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Federal Constitutional Law Super Super Summaries Notes

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This is an extract of our Federal Constitutional Law Super Super Summaries document, which we sell as part of our Federal Constitutional Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Federal Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Corporations Power THE TEST

INTERPRETIVE FACTORS

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(Work Choices) A law will be valid as long as it is expressed to operate by reference to the activities, functions and relationships of s 51(xx) Corporations. Thus Parliament can pass laws wrt:The regulation of these AFRsLaws bestowing privileges and obligations on themLaws regulating the conduct of a third party through whom they act (employees, contractors and shareholders)Trading/Financial - not terms of art and is a question of fact and degree (Adamson; SSB v TPC). It is enough that T/F constitutes a substantial part of their business.

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For a newly formed company you can look at their Constitution (Fencott)

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Even if its dominant purpose is something else, it can still be a T/F C (e.g. policy - TAS Dams)

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Only applies to T/F already formed (Incorporations Case)

Laws regulating the conduct of persons capable of affecting the AFRs of them

PARTICULAR APPLICATIONS It includesWC: Prohibiting content of, or regulating, contracts with themWC: Regulating their propertyWC: Incidentally a power to subject others affecting AFRs with obligations (requiring registration of trade unions)

ORDER OF INQUIRY Is the law accomplishing something within power?

Does the law apply to the particular corporation?

The Defence Power THE TEST Dixon J (ACP) -

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The facts on which the law operates has to provide a sufficient connexion with a defence purpose

INTERPRETIVE FACTORS

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In war it isn't at large - e.g. not to control University enrolment (Drummond)

Primary Aspect - Defence as its direct and immediate object

ORDER OF INQUIRY

The existence of a war depends on factors a court can take judicial notice of (Dixon says 'notorious public events of a general nature)

* ACP: A power dependant on facts

What are the facts by reference to which the law operates?

Can be used to incrementally dismantle wartime regimes and prolong wartime measures only if it can show with reasonable clearness how it is incidental to the defence power (Foster)

* ACP: A recital of facts by

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Fullagar J (ACP)

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PARTICULAR APPLICATIONS

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If a consequence on which it operates is attributable to war - this comes within the incidental power

Can be used for defence preparedness and things

bearing no connection to defence will not be within

parliament will not support a privilegium (operating nominatim)except in the supreme emergency of war (or the 'secondary aspect where the opinions constitute facts connecting the power to the subject matter of the law )

* Cap Issues Case - can regulate borrowing (or anything) where

Can the court take judicial notice of them?

Do these facts provide a sufficient connexion with a defence purpose? OR Is it within the primary or

(enlistment, ships, preventing obstruction of preparation to war) which isn't confined to war

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objective tests/specified criteria by which the connection with the defence power can be ascertained (e.g. "purposes ...irt defence preparations")

related to it (e.g. uniforms + boy scout uniforms - Clothing Factory Case) but not where the object of preparation is not connected to a defence purpose w/o/n it is economically sensible (Shipping Board Case)

Secondary Aspect - only invoked in periods of war or immediate apprehension of it (e.g. eviction of notice)

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Dixon J - formal war marks the power (

* T v M - protection from terrorist

[?]

acts are in the centre of the power (if what are terrorist acts make the defence purpose of the legislation apparent); thus the imposition of control orders are too

Cold War = Peace)

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Callinan (T v M) - No

* Callinan in T v M - terrorism is a

Extends to threats to the body politic and internal threats (T v M - Gleeson, Gummow, Crennan)

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secondary aspect?

clear and uncontradicted threat not just a preamble

Heydon - No but terrorism and furtherance of int. pol. Obj. is within the power since defence of the politic includes defence against imposition of political objectives

ACP: The prescription of conduct relating to a defence purpose and the attaching of consequences

The Tax Power THE TEST The starting point is Latham CJ in Matthews v Chicory Marketting Board: A tax is:A compulsory exaction of money By a public authority

INTERPRETIVE FACTORS

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Air Caledonie - Payment for services rendered is not the only exaction that isn't a tax (and it isn't always one) - they include fines and charges for using property and a fee for a privilege Tape Manufacturer's - public authority isn't necessary - the character of the authority is only relevant to deciding if the purpose for which the money is raised is public

PARTICULAR APPLICATIONS

ORDER OF INQUIRY

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Cover charge of $5 for immigration clearance was a tax

Does it satisfy all the elements?

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Expropriation from one group to another directed at a problem of public interest is not a tax

Is it a penalty?

