#7199 - Federal Constitutional Law Super Super Summaries - Federal Constitutional Law

(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 AFRs

• Laws bestowing privileges and obligations on them

• Laws regulating the conduct of a third party through whom they act (employees, contractors and shareholders)

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

• 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.

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

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

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

It includes

• WC: Prohibiting content of, or regulating, contracts with them

• WC: Regulating their property

• WC: Incidentally a power to subject others affecting AFRs with obligations (requiring registration of trade unions)

Is the law accomplishing something within power?

Does the law apply to the particular corporation?

Dixon J (ACP) –

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

• In war it isn’t at large – e.g. not to control University enrolment (Drummond)

Fullagar J (ACP)

• Primary Aspect – Defence as its direct and immediate object (enlistment, ships, preventing obstruction of preparation to war) which isn’t confined to war

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

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

• 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)

  • 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 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)

• Dixon J – formal war marks the power ( Cold War = Peace)

  • Callinan (T v M) – No

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

  • 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

• ACP: A power dependant on facts bearing no connection to defence will not be within

• ACP: A recital of facts by 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 objective tests/specified criteria by which the connection with the defence power can be ascertained (e.g. “purposes …irt defence preparations”)

• 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

• Callinan in T v M – terrorism is a clear and uncontradicted threat not just a preamble

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

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 secondary aspect?

The starting point is Latham CJ in Matthews v Chicory Marketting Board: A tax is:

• A compulsory exaction of money

• By a public authority

• For public purposes

• Enforceable by law

• Not a payment for services rendered

But these are neither exhaustive nor necessary

• 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

• 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

• Northern Suburbs Cemetery – A penalty isn’t a tax

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

• Cover charge of $5 for immigration clearance was a tax

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

• A shortfall on employment training doesn’t mandate/prescribe conduct – hence it isn’t a penalty since it doesn’t arise because of a failure to discharge antecedent obligations it’s a tax

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

Does it satisfy all the elements?

Is it a penalty?

Is it a fee for services – if so is it nevertheless a tax?

SUTC – There are no restrictions on the exercise of the s 96 (grants power). It is a non-coercive 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

• Moran’s Case – Grants cannot be merely colourable (impossible to prove).

• FUTC – inducement/temptation to stop taxing isn’t enough (doesn’t deprive them of the power) – only practical/physical coercion will limit the power

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

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

• It can be used to remedy the discrimination of a tax scheme (M)

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

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 kind

• 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 92

• The prescription of commercial conduct won’t

• Laws directed at a non-protectionist object but discriminate in pursuit of that object in a protectionist fashion offend s 92

Gaudron and McHugh JJ in Castlemaine said that a law was discriminatory to the extent that it operates by reference to a distinction which is irrelevant to a particular object to be obtained; or if it operated by reference to a relevant distinction, the differential treatment was not appropriate and adapted to that.

• Accordingly to justify a distinction on the basis of this objective, the distinction must be identified and the object must be explained to be RC of being...