside the Commonwealth’s legislative powers. Examples include education, roads, public transport and health. These are areas for which the states are primarily responsible given the distribution of legislative power in the Constitution. All payments received under specific purpose grants must be spent on that particular policy

objective. The other source of Commonwealth funding to the states are ‘general revenue grants’. These grants, for the most part, represent the state’s share of GST revenue. Unlike specific purpose grants, general revenue grants are untied, meaning that the states can use this money as they see fit without conditions on its use attached. Although the states theoretically have the power to levy taxation, the reality is that the states’ tax revenues are severely limited, due to the Commonwealth achieving a monopoly over income tax (see 14.14–14.15), as well as the Commonwealth’s exclusive power over duties of custom and excise, which has prevented states from imposing taxes on the production, distribution or sale of commodities: see 14.16. This inequitable access to independent streams of government revenue has led to a ‘vertical fiscal imbalance’, in which the states have become dependent on the Commonwealth for regular financial support. This support is provided, as described above, in the form of grants which may be made on such conditions as the Commonwealth Parliament chooses to impose. For this reason, it is apparent that specific purpose grants may be used to influence state policies. In 2016–17, the states are budgeted to receive payments of $116.5 billion from the Commonwealth in specific purpose grants and general revenue grants. Payments for specific purposes will amount to $55.3 billion and general revenue assistance will be $61.3 billion (which equates to about 47 per cent of funding in special purpose grants and 53 per cent in general assistance grants). Thus, 47 per cent of all payments provided to the states are subject to conditions placed on the use of such moneys by the federal parliament: Federal Financial Relations Budget Paper No 3 2016–17 (Government of Australia, 2016) pp 3-8. The remainder of this section is concerned with the High Court’s interpretation of s 96 of the Constitution. Further discussion of the vertical fiscal imbalance between the Commonwealth and the states is

taken up at 14.14–14.17. In Victoria v Commonwealth (Federal Aid Roads case) (1926) 38 CLR 399, the Commonwealth granted money to the states to build and maintain certain roads. The federal law authorising the grants was challenged on the basis that its subject matter was outside federal power. The High Court unanimously dismissed the argument. Grants can relate to any purpose, and as the court pointed out in AttorneyGeneral (Vic) (Ex rel Black) v Commonwealth (DOGS case) (1981) 146 CLR 559, unlike s 81, there is no restriction in s 96 to ‘purposes of the Commonwealth’. The breadth of the power conferred by s 96 can be illustrated by the Uniform Tax cases: South Australia v Commonwealth (Uniform Tax case (No 1)) (1941) 65 CLR 373 and Victoria v Commonwealth (Uniform Tax case (No 2) (1957) 99 CLR 575. In these [page 365] cases, the states challenged federal legislative schemes that implemented a uniform national income tax, effectively removing the power of the states to levy concurrent income taxes: see further 14.14–14.15. Revenue excess to Commonwealth needs could be granted to the states pursuant to s 96 of the Constitution. The states argued that these laws were effectively coercive. It was held that s 96 was a power to give ‘assistance’, and not a power to pass coercive laws. Latham CJ said (at 417): The Commonwealth may properly induce a State to exercise its powers (eg, the power to make roads: see Victoria v Commonwealth (1926) 38 CLR 399) by offering a money grant. So also the Commonwealth may properly induce a State by the same means to abstain from exercising its powers.

In the circumstances, ‘temptation was not compulsion’, and the absence of any legal compulsion on the states to accept money under

the grants pointed to its validity under s 96. This point was emphasised by Dixon CJ, Webb and Kitto JJ in the Uniform Tax case (No 2): at 610, 642–3 and 658 respectively. Webb J remarked (at 642–3): Section 96 gives power to make a grant of financial assistance to a State on terms and conditions; but naturally the terms and conditions must be consistent with the nature of a grant, that is to say, they must not be such as would make the grant the subject of a binding agreement and not leave it to the voluntary arrangement that s 96 contemplates.

Although Commonwealth tax laws may not discriminate between states or parts of states, laws granting financial assistance under s 96 can. In Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735, the court considered a federal flour tax scheme which included a law granting money to Tasmania, the only state which imported flour. It was argued that the scheme infringed the prohibition in s 51(ii) that laws with respect to taxation must not discriminate between states and parts of states, and that s 96 should be interpreted as operating subject to the same restriction. The court held by majority (Latham CJ, Rich, Starke and McTiernan JJ; Evatt J dissenting) that the scheme, including the grants law, was valid. Latham CJ said (at 763–4): Sec 96 is a means provided by the Constitution which enables the Commonwealth Parliament, when it thinks proper, to adjust inequalities between the States which may arise from the application of uniform non-discriminatory Federal laws to States which vary in development and wealth.

14.11 In Pye v Renshaw (1951) 84 CLR 58 at 79–80, it was held that the Commonwealth could not use s 96 to grant money to a state with the object of inducing it to acquire land on a compulsory basis, circumventing the requirement of just terms in s 51(xxxi) of the Constitution. The holding that s 96 is constrained by the just terms guarantee has endured. In ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, the court again confirmed that a grant of financial assistance to a state on terms and conditions requiring the state to acquire property on other than just terms is unconstitutional: at 170

per French CJ, Gummow and Crennan JJ; at 206–7 per Heydon J. See also Williams v Commonwealth (2012) 248 CLR 156 at 235 per Gummow and Bell; Esposito v Commonwealth (2015) 235 FCR 1 at [66] per Allsop CJ, Flick and Perram JJ; Spencer v Commonwealth (2015) 328 ALR 16 at [384]– [385] per Mortimer J. In the latter case, Mortimer J extensively examined a number [page 366] of past High Court authorities, leading her Honour to conclude that s 51(xxxi) ‘conditions’ s 96: see [406]–[473]. 14.12 In Williams v Commonwealth (No 1) (2012) 248 CLR 156, the High Court sought to preserve the standing of the states within the federal system established by the Constitution by restricting the exercise of the Commonwealth’s executive power to enter into contracts without legislative authority. According to Gummow and Bell JJ ‘considerations of federalism’ were ‘stimulated by the bypassing by the Executive of s 96’: at 234. In this case, the court dismissed the Commonwealth’s attempt to use appropriated moneys to fund chaplaincy services at schools under agreements with chaplaincy providers without legislation in place to authorise that expenditure. As discussed at 13.35, the Commonwealth cannot use s 61 to enter into contracts to spend public money without legislative authorisation. It was earlier stated in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 that ss 81 and 83 do not confer a substantive spending power. In this absence, the Commonwealth requires a law authorising expenditure separate to that of the relevant Appropriations Act. It is also the case that the Commonwealth requires a head of power to support the legislation. In Williams (No 1) the court overturned long-term assumptions regarding the common

law capacities of the Crown (see discussion of the ‘common assumption’ at 13.33–13.35). In particular, the court held that s 61 did not permit the executive to enter into contracts to fund projects without legislation authorising that expenditure, even in circumstances where the Commonwealth has legislative authority to do just that. Either the Commonwealth authorises expenditure by enacting legislation or by a conditional grant to the state under s 96 of the Constitution. It cannot weaken the federal division of powers by circumventing the purpose of s 96. Gummow and Bell JJ (at 235–6) cited the judgment of Barwick CJ in Victoria v Commonwealth (Australian Assistance Plan case) (1975) 134 CLR 338 (at 357–8) in support of the view that the national chaplaincy scheme had the potential to interfere in a matter which was the responsibility of the states, not the Commonwealth: Section 96 … has enabled the Commonwealth to intrude in point of policy and perhaps administration into areas outside the Commonwealth legislative competence. No doubt, in a real sense, the basis on which grants to the claimant States have been quantified by the Grants Commission has further expanded the effect of the use of s 96. But a grant under s 96 with its attached conditions cannot be forced upon a State: the State must accept it with its conditions. Thus, although in point of economic fact, a State on occasions may have little option, these intrusions by the Commonwealth into areas of State power which action under s 96 enables, wear consensual aspect. Commonwealth expenditure of the Consolidated Revenue Fund to service a purpose which it is not constitutionally lawful for the Commonwealth to pursue, is quite a different matter. If allowed, it not only alters what may be called the financial federalism of the Constitution but it permits the Commonwealth effectively to interfere, without the consent of the State, in matters covered by the residue of governmental power assigned by the Constitution to the State.

On one level, Gummow and Bell JJ correctly note that the states have the ‘legal and practical capacity’ to provide for schemes that have an education-related purpose. They stated that ‘the conduct of the public school system in Queensland, where the Darling Heights State School is situated, is the responsibility of that

[page 367] State … Queensland maintains its own programme for school chaplains’: at 235. As such, there was no need for the Commonwealth to even get involved. On another level, however, the states may be assisted by way of Commonwealth funding for schemes like the chaplaincy scheme. The constitutional framework for such an arrangement is s 96. The point is that the Commonwealth may provide funding for chaplaincy services, but this must be made in accordance s 96 and not outside of it. As Barwick CJ observed in the Australian Assistance Plan case (at [43]), s 96 has been so broadly construed that it has allowed the ‘Commonwealth to intrude in point of policy and perhaps administration into areas outside the Commonwealth legislative competence’ (emphasis added). The provision of chaplaincy services is one example, given the court’s later confirmation in Williams v Commonwealth (No 2) (2014) 252 CLR 416 that the Commonwealth lacked the legislative power (that is, under ss 61 and 51(xxxix), s 51(xx) or s 51(xxiiiA)) to support s 32B of the Financial Management and Accountability Act 1997 (Cth) and Sch 1AA of the Financial Management and Accountability Regulations 1997 (Cth): see 13.37. A way around this obstacle is s 96 of the Constitution. Section 96 is the mechanism by which the Commonwealth could fund public programs, like the chaplaincy scheme, without a legislative power. The Commonwealth, however, had bypassed this option. Section 96 may be a broadly construed power but it is certainly not without limits. An important point, identified by Barwick CJ in the Australian Assistance Plan case, is the ‘consensual’ nature of s 96. The Commonwealth can impose whatever terms and conditions it likes, as a condition for the receipt of a grant, but it cannot force or compel a grant upon a state: Williams v Commonwealth (No 1) (2012) 248 CLR 156

at 235–6 per Gummow and Bell JJ; at 270 per Hayne J; at 347 per Crennan J. Conditional grants must not be coercive, leaving the state to freely choose whether it accepts the grant or not. It is for this reason that s 96 wears a ‘consensual aspect’. In Williams (No 1), the proposed exercise of ss 61 and 51(xxxix) went too far, as it permitted the Commonwealth to enter into funding agreements directly with providers of chaplaincy services, rather than funding the states to enter into such arrangements themselves. Given the fact that the services would be provided at state schools meant that any law made under s 51(xxxix) as incidental to a power to spend money lawfully appropriated by the Executive under s 61 could ‘demand obedience’ from the recipient: at 170 per Hayne J. This might prove coercive (that is, where ‘conditions’ are imposed on that expenditure), whereas s 96 precludes the making of anything coercive. Besides, were the Commonwealth able to bypass the states and fund chaplaincy providers directly, this would mean that the executive power would confer upon the Commonwealth an unlimited power to spend money, rendering s 96 otiose: at 267, 269 per Hayne J; at 373 per Kiefel J. The Commonwealth would then be able to support any and every law providing for the expenditure of money lawfully appropriated from the Consolidated Revenue Fund by using s 51(xxxix) in conjunction with the executive power. Such a reading is erroneous ‘because it would leave s 96 no work to do at all: not even to provide … for supplementation of State resources “when some special or particular need or occasion arose”. All work done by s 96 could be done by laws made under s 51(xxxix). Section 96 would be superfluous’: at 269 per Hayne J. Therefore, federal implications (including the preservation of s 96) were important to the High Court in Williams (No 1). [page 368]

Management of state debts 14.13 In 1927 the Commonwealth and the states entered a financial agreement which set up an Australian Loan Council which borrows money on behalf of the Commonwealth and the states. This scheme is authorised by s 105A of the Constitution, and the financial agreement is now considered to be part of the ‘organic law of the Commonwealth’: New South Wales v Commonwealth (No 1) (Garnishee case (No 1)) (1932) 46 CLR 155 at 186 per Starke J. Consequently, the financial agreement ‘can only be varied or rescinded by the parties’: Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1 at 280 per Rich and Williams JJ. The power of the financial agreement to bind its participants is less clear. In the Bank Nationalisation case, Rich and Williams JJ said that the effect of the agreement was that ‘the whole of the rights of the Commonwealth and of the states to borrow are included in the agreement and that no such rights exist outside the agreement’: at 281. However, in Sankey v Whitlam (1978) 142 CLR 1 the High Court held that a Commonwealth borrowing outside the financial agreement was not unlawful for that reason alone.

‘Fiscal federalism’ 14.14 In several parts of this book the fiscal imbalance between the Commonwealth and the states has been alluded to. That imbalance was entrenched by the High Court’s decisions in the Uniform Tax cases. The Uniform Tax Scheme was a federal legislative scheme with the object of securing to the Commonwealth the power to levy income tax. The scheme was comprised of a number of pieces of legislation. The first law in the scheme imposed an unprecedented rate of income tax that made it politically impossible for the states to levy a concurrent income tax. The second law made grants to the states

replacing the revenue they had previously generated from income tax. The third law forbade taxpayers from paying state tax until they had first paid federal tax. The expressed purpose of the provision was ‘for the better securing to the Commonwealth of the revenue required for the prosecution of the [Second World] war’. The fourth law transferred the entire apparatus of state income tax administration to the Commonwealth for the same period (the fourth law was expressed to be necessary for the public safety and defence of the Commonwealth and of the several states and for the more effectual prosecution of the war). The laws were challenged on a number of grounds, including that the laws ‘form a single legislative scheme the object, substance and effect of which is to prevent the States of the Commonwealth from exercising their respective constitutional rights and powers to levy and collect income tax and to make it impossible for such States to levy and collect income tax’: South Australia v Commonwealth (Uniform Tax case (No 1)) (1942) 65 CLR 373 at 416. The High Court upheld the laws by majority. Latham CJ, Rich, McTiernan and Williams JJ upheld the first and second laws. All the judges upheld the third law. Latham CJ and Starke J dissented as to the validity [page 369] of the fourth law, which was upheld by the other justices of the court under the defence power. Starke J dissented as to the validity of the second law on the ground that it did not leave ‘a free choice to the States’ but merely offered them a financial inducement while depriving them of their practical constitutional power to levy income tax. If the law were upheld, then ‘all State legislation and functions might ultimately be so considered’:

at 443. Latham CJ (with whom Rich J agreed, except as to the third law which he upheld under the defence power) emphasised (at 409) that: … the controversy before the Court is a legal controversy, not a political controversy … We have nothing to do with the wisdom or expediency of legislation. Such questions are for Parliaments and the people.

See also Williams J at 469. For that reason, reports of speeches in parliament were irrelevant and therefore inadmissible. The first law infringed no express limitation on the Commonwealth’s power of taxation. As far as the second law was concerned, the fact that a Commonwealth law creates a state need does not invalidate a law passed pursuant to s 96 relieving that need. An argument pre-dating Melbourne Corporation v Commonwealth (1947) 74 CLR 31, that the Commonwealth cannot direct its legislative powers towards destroying or weakening the constitutional functions or capacities of a state (see 419–21), was specifically rejected on the basis that the Commonwealth Acts did not command the states to do anything. Latham CJ dealt with Starke J’s objection to the method adopted by the Commonwealth in the second law as a ‘result that cannot be prevented by any legal decision’ (at 429): It is perhaps not out of place to point out that the scheme which the Commonwealth has applied to income tax of imposing rates so high as practically to exclude State taxation could be applied to other taxes so as to make the States almost completely dependent, financially and therefore generally, upon the Commonwealth.

McTiernan J upheld all of the laws pursuant to the defence power. Williams J gave similar reasons to Latham CJ. 14.15 The decision in South Australia v Commonwealth (Uniform Tax case (No 1)) (1942) 65 CLR 373 reduced the states to a subservient status, entrenching their dependence on s 96 grants for revenue to fund services. In light of their preceding decisions relating to s 96,

confirming its wide ambit when read literally, the court concluded that questions relating to fiscal imbalance were political questions for Parliament to determine. After the conclusion of World War II, the Commonwealth advised the states that it intended to continue the Uniform Tax Scheme indefinitely. In the early 1950s, the states discussed the resumption of state income taxes. In 1955 Victoria and New South Wales commenced proceedings to challenge the validity of the scheme. The States Grants (Tax Reimbursement) Act 1946 (Cth) authorised the payment of [page 370] financial assistance to a state on the condition that it had not, in that year, imposed a tax on incomes: s 5. Section 222(1) of the Income Tax Assessment Act 1936 (Cth) provided: (1) For the better securing to the Commonwealth of the revenue required for the purposes of the Commonwealth (a) a taxpayer shall not pay any tax imposed by or under any State Act on the income of any year of income in respect of which tax is imposed by or under any Act with which this Act is incorporated until he has paid that lastmentioned tax or has received from the Commissioner a certificate notifying him that the tax is no longer payable.

Victoria and New South Wales sought declarations that the State Grants (Tax Reimbursement) Act 1946 and s 221(1)(a) of the Income Tax Assessment Act 1936 were invalid. Sir Garfield Barwick QC, on behalf of Victoria, argued that the state grants law had as its object the control of states and constituted an unwarranted interference with their integrity, therefore infringing the Melbourne Corporation principle. Barwick QC also argued that s 222(1) of the Income Tax Assessment Act singled out the states, and subjected them to the control of the Commonwealth, The Commonwealth demurred.

The court (Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ) unanimously upheld the State Grants (Tax Reimbursement) Act 1946 as a valid exercise of s 96. A majority of the court (Dixon CJ, McTiernan, Kitto and Taylor JJ) struck down s 221(1) (a) of the Income Tax Assessment Act 1936. Dixon CJ, with whom Kitto J agreed, said (at 614): To support s. 221(1)(a) it must be said to be incidental to the federal power of taxation to forbid the subjects of a State to pay the tax imposed by the State until that imposed upon them by the Commonwealth is paid and, moreover, to do that as a measure assisting to exclude the States from the same field of taxation. This appears to me to go beyond any true conception of what is incidental to a legislative power and, under colour of recourse to the incidents of a power expressly granted, to attempt to advance or extend the substantive power actually granted to the Commonwealth until it reaches into the exercise of the constitutional powers of the States.

McTiernan J noted that in the Uniform Tax case (No 1) he had upheld the provision on the basis of the defence power (s 51(vi)). In the present case, s 222(1) was properly characterised as a law with respect to state income tax, not federal income tax (at 626), and was therefore invalid. Taylor J said (at 661): … the provisions of s. 221 were designed as a temporary measure. They were to continue in operation only until the expiration of a short period after the war and there was every reason for thinking that the demands of the war would maintain taxation at the same level during that period. In these circumstances it was a simple matter to assume that the general body of taxpayers would, at the very least, find difficulty in meeting both Commonwealth and State demands for income tax and to regard the provisions of s. 221(1)(a) as a measure designed to secure, in competition with the States, priority for payment of Commonwealth income tax. At all events these were the circumstances in which the question was decided and they were circumstances which were vastly different from those which now present themselves. The present section is no temporary provision designed to deal with a

[page 371] special and transient situation. Nor, much as experience may pessimistically incline

one to think otherwise, is there any sound reason for concluding that rates of income tax will remain indefinitely at a level which will require the Commonwealth and the States — if any of the latter should see fit to levy income tax — to endeavour, in competition with one another to collect their respective imposts from a body of taxpayers which, in general, will be unable or likely to be unable to pay both.

14.16 The states shored up their dwindling revenue for a time through increased reliance on money generated from ‘business franchise licence fees’ (even though members of the court had serious misgivings about their validity: see 2.31 and 7.50), but ultimately the High Court struck down these schemes. The states had imposed licence fees that were in substance taxes on goods and therefore inconsistent with s 90: see Ha v New South Wales (1997) 189 CLR 465, discussed at 7.50. When this occurred, state fiscal dependency on the Commonwealth became even more pronounced, because the states were precluded from taxing commodities. The Ha decision provided a political justification for the introduction of a consumption tax to buttress state revenue (the goods and services tax, or ‘GST’). This has further entrenched federal power over the states. The realpolitik of fiscal federalism in Australia is that the Commonwealth collects the lion’s share of the revenue, and then exerts fiscal leverage over the states to effect its policies by placing ‘terms and conditions’ on Commonwealth grants of financial assistance. 14.17 As Peter Hanks observed (2009), the effect of the above has been threefold: … first, the Commonwealth used its grants power (and other sources of Commonwealth power) to take over, in 1942, from the states their income tax revenues; second, the Commonwealth used its grants power over some 30 years to discourage the states from resuming the taxation of incomes; and third, the Commonwealth now uses the grants power to support, on a massive scale, state finances.

Directly after World War II, approximately 85 per cent of revenue was collected under Commonwealth legislation, and about 46 per cent of state revenue came from Commonwealth transfers. By 1980–81, about 78 per cent of revenue was collected under Commonwealth

legislation but some 62 per cent of state revenue was derived from Commonwealth transfers. In 2010–11, about 75 per cent of revenue was collected under Commonwealth legislation, and 50 per cent of state revenue was derived from Commonwealth transfers.

[page 373]

Chapter Fifteen

Trial by Jury under the Constitution Introduction 15.1

Section 80 of the Constitution provides:

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 held 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.

What are proceedings on indictment? 15.2 Proceedings ‘on indictment’ involve the formal setting out of charges against the accused on oath by a representative of the Queen before a jury — this is distinguishable from ‘summary proceedings’, where a person typically appears before a magistrate only: see Osborn, 1993. A literal approach 15.3 A literal approach to the interpretation of s 80 was endorsed in R v Archdall and Roskruge; Ex parte Carrigan and Browne (1928) 41 CLR 128. In that case, two union officials were separately charged, in summary proceedings, with offences against the Crimes Act 1914 (Cth) relating to their activities in organising strikes. The case turned on the interpretation of a number of apparently conflicting provisions in the Crimes Act and the Acts Interpretation Act 1904 (Cth). The

relevant sections of the Crimes Act provided: 12(1) Offences against this Act, other than indictable offences, shall be punishable either on indictment or on summary conviction; … 12(3) A court of summary jurisdiction may not impose a longer period of imprisonment than one year in respect of any one offence against this Act. 30K [provided relevantly that] whoever … without reasonable cause or excuse, by boycott of … property … hinders the provision of any public service by the Commonwealth … shall be guilty of an offence. Penalty: Imprisonment for one year.

Section 4 of the Acts Interpretation Act provided: … offences against any Act which are punishable by imprisonment for a period exceeding six months shall, unless the contrary intention appears in the Act, be indictable offences.

[page 374] Carrigan and Browne argued that subject to any contrary intention in the Crimes Act, the offences under the Crimes Act were to be read consistently with the Acts Interpretation Act. Because the Crimes Act indicated no contrary intention, the proceedings were to take place on indictment — and were consequently subject to the constitutional guarantee of trial by jury. It was argued further (at 133) that: To ascertain what are indictable offences within the meaning of sec 80 of the Constitution, regard must be had to the law as it stood when the Constitution Act was enacted, and such offences as were then regarded as indictable cannot be declared by Parliament to be other than indictable.

Knox CJ, Isaacs, Gavan Duffy and Powers JJ, in a joint judgment, remarked (at 136): The suggestion that the Parliament, by reason of sec 80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition.

Higgins J, in a separate, concurring (and often-quoted) judgment

observed (at 139–40): As for the contention … that the Crimes Act conflicts with sec 80 of the Constitution in prescribing a trial by a court of summary jurisdiction, instead of by indictment, I think that we are bound to reject it. Sec 80 merely says: ‘The trial on indictment of any offence against any law of the Commonwealth shall be by jury’ — that is to say, if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment [emphasis added].

This approach to the interpretation of s 80 has been confirmed in many decisions, including R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Sachter v Attorney-General (Cth) (1954) 94 CLR 86; Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v Rankin (1978) 141 CLR 182. In Cheng v The Queen (2000) 203 CLR 248 at 292, McHugh J observed that the ‘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’. 15.4 The literal approach has been criticised in dissenting judgments on many occasions: see, for example, R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 582–4 per Dixon and Evatt JJ; Beckwith v The Queen (1976) 51 ALJR 247 at 254 per Murphy J; Li Chia Hsing v Rankin (1978) 141 CLR 182 at 197 per Murphy J; Kingswell v The Queen (1985) 159 CLR 264 at 299 per Deane J; Cheng v The Queen (2000) 203 CLR 248 at 307 per Kirby J; Cheung v The Queen (2001) 209 CLR 1 at 38–9 per Kirby J; Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 343–4 per Kirby J. In White v Director of Military Prosecutions (2007) 231 CLR 570, Kirby J said (at [167]): In past cases, a majority of this Court has favoured the tautological view that s 80’s guarantee of ‘trial by jury’ is limited to cases in which the Parliament and the Executive provide for the commencement of prosecution by filing an indictment. However, a persistent minority has rejected this view as inconsistent with the function of s 80 as providing a guarantee of jury trial which could not so easily be circumvented. With respect, I favour what is presently the minority view. It is more harmonious with the language, constitutional context, purpose and function of the section. The

[page 375] contrary view renders trial by jury for the applicable federal offences optional in the hands of the very governmental agencies against whom jury trials can be a precious protection for the individual. That cannot be the meaning of the Constitution. When Australian judges and lawyers become more accustomed to reasoning by reference to fundamental rights, they will see the truth of this proposition more clearly … [references omitted].

15.5 In a number of cases it has been suggested that the word ‘indictment’ had a specific meaning at the time of Federation, referring to a procedure which was adopted for ‘serious’ offences. In Kingswell v The Queen (1985) 159 CLR 264, Deane J accepted this argument, holding (at 312) that: … a constitutional guarantee of trial by jury in criminal matters is directed, to no small extent, to the protection of the citizen against being subjected to having criminal guilt or innocence determined by a judge alone. In that context, there is an obvious need for cogent reasoning to support and explain any decision by judges that such a guarantee should be given a construction which would effectively render it illusory.

Deane J went on to say (at 312): The conclusion to which I have finally come is that, notwithstanding the contrary trend in subsequent judgments in this Court … the guarantee of the section is applicable in respect of any trial of an accused charged with an offence against a law of the Commonwealth in circumstances where the charge is brought by the State or an agency of the State and the accused will, if found guilty, stand convicted of a ‘serious offence’. As has been said, a particular alleged offence will, for the purposes of characterizing a particular trial as a ‘trial on indictment’, be a ‘serious offence’ if it is not one which could appropriately be dealt with summarily by justices or magistrates in that conviction will expose the accused to grave punishment. It is unnecessary, for the purposes of the present case, to seek to identify more precisely the boundary between offences which are not and offences which are capable of being properly so dealt with. I have, however, indicated the tentative view that that boundary will ordinarily be identified by reference to whether the offence is punishable, when prosecuted in the manner in which it is being prosecuted, by a maximum term of imprisonment of more than one year.

However, this argument was rejected by the majority. Leave to reopen Kingswell was refused by a majority of the court in Cheng v The

Queen (2000) 203 CLR 248.

Limits on s 80 Section 80 does not apply to the states or territories 15.6 The scope of s 80 is restricted by the fact that it applies to ‘any law of the Commonwealth’. A person must be charged with a Commonwealth offence for s 80 to apply: Kingswell v The Queen (1985) 159 CLR 264 at 292; Re Colina; Ex Parte Torney (1999) 200 CLR 386 at 397; Snedden v Republic of Croatia (2009) 178 FCR 546 at [100]–[107]. Section 80 does not limit the legislative power of the states: Byrnes v The Queen (1999) 199 CLR 1 at 32, 39. As noted at 5.8, the court in R v Bernasconi (1915) 19 CLR 629 has also held that s 80 does not apply in the territories (although for the reasons set out at 5.9, this decision would be likely to be overturned today). [page 376] Section 80 does not extend to courts martial 15.7 In Re Tyler; Ex parte Foley (1994) 181 CLR 18, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ (Deane and Gaudron JJ dissenting) held that the power of the Commonwealth to make laws with respect to defence and, incidentally, military discipline, were not subject to the constitutional guarantee of trial by jury in respect of Commonwealth indictable offences. Foley, a Wing Commander in the Royal Australian Air Force, was charged before a general court martial with the offence of dishonestly appropriating the property of the Commonwealth, contrary to s 47(1) of the Defence Force Discipline Act 1982 (Cth). The judge advocate of the court martial overruled Foley’s objection to its jurisdiction. Foley obtained an order

from Deane J directing him to apply by notice of motion to a Full Court for a writ of prohibition, prohibiting the members of the court martial from proceeding further upon the hearing. The grounds of the application included that the offence charged was substantially the same as offences under the Crimes Act 1914 (Cth) and the Crimes Act 1900 (NSW) and that he would be deprived of the protection of s 80 of the Constitution and the right to trial by jury under New South Wales law if the court martial proceeded. A majority of the court rejected this argument on the basis that the ‘system of discipline required for the proper organization of a defence force may, we said, be administered judicially, not as part of the judicature enacted under Ch III, but as part of the organization of the force itself’ (Mason CJ and Dawson J at 25–6; see also Brennan and Toohey JJ at 29–30). The right to trial by jury cannot be waived by the accused 15.8 If a federal law provides for proceedings on indictment, then the words of s 80 literally require that there ‘shall be trial by jury’ — and, consequently, the accused cannot waive this right. This principle was confirmed in Brown v The Queen (1986) 160 CLR 171. Brown was charged with federal drug offences and tried on indictment. He elected not to have a jury, and the trial judge ruled that s 80 disabled him from making that election. He was tried and convicted. On appeal to the High Court, Brennan, Deane and Dawson JJ held that the constitutional guarantee of trial by jury in s 80 could not be waived by Brown. The majority adopted a literal approach to the word ‘shall’ in s 80 and concluded that the provision requires that proceedings on indictment for Commonwealth offences be tried by jury: at 196, 201, 209. The argument that to reach this conclusion would be to ‘imprison a man in his own privileges’ was specifically rejected: see, for example, at 204. In Brownlee v The Queen (2001) 207 CLR 278, an

application for leave to reopen Brown v The Queen was refused. 15.9 The High Court affirmed Brown in Alqudsi v The Queen (2016) 332 ALR 20. Alqudsi was charged on indictment with seven offences against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). He applied by notice of motion to the Supreme Court of New South Wales for an order under s 132 of the Criminal Procedure Act 1986 (NSW) to be tried by judge alone. Under s 68 of the Judiciary Act 1903 (Cth), the Supreme Court has jurisdiction to try a person on indictment for an offence against a law of the Commonwealth. So far as they are applicable, and subject to s 80 of the Constitution, the laws [page 377] of New South Wales with respect to the procedure for the trial of a person on indictment are applied. Under s 40 of the Judiciary Act, the High Court removed Alqudsi’s application for a judge alone trial from the Supreme Court. The question presented for the court’s determination was whether s 132 of the Criminal Procedure Act was incapable of being applied to Alqudsi’s trial by s 68 of the Judiciary Act because it would be inconsistent with s 80 of the Constitution. 15.10 As already noted, in Brown v The Queen (1986) 160 CLR 171 the High Court held that s 80 precluded an accused, tried on indictment for an offence against a Commonwealth law, from making an election to be tried by judge alone under s 7 of the Juries Act 1927 (SA). Section 7 of the Juries Act, unlike s 132 of the Criminal Procedure Act 1986 (NSW), permitted unilateral waiver by the accused. In other words, it permitted the accused alone to elect trial by judge alone. Section 132, by contrast, relevantly empowered the

Supreme Court to make a trial by judge alone order in three circumstances (see Alqudsi v The Queen (2016) 332 ALR 20 at [85] per Kiefel, Bell and Keane JJ): (1) if the prosecutor and the accused agreed, the Supreme Court was required to make an order; (2) if the prosecutor did not agree, the Supreme Court could make an order if it considered that it was in the interests of justice to do so; or (3) if the court was of the opinion that there was a substantial risk of acts being committed that may constitute an offence under Div 3, Pt 7 of the Crimes Act 1900 (NSW), the Supreme Court was required to make an order. Division 3 dealt with offences against public justice, including offences involving interference with jurors. This case fell within (2), above. The Brown court split 3:2 on the question whether trial by jury could be waived. The majority held that an accused could not waive trial by jury, including because it was not only an individual right, but also had an institutional dimension. As French CJ explained, the Brown majority conceived of the jury as an ‘essential component of a court exercising the jurisdiction described by the section or part of the structure of government rather than the grant of a privilege individuals’: Alqudsi at [50]; see also [94]–[95]. Because of the distinction between s 7 of the Juries Act 1927 (SA) and s 132 of the Criminal Procedure Act 1986 (NSW), Alqudsi argued (at [88]) that this case fell outside the holding in Brown, which he contended was confined to unilateral waiver. But that was a distinction that made no difference (at [89]). The reasoning of the Brown majority was inconsistent with Alqudsi’s position (at [56], [95], [214]-[215]). Accordingly, to succeed, Alqudsi had to persuade the court that Brown

should not be followed or overruled. By majority, the court concluded that s 132 of the Criminal Procedure Act 1986 (NSW) was incapable of being picked by s 68 of the Judiciary Act 1903 (Cth) because it would be inconsistent with s 80. Kiefel, Bell and Keane JJ wrote jointly, as did Nettle and Gordon JJ. Gageler J wrote separately. French CJ dissented. [page 378] Although there were three separate judgments of the majority, the reasons of the majority justices for affirming Brown substantially overlapped. The constitutional text is unambiguous, unqualified and absolute 15.11 The command that a trial on indictment for an offence against a law of the Commonwealth ‘shall be by jury’ is neither ‘ambiguous’ nor ‘qualified’: Alqudsi at [113]; see also [173]. It is expressed in ‘in absolute terms’ (at [173]), and it is not possible, as a matter of construction, to interpret the ‘absolute and unqualified’ requirement prescribed by s 80 as consistent with the idea that a trial on indictment for an offence against a law of the Commonwealth does not have to be before a jury: at [173]. Nothing in the decisions of the court since Brown supported the ‘proposition that the plain words of s 80 may be read as subject to exception when a court assesses it is in the interests of justice that trial on indictment of an offence against any law of the Commonwealth be by judge alone’: Alqudsi at [113] (emphasis added). In particular, the court’s decision in Cole v Whitfield (1988) 165 CLR 360 — holding that s 92 applied only to restrictions on interstate trade, commerce and intercourse of a protectionist kind — did not advance Alqudsi’s

argument: Alqudsi at [113]; see also at [186]–[187]; Nettle and Gordon JJ referring, in addition to s 92, to the court’s s 117 jurisprudence. Section 92 left open the question: from what is interstate trade and commerce to be immune (at [113], [186])? There was, by contrast, nothing ‘open-textured or undefined’ about the terms of s 80 (at [187]). Gageler J said colourfully (at [126]): To accept that the prescription that the trial on indictment of any offence against any law of the Commonwealth shall be by jury is to be read as impliedly admitting that some trials on indictment of some offence against some laws of the Commonwealth might be by judge alone, would be to accept (to say the least) a linguistic contortion [original emphasis].

Context and purpose 15.12 Alqudsi ascribed two purposes to the prescription that trial on indictment for an offence against a law of the Commonwealth shall be by jury (Alqudsi at [123], [96]): (1) a purpose of protecting the liberty of those who are accused; and (2) a broader public interest in the administration of justice. He postulated that the prescription did not apply where a court was able to determine that those purposes would not be served were the trial of an accused to proceed by jury: at [123]. The Attorney-General of the Commonwealth, who intervened in support of Alqudsi, argued that s 132 respected the individual and community values that underpin s 80, while ensuring the due administration of justice by providing for trial by judge alone where the interests of justice in a particular case so required. Contrary to the argument put by the Attorney-General of the Commonwealth that the construction adopted in Brown was divorced from constitutional context and purpose, the plurality considered that the Brown majority was ‘mindful of the place of s 80 in Ch III as part of the structure of government’: at [115]; and see at [112]. Trial by jury not only protects the liberty of the individual by interposing the community between the accused and the state, it is also important for

the [page 379] administration of criminal justice: at [116]. ‘The verdict of the jury has unique legitimacy’: at [117]. The plurality embraced the Commonwealth Director of Public Prosecutions’ submission that the ‘determination of guilt by jury protects the courts from controversy and secures community support for, and trust in, the administration of criminal justice’: at [117]; see also at [135]. In Gageler J’s view, not only did the ‘sweeping and unqualified language’ of s 80 stand in the way of Alqudsi making good his argument, but the purposes Alqudsi ascribed to s 80 were ‘simply too limited’: at [127]. Trial by jury serves to ensure a ‘measure of democratic participation in the administration of criminal law’: at [133]. If one or more parties in a trial on indictment or a court could determine that the protection of the liberty of the accused and the public interest in the administration of justice were sufficient to justify the court being constituted by judge alone, the constitutional guarantee of democratic participation would be flouted: at [140]. Adverse pre-trial publicity does not require trial by judge alone, nor does the fact that a trial may be lengthy or involve complex expert evidence 15.13 Trials may be preceded by adverse publicity. They might also be lengthy and involve complex expert evidence. But it does not follow, where factors of that kind are at play, the interests of justice in particular cases requires trial by judge alone (or, put differently, could only be served a judge alone trial). Alqudsi’s argument assumed, but did not establish, that premise.

A trial judge has available to them mechanisms to deal with such circumstances as adverse pre-trial publicity that may be thought, in particular cases, to render trial by jury contrary to the interests of justice. One mechanism is a direction to the jury. The jury system proceeds on the premise that juries will act in conformity with a trial judge’s directions and render a true verdict in accordance with the evidence: Alqudsi at [120]; see also at [195]. Trial by jury imposes discipline on all participants in a criminal trial by requiring that the case against or in favour of the accused be made comprehensible to ordinary citizens. By making a case comprehensible to a jury, the participants in the criminal trial make it comprehensible both to the accused and the public, thereby engendering support for the criminal process: at [119]. So, in other words, trial by jury serves, rather than frustrates, the interests of justice by effectively requiring that complex expert evidence be rendered comprehensible. No trial on indictment? 15.14 Only trials ‘on indictment’ must be by jury. Consistent with long established authority (see 15.3), the Commonwealth can prescribe which offences will proceed ‘on indictment’, including by prescribing the conditions by which an offence that could be tried either on indictment or summarily will proceed summarily. The Commonwealth argued in Alqudsi that there was no ‘meaningful distinction’ between an ‘elective mechanism’ for the summary trial of an indictable offence and an elective mechanism for trial by judge alone. It argued that there was no ‘trial on indictment’ until all conditions specified by parliament, including of the kind provided by s 132 of the Criminal Procedure Act 1986 (NSW), had [page 380]

been worked through and the accused was placed in the charge of the jury: at [106]–[107]; see also at [142], [179]. The court rejected the Commonwealth’s argument, including because by the time the Supreme Court considers whether to make a trial by judge alone order, the proceeding is already ‘on indictment’ and s 80 is therefore engaged: at [109]; see also at [209]–[211]. Section 9A of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) expressly provided that all prosecutions for offences against that Act ‘shall be on indictment’: at [147], [179]. In this case, there was in substance and nomenclature a proceeding ‘on indictment’: at [148]. French CJ’s dissent 15.15 Though he would have upheld the formal ruling in Brown, French CJ would have rejected the principle underpinning that ruling as ‘too broad, and imposing an unwarranted rigidity upon the construction of s 80’: Alqudsi at [76]. The formal ruling in Brown — that s 80 precluded an accused alone electing to be tried by judge alone — was correct because s 80 has both institutional and rights protective dimensions: at [55], [75], [76]. A mechanism like s 132 of the Criminal Procedure Act 1986 (NSW) recognises those dimensions. Section 80 takes its place in Ch III of the Constitution. The ‘final and paramount purpose of the exercise of federal judicial power is “to do justice”’: at [1]; see also at [74]. So long as both the institutional and rights protective dimensions of s 80 are respected (as they would be by a mechanism like s 132), s 80 yields to the overriding purpose of Ch III to do justice where, in a particular case, it would be in the interests of justice to proceed by judge alone trial: at [74]–[76]. A state has the freedom to constitute and organise its courts as it sees fit 15.16

The Commonwealth must take a state court as it finds it. It

has no power to alter the constitution or organisation of state courts. But if a state court can be constituted in more than one way — relevantly, either with or without a jury — in the exercise of state jurisdiction, it does not follow, contrary to a submission put by Victoria, that the constitution or organisation of the court is altered if, because of s 80 of the Constitution, the state court cannot be organised or constituted in one of those ways when exercising federal jurisdiction. Section 80 simply renders unavailable one of two ways in which the state court could, but need not be, organised or constituted in the exercise of state jurisdiction: Alqudsi at [217]–[221] per Nettle and Gordon JJ. The aspect of the state court’s constitution or organisation that would be available in the exercise of state jurisdiction ‘is not engaged in the exercise of federal jurisdiction’: at [220].

The scope of the guarantee Section 80 juries must be unanimous 15.17 In R v Snow (1915) 20 CLR 315, Snow was charged with indictable offences under the Trading with the Enemy Act 1914 (Cth). The information laid against Snow alleged that he had committed offences before and after the Act had received royal assent. The defendant was tried for the offences before Gordon J and a jury [page 381] in the Supreme Court of South Australia exercising federal jurisdiction. At the conclusion of the case, and after defence counsel’s argument and an adjournment of one week, the judge decided that the Act did not operate retrospectively, and, further, that the evidence of

the offences after the date of commencement of the Act was insufficient to go to the jury. Consequently, the judge concluded that the case had to be stopped, the jury could be dismissed and the accused discharged. The judge directed an acquittal. The Crown appealed to the High Court on the basis that the High Court had full appellate jurisdiction under s 73 of the Constitution to hear an appeal from a jury verdict of acquittal and grant a new trial. One of Snow’s arguments was that the common law had never recognised that an appeal could be made after an acquittal by jury, and this common law right was constitutionally guaranteed by s 80. The High Court agreed. Griffith CJ said (at 322–3): The common law doctrine as to the effect of a verdict of acquittal is too well settled to require exposition, and it is too late to inquire into its origin. If it had been intended by the framers of the Constitution to abrogate that doctrine in Australia, and to confer upon the High Court a new authority, such as had never been exercised under the British system of jurisprudence by any court of either original or appellate jurisdiction, it might have been anticipated that so revolutionary a change would have been expressed in the clearest language … So far from finding any clear indication in the Australian Constitution, I find a clear indication of a contrary intention. Sec 80 lays down as a fundamental law of the Commonwealth that the trial on indictment of any offence against any of the laws of the Commonwealth shall be by jury. The framers of the Constitution, the electors who accepted it, and the Parliament which enacted it, must all be taken to have been aware of the absolute protection afforded by a verdict of not guilty under the common law of all the States. With this knowledge they thought proper to enact that any indictable offence that might be created by the new legislative authority established by the Constitution should also be tried by jury. The history of the law of trial by jury as a British institution … is, in my judgment, sufficient to show that this provision ought prima facie to be construed as an adoption of the institution of ‘trial by jury’ with all that was connoted by that phrase in constitutional law and in the common law of England.

15.18 A unanimous High Court approved this statement of principle and method of interpretation of s 80 in Cheatle v The Queen (1993) 177 CLR 541. That case involved a challenge to the validity of s 57(1)(a) and (4)(a) of the Juries Act 1927 (SA), which made provision for majority verdicts (of 10 or 11 jurors out of 12) to be returned in circumstances where, after at least four hours of deliberation, the

parties were not able to reach a unanimous verdict. The appellants had been charged with conspiracy to defraud the Commonwealth under s 86A of the Crimes Act 1914 (Cth), an indictable offence. The appellants invoked s 80, arguing that the section required that any conviction of such an offence must be by a unanimous jury. The High Court held that the reference in s 80 of the Constitution to trial by jury was to be understood in accordance with the common law history of criminal trial by jury at Federation: at 552. The court referred with approval to the judgment of Griffith CJ in R v Snow (1915) 20 CLR 315 at 323. The court said that unanimous jury verdicts had been a requirement at common law since the 14th century, and [page 382] the clear weight of judicial authority supported the unanimity requirement. The requirement could be justified on the grounds that it: ensured ‘the representative character and the collective nature of the jury’ was ‘carried forward into any ultimate verdict’; ‘provides some insurance that the opinions of each of the jurors will be heard and discussed’ thereby reducing ‘the danger of hasty and unjust verdicts’; and reinforced the rule that ‘a person accused of a crime should be given the benefit of any reasonable doubt’: at 550–5. The State of South Australia, intervening, challenged the adoption of the historical approach, arguing that no institution was better placed than a state parliament to determine the contemporary standards of a polity and thus settle the contours of trial by jury (at 545): In 1900 the characteristic features of the jury as an institution were that its members were twelve in number, were male, had a significant property qualification, were locally selected, were susceptible to a specified number of challenges, had to be unanimous, did not give reasons, their verdict of acquittal was absolute, and an alien

could require a jury de medietate linguae. Neither history nor concepts of substance and procedure provide a sound basis for deciding which of those features can be discarded. It could not have been intended that all those features were immutable.

A unanimous High Court rejected this argument and endorsed an approach that commences with an historical analysis of the constitutional provision, modified to accommodate contemporary standards (at 560): There was, it was argued, no more justification for the perception that s 80 incorporates the requirement of unanimity than there would be for the approach that the section requires the preservation of those undesirable aspects of trial by jury in 1900 (ie, the exclusion of females from juries or property qualifications for jurors). The answer to that argument is, however, clear enough. It is that to abrogate the requirement of unanimity involves an abandonment of an essential feature of the institution of trial by jury. In contrast, a liberalization of the qualifications of jurors involves no more than an adjustment of the institution to conform with contemporary standards and to bring about a situation which is more truly representative of the community.

15.19 As noted previously, this approach to constitutional interpretation plainly yields opportunities for discretionary choice for the members of the court. There are choices involved in deciding which materials should be used to settle an historical context within which the construction of the provision takes place, about the construction of the language of the provision once the historical context has been settled, and (perhaps most controversially) about what ‘contemporary standards’ are and who should settle them. 15.20 Gleeson CJ reflected on this process in obiter in Singh v Commonwealth (2004) 222 CLR 322 at [24]–[25], and on what his Honour regarded to be the limited role of the judge in settling contemporary standards and the constraining effects of principle and authority (at 338–9): Cheatle was a unanimous decision of the Court. The reasons were given in a joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The background to the case was that, at the time (1993), the States of South Australia, Western Australia and Tasmania, and the Northern Territory, like the United Kingdom, had legislation providing for the taking of majority verdicts in criminal

[page 383] trials. By contrast, in New South Wales, Queensland and, at the time, Victoria, jury verdicts at criminal trials were required to be unanimous. (Since then, Victoria has legislated for majority verdicts.) Section 80 of the Constitution requires the trial on indictment of an offence against any law of the Commonwealth to be by jury. Under ss 68 and 79 of the Judiciary Act 1903 (Cth), federal offences are frequently dealt with by State courts, following State procedures. The appellants were tried in South Australia for an offence against a law of the Commonwealth. They were convicted following a majority verdict of a jury. This Court upheld their submission that, by virtue of s 80 of the Constitution, the convictions were nullities. The requirement of s 80 was that the trial ‘shall be by jury’: no more, and no less. The appellants were tried, before a judge and jury, according to the practice and procedure then current in South Australia, and in a number of other comparable jurisdictions. It is now the procedure current in most Australian jurisdictions. If, in 1993, and without reference to the Constitution, one were to ask, as an abstract question, whether trial by jury could include provision for majority verdicts, the answer would have been yes. If, today, one were to ask the same question, relating it to modern practice in Australian jurisdictions, the answer would be the same. Indeed, if progress were equated with change, the progressive view would surely be that the practice of trial by jury can accommodate majority verdicts. That is the modern trend, and there has been pressure for change even in those jurisdictions that retain a requirement for unanimity. If the words ‘trial on indictment … shall be by jury’ were taken out of their context, including their historical context, and considered solely in the light of current community values as reflected in legislation, it is difficult to see how the words could be understood as denying the possibility of majority verdicts. Why the values reflected in the legislation of, say, New South Wales and Queensland, would prevail over those reflected in the legislation of Victoria and South Australia, is not apparent. To make that the test, however, would involve a cardinal error, as this Court held. There is a further difficulty to be addressed. Trial by jury is a procedure that has evolved, and continues to evolve. Some aspects of jury trial that applied in the nineteenth century, such as property qualifications of jurors or exclusion of women, no longer apply. No one supposes that s 80 requires that, in the case of persons charged with federal offences, jury trial must have all the characteristics of jury trial in 1900. The procedure is not frozen as at that date. Yet one aspect of the procedure, unanimity, was held to be immutable. In reaching that conclusion, the Court took account of three considerations: history; principle; and judicial authority.

15.21 In Cheatle v The Queen (1993) 177 CLR 541 at 560, the unanimous court said:

Neither the exclusion of females nor the existence of some property qualification was an essential feature of the institution of trial by jury in 1900. The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community. It may be that there are certain unchanging elements of that feature or requirement such as, for example, that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State.

The court’s observations in the final sentence of this quote were at issue in Katsuno v The Queen (1999) 199 CLR 40. The case concerned the practice of ‘jury vetting’. Under the Juries Act 1967 (Vic), the Crown had the power to make up to six peremptory challenges to jurors convened for a trial. The law gave the Sheriff convening juries the power to refer proposed jury lists to the Chief Commissioner of Police, who had the power to perform background checks in order to disqualify jurors for a range of reasons, including past criminal convictions. The Commissioner [page 384] had developed a practice of passing the list to the Director of Public Prosecutions (DPP) to assist them in making decisions about which jurors to challenge. Katsuno was charged with importing a commercial quantity of heroin into Australia contrary to s 233B(1)(b) of the Customs Act 1901 (Cth) and was convicted by a jury convened pursuant to s 80 of the Constitution. He argued that the Juries Act provided no statutory power to the Commissioner to pass lists of jurors on to the DPP, and this argument was accepted by a majority of the High Court. Katsuno further argued that the failure to comply with the state jury law interfered with the selection of jury members to such an extent that the constitutional right to trial by jury under s 80 had been breached. Katsuno argued that a jury panel under s 80 must be randomly selected and be seen to be randomly selected. Impartiality,

representativeness and randomness were argued to be essential or minimum requirements of the institution of trial by jury, and to the extent that the proceedings had not conformed to these requirements, s 80 had been breached. The argument was rejected by a majority of the court on the basis that the breaches of the Victorian jury law took place at a point anterior to the actual selection of the jury (at 65 per Gaudron, Gummow and Callinan JJ, with whom Gleeson CJ agreed at 51): The fact that the prosecutor made use of the information in making the peremptory challenge that he made was not such a departure from a mandatory provision relating to the authority and constitution of the jury as to deny the constitutionality of the appellant’s trial [emphasis added].

A unanimous jury of six or 10, but not 12, is required 15.22 In Brownlee v The Queen (2001) 207 CLR 278, Brownlee was charged with conspiracy to defraud the Commonwealth under the federal Crimes Act 1914 and was tried on indictment in the District Court in Sydney. Brownlee appealed unsuccessfully to the New South Wales Court of Appeal and then sought special leave to appeal to the High Court. Brownlee challenged provisions of the Jury Act 1977 (NSW) on the basis that, historically, a jury had 12 members. Under the New South Wales law, if any juror died or was discharged for any other reason, the jury could still operate so long as its number did not fall below 10 persons. Brownlee also argued that the jury should not have been permitted to separate after they had retired to consider their verdict. Brownlee was convicted by a unanimous jury of 10 after two people were discharged during a lengthy trial. The court had the opportunity to consider the approach adopted to the construction of s 80 and constitutional provisions generally. It concluded that there was no constitutional requirement that a jury be made up of 12 members: at 288, 296, 331, 341. In the course of their judgments, the members of the court also

made observations about the minimum number of jurors that might be needed to satisfy the constitutional requirements of independence, representativeness and randomness of selection. Gleeson CJ and McHugh J approved United States authority that these goals are not ‘in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 — particularly if the requirement of [page 385] unanimity is retained’: at 289. Gaudron, Gummow and Hayne JJ remarked that ‘if 12 be taken as the requisite minimum with which the trial must commence, there is much force in the contention that no reduction below 10 is permissible’: at 303–4. Callinan J said (at 342) that: … there is no reason in principle why a jury of twelve persons should necessarily be considered more representative of the community than a jury of ten persons or fourteen, although there may come a point at which a somewhat smaller number could not, in any real sense, be regarded as a jury, a matter that is unnecessary to be decided in this case.

15.23 In Brownlee v The Queen (2001) 207 CLR 278 it had also been argued that allowing a jury to separate after they had retired to consider their verdict was unconstitutional because it exposed jurors to the spectre of improper external influence, in contravention of a constitutional requirement of ‘trial by jury’ in s 80. The argument was rejected on the basis that separation of jury members does not necessarily impair the function of the jury, that jurors may be warned by the trial judge to resist external influences, and if they are affected, the trial judge can make appropriate orders: at 290, 342–3. Furthermore, the anonymity of jurors is protected by legislation, reducing the risks of external influence: at 290. It is possible that a trial

could become so tainted that a person could be found not to have had a ‘trial by jury’ within s 80 of the Constitution, but on the evidence available this had not occurred in Brownlee: at 342–3. 15.24 There are a number of cases in which it has been argued that procedural defects in a criminal matter have done such damage as to amount to a denial of jury trial within s 80. In Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, the High Court considered an argument that a provision authorising a federal board of inquiry to compel the giving of evidence infringed s 80, on the basis that any evidence given might prejudice a future trial by jury. This argument was rejected by the court on the basis that collateral proceedings on indictment against the witness for an offence against the Commonwealth which might attract s 80 were not on foot, therefore it was impossible to say whether the compulsion to give evidence would be damaging to a trial that may not take place: Griffith CJ at 358; Barton J at 366; O’Connor J at 374–5; Isaacs J at 386; Higgins J at 418. Murphy J criticised the decision of the court in Huddart, Parker in his dissenting judgment in Hammond v Commonwealth (1982) 152 CLR 188 at 201, on the basis that the right of an accused to a fair trial would be adversely affected if he or she were required to give testimony at an enquiry (such as a Royal Commission) and the evidence given could be used against them in later proceedings. Nevertheless, the argument was again rejected in Sorby v Commonwealth (1983) 152 CLR 281 by Mason, Wilson and Dawson JJ in a joint judgment at 308–9. However, Gibbs CJ, in obiter, provided some guidance regarding the relationship between the constitutional guarantee of trial by jury and the other common law incidents of a fair trial, including the right to silence. His Honour expressed the view that the argument might be given weight in circumstances where the persons giving evidence were awaiting trial for a criminal offence,

though even then there might not be any ‘necessary impairment’ of the trial: at 299. The argument would [page 386] only be persuasive where ‘there was a real possibility that if he was required to answer incriminating questions the administration of justice would be interfered with’: at 299. 15.25 In Handlen v The Queen; Paddison v The Queen [2011] HCA 51; (2011) 283 ALR 427, the appellants had been convicted in their joint trial before the Supreme Court of Queensland (Applegarth J and a jury) of offences against the Criminal Code (Cth). Specifically, Handlen and Paddison were convicted of importing a commercial quantity of border-controlled drugs into Australia, contrary to s 307.1 of that Code. The trial was conducted on the mistaken assumption that guilt of the offences could be established by proof that the appellants were participating in a joint criminal enterprise. At the time the trial took place, joint criminal enterprise could not lead to criminal liability under the Code. The appellants appealed to the Queensland Court of Appeal against their convictions. The Court of Appeal accepted that the trial judge had misdirected the jury, but applied s 668E(1A) of the Criminal Code (Qld), which states that the Court of Appeal ‘may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred’. The Court of Appeal concluded that notwithstanding the error at trial, the appellants’ guilt had been proved beyond reasonable doubt. The majority of the High Court, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, allowed the appeals and therefore had no need to consider a

constitutional argument raised by the appellants under s 80: that the prosecution of the appellants upon a basis that was not known to law was a departure from the proper conduct of a jury trial within s 80 of the Constitution. Heydon J, who dissented, dealt with that constitutional argument by observing (at [81]): If the appellants’ submission were correct, it would mean that any jury misdirection on the elements of an offence would make the trial not one complying with s 80 and would prevent the proviso from applying. That outcome is inconsistent with the cases … in which jury misdirections have not prevented the proviso from being applied …

[page 387]

Chapter Sixteen

Freedom of Religion under the Constitution Introduction 16.1

Section 116 of the Constitution provides:

The Commonwealth shall 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 for any office or public trust under the Commonwealth.

16.2 Although s 116 appears, incongruously, in a chapter entitled ‘The States’ (Constitution, Ch V), it has no application to the states: Attorney-General for Victoria; Ex rel Black v Commonwealth (Defence of Government Schools case) (1981) 146 CLR 559 at 577 per Barwick CJ; at 594 per Gibbs J; at 652 per Wilson J. As Dawson J explained in Kruger v Commonwealth (1997) 190 CLR 1 at 60: The explanation why s 116, unlike the other sections in Ch V, is directed to the Commonwealth is that ultimately the matter with which those responsible for its drafting were concerned was the possibility that, because of the reference to ‘Almighty God’ in the preamble to the Constitution, there might be a perception that the Commonwealth had the power to interfere in matters of religion. The clause which eventually became s 116 was originally drafted to include the States, but in order to emphasise the prohibition imposed upon the Commonwealth, the States were excluded. The amendment in that form was moved by Mr Higgins who said (Official Record of the Debates of the Australasian Federal Convention (Melbourne), 2 March 1898, vol V at 1769): My idea is to make it clear beyond doubt that the powers which the states

individually have of making such laws as they like with regard to religion shall remain undisturbed and unbroken, and to make it clear that in framing this Constitution there is no intention whatever to give to the Federal Parliament the power to interfere in these matters. My object is to leave the reserved rights to the states where they are, to leave the existing law as it is.

16.3 The question whether s 116 applies to Commonwealth laws enacted under the territories power (s 122) has been more contentious. There have been conflicting obiter statements on the question: see Teori Tau v Commonwealth (1969) 119 CLR 564 at 570; Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 at 123 per Latham CJ; 156–7 per McTiernan J; Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 at 576 per Barwick CJ; at 618 per Mason J; at 621 per Murphy J; at 649 per Wilson J; cf at 593–4 per Gibbs J. [page 388] The question arose for determination in Kruger v Commonwealth (1997) 190 CLR 1. Some passages of the judgments have been set out in greater length as they raise issues relating to the characterisation of laws challenged under s 116 that are considered later in this chapter. 16.4 In Kruger, a number of Aboriginal people said that they had been removed from their mothers and families and detained under provisions of the Aboriginals Ordinance 1918 (NT). A sixth plaintiff, Rosie Napangardi McClary, alleged that she was the mother of a child who had been removed and detained. The plaintiffs alleged that the ordinance and relevant regulations made under it authorising the removal and detention of children were invalid on a number of grounds, including that they were laws for prohibiting the free exercise of religion contrary to s 116 of the Constitution. The plaintiffs

referred to previous obiter dicta supporting the principle that s 122 is restricted by s 116 and argued (at 13–14): The system of spiritual beliefs and practices of the Aboriginal people satisfies any definition of religion in the cases (eg, Adelaide Co of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116; Church of the New Faith v Commissioner of Payroll Tax (Vict) (1983) 154 CLR 120 at 136, 151, 174–175. Judicial notice has been taken of the status of Aboriginal belief systems as a religion (Church of the New Faith v Commissioner of Payroll Tax (Vict) (1983) 154 CLR 120 at 151; Aboriginal Legal Rights Movement Inc v South Australia (the Hindmarsh Island case) (1995) 64 SASR 551; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167). The concept of religion extends to ‘acts … done in pursuance of religious beliefs’ (Adelaide Co of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 124; Church of the New Faith v Commissioner of Payroll Tax (Vict) (1983) 154 CLR 120 at 130) and to ‘teaching and propagation of religion, and to the practices and observances of religion’ (Adelaide Co of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 156; Church of the New Faith v Commissioner of Payroll Tax (Vict) (1983) 154 CLR 120 at 135). The notion of religion protected by s 116 necessarily imports a freedom to associate for religious purposes. Many religions, including those of the Aboriginal people, are not practised in solitude but within family groups and clans. For an Aboriginal child, freedom of religion necessitates that the child be not removed and kept apart from the family, as such actions will prevent the means by which Aboriginal religion is passed on through the generations. Preventing a child from learning a religion which he or she would otherwise acquire in the ordinary course from the family intrudes on freedom of religion, as does preventing parents from teaching or passing on religious beliefs to their children. The terms of s 116 require the Court to determine the purpose of the law. Apart from the establishment limb of s 116, it is not necessary to show that prohibition of the free exercise of religion is the sole purpose of the law or to show that the law-maker knew that its subject matter is a religion. Its effect of a law is a reliable guide to its purpose (Cunliffe v The Commonwealth (1994) 182 CLR 272 at 387–388; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 95; Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 615–616). The impact of the Aboriginals Ordinance on freedom of religion was not merely an incidental by-product, but a direct consequence, of the Ordinance and the executive acts under it. The law was directed to, and adapted to the purpose of, removing Aboriginal people from their culture and traditions. It prevented removed children from learning, observing, practising and participating in the religion of their family and community, precluded their parents and families from passing on the rites and secrets of their religion, and prevented all of them from associating for religious purposes, making continuance of the religious community impossible.

[page 389] The Commonwealth argued (at 22–3): Section 116 has not been held to apply to s 122. That the people of the Northern Territory would have lost the benefit of s 116 upon surrender of the Territory in 1911 does not tell against this proposition. Even if s 116 limits the Commonwealth’s power under s 122, the impugned sections of the Ordinance do not infringe s 116. The plaintiffs have not pleaded that at the relevant time they or their parents held a religion. Nor is there anything in the Ordinance to indicate that its purpose was to prohibit the exercise by Aboriginal people of their religion (Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559). Even if the effect, rather than the purpose, of the law were determinative of its compatibility with s 116, the impact of the Ordinance on freedom of religion must be considered against its legitimate purpose in determining whether the infringement was impermissible. Section 116 is not infringed by limitations reasonably necessary for the protection of the community and in the interests of social order (Adelaide Co of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116).

16.5 A majority of the court struck down the challenge. The reasoning of the justices varied. Two of the justices rejected the argument that s 122 was restricted by s 116. Dawson J, with whom McHugh J agreed, said that ‘Commonwealth Parliament is, with respect to the territories, a completely sovereign legislature’ and that s 122 was unrestricted by ss 80, 116 or 118. Dawson J added that if he was wrong in that conclusion, he would agree with Gummow J, for the reasons given by him, that the 1918 ordinance contained nothing that would enable it to be said that it is a law for prohibiting the free exercise of any religion: at 60–1. Brennan CJ, Toohey and Gummow JJ rejected the challenge on the basis that the law could not be said to be a law ‘for’ the prohibiting of the free exercise of religion, as s 116 specified. Brennan CJ said that to ‘attract invalidity under s 116, a law must have the purpose of achieving an object which s 116 forbids [Brennan CJ cited AttorneyGeneral (Vict); Ex rel Black v Commonwealth (1981) 146 CLR 559 at 579, 615–16, 653, considered at 16.8]. None of the impugned laws has such

a purpose’: at 40. Toohey J said that, in applying this approach to the characterisation task, the question should be: ‘Was a purpose of the Ordinance to prohibit the free exercise of the religion of the Aboriginals, to whom the Ordinance was directed?’: at 86. Toohey J noted that there was some evidence supporting this claim, as the plaintiffs ‘have referred to official reports and correspondence which’ provided evidence that the objective of the removal of children was ‘to prevent them from assimilating the “habits, customs and superstitions of the full-blooded Aboriginals”’: at 86. However, he concluded that the ‘possibility’ that the plaintiffs could prove this issue in a subsequent proceeding did not mean they had done so, and so he rejected their claim on the freedom of religion ground. Gummow J took the same approach to characterisation and commenced an analysis of the ordinance and regulations, but concluded that the characterisation of the law could only take place after the facts had been found: at 160–1. Gummow J said: No conduct of a religious nature was proscribed or sought to be regulated in any way. The withdrawal of [an] infant, in exercise of powers conferred by the 1918 Ordinance, from the communities in which they would otherwise have been reared, no doubt may have had the effect, as a practical matter, of denying their instruction

[page 390] in the religious beliefs of their community. Nevertheless, there is nothing apparent in the 1918 Ordinance which suggests that it aptly is to be characterised as a law made in order to prohibit the free exercise of any such religion, as the objective to be achieved by the implementation of the law.

Gaudron J gave detailed consideration to this issue (at 121–5 and then at 130–4). Gaudron J rejected the approach to characterisation taken by Brennan CJ, Toohey and Gummow JJ, stating (at 131) that: There are two matters, one textual, the other contextual, which in my view, tell against construing s 116 as applying only to laws which, in terms, ban religious practices or otherwise prohibit the free exercise of religion. First, s 116 speaks of the exercise of

religion, and it follows, as Latham CJ pointed out in Adelaide Co of Jehovah’s Witnesses Inc (1943) 67 CLR 116 at 124, that ‘it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion’. The contextual consideration is that, putting s 122 to one side, the Commonwealth has no power to legislate with respect to religion (see Adelaide Co of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 154, per Starke J), and, thus, a law which, in terms, prohibits religious practice would, ordinarily, not be a law on a subject matter with respect to which the Commonwealth has any power to legislate. These considerations provide powerful support for the view that s 116 was intended to extend to laws which operate to prevent the free exercise of religion, not merely those which, in terms, ban it. Another matter which points in favour of construing s 116 as extending to laws which prevent the free exercise of religion, not merely those which, in terms, effect a prohibition in that regard, is the need to construe constitutional guarantees liberally, even limited guarantees of the kind effected by s 116. In this respect, it is inconsistent with established principles of constitutional construction to construe constitutional guarantees as concerned with form rather than substance (see Street v Queensland Bar Association (1989) 168 CLR 461 at 527–528, per Deane J; at 569, per Gaudron J; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 184, per Deane and Gaudron JJ; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305, per Mason CJ, Deane and Gaudron JJ; at 320, per Toohey J). So too, it is inconsistent with established principle to interpret constitutional guarantees ‘pedantically’ (see Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349, per Dixon J. See also The Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1 at 145, per Mason J; at 282–283, per Deane J; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 184, per Deane and Gaudron JJ; at 200, per Dawson and Toohey JJ; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 303, per Mason CJ, Deane and Gaudron JJ) so that they may be circumvented by legislative provisions which purport to do indirectly what cannot be done directly (See Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349–350, per Dixon J; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305, per Mason CJ, Deane and Gaudron JJ).

In the result, three justices (Toohey, Gaudron and Gummow JJ) assumed or stated that s 116 restricts s 122. Subsequent decisions of the court that have rejected the ‘disjuncture’ approach to the relationship between the territories and the Constitution (as to which, see 5.4–5.15) suggest that s 116 is very likely to be interpreted as restricting s 122 in the future.

[page 391]

What is a ‘religion’? 16.6 In order to define the freedom conferred by s 116 it is first necessary to define ‘religion’ — a task that Latham CJ once described as ‘difficult, if not impossible’: Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (Jehovah’s Witnesses case) (1943) 67 CLR 116 at 123. The leading case on the meaning of the term ‘religion’ is Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (Scientology case) (1983) 154 CLR 120. The case concerned the question whether the Church of the New Faith, or ‘Scientology’, was exempt from liability under state pay-roll tax legislation on the basis that it was a religion. Mason ACJ and Brennan J acknowledged that the definition of ‘religion’ is critical to the scope of the freedom (at 130): Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint. Such a definition affects the scope and operation of s 116 of the Constitution and identifies the subject matters which other laws are presumed not to intend to affect. Religion is thus a concept of fundamental importance to the law.

Mason ACJ and Brennan J said that any definition should be flexible enough to accommodate minority groups and new religious beliefs: at 123. However, it would be inappropriate to adopt a definition that allowed any group who asserted their belief to be religious to enjoy the protection of the provision. Their Honours concluded (at 136) that: … for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a

religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual’s or a group’s freedom to profess and exercise the religion of his, or their, choice.

Mason ACJ and Brennan J reached this result even though they found some of the canons of Scientology to be ‘impenetrably obscure’ and could ‘readily appreciate’ why the trial judge came to the conclusion that Scientology was merely ‘a farrago of imitations of established religions’: at 145. Wilson and Deane JJ approached the task of defining the term ‘religion’ with caution, stating (at 173–4) that: The most that can be done is to formulate the more important of the indicia or guidelines by reference to which that question falls to be answered. Those indicia must, in the view we take, be derived by empirical observation of accepted religions. They are liable to vary with changing social conditions and the relative importance of any particular one of them will vary from case to case. We briefly outline hereunder what we consider to be the more important of them … One of the more important indicia of ‘a religion’ is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that

[page 392] reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has a ‘religion’. Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.

Wilson and Deane JJ stressed that these five indicia did not form a rigid test, and further, it could be that a wider test of ‘religion’ might need to be adopted in a case which directly dealt with s 116: at 173. Murphy J developed the following wider test (at 151): The better approach is to state what is sufficient, even if not necessary, to bring a body

which claims to be religious within the category. Some claims to be religious are not serious but merely a hoax, but to reach this conclusion requires an extreme case. On this approach, anybody which claims to be religious, whose beliefs or practices are a revival of, or resemble, earlier cults, is religious. Anybody which claims to be religious and to believe in a supernatural Being or Beings, whether physical and visible, such as the sun and the stars, or a physical invisible God or spirit, or an abstract God or entity, is religious. For example, if a few followers of astrology were to found an institution based on the belief that their destinies were influenced or controlled by the stars, and that astrologers can, by reading the stars, divine these destinies, and if it claimed to be religious, it would be a religious institution. Anybody which claims to be religious, and offers a way to find meaning and purpose in life, is religious. The Aboriginal religion of Australia and other countries must be included. The list is not exhaustive; the categories of religion are not closed.

At this point Murphy J cited United States v Kuch 288 F Supp 439 (1968), in which K, a member of the ‘Neo-American Church’, was unable to claim protection under the United States First Amendment guarantee of freedom of religion to protect herself from criminal charges laid in respect of religious practices of her religion. The NeoAmerican Church worshipped ‘Chief Boo Hoo’ and claimed that marijuana and LSD were sacramental foods to be partaken of by members on religious occasions. It is necessary, when pleading that freedom of religion has been infringed, to identify the persons or groups whose free exercise of religion has been restricted: Coe v Commonwealth (1978) 24 ALR 118.

The ‘establishment’ clause 16.7 The constitutional guarantee of freedom of religion is composed of four parts. The first part, ‘The Commonwealth shall not make any law for establishing any religion …’ is often called the ‘establishment’ clause. According to Quick and Garran (1901), this part of s 116 was directed to preventing ‘the erection and recognition of a State Church, or the concession of special favours, titles and advantages to one Church which are denied to others’: p 951. Professor Harrison Moore (1910) believed that s 116 might prevent

‘appropriations in aid of religious [page 393] bodies’: p 55. Dr Richard Ely (1976) has argued that the term ‘establish’ in English statutes really meant ‘to command, in due parliamentary form, and make enduringly lawful, certain arrangements which substantially benefit religion’: p 276. The section was ‘not intended to prohibit the federal government from recognising religion or religious worship’: Quick and Garran, 1901, p 951. 16.8 Part of Quick and Garran’s interpretation has been confirmed in the leading case on the interpretation of the ‘establishment’ clause, Attorney-General (Vic); Ex rel Black v Commonwealth (Defence of Government Schools case) (1981) 146 CLR 559. Here, the Commonwealth passed State Grants Acts, which gave financial assistance to the states subject to conditions, including, in this instance, that a portion of the moneys be given to non-government schools. Non-government schools are often operated by religious groups. It was argued that the Grants Acts were laws ‘establishing’ religion in the sense that they provided financial support to these religions or, alternatively, that the laws ‘established’ religions because they provided preferential sponsorship to those religions that operated schools. A majority of the High Court dismissed the case on the basis that the provision of financial support in this way did not ‘establish’ a ‘state religion’. The majority interpreted the establishment clause more narrowly, as referring to: laws ‘intended and designed to set up the religion as an institution of the Commonwealth’ (at 583 per Barwick CJ); laws with ‘the purpose and effect of setting up any religion as a state church’ (at 604 per Gibbs J, with whom Aickin J

agreed); laws which effected ‘the authoritative establishment or recognition by the state of a religion or church as a national institution’ (at 616 per Mason J); or laws which provided ‘statutory recognition of a religion as a national institution’ (at 653 per Wilson J). The following observation reflects the narrow, orthodox view favoured by members of the High Court to the interpretation of the ‘establishment’ clause in s 116. Barwick CJ said (at 582): In my opinion, as used in an instrument brought into existence at the turn of the century, establishing a religion involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth. It involves the identification of the religion with the civil authority so as to involve the citizen in a duty to maintain it and the obligation of, in this case, the Commonwealth to patronize, protect and promote the established religion. In other words, establishing a religion involves its adoption as an institution of the Commonwealth, part of the Commonwealth ‘establishment’.

It will be difficult to characterise a law as one which ‘establishes’ a ‘state religion’. According to the Chief Justice, the inclusion of the word ‘for’ in the first three limbs of s 116 means that the purpose of the law must be directly ‘intended’ or ‘designed’ to establish, impose or prohibit the free exercise of religion. Barwick CJ observed (at 379, 383– 4): … in the interpretation and application of s 116, the establishment of religion must be found to be the object of the making of the law. Further, because the whole expression is ‘for establishing any religion’, the law to satisfy the description must have that objective as its express and, as I think, single purpose. Indeed, a law establishing a religion could scarcely do so as an incident of some other and principal objective.

[page 394] In my opinion, a law which establishes a religion will inevitably do so expressly and directly and not, as it were, constructively. … Can it be said that, therefore, the law made by the Parliament is a law for the

establishment of a religion in the sense which I am prepared to give to those words, and thus in breach of the inhibition imposed on the Parliament by the Constitution? Nothing in the laws made by the Parliament expressly authorizes the use of Commonwealth funds for those purposes, though it might justly be said that no provision of that law expressly or adequately prohibits the schools or those conducting them from using the occasion or the buildings assisted or built with money provided for support of educational activities to so use the occasion or the buildings. I cannot think that it can rationally be said that by not preventing such a use of the occasion or buildings which I have assumed, the law providing the funds for the forwarding of the education of Australians by non-government schools is a law for establishing a Christian religion. A law which in operation may indirectly enable a church to further the practice of religion is a long way away from a law to establish religion as that language properly understood would require it to be if the law were to be in breach of s 116. It would not be enough that the law allowed such activity on the part of the owners of the schools. The law must be a law for it, ie intended and designed to set up the religion as an institution of the Commonwealth. … What the Constitution prohibits is the making of a law for establishing a religion. This, it seems to me, does not involve a prohibition of any law which may assist the practice of a religion and, in particular, of the Christian religion. It is the establishment of such a religion which may not be effected by a law of the Commonwealth designed to do so. I have already, though perhaps only incidentally, indicated that the text of s. 116 refers to legislation which is designed to establish a religion, which intends and seeks that end, which is in that sense purposive in nature. I have concluded, therefore, that, even on the assumptions I have made, the challenge to the validity of the Acts here challenged should fail [emphasis added].

Similarly restrictive interpretations of the word ‘for’ were present in the judgments of Gibbs, Mason and Wilson JJ. Gibbs J argued that the purpose of the impugned legislation was the ‘advancement of education within Australia’. Although this in itself was not decisive, as the legislation may have had the further purpose of establishing the Christian religion, Gibbs J was confident ‘on any view of the statutory provisions in question or of the evidence in the case, that the challenged legislation’ did not have the ‘purpose or effect’ of establishing ‘any religion or religious body as a state religion or a state church’: at 604. Along the same lines, Mason J held that the word ‘for’ ‘connotes a connexion by way of purpose or result with the subject matter which is not satisfied by the mere circumstance that the law is

one which touches or relates to the subject matter’: at 615–6. Wilson J contrasted the words ‘for establishing’ with the words ‘respecting an establishment’. While the latter provides, in his Honour’s view, a broader frame of reference, the words ‘for establishing’ distinctly conveys ‘the sense of “in order to establish”, and speak quite specifically of the purpose of the law in terms of the end to be achieved’: at 653 (emphasis added). Accordingly, for a law to be considered one ‘for’ ‘establishing any religion’, it must manifest that specific intention or design. This is evident from the judgment of Barwick CJ. Notwithstanding, the law’s purpose may also be discovered from the ‘effect’ or ‘result’ which it achieves. It is possible that a law may be framed in such terms that it does not overtly establish a ‘state religion’, yet [page 395] it could be ‘disguised’ to effectuate that purpose. This denotes the importance of examining the legal and practical operation of the impugned law. Any attempt by parliament to ‘establish’ a ‘state religion’ is contrary to s 116 and will render the law invalid. This is to be taken from the judgments of Gibbs, Mason and Wilson JJ. Collectively, the judgments of Barwick CJ and Gibbs, Mason and Wilson JJ require a high threshold to be reached before a law will be struck down for infringing the ‘establishment’ clause. Laws which incidentally pertain to religion; for example the provision of moneys to states on the proviso that a portion of the money be directed to nongovernment schools (many of which provide religious education), does not reach the requisite threshold. A majority of the court (Murphy J dissenting at 623) also rejected the alternative argument that the provision of financial assistance to

non-government schools involved the concession of special favours, titles and advantages to one or more churches which were denied to others. The sponsorship ‘must be of so special a kind that it enables us to say that by virtue of the concession the religion has become established as a national institution, as, for example, by becoming the official religion of the State’: per Mason J at 612; see also Barwick CJ at 582; Gibbs J at 597–8; Stephen J at 610; Aickin J agreeing with Gibbs and Mason JJ at 635. The narrow approach taken by the majority justices to the construction of the establishment clause relieved them of the need to consider the evidence led by the Defence of Government Schools as to how the funds from the Commonwealth laws had been used by the religions administering the schools receiving federal money (contrast the observations made by the dissentient, Murphy J, at 632–3). 16.9 Although s 116 prohibits the Commonwealth from passing laws establishing a religion, the Commonwealth can pass laws under other heads of power, which recognise, for legal purposes, some religions but not others: see further McLeish, 1992, p 222. For example, the marriage power has been used to pass legislation that establishes a Register of Ministers of Religion authorised to solemnise marriages and giving the Governor-General the power to declare ‘recognised’ denominations for this purpose. Provisions to this effect were challenged in Nelson v Fish (1990) 92 ALR 187 on the basis that they constituted the ‘establishment’ of recognised denominations within the meaning of s 116 and on the basis that the scheme interfered with religious freedom by refusing recognition of the applicant’s religious organisation, ‘God’s Kingdom Managed by his Priest and Lord’. The Federal Court decided that s 116 could not ‘validly authorise a monopoly in religious marriages in favour of one particular denomination’: per French J (as his Honour then was) at 191. The recognition of certain types of religious marriages as valid does not

constitute ‘establishment’ of the religions that perform those marriages, nor did the provisions interfere with the ‘free exercise’ of religion: at 191–2.

Imposing religious observance 16.10 The second part of s 116 is the ‘religious observance’ clause. The Commonwealth may not make any law for imposing any religious observance. There have been no High Court decisions that consider this clause. However, [page 396] Murphy J, dissenting in R v Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 227–9 suggested that a federal law requiring a witness at a Royal Commission to swear an oath or make a solemn affirmation to tell the truth, and in default, be guilty of an offence, imposed a type of religious observance on persons and this provision infringed s 116. Murphy J (at 229) expressed the view that the law infringed s 116 on the basis that the: … provisions which deal with oath-taking infringe the constitutional prohibition … it requires the person (as a condition from being relieved to take the oath) to affirm that he conscientiously objects. This interferes with the free exercise of religion. Consistently with s 116 no one can be required by any law of the Commonwealth to state or explain his reasons for declining to take an oath; his religious beliefs or lack of belief cannot be examined and he cannot be called upon to state, explain or justify them, as conscientious or otherwise. In short, s 116 guarantees that a person cannot be required by or under any law of the Commonwealth to take an oath or to state that he conscientiously objects to taking an oath. A witness before a Royal Commissioner under the Act may lawfully decline to take an oath and lawfully decline to state why he declines to take an oath.

16.11 In Hoxton Park Residents Action Group Ltd v Liverpool City Council (2015) 294 FLR 254, Pembroke J of the Supreme Court of New

South Wales held that the provision of funding to a non-government school (the Malek Fahd Islamic School) did not result in the imposition of religious observance. The school, as was the case with other non-government schools, received substantial government funding from the Commonwealth via conditional state grants under s 96 of the Constitution. The relevant statutory funding scheme was the Schools Assistance Act 2008 (Cth) (which operated between 2009 and 2013) and the Australia Education Act 2013 (Cth) (which has operated from 2014). The plaintiffs argued that the funding laws enabled the school to impose religious observance. According to Pembroke J, an ‘essential feature of the plaintiff’s case is that without this funding — provided pursuant to Commonwealth laws — the religious “restriction” of which they complain, would not exist and the school could not have opened a new campus at Hoxton Park’: at [7]. The plaintiffs alleged that the federal payments to the school could be characterised as being for imposing religious observance, ‘in that the school is a faith based educational facility that imposes on any child or person attending it, of whatever background, the religious observance of the Islamic religion’: at [14]. His Honour rejected this argument: 67 I reject the plaintiffs’ contention that, directly or indirectly, either the Schools Assistance Act or the Australian Education Act or the terms of Commonwealth funding, ‘impose any religious observance’ on any person, by force of law or otherwise. The plaintiffs’ starting premise, at its highest, is that the School or its Hoxton Park campus, imposes religious observance on those who attend the school. But this contention, even if accepted, does not logically establish that the Schools Assistance Act or the Australian Education Act has the prohibited purpose or object of imposing a religious observance. Neither Act has the purpose or effect of requiring any person to attend the School or its Hoxton Park campus or to engage in any religious observance or practice. 68 Nor has any of the funding provided by the Commonwealth, by its terms or character, had the purpose or effect of requiring any person to attend the School or its Hoxton Park campus or to engage in any religious observance or practice [emphasis added].

[page 397]

It would therefore appear that some degree of ‘compulsion’ is required to infringe the second part of s 116. The law must have the purpose of ‘compelling’ religious observance. In this case, the funding laws did not have the direct purpose (nor did it produce the ‘effect’ or ‘result’) of requiring or compelling any person (including schoolchildren) to attend the school or to participate in religious observance or practice.

Free exercise of any religion 16.12 What does the ‘free exercise’ of any religion entail? In Krygger v Williams (1912) 15 CLR 366, defence legislation imposed an obligation to swear an oath of military service. Krygger objected to the proposition that he take the oath, on the ground that it was contrary to his Christian beliefs, saying (at 368): I decline to render military service because it is opposed to the will of God. I spend all my time reading the Scriptures … the Scriptures tell us that ‘if thine enemy smite thee on the one cheek turn to him the other also’. We have to do good to those who hate us, and especially we are told in the Bible that in the last days there shall be wars and rumor of wars, but the children of God are not troubled by these things. We are told that we are to be in the world but not of the world. Those that take the sword must perish by the sword … If I went to military training I would be prohibited from the free exercise of religion … Military training would cut me off from God. Sixty-four hours drill a year would prohibit the free exercise of my religion.

Griffith CJ interpreted the phrase as referring to ‘prohibiting the practise of religion — (prohibiting) the doing of acts which are done in the practise of religion’. On that basis, Griffith CJ rejected Krygger’s argument (at 369): To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec 116.

Griffith CJ went on to say (at 370–1):

Careful provision has been made by the legislature for the case of those who really have conscientious objections to war. Section 61 (of the Defence Act 1903), which relates to exemption from service in time of war, exempts, amongst others, ‘persons who satisfy the prescribed authority that their conscientious beliefs do not allow them to bear arms,’ but that exemption does not extend to duties of a non-combatant nature. No one can doubt that the defence of his country is almost, if not quite, the first duty of a citizen, and there is no room for doubt that the legislature has power to enact laws to provide for making citizens competent for that duty. Without training an army is inefficient, to say the least, and everybody knows that in warfare not all the duties are of a combatant nature. I will only take as an illustration the ambulance corps, the duty of which is not to take life but to save it. The legislature, therefore, may enact that the training shall be, not only in combatant, but also in non-combatant duties, and persons must go to be trained accordingly. When they are asked to do anything which the law does not allow, it will be time enough to take objection. The real objection taken by the appellant is not to being trained so as to become efficient for taking life, but to being trained so that in time of war he may be

[page 398] competent to assist in saving life, and that is called a conscientious objection. For my own part, I do not think that such an objection is any excuse for a refusal to obey a positive law. All our laws, I think, where there is any ground for thinking that real conscientious objection may exist, make careful provision for the protection of people’s consciences, as does this Act. But to base a refusal to be trained in non-combatant duties upon conscientious grounds is absurd. I am therefore of opinion that the appeal fails.

Barton J also gave Krygger’s argument short shrift, stating (at 372– 3): The Defence Act is not a law prohibiting the free exercise of the appellant’s religion, nor is there any attempt to show anything so absurd as that the appellant could not exercise his religion freely if he did the necessary drill. I think this objection is as thin as anything of the kind that has come before us.

The Full Court of the Supreme Court of Queensland followed Krygger v Williams in Sellars v Nielsen [1943] QSR 217, after a person imprisoned for failing to take an oath of military service again failed to take an oath.

In Judd v McKeon (1926) 38 CLR 380 at 387, Higgins J (dissenting) remarked in obiter that ‘in my opinion, if abstention from voting were part of the elector’s religious duty, as it appeared to the mind of the elector, this would be a valid and sufficient reason for his failure to vote (sec 116 of the Constitution)’. 16.13 The leading case on the meaning of the ‘free exercise’ clause is Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (Jehovah’s Witnesses case) (1943) 67 CLR 116. The Jehovah’s Witnesses were an association incorporated in South Australia, occupying a place in Adelaide called a ‘Kingdom Hall’ where they held meetings of a religious character. The Jehovah’s Witnesses proclaimed and taught (at 117–18): … publicly both orally and by means of printed books and pamphlets that the British Empire and also other organized political bodies are organs of Satan … [and that members must have] no part in the political affairs of the world and must not interfere in the least manner with war between nations. They must be entirely neutral and not interfere with the drafting of men of nations that go to war … Accordingly they refuse to take an oath of allegiance to the King.

Pursuant to the National Security Act 1939 (Cth), the GovernorGeneral was vested with the power to make regulations under the National Security (Subversive Associations) Regulations 1940 (Cth). The Governor-General, acting with the advice of the Federal Executive Council, declared the Jehovah’s Witnesses a subversive organisation under the regulations. Regulation 3 stated that any ‘body … the existence of which the Governor-General, by order published in the Gazette, declares to be in his opinion, prejudicial to the defence of the Commonwealth or the efficient prosecution of the war, is hereby declared to be unlawful’. A declared organisation could then be subjected to various restrictions of their civil rights, including dissolution of their organisation, winding up of their organisation, or the seizure or occupation of their property (as was the case with the Jehovah’s Witnesses). The Commonwealth formed the view that the

Adelaide Company of Jehovah’s Witnesses was ‘prejudicial to the defence of the Commonwealth or the efficient prosecution of the war’ because the public dissemination of their beliefs [page 399] may have had a detrimental impact on the morale of Australians during World War II. The Commonwealth occupied the Kingdom Hall of the Adelaide Jehovah’s Witnesses after the Governor-General made the declaration and excluded Jehovah’s Witnesses from access. The Jehovah’s Witnesses brought a suit in trespass. Upon a case stated the Full Court was invited to consider whether, among other things, the regulations were contrary to s 116 of the Constitution. The High Court held that the regulations did not infringe s 116 of the Constitution. The court determined that the purpose of the regulations, by reference to its terms and character, was not to prohibit the free exercise of the Jehovah’s Witnesses’ religion. Rather, it was to protect and maintain the internal security of Australia during World War II. The restriction on the members’ freedom of religion was therefore directed to the legitimate objects of ‘community protection’ and ‘social order’. Latham CJ (with whom McTiernan J agreed) said (at 131–2, 157): … it must be conceded that the protection of any form of liberty as a social right within a society necessarily involves the continued existence of that society as a society.

Starke J said (at 155) that freedom of religion is: … subject to limitations … such as are reasonably necessary for the protection of the community and in the interests of social order.

On the scope of the freedom, Rich J said (at 149–50): Freedom of religion is not absolute. It is subject to powers and restrictions of government essential to the preservation of the community. Freedom of religion may not be invoked to cloak and dissemble subversive opinions or practices and operations

dangerous to the Commonwealth.

Williams J said (at 159): … the meaning and scope of s 116 must be determined, not as an isolated enactment, but as one of a number of sections intended to provide in their inter-relation a practical instrument of government, within the framework of which laws can be passed for organising the citizens of the Commonwealth in national affairs into a civilised community, not only enjoying religious tolerance, but also possessing adequate laws relating to those subjects upon which the Constitution recognises that the Commonwealth Parliament should be empowered to legislate in order to regulate its internal and external affairs.

Explaining the distinction between freedom of religion and freedom of political communication, Latham CJ observed (at 143): The other regulations the validity of which was discussed in argument all relate to some form of advocacy of ‘unlawful doctrines’. Reg. 7 prohibits the printing and the publication of matter advocating any unlawful doctrines. Reg. 8 prohibits meetings for the purpose of advocating unlawful doctrines. Reg. 9 prohibits appeals for funds for the furtherance of unlawful doctrines. Reg. 11 enables a Minister to prohibit the holding of meetings at which a Minister is satisfied it is likely that unlawful doctrines will be advocated. Unlawful doctrines is defined in the following manner in reg. 2: — ‘unlawful doctrines includes any doctrines or principles which were advocated by a body which has been declared to be unlawful, and any doctrines or principles whatsoever which

[page 400] are prejudicial to the defence of the Commonwealth or the efficient prosecution of the war.’ … There can, in my opinion, be no doubt that under the defence power the Commonwealth Parliament may legislate to prevent propaganda of any kind prejudicial to the defence of the Commonwealth or the efficient prosecution of the war. Regulations for that purpose are authorized by the National Security Act, s. 5. But the definition of ‘unlawful doctrines’ includes within that term any doctrine or principle which was advocated by a declared body. Thus, if a declared body advocated observance of the Ten Commandments, or annual elections to the Commonwealth Parliament, or improvements in the education system, all these matters would fall within the definition of unlawful doctrines. It is, in my opinion, clear that the defence power does not authorize the Commonwealth Parliament to prohibit the advocacy of

such doctrines or principles simply because it happens that they have been advocated by a declared body. In my opinion the regulations, so far as they depend upon this part of the definition of unlawful doctrines, should be held to be invalid. The result is that, to this extent at least, the regulations last mentioned are invalid.

16.14 The need for social order during wartime has been used to justify severe restrictions on the freedom of association and movement of pacifist religious groups. In Smith v Handcock (1944) 46 WALR 21, the Director General of Security, pursuant to regs 25 and 26 of the National Security Act 1939 (Cth), made an order that Smith would be subject to the following restrictions: (a) that he shall after seven days from the date of service of this Order reside in an area approved by the Deputy Director of Security for Western Australia, and shall not leave such area except with the written permission of the said Deputy Director of Security; (b) that he shall not associate or communicate directly or indirectly with any person other than a member of his own family who is a member of any of the following bodies or organizations — Jehovah’s Witnesses or the Witnesses of Jehovah, The Watch Tower Bible and Tract Society, The International Bible Students’ Association, The Adelaide Jehovah’s Witnesses; (c) that he shall not use or possess a motor vehicle, motor cycle, or pedal cycle, other than a public omnibus, except with the written permission of the Deputy Director of Security for Western Australia; (d) that he shall report to the Officer in Charge of the Police Station nearest his place of abode on a fortnightly basis between the hours of 9.00 am and 7.00 pm.

Smith was convicted of breaching paragraph (c) after admitting to using a car without permission, and challenged the regulation authorising the order on the ground that it infringed the free exercise of his religion contrary to s 116 of the Constitution. The Full Court of the Supreme Court of Western Australia rejected the argument. Northmore CJ, with whom Dwyer and Wolff JJ agreed, said that it ‘was said that (paragraph (c)) was invalid because it interfered with the exercise of the religious beliefs of the appellants. Of course it does nothing of the sort. There is nothing at all in paragraph (c) to suggest anything about religious views’. The court resisted a request to consider the validity of paragraph (b): at 24.

16.15 While it may be argued that the need to maintain ‘social order’ is heightened during wartime, requirements of ‘social order’ have persisted in a number of [page 401] peacetime decisions. Accordingly, it has been held that the freedom to exercise religion is not absolute and may give way to competing social considerations in some circumstances. For example, the need for ‘social order’ has been held, in some circumstances, to require the award of custody to a party to a marriage who is not avidly religious, on the basis that the welfare of the child may be enhanced by awarding custody to a non-religious person rather than to an avidly religious person: Kiorgaard v Kiorgaard and Lange [1967] Qd R 162; Evers v Evers (1972) 19 FLR 296; Marriage of Plows (No 2) (1979) 40 FLR 339; and see further Goodman, 1981. So, for example, Marriage of Paisio (1979) 26 ALR 132 was a case where the husband in a marriage sought custody of the third child of his marriage to his wife, on the basis that his wife’s membership and practice of the Jehovah’s Witnesses religion was not in the best interests of the child. In a joint judgment, Evatt CJ, Asche and Marshall SJJ stated (at 134, 135) that: An Australian court cannot commence with any premise that as a matter of public policy one religion is to be preferred to another or that a ‘religious’ upbringing is to be preferred to a ‘non-religious’ one … There may be many paths to the top of the mountain. Some would say there is only one. Some would say there is no path. Some would say there is no mountain. It would be presumptuous and vain for a judge to make a finding of fact on such an issue … Nevertheless there have been cases in which courts have held that the doctrines of a particular religion, or at least those doctrines as interpreted by some of its adherents, have been so detrimental to children as to necessitate that the children should not be in the custody of the parent holding such doctrines. In these cases, while the court is necessarily showing disapproval of the practice of a particular religion, it is not doing

so on any basis that religious teaching in general is harmful or suggesting that only one form of religion is permissible. The court is doing no more than saying that certain practices, albeit given a veneer of religious justification, are in fact so positively harmful to the welfare of the children that they must be removed from the influence of those who advocate such practices. In doing this, the court must take the utmost care to avoid merely subjective attitudes and steer a careful course between the right of any citizen to bring children up in certain religious or non-religious beliefs and the point at which the practice of that right will positively and from a proven objective viewpoint obstruct the welfare of the children.

Accordingly, the Full Family Court concluded that the trial judge did not err in law in exercising his discretion to award custody to the father on the basis that the child had a right to ‘freedom of choice’ — and this freedom would be more likely to be exercised in the father’s home where the religion was not practised. Gummow J observed in Kruger v Commonwealth (1997) 190 CLR 1 at 160 that action ‘in pursuance of a particular religious belief that is both monotheistic and eager to proselytise may conflict impermissibly with toleration both of religion and of an absence of religion’, which is also protected by s 116. 16.16 As noted in the discussion of Kruger v Commonwealth (1997) 190 CLR 1 at 16.4–16.5, the text of s 116 indicates that a law must be ‘for’ the prohibition of the free exercise of religion to be found invalid — ‘a law must have the purpose of achieving an object s 116 forbids’: Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 at 579 per Barwick CJ; at 615–16 per Mason J; at 653 per Wilson J; Kruger v Commonwealth (1997) 190 CLR 1 at 40 per Brennan CJ; [page 402] at 86 per Toohey J; at 160 per Gummow J. This approach to s 116 narrows its ambit. Interpreted in this way, the freedom to exercise religion in s 116 does not prevent the Commonwealth from enacting a

law that has the unintended, incidental effect of limiting the capacity to observe a religion. In Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 71 ALR 578, the respondents challenged a decision made by the appellant to deport the Imam of the Lakemba mosque, who had entered Australia on a temporary entry permit, which had expired. It was argued that the decision was inconsistent with s 116. The Full Court of the Federal Court of Australia held that the decisions were not made with an intention to prohibit the free exercise of religion, and any disruption of worship which was occasioned by the decision to deport the Imam would not involve restriction of the ‘free exercise’ of religion: at 191. In Nelson v Fish (1990) 92 ALR 187 (see 16.9) the challenge to the provisions of the Marriage Act 1961 (Cth) failed because the provisions enabled the performance of religious ceremonies of marriage by celebrants who were not authorised celebrants (so long as the parties were already legally married). This was ‘consistent with the free exercise of religious observance’ (at 192 per French J, as his Honour then was)): What man feels constrained to do or to abstain from doing because of his faith in the supernatural is prima facie within the area of legal immunity, for his freedom to believe would be impaired by restriction upon conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterized as religious.