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A shortfall on employment training doesn't mandate/prescribe conduct -

Is it a fee for services - if so is it nevertheless a

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For public purposesEnforceable by lawNot a payment for services rendered

But these are neither exhaustive nor necessary

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Northern Suburbs Cemetery - that revenue raising isn't the main purpose isn't decisive and neither does a fact that it serves a purpose outside legislative power

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Northern Suburbs Cemetery - A penalty isn't a tax

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Luton v Lessels - not everything paid into the CRF is a tax but it raises a presumption that it is

hence it isn't a penalty since it doesn't arise because of a failure to discharge antecedent obligations ? it's a tax

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Generally financial burdens will be taxes but this Act merely created a machinery
- it wasn't a new liability like Tape Manufacturer's

A fee for services is:-Are charges imposed for revenue raising Are they imposed to recover the cost of providing services over a range of users (this is fine too) Is there a rational basis for discriminating between certain users

Basic tests:

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Were the fees reasonably related to expenses incurred?
Where they part of an activity that had to be integrated to be effective - if so you can consider them as a category of services

tax?

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Harper - If the purpose is to clearly defray the cost of expenses - especially where determined and estimated by the cost of rendering that service - it is clearly a fee for service Parton v Milk Board - the service was not the dairyman who had to pay - promoting and advertising are derivative benefits Air Caledonie - the concept is limited only to fees/charges exacted for a particular identified service rendered individually at the request of the person required to pay it Air Services v Canadian Airlines - Costs reasonably related to costs of provision go a long way in suggesting it is a FFS

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Cost of service directly related to defraying cost of provision - this was the purpose = FFS Derivative benefit - the service wasn't performed for the payer Citizens have a right to re-entry; this can't be a fee for service (unlike a cost of
$10 for admin expenses to become a GP
- GP Soc v CTH) - it was a general offset for expenses McHugh: Cost exceeding total charge gives a rebuttable presumption that it is a tax - but here the ROR was for opportunity costs. It was thus a fee for service (for natural monopolies generally P = MC won't be the case)

There is an identifiable service

The fee is payable by the person who receives the service (or by the person requesting it)

The fee is proportionate to the cost of the service

The Grants Power THE TEST SUTC - There are no restrictions on the exercise of the s 96 (grants power). It is a non-coercive power

INTERPRETIVE FACTORS

PARTICULAR APPLICATIONS

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Moran's Case - Grants cannot be merely colourable (impossible to prove).

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It can be used as a mere conduit to get money from one to a TP (M)

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FUTC - inducement/temptation to stop taxing isn't enough (doesn't deprive them of the power) - only

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It can be used to remedy the

ORDER OF INQUIRY

practical/physical coercion will limit the power

? ICS Agriculture - but it is subject to other CC limitations; can't be used to require states to acquire property not on just terms

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discrimination of a tax scheme (M)

DOGS - the power is still subject to s 116 (Freedom of Religion)

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But if the State has freedom to accept/reject the grant - this is key to its validity

Freedom of Interstate Trade and Commerce THE TEST BNC - it isn't absolute. Denying trade in noxious drugs, or by lunatics etc. is acceptable regulation.

S 92 requires that interstate T&C be immune only from discriminatory burdens of a protectionist kindINTERPRETIVE FACTORS

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The combined operation of s 51(i) and s 92 laws can eliminate factual discrimination

For State laws:-

A law of general application is less likely to be protectionist than a prima facie discriminatory law with a protectionist purpose But if a law is discriminatory in effect it will still infringe s 92The prescription of commercial conduct won'tLaws directed at a non-protectionist object but discriminate in pursuit of that object in a protectionist fashion offend s 92

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PARTICULAR APPLICATIONS

Castlemaine - But all trade must submit to such regulation as may be NAA to the protection of the community from a real danger to its welfare

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(If in Castlemaine they just completely discouraged sale of beer in those bottles to preserve the environment - that would be fine since interstate trade would only be impacted incidentally and not disproportionately)

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Betfair - the real question is whether the asserted legislative objects offer an acceptable justification for differential treatment

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Cole v Whitfield - Law to protect the crayfish population was not a discriminatory burden of a protectionist kind. To the extent it was it was a necessary means to enforce a prohibition Bath v Aston Holdings - (partial exemption of a tax) - discriminatory in form (singled out VIC wholesalers) substance (incentive for retailers to use them) and broader context Castlemaine Tooheys - law went beyond what was appropriate and adapted to the resolution of equating the cost posed by each type of bottles by requiring too high a refund amount Betfair - where there are other nondiscriminatory options it will be invalid

ORDER OF INQUIRY Is it prima facie discriminatory ?
invalid

No? Is it a law of general application that is discriminatory in effect?

If so, is it of a protectionist kind?

If it pursues a non-protectionist object - does it discriminate in pursuit of that in a protectionist fashion?

Even (1), (3), (4) are yes - is it necessary, appropriate and adapted to the protection of the community from a real danger to welfare? OR are the asserted legislative objects an acceptable justification for differential treatment?

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