LAWS2150 FedConLaw ProblemQuestionNotes

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LAWS2150 FedConLaw ProblemQuestionNotes Contents STARTING POINT 1 1. Is there POWER to pass the law? 1 • Jumbunna: applies to grants of power, not restrictions on power 1 IS THERE POWER TO PASS THE LAW? IS THERE A HEAD OF POWER TO SUPPORT THE LAW? 1 Interactions btwn heads of power 2 • Exception: where the second subject-matter 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 NSW) 2 Incidental powers 2 EXTERNAL AFFAIRS POWER s 51(xxix) 2 1. Relations with other countries 2 • Does there need to be a nexus btwn Australia and the ‘external affairs’? 3 • Application cases 3 3. Treaty implementation 4 a) Does the treaty enliven the power? 4 b) Does the law implement/conform with the treaty? 4 TRADE & COMMERCE POWER (s 51(i)) 4 Scope – what types of activities can be regulated? Does it extend back ‘to the factor or the field or mine’? What is the scope of the implied incidental power? 5 • Includes ‘real causative relation’ to commodities entering into trade and commerce 5 To what extent may P’ment use s 51(i) to regulate intra-state trade and commerce? (incidental power - s51(xxxix)) 5 • Cth can legislate on matters incidental to ‘trade and commerce… among the States’ – but the distinction btwn interstate and intrastate T & C must be maintained (Dixon CJ, Wragg v NSW) 5 • If such regulation is necessary for the law to be ‘effective’ as to interstate trade 6 • CANNOT: 6 CORPORATIONS POWER (s 51(xx)) 6 1. Regulation of the activities, functions, relationships and the business of a corporation; the creation of rights, privileges belonging to such a corporation, the imposition of obligations on it; and 6 2. In respect of those matters, the regulation of the conduct of those through whom it acts, its employees and shareholders; 7 • Constitutional corp? 8 • Trading corporations 8 • Financial corporations 8 THE RACES POWER (s 51(xxvi)) 9 Current statement of the law 9 • Is the operation of the Act so connected with the subject matter of s 51(xxvi) that it can be properly described as a law to the people of any race for whom it is deemed necessary to make special laws? (Brennan CJ & McHugh J, Kartinyeri) 9 GRANTS POWER (s 96) 11 • ‘Terms and conditions’ 11 • Need not be within Cth’s legislative power 11 • Confined to granting money to governments – not a power to make laws a general subject matter (Second Uniform Tax Case) 11 • Reducing States to a ‘mere conduit’? 11 • Discrimination btwn States? 11 • Coercion? 11 • Other constitutional limits? 12 TAXATION POWER (s 51(ii)) 12 Is the law a tax? 12 • Compulsory exaction of money 12 • For public purposes 12 • Enforceable by law 14 • Retailers had to pay a fee to a Board for their eggs to be graded in order to be sold (Harper v Victoria) 14 If a tax, what constitutional limitations apply? 15 • S 55 15 2. Law can only deal with one subject of tax only 15 INCONSISTENCY OF LAWS (s 109) 16 • ‘a law of a State’ + ‘a law of the Commonwealth’ 16 • Generally doesn’t include Exec. Actions 16 • ‘Cth law prevails’ 16 1. Ascertain the operation of the Cth law 16 a) Is the Cth law intended to be exhaustive/exclusive or merely supplementary/cumulative? 17 1. Impossible to obey both laws 17 • Logical impossibility – one law requires that you must do X, the other that you must not do X (Whybrow) 17 2. Modification of rights, powers or privileges 17 3. ‘Covering the field’ 17 Application cases 18 • Impossible to obey both laws 18 • Modification of rights, powers or privileges 18 • Covering the field 20 • The consequences provided by the two acts for breaches of the sections are not the same 20 Manufacturing inconsistency 22 • If Cth law ‘covers the field’, it has not manufactured inconsistency 22 • Bare attempt to exclude State power upon a subject as to which the Parliament has not chosen to legislate exhaustively? Cth manufactured inconsistency? Work Choices - no 23 • When s 109 can operate: 23 Manufacturing consistency 23 • Cth can control the operation of s 109 in a negative way by making it clear that relevant State laws are to operate concurrently with the Cth law 23 • Prospective manufacturing of consistency is permitted (Mason J, GMAC Case) – where the question is whether the Cth law ‘covers the field’, a provision for the concurrent operation of State laws will be accepted as a clear indication that the Cth enactment is not intended to ‘cover the field’ and thus will be effective to avoid inconsistency 24 and ‘curtailment’ of ‘capacity’ to function as 25 1) Whether the law in question singles out one or more of the States and imposes a special burden or disability on them which is not imposed on persons generally. 25 2) Whether the operation of a law of general application imposes a particular burden or disability on the States. 25 3) The effect of the law upon the capacity of the States to exercise their constitutional powers. 25 4) The effect of the law upon the exercise of their functions by the States. 26 5) The nature of the capacity or functions affected. 26 6) The subject matter of the law affecting the State or States and in particular the extent to which the constitutional head of power under which the law is made authorises its discriminatory application. 26 FREEDOM OF INTERSTATE TRADE & COMMERCE (s 92) 28 1. Is there a burden on interstate trade? 28 • Determine discrimination by reference to ‘substitutability’ of goods/services 28 3. Is the discrimination of a ‘protectionist’ kind? (protection of local industry against out of State industries) 29 EXPRESS GUARANTEES (ss 80 & 116) 31 TRIAL BY JURY (s 80) 31 • ‘Trial on indictment’ 31 • ‘Of any offence against any law of the Cth’ 32 • ‘Shall be by jury’ – functional attributes 32 • No outside influence BUT not the sequestration of the jury for the whole period: 32 FREEDOM OF RELIGION (s 116) 32 • What is ‘religion’? 33 • The 4 guarantees 33 2. Imposing any religious observance 33 IMPLIED FREEDOM OF POLITICAL COMMUNICATION 35 1. Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? 35 • Both the legal & practical effects of the law are relevant 35 JUDICIAL POWER & DETENTION 41 Incompatibility doctrine – separation of judicial power 41 • State P’ment cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member. 43 Application cases of Kable 43 • The rules of evidence apply. 44 • The involuntary detention of a citizen in custody by the State is penal/punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt 45 • Application of Lim 45 3. If the detention is ‘reasonably capable of being seen as necessary for the fulfilment of some non-punitive purpose (eg. deportation or to enable an application for an entry permit to be made and considered), then detention was not punitive and does not contravene Ch III. If not, it is punitive and contrary to Ch III (Hayne J & Gummow J, Al-Kateb) 45 • Non-punitive purpose? 46 • Text & structure 46 • 2nd reading speech – legislative history 46 EVEN IF A PROVISION IS CONSTITUTIONALLY INVALID, CAN IT BE READ DOWN/SEVERED? 47 • Parliament has manifested its intent in s 15A, AIA that courts are to read down or sever the invalid provision so as to preserve the Act’s validity to the extent to which it is not ultra vires 47 • Examples 47