16.17 In Cheedy on behalf of the Yindjibarndi People v Western Australia (2011) 194 FCR 562, the appellants, who were registered native title claimants of land in the Pilbara region of Western Australia, appealed from determinations of the National Native Title Tribunal (that had been upheld by the Federal Court) that Western Australia could grant particular mining leases to the second respondent, FMG Pilbara Pty

Ltd (a mining company). The determinations were made under s 38 of the Native Title Act 1993 (Cth), which (relevantly) authorised the tribunal to make determinations that particular acts could or might be done in relation to land, and/or be done subject to specified conditions. Section 39 of the Act provided, inter alia, that the body making the determinations had to take into account the effect of the determinations on the way of life, culture and traditions of any other parties, and their freedom of access to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions. The appellants expressed particular concerns ‘in relation to the sites of and ceremony connected with the sacred stones, called gandi on the area of mining lease M47/1413, and sites of and ceremony connected with the collection of ochre on the area of mining leases M47/1409 and M47/1411’: at [21]. The Full Federal Court (North, Mansfield and Gilmour JJ) rejected an argument that the provisions of the Native Title Act authorising the tribunal determination were invalid because they infringed the prohibition on Commonwealth laws infringing the free exercise of religion: 87 … the appellants’ argument accepted that s 38 and s 39 of the Act did not directly achieve a prohibition on the free exercise of religion. The contention, therefore, was

[page 403] that s 38 and s 39 resulted in or had the effect of prohibiting the free exercise by the appellants of their religion. 88 The question thus became whether s 116 of the Constitution operates to invalidate Commonwealth laws which have the indirect effect of prohibiting the free exercise of religion. 89 The primary judge answered this question in the negative. He relied on Kruger. We agree that each of the judges in Kruger … establish that the test for invalidity under s 116 is whether the Commonwealth law in question has the purpose of prohibiting the free exercise of religion. 90 In a passage which addresses the application of s 116 to a factual issue comparable

to the present, Gummow J said at 161: The withdrawal of infants, in exercise of powers conferred by the 1918 Ordinance, from the communities in which they would otherwise have been reared, no doubt may have had the effect, as a practical matter, of denying their instruction in the religious beliefs of their community. Nevertheless, there is nothing apparent in the 1918 Ordinance which suggests that it aptly is to be characterised as a law made in order to prohibit the free exercise of any such religion, as the objective to be achieved by the implementation of the law. 91 The Ordinance in Kruger giving power to the Chief Protector of Aboriginals to remove aboriginal children from their families and communities did not directly prohibit religious instruction to those children. The fact that it may have had the effect as a practical matter did not render the Ordinance invalid by reason of a contravention of the prohibition in s 116. 92 Similarly, in the present case, there is nothing on the face of s 38 and s 39 to suggest that they have the object of prohibiting the free exercise of religion. Section 38 specifies the kind of determinations which the arbitral body may make. Section 39 sets out the mandatory criteria which must be addressed by the arbitral body in the course of its inquiry. Some of the mandatory considerations such as the freedom to carry out rites, ceremonies, and other activities of cultural significance in accordance with traditions, which appears in s 39(1)(a)(iv), demonstrate a concern by the legislature with the protection of religious freedom. 93 It follows from the application of the test for invalidity under s 116 of the Constitution explained in Kruger that the appellants’ challenge to s 38 and s 39 on this basis cannot succeed. The primary judge was correct to so hold.

An application for special leave to appeal to the High Court was not made.

No religious test required 16.18 The fourth part of s 116 stipulates that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. Like the ‘religious observance’ clause of s 116, this aspect has received very little attention. Crittenden v Anderson (1950) 51 ALJ 171 concerned a challenge by C to A’s membership in parliament on the basis that A’s religious belief, Roman Catholicism,

entailed an allegiance to a foreign power (the Vatican) contrary to s 44(i) of the Constitution. Section 44(i) provides that: 44 Disqualification Any person who — (i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of

[page 404] a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Fullagar J, sitting as the High Court, rejected the argument, saying (at 171, in an extract from the unpublished judgment noted in the ALJ in 1977): … it is, in my opinion, sec 116, and not sec 44(i) of our Constitution which is relevant when the right of a member of any religious body to sit in Parliament is challenged on the ground of his religion. Effect could not be given to the petitioner’s contention without the imposition of a ‘religious test’ … the view put forward … is quite untenable.

16.19 In Williams v Commonwealth (No 1) (2012) 248 CLR 156, Ronald Williams challenged the constitutional validity of the Darling Heights Funding Agreement, an agreement between the Commonwealth Government and Scripture Union Queensland (SUQ) that funded school chaplaincy services at the Darling Heights State Primary School in Queensland (a school attended by his four children), pursuant to a National School Chaplaincy Programme (NCSP). The NCSP was designed to fund school chaplains to provide pastoral care and spiritual guidance in participating schools. Williams sought a declaration that the arrangement was constitutionally invalid as being beyond the executive power under s 61 (this aspect of the case is dealt with at 13.35). Williams also argued that the scheme and funding agreement were prohibited by s 116 of the Constitution, on the basis that a ‘school chaplain’ was an ‘office … under the Commonwealth’

for the purposes of s 116, and that the guidelines issued under the scheme imposed a religious test for that office. Williams pointed to the fact that under the NCSP Guidelines, to qualify as a school chaplain, a person had to be recognised ‘through formal ordination, commissioning, recognised qualifications or endorsement by a recognised or accepted religious institution or a state/territory government approved chaplaincy service’: see Gummow and Bell JJ at 222. Gummow and Bell JJ rejected this argument (at 223): The chaplains engaged by SUQ hold no office under the Commonwealth. The chaplain at the Darling Heights State Primary School is engaged by SUQ to provide services under the control and direction of the school principal. The chaplain does not enter into any contractual or other arrangement with the Commonwealth. That the Commonwealth is a source of funding to SUQ is insufficient to render a chaplain engaged by SUQ the holder of an office under the Commonwealth. It has been said in this Court that the meaning of ‘office’ turns largely on the context in which it is found … and it may be accepted that, given the significance of the place of s 116 of the Constitution, the term should not be given a restricted meaning when used in that provision. Nevertheless, the phrase ‘office … under the Commonwealth’ must be read as a whole. If this be done, the force of the term ‘under’ indicates a requirement for a closer connection to the Commonwealth than that presented by the facts of this case.

The most significant factor for Gummow and Bell JJ was that the Commonwealth did not employ or enter into a contractual relationship with the chaplains. Chaplains were employed by SUQ and instructed by the principal of the Darling Heights State Primary School. This arrangement ensured that chaplains did not hold ‘any office under the Commonwealth’. According to Gummow and Bell JJ, the word ‘under’ is important. It suggests that there be a ‘closer connection to the [page 405] Commonwealth than that presented by the facts of this case’. Here,

the engagement of the chaplains did not satisfy the meaning of ‘office’ under s 116. Agreeing with Gummow and Bell JJ were French CJ at 182, Hayne J at 240, Crennan J at 341 and Kiefel J at 374 (who indicated that it was unnecessary to answer the question at any rate). Heydon J, who dissented (see 13.35), also rejected the s 116 challenge (at 285–6, 334–5). His Honour took the opportunity to elaborate on the meaning of the word ‘office’. According to Heydon J, an ‘office’ is a position under constituted authority to which duties are attached, suggesting that an ‘officer’ is a ‘person who holds an office which is in direct relationship with the Commonwealth and to which qualifications may attach before particular appointments can be made or continued’: at 334–5. Unlike Gummow and Bell JJ, Heydon J did not place any significance on the word ‘under’. Turning to the facts of the case, Heydon concluded that the Commonwealth had no legal relationship with the chaplains. The Commonwealth could not ‘appoint, select, approve or dismiss them’ and it could not ‘direct them’. The scheme instead placed this power in the hands of others. The chaplaincy services provided at participating schools are ‘determined by those who run that school. The provision of those services is overseen by school principals’: at 335. It therefore followed that there was no breach of the fourth clause of s 116.

[page 407]

Chapter Seventeen

The Constitutional Prohibition on Discrimination on the Grounds of State Residence Introduction 17.1

Section 117 of the Constitution provides:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

17.2 In its original form, s 117 was modelled on Art IV s 2 and the 14th amendment to the United States Constitution, which prohibited states from ‘abridging any privilege or immunity of the citizens of the other states of the Commonwealth’ and said that no state shall ‘deny to any person, within its jurisdiction, the equal protection of the laws’. However, the wording was changed so that the new states of the Commonwealth of Australia could continue to impose racist restrictions directed at Aboriginal Australians, Pacific Islanders and Chinese immigrants: see Charlesworth, 1993. The basic thrust of s 117 is that one state cannot impose a disability on residents of another state that is not equally applicable to its own residents. A state law must not, in terms of its practical operation, subject an interstate resident to a disability or discrimination or a greater burden or disadvantage than that otherwise imposed on an

intrastate resident by the legislating state: see, for example, Street v Queensland Bar Association (1989) 168 CLR 461 at 488 per Mason CJ; at 559 per Toohey J. In other words, the state law cannot leave an interstate resident worse off than he or she would be if the person were an intrastate resident. There is some debate as to whether s 117 applies to federal laws, or whether it is a restriction on state laws only. It is clear that the provision is directed primarily to state legislation: Leeth v Commonwealth (1992) 174 CLR 455 at 488 per Deane and Toohey JJ. In Leeth the Commonwealth contended that s 117 has no application to federal laws, but the question was ultimately left open by the High Court: at 468 per Mason CJ, Dawson and McHugh JJ; at 488 per Deane and Toohey JJ. While the joint judgment of Mason CJ, Dawson and McHugh JJ was undecided on the issue, [page 408] Deane and Toohey JJ appeared more inclined to accept that s 117 applied to both the states and the Commonwealth (at 554): … its presence in the Constitution specifically to prohibit discrimination in one State against a citizen resident in another State does not militate against the conclusion that there is to be discerned in the Constitution as a whole an assumption of the fundamental common law doctrine of legal equality which operates to confine the prima facie scope of the legislative powers which the Constitution vests in the Commonwealth. As Toohey J commented in Street v Queensland Bar Association, ‘there is nothing to suggest that [s 117] represented any compromise of the principle that Australia was to be a commonwealth in which the law was to apply equally to all its citizens’.

A majority of the High Court in Leeth rejected the premise that there is an implied principle of equality before the law. However, there is dicta in other cases suggesting that there may be a doctrine of equal justice attaching to Ch III of the Constitution, as to which, see

19.41–19.42.

The early approach 17.3 The early approach to the provision was narrow. In Davies and Jones v Western Australia (1904) 2 CLR 29, the High Court was invited to consider whether s 86 of the Administration Act 1903 (WA) was valid. That section imposed a ‘death duty’: a stamp duty calculated by reference to the value of the estate of a deceased person. The duty could be reduced by one half in circumstances where the beneficiary was a genuine resident of, and domiciled in, Western Australia. Davies and Jones were the executors of a will leaving property in Western Australia to the son of the deceased, who was a resident of, and domiciled in, Queensland. The will was proven and the Western Australian probate officer calculated death duty by reference to s 86. The plaintiffs alleged that s 86 infringed s 117 on the basis that it imposed a discriminatory burden on the beneficiary to which he would not be subject if he were a resident of Western Australia. Western Australia defended s 86 on the basis that it discriminated against people who were not resident and domiciled in Western Australia. Traditionally, the concept of ‘domicile’ referred to a person’s permanent home, and this might not be their place of (temporary) residence. On that basis, Griffith CJ concluded that if the word ‘domiciled’ in s 86 was ‘construed with reference to the technical meaning’ of that word, then ‘the test of discrimination imposed by the section does not depend upon residence’: at 42. Barton J gave similar reasons at 47. O’Connor J said (at 52–3): This is the only section of the Constitution which recognizes in express terms a common citizenship amongst the States. It is no doubt intended to serve the same purpose as Article IV. sec. 2 of the United States Constitution which provides that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States’. It will be observed that the Commonwealth Constitution does not use

the word ‘citizen’ and that it confers equality of rights in very different terms. Indeed we know as a matter of history that the Convention deliberately rejected the United States plan of dealing with the question. Clause 17 of the Draft Constitution of 1891, which followed somewhat the lines of the 14th amendment of the United States Constitution, and which was retained in the first draft of the 1897 Bill,

[page 409] was in the final sittings of the Convention eliminated, and sec 117 in its present form was passed. ‘Residence’ is there made the basis of equality of rights. Whatever rights the laws of a State give its own residents by virtue of residence must be equally accorded to the residents of other States. The word ‘resident’ is not defined. As to what are its limitations, and to what extent, if at all, it corresponds to the word ‘citizen’ as used in the American Constitution we are not called upon at present to decide. For the purposes of this case it is only necessary to say that the word has quite a different meaning from ‘domiciled’ in its legal sense as I have explained. If the concession given by sec. 86 of the Western Australian Administration Act of 1903 were given ‘to all bonâ fide residents of Western Australia’ coming within the named degrees of relationship to the testator, the plaintiffs in this case would have good ground to complain that a discrimination contrary to the Constitution had been made against a resident of Queensland, but the section has not made the concession to all bonâ fide residents of Western Australia coming within the named degrees of relationship, but only to those who, in addition to being bonâ fide residents of Western Australia, are persons to whom the law ascribes Western Australia as their country of domicile. In my opinion the Constitution does not prohibit a State from conferring special privileges upon those of its own people who, in addition to residence within the State, fulfil some other substantial condition or requirement such as that which is made the condition of the concession allowed in this enactment … As the enactment in question does not violate the Constitution it must stand good. It follows that the duty enacted by the probate officer was legally payable, that the plaintiffs’ action must fail, and that judgment on the demurrer should be entered for the defendant.

17.4 It was easy for the states to circumvent s 117 by imposing an additional condition such as a domicile requirement to legislation that discriminated against out-of-state residents. This was evident in Henry v Boehm (1973) 128 CLR 482. Henry was a solicitor who held a practising certificate in Victoria. He sought permission to practise in South Australia and this was denied on the basis of residence and

domicile. Barwick CJ set out the South Australian rules governing admission to practice (at 486–7): Rules 27 and 28 provide as follows: 27(1) An applicant previously admitted elsewhere shall reside for at least three calendar months in the State continuously and immediately preceding the filing of his notice of application for admission. (2) This rule shall not apply to an applicant who satisfies the Board of Examiners — (i) that he ordinarily resides in and is domiciled in this State; or (ii) (a) that he is admitted as a solicitor in New South Wales, Victoria, Queensland or Western Australia; and (b) ordinarily resides and carries on practice as a solicitor within 50 miles of the boundary between this State and the State in which he practices; and (c) that a practitioner of this State is eligible for admission in the State in which he practises to the same, or a corresponding extent as practitioners of this State are admitted in this State in accordance with this sub-rule. 28(1) An applicant previously admitted elsewhere shall, in the first place, be admitted conditionally only for a period of one year. (2) After the expiration of that period the applicant may be granted absolute admission if he satisfies the Court by affidavit that since his conditional admission, and until the date of the application for the order absolute, he has continuously resided in the State, and has not pursued any occupation or business other than the proper business of a practitioner. (3) This Rule shall not apply to any applicant who does not require the residential qualification prescribed by the preceding Rule.

[page 410] The effect of these rules is that a person who falls within the description of ‘an applicant previously admitted elsewhere’ and who is not exempt by r. 27(2) from the provisions of r. 27(1) and from those of r. 28, no matter which his State of residence, must have resided continuously in the State of South Australia for the period of three months immediately preceding the filing of his application for admission. Further, he must reside in the State of South Australia continuously for the period of one year during which he will have been conditionally admitted. Quite clearly, a resident of South Australia within the meaning of s. 117 who had qualified outside that State but was not domiciled there would be required to reside there for the specified three months; and subsequently during the period of his conditional admission. Thus the plaintiff, being a resident of Victoria within the meaning of s. 117, would be liable to

observe in South Australia exactly the same provisions as he would if he were a resident of South Australia. Whilst it might have been thought that such a provision in the Constitution as s 117 would be a substantial aid to the unity of citizenship throughout Australia, it is expressed in precise and narrow terms representing a compromise of competing views amongst those responsible for the drafting of the Constitution. There is no reason to refer here to the various possible forms of such a section as s 117 which were considered during the Conventions or to contrast s 117 with the constitutional provisions of other countries. We are here concerned only with the application of the actual words of the Constitution properly construed as in an organic instrument.

Barwick CJ later said (at 486): Some criticism has been offered of the decision in Davies and Jones v Western Australia (1904) 2 CLR 29 to the effect that it was narrowly legalistic and overlooked the fact that residence as a factor is necessarily involved in domicile. But the criticism overlooks domicile of origin, in which residence at the place of the domicile is unnecessary, and that, even though residence of some kind may be involved in the establishment of a domicile of choice, there is no need for the domiciliary in order to maintain that domicile to continue to reside in the place of the domicile at or for any particular time. Further, the criticism does not observe the narrowness of the expression of s 117. It is undoubtedly built on the concept of residence and not on that of domicile. Having considered the judgments and the criticism, I respectfully agree with the conclusions reached by the Court.

Barwick CJ, McTiernan, Menzies and Gibbs JJ also rejected the constitutional challenge. Stephen J dissented (at 499–508) and a substantial part of this reasoning was later accepted in Street v Queensland Bar Association (1989) 168 CLR 461.

A new approach to s 117 17.5 The leading case on the interpretation of s 117 is now Street v Queensland Bar Association (1989) 168 CLR 461. Street, a resident of New South Wales, applied for admission to the Queensland Bar. The Queensland Bar Rules, which were authorised by Queensland law, required that persons applying for membership of the Bar had to have been residents of Queensland for a period of one year. This would have required Street to give up his practice in New South Wales. After

the proceedings against the Rules commenced they were amended to require that applicants for admission practise principally in Queensland. Street challenged the constitutional validity of the Rules on the basis that it subjected him to a disability or discrimination contrary to s 117 of the Constitution. [page 411] This argument was upheld by a unanimous High Court. Mason CJ wrote (at 486–8): The preponderant weight of opinion denies the individual focus which Stephen J. gives to s 117. With the exception of his Honour’s dissenting judgment in Henry v Boehm, all the judgments in Davies and Jones and Henry v Boehm insist on comparing the way in which the non-resident of the legislating State is affected by the law of that State with the way in which residents of that State are affected: Davies and Jones, per Griffith C.J. at p 39, Barton J. at p 45 and O’Connor J. at p 49; Henry v Boehm, per Barwick C.J. at p 489, Menzies J. at pp 492–493 and Gibbs J. at p 496. This approach denies the individual focus of the section by addressing itself to the general range of circumstances in which the State law applies. However, as Stephen J. points out, the terms of the section invite a comparison of the actual situation of the out-of-State resident with what it would be if he were a resident of the legislating State. The section does not invite a comparison between his actual situation and that of other residents of the legislating State. Such a comparison poses the question whether or not the law necessarily applies differently to residents of the legislating State. The answer to that question will almost invariably be in the negative due to the range of persons in differing situations within the legislating State and the fact that some of those persons will probably be affected by the law in the same manner as the out-of-State resident. Thus, the mode of comparison adopted in the decided cases, though not suggested by the terms of the section, has confined the operation of the constitutional guarantee. When that mode of comparison is combined with the assimilation of ‘resident’ to ‘permanent resident’, the effect has been to deprive the section of any significant utility. Another difficulty with the existing interpretation of s 117 is that it appears to proceed according to a narrow view of what amounts to a disability or discrimination. The statement of Griffith C.J. in Davies and Jones (at p 39) that I have already quoted, which was endorsed by Stephen J. in Henry v Boehm, like that of Barwick C.J. in Henry v Boehm (at p 489), suggests that, in order to bring the section into operation, the State law must

make the fact of being a resident in another State the criterion of the disability or discrimination. Again, this seems to be an unduly limiting notion. In terms, the section applies when a subject of the Queen, being an out-of-State resident, is subject to a disability or discrimination under State law. The section is not concerned with the form in which that law subjects the individual to the disability or discrimination. It is enough that the individual is subject to either of the two detriments, whatever the means by which this is brought about by State law. This approach to the interpretation of the section accords with the approach generally adopted in connection with statutes proscribing particular kinds of discrimination. They are either expressed or construed as proscribing an act or a law the effect of which is relevantly discriminatory … It would make little sense to deal with laws which have a discriminatory purpose and leave untouched laws which have a discriminatory effect. Once this is recognized, it becomes all the more difficult to accept that the fact that a requirement as to residence is universal in its application is necessarily an answer to the operation of s 117. Such a requirement may have a discriminatory effect in relation to an out-of-State resident for the simple reason that it may apply unequally by subjecting him to a greater burden or disadvantage than that imposed on a resident of the legislating State … An examination of the effect of the relevant law is both necessary to avoid depriving s 117 of practical effect and consistent with its emphasis upon the position of the individual.

[page 412] The other members of the court agreed at 525, 544–5, 555, 566–7, 582. The High Court emphasised that a law that is alleged to infringe s 117 must be characterised by reference to its substantive and factual operation: at 524–5, 569. Henry v Boehm was overruled. 17.6 Mason CJ, Brennan, Toohey and McHugh JJ noted that there may be circumstances where a state could legitimately impose a residency requirement in order to preserve the autonomy and integrity of the states and their capacity to function as independent governing entities (that is, to ensure compliance with the principle expressed in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 and considered at 3.10): at 492, 513, 559–60. Brennan J at 513, Dawson J at 548, Toohey J at 559 and McHugh J at 583–4 singled out the

franchise as an area of regulation in which a state could permissibly impose a residency requirement (it appears that Gaudron J may also have had this in mind: see 572). 17.7 In Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463, Margaret Goryl, a resident of New South Wales, was a passenger in a bus operated by Greyhound Australia Pty Ltd, a company incorporated in Queensland. Goryl commenced an action in negligence against Greyhound and its insurer, in the District Court of Queensland. In its defence the insurer, Suncorp Insurance and Finance, relied on ss 16, 19 and 20 of the Motor Vehicle Insurance Act 1936 (Qld). The effect of these provisions was to limit the amount of damages recoverable in a motor accident compensation claim if the claimant was not a resident of Queensland to the amount that the claimant would receive under the law of their state of residency. At this time, New South Wales had a no-fault compensation scheme for motor accidents, which placed substantial limits on the amount of compensation that Goryl could recover. Goryl argued that the Queensland law was invalid because it contravened s 117 in that it denied a privilege conferred on Queensland residents to persons who are not Queensland residents: at 465. The High Court accepted this argument. Mason CJ, Brennan, Dawson, Toohey and McHugh JJ so held; Deane and Gaudron JJ also held that the law infringed s 118 of the Constitution (as to which, see 3.33–3.34). 17.8 In Sweedman v Transport Accident Commission (2006) 226 CLR 362, Mrs Sweedman appealed from a judgment of the Victorian Court of Appeal that she should pay compensation to a Mr and Mrs Sutton, who had been injured in a motor accident that took place in New South Wales. The Suttons claimed compensation under s 27 of the Transport Accident Act 1986 (Vic). Under that provision, owners of vehicles registered in Victoria paid a charge to the Victorian Transport

Accident Commission (VTAC), which was then authorised by s 104 to seek an indemnity from Mrs Sweedman for the proportion of the compensation attributable to her negligence. However, an indemnity could not be sought by persons identified in s 94 of the Act, which included owners of motor vehicles registered in Victoria. Sweedman argued that if the substantive effect of the scheme was taken into account, this produced a discrimination against an out-of-state resident and therefore contravened s 117 of the Constitution. A majority of the High Court disagreed (Gleeson CJ, Gummow, Kirby and Hayne JJ; Callinan [page 413] and Heydon JJ not deciding). The plurality made it clear that the law in question must specifically refer to residence as the basis for discrimination (at 407): The appellant submits that if she had resided in Victoria rather than New South Wales she would not have been subjected to the claim to indemnity under s 104(1). This subsection in its terms does not apply to ‘a person who is entitled to be indemnified [by the Commission] under section 94’ and, it is said, the practical effect of this is that, had the appellant resided in Victoria, the exception would have operated and s 104 would not have been engaged.

After setting out s 117, their Honours said (at 408–9): The appellant is a subject of the Queen resident in New South Wales and contends that she is exposed in Victoria to a disability or discrimination, amenability to a s 104(1) claim by the Commission, which would not be equally applicable to her were she a resident of Victoria. The mandatory terms of s 117 of the Constitution require that the appellant not be amenable to the s 104(1) claim, with the result that there is no content to the ‘matter’ propounded under s 75(iv) of the Constitution. This last step was not advanced in these terms but was implicit in the appellant’s case. That submission may be compared with the outcome in Goryl v Greyhound Australia Pty Ltd. The plaintiff, as a resident of New South Wales, was, by the terms of s 20 of the Motor Vehicles Insurance Act 1936 (Q), limited in her action in the Queensland District Court to the damages she could have recovered under New South Wales law for her

motor vehicle accident in New South Wales; these were less than the damages she would otherwise have received under Queensland law had she been a Queensland resident. Section 20 was rendered inapplicable by s 117 of the Constitution to limit recovery of damages. However, for several reasons Goryl does not support the reliance placed upon s 117 by the present appellant. The appellant urged consideration of the reality of the situation as that to which s 117 is directed. That emphasis upon substance and practical operation of laws impugned for contravention of a constitutional limitation or restriction on power may be accepted. But to approach the present case in that way does not assist the appellant. She was required by the NSW Act to have third-party insurance and it was not asserted that she had any direct personal financial interest in the outcome of the case. The insurer no doubt has an interest, but the NSW Act (s 101) stipulates that applications to become a licensed insurer may be made only by corporations licensed under the Insurance Act 1973 (Cth) or by the Government Insurance Office of New South Wales or its affiliates. It is not suggested that a corporation may be a subject of the Queen within the meaning of s 117. Secondly, unlike the Queensland statute considered in Goryl, the operation of s 94 of the Victorian Act is not conditioned by residence. Rather, it is conditioned by payment for the relevant period of the ‘transport accident charge’ for the registered motor vehicle in question. Section 94 would have obliged the Commission to indemnify Mr Sutton as driver of a motor vehicle registered in Victoria in respect of any liability in respect of an injury to or death of a person arising out of its use in Victoria or in another State or Territory, but not in respect of any period where the transport accident charge had not been paid … The upshot is that a vehicle may be registered in Victoria even though its owner or user or both ordinarily reside outside that State, and a person must not use a vehicle on a highway in Victoria unless registered under that statute or exempted under the regulations [references omitted] …

[page 414] The appellant is exposed to the claim by the Commission to indemnity under s 104(1). She is not exempted. But that is because she was not required to have paid the charge levied under the Victorian scheme. There is no differential treatment in s 94 attributable to residence so as to attract s 117 of the Constitution. A non-Victorian resident who owned or drove a registered motor vehicle in respect of which the [VTAC] charge had been paid would have the benefit of the exception to s 104(1); a Victorian resident who had failed to pay the charge would not have the benefit of the exception.

By its terms, s 117 of the Constitution is addressed to protecting a ‘subject of the Queen’ from disability or discrimination in the form of laws and governmental actions or policies. It is therefore necessary in each case where s 117 is invoked to examine the operation of the impugned law, action or policy, to decide whether the discrimen it chooses concerns the State residence of the person who invokes its provisions.

For further analysis, see Simpson, 2006 and 2008.

[page 415]

Chapter Eighteen

Freedom of Political Communication under the Constitution Introduction 18.1 In Kruger v Commonwealth (1997) 190 CLR 1 at 61, Dawson J, with whom McHugh J agreed, said: In a number of recent cases it has been pointed out that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power. Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of the Parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than individual rights. The fetters which are placed upon legislative action are, for the most part, for the purpose of placing matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights … The framers preferred to place their faith in the democratic process for the protection of individual rights.

The Constitution contains few express guarantees of fundamental rights or freedoms from legislative power. One is the freedom of trade, commerce and intercourse among the states in s 92, which is considered in Chapter 6. It provides a limited guarantee of freedom of movement across state borders. A number of provisions do guarantee rights or freedoms in the event that certain preconditions

are satisfied: see, for example, ss 51(xxxi), 80, 116 and 117 (dealt with in Chapters 11, 15, 16 and 17 respectively). However, while the Constitution contains few express rights and freedoms, the High Court has recognised that the system of representative government created by the Constitution (particularly by ss 7 and 24, which require that members of the Senate and House of Representatives be ‘directly chosen by the people’) gives rise to an implied freedom of political communication.

The early cases 18.2 The idea that the Constitution might protect freedoms associated with representative democracy was enunciated by Murphy J in a number of decisions: Buck v Bavone (1976) 135 CLR 110 at 137; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 88; McGraw-Hinds (Aust) Pty Ltd [page 416] v Smith (1979) 144 CLR 633 at 670; Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 312; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556. In the Ansett Transport Industries case, the plaintiff sued the Commonwealth for making an agreement with two freight companies allowing them to import aircraft into Australia. Ansett said this breached agreements they had with the Commonwealth that ensured a duopoly in the domestic airline market (a duopoly comprising Ansett and the government airline, TAA — as to which, see 6.6). Air Express Ltd and Interstate Parcel Express Co (Australia) Pty Ltd, the companies that had been granted permission by the Commonwealth to import aircraft to set up their interstate freight business, argued that any covenant between Ansett and the

Commonwealth to retain the duopoly was contrary to s 92’s guarantee of freedom of trade, commerce and intercourse among the states. While Murphy J acknowledged that his remarks about freedom of speech were not necessary for the disposition of the case, he said (at 88): Elections of federal parliament provided for in the Constitution require freedom of movement, speech and other communication, not only between the States, but in and between every part of the Commonwealth. The proper operation of the system of representative government requires the same freedoms between elections. These are also necessary for the proper operation of the Constitutions of the States (which now derive their authority from Ch V of the Constitution). From these provisions and from the concept of the Commonwealth arises an implication of a constitutional guarantee of such freedoms, freedoms so elementary that it was not necessary to mention them in the Constitution (see United States v Guest 383 US 745 at 757–8 (1965); Shapiro, Commissioner Welfare of Connecticut v Thompson 394 US 618 at 632–3 (1968)). The freedoms are not absolute, but nearly so. They are subject to necessary regulation (for example, freedom of movement is subject to regulation for purposes of quarantine and criminal justice; freedom of electronic media is subject to regulation to the extent made necessary by physical limits upon the number of stations which can operate simultaneously). The freedoms may not be restricted by the Parliament or State Parliaments except for such compelling reasons.

18.3 In Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556, the implied freedom argument was raised by a litigant and expressed in a case stated for the consideration of the court. The defendant had set up a wireless telegraphy station in Somersby, New South Wales, which enabled it to send signals from its Sydney television station to its Brisbane television station. The erection and use of a wireless telegraphy apparatus was prohibited if it was not done with a federal permit under the Wireless Telegraphy Act 1905 (Cth). Gibbs CJ stated a case for the consideration of the full court. The first question concerned s 92 of the Constitution, and is presently irrelevant. The second question was whether the Act infringed ‘any implied constitutional guarantee’. The defendants argued that the ‘Act infringes the implied constitutional guarantee of freedom of communication’ and referred to Murphy J’s judgment in Buck v

Bavone: at 561. The question having been squarely raised by counsel for TCN Nine (AM Gleeson QC), Gibbs CJ, Mason, Brennan, Deane and Dawson JJ answered it in the negative (at 569, 579, 615, 625–6 and 636 respectively, although both Brennan and Deane JJ appeared less dismissive of the existence of an implied freedom). Wilson J decided the case on other grounds. Murphy J applied the implied freedom (at 583–4) and struck down the law on that ground. Mason J remarked (at 579): [page 417] There was an alternative argument put by the defendant, based on the judgment of Murphy J in Buck v Bavone (1976) 135 CLR 110 at 137, that there is to be implied in the Constitution a new set of freedoms which include a guarantee of freedom of communication. It is sufficient to say that I cannot find any basis for implying a new s 92A into the Constitution.

The implication of this remark was that the recognition of an implied freedom of political communication would be tantamount to a judicial amendment to the Constitution. 18.4 Mason J appeared to have a change of heart in Davis v Commonwealth (1988) 166 CLR 79. Davis was a challenge to provisions of the Australian Bicentennial Authority Act 1980 (Cth) which created an Australian Bicentennial Authority to prepare for the commemoration of the bicentennial of Governor Phillip’s landing on the continent of Australia on 26 January 1788. The authority was given exclusive power to use particular symbols and trade marks associated with the event, including the expression ‘200 years’. Davis, an Aboriginal political activist, printed shirts using this expression within slogans which protested against the commemoration of the bicentennial. Davis challenged the law on the basis that it could not be

supported by any legislative power. While it appears that no argument was raised about the operation of principles of freedom of speech in this context, Mason CJ, Deane and Gaudron JJ (with whom the rest of the court agreed on this point) struck down the provisions of the Act which gave the Australian Bicentenary Authority the exclusive power to use these symbols on the following basis (at 100): Here, the framework of regulation … reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorised use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power.

The court had laid the groundwork for submissions in future cases about a constitutionally-protected doctrine of freedom of speech. It had also articulated a test that could be applied to characterise legislation said to infringe such a freedom: a regulation would be permissible if it was ‘reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power’. Brennan J observed at (116–17): The limits on the legislative power to enact penal laws under s 51(xxxix) is of especial importance when the relevant activity undertaken in execution of an executive power is the commemoration of an historical event. Such a commemoration may take many forms, according to the significance placed upon it. The form of national commemorations of historical events usually reflects the significance which the majority of people place upon the event. But there may well be minority views which place a different significance on the same event, as the present case illustrates. It is of the essence of a free and mature nation that minorities are entitled to equality in the enjoyment of human rights. Minorities are thus entitled to freedom in the peaceful expression of dissident views. In this case, the plaintiffs wish to raise a voice of protest against the celebratory commemoration of the Bicentenary, and the defendants contend that ss 22 and 23 are effective to muffle the intended protest.

[page 418]

As a matter of construction, ss 22 and 23 do muffle the intended protest. But it cannot be incidental to the organisation of the commemoration of the Bicentenary to prohibit, under criminal sanctions, the peaceful expression of opinions about the significance of the events of 1788. By prohibiting the use of the symbols and expressions apt to express such opinions, ss 22 and 23 forfeit any support which s 51(xxxix) might otherwise afford.

The court was plainly ready to hear an argument that the Constitution protects freedom of political communication.

The breakthrough 18.5 The freedom of political communication attracted the support of the majority of the High Court and was applied in Australian Capital Television Pty Ltd v Commonwealth (No 2) (ACTV case) (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. The ACTV case was a constitutional challenge to provisions of the Political Broadcasts and Political Disclosures Act 1991 (Cth), which inserted a Pt IIID into the Broadcasting Act 1942 (Cth). Division 2 of the new Pt IIID prohibited radio or television broadcasting of particular material during election or referendum periods. With the exception of material relating to the machinery for conducting the election or referendum, s 95B prohibited all political advertisements, which were defined to include advertisements that contained material ‘intended or likely to affect voting’. Section 95A made an exception, provided that nothing in the new Pt IIID prevented the broadcasting of news or current affairs, a comment on news or current affairs, or comments on talkback radio. A new Div 3 of Pt IIID required television broadcasting licensees to provide free time to political parties subject to a condition (in s 95H) that 90 per cent of the free time was to be granted to political parties that were already represented in parliament and as far as practicable, in proportion to their respective voting shares at the previous election. Division 3 of Pt IIID enabled a broadcaster to broadcast the policy launch of a political party once

only and free of charge. The plaintiffs, a number of broadcasters, challenged the validity of the law on a number of grounds, including the ground that the legislation infringed ‘an implied guarantee of freedom of access to, participation in, and criticism of, federal and state institutions amounting to a freedom of communication in relation to the political and electoral processes. Those guarantees arise as a necessary implication from the nature of the institutions of government created and preserved by the Constitution or from the common citizenship of the Australian people’: at 109 (and see further at 110–11, where the argument is further elaborated). The plaintiffs cited Murphy J’s judgments in the earlier cases in support of their arguments, as did the Solicitor-General for New South Wales, who intervened in support of the broadcasters. The court upheld the challenge by majority and six judges recognised the existence of an implied freedom of political communication: Mason CJ at 138–9; Brennan J at 149 (who, however, held that Pt IIID did not infringe the implied freedom); Deane and Toohey JJ at 168; Gaudron J at 210; McHugh J at 227–8. Dawson J dissented, saying that there was no implied freedom of communication. The implication was drawn in different ways and the justices differed somewhat [page 419] as to the content of the freedom of communication. Since the court later reached a unanimous opinion in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the earlier cases are not covered here in detail. For a detailed account of the earlier cases, see Hanks Australian Constitutional Law, [10.6.7C]–[10.6.10].

18.6 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, which was heard and handed down with the ACTV case, concerned the validity of s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth), which made it an offence to use words calculated to bring the Australian Industrial Relations Commission into disrepute. The defences which were ordinarily available to persons charged with such an offence, defences such as ‘fair comment’ or ‘honest and reasonable mistake of fact’, had been removed. Wills, an officer of the Australian Federal Police, laid an information before the Federal Court alleging that in publishing an article that was critical of the integrity and independence of the Industrial Relations Commission, the applicant was guilty of contravening s 299(1)(d)(ii). The article had said that the commission was an ‘official Soviet-style’ agency operating as a ‘corrupt and compliant “judiciary”’ staffed by ‘corrupt labour “judges”’: see the judgment of McHugh J at 96–7. Nationwide News argued, among other things, that there ‘is to be implied into the Constitution a guarantee in favour of the people of Australia that the parliament has no power to make a law which impairs their capacity to perform the functions and responsibilities entrusted to them by the Constitution. In a representative democracy parliament can regulate, but not abrogate, political criticism’: at 8 (and 14). Mason CJ, Dawson and McHugh JJ held that s 299(1)(d)(ii) was invalid on the ground that it could not be supported by s 51(xxxv) of the Constitution, which otherwise authorised the creation of the Industrial Relations Commission. Nor could it be supported by s 51(xxxix), the Commonwealth’s incidental power. Mason CJ applied what he referred to as the ‘reasonable proportionality’ test the majority had enunciated in Davis v Commonwealth (1988) 166 CLR 79, and that in assessing whether an impugned law was reasonably proportionate to the Commonwealth

powers invoked to support it, it was ‘material to ascertain whether … adverse consequences result’, in particular, ‘any infringement of fundamental values traditionally protected by the common law, such as freedom of expression’: at 29–31. Dawson J disagreed with Mason CJ’s approach (at 88–9). Dawson J concluded that the provisions simply lacked a sufficient connection with the subject matter of the legislative power invoked to support it, s 51(xxxv), which is directed to the topic of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. Dawson J rejected the argument that the Constitution protected freedom of political communication. McHugh J, in similar terms to Mason CJ, held that s 299(1)(d)(ii) went ‘well beyond protecting the Commission and its members against unwarranted attacks’ (at 102) and consequently, ‘the proper conclusion is that that paragraph goes beyond what is reasonably and appropriately adapted to the ends which s 51(xxxv) of the Constitution seeks to achieve’: at 105. [page 420] Brennan, Deane, Toohey and Gaudron JJ based their reasoning on the proposition that the system of representative government prescribed by the Constitution gave rise to an implication that it is necessary to enable the discussion of political and governmental affairs: at 47–9 per Brennan J; at 71–3 per Deane and Toohey JJ; at 94 per Gaudron J. Brennan J, anticipating the approach the High Court would later accept in Lange, wrote: The Constitution brought into existence repositories of legislative, executive and judicial power (ss 1, 61 and 71 of the Constitution); it also created a federal system of government in which the Houses of the Parliament are chosen by the people: ss 7 and 24 …

Moreover, a Minister of State cannot hold office for more than three months unless he or she is a member of one of the Houses of the Parliament: s 64. The Constitution, either expressly or in conjunction with the common law of the Constitution, prescribes a further principle of responsible government. The principles referred to by Stephen J and the principle of responsible government are constitutional imperatives which are intended — albeit the intention is imperfectly effected — to make both the legislative and executive branches of the government of the Commonwealth ultimately answerable to the Australian people. Under the Westminster model, these principles might be trespassed upon by legislation emanating from an omnicompetent Parliament but the Parliament of the Commonwealth is incompetent to alter the principles prescribed by the Constitution to which it owes its existence. It is a Constitution the text of which the people alone can change: s 128 … To sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential: it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments. Once it is recognized that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains … By parity of reasoning, the representative democracy ordained by our Constitution carries with it a comparable freedom for the Australian people and that freedom circumscribes the legislative powers conferred on the Parliament by the Constitution. No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose [references omitted].

18.7 The implied freedom of communication reached its widest ambit in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. The first case concerned a letter written by Bruce Ruxton, a former President of the Returned Services League who was known for being both controversial and outspoken. The letter was published in the Sunday Herald Sun (Melbourne), which was published by Herald & Weekly Times Ltd. The letter accused Theophanous, a member of the House of Representatives and chair of a joint parliamentary committee on migration, as being biased towards Greek immigrants

and ‘idiotic’. Theophanous brought proceedings against the defendant for defamation. The defendant argued, amongst other things, that the implied freedom of political communication had a necessary [page 421] impact on the general law of defamation, immunising it from defamation suits by politicians (at 107): The free discussion of political and governmental matters, including the character and qualifications of candidates for parliamentary office or the performance of present holders of such office, is of such great public benefit and so crucial to the effective working of Australian democracy as to outweigh the risk of occasional injury to individual reputations. The requirement that a defendant establish either truth or one of the recognized defences, under threat of a substantial award of damages, has a chilling effect on free discussion of political and governmental matters which is inconsistent with the terms of and is antithetical to the objects of the constitutional guarantee. An appropriate balance between the public interest in the protection of individual reputations and the policy objectives underlying the guarantee would be served if statements regarding political and governmental matters were actionable only if the plaintiff could establish malice in the sense of deliberate falsity or reckless disregard of the truth, alternatively if the publication were unreasonable in all the circumstances.

A majority of the court, Mason CJ, Deane, Toohey and Gaudron JJ, held: •

There is implied in the Commonwealth Constitution a freedom to publish material: (a) discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (c) in relation to the suitability of persons for office as members of the Parliament.

•

In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law

relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances. •

A publication that attracts the freedom implied in the Commonwealth Constitution can also be described as a publication on an occasion of qualified privilege. Whether a federal election is about to be called is not a relevant consideration.

Mason CJ, Toohey and Gaudron JJ held that it was unnecessary to decide whether the implied freedom of communication could be ‘a source of positive rights’: at 125. Deane J, while agreeing in the order set out in the paragraph above, offered the following ‘addendum’ to his judgment (at 187–8): The overall effect of the various judgments in this case is that four Justices, Mason CJ, Toohey J, Gaudron J and I, have reached the conclusion that an unqualified application of the defamation laws of Victoria to impose liability in damages in respect of political communications and discussion is precluded by the constitutional implication of political communication and discussion. There is, however, disagreement within that bare majority of the Court about what flows from that conclusion for the purposes of the present case. Mason CJ, Toohey and Gaudron JJ would hold that the implication precludes the application of State defamation laws to impose liability in damages for the publication of a statement about the official conduct or suitability of a member of the Parliament only if the defendant establishes that ‘it was unaware of the falsity of the material published’, that ‘it did not publish the material recklessly,

[page 422] that is, not caring whether the material was true or false’ and that ‘the publication was reasonable in the circumstances’. For the reasons which I have given, I am quite unable to accept that the freedom which the constitutional implication protects is, at least in relation to statements about the official conduct or consequent suitability for office of holders of high government office, conditioned upon the ability of the citizen or other

publisher to satisfy a court of matters such as absence of recklessness or reasonableness. Nonetheless, I necessarily agree with their Honours that the constitutional implication precludes the imposition of liability in damages under State defamation laws to the extent which they would exclude it in a case such as the present. That means that majority support for the operation of the implication in a case such as the present exists for, but is limited to, that attributed to it by Mason CJ, Toohey and Gaudron JJ. In these circumstances, the appropriate course for me to follow is to lend my support for the answers which their Honours give to the questions reserved by the stated case.

Brennan, Dawson and McHugh JJ dissented, and vigorously so. 18.8 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 similarly concerned a politician, this time one of six members of the Western Australian Legislative Council, who had undertaken an overseas study trip at taxpayers’ expense. The politicians were the subject of criticism in a number of articles in the West Australian newspaper that accused them of having gone overseas on ‘a junket of mammoth proportions’ without the knowledge of parliament. The politicians sued for defamation. The West Australian defended its articles on a number of grounds, including that the articles related to the performance of the politicians in their functions as members of parliament and to their suitability to hold office as such, that the articles related to matters relevant to an elector in deciding how to vote in Western Australian elections, that their publication was reasonable in the circumstances, and that the articles were published pursuant to the freedom guaranteed by the Constitution and the Constitution Act 1889 (WA) and were therefore not actionable. Mason CJ, Deane, Toohey and Gaudron JJ held that the implied freedom of political communication (which they found in the Commonwealth Constitution and the Constitution Act 1899 (WA)) extended to ‘criticism of the conduct, performance and fitness for office of a member of Parliament’ (Mason CJ, Toohey and Gaudron JJ at 234, with whom Deane J concurred at 257). Mason CJ, Toohey and Gaudron JJ (again, with whom Deane J concurred) also held that ‘the

implied freedom would afford a defence in law in respect of the three publications complained of if the defendant was unaware of the falsity of the material published and did not publish the material recklessly, that is, not caring whether the material was true or false, and if the publications were reasonable in the circumstances’: at 234. However, they concluded that the defendant had failed to plead this defence (it had pleaded a defence that the publication ‘was reasonable in all the circumstances’), and so the defence was bad in law, and did not satisfy the new constitutional test. Brennan, Dawson and McHugh JJ dissented. 18.9 Though Deane J fell into line with Mason CJ, Toohey and Gaudron JJ in Stephens, this apparent consensus did not persuade the court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, which rejected the test developed by the majority in Theophanous and Stephens. Changes to the composition of the [page 423] bench (the departure of Mason CJ and Deane J and the arrival of Gummow and Kirby JJ) saw a new consensus emerge. Before turning to Lange however, it is useful to examine several intervening cases which stated important general principles of constitutional interpretation that were influential in the post-Lange freedom of communication decisions. These decisions confirmed McHugh J’s observation in Theophanous (see 18.7) that the Constitution provides for a system of representative government which leaves significant power to the parliament to determine the form which that type of government might take, not a system of representative democracy that might yield personal rights and freedoms such as freedom of speech. 18.10

The limits of any implications to be drawn from any

constitutional principle of ‘representative democracy’ were explored in McGinty v Western Australia (1996) 186 CLR 140. In that case, McGinty and others challenged the constitutional validity of provisions of the Western Australian Constitution and electoral laws which had the effect of providing rural electors with greater voting power than metropolitan electors (this ‘gerrymander’ still operates to some extent). Under the laws, a metropolitan electorate could have up to three times as many electors as the smallest rural electorate. It was argued that disparities in voting power were inconsistent with principles of representative democracy that underlie both the Commonwealth and Western Australian Constitutions. Specifically it was argued that one of the principles of representative democracy that underpin the Commonwealth and Western Australian Constitutions included a principle that an elector’s vote should be of equal value to that of any other elector (‘one vote–one value’). Invoking the earlier cases on freedom of political communication, it was argued that (at 143): The Court took two steps in those cases, holding first that the Constitution contains an implication of representative government or representative democracy, and secondly that the implication extends to freedom of speech in relation to matters which enable an elector to exercise the right to vote. This case involves an intermediate step. Representative democracy requires the observance of universal adult suffrage which has two components: (a) that every legally capable adult has the vote; (b) that each person’s vote be equal to that of every other … The concept of representative democracy incorporated in both constitutions has developed throughout the century … The principle of representative democracy in Commonwealth and State Constitutions now requires practical equality or something close to it such that any deviations require rational justification proportionate to the legitimate interest that is to be accommodated (relative equality).

The argument was rejected. Brennan CJ, Dawson, McHugh and Gummow JJ (Toohey and Gaudron JJ dissenting) held that neither of the Constitutions gave rise to an implication that the people of Western Australia enjoyed a guarantee of ‘one vote–one value’. Brennan CJ referred to Nationwide News and Australian Capital

Television and stressed that the text and structure of Pts II and III of Ch I of the Constitution, and specifically ss 7 and 24, gave rise to the implication of freedom to discuss political matters, but it would be (at 169): … logically impermissible to treat ‘representative democracy’ as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed. The text of the Constitution

[page 424] can be illuminated by reference to representative democracy but the concept neither adds to nor alters the text.

The development of implications from a doctrine of representative democracy said to underlie the Constitution was stridently opposed by McHugh J, who said (at 235–6): I regard the reasoning in Nationwide News, Australian Capital Television, Theophanous and Stephens in so far as it invokes an implied principle of representative democracy as fundamentally wrong and as an alteration of the Constitution without the authority of the people under s 128 of the Constitution. Moreover, much as I admire the noble vision of the justices who have found, contrary to what the overwhelming majority of lawyers had always thought, that the Constitution contains a free-standing principle of representative democracy, the principles of constitutional interpretation compel me to reject their reasoning. To decide cases by reference to what the principles of representative democracy require is to give this court a jurisdiction which the Constitution does not contemplate and which the Australian people have never authorised. Interpreting the Constitution is a difficult task at any time. It is not made easier by asking the justices of this court to determine what representative democracy requires. That is a political question and, unless the Constitution turns it into a constitutional question for the judiciary, it should be left to be answered by the people and their elected representatives acting within the limits of their power as prescribed by the Constitution.

Gummow J pointed out that to draw implications from a ‘doctrine of representative democracy’ was to ‘adopt a category of indeterminate reference’: 186 CLR at 269. Critical to the conclusion

that there is no implication of ‘one vote–one value’ to be drawn from the Commonwealth Constitution was the fact that ss 7, 10, 22, 24, 29, 30, 31, 34, 39 and 46–48 give the Parliament considerable legislative discretion as to the form of representative government. As Gummow J explained (at 280): … the recurrent phrase ‘until the Parliament otherwise provides’ [in those sections] has a deeper significance. Its effect is to accommodate the notion that representative government is a dynamic rather than a static institution.

In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the unanimous High Court later said (at 566–7): Constitutional text and structure Since McGinty it has been clear, if it was not clear before, that the Constitution gives effect to the institution of ‘representative government’ only to the extent that the text and structure of the Constitution establish it. In other words, to say that the Constitution gives effect to representative government is a shorthand way of saying that the Constitution provides for that form of representative government which is to be found in the relevant sections. Under the Constitution, the relevant question is not, ‘What is required by representative and responsible government?’ It is, ‘What do the terms and structure of the Constitution prohibit, authorise or require?’.

18.11 In Langer v Commonwealth (1996) 186 CLR 302, Langer challenged the constitutional validity of s 329A of the Electoral Act 1918 (Cth) which provided, inter alia, that: … a person must not, during the relevant period in relation to a House of Representatives election under this Act, print, publish or distribute, any matter or

[page 425] thing with the intention of encouraging persons voting at the election to fill in a ballot otherwise than in accordance with section 240. Penalty: imprisonment for six months.

Section 240 made provision for a system of full preferential voting, under which electors are required to number each box on the ballot paper in sequential order. Sections 268 and 270 operated to save ballots which were not numbered in this way using a variety of

recounting methods. Langer was charged with offences under s 329A for encouraging people to indicate a first preference for the candidate of their choice (preferably a member of a minor political party) and then a second preference for each and all of the subsequent candidates. Langer argued that the words ‘chosen by the people’ in s 24 of the Constitution required that voters must be free to indicate the candidates which the voter does not choose, and in some circumstances that can only be done by filling in the ballot paper otherwise than in accordance with s 240. Langer also argued that s 329A was invalid because it prohibited the encouragement of voters to exercise a right of choice which the Constitution allows. Further, it was argued that s 329A was invalid because it infringed the implied constitutional freedom of communication about political matters by purporting to penalise people who were advising others about how they should vote. Langer, who argued his own case, said (at 304): An Act which enables the Commission to encourage electors to vote for candidates whom they do not choose as representatives cannot be valid … Section 329A of the Commonwealth Electoral Act refers to and is based on s 240 which is invalid. Parliament cannot prescribe that electors are not permitted to support the candidates of their choice because s 24 of the Constitution requires Parliament to be directly chosen by the electors. Section 240 authorises a ‘1, 2, 2, 2’ vote but s 329A makes it an offence to encourage an elector to fill in a ballot paper in that way. If an elector wishes to vote against a candidate a ‘1, 2, 2’ vote should be cast. If s 240 is not read in the way suggested the requirement of an absolute majority of votes cast is purposeless. Section 240 does not say that you must write consecutive unrepeated numbers.

A majority of the court, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ (Dawson J dissenting) rejected these arguments. The majority held that s 240 of the Electoral Act prescribed a system of voting which was consistent with s 24 of the Constitution. The Act was a valid exercise of the Commonwealth’s power to make electoral laws pursuant to ss 31 and 51(xxxvi), and s 329A was held to be a reasonably appropriate and adapted means of preventing subversion of that valid voting method. The provision did not infringe the implied freedom of communication because Langer remained free to

criticise the system — but, paradoxically, he could be validly forbidden from encouraging people to disregard the system. Gummow J wrote (at 348–51): As I understand the submissions for the plaintiff, it is accepted (and rightly) that (subject to such limitations as properly apply by reason of any express provision of the Constitution or are properly implied from the system of representative government which is established and maintained by the Constitution) the Parliament has power under ss 31 and 51(xxxvi) of the Constitution to make laws which relate to elections for the House of Representatives. Section 31 of the Constitution states: Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more

[page 426] numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives. Paragraph (xxxvi) of s 51 is a conferral of legislative power with respect to: Matters in respect of which this Constitution makes provision until the Parliament otherwise provides. The head of federal legislative power thus is the making of laws relating to elections for members of the House of Representatives. Section 240 plainly is such a law and it states that electors ‘shall mark’ their vote on the ballot paper in a particular fashion so as to cast a fully exercised preferential vote. The other provisions of ss 268 and 270 are ancillary (in the manner I have described) to the primary objective of the legislation, and do not evince any legislative intent to make optional or selective preferential voting available as an alternative to full preferential voting. The legislative power of the Commonwealth I have identified above includes the making of laws which regulate the conduct of persons in relation to such elections. Section 329A is a law which prohibits conduct, of the nature and quality identified in it by reference to s 240, which has the tendency to undermine the efficacy of the system in accordance with which the vote of an elector is to be recorded and counted. That system does not include optional or selective preferential voting. The key to that

system is provided by the expression ‘shall mark’ in s 240 and it is in aid of this that s 329A operates. The plaintiff submits, in effect, that s 24 of the Constitution requires that members of the House of Representatives be elected in accordance with the desires or intentions of the electorate … In my view, s 24 does not confer upon each elector a personal right to vote for the candidate of that elector’s choice, and, therefore, a right (or immunity) not to state a preference for a candidate whom the elector does not wish to be elected. Section 24 is not concerned with the particular form to be taken by the franchise in a system of direct election of members of the House of Representatives. It follows that there is no constitutional limitation upon giving to s 240 the operation it has upon its terms. Therefore, there is no limitation which flows from s 240 into s 329A so as to impugn the validity of s 329A. Once the generality of the power to enact laws relating to elections is appreciated and the validity of s 240 is accepted, s 329A stands as a provision which protects the method of electing members of the House of Representatives. In my view, there is no substance in any submission that, even if s 329A otherwise be within legislative power, nevertheless it is invalid for infringement of that restraint upon power which is identified as the implied freedom of political communication. As the constitutional implication recently was formulated in Theophanous v Herald & Weekly Times Ltd, it is derived from, and operates in aid of, the system of representative government established and maintained by the Constitution. At the centre of the system of representative government is the electoral process … In Nationwide News Pty Ltd v Wills, Deane and Toohey JJ said: The ability to cast a fully informed vote in an election of members of the Parliament depends upon the ability to acquire information about the background, qualifications and policies of the candidates for election and about the countless number of other circumstances and considerations, both factual and theoretical, which are relevant to a consideration of what is in the interests of the nation as a whole or of particular localities, communities or individuals within it. Section 329A does not impose any restriction upon political discussion generally nor, more particularly, upon discussion as to the suitability or disadvantages in the

[page 427] voting system. Rather, it is directed at the particular processes or mechanism by which the franchise is exercised and the vote is cast.

It is one thing to advocate the abrogation or modification of the particular system by which the legislature provides for the exercise of the franchise. It is another intentionally to seek to undermine the effective franchise by encouraging a course of action which may lead to the casting by electors of informal votes in an election for the House of Representatives, thereby denying the effective exercise by those electors of their right to participate in the activity whereby representative government is constituted and renewed. The constitutional implication of freedom of political communication has been formulated in the authorities as operating in aid of representative government. It does not facilitate or protect that which is intended to weaken or deplete an essential component of the system of representative government. It cannot be inimical to representative government to forbid intentional conduct comprising advocacy of the casting of a vote in such a way as may be an ineffective exercise of the franchise … Section 329A is a valid law of the Commonwealth. The question reserved should be answered ‘Yes’.

Dawson J, who was the sole dissentient, said (at 325–6): To my mind, s 329A (or, more accurately, the law inserting it in the Act) is not such a law. It is a law which is designed to keep from voters information which is required by them to enable them to exercise an informed choice. It can hardly be said that a choice is an informed choice if it is made in ignorance of a means of making the choice which is available and which a voter, if he or she knows of it, may wish to use in order to achieve a particular result. If s 240 stood alone, s 329A would be supportable as a protection of the preferential system of voting provided by the Act. Upon any view, some limitations upon freedom of communication are necessary to ensure the proper working of any electoral system. However, the method of preferential voting which is established by the Act is that which may be discerned from ss 240, 268, 270 and 274 read together. Sections 268 and 270 qualify the method of voting prescribed by s 240 and s 270 makes available optional or selective preferential voting as opposed to full preferential voting. It is true that a voter cannot cast a formal vote by simply placing the number 1 in the square beside one candidate and leaving all the others blank. But the fact remains that the Act permits voters intentionally to record a preference for only one or some of the candidates standing for election by completing their ballot paper in the manner which I have described above. To prohibit communication of this fact (or at any rate communication in the form of encouragement) is to restrict the access of voters to information essential to the formation of the choice required by s 24 of the Constitution. Thus, s 329A has the intended effect of keeping from voters an alternative method of casting a formal vote which they are entitled to choose under the Act. It does not, to my mind, matter that the prohibition imposed by s 329A is confined to the conveying of information with the intention of encouraging persons voting at an

election to fill in a ballot paper otherwise than in accordance with s 240. To impart information which can be used (and information about the availability of an optional or selective preferential vote is of that kind) is necessarily to encourage its use if the recipient of the information is so inclined. A person in making that information available to an eligible voter would, in the absence of active discouragement of its use, find it well nigh impossible to prove that it was made available without any intention that those to whom it was made available should make use of it. To put the matter shortly, to make available useful information is ordinarily to encourage

[page 428] its use. This is particularly so in the context of an election. The effect of s 329A in any practical sense must, in my view, be to discourage, if not prevent, persons from imparting to eligible voters knowledge that the electoral system permits optional or selective preferential voting. It cannot, therefore, be a law which is reasonably and appropriately adapted to the achievement of an end which lies within the ambit of the relevant legislative power. Indeed, the effect of the provision is such that it is possible to adopt the words of Mason CJ, Deane and Gaudron JJ in Davis v The Commonwealth: This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power. I have been able to reach my conclusion without reliance upon the reasoning of the majority with regard to freedom of communication in the previous cases. With the greatest of respect, that reasoning does not, as I have indicated, commend itself to me. But upon that reasoning, the Constitution guarantees freedom of political discussion. I must confess that I am unable to see how political discussion can be confined to the mere imparting of information and why it should not extend to the furnishing of information with the intention that it should be used. Indeed, exhortation or encouragement of electors to adopt a particular course in an election is of the very essence of political discussion and it would seem to me that upon the view adopted by the majority in the earlier cases, s 329A must infringe the guarantee which they discern. It is true that the encouragement of voters to adopt a course which is inconsistent with the casting of a formal vote may not infringe that guarantee because the casting of a formal, and therefore, effective, vote is in the interests of representative government, as are the various other controls which may impede freedom of discussion but which are required to ensure that an electoral system works properly. But s 329A goes beyond matters of that kind. It seeks to prevent the encouragement of voters to cast their votes in a form which is open to them. It must inevitably inhibit freedom of political discussion in a manner which does nothing to aid the proper conduct of elections in

accordance with the Act.

18.12 In Holmdahl v Australian Electoral Commission (12 April 2013), the High Court rejected an application for special leave to appeal the decision of the Full Court of the Supreme Court of South Australia upholding s 245(15) of the Electoral Act (Cth), which makes it an offence to fail to attend a polling booth. The court upheld its previous decisions in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 271 at 272 that making voting compulsory is a valid exercise of the Commonwealth’s legislative powers over elections. It had been argued that ss 7 and 24 of the Constitution describe a right, not a duty, and that the parliament could regulate that right, but it could not exercise its legislative power over elections in a way that replaces that right with a duty. The Constitution contains many provisions that impose duties (see, for example, ss 3, 5 and 12). The word ‘shall’ appears throughout the Constitution: indeed, it is one of the most common words in the Constitution. The people who drafted the Constitution appreciated its effect. The word ‘shall’ features in ss 7 and 24. It was argued, though, applying the principle of construction that expressio unius est exclusio alterius, that these provisions should not be interpreted as allowing the imposition of duties that derogate from the right to vote set out in ss 7 and 24. 18.13 The divergence of opinion among the justices of the High Court regarding the nature and scope of the implied freedom of speech was removed for a time by [page 429] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. In 1991 the plaintiff, a member of the New Zealand Parliament and former Prime Minister, brought defamation proceedings against the ABC

alleging that he had been defamed during the Four Corners program broadcast on 30 April 1990. The ABC relied on a number of defences including that the matter complained of was published pursuant to a freedom guaranteed by the Commonwealth Constitution to publish materials in the course of discussion of government and political matters. The High Court took the opportunity to reconsider the divergent perspectives that had emerged in the previous free speech decisions and said (at 559–62): Freedom of communication Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be ‘directly chosen by the people’ of the Commonwealth and the States, respectively. At federation, representative government was understood to mean a system of government where the people in free elections elected their representatives to the legislative chamber which occupies the most powerful position in the political system. As Birch points out, ‘it is the manner of choice of members of the legislative assembly, rather than their characteristics or their behaviour, which is generally taken to be the criterion of a representative form of government’. However, to have a full understanding of the concept of representative government, Birch also states that: … we need to add that the chamber must occupy a powerful position in the political system and that the elections to it must be free, with all that this implies in the way of freedom of speech and political organisation. Communications concerning political or governmental matters between the electors and the elected representatives, between the electors and candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation. While the system of representative government for which the Constitution provides does not expressly mention freedom of communication, it can hardly be doubted, given the history of representative government and the holding of elections for which the Constitution provides were intended to be free elections in the sense explained by Birch. Furthermore, because the choice given by ss 7 and 24 must be a true choice with ‘an opportunity to gain an appreciation of the available alternatives’, as Dawson J pointed out in Australian Capital Television Pty Ltd v Commonwealth, legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election. That being so, ss 7 and 24 and the related sections of the Constitution necessarily

protect that freedom of communication between the people concerning political or governmental matter which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous, they are ‘a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizens from being adversely affected by those laws or by the exercise of those powers rather than to a “right” in the strict sense’. In Cunliffe v The Commonwealth, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said that the:

[page 430] … implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control. If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable ‘the people’ to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election. In addition, the presence of s 128, and of ss 6, 49, 62, 64 and 83, of the Constitution makes it impossible to confine the receipt and dissemination of information concerning government and political matters to an election period. Those sections give rise to implications of their own. Section 128, by directly involving electors in the State and in certain Territories in the process for amendment of the Constitution, necessarily implies a limitation on legislative and executive power to deny the electors access to information that might be relevant to the vote they cast in a referendum to amend the Constitution. Similarly, provisions which prescribe the system of responsible government necessarily imply a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of the federal parliament. Moreover, the conduct of the executive branch is not confined to ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a minister who is responsible to the legislature. In British Steel Corp v Granada Television Ltd, Lord Wilberforce said that it was by these reports that effect was given to ‘[t]he legitimate interest of the public’ in

knowing about the affairs of such bodies. Whatever the scope of the implications arising from responsible government and the amendment of the Constitution may be, those implications cannot be confined to election periods relating to Federal Parliament. However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that end [references omitted].

It is evident from this passage that the implied freedom is not intended to operate as a ‘free-standing’ principle of free speech. The court specifically noted that the principle does not confer personal rights and is limited to what is necessary for the effective operation of the constitutional system of representative and responsible government. This is a restrained view which is grounded in the text and structure of the Constitution. To put it another way: the freedom cannot rise above its source. Narrowing the operation of the freedom is supposed to ensure that judges eschew value-laden judgments. It is therefore confined to the advancement of constitutional imperatives, primarily representative government (ss 7 and 24 of the Constitution). As the court observed (at 567), ‘What do the terms and structure [page 431] of the Constitution prohibit, authorise or require?’ They added: ‘To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64 and 128 and related sections of the

Constitution, the implication can validly extend only so far as is necessary to give effect to those sections’. Sections 7 and 24 require members of the Senate and House of Representatives to be ‘directly chosen by the people’ at periodic elections. As this is constitutionally prescribed, it inevitably follows that the selection of representatives be preceded by political debate and discussion. The court said (at 560) that ss 7 and 24 necessarily protect ‘that freedom of communication between the people concerning political or governmental matters which enables the people to exercise a free and informed choice as electors’. It is important that this communication not be limited to election time, because ‘most of the matters necessary to enable “the people” to make an informed choice will occur during the period between the holding of one, and the calling of the next, election’: at 561. To prescribe otherwise would deprive electors of ‘the greater part of the information necessary to make an informed choice at the election’: at 561. Any illusions that the freedom to communicate political and governmental affairs established a personal right to free speech (as was suggested in Theophanous and Stephens) was dispelled in Lange, and confirmed in more recent decisions: see Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 at 74, 89 per Crennan and Kiefel JJ; Monis v The Queen (2013) 249 CLR 92 at 189, 206–7 per Crennan, Kiefel and Bell JJ; Unions New South Wales v New South Wales (2013) 252 CLR 530 at 554 per French CJ, Hayne, Crennan, Kiefel and Bell JJ; at 571 per Keane J; Tajjour v New South Wales (2014) 254 CLR 508 at 569 per Crennan, Kiefel and Bell JJ; McCloy v New South Wales (2015) 325 ALR 15 at [2], [30] per French CJ, Kiefel, Bell and Keane JJ; at [317] per Gordon J. The principle only applies to protect political communication where the government has attempted to unduly curtail the ‘protected freedom by the exercise of legislative

or executive power’: Lange at 560; see also Monis v The Queen at 192 per Crennan, Kiefel and Bell JJ. What the court is saying is that the freedom may be restricted where the law is properly regarded as having a legitimate object or end. In the above excerpt, the court stated that the freedom will not invalidate a law enacted to satisfy legitimate public ends. Two conditions were outlined by the court: (1) the law’s object is compatible with the maintenance of the system of representative government; and (2) the law is reasonably appropriate and adapted to achieving that legitimate object or end. It is against this backdrop that the court (at 567) formulated the following test (‘the Lange test’): First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively ‘the system of government prescribed by the Constitution’). If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.

For further consideration of the impact of the Lange decision on the law of defamation, see Roberts v Bass (2002) 212 CLR 1 at 26–30, 70. [page 432] In the majority of political communication cases post-Lange, the legitimate object of the impugned law has been held to be reasonably appropriate and adapted. This has included: the protection of public safety (Levy v Victoria (1997) 189 CLR 579); the preservation of public order (Coleman v Power (2004) 220 CLR 1); community protection and rehabilitation of sex offenders following their release from prison (Hogan v Hinch (2011) 243 CLR 506); crime prevention through

humane containment, supervision and rehabilitation of offenders and ensuring the good conduct of parolees as a means of limiting their chances of re-offending (Wotton v Queensland (2012) 246 CLR 1); preventing the intrusion of offensive material in the post into a person’s home or workplace (Monis v The Queen (2013) 249 CLR 92); regulating the use of public roads as to prevent their obstruction and to ensure the convenience of users (Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1); crime prevention by making it an offence for a person to consort with known convicted offenders (Tajjour v New South Wales (2014) 254 CLR 508); and removing the risk and perception of corruption and undue influence in politics by imposing caps on political donations, prohibiting property developers from making such donations and restricting indirect campaign contributions (McCloy v New South Wales (2015) 325 ALR 15). Application of the principle: The ‘activities’ of communication 18.14 The implied freedom of communication established in the 1992 cases and re-formulated in Lange was applied straight away in Levy v Victoria (1997) 189 CLR 579. Levy, an animal rights activist, was charged with summary offences under Victorian hunting season regulations which made it an offence for people who did not hold a valid game licence to enter into or upon any permitted hunting area during a specified period of time. During this period, licensed hunters were allowed to shoot and kill ducks. The plaintiff, who did not hold a valid game licence, challenged the constitutional validity of the regulations on the basis that, among other things, the regulations were unconstitutional by reason of the implied freedom of speech. The plaintiff argued that the regulations infringed his freedom of speech by limiting his capacity to protest and thereby to enable people to form or exercise political judgments about government policy on duck shooting. The plaintiff argued to communicate his political message that duck shooting should be banned it was necessary for him to have

access to the hunting grounds to retrieve dead or wounded birds so that he could show them to television camera crews. Victoria demurred to the plaintiff’s statement of claim and was granted leave to re-argue the correctness of Theophanous and Stephens. Every member of the court held that the regulations were reasonably necessary to protect the safety of the public and participants and the restriction on the type of protests this entailed was reasonably capable of being seen as appropriate and adapted to this end. Consequently, Levy’s challenge to the regulations was rejected. Every member of the court also stated or assumed that nonverbal activity could fall within the implied freedom of communication: at 594, 609, 613, 617, 622–3, 631. Kirby J observed (at 637–8): Activity as political communication A threshold question arises as to whether, upon any view, conduct of the kind pleaded by the plaintiff could amount to constitutionally protected communication.

[page 433] Was it the kind of activity which this Court has held to be necessarily implicit in the text and structure of the Australian Constitution? Could conduct, as distinct from words, ever amount to the kind of ‘communication’ which an implied restriction on law-making would protect? The plaintiff relied upon the inhibition which the regulation placed upon his words, namely dialogue with opponents, supporters, the media and, through them, the members of Parliament and electors of Victoria. But beyond that he relied on the limitations which the regulation imposed on his actions. These were not only limitations upon his movement within the Commonwealth. They also extended to limitations upon protest, assembly, demonstration, agitation and the other activities which exclusion from the proclaimed area would totally prevent in the critical first days of the open season for duck shooting. The conceptual foundation for the constitutional freedom of communication in Australia is different from that derived from the First Amendment to the United States Constitution, as it has been interpreted. Nevertheless, both sides and the interveners

took this Court to United States authority. It was suggested by the plaintiff that this would establish that communication on political and governmental matters included non-verbal communication of the kind relied on by him. United States authority was also propounded to support the proposition that legislative derogations from such a constitutional freedom must be proportional to, or otherwise permissible for, the purposes of the derogation taking into account the importance of upholding the freedom of political communication by limiting the power of a Parliament to make laws inconsistent with it. A rudimentary knowledge of human behaviour teaches that people communicate ideas and opinions by means other than words spoken or written. Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation, turning away from a speaker, or even boycotting a big public event clearly constitutes political communication although not a single word is uttered. The constitutionally protected freedom of communication in Australia must therefore go beyond words.

The ‘Occupy Wall Street’ protest movement in 2011 spawned similar protests in Sydney and Melbourne between October and December 2011. A large number of protesters assembled at Martin Place in Sydney’s central business district (‘Occupy Sydney’) as well as public gardens (for example, Treasury Gardens and Flagstaff Gardens) near the City of Melbourne (‘Occupy Melbourne’). The prohibition of the protesters’ occupation of these public spaces led to two initial Federal Court cases, O’Flaherty v City of Sydney Council (No 1) (2013) 210 FCR 484 and Muldoon v Melbourne City Council (2013) 217 FCR 450. These decisions were reaffirmed on appeal: see O’Flaherty v City of Sydney Council (No 2) (2014) 221 FCR 382 and Kerrison v Melbourne City Council (2014) 228 FCR 87. In O’Flaherty (No 1), Katzmann J remarked (at [2]) that the purpose of these protests was to ‘demonstrate against social and economic inequality and the corruption of political systems. Their aim was to encourage greater community discussion of and engagement with economic, political and social justice issues’. In Muldoon, in addition to protesting against the economic inequality, North J added that the occupation was meant as a protest against the ‘operation of the present system of government. It is part of a worldwide movement which shares the

same philosophy and method of protest’ (at [2]), namely the belief that large corporations and professional political parties fail to represent the interests of ordinary citizens: at [28]. [page 434] With respect to the occupation of Martin Place, staying overnight was prohibited by notice. Nineteen notices were posted on fixed structures in the area, including four in the space occupied by the protesters. The notices specifically declared that camping or staying overnight was a prohibited activity. Eamonn O’Flaherty was a protester charged with failing to comply with the terms of a notice in a public place contrary to s 632(1) of the Local Government Act 1993 (NSW). O’Flaherty sought a declaration that the provision infringed the implied freedom of political communication. In her judgment, Katzmann J accepted that staying overnight in the course of political occupation was an act of political communication: at [44]. In her Honour’s view, ‘while staying overnight in Martin Place he spoke to members of the public and fellow protesters about issues of disparity in power and wealth in Australian society … [and] in this respect, it is unarguable that when staying overnight he engaged in political discourse’: at [45]. It was no less an act of political communication than Laurie Levy entering the hunting area to protest recreational duck shooting in Levy: at [44]. However, just as there was a legitimate public end in Levy (that is, protection of public safety), s 632(1) was reasonably appropriate and adapted to serve the legitimate ends of ‘maintaining public health, safety and amenity in a high use public area and preserving the ability of all members of the public to use the area’: at [62]. O’Flaherty, like so many other plaintiffs, had failed under the second limb of Lange. Katzmann J’s decision was upheld on appeal: O’Flaherty v City of Sydney Council (No 2) (2014) 221 FCR 382 at

[15]. The Full Court of the Federal Court further held that it was significant that the prohibition on staying overnight was confined to Martin Place; the protesters were otherwise free to express their views at other public sites within the City of Sydney: at [26]. In Muldoon, North J similarly found that the act of occupation of public spaces to protest constituted ‘political communication’: at [360]. The impugned provisions in this case, local laws made pursuant to the Local Government Act 1989 (Vic) which applied to Treasury and Flagstaff Gardens as well to the Gordon Reserve, stated that a person could not, without a permit, camp in or on any public place in a tent or any type of temporary or provisional form of accommodation. Further, a person could not place or erect a portable advertising sign or other thing in, on or over a public place or allow that to occur, without a permit. Any occupation of the Flagstaff Gardens was subject to further regulations preventing a person from bringing in or using any structure, tent, trailer or vehicle for camping purposes, without written consent. James Muldoon and Sara Louise Kerrison were two demonstrators at the Occupy Melbourne protest at Flagstaff Gardens. As part of their occupation at the gardens they erected tents to maintain a continuous presence. This allowed them to continually convey their political message to the public: at [29]. Several notices were issued to members of the protest involving potential damage to the gardens, footpaths and signs at Treasury Gardens and Flagstaff Gardens. At no time did the protesters have a permit to occupy the gardens, although applications were made. The protest was later called off after the continuous removal of tents used by the protesters for camping. The applicants challenged the validity of the regulations made under the Local Government Act 1989 (Vic). North J found that the tents established for camping in the gardens were symbols of the Occupy Movement and that camping was in itself political communication: at [360]. However, as in

[page 435] the O’Flaherty cases, the object of the impugned provisions and the means they were achieved were compatible with the maintenance of the constitutional system of representative and responsible government (at [379]): The object of the impugned provisions is to provide for the preservation, care, and maintenance of the gardens and for the equitable use of them. These objects are stated in the Local Government Act (s 3C) and in the Local Law (cl 1.2) and in the Regulations (reg 2). The way in which the impugned provisions achieve these objects is to prohibit camping in tents and to prohibit bringing certain things into the gardens unless authorised by a permit granted by the Council, and to provide a process of enforcement of the provisions.

18.15 Although the court was unanimous in Lange, divisions within the court about the implied freedom re-emerged in Coleman v Power (2004) 220 CLR 1. The facts are summarised in the first two paragraphs of the judgment of Gleeson CJ (at 21): The appellant was protesting in Townsville. He was distributing pamphlets which contained charges of corruption against several police officers, including the first respondent. The first respondent approached the appellant and asked to see a pamphlet. The appellant pushed the first respondent, and said loudly: ‘This is Constable Brendan Power, a corrupt police officer.’ The magistrate who dealt with the case said that the appellant was not protesting against any laws or government policies, but was conducting a ‘personal campaign related to particular officers of the Townsville Police’. Although there was a dispute as to the precise sequence of events, the prosecution case against the appellant, which was substantially accepted by the magistrate, was that the pushing and the verbal insult were intended to provoke an arrest. They did so. The appellant was convicted of the offence of using insulting words to the first respondent in a public place (contrary to s 7(1)(d) of the Vagrants Act (Qld)). The primary issue in the appeal is whether he was rightly convicted. The appellant contends that the legislation creating the offence is invalid, as an unconstitutional restriction on freedom of speech.

Section 7(1) of the Vagrants, Gaming and Other Offences Act 1931 (Qld) relevantly provided:

Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear — (a) sings any obscene song or ballad; (b) writes or draws any indecent or obscene word, figure, or representation; (c) uses any profane, indecent, or obscene language; (d) uses any threatening, abusive, or insulting words to any person; (e) behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner; shall be liable to a penalty of $100 or to imprisonment for 6 months …

After his conviction and several appeals in Queensland, Coleman appealed to the High Court. His appeal was allowed by McHugh, Gummow, Kirby and Hayne JJ (Gleeson CJ, Callinan and Heydon JJ dissented). [page 436] McHugh J struck down the law because a ‘law that, without a qualification, makes it an offence to utter insulting words in or near a public place cannot validly apply to insulting words that are uttered in the course of making statements concerning political or governmental matters’: at 33. McHugh J also held that Coleman’s convictions for obstructing and resisting arrest had to be quashed since they were consequential matters (that is, Coleman’s arrest under an unlawful statute could no longer be lawful). Gummow and Hayne JJ applied the Lange test of invalidity (discussed at 18.13 above) but with one slight alteration (originally suggested by Kirby J in Levy v Victoria (1997) 189 CLR 579 at 646), the substitution of the words ‘the fulfilment of’ with ‘in a manner’. As a result, McHugh, Gummow and Hayne, and Kirby JJ (at 51, 77–8 and 82 respectively) held that the applicable test was as follows: First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively

burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people.

As noted above, McHugh J applied this test and struck down the provision. Gummow and Hayne JJ assumed, without deciding, that the answer to the first question was ‘yes’. But they then upheld the law, so long as the provision was construed to have a limited operation (at 79): [The section] is not invalid. It does, however, have a more limited operation than it was understood to have in the courts below. In particular, it does not suffice for the person to whom the words were used to assert that he or she was insulted by what was said. And it does not suffice to show that the words were recalculated to hurt the self-esteem of the hearer. Where, as here, the words were used to a police officer, then unless more is shown, it can be expected that the police officer will not physically retaliate … By their training and temperament police officers must be expected to resist the sting of insults directed to them. The use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation.

Kirby J applied the test (though with some misgivings regarding the ‘ungainly’ phrase ‘reasonably appropriate and adapted’) but found the law to be valid (at 99–100): History, and not only in other societies, teaches that attempts to suppress such opinions, even when wrong-headed and insulting, are usually counter-productive and often oppressive and ultimately unjustified. In Australia, we tolerate robust public expression of opinions because it is part of our freedom and inherent in the constitutional system of representative democracy. That system requires freedom of communication. It belongs as much to the obsessive, the emotional and the inarticulate as it does to the logical, the cerebral and the restrained. The Act should be read in this light. It requires that, to be ‘insulting’, words addressed to a person must be such as are likely to provoke a physical response, that is, ‘fighting’ words. That interpretation fits comfortably with the context, purpose and language of the Act as then applicable. It is therefore the interpretation that should be adopted.

[page 437]

This conclusion requires that the appellant’s conviction of an offence against … the Act be set aside. Nevertheless … the Act, so interpreted, is a valid law serving a legitimate end. When confined to its true ambit as explained, it is fully compatible with the freedom of communication within the federal system of representative and responsible government protected by the Constitution. It is also compatible with international human rights law and basic common law rights.

As noted above, Gleeson CJ, Callinan and Heydon JJ dissented. Gleeson CJ favoured a ‘rather more strict’ standard of judicial review of invalidity suggested by Gaudron J in Levy v Victoria (1997) 189 CLR 579 at 619. However, Gleeson CJ did register that his observations on the constitutional test were obiter. Callinan J repeated his previous objections to the correctness of Lange that he had expressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 298–9. But, proceeding upon the basis that the Lange principle accords with the Constitution, Callinan J concluded that the law was valid because ‘it is not at all necessary for the effective operation’ of the system of representative government set up by the Constitution ‘that people go about insulting or abusing one another in or about public places in Queensland’: Coleman v Power (2004) 220 CLR 1 at 114 (original emphasis). Finally, Heydon J, like Gummow and Hayne JJ, operated on the assumption that the first question in the Lange test was to be answered ‘yes’ (this had been conceded by the respondents). Heydon J held that the law was directed to legitimate ends: diminishing the ‘risk of acrimony, leading to breaches of the peace, disorder and violence’, to ‘forestall the wounding effect on the person publicly insulted’ and ‘to prevent other persons who hear the insults from feeling intimidated or otherwise upset’. The law promoted civilised standards that would improve the quality of political communications: at 121–2. Notably, Heydon J applied the Lange test as it was originally formulated, and did not buy into the debate between Gleeson CJ and Callinan J, on the one hand (who indicated their preference for new tests that would

settle the balance in favour of parliamentary assessments of the need for freedom of speech) and McHugh, Gummow, Kirby and Hayne JJ, on the other, who applied the slightly re-formulated version of the Lange test. 18.16 In Mulholland v Australian Electoral Commission (2004) 220 CLR 181, Mulholland was the registered officer of the Democratic Labor Party of Australia (DLP) under the Electoral Act 1918 (Cth). As a registered political party under that Act, the DLP was entitled to various benefits, including identification of its candidates in federal elections as being endorsed candidates of the DLP. Under the Act, political parties could be deregistered if they did not have at least 500 members. The Act also prevented two or more parties from relying upon the same member in calculating the number of their members. Upon the impending deregistration of the DLP, Mr Mulholland challenged the validity of these rules, partly on the basis that they burdened freedom of political communication (by preventing the identification of a candidate endorsed by the DLP on the ballot paper). The court upheld the provisions. Surprisingly, Gummow and Hayne JJ (at 247–8), Callinan J (at 297–8) and Heydon J (at 303) held that the identification of a party on a ballot was not a form of political communication. Gleeson CJ (at 196), McHugh J [page 438] (at 211) and Kirby J (at 272–3) held that the ballot identification was a form of political communication. Gleeson CJ and Kirby J held that the freedom was burdened (at 196 and 274 respectively), but that these burdens were reasonably appropriate and adapted or proportionate to the Commonwealth’s legitimate legislative objectives (at 201 and 279 respectively).

18.17 APLA Ltd v Legal Service Commissioner (NSW) (2005) 224 CLR 322 concerned a New South Wales regulation that restricted the capacity of lawyers to advertise legal services that referred to personal injury. The plaintiffs sought a declaration that the regulation was constitutionally invalid on a number of grounds, including that the regulation burdened freedom of communication on legislative and executive policy concerning matters connected with personal injury and that the implied freedom to discuss political and governmental affairs extends to communications in relation to legal rights and remedies against governments for constitutional reasons beyond communications relating to electoral choice: at 325–7. It was argued that the Constitution gives effect to the principle of the rule of law, defined as the requirement that government can be held to account by communications made in the legal process: at 325. It was argued that the rule of law principle requires that subjects of the law know or be able to ascertain what their rights and duties are: at 326. The resolution of such issues is a matter for the judicial branch of government, and, accordingly, the efficacy of judicial institutions requires freedom to communicate with them and about them: at 326. It was argued that this implication either emerged by analogy with the implied freedom recognised by the High Court in such cases as Lange v Australian Broadcasting Corporation, or directly from Ch III of the Constitution itself, which makes provision for the judicial review of legislative and executive action: at 327. It was further argued that the regulation was not reasonably appropriate and adapted to the end of reducing litigation (and consequently, so the legislature assumed, insurance premiums), and it should therefore be struck down as invalid: at 327. The application was rejected by a majority of 5:2. The common ground in the majority judgments was that the plaintiffs had failed to demonstrate that advertising legal services should be constitutionally

protected communication. Gleeson CJ and Heydon J, in their joint judgment (at 349–50) and Gummow, Hayne and Callinan JJ, in their separate concurring judgments, emphasised the distinction between the provision of professional legal services — which they regarded as being necessary for the effective exercise of judicial power and the maintenance of the rule of law — and the advertisement of those services to people who are not their clients, which they said was not necessary to the maintenance of the rule of law. While both Hayne and Callinan JJ delivered judgments that restricted the implied freedom to discuss political and governmental affairs to communications affecting the legislative and executive branches of government, all of the majority judges indicated that the regulations under challenge in APLA did not directly restrict access to justice under federal law: at 351, 380, 417, 452, 480. In other words, the majority judges did not address the question whether restrictions on access to judicial review might be susceptible to constitutional challenge. McHugh and Kirby JJ dissented. McHugh J held that a state cannot legislate to reduce litigation in federal jurisdiction or legislate to impair the capacity or [page 439] opportunity of a person to receive offers of legal assistance concerning the availability or enforcement of causes of action in federal jurisdiction: at 365–6. Kirby J, however, found that ‘the Lange methodology’ applied to communications regarding the legislative, executive and judicial branches of government: at 440–1. Kirby J held: [T]he rule of law … lies at the heart of the Judicature provided for in the Constitution. Attempts by law to alter, impair or detract from that hypothesis immediately invite consideration of the prescriptions necessarily implied in Ch III. In short, just as

lawmakers (including judges expressing the common law) cannot impede communication disproportionately so as to undermine the contemplated operations of a representative democracy and accountable executive expressed and implied in the institutions referred to in Ch I and Ch II of the Constitution, so they cannot impede the level of communication essential to the operation of the Judicature provided for in Ch III. Even if this Court were to confine Lange to a principle protective of communications about the legislature and the executive, a separate implication of similar or identical scope would arise to protect communications necessary to the operation of the Judicature provided for in Ch III of the Constitution. That operation cannot validly be obstructed by State or federal law [emphasis added].

18.18 The applicability of the implied freedom to discuss political and governmental affairs to communications about the work of the judicature was considered in Hogan v Hinch (2011) 243 CLR 506. Derryn Hinch, a talkback radio announcer, challenged s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic), which authorises a Victorian court to make an order suppressing details of a case ‘if satisfied that it is in the public interest to do so’ (s 42(1)). A person contravening an order can be subjected to a penalty under s 42(3). Hinch attended a public rally against sexual violence and breached a Victorian Supreme Court suppression order prohibiting the disclosure of the identity of a person charged with a serious sex offence. Hinch had previously breached suppression orders (see, for example, Hinch v Attorney-General (Vic) (1987) 164 CLR 15). Hinch challenged the constitutional validity of s 42(3) of the Serious Sex Offenders Monitoring Act, in part on the basis that it infringed the implied freedom of political communication. Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said (at 554): It is made clear in Lange [(1997) 189 CLR 520 at 567–8] and Coleman v Power [(2004) 220 CLR 1 at 50–1, 77–8, 82] that the implied freedom of political communication operates as a constraint upon legislative power in a particular sense. Communications concerning the exercise of judicial power stand apart in the sense discussed in detail by McHugh J in APLA Ltd v Legal Services Commissioner (NSW) [(2005) 224 CLR 322 at 361]. In the course of that discussion of principle in APLA, McHugh J remarked (at [361]): The Lange freedom arises from the necessity to promote and protect representative and responsible government. Because it arises by necessity,

the freedom is limited to ‘the extent of the need’. Courts and judges and the exercise of judicial power are not themselves subjects that are involved in representative or responsible government in the constitutional sense. His Honour also said (at [361]): There is a difference between a communication concerning legislative and executive acts or omissions concerned with the administration of justice and communications concerning that subject that do not involve, expressly

[page 440] or inferentially, acts or omissions of the legislature or the Executive Government. Discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal or charges, the provision of legal aid and the funding of courts, for example, are communications that attract the Lange freedom. That is because they concern, expressly or inferentially, acts or omissions of the legislature or the Executive Government. They do not lose the freedom recognised in Lange because they also deal with the administration of justice in federal jurisdiction. However, communications concerning the results of cases or the reasoning or conduct of the judges who decide them are not ordinarily within the Lange freedom. In some exceptional cases, they may be. But when they are, it will be because in some way such communications also concern the acts or omissions of the legislature or the Executive Government. The defendant submits that the communications by him which found the charges laid by the informant under s 42(3) concern acts or omissions of the legislative and executive branches of the government of Victoria. He seeks the repeal of the Act, in particular s 42 itself, and contends that his communications do not lose protection of the freedom recognised in Lange because they also deal with the administration of justice by the courts of a state within the meaning of s 77(iii) of the Constitution. Accordingly, the defendant says that an affirmative answer must be given to the first Lange question: [(1997) 189 CLR 520 at 567]? ‘does the law [s 42(3)] effectively burden freedom of communication about government or political matters either in its terms, operation or effect?’

The plurality went on to conclude that the regulation effected by s 42 was reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the

constitutionally prescribed system of representative and responsible government (at 556). The plurality held that the sex offender monitoring regime would be frustrated if the identity of an offender was disclosed contrary to a suppression order. In addition, the expression ‘in the public interest’ in s 42(1) imported the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic), requiring the court to balance the relative importance of the offender’s right to privacy and Mr Hinch’s freedom of expression. The Charter requires that Victorian provisions must be interpreted compatibly with civil and political rights set out in that Act so far as it is possible to do so consistently with the purpose of the provision being interpreted. French CJ gave a similar judgment. 18.19 In Wotton v Queensland (2012) 256 CLR 1, Mr Wotton had been convicted of affray under the Queensland Criminal Code for the role he played in a riot on Palm Island that followed the death of an Aboriginal man in police custody. The plaintiff was imprisoned and later released on parole. One of Mr Wotton’s parole conditions was that he not attend public meetings without prior approval of a corrective services officer (condition (t)) and receive no direct or indirect payment of benefit from the media (condition (v)). Provisions of the Corrective Services Act 2006 (Qld) make it an offence for anyone to interview a prisoner (including a prisoner released on parole) (s 132(1)(a)) unless the person has written approval of the chief executive (s 132(2)(d)). The plaintiff challenged [page 441] s 132(1)(a) of the Act on the basis that it infringed the implied freedom of political communication.

French CJ, Gummow, Hayne, Crennan and Bell JJ stated (at [28]– [33]): The relevant burden imposed by par (a) of s 132(1) is the obligation to seek and obtain under par (d) of s 132(2) the written approval of the chief executive to interview a parolee, such as the plaintiff, outside a corrective services facility. The relevant burden imposed by s 200(2) is the observance of conditions the Parole Board reasonably considers necessary to ensure good conduct of the parolee and to stop the parolee committing an offence. The Commonwealth correctly submits that the issues between the parties are appropriately considered on the assumption that with respect to the challenged legislation, the first Lange question may be answered favourably to the plaintiff, so that the second Lange question arises for decision. In answering the second Lange question, there is a distinction, recently affirmed in Hogan v Hinch, between laws which, as they arise in the present case, incidentally restrict political communication, and laws which prohibit or regulate communications which are inherently political or a necessary ingredient of political communication. The burden upon communication is more readily seen to satisfy the second Lange question if the law is of the former rather than the latter description. With respect to s 132(1)(a), as qualified by the discretion conferred by s 132(2)(d), the legitimate end, for the Lange question, is sufficiently identified by the statutory purposes set out in s 3(1). This expresses the need to consider community safety and crime prevention through humane containment, supervision and rehabilitation of offenders. Further, it would be incumbent upon the chief executive in exercising the power of approval under s 132(2)(d) to have regard to the restraint upon legislative power in the sense explained by Brennan J in Miller, and the reasoned decision of the chief executive is judicially examinable under the system established by the Judicial Review Act. However, no application for approval by the chief executive has been made by or with respect to the plaintiff. Rather, the plaintiff has sought to isolate s 132(1)(a), without regard to the power of approval which governs its operation and which is an element of the burden imposed upon political communication. With respect to s 200(2), the legitimate end, for the second Lange question, is supplied by the text of the subsection, namely the imposition of conditions the Parole Board considers reasonably necessary to ensure good conduct and to stop the parolee committing an offence. The phrase ‘reasonably considers necessary’ in s 200(2) is akin to the phrase ‘reasonably appropriate and adapted’ for the second Lange question. Again, it would be incumbent upon the Parole Board to have regard to what was constitutionally permissible, and the reasoned decision of the Parole Board is judicially examinable under the Judicial Review Act. The result is that both s 132(1)(a), as qualified by s 132(2)(d), and s 200(2), comply with the constitutional limitation upon the legislative power of the State. With respect to

conditions (t) and (v) of the Parole Order, their validity then depends on whether, in implementing them, the Parole Board exceeded the authority conferred upon it by the valid statutory provision made by s 200(2). That would be a question for determination by the Supreme Court of Queensland on an application made under the Judicial Review Act. Again, the Special Case discloses no request by the plaintiff for approval to attend any public meeting on Palm Island, nor any negotiation or dealing on the plaintiff’s behalf with the media for the receipt of payments or benefits.

