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Fcl Brain Storm Notes

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Legislative Power

Appropriation and Spending:

Exercise duties: s 90 Freedom of Interstate Trade: s 92 Cigamatic Discrimination against residents of other States: s 117 IFPC

Restriction of Commonwealth Law:

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:

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.


Interaction Between Power

s 51(i) is affected by s 92, interstate trade and commerce thus needs to be absolutely free: ANA Case.

s 51(ii)

Laws made under s 51(ii) cannot deal with other matter: s 55 State taxation law cannot impose exercise and customs duties: s 90.

s 51(vi) is subject to this Constitution, for example s 92 (Gratwick), s 51(xxxi) (Dalziel).

s 96

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)

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)

Sufficient connection test.

Meaning of Trade & Commerce


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

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)

Sufficient Connection test.

Scope of Corporation Power: Work Choices

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.


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)

Sufficient connection test.

Element of Taxation: Matthews v CMB

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

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)

Sufficient connection test.

Special Law

Deemed necessary

Basically a parliamentary issue: Kartinyeri. But courts retain some supervisory jurisdiction: Kartinyeri.

People of any race

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

No conclusive answer: Kartinyer. But can withdraw a statutory benefit granted: Kartinyer.

s 51(xxix)

External Affairs Power (19)

Merely geographic externality is sufficient: Horta.

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

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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