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Federal Constitutional Law Super Summaries Notes

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This is an extract of our Federal Constitutional Law 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.

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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 o

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: o

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 personRussel 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 downStrickland 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 InstrumentalitiesD'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 o

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 RailwaysSteel 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 controlWire 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 powerR 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 powersIn 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 powerThis 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 PoolThe constitutional text is to be construed with all the generality which the words used admitThe character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it createsThe 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 powerWhere 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 PowersSubject 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 ProportionalityPolyukhovich (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 power depends on it being RAA to the pursuit of an end within powero

Here the law made the IRC completely immune to criticism and despite the IRC's important decision making it went too far as against the public interest in scrutiny and criticism

Dawson J doubts the validity of applying the proportionality test beyond purpose powers - the test of 'sufficient connexion' is the ultimate guide ? in Leask v CTH Dawson J remarked that looking at the "end" of a power as one does with proportionality is relevant in that its connection with the subject matter of the power may appear more clearly - Brennan CJ, Gummow J and McHugh J agreed


In Al-Kateb Hayne J said that questions of proportionality are not helpful or legitimate to ask but can be useful in considering a law's connection with a head of power since it can be a test apposite to identifying whether a law is a law with respect to one thing or another


Key Cases



Inconsistency under s 109

Clyde v Cowburn - State = 44 hpw

Though both laws can be obeyed, if the paramount legislature expresses an intention to cover the whole field, the conclusive test of inconsistency is whether another legislature attempts to enter to any extent on that field.

Comments Remember - invalid just means inoperative The TB writers split it into 3:

CTH = 48 hpw

Ex parte McLean CTH - breach award =
penalty fixed by CCA/CComHere both cover the field + direct inconsistency. The State law detracted from the CTH one and the CTH one intended to cover the field. It was thus inconsistent.


IF a CTH law and State law legislate and both provide the same rule of conduct - the laws are


This is because by prescribing that rule attaching to that conduct, the Federal Statue shows an


This inconsistency arises from the intention of the paramount legislature to exhaustively govern the conduct at which it is directed, rather than from the mere existence of the two laws

Dao v APC


The CTH Act imposed a duty which couldn't be disregarded. The EEO usurped that duty

CTH = medical examination by the APC to determine fitness to be a postal officer


The State Act was in direct collision with the CTH Act and thus gives way under s 109

Commercial Radio v Fuller


The laws occupied different fields and were thus not inconsistent on the basis of covering the field

CTH - must erect 170m antennae for license to broadcast


As distinct from conferring authority, the CTH law required the construction of antennae - it was

State ADA - prohibited sex discrimination as determined by the EEO

thus not inconsistent under Test 2 State - required EP Assessment


Wilson, Deane and Dawson J: The CTH law conferred a permission to broadcast, not an authority to do so. Further, the law was concerned with technical efficiency and left room for the operation of other laws relevant to the operation of services (such as EP assessments) - it is not an immunity


Direct Inconsistency Gibbs CJ and Brennan J: A law imposing a duty subject to a penalty (a license) can be construed as conferring an unqualified right, or a qualified right subject to other penalties


Here the CTH legislation was intended to operate against a background of State legislation


Anuja suggests you would have to 'argue' an unqualified right on the basis of public policy which shows an intention to do more than just give 'permission' to do something

Ansett v Wardley

Direct Type 1 - One requires you to do something, other requires you not to. Daniell - CTH law provided State referendum can't be held on X date - State law provided for referendum on that date ?
inconsistentDetraction (Direct Type 2) - One law purports to give a right/privilege/entitlement, other purports to take it. Bradley Brothers
- State law made it an offence for women to work on certain machines; Cth law said they could ? inconsistent. Must work out the effect of both laws for this type of

inconsistent even if both prescribe the same conduct

intention to cover the field NSW - absent = 10 pounds*

Stephen J: The CTH Act is a law of particular application settling disputes between employers and

CTH - CCA + Pilots Agreement provided dismissal of pilots with less than 6 mths service w/o notice

particular employees while the State Act is one of general application giving effect to far reaching social reforms ? Thus there is no intention to cover the field


VIC - Sex discrimination is unlawful

The Agreement and CTH Act operate within the background of the general law and cannot be read as if creating a vacuum to ignore everything else - the right to terminate is thus not absolute and there is no direct inconsistency (by detraction)


CTH - Life Insurance Act - Policies had to be approved by an Actuary


NSW - ADA; cannot discriminate/offer different terms to a physically handicapped person in providing G&S ALPA v LSC

The State law is inconsistent with this in that it detracts from the scheme by disallowing the classification of risks according to physical impairment - it is thus inconsistent with the scheme of the Act regulating the fixing of such premiums reflecting the classification of these risks


Covering the field - the CTH legislation has to purport to be the only law; there are two questions ? Is the CTH law intended to be the only exclusive law on topic?; Does the State law operate in the same field?