Heydon J agreed that neither s 132 nor s 200(2) was invalid. [page 442] Post-Wotton applications of the implied freedom of political communication 18.20 Before taking 18 hostages at the Lindt Chocolate Café in Sydney on 15–16 December 2014 (which led to the deaths of two people and the loss of his own life), Man Haron Monis gained notoriety for sending a number of vituperative letters to the families of deceased Australian soldiers. In Monis v The Queen (2013) 249 CLR 92, he was charged with 12 counts of using a postal service in a way that reasonable persons would regard as being offensive, contrary to s 471.12 of the Criminal Code (Cth). A widely reported media story at the time, Monis (along with his partner Amirah Droudis, who allegedly aided and abetted him in the commission of the offences) wrote and posted letters to the parents and relatives of Australian soldiers killed on active duty in Afghanistan, criticising Australia’s military involvement in the country and making derogatory comments about the fallen soldiers. In one letter, as Heydon J put it, it called ‘the son a murderer of civilians. It expresses sympathy to his parents, but not to him. It compares the son to a pig and to a dirty animal. It calls the son’s body “contaminated”. It refers to it as “the dirty body of a pig”. It describes Hitler as not inferior to the son in moral merit’: at 179. Monis sought an order in the District Court of

New South Wales before his trial that the indictment should be quashed because it infringed the freedom of political communication. Monis was unsuccessful in the District Court and the New South Wales Court of Criminal Appeal dismissed his appeal. By special leave, Monis and Droudis appealed to the High Court. The High Court dismissed the appeal by statutory majority. Although the court held that s 471.12 of the Criminal Code (Cth) burdened political communication, the judges were split (3:3) on the issue of the provision’s purpose. French CJ (and Heydon J) and Hayne J held that the object of s 471.12 was not directed towards a legitimate end as required by the second limb of Lange. In contrast, Crennan, Kiefel and Bell JJ held that the law went no further than was reasonably necessary to achieve its protected purpose, which was the ‘misuse of postal services to effect an intrusion of seriously offensive material into a person’s home or workplace’: at 214. By virtue of the fact that the court was split on the law’s validity, s 23(2) (a) of the Judiciary Act 1903 (Cth) operated to affirm the decision of the Court of Criminal Appeal. All six judges accepted the Court of Criminal Appeal’s narrow construction of the word ‘offensive’ in s 471.12. It applied to use of the postal service that reasonable persons might regard as ‘very’, ‘seriously’ or ‘significantly’ offensive (at 210–11 per Crennan, Kiefel and Bell JJ), including words that are ‘calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances’: at 126–7 per French CJ; at 138 per Hayne J. There was no disagreement either about the first limb of the Lange test; s 471.12, with its attendant criminal liability, effectively burdened Monis’ freedom of political communication: at 133 per French CJ (with whom Heydon J agreed); at 160 per Hayne J; at 212–3 per Crennan, Kiefel and Bell JJ. As outlined above, the court divided on the issue of whether s 471.12 was

reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of government. [page 443] In dissent, French CJ (and Heydon J) and Hayne J concluded that the provision was too broad in its operation with respect to the offensive use of ‘postal or similar services’. According to French CJ, the scope of s 471.12 of the Criminal Code was too wide. By virtue of its properties (including the broad range of uses which could be captured by s 471.12), it was difficult to discern the ‘legitimate ends’ served by the provision (at 133–4): Having regard to the scope of the term ‘offensive’ as properly construed and the range of the ‘postal or similar services’ to which s 471.12 applies, it is not possible to define its purpose by reference to common characteristics of such services. In practical terms it is difficult, if not impossible, to distinguish the purpose of s 471.12 from that of a law which makes it an offence to send or deliver offensive communications to anyone by any means. References to the promotion or protection of postal and similar services, the integrity of the post and public confidence in the post do not define in any meaningful way a legitimate end served by s 471.12. Its purpose is properly described as the prevention of the conduct which it prohibits. That is the prevention of uses of postal or similar services which reasonable persons would regard as being, in all the circumstances, offensive. That should not be regarded as a legitimate end not least because, as explained below, its very breadth is incompatible with its implementation in a way that is consistent with the maintenance of that freedom of communication which is a necessary incident of the system of representative government prescribed by the Constitution. The second question going to the validity of s 471.12 has two limbs. The first is whether the section serves a legitimate end. The second is whether, if so, it serves that end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people. In this case those two limbs collapse into one. The purpose of the prohibition imposed by s 471.12 is as broad as its application. On its proper construction it cannot be applied in such a way as to meet the compatibility

requirement. As explained above, the reasonable persons test, even when applied to a high threshold definition of what is ‘offensive’, does not prevent the application of the prohibition to communications on government or political matters in a range of circumstances the limits of which are not able to be defined with any precision and which cannot be limited to the outer fringes of political discussion. Section 471.12, in its application to the offensive content of communications made using postal or similar services, is invalid.

The breadth of the provision, covering conduct which in his Honour’s view could range between transient displeasure or irritation to much more intense responses, was too broad. It extended to regulate the ‘content’ of ‘offensive’ communication using postal or similar services. This in theory could not only extend to letters, packets and parcels by Australia Post or by courier or other parcel carrying services, but to all forms of digital and printed media sent using a postal or similar service. The purpose of the provision, according to French CJ, may be ‘properly described as the prevention of the conduct which it prohibits’. This cannot be regarded as a ‘legitimate end’. The potential application of s 471.12 is unrestricted. It did not even distinguish between persons who circulate offensive material ‘to recipients whose sympathies lie with the content of that material’: at 132. Hayne J similarly reasoned that the only discernible purpose of s 471.12 was to ‘regulate the civility of discourse’ carried on by using the post. He cited Coleman v Power as authority [page 444] for confirming that ‘promoting civility of discourse is not a legitimate object or end’: at 173. The ‘purpose’ of the provision, as Hayne J remarked, was to protect those who may be offended by material sent to them in the post (at 139): These reasons conclude that, in its legal and practical operation, the relevant part of the section protects mail recipients and others from offence. This is not a legitimate object or end. It is not compatible with the maintenance of the constitutionally prescribed

system of government and its necessary incident the freedom of political communication. The section goes no further than maintaining the civility of discourse carried on by means of a postal or similar service. Section 471.12 does not protect the ‘integrity of the post’. It makes no real or substantial contribution to keeping the peace. And it was not shown to be directed to achieving any further social good other than penalising, and so protecting against, conduct that is offensive.

In support of the contention that s 471.12 of the Criminal Code did not protect the ‘integrity of the post’ (that is, that it did not deal at all with the safety, efficiency or reliability of postal services: at 163), Hayne J thought that the phrase should be applied narrowly in the context of preserving the integrity of ‘postal articles’ during the act of freight or protecting a person from physical harm upon receipt of such articles. Either way, regulating the ‘content’ of articles carried in the post is not legitimate (at 166): Concern for the ‘integrity of the post’ must focus upon its safety and reliability as a means of carriage for postal articles. The nature or content of the articles a postal service carries has a connection with that concern only if a postal article (or its contents) might damage or destroy another article or delay its delivery. But apart from the case where something written on the outside of a postal article might cause a delay in delivery of that or other articles — as might be the case if a package was said to contain a dangerous substance — what is written in or on any postal article can have no effect on the reliability or safety of the postal system. If some extended meaning were to be given to the ‘integrity of the post’ which would direct attention to the content of the articles carried, the use of the expression ‘integrity of the post’ would depend upon a premise that the post should be used for only some kinds of messages or communications. That is, the ‘integrity of the post’ would be defined in a way that directs attention to the nature or content of what is communicated by post and requires that those communications meet some standard (whether described as a standard of decency, politeness, integrity or otherwise). If the ‘integrity of the post’ is defined in this way, circular reasoning beckons. The end to which the legislation under consideration is directed is defined in a way which assumes without examination that the fixing of standards which the content of communications carried by post must meet is important to the effective operation of the postal service. There is no foundation for that proposition. It is bare assertion [original emphasis].

Hayne J maintained that s 471.12 failed the second limb of the Lange test (at 174):

It follows from Lange and Coleman v Power that s 471.12 is not directed to a legitimate object or end. The elimination of communications giving offence, even serious offence, without more is not a legitimate object or end. Political debate and discourse is not, and cannot be, free from passion. It is not, and cannot be, free from appeals to the emotions as well as to reason. It is not, and cannot be, free from insult and invective. Giving and taking offence are inevitable consequences of political debate and discourse. Neither the giving nor the consequent taking of offence can be eliminated without radically altering the way in which political debate and discourse is and must be continued if “the people” referred to in ss 7 and 24 of the Constitution are to play their proper part in the constitutionally prescribed system of government.

[page 445] On its own, regulating the giving of offence is not a legitimate object or end. And for the reasons that have been given, s 471.12 pursues no other object or end. Beyond the matters already mentioned (‘integrity of the post’, ‘prevention of violence’ and ‘protection of mail recipients’) no party or intervener sought to demonstrate that there was any other advantage gained or sought to be gained by marking out this supposed middle ground of ‘really’ or ‘seriously’ offensive conduct and making it an offence to use a postal or similar service in that way. All that was said was that s 471.12 prevents conduct of this kind and that mail recipients were, therefore, less likely to be exposed to communications that are ‘really’ or ‘seriously’ offensive. But, as has already been explained, identifying the section’s legal and practical operation does not identify any legitimate object or end [original emphasis].

The statutory majority, on the other hand, found that there was no problem with the protective purpose of s 471.12 of the Criminal Code. According to Crennan, Kiefel and Bell JJ, s 471.12 was capable of being ‘read down’, so as to apply to a narrower category of ‘offensive communications’ (at the higher end of the spectrum). This was consistent with ‘contextual considerations’ and the ‘legislative history’ of the offence: at 210. It was possible, therefore, to ‘read down’ s 471.12 ‘so that it goes no further than is necessary to achieve its protective purpose’: at 210. Crennan, Kiefel and Bell JJ accordingly considered that the section appropriately protected ‘people from the intrusion of offensive material into their personal domain’, particularly their home or workplace: at 207, 214 per Crennan, Kiefel

and Bell JJ. The statutory majority appeared to adopt an ad hoc approach to the second limb of the Lange test, placing greater emphasis on considerations of proportionality: at 213–5. This judgment effectively started the court on its path towards recognising a structured test of proportionality, culminating in its decision in McCloy v New South Wales (2015) 325 ALR 15. In support of this approach, the statutory majority offset the incidental effect of s 471.12 (the section not being directed to prevention of political communication) (at 212, 216) with communications of the kind that are seriously offensive in nature (prohibited by s 471.12): at 216. Issues of proportionality aside, in dealing with the second limb of the Lange test (as it existed at this time) the statutory majority confirmed that the impugned provision did not infringe Monis’ freedom of political communication. Section 471.12 went no further than was reasonably necessary to achieve its protective purpose (at 215): A purpose of protecting citizens from such intrusion is not incompatible with the maintenance of the constitutionally prescribed system of government or the implied freedom which supports it. Section 471.12 is not directed to the freedom. By way of analogy, it will be recalled that in Lange the protection of reputation was not considered to be incompatible.

18.21 Delivered on the same day as Monis, Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 concerned the validity of a by-law which prohibited any person from preaching or distributing printed material on any road to bystanders or passers-by without the permission of the Adelaide City Council. Two members of an association called the ‘Street Church’ each sought a declaration in the District Court of South Australia that paras 2.3 and 2.8 of the relevant by-law, Council By-Law No 4, was invalid. The two men, Caleb and Samuel Corneloup, had previously preached and distributed printed material at Rundle Mall in Adelaide’s central retail district. Both proceedings were successful in the first instance on the basis that the By-Law was beyond the by-law making

[page 446] powers conferred by s 239 of the Local Government Act 1999 (SA) and s 667 of the Local Government Act 1934 (SA). The judge found it unnecessary to consider whether the By-Law infringed the freedom of political communication. On appeal, the Full Court, in addition to finding that the By-Law did not comply with the relevant local government legislation, also ruled that it infringed the freedom of political communication. The Attorney-General for South Australia, who was a respondent in the Full Court proceedings, sought special leave to appeal to the High Court. The High Court allowed the appeal by majority. On the issue of the implied freedom of political communication, the court unanimously held (though with Heydon J not deciding) that By-Law No 4 was consistent with the freedom. Although the By-Law failed the first limb of the Lange test (as it restricted the activities associated with political communication [of which some aspects of religious speech may form part]: at 44 per French CJ; at 62 per Hayne J; at 86–7 per Crennan and Kiefel JJ (with whom Bell J agreed at 90)); the five majority justices determined that it was consistent with the second limb of Lange. The legitimate purpose or object of By-Law No 4 was directed to associated ends: to regulate the public use of roads and public places (at 43 per French CJ); to prevent obstruction of roads by a number of assorted means (at 62 per Hayne J); and to preserve the safety and convenience of users of roads (at 84 per Crennan and Kiefel JJ). Crennan and Kiefel JJ elaborated on their approach to the second limb of Lange, stating that the ‘second limb of the Lange test requires that the By-Law be proportionate to its purposes… [it] also requires that the By-Law be proportionate in its effects upon the system of representative government which is the object of the implied freedom … [which] involves an assessment of the extent to which the law is likely to restrict political communication’ (at

86-7 per Crennan and Kiefel JJ, emphasis added; with whom Bell J agreed at 90). Having identified the legitimate objects or purposes, it was further held that these were compatible with the maintenance of the constitutionally prescribed system of representative government. Accordingly, the majority judges found that By-Law No 4 was reasonably appropriate and adapted to achieving those legitimate ends (as identified in the above paragraph). According to French CJ (at 44): For reasons already expressed, however, the answer to the second question is yes. Paragraphs 2.3 and 2.8 of By-Law No 4 are reasonably appropriate and adapted to serve the legitimate end of the by-law making power. They meet the high threshold proportionality test for reasons which also satisfy the proportionality test applicable to laws which burden the implied freedom of political communication. They are confined in their application to particular places. They are directed to unsolicited communications. The granting or withholding of permission to engage in such activities cannot validly be based upon approval or disapproval of their content. The restriction does not apply to a designated area known as ‘Speakers Corner’. Nor does it apply to surveys or opinion polls conducted, or literature distributed, by or with the authority of a candidate during the course of a federal, state or local government election, or during the course and for the purpose of a referendum. In the circumstances, pars 2.3 and 2.8 of By-Law No 4 are reasonably adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people.

[page 447] Hayne J also reasoned (at 62–4; see also at 90 per Crennan and Kiefel JJ) that: It may be that the prevention of obstruction of roads will be conducive to the safe use of those roads and even the keeping of the peace. It might further be said that the prevention of obstruction of roads will balance the competing interests of those who seek to use them. But these descriptions advanced by the Attorney-General for South

Australia of the object or end of the impugned provisions are better seen as consequences that may follow from preventing the obstruction of roads rather than as separate or additional objects or ends. And those consequences may then be relevant to whether the object or end of preventing obstruction of roads is legitimate. No party or intervener submitted that the impugned provisions pursued an object or end which is incompatible with the constitutionally prescribed system of representative and responsible government and with the freedom of political communication that is its indispensable incident. It is not to be supposed that preventing the obstruction of roads is incompatible in the relevant sense. Preventing the obstruction of roads is conducive to the maintenance of roads as a means of travel, interaction and association (including political interaction and association) among the people. It ensures that travel can continue along the relevant road unimpeded. … Once that is understood, it is readily evident that the impugned provisions are reasonably appropriate and adapted to prevent obstruction of roads in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. No consent of the Council to engage in the activities regulated by the impugned provisions is needed when the specific exclusions in the impugned provisions about elections and referendums are engaged. And when those exclusions are not engaged, the only burden which the impugned provisions place on the freedom of political communication is to prohibit the use of roads for the purposes of preaching, canvassing or haranguing persons or giving out or distributing printed matter in circumstances where it is judged that to do so would likely create an unacceptable obstruction of a road. Any restriction on political communication is confined to where the communication can be made and is a necessary incident of maintaining unimpeded use of roads. The prohibition without permission which the impugned provisions effect adequately balances the competing interests in political communication and the reasonable use by others of a road.

18.22 Unions New South Wales v New South Wales (2013) 252 CLR 530 is one of those rare cases in which the plaintiff successfully argued that the impugned provisions infringed the implied freedom of political communication. It may now be apparent that the provisions challenged in the cases discussed above were held to effectively burden political communication (satisfying the first limb of the Lange test); however they were upheld on the grounds that they placed no impermissible burden on that communication (thus failing the second limb of the Lange test). Put differently, the objects of the laws were deemed to be reasonably appropriate and adapted to serve a

legitimate end in a manner which is compatible with that of the constitutionally prescribed system of representative and responsible government. This was not the case in the Unions New South Wales case. Section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) provided that it was unlawful for political donations to be accepted by New South Wales political parties unless the donor was a person on the roll for local, state or federal elections. The provision operated to exclude non-voters (like trade [page 448] unions) from making political donations. Section 96G(6) aggregated the amount spent on electoral communication expenditure by a party and its affiliates for the purposes of the capping provisions in the Act. Originally, the Election Funding and Disclosures Amendment Act 2010 (NSW) capped donations to political parties at $5000 and to candidates and third-party campaigners at $2000 per financial year. In addition to this, caps were placed on electoral communication expenditure in the period before an election, which applied to political parties, candidates, groups of candidates and third party campaigners. So there were already existing caps on political donations and election communication expenditure prior to the Election Funding, Expenditure and Disclosures Amendment Act 2012 (NSW) inserting ss 96D and 95G(6) into the principal Act. For the purpose of s 95G(6) of the Act, an ‘affiliated organisation’ was defined in s 95G(7) as a body or other organisation authorised under the rules of a party to appoint delegates to the party’s governing body or to participate in the pre-selection of candidates for the party. Unions New South Wales is comprised of several unions and is the peak council for trade unions in New South Wales. It challenged the

constitutional validity of ss 96D and 95G(6). The High Court unanimously held (Gageler J not sitting) that the two provisions impermissibly burdened the implied freedom of political communication. Sections 96D and 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) were declared invalid. They clearly burdened political communication under the first limb of the Lange test. In the words of the majority, s 96D limited the ‘funds available to political parties and candidates to meet the costs of political communication by restricting the source of those funds’: at 554 per French CJ, Hayne, Crennan, Kiefel and Bell JJ; see also at 574 per Keane J. The same went for s 95G(6) (at 560 per the majority; see also at 585 per Keane J): [It] effects a burden on freedom of political communication in restricting the amount that a political party may incur by way of electoral communication expenditure in a relevant period. It does this by deeming the amount of electoral communication expenditure made by industrial organisations (and other organisations) with which it is affiliated as having been made by that party for the purposes of the applicable cap. The party affected by the provision is the Australian Labor Party (NSW Branch), with which industrial organisations, including the second, third and sixth plaintiffs, are affiliated.

The court then decided that ss 96D and 95G(6) were not reasonably appropriate and adapted to achieving a legitimate end. As for s 96D, the ‘legitimate end’ was to ‘regulate the acceptance and use of political donations in order to address the possibility of undue or corrupt influence being exerted’: at 557 per the majority. However, the provision did nothing to promote the achievement of those legitimate purposes. It amounted to a burden on the freedom without a justifying purpose: at 557. Section 96D had no purpose other than to prohibit non-electors from making political donations: 52 The terms of s 96D do not reveal any purpose other than that political donations may not be accepted from persons who are not enrolled as electors, or from corporations or other entities. The context of the other provisions of Pt 6 does not illuminate the purpose of s 96D, rather they point up its absence of evident purpose and lack of connection to the scheme of Pt 6.

53 In contrast to the general, practical provisions for capping of political donations and electoral communication expenditure, s 96D is selective in its prohibition.

[page 449] Yet the basis for the selection was not identified and is not apparent. By contrast, the connection of the other provisions of Pt 6 to the general purposes of the EFED Act is evident. They seek to remove the need for, and the ability to make, large-scale donations to a party or candidate. It is large-scale donations which are most likely to effect influence, or be used to bring pressure to bear, upon a recipient. These provisions, together with the requirements of public scrutiny, are obviously directed to the mischief of possible corruption. The same cannot be said of s 96D, in its wideranging prohibition on the sources of donations. … 59 Section 96D stops just short of a complete prohibition upon political donations. A complete prohibition might be understood to further, and therefore to share, the anticorruption purposes of the EFED Act. On the other hand, if challenged, it would be necessary for the defendant to defend a prohibition of all donations as a proportionate response to the fact that there have been or may be some instances of corruption, regardless of source. In any event, a complete prohibition is not the course taken in s 96D. The result is that the purpose of its wide, but incomplete, prohibition is inexplicable. 60 In the result, further consideration of the application of the second limb of the Lange test to s 96D is forestalled. It cannot be undertaken because it is not possible to attribute a purpose to s 96D that is connected to, and in furtherance of, the anti-corruption purposes of the EFED Act. The second limb of the Lange test cannot be satisfied. The burden imposed by s 96D on the freedom cannot be justified. Section 96D is invalid.

Section 95G(6) was likewise declared invalid. It was unclear how the ‘purpose’ of the section; that being to ‘reduce the amount which a political party affiliated with industrial organisations may incur by way of electoral communication expenditure and likewise to limit the amount which may be spent by an affiliated industrial organisation’, was ‘connected’ to the ‘anti-corruption purposes of the Act, or how those legitimate purposes are furthered by the operation and effect of s 95G(6)’: at 561 per the majority. Without an identifiable legitimate purpose, the majority struck down the provision. Keane J further

observed the inequitable effect that s 95G(6) had on political communication (at 586): The effect of sub-ss (6) and (7) of s 95G is that certain sources of political communication are treated differently from others. For example, third-party campaigners are not subject to the aggregation provisions. The effect of this differential treatment is to distort the free flow of political communication by favouring entities, such as third-party campaigners, who may support a political party, but whose ties are not such as to make them affiliates under the rules of that party even though they may promulgate precisely the same political messages. Political communication generated by electoral communication expenditure by organisations affiliated with a party is disfavoured relative to political communication by entities which, though actively supportive of, and indeed entirely ad idem with, a given party, are not affiliated with it. To discriminate between sources of political communication in this way, in the sense of the term used by Mason CJ in ACTV and discussed above in relation to s 96D, is to distort the flow of political communication. This distortion of political communication cannot be regarded as appropriate and adapted to enhance or protect the free flow of political communication within the federation. In this regard, s 95G(6) is not calibrated, even in the most general terms, so as to target only sources of political communication affected by factors inimical to the free flow of political communication throughout the Commonwealth.

[page 450] 18.23 Unions New South Wales is also noteworthy because the High Court confirmed that the implied freedom extends to laws of the states and territories. Accordingly, the freedom not only protects communications made in the course of discussing federal issues involving political and governmental matters, but communications about non-federal governments in the states and territories. French CJ, Hayne, Crennan, Kiefel and Bell JJ said: 25 The complex interrelationship between levels of government, issues common to state and federal government and the levels at which political parties operate necessitate that a wide view be taken of the operation of the freedom of political communication. As was observed in Lange, these factors render inevitable the conclusion that the discussion of matters at a state, territory or local level might bear upon the choice that the people have to make in federal elections and in voting to

amend the Constitution, and upon their evaluation of the performance of federal Ministers and departments. In Roberts v Bass, it was recognised that ‘statements made by electors or candidates or those working for a candidate, during an election, to electors in a State electorate, concerning the record and suitability of a candidate for election to a State Parliament … are at the heart of the freedom of communication protected by the Constitution’.

This passage clarifies some confusion which arose following the Lange decision. In Lange the court stated that political communication extends to matters that could ‘affect their [meaning “the people” under ss 7 and 24] choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government’: at 571. This was a restrictive interpretation of ‘political communication’ which appeared to limit it to the federal sphere only. The approach taken in Unions New South Wales is preferable and is also consistent with Mason CJ’s judgment in ACTV (see 18.5) that: 44 The concept of freedom to communicate with respect to public affairs and political discussion does not lend itself to subdivision. Public affairs and political discussion are indivisible and cannot be subdivided into compartments that correspond with, or relate to, the various tiers of government in Australia. Unlike the legislative powers of the Commonwealth Parliament, there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. Furthermore, there is a continuing inter-relationship between the various tiers of government. To take one example, the Parliament provides funding for the State governments, Territory governments and local governing bodies and enterprises. That continuing inter-relationship makes it inevitable that matters of local concern have the potential to become matters of national concern.

Mason CJ’s reference to ‘political matters’ is timely. What is ‘political discussion’? Rather than the confined ambit suggested in Lange, it is likely (given the spectrum of cases discussed, such as the targets of political debate in Coleman v Power and Monis v The Queen) that the view favoured by Mason CJ, Toohey and Gaudron JJ in

Theophanous (see 18.7) would prevail. In that case their Honours observed: [page 451] 14 For present purposes, it is sufficient to say that ‘political discussion’ includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate.

18.24 In October 2014 the High Court upheld New South Wales’ consorting laws, which were introduced in 2012 to combat the perceived rise of violence attributable to organised crime and bikie gangs in Sydney. In Tajjour v New South Wales (2014) 254 CLR 508, two members of the Nomads bikie group, Tajjour and Hawthorne, were charged with ‘consorting’ contrary to s 93X of the Crimes Act 1900 (NSW). Section 93X(1) of the Act provided that a person who habitually consorts with convicted offenders, after having been given an official warning in relation to each of those offenders, is guilty of an offence (imprisonment or a fine, or both). Section 93X(2) stated that a person does not habitually consort with convicted offenders unless the person consorted with at least two convicted offenders (either separately or together) and done so on at least two occasions. An ‘official warning’ is defined in s 93X(3) as a warning given by a police officer that a convicted offender had been ‘convicted’ (defined in s 93W as a person convicted of an indictable offence) of an offence at a previous time. Section 93W further defined ‘consort’ to mean consort in person or by any other means, including by electronic or other form of communication. Section 93Y provided an exception that s 93X was to be disregarded if the person (where reasonable in the circumstances) consorted with family members, in the course of

lawful employment or the lawful operation of a business, in the course of training or education, in the course of the provision of a health service, in the course of the provision of legal advice, or in lawful custody or in the course of complying with a court order. Prior to their trial, Tajjour and Hawthorne challenged the validity of s 93X of the Crimes Act 1900 (NSW) on the basis that it impermissibly burdened freedom of political communication (a further argument was run that s 93X infringed an implied freedom of association). A third man, the first person convicted under the consorting laws, also joined the proceeding. A majority of the High Court (French CJ dissenting) held that the freedom had not been infringed. The provision did burden the first limb of Lange because it restricted opportunities on which there could be political communication: at 560 per Hayne J; at 570 per Crennan, Kiefel and Bell JJ; at 582–3 per Gageler J. On the other hand, Keane J found that there was no effective burden on political communication: see 591, 602–5). This was because the making of communications about political and governmental matters could be distinguished from the act of consorting. Communications on political matters can be made without a party knowing that the other has been convicted of an indictable offence. It follows that political communication does not, necessarily, amount to habitual consorting. It lacks the ‘personal intimacy characteristic of consorts’: at 590. To the extent that consorts are engaged in political communication, it is the act of consorting which attracts the operation of s 93X, not the political communication itself: at 591. In the view of Keane J, the first limb of Lange had not been satisfied. For the other majority judges (Hayne, Crennan, Kiefel and Bell JJ), s 93X satisfied the second limb of the Lange test. It was reasonably appropriate and adapted to serve the legitimate end of the prevention of crime in a

[page 452] manner which is compatible with the maintenance of the constitutionally prescribed system of representative government. According to Hayne J: 77 The purpose or object of s 93X can be described generally as the prevention of crime. The prevention of crime is a legislative end or object compatible with the maintenance of representative and responsible government and the freedom of communication which is its indispensable incident. The legislative end s 93X seeks to pursue is legitimate … 91 It is, then, necessary to consider what is the burden which s 93X imposes on political communication. Section 93X does not impose an undue burden on political communication. In particular, s 93X does not prohibit the expression or dissemination of any political view or any information relevant to the formation of or debate about any political opinion or matter. Rather, the section prohibits some kinds of association between certain persons. It therefore limits the occasions on which political views and information can be formed, expressed or disseminated by or between those persons 92 Finally, it may be observed that consorting provisions, of a kind not radically different from those made by s 93X, have a long Australasian history. It was not suggested in argument that any of these earlier forms of consorting provisions had had any discernible, let alone detrimental, effect on the maintenance of the constitutionally prescribed system of government. And while absence of demonstration of harm cannot conclude the second Lange question, its absence, despite the long history of provisions of the relevant kind, is relevant to determining whether the means adopted by s 93X of achieving the end to which it is directed is compatible with the maintenance of that system of government.

The approach taken by Crennan, Kiefel and Bell JJ was a forerunner to their decision in McCloy v New South Wales (2015) 325 ALR 15 (see 18.26 below). Their Honours referred to tests of proportionality that have been well worked out in other legal systems (at 574), and stated that important aspects of a proportionality assessment include a ‘rational connection’ between the provision and a legitimate purpose or object and whether there are ‘alternative, reasonably practicable means which are capable of achieving that purpose and which are less

restrictive in their effect upon the freedom’: at 571. In McCloy these two aspects would be framed as ‘suitability’ and ‘necessity’. The ‘legitimate end’ of s 93X was the prevention of crime; that is, to prevent convicted offenders from associating amongst themselves and with others on a regular basis, therefore making it more difficult for them to ‘organise criminal activities and enlist others to participate in such activities’: at 571. Crennan, Kiefel and Bell JJ also observed (at 571) that: The desirability of consorting provisions such as this is not relevant to the task before the court. It is sufficient for the purposes of the initial enquiry under the second limb of the Lange test to observe that the purpose of s 93X is legitimate and the means employed are capable of advancing that purpose. The two are therefore rationally connected. Neither the purpose of s 93X nor the means by which it is sought to be achieved can be said to be incompatible with the maintenance of representative and responsible government. The question that follows is whether the means chosen by the legislature are proportionate to the purpose pursued. The relevant enquiry identified in Unions NSW is whether there are alternative, reasonably practicable means which are capable of achieving that purpose and which are less restrictive in their effect upon the freedom. This second enquiry under the second limb of the Lange test may be

[page 453] described, in a shorthand way, as the test of ‘reasonable necessity’. The ‘necessity’ for the means employed by the legislative provision is made out where no other (hypothetical) alternative exists which would be less harmful to the freedom while equally advancing the legislative purpose.

Their Honours elaborated on the issue of whether there were other ‘reasonably practicable means’ which were ‘less restrictive in their effect upon the freedom’. After counsel for the plaintiff contented that s 93Y should have contained a further defence of ‘consorting for the purpose of communication on government or political matters’ (at 572), Crennan, Kiefel and Bell JJ responded: 121 A defence which would except from the definition of consorting occasions where

there is communication on government or political matters is far removed from the defences provided by s 93Y. Putting aside difficulties in drafting a defence of that kind, such a defence would be easily claimed but difficult to investigate, test or challenge, both factually and legally. This would be especially so if the prosecution were required to negative the claim once raised. In reality, the defence would create a gap which is readily capable of exploitation. In these circumstances, it cannot be said that s 93X would operate as effectively with the hypothetical defence. … 124 Other proposed alternatives were laws that limit the persons who might qualify as convicted offenders, by reference to the nature of or penalty for the offences of which they were convicted, whether the offences were recent, whether there had been multiple offences, as well as other factors. These alternatives may have the effect of reducing the scope of the offence, but it cannot be said with respect to any of them that it would effect a lesser restriction on the freedom than s 93X. 125 No reasonable and equally practicable alternatives having a lesser effect on the freedom have been identified. A conclusion that s 93X goes no further than is reasonably necessary in order to achieve its objective is therefore open.

Consequently, Crennan, Kiefel and Bell JJ discussed the merits of proportionality and sought to distinguish ‘strict proportionality’ in Australia from the ‘categories of scrutiny’ which have been used by the Supreme Court of the United States. Finally, their Honours concluded (at 575): There may be questions still to be addressed, in an appropriate case, concerning the role, if any, of the test of strict proportionality in the Lange test. They do not arise for consideration in these matters. Enquiry as to whether a burden is undue or as to the importance of a legislative purpose is necessitated only when the burden effected by the legislation is substantial. The legislation now under consideration is unlikely to have that effect. Section 93X is not directed to the freedom and its effect upon the freedom is incidental. Any limitation on the freedom would only occur in the course of what would qualify as habitual consorting.

Gageler J considered that s 93X infringed the implied freedom of political communication, but that it did so only in its application to consorting for the purpose of engaging in communication on governmental or political matters. His Honour held that s 93X could be ‘read down’ (pursuant to s 31 of the Interpretation Act 1987 (NSW)) so as to not apply in circumstances where it would infringe the

implied freedom: at 589. This essentially means that the provision would not apply to communications protected by the freedom, but would operate otherwise. In dissent, French CJ argued that s 93X was not reasonably appropriate and adapted [page 454] to the legitimate end of crime prevention because it did ‘not discriminate between cases in which the purpose of impeding criminal networks may be served, and cases in which patently it is not’: at 553. Unlike Gageler J, French CJ held that s 93X could not be ‘read down’, so as to save it from invalidity: at 556. 18.25 In several of the cases explored above (for example, Monis and Tajjour) it was apparent that some members of the court (Crennan, Kiefel and Bell JJ) were dissatisfied with the second limb of the Lange test. There had long been a view that the phrase ‘reasonably appropriate and adapted’ was problematic. In Mulholland v Australian Electoral Commission (2004) 220 CLR 181, Kirby J remarked that the phrase was ‘ungainly and unedifying’ and that it was ‘inappropriate and ill-adapted to perform the constitutional function repeatedly assigned to it’. His Honour considered that ‘appropriate’ and ‘adapted’ were words which imported ‘notions of political degree and judgment which normally belong to legislators, not to judges’: at 266. For Kirby J, an ‘accurate explanation of the constitutional connection in such cases is found in the word “proportionality”… a useful description of the actual process of constitutional reasoning’: at 266. In Monis, Crennan, Kiefel and Bell JJ were also critical of the phrase: 345 It has been observed that the phrase ‘reasonably appropriate and adapted’ was imported into Australian constitutional proportionality case law from a judgment of Marshall CJ given in 1819. It is cumbersome and lacks clarity of meaning and application as a test. The only real affinity the phrase bears to a test involving

proportionality analysis is the employment of the word ‘reasonably’, but even then it does not describe how, and by reference to what factors, it is intended to operate. The phrase provides no guidance as to its intended application and tends to obscure the process undertaken by the court. Its use may encourage statements of conclusion absent reasoning. It cannot be denied that Lange involves a level of proportionality analysis, albeit one which is to be applied in the setting of the Australian Constitution. So much was said in Lange.

Their Honours emphasised the importance of asking whether there were other, less drastic means of achieving the provision’s legitimate object. Crennan, Kiefel and Bell also stated that there were ‘two objects’ which had to be identified in reference to determining validity: the first object is the maintenance of the constitutionally prescribed system of government; the second object is the impugned law’s own object. That end, they explained, must be compatible with the first object: at 193. Accordingly, there are two tests involved (at 193): one of compatibility with the constitutional imperative of the maintenance of representative, or the freedom which supports it; and one of proportionality (or whether the law is ‘reasonably appropriate and adapted’). And it is necessary to bear in mind … that an inquiry into whether the burden imposed by the law upon the implied freedom is too great or ‘undue’ is necessarily addressed.

In Monis, it was not too excessive. As discussed at 18.20, the impact of s 471.12 on the freedom of communication was merely incidental (at 212, 216) and the types of ‘communications’ captured by the section were limited to those of a seriously offensive nature: at 216. In their Honours view, this did suggest an ‘effect upon the freedom which could be regarded as extensive’: at 216. [page 455] The requirement of proportionality also played a role in the judgment of Crennan and Kiefel JJ (with Bell J concurring) in AttorneyGeneral (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1. The

point was lucidly put by their Honours: 202 These reasons should be read in conjunction with the reasons of Crennan, Kiefel and Bell JJ in Monis v The Queen so far as they concern the Lange test. As is there explained, the first enquiry of the second limb of the Lange test concerns the relationship between a valid legislative object and the means provided for its attainment. The means must be proportionate to that object. If the means employed go further than is reasonably necessary to achieve the legislative object, they will be disproportionate and invalid for that reason. A test of reasonable necessity has been adopted by the court in relation to the freedoms spoken of in s 92, in Betfair Pty Ltd v Western Australia. It may consistently be applied with respect to the implied freedom of political communication. … 210 The second limb of the Lange test requires that the By-Law be proportionate to its purposes. That question has been dealt with. The second limb of the Lange test also requires that the By-law be proportionate in its effects upon the system of representative government which is the object of the implied freedom. As is explained in Monis v The Queen, this involves an assessment of the extent to which the law is likely to restrict political communication. This enquiry is evident in the conclusion stated in Lange, that the law there in question did not impose an ‘undue burden’ on the freedom. The terms of that conclusion recognise that some burden may be lawful. This follows from an acceptance that the implied freedom is not absolute [emphasis added].

The first enquiry was satisfied because the by-law had the legitimate purpose of preserving the safety and convenience of road users. The vast number of activities on roads (relating to the passage of vehicles and the various ways pedestrians use roads) meant that the by-law was appropriate. In this instance, the ‘By law and its requirement of permission recognised a need to regulate these activities in order to accommodate interest which may conflict with the safety, convenience and comfort of road users’: at 85 per Crennan and Kiefel JJ. The second enquiry was likewise satisfied. Looking at its perceived impact upon political communication, the by-law was not specifically directed to inhibit political communication. On the contrary, the restriction upon preaching and distributing material on roads was excepted in some situations (for example, distribution of material during federal, state or local elections). Their Honours concluded (at 89):

It must be accepted that there will be occasions when the denial of permission to preach, canvass or distribute materials may prevent a political communication. However, the By-law is not directed to such a communication and has this effect only incidentally and only when it is necessary to achieve the object of securing the safe and convenient use of roads. It does not prevent a person speaking at every place to which the public may resort, but rather only those areas which come within the definition of a road. Given that the discretion must be exercised conformably with the purposes of the By-law, it may be assumed that permission will be denied only where the activities in question cannot be accommodated having regard to the safety and convenience of road users.

Proportionality also played a significant role in the joint judgment of Crennan, Kiefel and Bell JJ in Tajjour. They stopped just short of formulating a structured test of proportionality, but their judgment certainly borrows from German jurisprudence [page 456] in identifying and applying the concepts of ‘suitability’ (or ‘rational connection’) and ‘necessity’: at 570–1. Indeed, the purpose of s 93X was to impede organised criminal activities. The means employed (by creating the offence of consorting) was capable of advancing that purpose. The two were ‘rationally connected’. Their Honours also found in this case that the ‘means chosen by the legislature’ were ‘proportionate to the purpose pursued’. This question involves asking whether there are ‘alternative, reasonably practicable means which are capable of achieving that purpose and which are less restrictive in their effect upon the freedom’. This is referred to as the test of ‘reasonable necessity’. It was noted that ‘not every hypothetical legislative measure which is identified as capable of advancing the same legislative purpose and lessening the restrictive effect on the freedom will quality as a reasonably practicable alternative’: at 571. The plaintiffs argued in Tajjour that the legislature could have provided other defences to the offence of consorting in s 93X (in s

93Y). Some alternative measures were advanced, but these were discounted by their Honours. In the end, Crennan, Kiefel and Bell JJ concluded that s 93X went no further than was reasonably necessary to achieve its objective. Employing a test of strict proportionality may, in the eyes of some, provide clarity and transparency, but some members of the High Court have specifically rejected the merit of weighing up or ‘balancing’ the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom. This is a criterion requiring a ‘value judgment’. We have not yet explored the concept of ‘balancing’; it was not specifically identified by Crennan, Kiefel or Bell in any of the aforementioned cases. However it is important, for proportionality to be viable, that a criterion be imposed to determine the extent to which a law may justifiably restrict the operation of the freedom of political communication. Some conservative judges may consider this to be an exercise of ‘judicial activism’. ‘Balancing’ was rejected by Dawson J in Levy and it is likely that McHugh J had the same view in Coleman v Power. Rather than developing a ‘framework of proportionality’, judges have preferred (at least until McCloy) to eschew considerations of proportionality altogether, using it in a restrictive manner as a means of rephrasing the reasonably appropriate and adapted test. This had, in fact, been the intention of the unanimous court in Lange: at 562. However, a majority of the High Court, building upon the work of Crennan, Kiefel and Bell JJ in the post-Wotton cases, adopted a structured proportionality test in McCloy v New South Wales (2015) 325 ALR 15. Four members of the court, French CJ, Kiefel, Bell and Keane JJ (Gageler, Nettle and Gordon JJ dissenting on this point), held that the second limb of the Lange test should be re-formulated to include a structured proportionality assessment. The Lange test is now said to encompass three limbs. The third limb, ‘proportionality’, includes

three further sub-tests. This case, and the accompanying test, is discussed in full below.

Freedom of political communication post-McCloy: The new three-step Lange test 18.26 In a special case before the High Court, Jeff McCloy, a person defined in the Election Funding, Expenditure and Disclosures Act 1981 (Cth) to be a ‘property developer’, challenged the validity of Div 2A, Div 4A and s 96E of the Act. The Act, [page 457] in broad terms, imposed restrictions on private funding of political candidates and parties in state and local government elections in New South Wales. The impugned provisions were described in the following terms: 11 Section 95A(1), in Div 2A, provides general caps on the amount of political donations which a person can make to or for the benefit of a particular political party, elected member, group, candidate or third-party campaigner. Political donations to a registered political party are limited to $5,000 in a financial year. This cap (as well as the caps referable to the other categories of recipients) is subject to indexation. For any cap, donations during a financial year are aggregated. Subject to certain exceptions, it is unlawful for a person to accept a political donation which exceeds the applicable cap. … 14 Section 96E(1) prohibits the ‘indirect campaign contributions’ which are there listed. They include the provision of office accommodation, vehicles, computers or other equipment for no or inadequate consideration for use solely or substantially for election campaign purposes, and payment by someone else of electoral expenditure incurred or to be incurred by a party, elected member, group or candidate. Sub-section (2) of s 96E prohibits the acceptance of any of the listed indirect campaign contributions. 15 Section 96GA, in Div 4A, prohibits the making or acceptance, directly or indirectly,

of a political donation by a ‘prohibited donor’ or the soliciting of a person by or on behalf of a ‘prohibited donor’ to make a political donation. ‘Prohibited donor’ is defined by s 96GAA to mean: …’(a) a property developer’…

McCloy had made political donations to candidates prior to the 2011 New South Wales state election, contrary to Div 4A of the Act. The two parliamentarians and McCloy (who was the Mayor of Newcastle at the time) resigned their positions. He also made donations in excess of the donation caps (Div 2A) and one of his companies made an indirect campaign contribution: s 96E. McCloy subsequently commenced proceedings in the High Court claiming that the impugned provisions burdened the implied freedom of political communication by restricting the funds available to political parties and candidates to meet the costs of political communication (which operates by restricting the source of those funds). The High Court unanimously upheld the validity of Div 2A and s 96E and by majority (Nettle J dissenting) found that Div 4A was valid. The provisions effectively burdened the freedom of political communication because it restricted the funds available to political parties and candidates to meet the costs of communication: at [24] per French CJ, Kiefel, Bell and Keane JJ; at [158] per Gageler J; at [314], [347], [373] per Gordon J. Division 2A and s 96E had the legitimate end of overcoming perceptions of corruption and undue influence, which undermine public confidence in government and in the electoral system itself: at [33]–[34] per French CJ, Kiefel, Bell and Keane JJ; at [98], [165] per Gageler J (who added that s 96E had the purpose of promoting compliance with the scheme); at [224], [227] per Nettle J; at [322], [376] per Gordon J. Furthermore, Div 4A was directed to the same legislative end, in particular to reduce the risk of corruption and undue influence relating to planning decisions: at [53] per French CJ, Kiefel, Bell and Keane JJ; at [165] per Gageler J; at [232] per Nettle J; at [351] per Gordon J.

[page 458] Before proceeding to discuss whether the impugned provisions placed an impermissible burden on the implied freedom of political communication, it is appropriate at this juncture to provide the majority’s modified Lange test: 2 As explained in the reasons that follow, the question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this court and particularly Lange v Australian Broadcasting Corporation and Coleman v Power: A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may ‘exercise a free and informed choice as electors.’ It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions. B.

The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power: 1.

Does the law effectively burden the freedom in its terms, operation or effect? If ‘no’, then the law does not exceed the implied limitation and the enquiry as to validity ends.

2.

If ‘yes’ to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as ‘compatibility testing’. The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government. If the answer to question 2 is ‘no’, then the law exceeds the implied limitation and the enquiry as to validity ends.

3.

If ‘yes’ to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in

these reasons as ‘proportionality testing’ to determine whether the restriction which the provision imposes on the freedom is justified. The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test — these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses: suitable — as having a rational connection to the purpose of the provision; necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom; adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

[page 459] If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be ‘no’ and the measure will exceed the implied limitation on legislative power. 3 As noted, the last of the three questions involves a proportionality analysis. The term ‘proportionality’ in Australian law describes a class of criteria which have been developed by this court over many years to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done. Some such criteria have been applied to purposive powers; to constitutional legislative powers authorising the making of laws to serve a specified purpose; to incidental powers, which must serve the purposes of the substantive powers to which they are incidental; and to powers exercised for a purpose authorised by the Constitution or a statute, which may limit or restrict the enjoyment of a constitutional guarantee, immunity or freedom, including the implied freedom of political communication. Analogous criteria have been developed in other jurisdictions, particularly in Europe, and are referred to in these reasons as a source of analytical tools which, according to the nature of the case, may be applied in the Australian context. 4 Acceptance of the utility of such criteria as tools to assist in the determination of the limits of legislative powers which burden the freedom does not involve a general acceptance of the applicability to the Australian constitutional context of similar criteria as applied in the courts of other jurisdictions. It does not involve acceptance of the application of proportionality analysis by other courts as methodologically correct.

The utility of the criteria is in answering the questions defining the limits of legislative power relevant to the freedom which are derived from Lange. 5 As explained in the reasons that follow, while the impugned provisions effectively burden the freedom, they have been enacted for legitimate purposes. They advance those purposes by rational means which not only do not impede the system of representative government provided for by the Constitution, but enhance it. There are no obvious and compelling alternative, reasonably practicable means of achieving the same purpose. The provisions are adequate in their balance. The burden imposed on the freedom is therefore justified as a proportionate means of achieving their purpose. The substantive questions stated in the special case should be answered in favour of the validity of the impugned provisions and the plaintiffs should pay the costs of the special case.

The proportionality analysis adopted by the majority provides a uniform analytical framework for evaluating legislation which effects a restriction on a right or freedom: at [74]. Their Honours formed the view that the Lange test required a more structured and transparent approach: at [23]. For the first time, a majority of the High Court endorsed ‘strict proportionality’ as the criterion to be applied for ‘balancing’ the purpose of and benefit sought to be achieved by a legislative measure and the freedom said to be detrimentally impacted by its operation. The two preceding sub-tests, ‘suitability’ and ‘necessity’, had been used by Crennan, Kiefel and Bell JJ in the aforementioned post-Wotton cases (for example, Monis, Unions New South Wales and Tajjour). The first limb of the modified Lange test remains unchanged, so it is unnecessary to explore this further. What has changed is the second limb of the Lange test. The second limb has been re-formulated and now requires two separate assessments: ‘compatibility testing’ and ‘proportionality testing’. The rephrased second limb, ‘compatibility testing’, is different to the old Lange test in that there is now express recognition that the purpose of the law (that is, the legitimate object) and the means adopted to carry

[page 460] out that purpose must be legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government. Neither may adversely impinge upon the functioning of the system of representative government. If they do, then the law exceeds the implied freedom and will be held invalid. Clearly the impugned provisions were directed to the legitimate end of overcoming the perception of corruption and undue influence in politics. Their Honours had no trouble concluding that the ‘purpose of Div 2A [and by extension s 96E] and the means employed to achieve that purpose are not only compatible with the system of representative government; they preserve and enhance it’: at [47]. The same went for Div 4A (see [49]–[53]). The third limb of the modified Lange test is a reappraisal of the ‘reasonably appropriate and adapted’ test. It is now necessary to satisfy a structured proportionality test. This limb concerns the ‘extent of the burden effected by the impugned provision on the freedom’: at [2]. There are three stages to this assessment — enquiries of whether the law is suitable, necessary and adequate in its balance. If the impugned provision does not meet each of these criteria, then it exceeds the implied limitation and will be held invalid. Moving to the proportionality analysis, French CJ, Kiefel, Bell and Keane JJ held that Div 2A and Div 4A were rationally connected to the purpose of targeting corruption: at [54], [56]. Moreover, there were no equally practicable alternatives: at [57]–[63]. For example, their Honours rejected the plaintiffs’ submission that another equally effective means of achieving the legislative object (which has a less restrictive effect on the freedom of communication) would be limiting restrictions on political donations to acts of bribery: 62 Limiting restrictions on political donations to acts of bribery would undoubtedly

reduce the efficacy of the statutory scheme. The difficulties inherent in detecting and proving bribery in the context of political donations do not suggest that it can be considered a reasonable alternative to capping. Further, it is not the subjective intention of the donor so much as the objective tendency of large payments of money to corrupt both government and the electoral system which is the justification for the restriction.

The majority then turned their attention to the principles of proportionality testing. Sub-tests 1 and 2 (that is, ‘suitability’ and ‘necessity’) of the modified Lange test were factually applied in the last paragraph. The concepts themselves were explained in the following terms: 80 Suitability is also referred to as ‘appropriateness’ or ‘fit’. Despite this language, it does not involve a value judgment about whether the legislature could have approached the matter in a different way. If the measure cannot contribute to the realisation of the statute’s legitimate purpose, its use cannot be said to be reasonable. This stage of the test requires that there be a rational connection between the provision in question and the statute’s legitimate purpose, such that the statute’s purpose can be furthered. This was the approach followed in Unions NSW. It is an enquiry which logic requires. 81 The second stage of the test — necessity — generally accords with the enquiry identified in Unions NSW as to the availability of other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom and which are obvious and compelling. If such measures are available, the use of more restrictive measures is not reasonable and cannot be justified.

[page 461] 82 It is important to recognise that the question of necessity does not deny that it is the role of the legislature to select the means by which a legitimate statutory purpose may be achieved. It is the role of the court to ensure that the freedom is not burdened when it need not be. Once within the domain of selections which fulfil the legislative purpose with the least harm to the freedom, the decision to select the preferred means is the legislature’s. 83 The first two stages of the test for the proportionality, or reasonableness, of a legislative measure concern the relationship between the legitimate legislative purpose (‘ends’) and the means employed to achieve it (‘means’). Neither the importance of the legislative purpose nor the extent of the effect on the freedom are examined at these

stages. The Lange test identifies the extent of the effect on the freedom as relevant, but does not say what, if anything, is to be balanced against the effect on the freedom in order to determine whether the measure is justified. The Lange test does not expressly identify assessment of the importance of the legislative purpose as a relevant factor.

In explaining the ‘balancing’ aspect of the proportionality test, French CJ, Kiefel, Bell and Keane JJ placed great emphasis on the work of Professor Ahron Barak. In his book Proportionality: Constitutional Rights and Their Limitations (2012), Barak made the following remarks about proportionality stricto sensu (balancing) (at pp 340, 342–3): The last test of proportionality is the ‘proportional result’, or ‘proportionality stricto sensu’. This is the most important of proportionality’s tests. What does this require? According to proportionality stricto sensu, in order to justify a limitation on a constitutional right, a proper relation (‘proportional’ in the narrow sense of the term) should exist between the benefits gained by fulfilling the purpose and the harm caused to the constitutional right from obtaining that purpose. This requires a balancing of the benefits gained by the public and the harm caused to the constitutional right through the use of the means selected by law to obtain the proper purpose. Accordingly, this is a test balancing benefits and harm. It requires an adequate congruence between the benefits gained by the law’s policy and the harm it may cause to the constitutional right. … Any law limiting a constitutionally protected right must meet the test of proportionality stricto sensu. This is a test that examines the result of the law and the effect it has on the constitutional right. This test compares the positive effect of realizing the law’s proper purpose with the negative effect of limiting a constitutional right. This comparison is of a value-laden nature. It is meant to determine whether the relation between the benefit and the harm is proper. The moral nature of the test — as well as its importance — is well demonstrated by an example presented by Grimm. Assume a law that allows the police to shoot a person (even if this shooting would lead to that person’s death) if it is the only way to prevent that person from harming another’s property. The law is designed to protect private property, and therefore its purpose is proper. The means chosen by the legislator are rational, since it advances the proper purpose. According to the provision’s own words, it can only be triggered when no other means exist to protect the property without hurting a human life. Therefore, the law meets the necessity test as well. However, the provision is still unconstitutional because the protection of private property cannot justify the taking of human life. At the foundation of the proportionality stricto sensu test is the requirement of proper relation between the benefit gained by the limiting law and the harm caused by it. The

[page 462] limitation on a constitutional right is not proportional stricto sensu if the harm caused to the right by the law exceeds the benefit gained by it. This is a balancing test… In this book, ‘balancing’ is an analytical process that places the proper purpose of the limiting law on one side of the scales and the limited constitutional right on the other, while balancing the benefit gained by the proper purpose with the harm it causes to the right.

Sub-test 3 of the modified Lange test was described in strikingly similar terms by French CJ, Kiefel, Bell and Keane JJ: at [87]. Their Honours added that what is needed to determine whether the extent of this restriction is reasonable is a consideration of the importance of the purpose and the benefit sought to be achieved. This is an obvious consequence of Barak’s characterisation. It logically follows that ‘the greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate’: at [87]. The majority also affirmed Barak’s point that the ‘balance struck between the importance of the purpose and the extent of the restriction on the freedom necessarily involves a value judgment’: at [90]. From a judicial point of view, value-laden enquiries are controversial. As Anne Twomey (2015) remarked in the aftermath of the decision, ‘at what point is the Court really instructing the Parliament upon how it should have legislated and which choices it should make with respect to how a legitimate end is to be achieved?’ Sir Anthony Mason has also recently observed that ‘structured proportionality is a rather cumbersome edifice which at the end of the day, at the last step, delivers nothing more than a value judgment, as the authors of the joint judgment recognised’ (2016, p 121). In the end, French CJ, Kiefel, Bell and Keane JJ determined that the impugned provisions passed the third sub-test: 93 In this case, the third stage of the test presents no difficulty for the validity of the impugned provisions. The provisions do not affect the ability of any person to communicate with another about matters of politics and government nor to seek access to or to influence politicians in ways other than those involving the payment of

substantial sums of money. The effect on the freedom is indirect. By reducing the funds available to election campaigns there may be some restriction on communication by political parties and candidates to the public. On the other hand, the public interest in removing the risk and perception of corruption is evident. These are provisions which support and enhance equality of access to government, and the system of representative government which the freedom protects. The restriction on the freedom is more than balanced by the benefits sought to be achieved.

18.27 Given the relatively recent emergence of ‘strict proportionality’ in Australian constitutional jurisprudence, it remains to be seen how the modified Lange test will be received in the future. A bare minimum of four justices approved the test in McCloy. It met with resistance from the other members of the bench. Gageler J expressed ‘two principal reservations’: 142 First, I am not convinced that one size fits all. In particular, I am not convinced that standardised criteria, expressed in unqualified terms of ‘suitability’ and ‘necessity’, are appropriate to be applied to every law which imposes a legal or practical restriction on political communication irrespective of the subject-matter of the law and no matter how large or small, focussed or incidental, that restriction on political communication might be. … 145 Second, I am not convinced that to require a law which burdens political communication to be ‘adequate in its balance’ is to adopt a criterion of validity

[page 463] which is sufficiently focussed adequately to reflect the reasons for the implication of the constitutional freedom and adequately to capture considerations relevant to the making of a judicial determination as to whether or not the implied freedom has been infringed. 146 I think it important in that respect to bear in mind that the equation of ‘strict proportionality’ with ‘specific (or ad hoc) balancing’ has always been controversial. Indeed, it has been the subject of reservation even by its most prominent proponent. In his influential treatise tracing the Germanic origins and global expansion of structured proportionality analysis, published in 2012, Professor Aharon Barak described the transition involved from the expression of the ‘basic rule’ of balancing to the concrete application of that basic rule through specific (or ad hoc) balancing on a case-by-case

basis as ‘particularly sharp’ and ‘not desirable’. He wrote: The basic rule of balancing is too abstract. It does not specifically relate to many of the aspects in which the particular right in question becomes a special object of either limitation or protection. It does not contain the required focus on the reasons underlying the creation of those rights, and thus does not directly relate to the reasons that justify their limitation or protection. It also does not include a proper roadmap of all the considerations that would justify the protection of a constitutional right. In contrast, the specific rule of balancing is at too low a level of abstraction. It only relates to the case at hand, and lacks a more general viewpoint of the system as a whole. 147 Professor Barak went on to advocate the development of what he termed an ‘intermediate-level rule’ of ‘principled balancing’ in accordance with which the ‘basic rule’ would be implemented through the adoption of a number of ‘principled rules or principled formulas’. He proposed that each such rule or formula ‘would be phrased in a lower level of abstraction’ and that the choice and phrasing of each such rule or formula ‘would express the principled consideration which underlies the constitutional right and the justification of its limitation’. 148 Were such element of balancing as might be incorporated into the Lange analysis to be formulated in terms of ‘principled balancing’, along the lines Professor Barak has advocated, it would go some way to alleviating the concern which underlies the second of the reservations I have recorded. The adoption of principled balancing only at a final stage of a standardised proportionality analysis would, however, bring the first of the reservations I have expressed into even sharper relief. It would do so by highlighting the question of why a refinement of that nature should be limited to that final stage of analysis.

Gageler, Nettle and Gordon JJ applied Lange in its conventional sense. Nettle J found it unnecessary to delve into the issue of ‘strict proportionality’: at [222]. Gordon J argued that the existing tools of analysis used to determine if a law impermissibly burdens the implied freedom of communication ‘are known and have been applied without apparent difficulty since the decision in Lange’: at [310]. Gordon J made the point that neither the plaintiffs nor the defendant had advanced a case for ‘strict proportionality’ and that the case was capable of being resolved ‘by reference to the known questions and tools’: at [311]. Applying the second limb of the Lange test, Gageler J held that the cap on political donations and the prohibition on

donations by property developers were reasonable means of furthering legitimate ends: [185]–[198]. This was also the case with the restrictions on ‘indirect campaign contributions’: at [199]. Gordon J similarly found that Divs 2A, 4A and s 96 were reasonably appropriate and adapted to serve legitimate [page 464] objects or ends: at [345], [369] and [381] respectively. Also content to apply the two-limb Lange test (at [220]) was Nettle J, who held that Div 2A and s 96E were ‘rationally connected to the object of eliminating or reducing corruption and undue influence’: at [256]. For this reason, both measures were consistent with the second limb of the Lange test. However, Nettle J held that the prohibited donor provisions of Div 4A, in their application to property developers, were invalid: at [272]. Although some donations from property developers may lead to corruption or undue influence in politics, Nettle J reasoned that there was ‘no direct evidence or sufficient basis for inference that all political donations, of any amount, from property developers, let alone all prohibited political donations, were or would be of a corrupt or unduly influential character’: at [268] (emphasis added). 18.28 In the only case to have applied the modified three-limb Lange test before this edition of Principles was settled, Buchanan J of the Federal Court in Gaynor v Chief of the Defence Force (No 3) (2015) 237 FCR 188 overturned the decision of the Chief of the Defence Force to terminate the commission of a reservist over comments the applicant made on social media. The applicant held the rank of Major in the Australian Army Reserve. Prior to that, he had served in Afghanistan and served three tours of duty in Iraq, and was awarded the Unites

States of America Meritorious Service Medal in 2009. He transferred to the Army Reserve in 2011. As the judge stated at [11], the applicant holds ‘strong views which he attributes to the teachings of the Roman Catholic Church. As they relate to the events which led to the termination of his commission, those views were expressed as an antipathy to over tolerance or support of homosexuality or transgender behaviour as well as statements critical of adherents of Islam’. It was not contested that the remarks were made in the course of political communication. Gaynor was involved in the establishment of the ‘Queensland Party’ in 2010, and following its merger with ‘Katter’s Australian Party’ in 2011, became the National General Secretary of that party. He resigned that position in January 2013 to seek endorsement as a Senate candidate at the 2013 federal election. It is in the context of campaigning that he made the offensive comments. In mid-January he launched a webpage, Twitter page and Facebook page to promote his candidature. He then made numerous statements ‘which, shortly thereafter, brought him into conflict with his superiors in the Army and in the ADF’: at [17]. The statements are provided at [22], [31] and [32] in the judgment. Following an internal review, the Chief of the Defence Force terminated the applicant’s commission. He challenged the decision under s 116 of the Constitution and the implied freedom of political communication. He succeeded on the latter ground. Buchanan J held the decision of the Chief of the Defence Force did not meet the third sub-test of the modified Lange test. In other words, the decision was not ‘adequate in its balance’ having regard to the fact that the applicant’s conduct involved the ‘expression of political opinion, effectively as a private citizen’: at [284]. It was significant that Gaynor made the comments as a reservist, not as a full-time member of the Regular Army: 276 All of his comments were made while the applicant was not on duty, not in uniform and not doing anything connected with the ADF except criticising it and

certain of its members.

[page 465] … 279 However, in my view the circumstance that the comments were made in a personal capacity, unconnected with the ADF except by the ongoing formal circumstance of ADF membership, and that the comments were made in the form of communications about political matters which satisfy the first limb of the Lange test, raises for resolution whether the decision to terminate the applicant’s commission exceeded the statutory authority under reg 85(4) of the Personnel Regulations because it was, in its effect, not reasonably appropriate and adapted to the legitimate end served by reg 85.

His Honour was satisfied that there is a ‘need for discipline, obedience to orders and adherence to standards in the ADF by its members’ (‘suitability’), and that it was difficult to ‘conceive of another obvious and compelling means of achieving the same objective in the face of conduct such as that of the applicant, which was defiant and intractable’ (‘necessity’): at [282]–[283]). The matter therefore turned on the third sub-test of the third limb of the modified Lange test. Buchanan J rejected the proposition that ADF members could lose their freedom of political expression, especially in situations where the member is not serving in any active capacity and is unlikely to do so again: at [284]. Although his Honour acknowledged that membership of the ADF carries with it obligations of obedience to lawful commands, it does not follow that this extinguishes freedom of expression: at [287]. Hence, the termination of his commission because of the ‘publication of his views about political matters’, contrary to that of Australian Defence Force policy, was not ‘sufficiently connected with any legitimate legislative aim to displace the freedom of political communication’: at [289]. 18.29

In Day v Australian Electoral Officer for the State of South

Australia [2016] HCA 20, the plaintiff (a Senator for South Australia) challenged the constitutional validity of recent amendments to the Commonwealth Electoral Act 1918 (Cth). The reforms, incorporated into the Act by the Commonwealth Electoral Amendment Act 2016 (Cth), altered the Senate electoral process by changing the form of the ballot paper and the process for marking it. Electors were given the option of either voting above or below the dividing line. An elector who wished to vote above the line was required to number at least six squares sequentially (so as to indicate the order of preference for them). On request, a group of candidates could be granted a square above the line, in which case the name of the political party that endorsed them and the party logo would appear adjacent to the square above the line. Alternatively, electors could vote below the line by numbering at least 12 candidates in order of preference. The first plaintiff made a number of submissions in support of his argument that the new form of the ballot paper and the instructions on it infringed ss 7 and 9 of the Constitution (at [37]). One argument was that it ‘likely to mislead or deceive electors in relation to the casting of votes and thereby to hinder or interfere with their exercise of a right to a free and informed vote’. Because the paper only described two ways of voting, the plaintiffs argued that this would mislead electors about their voting options, thus infringing the freedom of political communication (at [4], [37]). In particular, one of the options not mentioned was that an elector could complete only one square above the line (the ‘single vote’ method). The [page 466] court, in a unanimous joint judgment, rejected this argument, holding that it failed at the threshold (that is, the impugned provisions did not

effectively ‘burden’ the freedom in its terms, operation or effect): 56 The ballot paper does not mislead. It correctly states the statutory requirements that at least six squares be marked for above the line voting (unless there are fewer than six squares in total) and at least 12 squares be marked below the line (unless there are fewer than 12 squares in total). The fact that it does not refer to provisions of the Act which count the completion of one square above the line as formal and six squares below the line as formal is hardly surprising. They are vote saving provisions. The premise of this argument is not made out.

Other implied freedoms? 18.30 Other implied freedoms may arise from the system of representative and responsible government prescribed by the Constitution. The people of Australia may have an implied right of access to the seat of government: Crandall v Nevada 73 US 35 (1867); Cunliffe v Commonwealth (1994) 182 CLR 272 at 328 per Brennan CJ. They may enjoy a freedom of association and travel associated with the election of federal representatives and associated activities: Kruger v Commonwealth (1997) 190 CLR 1 at 114–21 per Gaudron J; at 142 per McHugh J. As Gaudron J noted in Kruger (at 115): … just as communication would be impossible if ‘each person was an island’, so too it is substantially impeded if citizens are held in enclaves, no matter how large the enclave or congenial its composition. Freedom of political communication depends on human contact and entails at least a significant measure of freedom to associate with others. And freedom of association necessarily entails freedom of movement.

18.31 Apart from the implied freedom of political communication, the High Court has recognised that that the system of representative government created by the Constitution (effected by ss 7 and 24) gives rise to an implied right to vote: Roach v Electoral Commissioner (2007) 233 CLR 162. However, the right may be curtailed where it is reasonably appropriate and adapted to serve a legitimate end within the system of representative government prescribed by the Constitution. The implied right to vote is based on the proposition that the words

‘directly chosen by the people’ imports a minimum content of adult suffrage in the franchise: Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 36 per McTiernan; at 79–1 per Murphy J. The High Court thus confirmed in Roach that the parliament cannot legislate to disenfranchise eligible voters unless there is a ‘substantial reason’ to justify an exception to universal adultcitizen franchise: at 173–5 per Gleeson CJ; at 198–9 per Gummow, Kirby and Crennan JJ. This means that a person may only be prevented from voting where the impugned law can be characterised as being reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government: Rowe v Electoral Commissioner (2010) 243 CLR 1 at 20 per French CJ. In Roach, amendments to the Electoral Act 1918 (Cth) were declared unconstitutional because it made all prisoners serving a sentence of full-time detention ineligible to vote. Prior to 2006, the Electoral Act only prohibited those serving a sentence of three years or more from voting. A majority of the High Court (Hayne and Heydon JJ dissenting) held that a blanket [page 467] ban on voting was disproportionate. However, Gleeson CJ, Gummow, Kirby and Crennan JJ confirmed that prisoners found guilty of a serious offence of three years or longer could be excluded from voting. At the very least, the 2004 amendments to the Electoral Act (imposing the disqualification on voting) were appropriate and adapted to serving the legitimate end of identifying and punishing serious offenders. According to Gummow, Kirby and Crennan JJ, ‘the end is the placing of a civil disability upon those serving a sentence of three years or longer for an offence, the disability to continue whilst

that sentence is being served’: at 204. Unlike the 2004 amendments, the 2006 amendments did ‘not reflect any assessment of any degree of culpability other than that which can be attributed to prisoners in general as a selection of society: at 201. Importantly, the majority observed (at 203): The three year provisions (to put the subject matter in short form) of the 2004 Act differ in their nature from the 2006 Act. They operate to deny the exercise of the franchise during one normal electoral cycle but do not operate without regard to the seriousness of the offence committed as an indicium of culpability and temporary unfitness to participate in the electoral process. In that way the three year provisions are reflective of long established law and custom, preceding the adoption of the Constitution, whereby legislative disqualification of electors has been made on the basis of such culpability beyond the bare fact of imprisonment.

18.32 The High Court further developed its jurisprudence around the implied right to vote in Rowe v Electoral Commissioner (2010) 243 CLR 1. In this case, the court held that provisions of the Electoral Act 1918 (Cth), introduced by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), were invalid. Section 102(4) of the Act prevented the Electoral Commissioner from considering claims for enrolment after 8.00pm on the date of the issue of the writs (for the federal election) until the end of polling day. Section 102(4AA) prevented the transfer of enrolment from one divisional roll to another divisional roll from 8.00pm on the third working day after the date of the issue of the writs. The stated purpose of the provisions was to protect the integrity of, as well as to facilitate a more efficient, electoral system by limiting the potential for electoral fraud. Prior to 2006, a seven-day period was permitted for individuals to enrol or update their enrolment status. This made an estimated 100,000 people ineligible to vote at the 2010 election. Two plaintiffs, Shannen Rowe and Douglas Thompson, challenged the validity of these provisions. A majority of the High Court (Hayne, Heydon and Kiefel JJ dissenting) held that increasing the amount of time to check the

electoral rolls for fraudulent enrolments was disproportionate given that an estimated 100,000 people would be prevented from enrolling or transferring their enrolment prior to the federal election. According to French CJ (at 38–9): The legal effect of the impugned provisions is clear. They diminish the opportunities for enrolment and transfer of enrolment that existed prior to their enactment. These were opportunities that had been in place as a matter of law for eight federal elections since 1983. They were consistent with an established executive practice which provided an effective period of grace for nearly 50 years before 1983. The practical effect of the Amendment Act was that a significant number of persons claiming enrolment or transfer of enrolment after the calling of an election could not have their claims considered until after the election. That practical effect cannot be put to one side with the observation, which is undoubtedly correct, that those persons were so affected because of their own failures to claim enrolment or transfer of enrolment in accordance

[page 468] with their statutory obligations. The reality remains that the barring of consideration of the claims of those persons to enrolment or transfer of enrolment in time to enable them to vote at the election is a significant detriment in terms of the constitutional mandate. That detriment must be considered against the legitimate purposes of the Parliament reflected in the JSCEM Report. Those purposes addressed no compelling practical problem or difficulty in the operation of the electoral system. Rather they were directed to its enhancement and improvement. In my opinion, the heavy price imposed by the Amendment Act in terms of its immediate practical impact upon the fulfilment of the constitutional mandate was disproportionate to the benefits of a smoother and more efficient electoral system to which the amendments were directed.

Gummow and Bell JJ pointed to there being no compelling practical problem or difficulty in the operation of the electoral system. They argued (at 61): A legislative purpose of preventing such fraud ‘before it is able to occur’, where there has not been previous systemic fraud associated with the operation of the seven day period before the changes made by the 2006 Act, does not supply a substantial reason for the practical operation of the 2006 Act in disqualifying large numbers of electors. That practical operation goes beyond any advantage in preserving the integrity of the electoral process from a hazard which so far has not materialised to any significant degree.

Crennan J similarly reasoned (at 119–21) that: The federal electoral process, characterised by compulsory enrolment and compulsory voting, requires comprehensive and accurate Electoral Rolls. Such Rolls will ‘guard’ and ‘protect’ the franchise by ensuring that persons eligible to vote in an election, for their parliamentary representatives, will be able to do so. The Australian Electoral Commission, the independent body charged with maintaining the Electoral Rolls, was able to process in the usual way any late enrolments under the previous seven day cutoff period. There was no evidence that fraudulent activity was reduced by the shortening of the seven day cut-off period, nor was there any evidence that systematic electoral fraud exists. The Commonwealth was careful to emphasise that, in the context of a majority of a Joint Standing Committee on Electoral Matters recommending a shortening of the cut-off period, a concern about electoral fraud had never been put any higher than a concern about the potential for electoral fraud. The statement of agreed facts recorded that, for the general elections of 1993, 1996, 1998 and 2001, some 3.32 per cent, 3.23 per cent, 2.94 per cent and 2.96 per cent respectively of total enrolments were processed, as late enrolment transactions, during the period between the issue of the writs for each of those elections and the closure of the Rolls. In 2004, before the cut-off periods instituted by the 2006 amendments, 423,993 enrolment transactions took place in the period permitted between the issue of the writs and the closure of the Rolls. In 2007, there were 279,469 enrolment transactions between the issue of the writs and the closure of the Rolls. It has already been mentioned that there were at least 100,000 late claims for enrolment in respect of the 21 August 2010 election. In all those circumstances, the impugned provisions have not been shown to be necessary or appropriate for the protection of the integrity of the Rolls, as that object was advanced by the Commonwealth. First, this is because the Australian Electoral Commission had no difficulty in processing the volume of late enrolments which occurred with the previous seven day cut-off period. Secondly, to seek to discourage a surge of late claims for enrolment by disentitling or excluding those making them constitutes a failure to recognise the centrality of the franchise to a citizen’s participation in the political life of the community. Thirdly, the main reason

[page 469] put forward by the Commonwealth as the justification for the impugned provisions — namely, that they will operate to protect the Rolls from the risk of, or potential for, systematic electoral fraud — is to protect the Rolls from a risk or potential which has not been substantiated to date. Accordingly, the justification put forward to support the impugned provisions does not constitute a substantial reason, that is, a reason of real significance, for disentitling a significant number of electors from exercising their

right to vote for parliamentary representatives in the State and Subdivision in which they reside. The impugned provisions cannot be reconciled with the constitutional imperative of choice by the people of those representatives.

18.33 The High Court also considered the issue of electoral participation recently in Murphy v Electoral Commissioner [2016] HCA 36. The plaintiffs challenged the validity of certain provisions of the Commonwealth Electoral Act 1918 (Cth), which prevented the Electoral Commissioner from processing claims for enrolment on the electoral roll or transfer of enrolment from one division to another, after 8.00pm on the day of the closing of the rolls until after the close of the poll for an election (known as the ‘suspension period’). The Commonwealth Electoral Act gives electors a seven-day grace period (that is, from the issue of the writs for an election until the close of the rolls) to enrol or update their enrolment status. The plaintiffs, an elector in the Division of Wills (a seat in Melbourne’s north) and an elector intending to nominate as a candidate in the House of Representatives in the Division of Newcastle, argued that the impugned provisions infringed ss 7 and 24 of the Constitution, to the extent that the ‘suspension period impedes enrolment, which in turn reduces opportunities for citizens to vote’: at [115] per Keane J. Keane J outlined the basis of the plaintiffs’ submission (at [116]): [T]he suspension period, moderated by the grace period … must now be seen to operate as a burden on the choice by the people required by the Constitution. This argument depends on two propositions: first, that an electoral law which does not maximise the opportunity of every potential vote to enrol to vote is inconsistent with the choice by the people as contemplated by ss 7 and 24 of the Constitution; and secondly, that this inconsistency has emerged over time to invalidate laws (which may previously have been valid) by reason of chances in the technological resources available to maximise voting opportunities.

According to the plaintiffs, the advances in technology meant that there was no ‘substantial reason’ to exclude electoral participation after the initial seven-day period following the issue of the writs. It followed that ‘suspension period’ (or at least a portion of it) was a

burden not justified by a ‘substantial reason’, and should be declared constitutionally invalid. The High Court unanimously held that the impugned provisions were not contrary to ss 7 and 24 of the Constitution. French CJ and Bell J found that the existence of ‘alternative’ possibilities, like modern technological systems (which allow enrolments and alterations to be made up to and including polling day) and different legislative proposals, do ‘not support a characterisation of design limits’ of the Act as a ‘burden’ ‘upon the realisation of the constitutional mandate of popular choice’ (at [42]). Even if a burden could be established, French CJ and Bell J said the ‘suspension period’ exists for ‘legitimate reasons’: at [41]. Like French CJ and Bell J, Keane J held that the plaintiffs failed to identify a burden on the constitutional mandate of choice by the people: at [181]. His Honour then identified [page 470] several reasons in support of the current system: for example, ‘enrolment as the qualification for voting, and the requirement of closure of the rolls before polling day, can rationally be seen as integral to the facilitation of an orderly and peaceful poll, efficient scrutiny of votes and a prompt and certain declaration of the poll, all of which is compatible with choice by the people’ (at [185]). The remaining justices considered that even if the impugned provisions imposed a burden on the constitutional mandate of popular choice, it was justified by a ‘substantial reason’. Kiefel J assumed that any detriment to, or burden of, the ability to vote had to be justified: at [60]. Disqualifying electors from the entitlement to vote (as the ‘suspension period’ did) thus requires a ‘substantial reason’, which would be satisfied if the ‘means adopted were not

disproportionate to the legitimate end which they sought to achieve’: at [61]. Kiefel J held that there were practical reasons why the electoral roll should be closed to further enrolment or transfer; for example (at [69]): It enables a number of steps to be undertaken to facilitate the efficient conduct of an election. The closure of the Roll prior to the commencement of the election process ensures there will be few delays in declaring election results, which would occur if persons were entitled to enrol at a point close to, or on, polling day. It achieves accuracy and certainty in the lists which are able to be produced when polling does take place.

Although several states have introduced separate statutory schemes, including some which choose not to close the rolls (New South Wales) or which choose to close the rolls the day before the election (Queensland), this does not demonstrate that ‘these systems are capable of achieving the same objectives’ as the Electoral Act: at [72]. Accordingly: 73 It cannot be concluded that the systems chosen elsewhere would be as efficient as that which operates under the Electoral Act, with the level of certainty which is achieved by the closure of the Rolls and the suspension period. Nor can it be concluded on the facts available that adopting such a system would not require additional resources — for example, by way of staff and computer equipment — and therefore further funding by government. The alternative systems cannot therefore be said to be equally practicable.

Gageler J also held that cutting off enrolment at 8.00pm on the day of the close of the rolls had the effect of burdening electoral participation, which requires a ‘substantial reason’ for that exclusion: at [97]. However, his Honour accepted that the provisions were a ‘standard incident of the traditional legislative scheme for the orderly conduct of national elections’: at [104]. Recognising that the words ‘chosen by the people’ in ss 7 and 24 guarantees universal adult suffrage and hence an ‘entitlement to vote’, Nettle J reasoned that any restriction on that right could only be justified where there is a ‘substantial reason’ for it (at [244]): And the establishment of a substantial reason sufficient to justify the restriction

requires that the restriction be seen as ‘reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government’.

This could be established because, as Nettle J put it, the means chosen in the Act accord ‘primacy to the integrity and reliability of the Roll’: at [246]. After exploring [page 471] the importance of the roll in the Act (at [246]–[248]), his Honour found that the impugned provisions were ‘directed to the achievement of the requisite degree of accuracy’; to ‘allow sufficient time to ensure the accuracy of the Roll in advance of an election’: at [250]. Similarly to Kiefel J, Nettle J held that availability of alternative means (in other jurisdictions), which enable the roll to be kept open until close to an election, did not render the impugned provisions disproportionate: ‘it is open for Parliament to prefer the relative order and certainty of the Act’s system to the relative disorder and uncertainty of the New South Wales or Victorian real time enrolment/voting paradigm and to apply no more resources to the task than have already been allocated’: [254]. Gordon J considered that the impugned provisions did not exclude or restrict any exercise of the franchise (at [333]). This was because the provisions did not diminish opportunities for electors enrol, transfer or vote (at [309]). However, to the extent that some may consider that such an exclusion or restriction might exist, this was justified by a ‘substantial reason’ (at [324]–[332]); that is, the existence of a ‘coherent and structured electoral system’ providing for the orderly process for senators and members of the House of Representatives to be ‘directly chosen by the people’ as required by ss 7 and 24 of the Constitution: at [326], [332]. Murphy v Electoral Commissioner is also noteworthy because it

represents the first time that the High Court has addressed the applicability of the structured proportionality test (that is, the modified Lange test from McCloy v New South Wales (2015) 325 ALR 15) outside that context of freedom of political communication. The plaintiffs contended that the structured proportionality test should be extended to include other constitutional contexts, such as restricting opportunities for electoral participation. This idea generally received little support. French CJ and Bell J denied that the adoption of the approach in McCloy reflected ‘the birth of some exotic jurisprudential pest destructive of the delicate ecology of Australian public law’: at [37]. However, their Honours seemed closest (out of all the justices) to accepting that the three sub-tests in McCloy might have a place in future cases, ‘depending upon the character of the law said to diminish the extent of the realisation of’ the constitutional mandate of choice by the people (at [38]). This threshold was not reached, because the plaintiffs’ argument was ‘ultimately a complaint that the legislation did not go far enough in the provision of opportunities for enrolment’ (at [39]). Kiefel J, by contrast, favoured the pre-McCloy ‘reasonably appropriate and adapted’ test, which does not identify a particular method ‘by which one is to reason to a conclusion that a law is “reasonably appropriate and adapted”’ (at [64]). This may have well been a sensible approach, given Gageler J’s concern that ‘inviting the Court to assess the rationality of the timing of the cut-off, to examine the availability of less restrictive alternative means of achieving its purpose, and to weigh the adequacy of its balance [the three sub-tests of the third limb of the modified Lange test] … would have had the Court engage in a process of electoral reform’: at [109]. This would have clearly amounted to an exercise of judicial activism, intruding into a sphere occupied by the parliament: 109 Through the application of an abstracted top-down analysis, they [the plaintiffs] would have had the court compel the Parliament to maximise the franchise by

[page 472] redesigning the legislative scheme to adopt what the plaintiffs put forward currently to be best electoral practice.

Gageler J, who argued against the adoption of the modified Lange test in McCloy, was also critical of it in Murphy: ‘The plaintiffs’ attempt to shoehorn their argument within it highlights the inappropriateness of attempting to apply such a form of proportionality testing here. What is at best an ill-fitted analytical tool has become the master, and has taken on a life of its own’: at [101]. Keane J, unable to ‘identify a burden on the constitutional mandate’ (at [202]), found it unnecessary to apply a proportionality test. The structured approach to proportionality was similarly ignored by Nettle and Gordon JJ. Nettle J remained loyal to the ‘reasonably appropriate and adapted’ test: at [256]. Gordon J determined that the structured proportionality test was ‘inappropriate’ in the context of this case: at [297]. Particularly, her Honour took issue with the ‘necessity’ stage of the McCloy test. Applying the ‘necessity’ stage as rigidly as McCloy would suggest, creates ‘too great a risk of the judicial branch intruding on the legislative function conferred on the Parliament by the Constitution’: at [303]. This reasoning is consistent with that of Gageler J. It is apparent that the court, at least for the moment, has confined the structured proportionality test to the freedom of political communication. 18.34 In Mulholland v Australian Electoral Commission (2004) 220 CLR 181, the appellant challenged provisions of federal electoral legislation that required political parties to have 500 members should they wish their political party to appear along with their name on a federal ballot. Mulholland challenged the ‘500 rule’ on the basis that it violated a constitutionally protected freedom of association. In rejecting the claim, Gummow and Hayne JJ said at 234 (with Heydon J agreeing

at 306): There is no such ‘free-standing’ right to be implied from the Constitution. A freedom of association to some degree may be a corollary of the freedom of communication formulated in Lange v Australian Broadcasting Corporation and considered in subsequent cases. But that gives the principle contended for by the appellant no additional life to that which it may have from a consideration later in these reasons of Lange and its application to the present case.

Callinan J rejected the argument (at 297). McHugh J (at 225) and Kirby J (at 277) supported the recognition of the freedom, but held that it had not been breached on the facts of the case. Gleeson CJ did not deal separately with the freedom of association claim. McHugh J said: Freedom of association 113 Mr Mulholland contends that ss 7 and 24 of the Constitution contain an implied freedom of association or participation in relation to federal elections, which includes an associated freedom of political privacy. He contends that these freedoms are derived either directly from the text and structure of ss 7 and 24 or as a corollary of the implied freedom of political communication. Mr Mulholland contends that the challenged provisions concerned with the ‘500 rule’ and the enforcement of that rule would breach the implied right of freedom of association and the related freedom of political privacy by identifying the members of the DLP. 114 In ACTV, I said that the Constitution contains ‘rights of participation, association and communication’ in relation to federal elections but that these rights extend

[page 473] only in so far as they are ‘identifiable in ss 7 and 24’ of the Constitution. In Kruger v The Commonwealth, Toohey and Gaudron JJ and I each recognised an implied constitutional freedom of association. Toohey J regarded the freedom of association as ‘an essential ingredient of political communication’. Gaudron J said that freedom of association was an aspect of the freedom of political communication that is protected to the extent ‘necessary for the maintenance of the system of government for which the Constitution provides’. I said that the Constitution recognises a freedom of association at least for the purposes of the constitutionally prescribed system of government and the referendum procedure. 115 However, disclosure to the Commission of the names of the members of political

parties — either as part of the party’s initial application for registration or in answer to a statutory request of the Commission — does not breach the implied freedom of association. Disclosure of the names of members is simply a condition of entitlement to registration and continued registration as a political party for the purposes of the Act. It is up to the political party which seeks to obtain or maintain registration to decide whether or not to disclose the names of its members. If, for privacy reasons, it does not wish to do so, the party is not entitled to the benefits of registration. A political party is not compelled to disclose to the Commission the names and addresses of its members. Accordingly, disclosure of the names of the members of a political party which seeks to obtain or maintain registration under the Act is not a breach of the constitutionally implied freedom of association [references omitted].

Kirby J also accepted the existence of an implied freedom of political association: at 277–8. 18.35 In Wainohu v New South Wales (2011) 243 CLR 181, Derek Wainohu, a former member of the Hells’ Angels motorcycle club, challenged the constitutional validity of the Crimes (Criminal Organisations Control) Act 2009 (NSW). The legislation authorised the making of ‘control orders’ by the New South Wales Supreme Court in relation to ‘declared (criminal) organisations’ and their members. The Act empowered the Supreme Court of New South Wales, upon the application of the Commissioner of Police, to make an order declaring that a particular organisation is a ‘declared organisation’. Under s 9 of the Act, a declaration could be made if an eligible judge was satisfied that (a) members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and (b) the organisation represents a risk to public safety and order in New South Wales. If a person was found to be a member of a declared organisation, this would subject them to sanctions and penalties (as to which, see further 19.57) French CJ and Kiefel J explained: 8 The object of the Act, as appears from its long title, is ‘to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members’. It is an object which has been pursued in the long history of laws restricting the freedom of association of certain classes, groups or organisations of persons involved or likely to be involved in the planning and

execution of criminal activities (South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 at 30–35 [32]–[41] per French CJ). It is an object legitimised by the incidence and sophistication of what is generally called ‘organised crime’. It is nevertheless an object which must be pursued within the framework of the Constitution so as to maintain the integrity, independence and authority of the courts that may be required to determine whether persons charged with offences under federal, State or Territory laws are guilty of those offences, and to punish them if they are.

[page 474] One of the grounds of Wainohu’s challenge was that the legislation breached an implied freedom of association. Gummow, Hayne, Crennan and Bell JJ (with French CJ and Kiefel J, and Heydon J agreeing in separate judgments) said that any ‘freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication and the same test of infringement and validity would apply’: at 230. The plurality noted that control orders could be tailored in a way to ensure that there was no burden on political communication. The argument was rejected. An implied freedom of association was again rejected in Tajjour v New South Wales (2014) 254 CLR 508. In addition to arguing that s 93X infringed the freedom of political communication, Tajjour and Hawthorne alleged that s 93X was also inconsistent with the freedom of association. Hayne J (with whom Crennan, Kiefel and Bell agreed at 575) reaffirmed (at 566–7) that there is no ‘free-standing’ right of association, and that ‘any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication’. Gageler and Keane JJ agreed at 578 and 605– 6 respectively. French CJ did not find it necessary to decide the issue: at 554. Should an implied freedom of association ever be recognised as a corollary of political communication, the test of infringement and validity would be no different to that of freedom of communication: at

95 per Hayne J.

[page 475]

Chapter Nineteen

Judicial Power of the Commonwealth Introduction 19.1 This chapter outlines the separation of judicial power effected by the Constitution, and the limitations it places on legislative power. After reviewing the cases in which these rules are expressed, this chapter considers the cases that explain the concept of ‘courts’. Then the concept of ‘judicial power’ is considered. The separation of judicial power also impliedly limits the powers of Australian legislatures: principles relating to judicial independence, impartiality, and the institutional integrity of courts are then reviewed. Finally, exceptions and qualifications to the separation of judicial power are reviewed and analysed. 19.2 The separation of judicial power is reflected in, and reinforced by, the chapter divisions of the Constitution, which describe the parliament (Ch I, commencing at s 1), the executive (Ch II, commencing at s 61) and the judicature (Ch III, commencing at s 71). The doctrine of the separation of powers is based on the idea that the parliament makes laws, the executive executes the law and the function of the judicature is to interpret and apply the law: Marbury v Madison 5 US 137 (1803); Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 262–3.

The purpose of the separation of judicial power was considered in Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 at 10–11, where Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said: Harrison Moore wrote that under the Australian Constitution there was, between legislative and executive power on the one hand and judicial power on the other, ‘a great cleavage’. The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation. This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion. The result is promulgated in public and implemented by binding orders. The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government. The separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges. In R v Davison, Kitto J identified the conceptual basis of the Constitution’s division of the functions of government: It is well to remember that the framers of the Constitution, in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was

[page 476] not based upon precise definitions of the terms employed. As an assertion of the two propositions that government is in its nature divisible into lawmaking, executive action and judicial decision, and that it is necessary for the protection of the individual liberty of the citizen that these three functions should be to some extent dispersed rather than concentrated in one set of hands, the doctrine of the separation of powers as developed in political philosophy was based upon observation of the experience of democratic states, and particularly upon observation of the development and working of the system of government which had grown up in England.

The separation of judicial power and its vesting in independent courts under Ch III helps to ensure the maintenance of the rule of law

by requiring that all people, associations and governments obey the law: Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193; A v Hayden (No 2) (1984) 156 CLR 532; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 19.3 The separation of judicial power from legislative and executive power has a number of consequences. First, only Ch III courts can exercise judicial power. Second, Ch III courts can only exercise judicial power, and powers that are incidental to judicial power. The concepts ‘court’ and ‘judicial power’ are considered later in this chapter. The first principle — that only Ch III courts can exercise judicial power — was confirmed in New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54. The Wheat case concerned the Inter-State Commission, a federal agency that had been given power to determine disputes arising in the course of interstate trade and commerce. Section 101 of the Constitution states: Inter-State Commission 101 There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

The legislation setting up the Inter-State Commission authorised the Commission to make legally binding orders such as an injunction. The law was challenged on the ground that the Commission’s powers of ‘adjudication’ under s 101 could not include the judicial power to order an injunction. It was argued that the Commonwealth could only vest the power to issue an injunction in a court, and then only within Ch III. The Inter-State Commission was not a Ch III court and was therefore not allowed to exercise such a power. A majority of the High Court agreed (Griffith CJ, Isaacs, Powers and Rich JJ; Barton and Gavan Duffy JJ dissenting). Isaacs J (with whom Powers J agreed) said (at 88–9):

When the fundamental principle of the separation of powers as marked out in the Australian Constitution is observed and borne in mind, it relieves the question [of the status of the Inter-State Commission] of much of its obscurity. … Chapter III is headed ‘the Judicature’, and vests the judicial power of the Commonwealth not in the Sovereign simply, or as he may in Parliament direct, but in specific organs, namely, courts, strictly so called. They are the High Court, such other federal courts as Parliament creates, and such other courts as it invests with

[page 477] federal jurisdiction. There is a mandate to create a High Court; there is a discretionary power to create other federal courts; and there is a discretionary power to invest with federal jurisdiction such courts as Parliament finds already in existence, that is, State courts. But that exhausts the judicature.

The Inter-State Commission, a creature of Ch V of the Constitution, was not a federal court within Ch III of the Constitution and therefore it could not exercise the judicial power of the Commonwealth: see also Griffith CJ (with whom Powers J also agreed) at 62; Rich J at 109. Nor can the legislature directly exercise, and thereby usurp, judicial power, or interfere with the exercise of judicial power. Parliament can, though, enact legislation with retrospective effect to remedy the consequences of a judicial decision without offending Ch III. The High Court’s decision in Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 illustrates this principle. In Australian Education Union v Lawler (2008) 169 FCR 327, the Full Court of the Federal Court quashed a 27 January 2006 decision of the Australian Industrial Relations Commission granting an application by the Australian Principals Federation (the APF) for registration as an organisation under the Workplace Relations Act 1996 (Cth) (WR Act): at [4]. It also quashed a decision of the Full Bench of the Commission dismissing an appeal from the 27 January 2006 decision,

and ordered that certiorari issue to quash the registration of the APF. Schedule 1B of the WR Act dealt with ‘Registration and Accountability of Organisations’. Section 18 of Sch 1B set out the kinds of associations that can apply for registration. One class of association that could apply for registration was ‘an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute’: s 18(1)(b). If all the members did not fall into that category, the other members had to be officers of the association or persons specified in s 18(3) or independent contractors who, if they were employees performing work of the kind they usually performed as independent contractors, would be employees eligible for membership of the association: at [8]. The Full Court held that the APF was not an ‘association of a kind referred to in s 18(1)(b) of Sch 1B and that the Commission did not have jurisdiction to grant its application for registration’: at [12]. That was because of the ‘absence of a “purging rule” to terminate the membership of persons no longer qualified for membership by reason of their employment’: at [3]. Since the Commission’s decision to grant the APF’s application for registration was not valid, nor was the Industrial Registrar’s entry of the AFP’s particulars in the Register of Organisations (the Register) under s 26 of Sch 1B of the WR Act. The entry in the Register had ‘no legal effect’: at [10]. Schedule 1B of the WR Act later became the Fair Work (Registered Organisations) Act 2009 (Cth) (FW(RO) Act). That change was effected by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (‘the Amending Act’). The Amending Act enacted s 26A of the FW(RO) Act. The effect of that section, which the High Court unanimously held applied to APF (at [40], [63], [100]– [113]), was to deem the ‘purported registration’ of APF ‘valid and to

[page 478] have always been valid’: Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117. The constitutional question was whether s 26A interfered with or usurped the judicial power of the Commonwealth. AEU argued that s 26A ‘would in substance dissolve or reverse the orders of the Full Court in Lawler quashing the registration of the APF’: at [47]; see also at [41], [72], [88], [114]. Although it is beyond federal parliament’s power to direct a court as to the manner and outcome of the exercise of its jurisdiction, and, in so doing, interfere with or intrude into the exercise of judicial power (at [48], [78]), s 26A did not have that effect. Rather, s 26A stated a rule that attached legal consequences to an entry in the Register under the FW(RO) Act: at [48]. Parliament can enact a statute that changes the law as declared by a court, and those changes can take effect from a date prior to the date of the statute’s enactment. Section 26A was a law of this kind. It did not restore the registration that had been quashed by the Full Court of the Federal Court; in fact, s 26A accepted the invalidity of the APF’s registration: at [52], [96], [116]–[117]. The decision of the Full Court had been left intact. Parliament had attached ‘new legal consequences to an act or event’ that the Full Court had held, on the previous state of the law, not to attract those consequences: at [53], [116]–[117]. Gummow, Hayne and Bell JJ put it this way (at [90]): Section 26A did alter the law governing which organisations have the status of a registered organisation under the Act. The section altered the law by providing, in effect, that the organisations with which it dealt were to be treated as having had the status of registered organisation from the time when the organisation in question was first purportedly entered on the register. But neither as a matter of form nor as a matter of substance did s 26A alter the decision the Full Court of the Federal Court had reached in the Lawler matter. Section 26A did not alter or in any way affect the orders

which the Full Court had made. In particular, and contrary to the submission of the AEU, s 26A did not dissolve or reverse those orders. Section 26A did not dissolve or reverse those orders because in no sense was s 26A a legislative adjudication of any right or question of law which had been in issue in the Lawler matter [original emphasis].

This decision sits within a broader stream of authority also upholding the validity of legislation enacted to remedy the consequences flowing from judicial determinations (see, for example, R v Humby; Ex parte Rooney (1973) 129 CLR 231 and Haskins v Commonwealth (2011) 244 CLR 22). 19.4 A second implication of the separation of judicial power is that the courts contemplated by Ch III can only exercise judicial power and functions incidental to the exercise of judicial power. This was confirmed in R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254. The Boilermakers’ Society had been fined for failing to comply with an industrial award made by the Commonwealth Court of Conciliation and Arbitration. They sought prohibition in the High Court on the ground that the Arbitration Court had been vested with ‘numerous powers, functions and authorities of an administrative, arbitral, executive and legislative character’ and that this was inconsistent with [page 479] the separation of judicial power contemplated by Ch III. Dixon CJ, McTiernan, Fullagar and Kitto JJ upheld this argument, noting that the court had been vested with power to regulate industrial disputes through the making of ‘awards’ binding the parties to such disputes, but also the power to punish breaches of those awards. The plurality observed (at 290):

… it is difficult to see what escape there can be from the conclusion that the Arbitration Court, though under s. 51 (xxxv) of the Constitution there is legislative power to give it the description and many of the characteristics of a court, is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the strictly judicial power of the Commonwealth. The basal reason why such a combination is constitutionally inadmissible is that Chap. III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth.

The provisions of the legislation conferring jurisdiction on the Arbitration Court to punish breaches of the award and contempts of the Arbitration Court’s processes were, the plurality said, ‘plainly’ judicial, and therefore invalidly conferred: at 287. Dixon CJ, McTiernan, Fullagar and Kitto JJ made the following general observations (at 271–2): A number of considerations exist which point very definitely to the conclusion that the Constitution does not allow the use of the courts established by or under Chap III for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto …

For these reasons (at 274–5): … the true contrast in federal powers is not between judicial power lying within Chap III and judicial power lying outside Chap III. That is tenuous and unreal. It is between judicial power within Chap III and other powers. To turn to the provisions of the Constitution dealing with those other powers surely must be to find confirmation for the view that no functions but judicial may be reposed in the judicature.

