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Fcl Brain Storm Notes
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Powers
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Legislative Power
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Appropriation and Spending:
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Exercise duties: s 90 Freedom of Interstate Trade: s 92 Cigamatic Discrimination against residents of other States: s 117 IFPC
Restriction of Commonwealth Law:
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Appropriation: s 81+s 83 (must have an appropriation legislation) Spending: (generally, must have a spending legislation also)
• Nationhood power: s 61+s 51(xxxix)
• Grants power: s 96
Restriction of State Law:
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Subject Matter Power
• Trade and Commerce Power: s 51(i);
• Corporation Power: s 51(xx);
• Race Power: s 51(xxvi)
• Acquisition power: s 51(xxxi) Purpose Power
• External Affairs Power: s 51(xxix)
• Defence Power: s 51(vi)
Freedom of Interstate Trade: s 92 Melbourne Corporation Doctrine. Acquisition power: s 51(xxxi) IFPC Freedom of religion: s 117
Inconsistency: s109 and severance.
Powers
Interaction Between Power
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s 51(i) is affected by s 92, interstate trade and commerce thus needs to be absolutely free: ANA Case.
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s 51(ii)
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Laws made under s 51(ii) cannot deal with other matter: s 55 State taxation law cannot impose exercise and customs duties: s 90.
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s 51(vi) is subject to this Constitution, for example s 92 (Gratwick), s 51(xxxi) (Dalziel).
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s 96
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Not subject to s 99 (Federal Roads Case); s 51(ii) and s 51(iii) (Moran) But subject to s 116 (DOGS); s 51(xxxi) (ICM v Cth)
s 51(xxxi)
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s 51(xxxi) does not apply to s 51(ii) (taxation power) (Ninendo); s 51(xvii) (bankruptcy law) and social security law (Schmidt); s 51(xviii) (Copy rights).
s 51(i)
Trade and Commerce (9)
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Sufficient connection test.
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Meaning of Trade & Commerce
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Limitations
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Can regulate activities Including all mutual communings, the negotiations, the bargain, the transport and the delivery of the sale of goods and services: W&A McArthur. Can regulate intangible goods and service: Bank Nationalisation Case With other countries or among the States, not within the States: W&A McArthur. Need to be harmonised with s 92: ANA Case.
Incidental Powers
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To protect against danger of physical interference with the interstate and international trade: Second Airline Case. Extend to all matters which may beneficially or adversely affect the export trade of Australia, including packing, get-up, description, labelling, handling: O'Sullivan. But commercial consideration, like efficiency, competitive and profitability is not permitted: AG(WA) v ANA.
s 51(xx)
Corporation Power (11)
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Sufficient Connection test.
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Scope of Corporation Power: Work Choices
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Examine its current activity rather than the original purpose: Adamson's Case. Trading and financial activity must be a substantial proportion of a corporation's total activity: SSB v TBC. Non-active corporation determined by its purpose: Fencott. Regulation of the activities, functions, relations and business of a constitutional corporation —
(including preliminary activities: Tasmanian Dam) Creation of rights and privilege belonging to a constitutional corporation Imposition of obligation on a constitutional corporation. Regulation conduct of employee, shareholder, etc. Regulation of those conduct is capable of affecting the corporation's activities, functions, relations or business.
Limitations:
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Limited to foreign corporations and trading or financial corporations. Not extend to corporations constituted for municipal, mining, manufacturing, religious, scholastic, charitable, scientific and literary purposes: Huddart. Law operating on the conduct of outsider invalid unless the conduct has significance of trading, financial or foreign corporations: Re Dingjan. Creation of corporation cannot be relied on corporation power: Incorporation Case.
s 51(xx)
Taxation Power (13)
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Sufficient connection test.
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Element of Taxation: Matthews v CMB
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Not a tax: fines or penalty; charges for the acquisition or use of the property; fees for privilege; breach of statutory obligation; payment for service rendered; substitution of non-custodial parent's debts Air Caledonie
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Compulsory For public purposes
• Money paid to CRF indicates it is for public purpose: ATMA v Cth; but not necessarily mean it is a tax: Luton
• For public interests is enough: ATMA v Cth - direct/indirect benefits to general community: Luton.
• Not necessary be extracted by public authority: ATMA v Cth.
• Private benefit will not rule out public purposes: ATMA v Cth.
• An object of raising revenue is significant but not decisive: AA v CAI.
• Irrelevant if raising revenue being secondary purpose: NSGCRT v Cth. -(employee training). Enforceable by law
Fee for Services: payable by person receiving the service; proportionate: Harper
Other possible issue: Refund can be a tax, sufficient connection required: Pape.
s 51(xxvi)
Race Power (17)
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Sufficient connection test.
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Special Law
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Deemed necessary
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Basically a parliamentary issue: Kartinyeri. But courts retain some supervisory jurisdiction: Kartinyeri.
People of any race
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Focus on consequence rather than motive: Tasmanian Dam. A law protects all races is not a 'special law': Koowarta. Must has special connection with the people of a race: Tasmanian Dam. May confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race: WA v Cth.
Can support a law for a sub-group of a particular race: Kartinyeri. Now includes Aboriginal people: Tasmanian Dam.
Must for the benefit
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No conclusive answer: Kartinyer. But can withdraw a statutory benefit granted: Kartinyer.
s 51(xxix)
External Affairs Power (19)
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Merely geographic externality is sufficient: Horta.
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Including matters affecting Australia's relations with other countries: XYZ v Cth. Whether it is necessary is decided by the Parliament: Polyukhovich. Sufficient connection arguably required: Polyukhovich.
For the purpose of implementing treaties: Tasmanian Dam
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Irrelevant if the matters wholly within Australia: Tasmanian Dam Not limited to those known obligations, extend to reasonably apprehended obligations: Richardson. Requirement for the Implementation:
• The implementation of treaty must be 'bona fide': Burgess.
• Cth is free to devise its own 'appropriate' means: Second Airlines Case.
• It is a purposive power, proportionality test required. Requirement for the treaty:
• Treaty must be made bona fide: Tasmanian Dam.
• Treaty must embody precise obligations, not vague aspirations: Industrial Relations.
• Validity irrelevant to whether the treaty itself is void or unlawful: Horta. Recommendation can be relied on only if the terms of the recommendation can be regarded as appropriate and adapted to give effect to the terms of the treaties: Industrial Relations. Requirement for the Legislation:
• Legislation must adhere sufficiently to the convention or treaty: Burgess.
• The law must be 'sufficiently stamped': Industrial Relations
• Partial implementation is valid: Tasmanian Dam.
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