Federal Constitutional Law Super Summaries Notes

Precedent and Overruling

• Australian Agricultural Co v Federated Engine-Drivers – prior decisions are not law but declarations as to what the law is. Thus if a judge’s opinion differs they have to give effect to their own view of the law

  • Where a decision is clearly long and there are no circumstances countervailing the primary duty of giving effect to the law as the Court finds it, the real opinion of the court should be expressed

  • Countervailing circumstances include decisions which have been acted upon by the legislature for a significant amount of time

• John v FCT – factors to be considered in deciding to overrule:

  • Earlier decisions don’t rest upon a principle carefully worked out in significant succession of cases

  • Difference between the reasoning of the justices constituting the majority in one of the earlier decisions

  • Earlier decisions have achieved no useful result but led to considerable inconvenience

  • That the earlier decisions hadn’t been independently acted upon in a manner militating reconsiderations (e.g. if social and political upheaval would result)

  • French CJ in Wurridjal says it requires an evaluation of factors which may weigh for or against

  • Anuja suggests the involvement of an important doctrinal issue would make it more likely that a court would reconsider it

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)

• Wilson’s Case – person read down not to include judge since judge could not perform a function required by the Act by a person

• Russel v Russel – may be able to read down a legislative provision to correspond exactly to the scope of the constitutional power (Mason J) – here the jurisdiction of the Family Court was read down

• Strickland v Rocla Pipes – go fuck yourself

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

• D’emden v Pedder – If States attempt to give legislative/executive authority operation that would fetter the exercise of the legislative/executive power of the CTH, unless expressly authorized by the Constitution it would be invalid and inoperative. The idea is that each government is immune to the within the ambit of its authorities to restrictions by others.

• Railway Servants’ Case – The immunity of instrumentalities from the legislative fetter of other governments stems from the interference or control that a government exercise over another

  • State Railways are an instrumentality. The construction of roads/railways as a means of communication is a function of government and generally regarded as a governmental function. Thus the doctrine was sufficient to exclude the power of conciliation and arbitration in s 51(xxxv) to State Railways

• Steel Rails Case – the immunity doesn’t apply if the power conferred on the CTH in express terms is of such a nature that its effective exercise manifestly involves control of State Government functions – e.g. laws with respect to T&C (quarantine, weights, measures, taxation by customs). Thus the right of States to import goods is subject to CTH control

• Wire Netting Case – States cannot claim an exemption from federal law regulating matters of national concern that would frustrate or render legislation inadmissible

Reserved State Powers – this doctrine concerned the interpretation of CTH grants of legislative power

• R v Barger – Since States can clearly regulate conditions of labour, the legislative power of the CTH to impose excise duties cannot be taken as depriving states of the exclusive power to make enactments regulating this. Thus the Act isn’t imposing an excise but rather it regulates conditions of manufacture off agricultural implements – rather than exercising the tax power.

The Engineer’s Case – rejected the doctrine of reserved state powers

• In deciding the prescribed limits of a power – one is to do so “by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which the power is limited, it is not for any Court of Justice to inquire further or to enlarge constructively those conditions and restrictions”

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”