After the Boilermakers’ case was decided, the Commonwealth enacted legislation which broke the Arbitration Court into two separate institutions with functions consistent with the constitutional separation of judicial power — an agency with executive power to make awards creating legal rights and obligations, and a court with jurisdiction to enforce awards and punish breaches: Seamen’s Union of Australia v Matthews (1957) 96 CLR 529. Ch III and the states and territories 19.5

Section 74 of the Constitution contemplates that appeals may

be taken from Australian Courts to the Privy Council. There was a practice for many years that the High Court would not grant certificates to Australian litigants to take constitutional matters to the Privy Council, but the states continued to grant certificates until Privy Council appeals were abolished by statute. On one reading, s 74 of the Constitution only speaks of ‘inter se’ questions, which could be (and had been) defined as questions of law relating to the powers of the Commonwealth and the states as between themselves. However, questions relating to laws in force in Queensland, or which related to the peace, order and good government of Queensland, necessarily involved questions about the constitutional power of [page 480] Queensland which, in turn, raised ‘inter se’ questions. In Commonwealth v Queensland (Queen of Queensland case) (1975) 134 CLR 298, the High Court unanimously struck down a Queensland law that purported to empower the Attorney-General of Queensland to apply to the Supreme Court of Queensland for a certificate that a legal question or matter was of such great or general importance that it ought to be referred to the Judicial Committee of the Privy Council of the United Kingdom. The Commonwealth argued, among other things, that a ‘State Parliament cannot confer upon the Judicial Committee the capacity to pass upon matters dealt with in s 74’ of the Constitution. Gibbs J (with whom Barwick CJ, Stephen and Mason JJ agreed at 303, 316 and 316 respectively) said (at 314–15): It is implicit in Ch. III that it is not permissible for a State by legislation to provide a procedure by which the Judicial Committee is enabled to consider an inter se question in the absence of a certificate of this Court, or any other matter arising in the exercise of federal jurisdiction when the Parliament has exercised its power to prevent any appeal being brought to the Judicial Committee from a decision of this Court or a State court on any such matter. Legislation passed by a State which had that effect would violate

the principles that underlie Ch. III — that questions arising as to the limits of Commonwealth and State powers, having a peculiarly Australian character, and being of fundamental concern to the Australian people, should be decided finally in this Court, unless for special reasons this Court decides to allow the matter to proceed to the Judicial Committee, and that the Parliament should be entitled to ensure that other questions arising in the exercise of federal jurisdiction should, for similar reasons, be finally determined in this Court and not in the Judicial Committee. In other words, such legislation would be contrary to the inhibitions which, if not express, are clearly implicit in Ch. III.

Later, in Kable v DPP (NSW) (1996) 189 CLR 51, the High Court reinforced the principle that Ch III of the Constitution places limitations on the legislative power of the states: see further 19.45. The question whether Ch III applies in the territories has been a vexed one. The case law relating to that question is set out at 5.8–5.15 and 19.12–19.16.

Powers that are incidental to the exercise of judicial power 19.6 As the High Court noted in the Boilermakers’ case, the Constitution allows Ch III courts to exercise judicial power and powers ‘auxiliary or incidental thereto’. Section 51(xxxix) of the Constitution gives the parliament the power to make laws with respect to matters incidental to the exercise of power by other branches of government, including, relevantly, the judicature. So, s 51(xxxix), together with s 71 (or s 77 in the case of state or federal courts, or s 122 in the case of territory courts) can authorise legislation conferring power on courts to engage in activities necessary or convenient for the effective exercise of judicial power. In Solomons v District Court of New South Wales (2002) 211 CLR 119 at 166, Kirby J provided some examples, including the ‘security guards, sheriffs and other officers, police and all the other administrative back-up and paraphernalia’ associated with the exercise of federal jurisdiction in

courts. The Ch III courts enjoy the capacity to define those powers (at 166): The relevant implications would be derived from the provisions of the Constitution so as to ensure that the exercise by the court of its constitutional jurisdiction and

[page 481] powers was not rendered futile or ineffective and so as to fulfil the constitutional purpose of affording to all persons, subject to the authority of the Constitution, the protection and justice of the law.

Chapter III courts enjoy incidental power to determine what practice and procedure should be adopted in exercising jurisdiction: Nicholas v The Queen (1998) 193 CLR 173 at 188–9 per Brennan CJ. They can refuse to exercise their jurisdiction where to do so would be contrary to law or would involve the court in sanctioning fraud or oppression, or would permit parties to participate in an abuse of process: Pasini v United Mexican States (2002) 209 CLR 246 at 278. Chapter III courts have the power to compel the appearance of persons: Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 442; Sue v Hill (1999) 199 CLR 462 at 515–16. Chapter III courts also have an inherent power to commit for contempt of court: Re Colina; Ex parte Torney (1999) 200 CLR 386 at 395, 428.

What are ‘courts’? 19.7

Section 71 of the Constitution provides:

The judicial power of the Commonwealth 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 other 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.

The first court contemplated by s 71 is the High Court. There shall be one. Second, there are ‘federal courts’. Finally, s 71 contemplates a category of courts — not described as ‘federal courts’, but simply ‘courts’ — in which federal jurisdiction can be invested. In Lane v Morrison (2009) 239 CLR 230 at [21]–[22], French CJ and Gummow J observed: The noun ‘court’ is used in varied contexts and in many senses. The Oxford English Dictionary gives the following meanings, among others: ‘a princely residence, household, retinue’, and ‘an assembly held by the sovereign’, a use which gave rise to the terms ‘the “high court of parliament”’ and ‘”the king’s courts” of justice’. Of its use in the sense last mentioned, Barton J said [in Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 452]: ‘Court’ as the name of a place is merely a secondary meaning. ‘The Court’ is the deciding and enforcing authority, even if it sits under a tree, as sometimes it does in parts of the British Empire. Hence the statement by McHugh JA in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 515: In ordinary usage the word ‘court’ has many meanings: they range from the group who form the retinue of a sovereign to an area used to play certain ball games. Legal usage also gives the word several meanings. Thus a ‘court’ may refer to a body exercising judicial power as in the Constitution, Ch III, or to a body exercising non-judicial power such as the Coroners Court or to a court of petty sessions hearing committal proceedings. It may even refer to a body exercising judicial and arbitral powers such as the former Commonwealth Court of Conciliation and Arbitration or the Queensland Industrial Court.

[page 482] 19.8 Whether the court sits under a tree or in an imposing building, it is a certain thing that courts are made up of judges. Section 72 of the Constitution provides in part: 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 the 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 …

Before constitutional amendments in 1977, the result of which is now included in a lengthy paragraph in s 72 after subs (iii), federal judges enjoyed life tenure. At present, federal judges enjoy tenure to the age of 70. The federal parliament may lower the retirement age of federal judges (except High Court judges) but there is no such legislation currently in force. The removal provision in s 72(ii) of the Constitution has never been invoked: for further discussion see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 16; Re Reid; Ex parte Bienstein (2001) 182 ALR 473. 19.9 Judicial tenure is based on a lengthy tradition dating in English law to 1700, when the Imperial Act of Settlement abolished the power of the King to remove the commission of judges at pleasure, and replaced it with a power of removal by parliament in essentially the same terms as s 72(ii). Judicial tenure reinforces judicial independence, which enables judges to make impartial decisions, ‘insulating the judiciary from political pressure’: Harris v Caladine (1991) 172 CLR 84 at 159. Judicial independence is the hallmark of a court. It undergirds impartiality, which is, in turn, fundamentally important to the exercise of the power of judicial review of legislative or executive action. As Kirby J observed in Austin v Commonwealth (2003) 215 CLR 185 at 290, the availability of impartial determination of disputes under law is as much grounded in judicial independence as it is the separation of powers effected by the Constitution.

19.10 Judicial independence requires tenure and financial security. This principle is substantially reflected in s 72. In Australia, financial security for judicial officers has traditionally comprised secure remuneration recommended by an independent tribunal at a significant level and an attractive pension. Gaudron, Gummow and Hayne JJ considered the topic of judicial remuneration in obiter in Austin v Commonwealth (2003) 215 CLR 185. The case was brought by a Supreme Court judge, Austin J, against federal legislation that singled out state judges and imposed taxation on their superannuation entitlements. Austin argued successfully that the Melbourne Corporation principle operated to invalidate the provisions: see Melbourne Corporation v Commonwealth (1947) 74 CLR 31, discussed at 3.18. Gaudron, Gummow and Hayne JJ, in their joint judgment, made the following remarks (at 262–3): [page 483] The provision of secure judicial remuneration at significant levels serves to advantage and protect the interest of the body politic in several ways. Secure judicial remuneration at significant levels assists, as the United States Supreme Court has emphasised, to encourage persons learned in the law, in the words of Chancellor Kent written in 1826, ‘to quit the lucrative pursuits of private business, for the duties of that important station’. It also … assists the attraction to office of persons without independent wealth and those who have practised in less well paid areas. Further, the Supreme Court of the United States has stressed that such provision helps ‘to secure an independence of mind and spirit necessary if judges are “to maintain that nice adjustment between individual rights and governmental powers which constitutes political liberty”’. The Supreme Court went on to refer to the statement by Chief Justice John Marshall that an ignorant or dependent judiciary would be the ‘greatest scourge … ever inflicted’. Views may vary from time to time as to the relevant importance of these considerations and the measures to give effect to them. But in the constitutional framework in this country these are matters, respecting State judges, for determination by State legislatures. That constitutional framework also constrains those legislatures,

in particular, by requiring them to take as they find federal laws of ‘general application’ as part of the system enjoyed by the whole community [references omitted].

19.11 The principle that judicial tenure is an essential feature of federal courts was confirmed in Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434. The Commonwealth Court of Conciliation and Arbitration issued a summons at the instance of the Waterside Workers Federation, alleging that JW Alexander Ltd was in breach of an industrial award to which it was a party. At the hearing, JW Alexander challenged the constitutional validity of the court on a number of grounds, including that the court could not enjoy both arbitral powers and judicial power: the power to arbitrate awards was a power which could only be exercised by a body enjoying executive power, and the power to enforce its awards — that is, the power to enforce the law — was a type of judicial power. It was also submitted that the Commonwealth Court of Conciliation and Arbitration was not a Ch III court because the President of the court (who was appointed for a term of seven years under the Conciliation and Arbitration Act 1904 (Cth)) did not enjoy judicial tenure under s 72 of the Constitution. Griffith CJ, Barton, Isaacs, Powers and Rich JJ (Higgins and Gavan Duffy dissenting) held that s 72 requires that every justice of the High Court or any other federal court must have s 72 tenure. Griffith CJ concluded that because the President of the Court was also a justice of the High Court (Higgins J) that the provision could be upheld so long as a High Court justice with s 72 tenure was appointed to the position. Barton, Isaacs, Powers and Rich JJ disagreed, and held that the Commonwealth Conciliation and Arbitration Act was invalid to the extent that it contemplated that the judicial power of the Commonwealth could exercise judicial power of the Commonwealth without a valid appointment under s 72. They ordered that the judicial power to enforce its awards should be severed from the legislation.

The parliament responded by amending the tenure provisions under the Act to ensure that the judges of the Arbitration Court enjoyed tenure consistent with s 72 of the Constitution. However, this left unanswered the question whether the [page 484] Arbitration Court could validly arbitrate awards, a question resolved in R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254, considered at 19.4. 19.12 Strangely, the judges of territory courts do not enjoy s 72 tenure. The High Court held in Spratt v Hermes (1965) 114 CLR 226 that the source of legislative authority to vest territory courts with federal jurisdiction is s 122 of the Constitution, not s 71, even though s 71 refers to ‘such other courts as it invests with federal jurisdiction’, which is language wide enough to cover state and territory courts (see also 5.10 and 5.13). Spratt v Hermes concerned a stipendiary magistrate appointed without s 72 tenure under an ordinance of the Australian Capital Territory. The magistrate took jurisdiction to determine a matter arising under federal postal law and his authority to do so was challenged on the basis that he did not have s 72 tenure, and he could therefore not exercise judicial power of the Commonwealth. Barwick CJ said (at 242–3): … s 72, in my opinion, is not of … universal application. Upon its proper construction, in my opinion, it refers in the expression ‘the other courts created by the Parliament’ to the other courts to which reference is made in s 71, namely, such other federal courts as the Parliament creates, courts created by laws made in pursuance of the ‘federal’ legislative powers contained in s 51 of the Constitution. A court created by a law made by the legislative power given by s 122 is not a ‘federal’ court. Thus the section is not a limitation upon the power to create courts of judicature which is included within the complete power of legislation given by s 122 for the government of the territories

[emphasis added].

Similar reasons were given by Kitto J at 250–1, Taylor J at 260, Menzies J at 266, Windeyer J at 273 and Owen J at 280–1. 19.13 The conclusion that territory courts are not federal courts was, and remains, odd for a number of reasons. First, the language of s 71 is apt to lead to a different conclusion. Section 71 refers to three categories of courts: the High Court, federal courts, and courts in which federal jurisdiction can be invested. As Gaudron J later observed in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 336–7 (see also 5.13), this third category is wide enough to include state courts and territory courts. Second, Gaudron J’s conclusion is reinforced by the fact that territory courts ultimately owe their existence to the Acts of the federal parliament authorising the administration of the territories. If the Commonwealth cannot enact a law that infringes s 72 of the Constitution, then how could it enact a law authorising a territory to do so? Third, Spratt v Hermes created a conundrum relating to appeals from territory courts. If territory courts were entirely a creature of the Commonwealth’s ‘plenary’ power under s 122, and exercised ‘territory’ jurisdiction rather than federal jurisdiction, then could the parliament restrict appeals from the supreme courts of the territories to the High Court? After Spratt v Hermes this last question was raised and resolved in the affirmative in Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591. Capital TV had been convicted by the Australian Capital Territory Court of Petty Sessions for contravening an Australian Capital Territory leases ordinance. An appeal to [page 485] the Supreme Court of the Australian Capital Territory was dismissed.

Capital TV appealed to the High Court on the ground that the Supreme Court of the Australian Capital Territory, which was created by an Act of the Commonwealth Parliament, was a federal court within ss 71 and 73. Accordingly, they argued, they had an appeal as of right under s 73 (this case was decided before the ‘special leave’ requirement was introduced, as to which see 20.7 and 20.23). The court applied Spratt v Hermes (1965) 114 CLR 226 and concluded that the Supreme Court of the Australian Capital Territory was not a federal court, but a territory court set up under s 122. As a result, there was no appeal as of right to the High Court (such appeals are now contemplated by provisions of the Judiciary Act 1903 (Cth), which imposes a requirement for special leave to appeal that is functionally identical to that applied by the High Court to appeals from state and federal courts): see 20.23. 19.14 Spratt v Hermes was applied, though not with great enthusiasm, in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 (see also 5.13). Eastman had been convicted of murder in the Australian Capital Territory by a Supreme Court judge (a retired New South Wales Supreme Court judge) who had been appointed for a short period of time on an ‘acting’ basis. It was argued (at 324) that: The Court is one of the ‘other federal courts … the Parliament creates’ within s 71 of the Constitution and is one of the ‘other courts created by the Parliament’ within s 72. That is so as a matter of ordinary language. The Court was created by the Australian Capital Territory Supreme Court Act 1933 (Cth), pursuant to s 122 of the Constitution. Section 72 applies to courts established by the Parliament under any available head of power … The Australian Capital Territory Supreme Court Act was not repealed and re-enacted as a Territory statute. The Court remains established by the Parliament … Alternatively, even if the Court is now to be seen as established by the Assembly, it remains created by the Parliament within s 72 of the Constitution, as the Assembly was empowered to establish the Court by laws of the Parliament which the Parliament retains power to revoke or alter. Any court established to administer justice in a territory, whether established directly by a Commonwealth Act or by an enactment of a territory legislature, exists by force of an enactment of the Parliament. The Territory

is part of the Commonwealth. There is no basis to read s 72 down as not including territory courts nor for Ch III protections not to apply in territories.

Accordingly, Eastman sought a writ of habeas corpus on the basis that his conviction was ordered by a judge whose appointment contravened s 72. A majority applied Spratt v Hermes: at 333 per Gleeson CJ, McHugh and Callinan JJ; at 340 per Gaudron J (who admitted some reluctance in doing so); at 349 per Gummow and Hayne JJ (who proposed a new approach and would confine the case to its facts). Kirby J dissented at 383, and considered that Spratt should be overruled. Gaudron J expressed her difficulties with the reasoning in Spratt (and also Capital TV) when her Honour noted at (336–7): As a matter of ordinary language, the words ‘created by the Parliament’ in s 72 are apt to include a court created by the Parliament pursuant to s 122. This notwithstanding, it was held by this Court in Spratt v Hermes and later affirmed in Capital TV and Appliances Pty Ltd v Falconer that the words ‘created by the Parliament’ do not refer

[page 486] to courts created under s 122. Those decisions and other decisions of this Court with respect to the relationship between s 122 and Ch III of the Constitution, in which s 72 is found, have not produced ‘a coherent body of doctrine’… In particular, the decisions with respect to the relationship between s 122 and Ch III give rise to difficulties in connection with this Court’s jurisdiction to entertain appeals from the decisions of courts created pursuant to s 122 if, as has been held, those courts are neither federal courts nor courts exercising federal jurisdiction. That is because s 73(ii) relevantly confers jurisdiction only with respect to appeals from ‘[another] federal court, or court exercising federal jurisdiction; or … the Supreme Court of [a] State’. To some extent, the problems associated with this Court’s jurisdiction to hear appeals from courts created or sustained by s 122 have been alleviated by decisions holding that the Parliament may, pursuant to that section, confer jurisdiction on this Court to hear appeals from those courts. However, it is difficult to reconcile those decisions with the exclusive and exhaustive nature of the provisions of Ch III … Given that difficulty and given, also, the critically important role assigned to the judicature by the

Constitution, I would grant leave, if leave is necessary, to re-open Spratt v Hermes …

Gleeson CJ, McHugh and Callinan JJ provided a more pragmatic rationale for applying Spratt v Hermes (at 331): Underlying the arguments advanced on behalf of the applicant is a problem of interpretation of the Constitution which has vexed judges and commentators since the earliest days of Federation. It involves ‘a notoriously technical and difficult branch of Australian constitutional law’. It concerns the relationship between various provisions of Ch III of the Constitution, and s 122, which confers upon the parliament a general power to make laws for the government of Territories (which includes a power to set up Territory courts). One of the reasons for the difficulty in giving the relevant provisions a meaning which achieves internal consistency, and at the same time accommodates the realities of government and administration with which the Constitution must deal, is the disparate nature of Territories. Some (such as the ACT, the Northern Territory, and the Jervis Bay Territory) are internal. Others (such as Norfolk Island, the Coral Sea Islands, the Australian Antarctic Territory, the Ashmore and Cartier Islands, the Cocos (Keeling) Islands, Christmas Island, and the Heard and McDonald Islands) are external. The Northern Territory has already obtained a substantial measure of responsible government. There is a view that the ACT, by reason of certain provisions of the Constitution, can never become a State. There have been various circumstances in which external Territories have come to be under the authority of the Commonwealth. In R v Bernasconi, for example, Isaacs J referred to ‘recently conquered territories’ with German and Polynesian populations. The Territories have been, still are, and will probably continue to be, greatly different in size, population, and development. Yet they are all dealt with, compendiously and briefly, in s 122.

19.15 The principle in Capital TV (see 19.13) has been isolated. Northern Territory v GPAO (1999) 196 CLR 553 concerned a custody dispute between the father and the mother of an ex-nuptial child. The mother alleged that the father had sexually abused the child, and commenced proceedings in the Darwin Registry of the Family Court of Australia to give her sole guardianship of the child and to discharge previous orders granting access to the father. The father made an application to the Registrar of the Family Court that a subpoena be issued to the [page 487]

manager of the Child and Family Protective Services unit of the Northern Territory Health Services Department to require him to produce to the court all files relating to the child. Under s 97(3) of the Community Welfare Act (NT), child protection officers were not required to answer a subpoena to provide the Family Court with information relating to a child custody dispute; such disclosure was prohibited. Section 79 of the Judiciary Act 1903 (Cth) provided that the laws of each state or territory, including the laws relating to procedure, evidence, and the competency of witnesses, should, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that state or territory in all cases to which they were applicable. Was the Family Court exercising federal jurisdiction in Darwin, thereby requiring it to apply Northern Territory law, which was ‘picked up’ under s 79 of the Judiciary Act? The court held by majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting) that s 97(3) of the Community Welfare Act (NT), in its operation with respect to the subpoena, was not rendered inoperative by the Family Law Act 1975 (Cth) or the Evidence Act 1995 (Cth). This aspect of the judgment is considered further at 21.36. Gleeson CJ, Gaudron, Gummow and Hayne JJ (McHugh and Callinan JJ contra) also held that s 97(3) was binding on the Family Court by operation of s 79 of the Judiciary Act because the Family Court in Darwin was exercising federal jurisdiction. Gleeson CJ and Gummow J explained this conclusion as follows (at 592): It is important to identify those issues which are not now before the Court … The Family Court is clearly a ‘federal court’ and not a ‘territory court’. No issue arises as to whether s 122 of the Constitution authorises laws creating ‘territory courts’ which are not federal courts created under s 71 but upon which the Parliament may confer federal jurisdiction … Nor is it necessary to embark upon the question whether s 122 supports the conferral upon a federal court of a jurisdiction which is not federal jurisdiction. Finally, this case does not concern the appellate jurisdiction of the High

Court, in particular any re-examination of the determination in Capital TV and Appliances Pty Ltd v Falconer that (a) a ‘territory court’ is not a federal court or a court exercising federal jurisdiction within the meaning of s 73 of the Constitution but (b) the Parliament may authorise an appeal to the High Court from a court created in exercise of the power in s 122.

19.16 Was the effect of Spratt v Hermes, which was applied in Eastman, to exterminate the principle of judicial independence in the territories? The issue emerged in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 (see also 5.14). The North Australian Aboriginal Legal Aid Service (NAALAS) challenged the constitutional validity of the appointment of the Chief Magistrate of the Northern Territory. Bradley was appointed to the position until retirement age, but with remuneration for a two-year period only, including an extra amount accounting for forgone superannuation payments in light of Bradley’s advice to the Northern Territory Government that he would only be available for two years, after which time he was likely to retire. This appointment was made in a context in which the Northern Territory Attorney-General, Shane Stone, had previously described Northern Territory magistrates as ‘duds’ and had advanced a proposal at a meeting of the Standing Committee of Attorneys-General (SCAG) that magistrates should be appointed on contract (see Keyzer, 2004). [page 488] NAALAS argued that the two-year special pay deal infringed a requirement implicit in the terms of Ch III of the Constitution that a court capable of exercising the judicial power of the Commonwealth must be, and appear to be, an independent and impartial tribunal. The Chief Magistrate could exercise judicial power of the Commonwealth under s 68 of the Judiciary Act 1903 (Cth), and a judicial officer

capable of exercising judicial power of the Commonwealth should not have been given a remuneration arrangement that contemplated looming dependency on the executive government. This would place the Chief Magistrate in a weakened position, with a reasonable apprehension arising in the mind of the public that the judge may be susceptible to pressure from the government as the end of that remuneration period neared. It was argued that notwithstanding the jurisprudence of s 72 relating to judicial tenure and territory judges, such an arrangement is repugnant to s 71 of the Constitution because it affects the institutional capacity of a judge capable of exercising federal jurisdiction to make impartial decisions. NAALAS contrasted the approach that had been taken to Bradley’s appointment to the approach that was typically taken when judges were appointed. Judges ordinarily have their remuneration set by an independent tribunal in a public process. Remuneration determinations are ‘open’; that is, a judge is appointed with a remuneration package with a commencement date, but with no completion date (‘from 1 January 2010 Justice X shall receive Y’). A ‘closed’ remuneration determination (‘from 1 January 2008 to 1 January 2010 Justice X shall receive Y’) might give rise to the spectre of Justice X having to sue the executive government to ensure continuation of their remuneration until retirement. It might also create a reasonable apprehension that Justice X might tailor his or her judgments to suit the government as the period of remuneration reaches its conclusion, in order to ensure a favourable remuneration determination. Bradley’s initial appointment involved a ‘closed’ determination, which was replaced with an open determination after Shane Stone resigned, as his replacement, Denis Burke, believed, ironically enough, that the initial arrangement compromised judicial independence. The Northern Territory argued that the first determination, having been superseded by an open determination,

ensured that Bradley was not dependent on the executive government for the continuation of his remuneration, and therefore there was no constitutional defect in the appointment. NAALAS argued that the vice of the appointment was not cured by the second remuneration determination. The appointment was infected, and this infection could not be ‘cured’ by the Northern Territory’s subsequent attempt to ‘fix’ it. The case commenced in 2000 in the Supreme Court of the Northern Territory, when the application was met with a ‘strike out’ application by the Northern Territory Government (an application brought by a litigant alleging that the argument mounted by their opponent is doomed to fail). The Supreme Court struck out the NAALAS claim on the basis that the principle of judicial independence does not apply in the Northern Territory. An appeal from the strike out application succeeded in the Northern Territory Court of Appeal and in the High Court where it was argued that it was arguable that the principle in Kable v DPP (NSW) (1996) 189 CLR 51 (explored further momentarily) might apply in the territories to ensure that territory judges capable of exercising [page 489] federal jurisdiction had certain irreducible minimum guarantees of judicial independence (Keyzer, 2004). The case went to trial in the Federal Court and the argument was rejected by the Federal Court and by a majority of the Full Federal Court ((2002) 192 ALR 701 at 727– 31). Ultimately, the High Court dismissed the NAALAS appeal. However, no costs were ordered as McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ accepted the NAALAS argument that ‘it is implicit in the terms of Ch III of the

Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal’: at 163. While the plurality upheld the NAALAS legal argument, they said that the independence and impartiality of the Chief Magistrate would not be offended where remuneration was continuously provided (at 163): Counsel for the Legal Aid Service put an argument in three steps. The first is that a court of the Territory may exercise the judicial power of the Commonwealth pursuant to investment by laws made by the Parliament. That proposition, to which there was no demurrer by the Territory or by the Attorney-General of the Commonwealth who intervened in this Court, is supported by … authority … It should be accepted. The second step in the Legal Aid Service’s argument is that it is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal. That proposition … also should be accepted. The difficulty arises with the third step. This requires discernment of the relevant minimum characteristic of an independent and impartial tribunal exercising the jurisdiction of the courts over which the Chief Magistrate presides. No exhaustive statement of what constitutes that minimum in all cases is possible. However, the Legal Aid Service refers in particular to the statement by McHugh J in Kable that the boundary of legislative power, in the present case that of the Territory: is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the [Territory] court as an institution was not free of government influence in administering the judicial functions invested in the court. Much then turns upon the permitted minimum criteria for the appearance of impartiality…

Later in their judgment, the plurality turned to the facts (at 170): … the appointment would, unless Mr Bradley earlier resigned under s 8 of the Magistrates Act, continue for many years, until Mr Bradley attained the age of 65 years (s 7). Yet, the 1998 Determination would have expired long before that event, on 8 March 2000. It is here that the Legal Aid Service contends a fatal deficiency is exposed, an impermissible hiatus. But the phrase ‘from time to time’ (referring to remuneration determinations under the Magistrates Act) is not to be read as permitting the Administrator to fail to exercise the

power under s 6 where that failure would produce an hiatus where no determination was in operation. A construction which permitted such a state of affairs would place the officeholder at the favour of the executive government respecting a basic attribute of the judicial independence the legislation was designed to promote. However, as already has been indicated, the 1999 Determinations preceded the end

[page 490] of the initial two year period covered by the 1998 Determination. There was no such hiatus. Upon the proper construction of s 6, none was contemplated or provided for by that section.

19.17 In the NAALAS case the plurality indicated that they were not then concerned with ‘a series of acting rather than full appointments which is so extensive as to distort the character of the court concerned’. This comment provided an insight into the court’s concerns about the practice of appointing ‘acting judges’. In New South Wales in particular, it had become common to appoint retired judges to judicial office for short periods of time, ostensibly to clear case backlogs. The question whether the appointment of ‘acting judges’ infringes the independence and impartiality principle arose for consideration in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45. Foster AJ was an acting judge of the New South Wales Supreme Court. He had been appointed to the Supreme Court for four successive 12-month periods from 1999 to 2002. In the third of these periods, Foster AJ heard the Forge proceedings, and in the fourth period he delivered his judgment. The applicants, referring to the comment of the plurality in the NAALAS case, argued that the practice of appointing acting judges had become so extensive that the institutional integrity of the court had become impaired. A majority of the court (Kirby J dissenting) rejected the challenge. Gummow, Hayne and Crennan JJ said (at 75–7):

It may be accepted that the constitution and organisation of State courts is a matter for State legislatures. In that sense, the federal Parliament having no power to alter either the constitution or the organisation of a State court, the federal Parliament must take a State court ‘as it finds it’. It does not follow, however, that the description which State legislation may give to a particular body concludes the separate constitutional question of whether that body is a ‘court’ in which federal jurisdiction may be invested. It is only in a ‘court’, as that word is to be understood in the Constitution, that federal jurisdiction may be invested. … Because Ch III requires that there be a body fitting the description ‘the Supreme Court of a State’, it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description … But as is recognised in … North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a ‘court’, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to ‘institutional integrity’ alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies. It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so. An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal. It by no means follows, however, that the only means of securing an independent and impartial Supreme Court is to require that the court is made up of none other than fulltime permanent judges with security of tenure. This proposition, cast in

[page 491] absolute and universal terms, is not fundamentally different from a proposition that a State Supreme Court must be constituted by judges who have the same security of tenure as s 72 of the Constitution provides in respect of the Justices of this Court and of the other courts created by the Parliament. Yet Ch III makes no explicit reference to the appointment, tenure or remuneration of judges of State courts …

Later, the plurality said (at 86–7): There are circumstances, perhaps many circumstances, in which appointing a serving

judge of the Supreme Court of one State to act as a judge of the Supreme Court of another State for a limited time (as, for example, to hear a matter in which the permanent judges of the court would be embarrassed) could, of itself, have no adverse effect on the institutional integrity of the court. It could have no adverse effect on the institutional integrity of the court because the person appointed in the circumstances described would have nothing to gain and nothing to fear. Prospects of permanent appointment or reappointment as an acting judge would be irrelevant. As a serving judge of another court, the appointee would return to the duties of that office when the task in hand had been performed … The appointment of a retired judge of the Federal Court or an interstate Supreme Court in the particular circumstances just described could likewise have no adverse effect on the institutional integrity of the court. It could have no adverse effect because, again, the appointment being made in the unusual circumstances of all (or most) permanent judges being embarrassed, and limited to the hearing of one case, the person appointed would have nothing to gain and nothing to fear from the performance of the task confided in that person. Because the circumstances of appointment are unusual and the appointment is limited, there is no immediate prospect of reappointment.

The plurality said that the point made in Bradley that ‘there may come a point where the series of acting rather than full appointments is so extensive as to distort the character of the court’ (at 87) had not been reached in Forge. Gleeson CJ (with whom Callinan J generally agreed) said that the principle from Kable that ‘courts’ in Ch III must ‘satisfy minimum requirements of independence and impartiality’ was ‘a stable principle, founded on the text of the Constitution’: at 67. But tenure and guaranteed remuneration as required for federal judges by s 72 of the Constitution was not essential for states courts. Heydon J said that the word ‘court’ in Ch III was drafted against the background of that historical practice and ‘contemplates the validity of State legislation permitting the appointment of acting judges’: at 149.

‘Judicial power’ The ‘historical approach’ to the concept of judicial power

19.18 A starting point for the determination of the meaning of the phrase ‘judicial power’ is to consider what the courts thought that phrase included at the time of Federation. The historical approach to ‘judicial power’ was taken and recommended in R v Davison (1954) 90 CLR 353. A federal deputy registrar of bankruptcy issued a sequestration order upon the petition of Davison. It was argued that the consequences of a sequestration order (the taking of possession of a debtor’s property for the payment of debts) indicated that the order involved [page 492] an exercise of judicial power. In particular, it was argued that the making of such an order involved the exercise of judicial power because it would deprive the bankrupt of property and deprive the creditors of rights against the bankrupt. It affected the status of the bankrupt and exposed him to criminal prosecution. It was also argued that the nature of the hearing required, and the considerations that might be taken into account before the making of a sequestration order supported, the conclusion that it involved an exercise of judicial power. A majority of the court agreed (Dixon CJ, McTiernan, Fullagar, Kitto and Taylor JJ; Webb J dissenting). Dixon CJ and McTiernan J said (at 369): In doubtful cases … we employ a historical criterion. We ask whether, at the time our constitutions were adopted, the power in question was exercised by the Crown, by Parliament, or by the judges. Unless analysis compels us to say in a given case that there is a historical anomaly, we are guided by the historical criterion.

The rationale of the approach was provided by Kitto J, who said (at 382): … where the Parliament makes a general law which needs specified action to be taken

to bring about its application in particular cases, and the question arises whether the Constitution requires that the power to take that action shall be committed to the judiciary to the exclusion of the executive, or to the executive to the exclusion of the judiciary, the answer may often be found by considering how similar or comparable powers were in fact treated in this country at the time when the Constitution was prepared. Where the action to be taken is of a kind which had come by 1900 to be so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system, the conclusion, it seems to me, is inevitable that the power to take that action is within the concept of judicial power as the framers of the Constitution must be taken to have understood it.

Kitto J concluded that the power to make a sequestration order was an ‘established branch of judicial activity’ in 1900. It involved a curial proceeding, the exclusion of legally inadmissible evidence and the application of legal, not policy, principles: at 382–3. 19.19 An historical approach is not determinative. This was recognised in R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1. The case concerned a power vested in the Federal Registrar of Trade Marks, a non-judicial officer, to remove trade marks from the register on the application of a ‘person aggrieved’. It was submitted that the removal of a trade mark was an exercise of judicial power on a number of grounds, including the ground that the destruction and withdrawal of industrial property rights was historically treated as an exercise of judicial power. Jacobs J, with whom the rest of the members of the court agreed, said (at 11–12): The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example. But there are a multitude of such instances. One of them has been

[page 493]

held to be the determination of a status of a person whereby the right to recover money owing by that person is barred: R v Davison (1954) 90 CLR 353. On the other hand the course of legislation in comparatively recent times does not, in itself, provide a foundation for the historical approach. If the legislation requires the exercise of a power to determine questions the determination of which will affect what are traditionally regarded as basic legal rights, the judicial nature of the power springs from the effect which the exercise of the decision-making function under the legislation will have on legal rights rather than from the history of similar legislation reposing the function in a judicial tribunal.

Jacobs J then considered the effect of a decision by the Registrar to remove a trade mark from the register (at 12): The right to have a trade mark remain upon a register is not such a right as I have described. It is true that certain consequential rights flow from registration … but they are of a very limited kind. Registration is not itself conclusive of the right to the exclusive use of a trade mark. The original registration must have been a valid registration before the right to exclusive use can be maintained because the register may be rectified by a court at any time (s 22) …

The supervisory jurisdiction of a court was not excluded by the relevant legislation. Accordingly, the Registrar had not usurped the judicial power to declare, as a matter of law, whether a trade mark had been validly registered. 19.20 In Quinn’s case, Jacobs J acknowledged that ‘the judicial nature’ of a power can spring ‘from the effect which the exercise of the decision-making function under the legislation will have on legal rights rather than from the history of similar legislation’: at 12. In light of the increasing distance between Federation and today, and the increasing volume and variety of federal legislation, it will therefore ordinarily be necessary to supplement an historical approach to the question, ‘What is judicial power?’ (in cases where there are no useful precedents), with an approach that analyses the effect of the power exercised. The authority for this approach to ‘judicial power’ is Huddart, Parker Pty Ltd v Moorehead (1909) 8 CLR 330. That case concerned the constitutional validity of provisions of the Australian Industries

Preservation Act 1906 (Cth). The Act provided that where the Comptroller-General of Customs, a Commonwealth public servant, believed that an offence had been committed, he or she could require corporations to answer questions and produce documents in relation to the alleged offence and to impose (though not enforce) a penalty in default. These provisions were challenged on a number of grounds, including on the basis that they purported to vest judicial powers in a non-judicial body. The court disagreed, concluding that the power was incidental to the administration of the Act. Griffith CJ, with whom Barton and Higgins JJ agreed, defined judicial power in the following terms (at 357–8): I am of the opinion that 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 a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

[page 494] With regard to the argument that, since it is the general practice to entrust the interrogation of witnesses to judicial tribunals, that function must be regarded as an exercise of judicial power, I think that both the premises and the inference are faulty. Many such interrogations are no doubt so entrusted, but many others, relating to matters of administration, are entrusted to other authorities. And I have already shown that in the most nearly analogous case the function, although entrusted to persons who for other purposes exercise judicial functions, is not regarded as itself an exercise of such functions.

Judicial power, then, involves a ‘binding and authoritative decision’ on a matter involving ‘rights’. Implicit in Griffith CJ’s description of judicial power is its ‘fundamental character as a sovereign or governmental power exercisable, on application, independently of the

consent of those whose legal rights or legal obligations are determined by its exercise’ (TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at [28] and [75]). It is by nature coercive. Thus, the exercise of arbitral authority based on the voluntary agreement of two or more parties to submit their differences or disputes to a third party for decision is not an exercise of judicial power: at [29], [75]. Griffith CJ’s statement gives rise to a number of questions: What is a binding decision? What makes a decision authoritative? What is entailed in a determination of rights? 19.21 Non-judicial tribunals can adjudicate disputes relating to legal rights and obligations arising from the operation of the law upon past events or conduct, but the power to make a binding decision is an exclusively judicial power. The word ‘binding’ has a specific meaning in this context, referring to the enforceability of the decision. The principle that only a court exercising judicial power can make a legally enforceable decision was confirmed in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. In that case, the commission was given the power to register its determinations in the Federal Court. Determinations would take effect as a judgment of that court in the event that they were not reviewed by way of application by the respondent to the proceedings within a prescribed period of time. The High Court upheld a challenge to these provisions on the basis that the enforcement of legal decisions was an essential characteristic of judicial power, and that the provisions were invalid because they purported to give a registered determination effect as if it were an order made by the Federal Court. Mason CJ, Brennan and Toohey JJ said (at 258): Although many decision-making functions may take their character as an exercise of judicial, executive or legislative power from their legislative setting, the character of the decision-maker and the nature of the decision-making process, some decisionmaking functions are exclusive and inalienable exercises of judicial power (R v Davison

(1954) 90 CLR 353 at 368–70, per Dixon CJ and McTiernan J). As Dixon CJ and McTiernan J observed in R v Davison (at 369): The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss 71 and 72 of the Constitution. In that statement, the expression ‘judicial determination’ means an authoritative determination by means of the judicial method, that is,

[page 495] an enforceable decision reached by applying the relevant principles of law to the facts as found.

Deane, Dawson, Gaudron and McHugh JJ agreed (at 268): … there is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power.

19.22 In Attorney-General (Cth) v Breckler (1999) 197 CLR 83 the High Court considered the validity of provisions empowering the Superannuation Complaints Tribunal to arbitrate a dispute using procedures and criteria settled in a trust deed. It was argued that this procedure offended the Brandy principle by conferring judicial power to enforce rights on the tribunal. As Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ explained (at 110): In Brandy … the mere registration in the Federal Court of the determination by the Commission gave it the effect of an order of the court. Registration, an administrative act, converted a non-binding administrative determination into … a binding, authoritative and curially enforceable determination. It followed that the legislation which so provided contravened Ch III.

However, the scheme in Breckler did not offend the Brandy principle because the deed had been agreed between the trustees and the members of the plan, because the trustees had previously elected to adopt the relevant procedures and the determination of the Tribunal

was merely a ‘factum by reference to which’ the law operated to confer rights and liabilities which could later be enforced in court. Tribunal decisions could also be subjected to collateral challenge in court. Consequently the Superannuation Complaints Tribunal was not making a ‘binding’ decision, in the relevant sense. 19.23 Similarly, in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533, the High Court unanimously rejected a challenge to the validity of s 16 of the International Arbitration Act 1974 (Cth) which gave the force of law in Australia to the UNCITRAL Model Law on International Commercial Arbitration (‘the Model Law’). TCL Air Conditioner (Zhongshan) Co Ltd and Castel Electronics Pty Ltd entered into a written distribution agreement that provided for disputes between them to be submitted to arbitration in Australia. Two awards were made in favour of Castel, one requiring TCL to pay in excess of $3m and another requiring it to pay costs exceeding $700,000. Castel applied to the Federal Court to have the awards enforced under Art 35 of the Model Law, and TCL applied to have the awards set aside under Art 34. Article 36 of the Model Law sets out the only grounds on which, relevantly, a court may refuse to enforce an award. They do not include error of law, whether or not apparent on the face of the award. TCL challenged the validity of s 16 of the Act, arguing, relevantly, that it impermissibly vested the judicial power of the Commonwealth in arbitral tribunals because the enforcement provisions, Arts 35 and 36, of the Act — by denying the Federal Court power to review an award for error of law — rendered an arbitral award ‘determinative’ ([57], [67]) or, as French CJ and Gageler J put it, gave the ‘arbitral tribunal the last word on the law applied in deciding the dispute submitted to arbitration’: at [4].

[page 496] The High Court, in two separate judgments, distinguished the power of ‘private arbitration’ from judicial power (see 19.2). The determination of a dispute by an arbitrator does not involve the exercise of ‘the sovereign power of the State to determine or decide controversies’: at [107]; see also at [29]. The foundation of the arbitrator’s authority is the agreement of the parties (at [31], [106]), and to conclude that an award is ‘final and conclusive does no more than reflect the consequences of the parties having agreed to submit a dispute of the relevant kind to arbitration’: at [108]. TCL’s argument wrongly assumed that the rights and liabilities that were in dispute in the arbitration continued ‘despite the making of an award’: at [80]. Parties who submit a claim to arbitration confer on the arbitrator the authority to conclusively determine their claim. The arbitral award extinguishes a party’s original cause of action for breach of a right and ‘imposes new obligations on the parties in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration’: at [78], [108]; see also at [9]. When a party enforces an award by curial process, the obligations the parties seek to enforce are those ‘created by the award in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration’: at [79]. At this point — the enforcement of the obligations imposed, and rights created, by the arbitral award — judicial power is engaged: at [32]–[33], [79]. The court in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 said that judicial power is characterised by the power to make an authoritative decision on a question raised in a controversy relating to life, liberty or property. The word ‘authoritative’, like the word ‘binding’, has a special meaning in this context, meaning ‘conclusive’. Only a court can make a conclusive determination of law.

While the power of enforcement is exclusive to courts, the power to make conclusive determinations of legal rights does not preclude nonCh III bodies from making decisions which affect legal rights, or even from making decisions based on their opinion as to the applicability of laws to facts. But any legislative scheme which enables non-Ch III bodies to determine legal rights must not give the body a power to make conclusive decisions; that is, decisions from which no appeal lies. These principles were confirmed in Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530. The case concerned the constitutional validity of federal legislation which set up a Taxation Board of Review with the power to determine questions of fact and law arising from taxation determinations. It was argued that this usurped the exclusive judicial power to determine questions of law. The High Court rejected this argument on the basis that, by retaining a right to appeal to a Ch III court on a question of law, the scheme respected the separation of judicial power and the exclusive power of Ch III courts to make authoritative, in the sense of ‘conclusive’, decisions. The Privy Council stated that the ‘convincing distinction’ between the Taxation Board of Review and the court was the court’s power on appeal to make a ‘final and conclusive’ decision (at 543–4): It is only the decision of the court which, in respect of an assessment, is now made final and conclusive on all parties — a convincing distinction, as it seems to their Lordships, between a ‘decision’ of the Board and a ‘decision’ of the court. The

[page 497] authorities are clear to show that there are tribunals with many of the trappings of a court which, nevertheless, are not courts in the strict sense of exercising judicial power. It is conceded in the present case that the Commissioner himself exercised no judicial power. The exercise of such power in connection with an assessment commenced, it

was said, with the Board of Review, which was in truth a court. In that connection it may be useful to enumerate some negative propositions on this subject: (1) A tribunal is not necessarily a court in this strict sense because it gives a final decision; (2) nor because it hears witnesses on oath; (3) nor because two or more contending parties appear before it between whom it has to decide; (4) nor because it gives decisions which affect the rights of subjects; (5) nor because there is an appeal to a court; (6) nor because it is a body to which a matter is referred by another body … Their Lordships are of opinion that it is not impossible under the Australian Constitution for Parliament to provide that the fixing of assessments shall rest with an administrative officer, subject to review, if the taxpayer prefers, either by another administrative body, or by a court strictly so called, or, to put it more briefly, to say to the taxpayer ‘If you want to have the assessment reviewed judicially, go to the court; if you want to have it reviewed by business men, go to the Board of Review’.

Their Lordships also stated (at 545) that: [A]n administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a court, strictly so-called.

19.24 As indicated at 19.20, only a Ch III court can make a binding and authoritative decision determining controversies where the rights relate to life, liberty or property: Huddart, Parker Pty Ltd v Moorehead (1909) 8 CLR 330 at 357. In more recent decisions the court has used the shorthand expression ‘questions of law’ to define the type of questions with which judicial power is concerned. Non-Ch III bodies are entitled to form opinions as to the effect of the law, and may even base their decisions on these opinions, but must not usurp the role of Ch III courts to make binding and conclusive determinations of questions of law. An opinion is permissible but a conclusive determination is not. An illustration of this distinction is provided by Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140. The case concerned the nature of the power of the Coal Industry Tribunal to make industrial awards. The question here was whether Cram, constituting the Coal Industry Authority, had exercised judicial power of the Commonwealth by purporting to hear and determine an application for the interpretation and enforcement of two federal awards and, in particular, to

determine a claim for wages owing. The court confirmed that tribunals were entitled to form views and opinions with respect to matters of interpretation without having exercised judicial power in having done so. But the making of binding and conclusive determinations of legal rights constituted judicial power, and by determining the claim for wages owing ‘as a matter of legal right’, the court (Mason CJ, Brennan, Deane, Dawson and Toohey JJ; Wilson and Gaudron JJ dissenting) concluded that the tribunal had exercised judicial power (at 148–9): A claim for the payment of wages due and payable by an employer to an employee is a claim for the enforcement of an existing legal right. Likewise, a claim for the enforcement of a provision in an award for the payment of wages to an employee is also a claim for the enforcement of an existing legal right. Claims for the enforcement

[page 498] of existing legal rights necessarily invoke the exercise of judicial power. As the judicial power of the Commonwealth is reposed by s 71 of the Constitution in Ch III Courts, an Authority is necessarily without jurisdiction to hear and determine claims of the kind already mentioned to the extent to which the right sought to be enforced arises under federal law … The result is that the Authority had no jurisdiction to determine or enforce a legal right to payment of wages on the part of employees in respect of a past period during which they had been stood down or refused work or to enforce the provisions of an award regulating the right to payment of wages of employees for such a period … What this principle relevantly denies to the Authority is the power of judicial determination which includes, to use the words of Kitto J in Aberdare Collieries … ‘the giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct’. The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power … Indeed, a tribunal may find it necessary to form an opinion as to the

existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties … Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights [references omitted].

19.25 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 is a further illustration of the distinction between the formation of an opinion concerning a legal question, and a conclusive determination of a legal question. Today FM (Sydney) Pty Ltd (Today FM) held a licence under the Broadcasting Services Act 1992 (Cth) to provide commercial radio broadcasting services in Australia subject, relevantly, to a condition that it not use the broadcasting service in the commission of an offence against another Commonwealth Act or a law of a state or territory (the licence condition). Breach of the licence condition could have a number of consequences, including, for example, suspension or cancellation of the licence: at [11]. Under the Broadcasting Services Act, the Australian Communications and Media Authority can conduct investigations: at [10]. It investigated Today FM to ascertain whether it had breached the license condition by, relevantly, publishing or communicating to any person, a private conversation that had come to its knowledge ‘as a direct or indirect result of the use of a listening device’ contrary to s 11(1) of the Surveillance Devices Act 2007 (NSW). On 4 December 2012, it recorded a telephone conversation between two presenters of its Summer 30 program and two members of staff at the King Edward VII Hospital in London where the Duchess of Cambridge was an inpatient. The presenters inquired about the Duchess, misrepresenting themselves as Queen Elizabeth II and Prince Charles. One of the hospital staff apparently accepted the callers as genuine and provided some information about the Duchess’ condition. Today FM broadcast the recording later that day. The Authority found, in its preliminary investigation report, that Today FM had contravened s 11(1) of the

Surveillance Devices Act, and, consequently, breached the licence condition. [page 499] Today FM argued, unsuccessfully at first instance but successfully on appeal to the Full Court of the Federal Court, that the Broadcasting Services Act did not authorise the Authority to find that it had breached the licence condition unless a court had first decided that it had committed the Surveillance Devices Act offence. The Full Court found in favour of Today FM on this question of construction holding that: 20 … absent clear language, the legislature is not to be taken to have intended to confer upon the Authority to make an administrative determination or finding of the commission of a criminal offence.

Accordingly, it was unnecessary for the Full Court to deal with a submission (put unsuccessfully at first instance) that if the Broadcasting Services Act did confer on the Authority a power to find that Today FM had committed an offence, the conferral of the power was contrary to Ch III of the Constitution because, properly characterised, the power was judicial and thus could only be conferred on a court. The High Court reversed the Full Court’s decision on the question of statutory construction. Thus, the constitutional question arose for decision. In argument in the High Court, Today FM acknowledged that ‘it is open to an administrative body to form an opinion as to the legal rights of an individual as a step in that body’s ultimate determination’, and that this does not involve exercising judicial power: at [55]. It argued, though, that the power in issue in this case

was distinguished by a ‘special compelling feature’, the power under s 143 of the Act to suspend or cancel a commercial broadcasting licence after finding, relevantly, that an offence had been committed: at [56]. The finding, Today FM argued, was ‘the essential step to the imposition of what [was] said to be a penalty’: at [56]. The court unanimously dismissed Today FM’s challenge. The plurality reasoned: 58 … The finding that Today FM’s broadcasting service was used in the commission of an offence does not resolve a controversy respecting pre-existing rights or obligations. It is a step in the determination of breach of the cl 8(1)(g) licence condition and is the foundation for the Authority to institute civil penalty proceedings in the Federal Court of Australia or to take administrative enforcement measures, including imposing further conditions on Today FM’s licence, accepting an enforceable undertaking, issuing a remedial direction, or suspending or cancelling Today FM’s licence.

Similarly, Gageler J reasoned: 80 The Authority would need to satisfy itself that there was or had been conduct constituting the commission of an offence within the scope of cl 8(1)(g) as an element of satisfying itself that it had power to cancel or suspend the licence by reference to s 143(1). That is because the fact of breach of a licence condition is, for the purpose of s 143(1), a ‘jurisdictional fact’ in the sense that it is a fact which must exist as a precondition to the valid exercise of the discretion of the Authority to cancel or suspend a licence. But the Authority’s own view that there was or had been conduct constituting the commission of an offence within the scope of cl 8(1)(g) would have no operative legal effect. The objective existence of that fact could be conclusively determined for legal purposes only by a decision of a court. Were the validity of the Authority’s purported cancellation or suspension of a licence under s 143(1)(b) to be the subject of judicial review, it would thereafter be for the Ch III court undertaking that review to be satisfied for itself whether or not the licence condition had been breached.

[page 500] 81 The applicant for judicial review would ordinarily have the burden of proving that the licence condition had not been breached in order to establish invalidity on the ground that the factual precondition to the exercise of the power conferred on the Authority by s 143(1) did not exist. The gravamen of the constitutional argument as

presented orally on behalf of Today FM in this court was to focus on that ordinary forensic burden. The argument was that it would operate to render the Authority’s own view that the licence condition had been breached close to conclusive in practice. It would not. The Authority’s own view would remain just that; it would bind no one and conclude nothing. The constitutional character of the authority’s cancellation or suspension of the licence would remain that of administrative action.

19.26 The power of non-judicial tribunals to ascertain facts and to take jurisdiction over facts in the course of administrative decisionmaking will not usurp judicial power so long as fact-finding is susceptible to judicial review. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 the court held that the power of the Trade Practices Tribunal to identify a restrictive or deceptive trade practice or agreement and make a determination whether the practice or agreement was contrary to the public interest did not involve an exercise of judicial power of the Commonwealth (Kitto, Windeyer, Owen and Walsh JJ; McTiernan J agreeing on other grounds; Menzies J dissenting). Windeyer J, after a thorough review of the doctrine of the separation of powers, said (at 398): … it would be wrong to suppose that every person who is by the Commonwealth appointed to adjudicate upon a matter exercises the judicial power of the Commonwealth. Duties of adjudication may be incidental to administrative tasks which are performed as part of the executive power of government.

The performance of an administrative task ‘in a judicial manner’ — that is, through the application of law to facts — does not necessarily usurp judicial power. Windeyer J continued (at 399): A decision on the jurisdictional fact is a preliminary to the determination and adjudication upon it is an exercise of the judicial power. In my opinion, deciding whether or not a fact exists on which jurisdiction depends is not an exercise of the judicial power unless the jurisdiction dependent upon the decision is itself an exercise of judicial power, not an administrative jurisdiction. In other words, an incidental and preliminary inquiry takes its character, for relevant purposes, from the character of the jurisdiction of which it is a phase.

19.27 The ambit of judicial power to review determinations of fact by non-judicial tribunals was considered in Rola Company (Australia)

Pty Ltd v Commonwealth (1944) 69 CLR 185. The case concerned the Women’s Employment Board, which was set up under federal law and given the power to decide whether women could be employed in certain types of work, and the conditions of their employment. Board decisions were to have the effect of an award or order of the Commonwealth Court of Conciliation and Arbitration after they were filed with that court. A federal regulation authorised committees of reference to determine questions of fact in relation to board decisions — how many employees engaged in which type of activities and the like. The determinations of fact made by the board purported to be binding. The board’s power to make binding determinations of fact was challenged on the basis that the questions for determination dealt with issues that were identical to [page 501] the questions which a court might have to decide on a prosecution of an employer for failure to comply with a decision of the board. Accordingly, in purporting to make a final determination on matters of fact, the committee was exercising judicial power of the Commonwealth, which could only be exercised by a Ch III court. If the finding of fact resulted in legal liability, this finding would involve the exercise of judicial power. Latham CJ, Starke and McTiernan JJ rejected this argument (Rich and Williams JJ dissented). Starke J said (at 210–11): … administrative authorities have been created for the purpose of ascertaining facts, supplementing the courts, and entrusted with power to make at least initial determinations in matters within, and not outside, ordinary judicial power. The Commissioner of Taxation, Boards of Review under the Income Tax Acts, the Commissioner of Patents, the Registrar of Trade Marks, and so forth, are but a few

illustrations of such administrative authorities. Consequently it is not an exclusive attribute of judicial power that all determinations of fact in matters affecting public or private rights shall be made by some court in which judicial power has been vested. No-one doubts that the ascertainment or determination of facts is part of the judicial process, but that function does not belong exclusively to the judicial power. It is said that if there be no limitation of administrative authority ‘for the investigating and finding of facts’ then the Parliament might ‘completely oust the courts of all determinations of fact by vesting the authority to make them with finality in its own instrumentalities or in the Executive Department’ … Unless, however, the determination of facts is an exclusive attribute of judicial power, then it is a matter for the consideration of the legislative body how and to what extent facts should be submitted to administrative tribunals in aid of or to supplement judicial power [references omitted; emphasis added].

19.28 Only a Ch III court can make a final determination of mixed questions of fact and law. In many cases, the determination of a question of law turns upon the determination of a question of fact. For example, the concept of ‘income’ may have a factual aspect (the quantum of income earned) and a legal aspect (what does the law count as income, as distinct from the total quantum earned). Unsurprisingly in light of the foregoing material, these ‘mixed’ questions of fact and law may only be determined with finality by a Ch III court. This principle was confirmed in British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422. The case concerned the constitutional validity of provisions of federal income tax legislation that created a Taxation Board of Appeal and gave it power to determine appeals from dissatisfied taxpayers (the appeal to the Privy Council, Shell Company of Australia Ltd v FCT (1930) 44 CLR 530, was discussed at 19.23). The board was given the power to determine questions of fact and questions of law, with decisions on questions of fact being final and conclusive, while questions of law could be appealed to the High Court or the Supreme Court of a state. The board’s power to determine questions of law was challenged on the basis that it enabled the exercise of judicial power of the Commonwealth by a non-Ch III body. The court concluded that, insofar as the provisions purported to

vest a power to determine questions of law, even if this determination could be appealed, the provisions were constitutionally invalid in that they purported to vest judicial power of the Commonwealth in a nonCh III court. This finding was overturned on appeal to the Privy Council: Shell Company of Australia Ltd v FCT (1930) [page 502] 44 CLR 530. However, it was confirmed that although a question of fact might also raise a question of law (the quantum of ‘income’ a person might have is related to the legal question how that ‘income’ is to be determined), that could only be determined conclusively by a Ch III court. The effect of the law considered above is that Ch III courts and nonCh III courts can engage in similar tasks. In R v Hegarty; Ex parte Corporation of the City of Salisbury (1981) 147 CLR 617 at 628, Mason J said: It is … recognized that there are functions which may be classified as either judicial or administrative, according to the way in which they are to be exercised. A function may take its character from that of the tribunal in which it is reposed. Thus, if a function is entrusted to a court, it may be inferred that it is to be exercised judicially; it is otherwise if the function be given to a non-judicial tribunal, for then there is ground for the inference that no exercise of judicial power is involved.

As Ch III courts and non-Ch III tribunals may engage in similar tasks, the question whether a power is to be characterised as ‘administrative’ or ‘judicial’ is often a jurisdictional question. As Windeyer J noted in the Tasmanian Breweries case, the characterisation of an activity as ‘administrative’ or ‘judicial’ depends on the character of the jurisdiction of which it forms a phase. This was accepted by a unanimous High Court in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167. The case concerned the validity of provisions of federal

corporations legislation that gave a corporation and securities panel the power to declare certain share acquisitions unacceptable and unlawful under the legislation. It was argued that the power to decide that such transactions were unacceptable, and the power to make discretionary orders to protect the rights or interests of persons affected by such transactions, constituted conduct which involved the exercise of judicial power of the Commonwealth. The Full Court disagreed, making the following comments (at 188–9): … although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power … Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power. It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised … So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power … That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles. Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power [emphasis added].

19.29 Traditionally, the distinction between ‘law’ and ‘policy’ has been invoked as a way of distinguishing the activity of courts and legislatures. So, judicial policy-making has traditionally been regarded as being restricted to the common law, and was otherwise constrained. The legislatures, on the other hand, had unlimited [page 503] policy latitude. So, in Precision Data Holdings Ltd v Wills (1991) 173

CLR 167 at 191 it was suggested that so long as any discretionary authority conferred upon a court: … is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power [emphasis added].

19.30 The extent to which judicial power depends on the application of objective legal standards or tests was a question considered in the earlier case of R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277. That case concerned a provision of federal industrial law which enabled the Commonwealth Industrial Court to make discretionary orders disallowing union rules for unions registered under the law, having regard to particular issues of industrial law and policy. The court was given power to make these orders on its own motion. The power had been conferred on the Commonwealth Industrial Court after the break-up of the Commonwealth Court of Conciliation and Arbitration into a separate court and commission after R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254. In several earlier cases, the power of disallowance was regarded as not constituting part of the judicial power of the Commonwealth. Here, it was argued that to the extent that the court could act of its own motion and might have regard to issues of industrial policy in making its determinations, these powers could not be validly vested in a Ch III court. The Commonwealth argued (at 280) that the functions take on their character in context — that is: … the power itself takes colour from the body to whom parliament entrusts it; if a power of this sort were entrusted to a non-judicial tribunal it would be legitimate, perhaps, to regard it as a non-judicial power; on the other hand, if it were entrusted to a judicial tribunal it would be proper to regard it as a judicial power.

Accordingly, the power, while involving the exercise of discretion

having regard to policy, could be exercised by a judicial body. The court struck down the provision (Dixon CJ, McTiernan, Kitto and Taylor JJ; Williams and Webb JJ dissenting). Dixon CJ noted that the power to commit for contempt involved an exercise of judicial power where a court acted of its own motion, but that contempt was a special case (semble McTiernan J at 292–3; Kitto J at 306; Taylor J at 310–11). Here, the fact that the provisions under challenge gave ‘a complete discretion based wholly on industrial or administrative considerations’ indicated that it was outside judicial power (at 290): … the criteria … are vague and general and give much more the impression of an attempt to afford some guidance in the exercise of what one may call an industrial discretion than to provide a legal standard governing a judicial decision …

Later in his judgment, Dixon CJ remarked (at 291): This does not mean that I regard the question whether rules of an organisation should be quashed as necessarily outside the judicial power of the Commonwealth. On the contrary, in my opinion there is no reason why, if by or under statute the rules of an organisation must conform with certain tests or standards of justice,

[page 504] fairness or propriety, jurisdiction to quash the rules might not be conferred upon a federal judicial court by enactment framed in some form appropriate to s 76(ii) of the Constitution. Nor does it seem to me that the existence of a discretion necessarily takes such a jurisdiction outside judicial power. Of course it must not be an arbitrary discretion; it must be a judicial discretion proceeding upon grounds that are defined and definable, ascertained or ascertainable, and governed accordingly …

McTiernan J agreed that the disallowance of a rule of an industrial organisation was non-judicial in character: at 295. Kitto J referred to the provision at issue and said (at 305–6) that: … [it] seems to me to be an example of a provision which, though it empowers a court to do an act — the disallowing of a rule — which is not insusceptible of a judicial performance, nevertheless is found to mean, on a clear preponderance of considerations, that the function for which it provides is to be performed as an administrative function, with a more elastic technique, and more of an eye to

consequences and industrial policy generally, than could properly be expected of a court …

Taylor J described the discretion as ‘amorphous’ and concluded (at 310) that: … complete appreciation of the wide grounds upon which the power may be exercised must, necessarily involve considerations of industrial policy and, therefore … the provision travels outside any concept of judicial power.

19.31 Similar issues were agitated in R v Spicer; Ex parte Waterside Workers’ Federation of Australia (1957) 100 CLR 312. The case concerned the validity of a provision of federal stevedoring industry law which enabled workers whose membership of an industrial organisation was suspended or cancelled to appeal to the Commonwealth Industrial Court for reinstatement. Dixon CJ, Williams, Kitto and Taylor JJ said (at 317): The validity of (the provision) … depends upon its real nature and meaning. If it is to be interpreted as conferring upon the Commonwealth Industrial Court jurisdiction to hear and determine a matter arising under the law made by the Parliament within the meaning of s 76(ii) of the Constitution, then there is nothing to be said against its constitutional validity. A matter of that description involves a claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature: see Barrett v Opitz (1945) 70 CLR 141 at 166–9; Hooper v Hooper (1955) 91 CLR 529. The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed by some ascertainable tests or standards.

Dixon CJ, Williams, Kitto and Taylor JJ concluded (at 321) that: … the true intent of the legislation is that the exercise of power arising under (the provision) … should be governed by what might broadly be called administrative and industrial considerations and should not be restricted to purely legal criteria.

McTiernan and Webb JJ agreed in separate judgments. 19.32 As Windeyer J stressed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, the nature of a power takes its character from the jurisdiction of which it is a phase. It is the

context of a discretion that makes [page 505] it ‘judicial’ or ‘non-judicial’. In the context of industrial law and policy, the Spicer cases concerned powers and discretions that had been formerly vested in a body exercising both arbitral and judicial powers. It was almost inevitable that some of the powers vested in the court would be thought to be more properly vested in the commission. On the other hand, a discretion that might be criticised as ‘vague’ or ‘general’ might yet properly be vested in a court where the exercise of such a discretion was consistent with the function of a court in determining legal rights. So, for example, in Cominos v Cominos (1972) 127 CLR 588, provisions of federal matrimonial causes legislation vested jurisdiction in state Supreme Courts to make maintenance orders and property settlements at their discretion having regard to what was ‘proper’ and ‘just and equitable in the circumstances’. The court could also make any order ‘which it thinks necessary to make and do justice’. It was argued that an exercise of judicial power required the application of objective standards, and that the discretions vested in the court were manifestly arbitrary. This argument was, not surprisingly, rejected by the court. Walsh J stressed that the discretionary powers enjoyed by the courts were to be determined in the context of the Act and consistently with its objectives (at 593–4): The court is not at liberty (in exercising these discretionary powers) to act upon broad policy considerations, unrelated to the facts of the particular case or to what is adjudged appropriate to the means, interests and needs of the parties to the marriage or the children of the marriage. In considering the powers conferred … it is necessary to have regard to the jurisdiction

which the court has been given to hear and determine matrimonial causes … It is in relation to proceedings of that kind … that the court is empowered … to make orders … Those provisions are to be construed and applied as provisions conferring powers in aid of the exercise of the jurisdiction to hear and determine proceedings for divorce and other forms of substantive matrimonial relief. That being so, it is impossible to maintain that the discretion conferred upon the court is not a judicial discretion or that it is not governed or bounded by any ascertainable test or standard, but is entirely arbitrary in its nature [emphasis added].

It appears that the test is whether the provision confers an uncontrolled discretion such that it is insusceptible of strictly judicial application: R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Shearers’ case) (1960) 103 CLR 368 at 383. As Mason and Murphy JJ remarked in R v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 at 215– 16, there ‘are countless instances of judicial discretion with no specification of the criteria by reference to which they are to be exercised — nevertheless they have been accepted as involving the exercise of judicial power’. See also Sue v Hill (1999) 199 CLR 462 at 486. 19.33 Kirby J reviewed this area of the law in Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 126–7, and offered an incisive analysis of the principles. Kirby J concluded that the ‘questions of policy’ approach is not determinative, but only provides an indicator that the power under review is ‘judicial’: Arguments about provisions for initiating proceedings in a tribunal, the extent to which the tribunal is involved in questions of policy and the manner in which

[page 506] its decisions may be reviewed in a court, can be no more than factors which add weight to a conclusion derived from the application of more critical criteria. This is because particular procedures and functions are frequently found both in courts and in non-court tribunals. A function may be administrative or judicial, depending on the way in which it is to be exercised. Thus courts must frequently apply vague and

indeterminate criteria which involve imprecise conclusions, moral judgments, evaluative assessments and discretionary considerations that are nonetheless proper to their functions as courts. In a particular context the familiar criteria of ‘just and equitable’ may pass muster for an adjudicative tribunal whilst a touchstone of ‘contrary to the public interest’ may be judged inapt to judicial adjudications and more apt to lawmaking. The characterisation of a power as judicial cannot therefore depend only on the use of particular verbal formulae. It must also be derived from: (1) a consideration of what the tribunal in question is authorised to do; (2) whether its functions purport to deprive those affected of access to the courts for the resolution of connected legal controversies; and (3) to what extent the tribunal’s decisions, once made, are directly enforceable, as the orders of courts typically are [references omitted].

19.34 A final basis for distinguishing judicial from non-judicial power relates to the temporal quality of the judicial process; it takes place after the fact. Judicial power is characterised by the conclusive ascertainment of existing rights and obligations. The distinction between decisions relating to existing legal rights and decisions relating to future legal rights (a proper place for the exercise of legislative or executive power) has been propounded as an indicia of judicial power in a number of cases: Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 191. In Precision Data, the High Court (at 191) considered the possibility that Ch III courts might be vested with jurisdiction to make orders creating rights or imposing liabilities: … if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power.

Referring to their comments in the Ranger Uranium case, the court said (at 189–90): The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and

obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration. The Parliament can, if it chooses, legislate with respect to rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities. It is an expedient which is sometimes adopted when Parliament decides to confer upon a court or tribunal a discretionary authority to make orders which create rights or impose liabilities. This legislative technique and its consequences in terms of federal jurisdiction were discussed by Dixon J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett … Leaving aside problems that might arise because of the subject-matter involved or because of some prescribed procedure not in keeping with the judicial process, where a discretionary authority is conferred upon a court and the discretionary authority is to be exercised according

[page 507] to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power … However, where, as here, the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal, in this case the Panel, is entrusted with the exercise of judicial power.

19.35 For these reasons, Ch III courts cannot overrule a decision with prospective effect. Judicial power is characterised by the determination of existing rights under existing law: Rola Company (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 at 203; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 267. It concerns ‘adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct’: R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1964) 37 ALJR 40 at 43. Consequently, in Ha v New South Wales (1997) 189 CLR 465 at 503–4 Brennan CJ, McHugh, Gummow and Kirby JJ said: The court was invited … to overrule the franchise cases prospectively, leaving the

authority of those cases unaffected for a period of 12 months. This court has no power to overrule cases prospectively … Prospective overruling is thus inconsistent with judicial power on the simple ground that the new regime that would be ushered in when the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law. This would be especially so where, as here, non-compliance with a properly impugned statute exposes a person to criminal prosecution.

Rights arising from the separation of judicial power 19.36 In R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 11, Jacobs J, with whom Barwick CJ, Gibbs, Stephen and Mason JJ agreed, said: … we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example. But there are a multitude of such instances.

What ‘basic rights’ was Jacobs J referring to? If the governance of a criminal trial is exclusive to the courts, how far and to what extent can legislatures regulate trials before they breach the separation of judicial power? Legislatures can change statutes applicable in pending legislation 19.37 It is well established that Ch III of the Constitution does not prevent legislatures from changing statutory rights at issue in pending litigation. In Australian Building Construction Employees’ & Builders Labourers’ Federation v Commonwealth (BLF case) (1986) 161 CLR 88, the applicants challenged the

[page 508] constitutional validity of federal legislation cancelling the registration of the federation and excluding the applicants from re-registering under the Conciliation and Arbitration Act 1904 (Cth). It was argued that the legislation was not a law with respect to conciliation and arbitration within s 51(xxxv) and involved an exercise of, or interference with, judicial power of the Commonwealth. The court held that s 51(xxxv) authorised the registration or de-registration of unions and further, that there had been no infringement of judicial power (at 586–7): The plaintiffs’ principal submission was that the Cancellation of Registration Act is invalid because it is an exercise of the judicial power of the Commonwealth or, alternatively, because it involves an interference with the judicial power. The Cancellation of Registration Act, if valid, abrogates the function which would otherwise have been performed by this court in the proceedings pending in the court pursuant to the Federation’s notice of motion for the orders nisi previously mentioned. It is for this reason that the plaintiffs contend that the Cancellation of Registration act is an exercise of judicial power and that it amounts to an interference with this court’s exercise of the power, an exercise which had been invoked by the Federation before that Act became law. It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution: Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action. It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings. Liyanage v The Queen [1967] 1 AC 259 was such a case where the legislation attempted to circumscribe the judicial process on the trial of particular prisoners charged with particular offences on a particular occasion and to affect the way in which judicial discretion as to sentence was to be exercised so as to enhance the punishment of those prisoners.

An attempt to use Kable v DPP (NSW) (1996) 189 CLR 51 (see 19.45) to argue that the abrogation of rights at issue in pending litigation involved an impermissible interference with a Ch III court (here, the

Queensland Court of Appeal) was rejected unanimously in Bachrach (HA) Pty Ltd v Queensland (1998) 195 CLR 547. In Bachrach, the Queensland Parliament enacted special legislation with the purpose of stopping a shopping centre development; legislation which had a necessary impact on pending litigation in the Queensland Court of Appeal. The High Court held that the law did not interfere with the capacity of a Ch III court to exercise judicial power. Quoting the BLF case, the court in Bachrach said (at 563): Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.

Is retrospective criminal legislation contrary to Ch III? 19.38 It has long been held that the Commonwealth Parliament can legislate to impose criminal liability for conduct, with retrospective effect: R v Kidman (1915) 20 CLR 425. However, there are substantial arguments that can be made against such provisions. Is it right or fair that a person could be found guilty for conduct for which there was no criminal liability when the conduct was undertaken? Article 15 of the International Covenant and Civil and Political Rights proscribes [page 509] such provisions. On the other hand, retrospective criminal legislation may help to ensure the punishment of heinous crime. Depending on how you interpret Jacobs J’s remarks in Quinn, it is arguable that such provisions might conflict with the separation of judicial power effected by Ch III. It could be argued that such legislation interferes with ‘the governance of a criminal trial’. In Polyukhovich v Commonwealth (War Crimes Act case) (1991) 172 CLR 501, the High Court was invited to consider the validity of 1988 amendments to the War Crimes Act 1945 (Cth), which retrospectively

criminalised Nazi war crimes and authorised the Commonwealth to prosecute Australian residents for those crimes. The question whether this law was a valid exercise of the external affairs power, s 51(xxix), was considered at 10.6. However, Polyukhovich challenged the law on a number of grounds, including that he would not have a fair trial because over 40 years had passed between the events and 1991, and that there could be ‘no proper investiture of judicial power where a court is required to deal with matters which involve inevitable unfairness to a party’: at 512. Polyukhovich also referred to Art 15 of the International Covenant on Civil and Political Rights. The court held by majority that the Commonwealth can enact a criminal law with retrospective effect (Mason CJ, Dawson, Toohey and McHugh JJ; Deane and Gaudron JJ dissenting; Brennan J decided the case on other grounds). Responding to a submission made by the New South Wales Solicitor-General intervening, a majority of the court also expressed the opinion in obiter that the separation of judicial power effected by the Constitution removed the power of the legislature to enact a ‘bill of attainder’ or ‘bill of pains and penalties’ — a law which automatically declared the guilt of a person and subjected them to punishment: at 539, 612, 686, 706–7, 721. For further discussion, see Roberts, 1997. In Duncan v New South Wales (2015) 255 CLR 388, the High Court observed that two features are ‘commonly identified as underlying the characterisation of a law as a bill of pains and penalties, and thereby a “legislative intrusion on judicial power”’ (at [43]): •

‘legislative determination of breach by some person of some antecedent standard of conduct’; and

•

‘legislative imposition on that person (alone or in company with other persons) of punishment consequent on that determination of breach’.

Duncan concerned a challenge to Sch 6A of the Mining Act 1992 (NSW), which was inserted by the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) (‘the Amendment Act’). Schedule 6A cancelled three exploration licences, the grant of which, in the judgment of the New South Wales Parliament, was tainted by ‘serious corruption’ based on information that had come to light as a result of investigations and proceedings of the New South Wales Independent Commission Against Corruption: at [25]. No compensation was payable by or on behalf of New South Wales: at [27]. The Amendment Act was challenged principally on the ground that it involved an ‘exercise of judicial power in the nature of, or akin to, a bill of pains and penalties’: at [31]. The challengers argued that a state parliament could not [page 510] exercise that power because of an implied limitation on state legislative power derived either from Ch III or an historical limitation on colonial, and subsequently state, legislative power which was not ‘overtaken’ by the Australia Act 1986 (Cth): at [31]. Both limbs of the principal argument proceeded from the premise that the cancellation of the licences was an exercise of ‘judicial power’. The High Court unanimously rejected the premise. Unlike the determination and punishment of criminal guilt and the nonconsensual ascertainment and enforcement of rights in issue, the termination of a right conferred by a statute is not a function that of its nature pertains ‘exclusively to judicial power’. That is so even if the basis for terminating the right is ‘satisfaction of the occurrence of conduct which, if proved on admissible evidence to the criminal

standard, would constitute a criminal offence’: at [41]. Nor did the Amendment Act exhibit any of the typical features of judicial power. It did not: •

quell a controversy between parties;

•

preclude determination by a court of past criminal or civil liability; or

•

determine the existence of any right that had accrued or any liability that had been incurred: at [42].

In answer specifically to the contention that the Amendment Act was in the nature of or akin to a bill of pains and penalties, the High Court concluded that the impugned Act did not exhibit either of the features of a bill of pains and penalties set out above. While the New South Wales Parliament informed itself by reference to ICAC reports, its judgment that the administrative processes related to the grant of the three exploration licenses were tainted by corruption was not limited by consideration of any one or more specific findings in the report; nor were its conclusions linked to any one or more specific findings. The Amendment Act gave effect to parliament’s own determination that: 45 … it was in the public interest that the products of those tainted processes — the licenses themselves — be cancelled, that the State be restored so far as possible to the position the State would have been in had those licenses not been issued, and that those who had held the licenses not obtain any advantage from having done so.

Further, ‘legislative detriment’ — in this case, deprivation of valuable assets without compensation — cannot be equated with ‘legislative punishment’: at [46] (emphasis added). The Amendment Act served the legislative purpose of ‘promoting integrity in public administration’, not punishment: at [47]. Because there was no necessary connection between ICAC’s administrative findings of individual misconduct and parliament’s cancellation of the licenses, the case for characterising the Amendment

Act as a bill of pains of penalties was weaker than in Kariapper v Wijesinha [1968] AC 717. In Kariapper, the Privy Council upheld the validity of a statute that ‘imposed civic disabilities in the form of disqualification from office, with consequent loss of emoluments,’ on persons who had been members of the Ceylon Parliament and in respect of whom allegations of bribery had ‘been found by a commission of inquiry to be proved’: at [49]. [page 511] The Constitution does not confer an implied right to a fair trial 19.39 In Hinch v Attorney-General for Victoria (1987) 164 CLR 15 at 58, Deane J said: The right of a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraint and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.

However an argument that there is a constitutionally-based right to a fair trial was rejected by a majority of the High Court in Dietrich v The Queen (1992) 177 CLR 292. Dietrich was charged with the federal crime of importing a trafficable quantity of heroin into Australia. He applied for legal aid and his application was rejected. He was unsuccessful in seeking review of this application. After further attempts to receive legal assistance, including representations to the Commonwealth Minister for Justice and the Attorney-General, he went to trial. At the trial he applied unsuccessfully for an adjournment, and was convicted. His application for leave to appeal to the Victorian Court of Criminal Appeal was rejected. He then applied for special leave to appeal to the High Court. A majority of the court recognised that there was a common law right to a fair trial

requiring a court trying an indigent accused to grant a stay of proceedings when the accused was unable to arrange legal representation through no fault of their own. Two members of the court, Deane and Gaudron JJ, said this right had a constitutional source. Deane J said (at 326): The fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law. In so far as the exercise of the judicial power of the Commonwealth is concerned, that principle is entrenched by the Constitution’s requirement of the observance of judicial process and fairness that is implicit in the vesting of the judicial power of the Commonwealth exclusively in the courts which Ch III of the Constitution designates.

Gaudron J agreed (at 362): The fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by Ch III’s implicit requirement that judicial power be exercised in accordance with the judicial process.

However, the proposition that the common law right to a fair trial emanates from the separation of judicial power under the Constitution has not attracted the majority support of the High Court. 19.40 The 14th Amendment to the United States Constitution provides, in part: Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There is no equivalent clause in the Commonwealth Constitution. As Dawson J observed in Kruger v Commonwealth (1997) 190 CLR 1 at 61: [page 512]

In a number of recent cases it has been pointed out that the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power. Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament. Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights. The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based largely upon the 14th Amendment to the United States Constitution and including a right to due process of law and the equal protection of laws. The framers preferred to place their faith in the democratic process for the protection of individual rights and saw constitutional guarantees as restricting that process. Thus the Constitution contains no general guarantee of the due process of law. The few provisions contained in the Constitution which afford protection against governmental action in disregard of individual rights do not amount to such a general guarantee. It follows that, in so far as the plaintiffs’ claim is reliant upon a constitutional right to the due process of law, it must fail [references omitted].

In Thomas v Mowbray (2007) 233 CLR 307 at 355, Gummow and Crennan JJ said that despite some judgments that had sought to develop doctrines with a similar normative content, the High Court has not accepted the proposition that the Constitution protects due process: The plaintiff sought to extract from remarks of Gaudron J in Nicholas v The Queen (1998) 193 CLR 173 at 208–9 support for something like a ‘due process’ requirement from the text and structure of Ch III. The decisions of the Court have not gone so far (APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 3222 at 411). But it may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III.

The reference to APLA was a reference to Gummow J’s judgment in that case, in which his Honour had previously held that ‘legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch

III’. This statement will be considered below, in the context of a discussion of the joint judgment of Brennan, Deane and Dawson in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27. Does the Constitution require equal justice? 19.41 Some judges have suggested that there is an implied constitutional right of equality before the law: Leeth v Commonwealth (1992) 174 CLR 455. That case concerned a challenge to federal legislation that enabled persons imprisoned for federal offences to have their non-parole periods determined under the local law of the state or territory in which they were tried and convicted. It was argued that [page 513] this law infringed an implied principle of equality before the law. A majority of the court rejected this argument. Mason CJ, Dawson and McHugh JJ said (at 467, 470): There is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth … There are also specific provisions prohibiting discrimination or preference of one kind or another, but these are confined in their operation. … In this case, however, the legislation in question did not require a court invested with federal jurisdiction to perform a function which could be described as non-judicial. The sentencing of offenders, including in modern times the fixing of a minimum term of imprisonment, is as clear an example of the exercise of judicial power as possible.

Brennan J also upheld the provisions, and emphasised the purpose of s 120 of the Constitution to ensure that Commonwealth and state prisoners serving their terms in state prisons were governed by substantially the same regime. Any inequality of treatment which was

the consequence of different state provision with respect to non-parole periods was contemplated by s 120: at 479. Deane and Toohey JJ struck down the federal law on the basis that it ‘discriminated in a way which was inconsistent with the doctrine of the underlying equality of the people of the Commonwealth under the law and before the courts’: at 492. Gaudron J said that it was ‘manifestly absurd that the legal consequences attaching to a breach of a law of the Commonwealth should vary merely on account of the location or venue of the court in which proceedings are brought’: at 499. After a review of the separation of judicial power under the Constitution, Gaudron J said (at 502): It is an essential feature of judicial power that it should be exercised in accordance with the judicial process (Harris v Caladine (1991) 172 CLR at 150). A legislative direction which would require a power vested in a court to be exercised other than in accordance with that process is necessarily invalid. Its effect would be to take the power outside the concept of ‘judicial power’. And a conferral of a power of that kind would infringe the prohibition deriving from s 71 which limits the powers which may be conferred on a court to those which are judicial or ancillary or incidental to judicial power. Of course, it might be that, in some cases, a direction of that kind would be severable, so that the power, when shorn of the direction, is validly conferred. All are equal before the law. And the concept of equal justice — a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences be treated as such — is fundamental to the judicial process …

19.42 In Wong v The Queen (2001) 207 CLR 584, two accused (Wong and Leung) were convicted in the District Court of New South Wales for being knowingly concerned in the importation of heroin contrary to s 233B of the Customs Act 1901 (Cth). They were each sentenced to 12 years’ imprisonment with a non-parole period of seven years. The Crown appealed against sentence and the Court of Appeal sentenced the accused to 14 years with a nine-year non-parole period. In its judgment, the Court of Appeal stated ‘guidelines’ for the sentencing of people accused of importing narcotics. The guidelines attributed chief importance in sentencing to the weight of the narcotics.

[page 514] Section 16A of the Crimes Act 1914 (Cth) required that, among other things, sentencing should be proportionate to the crime. Section 16A did not refer to the weight of the narcotics imported as a criterion to be taken into account when sentencing, though there were other more general criteria, such as the seriousness of the offence, which could be taken into account. Wong and Leung appealed from the guideline judgment of the Court of Appeal arguing that, among other things, a Ch III court applying federal legislation could not develop sentencing principles that were inconsistent with federal law. Gaudron, Gummow and Hayne JJ, with whom Kirby J agreed, held that guideline judgments were inconsistent with the role of a court engaged in sentencing under s 16A of the Crimes Act. Gaudron, Gummow and Hayne JJ, in a paragraph that was not explicitly related to Ch III of the Constitution (but expressed in a context where the role of a Ch III court had been considered), said (at [65]): To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Publishing a table of predicted or intended outcomes masks the task of identifying what are relevant differences [original emphasis].

It is unclear whether this statement creates a test which can then be applied to legislation as if it were a constitutional prohibition. However, in Cameron v The Queen (2002) 209 CLR 339 at 352, McHugh J referred to the comments of the plurality in Wong and remarked that ‘[i]f there is one principle that lies at the heart of the judicial power of the Commonwealth, it is that courts, exercising federal jurisdiction, cannot act in a way that is relevantly discriminatory. To deny that proposition is to deny that equal justice under the law is one of the central concerns of the judicial power of the Commonwealth’.

In Putland v The Queen (2004) 218 CLR 174 it was argued that s 68 of the Judiciary Act 1903 (Cth) was invalid to the extent that it contemplated that different state and territory sentencing provisions could be picked up and applied to federal offenders. A majority of the court held that ‘specific restrictions and implications arising from the federal structure apart, there is no implication to be drawn from the Constitution that federal laws must operate uniformly throughout the Commonwealth’: at 185 (see also 195, 215). Does the Constitution require ‘open justice’? 19.43 Another implication that might be drawn from the separation of judicial power is the principle of ‘open justice’. The principle that ‘publicity is the authentic hallmark of judicial as distinct from administrative procedure’ was expressed in McPherson v McPherson [1936] AC 177 at 200 and approved by Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520. In Grollo v Palmer (1995) 184 CLR 348 at 379, McHugh J described ‘open justice’ as ‘an essential feature of the federal judicial power’. In Re Nolan; Ex parte Young (1990) 172 CLR 460 at 496 Gaudron J said that the judicial process included ‘open and public inquiry (subject to limited exceptions) [and] the application of the rules of natural justice’. [page 515] One of the exceptions was considered in John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694. Spigelman CJ (with whom Meagher JA agreed) rejected an attack on the validity of s 101A(7), (8) and (9) of the Supreme Court Act 1970 (NSW), which provided that any appeal by the Attorney-General on a question of law from an order acquitting a person of contempt of court should be heard in camera, and prohibited publication of submissions made on

the appeal or of the identity of the respondent to the appeal. Spigelman CJ (at [72]–[75]) concluded that the provisions under challenge did not offend the Kable principle (see Kable v DPP (NSW) (1996) 189 CLR 51): Some forms of Parliamentary modification of the principle of open justice will be struck down by the constitutional principle identified in Kable. For example, a provision requiring the Court to sit in camera in all cases involving the State of New South Wales, either generally or in some specific respect in which the interests of the State were involved, would, in my opinion, be invalid. However, in the present case, the specific measure under consideration does not, in my opinion, represent an infringement which impinges on the ‘integrity’ of the Supreme Court as a repository of federal power. Nor does it impinge on the independence, or the appearance of independence, of the court. Nor does it constitute such a distortion of its predominant or essential characteristics as to involve the court determining the issues of law posed for its consideration, otherwise than by the exercise of the judicial power of the Commonwealth. The restrictions imposed on the presence of the public and on publicity by s 101A(7), (8) and (9), represents the implementation of a policy that an individual (or, as is often the case, a media company) has a right not to have an acquittal of a criminal charge called into question. This constitutes a limited and justifiable exception to the general principle, which the public is, in my opinion, likely to appreciate. The adoption of a policy that an appeal on a point of legal principle relating to contempt, which cannot affect the decision on the specific case, should not be the subject of public debate, is not, in my opinion, so significant a modification of the judicial process required by Chapter III of the Constitution as to be incompatible with the exercise of the judicial power of the Commonwealth.

In Hogan v Hinch (2011) 243 CLR 506, Derryn Hinch, a radio broadcaster, was charged with contravening a suppression order made by the Magistrates’ Court of Victoria under s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) by publicising details relating to certain people convicted of sex offences who were the subject of post-custodial supervision orders. Hinch challenged s 42 on the grounds that it (at [2] per French CJ): 1.

impermissibly confers upon the courts to which it applies a function which distorts their institutional integrity contrary to the implied requirements of Ch III of the Constitution;

2.

is contrary to an implication in Ch III of the Constitution that all State and federal courts must be open to the public and carry out their activities in public; and

3.

infringes the implied freedom of political communication by inhibiting the ability (a) to criticise legislation and its application in the courts; and (b) to seek legislative and constitutional changes and changes in court practice by public assembly and protest, and the dissemination of factual data concerning court proceedings.

[page 516] The third issue is considered at 18.18. In their joint judgment, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ referred to the other arguments and said: 85 … the defendant then contends in his second submission that the restrictions imposed by the three County Court orders could not be supported by s 42 because that law empowered the court acting thereunder to act contrary to a requirement derived from Ch III that ‘all Federal and State Courts must be open to the public’. 86 In Dupas v The Queen the Court observed: Having regard both to the antiquity of the power and its institutional importance, there is much to be said for the view that in Australia the inherent power to control abuse of process should be seen, along with the contempt power, as an attribute of the judicial power provided for in Ch III of the Constitution. 87 An understanding of those and other attributes of the federal judicial power may be assisted by the remarks of Isaacs J in R v Macfarlane; Ex parte O’Flanagan and O’Kelly: The final and paramount consideration in all cases is that emphasized in Scott v Scott, namely, ‘to do justice’ (Viscount Haldane LC). All other considerations are means to that end. They are ancillary principles and rules. Some of them are so deeply embedded in our law as to be elementary and axiomatic, others closely approach that position. Of the latter class is publicity, which can only be disregarded where necessity compels departure, for otherwise justice would be denied to those whom Earl Loreburn termed ‘the parties entitled to justice.’ 88 Some care is required here. First, the present issue does not concern the authority of the courts by further decision to add to those situations where the necessity spoken of

by Isaacs J compels departure from the requirement that justice be administered publicly. In Scott v Scott, Viscount Haldane LC recognised the diverse and special cases which arose in the wardship and lunacy jurisdictions and in disputes respecting trade secrets. Secondly, there are to be distinguished from the power of courts to close their proceedings, rules of evidence which confer an immunity against disclosure in court of certain communications made in the public interest. Thirdly, in order to resolve the present issue it is unnecessary to accept that there is an inherent jurisdiction or implied power in some circumstances to restrict the publication of proceedings conducted in open court. Fourthly, the focus of the present case is not upon the inherent powers of the courts or exclusionary rules of evidence, but upon the competence of the Victorian legislature to confer upon Victorian courts the power provided in s 42 of the Act. 89 It is here that the argument by the defendant breaks down. The powers of the Parliament of the Commonwealth are conferred by the Constitution subject to Ch III. They extend to furnishing courts exercising federal jurisdiction with authorities incidental to the exercise of the judicial power. Thus, while s 17 of the Federal Court of Australia Act 1976 (Cth) requires the jurisdiction of that Court to be exercised in open court, that is qualified by s 50, which empowers the Court in certain circumstances to forbid or restrict the publication of evidence. 90 A further example of federal legislation of that character was s 97(1) of the Family Law Act 1975 (Cth) (‘the Family Law Act’), held invalid in Russell v Russell. The subsection required the hearing in closed court of all proceedings under that statute, whether in the Family Court of Australia or the Supreme Court of a State or Territory. The High Court was dealing with pending causes removed from the Supreme Courts of Victoria and South Australia. Gibbs J said that to require a court

[page 517] invariably to sit in closed court was to alter an essential aspect of its character. But his Honour added: Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. If the [Family Law Act] had empowered the Supreme Courts when exercising matrimonial jurisdiction to sit in closed court in appropriate cases I should not have thought that the provision went beyond the power of the Parliament. In requiring them to sit in closed court in all cases — even proceedings for contempt — the Parliament has attempted to

obliterate one of their most important attributes. This it cannot do. 91 This reasoning should be followed here and has three consequences. First, it denies any restriction drawn from Ch III which in absolute terms limits the exercise of the legislative power of the Parliament. Secondly, it indicates that a federal law to the effect of s 42 would be valid and would not deny an essential characteristic of a court exercising federal jurisdiction. Thirdly, this being so, as a State law s 42 does not attack the institutional integrity of the State courts as independent and impartial tribunals in the sense discussed in International Finance Trust and Totani [references omitted].

International Finance Trust and Totani are considered at 19.54 and 19.56, respectively. The governance of a criminal trial — a power exclusive to, which cannot be excluded from, the courts 19.44 In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, a number of Cambodian asylum seekers arrived in Australian territorial waters by boat and were placed in immigration detention. The asylum seekers made applications for refugee status under Australian migration laws that purported to adopt parts of an international convention guaranteeing the rights of refugees. A delegate of the Minister for Immigration rejected their applications. The plaintiffs sought an order of review of the decision to reject the applications in the Federal Court, and orders that they be released from custody on the ground that they had been unlawfully detained. The Federal Court set aside the decision to reject the applications and referred the matter back to the minister for a fresh determination according to law. The Federal Court then set a hearing date to determine the question whether the plaintiffs had been wrongfully detained. Two days before the hearing, the Commonwealth Parliament amended the Migration Act 1958 (Cth) and inserted a new Division that provided for the compulsory detention in custody of certain ‘designated persons’, including the plaintiffs. Section 54R stated that a ‘court is not to order the release from custody of a designated person’.

The plaintiffs challenged the constitutional validity of the amendments on the ground that the parliament had usurped the judicial power which, by virtue of s 71 of the Constitution and the separation of powers contemplated by the Constitution, was vested exclusively in courts. The plaintiffs argued that, subject to wellrecognised exceptions, incarceration can only be ordered by a court after a [page 518] finding of criminal guilt. The parliament could not order the continued detention of the people or immunise that order from judicial review. Brennan, Deane, Dawson and Gaudron JJ (Mason CJ, Toohey and McHugh JJ dissenting) struck down s 54. In their joint judgment, Brennan, Deane and Dawson JJ said (at 27): There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgement and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to [Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 444] and ‘could not be excluded from’ [R v Davison (1954) 90 CLR 353 at 368, 383] the judicial power of the Commonwealth [see also the War Crimes Act case (1991) 172 CLR 501 at 536–9, 608–10, 613–14, 632, 647, 685, 705–7, 721]. That being so, Ch III of the Constitution precludes the enactment, in purported pursuance of any of the subsections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive. In exclusively entrusting to the courts designated by Ch III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system

of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is ‘ruled by law, and by the law alone’ and ‘may with us be punished for a breach of law, but he can be punished for nothing else’.

The ‘qualifications’ were explained in the following passage (at 28– 9): There are some qualifications which must be made to the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III Courts. The most important is … the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining exclusively to judicial power. Even where exerciseable by the Executive, however, the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts, including the ‘ancient common law’ jurisdiction, ‘before and since the conquest’, to order that a person committed to prison while awaiting trial be admitted to bail [see Blackstone, Commentaries, Book 4, par 298]. Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power. Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt [see R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; the War Crimes Act case (1991) 172 CLR 501 at 626] and of military tribunals to punish for breach of military discipline [see R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460; the War Crimes Act case (1991) 172 CLR 501 at 626–7], the citizens of this country enjoy, at least in times of peace (it is unnecessary to

[page 519] consider whether the defence power in times of war will support an executive power to make detention orders such as that considered in Little v Commonwealth (1947) 75 CLR 94), a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

Gaudron J also struck down s 54R. Her Honour was ‘in general agreement’ with Brennan, Deane and Dawson JJ, and did not discuss s

54R. However, Gaudron J commented (at 55): Detention in custody in circumstances not involving some breach of the criminal law and not coming within well-accepted categories of the kind to which Brennan, Deane and Dawson JJ refer is offensive to ordinary notions of what is involved in a just society. But I am not presently persuaded that legislation authorizing detention in circumstances involving no breach of the criminal law and travelling beyond presently accepted categories is necessarily and inevitably offensive to Ch III.

While the imposition of punishment following the adjudgment of criminal guilt is exclusively judicial, and can therefore only be exercised by courts, Ch III of the Constitution does not preclude parliament conferring on a prosecutor a discretion to charge a person with an offence that carries a mandatory minimum sentence rather than a different (albeit overlapping) offence that does not carry a minimum sentence: Magaming v The Queen (2013) 252 CLR 381 (French CJ, Hayne, Crennan, Kiefel and Bell JJ (with whom Keane J agreed); Gageler J dissenting). Magaming pleaded guilty to the aggravated offence of peoplesmuggling contrary to s 233C of the Migration Act 1958 (Cth). That offence was constituted by organising or facilitating the bringing or coming to Australia of a group of at least five persons, at least five of whom were unlawful non-citizens, and carried a mandatory minimum term of imprisonment of five years with a minimum nonparole period of three years under s 236B. The simple form of the offence, under s 233A of the Act, was for organising or facilitating the bringing or coming to Australia of another person who was an unlawful non-citizen. Magaming challenged the validity of the relevant provisions of the Act on the ground that they were: (1) incompatible with the separation of judicial and prosecutorial functions; (2) incompatible with the institutional integrity of the courts; or

(3) required a court to impose arbitrary and non-judicial sentences. The court rejected each of these arguments. The court addressed arguments (1) and (2) together. At the centre of Magaming’s incompatibility argument was the contention that ss 233A and 233C gave prosecuting authorities a choice about sentence. The plurality — French CJ, Hayne, Crennan, Kiefel and Bell JJ (with whom Keane J agreed) — considered that the ‘reference to “choice” about sentence conflated several distinct steps in the prosecution and punishment of crime and [was] apt to mislead’: at [24]. The alleged conduct of an accused may, if proved, establish more than one offence. The prosecution will thus be presented with a choice: with which offence ought the accused be charged? That choice, which is anterior to the exercise of [page 520] judicial power, may expose an accused to a greater or lesser penalty, if one offence carries a mandatory minimum sentence, for example, and another does not: at [26]. But it does not follow that the prosecutor chooses the punishment that will be imposed. A court determines the punishment to be imposed, upon conviction, according to law: at [26]; see also [38]. Though it may be desirable for a court to have discretion in the imposition of penalties and sentences, if a statute imposes a duty to impose a specific punishment, ‘“the court must obey the statute in this respect assuming its validity in other respects”’: at [27], quoting Palling v Corfield (1970) 123 CLR 52 at 58. Magaming failed to explain how or why parliament cannot, consistently with Ch III, prescribe a mandatory minimum penalty for

an aggravated offence if it does not prescribe a mandatory minimum for the simple offence: at [45]. One of the specific arguments he advanced was that the mandatory minimum sentence prescribed for contravening s 233C was not reasonably proportionate to the end of general deterrence that the law sought to serve. But the majority rejected his appeal to proportionality reasoning; he provided no satisfactory reason for applying that kind of reasoning in determining whether Ch III had been contravened: at [52]. Gageler J dissented, holding that s 236B(3)(c) and (4)(b) of the Act were invalid. He accepted the constitutional proposition advanced on behalf of Magaming: 59 … that a purported conferral by the Commonwealth Parliament on an officer of the Commonwealth executive of a discretion to prosecute an individual within a class of offenders for an offence which carries a mandatory minimum penalty, instead of another offence which carries only a discretionary penalty, amounts in substance to a purported legislative conferral of discretion to determine the severity of the punishment consequent on a finding of criminal guilt and is for that reason invalid by operation of Ch III of the Constitution.

