Introductory Concepts | Precedent and Overruling
Reading down – is supported by the presupposition that parliament must have known what the words would do would be invalid and hence they must have intended it; an express intention will not be read down (but also consider s 15A of the AIA which says that every act should be read s.t. the CC and not to exceed the executive power of the CTH so that but for s 15A if it would be construed as being in excess of that power it will be valid to the extent that it isn’t)
Severance - if the Act is of a substantially different character than what parliament would have intended, this may lead to a court refusing to sever the offending provisions Implied Immunity of Instrumentalities
Reserved State Powers – this doctrine concerned the interpretation of CTH grants of legislative power
The Engineer’s Case – rejected the doctrine of reserved state powers
The Jumbunna Principle - “Where the question is whether the Constitution has used an expression in the wider or narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context of the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose”; The CYSS Case – The Constitution should be construed with “all the generality wish the words used admit” |
---|
Cases on Characterisation and Purpose powers |
---|
The Bank Nationalisation Case – Heads of power aren’t intended to limit the policy choices of government and confine the meaning of words like “banking” – clearly a power to make laws wrt banking includes a statute ceasing banking. Pidoto v VIC – heads of power are interpreted independently rather than to cut each other down. The presence of the C&A power does not mean the defence power cannot be used to regulate IR.
Grain Pool
Incidental Power - exists both as an express power [s 51(xxxix)] and implied as in D’Emden v Pedder was a rule of construction, as well as in the words “with respect to”
Subject Matter Powers
Purpose Powers and Proportionality
|