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#7202 - Federal Constitutional Law Super Summaries - Federal Constitutional Law

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Introductory Concepts

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”

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.

  • WorkChoices Case – Industrial relations is broader than industrial disputes; s 51(xxxiv) refers only to interstate industrial disputes and as an express conferral of power on this subject matter does not imply a limitation on the power (through s 51(xx)) to regulate intrastate industrial relations; Bourke v State Bank of NSW – “other than State Banking” – expressly restricts CTH power

  • This is so unless there is an express limitation on the power (e.g. Banking is limited with respect to State Banking – thus other powers cannot be used to limit State banking)

Grain Pool

  • The constitutional text is to be construed with all the generality which the words used admit

  • The character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates

  • The practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and head of power

  • Where a law answers the description of two subject matters – one within and one outside CTH power – the law will be valid even though there is no connection between the two subject matters

    • Fairfax – Even though the “purpose of the law” was encouraging investment, it’s substance is found in the rights/obs. imposed; and the law exempted investment tax and was thus a law wrt taxation

    • Murphyores – A power to legislate with respect to something includes a power to impose absolute and conditional prohibitions by reference to criteria with no relevant to the subject matter of the power (here Minister approval for a law with respect to trade and commerce) [except with purpose powers it must be ensured that the “Stream does not rise above its source”

    • Herald & Weekly Times v CTH – upheld that attaching conditions unrelated to the subject matter is permissible. If conduct is regulated (here broadcasting) or prohibited it must be relevant to the subject matter (here television services). The law insulated control of activities connected with exercising a television license from relationships of influence – it was necessary a law on television services.

  • The justice and wisdom of the law and the degree to which the means it adopts is necessary or desirable are matters of legislative choice

    • Further, the constitutional words “copyright, patent, design or trademark” are legal constructs and are thus not limited to their meaning in 1900; a degree of evolution must be permitted – the expanding meaning was sufficient to encompass ‘plant variety rights’

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”

  • Burton v Honan – matters of incidental powers are questions of degree. If the subject matter is within the legislative power of the CTH, matters of justice and wisdom are entirely or them to decide

Subject Matter Powers

  • Subject matter powers: Re F Ex parte F; Fisher v Fisher: A law directly operating on a subject matter (Re F; Mason and Deane JJ here marriage) is within the central power of the grant and is a law with respect to that subject matter. If it does not affect the subject matter, the question of validity depends on the nature and strength of any connexion between what the law does and the subject matter

Purpose Powers and Proportionality

  • Polyukhovich (War Crimes Act Case) – Brennan J in dissent distinguishes between times of war and peace for the defence power. In times of piece the abridging of a freedom (or any law) must be proportionate to the defence interest to be served [use only to understand the test – not to apply it]

  • Nationwide News

    • Mason CJ extends that discerning whether or not a law is within the incidental scope of the substantive...

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Federal Constitutional Law