He would have overruled an earlier High Court authority, Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100, which upheld the validity of a Commonwealth law similar in substance to the provisions impugned in this case, and that stood against the proposition for which Magaming contended. Lord Diplock articulated the relevant limitation on legislative power, which Gageler J applied in this case, in Hinds v The Queen [1977] AC 195 at 226 (see [84]): What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body … a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.

Lord Diplock’s statement of principle (at [85]) accorded with that articulated in Deaeton v Attorney-General (Ire) [1963] IR 170 by O’Dalaigh CJ.

Gageler J held that the limitation will be transgressed by a Commonwealth law that ‘purports to confer on an executive officer what is in substance a power to determine the punishment to be imposed by a court in the event of conviction of an offender in a particular case’: at [88]. He said: 92 The constitutional vice of s 236B(3)(c) and (4)(b) of the Act lies in their effect on the character of the discretion necessarily exercised by the [Commonwealth Director of Public Prosecutions] in deciding to prosecute a person within that class for the

[page 521] aggravated offence created by s 233C instead of one or more counts of the offence created by s 233A. That effect is to empower the CDPP in effect to determine the minimum penalty to be imposed on the conviction of any individual within the class. If the CDPP decides to prosecute the individual for the aggravated offence created by s 233C, the individual must on conviction receive at least the minimum term of imprisonment required by s 236B(3)(c) and the minimum non-parole period required by s 236B(4)(b). If the CDPP decides instead to prosecute the individual for one or more counts of the offence created by s 233A, the minimum term and minimum nonparole period have no application.

Kable’s case 19.45 Legislation that authorised punishment in prison without a criminal trial was considered in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The Community Protection Act 1994 (NSW) authorised the Supreme Court of New South Wales to order the preventive detention of a person in prison if it was satisfied on reasonable grounds that the person was more likely than not to commit a serious act of violence, and if the detention was considered to be necessary to protect the community. The Act contemplated that an order could be made in civil proceedings and determined on the balance of probabilities. The legislation was stated to be applicable to one person, Gregory Wayne Kable, who had been convicted of the

manslaughter of his wife and had allegedly posted letters to people while he was in prison threatening them with violence when he was released. Kable challenged the legislation on a number of grounds, including that Ch III of the Constitution limited the legislative power of the states by preventing the states from vesting powers in state courts that are repugnant to their role as repositories of federal jurisdiction. Sir Maurice Byers QC argued (at 54–5) that: Chapter III of the Constitution applied to State courts from 1 January 1901; they were impressed with the characteristics necessary for the possession and exercise of Commonwealth judicial power. No legislature, State or federal, might impose on them jurisdiction incompatible with the exercise of that judicial power. Nor could it control the manner of the exercise of judicial power whether conferred by the Commonwealth or States. Since Ch III envisages State courts as being capable of investiture with and exercise of the judicial power of the Commonwealth, it grants to them or prevents their deprivation of those characteristics required of recipients of that power. A State law which controlled the State court in the exercise of jurisdiction granted by the State is invalid if it is inconsistent with the court’s possession of the constitutional characteristics. Chapter III means that the separation of the judicial from the legislative power applies to courts created by the Constitution and by Commonwealth and State legislatures. The Community Protection Act seeks to compel the exercise of a judicial decision to procure an order that the appellant be imprisoned. It has a legislative rather than a judicial nature: its object is stated to be imprisonment of the appellant as a means of protecting the community that is overriding any continued freedom of the appellant. Additionally it requires the judge to apply, where a person’s freedom is involved, the civil onus of proof and compels the judge to receive in evidence (and thus give effect to) reports by medical practitioners, psychiatrists and psychologists. Sections 71 and 79 of the Constitution equate the courts of the States with the High Court and federal courts for the vesting of judicial power of the Commonwealth [emphasis added].

New South Wales and four other interveners (from Victoria, South Australia, Western Australia and the Commonwealth) argued, among other things, that the [page 522] Act was ‘not invalid because it confers a function which is

incompatible with the court’s capacity to exercise judicial power as the Commonwealth Parliament must take State courts as it finds them’ (at 57) and that the ‘doctrine of the separation of judicial power forms no part of the entrenched constitutional framework of the States, nor is that doctrine imposed on State courts by Ch III’: the Commonwealth, at 61. Sir Maurice Byers responded to these arguments in the following terms (at 61): Sections 106 and 73 of the Constitution entrench the State courts as parts of the State Constitutions. Section 77(iii) invests State courts with additional jurisdiction to that under State laws. A State law which makes judges or other officers of a State court the tools of the State is incompatible with its possession and exercise of judicial power whether State or federal.

A majority of four on a bench of six struck down the legislation, but delivered four separate judgments, which are explored in the next few pages. Toohey J held that the legislation was incompatible with Ch III because it authorised a Ch III court to order the imprisonment of a person although that person had not been adjudged guilty of any criminal offence: at 96–8. Toohey J said (at 98): The appellant’s argument of incompatibility of function rests on several foundations. But fundamentally it relies upon the nature of the Act whereby the Supreme Court may order the imprisonment of a person although that person has not been adjudged guilty of any criminal offence. The Supreme Court is thereby required to participate in a process designed to bring about the detention of a person by reason of the Court’s assessment of what that person might do, not what the person has done. The situation in the present case is quite different from that in Lim. Preventive detention under the Act is an end in itself. And the person so detained ‘is taken to be a prisoner within the meaning of the Prisons Act 1952’ (s 22(1)). It is not an incident of the exclusively judicial function of adjudging and punishing criminal guilt. It is not part of a system of preventive detention with appropriate safeguards, consequent upon or ancillary to the adjudication of guilt. Nor does it fall within the ‘exceptional cases’ mentioned in Lim, directly or by analogy. In the present case the Act requires the Supreme Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process. The extraordinary character of the legislation and of the functions it requires the Supreme Court to perform is highlighted by the operation of the statute upon one

named person only.

Gaudron J said (at 106) that the proceedings contemplated by the Community Protection Act were: … not proceedings otherwise known to the law. And except to the extent that the Act attempts to dress them up as legal proceedings (for example, by referring to the applicant as ‘the defendant’, by specifying that the proceedings are civil proceedings and by suggesting that the rules of evidence apply), they do not in any way partake of the nature of legal proceedings. They do not involve the resolution of a dispute between contesting parties as to their respective legal rights and obligations. And … the applicant is not to be put on trial for any offence against the criminal law. Instead, the proceedings are directed to the making of a guess — perhaps an educated guess, but a guess nonetheless — whether, on the balance of probabilities, the appellant will commit an offence of the kind specified in the definition of ‘serious act of

[page 523] violence’. And, at least in some circumstances, the Act directs that that guess be made having regard to material which would not be admissible as evidence in legal proceedings … The power purportedly conferred by s 5(1) of the Act requires the making of an order, if the conditions specified in s 5(1) are satisfied, depriving an individual of his liberty, not because he has breached any law, whether civil or criminal, but because an opinion is formed, on the basis of material which does not necessarily constitute evidence admissible in legal proceedings, that he ‘is more likely than not’ to breach a law by committing a serious act of violence as defined in s 4 of the Act. That is the antithesis of the judicial process …

McHugh J also struck down the legislation. McHugh J, like Gaudron J, recognised that ‘the State courts have a status and a role that extends beyond their status and role as part of the State judicial systems’ and that there ‘are not two grades of federal judicial power’. Accordingly (at 122): … neither the Parliament of New South Wales nor the Parliament of the Commonwealth can invest functions in the Supreme Court of New South Wales that are incompatible with the exercise of federal judicial power. Neither Parliament, for example, can legislate in a way that permits the Supreme Court while exercising federal judicial power to disregard the rules of natural justice or to exercise legislative

or executive power. Such legislation is inconsistent with the exercise of federal judicial power.

McHugh J also observed (at 122–4): The Act expressly removes the ordinary protections inherent in the judicial process. It does so by stating that its object is the preventive detention of the appellant, by removing the need to prove guilt beyond reasonable doubt, by providing for proof by materials that may not satisfy the rules of evidence and by declaring the proceedings to be civil proceedings although the Court is not asked to determine the existing rights and liabilities of any party or parties. It is not going too far to say that proceedings under the Act bear very little resemblance to the ordinary processes and proceedings of the Supreme Court. They do not involve any contest as to whether the appellant has breached any law or any legal obligation. They ‘are not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations’ which is the benchmark of an exercise of judicial power. The Act is thus far removed from the ordinary incidents of the judicial process. It invests the Supreme Court with a jurisdiction that is purely executive in nature … At the time of its enactment, ordinary reasonable members of the public might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decision of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law. Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy. That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired. The Act therefore infringed Ch III of the Constitution and was, and is, invalid.

McHugh J concluded that the object of the law was ‘to detain the appellant not for what he has done but for what the executive government of the State and its Parliament fear that he might do’: at 120. The law was therefore invalid. [page 524] Gummow J said (at 131–2, 134): The present case is not one of incarceration by legislative or executive fiat. The involuntary detention of the appellant is brought about by orders of the Supreme Court in exercise of what is described in [the Act] as its ‘jurisdiction’ under the Act. I

have referred to the striking features of this legislation. They must be considered together. But the most significant of them is that, whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly, in my view, such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a State court exercising federal jurisdiction. Moreover, not only is such an authority nonjudicial in nature, it is repugnant to the judicial process in a fundamental degree. … The Act is an extraordinary piece of legislation. The making thereunder of ‘detention orders’ by the Supreme Court in the exercise of what the statute purports to classify as an augmentation of its ordinary jurisdiction, to the public mind, and in particular to those to be tried before the Supreme Court for offences against one or other or both of the State and federal criminal law, is calculated to have a deleterious effect. This is that the political and policy decisions to which the Act seeks to give effect, involving the incarceration of a citizen by court order but not as punishment for a finding of criminal conduct, have been ratified by the reputation and authority of the Australian judiciary. The judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional impartiality to which I have referred …

19.46 Kable was a controversial and remarkable decision for a number of reasons. First, it had consistently been held that the state Constitutions did not entrench a separation of judicial power: see, for example, Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372; City of Collingwood v Victoria [No 2] [1994] 1 VR 652; cf Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117 at 190, 205. Second, the statements made by the justices in the majority in Kable were both diverse and sweeping in their nature, and could be interpreted in a number of ways. It was therefore not surprising that the decision gave rise to a series of cases exploring its potential (see, in addition to the cases considered below, Felman v Law Institute of Victoria [1998] 4 VR 324; Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia Ltd [2000] 1 VR 545; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564). State and territory courts, for their part, initially demonstrated a

preference for applying the principles in Kable narrowly, and it was some time before Kable was successfully invoked in these courts or in the High Court. In R v Wynbyne (1997) 99 A Crim R 1, s 78A of the Sentencing Act (NT) prescribed the mandatory recording of a conviction and a minimum sentence term of 14 days’ imprisonment upon a judicial finding of guilt for a number of defined property offences. The Northern Territory Court of Appeal rejected an argument that the principles in Kable would operate to strike down this mandatory sentencing regime. Mildren J, with whom Bailey J agreed, said that s 78A was ‘not ad hominem but applies equally to all adults found guilty’ of the defined offences. The provision [page 525] did not ‘direct the court to reach a finding of guilt. Guilt is proved in the usual way — by admissible evidence led by the prosecution. Only when guilt is thus established is a court required to convict’. The courts had not been made ‘the instruments of the executive to implement a legislative plan to imprison people who have committed no crimes’: at 16–17. 19.47 In R v Moffatt [1998] 2 VR 229, Moffatt had been convicted of a number of serious sexual and property offences and was given an indefinite sentence. Section 18B of the Sentencing Act 1991 (Vic) provided that the court could impose an indefinite sentence if it was satisfied to a high degree of probability that the offender was a serious danger to the community due to various factors, including the person’s character, their history, their mental condition and the nature or gravity of their offences. In exercising its discretion to make an order, the court was required to have regard to (but not limited to the

consideration of) a number of criteria, including whether the nature of the serious offence was exceptional, psychiatric reports, and the need to protect the community. The legislation also contemplated judicial review of the indefinite sentence by a court from time to time. Moffatt challenged the provisions on the basis that they offended the principle in Kable, in particular by requiring a state court judge in whom federal jurisdiction could be reposed to undertake an administrative or executive function that was incompatible with the exercise of judicial power; a review process that had nothing to do with the initial sentence, and a function that was properly (and had traditionally been) invested in the executive government. The Victorian Court of Appeal (Winneke P, Hayne and Charles JJA) rejected the arguments. The judges contrasted the indefinite sentencing provisions in the Victorian Act with the provisions that had been successfully challenged in Kable. As in Wynbyne, the judges emphasised the fact that the Victorian law did not single out Moffatt as Kable had been singled out by the New South Wales Community Protection Act 1994: at 237, 251, 260. Hayne JA (as his Honour then was) confessed to some difficulty with the diversity of opinions expressed in the majority in Kable, and said (at 251): But exactly what is the underlying principle is not clear. As I have said, the legislation under consideration in Kable was extraordinary: it was directed at one man; it required (or at least contemplated) the confinement of that man in prison and did so not for what he had done but for what he might do. But by what principle is one to decide whether legislation is incompatible with Ch III? Is its being novel sufficient? Is the perception that reasonable members of the public may have of it relevant? If so, what kind of perception is relevant?

As for the indefinite sentencing provisions, Hayne JA went on to say (at 251): The indefinite sentencing provisions now under consideration are very different from the Community Protection Act. First, an indefinite sentence may be imposed only upon an offender guilty of a particular offence. Secondly, unlike the Community Protection Act the indefinite sentencing provisions of the Sentencing Act are general in their application; they are not directed to any particular individual. Thirdly, there is nothing

in the legislation or the circumstances existing at the time of its enactment which would lead reasonable members of the public to conclude that the Supreme Court or County Court was being called on to act as no more than (an) instrument of the executive government.

[page 526] It may be accepted that the common law does not sanction preventive detention and that the imposition of an indefinite sentence cuts across well-recognised and established principles of proportionality … But the existence of those common law principles does not mean that the legislature may not provide that the courts may impose indefinite sentences …

19.48 In Kable, McHugh J had expressed concern about the way in which the Community Protection Act provided ‘for proof by materials that may not satisfy the rules of evidence’ ((1996) 189 CLR at 122). How far and to what extent might the principles in Kable be adapted to develop arguments that some rules of evidence are so essential to the judicial process that they cannot be altered by statute without infringing the separation of judicial power? The first case to explore this question after Kable was Nicholas v The Queen (1998) 193 CLR 173. Before considering Nicholas in more detail, however, it is necessary to provide more background. In Ridgeway v The Queen (1995) 184 CLR 19, the High Court quashed the conviction of John Ridgeway for importing heroin into Australia contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). Ridgeway’s conviction had been ordered by the District Court of South Australia on the basis of evidence drawn from a ‘controlled importation’. Ridgeway had initiated and arranged the importation, which was carried out by C, a member of the Royal Malaysian Police Force, with the assistance of L, who was a registered informer with that force. C was able to pass through Australian customs due to an arrangement with the Australian Federal Police. Ridgeway appealed his conviction

and sought a permanent stay of proceedings in the South Australian Court of Criminal Appeal and ultimately in the High Court on the grounds that: • the trial judge ought to have excluded the evidence of the illegal importation on the ground of public policy since the police knew the importation was illegal; •

he had been ‘entrapped’; and

•

the prosecution was an abuse of process because the conviction had been obtained having regard to unlawfully obtained evidence.

Mason CJ, Brennan, Deane, Dawson and Toohey JJ (Gaudron J decided the case on other grounds; McHugh J dissented) held that the importation of the heroin by the law enforcement officers was illegal and the evidence should be excluded on the grounds of public policy. The Commonwealth responded to Ridgeway by enacting the Crimes Amendment (Controlled Operations) Act 1996 (Cth) which inserted a new Part in the Crimes Act 1914 (Cth). Section 15X relevantly provided: 15X Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer In determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation is to be disregarded, if:

[page 527] (a) the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and (b) for the purposes of the operation:

(i)

the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901), be exempted from detailed scrutiny by officers of the Australian Customs Service; and

(ii) the request for exemption was granted.

Section 15G(2) stated: Subject to section 15X, this Part is not intended to limit a discretion that a court has: (a) to exclude evidence in criminal proceedings; or (b) to stay criminal proceedings in the interests of justice.

19.49 In Nicholas v The Queen (1998) 193 CLR 173, Nicholas had been charged with importing heroin contrary to s 233B of the Customs Act 1901 (Cth) on 24 September 1994 after a ‘controlled operation’ involving Australian and Thai law enforcement officials. Following the decision of the High Court in Ridgeway, Nicholas applied to the Victorian County Court to exclude the evidence drawn from the controlled importation and to stay the prosecution of the counts alleging offences against s 233B. The County Court granted a permanent stay. Six weeks later the Crimes Amendment (Controlled Operations) Act 1996 (Cth) came into operation and the prosecution applied to the County Court to vacate the permanent stay order. The matter was removed into the High Court under s 40(1) of the Judiciary Act 1903 (Cth) for resolution of the question whether the Amendment Act was constitutionally valid. Relying on Chu Kheng Lim and Kable, Nicholas argued (at 175) that the legislation had the effect of directing ‘a court in which the judicial power of the Commonwealth is vested to exercise the power in a manner or to produce an outcome inconsistent with the essential character of a court or with the nature of judicial power’. Nicholas also argued that s 15X was applicable to an identifiable number of cases, and that this constituted a ‘singling out’ similar to the singling out of

Kable for further punishment in Kable’s case. The High Court upheld s 15X by majority (Brennan CJ, Toohey, Gaudron, Gummow and Hayne JJ; McHugh and Kirby JJ dissenting). Brennan CJ said (at 188): A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid (Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 36–37). However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion. For the purposes of the accused’s first submission, the function of a court to which s 15X relates is the finding of facts on which the adjudication and punishment of criminal guilt depend. Section 15X does not impede or otherwise affect the finding of facts by a jury. Indeed, it removes the barrier which Ridgeway placed against tendering to the jury evidence of an illegal importation of narcotic goods where such an importation had

[page 528] in fact occurred. Far from being inconsistent with the nature of the judicial power to adjudicate and punish criminal guilt, s 15X facilitates the admission of evidence of material facts in aid of correct fact finding [emphasis added].

Later, Brennan CJ said (at 189–90): In The Commonwealth v Melbourne Harbour Trust Commissioners, Knox CJ, Gavan Duffy and Starke JJ said: A law does not usurp judicial power because it regulates the method or burden of proving facts. And in Williamson v Ah On, Higgins J said that ‘the evidence by which an offence may be proved is a matter of mere procedure’. He added: The argument that it is a usurpation of the judicial power of the Commonwealth if Parliament prescribe what evidence may or may not be used in legal proceedings as to offences created or provisions made by Parliament under its legitimate powers is, to my mind, destitute of foundation. However, Isaacs J pointed out a difference between a rule of evidence and a provision which, though in the form of a rule of evidence, is in truth an impairment of the curial

function of finding the facts and hence an usurpation of judicial power. He said: It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly. If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality. The legislative instruction to find that the accused stole the goods might prove not to be the fact. The legislature itself would have found the fact of stealing. Isaacs J continued: The first is a parliamentary arbitrary creation of a new offence of theft, leaving no room for judicial inquiry as to the ordinary offence; the second is only an evidentiary section, altering the burden of proof in the ordinary case of theft, and requiring certain pre-appointed evidence to fit the special circumstances in the interests of justice, because the accused best knows the facts, and leaving the Court with these provisions to examine the facts and determine the matter. The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates. Rich and Starke JJ held that a grant of power to make laws for the peace, order and good government of a territory carried the power ‘to enact whatever laws of evidence it thinks expedient, and in particular justifies laws regulating the burden of proof, both in civil and criminal cases … and it is not for the Courts of law to say whether the power has been exercised wisely or not’ [references omitted].

Brennan CJ pointed out that s 15G(2) left the court with the power to exclude evidence on other grounds than the illegality of the conduct of law enforcement officers: at 193. While the judicial discretion to exclude evidence was narrowed, it had not been removed: see also Toohey J at 199; Gummow J at 238; Hayne J at 274. Gaudron J said (at 208–9): In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a

[page 529]

manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.

Applying these principles, Gaudron J concluded that s 15X, understood in light of s 15G(2), did ‘not prevent independent determination of the question whether that evidence should be excluded or, more to the point, independent determination of guilt or innocence’: at 211. The legislation did not single out Nicholas because it treated people with causes pending and future prosecutions equally; accordingly it did not offend the principle of equality before the law implicit in Gaudron J’s vision of Ch III. Gummow J said (at 238): The section in its operation, if not necessarily on its face, deals not with proof but with a discretion to exclude evidence of facts. It operates to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion. The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted. However, the section does not deem any ultimate fact to exist, or to have been proved. It leaves untouched the elements of the crimes for which the accused is to be tried. Nor does s 15X change the amount or degree of proof essential to convict him from that required when the alleged offences were committed.

The majority also held that s 15X did not single out an identifiable class of people, as it applied not only to pending cases but any future prosecutions of this nature: at 192–3, 203, 238–9, 277. McHugh and Kirby JJ dissented. McHugh J said (at 222): Section 15X does not contemplate a ‘legislative judgment’ against specified individuals, nor does it serve to inflict punishment on specified persons without a judicial trial or to adjudge criminal guilt. Nor does it direct the federal courts not to make a finding concerning rights or duties that an accused person would otherwise be entitled to under the existing law or to change the direction or outcome of pending judicial proceedings. It does, however, direct courts exercising federal jurisdiction to disregard a fact that is critical in exercising a discretion that is necessary to protect the integrity of

Ch III courts and to maintain public confidence in the administration of criminal justice. That being so, s 15X infringes the judicial power of the Commonwealth just as effectively as if it purported to change the direction or outcome of pending proceedings.

Kirby J, who also dissented, said (at 260–4) that the ‘high particularity’ of the legislation together with the ‘unrepaired affront of condoning unexcused criminality’ required that Nicholas should succeed. The dissentients held that it would damage public confidence in the integrity of courts if such evidence was admitted: at 222–5, 265. 19.50 In Silbert v DPP (WA) (2004) 217 CLR 181, the Crimes (Confiscation of Profits) Act 1988 (WA) provided that where a person had been convicted of [page 530] a serious offence, proceedings could take place for forfeiture of property or for payment of a pecuniary penalty. The legislation provided that a person could be taken to have been convicted if they had been charged and then absconded from the jurisdiction before the charge was determined. A person would be taken to have absconded if they died after they were arrested or a warrant had been issued for their arrest. Section 53(2) of the Western Australian Act provided that a court must not make a forfeiture order in reliance on a deemed conviction unless it was satisfied beyond reasonable doubt that the person committed the offence. Silbert was the executor and a beneficiary of the estate of Stephen Retteghy, who had been charged with drug offences, but died before his trial. The Director of Public Prosecutions (DPP) applied for, and the Supreme Court made, orders for confiscation under the Act. Silbert challenged the Western Australian provisions on the basis that they empowered the Western Australian Supreme Court, a Ch III

court, with the power to make a pecuniary penalty order without a judicial determination of the guilt of the deceased. It was argued that this removed the fact-finding function of the court, and deemed a person to have committed an offence for which he or she could no longer be tried. Although a forfeiture order could not be made unless the court was satisfied beyond reasonable doubt that the person committed the offence, it was argued that the court ‘was required to form that judgment in the absence of the deceased; and it was required to impose a forfeiture order in circumstances where it could never be proved in accordance with traditional judicial process that the deceased had committed the offence. Such a forfeiture order imposed a penalty on the estate of a person who was unable to give exculpatory evidence or any evidence in relation to intent, which formed a critical element of the offence. That involved a legislative direction to carry out tasks which were inconsistent with the traditional judicial process’: at 183. It was counter-argued that the provisions merely provided ‘a shorthand device for identifying the class against whom, or in relation to whose property, an application for a pecuniary penalty order or a forfeiture order may be made’ and that the ‘use of this legal fiction does not result in the recording of a conviction against a person, or any of the other sequelae of a conviction’. It was further argued that ‘applications under the Act relate to property rather than the liberty of the person’, and that depriving a person of property ‘is not an incident of the exclusively judicial function of adjudging and punishing criminal guilt’: at 184. The DPP pointed out that before making a forfeiture order, the court was required to satisfy itself beyond reasonable doubt that the person committed a serious offence and had discretion to make the order or not. Proceedings under the Act were determined in accordance with the rules of evidence and could be appealed, and, accordingly, the Western Australian Supreme Court

was not required to act in a manner inconsistent with or repugnant to the exercise of judicial power. The court unanimously accepted the DPP’s argument. Imprisonment is not punitive if it is ordered for non-punitive purposes 19.51 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 gave the High Court another opportunity to consider the Kable principles in relation to another scheme [page 531] that authorised the re-imprisonment of a person without a fresh crime or criminal trial. The object of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), set out in s 3(1) of that Act, is the ‘care, control or treatment’ of serious sex offenders. Section 13 authorises the Supreme Court of Queensland to order the continuing detention of a prisoner serving imprisonment for a serious sexual offence if the court forms the view that the person would represent a serious danger to the community if they were not re-imprisoned or subjected to a supervision order: s 13(1). That serious danger will be present where there is ‘an unacceptable risk that the prisoner will commit a serious sexual assault’: s 13(2). The court could only make the order if it was satisfied of the statutory requirement on the basis of ‘acceptable, cogent evidence’ and ‘to a high degree of probability’: s 13(3). In making its decision, the court was to have regard to a range of matters, including: psychiatric and medical reports and assessments; information of any propensity or evidence of a pattern of behaviour; participation in rehabilitation programs; the risk that the prisoner would commit another serious sexual offence; and the need to protect the community. An order for continuing imprisonment could be

appealed, and is susceptible to periodic reviews. Section 8 authorises the Supreme Court of Queensland to make an interim detention order in advance of a hearing for a continuing detention order application. Supervised release could be ordered as an alternative to further imprisonment. The appellant had been imprisoned following a conviction for rape. Upon his release, he committed further serious sexual offences and was convicted and sentenced to a further period of imprisonment. Shortly before his release from this further period of imprisonment, on the application of the Queensland Attorney-General, the Supreme Court made an interim detention order against the appellant, which was later replaced by a continuing detention order. Fardon was returned to the same prison where he had completed his sentence for rape. Fardon’s counsel argued that the provisions authorising his continued imprisonment under the guide of a detention order for care or treatment were repugnant to Ch III of the Constitution because the provisions purported to: •

authorise the Supreme Court, a Ch III court, to order the civil confinement of a person in a prison;

•

authorise the Supreme Court to order the detention of a person in prison on the basis that they are at risk of reoffending in the future in the absence of a crime, a trial and a conviction;

•

authorise the Supreme Court to order the imprisonment of a person in circumstances that do not require the application of established principles relating to civil commitment for mental illness;

•

authorise the Supreme Court to order the further punishment of a class of prisoners selected by the legislature in a manner which is inconstant with the essential character of a court and inconsistent

with the nature of judicial power; and •

subject a prisoner to double punishment for previous crimes (see Keyzer, Pereira and Southwood, 2004). [page 532]

Queensland argued that Fardon had not been singled out as Kable had been in Kable’s case, and that the classes of ‘preventive detention’ described by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (see 19.44) were not closed. Queensland pointed to Gaudron J’s comments in Chu Kheng Lim as signalling her Honour’s difference of opinion with those three justices (see 19.44) leaving the door open for a new variety of preventive detention such as, perhaps, the preventive detention of sex offenders in prison. Fardon’s counsel argued that there could be no new category of preventive detention involving imprisonment and that vesting power in a Ch III court to order the imprisonment of a person without a fresh crime or trial was double punishment and punishment without criminal trial. A majority of the High Court (Kirby J dissenting) rejected these submissions, and held that the detention regime did not violate the Kable principles. McHugh J said (at 601–2): The Queensland Parliament has power to make laws for ‘the peace welfare and good government’ of that State. That power is preserved by s 107 of the Commonwealth Constitution. Those words give the Queensland Parliament a power as plenary as that of the Imperial Parliament. They would authorise the Queensland Parliament, if it wished, to abolish criminal juries and require breaches of the criminal law to be determined by non-judicial tribunals. The content of a State’s legal system and the structure, organisation and jurisdiction of its courts are matters for each State. If a State legislates for a tribunal of accountants to hear and determine ‘white collar’ crimes or for a tribunal of psychiatrists to hear and determine cases involving mental health issues, nothing in Ch III of the Constitution prevents the State from doing so. Likewise, nothing in Ch III prevents a State, if it wishes, from implementing an inquisitorial,

rather than an adversarial, system of justice for State courts. The powers conferred on the Queensland Parliament by s 2 of the Constitution Act 1867 (Qld) are, of course, preserved subject to the Commonwealth Constitution. However, no process of legal or logical reasoning leads to the conclusion that, because the Federal Parliament may invest State courts with federal jurisdiction, the States cannot legislate for the determination of issues of criminal guilt or sentencing by non-judicial tribunals. The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court’s capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised. Conclusions In my opinion, Kable does not govern this case. Kable is a decision of very limited application. That is not surprising. One would not expect the States to legislate, whether by accident or design, in a manner that would compromise the institutional

[page 533] integrity of their courts. Kable was the result of legislation that was almost unique in the history of Australia. More importantly, however, the background to and provisions of the Community Protection Act pointed to a legislative scheme enacted solely for the purpose of ensuring that Mr Kable, alone of all people in New South Wales, would be kept in prison after his term of imprisonment had expired. The terms, background and parliamentary history of the legislation gave rise to the perception that the Supreme Court of that State might be acting in conjunction with the New South Wales Parliament and the executive government to keep Mr Kable in prison. The combination of circumstances which gave rise to the perception in Kable is unlikely to be repeated. The Kable principle, if required to be applied in future, is more likely to be applied in respect of the terms, conditions and manner of appointment of State judges or in circumstances where State judges are used to carry out non-judicial functions, rather than in the context of Kable-type legislation.

Gummow J (at 608–19) was not so strident in his treatment of

Fardon’s argument. But his Honour also did not follow his previous judgment in Kable, where he had said that the most significant defect of the Community Protection Act was that ‘whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly, in my view, such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a state court exercising federal jurisdiction. Moreover, not only is such an authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree’: at 132. Instead, in Fardon Gummow J said (at 610): … the factum upon which the attraction of the Act turns is the status of the appellant to an application by the Attorney-General as a ‘prisoner’ … who is presently detained in custody upon conviction for an offence of the character of those offences of which there is said to be an unacceptable risk of commission if the appellant be released from custody. To this degree there remains a connection between the operation of the Act and anterior conviction by the usual judicial processes. A legislative choice of a factum of some other character may well have imperilled the validity of s 13.

Gummow J then emphasised that what is vital to validity was the requirement for regular reviews; that there are specified legal criteria for the court to consider; and that the court’s determination of the statutory question is to be reached to a high degree of satisfaction and independently of any ‘instruction, advice or wish of the legislative or executive branches of government’. Hayne J agreed with the reasons of Gummow J, with the exception of the question whether the Commonwealth Parliament could pass a similar law. His Honour reserved that question for consideration (at 647–8). In a joint judgment, Callinan and Heydon JJ rejected the argument that Kable applied, holding that the Act was designed to achieve a legitimate non-punitive purpose ‘with due regard to a full and conventional judicial process, including unfettered appellate review’

(at 658). The state court was ‘not called upon to act and decide, effectively as the alter ego of the legislature or the executive’: it undertook a ‘genuine adjudicative process’ and its ‘integrity and independence as a court’ were not compromised (at 656). [page 534] In dissent, Kirby J expressed some difficulty with the conclusion that the legislation was not punitive in effect, as Callinan and Heydon JJ had concluded. Kirby said (at 631–2): There are five features in the Act which, combined, indicate an attempted imposition upon the judges of the Supreme Court of Queensland functions repugnant to Ch III of the federal Constitution as explained in Kable. These features severally authorise the Supreme Court, contrary to traditional judicial process in Australia, to order: (1) the civil commitment of a person to a prison established for the reception of prisoners, properly so-called; (2) the detention of that person in prison, in the absence of a new crime, trial and conviction and on the basis of the assessment of future re-offending, not past offences; (3) the imprisonment of the person in circumstances that do not conform to established principles relating to civil judicial commitment for the protection of the public, as on a ground of mental illness; (4) the imposition of additional judicial punishment on a class of prisoners selected by the legislature in a manner inconsistent with the character of a court and with the judicial power exercised by it; and (5) the infliction of double punishment on a prisoner who has completed a sentence judicially imposed by reference, amongst other things, to the criterion of that person’s past criminal conduct which is already the subject of final judicial orders that are (or shortly will be) spent at the time the second punishment begins.

19.52 In Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 24, McHugh J criticised the joint judgment of Brennan, Deane and Dawson JJ in Chu Kheng Lim, which had been applied by Toohey J and Gummow J in Kable: If no more appears, a law which authorises the Executive to detain a person should be

classified as ‘penal or punitive in character’ and a breach of the separation of powers doctrine. But it is going too far to say that, subject to specified exceptions, detention by the Executive is always penal or punitive and can only be achieved as the result of the exercise of judicial power. Accordingly, their Honours’ conclusion that in times of peace, citizens enjoy a constitutional immunity from being imprisoned by Commonwealth authority except under an order by a court in the exercise of the judicial power of the Commonwealth cannot stand. Whether detention is penal or punitive must depend on all the circumstances of the case. Logically, the fact that courts punish persons by making orders for detention by the Executive cannot lead to the conclusion — subject to exceptions or otherwise — that detention by the Executive is necessarily penal or punitive.

Previously, as noted at 19.44, Gaudron J had said: ‘I am not presently persuaded that legislation authorizing detention in circumstances involving no breach of the criminal law and travelling beyond presently accepted categories is necessarily and inevitably offensive to Ch III’. In Kruger v Commonwealth (1997) 190 CLR 1 at 110, Gaudron J was more emphatic, saying that ‘it is not possible to say that, subject to clear exceptions, the power to authorise detention in custody is necessarily and exclusively judicial power’. In Al-Kateb v Godwin (2004) 219 CLR 562 at 648–2, Hayne J, with whom Heydon J agreed at 662–3, approved Gaudron J’s statements in Kruger and Chu Kheng Lim. [page 535] The ‘institutional integrity’ of Ch III courts 19.53 In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, the Western Australian Commissioner of Police applied to the Corruption and Crime Commission under the Corruption and Crime Commission Act 2003 (WA) for a ‘fortification warning notice’ in respect of a motorcycle clubhouse. A notice was issued by the commission because it was satisfied that there were reasonable grounds for suspecting that the clubhouse was fortified

and used by people for the purposes of organised crime. The Gypsy Jokers applied to the Supreme Court for review of the removal notice. Under s 76(1) of the Act, the question for the Supreme Court was whether the commissioner could reasonably have had the requisite belief when issuing the notice. The information available to the club in the review proceeding was restricted by s 76(2), which enabled the commissioner to identify any information provided to the court for the purposes of the review as confidential ‘if its disclosure might prejudice the operations of the Commissioner’. In practice this involves ‘blacking out’ portions of affidavits relied upon by the commissioner in such proceedings. Such information would then be for the court’s use only and could not be disclosed to any other person, whether or not a party to the proceedings, and could not be publicly disclosed. The Gypsy Jokers challenged the validity of s 76(2) on the ground that it imposed an impermissible legislative direction and form of executive control over the exercise by the Supreme Court of its jurisdiction, and a denial of procedural fairness substantially impairing the institutional integrity and impartiality of the court mandated by Ch III of the Constitution and required by Kable v DPP (NSW) (1996) 189 CLR 51. By allowing only the court to have access to the confidential information, s 76(2) was argued to be repugnant to or inconsistent with the continued institutional integrity of the court. Gleeson CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ (Kirby J dissenting) upheld s 76(2) on the ground that the Supreme Court retained the power to determine whether disclosure of information provided by the commissioner might prejudice police operations. Consequently, there was no executive constraint on the independent performance of the court’s review function. Accordingly, the legislation did not compromise the institutional integrity of the court. 19.54

In International Finance Trust Company Ltd v New South Wales

Crime Commission (Criminal Assets Recovery case) (2009) 240 CLR 319, the court was invited to consider s 10 of the Criminal Assets Recovery Act 1990 (NSW). The effect of s 10 and the gravamen of the successful argument is conveyed in the first four paragraphs of the judgment of French CJ: 1 The Criminal Assets Recovery Act 1990 (NSW) (‘the CAR Act’) empowers the New South Wales Crime Commission (‘the Commission’) to apply to the Supreme Court of New South Wales for a restraining order in respect of some or all of the property of a person suspected of having committed a serious offence. The provisions relating to restraining orders are in aid of the Commission’s power to apply to the Court for forfeiture of the relevant property. 2 The Commission may apply to the Court for a restraining order without notice to the person affected. If the application is supported by an affidavit stating that the person affected is suspected of having engaged in ‘serious crime related activities’,

[page 536] and setting out the grounds for that suspicion, and if the Court considers, having regard to the affidavit, that there are reasonable grounds for the suspicion, then the Court must make the order sought. 3 The validity of the provisions of the CAR Act providing for restraining orders and assets forfeiture orders is challenged in this appeal from the Court of Appeal of the Supreme Court of New South Wales. The basis of the challenge is that the CAR Act imposes upon the Supreme Court functions which so distort its institutional integrity as to be inconsistent with its status as a repository of federal jurisdiction, conferred pursuant to Ch III of the Commonwealth Constitution. The challenge relies upon the decision of this Court in Kable v Director of Public Prosecutions (NSW). 4 On its proper construction, s 10 of the CAR Act requires the Supreme Court to hear and determine, without notice to the persons affected, applications for restraining orders made ex parte by the Commission. For that reason the section impermissibly directs the Court as to the manner of the exercise of its jurisdiction and restricts the application of procedural fairness in the judicial process and conditions its full application upon a discretion exercised by the Executive branch of the government of New South Wales. It is not to the point that the restriction is temporary, nor that the scope of the order may subsequently be varied by an exclusion order, which can only be made if the party affected shows, on the balance of probabilities, that the affected property was not illegally acquired. In my opinion the section is invalid.

French CJ acknowledged that civil assets forfeiture laws were a widespread phenomenon, but noted that: 44 The Court must make the order applied for on the Commission’s application when the conditions set out in s 10(3) of the CAR Act are satisfied. There is no textual space in the section within which the Court may interpose a further condition requiring that notice first be given to the affected party. Nor is this a case in which, on the interpretative principles to which I have referred earlier, the Court should read such a power into the section by some form of implication unsupported by its text. Moreover, the general provisions of the UCPR relating to freezing orders are not apt to be grafted on to the legislative scheme of the CAR Act so far as it relates to restraining orders. The CAR Act contains its own procedural provisions. As Gummow and Bell JJ point out in their joint judgment and Heydon J shows in detail, the CAR Act establishes a ‘distinct regime’ excluding the general powers of the Supreme Court which might otherwise have applied [original emphasis].

Gummow and Bell JJ, in a joint judgment, also struck down s 10. Their Honours concluded that: 97 The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity. 98 Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia.

Heydon J provided a detailed judgment indicating why his Honour shared French CJ’s conclusion that the principles of natural justice (or procedural fairness) are protected by the Kable principle of institutional integrity: at [140]–[147]. [page 537] The decision of the Queensland Court of Appeal in the Criminal Assets Recovery case had been foreshadowed to some extent by the decision of that court in Re Criminal Proceeds Confiscation Act 2002

(2004) 1 Qd R 40. The court invalidated s 30 of the Criminal Proceeds Confiscation Act 2002, which required the Supreme Court of Queensland to hear a state application for a restraining order in the absence of the person whose property is the subject of the application. In a judgment with which White and Wilson JJ agreed, Williams JA said (at 55): … the direction or command to the judge hearing the application to proceed in the absence of any party affected by the order to be made is such an interference with the exercise of the judicial process as to be repugnant to or incompatible with the exercise of the judicial power of the Commonwealth. Then, because the Supreme Court of Queensland is part of an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth, such a provision is constitutionally invalid.

19.55 In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, a company and a director of that company had been convicted in the New South Wales Industrial Court for offences under New South Wales occupational health and safety legislation. The state law contained a privative clause that provided that a decision of the Industrial Court is ‘final, and may not be appealed against, reviewed, quashed or called into question by any court or tribunal’. The company and director applied to the New South Wales Court of Appeal to quash their convictions on the basis that the Industrial Court had erred in exercising its jurisdiction under the state law. The Court of Appeal held there was no jurisdictional error, so the privative clause did not need to be considered. The company and director appealed to the High Court. It was argued that (at 536–7): The High Court is at the apex of the Australian judicature. There must ultimately be review available in the High Court of the correctness of the law applied anywhere in Australia. The existence of the power to review for jurisdictional error is insufficient to ensure that precedent and fundamental principles of criminal law are observed, especially if State legislatures have power to exclude judicial review for jurisdictional error. The States cannot abolish their Supreme Courts and vest State judicial power in bodies from which there could be no appeal to the High Court. Nor can they carve out the Supreme Court’s jurisdiction in a particular area and repose it in a new court from which there is no appeal to the High Court [reference omitted].

French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ summarised some of their (relevant) conclusions in the following terms (at 566): (d) Chapter III of the Constitution requires that there be a body fitting the description ‘the Supreme Court of a State’. (e) It is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. (f)

A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and, as explained further in these reasons, also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error.

(g) If a court has limited powers and authority to decide issues of an identified kind, a privative provision does not negate those limits on that court’s authority.

[page 538] (h) A privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature. It is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State [references omitted].

19.56 In South Australia v Totani (2010) 242 CLR 1, s 10(1) of the Serious and Organised Crime (Control) Act 2008 (SA) authorised the Attorney-General, on the application of the Commissioner of Police, to make a declaration in relation to an organisation if the AttorneyGeneral was satisfied that members of the organisation associated for criminal activity and represented a risk to public safety and order. Section 14(1) required the Magistrates Court, on application by the commissioner, to make a control order against a person if the court was satisfied that the person was a member of a declared organisation. A person subject to a control order was prohibited from associating with other members of declared organisations.

A 6:1 majority of the court struck down the law. French CJ said: 61 There are three overlapping assumptions which, as a matter of history and as a matter of inference from the text and structure of Ch III, underlie the adoption of the mechanism reflected in s 77(iii) of the Constitution. The first is the universal application throughout the Commonwealth of the rule of law, an assumption ‘upon which the Constitution depends for its efficacy’. The second is that the courts of the States are fit, in the sense of competent, to be entrusted with the exercise of federal jurisdiction. As Professor Sawer observed: The State Supreme Courts were of a very high and uniform calibre — a situation in marked contrast with that which obtained in the United States shortly after its establishment — and there was no substantial ground for fearing that they would be biased or parochial in their approach to federal questions. The generality of the wording of ss 71 and 77(iii) indicates that the assumption of competence extends to all courts of the States, albeit the supervisory role of the Supreme Courts, as was submitted by the Solicitor-General of the Commonwealth, reinforces the independence and impartiality of inferior State courts and contributes to the fulfilment of the constitutional imperative recognised in Kable. 62 The third assumption is that the courts of the States continue to bear the defining characteristics of courts and, in particular, the characteristics of independence, impartiality, fairness and adherence to the open-court principle. This formulation is deliberately non-exhaustive. In considering the attributes of courts contemplated by Ch III of the Constitution it is necessary to bear in mind the cautionary observation of Gummow, Hayne and Crennan JJ in Forge that: It is neither possible nor profitable to attempt to make some single allembracing statement of the defining characteristics of a court. Nevertheless, as their Honours added: An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal. At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court,

[page 539]

including, but not limited to, the influence of the executive government and its authorities. Decisional independence is a necessary condition of impartiality. Procedural fairness effected by impartiality and the natural justice hearing rule lies at the heart of the judicial process. The open-court principle, which provides, among other things, a visible assurance of independence and impartiality, is also an ‘essential aspect’ of the characteristics of all courts, including the courts of the States [references omitted].

Later, in a paragraph that conveniently sets out the conclusions of the remaining members of the majority, French CJ said: 82 Section 14(1) represents a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process. It gives the neutral colour of a judicial decision to what will be, for the most part in most cases, the result of executive action. That executive action involves findings about a number of factual matters including the commission of criminal offences. None of those matters is required by the SOCC Act to be disclosed to the Court, nor is the evidence upon which such findings were based. In some cases the evidence, if properly classified as ‘criminal intelligence’, would not be disclosable. Section 14(1) impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function. I agree with the conclusion of Gummow J, Crennan and Bell JJ and Kiefel J that s 14(1) authorises the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with that Court’s institutional integrity. I agree also with the conclusion reached by Hayne J about the operation of s 14(1) in permitting the executive to enlist the Magistrates Court for the purpose of applying special restraints to particular individuals identified by the executive as meriting application for a control order and the repugnancy of that function to the institutional integrity of the Court.

19.57 In Wainohu v New South Wales (2011) 243 CLR 181, the High Court considered the validity of the Crimes (Criminal Organisations Control) Act 2009 (NSW). The long title of the Act indicated that its purpose was ‘to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members’. Justices of the Supreme Court of New South Wales who gave consent would be declared ‘eligible judges’ for the purposes of Pt 2 of the Act. The New South Wales Commissioner of Police could then apply to an eligible judge for an order that an organisation be a declared organisation for the purposes

of the Act. If an organisation was decided to be a ‘declared organisation’ this would result in various controls and restrictions on its assets and the capacity of its organisations to associate with each other. The attack on the validity of the legislation focused on s 13(2) of the Act, which stated: ‘If an eligible Judge makes a declaration or decision under [Pt 2], the eligible Judge is not required to provide any grounds or reasons for the declaration or decision (other than to a person conducting a review under section 39 if that person so requests)’. Section 39 provided that the New South Wales Ombudsman could scrutinise the exercise of powers conferred on police officers under the Act and furnish reports to the Attorney-General and the Commissioner. French CJ and Kiefel J (at 219–20, [68]–70]), together with Gummow, Hayne, Crennan and [page 540] Bell JJ (at 228, [104]), declared s 13(2) invalid because it exempted eligible judges from any duty to give reasons in connection with the making or revocation of a declaration that an organisation should be a ‘declared organisation’. Gummow, Hayne, Crennan and Bell JJ said: 103 The significance to be attached to the Act’s denial of a duty to give reasons for deciding whether to make or revoke a declaration is not reduced by attempting some prediction of whether, despite the language of s 13(2), judges would nonetheless be likely to give reasons. Because there is no duty to do so, the possibility that a declaration would be made or revoked and no reasons given for the decision is not to be dismissed from consideration as some remote or fanciful possibility. Conclusions respecting s 13(2) 104 The result is that the Act imposes no duty upon the eligible Judge to provide reasons or grounds when deciding applications to make or revoke a declaration under Pt 2, and for that reason Pt 2 is invalid. We turn to explain why this is so. 105 The Commonwealth Solicitor-General correctly submitted that the reasoning in the

decisions in Wilson and Kable v Director of Public Prosecutions (NSW), delivered respectively on 6 and 9 September 1996, share a common foundation in constitutional principle. That constitutional principle has as its touchstone protection against legislative or executive intrusion upon the institutional integrity of the courts, whether federal or State. The principle applies throughout the Australian integrated court system because it has been appreciated since federation that the Constitution does not permit of different grades or qualities of justice. It follows that repugnancy to or incompatibility with that institutional integrity may be manifested by State (and Territory), as well as federal, legislation which provides for the conferral of functions upon a judicial officer persona designata. The submissions by Victoria to the contrary should be rejected. 106 In Hilton v Wells, Mason and Deane JJ observed that: when a function is entrusted to a judge by reference to his judicial office the legislators and the community are entitled to expect that he will perform the function in that capacity. To the intelligent observer, unversed in what Dixon J accurately described — and emphatically rejected — as ‘distinctions without differences’ (Meyer), it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade. 107 With those words in mind, the immediate question is whether s 13(2) displays in its practical operation within the scheme of the Act repugnancy to or incompatibility with the institutional integrity of the Supreme Court. Such questions, as Gleeson CJ emphasised in North Australian Aboriginal Legal Aid Service Inc v Bradley, do not arise in the abstract; they present concrete, practical issues, resolution of which may be assisted by regard to what other course was available to the legislature. 108 Another course readily available in the present case would be to cast s 13(2) in a form which, at least with respect to declarations under s 9 and revocations under s 12, required as well as permitted the provision of grounds or reasons. As indicated earlier in these reasons with reference to what was said in Gypsy Jokers, in the preparation of reasons for decisions under s 9 and s 12 of the Act, steps could be taken to maintain the confidentiality of material properly classified as ‘criminal intelligence’ within the meaning of s 3(1) of the Act.

[page 541]

109 The vice in s 13(2) as it presently stands is that s 9 and s 12 confer new functions on Supreme Court Judges in their capacity as individuals with the result that an outcome of what may have been a contested application cannot be assessed according to the terms in which it is expressed … The opaque nature of these outcomes under Pt 2 also makes more difficult any collateral attack on the decision, and any application for judicial review for jurisdictional error. The effect of Pt 2 is to utilise confidence in impartial, reasoned and public decision-making of eligible Judges in the daily performance of their offices as members of the Supreme Court to support inscrutable decision-making under s 9 and s 12.

At the federal level, an exception to the separation of judicial power, the ‘persona designata’ exception, has long been recognised. According to this principle, judges can be appointed to exercise nonjudicial powers in a personal capacity, so long as certain conditions are satisfied. These cases are considered at 19.69–19.71. 19.58 In Momcilovic v The Queen (2011) 245 CLR 1 the court was invited to consider whether s 36 of the Victorian Charter of Human Rights and Responsibilities Act 2006 infringed the institutional integrity of a Ch III court. Section 36(2) empowers the Supreme Court of Victoria to make a declaration that legislation is incompatible with a human right set out in the Act ‘if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right’. Section 36(5) states that the making of such a declaration has no impact on the validity of the provisions in question or the rights and duties of the parties. Instead, the Supreme Court provides a copy of the declaration to the Attorney-General (s 36(6)) and the Minister administering the statute in question prepares a written response for the Victorian Parliament addressing the declaration: s 37. Momcilovic had been charged with an offence of trafficking in a drug of dependency in s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (see further 21.35). Section 73(2) of the Act provided that unauthorised possession of a particular quantity of a controlled drug provided prima facie evidence of trafficking. Section 5

reversed the onus of proof of possession, providing that if drugs were found on land or premises owned by an accused it would be assumed the drugs were in their possession. The trial court and the Victorian Court of Appeal held that s 5 reversed the legal burden of proof and the Court of Appeal held that this breached the human right of the ‘presumption of innocence’ in s 25(1) of the Charter. The Court of Appeal made a declaration of incompatibility. A majority of the court held that the declaration power was valid because the legislation did not affect the independence and impartiality of a Ch III court. 19.59 In a number of decisions it has been suggested that one of the implications arising from the separation of judicial power is that Ch III courts can only exercise their power in accordance with the principles of natural justice (also known as ‘procedural fairness’). In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 17, Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ noted that this requirement flows from the character of the power: Ch III judges must behave judicially. Previously, in Leeth v Commonwealth (1992) 174 CLR 455, Mason CJ, Dawson and McHugh JJ said (at 470): [page 542] It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power.

In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 359, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said: Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the

evidence against them.

In International Finance Trust Company Ltd v New South Wales Crime Commission (Criminal Assets Recovery case) (2009) 240 CLR 319, French CJ said: 52 In their joint judgment in Thomas v Mowbray, Gummow and Crennan JJ observed that the decisions of this Court had not gone so far as to imply something like a ‘due process’ requirement from the text and structure of Ch III. I would add that the term ‘due process’, imported from another constitutional setting, should be treated with some caution in relation to Ch III. Whether a more general implication may emerge from Ch III than has hitherto been made, and how it should be designated, is a matter for another day. It is sufficient, for the present, to accept as a proposition that which Gummow and Crennan JJ accepted, albeit as a working hypothesis, when they said in Thomas: it may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III. The plaintiff in that case argued that provisions of Div 104 of the Criminal Code (Cth) providing for the issue of interim control orders were invalid. One of the grounds of the asserted invalidity was that ‘Div 104 provides for the routine making of interim control orders depriving a person of liberty on an ex parte basis and without notice.’ Gummow and Crennan JJ rejected that contention on the basis that: ex parte applications are no novelty, and the scheme of the legislation … is to provide in the very short term for a contested confirmation hearing if the person in question wishes to proceed in that way. The question whether Div 104 required a court to proceed ex parte upon receipt of a request for the issue of an interim control order was not agitated. 53 Chu Kheng Lim, Nicholas and Thomas were concerned with courts exercising federal jurisdiction and the question whether duties or functions were imposed upon them which were inconsistent with their independence from the legislative and executive branches of government. Although it is right to say, as was recognised in Kable, that the Constitution provides for an integrated national court system, that does not mean that State courts or their judges and officers are to be assimilated with federal courts and their judges and officers. On the other hand, as McHugh J explained in Kable: in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Constitution’s

plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts.

[page 543] 54 Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary. When an ex parte application for interlocutory relief is made the court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made. In so saying, it is not intended to suggest that an official cannot validly be authorised by statute to bring an application ex parte to a federal court or to a State or Territory court capable of exercising federal jurisdiction. The CAR Act takes the further step of requiring the Supreme Court to hear and determine such an application ex parte.

Both French CJ and Heydon J said that the relevant foundational principle for a constitutional requirement of natural justice or procedural fairness is that the courts cannot be required to do things that are repugnant to Ch III. Gageler J also emphasised the constitutional significance of procedural fairness in the next case. 19.60 In Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38, the court (French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ) upheld Queensland’s criminal organisations legislation, the Criminal Organisation Act 2009 (Qld). The appellant, a company associated with the Gold Coast Chapter of the Finks Motorcycle Club, raised a series of constitutional questions relating to

the legislation. As Hayne, Crennan, Kiefel and Bell JJ explained in their joint judgment: 96 The Special Case agreed by the parties to this proceeding asked whether certain provisions of the Criminal Organisations Act 2009 (Q) (‘the CO Act’) are invalid because they, or any of them, infringe Ch III of the Constitution. The Special Case is agreed in proceedings brought in the Supreme Court of Queensland, and removed in part into this Court, to declare the second respondent, the Finks Motorcycle Club, Gold Coast Chapter, a criminal organisation under the CO Act. The first respondent, Pompano Pty Ltd, is said to be part of that organisation. 97 As developed in argument, the chief issue was whether s 10 of the CO Act, which permits the Supreme Court of Queensland on application by the Commissioner of the Queensland Police Service (‘the Commissioner’) to declare an organisation to be a ‘criminal organisation’, is invalid because the procedures prescribed by the CO Act for the Supreme Court to decide whether to make a declaration impair the institutional integrity of that Court. The principal submission of the respondents, who alleged invalidity, was that the institutional integrity of the Supreme Court is impaired because the CO Act permits the Court to receive and act upon material which must not be disclosed to a respondent to an application for a declaration or to any representative of the respondent. 98 The material that must be kept from the respondent to an application for a declaration is referred to in the CO Act as ‘criminal intelligence’. Criminal intelligence is information that relates to actual or suspected criminal activity. Information of that kind must be kept from a respondent if the Supreme Court declares it to be criminal intelligence and that declaration cannot be made unless the Court is satisfied that disclosure of the information could reasonably be expected to prejudice a criminal

[page 544] investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person’s life or physical safety. 99 The respondents raised two other issues but these were treated as subsidiary to the issue just described. The first was that the CO Act requires the Supreme Court to decide, in determining whether to declare an organisation to be a criminal organisation, whether that organisation is ‘an unacceptable risk to the safety, welfare or order of the community’. Is that a question suitable for judicial determination? The second was that the CO Act gives a respondent to an application for a declaration that it is a criminal organisation little time to respond to that application. Does that require

such a departure from judicial processes that it impairs the institutional integrity of the Supreme Court?

Later in their judgment, the plurality explained the gravamen of the applicant’s argument: 116 … The arguments that the CO Act’s provisions dealing with criminal intelligence render s 10 invalid, though expressed in various ways, depended upon one central proposition: that Ch III of the Constitution puts beyond the legislative power of a State any enactment that would permit a State Supreme Court to decide a disputable issue by reference to evidence or information of which one party does not know and to which that party can have no access whether personally or by a representative. The applicable principles 122 The argument for invalidity depended upon the application of principles first stated in Kable v Director of Public Prosecutions (NSW) and later considered and applied in several cases including, in particular, Fardon v Attorney-General (Qld), Gypsy Jokers Motorcycle Club Inc v Commissioner of Police, K-Generation Pty Ltd v Liquor Licensing Court, International Finance Trust Co Ltd v New South Wales Crime Commission, South Australia v Totani and Wainohu v New South Wales. 123 The relevant principles have their roots in Ch III of the Constitution. As Gummow J explained in Fardon, the State courts (and the State Supreme Courts in particular) have a constitutionally mandated position in the Australian legal system. Once the notion is rejected, as it must be, that the Constitution ‘permits of different grades or qualities of justice’, and it is accepted that the State courts have the constitutional position that has been described, it follows that ‘the Parliaments of the States [may] not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth’ (emphasis added). As Gummow J further pointed out, and as is now the accepted doctrine of the Court, ‘the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system’. 124 Three further points must be made about this ‘essential notion’. First, ‘the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes’. Second, the repugnancy doctrine ‘does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III’. Third, content must be given to the notion of institutional integrity of the State courts, and that too is a notion not readily susceptible of definition in terms which will dictate future outcomes. 125 Something more must be said about the second and third points. Independence and impartiality are defining characteristics of all of the courts of the Australian judicial system. They are notions that connote separation from the other branches of

government, at least in the sense that the State courts must be and remain free from

[page 545] external influence. In particular, the courts cannot be required to act at the dictation of the Executive. In this respect, clear parallels can be drawn with some aspects of the doctrines that have developed in relation to federal courts. But because the separation of judicial power mandated by Ch III does not apply in terms to the States, and is not implied in the constitutions of the States, there can be no direct application to the State courts of all aspects of the doctrines that have been developed in relation to Ch III. More particularly, the notions of repugnancy to and incompatibility with the continued institutional integrity of the State courts are not to be treated as if they simply reflect what Ch III requires in relation to the exercise of the judicial power of the Commonwealth. 126 Two related consequences follow from these propositions and should be noted. First, in applying the notions of repugnancy and incompatibility it may well be necessary to accommodate the accepted and constitutionally uncontroversial performance by the State courts of functions which go beyond those that can constitute an exercise of the judicial power of the Commonwealth. Second, the conclusions reached in this matter cannot be directly translated and applied to the exercise of the judicial power of the Commonwealth by a Ch III court. As pointed out by this Court in Bachrach (HA) Pty Ltd v Queensland, the ‘occasion for the application of Kable does not arise’ if the impugned State law would not offend Ch III had it been enacted by the Commonwealth Parliament for a Ch III court. But because ‘[n]ot everything by way of decision-making denied to a federal judge is denied to a judge of a State’, that a State law does not infringe the principles associated with Kable does not conclude the question whether a like Commonwealth law for a Ch III court would be valid. It is not necessary for the resolution of this case to pursue those matters further.

French CJ and Gageler J also upheld the legislation. French CJ, however, emphasised the significance of principles of procedural fairness (at [1]–[3] and [5]). Gageler J said: Chapter III and procedural fairness 180 The structural separation of the judicial power of the Commonwealth by Ch III of the Constitution is ‘the bulwark of the [C]onstitution against encroachment whether by the legislature or by the executive’ and ‘the Constitution’s only general guarantee of due process’. Chapter III has the result that ‘[t]he guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch III court acting as such, that is to

say, acting judicially’. 181 Yet Ch III of the Constitution also adopts an ‘autochthonous expedient’: it allows the separated judicial power of the Commonwealth to be vested in courts other than those created by the Commonwealth Parliament. All State and Territory courts are able to be vested by the Commonwealth Parliament with the judicial power of the Commonwealth. They are all ‘Ch III courts’. 182 That structural expedient can function only if State and Territory courts are able to act ‘judicially’. To be able to act judicially, a court must have institutional integrity: it must ‘be and appear to be an independent and impartial tribunal’. 183 There lies the essentially structural and functional foundation for the implication that has come to be associated with Kable v Director of Public Prosecutions (NSW). The implication is a practical, if not logical, necessity. To render State and Territory courts able to be vested with the separated judicial power of the Commonwealth, Ch III of the Constitution preserves the institutional integrity of State and Territory courts. A State or Territory law that undermines the actuality or appearance of a State or Territory court as an independent and impartial tribunal is incompatible with Ch III

[page 546] because it undermines the constitutionally permissible investiture in that court of the separated judicial power of the Commonwealth. 184 The plurality in Leeth v The Commonwealth anticipated the Kable implication in saying that ‘[i]t may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power’. The plurality added that ‘the rules of natural justice are essentially functional or procedural’ and that ‘a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers’. ‘It is’, of course, ‘a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.’ 185 Two members of the majority in Kable specifically held that a function cannot be conferred on a court compatibly with Ch III if that function is ‘antithe[tical]’ or ‘repugnant’ to the ‘judicial process’, explained in Bass v Permanent Trustee Co Ltd to require ‘that the parties be given an opportunity to present their evidence and to challenge the evidence led against them’. That holding was subsequently applied by all members of the majority in International Finance Trust Co Ltd v New South Wales Crime Commission.

186 Justifications for procedural fairness are both instrumental and intrinsic. To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate justified feelings of resentment in those to whom fairness is denied. The effects go further. Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice. 187 The centrality of procedural fairness to institutional integrity is implicit in the description of the inherent jurisdiction of a superior court to stay proceedings on grounds of abuse of process as involving: the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. It is also implicit in the explanation that the inherent jurisdiction: extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. 188 While the characteristics of a court as an independent and impartial tribunal defy exhaustive definition, there is no novelty in the proposition that those characteristics include that the court not be required by statute to adopt a procedure that is unfair. Procedural fairness requires the avoidance of ‘practical injustice’. It requires, at the very least, the adoption of procedures that ensure to a person whose right or legally protected interest may finally be altered or determined by a court order a fair opportunity to respond to evidence on which that order might be based. 189 Does the proposition that a court cannot be required by statute to adopt a procedure that is unfair admit of exceptions? No authority compels the conclusion that it does.

19.61 The High Court rejected a challenge on Kable grounds to the validity of s 146C of the Industrial Relations Act 1996 (NSW) (‘the IR Act’) in Public Service [page 547] Association and Professional Officers’ Association Amalgamated of New

South Wales v Director of Public Employment (2012) 250 CLR 343. The Public Service Association (PSA) filed an application in the New South Wales Industrial Relations Commission seeking two new awards: at [15]. While the proceedings relating to that application were pending, s 146C of the Act was introduced by the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 (NSW) (‘the Amendment Act’). Section 146C applied to proceedings pending before the commission at the time it commenced: s 146C(6). It required the commission to ‘give effect to any policy on conditions of employment of public sector employees’ declared by regulation to be an aspect of government policy that was required to be given effect by the commission and that applied to the matter to which, relevantly, the award related. The Industrial Relations (Public Sector Conditions of Employment) Regulations 2011 (‘the Regulation’), made on 20 June 2011, declared certain aspects of government policy to be given effect by the commission when, relevantly, making or varying an award: at [22]. One of the policies limited increases in remuneration that may be awarded by the commission: at [25]; [52]. When sitting as the ‘Commission in Court Session’, the New South Wales Industrial Relations Commission, established under the IR Act, is the Industrial Court of New South Wales and is constituted by judicial members: at [7]. As French CJ put it: 13 The text of the IR Act supports the characterisation of the commission as one body clothed with distinct legal characters according to its composition and functions. It exercises what might broadly be called arbitral functions in its character as the commission sitting other than in court session. There may be some ‘arbitral’ functions which could also be classified as ‘judicial’. The boundary between those classifications is not necessarily defined by a bright line. It is, however, clear that the Industrial Court exercises judicial functions.

The PSA’s challenge to the validity of s 146C ‘emphasised the close connection between the functions conferred on the Commission and

the Industrial Court, including the Court’s jurisdiction to enforce orders and awards of the Commission’, pointing to the dual functions of judicial members of the Commission who could constitute the Commission in or out of Court Session: at [29]; see also at [56]. As French CJ explained: 29 The organisational overlap of the commission in its non-judicial and judicial characters and the involvement of judicial members in the non-judicial work of the commission was the foundation for the PSA’s argument that s 146C provides impermissibly for the Commission, including its judicial members, to be subject to direction and control by the Executive Government from time to time.

The declaration of a policy amounted, in the PSA’s submission, to ‘an instruction to the commission by the executive, requiring it to comply with the identified policy of the government’, and the ‘capacity to direct the commission in pending proceedings permit[ed] the government to alter or dictate the outcome, or require the acceptance of the government’s own submissions, in those proceedings’: at [37]. That capacity to ‘direct’ the commission in the exercise of its arbitral function impaired the institutional integrity of the commission ‘in court session’ because [page 548] a judicial member could constitute the commission in and out of court session. A member of the public, though, would not be able to distinguish between the dual functions, so the capacity to direct the commission out of court session could be perceived to carry over to the exercise of the commission’s judicial powers when sitting in court session as the Industrial Court of New South Wales and thus give rise to the perception that that the commission in court session is not impartial and independent (see, in particular, [74]; see also [46], [53] and the headnote at 345-6).

In French CJ’s view, the word ‘policy’ in s 146C, properly construed, did not extend to a ‘direction as to the outcome of a matter’ that left the commission with ‘nothing to do but to translate the direction into its order’, but it did ‘encompass principles of the kind embodied in the Regulation’: at [40]. Accordingly, s 146C did not extend to ‘a regulation incorporating by reference a policy that consisted simply of a direction about the outcome of a particular case before the commission’: at [41]. It followed, then, that ‘a regulation of a kind contemplated by s 146C [did] not involve the commission in giving effect to an executive direction’: at [45]. Rather, the regulation, incorporating a policy, formed part of the body of law the Commission was required to apply in the course of making a decision: at [45]. Thus, the foundation for the PSA’s constitutional argument fell away. In brief judgments, Hayne, Crennan, Kiefel and Bell JJ, writing jointly, and Heydon J, writing separately, also dismissed the PSA’s argument. The plurality characterised the following point as dispositive of the appeal: 58 The commission is constrained, when making or varying an award, by the provisions of regulations made under s 407(1) and referred to in s 146C. In performing its functions, the Commission must act according to law. That s 146C and the Regulation refer to the rules and principles which may be, or have been, made by regulation as statements of ‘policy’ or ‘government policy’ does not deny that those rules and principles form a part of the body of law which governs the Commission’s performance of its arbitral functions. The institutional integrity of the Industrial Court is not, and cannot be said to be, affected by its members applying the law when performing non-judicial functions.

Heydon J’s reasoning was to similar effect. He accepted the submission of the Victorian Attorney-General, who had intervened in the proceeding, that the requirement to give effect to a policy, embodied in delegated legislation, ‘merely sets the parameters for the Commission’s exercise of its statutory powers without directing the outcome of particular proceedings’: at [70]. Invalidity on Kable

grounds does not ensue merely from a requirement to apply the law. 19.62 In Attorney-General (NT) v Emmerson (2014) 253 CLR 393, the High Court reversed a majority decision of the Northern Territory Court of Appeal that s 36A of the Misuse of Drugs Act (NT) and s 94 of the Criminal Property Forfeiture Act (NT) (‘the Forfeiture Act’) were invalid because they required the Northern Territory Supreme Court to act in a manner incompatible with the proper discharge of its function as a repository of federal jurisdiction. Consistently, though, with the Court of Appeal’s finding below, the High Court dismissed a challenge to the statutory scheme on the ground that it effected an acquisition of property other than on just terms, contrary to s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth) (‘the NT Self-Government Act’): see 11.22. [page 549] On application of the Northern Territory Director of Public Prosecutions, the Supreme Court declared Emmerson a ‘drug trafficker’ under s 36A of the Misuse of Drugs Act. As a consequence, all the real and personal property he owned or effectively controlled was forfeited to the Northern Territory under s 94 of the Forfeiture Act. Emmerson had acquired the vast majority of the property by legitimate means and that property, valued in excess of $850,000, had no connection with any criminal offence: at [8]. The majority, constituted by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, held that the impugned provisions did not offend the Kable principle because ‘they do not require the Northern Territory Supreme Court to give effect to any decision made by the Executive’, in this case, the DPP: at [56]. A number of factors led to the conclusion that nothing in the statutory scheme required the Supreme Court to

‘act at the behest of the Executive — the DPP — or to give effect to government policy without following ordinary judicial processes’: at [69]. •

The majority began with the observation that it is ‘well established that Australian legislatures can empower courts to make specified orders if certain conditions are satisfied, even if satisfaction of such conditions depends on a decision, or application, made by a member of the Executive’: at [57]. The impugned Act conferred on the Northern Territory Supreme Court a power to make a declaration upon satisfaction of specified statutory criteria, and prescribed the consequences that would follow if the Supreme Court made a declaration. This constituted an ‘unremarkable example of conferring jurisdiction on a court to determine a controversy between parties which, when determined, will engage stated statutory consequences’: at [60].

•

The independence of the Supreme Court was unaffected by the consideration that the controversy was initiated by an officer of the Executive: at [61].

•

The statutory scheme was not directed ad hominem, unlike in Kable: at [62].

•

The Supreme Court’s power to prevent an abuse of process remained intact: at [64], [72].

•

A declaration could only be made by the Northern Territory Supreme Court on evidence sufficient to satisfy the civil standard of proof, in open court, in accordance with the requirements of procedural fairness, and in circumstances where an affected party could be legally represented, and receive reasons: at [65].

•

A declaration was subject to the usual rights of appeal: at [66]. Having found that the impugned provisions contravened the

limitation on power imposed by s 50(1) of the Northern Territory SelfGovernment Act (see 5.5–5.7), Gageler J, in dissent, did not address the Kable argument: at [141]. 19.63 Pollentine v Bleijie (2014) 253 CLR 629 is another case in the Kable line of authorities. Pollentine and Radan challenged the validity of s 18 of the Criminal Law Amendment Act 1945 (Qld) under which they were detained ‘during Her Majesty’s pleasure’. Under the Act, when Pollentine and Radan were ordered to be detained in 1984, a judge could direct that a person who had been convicted on indictment of an [page 550] ‘offence of a sexual nature’ against a child under the age of 17 ‘be detained in an institution during Her Majesty’s pleasure’ if two or more legally qualified medical practitioners reported to the judge that the offender was ‘incapable of exercising proper control over his sexual instincts’. The judge could do so in addition to or instead of imposing any other sentence. The offender could cross-examine the medical practitioners and call rebuttal evidence: at [4]–[5]. In 1984, an ‘institution’ included a prison or police gaol. An offender could not be released until the Governor in Council was satisfied ‘on the report of two legally qualified medical practitioners that it is expedient to release him’: at [7]. Whether it was ‘expedient’ turned on whether the detainee remained ‘incapable of exercising proper control over their sexual instincts’; ‘anticipated adverse community reaction’ or other forms of ‘political consequence’ following release were irrelevant: at [34], [36] (see also at [67] per Gageler J). The Act provided for an offender to be examined every three months.

The court rejected each of the three bases Pollentine and Radan relied on to make good their ultimate submission that s 18 of the Act infringed the Kable principle. First, they submitted that a detention order under s 18 delegated to the executive the power to determine the period in which an offender will be deprived of their liberty. However, contrary to that submission, the court found that there was no such delegation or ‘outsourcing’ (as it was described in oral argument: at [43]). Under the Act, the sentencing court was required to decide ‘according to the ordinary processes of the criminal law, applying ordinary principles of statutory construction and judicial decision making, whether s 18 may be engaged’ in a particular case and, if so, whether to ‘direct indefinite detention in addition to or instead of fixing a determinate sentence’: at [44]. Further, since, on its proper construction, the Act did not confer on the Executive an unconfined discretion to determine when an offender was released, the notion that ‘a court has delegated the fixing of the extent of punishment loses most, if not all, of its force’: at [45]. Continuation of detention depended on danger to the community, not retribution for what the offender had done: at [45]. (To similar effect, see Gageler J at [73].) Also, the power to order indeterminate detention under the Act, based on whether an offender’s ‘mental condition is such that he is incapable of exercising proper control’, is similar to powers courts had ‘long had’ to decide whether an offender was fit to stand trial or was criminally responsible for an alleged crime and to order indeterminate detention ‘on proof of unfitness and insanity’: at [45]. Second, Pollentine and Radan argued that the criteria a court must apply when determining whether to make a detention order were different to the criteria the Executive had to apply to decide whether a detainee may be released. The judicial order that the offender be detained during Her Majesty’s pleasure operated as the ‘factum for an

unconstrained executive power of detention’ (see headnote at 634). It followed, so the argument ran, that ‘a political decision to allow detention to continue is cloaked “in the neutral colors of judicial action”’: at [46]. Contrary to that submission, the decision to release a person under s 18 ‘is, and is seen to be, made by a political branch of government’ and not in any way made [page 551] to ‘appear as if it were made by a court’: at [47]. Further, the decision, which is made according to a criterion that admits of judicial review, could not properly be described as a ‘political decision’: at [47]. Thus, the metaphor of cloaking political decisions in the ‘neutral colors of judicial action’ (taken from Mistretta v United States 488 US 361 (1989)) was ‘wholly inapplicable’, but even if it was applicable, it was ‘no substitute for consideration of the principles of repugnancy and incompatibility’: at [49]. Gageler J, writing separately, also rejected Pollentine and Radan’s argument based on Mistretta. The argument proceeded from the premise that the contrast between the power to detain, conferred on a court, and the power to release, conferred on the Governor, rendered the ‘order of the judge no more than the formal authority for what is in substance an unconstrained executive power of detention’: at [74]. Although acknowledging differences between the two forms of assessment required, Gageler J considered that they nevertheless had a ‘commonality of purpose’ (protection of society from an unacceptable risk of physical harm), and that neither ‘alone nor in combination’ did the differences result in the role of the Governor being ‘properly characterised as involving an unconstrained executive

power of detention’: at [75]. Finally, Pollentine and Radan argued that a state court could only form part of a regime for preventive detention if that regime contained ‘safeguards to preserve the institutional integrity of the court’: at [51]. But the court held that the plaintiffs fell short of showing that giving the Executive power to make decisions about absolute or conditional release of persons detained under s 18 of the Act was ‘incompatible with or repugnant to the institutional integrity of the state courts’: at [51]. Gageler J considered that the argument was sufficiently answered by pointing out that the duty to medically examine a person detained at least once every three months, and that the power to release, together with an attendant duty to consider a request for release, as well as the obligation to accord procedural fairness, are subject to judicial review: at [76]. 19.64 In Kuczborski v Queensland (2014) 254 CLR 51, the High Court rejected another challenge on Kable grounds to Queensland legislation. As discussed at 20.2, the High Court dismissed Kuczborski’s challenge to the Vicious Lawless Association Disestablishment Act 2013 (Qld) as well as certain provisions of the Criminal Code (Qld) and the Bail Act 1980 (Qld) because he lacked standing. That confined the scope of the dispute, on the merits, to the offences created by ss 60A, 60B and 60C of the Criminal Code which French CJ described as effectively imposing restrictions on the freedom of movement and association of participants in criminal organisations (at [1]), and ss 173EB, 173EC and 173ED of the Liquor Act 1992 (Qld). The Liquor Act provisions made it an offence to enter or remain in licensed premises wearing or carrying items associated with a declared criminal organisation, such as the club patch, insignia or logo of the organisation, and obliged licensees and others to exclude from licensed premises persons wearing or carrying items of that kind. By majority, the High Court dismissed the challenge to the Criminal

Code provisions, and unanimously dismissed the challenge to the provisions of the Liquor Act. [page 552] There were four separate judgments. Crennan, Kiefel, Gageler and Keane JJ constituted the plurality, and gave the lead judgment. 19.65 Each of the offences created by ss 60A, 60B and 60C of the Criminal Code proscribed certain conduct by a person who was a ‘participant in a criminal organisation’: Kuczborski at [135], [191]–[197]. Thus, membership of a criminal organisation was an ingredient of each of the offences. The definition of ‘criminal organisation’ in the Criminal Code had three limbs. It could be (at [200]): (a) an organisation of three or more persons whose purpose, or a purpose of whom, was to engage in, organise, plan, facilitate, support, or otherwise conspire to engage in, serious criminal activity as defined in the Criminal Organisation Act 2009 (Qld) and ‘who, by their association, represent an unacceptable risk to the safety, welfare or order of the community’; (b) a ‘criminal organisation’ under the Criminal Organisation Act 2009 (Qld); under the Criminal Organisation Act, the Queensland Supreme Court can, on application of the Commissioner of Police, declare an organisation a ‘criminal organisation’ upon satisfaction of criteria that are ‘in substance’ the same as the criteria set out in limb (a) ([75]; see also [213]); or (c) an entity declared a criminal organisation by regulation. The Hells Angels was a declared organisation under the Criminal Code (Criminal Organisations) Regulation 2013 (Qld), and thus fell within the third element of the definition: at [39], [82], [266].

A defence to a charge under s 60A, s 60B or s 60C was that the criminal organisation ‘is not an organisaiton that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, a criminal activity’, rather than a ‘serious criminal activity’ (compare limbs (a) and (b) of the definition of “criminal organisation”). Thus, as Hayne J put it, the defence required ‘an accused person to establish a proposition larger than would be necessary to negate the expressly stated defining characteristics of “criminal organisation”’: at [94]. Kuczborski put his case in several ways. He contended that the impugned provisions of the Criminal Code offended the Kable principle because it enlisted the courts to give effect to a legislative intention to outlaw or disestablish criminal organisations: at [219]. Specifically, he argued that the impugned provisions were analogous to the law struck down in South Australia v Totani (2010) 242 CLR 1 (see 19.56). The plurality distinguished Totani. The constitutional vice of s 14 of the Serious and Organised Crime (Control) Act 2008 (SA), considered in Totani, was that it required the South Australian Magistrates Court to create new norms of conduct the content of which had been determined by the executive and legislature, and that restricted the liberty of the individual, ‘without any inquiry by the court into past or threatened contraventions by the individual of any existing legal norm’: at [224]. The Magistrates Court was ‘called upon to implement, under the forms of judicial process, an executive judgment to restrict the liberty of any person who was a member of a declared organisation’: at [224]. This ‘combination of features’ justified the description of s 14 as a provision that sought to ‘enlist the court to [page 553]

implement the policy of the executive and legislature under the guise of judicial determination’: at [224]. The impugned provisions of the Criminal Code, on the other hand, did not ‘require a court to lay down new norms of conduct’: at [225]. The Act created the norms of conduct which a court would then enforce following the usual processes that characterise the judicial function, including an open and public inquiry, the application of the rules of natural justice, the ascertainment of relevant facts, and the application of the law to those facts: at [225]–[226]. As the plurality put it: 225 …it is at ‘the heart of judicial power’ to determine whether a person has engaged in conduct which is forbidden by law and, if so, to make an order as to the consequences which the law imposes by reason of that conduct.

Further, the impugned provisions did not undermine the reputation of the judicial branch for impartiality by cloaking the work of the legislature or executive in the ‘neutral colours of judicial action’: at [229]. It was, instead, ‘abundantly clear’ that the political branch of government was responsible for any perceived harshness or undue encroachment on the liberty of the individual: at [229]. Nor did the impugned provisions usurp judicial power. Exercising the power to declare an organisation a ‘criminal organisation’ did not involve the adjudication of criminal guilt, and the regulation-making power to declare a group of persons to be a criminal organisation did not involve an adjudication of rights, duties or liabilities: at [234]. The legal effect of a declaration was to establish an ingredient of an offence, contravention of which had to be proved in the ordinary way: at [235]. A declaration did not ‘conclusively establish, without judicial process, the nature of the organisation’ an accused participated in: at [238]. The impugned provisions provided for an accused to prove that the criminal organisation did not have as one of its purposes an

intention to engage in criminal activity. As the plurality observed: ‘It has long been established that it is within the competence of the legislature to regulate the incidence of the burden of proof of matters on which questions of substantive rights and liabilities depend’: at [240]. French CJ, writing separately, and Bell J, also writing separately, gave reasons for dismissing Kuczborski’s challenge to the impugned provisions of the Criminal Code that were consistent with those of the plurality: at [40]–[47] and [265]–[266], [293]–[303] respectively. Both specifically rejected any analogy with Totani: at [40] and [295]–[296] respectively. Hayne J dissented, holding that ss 60A, 60B and 60C of the Criminal Code were invalid: at [115]–[127]. He described the constitutional vice in these terms: 115 The vice in the provisions lies in a legislative or regulatory determination of what is a criminal organisation being afforded the same legal significance as a judicial determination of that question, against stated criteria, in accordance with accepted judicial methods. The necessarily opaque, forensically untested and effectively untestable conclusion expressed in the legislative or regulatory identification of an organisation as a ‘criminal organisation’ is given the same legal effect as a conclusion reached in proceedings which, subject to limited exceptions, are held in public with either the accused person being able to test the material relied on by the prosecution

[page 554] to prove this element of its case or the organisation in question being afforded the opportunity to meet and test the allegations levelled against it and its members.

As discussed, above, the definition of ‘criminal organisation’ had three limbs, the first two of which required a judicial determination, while the third did not; under the third limb, an entity could be declared by regulation a criminal organisation. Hayne J considered that the provisions assimilated two ‘radically

different kinds of judgment’. Requiring a court to treat the two kinds of judgment as equivalent was incompatible with the institutional integrity of courts because it used ‘“confidence in impartial, reasoned and public decision-making of [judges] to support inscrutable decision-making” by the political branches of government’: at [116]. And the available defence, proof of which a court would decide, did not remove the vice Hayne J identified: at [120]–[126]. It was harder to make out the defence than it was to satisfy a court that an organisation was a criminal organisation. Thus, the defence did not convert an otherwise seemingly incontestable legislative or executive judgment that an organisation was a ‘criminal organisation’ into a constestable judgment that would be determined curially as was the case under limbs (a) and (b) of the definition. A court’s rejection of the defence could not be treated as a curial vindication of a legislative or executive judgment that an organisation was a criminal organisation. 19.66 The court unanimously dismissed Kuczborski’s challenge to the Liquor Act 1992 (Qld) provisions. The plurality dealt with the challenge briefly: 254 The Kable principle is not a limitation on the competence of a state legislature to make laws of general application to determine what acts or omissions give rise to criminal responsibility. Sections 173EB, 173EC and 173ED of the Liquor Act are laws of general application. The concept of ‘declared criminal organisation’ used in these provisions has no operative effect other than to identify items of clothing or jewellery as ‘prohibited items’. The kinds of clothing or jewellery which are ‘prohibited items’ may be fixed by regulation. That circumstance is not an intrusion upon judicial power. 255 Laws of this kind are not novel. It is significant that no concern has previously been raised as to their compatibility with the integrity of the judicial function. These provisions do not require a court to act as an instrument of the executive. They are not analogous to the law invalidated in Totani.

(To similar effect, see French CJ at [49] and Bell J at [305].) By contrast with the provisions of the Criminal Code, which in Hayne J’s judgment were invalid, ss 173EB, 173EC and 173ED only took up limb (c) of the definition of ‘criminal organisation’ in the

Criminal Code: at [81], [130]. As such, the provisions of the Liquor Act did not assimilate a legislative or executive judgment with the judgment of a court: at [131]. Rather, they were provisions that took the ‘common form of proscribing conduct of a kind defined by the legislature by reference to proof of an identified connection between the relevant conduct and organisations specified by legislative or regulatory instrument’: at [131]. The impugned provisions of the Liquor Act did [page 555] not, therefore, suffer from the same constitutional vice as the offence creating provisions of the Criminal Code. 19.67 As discussed at 5.17, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16 concerned a challenge to Div 4AA of Pt VII (‘Taking person into custody for infringement notice offence’) of the Police Administration Act (NT). Section 133AB empowered a Northern Territory police officer who arrested a person without a warrant for an offence, for which an infringement notice could be issued, to hold the person in custody for a period of up to four hours or longer if the person was intoxicated: at [2]. One of the plaintiffs’ arguments against validity was that Div 4AA offended the Kable principle because it withheld from the courts of the territory ‘judicial supervision of the exercise of the detention power’: at [10]. They argued that a defining characteristic of territory courts was supervision of executive detention, and the impugned provisions of the Act ‘created powers effectively beyond the reach of the courts’: at [10]. The plurality rejected the plaintiffs’ Kable argument, describing it as

‘elusive’ (at [43]), and the plaintiffs’ contentions in support of that argument as falling outside the existing principles developed from Kable and the cases following it: at [41]. Their complaint concerned neither a function or power conferred on a territory court, nor a function or power conferred on judicial officers of the territory. Keane J also rejected the plaintiffs’ Kable argument, holding that Div 4AA ‘does not operate to “enlist” any court to do the work of the executive government, much less require it, nor must a court depart from the processes which characterise the judicial process’: at [186]. He added: 186 … Division 4AA is not directed at the courts: it does not add to or deprive any court of any function or characteristic of judicial power. It does not direct a court as to the exercise of its functions; in particular, it is not legislation which ‘prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly.’

The argument that Div 4AA adversely affected the courts by ‘effectively sidelining them in respect of the matters for which it provides’ was just another way of putting a separation of powers argument (see 5.17); it constituted a complaint that functions that ought to be performed by the judiciary, were being performed by the executive: at [187]. And, contrary to plaintiffs’ argument, Div 4AA did not deprive Northern Territory courts of supervisory jurisdiction; judicial remedies for unlawful administrative action remained available to those adversely affected by unlawful action: at [188]. Nettle and Gordon JJ disposed of the Kable argument briefly. Responding to the plaintiffs’ argument that ‘Div 4AA grants the police a power to detain a person in circumstances where, as a matter of practicality, the exercise of the power is immune from supervision by a court’, they said: 239 … On its proper construction, Div 4AA does not grant police a power to detain for a period longer than provided for by ss 123 and 137. For that reason, Div 4AA

[page 556] cannot be regarded as usurping or otherwise interfering with the exercise of judicial power by a court of the Territory once a person who has been arrested is brought before the court.

Gageler J, dissenting, held that Div 4AA infringed the Kable principle. The starting point for understanding that conclusion is the proposition that: 129 … Part of what sets courts apart from other institutions within our system of government is that they do not participate in a punitive deprivation of liberty by another arm of government.

He was the sole justice to hold that detention under Div 4AA is punitive in character and from that premise he reasoned: 132 … the problem with Div 4AA from the perspective of the protection of the institutional integrity of courts of the Northern Territory arises not from those courts being kept out of the process of punitive detention for which s 133AB(2)(a) provides. The problem rather arises from those courts being brought into the further processes which Div 4AA contemplates will occur after that period of punitive detention is over.

At the end of the period of detention authorised by s 133AB, a police officer had four options. Only one, Gageler J observed, did not, or could not give rise to, the commencement of proceedings in a court. Therein lay the ‘constitutional flaw in the design of Div 4AA’: at [133]. He explained: 134 Courts of the Northern Territory are thereby made support players in a scheme the purpose of which is to facilitate punitive executive detention. They are made to stand in the wings during a period when arbitrary executive detention is being played out. They are then ushered onstage to act out the next scene. That role is antithetical to their status as institutions established for the administration of justice. 135 Lest it be thought incongruous that the constitutional defect in a legislative scheme of punitive executive detention is to be found at the periphery of that detention, in the subsidiary role which the legislative scheme gives to courts, it is important to recognise that a constitutional doctrine which limits legislative design has flow-on effects for political accountability. Were the provisions which contemplate a role for courts to be removed, the legislative scheme of Div 4AA would appear to be quite different. The legislative scheme would be starkly one of catch and release. The scheme would be

reduced so as to appear on the face of the legislation implementing it to be one which authorises police to detain, and then release, persons arrested without warrant on belief of having committed or having been about to commit an offence. The political choice for the Legislative Assembly would be whether or not to enact a scheme providing for deprivation of liberty in that stark form.

Application of the Kable principle to federal legislation 19.68 The Kable principle was promulgated as a limitation on state legislative power, and later, in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, developed into a limitation on territory legislative power since territory courts, in common with state courts, can exercise the judicial power of the Commonwealth when invested with federal jurisdiction. In TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 (see 19.23), it was deployed in argument against the validity of federal legislation. [page 557] TCL argued that s 16 of the International Arbitration Act 1974 (Cth) was invalid because the jurisdiction conferred on the Federal Court to recognise and enforce arbitral awards governed by the Model Law required judges of the Federal Court to act in a manner that substantially impaired the institutional integrity of that court: at [57]. The plurality summarised TCL’s submissions: 64 … TCL submitted that the effect of the Model Law is to co-opt or enlist the Federal Court ‘into providing assistance during the course of the arbitral proceeding and in enforcing the resulting awards’ while denying the Federal Court ‘any scope for reviewing substantively the matter referred to arbitration, and the ability to act in accordance with the judicial process’. TCL submitted that this distorts the institutional independence of the Federal Court. The lack of ‘independence’ complained about was in respect of substantive review in order to correct error, or set aside an arbitral award when error of law appeared or was manifest on the face of an award.

The court unanimously rejected the argument. The plurality expressly assumed, without deciding, that the Kable principle applied: 102 If it is right to apply directly to a court created by the federal Parliament the doctrines enunciated in Kable with respect to State courts, there is no distortion of the institutional integrity of the Federal Court [emphasis added].

The plurality’s apparent reticence to apply the Kable principle directly to federal courts is out of step with the following comments of Gummow, Hayne, Crennan and Bell JJ in Wainohu v New South Wales (2011) 243 CLR 181 (see 19.57): 105 The Commonwealth Solicitor-General correctly submitted that the reasoning in the decisions in Wilson and Kable v Director of Public Prosecutions (NSW), delivered respectively on 6 and 9 September 1996, share a common foundation in constitutional principle. That constitutional principle has as its touchstone protection against legislative or executive intrusion upon the institutional integrity of the courts, whether federal or state. The principle applies throughout the Australian integrated court system because it has been appreciated since federation that the Constitution does not permit of different grades or qualities of justice. It follows that repugnancy to or incompatibility with that institutional integrity may be manifested by state (and territory), as well as federal, legislation which provides for the conferral of functions upon a judicial officer persona designata [emphasis added].

The principle that the Constitution ‘does not permit of different grades or qualities of justice’ was then repeated by the plurality in Pompano, Hayne, Crennan, Kiefel and Bell JJ (see [123], set out above at 19.60). Pompano was handed down on 14 March 2013, just one day after TCL. Three members of the court (Hayne, Crennan and Bell JJ), who formed part of the plurality in Wainohu and Pompano, also formed part of the plurality in TCL. But, putting to the side the seeming incongruity between these cases, the plurality in TCL concluded (as noted above) that there was no distortion of the institutional integrity of the Federal Court. The enforcement of an arbitral award, which engages the judicial power of the Commonwealth, is separate to the resolution of the ‘original controversy’ ([106]) between two or more parties by an arbitrator who derives their authority from the private agreement of those parties

and therefore does not exercise judicial power. There is thus no cooption or enlistment of the Federal Court: at [100]–[105], [34]. [page 558] TCL had also argued that it was a defining characteristic of a court that it have the jurisdiction to review an arbitral award for error of law, attempting to draw an analogy with Kirk v Industrial Court (NSW) (2010) 239 CLR 531 and relying on the historical consideration that there existed at common law a rule that an arbitral award could be set aside for error of law on the face of the award. The court also rejected that argument, French CJ and Gageler J concluding that the common law rule ‘formed no part of, and bore no meaningful resemblance to, the supervisory jurisdiction of the Supreme Court of a state to set aside an exercise of administrative or judicial power for jurisdictional error’: at [39]; see also at [104]. The rule ‘served no systemic end, and was a “defining characteristic” neither of judicial power nor of any court’: at [39].

Exceptions to the fundamentals The ‘persona designata’ rule 19.69 On current authority a Ch III judge may be appointed to act in an executive role, for example, as a Royal Commissioner, or to exercise executive functions, such as the issue of a warrant, and this will not necessarily infringe the separation of powers. Appointment of a federal judge (or a state judge, as to which see Wainohu, above) under the ‘persona designata’ rule is said not to involve a Ch III judge in exercising non-Ch III power — in their capacity as a member of the executive branch of government, the appointee exercises Ch II power.

The ‘persona designata’ exception or qualification to the separation of powers was confirmed in Hilton v Wells (1984) 157 CLR 57. Federal telecommunications laws prohibited the interception of communications, with an exception applying where a warrant was issued from ‘a judge of the Federal Court of Australia’ who was satisfied on reasonable grounds that the telecommunications service was being used by someone who was or was likely to be committing a narcotics offence. Hilton was charged with evidence obtained from phone taps conducted by Wells, and applied to the Federal Court for an order quashing the warrants. A constitutional question removed to the High Court was whether the provision empowering a Federal Court judge to issue a warrant infringed the separation of powers. Gibbs CJ, Wilson and Dawson JJ (Mason and Deane JJ dissenting) said that the question whether such an appointment or conferral of power could be valid depends on the construction of the statute making the appointment or conferring the power: at 72–3. In this case, the majority concluded that the reference to ‘a judge of the Federal Court of Australia’ indicated that the power was being conferred on designated judges in their personal capacity. The power was administrative in nature, reinforcing the conclusion that it was not being vested in a judge in their judicial capacity. Nothing that the judge did in their executive role resulted in an order under the Federal Court of Australia Act 1976 (Cth). The power was not incompatible with judicial office: it would not affect their judicial independence or prejudice the performance of their judicial duties. In fact, judges were well suited to the particular task of weighing the merit of the application by police and making a decision to grant the warrant, a power that has historically been exercised by judges. [page 559]

Mason and Deane JJ dissented, holding that the ‘persona designata’ rule had the tendency to undermine the Boilermakers’ doctrine (see R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254). They remarked (at 84): It would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade.

The ‘incompatibility condition’ 19.70 The conditions that apply to any appointment under the ‘persona designata’ rule were considered in Grollo v Palmer (1995) 184 CLR 348 and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. Like Hilton v Wells, Grollo v Palmer also concerned a power to issue warrants to conduct telecommunications interceptions. Phone tap evidence was obtained by the Federal Police for use against Grollo in criminal proceedings pursuant to a warrant issued by a Federal Court judge. Grollo challenged the federal provisions that authorised the issue of such warrants by federal judges on the basis that the ‘persona designata’ exception was bad in law and contrary to Boilermakers’. The Commonwealth, intervening, relied on Mistretta v United States (1989) 488 US 361 at 404 and said that the question for the court was ‘whether a particular extrajudicial assignment undermines the integrity of the judicial branch’. Brennan CJ, Deane, Dawson and Toohey JJ adopted this test and said (at 364– 5): The conditions … on the power to confer non-judicial functions on judges as designated persons are twofold: first, no non-judicial function that is not incidental to a judicial function can be conferred without the judge’s consent; and second, no function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (the incompatibility condition). These conditions accord with the view of the Supreme Court of the United States in Mistretta

v United States where the court said: This is not to suggest, of course, that every kind of extrajudicial service under every circumstance necessarily accords with the Constitution. That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch.

