HD - STEP BY STEP EXAM SCAFFOLDS

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Issue Checklist + Step by Step process for every head of power, limitation etc! TABLE OF CONTENTS Issue Checklist 5 1. Is it a Commonwealth or a State law? Does the relevant Parliament have the power to enact the law in question? 5 2. Does the law breach an express constitutional prohibition? 5 3. Does the law breach any implied constitutional prohibition? 6 4. Do any issues arise as to the formalities of enacting the law? 6 5. If part of an Act or a provision is invalid, can it be severed or read down? 6 6. Is the law ineffective or inoperative for any other reason? 6 7. To whom does the law apply? 6 8. Is the law with regard to trading/commercial transactions? S51(i) 7 9. Is the law taking/spending money? 7 10. Is the law exacting money? 7 11. is the law with regard to military, terrorism, or defence? S51(vi) 7 Characterise (Cth) 8 Apply test: 8 If not, does the incidental power apply? 8 Characterise (State) 9 Trade & Commerce Power s51(i) (Subject Matter) 9 STEP 1: Is it a Cth law within the main head of power? Characterise 9 STEP 2: Prohibition - Intra-State 9 Step 3: Incidental Power 10 Activities Preliminary to Trade 10 STEP 3: acknowledge Murphy’s dissent in A-G (WA) (1976) 10 STEP 4: Prohibitions 10 STEP 5: Can it be severed or read down 10 STEP6: acknowledge relevance of T&C Power? 11 Freedom of Inter-State Trade s92 (Limitation) 11 Inter-State Trade & Commerce 11 STEP 1: Is the law contrary to the guarantee of freedom of inter-course between the States? 11 Intercourse among the States 11 Which test applies when there is both trade and commerce and intercourse? 12 STEP 1: Determine if is protectionist 12 STEP 2: If protectionist, determine if an exception applies 12 External Affairs Power s51(xxix) (Subject Matter + Purposive) 12 STEP 1: Is it a Cth law within the main head of power? Characterise 13 Geographically external to Australia 13 Relations with foreign governments 13 Polyukhovich Issue: nexus? 13 Alqudsi issue: proportionality test? 14 Step 2: sufficient specificity to direct a general course of action? 14 Treaties 14 STEP 1: characterise (implementing) 14 STEP 2: Is the Act implementing the treaty sufficiently specific? 14 STEP 3: is the law reasonably appropriate and adapted to achieving the treaty? (Reasonable proportionality) 14 Defence Power s51(vi) (Purposive) 15 Overview of the Constitutional provisions re defence 16 STEP 1: is there hostility/threat/war 16 STEP 2: is the law reasonably appropriate and adapted 17 STEP 3: does it fit within a primary or secondary aspect? 17 STEP 4: is it invalid for any other reason? 17 NB: Nationhood Power 17 STEP 5: Prohibitions 18 STEP 6: Can it be severed or read down 18 Nationhood Power s61 and s51(xxxix) (Purposive) 18 STEP 1: AAP Case Test “peculiarly adapted’ 19 STEP 2: Proportionality Test 19 STEP 3: Prohibitions 19 STEP 4: Can it be severed or read down 19 Corporations Power s51(xx) (Subject Matter Power) 20 STEP 1: is the law with respect to a corporation? 20 is it a foreign, trading or financial corporation? 20 What if the corporation has no activities? 21 Can a government body be a trading corporation? 21 Are certain bodies excluded from the definition of ‘trading corporation’? 21 Lower courts and a more liberal test 21 STEP 2: Characterise - Does the law fall within the scope of the corporations power? (sufficient connection) 21 Scope of the corporation’s power 21 Does it fit into any of the below? 22 What about incorporating companies? 22 STEP 4: Prohibitions 23 STEP 5: Can it be severed or read down 23 Race Power s51(xxvi) (Subject Matter Power) 23 STEP 1: Characterise 24 STEP 2: is it a special law? 24 STEP 3: is it about a ‘race’? 24 STEP 4: is it to a race’s benefit or detriment? 24 STEP 5: is it proportionate? 24 STEP 6: is it necessary? 25 STEP 4: Prohibitions 25 STEP 5: Can it be severed or read down 25 Appropriations Power s81 & s83 26 STEP 1: What type of appropriation bill is it? 26 Ordinary Annual Services of Government 26 ‘Standing’ or ‘special’ appropriation. 26 STEP 2: Does the appropriation have a spending power? 27 Ordinary functions of government 27 Nationhood Power 27 Urgent need to spend 27 Grants Power s96 28 Incidental Power 28 STEP 1: Constitutional Limitations 28 S51(xxxi) Just Terms 28 Does the grant discriminate between States? 29 Is the grant a scheme? 29 Is the Act coercive? 30 Taxation s51(ii) 30 STEP 1: Characterise 30 Is it a tax? 31 Or is it a fee for a service? 31 Is there a public purpose? 31 STEP 2: Constitutional Limits 32 STEP 3: Ramification 32 Excise Duties s90 (limitation for State) 32 STEP 1: What is an excise? 32 STEP 2: Is a State’s trying to slip through an excise? Invalid under s90 33 As a Business Franchise or licence fee? 33 Compulsory Acquisition of Property s51(xxxi) (grant + limitation) 33 STEP 1: interaction with other heads of power (rule of thumb) 34 STEP 2: is it property? 34 Statutory Rights 34 STEP 2: was it acquired? 34 STEP 3: Does it fall under an exception to s51(xxxi)? 35 STEP 4: Did the payment amount to ‘just terms?’ 35 Implied Freedom of Political Communication 36 STEP 1: Does law effectively burden freedom in its terms, operation or effect? Lange modified by McCloy 36 If yes, STEP 2: Is the purpose of the law legitimate in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? (Lange, McCloy, Brown) 36 If “yes”, STEP 3: is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? (Lange) 37 Structured Proportionality 37 In applying 3, Brown majority considered that one should enquire whether the law is justified as (a) suitable; (b) necessary; and (c) adequate in its balance (McCloy, Brown, Clubb) 37 Freedom of Religion s116 37 1. Make any law establishing a Religion 37 2. Make any law imposing any religious observance 38 4. Require any religious test as a qualification for office 38 3. Make any law for prohibiting the free exercise of religion 38 STEP 1: is it a religion? 38 STEP 2: is the law prohibiting a free exercise of religion? 38 STEP 3: is the claim bona fide? 39 Inconsistency s109 (Limitation) 39 STEP 1: Are there two valid laws? 39 Step 2: Is it a direct inconsistency 40 Step 3. Has Cth covered the field? 40 Step 4: If so, do the laws operate in different fields so there is no conflict? 40 Step 5: Or, does the Cth law intend to be read with State laws? 40 Step 6: Is there an operational inconsistency? 40 Step 7: Is the Cth attempting to manufacture inconsistency? 41 Step 8: Does Cth attempt to clear the field? 41 Retrospectively clearing the field 41 STEP 9: Validity of the State law 42 Inter-governmental immunities – Melbourne Corporation doctrine 42 Step 1: Articulate the Principle 42 Step 2: The interaction between the Melbourne Corporation principle and heads of power 42 Step 3: Essential Question 42 Awards to public servants 43 Inter-Governmental Immunities Prt 2 – Cigamatic Principle and s117 43 STEP 1: Does the law intend to apply to the Crown? 43 STEP 1: State the principle 43 S117 Discrimination of residents of States 44 Step 1: Consider individual circumstances of the non-resident 44 Step 2: Is the benefit necessarily conditioned by State residency? 44 STEP : Can it be severed or read down 45