Note Telstra Corporation v Worthing - the fact of Test 1 inconsistency does not preclude inconsistency if there is no Test 3 inconsistency. They are all sufficient conditions.But the application of one doesn't rule out another as in Wallis v Downward Pickford; State Act limited damages for injury to goods while the CTH Act gave full contractual warranty. This was a direct inconsistency

Gleeson CJ and Heydon J: Unlike Goulden the operation of the CTH legislation was not contingent/ essential on the rights altered by the State regime being absent. Preventing advertising doesn't impair federal laws giving a right to access the courts for compensation - these rights still have their full effect

CTH - Three Acts established rights of appearance and compensation for PI victims NSW -prohibited advertising for legal services relating to PI

The CTH Act gives effect to a legislative policy allowing companies to fix premiums in order to assess what are appropriate risks to take

*Mason J: The legislation operates against the background of the general law right to terminate and merely imposes additional preconditions on the common law right. It does not give a substantive right to effect dismissal but just gives certain conditions. The State Act does not detract from this.

AMPS v Goulden



Callinan J - The idea that advertising impairs the federal law is farfetched and it no more impairs the right to access courts than filing fees (thus no direct inconsistency type 2)


Wardley, Goulden and APLA can be read as the same series of cases about CTH legislation prescribing 'rules' on the basis of public policy - although the last 2 are 'industry based' rules.

The TPA creates a cause of action; the non-advertising rule does not impinge this COA
- a slight impact does not give rise to constitutional inconsistency; it must be one of some significance that would have the effect of rendering ineffective the exercise of Fed Jurisdiction

Note the Kirby dissent in ALPA v LSC - the court should be vigilant to protect the rights of vulnerable people just as it was in Goulden to protect the rights of large insurance company. This was analogous for Kirby because banning advertising 'impaired' the ability of individuals to benefit from the rights conferred by the CTH Act (there is no point in having statutory remedies if people are unaware of them - therefore advertising)


Key Cases

S 109 inconsistenc yOperational inconsistenc y

Commonwealth v WA (Mining Act Case) CTH - Defence Act prohibited activity during defence operations




The provisions of the Mining Act can't detract from the operation of the Defence Regulations just because they can't be obeyed simultaneously. This is because the Mining Act doesn't give rights to use land - it gives an Authority the right to grant persons to use land


WA - Mining Act provided for license in certain areas

This is the same for the Defence Regulations - they don't prevent entry on the area unless a

BUT if an authority were granted pursuant to the Mining Act at the same time as an operation is authorized under the defence regulations, there would be a direct inconsistency between both AUTHORIZAITONS. This stems from an 'operational inconsistency'


Thus s 109 will render the State law inoperative to the extent of that inconsistency and only as long as it remains. As this situation has not yet arisen, there is no inconsistency

Wenn CTH Act - established a scheme for preferential employment of ex-military VIC - provided for preference in promotion

TB writers say that this species of inconsistency is 'broader' in the sense that the two laws can operate in a different field and still be inconsistent; but 'narrower' in the sense that it only leaves State laws inoperative for particular applications.

defence operation is authorized pursuant to the regulations


Manufacturi ng Inconsisten cy



Latham CJ: The re-establishment into civilian life of discharged servicemen is a matter falling within the legislative competence of the CTH under the defence power.


A law within the subject matter of a head of power expressed to apply to the exclusion of State laws thus covers the field


Federal laws prevail over state laws to the extent of inconsistency under s 109 - this isn't a

Note that Manufacturing inconsistency evokes considerations of the federal balance - this was what Evatt J was scared about. In Forsyth where he held that CTH laws on a different subject matter to a State law that simply imposes greater burdens (on aliens here) could not 'cover the field' by doing so. And in West he held that CTH laws attempting to manufacture inconsistency will be ultra vires.E.g. a CTH law forbidding State elections 6 months prior to a CTH one = invalid (but not if it says you can't do it on the same day ? here the state still has 364 days)He said that with 'people powers' like the races power it was impossible to cover the field because of the variety of possible topics to legislate on

case of federal laws attempting to limit the powers of State Parliament


Dixon J - The argument fails because:


There is a direct inconsistency in that both Acts purport to determine the extent of legal obligations to give ex-servicemen preference. The Federal Parliament intended to so exclusively and thus a State law cannot carry the matter further by imposing additional oblgiations


Legislating exhaustively on a subject matter is different to an attempt to exclude State concurrent power - the latter is much wider.

? Where the CTH legislates with respect to a s 51 matter it isn't open to object to it on the basis of the State legislative power it trenches. But there is a debatable area at which Federal laws may seem to be aimed at a "bare attempt" to exclude State laws without legislating on that area itself Second Airlines Case CTH - Air Navigation Act NSW - Air Transport Act

? Even though the practical effect of two of the concurrent regulation was to require licenses from both and conformity of both; this merits no legal conclusion; only public inconvenience and a deadlock

His reasoning was slowly chipped away by a succession of cases and revived in part in the Second Airlines Case

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