BrennanCJ, Deane, Dawson and Toohey JJ explained the so-called ‘incompatibility condition’ in the following terms (at 365): The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of nonjudicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. It might consist in the performance of nonjudicial functions of such a nature that the capacity of the judge to perform his or her

[page 560] judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth.

Brennan CJ, Deane, Dawson and Toohey JJ concluded that judges were eminently suited to the task of issuing such warrants, and such a power was not incompatible with the exercise of their judicial function (at 367): Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today’s continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of

evidence and sensitive to the common law’s protection of privacy (see Haisman v Smelcher [1953] VLR 625 at 627) and property (both real and personal), be authorised to control the official interception of communications. In other words, the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. It is an eligible judge’s function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.

The judges rejected the opinion of Mason and Deane JJ in Hilton v Wells that the judicial function of the preservation of individual liberty would be compromised by this type of extra-judicial work. The incompatibility condition and the tradition of the ‘judicial inquiry’ 19.71 The operation of the incompatibility condition in this context was considered in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. In this case, a federal minister appointed a Federal Court judge to conduct a public inquiry and prepare a report pursuant to federal Aboriginal heritage protection legislation. The minister would then consider the report and decide whether the report should be implemented. Constitutional questions were raised about whether such a nomination could lawfully be made and whether the functions assigned to the judge were incompatible with the appointee’s judicial office. Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ (Gaudron J concurring in a separate judgment) said (at 9): One reason why the Constitution restricts the availability of Ch III judges to perform non-judicial functions was stated in a passage in the opinion of the Supreme Court of the United States in Mistretta ((1989) 488 US 361 at 407) adopted by McHugh J (at 337) and Gummow J (at 392) in Grollo ((1995) 184 CLR 348): The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral

colors of judicial action. The passages cited from Mistretta are equally relevant to the interpretation of Ch III of the Constitution of this country.

[page 561] The majority concluded that the appointment was incompatible (at 9, 13–14, 17–18): There may well be situations, the Hindmarsh Island case among them, in which there are vexed issues that can be clarified by an investigation and report made by a person who holds an independent office and who possesses the judicial skills of impartially assessing facts and applying the law. Desirability is not the point of the challenge to the nomination of Justice Mathews. … The separation of judicial functions from the political functions of government is not so rigid as to preclude the conferring on a Ch III judge with the judge’s consent of certain kinds of non-judicial powers. The difficult question is to determine the dividing line between the kinds of non-judicial powers that can, and those that cannot, be so conferred. In Grollo, McHugh J pointed to this difficulty: Clearly, a tension exists between complying with the principle of the separation of powers and vesting powers in federal judges as persona designata. If the separation of powers doctrine is to continue effectively as one of the bulwarks of liberty enacted by the Constitution, the incompatibility qualification on the persona designata doctrine is a necessity. Without that qualification, it would permit the Parliament ‘to sap and undermine’ the separation of legislative, executive and judicial powers that is inferentially expressed by ss 1, 61 and 71 of the Constitution and which was rigorously applied by this court and the Judicial Committee of the Privy Council in the Boilermakers’ Case. The constitutional wall that separates the exercise of judicial power and the exercise of executive power would be effectively breached if a federal judge could exercise any executive power invested in him or her as persona designata. … A judge who conducts a Royal Commission may have a close working connection with the Executive Government yet will be required to act judicially in finding facts and

applying the law and will deliver a report according to the judge’s own conscience without regard to the wishes or advice of the Executive Government except where those wishes or advice are given by way of submission for the judge’s independent evaluation. The terms of reference of the particular Royal Commission and of any enabling legislation will be significant.

The majority emphasised that the statute left the ultimate discretionary power to make a decision in the minister, rather than the persona designata (at 18–19): The only power conferred by s 10 of the Act is the power conferred on the Minister to make a declaration. A report is no more than a condition precedent to the exercise of the Minister’s power to make a declaration. The function of a reporter under s 10 is not performed by way of an independent review of an exercise of the Minister’s power. It is performed as an integral part of the process of the Minister’s exercise of power. The performance of such a function by a judge places the judge firmly in the echelons of administration, liable to removal by the Minister before the report is made and shorn of the usual judicial protections, in a position equivalent to that of a ministerial adviser.

For that reason the arrangement was constitutionally unacceptable. Kirby J published a vigorous dissent, accusing the majority of engaging in an ‘illicit embrace’ with the minority view expressed in Hilton v Wells, a decision that [page 562] had not been challenged in the litigation. Kirby J expressed a preference for an historical approach to the issue, noting (at 34, 38, 48): A reflection on the extended list of federal inquiries in Australia conducted by judges, federal and state, demonstrates that the use of judges, as Royal Commissioners, statutory office-holders or otherwise, to investigate sensitive and complex issues (some of them very controversial and partisan in their potential) has been a settled feature of Australian public life during the whole history of the Commonwealth. If in the early days such inquiries were typically undertaken by state judges, this was because, until the last decades of this century, there were comparatively few federal judges. One of the earliest such inquiries was undertaken by the Chief Justice of this Court, Griffith CJ, in 1918. …

It has never been suggested that the duties of a reporter under the Act are judicial or that they involve the exercise of the judicial power of the Commonwealth. The complaint that findings and recommendations may not be self-executing is therefore misconceived. So, in my respectful view, is the complaint about the giving of advisory opinions on matters of law. True, the Act was written against the background of the constitutional separation of powers. But it was also enacted after a century of the use of judges in Australia, including federal judges, to conduct inquiries and to provide reports upon their enquiries. Far from envisaging a widely focused inquiry, such as has been a feature of many investigations conducted by judges for the Executive government of the Commonwealth in the past, the functions of the reporter under the Act are quite narrow. True, they can be sensitive and important. But this makes it appropriate that a Minister should have available, for a particular case, the special qualities of experience, reputation and integrity that a judge can bring to the office. This is not a case of the Executive government foisting unwanted functions on a federal judge or court. The exhibited correspondence shows that Justice Mathews accepted the appointment voluntarily. … The actual duties of a reporter are considerably closer to those of the holder of a judicial office than, say, the duties of an ‘eligible judge’ in providing a warrant for telephonic interception which the authority of this court has upheld. Justice Mathews is in no way involved in functions incompatible with those of a judge as, for example, involvement in criminal investigation and prosecutorial duties arguably is. On the contrary, the very reason for her appointment to provide a report in the instant case is clearly to utilise the particular qualities which are normal to a judge in Australia: accuracy in the application of the law; independence and disinterestedness in evaluating evidence and submissions; neutrality and detachment; and efficiency and skill in the provision of a conclusion. Whilst the principles stated in Hilton and Grollo stand … I am unpersuaded that the appointment of a federal judge as a person to provide a report … is inconsistent with the Constitution.

[page 563]

Chapter Twenty

The Constitutional Jurisdiction of the High Court Introduction 20.1 Sections 73–79 of the Constitution describe the jurisdiction of Ch III courts or give the parliament powers to confer jurisdiction on Ch III courts. This chapter will review ss 73, 74, 75 and 76(i), the provisions (and relevant supplementary federal legislation) which describe the original jurisdiction of the High Court and its original jurisdiction in constitutional matters. While federal constitutional questions can be determined in state courts or federal courts vested with constitutional jurisdiction, the focus will be on the jurisdiction of the High Court of Australia. This chapter provides a brief account of these provisions, focusing on the jurisdictional pathways to the High Court in constitutional cases. The next two paragraphs describe the different postures that can be struck by would-be constitutional litigants in their quest for constitutional justice. Standing in constitutional cases 20.2 To participate in a constitutional case it is necessary to have ‘standing’; that is, the right to sue: Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372. In cases in which a declaration of constitutional invalidity is sought, it is only necessary

for a party to demonstrate that they are ‘an interested person’: Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545 at 570; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 303; Croome v Tasmania (1997) 191 CLR 119 at 126 per Brennan, Dawson and Toohey JJ; at 136–7 per Gaudron, McHugh and Gummow JJ. This is now referred to as the ‘special interest’ test. The nature and subject matter of the litigation will dictate what amounts to a special interest for the purposes of standing: Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558; Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 265 per Gaudron, Gummow and Kirby JJ; at 283 per McHugh J (Hayne J agreeing at 284). A proprietary or pecuniary interest will be sufficient, but is not necessary: Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 258 per Gaudron, Gummow and Kirby JJ. A special interest can arise from a statutory and public function: Onus [page 564] v Alcoa of Australia Ltd (1981) 149 CLR 27 at 73 per Brennan J. In Toowoomba Foundry, Latham CJ said (at 570): It is now, I think, too late to contend that a person who is, or in the immediate future will be, affected in his person or property by Commonwealth legislation alleged to be unconstitutional has not a cause of action in this court for a declaration that the legislation is invalid.

In Croome v Tasmania (1997) 191 CLR 119, Gaudron, McHugh and Gummow JJ said that standing to seek a declaration of invalidity springs from the citizen’s ‘right to know’ whether a law applies to him or her: at 137–8. The High Court unanimously held that the plaintiffs, Croome and Toonen, had standing to seek a declaration that

provisions of the Criminal Code (Tas), which prohibited sexual intercourse between males and acts of ‘gross indecency’ committed by a male with another male, were inconsistent with s 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) and thereby rendered inoperative by force of s 109 of the Constitution. Section 4(1) of the federal Act provided: Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

Croome and Toonen had standing because the Tasmanian Act affected their freedom of action: at 127, 137. The High Court’s decision in Croome can be contrasted with its decision in Kuczborski v Queensland (2014) 254 CLR 51. As discussed at 19.64, the plaintiff, Kuczborski, a member of the Brisbane Chapter of the Hells Angels Motorcyle Club and a former office bearer of a Sydney chapter of the club challenged the validity of Queensland legislation ‘directed at disrupting the operations of such clubs and other associations’ ([1]), arguing that it offended the Kable principle (see Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, discussed at 19.45). The court unanimously held that the plaintiff lacked standing to challenge provisions of: •

the Vicious Lawless Association Disestablishment Act 2013 (Qld) (‘the VLAD Act’) and the Criminal Code (Qld) that imposed additional or enhanced penalties for certain offences, and in specified circumstances; and

•

the Bail Act 1980 (Qld) which imposed constraints on the grant of bail to persons who were participants in criminal organisations if they were charged with any offences. Kuczborski had not been charged with any offence that would,

depending on other factors, trigger the operation of any of those provisions; nor did he contend that he intended to engage in conduct that would attract the operation of the provisions: see at [19], [99]. His challenge to the provisions depended on contingencies — that he might be charged with an offence that might or would attract the operation of the additional or enhanced penalty provisions of the VLAD Act or Criminal Code if, among other things, he were convicted, or that he might be charged with an offence that would attract the operation of the provisions [page 565] of the Bail Act imposing constraints on his liberty. Unlike in Croome, none of the provisions constrained his freedom of action: at [16], [19], [30], [34] per French CJ; at [99]–[100] per Hayne J; at [151], [168], [174]– [181], [259] per Crennan, Kiefel, Gageler and Keane JJ; at [280], [283], [285] per Bell J. In Williams v Commonwealth (2012) 248 CLR 156 (discussed at 13.35) the first question stated for the resolution of the High Court was whether the plaintiff, Ronald Williams, had standing to challenge the: (a) validity of a funding agreement — the Darling Heights Funding Agreement — between the Commonwealth and Scripture Union Queensland to provide chaplaincy services at the Darling Heights State School for the purposes of the Commonwealth’s National School Chaplaincy Programme; (b) drawing of funds from the Consolidated Revenue Fund for the purpose of making payments under the agreement in specified financial years; and (c) making of payments under the Darling Heights Funding Agreement in specified financial years.

Gummow and Bell JJ, with whom French CJ, Hayne J, Crennan J and Kiefel J agreed, answered ‘Yes’ to questions 1(a) and 1(c): at [112], [9] per French CJ; at [168] per Hayne J; at [475] per Crennan J; at [557] per Kiefel J. Victoria and Western Australia, who intervened in the

proceeding, extensively supported Williams’s challenge to the validity of the funding agreement, and the existence of a power to spend in order to make the payments (as did New South Wales, Queensland and South Australia, but on more limited grounds than Victoria and Western Australia): at [112] per Gummow and Bell JJ. A state has a ‘sufficient interest in the observance by the Commonwealth of the bounds of the executive power assigned to it by the Constitution to give the State standing’: at [112]. Accordingly, reasoned Gummow and Bell JJ, the questions of standing raised by 1(a) and (c) could be ‘put to one side’: at [112]. Heydon J also answered ‘Yes’ to question 1(a), but answered ‘Yes’ only to question 1(c)(iv) which related to the 2010–11 financial year: at [331]. Williams’ children began attending the Darling Heights State School in the 2009–10 financial year: at [320]. He therefore had no standing to challenge expenditures in financials years 2007–08 and 2008–09. Further, the arrangements under which payments in financial years 2007–08, 2008–09 and 2009–10 were made were no longer in effect when Williams commenced his High Court action on 21 December 2010: see at [5] per French CJ. He complained about conduct that had ‘already been carried out’ and, in Heydon J’s view, declarations that the conduct was unlawful would be both inutile and futile. They could produce ‘no foreseeable consequences for the parties’ and therefore should not be granted at [327]. The payment made in the 2010–11 financial year stood in a different category. That payment obliged Scripture Union Queensland to provide chaplaincy services until 31 December 2011, a period when Williams’s children were at the Darling Heights State School. Because ‘special interests’ are not limited to ‘material interests’, and include ‘points of conscience’, Williams had standing in relation to the payment made in the 2010–11 financial year: at [330]. But he had no ‘special interest’, affording him standing, in relation to expenditure in

the 2011–12 financial year because no payment had been made since 11 October 2010. [page 566] Gummow and Bell JJ, with whom the other justices agreed, considered it ‘unnecessary to answer’ question 1(b). There was a ‘real issue’ whether Williams had a sufficient interest to found a claim for declaratory relief based on the alleged absence of appropriations by parliament: at [117]. That issue, though, was not dispositive. The question whether the Commonwealth lacked power to enter into the funding agreement, and to make payments under the agreement, was dispositive. Williams did have standing to challenge the validity of the funding and payments made under it. Heydon J would have answered ‘No’ to question 1(b), including because Williams had no interest in the appropriation of the money to fund the National School Chaplaincy Programme ‘beyond that of any other member of the public’: at [319]. He did not, in other words, establish that he had a ‘”a special interest in the subject matter of the action” — an interest greater than that of the public generally’: at [316]. In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, the court was invited to consider whether provisions of federal trade practices legislation that conferred standing on ‘any person’ were constitutionally valid, in light of the ‘special interest’ test. Gummow J (at 63) observed: Ch III does not impose a universal requirement for adjudication under it of mutual or reciprocal relations between right and duty, power and liability, each the correlative of the other. The notion of ‘standing’ is an implicit or explicit element in the term ‘matter’ throughout Ch III, identifying the sufficiency of the connection between the moving party and the subject-matter of the litigation. However, it would be an error to attribute to this notion a fixed and constitutionally mandated content across the spectrum of Ch III. In particular, for Parliament to provide a remedy for enforcement

of its laws by federal courts and courts exercising federal jurisdiction which, in effect, removes the need for the Attorney-General’s fiat, is not to go beyond what may be a matter arising under a law made by the Parliament for the purposes of s 76(ii).

While the High Court has liberalised standing tests, the requirement of standing has been invoked by governments to prevent marginalised groups from gaining access to court to make constitutional arguments: Davis v Commonwealth (1986) 68 ALR 18 at 23; Croome v Tasmania (1997) 191 CLR 119; North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 192 ALR 625. See further Keyzer, 2010. Interveners and amicus curiae in constitutional litigation 20.3 Intervention by people who were not parties to an action was, generally speaking, unknown to common law. However, from the beginning, the High Court recognised that the ‘rights’ of the states might warrant allowing a state Attorney-General or Solicitor-General to intervene on behalf of a state: Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 at 490. At that time, the doctrines of state reserved powers and implied intergovernmental immunities provided some justification for this procedural development, and the court allowed interveners in cases where the doctrines of implied intergovernmental immunities and state reserved powers were invoked: Attorney-General (NSW); Ex rel Tooth & Co v Brewery Employees Union (NSW) (Union Label case) (1908) 6 CLR 469. The practice was discussed in Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 (Railway Commissioners case). Isaacs CJ, the only [page 567]

justice who would have granted leave, indicated that the states had demonstrated a significant interest in the outcome: the welfare of their people. If state railway disputes were not resolved by the Conciliation and Arbitration Court, the people of the states may not be able to secure uninterrupted railway services: ‘For these reasons it seems to me that any state has a right to come into this court and defend its own personal legal territory, and also any legal territory that it thinks will conduce to its welfare’: at 330. Dixon J, who refused leave to intervene, said (at 331): I think that we should be careful to allow arguments only in support of some right, authority or other legal titles set up by the party intervening. Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we should be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the power which as States or as Commonwealth they may exercise.

In 1976, the federal parliament amended the Judiciary Act 1903, and now s 78A gives the Attorneys-General of the Commonwealth, states and after 1983, by s 78AA the self-governing territories, the right to intervene in any matters before the High Court that arise under the Commonwealth Constitution or involve its interpretation. This dramatically expanded the compass of the power of AttorneysGeneral in Australian constitutional disputes and enables the polities to use High Court litigation to further their policy preferences. The court enjoys a general discretion to grant leave to intervene to individuals or legal entities ‘where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the court should have to assist it to reach a correct determination’: Levy v Victoria (1997) 189

CLR 579 at 600–5 per Brennan CJ. The court has the discretion to admit an amicus curiae (‘friend of the court’) to provide assistance to it when it determines a constitutional case. This may be done in circumstances in which the court is of the opinion that it will be significantly assisted thereby, and provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected: Levy v Victoria (1997) 189 CLR 579 at 600–5 per Brennan CJ; and see further Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 134–7 per Kirby J. An amicus curiae is not a party to a matter, and does not have the right to appeal a judicial decision: Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372. See further Keyzer, 2010, Ch 5.

The appellate jurisdiction of the High Court Section 73 of the Constitution 20.4 Constitutional litigation can arise in the appellate or the original jurisdiction of the High Court. Section 73 of the Constitution provides: [page 568] The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences — (i)

Of any Justice or Justices exercising the original jurisdiction of the High Court;

(ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any state, or of any other court of any state from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) Of the Inter-State Commission, but as to question of law only: and the judgment of the High Court in all such cases shall be final and conclusive.

To appreciate the extent of the appellate jurisdiction of the High Court it is necessary to consider the meaning of the phrases ‘judgments, decrees, orders and sentences’ and ‘with such exceptions and subject to such regulations as Parliament describes’. ‘Judgments, decrees, orders and sentences’ 20.5 For an appeal to lie, a decision must be ‘final’. Appellate jurisdiction under s 73 cannot be invoked upon a determination of a s 73 court which is ‘interlocutory’; that is, preliminary to a final decision of the relevant court: O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 244 per Mason CJ; at 280–1 per Deane, Gaudron and McHugh JJ; at 300–3 per Dawson J; at 309 per Toohey J. Judgments, decrees, orders and sentences are varieties of judicial orders that ordinarily involve a binding and conclusive determination of a question of law: Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 303 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 38. However, the word ‘judgment’ in s 73 is wider than the word ‘matter’ in s 75 of the Constitution, with the result that state parliaments can validly confer jurisdiction on their Supreme Courts to deliver advisory opinions on questions of law where there is no immediate right, duty or liability to be established by the determination of the court: Mellifont v Attorney-General (Queensland) (1991) 173 CLR 289. ‘With such exceptions and subject to such regulations as the Parliament prescribes’ 20.6 The federal parliament enjoys a wide — though not absolute — discretion to create ‘exceptions’ to the appellate jurisdiction of the High Court. For example, the federal parliament may vest a power in a state court to make decisions which are final unless appealed to the High Court within a prescribed period of time: R v Murray; Ex parte Commonwealth (1916) 22 CLR 437 at 441–2. The parliament can require

that appeals from state courts go to an intermediate Federal Court before an appeal is available to the High Court: Cockle v Isaksen (1957) 99 CLR 155. However, the regulations cannot remove constitutional jurisdiction under s 73: R v Kirby; Ex parte Transport Workers’ Union of Australia (1954) 91 CLR 159 at 173–5; O’Toole v Charles David Pty Ltd (1991) 171 CLR 232. For example, the appellate jurisdiction of the Full Court of the High Court from a single judge of the High Court, conferred by s 73(i) of the Constitution, could not be excluded by parliament’s reliance on its power to make exceptions under s 73 of the Constitution: Watson v Federal Commissioner of Taxation (1953) 87 CLR 353. It would still be possible [page 569] for a single justice of the High Court to state a case for consideration by the Full High Court (for example, pursuant to s 18 of the Judiciary Act 1903 (Cth)), even where a federal statute purported to make the decisions of a single justice ‘final and conclusive’: Watson at 372. Likewise, the parliament could not validly enact a law which required a certain class of appeals from state courts to go to a Federal Court other than the High Court, and then remove the right of appeal from that court to the High Court. Federal provisions to this effect were struck down in Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529. Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ said (at 544): It is true that the Parliament has a power of making exceptions from the subject matter of the appellate jurisdiction of the High Court, but the power is limited … it is only a power of making exceptions. Such a power is not susceptible of any very precise definition but it would be surprising if it extended to excluding altogether one of the heads specifically mentioned in s 73.

In Cockle v Isaksen (1957) 99 CLR 155, Dixon CJ, McTiernan and Kitto JJ said (at 165): An exception assumes a general rule or proposition and specifies a particular case or description of case which would be subsumed under the rule or proposition … [I]t is not a conception that can be defined in the abstract with exactness or applied with precision; it must depend very much upon the context … In the present case there is no attempt to use the power to prescribe exceptions so as to destroy the general rule, in relation to any court or tribunal or class of courts or tribunals comprised within s 73, that an appeal shall lie from its judgments, decrees, orders or sentences.

20.7 In the event that constitutional questions arise in the course of proceedings in the Family Court or Federal Court, an appeal can lie but special leave to appeal is required: see Family Law Act 1975 (Cth) s 95; Federal Court of Australia Act 1976 (Cth) s 33. ‘Special leave’ is also required for appeals from the supreme courts of any state under s 73(ii): Judiciary Act 1903 (Cth) s 35(2). Special leave is discussed further at 20.23. Territory courts are not ‘federal’ courts within s 73(ii): Capital Television and Appliances Pty Ltd v Falconer (1971) 125 CLR 591. This is surprising, since the self-governing territories owe their very existence to laws enacted by the federal parliament. Furthermore, s 111 of the Constitution provides that the territories are ‘subject to the exclusive jurisdiction of the Commonwealth’. More recently, it has been accepted that territory courts may be vested with federal jurisdiction under s 76(ii), together with s 122 of the Constitution: Northern Territory v GPAO (1999) 196 CLR 553. The source of federal legislative power to enable matters to be appealed from the territory courts to the High Court is s 122. The statutory sources supported by s 122 are s 35AA of the Judiciary Act 1903 (Cth) s 35AA (appeals from the Northern Territory) and s 24(2) of the Federal Court of Australia Act (Cth) (appeals from other territories): see further Mitchell v Barker (1918) 24 CLR 365; Porter v R; Ex parte Chin Man Yee (1926) 99 CLR 155; Capital Television and

Appliances Pty Ltd v Falconer (1971) 125 CLR 591. [page 570] Section 73(ii) and (iii) contemplates appeals from ‘any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council’ or from ‘the Inter-State Commission, but as to questions of law only’. Both of these grounds of appellate jurisdiction are of no significance today as Privy Council appeals are not available and there is no Inter-State Commission: see Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194 at 214–15. Section 74 of the Constitution 20.8 In 1968 the Commonwealth removed the right to appeal to the Privy Council from decisions of the High Court in constitutional matters, cases involving the interpretation of federal legislation, decisions on appeal from state supreme courts exercising federal jurisdiction, and appeals from territory courts: Privy Council (Limitation of Appeals) Act 1968 (Cth). In 1975 all remaining types of appeals from the High Court to the Privy Council were abolished: Privy Council (Appeals from the High Court) Act 1975 (Cth). Appeals from state Supreme Courts to the Privy Council were abolished by the Australia Act 1986 (Cth). In Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461 an application for a certificate from the High Court to appeal to the Privy Council under s 74 was refused. This was the remaining ground of appellate jurisdiction which had not (and could not have) been removed by ordinary legislation. The court indicated their intention never to grant a certificate for the following reasons (at 462–3): This court’s power to grant a certificate under s 74 of the Constitution is the vestigial

remnant of the hierarchical connexion which formerly existed between Australian courts exercising federal jurisdiction and the Privy Council … Only once has this court granted a certificate, and that was seventy-three years ago … The fundamental reason which has led the court to refuse applications over the years was … ‘that experience shows — and that experience was anticipated when s 74 was enacted — that it is only those who dwell under a Federal Constitution who can become adequately qualified to interpret and apply its provisions’. It is impossible to suppose that this court should by granting a s 74 certificate itself revive that relationship in abdication of its responsibility to decide finally questions as to the limits of Commonwealth and State powers, questions having a peculiarly Australian character and being of fundamental concern to the Australian people. Although the jurisdiction to grant a certificate stands in the Constitution, such limited purpose as it had has long since been spent. The march of events and the legislative changes that have been effected — to say nothing of national sentiment — have made the jurisdiction obsolete.

Gleeson CJ, Gummow and Hayne JJ elaborated further on s 74 in Sue v Hill (1999) 199 CLR 462 at 492–3: The Australia Act also provided, in s 11, for the termination of appeals from or in respect of any decision of an Australian court brought to the Privy Council, whether by virtue of any Act of the Parliament of the United Kingdom, the Royal Prerogative, or otherwise. When this legislation is taken with the Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth), the result is to leave only that avenue for appeal to the Privy Council which is identified in s 74 of the Constitution. With a certificate from this court, s 74 permits appeals from a decision of this court upon any question as to the

[page 571] limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States. The last in a series of unsuccessful applications for certificates appears to have been made in 1985. In refusing the certificate sought in Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461, the Court said in its joint judgment: Although the jurisdiction to grant a certificate stands in the Constitution, such limited purpose as it had has long since been spent. The march of events and the legislative changes that have been effected — to say nothing of national sentiment — have made the jurisdiction obsolete.

In any event, before that date, it had become settled doctrine that the Privy Council was part of the judicial system of the country whence appeals came and that it was not an institution of the United Kingdom. It follows that no institutions of government of the United Kingdom exercise any judicial powers with respect to this country.

The original jurisdiction of the High Court 20.9 Sections 75 and 76 of the Constitution describe the original jurisdiction and additional original jurisdiction of the High Court. Jurisdiction under s 75 is constitutionally entrenched (‘the High Court shall have original jurisdiction’ (emphasis added)) and therefore cannot be removed by statute. This does not mean that the High Court is obliged to exercise its jurisdiction under s 75 (or s 76) — the court may remit matters for consideration to other courts vested with federal jurisdiction: see further Judiciary Act 1903 (Cth) s 44. The High Court’s additional original jurisdiction can be, and is, conferred by statute. This includes its original jurisdiction in constitutional matters under s 76(i): see, for example, Judiciary Act s 30(a). Ch III courts and ‘matters’ 20.10 Both ss 75 and 76 confer jurisdiction or enable the conferral of jurisdiction on the High Court in certain types of ‘matters’. The meaning of the word ‘matter’ was considered in Re Judiciary Act 1903– 1920 (1921) 29 CLR 257. Part XII of the Judiciary Act 1903 (Cth) purported to confer jurisdiction on the High Court to hear and determine questions of law referred to it by the Governor-General: s 88. The court was given a power to notify persons in relation to this decision-making power (s 91) and to invite counsel to argue the question: s 92. The court’s decision was purported to be final and conclusive and not subject to appeal: s 93. It was argued that these provisions were invalid. In this case, it was contended that s 76(i) of the Constitution, which provided the jurisdictional basis for the provisions, referred to ‘any matter arising under this constitution, or

involving its interpretation’; and further, that a ‘matter’ meant ‘a claim of right in litigation between parties’ and not an ‘abstract question of law’. The Commonwealth contended that the purported conferral of jurisdiction to make advisory opinions was incidental to the powers of the parliament and the executive, as these opinions would assist the executive in the execution of Commonwealth laws. It was also contended that the word ‘matter’ in ss 75 and 76 should be given ‘a broad and general meaning’, and did not require a lis inter partes, or legal action or controversy between parties where some issue was in dispute. [page 572] The High Court held Pt XII invalid by majority (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Higgins J dissenting). The majority delivered a joint judgment, and interpreted Pt XII as being directed to the obtaining of ‘not merely an opinion but an authoritative declaration of the law’: at 264. The court could only do this if it was exercising judicial power of the Commonwealth. The majority referred to ss 71, 73, 74, 75, 76 and 77 of the Constitution and said (at 265–7): This express statement of the matters in respect of which and the courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction … … is there a matter within the meaning of sec 76? We think not. It was suggested in argument that ‘matter’ meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention. We do not think that the word ‘matter’ in sec 76 means a legal proceeding, but rather the subject matter for determining in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty

or liability to be established by the determination of the court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this court to make a declaration of the law divorced from any attempt to administer that law. The word ‘matter’ is used several times in Chapter III of the Constitution (ss 73, 74, 75, 76, 77), and always, we think, with the same meaning [emphasis added].

The court held that the word ‘matter’ did not extend to the delivery of ‘advisory opinions’ (a proposition supported in Re Wakim; Ex parte McNally (1998) 198 CLR 511 at 542, 544 per Gleeson CJ; at 575 per Gummow and Hayne JJ). 20.11 In Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, Dr John McBain, a Victorian infertility specialist, was contacted for treatment by a woman named Leesa Meldrum. McBain advised Ms Meldrum that under Victorian law he was not allowed to provide treatment to her, because at the time such treatment was restricted to women who were married or in a de facto relationship with a man. As he wanted to treat Ms Meldrum, McBain sought a declaration in the Federal Court that the state legislation prohibiting treatment of single women was inconsistent with federal sex discrimination legislation. In the Federal Court, the State of Victoria and the relevant administering authority, the Infertility Treatment Authority, adopted a passive posture, with the result that there was no party contradictor. If there is no party contradictor, no declaration of validity or invalidity can be made because there is no ‘matter’ for the purposes of Ch III: there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the court. Notwithstanding this, the Federal Court accepted an application by the Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church to be heard as amicus curiae, and they performed the role of contradictor (these groups did not press an application to appear as parties). These

organisations presented arguments that the state and federal laws [page 573] were not inconsistent with each other, and consequently that the federal law did not override the state law to the extent of its inconsistency pursuant to s 109 of the Constitution, with the result that Ms Meldrum could not have infertility treatment. Notices under s 78A of the Judiciary Act 1903 (Cth) were sent to each of the AttorneysGeneral of the Commonwealth, states and territories advising them, as is required under Commonwealth statute, that a federal constitutional matter was taking place and inviting them to intervene if that was their wish. They did not do so. The Federal Court held that the Victorian law was inconsistent with the Commonwealth law and therefore invalid: McBain v Victoria (2000) 99 FCR 116. None of the parties appealed. However, the Australian Catholic Bishops Conference (the leadership group of the Australian Catholic Church) were then granted the fiat by the Commonwealth Attorney-General to seek a review of the decision of the Federal Court in the High Court on the basis that the Federal Court had erred in its treatment of the constitutional inconsistency issue and other issues related to the construction of the federal sex discrimination legislation (see Walker, 2000). The policy was expressed in the following terms: the government is concerned to do its part to protect the rights of children to have the reasonable expectation of the care and affection of both a mother and a father. It was a policy that may have been consistent with the federal government’s preference for the ‘traditional’ heterosexual family, but it plainly discriminated against single parents and same-sex couples

(see Walker, 2001). The High Court held that there was no ‘matter’ for the purposes of Ch III of the Constitution. Gaudron and Gummow JJ observed (at 409–10): … the Attorney (both as an intervener and on the relation of the Episcopal Conference) seeks to re-open closed litigation between other parties and to purge the record of the Federal Court of an order which is at odds with an allegedly desirable state of constitutional affairs. The point may be expressed as a reflection of the limits of the judicial power of the Commonwealth or of the absence of any claim by the AttorneyGeneral to a right, title, privilege or immunity under the Constitution which is necessary to give rise to a ‘matter’ under s 76(i). Whether acting on relation or otherwise, the Attorney-General, consistently with Ch III, cannot have a roving commission to initiate litigation to disrupt settled outcomes in earlier cases, so as to rid the law reports of what are considered unsatisfactory decisions respecting constitutional law.

Gleeson CJ (at 396) and Hayne J (at 460) gave similar reasons. 20.12 In Momcilovic v The Queen (2011) 245 CLR 1, the High Court considered the validity of s 36(2) of the Human Rights and Responsibilities Act 2006 (Vic), which authorises the Supreme Court of Victoria to make a declaration that a provision of a Victorian statute is incompatible with human rights if it is not possible to interpret that provision consistently with human rights. Section 36(5) indicates that the making of such a declaration has no impact on the validity of the provision and the rights and duties of relevant parties. The declaration is provided by the court to relevant government ministers who then prepare a written response relating to the declaration for the consideration of the parliament. A majority of the High Court (French CJ, Gummow, Hayne, Heydon and Bell JJ) held that the power conferred [page 574] by s 36(2) was not judicial in nature because it did not affect rights in

dispute. Such a power could not be conferred by the Commonwealth Parliament on a Ch III court because of the ‘matters’ limitation. 20.13 The restriction associated with the word ‘matters’ in Ch III does not operate within the states in respect of state jurisdiction. In a number of states the Attorney-General or equivalent chief law officer does enjoy the power to refer questions of law to a superior court for determination. Oddly enough, while the High Court itself may not give advisory opinions referred to it by the federal executive, the High Court itself may take appeals from advisory opinions delivered by state Supreme Courts under s 73: see Mellifont v Attorney-General (Qld) (1991) 173 CLR 289. This is because the word ‘judgment’ in s 73 has been interpreted more broadly than the word ‘matter’ in s 75. Power of parliament to determine ambit of matter 20.14 It has been held that the ‘matters’ referred to in s 75 (and, presumably, the other provisions of Ch III which refer to ‘matters’) include ‘all necessary parties and essential questions’ which need to be considered, not just those parts of the matter which concern the specific heads of jurisdiction referred to: Pirrie v McFarlane (1925) 36 CLR 170 at 198. However, in Abebe v Commonwealth (1999) 197 CLR 510 a majority of the court held that so long as a law defines the jurisdiction of a federal court ‘with respect to’ a ‘matter ’ within parliament’s authority, it need not vest jurisdiction to determine every aspect of a legal controversy. That case concerned provisions of Pt 8 of the Migration Act 1958 (Cth) that restricted the grounds upon which the Federal Court could review decisions of the Federal Refugee Review Tribunal. The effect of the legislation was that an applicant seeking resolution of every aspect of a case would have to seek recourse in the Federal Court under the new restrictive provisions to determine part of their claim and relief in the High Court under s 75(v) of the Constitution to determine the balance of issues arising in the

dispute. The plaintiff brought proceedings in the High Court arguing that the law was invalid on the basis that the word ‘matter ’ in Ch III of the Constitution refers to a single justiciable controversy, and for that reason Ch III prevents parliament from limiting the jurisdiction of a Ch III court in such a way that it may not determine every aspect of a legal controversy. The argument was rejected by a bare majority. Gleeson CJ, McHugh, Kirby and Callinan JJ held that while a ‘matter’ may exist independently of any court or its procedures, the parliament’s power to vest jurisdiction with respect to matters under Ch III includes within it a power to vest jurisdiction with respect to any aspect or part of a matter: at 524–5, 527 per Gleeson CJ and McHugh J; at 587 per Kirby J; at 605 per Callinan J; contra, at 555 per Gaudron J; at 571–2 per Gummow and Hayne JJ. Dissenting, Gummow and Hayne JJ said (at 572): Section 75(v) gives this court power to grant relief against an unlawful exercise of or refusal to exercise Commonwealth executive authority. The right to have the executive make its decision according to law is, then, not a right that is created by Pt 8 of the Act. Likewise, the duty of the executive to act according to law does not find its origin in Pt 8 of the Act.

[page 575] For that reason, the parliament could not provide that proceedings in the Federal Court under Pt 8 would lead to a conclusive determination about the lawfulness of a tribunal decision. The majority emphasised the breadth of the words describing parliamentary power to vest jurisdiction ‘with respect to’ any ‘matters’ under ss 76 and 77. Kirby J pointed out (at 590) that the result might have been different had the High Court’s jurisdiction been limited by Pt 8:

There is no incompatibility between the facility given to this court to provide the constitutional writs against an officer of the Commonwealth (s 75(v)) and the power given to the Parliament, elsewhere in Ch III, to make laws defining the jurisdiction of a federal court, other than the High Court, in a way which falls short of the constitutional grant of jurisdiction to this court [emphasis added].

‘No hypothetical questions’ may be answered by a court 20.15 Judicial power involves the application of law to facts in order to quell legal controversies between parties. Judgment is the final determination of the rights of the parties and creates a new charter by reference to which legal questions are to be decided as between those parties or classes of parties. For that reason, and also because of the time and expense that may be wasted answering them, courts have traditionally refused to provide answers to hypothetical questions: Luna Park Ltd v Commonwealth (1923) 32 CLR 596 at 600; Bass v Permanent Trustee (1999) 198 CLR 334 at 355–7 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. Some issues ‘non-justiciable’ 20.16 At 13.22 and 13.24 it was observed that the executive enjoys a number of so-called ‘prerogative’ powers, or executive powers that were historically regarded to be insusceptible to judicial review. These included powers with respect to legal matters, such as the power to institute inquiries (Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 378), to grant a fiat to a relator action (R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 218) or to enter a nolle prosequi in criminal proceedings (Barton v R (1980) 147 CLR 75), or in relation to international matters including assertions of sovereignty over land (Mabo v Queensland (No 2) (1992) 175 CLR 1) or the continental shelf (Petrotimor Companhia de Petroleos Sarl v Commonwealth (2003) 126 FCR 354) and Australia’s obligations under international law where those obligations have not been implemented into Australian domestic law: Gerhardy v Brown (1985) 159 CLR 70 at

138–9. The High Court has also said that it will not engage in judicial review of political arrangements or undertakings between Australian governments. In South Australia v Commonwealth (1962) 108 CLR 130, the Attorney-General for South Australia sought a declaration that the Commonwealth had failed to honour its obligations under an agreement between the parties relating to the standardisation of South Australian railway gauges. In reliance on an agreement entered into between the parties, South Australia engaged in required work. However, the Commonwealth did not. The High Court accepted this argument and Dixon CJ observed (at 140–1): What is in question here is an agreement assuming to affect matters which are governmental and by nature are subject to considerations to which private law is

[page 576] not directed. That is particularly true of financial provisions, the fulfilment of which in constitutional theory at least must be subject to parliamentary control …

For these reasons, the courts should not enter: … into a domain that does not belong to it, namely, the consideration of undertakings and obligations depending entirely on political sanctions.

In short, the courts will not enforce purely political agreements. Section 75(i) 20.17 Section 75(i) confers original jurisdiction on the High Court in matters ‘arising under any treaty’. It appears that these matters must ‘directly’ involve the interpretation of a treaty, rather than the mere interpretation of legislation which implements a treaty: Bluett v Fadden (1956) SR (NSW) 254. This rule was confirmed in Re East; Ex parte Nguyen (1998) 196 CLR 354. The applicant contended that he had been the victim of racial discrimination in the course of criminal

proceedings leading to his conviction for armed robbery, arguing that he understood little or no English and the trial had proceeded without an interpreter, in contravention of the federal Racial Discrimination Act 1975 (Cth). The applicant invoked the original jurisdiction of the High Court pursuant to s 75(i) of the Constitution. Six members of the court rejected the argument on the basis that the applicant had failed to identify a justiciable controversy arising directly under a treaty: the rights in question arose, if anywhere, under the federal law: at 362 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. Kirby J adopted a broader interpretation, saying (at 385) that: A matter arises under a treaty if, directly or indirectly, the right claimed or the duty asserted owes its existence to the treaty, depends upon the treaty for its enforcement or indirectly draws upon the treaty as the course of the right or duty in controversy.

However, it should be noted that a treaty does not give rise to domestic legal obligations until it is implemented into domestic law: see 10.12. For that reason, there was no ‘immediate right, duty or liability to be established by the determination of the court’: at 362. An Australian court has no jurisdiction to determine whether an international obligation has been met in the absence of a domestic law implementing that international obligation: Gerhardy v Brown (1985) 159 CLR 70 at 138–9. Section 75(ii) 20.18 Under s 75(ii) the High Court enjoys original jurisdiction in all matters ‘[a]ffecting consuls or other representatives of other countries’. This provision has been held to include matters where the alleged victims of criminal offences included consuls or other representatives of other countries: R v Donyadideh (1993) 115 ACTR 1 at 6 per Miles CJ. Section 75(iii) 20.19

Section 75(iii) of the Constitution provides the High Court

with original jurisdiction in all matters ‘in which the Commonwealth, or a person sued or being sued on behalf of the Commonwealth, is a party’. [page 577] The construction of s 75(iii), like the determination of questions relating to Crown immunity, has often turned on the identification of that person or body as ‘the Commonwealth’. In Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1 at 367, Dixon J held that the expression ‘the Commonwealth’ extended to include ‘the enforcement of actionable rights and liabilities of officers and agencies in their official and governmental capacity, when in substance they formed part of or represented the Commonwealth’. This has been interpreted as including the Australian Securities and Investments Commission (ASIC): see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 584, 608, 638. Section 75(iv) 20.20 Section 75(iv) of the Constitution confers original jurisdiction on the High Court in matters arising ‘between States, or between residents of different States, or between a State and a resident of another State’. Subject to proof of residency, this subsection provides the litigant with an option to sue in the High Court in respect of the matters listed in the subsection: Dahms v Brandsch (1911) 13 CLR 336. Only natural persons, not corporations, can be ‘residents’ for the purpose of s 75(iv): Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 (this proposition was doubted by Kirby J in British American Tobacco v Western Australia (2003) 217 CLR 30 at [109]). Section 75(iv) matters include matters in

which a body or person who was the Crown in right of a state was sued, not only those matters in which a ‘State’ was directly sued: Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22. In Sweedman v Transport Accident Commission (2006) 226 CLR 362, the court took a broad approach to the word ‘State’ and held that the Victorian Transport Accident Commission could be sued under this section. Section 75(v) 20.21 Section 75(v) of the Constitution confers original jurisdiction on the High Court in all matters ‘in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’. In Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at 653, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ referred to Dixon J’s observation in Bank of NSW v Commonwealth (1948) 76 CLR 1 at 363 that the purpose of s 75(v) of the Constitution was ‘to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding federal power’. The High Court’s original jurisdiction under s 75(v) cannot be removed by statute: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. To do this would reduce the capacity of the High Court to supervise the constitutional validity of the decisions and actions of officers of the Commonwealth: R v Hickman; Ex parte Fox (1945) 70 CLR 598. One reason s 75(v) was included in the Constitution was to avoid the gap in the original jurisdiction disclosed by the decision of the Supreme Court of the United States in Marbury v Madison 5 US 137 (1803): see Truth About Motorways v Macquarie (2000) 200 CLR 591 at 633; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 92. The contraction of statutory opportunities for judicial review of administrative action in recent years has attached added significance to s 75(v), particularly in the asylum seeker jurisdiction.

[page 578] A writ of mandamus is an order commanding a person to perform a public duty. Mandamus lies against any executive officer exercising a statutory power: R v Toohey; Ex parte Northern Land Council (1986) 161 CLR 1. Prohibition is a constitutional writ that is issued to restrain an officer of the Commonwealth from making an error of law. So, for example, the constitutional writ of prohibition may issue if a prosecutor makes good an argument that an officer of the Commonwealth or his or her delegate made a decision in breach of the rules of natural justice, or procedural fairness: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 67 per Gleeson CJ and Hayne J. A constitutional writ may ‘go’ where an officer of the Commonwealth has made a decision that is so unreasonable that no reasonable person could have made it; that is, a decision for which no logical basis can be discerned: Minister for Immigration v Eshetu (1999) 197 CLR 611 at 640–1 per Gummow J; cf at 659 per Hayne J. Injunctions are remedies designed to stop an illegal action from taking place. As McHugh J explained in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 606: The term injunction … should not be restricted … It is a wide term which should be given its ordinary meaning, a meaning wide enough to embrace any form of curial order which requires a person to refrain from doing or to do some act which infringes or assists in restoring another person’s right, interest or property.

Section 75(v) of the Constitution does not impliedly confer original jurisdiction on the High Court to grant certiorari in a case in which it does not otherwise possess original jurisdiction: R v Bowen; Ex parte

Federated Clerks Union (1984) 154 CLR 207 at 211; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 156–7. Members of federal statutory boards are typically ‘officers of the Commonwealth’ under s 75(v): see, for example, R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 (the Coal Mining Industry Central Reference Board, set up under national security regulations to regulate disputes in the coal mining industry, was susceptible to prohibition under s 75(v)). But s 75(v) is not limited to administrative officers, and extends equally to federal judicial officers: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (No 1) (Tramways case) (1914) 18 CLR 54. However, on current authority judges of the High Court are not ‘officers of the Commonwealth’ within s 75(v): Federated Engine Drivers’ and Firemen’s Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 109 per Griffith CJ; at 117 per Isaacs, Gavan Duffy and Rich JJ. Most surprisingly, a judge of a state District Court vested with federal jurisdiction was not considered to be an ‘officer of the Commonwealth’ within s 75(v): R v Murray; Ex parte Commonwealth (1916) 22 CLR 437. This decision may be in doubt after Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

The High Court’s constitutional jurisdiction 20.22 Section 76(i) of the Constitution gives the federal parliament the power to confer (or choose not to confer) constitutional jurisdiction on the High Court. [page 579] Section 30(a) of the Judiciary Act 1903 (Cth) in fact confers this jurisdiction. Section 76(i) jurisdiction can be invoked in any matter

which raises a constitutional issue. This can include cases which directly involve the interpretation of constitutional provisions, such as challenges to legislation under s 92 or s 109: James v South Australia (1927) 40 CLR 1; Hume v Palmer (1926) 38 CLR 441, respectively. The question could concern the construction of federal constitutional jurisdictional provisions themselves, as in R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452. The question whether the High Court retained appellate jurisdiction from a court martial raised a constitutional question with respect to the interpretation of s 71, and thus, a constitutional issue within s 76(i). Section 76(i) can provide a basis for jurisdiction in the High Court in ordinary cases where constitutional questions arise: Troy v Wrigglesworth (1919) 26 CLR 305. Once the jurisdiction has been lawfully invoked the court can deal with all of the legal questions raised in the matter, including nonconstitutional questions, if necessary: Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665. However, ordinarily the nonconstitutional issues would be remitted for the consideration of another court, unless they were of sufficient importance for the High Court to consider. Jurisdiction under s 76(i) can be established in circumstances where a provision in ordinary legislation reflects the language of a constitutional provision and a matter involves the interpretation of such a provision — even where no issue of constitutional validity arises in the instant case: Attorney-General (NSW) v Commonwealth Savings Bank of Australia (1986) 160 CLR 315 at 327–8 per Mason, Wilson, Brennan, Deane and Dawson JJ (in this instance, s 75(iii) and (iv) of the Constitution). This is because the language of the Constitution (here, s 75(iii) and (iv)), is ‘essential or relevant’ to the determination of the issue. In Croome v Tasmania (1997) 191 CLR 119 the plaintiffs brought proceedings against the State of Tasmania seeking declarations that

provisions of the Tasmanian Criminal Code Act 1924 which criminalised male-to-male acts of sexual intercourse were constitutionally invalid by virtue of their inconsistency with provisions of the federal Human Rights (Sexual Conduct) Act 1994. The plaintiffs argued that a ‘matter’ had arisen within s 76(i) of the Constitution because they would be liable to prosecution if they engaged in homosexual acts of the nature described. The State of Tasmania argued that no ‘matter’ had arisen because the executive had not sought to enforce the law and the plaintiffs were seeking what was in essence an advisory opinion of the court as to the validity of the Tasmanian law. As the High Court does not give advisory opinions and (Re Judiciary Act 1903–1920 (1921) 29 CLR 257) it was argued that the proceedings were an abuse of process of the court. Brennan CJ, Dawson and Toohey JJ said (at 401): It is a misconception of the principle in Re Judiciary and Navigation Acts to suggest that, in proceedings for a declaration of invalidity of an impugned law, no law is administered unless the Executive Government has acted to enforce the impugned law. The law that is being administered in such proceedings is not the impugned law but the constitutional or administrative law which determines the validity or invalidity of the impugned law. Thus, Gavan Duffy, Rich and Starke JJ in James v South Australia (1927) 40 CLR 1 at 40 identified a ‘right, title, privilege or immunity’

[page 580] claimed under the Constitution as the criterion of a matter arising under the Constitution or involving its interpretation … A person with a sufficient interest to raise a justiciable controversy as to the validity of a law is regarded as having or claiming a right to a declaration and that right satisfies the requirement of some ‘right, duty or liability to be established by the determination of the court’.

Standing to sue was not limited to persons with a professional or trading interest at stake, but extended to any person whose ‘freedom of action is challenged’: at 401. Gaudron, McHugh and Gummow JJ

gave reasons to the same effect: at 409. The Constitution, unlike the United States Constitution, does not create a private right or action for damages for ‘an attempt to exceed the powers it confers or to ignore the restraints it imposes’: Kruger v Commonwealth (1997) 190 CLR 1. Jurisdictional pathways to the High Court in constitutional cases 20.23 The most common ways in which constitutional cases arise are by way of: •

an application for ‘special leave’ to appeal to the High Court under s 35A of the Judiciary Act 1903 (Cth);

•

an application for removal of a matter under s 40(1) of the Judiciary Act 1903 (Cth) (‘s 40 removal’);

•

a ‘case stated’ or ‘question reserved’ under s 18 of the Judiciary Act 1903 (Cth); or

•

an application for order nisi under s 75(v) of the Constitution.

Section 75(v) was considered above. The following section will provide a general overview of the other methods of attracting the constitutional jurisdiction of the High Court. The principal way in which the High Court’s appellate jurisdiction is regulated is the requirement that would-be appellants to the High Court must make an application for ‘special leave’ to appeal to the court. Section 35A of the Judiciary Act 1903 (Cth) vests jurisdiction in the High Court to hear applications for special leave to appeal to that court and exposes the criteria which is applied in determining those applications: 35A In considering whether to grant an application for special leave to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to — (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law —

(i)

that is of public importance, whether because of its general application or otherwise; or

(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court to which the application relates.

[page 581] This is a constitutionally valid ‘regulation’ of the High Court’s appellate jurisdiction pursuant to s 73 of the Constitution: Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194. In that case, ss 33(2), (3) and 35(2) of the Judiciary Act 1903 (Cth) were challenged on the basis that the requirement that parties seek and receive ‘special leave’ to appeal to the High Court was invalid. The court held that these were lawful ‘regulations’ within s 73 and did not prevent the High Court from determining any appeal under that section. The provisions were a valid exercise of the power to regulate the High Court’s appellate jurisdiction under s 73: at 217 per the court; see also Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 218 the court took the opportunity to explain the grounds on which special leave to appeal to the court would be granted: (The application for special leave is) … a long established procedure which enables an appellate court to control in some measure or filter the volume of work requiring its attention. Ordinarily, it results in a decision which is not accompanied by reasons, or particularly by detailed reasons. It involves the exercise of a very wide discretion and that discretion includes a consideration of the question whether the question at issue in the case is of such public importance as to warrant the grant of special leave to appeal. To that extent at least, the court, in exercising its jurisdiction to grant or refuse special leave to appeal, gives greater emphasis to its public role in the evolution of the law than to the private rights and interests of the parties to the litigation.

While it would be ‘wrong to attempt to formulate rules which would confine the exercise of the jurisdiction to grant special leave’ (Morris v The Queen (1987) 163 CLR 454 at 475 per Dawson J), the ‘most important factor in the selection of those cases in which special leave to appeal is to be granted’ is the High Court’s function as a court of review. In addition, in Yates v The Queen [2013] HCA 8, Gageler J drew attention to the observation in Lowe v The Queen (1984) 154 CLR 606 at 611 that the discretion to grant special leave ‘cannot be reduced to a formula’ and ‘must always make allowance for the exceptional case of manifest injustice’. Peter Hanks (1993) has observed that special leave to appeal to the High Court is typically denied if: •

it was the court’s view that the judgment appealed from was clearly correct and unaffected by sufficient doubt;

•

the case depended only upon the construction of particular documents;

•

the case involved questions of fact only;

•

the case involved a question of fact which is highly unlikely to arise again;

•

an appeal as to costs only was sought;

•

the appeal was on the ground that there had been a technical error or irregularity in the court below; or

•

there had been a failure to exercise other remedies.

The court has indicated that it will be ‘extremely reluctant to grant special leave to appeal to enable a challenge to be mounted to a unanimous decision of the court when the applicant is unable to point to any subsequent decision or development [page 582]

that has undermined the authority of the decision, or the reasoning on which it is based’: Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd (1989) 63 ALJR 517. Under s 40(1) of the Judiciary Act 1903 (Cth) the High Court, after application demonstrating ‘sufficient cause’ or of its own motion, can remove any cause arising under the Constitution or involving its interpretation. If an Attorney-General makes the application then the High Court must remove the matter. Attorneys-General are advised in advance of any matter arising under the Constitution or involving its interpretation and have a reasonable amount of time to decide whether they wish to intervene: see ss 78A and 78B of the Judiciary Act 1903 (Cth). The court will ordinarily require ‘a firm foundation of fact’ before ordering a s 40 removal ‘to avoid the possibility of uncertainty in the application of any decision’ of the court in courts below: North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595. The discretion to grant an application for a s 40 removal is rarely exercised in circumstances where a state Court of Appeal has reserved its judgment in the matter: Re Stubberfield’s Application (1996) 70 ALJR 646 at 647 per McHugh J. Alternatively, under s 18 of the Judiciary Act, a justice of the High Court can, on application, ‘state a case or question to be argued before the Full Court’: 18 Any justice of the High Court sitting alone, whether in court or in Chambers, may state a case or reserve any question for the consideration of a Full Court, or may direct any case or question to be argued before a Full Court, and a Full Court shall thereupon have power to hear and determine the case or question.

The justice stating the case may direct that the case brought before him or her, including any questions of fact or law, be brought before the Full Court: New South Wales v Commonwealth (1926) 38 CLR 74 at 82 per Knox CJ, Gavan Duffy, Rich and Starke JJ. The questions must arise in the instant proceedings: Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 378 per Kitto J. The case stated will

normally include a brief summary of the ultimate facts to be relied on by the court in order to determine the questions reserved.

The cross-vesting scheme Origins of the cross-vesting scheme 20.24 In 1987 the parliaments of the Commonwealth, states and territories enacted legislation vesting the jurisdiction of the courts of each in the courts of the other, to remove inconvenience and reduce costs and delays in the management of legal matters raising issues of state and federal law. There is no doubt that a federal action could be validly transferred to a state court. Section 77(iii) combined with ss 75 and 76 of the Constitution to support federal-to-state cross-vesting arrangements. Section 76, in conjunction with s 122, supports territory-to-state cross-vesting arrangements: see now Northern Territory v GPAO (1999) 196 CLR 553. The Commonwealth can invest any jurisdiction in a territorial court including jurisdiction identical to that exercised by a federal court, so long as there is a sufficient nexus between the law and the government of the territory: Berwick Ltd v Gray (1976) 133 CLR 603 at 607. Territory-to-federal cross-vesting is [page 583] constitutionally valid. Section 76(ii)), in conjunction with s 77(i) of the Constitution, permits the conferral of jurisdiction on federal courts in matters arising under laws made under s 122 of the Constitution: Northern Territory v GPAO (1999) 196 CLR 553. However, doubts existed about the state-to-federal aspect of the cross-vesting scheme from the beginning.

The scheme is invalid 20.25 Only months after the cross-vesting scheme was upheld by a split decision in Gould v Brown (1998) 193 CLR 346, a second challenge emerged, and state-to-federal cross-vesting of jurisdiction was ruled unconstitutional in Re Wakim; Ex parte McNally (1999) 198 CLR 511. The first and most obvious reason is that the Constitution does not, in its terms, authorise state-to-federal cross-vesting: see Callinan J in Wakim at 625. That part of the cross-vesting scheme simply fails for want of legislative power. The requirement of such a power is axiomatic: see, for example, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 168. Every justice of the court in the Wakim, including the dissenting justice, Kirby J, agreed that there was no express power authorising the scheme. The phrase ‘Federal jurisdiction’ as used in ss 71, 73 and 77 of the Constitution means jurisdiction derived from the federal Commonwealth: Lorenzo v Carey (1921) 29 CLR 243 at 252. The ‘parliament’ referred to in ss 76 and 77 is the federal parliament. The Constitution contemplates federal-to-state vesting of jurisdiction, but it has nothing to say about state-to-federal vesting of jurisdiction. Second, it is now well established that Ch III is an exhaustive delimitation of the jurisdiction that may be conferred on federal courts: Re Judiciary Act 1903–1920 (1921) 29 CLR 257 at 265; see also Marbury v Madison 5 US 137 at 174 (1803). This proposition was emphatically confirmed by the majority: at 545 per Gleeson CJ; at 546 per Gaudron J (agreeing with Gummow and Hayne JJ, McHugh J at 555–9). It is therefore not constitutionally permissible for a federal court to ‘consent’ to the vesting of state jurisdiction: see, for example, Gummow and Hayne JJ at 572, 578–9. The majority rejected the contention that it was elevating the maxim of statutory construction expressio unius est exclusio alterius beyond its true status: at 581 (but contra Kirby J at 605). In the absence of an express grant of power, one

ought not to be inferred: Le Mesurier v Connor (1929) 42 CLR 481 at 512–13; see also ss 51(xxxiii), (xxxiv), 91, 114 and 123; Attorney-General (Cth) v Colonial Sugar Co Ltd (1913) 17 CLR 644 at 653–4. It was held that the Constitution, by erecting a scheme of federal jurisdiction that contemplates the vesting of federal jurisdiction in state courts, gives rise to a ‘negative implication’ that the states may not vest jurisdiction in a federal court. Third, state-to-federal cross-vesting would conflict with the historical understanding of the reason for inclusion of s 77(iii) in the federal Constitution. The so-called ‘autochthonous expedient’ was developed to overcome the difficulty that had arisen under the United States Constitution, where cross-vesting of federal jurisdiction to the states was held not to be incidental to general federal legislative powers dealing with federal jurisdiction. The express inclusion of a power to invest state courts with federal jurisdiction was considered necessary on the basis that without such power the Commonwealth would have no power to [page 584] conscript state courts to exercise federal jurisdiction: Le Mesurier v Connor (1929) 42 CLR 481; Queen Victoria Memorial Hospital v Thorton (1953) 87 CLR 144 at 152. Fourth, there is no ‘incidental power’ available to allow the federal parliament to authorise federal courts to consent to the exercise of jurisdiction offered to them by state parliaments: Wakim at 579–80 per Gummow and Hayne JJ; contra 613–14. The express incidental power (s 51(xxxix)) is not wide enough to assist here, as it only gives the federal parliament power to pass laws incidental to the exercise of an express power.

Fifth, courts are only bound by their own legislatures: R v Murray; Ex parte The Commonwealth (1916) 22 CLR 437 at 452, 464, 471. This principle is essential to the construction of a federal Constitution: Collins v Charles Marshall Pty Ltd (1954) 92 CLR 529 at 543. In Re Wakim; Ex Parte McNally (1999) 198 CLR 511, Gummow and Hayne JJ, with whom Gleeson CJ, Gaudron, McHugh and Callinan JJ agreed, said (at 573): What gives courts the authority to decide a matter is the law of the polity of the courts concerned, not some attempted conferral of jurisdiction on those courts by the legislature of another polity. That is because of the very nature of judicial power as ‘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’ (Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357). The authority to decide comes from the sovereign authority concerned, not from some other source.

Sixth and finally, if neither the Commonwealth nor the states have constitutional power to confer state jurisdiction on a federal court it is submitted that end cannot be achieved through co-operative action. The authorities which deal with cross-vesting of jurisdiction of administrative tribunals (R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 552–3, 563, 579–80, 589, 591; Re Cram; Ex parte New South Wales Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 at 131) may be distinguished on the basis that they concern executive power, not judicial power. In addition, there is an express provision in the Constitution authorising co-operative executive action: the parliaments of the states may refer matters to the Commonwealth: s 51(xxxvii). This power could not be used to authorise the state-to-federal cross-vesting, because to construe the power in this way would be inconsistent with the scheme of federal jurisdiction erected by Ch III of the Constitution. For these reasons, so much of the cross-vesting scheme that contemplated vesting of state jurisdiction was constitutionally invalid.

The consequences of the demise of cross-vesting 20.26 Re Wakim; Ex parte McNally (1999) 198 CLR 511 was followed in Australian Securities and Investments Commission v Edensor Nominees (2001) 204 CLR 559 and Re Macks; Ex parte Saint (2000) 204 CLR 158. Edensor and Macks considered the practical implications of Wakim in the sphere of corporate regulation. Macks endorsed the remedial legislation passed by the states following the decision in Wakim: for example, Federal Courts (State Jurisdiction) Act 1999 (Vic). This endorsement was subject to the unresolved question as to whether the appeal [page 585] and variation provisions in the remedial legislation were valid (which we will come to in a moment). The High Court held that the remedial law, although based significantly on Federal Court decisions impugned by Wakim, was effective. The remedial legislation operates as follows: in the event of an ‘ineffective judgment’ of the Federal Court, the remedial legislation deems the rights and liabilities set out in the ineffective judgment to exist and to always have existed. The remedial legislation effectively grants rights and liabilities identical to those that the ineffective judgment attempted to cause. The deemed rights and liabilities are enforceable as if they were granted by the relevant state Supreme Court. The remedial legislation states that an ineffective single-judge Federal Court judgment takes effect as if it was the decision of a single judge of the state Supreme Court and an ineffective Full Court Federal Court judgment as the decision of the Full Court (or Court of Appeal as the case may be) of the state Supreme Court. Further, the deemed rights and liabilities can be appealed from or varied as if they were a decision of the state

Supreme Court. In Macks, the remedial legislation was challenged on the basis that it was inconsistent with the Federal Court of Australia Act 1976 (Cth). Previously, in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629, the High Court held that provisions of the remedial legislation permitting a state Supreme Court to ‘complete’ the determination of a matter partly heard by the Federal Court, where the Federal Court lacked jurisdiction to resolve the matter (in the light of Wakim), were valid. In Macks, the majority (Kirby J dissenting) held that the remedial legislation was not inconsistent with the Federal Court Act. Even though the remedial legislation and the Federal Court of Australia Act appear to both cover very similar fields, the remedial legislation did not encroach upon or interfere with the field of the Federal Court of Australia Act. The remedial legislation merely used an ‘ineffective’ Federal Court judgment as the historical fact upon which to base the deemed rights and liabilities created by the remedial legislation. The fact that the result of the Federal Court order and the remedial legislation were basically identical was immaterial — they were not technically inconsistent: at 179 per Gleeson J; at 186–7 per Gaudron J; at 194–5 per McHugh J; at 240 per Gummow J; at 280 per Hayne and Callinan JJ. It has also been argued that the remedial legislation was ‘operationally’ inconsistent with the Federal Court Act. Under the Federal Court Act, the Federal Court is a ‘superior court of record’. There was some argument as to whether this meant the decisions of the Federal Court, even where beyond power, were voidable at worst (and only void if actually overturned). Hence a valid (albeit ultra vires) Federal Court decision would co-exist with rights and liabilities (and notional state Supreme Court) decisions based upon identical facts and outcomes: at 194–5 per McHugh J; at 240 per Gummow J. Should a party seek to appeal or vary the notional state Supreme Court

decision, a state Supreme Court would find itself, effectively, reviewing the earlier Federal Court case: the High Court did not express a final view on this issue (cf Gaudron J at 193–4). However, Kirby J (at 263) raised concerns that this ‘diverts into a State Supreme Court an appeal which in substance challenges the disposition of the rights and liabilities of the parties decided by a federal court’. [page 586] The practical impact of Macks is that the previous Federal Court decisions (that is, pre-Wakim) continue to have effect according to their terms. This preserves the positions of numerous litigants for whom the finality of previous litigation was in significant doubt. This resolves the major problem caused by the Wakim decision. Proceedings involving ASIC within jurisdiction 20.27 An alternative basis for the jurisdiction of the Federal Court in matters arising partly or wholly under state corporations legislation was considered in Australian Securities and Investments Commission v Edensor Nominees (2001) 204 CLR 559. The judge at first instance granted orders sought by ASIC. Immediately after this decision was given, Wakim was handed down. The Full Federal Court, on appeal, held that the Federal Court did not have the power to grant the orders requested under the Corporations Law. This followed from an application of Wakim and the argument ran that, as the State of Victoria (which enacted the relevant Corporations Law applied in this case) could not vest jurisdiction in the Federal Court, the Federal Court did not have jurisdiction to grant orders under Victorian legislation. ASIC argued, among other things, that it was ‘the Commonwealth’ for the purposes of s 39B of the Judiciary Act 1903 (Cth). This section provides that the Federal Court has original

jurisdiction to entertain applications by the Commonwealth for injunctive or declaratory relief. The High Court held that ASIC was the Commonwealth for the purposes of the Judiciary Act and the Constitution: at 581 per Gleeson CJ, Gaudron and Gummow JJ; at 600 per McHugh J; at 628–9 per Kirby J; at 638 per Hayne and Callinan JJ. Any proceeding involving ASIC was by its very nature a ‘federal’ proceeding. The practical impact of Edensor is that ASIC is able to enforce the Corporations Law in the Federal Court, regardless of the fact that according to Wakim, the provisions in any particular state’s Corporations Act purporting to grant jurisdiction to the Federal Court are invalid. This has the effect of alleviating to a significant degree some of the practical problems caused by the Wakim decision.

[page 587]

Chapter Twenty-one

Inconsistency of Laws under the Constitution Introduction 21.1

Section 109 of the Constitution reads:

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.

The purposes and effect of s 109 21.2 Section 109 eliminates conflicts of law between state and federal laws. In this way, s 109 also protects people from double jeopardy in circumstances where both a state and federal law are sought to be enforced: see University of Wollongong v Metwally (1984) 158 CLR 447 at 458, 475. Section 109 also provides a significant pointer to the dynamics of Australian federalism. Australian federalism is not characterised by a balance of power between the Commonwealth and the states. As the majority observed in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1 (see further 8.21–8.25), references to the notion of ‘federal balance’ ‘carry a misleading implication of static equilibrium’: at 73. Instead, where the Commonwealth has validly exercised its legislative power, s 109 confirms the supremacy of the federal parliament over the state parliaments: Amalgamated Society of Engineers v Adelaide Steamship Co

Ltd (Engineers’ case) (1920) 28 CLR 129 at 155 (see further 3.8). Meaning of ‘law’ in s 109 21.3 Section 109 refers to ‘a law of a State’ and ‘a law of the Commonwealth’. These expressions refer to the laws ‘made by, or under the authority of, the parliaments of the states and the Commonwealth’: Re Colina; Ex parte Torney (1999) 200 CLR 386 at 397. Accordingly, ‘laws’ under s 109 includes statutes, regulations and statutory rules: Engineer’s case (1920) 28 CLR 129 at 155. 21.4 An industrial award is a ‘law’ for the purposes of s 109: Ex parte McLean (1930) 43 CLR 472. In that case, a federal government agency (the Court of Conciliation and Arbitration, as to which, see 19.4) was authorised by statute to make awards binding on the parties to industrial disputes. Dixon J reasoned that it was the federal parliament’s authorisation of the court to make the award pursuant to federal statute, in disregard of the provisions of state law, that gave paramountcy to the award as a type of regulation: at 484–5. Any question [page 588] of inconsistency that arose would be between the federal statutory provision authorising the arbitration of the award including the award as an exercise of that power, and the state provisions. 21.5 The reference to ‘laws’ in s 109 does not extend to administrative decisions made by officials exercising executive power: Airlines of New South Wales Pty Ltd v New South Wales (No 1) (1964) 113 CLR 1. So, for example, administrative directions, including air navigation orders, notices to pilots and the like are not ‘laws of the Commonwealth’ for the purposes of s 109: (1964) 113 CLR 1 at 31, 46.

21.6 The expression ‘laws’ in s 109 also extends to rules of court: Flaherty v Girgis (1987) 162 CLR 574. In Flaherty, Girgis, a resident of New South Wales, was severely injured when she was struck in Queensland by a vehicle driven by Flaherty, a resident of Queensland. Girgis commenced an action claiming recovery of medical expenses and damages against Flaherty in the Supreme Court of New South Wales. Under Pt 10, r 2 of the New South Wales Supreme Court Rules, extraterritorial service of process was not effective unless leave had been given by the New South Wales Supreme Court, or where a court confirmed that service had been effected without leave. Girgis’ process was instead effected pursuant to several provisions of the Service and Execution of Process Act 1901 (Cth), which also enabled extraterritorial service of process (note s 51(xxiv) of the Constitution). Girgis later applied to the New South Wales Supreme Court seeking confirmation of service under the New South Wales rule. Flaherty argued that the New South Wales rule of court was invalid to the extent of its inconsistency with the Commonwealth Act. All the members of the court assumed that the New South Wales rule of court was a ‘law’ for the purposes of s 109. 21.7 The reference in s 109 to ‘laws’ does not refer to common law, which is automatically abrogated by any valid statute that operates in the relevant jurisdiction: Felton v Mulligan (1971) 124 CLR 367 at 370. In Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 at [13], Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ said ‘the established understanding [is] that s 109 of the Constitution is not directed to displacement of the common law’. There is no separate federal and state common law in Australia: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562–3. 21.8 The Constitution is not a ‘law of the Commonwealth’ for the purposes of s 109: Re Colina; Ex parte Torney (1999) 200 CLR 386 at 397.

Laws must be valid and operative Requirement of valid laws 21.9 Section 109 only operates when there is a valid federal law and a valid state law in the same field: Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595 at 628. An invalid law creates no rights, duties or obligations; it is void ab initio: South Australia v Commonwealth (Uniform Tax case (No 1)) (1942) 65 CLR 373 at 409. Accordingly, when a s 109 question requires resolution, it is a logically anterior task to determine that both of the relevant state and federal laws are valid. If either (or, obviously, both) of them are invalid, then there can be no inconsistency. [page 589] 21.10 A law of the Commonwealth made under s 122, including one that is made with reference to a particular territory, can operate extra-territorially, be a ‘law’ for the purposes of s 109, and override a state law to the extent of its inconsistency. In Lamshed v Lake (1958) 99 CLR 132, Lamshed, a policeman from South Australia, laid a complaint against Lake, a truck driver from the Northern Territory, that Lake had committed a breach of South Australian law by driving on South Australian roads without a South Australian licence. Lake argued that the South Australian road licensing law was invalid to the extent of its inconsistency with s 10 of the Northern Territory (Administration) Act 1910 (Cth), which provided that ‘trade, commerce and intercourse between the Territory and the States, whether by means of internal carriage or ocean navigation, shall be absolutely free’. A majority of the court held that the Commonwealth law validly overrode the South Australian law to the extent of its

inconsistency under s 109. Requirement of operative laws 21.11 Section 109 has no operation where only one or other of state or federal law is operative. Butler v Attorney-General (Vic) (1961) 106 CLR 268 illustrates this point. The case concerned a conflict between state and federal legislation concerning the employment of ex-service personnel. Previously, the state and federal legislative schemes had given rise to inconsistency questions. However, by 1961 the federal legislation had been repealed. Taylor J observed (at 283): … that the condition for the operation of the section is that a law of the State shall be found to be inconsistent with a law of the Commonwealth. When this appears the Federal law is to prevail and the latter is to the extent of the inconsistency invalid. The section is … dealing with instruments having the force of the law … That being so it seems to me that the words ‘to the extent of the inconsistency’ must be taken to have a temporal as well as a substantive connotation … The Federal Act can ‘prevail’ only whilst it remains in force and invalidity of the State Act is produced only as the counterpart of the ‘supremacy’ of the Federal Act [emphasis added].

Inconsistency The ‘impossibility of simultaneous obedience’ test 21.12 In the early years of the High Court, s 109 was interpreted narrowly, allowing state legislation to operate alongside Commonwealth legislation. After the Engineer’s case the High Court took a more expansive approach to Commonwealth legislative powers and to the word ‘inconsistent’ in s 109. Early decisions of the High Court had required that it must be impossible to obey both laws. In Australian Boot Trade Employés Federation v Whybrow & Co (1910) 10 CLR 266, a federal award purported to fix a minimum wage for every person working in a particular industry. Some states had industrial laws authorising state wages boards to fix lower rates. The claimants, referring to United States authorities, argued (at 272–3)

that: There are three classes of cases in which, according to the American cases, there is inconsistency: (1) Where two conflicting duties are imposed by the two legislatures; (2) Where there is something in the nature of a right or privilege conferred by the paramount legislature, and the other legislature seeks to impose some additional

[page 590] restrictions on the exercise of that right or privilege; and (3) Where the Court forms the view from the language of the paramount legislature that they intended their law to be the only law upon the particular point?… So in this case there would be an inconsistency, not merely if the award cannot be obeyed without doing something prohibited by the State law, but if what the award prescribes is something which deprives some person of a right or privilege which he had under the State law, or if the Court sees that the State has indicated that in the particular trade the determination of the Wages Board is to be the only restriction imposed upon those engaged in it.

At this stage in the development of the High Court’s jurisprudence, the majority construed the Commonwealth’s power narrowly, to avoid trespass on the so-called reserved powers of the states: see 3.5. In Whybrow and other cases decided before the Engineers’ case, this approach meant that s 109 often did not arise. In Whybrow, Griffith CJ ventured that the applicable test of inconsistency under s 109 was whether ‘a proposed Act is consistent with simultaneous obedience’ to both a state and federal law: at 286. This ‘early narrow interpretation of s 109 reflected the early Court’s desire to preserve as much of the States’ autonomy as possible’: Joseph and Castan, 2010, p 244. In the Whybrow case, this meant that there would be no inconsistency if the employer paid the higher wage rate prescribed by the Commonwealth law. 21.13 So, for example, in R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23, s 166 of the Liquor Act 1912 (Qld) provided that a local referendum (on liquor trading) ‘shall be held at the Senate election in the year 1917’. But s 14 of the Commonwealth Electoral

(Wartime) Act 1917 (Cth) declared that ‘no referendum or vote of electors of any State or part of a State shall be taken under the law of a State’ on a Senate polling day. The High Court held the state law invalid because it was impossible to obey both laws. 21.14 It is now clear that there may still be an inconsistency within the meaning of s 109, although it is possible to obey both a state and federal law. In Viskauskas v Niland (1983) 153 CLR 280, the High Court was asked to declare that sections of the Anti-Discrimination Act 1977 (NSW) were inconsistent with the Racial Discrimination Act 1975 (Cth). The state law prohibited discrimination on the ground of race in the provision of goods and services. Enforcement of these provisions involved investigation and conciliation by a state official, followed by inquiry and orders (including damages or injunctions) by a state tribunal. The federal law, enacted to give effect to an international treaty, also prohibited racial discrimination in the provision of goods and services and provided for inquiry and conciliation by a Commonwealth commission, but followed by enforcement through civil action in a court. The High Court unanimously held that it was possible to obey both laws, but the state law was nevertheless inconsistent with the federal law because the provisions of the federal law manifest an intention to regulate the entire topic of racial discrimination. The court said (at 292): The Commonwealth Parliament has chosen the course of itself legislating to prohibit racial discrimination, and having done so it can only fulfil the obligation cast upon it by the convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not, for example, admit the possibility that a State law might allow exceptions to the prohibition of racial discrimination or might otherwise detract from the efficacy of the Commonwealth law. The subject

[page 591] matter of the Commonwealth Act suggests that it is intended to be exhaustive and

exclusive, and this conclusion is supported by the fact that the provisions of Pt II (and especially those of s 9) are expressed with complete generality, and by the further fact that s 6 reveals an intention to bind the Crown in right of each State as well as the Crown in right of the Commonwealth. It appears from both the terms and the subject matter of the Commonwealth Act that it is intended as a complete statement of the law for Australia relating to racial discrimination.

The emergence of the ‘inconsistent rights or duties’ test and the ‘indirect inconsistency’ or ‘cover the field’ test 21.15 In Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 a majority of the High Court held that the Forty-Four Hours Week Act 1925 (NSW) was inconsistent with the Conciliation and Arbitration Act 1904 (Cth), which supported an award applying across the engineering industry. The state law provided that a worker’s ordinary working hours should not exceed 44 hours per week and that any worker covered by a federal award fixing a longer working week should be paid the full award wages for working 44 hours. The federal award provided that each worker covered by the award should be paid a fixed wage for a working week of 48 hours, and that any worker who did not attend for the full time ‘should lose his pay for the actual time of such non-attendance’. Knox CJ and Gavan Duffy J said (at 478) that the impossibility of the simultaneous obedience test is: … not sufficient or even appropriate in every case. Two enactments may be inconsistent although obedience to each of them may be possible without the other. Statutes may do more than impose duties; they may, for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it [emphasis added].

This new test has been referred to as the ‘inconsistent rights’ test or the ‘direct inconsistency’ test. More recently, the High Court has expressed this test in these terms: a state law conflicts with a Commonwealth law if the state law undermines the Commonwealth law (Jemena Asset Management (3) Pty Ltd v Coinvest Limited (2011) 244

CLR 508: see further 21.17). 21.16 In Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 Isaacs J articulated a third inconsistency test, the ‘cover the field’ test, when he acknowledged that an employer could obey both the state legislation and the Commonwealth award by immediately returning to any worker who worked a 44-hour week the money withheld from the worker’s wages. Like Knox CJ and Gavan Duffy J, Isaacs J held that inconsistency could take place even where simultaneous obedience was possible. However Isaacs J used different language to describe why inconsistency occurs (at 489): If … a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field … If such a position as I have postulated be in fact established, the inconsistency is demonstrated, not by comparison of detailed provisions, but by the mere existence of the two sets of provisions.

[page 592] This approach, the ‘cover the field’ test, has also been referred to as the ‘indirect inconsistency’ test. Applying this test, Isaacs J explained that the federal law not only authorised the Commonwealth Arbitration Court to settle interstate industrial disputes but indicated that such a settlement (expressed in an award) was ‘to end the dispute and thereby conclude the parties’. Whatever the arbitration court decided in the award was a conclusive settlement ‘both as to what is granted and what is refused’ (at 491–2): As to the industrial conditions in dispute, an award by force of the Act covers the field, even where a wage is stated as the minimum or where hours are stated as the maximum, and establishes what on that field are to be the reciprocal rights and obligations of the parties bound. Any entry, therefore, of a State upon this field is an intrusion upon occupied federal territory and inconsistent with the award, regardless of the specific terms of the State legislation whether direct or indirect.

A similar approach was taken by Starke J, who described the state law as undoing ‘what the Commonwealth tribunal considered a right and just settlement of [the industrial] dispute taken as a whole. Such provisions are, in my opinion, inconsistent with the law of the Commonwealth and, therefore, invalid’: at 527. Rich J adopted the same approach as Knox CJ and Gavan Duffy J (at 522), while Higgins and Powers JJ dissented on the ground that an employer could obey the state law without disobeying the Commonwealth award: at 503, 516. 21.17 The two new tests that emerged in Clyde have been applied in many cases since, and in this chapter examples of their operation have been provided. However, recently there has been renewed criticism of the ‘cover the field’ test. In Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508, the three appellants were businesses that operated electricity infrastructure assets. In the course of that business they employed construction workers. Workplace relations were governed by several federal industrial instruments made under the Workplace Relations Act 1996 (Cth). These instruments dealt with various topics including the provision of long service leave. In early October 2007, the appellants brought proceedings in the Federal Court because they feared imminent prosecution under the Construction Industry Long Service Leave Act 1997 (Vic) (the state Act), which provided for a scheme for portable long service leave benefits in the construction industry. A plurality of the High Court, French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ, took the opportunity to restate and summarise the applicable principles: 39 The statement of principle respecting s 109 of the Constitution which had been made by Dixon J in Victoria v The Commonwealth [the Kakariki case] (1937) 58 CLR 618 at 630 was taken up in the joint reasons of the whole Court in Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 at 76 as follows: In Victoria v The Commonwealth (1937) 58 CLR 618 at 630 Dixon J stated two propositions which are presently material. The first was: ‘When a State

law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid’. The second, which followed immediately in the same passage, was: ‘Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to [page 593] the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent’ … The first proposition is often associated with the description ‘direct inconsistency’ (see, eg, Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 at 159 per Latham CJ and 161 per Starke J. See also Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258; Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 at 78; Dickson (2010) 241 CLR 491 at 504 [22]), and the second with the expressions ‘covering the field’ (see Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489, 491, 499 per Isaacs J; Wenn v AttorneyGeneral (Vic) (1948) 77 CLR 84 at 108–9 per Latham CJ) and ‘indirect inconsistency’. 40 The expression ‘cover the field’ means ‘cover the subject matter’, which was the description used and explained by Dixon J in Ex parte McLean (1930) 43 CLR 472 at 483– 6. From the outset the aspect of inconsistency associated with the expression ‘covering the field’ has not been free from criticism (Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 147 per Evatt J; Kakariki case (1937) 58 CLR 618 at 633–4 per Evatt J). There can be little doubt that indirect inconsistency involves ‘more subtle … contrariety’ (Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 406 per Stephen J) than any ‘textual’ (Miller v Miller (1978) 141 CLR 269 at 275 per Barwick CJ) or ‘direct collision’ (Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258 per Barwick CJ) between the provisions of a Commonwealth law and a State law. 41 The crucial notions of ‘altering’, ‘impairing’ or ‘detracting from’ the operation of a law of the Commonwealth have in common the idea that a State law conflicts with a Commonwealth law if the State law undermines the Commonwealth law. Therefore any alteration or impairment of, or detraction from, a Commonwealth law must be significant and not trivial (see Metal Trades Industry Association v Amalgamated Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632 at 642–3, 651; Telstra Corporation Ltd v Worthing (1999) 197 CR 61 at 76 [27]). 42 Although the utility of accepted tests of inconsistency, based on recognising different aspects of inconsistency for the purposes of s 109, is well established as Mason J observed in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 260, it is not surprising that different tests of inconsistency directed to the

same end are interrelated and in any one case more than one test may be applied in order to establish inconsistency for the purposes of s 109. All tests of inconsistency which have been applied by this Court for the purpose of s 109 are tests for discerning whether a ‘real conflict’ (see, for example, Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 553) exists between a Commonwealth law and a State law [emphasis added].

The plurality went on to hold that the Victorian Act did not undermine the federal instruments: 59 Whilst the federal instruments deal with all the obligations and entitlements of employers and employees in respect of the grant of, and payment for, long service leave, arising in the employment relationship between employers and employees, they do not deal with, or even mention, portable long service leave benefits, for workers in continuous service within the construction industry.

21.18 Mark Leeming has observed that there is utility ‘in using the familiar labels of “direct” and “indirect” inconsistency, or even “covering the field” — so long as it is realised that those categories are ultimately conclusions flowing from the interpretative process, and categories which overlap. For example, every case of a Commonwealth law “covering the field” is, on analysis, a case where either [page 594] expressly or by implication, the Commonwealth law provides for an immunity from a class of State laws, which immunity would be qualified, altered or impaired by, and is therefore inconsistent with, the operation of a State law within that class’ (Leeming, 2012). See also Rumble, 1980. 21.19 In Dickson v The Queen (2010) 241 CLR 491 and Jemena and Momcilovic v The Queen (2011) 245 CLR 1, members of the court drew attention to Evatt J’s criticisms of the notion of ‘covering the field’ in Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 147. In Stock

Motor Ploughs, the High Court was invited to consider whether provisions of the Bills of Exchange Act 1909 (Cth) and the Moratorium Act 1930 (NSW) were inconsistent with each other. The Commonwealth Act gave the plaintiff, as payee of promissory notes, the right to sue for and recover any amounts promised to be paid. The state Act, introduced at the height of the Great Depression to suspend payments under loan agreements, required leave of a court before promissory notes could be sued upon. The Full Court of the Supreme Court of New South Wales upheld the leave requirement made by the state law, and Stock Motor Ploughs appealed. The defendant, in the course of argument, argued that the Acts were not inconsistent because the federal law did ‘not cover, nor purport to cover, the ground covered by the Moratorium Act’. Evatt J said (at 147): It is now established, therefore, that State and Federal laws may be inconsistent, although obedience to both laws is possible. There may even be inconsistency although each law imposes the very same duty of obedience. These conclusions have, in the main, been reached, by ascribing ‘inconsistency’ to a State law, not because the Federal law directly invalidates or conflicts with it, but because the Federal law is said to ‘cover the field’. This is a very ambiguous phrase, because subject matters of legislation bear little resemblance to geographical areas. It is no more than a cliché for expressing the fact that, by reason of the subject matter dealt with, and the method of dealing with it, and the nature and multiplicity of the regulations prescribed, the Federal authority has adopted a plan or scheme which will be hindered and obstructed if any additional regulations whatever are prescribed upon the subject by any other authority; if, in other words, the subject is either touched or trenched upon by State authority.

In light of the contemporary High Court’s revival of Justice Evatt’s misgivings about the ‘cover the field’ test, in this edition of the book I have arranged the treatment of the s 109 cases a little differently, and focus on how the Commonwealth legislation said to override state law to the extent of its inconsistency expresses its intention to do so. The questions that drive the treatment of the cases (and serve as subheadings below) are: •

Does the Commonwealth law express an intention to displace state law (previously we might have asked: ‘Does the

Commonwealth law expressly cover the field’)? •

Does the Commonwealth law express an intention to avoid inconsistency?

•

Does the state law undermine the Commonwealth law?

Express intention to displace state law (or ‘cover the field’) 21.20 The Commonwealth may include, in its legislation, a clause expressly excluding the operation of state legislation. In Victoria v Commonwealth (Kakariki case) (1937) 58 CLR 618, Evatt J suggested that such a clause could result in the invalidity [page 595] of the Commonwealth law, as the Commonwealth’s specific legislative powers did not include the ‘power to define or limit the legislative or executive powers of a State’: at 638. However, it is now settled that the Commonwealth may legislate in those terms. In Wenn v Attorney-General (Vic) (1948) 77 CLR 84, the High Court held that the Re-establishment and Employment Act 1945 (Cth), which regulated employment preferences for ex-members of the armed forces, made provision for preference only in hiring and not in promotion. The Discharged Servicemen’s Preference Act 1943 (Vic) provided for preference in hiring and promotion. However, the court held the state law invalid, because a Commonwealth intention to cover the field was found in the following provision of the federal law: 24 … (2) The provisions of this Division shall apply to the exclusion of any provisions, providing for preference in any matter relating to the employment of discharged members of the forces, of any law of a State.

Latham CJ observed that the Commonwealth’s intention to regulate

the topic (or ‘cover the field’) could be inferred ‘from the nature and scope’ of the legislation (at 110): Where such an inference can properly be drawn the Commonwealth legislation prevails over any State law by virtue of s 109 of the Constitution. In the Commonwealth Act now under consideration, however, the Commonwealth Parliament has not left this matter to be determined by an inference (possibly disputable) from the nature and scope of the statute. The Parliament has most expressly stated an intention which in the other cases mentioned was discovered only by a process of inference. If such a parliamentary intention is effective when it is ascertained by inference only, there can be no reason why it should not be equally effective when the intention is expressly stated.

Dixon J described s 24(2) as showing that the Commonwealth Parliament ‘intended to provide … what would be the only rule upon the subject and so would operate uniformly and without differentiation based on locality or other conditions’: at 119. In response to the argument that s 24(2) was beyond the constitutional power of the Commonwealth Parliament, he said (at 120): There is no doubt great difficulty in satisfactorily defining the limits of the power to legislate upon a subject exhaustively so that s 109 will of its own force make inoperative State legislation which otherwise would add liabilities, duties, immunities, liberties, powers or rights to those which the Federal law had decided to be sufficient. But within such limits an enactment does not seem to me to be open to the objection that it is not legislation with respect to the Federal subject matter but with respect to the exercise of State legislative powers or that it trenches upon State functions. Beyond those limits no doubt there lies a debatable area where Federal laws may be found that seem to be aimed rather at preventing State legislative action than dealing with a subject matter assigned to the Commonwealth Parliament.

21.21 An argument that the Commonwealth cannot exclude state laws from a particular field was rejected in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1 (see 8.21–8.25). The case was a challenge to the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations (Work Choices) Amendment Act 2005 (Cth). New South Wales (and all the other states and territories) challenged the constitutional validity of s 16(1) of the Amendment Act, which evinced an

[page 596] intention that the Work Choices legislation was ‘intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer’. A list was then provided. Section 16(4) was expressed in a similar way, but purported to exclude state and territory laws prescribed by regulation. The states, led by Western Australia on this argument, contended that s 16 was a bare attempt to limit or exclude state legislative power, and was invalid because it curtailed or significantly interfered with the capacity of states to function as governments, contrary to the implied limitations recognised in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (as to which, see 3.10). The majority of the High Court, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, held that the provisions did not constitute a bare attempt by the Commonwealth to limit or exclude state legislative power. The provisions were supported by s 51(xx), and applying Wenn v Attorney-General (Vic) (1948) 77 CLR 84, the plurality concluded that it is within the power of the Commonwealth to prevent the operation of separate and possibly varying state enactments dealing with the same subject as the Commonwealth law ((2006) 229 CLR 1 at 167–9, [371]–[372]). Express intention to avoid inconsistency 21.22 In some circumstances, a federal law may evince an express intention not to cover the field. For example, in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545, certain provisions of South Australian consumer credit legislation were challenged on the basis of inconsistency with the federal Trade Practices Act 1974. A provision in the Act stated that the law was ‘not intended to exclude or limit the concurrent operation of any law of a

State or Territory’. The South Australian Credit Tribunal argued that this provision evinced the federal parliament’s intention that the South Australian laws could operate concurrently with the federal law. Mason J, with whom Barwick CJ, Gibbs, Stephen and Jacobs JJ agreed, referred to the federal provision and said (at 563): … although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.

However, even though a federal law might evince an express intention not to cover the field that does not remove any direct inconsistency that might exist between a state law and a federal law. As Mason J also remarked (at 563–4): It is of course by now well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed. In Reg v Loewenthal;

[page 597] Ex parte Blacklock (1974) 131 CLR 338 at 346–347, I pointed out that such a provision in a Commonwealth law cannot displace the operation of s 109 in rendering the State law inoperative. But where there is no direct inconsistency, where inconsistency can only arise if the Commonwealth law is intended to be an exhaustive and exclusive law, a provision of the kind under consideration will be effective to avoid inconsistency by making it clear that the law is not intended to be exhaustive or exclusive.

21.23 There can be no inconsistency where it is plain, on analysis, that the Commonwealth has not expressed any intention to regulate a

topic. In TA Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177, the court rejected a challenge to the validity of the Long Service Leave Act 1955 (NSW), which gave employees a right to paid leave after 10 years’ service with an employer. The employer argued that this Act was inconsistent with the Conciliation and Arbitration Act 1904 (Cth) and an award made under that Act fixing the rights and obligations of the employer and its employees. The award in question made no mention of long service leave, but the employer argued that this silence reflected an intention that there should be no right to long service leave so that ‘the ground is covered to the exclusion of the State Act’: at 183. The court (Dixon CJ, McTiernan, Williams, Webb, Kitto and Taylor JJ) rejected this argument stating that, if the conciliation commissioner who made the award ‘had entertained any such intention he should have expressed it in his award’: at 184. 21.24 By contrast, in Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399, the court upheld a challenge to the validity of s 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA), which gave to the Industrial Court of South Australia power to order re-employment of an employee whose dismissal was ‘harsh, unjust or unreasonable’. This provision was, the court held, inconsistent with the provisions of the Broadcasting and Television Act 1942 (Cth) dealing with the employment of employees by the Australian Broadcasting Commission. Mason J, with whom Barwick CJ and Gibbs J agreed, pointed out that the Commonwealth Act distinguished between permanent and temporary employees of the commission. In dealing with the employment of permanent employees, the Act set out ‘a comprehensive and exclusive code regulating the appointment, termination of appointment, promotion, transfer, retirement and dismissal of officers in the service of the commission’: at 415. It showed an intention to cover the field of employment of permanent

employees. Turning to temporary employees, Mason J acknowledged that the provisions of the Act were ‘very much less detailed and less comprehensive than those which apply to permanent employees’: at 416. Nevertheless, he inferred a Commonwealth intention to cover the field of the commission’s employment of temporary employees from two provisions of the Broadcasting and Television Act from ss 42 and 43(6): 42 Nothing in this Division shall affect the operation of any award made by the Commonwealth Court of Conciliation and Arbitration, or of any determination made by the Public Service Arbitrator, prior to the commencement of this section and applicable to the Commission and any of its officers or temporary employees. 43 … (6) Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are determined by the Commission with the approval of the Public Service Board.

[page 598] Mason J explained why the Act managed to ‘cover the field’ of employment of temporary employees in the following terms (at 417): The absence of detailed provisions applying to them is not an indication that it is contemplated that other laws will apply to them, but rather that the employer has an unqualified authority to make decisions affecting their employment and the termination of their services.

See also Metal Trades Industry Association of Australia v Amalgamated Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632 at 644; Dao v Australian Postal Commission (1987) 162 CLR 317 at 339. 21.25 Sometimes, on the other hand, it will appear from the terms of a federal Act that it is intended to operate within the context of state law. One of the issues in PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 325 ALR 168 was whether the Supreme Court Act 1935 (WA) authorised the Western Australian Supreme Court to make a freezing order in accordance with criteria set out in Order 52A r 5 of

the Rules of the Supreme Court 1971 (WA) (‘the WA Act’), made under the WA Act. The Foreign Judgments Act 1991 (Cth) provides, in basic terms, for a judgment creditor to apply to an ‘appropriate court’ — in this case, the Western Australian Supreme Court — to have a judgment of a foreign court registered with the object, ultimately, of enforcing the judgment: at [20]–[27]. By s 6 of the Foreign Judgments Act, a judgment creditor could only apply to register a judgment to which Pt 2 of the Act applied. Part 2 relevantly applied to money judgments of the High Court of Singapore: at [22]. In this case, there was on foot in the High Court of Singapore a proceeding against PT Bayan Resources TBK for, relevantly, damages at the time the Western Australian Supreme Court made a freezing order against Bayan. But the High Court of Singapore had not given judgment. Bayan argued that Pt 2 ‘impliedly exclude[d] any power of the Supreme Court of a state to make a freezing order in anticipation of a foreign judgment coming into existence’: at [28]. The court rejected that argument (at [30]): The registration and enforcement regime established by Pt 2 is one that relies on the ordinary processes of the Supreme Court of a State having application to the enforcement of a judgment of a foreign court once that judgment has been registered. That regime would be self-defeating were it to be read as impliedly excluding such jurisdiction and power as the Supreme Court of a State otherwise has to safeguard the efficacy of those enforcement processes.

See also at [63]. Can the Commonwealth express an intention to avoid s 109 retrospectively? 21.26 Following the High Court’s decision in Viskauskas v Niland (1983) 153 CLR 280 that Pt II of the Anti-Discrimination Act 1977 (NSW) was inconsistent with the Racial Discrimination Act 1975 (Cth), the Commonwealth Parliament enacted the Racial Discrimination Amendment Act 1983, which came into operation one month after the

decision in Viskauskas v Niland. This Act inserted s 6A into the 1975 Act: [page 599] 6A(1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.

