#7102 - Limitations - Constitutional Law

The Commonwealth can pass laws binding States: there is no absolute immunity (Engineers). However, an implied intergovernmental immunity between the State and Commonwealth governments is a limitation in the CC based on the principle of federalism, which requires autonomous and independent State and central governments. In respect of Commonwealth laws binding States, it limits the extent to which Commonwealth Parliament can bind the States.

Here, [State government/State govt instrumentality/etc X] will argue that the implied immunity applies to invalidate the application of [law] to it. The law will be invalid in its application to the State/s if it impairs the capacity of a State or States to function as a government (Austin).

• Cth will argue it does not so affect the State/s.

In deciding the answer to this overarching question, there are multiple factors which may indicate governmental function is impaired.

French CJ in Clarke v Commissioner of Taxation outlined six factors he believed to be relevant to the question, none of which would be decisive alone. The other judges neither accepted nor rejected the CJ’s approach, but the factors seem to fairly represent the case law.

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.

2. Whether the operation of a law of general application imposes a particular burden or disability on the States.

3. The effect of the law upon the capacity of the States to exercise their constitutional powers.

4. The effect of the law upon the exercise of their functions by the States.

5. The nature of the capacity or functions affected.

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.

Where a Cth law is regulating the relationship between a State instrumentality and its employees (public servants), a number of limitations may apply. Here, what may be relevant is that…

…per Australian Education Union, the Cth will be considered to be impairing the ability of the State to function if it interferes with

[General public sector employees]

• The State government’s right to determine the number and identity of the persons whom it wishes to employ

• The State government’s right to determine the number and identity of persons whom it wishes to dismiss with or without notice on redundancy grounds (this indicates States do not have unfettered power to fire employees for any reason)

[High level public sector employees]

• The State’s right to determine the number and identity of the persons employed or dismissed on redundancy grounds

• The State’s right to determine the terms and conditions on which these employees would be engaged (for example, the Cth would be prevented from fixing minimum wages and working conditions in respect of these employees ‘and possibly others’)

High level employees include: ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges (Australian Education Union).

Prior to Austin, it was suggested that discrimination was an independent test (State Banking case). Austin confirmed that there is now only one test (the overarching question above), under which discrimination is relevant to, but not conclusive, in deciding whether, a State’s capacity to function as a government has been impaired.

A court will consider whether a special burden or disability has been imposed. Here, it can be argued that there is discrimination against [person/body being discriminated against X], who/which is

1. A single State. It has been confirmed that discrimination against single States will be relevant to the question of intergovernmental immunities (Australian Education Union).

2. All States. It has been confirmed that discrimination against all States will be relevant to the question of intergovernmental immunities (as stated in Queensland Electricity Commission)

3. A State instrumentality. It has been confirmed that discrimination against a State instrumentality will be relevant to the question of intergovernmental immunities (State Banking Case; QEC)

4. A State employee. It has been confirmed that discrimination against State employees will be relevant to the question of intergovernmental immunities (Austin).

Whether there actually has been discrimination, and whether it is justified, must be considered. If there is unjustified discrimination, it will be more likely that the legislation will impair the State’s capacity to function.

Here, [X] will argue that there has been

1. Direct discrimination (discrimination in form). Legislation discriminates directly if it singles out a particular group or individual for different treatment to other persons or entities.

2. Indirect discrimination (discrimination in substance). Legislation discriminates indirectly if it applies neutrally, but has a disproportionate and detrimental effect on a particular group as compared to other groups (Queensland Electricity Commission).

Minor discriminatory burdens are still invalid (due to the possibility of many minor burdens having a cumulative effect).

Note

• The discrimination present

• Who the treatment differs from (eg compared to other...