This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Federal Constitutional Law Notes

The Melbourne Corporation Principle Notes

Updated The Melbourne Corporation Principle Notes

Federal Constitutional Law Notes

Federal Constitutional Law

Approximately 408 pages

Cases and materials summary notes based on Blackshield & Williams Constitutional Law (2011), super summaries intended for easy reference in an open book exam and "policy notes" geared towards writing essays. Structure of the cases and materials summary notes are as follows:

Class 1- Fundamentals of Australian Constitutional Law
Class 2&3 - The high Court and Constitutional Interpretation
Class 4 - The High Court and Characterisation
Class 5 - Inconsistency
Class 6&7 - Economics Powers
Cl...

The following is a more accessible 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:

The Melbourne Corporation Principle (Part 1)

Commonwealth Laws and the States

The Melbourne Corporation Principle

  • In the Engineers’ Case it was said that the principles applied to the CTH applied to the states and generally judgments moved in focus from what the CTH could to States to what a State could do to the Commonwealth

  • In Melbourne Corporation v Commonwealth these vague notions were coalesced into a doctrine that limited only what the CTH could do to states

Melbourne Corporation v Commonwealth (1947) 74 CLR 31

Facts: During WWII CBA was given a power to oversee private banks and control the supply of money and credit. The Banking Act 1945 sought to make this permanent. Ben Chifley (PM and Treasurer) proposed to compel states and authorities, including LGAs to bank with the CB. Section 48 provided that banks could not conduct banking business for a State or authority of a State, including an LGA without consent of the treasurer. The Melbourne City Council were notified that it was an authority to which s 48 applied and thus sought to have it struck down.

Held: s 48 is invalid

Dixon J noted that the Engineers’ Case stood for the prima facie rule that a power to legislate wrt a given subject gives the Parliament power to make laws on that subject which affect the operation of State agencies. But this is subject to three reservations:

  • The prerogative and tax power (irrelevant to this Case

  • The use of federal legislative power to make, not a law of general application, but one which discriminates against States or places a particular disability on the operation of its activity and the execution of its constitutional powers – essentially exercising its executive function

Though this control can be attempted where a matter falls within a head of power but it doesn’t fallow that that connection with the matter brings a law aimed at controlling the State’s exercise of its powers within the exercise of CTH legislative power. These laws wear two aspects:

  1. The matter wrt which it is enacted is restriction of State action – prescribing the course the executive should take or limiting the courses available to it. The direct operation of such a law is to place a disability on the State and thus it can be described as a law for the restriction of State action in the chosen field

  2. The other aspect is that the law is connected with a subject of CTH Power

    1. If so insubstantial, tenuous or distant by the control it seeks to impose upon state it will fail because it cannot be described as being wrt that subject matter

    2. But if it operates directly on a matter in an actual head of power its validity couldn’t be denied on the grounds of irrelevance. Generally such a law will be valid unless a further reason appears to exclude it

      1. May be difficult on powers like lighthouses, bills of exchange etc. but not wrt things like tax

But there must be firm adherence to the principle that the federal power of taxation won’t support laws placing special burdens on states. The federal system itself is the foundation of the restraint on the use of power to control States – and this constitutional objective applies to all powers if States are made the subject of special burdens (except those which are concerned with special states – 31, 32, 33, 35).

  • Regardless of the overthrow of the doctrine of reciprocal immunity of government, the CC does not countenance the notion that the legislative powers of a government in the system can directly deprive another of powers committed to it, or restrict that government in its exercise

    • It is for this reason that the distinction is drawn between a law of general application and one singling out single governments for special burdens

  • The foundation of the Constitution is the concept of central government and separate State governments – the Constitution predicates their continued existence. States are conceived as bodies politic whose existence and nature are independent of the powers allocated to them.

    • On this footing the constitution proceeds to distribute powers between the CTH and States and provide for their inter-relation

  • His honour noted that the fact that a power may be abused doesn’t mean it’s to be restricted forms a proper objection to the view that governments cannot exercise power interfering with others, but it is irrelevant where the question is an attempt to restrict/control the State in the exercise of a function forming part of its executive power is permitted by the Constitution

    • Of further note is the fact that the federal government’s power is necessarily stronger than that of the States – it carrying affirmative grants of executive power

      • These two considerations add great strength to the implication protecting the CTH from the operation of State laws affecting the exercise of federal power but also amplify the field protected and limit the claims of States to protection from exercises of CTH power

  • Thus the considerations on which States’ title to protection from CTH control doesn’t arise from the character of their powers but from their position as separate governments exercising independent judicial functions

“To my mind, the efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the CTH to make a law aimed at the restriction or control of a State in the exercise of its executive authority. In whatever way it may be expressed an intention of this sort is, in my opinion, to be plainly seen in the very frame of the Constitution”

(The other judges based their conclusion on different emphasis):

Starke J also thought that the maintenance of States and their powers is as much an object of the Constitution as the maintenance of CTH power and thus they could not abolish one another. However he differed from Dixon J in that he thought the presence/absence of discrimination was not a decisive test for...

Buy the full version of these notes or essay plans and more in our Federal Constitutional Law Notes.