In University of Wollongong v Metwally (1984) 158 CLR 447, Metwally had made a complaint of racial discrimination against the University of Wollongong under the Anti-Discrimination Act 1977 (NSW) in February 1982. The High Court handed down its decision in Viskauskas v Niland in May 1983 and the Commonwealth Parliament inserted s 6A into the Racial Discrimination Act 1975 (Cth) in June 1983. The New South Wales Anti-Discrimination Tribunal then heard Metwally’s complaint, upheld it, and ordered the University of Wollongong to pay Metwally damages. The university appealed against this decision to the Court of Appeal of New South Wales. One of the grounds of appeal was that s 6A of the federal law was invalid. It was argued that it would be ‘anomalous if a constitutional provision designed to ensure the supremacy of Commonwealth laws was interpreted to detract from the parliamentary sovereignty of the Commonwealth’: at 451. However, Gibbs CJ, Murphy, Brennan and Deane JJ held that the Commonwealth’s power to legislate with retrospective effect was limited: it could not deny the operation of s 109 in respect of past conflicts of state and federal laws. Gibbs CJ said (at 457): … the Parliament cannot exclude the operation of s 109 by providing that the intention of the Parliament shall be deemed to have been different from what it actually was and that what was in truth an inconsistency shall be deemed to have not existed.

See also at 469, 473, 478.

Does the state law undermine the Commonwealth law (the ‘direct inconsistency’ test)? 21.27 The test enunciated in the Kakariki case and endorsed in more recent cases (Jemena, Dickson and Momcilovic) involves a comparative analysis of the legal operation of two pieces of legislation. What are the legal rights and duties which are created or affected by each piece of legislation? How do those rights and duties compare? In Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, the application of this approach revealed that the duty imposed on employers by state law (the payment of a full award wage for 44 hours work) conflicted with the right conferred on the employer by Commonwealth law (to demand 48 hours of work from each employee who was paid a full award wage). 21.28 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 provides another example of the ‘direct inconsistency’ approach. An order, made under the Factories and Shops Act 1912 (NSW), prohibited the employment of women on milling machines. Section 41 of the Act made this prohibited employment an offence on the part of the employer. However, an award made by the arbitration court under the Conciliation and Arbitration Act 1904 (Cth) declared that an employer who was party to the award ‘may employ females on work in the industries and callings covered by this award’. [page 600] Bradley Bros Pty Ltd was covered by the award, but was prosecuted under s 41 of the state Act for employing women on milling machines. The prosecution was dismissed and, on appeal, the High Court confirmed that the state law was inconsistent with a law of the Commonwealth and was therefore invalid. Latham CJ said (at 160):

There is an express prohibition by the State authority which is permitted by the Commonwealth authority. A Commonwealth arbitration award prevails over a State statute creating an offence if the State statute is inconsistent with the award (Ex parte McLean (1930) 43 CLR 472). In this case there is, in my opinion, a clear inconsistency, and therefore the Commonwealth award prevails.

Starke J referred to ‘a direct collision between the two laws in the present case’: the state law which ‘provides in effect that females shall not be employed’ and the Commonwealth law which ‘in effect permits employers parties to the award to employ females’: at 161. Williams J also referred to a ‘direct’ inconsistency: at 163. 21.29 In Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253, Blackley, a factories and shops inspector, laid an information that Devondale Cream had employed a worker named Macdonald and had failed to pay him the minimum wage owing to him under a determination of a state wages board authorised to set minimum wages under Victorian minimum wages legislation. Devondale Cream argued that the state determination was inconsistent with a federal award binding on them which enabled them to pay a lower amount to Macdonald. Barwick CJ, McTiernan J, Taylor and Menzies JJ (Kitto J dissenting) held that the laws were in ‘direct collision’. 21.30 Since, as the court recently pointed out in Jemena, cases have been determined on the basis of the direct inconsistency test and the indirect inconsistency approach (the so-called ‘cover the field’ test), a number of the cases below also employ the language of ‘covering the field’. A classic example is Ex parte McLean (1930) 43 CLR 472. McLean was a shearer hired under a contract. A federal award which covered the shearing industry throughout Australia provided that employers and employees in the shearing industry should observe the conditions of the award and of any agreement into which they entered. The federal law made it an offence for any person to breach the award.

A dispute arose between McLean and his employer. McLean stopped working and his employer prosecuted him under s 4 of the Masters and Servants Act 1902 (NSW), which made it an offence for a worker to break his contract by stopping work without a lawful excuse. McLean was convicted by a magistrate, but applied to the New South Wales Supreme Court for prohibition on the ground that the federal award invalidated the state law. The matter was removed to the High Court under s 40 of the Judiciary Act 1903 (Cth). Dixon J said (at 483–4): The same acts or omissions were … made subject to the penal sanctions of the Federal enactment and the somewhat different penal sanctions of the State enactment. When the Parliament of the Commonwealth and the Parliament of the State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct

[page 601] is identical which each prescribes, and s 109 applies. That this is so is settled, at least when the sanctions they impose are diverse: Hume v Palmer (1926) 38 CLR 441. But the reason is that, by prescribing the rule to be observed the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter. But in the present case, conduct which the State law prescribes, namely, the performance of contracts of service, is a matter with which the Commonwealth Parliament has not itself attempted to deal. Although neglect by a shearer to perform such a contract constitutes an offence against Federal law, this does not arise from any statement by the Federal legislature of what the law shall be upon that subject. The conduct which the Federal statute penalises is the breach of industrial awards. There is ‘no collision between an intention to deal exclusively with

disobedience of awards [the Commonwealth law] and a law for the punishment of breach of contract [the State law]’ … But the provisions of [the Conciliation and Arbitration] Act itself, which establish awards made under its authority, may have a meaning and effect consistently with which State law could not further affect a matter for which such an award completely provides. If the Act means not only to give the determinations of the arbitrator binding force between the disputants but to enable him to ‘prescribe completely or exhaustively what upon any subject in dispute shall be their industrial relations’, then s 109 would operate to give paramountcy to these provisions of the statute, unless they were ultra vires and they in turn would give to the award an exclusive operation which might appear equivalent almost to paramountcy.

Dixon J said that ‘the Constitution empowered the Parliament to give and that Parliament had given the award this exclusive authority’ (at 486–7): … the substance of what the Federal award did in this case was to command performance of the prescribed contracts as an industrial duty proper to be imposed and enforced by Federal law according to the sanctions which it provides, while the State law required performance of the same contract as an industrial duty proper to be imposed and enforced by its authority and according to its sanctions. According to the doctrine deduced from the judgments of the majority of the court in the cases of Clyde Engineering Co v Cowburn (1926) 37 CLR 466 and HV McKay Pty Ltd v Hunt (1926) 38 CLR 308, the Commonwealth Conciliation and Arbitration Act gives full and complete efficacy and exclusive authority to this regulation of the Federal tribunal, and s 109 makes this statute prevail.

Dixon J concluded that the applicant had committed no offence against state law. Isaacs CJ and Starke J delivered a joint judgment to the same effect. Rich J agreed with the judgment of Dixon J. 21.31 Both Dixon J in Ex parte McLean (1930) 43 CLR 472 at 483 and Isaacs J in Cowburn (1926) 37 CLR 466 at 489 noted the problem of overlapping state and Commonwealth criminal laws. The question whether inconsistent penalties are sufficient to establish inconsistency for the purposes of s 109 has been considered in a series of cases. [page 602]

In Hume v Palmer (1926) 38 CLR 441, Palmer laid an information that Hume had breached the Navigation Act 1901 (NSW) for a sea traffic offence which was alleged to have occurred in Port Jackson. At the hearing before a state stipendiary magistrate, Hume objected to the jurisdiction of the magistrate on the basis that proceedings should have been brought under the Navigation Act 1912 (Cth) and its regulations, as the events occurred in the course of an interstate trading journey. The High Court held that the laws were inconsistent, on a number of grounds. Knox CJ said (at 448): The rules prescribed by the Commonwealth law and the State law respectively are for present purposes substantially identical, but the penalties imposed for their contravention differ … In these circumstances, it is, I think clear … that the provisions of the law of the state for the breach of which the appellant was convicted are inconsistent with the law of the Commonwealth within the meaning of sec 109 of the Constitution and are therefore invalid.

Isaacs J identified a number of features of the laws as being inconsistent, including the penalties imposed (450–1). Starke J said (at 462): The federal law covers the whole subject matter of the State Regulations in relation to navigation and shipping in inter-State and foreign trade and commerce. It produces in its code of sea rules ‘a uniform whole’, and makes it the law for the regulation of navigation and shipping within the ambit of the Federal power. But, in addition, the Federal law has imposed somewhat different sanctions upon contraventions of its code, than are imposed under the State code for the same acts … It is not difficult to see that the Federal code would be ‘disturbed or deranged’ if the State code applied a different sanction in respect of the same act. Consequently the State regulations are, in my opinion, inconsistent with the law of the Commonwealth and rendered invalid by force of sec 109 of the Constitution.

The subsequent cases involving inconsistent penalties emphasise the importance of ascertaining the intentions of the legislatures. 21.32 In R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338, the High Court decided that a person who had allegedly damaged Commonwealth property could not be prosecuted for a breach of s 469 of the Criminal Code (Qld) because this section was, in the context

of the facts of this case, inconsistent with s 29 of the Crimes Act 1914 (Cth). Section 469 of the Criminal Code provided that ‘any person who wilfully and unlawfully destroys or damages any property is guilty of an offence’ and liable to imprisonment with hard labour for two or three years. Section 29 of the Crimes Act provided that ‘any person who wilfully and unlawfully destroys or damages any property … belonging to the Commonwealth … shall be guilty of an offence’ and liable to imprisonment for two years. Menzies J applied the indirect inconsistency test and held that ‘s 29 of the Crimes Act should be regarded as exhaustive’ because it provided ‘a common rule [operating throughout Australia] to or from which the legislation of a State can neither add nor subtract’: at 342. Mason J held that there was a direct inconsistency between s 469 of the Criminal Code and s 29 of the Crimes Act, and it was therefore unnecessary to consider whether the Commonwealth Parliament had intended to cover the field (at 346–7): [page 603] Although the provisions are substantially identical in describing the conduct which gives rise to the offence, the penalties prescribed differ. A difference in the penalties prescribed for conduct which is prohibited or penalised by Commonwealth and State laws has been held to give rise to inconsistency between those laws (see Hume v Palmer (1926) 38 CLR 441; Ex parte McLean (1930) 43 CLR 472), at least when it appears that the Commonwealth statute by prescribing the rule to be observed evinces an intention to cover the subject matter to the exclusion of any other law … [T]here is here a direct conflict (in the matter of penalty) between the Commonwealth and the State law; in such a case it is impossible to see how the existence of inconsistency in the constitutional sense can be avoided by an argument which seeks to attribute to the Commonwealth law an intention not to cover the relevant field.

21.33 In McWaters v Day (1989) 168 CLR 289, Day, the respondent, a member of the Australian Army, was driving on a road within the Enoggera Barracks in suburban Brisbane, Queensland when he was

involved in a traffic accident. The accident was attended both by the Garrison Military Police and McWaters, a constable of the Queensland Police. McWaters arrested Day and charged him with an offence under s 16(1)(a) of the Traffic Act 1949 (Qld). The Queensland provision stated that: ‘Any person who whilst he is under the influence of liquor or a drug — (i) drives a motor vehicle … is guilty of an offence and liable to a penalty not exceeding $1400 or to imprisonment for a term not exceeding nine months or to both such penalty and imprisonment’. Section 4 of the Commonwealth Places (Application of Laws) Act 1970 relevantly applied. The Full Court of the Supreme Court of Queensland (McPherson and Dowsett JJ; Williams J dissenting) made absolute an order nisi for prohibition restraining the Magistrates Court at Brisbane from hearing the charge on the grounds that, as a member of the defence forces and driving on service land, the respondent’s behaviour was relevantly governed by s 40(2) of the Defence Force Discipline Act 1982 (Cth), which covered substantially the same offence as s 16(1) of the state Act which was therefore invalid to the extent of the inconsistency by reason of s 109. The unanimous High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said: 310 As evidence of the inconsistency contended for, the respondent points to the different penalties which the respective laws stipulate and to the fact that the Commonwealth offence differs in substance by containing a requirement that the person charged be incapable of having proper control of the vehicle concerned. It is true that a difference in penalties prescribed for conduct prohibited by Commonwealth and State laws has been held to give rise to inconsistency between those laws for the purposes of s 109; Hume v Palmer (1926) 38 CLR 441; Ex parte McLean (1930) 43 CLR 472; R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338. Equally, a difference between the rules of conduct prescribed by Commonwealth and State laws might give rise to such inconsistency. But the mere fact that such differences exist is insufficient to establish an inconsistency in the relevant sense. It is necessary to inquire whether the Commonwealth statute, in prescribing the rule to be observed, evinces an intention to cover the subject matter to the exclusion of any other law: Ex parte McLean, at p 483; Blacklock, at p 347; Reg v Winneke; Ex parte Gallagher (1982) 152 CLR 211, at pp 218, 224, 233; University of Wollongong v Metwally (1984) 158 CLR 447, at p 456 …

… But it is clear that the Discipline Act contemplates parallel systems of military and ordinary criminal law and does not evince any intention that defence force

[page 604] members enjoy an absolute immunity from liability under the ordinary criminal law, notwithstanding that the Discipline Act addresses the question of double jeopardy. As is implicit in the judgments in Re Tracey, the Discipline Act does not seek to do other than enact a system of military law in accordance with the traditional and constitutional view of the supplementary function of such law (see at pp 259, 262; pp 15, 20 of ALR). The different purposes underlying military discipline and the ordinary criminal law were emphasized. Thus, Brennan and Toohey JJ. said (at p 270; p 33 of ALR): ‘It is the difference between the purpose of proceedings before service tribunals and the purpose of proceedings before civil courts that justifies the subjection of service personnel to the jurisdiction of both.’ See also at p 259; p 15 of ALR. It is this difference in purpose that immediately distinguishes the present case from Blacklock where there was no similar basis for concluding that the Commonwealth law was intended to operate as an additional, rather than a replacement, set of rights and duties.

21.34 In Dickson v The Queen (2010) 241 CLR 491 the High Court was again faced with potentially inconsistent federal and state criminal legislation. Section 321(1) of the Crimes Act 1958 (Vic) criminalised conspiracy to commit an offence. Section 72(1) prohibited stealing. Section 71(2) indicated that property was regarded as ‘belonging to any person having possession or control of it’ or, with some exceptions, having any proprietary right or interest in it. Section 131.1(1) of the Criminal Code (Cth) made theft of Commonwealth property (including the property of Customs, a Commonwealth entity) a criminal offence. Section 11.5 criminalised conspiracy, but it differed from s 321(1) of the Victorian Act because the Commonwealth provision required at least one party to the conspiracy agreement to commit an overt act. The Victorian law did not require proof of overt acts. Furthermore, s 300.4 of the Criminal

Code expressly evinced the intention of the Commonwealth that the relevant Part of the Criminal Code was not intended to exclude any state law. Dickson was charged and convicted by the County Court of Victoria of conspiracy to steal 40 pallets of cigarettes from a storage facility leased by the Commonwealth Customs Department from a company called Dominion. The trial judge directed the jury that the cigarettes had been under the control of Dominion and thus belonged to it. Dickson appealed his conviction and sentence to the Victorian Court of Appeal but he was unsuccessful. Dickson then applied for special leave, and, after the s 109 point was raised by members of the High Court (see Gans, 2011), amended his application for special leave to argue that because the cigarettes were property belonging to the Commonwealth, s 131.1 of the Commonwealth law applied, and this gave rise to the spectre of an inconsistency under s 109 of the Constitution. The court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) held that the state provisions were invalid to the extent of their inconsistency. The court concluded that the Commonwealth deliberately sought to confer an area of liberty that was removed by the state offence (at 501): Shortly expressed, the appeal to this Court is brought on the ground that conspiracy to steal the cigarettes was not an offence against the law of Victoria so that the presentment preferred against the appellant should have been quashed. This conclusion is said to follow because (a) the cigarettes referred to in the presentment were property belonging to the Commonwealth to which the theft provision in

[page 605] s 131.1 of the Criminal Code (Cth) … applied, in respect of which the conspiracy provision in s 11.5 attached; and (b) by operation of s 109 of the Constitution, the relevant provisions of the Victorian Crimes Act were pro tanto invalid in the sense of ‘suspended, inoperative and ineffective’ (Western Australia v The Commonwealth (the Native Title Act Case) (1995) 183 CLR 373 at 464–5). This issue was not raised at trial or

in the Court of Appeal but, it being a constitutional point going to whether the appellant was charged with an offence known to law, no party or intervener suggested that it could not be taken for the first time on appeal to this Court (Crampton v The Queen (2000) 206 CLR 161).

For criticism of the High Court’s approach in this case, see Gans, 2011. After reviewing the relevant provisions, the statement of Dixon J in Victoria v Commonwealth (Kakariki case) (1937) 58 CLR 618 at 630, the joint reasons of the court in Telstra v Worthing (1999) 197 CLR 61 at 76– 7 and Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253, the court said (at 503–4): Three further points should be made at this stage. The first is the importance, stressed by Gaudron, McHugh and Gummow JJ in Croome v Tasmania (1997) 191 CLR 119 at 129–130 and earlier by Gibbs CJ and Deane J in University of Wollongong v Metwally (1984) 158 CLR 447 at 457–458 and 476–477 respectively of s 109 not only for the adjustment of the relations between the legislatures of the Commonwealth and States, but also for the citizen upon whom concurrent and cumulative duties and liabilities may be imposed by laws made by those bodies. The second point is that, as Isaacs J indicated in Hume v Palmer (1926) 38 CLR 441 at 450–451, the case for inconsistency between the two conspiracy provisions with which this appeal is concerned is strengthened by the differing methods of trial the legislation stipulates for the federal and State offences, particularly because s 80 of the Constitution would be brought into operation. In the present case, the jury trial provided by the law of Victoria under s 46 of the Juries Act did not require the unanimity which, because s 4G of the Commonwealth Crimes Act would have stipulated an indictment for the federal conspiracy offence, s 80 then would have mandated at a trial of the appellant. The third point concerns the significance of s 4C(2) of the Commonwealth Crimes Act. This provision provides that where an act or omission constitutes an offence under both a law of the Commonwealth and that of a State, and the offender has been punished for that offence under the State law, the offender shall not be liable to be punished for the Commonwealth offence. Of such a provision, Mason J (with the concurrence of Barwick CJ and Jacobs J) observed in R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 347 that it: … plainly speaks to a situation in which the State law is not inoperative under s 109, as for example when there is an absence of conflict between

the provisions of the two laws and the Commonwealth law is not intended to be exclusive and exhaustive. The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code. In the absence of the operation of s 109 of the Constitution, the Victorian Crimes Act will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a

[page 606] significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream (1968) 117 CLR 253 at 258 (see also at 272 per Menzies J) the case is one of ‘direct collision’ because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law.

21.35 In Momcilovic v The Queen (2011) 245 CLR 1 a majority of the court rejected an argument that s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which prohibited trafficking in methylamphetamine, was inconsistent with s 302.4 of the Criminal Code (Cth), a Commonwealth indictable offence that prescribed a lower maximum penalty than the state offence and a different sentencing regime. Section 5 of the Drugs Act stated: Meaning of possession Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

Gummow J, with whom French CJ agreed, said: 273 It had been open to the appellant to observe both the federal and State criminal laws and to commit no offence. Thus, no case of inconsistency in the limited sense

accepted by Griffith CJ in the early years of the Court was open to her. But she relied upon inconsistency in the sense given to s 109 by Dixon J in Ex parte McLean and The Kakariki. The gravamen of the appellant’s submissions respecting s 109 was that s 71AC of the Drugs Act, read with the special provision in s 5 which placed upon her the burden of displacing her deemed possession, imposed upon her a standard of criminal liability which rendered her liable to conviction, in circumstances where she would not be liable to conviction for the offence created by s 302.4 of the Code. The failure to include in the trafficking provisions of the Code an equivalent of s 5 of the Drugs Act was said to reflect a considered federal legislative choice from which the State law could not detract without engaging s 109. 274 The appellant submitted that her case and Dickson v The Queen (2010) 241 CLR 491 were in pari materia. But it should be noted that the law of Victoria creating the crime of conspiracy which was at stake in Dickson rendered criminal conduct deliberately excluded from the federal offence ((2010) 241 CLR 491 at 504); in particular, the federal offence required the commission of an overt act pursuant to the agreement by at least one party to it before the offence was complete, and permitted withdrawal from the agreement before commission of an overt act ((2010) 241 CLR 491 at 505–506) …

French CJ and Gummow J concluded that there was no inconsistency. Heydon J at 484–6 and Crennan and Kiefel JJ at 657 noted that s 300.4 of the Criminal Code (Cth) expressly evinced the intention of the Commonwealth that the relevant part of the Criminal Code was not intended to exclude any state law, and that while such a clause would not be dispositive of a s 109 issue, effect should be given to that intention in this instance. [page 607]

Repugnancy of laws in the territories Where a federal Act post-dates Northern Territory law 21.36 Section 109 does not, in its terms, apply to territory laws. The High Court has confirmed that the common law doctrine of ‘repugnancy of laws’ applied to rationalise inconsistent statutes

operates to resolve inconsistencies between federal statutes and the laws of the self-governing territories in a similar, but not identical, way to the inconsistency principle. The question whether a territory law is found to be repugnant to a Commonwealth law depends on construction of the two or more Acts in issue. Such a question was considered in Northern Territory v GPAO (1999) 196 CLR 553. Where a Commonwealth Act contains no express provision bearing upon its relationship with territory law, the question is whether the Commonwealth law, by necessary implication, has an overriding effect: per Gleeson CJ and Gummow J at 581 (with whom Hayne J agreed at 650–1). This will occur when the Commonwealth law makes exhaustive or exclusive provision on the subject with which it deals. If such an intention is not apparent, the court will consider the applicability of the ‘direct inconsistency’ tests outlined above: at 582. Kirby J said that if ‘the federal law is clearly applicable, giving effect to rules having national application or results in legislative commands inconsistent with, or repugnant to, the territory law, the latter must give way’: at 630; see also at 636–8. Where federal law pre-dates Northern Territory law 21.37 In Western Australia v Ward (2002) 213 CLR 1 a different order of events produced a different issue. In Northern Territory v GPAO, the question was whether by reason of the Family Law Reform Act 1995 (Cth) the continued operation of the Community Welfare Act 1983 (NT) had been limited, so that a particular provision of the latter Act now had an application narrower than otherwise would have been the case. In Ward, the enactment of the federal law (the Racial Discrimination Act 1975 (Cth) preceded the enactment of the relevant Northern Territory self-government Act. In Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ noted that the power of the Northern Territory Legislative Assembly to make laws for the government of the territory under s 6 was expressed to be ‘subject to’

that Act, including s 57 of the same Act, which excludes from the power of alteration or repeal given to the Legislative Assembly any Act of the federal parliament in force in the territory immediately before the commencement of the self-government Act. Accordingly, the Racial Discrimination Act operates in the Northern Territory according to its terms: at 108–9. Repugnancy in the Australian Capital Territory 21.38 In Northern Territory v GPAO (1999) 196 CLR 553, Gleeson CJ and Gummow J (with whom Hayne J agreed) took the opportunity to consider the different situations of the Australian Capital Territory and the Northern Territory in this context. Within the Australian Capital Territory, s 28 of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth) supplies a specific test of inconsistency: a law of the Australian Capital Territory Legislative Assembly has no effect if it is inconsistent with a Commonwealth law, ‘but such a provision shall be taken to be [page 608] consistent with such a law to the extent that it is capable of operating concurrently with that (Commonwealth) law’. Gleeson CJ and Gummow J noted that this criterion of inconsistency is narrower than that which applies under s 109: at 583. 21.39 In Commonwealth v Australian Capital Territory (2013) 250 CLR 441, unlike in GPAO, s 28 was the mechanism for resolving the question whether the Marriage Equality (Same Sex) Act 2013 (ACT) (‘the Territory Act’) was inconsistent with either or both the Marriage Act 1961 (Cth) or the Family Law Act 1975 (Cth): at [48]. Section 5 of the Marriage Act defined marriage as the ‘union of a man and a

woman to the exclusion of all others, voluntarily entered into for life’. The Territory Act defined marriage as ‘the union of 2 people of the same sex to the exclusion of all others, voluntarily entered into for life’, and expressly excluded marriage within the meaning of the Marriage Act. 21.40 The court in Commonwealth v Australian Capital Territory noted that some argument had been directed to whether, and to what extent, the effect of s 28 was different to s 109, referring to what Gleeson CJ and Gummow J said in GPAO. The Territory submitted that where a Commonwealth law manifests an intention to be a complete statement of the law governing a particular relation or thing, s 28 required that ‘the Territory law would not be inconsistent with the Commonwealth law to the extent that the former was capable of operating concurrently with the latter’: at [51]. But the Territory did not explain how a territory enactment could operate concurrently with a federal law that is a complete statement of the law governing a relation or thing. Section 28 is a constraint on the operation of a territory enactment: [53]. If a federal law is a complete statement of the law governing a particular relation or thing, a territory law that ‘seeks to govern some aspect of that relation or thing cannot operate concurrently with the federal law to any extent’, and s 28 denies it legal effect: at [52]. The court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) held unanimously that the Territory Act was inconsistent with (because it could not operate concurrently with) the Marriage Act 1961 (Cth), and therefore did not need to resolve whether it was also inconsistent with the Family Law Act 1975 (Cth): at [55]. The Marriage Act manifested an intention to deal exhaustively with the topic of marriage; properly construed, it provided that the only form of marriage that could be formed or recognised in Australia was marriage between a man and a woman: at [55]–[61]. To give effect to

the provisions of the Territory Act would ‘alter, impair or detract’ from the federal Act (at [59]). The language ‘alter, impair or detract’, as a plurality of the High Court observed in Jemena Asset Management (3) Pty Ltd v Coinvest Limited (2011) 244 CLR 508 (see 21.27), is often associated with ‘direct inconsistency’. This case illustrates, as the High Court observed in Jemena, that ‘more than one test may be applied in order to establish inconsistency for the purposes of s 109’: Jemena at 206. The High Court in Commonwealth v Australian Capital Territory concluded that this was because the Marriage Act was an exhaustive statement of the law relating to marriage in Australia, and the inconsistency that manifested itself in this case could be characterised as indirect inconsistency. But equally, it could be characterised as [page 609] a case of direct inconsistency because by seeking to operate in the same field as the Marriage Act, the Territory Act would alter, impair or detract from the exclusivity, accorded by the Marriage Act 1961 (Cth), to the federal construct of marriage. 21.41 The High Court’s resolution of the question of inconsistency in Commonwealth v Australian Capital Territory (2013) 250 CLR 441, within the rubric of s 28 of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth), is indistinguishable from the approach taken in s 109 cases. There is no equivalent provision to s 28 in the Northern Territory (Self-Government) Act 1978 (Cth).

Invalidity — the consequences of s 109 inconsistency

‘Invalidity’ to the extent of the inconsistency 21.42 A state law that is determined to be inconsistent with a federal law is not rendered permanently invalid by s 109. It is only invalid in respect of the particular facts at issue, and presumably any identical situation. As Latham CJ explained in Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 573: If either (State or Federal law) is invalid ab initio by reason of lack of power, no question can arise under the section. The word ‘invalid’ in this section cannot be interpreted as meaning that a State law which is affected by the section becomes ultra vires in whole or in part. If the Commonwealth law were repealed, the State law would again become operative: R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23 at 33 per Higgins J. Thus the word ‘invalid’ should be interpreted as meaning ‘inoperative’.

‘Invalid’ means ‘inoperative’ 21.43 Section 109 of the Constitution operates to render a law invalid only to the extent of its inconsistency and only for so long as the inconsistency remains: Western Australia v Commonwealth (Second Native Title Act case) (1995) 183 CLR 373 at 465; Commonwealth v Western Australia (1999) 196 CLR 392 at 417. In Butler v AttorneyGeneral of Victoria (1961) 106 CLR 268, s 109 ‘invalidity’ was explained by Windeyer J in the following way (at 286): [The federal provision] ceased to have validity when it could no longer be sustained by the defence power. Thereupon [the State provision] came again into operation. It had never lost its place in the Victorian statute book. It had merely been, for the time, invalid — that is to say, suspended, inoperative and ineffective — because the Commonwealth statute had entered into occupation of the whole field. But when the Commonwealth law vacated the field the State law was again in charge.

[page 611]

Chapter Twenty-Two

The Defence Power under the Constitution Introduction 22.1

Section 51(vi) of the Constitution provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.

22.2 This chapter considers the High Court’s approach to the interpretation of the defence power, one of the most important but least predictable legislative powers. The defence power ‘fluctuates’: its scope rises and falls depending on the security environment. It is at its widest during world war and most limited in peacetime, but also has an expanded scope in a period of growing international tension, where the possibility of conflict justifies pre-war preparations, and following the conclusion of hostilities, where post-war measures may persist for a time to effect the transition from war to peace (that is, to unwind wartime controls and stabilise the economy). The defence power has appropriately been described as ‘elastic’: its adaptability allows it to respond accordingly to the nature of the threat facing the nation. The extent of the defence power therefore varies according to the scale of the danger of external aggression or internal threats at a

given period of time. 22.3 It is important to point out that most constitutional jurisprudence concerning the defence power arose during and following the end of World War II, and into the early years of the Cold War. The potential reach of the power had also been the subject of discussion in several cases decided during World War I (particularly Farey v Burvett (1916) 21 CLR 433). Consideration of the peacetime core of the power, infrequently examined for the most part, has increased over the past 25 years, with the High Court examining the validity of measures relating to internal defence and the discipline of defence force members. This chapter begins by examining the meaning of the placitum before proceeding to consider important aspects of the power, including its nature and operation, and the periods during which it expands and contracts. [page 612]

‘The naval and military defence of the Commonwealth’ 22.4 As the introduction would suggest, the first limb of s 51(vi) is wide enough to support far-reaching measures to protect Australia from external threats in times of war. The Commonwealth may rely on the defence power in wartime to support laws seemingly unconnected to the topic of defence. Such laws may be justified on the basis that tight economic regulations assist in the successful prosecution of the war. Fixing maximum prices on basic commodities (for example, bread) and controlling the distribution of essential materials (for example, by imposing licensing restrictions on master

bakers and bread distributors) are two classic examples: Farey v Burvett (1916) 21 CLR 433 and Stenhouse v Coleman (1944) 69 CLR 457 respectively. The words ‘naval and military defence’ also confer significant powers during peacetime. Indeed, in 2007 the High Court confirmed that the scope of s 51(vi) should not be confined to the management of external threats only, but extends to domestic counter-terrorism efforts (in the context of interim control orders imposing restrictions on the liberty of persons considered a risk to public safety): Thomas v Mowbray (2007) 233 CLR 307. Irrespective of whether Australia is at war or in a period of ostensible peace, the fact remains that the words ‘naval and military defence’ should not be construed as words of limitation: Farey v Burvett (1916) 21 CLR 433 at 440 per Griffith CJ. In this case, the dissenting justices, Gavan Duffy and Rich JJ, interpreted the power narrowly. Their Honours opined that the words ‘naval and military defence’ ‘extend to the raising, training and equipment of naval and military forces, to the maintenance, control, and use of such forces, to the supply of arms, ammunitions and other things necessary for naval and military operations, to all matters strictly ancillary to these purposes, and to nothing more’: at 465 (emphasis added). In other words, Gavan Duffy and Rich JJ were only prepared to recognise that s 51(vi) applied to defence force operations (including wartime activity) and ‘defence preparedness’ (a matter which also falls within the core of the power). Griffith CJ, on the other hand, found that the words ‘naval and military defence’ were words of extension and should be taken to include ‘all acts of such a kind’ as may be done for the purpose of defence (subject to constitutional limitations). The Chief Justice continued (at 440–1): This, then, is the subject matter with respect to which power to legislate is given. It includes preparation for war in time of peace, and any such action in time of war as may conduce to the successful prosecution of the war and defeat of the enemy. This is

the constant and invariable meaning of the term.

Griffith CJ’s definition of the words ‘naval and military defence’ has continued to prevail and represents the enduring view of the High Court: see, for example, Thomas v Mowbray (2007) 233 CLR 307 at 360– 1 per Gummow and Crennan JJ. It is obvious that the words ‘naval and military’, given their ambulatory meaning, must also include the air force: Kartinyeri v Commonwealth (1998) 195 CLR 337 at 412 per Kirby J. 22.5 The second limb of s 51(vi) has received considerably less attention. Hanks et al (2012) have suggested that this may be attributable to s 61 being cast [page 613] in similar terms (p 458). Whatever its meaning, two possible explanations have emerged. The first is that the power may permit the Commonwealth Parliament to use the clause to authorise the use of the forces for ‘law enforcement’: Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 540 per Mason CJ, Wilson and Dawson JJ. Presumably, this would entail the deployment of the armed services to prevent incidents which would amount to ‘domestic violence’ (that is, widespread civil unrest within a state) within s 119 of the Constitution, ‘on the application of the Executive Government of the State’. In 1919, 1923 and 1928, members of the executive governments of Western Australia, Victoria and South Australia formally requested Commonwealth assistance to control expected strike action. This construction of the second limb of s 51(vi) also seemingly found some favour with the majority in New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1 at 125–6 per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

The second possible suggestion for the second limb of s 51(vi) is that it imposes a system of internal discipline for the ‘control of the forces’, as well as providing for the regulation of the conduct of defence force members in their relationships with each other, with persons and legal entities outside the forces and with civilians, civilian entities and the organs of government: Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 601 per Gaudron J. ‘Internal discipline’ was discounted in the joint judgment of Mason CJ, Wilson and Dawson JJ (at 540), as their Honours expressly provided for the discipline of defence force members within the first limb of s 51(vi). For the purposes of this chapter, the latter view is preferred. Related provisions 22.6 Section 51(vi) is not the only provision of the Constitution directed to the purpose of defence. Section 51(xxxii) empowers the Commonwealth Parliament to make laws for ‘the control of railways with respect to transport for the naval and military purposes of the Commonwealth’. This provision provides express authority for the Commonwealth to control all railways for the transportation of defence force personnel and goods. Section 68 provides that the ‘command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative’. As noted at 13.6, powers vested in the GovernorGeneral are exercised on the advice of the executive government (see ss 62 and 64 of the Constitution). This includes the power as command-in-chief of the defence forces. Sections 69 and 52(ii) operate conjunctively: s 69 authorises the transfer of certain state departments (including naval and military defence) to the Commonwealth, at which time legislative power over such departments becomes ‘exclusive’. Section 114 precludes the states, without the consent of the Commonwealth Parliament, ‘to raise or maintain any naval or military force’. Section 119, as stated above, permits the Commonwealth to

suppress ‘domestic violence’ occurring within a state ‘on the application of the Executive Government of the State’. The first clause of s 119, not yet discussed, requires the Commonwealth to protect states against invasion. This is an obligation placed on the Commonwealth Government to protect all states from invasion by a foreign enemy or a recalcitrant state. 22.7 The inclusion of some provisions, particularly s 114 of the Constitution, has led some to speculate that the power to make laws with respect to the ‘naval and [page 614] military defence of the Commonwealth’ exclusively belongs to the Commonwealth. This, in fact, had been suggested by Isaacs J in Farey v Burvett (1916) 21 CLR 433 at 451–2: Not only has this legislative power been placed in the hands of the Commonwealth Parliament, but its effective exertion has been made exclusive, because by sec. 114, the States themselves are forbidden, unless they have the consent of the Commonwealth Parliament, to raise or maintain any naval or military force; by sec. 119 the Commonwealth is commanded to protect every State against invasion [emphasis added].

Colin Howard has also observed that the presence of the two sections (as well as those listed above) indicate ‘an intention to remove the States from the area of national defence and make it a Commonwealth responsibility’ (1985, p 472). However the High Court has apparently decided the question, holding that these provisions do not condition the legislative use of s 51(vi) necessarily, but that s 51(vi) continues to be a concurrent power, so long as ss 52(ii), 68, 69, 114 and 119 are not engaged. The authority for this is Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557. In a typically brusque judgment, Starke J rejected the Commonwealth’s submission that s

51(vi) is exclusive, disposing of the argument on the grounds that it ‘goes far toward the destruction of the federal system established by the Constitution Act, but perhaps not much farther than the recent decisions of this Court’: at 582. (Indeed, Starke J was a frequent dissenter in wartime cases involving liberal applications of s 51(vi).) It was also stated by McTiernan J that the words of s 51(vi) ‘do not imply any prohibition against a State making laws with respect to defence within its own territorial jurisdiction’: at 589. Apparently the marketing of eggs and egg pulp was not a field, even in wartime, which exclusively belonged to the Commonwealth. The Chief Justice, Sir John Latham, similarly remarked (at 571): Sec. 51(vi) is not exclusive in terms. It confers a power affirmatively upon the Commonwealth Parliament, but it contains no words which can be used in support of an argument that the States are completely or in any degree excluded from dealing with the subject of defence. There is no reason arising from the nature of the subject matter why a State should not, subject to such control as the Commonwealth Parliament may think proper to be exercised, assist the Commonwealth to the maximum in the defence of the country.

Nature and operation of the defence power Elasticity of the defence power 22.8 It has been established that the scope of s 51(vi) is wide, and widens further depending on the scale of the conflict. In time of hot war, for instance, the defence power seemingly authorises the regulation of an infinite variety of matters: including the internment of individuals considered disaffected or disloyal, even in the absence of proof establishing that fact (Lloyd v Wallach (1915) 20 CLR 299); regulations fixing the price of basic goods (Farey v Burvett (1916) 21 CLR 433) and premises for rent (Silk Brothers Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1); and even restrictions on the advertising on ‘non-essential goods’ at Christmastime and Easter (Ferguson v Commonwealth (1943)

[page 615] 66 CLR 432). However, it is difficult to imagine these measures being upheld during peacetime. The scope of the defence power varies according to the situational context. As conditions of war intensify, the ambit of the defence power necessarily expands. As the conditions of war subside, that ambit naturally contracts (but does not automatically ‘snap back’ following the announcement of the armistice). Should international tensions rise again, the ambit of the power expands, but not to the extent that conditions of global war would justify. This understanding of the ‘elasticity’ of s 51(vi) is solidly entrenched in High Court jurisprudence: see, for example, Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 195 per Dixon J; at 222 per Williams J; at 253–5 per Fullagar J; at 273–4 per Kitto J. 22.9 In Australian Communist Party v Commonwealth (1951) 83 CLR 1, Fullagar J made the distinction between the core and incidental ambit of s 51(vi). He argued that s 51(vi) consists of two aspects: a primary aspect, which may be used by the Commonwealth Parliament at all times, irrespective of the period; and a secondary aspect, which can only be exercised by the Commonwealth Parliament when the nation is involved in war, in preparation for war, or in a transitional period from war to peace. The primary aspect, naturally, refers to the peacetime core of the power, while the secondary aspect, expectedly, pertains to the incidental scope of s 51(vi). PH Lane (1997, p 199) regarded the primary aspect of s 51(vi) as producing ‘patent defence measures, for example the provision of armed services, equipment, courts-martial’. The secondary aspect, by contrast, ‘produces measures seemingly unrelated to defence or indeed to any subject matter in the Commonwealth catalogue of powers, for example the

acquisition of mica, the regulation of capital issues and loans, price control’. The connection between a secondary defence law and the power exists, as Geoffrey Sawer put it, to the extent that the law deals with ‘the conditions in the community which are in turn relevant to such “direct” defence activities, but only as the general background for them’ (1954, p 220). Fullagar J, of course, explained the operation of the primary and secondary aspects of s 51(vi) in his judgment (at 253–5): … the power given by s. 51(vi.) has two aspects. The tendency of the decisions of this Court, given in the course of two great wars and during the aftermath of each, has been to hold up the two aspects in sharp contrast one to another, and the dividing line between them has hitherto been regarded as sharp and clear — perhaps as sharper and clearer than it will ultimately be found to be. In its first aspect, s 51(vi.) authorizes the making of laws which have, as their direct and immediate object, the naval and military defence of the Commonwealth and of the several States. This power is clearly not confined to time of war: see, e.g., Farey v. Burvett (1916) 21 CLR 433 at 453, per Isaacs J.; Adelaide Company of Jehovah’s Witnesses Inc. v. The Commonwealth (1943) 67 CLR 116 at 132, 133, per Latham C.J.; Hume v. Higgins (1949) 78 CLR 116 at 133, 134, per Dixon J.; and cf. the reference by Williams J. in Koon Wing Lau v. Calwell (1949) 80 CLR 533 at 585 to matters ‘which could reasonably be considered to be a threat to the safety of Australia in the event of some future war.’ It is obvious that such matters as the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications, fall within this primary aspect of the defence power. These things can

[page 616] be undertaken by the Commonwealth as well in peace as in war, because they are ex facie connected with ‘naval and military defence’. From any legitimate point of view of a court their only possible purpose or object is naval and military defence. An interesting (and perhaps border-line) example of this primary aspect of the defence power is to be found in Attorney-General (Vict.) v. The Commonwealth (1935) 52 CLR 533. But (with or without the aid of s. 51(xxxix)) the defence power in its primary aspect includes much more than the things I have mentioned. It could not, I think, be doubted that it includes a power to make laws for the prevention or prohibition and punishment of activities obstructive of the preparation by such means as I have

mentioned of the nation for war — and this whether war appears to be imminent or the international sky to be completely serene. Here again, from any legitimate point of view of a court, the only possible purpose or object of such a law is naval and military defence. The possibility of some extrinsic purpose or ulterior motive cannot be investigated by a court (Stenhouse v. Coleman (1944) 69 CLR 457 at 471). The law is a law with respect to defence. What I have called the secondary aspect of the defence power has so far only been invoked and expounded in connection with an actual state of war in which Australia has been involved. It has hitherto, I think, been treated in the cases as coming into existence upon the commencement or immediate apprehension of war and continuing during war and the period necessary for post-war readjustment. In a world of uncertain and rapidly changing international situations it may well be held to arise in some degree upon circumstances which fall short of an immediate apprehension of war. In its secondary aspect the power extends to an infinite variety of matters which could not be regarded in the normal conditions of national life as having any connection with defence. Examples now familiar are the prices of goods and the rationing of goods, rents and the eviction of tenants, the transfer of interests in land, and the conditions of employment in industry generally.

22.10 The operation of the secondary aspect of the defence power depends upon factual conditions, a point noted by Fullagar J immediately following the end of the above extract. The importance of factual conditions or ‘facts’ is considered at 22.12–22.13. For present purposes, by way of introduction, it is appropriate to have regard to what Dixon J said in Andrews v Howell (1941) 65 CLR 255 at 278, a case which involved the validity of regulations establishing a compulsory pool for the marketing of apples and pears in Australia during World War II (the point of which was to ‘minimize the disorganization in the marketing of apples and pears likely to result from the impracticability of exporting sufficient quantities of apples and pears because of the effects upon shipping of the present war’). In upholding the validity of the regulations, Dixon J remarked: In dealing with that constitutional power, it must be remembered that, though its meaning does not change, yet unlike some other powers its application depends upon facts, and as those facts change so may its actual operation as a power enabling the legislature to make a particular law. In the same way the operation of wide general powers conferred upon the Executive by the Parliament in the exercise of the power conferred by sec. 51 (vi.) is affected by changing facts. The existence and character of

hostilities, or a threat of hostilities, against the Commonwealth are facts which will determine the extent of the operation of the power. Whether it will suffice to authorize a given measure will depend upon the nature and dimensions of the conflict that calls it forth, upon the actual and apprehended dangers, exigencies and course of the war, and upon the matters that are incident thereto.

[page 617] The relevance of purpose and facts to s 51(vi) laws 22.11 Unlike most other powers conferred by s 51 of the Constitution (for example, trade and commerce, taxation, banking, corporations, marriage etc), laws operating upon s 51(vi) must have a ‘real connection’ to the purpose of defence. It is for this reason that s 51(vi), like the treaty implementation aspect of external affairs, is a purposive power, not a subject matter power (as to the difference between the two types, see 2.21). Section 51(vi) is one of the only Commonwealth legislative powers which depend upon characterisation of purpose, not subject matter (ordinarily that of ‘sufficient connection’). Purpose, by contrast, contemplates ‘proportionality’. With respect to defence, purpose becomes important because, as stated above, secondary defence laws do not always disclose a defence-related purpose. Factual conditions determine the breadth of the defence power at a given period of time. It is not the case that legislation will be valid because it ‘operates upon or affects the subject-matter’ of defence (Stenhouse v Coleman (1944) 69 CLR 457 at 471 per Dixon J). Primary defence laws may be supported on this basis, but not secondary defence laws, which appear unrelated to defence but may be justified in wartime or during periods of apprehended war or international tension. The validity of s 51(vi) laws centres on the notion of ‘purpose’: does the law serve the object

of defence? Accordingly, Dixon J observed in Stenhouse: ‘‘‘a law with respect to defence” is an expression which seems rather to treat defence or war as the purpose to which the legislation must be addressed’: at 471 (emphasis added). This point was also made plain by Kitto J in the Communist Party case (at 273): The word ‘purpose’ in this connection has nothing to do with the motives or the policy lying behind legislation (Australian Textiles Pty. Ltd. v. The Commonwealth (1945) 71 CLR 161 at 178). It refers to an end or object which legislation may serve; and the consequence which follows from a recognition of defence as a ‘purpose’ in this sense of the word is that the relevance to defence which stamps a measure with the character of a law with respect to defence is to be found in a capacity to assist that purpose.

22.12 Application of the defence power, outside its peacetime core, depends upon facts; that is, upon the perceived necessity for measures directed to the purpose of defence. Facts are spasmodic and fluid: ‘as those facts change so may its actual operation as a power enabling the legislature to make a particular law’: Andrews v Howell (1941) 65 CLR 255 at 278 per Dixon J. In another wartime case, Stenhouse v Coleman (1944) 69 CLR 457, Dixon J noted that the ‘purpose’ of a defence law is to be ascertained from ‘the instrument in question, the facts to which it applies and the circumstances which called it forth’ (at 471, emphasis added). This comment is very important. It reveals that ‘the purpose as explained by facts discloses the connection between the law and the defence of the Commonwealth’ (Lane, 1997, p 199, original emphasis). ‘Facts’ and ‘circumstances’ are synonymous for current purposes. ‘Facts’ may be described as ‘information which the Court should have in order to judge properly of the validity of this or that statute’: Breen v Sneddon (1961) 106 CLR 406 at 411 per Dixon CJ (emphasis added). This entails ‘background facts of a general nature’: [page 618]

at 422 per Menzies J. In Stenhouse, Dixon J was swayed by the external conditions of war (at 471–2): It is evident that among these circumstances the character of the war, its notorious incidents, and its far-reaching consequences must take first place. In some cases they must form controlling considerations, because from them will appear the cause and the justification for the challenged measure. They are considerations arising from matters about which, in case of doubt, courts can inform themselves by looking at materials that are the subject of judicial notice.

Stenhouse represents a straightforward example because it involved facts during the supreme emergency of world war. Notorious international events aside, judges generally draw upon facts (international or domestic) which are matters of common knowledge and experience. This indicates how ‘facts’ are acquired. Unless a court looks at evidenced facts (not typically disclosed where there are sensitive strategic and political assessments relating to defence), the court is generally limited to facts which can be judicially noticed. ‘Judicial notice’ assumes that the facts to which the court has regard are matters of general public knowledge. With respect to defence laws, judges have to rely largely on their own personal knowledge and experience, given that public disclosure of sensitive information (known to the government and parliament) might prejudice security. For this reason, courts typically show greater deference to parliament’s judgment for the necessity of such laws, unless there are prudent reasons to the contrary; for example, where the court’s ability to review legislation is impeded: Australian Communist Party v Commonwealth (1951) 83 CLR 1. Given that the availability of evidence may be limited, it is important that judges exercising judicial notice have ‘wide knowledge of human affairs outside the narrow confines of the law’ (Lumb, 1986, p 109). This obviously includes knowledge of economics, politics, international affairs, domestic and international defence strategy, etc. In the Communist Party case, Dixon J took judicial notice of ‘accepted tenets or doctrines of communism’ (at 196); in Farey v Burvett (1916) 21 CLR 433 at 442–3, Griffith CJ took judicial notice of

the fact that the past season’s wheat harvest was abundant, and that vast quantities of the commodity, far exceeding possible consumption in Australia, were awaiting export but that freight opportunities were limited owing to the operations of the war. This enabled the Commonwealth to assume control over wheat to fulfill its export operations. Having taken over the control and distribution of wheat, this extended to regulations fixing the highest price that might be charged for bread. Other facts so notorious, relating to international events of great magnitude, may justify extraordinary Commonwealth controls. In South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373, the Commonwealth enacted four laws which, taken together, seized control of the field of income tax collection (including the transfer of all state tax departments, their staff and facilities used to assess and collect income tax). Perhaps better than any other example, this case illustrates the ‘notorious incidents’ and ‘far-reaching consequences’ to which Dixon J refers, and the influence of compelling factual conditions on judicial decision-making. As Peter Hanks et al observed (2012), the exigencies of war were paramount during the period of the First Uniform Tax case (at 468): [page 619] The willingness of the majority in the First Uniform Tax case to relegate the interests of the States and to defer to the asserted national interest is a clear illustration of the responsiveness of the High Court’s reading of s 51(vi) to the justices’ perception of Australia’s strategic situation: the four Commonwealth statutes challenged (and upheld) in the First Uniform Tax case had been passed on 7 June 1942, the day after the Battle of Midway. That battle marked the limit of Japanese military advances in the south-west Pacific — the point at which the strategic threat to Australia was at its highest and from which it thereafter steadily diminished. Of course, the future decline in Japanese military power was by no means obvious at the time, nor was it obvious by 23 July 1942, when the decision in the First Uniform Tax case was handed down. The

defence crisis facing Australia and the need to concentrate Australia’s resources to meet that crisis were referred to in the Income Tax (War-time Arrangements) Act as justifying the transfer of State income tax departments to the Commonwealth, and the majority justices’ endorsement of that compulsory transfer was no doubt influenced by those external realities.

22.13 The decisions reached by the High Court in Farey v Burvett (1916) 21 CLR 433, South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373 and Stenhouse v Coleman (1944) 69 CLR 457 suggest that during times of conflict, where strategic assessments are important, courts will defer to the judgment of the Commonwealth Parliament. This is conclusive in times of global war (Farey at 448 per Barton J; at 455 per Isaacs J; at 460 per Higgins J), where legislative discretion is at its height. The court is less likely to draw constitutional facts from evidentiary proof; rather, judges will rely on judicial notice. This much was admitted by Dixon J in Stenhouse (at 469): If the actual and possible factors could be openly and exhaustively examined and laid bare before it, a court would probably find little difficulty in deciding whether a given measure was, or was not, incidental or conducive to the prosecution of the war. But in many cases this cannot be done. Apart from other reasons, information and considerations which may have guided the authors of a statutory instrument under attack may be of such a nature that they cannot be publicly canvassed without prejudicing the conduct of the war or imperiling the national interest.

The Australian Communist Party case ((1951) 83 CLR 1) was not decided during wartime, rather during a period of uneasy peace. In this case, the court rejected an attempt by the Commonwealth Parliament to abridge its capacity to review aspects of the Communist Party Dissolution Act 1950 (Cth). The Act purported to dissolve the Communist Party and appoint a receiver of its property. It also provided for the proscription of affiliated groups and permitted the Governor-General to declare that individuals were ‘communists’, which precluded them from holding certain positions of employment. The case is also covered at 22.35. The point is that the High Court, in what was a period of ‘ostensible’ peace, undertook its own assessment of the legislative assertion of defence necessity. It refused to defer to

the judgment of the Commonwealth Parliament. It was noted, however, that had the legislation been enacted during wartime, it may have survived the constitutional challenge; see, for example, at 202 per Dixon J (see also at 255–6 per Fullagar J): It may be conceded that such an extreme and exceptional extension may result from the necessities of war and, perhaps it may be right to add, of the imminence of war. But the reasons for this are to be found chiefly in the very nature of war and of the responsibility borne by the government charged with the prosecution of a war … But they are necessities that cannot exist in the same form in a period of ostensible peace.

[page 620] 22.14 As noted at 22.11 above, the defence power involves the notion of ‘purpose’ or ‘object’. A law may be characterised as a law with respect to the defence power where defence or war is the purpose to which the legislation is directed. The court must assess whether the law is reasonably regarded or connected to defence. This requires the court to characterise the genuine purpose of the law and whether this characterisation is appropriate and adapted to the purpose of defence. Put another way, can the legislation be regarded as a reasonable means of achieving an object connected with defence? The test of characterisation for s 51(vi) laws is provided later at 22.37. 22.15 Because the defence power expands and contracts, the scope of the power varies according to the period in which it is situated. Howard (1985, p 477) identified four main phases of s 51(vi): wartime, transition from war to peace, peacetime and preparation for war. Each of these phases will now be explored.

Wartime 22.16 It should now be evident that the wartime defence power supports laws with subject matters not immediately associated with

the topic of defence, relying on the secondary aspect of s 51(vi). As Fullagar J stated in Australian Communist Party v Commonwealth (1951) 83 CLR 1 (at 22.9 above), the secondary aspect ‘extends to an infinite variety of matters which could not be regarded in the normal conditions of national life as having any connection with defence’: at 254. This has effectively elongated the scope of s 51(vi), conferring the Commonwealth with power coming close to a general legislative power: see, for example, Farey v Burvett (1916) 21 CLR 433 at 453–4 per Isaacs J. Prior to any discussion of the wartime defence power, it is important to observe that the decision to go to war is vested in the central executive, independent of the parliament. Legislation, using the defence power, is not required to authorise war (or even to deploy forces overseas). The constitutional basis for this is the common law prerogative, which resides in s 61 of the Constitution: Farey at 452 per Isaacs J (for consideration of prerogatives, see Chapter 13). This section vests the executive power of the Commonwealth in the Queen, to be exercised on Her Majesty’s behalf by the Governor-General. The operation of ss 62 and 64 condition s 61, meaning that the GovernorGeneral is supposed to exercise the royal prerogative to make war on the advice of the Executive Council (a body made up of Ministers of State). This is reinforced by s 68 of the Constitution, which vests the command-in-chief of the armed forces in the Governor-General. However, the reality is quite different. Decisions to commit Australia to war are made by the Prime Minister and Cabinet, and do not necessarily require the Governor-General’s authorisation. For example, it has been suggested that Governor-General Peter Hollingworth was not involved in the decision by the Howard Government to commit Australian troops to the invasion of Iraq in 2003, despite his belief that he would need to make the final decision to implement the decision of Cabinet: see Sampford and Palmer, 2009.

Although the Iraq conflict constituted a ‘war’ in the conventional sense of the word, the actions of the Howard Government (like those of the Hawke Government before it in the 1991 Gulf War) may be explained to some extent by the fact that [page 621] military action in this case was not accompanied by a formal declaration of war (as was the case in the earlier Korean and Vietnamese conflicts). It is suggested that in circumstances where declarations of war are not forthcoming, the Governor-General need not be involved in the process. However, should a declaration of war be made, it is for the Governor-General to make the necessary proclamation in the Government Gazette. Australia did not formally declare war on any individual countries during World War I. Prior to the adoption of the Statute of Westminster in October 1942, the assumption was that Australia was at war once Britain entered hostilities. This is evident in national broadcasts made by Prime Ministers Cook and Menzies upon the news that Britain had declared war on Germany in 1914 and 1939. However, once Australia enacted the Statute of Westminster Adoption Act 1942 (Cth) (backdated to the beginning of the war from 3 September 1939, confirming that the parliament had full power to enact legislation having extraterritorial operation: s 3), it became clear that Australia had the independent capacity to declare war on enemy nations. In the meantime, declarations of war had been made by the Governor-General, by proclamation, against Finland, Hungary and Romania on 8 December 1941 and against Japan the following day. Subsequent proclamations were made against Bulgaria on 14 January 1942 and Thailand on 10 March 1942 (although war was declared

publicly on 6 January and 2 March respectively). To ensure the validity of these proclamations, King George VI was asked to affirm them by royal instrument (7 April 1942 and 20 July 1942 respectively). Just as the Governor-General makes declarations of war by proclamation under the Defence Act 1903 (Cth), the Governor-General makes declarations that a state of war no longer exists. Section 4 of the Defence Act 1903 (Cth) defines ‘war’ to mean ‘any invasion of, or attack or apprehended attack on, Australia by an enemy or armed force’. ‘Time of war’ is also defined under the same section to mean ‘any time during which a state of war actually exists, and includes the time between the issue of a proclamation of the existence of war or of danger thereof and the issue of a proclamation declaring that the war or danger thereof, declared in the prior proclamation, no longer exists’. Upon the outbreak of World War II on 3 September 1939, the Governor-General made a proclamation under the Defence Act of a ‘time of war’. This lasted until 15 May 1952, whereupon the GovernorGeneral made a proclamation that the declared ‘time of war’ no longer existed. 22.17 There is no doubt that during a ‘time of war’ the defence power is practically unlimited. In Dawson v Commonwealth (1946) 73 CLR 157, Rich J observed that involvement in war ‘necessitates the direction of … [Australia’s] whole resources to defence. It cannot hope to survive unless it submits itself for the time being to what is in effect a dictatorship with power to do anything which can contribute to its defence’ (at 177). This statement recognises that, in wartime, the entire resources of a nation must be assembled for the purposes of defence. Laws to this effect may be held to ‘extend into virtually every field of the social, economic and industrial life of the community’ (Sugarman and Dignam, 1943, p 211). This view was established early on during World War I.

[page 622] Farey v Burvett (1916) 21 CLR 433, a case already considered at 22.4 and 22.12 above, concerned a constitutional challenge to the validity of Commonwealth price fixing regulations. Burvett, a treasury official, laid an information before the Court of Petty Sessions in Melbourne against Farey; alleging that he had breached the War Precautions (Prices Adjustment) Regulations 1916 (Cth). The regulations, made in accordance with the War Precautions Act 1914–16 (Cth), authorised the Governor-General to make orders determining maximum prices which could be charged for flour and bread in ‘proclaimed areas’. Farey was convicted of selling bread in such an area at a price greater than the maximum price fixed by an order in pursuance of the regulations. Farey appealed to the High Court, arguing that to the extent the Commonwealth purported to fix the maximum price of bread in civic areas, this was not supported by the defence power. The respondent argued that the Act, regulations and order were valid, insofar as it was conducive to the government’s decision to control the surplus of wheat for export to allied forces, as well as to carry out its financial operations. The High Court, by majority, dismissed Farey’s appeal. On the scope of s 51(vi), Griffith CJ confirmed that the power was to be construed broadly (see 22.4 above): the subject matter includes any such action in time of war as may conduce to the successful prosecution of the war and defeat of the enemy (at 441). Barton J, seemingly confining the issue to the facts before him, stated that ‘to aid in supplying the food-needs of any part of the Empire outside Australia or of Australia herself may greatly assist that Empire’s defence, especially, but not only, when that supply may be used for the feeding of armies of which at this moment Australia forms an active part’ (at 448). Isaacs J however took the opportunity to comment, in sweeping terms, on the scope of s 51(vi) during wartime

(at 453–4, 455): A war imperilling our very existence, involving not the internal development of progress, but the array of the whole community in mortal combat with the common enemy, is a fact of such transcendent and dominating character as to take precedence of every other fact of life. It is the ultima ratio of the nation. The defence power then has gone beyond the stage of preparation; and passing into action becomes the pivot of the Constitution, because it is the bulwark of the State. Its limits then are bounded only by the requirements of self-preservation. It is complete in itself, and there can be no implied reservation of any State power to abridge the express grant of a power to the Commonwealth. Even if there be a concurrent power in the State, it is necessarily subordinate. If it were possible to give special legal prominence to this principle among Commonwealth powers, that must of necessity be accorded to the defence power. All other powers and authorities—Commonwealth and State—are necessarily dependent upon its effective exercise. … As I read the Constitution, the Commonwealth, when charged with the duty of defending Commonwealth and States, is armed as a self-governing portion of the British Dominion with a legislative power to do in relation to national defence all that Parliament, as the legislative organ of the nation, may deem advisable to enact, in relation to the defence of Australia as a component part of the Empire, a power which is commensurate with the peril it is designed to encounter, or as that peril may appear to the Parliament itself; and, if need be, it is a power to command, control, organize and regulate, for the purpose of guarding against that peril, the whole resources of the continent, living and inert, and the activities of every inhabitant of the territory. The problem of national defence is not confined to operations on

[page 623] the battlefield or the deck of a man-of-war; its factors enter into every phase of life, and embrace the co-operation of every individual with all that he possesses—his property, his energy, his life itself; and, in this supreme crisis, we can no more sever the requirements and efforts of the civil population, whose liberties and possessions are at stake, from the movements of our soldiers and sailors, who are defending them, than we can cut away the roots of a living tree and bid it still live and bear fruit, deprived of the sustenance it needs.

Isaacs J’s reading of the wartime defence power, broad as it was, proved popular during World War I. Lloyd v Wallach (1915) 20 CLR

299, another case that involved the validity of regulations made under the War Precautions Act 1914–1915 (Cth), centred on reg 55(1) of the War Precautions Regulations 1915 (Cth), which provided that ‘where the Minister has reason to believe that any naturalized person is disaffected or disloyal, he may, by warrant under his hand, order him to be detained in military custody in such place as he thinks fit during the continuance of the present state of war’. Franz Wallach, a naturalised person of German descent, was believed to be disaffected or disloyal and was detained in military custody under reg 55(1). The Supreme Court of Victoria issued a writ of habeas corpus, commanding Lloyd, commandant of the internment camp, to produce Wallach and furnish particulars of his detention. In response, Lloyd supplied a warrant, under the hand of the Minister of Defence, reciting that the Minister (upon information provided to him) had reason to believe that Wallach was disaffected or disloyal. The Minister, called as a witness, refused on the ground of public policy to furnish reasons for his belief. The Supreme Court of Victoria, unsatisfied, ordered Wallach to be discharged. The High Court, on appeal, unanimously reversed the decision of the Supreme Court and had Wallach returned to detention. Griffith CJ, with whom the rest of the court concurred, accepted that the Minister was entitled to refuse to answer questions as to his belief on the grounds of public policy (at 304–5), even though no evidence had been adduced to support the conclusion that Wallach was disaffected or disloyal. It was sufficient that no evidence existed which contradicted the Minister’s belief (at 313 per Higgins J). Hence, s 51(vi) supported reg 55(1) of the War Precautions Regulations 1915 (Cth). Addressing the point that s 51(vi) had been used to severely curtail civil liberties, Higgins J said (at 309– 10): In all countries and in all ages, it has often been found necessary to suspend or modify temporarily constitutional practices, and to commit extraordinary powers to persons in authority, in the supreme ordeal and grave peril of national war. The aphorism Inter

arma silent leges is that of a Roman violator of the laws; but the laws of Rome on many occasions deliberately and organically committed extreme powers to dictators, in great emergencies and when the office of dictator had fallen into disuse, the Senate used to endow the consuls with similar powers under the decretum extremum atque ultimum.

In fact the Commonwealth had impeccable record, during the Great War, of using s 51(vi) to support defence-related measures. For example, in Pankhurst v Kiernan (1917) 24 CLR 120, the High Court upheld a provision of the Unlawful Associations Act 1916–1917 (Cth) which prescribed the offence of ‘encouraging the destruction or injury of property’ during the present state of war. A majority of the court (Higgins J dissenting) applied Farey, holding that the principle established by that case (that is, that regulations conducive to the ‘effective prosecution of [page 624] the war’ are supported by s 51(vi)) extended to legislation criminalising the destruction of property, given that this may ‘diminish the resources of the people applicable to their defence’ (at 129 per Barton J) and ‘involves its utter waste to the community’ (at 131 per Isaacs J). 22.18 The notion that s 51(vi) is plenary in wartime — that it is tantamount to that of a general legislative power (as Isaacs J suggested in Farey) — was not borne out by future cases. Section 51(vi) is subject to constitutional freedoms (see 22.38). It may also be the case that an impugned defence law fails because it has not been found to be reasonably appropriate and adapted to serve ‘defence’ purposes (see 22.37). This is not to say that s 51(vi) will be interpreted restrictively in wartime. It has been established in the course of the preceding analysis that the opposite in fact is true: s 51(vi) will support most laws with a defence-related purpose. This is because the scope of s 51(vi), in

time of global war, is extremely wide. This reflected the view of most members of the High Court during World War II. Following the collapse of the conservative Coalition government in October 1941, the incoming Labor administration thereafter implemented a number of aggressive economic policies aimed at stabilising the economy and centralising federal power. This was achieved by a raft of regulations made under the National Security Act 1939 (Cth). With the exception of Andrews v Howell (1941) 65 CLR 255, decided in July 1941 while Robert Menzies was Prime Minister, all subsequent wartime cases (between 1942 and 1944), in which s 51(vi) was principally relied upon to support impugned legislation, were decided during Curtin’s administration. In all, 16 cases were decided in this period (Sawer, 1946, p 295). The Commonwealth was successful in defending these actions (including Andrews) on 12 of 17 occasions, a success rate of approximately 70 per cent. Defence laws upheld as being within the scope of the defence power (that is, under the secondary aspect of the power) included the following: •

Commonwealth legislation enabling the Commonwealth to take over state income tax departments (including all staff, facilities, equipment and records used to assess and collect state income taxes), making it impossible for the states to collect future income tax: South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373;

•

Commonwealth regulations restricting advertising on ‘nonessential goods’ during seasonal periods (that is, Christmastime, Easter and New Year), as such advertisements may stimulate spending: Ferguson v Commonwealth (1943) 66 CLR 432;

•

regulations controlling the price of tenanted accommodation and restricting the ability to evict tenants: Silk Bros Pty Ltd v State

Electricity Commission of Victoria (1943) 67 CLR 1; •

regulations controlling the prices of declared goods and services to be sold throughout Australia, for the purpose of combating uncontrolled increases of prices which, as a result, could produce grave economic and social effects; in time of war it is necessary to deal with profiteering and inflation: Victorian [page 625] Chamber of Manufactures v Commonwealth (Prices Regulation case) 67 CLR 335 (see particularly at 339 per Latham CJ);

•

Commonwealth legislation regulating the employment of women in essential industries, extending to all kinds of work not formerly performed by women; the employment of women in industries, as able replacements for men called up for service, sustained the supplies of goods and services for the defence forces and for the community: Victorian Chamber of Manufactures v Commonwealth (Women’s Employment Regulations case) (1943) 67 CLR 347;

•

Commonwealth regulations directing citizens to place their services at the disposal of the Commonwealth by working under the direction and control of employers (that is, general ‘manpower’ controls): Reid v Sinderberry (1944) 68 CLR 504;

•

regulations conferring power on the Premier of a State, where the Premier regards it as being in the interests of defence or the effectual prosecution of the war, to restrict the sale of alcohol, and to designate times that publicans could serve pub-goers: De Mestre v Chisholm (1944) 69 CLR 51; and

•

regulations authorising the Minister to prohibit persons from

carrying on the business of a master baker or bread distributor except under the authority of a licence, or distribute or cause to distribute bread in any area to which the order applies unless the person is the holder of a licence (or is employed by a person holding such a licence) authorising them to distribute bread; in this case the regulations were valid because they were conducive to defence, to the extent that they embodied an administrative system of control over ‘the production and distribution of bread, designed to save the unnecessary use of labour, flour, materials and materials and transport without endangering the supply to individuals of a necessary food’: Stenhouse v Coleman (1944) 69 CLR 457 (see particularly at 472 per Dixon J) However, in the following cases the High Court found that s 51(vi) did not support Commonwealth regulations, either because the challenged regulations exceeded the requirements of defence or because they were not reasonably connected to the fulfillment of a ‘defence’ purpose: •

regulations controlling the employment conditions of state public servants engaged in work not directly associated with the prosecution of the war: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488;

•

regulations controlling the entry of students to universities: R v University of Sydney; Ex parte Drummond (1943) 67 CLR 95;

•

regulations authorising the dissolution of organisations deemed subversive to the war effort, authorising the seizure and retention of their property, and prohibiting the publication of any doctrines promoting their views: Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116;

•

regulations specifying standards for the interior artificial lighting of industrial premises, and requiring occupiers to bring the

premises into conformity with those standards: Victorian Chamber of Manufactures v Commonwealth (Industrial Lighting Regulations case) (1943) 67 CLR 413; and [page 626] •

regulations controlling the employment of female public servants engaged in ordinary governmental administration, not in an industry conducive to war activities: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1944) 68 CLR 485.

Transition from war to peace 22.19 Section 51(vi) does not immediately ‘snap back’ to its peacetime core upon the cessation of hostilities. A transitional postwar defence power must persist for a reasonable period to effect society’s transition from war to peace. The basis for this view is that a country’s participation in war requires a co-ordinated and systematic series of measures to reshape the economy. Accordingly, the transformation from a war economy to a peacetime economy requires legislative measures to ‘unwind’ those wartime controls. This may take some time. It follows that the defence power ‘must, by consequence, also extend to sustaining for some reasonable interval of time the laws and regulations in force at the end of hostilities so as to enable the legislature to proceed’ with the responsibility of restoring the peacetime economy: Dawson v Commonwealth (1946) 73 CLR 157 at 184 per Dixon J (emphasis added). Nevertheless, a stage will inevitably be reached where it would be beyond reason to allege that the continuance of a specific war control is necessary for defence purposes: Australian Textiles Pty Ltd v Commonwealth (1945) 71 CLR 161 at 170 per Latham CJ.

22.20 The justification for transitional defence controls was put most effectively by Colin Howard (1985, p 479): ‘Non-military defence legislation in time of war has far-reaching effects on the social and economic life of the community. Suddenly to declare such legislation … invalid because there is no longer any war would produce widespread dislocation of services, production and employment’. This makes clear the High Court’s approach in the initial ‘post-war’ cases: Dawson v Commonwealth (1946) 73 CLR 157 and Miller v Commonwealth (1946) 73 CLR 187. In Dawson, the court upheld national security regulations imposing controls on the purchase of land. Land could only be transferred upon the written consent of the Treasurer. In Miller, the court also endorsed regulations determining the maximum and minimum price at which any shares, stock or debentures of a company could be sold. The underlying defence purpose in both cases was the need to prevent the inflation of land values and marketable securities. Between 1946 to 1948 the High Court also upheld Commonwealth regulations authorising ex-service personnel to occupy residential housing (Real Estate Institute of New South Wales v Blair (1946) 73 CLR 213) and the rationing of dairy products for sale (Sloan v Pollard (1947) 75 CLR 445), as well as Commonwealth legislation giving preference to the employment of discharged members of the forces when hiring public servants: Wenn v AttorneyGeneral (Vic) (1948) 77 CLR 84. 22.21 However the post-war defence power only conferred power to continue wartime economic controls until June 1949. It was at this point the stage was reached, as Latham CJ put it in Australian Textiles, that the continuance of post-war controls was no longer justified. In R v Foster (1949) 79 CLR 43 the High Court struck down Commonwealth laws regulating the terms and conditions [page 627]

of women’s employment, the rationing of petrol, and the giving of preferential housing to returned servicemen (therefore invalidating the law upheld in Blair). The High Court, in a unanimous joint judgment, commented on the operation (and necessary expiration) of the post-war defence power (at 82–3): The substantial argument in support of the regulations, the validity of the continuance of which is now challenged, is that the defence power authorizes, beyond the period of obvious war emergencies, laws which are directed to dealing with the consequences of war. The Constitution does not confer upon the Commonwealth Parliament any power in express terms to deal with the consequences of war, but there are some consequences which undeniably fall within the scope of the legislative power with respect to defence. Repatriation and rehabilitation of soldiers is an obvious case. Rebuilding of a city which had been destroyed or damaged by bombing would be another case. Laws relating to such matters would, however, be valid not merely because they dealt with consequences of a war, but because such laws can fairly be regarded as involved incidentally in a full exercise of a power to make laws with respect to defence. The effects of the past war will continue for centuries. The war has produced or contributed to changes in nearly every circumstance which affects the lives of civilized people. If it were held that the defence power would justify any legislation at any time which dealt with any matter the character of which had been changed by the war, or with any problem which had been created or aggravated by the war, then the result would be that the Commonwealth Parliament would have a general power of making laws for the peace, order and good government of Australia with respect to almost every subject. Nearly all the limitations imposed upon Commonwealth power by the carefully framed Constitution would disappear and a unitary system of government, under which general powers of law-making would belong to the Commonwealth Parliament, would be brought into existence notwithstanding the deliberate acceptance by the people of a Federal system of government upon the basis of the division of powers set forth in the Constitution.

In 1959, the High Court refused to extend provisions of the Reestablishment and Employment Act 1945–1953 (Cth), giving preference in employment to discharged service personnel, from 1955 to 1958: Illawarra District County Council v Wickham (1959) 101 CLR 467. As Dixon CJ said (at 475): … preference in employment which these provisions seek to give and to maintain can be brought within the legislative power with respect to defence only as measures forming a consequence of war … For it lies in the necessity of fully re-establishing

discharged servicemen in civil life and restoring to their due place in a community which, the war being over, must itself undergo all the processes of re-organization that the resumption of conditions of peace may demand [emphasis added].

In this case, the legislative endeavour was likened to a law ‘on the topic of employment, not defence’ (at 477 per McTiernan J). As such, the transitional defence power provides for the re-establishment in civilian life of ex-service personnel for a period, but does not persist indefinitely.

Peacetime 22.22 The peacetime ambit of s 51(vi) forgoes regulation of the types of measures supported by the secondary aspect of the power. This clearly includes wartime and post-war controls, as well as preparatory measures for war. Drawing the distinction [page 628] (as Fullagar did in Australian Communist Party v Commonwealth (1951) 83 CLR 1) between primary and secondary defence laws is invaluable. It demonstrates that in peacetime the Commonwealth cannot rely on s 51(vi) to regulate ‘an infinite variety of matters’; for example, prices of goods, rationing of goods, rents and eviction of tenants, transfer of interests in land, and the conditions of employment in industries: at 254–5. Instead, Fullagar J was content to hold that primary defence laws were generally related to matters conducive to defence preparedness: ‘the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications’: at 254. Apart from defence preparedness, the High Court has also found that the peacetime core of s 51(vi)

supports laws directed to internal security and the discipline of defence force members. Defence preparedness 22.23 In the first and only High Court case on defence decided prior to World War I, Krygger v Williams (1912) 15 CLR 366, the court unanimously held that a conscientious objector to military drill was unable to rely the ‘free exercise’ clause of s 116 to evade personal service. Krygger, whose religious beliefs precluded the bearing of arms, argued that he should be exempted and excused from undergoing training and rendering service under the Defence Act 1903–1910 (Cth). Griffith CJ and Barton J, constituting the court in this case, dismissed Krygger’s constitutional objection. Both justices remarked on the importance of military training, as a matter of defence preparedness. Griffith CJ said (at 370): No one can doubt that the defence of his country is almost, if not quite, the first duty of a citizen, and there is no room for doubt that the legislature has power to enact laws to provide for making citizens competent for that duty. Without training an army is inefficient, to say the least, and everybody knows that in warfare not all the duties are of a combatant nature. I will only take as an illustration the ambulance corps, the duty of which is not to take life but to save it. The legislature, therefore, may enact that the training shall be, not only in combatant, but also in non-combatant duties, and persons must go to be trained accordingly. When they are asked to do anything which the law does not allow, it will be time enough to take objection.

Barton J similarly observed (at 372): … whether a person is to be a combatant or is to be allotted to non-combatant duties, it is still necessary for him to undergo training. Training is just as necessary for saving as for taking life. An undisciplined ambulance or commissariat service would be of little use for its purpose. There cannot be an efficient service for provisioning the troops or tending the wounded unless training is undergone and discipline thereby attained. In any case, therefore, notwithstanding the provisions about the doctrines of his religion, the appellant is liable to be trained, at least in non-combatant duties. But he has refused to undergo any training whatever, and has virtually set the Act at defiance. It is plain that he is not in a position to take up that stand. If he does, he must suffer the penalty prescribed.

22.24 There are two further High Court cases pertaining to defence preparedness. In the first, Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1, the Commonwealth sought a declaration that the Australian Shipping Board exceeded its powers in entering into a contract with the Sydney Municipal Council for the [page 629] supply, delivery and erection of six steam turbo-alternators for the Council’s power-house at Botany Bay in Sydney. The Board was vested with power, under s 14(4) of the Commonwealth Shipping Act 1923 (Cth), to enter into contracts. The Board argued that the contract was authorised by the defence power, in that it was necessary to maintain the power-house in such a way as to keep it continuously in a state of efficiency for naval purposes. The High Court disagreed. Knox CJ, Gavan Duffy, Rich and Starke JJ (Isaacs and Higgins JJ deciding the case on a different issue) held that s 51(vi) did not support the activity (at 9): There is no power which enables the Parliament or the Executive Government to set up manufacturing or engineering businesses for general commercial purposes … It was suggested, however, that the dockyard and workshops on Cockatoo Island were required for the purposes of the naval defence of the Commonwealth, and that it was impracticable to maintain them efficiently for that purpose unless the managing body —the Shipping Board—was authorized to enter upon general manufacturing and engineering activities, because the cost of maintenance of the works would be excessive and the working staff would be unable to obtain proper experience. Despite the practical difficulties facing the Commonwealth in the maintenance of its dockyard and works, the power of naval and military defence does not warrant these activities in the ordinary conditions of peace, whatever be the position in time of war or in conditions arising out of or connected with war.

The Shipping Board case reflects a narrow reading of peacetime defence power. In Attorney-General (Vic) v Commonwealth (Clothing Factory case) (1935) 52 CLR 533, decided nine years later during a time

of growing international uncertainty, the High Court reached a different decision. Sub-provisions of s 63 of the Defence Act 1903–1932 (Cth) authorised the establishment and maintenance of factories for the manufacture of naval and military equipment and uniforms, and the employment of persons in a civil capacity for any purpose in connection with the Defence Force, or in any factory established in pursuance of the Act. Such a factory was established, the Commonwealth Clothing Factory, which produced naval and military uniforms. However, from 1919 the factory also began to accept contracts and orders from the State of Victoria to supply uniforms for employees in government departments and municipal councils, as well as for a number of private organisations such as the Boy Scouts and Sea Cadets (at 557 per Gavan Duffy CJ, Evatt and McTiernan JJ). The issue, therefore, was whether the factory, to the extent it entered into contracts for the supply of uniforms outside of the defence forces, was supported by the defence power. Latham KC, appearing for the Commonwealth, ran the argument that it was necessary to keep the factory’s staff in employment, in order to maintain their skills and efficiency, until which time full production resumed on the manufacture of naval and military uniforms: for example, ‘It is necessary to employ a certain number of men to run an efficient factory, and if that number of men can supply more than the number of uniforms required, the Commonwealth is entitled to keep the men in employment by making garments which are sold to the public’ (at 550). A majority of the court (Starke J dissenting) accepted this argument. In a joint judgment, Gavan Duffy CJ, Evatt and McTiernan JJ said (at 558): This brings us to the question whether the legislative power in respect of defence is a sufficient warrant for the legislation so construed and so applied to the facts. It [page 630]

is obvious that the maintenance of a factory to make naval and military equipment is within the field of legislative power. The method of its internal organization in time of peace is largely a matter for determination by those to whom is entrusted the sole responsibility for the conduct of naval and military defence. In particular, the retention of all members of a specially trained and specially efficient staff might well be considered necessary, and it might well be thought that the policy involved in such retention could not be effectively carried out unless that staff was fully engaged. Consequently, the sales of clothing to bodies outside the regular naval and military forces are not to be regarded as the main or essential purpose of this part of the business, but as incidents in the maintenance for war purposes of an essential part of the munitions branch of the defence arm.

In the Clothing Factory case, the majority distinguished Shipping Board on the basis that ‘the purpose of naval and military defence … [had] been impressed upon the operations of the clothing factory from the very commencement’: at 559 (emphasis added). RD Lumb (1986, p 111) speculated that the difference between the cases could be explained by the fact that in Shipping Board ‘the activity did not have imprinted on it a direct relationship with defence’ whereas in Clothing Factory ‘a direct relationship with defence was apparent’. But considering the vagaries of the court’s approach, it is more likely that Colin Howard’s explanation is correct: ‘There is little point in examining this ground of distinction with particularity. Evidently the court felt more favourably disposed towards the defence power in 1935 than in 1926 … Quite possibly the true ground of distinction is that in 1935 the prospect of another major war involving Australia was more obvious than in 1925’ (1985, p 483). Internal security 22.25 For a long period, the defence power was only believed to protect Australia from external threats. In Australian Communist Party v Commonwealth (1951) 83 CLR 1, Fullagar J stated that ‘the “defence” to which s 51(vi.) refers is the defence of Australia against external enemies: it is concerned with war and the possibility of war with an extra-Australian nation or organism’: at 259 (emphasis added).

Fullagar J thought that the Commonwealth’s power to make laws for the protection of itself and against threats to internal security was to be found in ss 61 and 51(xxxix). However, given the rise of terrorism and national security concerns in the post-September 11 era, this view would not endure. In 2007, the High Court agreed that the power to make laws with respect to the naval and military defence of the Commonwealth and the states is not limited to defence against aggression from foreign nations: Thomas v Mowbray (2007) 233 CLR 307 (at 324–5 per Gleeson CJ; at 361–2 per Gummow and Crennan JJ; at 395 per Kirby J; at 456–7 per Hayne J; at 503 per Callinan J; at 511 per Heydon J). Prior to the devastating terrorist attacks perpetrated against the United States on 11 September 2001, Australia had no federal laws specifically aimed at preventing acts of terrorism. However since then, the Commonwealth Parliament has enacted (as at September 2016) 68 anti-terrorism laws. Forty-two laws were introduced over a four-year period between 2002 and 2005. The majority were passed in the wake of major terrorist incidents (that is, the 11 September 2001 attacks, the 2002 Bali bombings, the 2004 Madrid bombings and the 2005 London bombings). [page 631] Because the Commonwealth lacks an enumerated power to deal with terrorism, it must rely on other legislative powers, like ss 51(vi) and 51 (xxix), to support anti-terrorism laws carrying criminal offences in the Criminal Code (Cth). This includes offences relating to terrorism (Div 101), terrorist organisations (Div 102), financing terrorism (Div 103), control orders (Div 104) and preventative detention orders (Div 105). The inclusion of preparatory offences and

control and preventative detention order schemes suggests that the main legislative objective of the counter-terrorism regulatory scheme is the prevention of terrorism. 22.26 In Thomas v Mowbray (2007) 233 CLR 307, the plaintiff (Thomas) admitted to undertaking weapons training with Al Qa’ida (a proscribed terrorist organisation) at an Afghani training camp in 2001. Satisfied that this training may have equipped him with the knowledge and skills to execute or assist in the execution of a terrorist act, a federal magistrate (Mowbray) made an interim control order against Thomas under s 104.4 of the Criminal Code. Referring to the applicable criteria in s 104.4, the federal magistrate was satisfied, on the balance of probabilities, either that the making of the order would substantially assist in preventing a terrorist act, or that the plaintiff received training from a listed terrorist organisation: s 104.4(1)(c)(i)– (ii). Moreover, the federal magistrate was satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions imposed on the plaintiff were reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act: s 104.4(1)(d)(i). Consequently, a number of conditions were placed on Thomas: to remain at his residence between midnight and 5.00am each day (unless he notified the Australian Federal Police of a change of address), report to police three times a week and submit to fingerprinting. He was also prohibited from leaving Australia without permission, from acquiring or manufacturing explosives, from communicating with specified individuals, and from using certain communications technologies (see at 323 per Gleeson CJ). Thomas commenced proceedings in the High Court to quash the interim control order on the basis that Div 104 was wholly invalid, on the grounds that it was contrary to Ch III of the Constitution and was not supported by s 51(vi) (or any other express or implied legislative powers).

A majority of the court (Hayne and Kirby JJ dissenting) upheld the constitutional validity of the interim control order system. All members of the court (except Kirby J) held that Div 104 was supported by the defence power; however, Hayne J joined with Kirby J in holding that Div 104 infringed Ch III of the Constitution. Three justices (Gleeson CJ, and Gummow and Crennan JJ) would have also upheld the scheme under s 51(xxix): at 324, 325–6 per Gleeson CJ; at 365 per Gummow and Crennan JJ. With respect to s 51(vi), the majority made two important observations about the scope of the peacetime defence power. First of all, s 51(vi) is not limited to defence against external threats to the Commonwealth and the states from foreign nations. Second, s 51(vi) extends to the physical protection of individuals and their property, not just the Commonwealth and the states as ‘collective’ political units (that is, ‘bodies politic’): at 324 per Gleeson CJ; at 362 per Gummow and Crennan JJ; at 511 per Heydon J (see also at 458–9 per Hayne J. Kirby J dissented [page 632] outright at 393–5). The wide view of s 51(vi), with respect to internal security, was succinctly expressed by Gleeson CJ (at 324): The power to make laws with respect to the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth, is not limited to defence against aggression from a foreign nation; it is not limited to external threats; it is not confined to waging war in a conventional sense of combat between forces of nations; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public. Professor Greenwood wrote: Since the events of 11 September showed — if, indeed, the matter were ever in any doubt — that a terrorist organization operating outside the control of any state is capable of causing death and destruction on a scale

comparable with that of regular military action by a state, it would be a strange formalism which regarded the right to take military action against those who caused or threatened such consequences as dependent upon whether their acts could somehow be imputed to a state… [T]he famous Caroline dispute, which is still regarded as the classical definition of the right of self-defence in international law, shows that an armed attack need not emanate from a state.

Gummow and Crennan JJ, in an interesting judgment, relied on a wide range of sources in upholding the validity of legislative scheme. One source was Alexander Hamilton’s ‘The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union’, a paper (No 23) published in The Federalist Papers (1787). In the essay, Hamilton (a founding father of the United States Constitution) made, as Gummow and Crennan JJ put it, some sapient observations about ‘what was involved in the notion of defence’ which provide a ‘backdrop for consideration of the limitations upon the reach of the defence power’ in the Constitution for which the plaintiff contends (at 360). Hamilton identified the importance of ‘common defence’: The authorities essential to the common defence are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed [original emphasis].

Hamilton’s main point is that powers conducive to ‘common defence’ should not be limited, because it is ‘impossible to foresee or define the extent and variety’ of future threats. Terrorism clearly poses a serious threat to public safety. The current wave of politico-religious terrorism arguably represents the most dangerous period in the history of terrorism. The production of sophisticated modes of communication (and other technologies) has seen the emergence of

new and innovative strategies of terrorism. This is an inevitable consequence of the proliferation of technological innovation in the contemporary age, which has allowed terrorist groups to become more obscure, diverse and scattered. Recent lone-wolf attacks have only added to this problem. The current counter-terrorism legislative scheme (including the interim control order scheme) functions to protect the public (and, by extension, the nation) from the risk of terrorism. Given [page 633] the ‘extent and variety’ of modern manifestations of terrorism, it may follow that ‘essential to the common defence’ is the power to enact anti-terrorism laws. However, it should be observed that Hamilton was confining his comments to the issue of how the United States should defend itself against acts of foreign aggression. Accordingly, it did not address the issue of internal security, and the extent to which a government should use its legislative power to regulate acts of internal aggression. Another source relied upon was Griffith CJ’s interpretation of the defence power in Farey v Burvett (1916) 21 CLR 433 at 440. This judgment, as mentioned at 22.4, is the classic authority for the view that the words ‘naval and military defence’ are to be broadly construed. The main problem with this, however, is that internal security was regarded by their Honours as falling within the peacetime scope of the power (they eschewed consideration of facts and the need to apply a proportionality test by holding that Div 104 fell within the central conception of the power: at 363); but Griffith CJ, in his judgment, was primarily referring to laws in the secondary scope of the power. This is evident in his reasoning at 441. This raises

questions about whether Griffith CJ intended for the power to be applied as liberally in peacetime (there is no question it is still broad). Gummow and Crennan JJ assumed that it did. Gummow and Crennan JJ, as alluded to above, held that protection from terrorist acts falls within the ‘central conception’ of the defence power: at 363. For all intents and purposes, ‘central conception’ refers to the primary aspect (or core) of s 51(vi). It is for this reason that Gummow and Crennan JJ (with whom Gleeson CJ agreed at 324) considered it unnecessary to examine ‘facts said to be sufficient to connect the legislation in question with the head of power in s 51(vi)’: at 363. This foregoes any further need to take judicial notice of the law and to assess its proportionality in serving a defence purpose. Their Honours’ approach thus situates internal security (specifically, counter-terrorism) in the primary aspect of the defence power, without necessary regard to secondary defence considerations (that is, factual conditions); although Gummow and Crennan JJ did observe that jihadism had become a matter of general public knowledge (at 349). Notwithstanding, the weight of their Honours’ judgment seems to confirm that internal security is a part of the peacetime scope of s 51(vi). The fact that interim control orders could only be authorised where it was reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act, brought Div 104 within the confines of the defence power. This established the necessary legislative connection: see, for example, at 325 per Gleeson CJ. Callinan and Heydon JJ (in separate judgments) largely reached the same conclusion, but had some regard to external factual conditions (that is, ‘notorious facts of which judicial notice may be taken’: at 481 per Callinan J). This included the fact that Al Qa’ida was an organisation that ‘carried out, inspired or at least approbated vicious attacks on military targets, civilians and property in various countries’

(such as the September 11 attacks); video footage showing ‘Bin Laden advocating and claiming responsibility for terrorist activities’; as well as the [page 634] publication of Australian Security and Intelligence Organisation (ASIO) reports ‘relating to the threat posed by terrorists to the people and property of Australia’. Taken together, what emerges ‘is that Al Qa’ida poses a threat to the nation, and that the plaintiff has aligned himself and has trained with Al Qa’ida or an associated organisation to undertake terrorism’: at 489 per Callinan J. Other facts, to which Callinan J had judicial notice, concerning the ‘notorious circumstances of international terrorism and the threats posed’ by terrorist groups, are provided at 490–2. Heydon J argued that the court should have regard to a wide range of facts, including items of information learned ‘from news broadcasts, the print media and public discussion’; that is, matters of public discussion that are ‘sufficiently open, notorious and within the common knowledge of educated persons’: at 524. His Honour also held that the court should be entitled to accept propositions advanced by the Solicitor-General, as the basis for inferring a constitutional fact: at 525 (on this point, see Lynch, 2008, pp 1193–4). In light of the external factual conditions and the fact the plaintiff received training from a proscribed terrorist organisation, Callinan J found that the relevant criteria in s 104.4(1)(c)–(d) had been established for the purpose of protecting the public from a terrorist act (at 507). Consequently, the law was proportionate and thus within the defence power (at 506). Heydon J likewise concluded that there were constitutional facts favouring the conclusion that Australia faced a

threat sufficient to support a characterisation of the impugned legislation as falling within the defence power (at 525). 22.27 Section 51(vi) can also be used to support laws that control security threats, such as people-smuggling, in order to protect the ‘territorial and border integrity’ of Australia: Jaffarie v Director-General of Security [2014] FCAFC 102. In Jaffarie, an adverse security assessment was made by ASIO against a person alleged to have engaged in people-smuggling activities. It was alleged that Jaffarie was a member of an extensive Indonesia-based people-smuggling syndicate which had organised or facilitated a number of ‘irregular entry vessels’ targeting Australia. Jaffarie’s visa was cancelled as a result of the adverse security assessment and he was placed in detention pending his removal from Australia. He sought a review of the decision, claiming that the Minister had committed a jurisdictional error. Among the grounds of his review was that the offence of people-smuggling fell short of what constituted a ‘serious threat’ to the ‘protection of Australia’s territorial and border integrity’: at [52], [56]. This argument was rejected unanimously by the Full Federal Court. Flick and Perram JJ (with whom White J agreed) found that such a narrow reading of the word ‘security’, as defined in s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth), did not restrict the defence power (at [60]): Nothing in the manner in which s 51(vi) has been construed provides support for the limitation of meaning sought to be ascribed to paragraph (aa). There is, in particular, no reason why a ‘serious threat’ to ‘territorial and border integrity’ is confined to an ‘attack’ which threatens the ‘oneness’ of Australia. There is nothing inherent in the defence power conferred by s 51(vi) which would limit the power in that manner. Indeed, a reading of s 51(vi) which confines the legislative competence of the Commonwealth Legislature to resisting an ‘attack’ upon the borders of Australia is a reading which is not self-evidently correct and one which is inconsistent with the manner in which that power has been construed to-date.

[page 635]

Military discipline 22.28 Section 51(vi) also empowers the Commonwealth to establish and maintain a system of military discipline which sits outside Ch III of the Constitution. A military code, consisting of service tribunals (courts martial and defence force magistrates), sets out a system of discipline within the defence force itself. This imposes upon those administering that code the duty to act judicially: Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 540–1 per Mason CJ, Wilson and Dawson J. The effect of this is that service tribunals exercise judicial power, but not the ‘judicial power of the Commonwealth’ (s 71 of the Constitution). Section 51(vi) confers jurisdiction upon tribunals that is ‘disciplinary’, not ‘judicial’ for the purposes of ss 75 and 76 of the Constitution. It is the case, however, that tribunals are constrained by the separation of judicial power in Ch III of the Constitution. It is therefore important that service tribunals, in applying disciplinary power, do not exceed the appropriate confines of s 51(vi). For example, the decisions of tribunals must be subject to review within the chain of command: see, especially, Lane v Morrison (2009) 239 CLR 230 at 261 per Hayne, Heydon, Crennan, Kiefel and Bell JJ. Moreover, service tribunals may only assume jurisdiction to determine service offences where the offence serves the purpose of maintaining and enforcing defence force discipline. Otherwise, the authority of regular civilian courts would be eroded (that is, where service offences and the general criminal law overlap, and tribunals purport to take jurisdiction over criminal courts in cases concerning defence force members). Parliament cannot vest this authority in service tribunals in such a way as to oust the jurisdiction of civil courts: Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 574–5 per Brennan and Toohey JJ. The vast majority of cases on the discipline of defence force members have concerned the extent to which tribunals can exercise its jurisdiction.

22.29 By way of background, service offences are set out in Pt III of the Defence Force Discipline Act 1982 (Cth). A wide range of offences are provided: offences relating to operations against the enemy; mutiny, desertion and unauthorised absence; insubordination and violence; offences relating to performance of duty; offences relating to ships, vehicles, aircraft and weapons; property offences (for example, unlawfully obtained property, fraudulent conduct in relation to property and looting); and offences arising from arrest, custody and disciplinary proceedings, as well as some miscellaneous offences. The first modern case to deal with defence force discipline was Re Tracey; Ex parte Ryan (1989) 166 CLR 518. Desmond Ryan, a staff sergeant in the Australian Regular Army, was charged with three offences under the aforementioned Act. The first charge was brought under s 55(1)(b), which concerned falsification of a service document (a movement requisition) with an intent to deceive. The second and third charges, brought under s 24(1), alleged that Ryan was absent without leave on two separate occasions. Jurisdiction was taken by a defence force magistrate (Tracey), appointed under s 127 of the Act. When he commenced to hear the charges, Ryan objected to his jurisdiction to do so, on the basis that the hearing and determination of the charges ‘involved the exercise of the judicial power of the Commonwealth. It was said that the defence force magistrate was [page 636] not qualified to exercise that power, not having been appointed pursuant to Ch III of the Constitution’: at 533 per Mason CJ, Wilson and Dawson JJ. Ryan alleged that this was in breach of ss 71 and 72 of the Constitution. He also alleged that each of the offences were indictable offences under Commonwealth law and were therefore

only triable by a jury pursuant to s 80 of the Constitution. The High Court, by a majority of 6:1, rejected Ryan’s arguments and held that the defence force magistrate had jurisdiction to determine whether Ryan was guilty of the offences for which he had been charged. The s 80 argument was rejected at 548–9 per Mason CJ, Wilson and Dawson J and at 578–9 per Brennan and Toohey JJ. With respect to the all-important issue of whether 51(vi) supports the establishment and maintenance of a disciplinary code which sits outside Ch III of the Constitution, Mason CJ, Wilson and Dawson JJ observed (at 540–1): Of course, the powers bestowed by s. 51 are subject to the Constitution and thus subject to Ch.III. The presence of Ch.III means that, unless, as with the defence power, a contrary intention may be discerned, jurisdiction of a judicial nature must be created under Ch.III and that it must be given to one or other of the courts mentioned in s.71, namely, the High Court, such other courts as the Parliament creates or such other courts as it invests with federal jurisdiction: see Reg. v. Davison. That is because any body exercising such jurisdiction would be exercising judicial power of the kind contemplated by Ch.III and must, therefore, form part of the judicature for which that Chapter provides. However, the defence power is different because the proper organization of a defence force requires a system of discipline which is administered judicially, not as part of the judicature erected under Ch.III, but as part of the organization of the force itself. Thus the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Ch.III and to impose upon those administering that code the duty to act judicially.

Brennan and Toohey JJ also agreed (at 564, 573). With a majority of the court holding that s 51(vi) enables service tribunals to exercise jurisdiction over the enforcement of defence discipline, the court had to then resolve the issue of the extent to which tribunals can try service offences. Three different views emerged on this issue. The broadest approach was the ‘service status’ test favoured by Mason CJ, Wilson and Dawson JJ. This view leaves it ‘open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member’: at 545. Put a different way, ‘membership simpliciter of an arm of the ADF [Australian

Defence Force] makes one liable to punishment under a Military Code’ (Devereux, 2004, p 487). The second test, the ‘service connection’ approach adopted by Brennan and Toohey JJ, represents the middle view and holds that ‘proceedings may be brought against a defence member or a defence civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline’: at 570. The third approach, being the most restrictive, has received little judicial support. The third view (that of Deane J) holds that jurisdiction can be validly conferred on service tribunals only to the extent it relates to what are exclusively disciplinary offences: at 591. Applying first and second tests, Mason CJ, Wilson and Dawson JJ would have upheld the jurisdiction of the defence force magistrate irrespective of whether the [page 637] service offence substantially served the purpose of maintaining or enforcing service discipline. It sufficed because Ryan was an enlisted defence force member. As for Brennan and Toohey JJ, the service offences for which Ryan had been charged (falsifying a service document and going absent without leave) were closely related to service discipline. They found that there was ‘nothing to throw the slightest doubt on the proposition that the substantial purpose of these proceedings is to enforce service discipline’: at 579. 22.30 The ‘service status’ and ‘service connection’ approaches would continue to be applied in subsequent cases until the High Court finally reached a consensus in Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308. In Re Nolan; Ex parte Young (1991) 172 CLR 460, Staff Sergeant Young was charged with 14 offences in relation to

seven service documents. For each document he was charged with two offences. The first was falsifying a service document (a pay list which entitled him to an amount of pay greater than that to which he was entitled), contrary to s 55(1) of the Defence Force Discipline Act 1982 (Cth). The second was using a false instrument under s 61(1) of the Act, which picked up a provision of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory. This related to using the pay list with the intention inducing a Commonwealth employee to accept it as genuine and to pay him money to the prejudice of the Commonwealth. When the hearing of the charges came before the defence force magistrate, Lieutenant Colonel Nolan, Young objected to the defence force magistrate’s jurisdiction, on the ground that all the offences charged were offences under the general law or were equivalent to such offences, and that the charges should be laid, heard and determined under civilian law. In determining that the defence force magistrate had jurisdiction to hear the case, Mason CJ and Dawson J, and Brennan and Toohey JJ, again respectively applied the ‘service status’ and ‘service connection’ tests. Mason CJ and Dawson J (at 474) found no reason to resile from the view they expressed in Re Tracey; Ex parte Ryan (1989) 166 CLR 518: We consider now, as we concluded then, that it is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member. The proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces; so long as the rule prescribed is sufficiently connected with the regulation of the defence forces and the good order and discipline of members, it will be valid.

Brennan and Toohey JJ applied the ‘service connection’ test (at 489): Service discipline is not merely punishment for wrongdoing. It embraces the maintenance of standards and morale in the service community of which the offender is a member, the preservation of respect for and the habit of obedience to lawful service authority and the enhancing of efficiency in the performance of service functions. Here, the charges are obviously ‘service connected’ but that is not the ultimate criterion though it is an important element in determining whether proceeding on those charges could reasonably be regarded as serving the purpose of

maintaining and enforcing service discipline. In our view, it can reasonably be said that the maintenance and enforcement of service discipline would be served by proceeding on all charges against Sergeant Young before a service tribunal constituted, as the Discipline Act provides, by a Defence Force Magistrate.

[page 638] It was significant that Ryan and Young were acting in the exercise of their duties when the alleged offences were committed. This suggested that the offences were service-connected, for the purposes of satisfying the ‘service connection’ test. Both tests would be used again in Re Tyler; Ex parte Foley (1994) 181 CLR 18, a case concerning the alleged misappropriation of $24,761.40 by Wing Commander Foley. Once more, Mason CJ and Dawson J dismissed the prosecutor’s argument that the charges should be tried before a civilian court: at 26. Two other members of the majority, Brennan and Toohey JJ, also supported the jurisdiction of the general court martial to try the charge of dishonestly appropriating property under s 47(1) of the Act: at 31–2. At the time the offence was committed, Foley was commanding officer of his squadron and ‘his alleged conduct related to a scheme instituted for the benefit of defence members [a temporary rental allowance available to members requiring accommodation], including those under the prosecutor’s command. The effect on service morale and discipline by a breach of the kind alleged committed by a commanding officer might reasonably be regarded as substantial’: at 32. For this reason, the general court martial substantially served the purpose of maintaining or enforcing service discipline: at 31 per Brennan and Toohey JJ. Despite considering the reasoning of the majority justices in Re Nolan and Re Tracey to be ‘erroneous’, McHugh J accepted the cases as binding: at 39. Deane J (at 34) and Gaudron J (at 35) dissented.

22.31 The High Court again upheld the jurisdiction of a general court martial to try an alleged offence of rape in Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308. However the facts of this case greatly differed to those in Re Tracey, Re Nolan and Re Tyler. For one thing, Private Alpert was not stationed in Australia, but deployed overseas in Malaysia. Second, he was on recreational leave in Thailand at the time the alleged offence was committed. He entered the country on his own civilian passport without any form of military identification. He paid for his accommodation, meals and incidental expenses, and wore civilian clothes while he remained in the country. Unlike Ryan, Young and Foley, Alpert was not carrying on military duties at the time the incident took place. It was alleged that Alpert raped a woman in the early hours of 29 September 2001 at Patong Beach, Phuket. He was later charged under s 61 of the Defence Force Discipline Act 1982 (Cth), which applies provisions of Jervis Bay Territory law, including s 54 of the Crimes Act 1900 (ACT) (applying the statutory offence of rape in the Jervis Bay Territory). Alpert objected to the jurisdiction of the court martial, on the basis that he was on recreational leave in Thailand, not on active duty in Malaysia. The court, by a majority of 4:3, upheld the jurisdiction of the general court martial. There was also clear judicial support, finally, for the ‘service connection’ test but the court disagreed, on the facts, as to how it should be applied. Gleeson CJ, McHugh, Gummow and Hayne JJ were satisfied that the seriousness of the service offence, being sexual intercourse without consent, had enough of a ‘service connection’ for Private Alpert to be tried by general court martial. The ‘connection’ between the service and the offence was held to substantially serve the purpose of maintaining service discipline and morale: at 312–3 per Gleeson CJ; at 323–4 per McHugh J; at 330 per Gummow J; at 356 per Hayne J. McHugh J provided the leading judgment. His Honour identified a number of relevant factors

[page 639] which indicated that the standard of conduct set down in the legislation had the potential to maintain and enhance the discipline of the armed forces (at 323–4): … an important factor is that, when overseas, they are likely to be perceived by the government of the foreign country and members of the local population as representatives of the Australian government. In this respect, they are different from ordinary Australians who visit a foreign country as tourists. It is not to the point that, so far as dress and other matters are concerned, they cannot be distinguished from an ordinary Australian tourist. If a soldier on recreation leave is involved in conduct that is prohibited by the Crimes Act (ACT), it is likely that that conduct will also be unlawful under the laws of the foreign country or at all events regarded as undesirable conduct. And it is not unlikely that the local citizenry will soon become aware that the person involved in that conduct was a member of the Australian Defence Force. It is a likely consequence of such conduct, therefore, that the local citizenry will be critical of its occurrence and may even become hostile to Australian Defence Force members. Moreover, even if the local citizens do not become aware of the soldier’s connection with the Australian Defence Force, it is likely that the government of the country will be aware of the identity of the soldier. If such conduct occurred regularly, it might have the consequence that the government of the foreign country would deny entry to Australian Defence Force members in so far as they seek to visit areas for rest and recreation. If that happened, it would have a direct impact on the morale and discipline of the Defence Force. It is possible that in extreme cases the unruly behaviour of personnel would cause a foreign country to refuse entry to Australian Defence Force members for Defence Force purposes such as training exercises. It may be that some conduct that is an offence under the law of the Australian Capital Territory in its relation to the Jervis Bay Territory has no relation to the defence power. If so, the operation of s 61 of the DFDA would have to be read down to exclude such conduct. However, even if some of the standards of conduct required by the Crimes Act (ACT) go beyond the defence power — go beyond what is required for maintaining the discipline and morale of the Defence Force — the prohibition against rape goes to the heart of maintaining discipline and morale in the Defence Force. Rape and other kinds of sexual assault are acts of violence. It is central to a disciplined defence force that its members are not persons who engage in uncontrolled violence. And it need hardly be said that other members of the Defence Force will be reluctant to serve with personnel who are guilty of conduct that in the Australian Capital Territory amounts to rape or sexual assault. This may be out of fear for personal safety or rejection of such conduct or both. Such reluctance can only have a detrimental effect on the discipline and

morale of the armed services.

McHugh J also rejected the prosecutor’s argument that he visited Thailand in the same capacity as an ordinary tourist (at 324): First, he was in Malaysia and thereafter Thailand as a result of his deployment by and service with the Australian Defence Force. Indeed, his presence in Thailand resulted from his military service because his recreation leave arose out of his military service and was no doubt designed to ensure that the prosecutor would be better able to carry out his military duties. Furthermore, he was not a free agent who could visit any country that he wished. There were only three countries in which he could spend his leave without the permission of his Commanding Officer. Thailand was one of them. Moreover, he was liable to immediate recall to his duties. It was for that reason that on his leave form he had to show his destination, his address and his telephone number.

[page 640] In dissent, Callinan and Heydon JJ also applied the ‘service connection’ test, but far more stringently. The application of the test turned on the facts of the case. The most important factor was that the alleged offence was totally unconnected with the performance of Alpert’s military duty: at 358. The unlawful act was committed away from his base, while he was properly and lawfully on leave. He was not under any military authority at the time of the incident and the act was not facilitated by reason of his membership of the defence force. Accordingly, no ‘service connection’ could be established on the facts. Callinan and Heydon JJ took aim at the wide approach taken by the majority justices (particularly McHugh J), disapproving of their reliance on extraneous factual assertions (referring to it ‘as a form of chauvinism’): at 360–1. Kirby J (in dissent) also adopted the ‘service connection’ test, rejecting the ‘service status’ test which he considered ‘overbroad’: at 337. He dissented for similar reasons: at 333. In White v Director of Military Prosecutions (2007) 231 CLR 570 the High Court, unsurprisingly, dismissed the plaintiff’s submission that

a system of military justice, involving trial and punishment of service offences by tribunals, necessarily involves an exercise of the ‘judicial power of the Commonwealth’. This would have required Re Tracey; Ex parte Ryan (1989) 166 CLR 518 to be reopened and overruled. The court refused to do so, holding that s 51(vi) supports the establishment of a code of military discipline standing outside Ch III of the Constitution: at 586 per Gleeson CJ; at 597–8 per Gummow, Hayne and Crennan JJ; at 647–8 per Callinan J; at 650 per Heydon J. 22.32 However, the outcome was different in Lane v Morrison (2009) 239 CLR 230. Following a 2005 report by the Senate Foreign Affairs, Defence and Trade Committee, which was critical of the effectiveness of the military justice system, the Commonwealth Government decided to replace the system of individually convened service tribunals. The Defence Legislation Amendment Act 2006 (Cth) inserted s 114 into the Defence Force Discipline Act 1982 (Cth). This provision created the Australian Military Court (AMC), a court of record empowered to making binding and authoritative decisions of guilt and determinations about punishment for service offences without intervention from within the chain of command of the armed forces (at 230). Section 114 declared that the AMC was ‘not a court for the purposes of Ch III of the Constitution’. It also provided that it was a court of record and that it would consist of a chief military judge and other military judges, who would hold office for fixed 10-year terms: ss 188AC(2) and 188AP(4). Brian Lane, a reservist in the Royal Australian Navy, was charged in 2007 with an act of indecency (s 61(3) of the Act, applying s 60(2) of the Crimes Act 1900 (ACT)) and also assaulting a superior officer (s 25). Colonel Morrison, a military judge, was nominated to try the charges. Lane applied to the High Court for a writ of prohibition to restrain the military judge from trying the charges and a declaration that the AMC was invalidly constituted. The court unanimously

agreed. Although it purported to sit outside Ch III of the Constitution, the AMC nevertheless exercised the ‘judicial power of the Commonwealth’. This is because the legislation took the system of military discipline outside the command [page 641] structure of the armed forces. Prior to the establishment of the AMC, the system of service tribunals was deemed to sit outside Ch III because these tribunals did not make binding and authoritative decisions of guilt or determination of punishment. Decisions were subject to review by a higher authority. This was reflected in several key provisions of the Defence Force Discipline Act 1982 (Cth). The joint judgment of Hayne, Heydon, Crennan, Kiefel and Bell JJ observed (at 258–9): If a person was convicted by a court-martial, the proceedings were automatically to be reviewed (s 152) by an officer appointed (s 150) by a chief of staff as a reviewing authority. In addition, a person convicted by a court-martial could petition (s 153) for review of the proceedings by a reviewing authority. A review by a reviewing authority did not prevent a further review of the proceedings by a chief of staff ‘if it appears to him that there are sufficient grounds for a further review’ (s 155(1)). On review, whether by a reviewing authority or a chief of staff, the conviction could be quashed (s 158), a new trial could be ordered (s 160), conviction for an alternative offence could be substituted (s 161), or in some cases the punishment imposed could be quashed (s 169). The grounds upon which a reviewing authority could exercise these powers were limited. The limits were expressed in terms very like those found in common form criminal appeal statutes. So, for example, s 158(1) of the DFDA obliged a reviewing authority to quash a court-martial conviction if it appeared (among other things) that ‘the conviction is unreasonable, or cannot be supported, having regard to the evidence’, or that, ‘as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred’. And reviewing authorities were bound (s 154(1)) to obtain a report on the proceedings from a legal officer, and bound (s 154(2)) by any opinion on a question of law set out in the report. But the point of present importance to be observed is that the final decision about guilt or punishment was not made by the court-martial; the

final decision about those matters was made within the chain of command of the forces.

Their Honours then explained, by reference to the past system of courts martial, that the AMC now enforced a system of military discipline independent of the chain of command. This arrangement could not be supported by s 51(vi) (at 261): Courts-martial were convened only by order from within the chain of command; conclusions of guilt and determinations of punishment were subject to review or confirmation within that chain of command. A court-martial did not make a binding and authoritative decision of guilt or determination of punishment. A court-martial did not enforce its decisions. Enforcement of any decision, other than acquittal of the accused, depended upon the outcome of review of the decision within the chain of command. But a central purpose of the creation of the AMC was to have the new body make binding and authoritative decisions of guilt and determinations about punishment which, without further intervention from within the chain of command, would be enforced.

French CJ and Gummow J also delivered a joint judgment to this effect: at 248–50. Because the AMC exercised the ‘judicial power of the Commonwealth’, it was required to comply with Ch III of the Constitution. It obviously did not. Military judges (with fixed 10-year terms) did not have security of tenure as required by s 72 of the Constitution: at 237 per Gleeson CJ and Gummow J; at 251 per Hayne, Heydon, Crennan, Kiefel and Bell JJ. [page 642] 22.33 After the High Court’s decision in Lane v Morrison (2009) 239 CLR 230, the Commonwealth Parliament enacted two pieces of legislation: the Military Justice (Interim Measures) Act (No 1) 2009 (Cth) and the Military Justice (Interim Measures) Act (No 2) 2009 (Cth). The first law restored the previous system of military service tribunals that had existed before the establishment of the AMC. The

second law, which was challenged in Haskins v Commonwealth (2011) 244 CLR 22, purported to preserve the disciplinary sanctions (that is, punishments) imposed by the AMC during 2008 and part of 2009. Importantly, the law did not purport to validate convictions imposed by the AMC; rather, it sought to impose disciplinary sanctions corresponding to punishments imposed by the AMC: at 30. Prior to the court’s decision in Lane, Able Seaman Haskins was convicted by the AMC of misusing a Defence Travel Card on 11 December 2008 and served 25 days in detention at a correctional centre. The plaintiff later brought proceedings against the Commonwealth, alleging that he had been falsely imprisoned. The court (Heydon J dissenting) dismissed the plaintiff’s submission that provisions of the Act usurped judicial power (at 35–7 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) or constituted a bill of pains and penalties (at 37). The plaintiff’s premise was based on an erroneous assumption that punishments could be imposed only in the exercise of the judicial power of the Commonwealth. As the joint judgment noted, the court has long upheld the validity of legislation permitting service tribunals (non-Ch III courts) to impose punishments on defence force members for service offences (at 35–6). As long as the military tribunal imposes and maintains discipline within the defence force (that is, where decisions are amenable to review from within the chain of command), there is no exercise of federal judicial power: 21 Legislation permitting service tribunals to punish service members has been held to be valid on the footing that there is, in such a case, no exercise of the judicial power of the Commonwealth. Punishment of a member of the defence force for a service offence, even by deprivation of liberty, can be imposed without exercising the judicial power of the Commonwealth. Because the decisions made by courts martial and other service tribunals are amenable to intervention from within the chain of command, the steps that are taken to punish service members are taken only for the purpose of, and constitute no more than, the imposition and maintenance of discipline within the defence force; they are not steps taken in exercise of the judicial power of the Commonwealth.

Preparation for war 22.34 Just as the scope of the defence power contracts following a period of post-war regulation, receding to its primary aspect in peacetime, it expands again in the event of deteriorating international conditions. In this phase, laws are supported by the secondary aspect of s 51(vi). As Fullagar J said in Australian Communist Party v Commonwealth (1951) 83 CLR 1, the secondary aspect may come into existence ‘upon the commencement or immediate apprehension of war’. However, in a ‘world of uncertain and rapidly changing international situations’ it may well ‘arise in some degree upon circumstances which fall short of an immediate apprehension of war’: at 254. What is clear is that the threat of impending conflict justifies preparations for war. Like it does in wartime, the High Court must apprise [page 643] itself of factual conditions (revealing the rising state of international tension) by taking judicial notice of ‘public events of the times’: Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177 at 219–20 per Dixon CJ. This indicates that as the gravity of the situation increases, ‘the scope of what is complementary to the defence power’ becomes progressively enlarged: at 255 per Fullagar J. In Marcus Clark, regulations prescribed that capital borrowings and share issues were subject to the Treasurer’s consent. The intention was to direct available economic and financial resources to defence preparations, given the state of international emergency in Korea. At the time, Australian troops were actively engaged in the war, having participated in major conflicts at Kapyong and Maryang San (as a result of major offensives launched by Chinese communists from

April 1951). The High Court was entitled to take judicial notice of the disturbed international situation, as well as the Treasurer’s statement (provided in accordance with reg 17 of the Capital Issues Regulations) which shed light on the distressed state of the domestic economy: at 220 per Dixon CJ; at 230 per McTiernan J; at 237 per Williams J; at 255 per Fullagar J. 22.35 In contrast to Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177, no facts could be judicially noticed in Australian Communist Party v Commonwealth (1951) 83 CLR 1, which supported legislation purporting to dissolve the Communist Party and forfeit its property to the Commonwealth. The legislation in question, the Communist Party Dissolution Act 1950 (Cth), commenced with a series of ‘recitals’. The first three recitals nominated the legislative powers on which the Commonwealth would rely (that is, s 51(vi) and ss 61 and 51(xxxix) of the Constitution). The remaining recitals provided very broad assertions about the threat posed by the Australian Communist Party (ACP), in order to establish the relationship between the provisions of the Act and the subject of defence: for example, that the ACP, in accordance with the basic theory of communism (as expounded by Marx and Lenin), engaged in activities designed to assist or accelerate the coming of a revolutionary situation (‘fourth recital’); that it engaged in activities designed to facilitate the overthrow of the established system of government of Australia (‘fifth recital’); that it engaged in espionage and sabotage and activities of a treasonable or subversive nature (‘sixth recital’); and that it dislocated or disrupted production or work in certain industries vital to the security and defence of Australia (‘seventh’ and ‘eighth recitals’). The substantive provisions of the Act then purported to dissolve the ACP and appoint a receiver of its property (s 4); proscribe affiliated organisations (s 5); and consequently authorise the dissolution of the body (s 6) and appoint a receiver of its property (s 8). An organisation could be

declared unlawful (s 5(2)) if it satisfied one of the grounds in s 5(1). The body could apply for an order to set aside the declaration, but only on the basis that it was not a body to which the section applied (s 5(4)). This effectively meant that the body could only challenge the declaration if it did not fall within s 5(1); not that its continuance would be prejudicial to the security and defence of the Commonwealth, or to the execution and maintenance of the Constitution or of the laws of the Commonwealth. In addition, individuals could be declared ‘communists’ if they were members of the ACP (s 9(1)) or if they otherwise supported or advocated the ‘objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin’ (s 3); and the Governor-General [page 644] was satisfied that the person was engaged, or was likely to engage, in activities prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth (s 9(2)). Once an individual was declared a ‘communist’, they were precluded from Commonwealth employment and holding office in an industrial organisation or an industry considered vital to the security and defence of Australia (s 10). Communists already holding such positions would cease to be employed and be deemed to have resigned (ss 11 and 12). The same review process applied (s 9(4)). The High Court (Latham CJ dissenting) held the Communist Party Dissolution Act 1950 (Cth) to be invalid. On one hand, the legislation was held to fall outside the scope of s 51(vi). Australian troops had been deployed to Korea but the conflict was in its very early stages. The scope of s 51(vi) was said to be one of ostensible peace (at 196, 202

per Dixon J), rather than war or imminent apprehension of war. This did not support the significant curtailment of civil liberties imposed by the legislation. The prevailing international conditions did not give rise to the same kind of necessities as during a perilous war: that is, ‘the necessity of organizing the resources of the nation in men and materials, of controlling the economy of the country, of employing the full strength of the nation and co-ordinating its use, of raising, equipping and maintaining forces on a scale formerly unknown and of exercising the ultimate authority in all that the conduct of hostilities implies’ (at 202). The date at which the validity of the legislation was considered was 20 October 1950, the date it received the royal assent. The scale of hostilities at this time did not warrant the extended operation of the defence power. Dixon J remarked (at 196): At the date of the royal assent Australian forces were involved in the hostilities in Korea, but the country was not of course upon a war footing, and, though the hostilities were treated as involving the country in a contribution of force, the situation bore little relation to one in which the application of the defence power expands because the Executive Government has become responsible for the conduct of a war. I think that the matter must be considered substantially upon the same basis as if a state of peace ostensibly existed.

Fullagar J likewise said: ‘one cannot judicially notice in this case a state of affairs which would justify holding a measure having the peculiar features of the Communist Party Dissolution Act valid as an exercise of an extended defence power’ (at 268). It seems that the dissolution of voluntary associations and receivership of their property, in a period falling short of war or imminent apprehension of war, cannot be justified by s 51(vi). McTiernan J, with this in mind, observed that parliament had no power to make laws for the ‘general control of civil liberties’ considered incidental to the purpose of defence in peacetime: at 206. It was pointed out, however, that the legislation might have been supported by s 51(vi) had it been enacted in wartime: at 202 per Dixon J; at 206, 208 per McTiernan J; at 255–6

per Fullagar J. In dissent, Latham CJ discerned the necessary connection between the provisions of the Act and the threat that communism posed to Australia (at 141–2, 155–6): The preservation of the existence of the Commonwealth and of the Constitution of the Commonwealth takes precedence over all other matters with which the

[page 645] Commonwealth is concerned. As Cromwell said, ‘Being comes before well-being’. The Parliament of the Commonwealth and the other constitutional organs of the Commonwealth cannot perform their functions unless the people of the Commonwealth are preserved in safety and security. … The Court may, I think, allow itself to be sufficiently informed of affairs to be aware that any peace which now exists is uneasy and is considered by many informed people to be very precarious, and that many of the nations of the world (whether rightly or wrongly) are highly apprehensive. To say that the present condition of the world is one of ‘peace’ may not unfairly be described as an unreal application of what has become an outmoded category. The phrases now used are ‘incidents’, ‘affairs’, ‘police action’, ‘cold war’. The Government and Parliament do not regard the present position as one of perfect peace and settled security, and they know more about it than the courts can possibly know as the result of considering legally admissible evidence. I have already referred to the authorities which show that neither the technical existence of war nor actual fighting is a condition of the exercise of the defence power. At the present time the Government of Australia is entitled, in my opinion, under the defence power to make preparations against the risk of war and to prepare the community for war by suppressing, in accordance with a law made by Parliament, bodies believed by Parliament to exist for the purpose (inter alia) of prejudicing the defence of the community and imperilling its safety.

There was some belated support for Latham CJ’s judgment in Thomas v Mowbray (2007) 233 CLR 307 at 505–6 per Callinan J. Apart from the legislation not falling within the scope of the defence power, the Act was objectionable for another reason. The parliament effectively arrogated power to itself to conclusively

determine that associated bodies and individuals prejudiced the security and defence of the Commonwealth, or the execution or maintenance of the Constitution or of the laws of the Commonwealth: ss 5(2) and 9(2). A body or person could only challenge a declaration on the basis that they were not bodies or persons to which the section applied (that is, they did not support or advocate communism). They could not challenge the declaration of the Governor-General that they prejudiced the security and defence of the Commonwealth, etc. This determination was conclusive. It purported to give the government full authority to determine who was prejudicial to the security and defence of the Commonwealth, without necessary recourse to facts to independently verify that conclusion. The parliament simply declared the extent of the threat of communism, in order to establish the relationship between the Act and the defence power. These recitals, however, amounted to no more than a legislative opinion of the danger of communism. The substantive provisions of the Act removed the function of courts (that is, the High Court and the state and territory Supreme Courts) to take judicial notice of facts to determine if affiliated bodies and individuals were, in fact, prejudicial to the security and defence of the Commonwealth. The limited provision for judicial review was noted by the members of the majority. McTiernan J remarked that the court ‘could not allow the opinion of Parliament to be the decisive factor’, to ‘determine the matter finally and conclusively’; otherwise the court has deserted its own duty under the Constitution: at 207. Kitto J conceded that the Act would not pose a problem in a unitary system of government, but found that ‘under a Federal system the central legislature [page 646]

is equipped with limited powers only, and the duty is cast upon the courts to determine whether laws which that legislature thinks necessary for the security of the country are within the scope of its powers’: at 271. Williams J noted, with respect to facts, that it was the ‘duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation’: at 222. Fullagar J discussed the doctrine of judicial review in most detail, holding that ‘the supposed Act could not be held valid except on the basis of facts, proved or judicially noticed, to connect it with power’: at 262. This is a responsibility undertaken by courts, not the parliament. It is for courts to determine the existence of facts and, ultimately, whether the law is within legislative power. Fullagar J observed (at 258): The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity. A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.

The doctrine of judicial review safeguards the independence of federal courts. The principle was established in the seminal United States case of Marbury v Madison 5 US 137 (1803). Fullagar J accepted this principle as ‘axiomatic’. In this constitutional system, it is the courts, rather than the legislature itself, that has the function of finally deciding whether an Act of a legislature is or is not within power: at 262. 22.36 If the Communist Party case ((1951) 83 CLR 1) was decided during a period of uneasy peace, Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177 was decided during a time of escalating international tension falling just short of declared war. Eighteen months had elapsed and Australia was now solidly entrenched in the Korean conflict. With the economy in a precarious

position, the parliament enacted the Defence Preparations Act 1951 (Cth), which authorised the making of regulations for defence preparations (s 4(1)). This included a power to make regulations for or in relation to the diversion and control of resources (including money, materials and facilities) for the purposes of defence preparations: s 4(2)(b). Similarly to the Communist Party Dissolution Act 1950 (Cth), the Act contained a number of recitals which, inter alia, disclosed ‘a state of international emergency in which it is essential that preparations for defence should be immediately made to an extent, and with a degree of urgency, not hitherto necessary except in time of war’ (‘second recital’). Acting pursuant to s 4, the Governor-General made the Defence Preparations (Capital Issues) Regulations 1951 (Cth). Regulation 6 prohibited a company from making an issue of authorised capital exceeding a certain amount without the consent of the Treasurer. Other regulations purported to restrict the issue of securities without the consent of the Treasurer. The plaintiff, Marcus Clark & Co, was a large department store chain in New South Wales that wished to raise a mortgage and issue shares ‘to repair and remodel its buildings so as to increase the volume of its business’: at 231 per Williams J. The plaintiff sought the consent of the Treasurer, but this was refused (reg 16). [page 647] Regulation 17(3) made provision for a person to ‘apply to the court for an order directing the Treasurer to state in writing the facts and matters by reason of which the refusal of consent… was for purposes of or in relation to defence preparations’. Delivery of a statement by the Treasurer, setting out the facts and matters by which the Treasurer reached his decision, was ordered by McTiernan J. The statement was duly provided by the Treasurer. It explained that there existed an

unmistakable danger of a general war involving Australia and that Australia had to be prepared for possible mobilisation by the end of 1953 (at 182). It further set out information on the numbers of persons engaged on defence, the amount of expenditure directed to defence, the progressive absorption of resources spent on defence activities, the serious shortages of labour in industries and the extremely scarce availability of resources generally. It concluded that the proposed activities of the plaintiff would impede the diversion of funds, materials and manpower required for the government’s defence preparations. The plaintiff argued that the Act and the regulations were not supported by the defence power. The court, by a majority of 4:2 (Williams and Kitto J dissenting), upheld the validity of the Act and the regulations. The restriction placed upon companies raising money and issuing shares was deemed to be with respect to defence within the meaning of s 51(vi) of the Constitution. Unlike the invalidated measures in the Communist Party case, the regulations provided for judicial review of the Treasurer’s decision. On this issue, Dixon CJ said (at 215): … this case does afford objective tests by which its connection, or want of connection, with the defence power may be seen or ascertained; its provisions do specify a course to be pursued and considerations and purposes to be effectuated the operation and practical consequences of which will show whether the measure does tend or might reasonably be considered to conduce to or to promote or to advance the defence of the Commonwealth. On its face it is directed against the raising of money in a way which the Treasurer judges to be prejudicial to purposes that are described as purposes for or in relation to defence preparations, the scope and meaning of the term ‘defence preparations’ being made sufficiently clear. The judicial remedies available to ensure that the judgment or discretion of the Treasurer does not go beyond what is the true scope and meaning of ‘defence preparations’ may or may not prove adequate to the purpose but at all events it is the intention of the regulations that his determination of that question should not be conclusive.

Dixon CJ then held that the regulations fell within the scope of the pre-war defence power (also note that the law was connected to a ‘defence’ purpose):

… the true scope and object of the regulations is to stop the use of capital, raised by the means which they describe, for purposes tending to prejudice the full development or execution of the defence preparations undertaken. This in itself may not be enough to show that the regulations must be within power. But it shows that they are addressed to the subject matter of the legislative power. If the material provisions of the regulations were of a description which could not reasonably be considered as calculated to promote any object within the defence power, the purpose of the subordinate legislature might not suffice to support them. But, as it has been attempted to show, according to common understanding of the place the control of capital issues takes when it is necessary to counter the inflationary effects produced by arming for war, the connection is definite and real: it is not too remote or speculative.

[page 648] In another point of departure from the Communist Party case, there were facts of which the court could take judicial notice. For one thing, the Korean conflict escalated following China’s ‘Spring Offensive’ in April 1951, which included the Battles of Imjin River and Kapyong. The court also took judicial notice of the Treasurer’s statement, which revealed growing levels of inflation and shortages of materials and manpower. These factual conditions supported substantial controls over the domestic economy. Dixon CJ observed (at 220): In the same way we have figures as to the availability and use of manpower and the unfulfilled demands made upon it as at or about the date of the regulations. We are similarly informed too of what we are allowed judicially to know and do know, namely the existence as at that time of a condition of the national economy of excessive inflation marked by progressively rising prices and other indications of the pressure of a disproportionately high purchasing power creating a demand in excess of the available supply, at stable prices, of consumption goods. To embark, in these circumstances upon any defence programme involving substantial increases in the numbers of the armed services and in the volume of arms equipment and other warlike supplies and calling for the diversion of men and material to defence projects, would be regarded as not only adding new and rival demands to those already existing but as involving new government expenditure increasing the pressure of purchasing power.

As to the marked inflationary pressures (which occupied Part V of the Treasurer’s statement), McTiernan J added (at 230):

The Parliament has further declared in the preamble that in the present circumstances, the armed strength of the country cannot be increased to dimensions proportionate to the emergency without the diversion of money and other resources of Australia for use in or in connection with defence. These circumstances include the state of the country’s economy. The Court may judicially notice that at the time the Defence Preparations Act was passed, the economy was subject to unhealthy inflationary pressures. If the industrial activity needed to carry out the defence effort which Parliament contemplated, were simply superimposed upon the economy without taking measures to meet the new demands upon it, there would be a strain on the country’s resources which could not but be a hindrance to carrying out the defence effort. Regulations 6, 10 and 17 are well adapted to the purpose of reducing, at any rate, to a substantial degree the added inflationary pressure which the defence effort would apply to the economy. As this consequence would detrimentally affect the progress of the war effort, the avoidance of the consequence is incidental to defence.

Characterisation 22.37 It was established at 22.11 that s 51(vi) is a purposive power. It was also said (at 22.14) that, in order for a law to be characterised as one with respect to s 51(vi), it must be regarded as a reasonable means of achieving a ‘defence’ purpose. For the connection between a challenged law and the defence of the Commonwealth must be ‘real’. Primary defence laws have a clear defence purpose and are easy to justify. The connection is self-evident. But secondary defence laws may be harder to justify, because they might not operate directly upon the subject of defence, but are necessarily called for by ‘the times’. Secondary defence laws may be called for in wartime, in the aftermath of war, or where war is perceived as imminent. Numerous examples have been provided in the corresponding sections [page 649] of this chapter. The point is that a law, having no apparent relation to ‘defence’, may be supported by s 51(vi) where it is considered reasonably necessary to serve ‘defence’ purposes. As the appreciable

test of characterisation is not one of ‘sufficient connection’ but ‘proportionality’, it is important to assess the causative effect of the law. Does it substantially aid defence? Is it adapted to the achievement of a ‘defence’ purpose? ‘Proportionality’ is an elusive concept, but two early attempts were made to devise a test to characterise s 51(vi) laws. The first was made by Williams J in Australian Communist Party v Commonwealth (1951) 83 CLR 1: a court must determine if ‘it was reasonably necessary to legislate with respect to such conduct in the interests of defence and whether such means were reasonably appropriate for the purpose’ (at 225). The second attempt was made by McTiernan J in Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177: ‘The defence power authorises the Parliament to take such measures as are proportionate to the end for which the Constitution created the defence power’ (at 226). But what is the current test of characterisation for s 51(vi) laws? In Polyukhovich v Commonwealth (1991) 172 CLR 501, it was considered to be one of ‘reasonable proportionality’: at 592 per Brennan J. Accordingly, the defence power will support a law which is ‘reasonably capable of being considered appropriate and adapted to the purpose of defence’: at 592–3 per Brennan J (see also at 697 per Gaudron J).

Limits on the power? 22.38 Because s 51(vi) is expressed to be ‘subject to’ the Constitution, it is subject to express or implied limitations contained in, or arising from, the Constitution. This has been held to apply with respect to s 51(xxxi) (Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v Commonwealth (1943) 67 CLR 314 at 317–8 per Latham CJ; at 325 per Starke J; at 331 per Williams J; Minister of State for the Army v

Dalziel (1944) 68 CLR 261 at 293–4 per McTiernan J); s 92 (Gratwick v Johnson (1945) 70 CLR 1 at 10–11 per Latham CJ; at 17 per Starke J; at 21 per McTiernan J); and s 116 (Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 at 123 per Latham CJ; at 156 per McTiernan J). The defence power is also subject to the implied Melbourne Corporation principle: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 74 per Starke J (see also at 66 per Rich J). Clearly it is the case, as Latham CJ remarked in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Victoria (1942) 66 CLR 488, that the defence power should ‘not be construed as an unlimited legislative power. It should be interpreted upon the same principle as that which is applied to other constitutional powers’: at 509.

[page 651]

Commonwealth of Australia Constitution Act (‘the Constitution’) An Act to constitute the Commonwealth of Australia [9th July 1900] WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen: Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1

Short title [ see Note 1] This Act may be cited as the Commonwealth of Australia Constitution Act.

2

Act to extend to the Queen’s successors The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.

3

Proclamation of Commonwealth [see Note 2] It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth. [page 652]

4

Commencement of Act The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

5

Operation of the Constitution and laws [see Note 3] This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

6

Definitions The Commonwealth shall mean the Commonwealth of Australia as established under this Act. The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State. Original States shall mean such States as are parts of the Commonwealth at its establishment.

7

Repeal of Federal Council Act [see Note 4] The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.

8

Application of Colonial Boundaries Act After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.

9

Constitution [see Note 1] The Constitution of the Commonwealth shall be as follows: [page 653]

The Constitution This Constitution is divided as follows: Chapter

I—The Parliament

Part

I—General

Part

II—The Senate

Part

III—The House of Representatives

Part

IV—Both Houses of the Parliament

Part

V—Powers of the Parliament

Chapter

II—The Executive Government

Chapter

III—The Judicature

Chapter

IV—Finance and Trade

Chapter

V—The States

Chapter

VI—New States

Chapter

VII—Miscellaneous

Chapter

VIII—Alteration of the Constitution

The Schedule

Chapter I—The Parliament Part I—General 1

Legislative power The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth.

2

Governor-General A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

3

Salary of Governor-General There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an

[page 654] annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. The salary of a Governor-General shall not be altered during his continuance in office.

4

Provisions relating to Governor-General The provisions of this Constitution relating to the Governor-General extend and apply to the GovernorGeneral for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth.

5

Sessions of Parliament. Prorogation and dissolution The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives. Summoning Parliament After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs. First session The Parliament shall be summoned to meet not later than

six months after the establishment of the Commonwealth.

6

Yearly session of Parliament There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

Part II—The Senate 7

The Senate [see Note 5] The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate. Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or [page 655] diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.

The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.

8

Qualification of electors The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

9

Method of election of senators [see Note 6] The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State. Times and places [see Note 6] The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

10

Application of State laws Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.

11

Failure to choose senators The Senate may proceed to the despatch of business,

notwithstanding the failure of any State to provide for its representation in the Senate.

12

Issue of writs The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution.

13

Rotation of senators As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of the third year three years, and the places of those of the second class at the expiration of the sixth year [page 656] six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service. The election to fill vacant places shall be made in the year at the expiration of which within one year before the places are to become vacant. For the purposes of this section the term of service of a senator shall be taken to begin on the first day of January

July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of January July preceding the day of his election.

14

Further provision for rotation [see Note 7] Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation.

15

Casual vacancies If the place of a senator becomes vacant before the expiration of his term of service, the House of Parliament of the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter provided, whichever first happens. But if the Houses of Parliament of the State are not in session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State, or until the election of a successor, whichever first happens. At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the

date of his election until the expiration of the term. The name of any senator so chosen or appointed shall be certified by the Governor of the State to the GovernorGeneral.

15

Casual vacancies [see Note 8] If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from [page 657] the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens. Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in

consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party. Where: (a) in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and (b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist); he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution. The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General. If the place of a senator chosen by the people of the State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State had become vacant after that commencement.

A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, shall be deemed to have been appointed to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State that commenced or commences after he was appointed and further action under this section shall be taken as if the vacancy in the place of the senator chosen by the people of the State had occurred after that commencement. Subject to the next succeeding paragraph, a senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 who was chosen by the House or Houses of Parliament [page 658] of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office until the expiration of the term of service of the senator elected by the people of the State. If, at or before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, a law to alter the Constitution entitled “Constitution Alteration (Simultaneous Elections) 1977” came into operation, a senator holding office at the commencement of that law

who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office: (a) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and seventy-eight— until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law came into operation; or (b) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and eighty-one—until the expiration or dissolution of the second House of Representatives to expire or be dissolved after that law came into operation or, if there is an earlier dissolution of the Senate, until that dissolution.

16

Qualifications of senator The qualifications of a senator shall be the same as those of a member of the House of Representatives.

17

Election of President The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President. The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of

the Senate, or he may resign his office or his seat by writing addressed to the Governor-General.

18

Absence of President Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.

19

Resignation of senator A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant. [page 659]

20

Vacancy by absence The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate.

21

Vacancy to be notified Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

22

Quorum Until the Parliament otherwise provides, the presence of at

least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.

23

Voting in the Senate Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

Part III—The House of Representatives 24

Constitution of House of Representatives The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner: (i)

a quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators;

(ii) the number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such

division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State. But notwithstanding anything in this section, five members at least shall be chosen in each Original State. [page 660]

25

Provision as to races disqualified from voting For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

26

Representatives in first Parliament Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election shall be as follows: New South Wales ……….. twenty-three; Victoria……………………….. twenty; Queensland ………………… eight; South Australia…………… six; Tasmania…………………….. five; Provided that if Western Australia is an Original State, the numbers shall be as follows: New South Wales ……….. twenty-six;

Victoria……………………….. twenty-three; Queensland ………………… nine; South Australia…………… seven; Western Australia……….. five; Tasmania…………………….. five.

27

Alteration of number of members Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives.

28

Duration of House of Representatives Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.

29

Electoral divisions [see Note 9] Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States. In the absence of other provision, each State shall be one electorate. [page 661]

30

Qualification of electors

Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.

31

Application of State laws Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.

32

Writs for general election The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives. After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

33

Writs for vacancies Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.

34

Qualifications of members Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows: (i)

he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;

(ii) he must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

35

Election of Speaker The House of Representatives shall, before proceeding to the despatch of any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker. [page 662] The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General.

36

Absence of Speaker Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.

37

Resignation of member A member may by writing addressed to the Speaker, or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

38

Vacancy by absence The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House.

39

Quorum Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.

40

Voting in House of Representatives Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

Part IV—Both Houses of the Parliament

41

Right of electors of States No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

42

Oath or affirmation of allegiance Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.

43

Member of one House ineligible for other A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House. [page 663]

44

Disqualification Any person who: (i)

is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any

offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or (iii) is an undischarged bankrupt or insolvent; or (iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or (v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

45

Vacancy on happening of disqualification If a senator or member of the House of Representatives: (i)

becomes subject to any of the disabilities mentioned in the last preceding section; or

(ii) takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or

(iii) directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State; his place shall thereupon become vacant.

46

Penalty for sitting when disqualified Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction. [page 664]

47

Disputed elections Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.

48

Allowance to members Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

49

Privileges etc. of Houses The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

50

Rules and orders Each House of the Parliament may make rules and orders with respect to: (i)

the mode in which its powers, privileges, and immunities may be exercised and upheld;

(ii) the order and conduct of its business and proceedings either separately or jointly with the other House.

Part V—Powers of the Parliament 51

Legislative powers of the Parliament [see Notes 10 and 11] The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) trade and commerce with other countries, and among the States; (ii) taxation; but so as not to discriminate between States or parts of States; (iii) bounties on the production or export of goods, but so that such bounties shall be uniform

throughout the Commonwealth; (iv) borrowing money on the public credit of the Commonwealth; (v) postal, telegraphic, telephonic, and other like services; (vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;

[page 665]

(vii) lighthouses, lightships, beacons and buoys; (viii) astronomical and meteorological observations; (ix) quarantine; (x) fisheries in Australian waters beyond territorial limits; (xi) census and statistics; (xii) currency, coinage, and legal tender; (xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; (xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) weights and measures; (xvi) bills of exchange and promissory notes;

(xvii) bankruptcy and insolvency; (xviii) copyrights, patents of inventions and designs, and trade marks; (xix) naturalization and aliens; (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) marriage; (xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiii)

invalid and old-age pensions;

(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; (xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; (xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; (xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws; (xxvii) immigration and emigration; (xxviii) the influx of criminals;

(xxix) external affairs; (xxx) the relations of the Commonwealth with the islands of the Pacific; (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;

[page 666]

(xxxii)

the control of railways with respect to transport for the naval and military purposes of the Commonwealth;

(xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State; (xxxiv) railway construction and extension in any State with the consent of that State; (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; (xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;

(xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

52

Exclusive powers of the Parliament The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i)

the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;

(ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth; (iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.

53

Powers of the Houses in respect of legislation Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a

proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment [page 667] or appropriation of fees for licences, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

54

Appropriation Bills The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall

deal only with such appropriation.

55

Tax Bill Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.

56

Recommendation of money votes A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.

57

Disagreement between the Houses If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives

simultaneously. [page 668] But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent.

58

Royal assent to Bills When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure. Recommendations by Governor-General The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.

59

Disallowance by the Queen The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

60

Signification of Queen’s pleasure on Bills reserved A proposed law reserved for the Queen’s pleasure shall not have any force unless and until within two years from the day on which it was presented to the GovernorGeneral for the Queen’s assent the Governor-General makes known, by speech or message to each of the [page 669]

Houses of the Parliament, or by Proclamation, that it has received the Queen’s assent.

Chapter II—The Executive Government 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.

62

Federal Executive Council There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

63

Provisions referring to Governor-General The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.

64

Ministers of State The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the

Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth. Ministers to sit in Parliament After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

65

Number of Ministers Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.

66

Salaries of Ministers There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year. [page 670]

67

Appointment of civil servants Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law

of the Commonwealth to some other authority.

68

Command of naval and military forces The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

69

Transfer of certain departments On a date or dates to be proclaimed by the GovernorGeneral after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth: posts, telegraphs, and telephones; naval and military defence; lighthouses, lightships, beacons, and buoys; quarantine. But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

70

Certain powers of Governors to vest in GovernorGeneral In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers

under the Commonwealth, as the case requires.

Chapter III—The Judicature 71

Judicial power and Courts The judicial power of the Commonwealth 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 other 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. [page 671]

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 the 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. The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy

years, and a person shall not be appointed as a Justice of the High Court if he has attained that age. The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment. A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General. Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions. A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High

Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation. [page 672]

73

Appellate jurisdiction of High Court The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences: (i)

of any Justice or Justices exercising the original jurisdiction of the High Court;

(ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) of the Inter-State Commission, but as to questions of law only; and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from

the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

74

Appeal to Queen in Council [see Note 12] No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure. [page 673]

75

Original jurisdiction of High Court In all matters: (i)

arising under any treaty;

(ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.

76

Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i)

arising under this Constitution, or involving its interpretation;

(ii) arising under any laws made by the Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject-matter claimed under the laws of different States.

77

Power to define jurisdiction With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i)

defining the jurisdiction of any federal court other than the High Court;

(ii) defining the extent to which the jurisdiction of any

federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) investing any court of a State with federal jurisdiction.

78

Proceedings against Commonwealth or State The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

79

Number of judges The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

80

Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in [page 674] 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.

Chapter IV—Finance and Trade 81

Consolidated Revenue Fund All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form

one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

82

Expenditure charged thereon The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth.

83

Money to be appropriated by law No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law. But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament.

84

Transfer of officers When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth. Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity,

or other compensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part [page 675] thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer. Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth.

85

Transfer of property of State When any department of the public service of a State is

transferred to the Commonwealth: (i)

all property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary;

(ii) the Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth; (iii) the Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament; (iv) the Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred.

86

[Customs, excise, and bounties] [see Note 13] On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth.

87

[Revenue from customs and excise duties] [see Note 13] During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one-fourth shall be applied annually by the Commonwealth towards its expenditure. [page 676] The balance shall, in accordance with this Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth.

88

Uniform duties of customs Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth.

89

Payment to States before uniform duties Until the imposition of uniform duties of customs: (i)

the Commonwealth shall credit to each State the revenues collected therein by the Commonwealth;

(ii) the Commonwealth shall debit to each State: (a) the expenditure therein of the Commonwealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the State to the Commonwealth;

(b) the proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth; (iii) the Commonwealth shall pay to each State month by month the balance (if any) in favour of the State.

90

Exclusive power over customs, excise, and bounties On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise.

91

Exceptions as to bounties Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods.

92

Trade within the Commonwealth to be free On the imposition of uniform duties of customs, trade,

commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. [page 677] But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

93

Payment to States for five years after uniform tariffs During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides: (i)

the duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State;

(ii) subject to the last subsection, the Commonwealth shall credit revenue, debit expenditure, and pay balances to the several States as prescribed for the period

preceding the imposition of uniform duties of customs.

94

Distribution of surplus After five years from the imposition of uniform duties of customs, the Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth.

95

Customs duties of Western Australia Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not originally imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth. But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and onefifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties. If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected

[page 678] on the goods when imported into Western Australia from beyond the limits of the Commonwealth.

96

Financial assistance to States During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

97

Audit Until the Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an officer of the Commonwealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned.

98

Trade and commerce includes navigation and State railways The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.

99

Commonwealth not to give preference The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

100 Nor abridge right to use water The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

101 Inter-State Commission There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

102 Parliament may forbid preferences by State The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due [page 679] regard being had to the financial responsibilities incurred

by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission.

103 Commissioners’ appointment, tenure, and remuneration The members of the Inter-State Commission: (i)

shall be appointed by the Governor-General in Council;

(ii) shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the 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 such remuneration shall not be diminished during their continuance in office.

104 Saving of certain rates Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States.

105 Taking over public debts of States The Parliament may take over from the States their public debts as existing at the establishment of the

Commonwealth, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States.

105A Agreements with respect to State debts (1) The Commonwealth may make agreements with the States with respect to the public debts of the States, including: (a) the taking over of such debts by the Commonwealth; (b) the management of such debts; (c) the payment of interest and the provision and management of sinking funds in respect of such debts; [page 680] (d) the consolidation, renewal, redemption of such debts;

conversion,

and

(e) the indemnification of the Commonwealth by the States in respect of debts taken over by the Commonwealth; and

the borrowing of money by the States or by the (f) Commonwealth, or by the Commonwealth for the States. (2) The Parliament may make laws for validating any such agreement made before the commencement of this section. (3) The Parliament may make laws for the carrying out by the parties thereto of any such agreement. (4) Any such agreement may be varied or rescinded by the parties thereto. (5) Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State. (6) The powers conferred by this section shall not be construed as being limited in any way by the provisions of section one hundred and five of this Constitution.

Chapter V—The States 106 Saving of Constitutions The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

107 Saving of Power of State Parliaments

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

108 Saving of State laws Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State. [page 681]

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.

110 Provisions referring to Governor The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer

or administrator of the government of the State.

111 States may surrender territory The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

112 States may levy charges for inspection laws After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.

113 Intoxicating liquids All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

114 States may not raise forces. Taxation of property of Commonwealth or State A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the

Commonwealth impose any tax on property of any kind belonging to a State.

115 States not to coin money A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.

116 Commonwealth not to legislate in respect of religion The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting [page 682] the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

117 Rights of residents in States A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

118 Recognition of laws etc. of States Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

119 Protection of States from invasion and violence The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

120 Custody of offenders against laws of the Commonwealth Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

Chapter VI—New States 121 New States may be admitted or established The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

122 Government of territories The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent

and on the terms which it thinks fit.

123 Alteration of limits of States The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise [page 683] alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

124 Formation of new States A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

Chapter VII—Miscellaneous 125 Seat of Government The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South

Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government.

126 Power to Her Majesty to authorise GovernorGeneral to appoint deputies [see Note 14] The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.

127 Aborigines not to be counted in reckoning population In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted. [page 684]

Chapter VIII—Alteration of the Constitution 128 Mode of altering the Constitution [see Note 1] This Constitution shall not be altered except in the following manner: The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the firstmentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the

House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent. No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, Territory means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives. [page 685]

Table of Acts Act

Number and year

Date of Assent

Constitution Alteration (Senate Elections) 1906

1, 1907

3 Apr 1907

Constitution Alteration (State Debts) 1909

3, 1910

6 Aug 1910

Constitution Alteration (State Debts) 1928

1, 1929

13 Feb 1929

Constitution Alteration (Social Services) 1946

81, 1946

19 Dec 1946

Constitution Alteration (Aboriginals) 1967

55, 1967

10 Aug 1967

Constitution Alteration (Senate Casual Vacancies) 1977

82, 1977

29 July 1977

Constitution Alteration (Retirement of Judges) 1977

83, 1977

29 July 1977

Constitution Alteration (Referendums) 1977

84, 1977

29 July 1977

Table of Amendments ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected

How affected

S. 13 ……………………………………………………………….am. No. 1, 1907 S. 15 ……………………………………………………………….rs. No. 82, 1977 S. 51 ……………………………………………………………….am. No. 81, 1946; No. 55, 1967 S. 72 ……………………………………………………………….am. No. 83, 1977 S. 105 ……………………………………………………………..am. No. 3, 1910 S. 105A……………………………………………………………ad. No. 1, 1929 S. 127 ……………………………………………………………..rep. No. 55, 1967 S. 128 ……………………………………………………………..am. No. 84, 1977

[page 687]

Australia Act 1986 Act No. 142 of 1985 This compilation was prepared on 31 March 2003 Prepared by the Office of Legislative Drafting, Attorney-General’s Department, Canberra

[page 688]

Contents 1

Termination of power of Parliament of United Kingdom to legislate for Australia

…

649

2

Legislative powers of Parliaments of States

…

649

3

Termination of restrictions on legislative powers of Parliaments of States

…

649

Powers of State Parliaments in relation to merchant shipping

…

650

Commonwealth Constitution, Constitution Act and Statute of Westminster not affected

…

650

6

Manner and form of making certain State laws

…

650

7

Powers and functions of Her Majesty and Governors in respect of States

…

650

State laws not subject to disallowance or suspension of operation

…

650

State laws not subject to withholding of assent or reservation

…

651

Termination of responsibility of United Kingdom Government in relation to State matters

…

651

11

Termination of appeals to Her Majesty in Council

…

651

12

Amendment of Statute of Westminster

…

652

13

Amendment of Constitution Act of Queensland

…

652

14

Amendment of Constitution Act of Western Australia

4 5

8 9 10

…

653

Method of repeal or amendment of this Act or Statute of Westminster

…

653

16

Interpretation

…

654

17

Short title and commencement [see Note 1]

…

654

…

655

15

Notes

[page 689]

An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation WHEREAS the Prime Minister of the Commonwealth and the Premiers of the States at conferences held in Canberra on 24 and 25 June 1982 and 21 June 1984 agreed on the taking of certain measures to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation: AND WHEREAS in pursuance of paragraph 51 (xxxviii) of the Constitution the Parliaments of all the States have requested the Parliament of the Commonwealth to enact an Act in the terms of this Act: BE IT THEREFORE ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

1

Termination of power of Parliament of United Kingdom to legislate for Australia No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the

State or of the Territory.

2

Legislative powers of Parliaments of States (1) It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation. (2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

3

Termination of restrictions on legislative powers of Parliaments of States (1) The Act of the Parliament of the United Kingdom known as the Colonial Laws Validity Act 1865 shall not apply to any law made after the commencement of this Act by the Parliament of a State. (2) No law and no provision of any law made after the commencement of this Act by the Parliament of a State shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of the Parliament of the United Kingdom, or to any order, rule

[page 690] or regulation made under any such Act, and the powers of the Parliament of a State shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the State.

4

Powers of State Parliaments in relation to merchant shipping Sections 735 and 736 of the Act of the Parliament of the United Kingdom known as the Merchant Shipping Act 1894, in so far as they are part of the law of a State, are hereby repealed.

5

Commonwealth Constitution, Constitution Act and Statute of Westminster not affected Sections 2 and 3(2) above: (a) are subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth; and (b) do not operate so as to give any force or effect to a provision of an Act of the Parliament of a State that would repeal, amend or be repugnant to this Act, the Commonwealth of Australia Constitution Act, the Constitution of the Commonwealth or the Statute of Westminster 1931 as amended and in force from time to time.

6

Manner and form of making certain State laws Notwithstanding sections 2 and 3(2) above, a law made

after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

7

Powers and functions of Her Majesty and Governors in respect of States (1) Her Majesty’s representative in each State shall be the Governor. (2) Subject to subsections (3) and (4) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State. (3) Subsection (2) above does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State. (4) While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above. (5) The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State.

8

State laws not subject to disallowance or suspension of operation An Act of the Parliament of a State that has been assented to by the Governor of the State shall not, after the commencement of this

[page 691] Act, be subject to disallowance by Her Majesty, nor shall its operation be suspended pending the signification of Her Majesty’s pleasure thereon.

9

State laws not subject to withholding of assent or reservation (1) No law or instrument shall be of any force or effect in so far as it purports to require the Governor of a State to withhold assent from any Bill for an Act of the State that has been passed in such manner and form as may from time to time be required by a law made by the Parliament of the State. (2) No law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty’s pleasure thereon.

10

Termination of responsibility of United Kingdom Government in relation to State matters After the commencement of this Act Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of any State.

11

Termination of appeals to Her Majesty in Council (1) Subject to subsection (4) below, no appeal to Her Majesty in Council lies or shall be brought, whether by leave or special leave of any court or of Her Majesty in Council or

otherwise, and whether by virtue of any Act of the Parliament of the United Kingdom, the Royal Prerogative or otherwise, from or in respect of any decision of an Australian court. (2) Subject to subsection (4) below: (a) the enactments specified in subsection (3) below and any orders, rules, regulations or other instruments made under, or for the purposes of, those enactments; and (b) any other provisions of Acts of the Parliament of the United Kingdom in force immediately before the commencement of this Act that make provisions for or in relation to appeals to Her Majesty in Council from or in respect of decisions of courts, and any orders, rules, regulations or other instruments made under, or for the purposes of, any such provisions; in so far as they are part of the law of the Commonwealth, of a State or of a Territory, are hereby repealed. (3) The enactments referred to in subsection (2) (a) above are the following Acts of the Parliament of the United Kingdom or provisions of such Acts: The Australian Courts Act 1828, section 15 The Judicial Committee Act 1833 The Judicial Committee Act 1844 The Australian Constitutions Act 1850, section 28 The Colonial Courts of Admiralty Act 1890, section 6. [page 692]

(4) Nothing in the foregoing provisions of this section: (a) affects an appeal instituted before the commencement of this Act to Her Majesty in Council from or in respect of a decision of an Australian court; or (b) precludes the institution after that commencement of an appeal to Her Majesty in Council from or in respect of such a decision where the appeal is instituted: (i)

pursuant to leave granted by an Australian court on an application made before that commencement; or

(ii) pursuant to special leave granted by Her Majesty in Council on a petition presented before that commencement; but this subsection shall not be construed as permitting or enabling an appeal to Her Majesty in Council to be instituted or continued that could not have been instituted or continued if this section had not been enacted.

12

Amendment of Statute of Westminster Sections 4, 9(2) and (3) and 10(2) of the Statute of Westminster 1931, in so far as they are part of the law of the Commonwealth, of a State or of a Territory, are hereby repealed.

13

Amendment of Constitution Act of Queensland (1) The Constitution Act 1867–1978 of the State of Queensland is in this section referred to as the Principal Act. (2) Section 11A of the Principal Act is amended in subsection (3):

(a) by omitting from paragraph (a): (i)

“and Signet”; and

(ii) “constituted under Letters Patent under the Great Seal of the United Kingdom”; and (b) by omitting from paragraph (b): (i)

“and Signet”; and

(ii) “whenever and so long as the office of Governor is vacant or the Governor is incapable of discharging the duties of administration or has departed from Queensland”. (3) Section 11B of the Principal Act is amended: (a) by omitting “Governor to conform to instructions” and substituting “Definition of Royal Sign Manual”; (b) by omitting subsection (1); and (c) by omitting from subsection (2): (i)

“(2)”;

(ii) “this section and in”; and (iii) “and the expression ‘Signet’ means the seal commonly used for the sign manual of the Sovereign or the seal with [page 693] which documents are sealed by the Secretary of State in the United Kingdom on behalf of the Sovereign”. (4) Section 14 of the Principal Act is amended in subsection (2) by omitting “, subject to his performing his duty

prescribed by section 11B,”.

14

Amendment of Constitution Act of Western Australia (1) The Constitution Act 1889 of the State of Western Australia is in this section referred to as the Principal Act. (2) Section 50 of the Principal Act is amended in subsection (3): (a) by omitting from paragraph (a): (i)

“and Signet”; and

(ii) “constituted under Letters Patent under the Great Seal of the United Kingdom”; (b) by omitting from paragraph (b): (i)

“and Signet”; and

(ii) “whenever and so long as the office of Governor is vacant or the Governor is incapable of discharging the duties of administration or has departed from Western Australia”; and (c) by omitting from paragraph (c): (i)

“under the Great Seal of the United Kingdom”; and

(ii) “during a temporary absence of the Governor for a short period from the seat of Government or from the State”. (3) Section 51 of the Principal Act is amended: (a) by omitting subsection (1); and (b) by omitting from subsection (2): (i)

“(2)”;

(ii) “this section and in”; and (iii) “and the expression ‘Signet’ means the seal commonly used for the sign manual of the Sovereign or the seal with which documents are sealed by the Secretary of State in the United Kingdom on behalf of the Sovereign”.

15

Method of repeal or amendment of this Act or Statute of Westminster (1) This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner. (2) For the purposes of subsection (1) above, an Act of the Parliament of the Commonwealth that is repugnant to this Act or the Statute of Westminster 1931, as amended and in force from time to time, or to any provision of this Act or of that Statute as so amended and in force, shall, to the extent of [page 694] the repugnancy, be deemed an Act to repeal or amend the Act, Statute or provision to which it is repugnant. (3) Nothing in subsection (1) above limits or prevents the exercise by the Parliament of the Commonwealth of any powers that may be conferred upon that Parliament by any

alteration to the Constitution of the Commonwealth made in accordance with section 128 of the Constitution of the Commonwealth after the commencement of this Act.

16

Interpretation (1) In this Act, unless the contrary intention appears: appeal includes a petition of appeal, and a complaint in the nature of an appeal. appeal to Her Majesty in Council includes any appeal to Her Majesty. Australian court means a court of a State or any other court of Australia or of a Territory other than the High Court. court includes a judge, judicial officer or other person acting judicially. decision includes determination, judgment, decree, order or sentence. Governor, in relation to a State, includes any person for the time being administering the government of the State. State means a State of the Commonwealth and includes a new State. the Commonwealth of Australia Constitution Act means the Act of the Parliament of the United Kingdom known as the Commonwealth of Australia Constitution Act. the Constitution of the Commonwealth means the Constitution of the Commonwealth set forth in section 9 of the Commonwealth of Australia Constitution Act, being that Constitution as altered and in force from time to time. the Statute of Westminster 1931 means the Act of the

Parliament of the United Kingdom known as the Statute of Westminster 1931. (2) The expression a law made by that Parliament in section 6 above and the expression a law made by the Parliament in section 9 above include, in relation to the State of Western Australia, the Constitution Act 1889 of that State. (3) A reference in this Act to the Parliament of a State includes, in relation to the State of New South Wales, a reference to the legislature of that State as constituted from time to time in accordance with the Constitution Act, 1902, or any other Act of that State, whether or not, in relation to any particular legislative act, the consent of the Legislative Council of that State is necessary.

17

Short title and commencement [see Note 1] (1) This Act may be cited as the Australia Act 1986. (2) This Act shall come into operation on a day and at a time to be fixed by Proclamation. [page 695]

Notes to the Australia Act 1986 Note 1 The Australia Act 1986 as shown in this compilation comprises Act No. 142, 1985 amended as indicated in the Tables below.

Table of Acts Act

Number

Date of

Date of

Application,

Australia Act 1986

and year

Assent

commencement saving or transitional provisions

142, 1985

4 Dec 1985

(a)

Act Notes (a) Subsection 17(2) of the Australia Act 1986 provides as follows: (2) This Act shall come into operation on a day and at a time to be fixed by Proclamation. This Act came into operation on 3 March 1986 at 5.00 am Greenwich Mean Time (see Gazette 1986, No. S85).

Index References are to paragraph numbers

A Aboriginal people .… 1.4 constitutional recognition .… 9.16 Gillard Expert Panel .… 9.17 Joint Select Committee .… 9.19 Referendum Council .… 9.18, 9.20 definition .… 9.5 just terms, acquisition of property .… 11.27 native title doctrine .… 1.5 1967 constitutional amendment .… 9.7 impact of .… 9.8 not restricted purely to Aborigines .… 9.9 parliamentary supremacy .… 1.9 terra nullius doctrine .… 1.5 Acquisition of property on just terms, s 51(xxxi) .… 11.1 acquisition definition .… 11.15 genuine adjustment .… 11.17, 11.18, 11.20 just terms guarantee, relevance .… 11.19 more than deprivation .… 11.16 for third party .… 11.21 unjust .… 11.22 any acquisition of any interest in any property .… 11.8 bank nationalisation .… 11.9 just terms

acquisitions, community interests in .… 11.29 ever law must be supported by additional legislative power .… 11.30 impartial tribunal, determining .… 11.28 market relevance, and .… 11.25 question of fact .… 11.23 special nature of property considered .… 11.26 wartime contingencies .… 11.24 just terms guarantee .… 11.6 power and contingent guarantee at any time .… 11.2 national emergency .… 11.3 property assignability of right .… 11.11 choses in action .… 11.14 definition .… 11.10 features that are not rights .… 11.12, 11.13 states and state powers, effect on .… 11.4 territories and territory powers, effect on .… 11.5 AEU case .… 3.16 Air Caledonie v Commonwealth case .… 7.6 Albrecht v C of T case .… 3.21 Aliens .… 1.20, 2.21 Amicus curiae .… 20.3 Appellate jurisdiction .… 20.4 appeals .… 20.7 exceptions .… 20.6 judgments, decrees, orders and sentences .… 20.5 Appropriations, ss 81–83 Commonwealth powers .… 14.4 for the purposes of the Commonwealth .… 14.5 expenditure when appropriation valid .… 14.8

narrow interpretation .… 14.6 outside of .… 14.7 Austin v Commonwealth case .… 3.18 Australian Capital Territory see Territories Australian Loan Council .… 14.13 Australian Military Court (AMC) .… 22.32, 22.33 B Balfour Declaration .… 1.15 Business franchise licence fees .… 2.31, 7.48, 14.16 C Carbon tax .… 7.31 Characterisation conciliation and arbitration power .… 12.28, 12.29 corporations .… 8.19, 8.20 defence power .… 22.14, 22.37 excise criterion of liability approach .… 7.49, 7.50 substance approach .… 7.51–7.53 external affairs …. 10.7, 10.18, 10.27, 10.30 High Court techniques implied incidental power .… 2.22 importance .… 2.17 law versus policy .… 2.18 multiple characterisations may be possible and credible .… 2.19 purpose, relevance .… 2.21 question of degree .… 2.20 where limitations are in issue .… 2.23 race and ethnicity deemed necessary .… 9.12 manifest abuse .… 9.14

Racial Discrimination Act overrides state laws .… 9.15 special nature .… 9.11, 9.13 specific race singled out .… 9.10 taxation anti-discrimination prohibition .… 7.27 on property of any kind, s 114 .… 7.42 trade and commerce 6.20 Child sex tourism .… 10.8 Choses in action .… 11.14 Citizenship .… 1.18, 1.20 Clarke v FC of T case .… 3.20 Cole v Whitfield case .… 6.37 applying principles .… 6.38 competing economic and social considerations .… 6.42 compulsory acquisition schemes, impact on .… 6.39 further consolidation .… 6.43–6.46 impact on NSW regulations .… 6.41 permissible exceptions .… 6.40 Commonwealth constitution see Constitution Community interest acquisition of property on just terms .… 11.29 Conciliation and arbitration power, s 51(xxxv) .… 12.1 characterisation .… 12.28, 12.29 definition .… 12.21 extending beyond limits of any one state common purpose need .… 12.19 dispute, not industry .… 12.16 extension requirement .… 12.17, 12.18 genuine nature .… 12.20 industrial disputes ambit doctrine .… 12.15 bargaining agent’s fee .… 12.10

definition .… 12.5 disagreement, key essence .… 12.12 income protection insurance .… 12.11 paper .… 12.13 payment of union dues .… 12.6, 12.8 prevention and settlement of .… 12.27 real and genuine .… 12.14 recruitment methods .… 12.7 superannuation fund payments .… 12.9 initial rejection by Constitutional Conventions .… 12.2 other powers used to pursue objectives .… 12.3 scope of .… 12.4 Whybrow case .… 12.22 extension of award protection to non-union members .… 12.25, 12.26 qualifications to .… 12.23 successors and assignees bound .… 12.24 Constitution acquisition of property on just terms, s 51(xxxi) see Acquisition of property on just terms, s 51(xxxi) aliens .… 1.20 appropriations see Appropriations, ss 81–83 changes by referendum .… 1.21 citizenship .… 1.20 conciliation and arbitration power see Conciliation and arbitration power, s 51(xxxv) corporations see Corporations, s 51(xx) defence power see Defence power, s 51(vi) discrimination prohibited, state residence see Discrimination prohibited, state residence, s 117 executive power see Executive power, s 61 executive power of Commonwealth .… 1.15 external affairs see External affairs, s 51(xxix) federal states .… 1.7 foundational authority and legitimacy .… 1.19 freedom of religion see Freedom of religion, s 116

freedom of trade, commerce and intercourse among states .… 6.23 Cole v Whitfield case .… 6.37–6.46 field of operation of freedom .… 6.24 intercourse, definition .… 6.26–6.30 s 92, scope .… 6.31–6.36 trade and commerce, definition .… 6.25 full faith and credit .… 3.33, 3.34 Governor-General exercise of Queen’s powers .… 1.15 reserve powers .… 1.16, 1.17 grants to the states see Grants to the states, s 96 High Court interpretation see High Court High Court jurisdiction see High Court jurisdiction incapacity to protect human rights .… 1.4 inconsistency of laws see Inconsistency of laws, s 109 independence of Australia from United Kingdom .… 1.18 indigenous recognition Gillard Expert Panel .… 9.17 Joint Select Committee .… 9.19 Referendum Council .… 9.18 judicial power see Judicial power judicial review .… 1.10 legally and politically binding .… 1.19 limited moral scope of framers .… 1.3 literal or golden rule of interpretation .… 3.9 parliamentary supremacy .… 1.9 political freedom see Political freedom race and ethnicity see Race and ethnicity, s 51(xxvi) representative government .… 1.6 responsible government executive responsible to legislature .… 1.13 practical operation .… 1.14 provisions reinforce .… 1.16 separation of powers .… 1.12 special powers .… 3.29 contemplating state regulation .… 3.30 state powers subject to veto, to reserve consent .… 3.31

states and Commonwealth assisting each other .… 3.32 state and Commonwealth co-operative arrangements .… 3.35 state debts see State debts state powers Commonwealth regulation .… 4.12–4.15 defined .… 4.3 extraterritorial .… 4.7–4.11 legislative .… 4.4–4.6 manner and form restrictions .… 4.16–4.19 states creation of .… 4.2 referral of powers to Commonwealth .… 3.35 taxation see Taxation territory powers .… 5.1, 5.2 assembly powers not complete .… 5.23 Ch III .… 5.8–5.17 freedom of intercourse .… 5.18 freedom of speech .… 5.19 plenary .… 5.3 public places .… 5.20 s 51(xxxi) .… 5.5–5.7 surrender by state .… 5.21, 5.22 trade and commerce power .… 6.2, 6.3 activities preparatory to trade .… 6.10 connections .… 6.20–6.22 economic connection may not be sufficient .… 6.19 flexible interpretation .… 6.7 give words practical meaning .… 6.5 implied incidental power, definition .… 6.12–6.14 import and export trade, plenary powers to regulate .… 6.15, 6.16 indirect control over intrastate trade .… 6.4, 6.17, 6.18 navigation, shipping and railways .… 6.6 not general power to regulate national economy .… 6.8 with respect to, definition .… 6.11 trade and commerce, extensive definition .… 6.9 trial by jury see Trial by jury, s 80

Constitutional implication .… 2.7 Constitutional law High Court development see High Court Washminster hybrid model .… 1.1, 1.12 Constitutional monarchy .… 1.15 Constitutionalism characteristics of .… 1.2 federalism .… 1.7 Corporations, s 51(xx) .… 8.1 actual or intended activities .… 8.8 purposes .… 8.9 shelf companies .… 8.10 substantial or significant .… 8.11, 8.12 definition .… 8.2 financial .… 8.7 foreign .… 8.4 formed within limits of Commonwealth incorporation under other powers .… 8.14 no general power to incorporate .… 8.13 scope any activities .… 8.18 characterisation .… 8.19, 8.20 current broad scope …. 8.25, 8.27 early view .… 8.15 industrial relations .… 8.21–8.26 wider view .… 8.16, 8.17 significance .… 8.3 trading .… 8.5, 8.6 Courts .… 19.7 Ch III can only make determinations of mixed questions of fact and law .… 19.28 functions incidental to exercise of power .… 19.4 institutional integrity .… 19.53–19.64

states and territories .… 19.5 territory powers .… 5.8–5.17 federal .… 19.7 territories .… 19.12, 19.13 Courts martials .… 15.7, 22.31 Criminal organisations .… 19.65 Cross-vesting scheme ASIC proceedings .… 20.27 demise, consequences .… 20.26 invalidity .… 20.25 origins .… 20.24 Crown .… 1.14, 13.4 capacities .… 13.33 immunity identification as servant or agent of .… 13.39 statute held to apply to and binding of .… 13.40 susceptibility to suit .… 13.41 D Defence power, s 51(vi) .… 22.1 characterisation .… 22.37 elasticity core and incidental ambit .… 22.9 factual conditions, importance of .… 22.10 variation according to situational context .… 22.8 facts and circumstances required .… 22.12, 22.13 jurisprudence from late 1940 s and early 1950 s .… 22.3 limits .… 22.38 naval and military defence internal discipline .… 22.5 meaning .… 22.4 railways, s 51(xxxii) .… 22.6 peacetime .… 22.22 internal security .… 22.25, 22.27

military discipline .… 22.28–22.33 preparedness .… 22.23, 22.24 preparation for war .… 22.34–22.36 real connection to purpose .… 22.11, 22.14 removal of state responsibility .… 22.7 transition from war to peace .… 22.19–22.21 wartime laws upheld during World War II .… 22.18 practically unlimited .… 22.17 Discrimination prohibited, state residence, s 117 .… 17.1 basic thrust of .… 17.2 current judicial approach .… 17.5–17.7 early judicial approach .… 17.3, 17.4 E Economic stimulus package .… 7.20 Excise .… 7.43 areas covered .… 7.44 characterisation, criterion of liability approach .… 7.49, 7.51 characterisation, substance approach .… 7.51–7.53 definition .… 7.47 exclusive power .… 7.45 purpose .… 7.46 relationship of charge to goods .… 7.48 state reliance on revenue .… 7.50 Executive power, s 61 .… 13.1, 13.3 Crown .… 13.4 Federal Executive Council .… 13.8 Governor-General Queen’s representative .… 13.6 reserve powers .… 13.7 immunity Crown’s susceptibility to suit .… 13.41 identification as servant or agent of .… 13.39

statute held to apply to and binding Crown .… 13.40 matters covered .… 13.10 capacities of Crown .… 13.33–13.38 execution and maintenance of Commonwealth laws .… 13.11–13.15 execution of Constitution .… 13.16 maintenance of Constitution .… 13.17–13.20 nationhood powers .… 13.27–13.32 prerogative powers .… 13.21–13.26 Ministers of State .… 13.9 nature and ambit of .… 13.2 public servants .… 13.9 Queen .… 13.5 Expert evidence .… 15.13 Express intentions avoiding inconsistency .… 21.22–21.25 displacing state law .… 21.20, 21.21 retrospective avoidance .… 21.26 External affairs, s 51(xxix) .… 10.1 extradition .… 10.29 geographic externality .… 10.5 child sex tourism .… 10.8 foreign state .… 10.8 offshore processing scheme .… 10.8 war crimes .… 10.6, 10.7 imperial legislation, repeal .… 10.28 international concerns .… 10.22 additional requirement .… 10.24 expansion of .… 10.23 validity solely based on .… 10.25 international relations, obligations and concerns .… 10.9 interpretation construed broadly .… 10.4 flexible .… 10.3 widely defined .… 10.2

limitations subject to Constitution .… 10.31, 10.32 unlawful treaties .… 10.33 relations with other countries .… 10.26, 10.27 terrorism .… 10.30 treaty-making power .… 10.10 domestic law must conform to .… 10.16 executive role .… 10.11 international agreements falling short of .… 10.19–10.21 international obligation, identification .… 10.14 legally operative domestic obligations .… 10.13 meticulous adherence to treaty terms not required .… 10.17, 10.18 need for implementation in federal law .… 10.12 objectives and specific regime .… 10.15 Extradition powers .… 10.29 F Federal Executive Council .… 13.8 Federal parliament .… 3.4 Federal states .… 1.7 determining powers for specific governments .… 1.8 Federalism characteristics .… 1.7 concurrent powers .… 3.24 determining powers for specific governments .… 1.8 exclusive powers .… 3.25 Commonwealth Places (Application of Laws) Act 1970 .… 3.27 Paliflex v Chief Commissioner of State Revenue case .… 3.28 Worthing’s case .… 3.26 federal government .… 3.3 full faith and credit .… 3.33, 3.34 historical background to .… 3.2 parliamentary structure .… 3.4 special powers

contemplating state regulation .… 3.30 state powers subject to veto, to reserve consent .… 3.31 states and Commonwealth assisting each other .… 3.32 state and Commonwealth co-operative arrangements .… 3.35 state referral of powers to Commonwealth .… 3.35 Fees for services rendered .… 7.11 amounts collected are hypothecated to particular service .… 7.13 economic stimulus package .… 7.20 relationship between amount of exaction and value of acquisition . … 7.12 service of considering licence application excluded .… 7.15 size of impost .… 7.16 training guarantee levy excluded .… 7.14 utilities provision .… 7.17 water provision .… 7.17–7.19 Fines taxes, distinguished .… 7.22 Fiscal federalism .… 14.14 Fortescue Metals v Commonwealth case .… 3.23 Freedom of religion, s 116 .… 16.1 establishment clause .… 16.7 non-government school funding .… 16.8 recognition for legal purposes .… 16.9 free exercise clause .… 16.12, 16.17 social order, peacetime .… 16.15 social order, wartime .… 16.13, 16.14 unintended, incidental effect to limit .… 16.16 no religious test required clause .… 16.18, 16.19 not applicable to states .… 16.2 religion, definition .… 16.6 religious observance clause .… 16.10, 16.11 territories power, application to .… 16.3–16.5 Freedom of trade, commerce and intercourse .… 6.23

Cole v Whitfield case .… 6.37–6.46 field of operation of freedom .… 6.24 intercourse, definition .… 6.26–6.30 s 92, scope .… 6.31–6.36 trade and commerce, definition .… 6.25 Full faith and credit .… 3.33, 3.34 G Gillard Expert Panel .… 9.17 Governor-General exercise of Queen’s powers .… 1.15 powers for Australian Capital Territory ordinances .… 5.23 Queen’s representative, as .… 13.6 reserve powers .… 1.16, 1.17, 13.7 Grants to the states, s 96 .… 14.9 business franchise licence fees, used to cover shortfall .… 14.16 cannot be force or compelled upon .… 14.12 Commonwealth dominance .… 14.17 constrained by just terms guarantee .… 14.11 terms and conditions imposed by parliament .… 14.10 Uniform Tax Scheme .… 14.14, 14.15 H High Court .… 2.1 characterisation implied incidental power .… 2.22 importance .… 2.17 law versus policy .… 2.18 multiple characterisations may be possible and credible .… 2.19 purpose, relevance .… 2.21 question of degree .… 2.20 where limitations are in issue .… 2.23 defence power see Defence power, s 51(vi) equilibrium disturbed by increase in members .… 3.7

implied immunity .… 3.5 interpretation AEU case .… 3.16 Albrecht v C of T case .… 3.21 Austin v Commonwealth case .… 3.18 Clarke v FC of T case .… 3.20 Fortescue Metals v Commonwealth case .… 3.23 literal or golden rule .… 3.9 Melbourne Corporation case .… 3.10, 3.11 Payroll Tax case .… 3.12 Queensland Electricity Commission v Commonwealth case .… 3.15 Tasmanian Dam case .… 3.14 United Firefighters Union v CFA case .… 3.22 Victoria v BLF case .… 3.13 Victoria v Commonwealth (Payroll Tax) case .… 3.17 Work Choices case .… 3.19 interpretation, principles ambiguity, international law principles used as guide .… 2.16 ambulatory approach to construction .… 2.9 common law and contemporary standards .… 2.11 implication of meanings .… 2.7 natural and ordinary meaning of words .… 2.6 necessarily implied meaning .… 2.8 not limited to own precedent .… 2.15 power invoked to augment another limited power .… 2.14 preference for broad interpretation .… 2.12 preference for broad limitations on power .… 2.13 use of historical materials .… 2.10 invalidity, consequences divisible and distributive construction .… 2.37 law is void ab initio .… 2.39 no presumption of validity .… 2.36 reading down .… 2.38 severance .… 2.38 judges activist .… 2.3 legalist .… 2.3, 2.4

need for restraint .… 2.5 political consequences of decisions .… 2.2 activist judges .… 2.3 legalist judges .… 2.3, 2.4 need for restraint .… 2.5 precedent circumstances when decisions reopened or overruled .… 2.29 defining questionable characteristics .… 2.27 factors which have no necessary bearing on reopening or overruling .… 2.30–2.32 function .… 2.24 judge’s duty .… 2.25 leave granted by majority of court .… 2.35 not overturned simply because wrong .… 2.28 number of justices sitting .… 2.33 powers to reconsider or overrule used with great caution .… 2.26 value of split decisions .… 2.34 reserved powers .… 3.6, 3.8 Work Choices challenge .… 8.22–8.24 High Court jurisdiction .… 20.1 amicus curiae .… 20.3 appellate .… 20.4 appeals .… 20.7 exceptions .… 20.6 judgments, decrees, orders and sentences .… 20.5 constitutional common ways cases arise .… 20.23 parliamentary powers .… 20.22 cross-vesting scheme ASIC proceedings .… 20.27 demise, consequences .… 20.26 invalidity .… 20.25 origins .… 20.24 interveners .… 20.3 original hypothetical questions, refusal to answer .… 20.15

matters, arising between states .… 20.20 matters, arising under treaties .… 20.17 matters, certain types .… 20.10–20.13 matters, Commonwealth as party .… 20.19 matters, consuls or other representatives .… 20.18 matters, power of parliament to determine .… 20.14 matters, writs/orders sought against Commonwealth officers .… 20.21 non-justiciable issues .… 20.16 Privy Council appeals removed .… 20.8 special leave to appeal .… 20.7 standing .… 20.2 Human rights incapacity of Constitution to protect .… 1.4 I Implied immunity .… 3.5 Implied incidental power .… 2.22, 6.12, 6.14 example of operation .… 6.13 Inconsistency of laws, s 109 .… 21.1 direct inconsistency test .… 21.27–21.35 elimination of state/federal conflicts .… 21.2 express intentions avoiding inconsistency .… 21.22–21.25 displacing state law .… 21.20, 21.21 retrospective avoidance .… 21.26 federal Act post-dates Northern Territory law .… 21.36 federal Act pre-dates Northern Territory law .… 21.37 impossibility of simultaneous obedience test .… 21.12–21.14 inconsistent rights or duties test .… 21.15 indirect inconsistency test .… 21.16–21.19 invalidity inoperative as long as inconsistency remains .… 21.43 in respect of particular facts at issue .… 21.42

law administrative decisions excluded .… 21.5 common law excluded .… 21.7 Constitution excluded .… 21.8 industrial award .… 21.4 meaning .… 21.3 rules of Court .… 21.6 operative, requirement .… 21.11 repugnancy in Australian Capital Territory .… 21.38–21.41 valid extra-territorially .… 21.10 federal law and state law in same field .… 21.9 Industrial disputes ambit doctrine .… 12.15 bargaining agent’s fee .… 12.10 definition .… 12.5 disagreement, key essence .… 12.12 income protection insurance .… 12.11 paper .… 12.13 payment of union dues .… 12.6, 12.8 prevention and settlement of .… 12.27 real and genuine .… 12.14 recruitment methods .… 12.7 superannuation fund payments .… 12.9 Industrial relations .… 8.21–8.26 Inter-State Commission .… 19.3 Interpretation High Court see High Court trial by jury .… 15.3 criticisms of .… 15.4 meaning at time of Federation .… 15.5 Interveners .… 20.3 Intrastate trade

indirect control .… 6.4, 6.17, 6.18 interstate trade, distinguished .… 6.17 air navigation .… 6.18 artificiality of .… 6.19 Invalid laws divisible and distributive construction .… 2.37 inoperative as long as inconsistency remains .… 21.43 law is void ab initio .… 2.39 no presumption of validity .… 2.36 reading down .… 2.38 in respect of particular facts at issue .… 21.42 severance .… 2.38 J Joint Select Committee .… 9.19 Judges High Court activism .… 2.3 legalism .… 2.3, 2.4 need for restraint .… 2.5 independence hallmark of court .… 19.9 tenure and financial security required .… 19.10, 19.14–19.17 precedents, disagreements with .… 2.25 tenure .… 19.8, 19.9, 19.12 Judicial power .… 19.1 basic rights .… 19.36 criminal organisations .… 19.65–19.67 equal justice .… 19.41, 19.42 governance of criminal trial .… 19.44–19.50 imprisonment ordered for non-punitive purposes .… 19.51, 19.52 institutional integrity of Ch III courts .… 19.53–19.64 legislatures changing statutory rights at issue in pending litigation .… 19.37

no implied right to fair trial .… 19.39, 19.40 open justice .… 19.43 retrospective criminal legislation .… 19.38 Ch III courts functions incidental to exercise of power .… 19.4 states and territories .… 19.5 courts .… 19.7 federal .… 19.7 territories .… 19.12, 19.13 exercise, incidental powers .… 19.6 historical approach .… 19.18 administrative tasks performed in judicial manner .… 19.26, 19.27 binding decision .… 19.21–19.23 Ch III court can only make determinations of mixed questions of fact and law .… 19.28 judicial or non-judicial .… 19.30–19.35 not determinative .… 19.19, 19.20 questions of law .… 19.24, 19.25 traditionally restricted to common law .… 19.29 incompatibility condition definition .… 19.70 judicial inquiry, and .… 19.71 judges independence .… 19.9, 19.10, 19.14–19.17 tenure .… 19.8, 19.9, 19.12 persona designata rule .… 19.69 separation consequences .… 19.3 purpose .… 19.2 Judicial review Australia .… 1.10 United States .… 1.11 Juries see Trial by jury, s 80 K

Kable case .… 19.45 application to federal legislation .… 19.68 imprisonment ordered for non-punitive purposes .… 19.51, 19.52 other cases using principles .… 19.46–19.50, 19.67 M Mabo case .… 1.5 Market value acquisition of property on just terms .… 11.25 Matthews test .… 7.4, 7.5 Melbourne Corporation case .… 3.10, 3.11 Military discipline Australian Military Court (AMC) .… 22.32, 22.33 duty to act judicially .… 22.28 general court martial .… 22.31 service connection approach .… 22.29, 22.30 service status test .… 22.29, 22.30 wide range of offences .… 22.29 Minerals resource rent tax .… 7.30 Ministers of State .… 13.9 N Nationhood powers .… 13.27 certain implied powers .… 13.28–13.30 ambit limited .… 13.32 existence doubted .… 13.31 sedition .… 13.27 Native title doctrine .… 1.5 Naval and military defence internal discipline .… 22.5 meaning .… 22.4

railways .… 22.6 Navigation trade and commerce power .… 6.6, 6.18 Norfolk Island .… 5.23 Northern Territory see Territories O Object of command test .… 8.22, 8.23 Offshore processing scheme .… 10.8 P Parliamentary supremacy .… 1.9 Payroll Tax case .… 3.12 Peace, welfare and good government .… 4.4 Peacetime defence power .… 22.22 internal security .… 22.25, 22.27 military discipline .… 22.28–22.33 preparedness .… 22.23, 22.24 Penalties taxes, distinguished .… 7.22 Persona designata rule .… 19.69 Political freedom .… 18.1 early judicial cases .… 18.2–18.4 key precedent cases .… 18.5–18.13 activities of communication .… 18.14–18.19 implied, other types .… 18.30–18.35 implied, post-Wotton applications .… 18.20–18.25 three-step Lange test .… 18.26–18.29 compatibility testing …. 18.26

proportionality testing …. 18.26, 18.27, 18.28 Precedent High Court circumstances when decisions reopened or overruled .… 2.29 defining questionable characteristics .… 2.27 factors which have no necessary bearing on reopening or overruling .… 2.30–2.32 function .… 2.24 judge’s duty .… 2.25 not overturned simply because wrong .… 2.28 powers to reconsider or overrule used with great caution .… 2.26 Prerogative powers definition .… 13.21 inherited by colonies prior to federation .… 13.22 modification .… 13.25, 13.26 reviewability .… 13.23, 13.24 Privy Council, appeals removed .… 20.8 Property of any kind, s 114 taxation on .… 7.37, 7.38 belonging to Commonwealth or a state .… 7.40 characterisation .… 7.42 Commonwealth, definition .… 7.41 definition .… 7.39 state, definition .… 7.41 Proportionality .… 2.21 Public places .… 5.20 exclusive .… 7.29 Public servants .… 13.9 Q Queen .… 13.5

Queensland Electricity Commission v Commonwealth case .… 3.15 R Race and ethnicity, s 51(xxvi) .… 9.1, 9.2 characterisation deemed necessary .… 9.12 manifest abuse .… 9.14 Racial Discrimination Act overrides state laws .… 9.15 special nature .… 9.11, 9.13 specific race singled out .… 9.10 purpose .… 9.6 1967 amendment .… 9.7 no protection from racial discrimination .… 9.8 not restricted to Aboriginal people .… 9.9 race, definition .… 9.3 modern problems .… 9.4 range of factors considered .… 9.5 Racial Discrimination Act 1975 overrides state laws .… 9.15 Railways naval and military defence .… 22.6 trade and commerce power .… 6.6 Referendum Council .… 9.18, 9.20 Religion see Freedom of religion, s 116 Representative government .… 1.6 Republic referendum .… 1.18 Reserved powers .… 3.6, 3.8, 13.7 Responsible government executive responsible to legislature .… 1.13 practical operation .… 1.14 provisions reinforce .… 1.16

S Sedition .… 13.27 Separation of powers .… 1.12 Shelf companies .… 8.10 Shipping trade and commerce power .… 6.6 Sovereignty .… 1.5 Standing, constitutional cases .… 20.2 State debts, management .… 14.13 State powers Commonwealth regulation .… 4.12–4.15 defined .… 4.3 extraterritorial .… 4.7–4.11 legislative .… 4.4–4.6 manner and form restrictions .… 4.16–4.19 subject to veto, to reserve consent .… 3.31 surrender to territories .… 5.21, 5.22 States acquisition of property on just terms, effect on .… 11.4 Commonwealth assistance .… 3.32 Commonwealth co-operative arrangements .… 3.35 conciliation and arbitration power, extending beyond limits of any one state common purpose need .… 12.19 dispute, not industry .… 12.16 extension requirement .… 12.17, 12.18 genuine nature .… 12.20 created by Constitution .… 4.2 freedom of trade, commerce and intercourse .… 6.23 Cole v Whitfield case .… 6.37–6.46 field of operation of freedom .… 6.24

intercourse, definition .… 6.26–6.30 s 92, scope .… 6.31–6.36 trade and commerce, definition .… 6.25 increase in Commonwealth taxation power .… 7.3 powers Commonwealth regulation .… 4.12–4.15 defined .… 4.3 extraterritorial .… 4.7–4.11 legislative .… 4.4–4.6 manner and form restrictions .… 4.16–4.19 race and ethnicity Racial Discrimination Act overrides state laws .… 9.15 reliance on excise revenue .… 7.50 T Tacking .… 7.33 ensuring separate consideration of measures .… 7.34 laws imposing shall deal only with imposition .… 7.35 laws imposing shall deal only with only one subject .… 7.36 Tasmanian Dam case .… 3.14 Taxation anti-discrimination prohibition carbon tax .… 7.31 characterisation .… 7.27 discrimination, meaning .… 7.26 exclusive public places .… 7.29 express reference .… 7.28 grant money excluded .… 7.23 minerals resource rent tax .… 7.30 trade, commerce and revenue .… 7.25 charges for acquisition of property .… 7.21 compulsory exaction or charge .… 7.7 excise, s 90 .… 7.43 areas covered .… 7.44 characterisation, criterion of liability approach .… 7.49, 7.50

characterisation, substance approach .… 7.51–7.53 definition .… 7.47 exclusive power .… 7.45 purpose .… 7.46 relationship of charge to goods .… 7.48 state reliance on revenue .… 7.50 fees for services rendered .… 7.11 amounts collected are hypothecated to particular service .… 7.13 economic stimulus package .… 7.20 relationship between amount of exaction and value of acquisition .… 7.12 service of considering licence application excluded .… 7.15 size of impost .… 7.16 training guarantee levy excluded .… 7.14 utilities provision .… 7.17 water provision .… 7.17–7.19 fines and penalties excluded .… 7.22 no requirement that public authority collect .… 7.8 no requirement that tax be levied for public purpose .… 7.9, 7.10 on property of any kind, s 114 .… 7.37, 7.38 belonging to Commonwealth or a state .… 7.40 characterisation .… 7.42 Commonwealth, definition .… 7.41 definition .… 7.39 state, definition .… 7.41 restrictions on federal power .… 7.2 states or parts of states, meaning .… 7.32 tacking, s 55 .… 7.33 ensuring separate consideration of measures .… 7.34 laws imposing shall deal only with imposition .… 7.35 laws imposing shall deal only with only one subject .… 7.36 tax, definition Air Caledonie v Commonwealth case .… 7.6 Matthews test .… 7.4, 7.5 weak fiscal position of states .… 7.3 Terra nullius doctrine .… 1.5

Territories acquisition of property on just terms .… 11.5 powers .… 5.1, 5.2 assembly powers not complete .… 5.23 Ch III .… 5.8–5.17 freedom of intercourse .… 5.18 freedom of speech .… 5.19 plenary .… 5.3 public places .… 5.20 s 51(xxxi) .… 5.5–5.7 surrender by state .… 5.21, 5.22 surrender by states of powers .… 5.21, 5.22 taxation, anti-discrimination prohibition .… 7.24 Terrorism .… 10.30 Training guarantee levy .… 7.14 Treaty-making power external affairs .… 10.10 domestic law must conform to .… 10.16 executive role .… 10.11 international agreements falling short of .… 10.19–10.21 international obligation, identification .… 10.14 legally operative domestic obligations .… 10.13 meticulous adherence to treaty terms not required .… 10.17, 10.18 Trial by jury, s 80 .… 15.1 limitations adverse pre-trial publicity .… 15.13 Commonwealth unable to modify state courts .… 15.16 context and purpose .… 15.12 courts martial excluded .… 15.7 expert evidence .… 15.13 no trial on indictment .… 15.14 right cannot be waived by accused .… 15.8–15.10, 15.15 states and territories excluded .… 15.6 text is unambigious, unqualified and absolute .… 15.11

literal interpretation .… 15.3 criticisms of .… 15.4 meaning at time of Federation .… 15.5 proceedings on indictment .… 15.2 scope of guarantee juries must be unanimous .… 15.17–15.21 six or ten jurors required .… 15.22–15.25 U Uniform Tax Scheme .… 14.14, 14.15 Unitary states .… 1.8 United Firefighters Union v CFA case .… 3.22 V Victoria v BLF case .… 3.13 Victoria v Commonwealth (Payroll Tax) case .… 3.17 Void ab initio .… 2.39 W War crimes .… 10.6, 10.7 Wartime acquisition of property on just terms .… 11.24 freedom of religion .… 16.13, 16.14 laws upheld during World War II .… 22.18 practically unlimited .… 22.17 preparation for Communist threat, 1950 s .… 22.35, 22.36 defence power expands .… 22.34 transition from war to peace controls no longer justified .… 22.21 justification for controls .… 22.20 unwinding of controls .… 22.19

Washminster hybrid model .… 1.1, 1.12 Whybrow case .… 12.22 extension of award protection to non-union members .… 12.25, 12.26 qualifications to .… 12.23 successors and assignees bound .… 12.24 Work Choices legislation .… 8.21 High Court challenge .… 8.22–8.24