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Federal Constitutional Law Notes

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Introduction Overview of Constitutional Structure

Chapter I- The Parliament Chapter II- The Executive Government
✦ Chapter III- The Judicature
✦ Chapter IV- Finance and Trade
✦ Chapter V- The States
✦ Chapter VI- New States
✦ Chapter VII- Miscellaneous
✦ Chapter VIII- Alteration of the Constitution

Outlined the history of the framing of the Constitution, stating "whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established".

Federalism and the Engineers Case

Early federal constitutional law in Australia was informed by the two doctrines of 'implied immunities of inter-governmental instrumentalities' and 'reserved States' powers' -- these arose by implication from the history of the framing of the Constitution, as the Constitution was regarded as a federal compact in which the States retained their power.
✴ 'Implied immunities of inter-governmental instrumentalities' doctrine

• This doctrine asserted that both the Commonwealth and the States are sovereign within their respective spheres of power, thus they must be free from interference or the imposition of burdens by other government.

• The doctrine was exemplified by D'Emden v Pedder (1904), where Tasmanian legislation purported to impose stamp duty on the salary of Commonwealth employees -- but the HC held that law to be invalid, because Commonwealth officers and procedures were immune from State laws.

• Conversely, this doctrine also meant that State officers and procedures were immune from Commonwealth laws -- as held in Federated Amalgamated Government Railway and Tramway Service Association v New South West Railway Traffic Employees Association (Railway Servants' Case)(1906), State railway employee in NSW were immune from industrial relation laws of the Commonwealth.

• Thus, as described by RTE Latham in "The Law and the Commonwealth", this doctrine was a sort of rule of mutual tolerance.
✴ 'Reserved States' powers' doctrine

• This doctrine asserts that the Constitution established a Commonwealth of a small central government with limited powers, while the States exercised broad plenary powers, as preserved by ss 106-107 of the Constitution.
- s 106 Saving of Constitutions
‣ The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.
- s 107 Saving of Power of State Parliaments
‣ Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

• This meant that Commonwealth powers were to be interpreted in light of the federal distribution on powers, so that they do not unduly infringe upon State powers.
✦ Australian federalism today

• There is a dual sovereignty, with two levels of government
- National (Commonwealth government)
- Regional (State governments)

1

Introduction

• The Constitution empowered the Commonwealth Parliament to pass laws with respect to certain heads of power in s 51, which are effective across Australia (State laws are limited to their own jurisdiction, as provided by s 109).

• Most of these Commonwealth powers are 'concurrent' (can be exercised by both Commonwealth and the States)

• But as provided by s 109, "when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid".

• The Commonwealth can legislate with respect to matters incidental to the execution of any power vested in the Parliament, the Commonwealth Government or a federal court or public servants in s 51(xxxix).

• Further, some powers are exclusive to the Commonwealth, so State laws on such subjects are invalid, including:
- s 52(i): the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;
- s 52(ii): matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;
- s 52(iii): other matters declared by this Constitution to be within the exclusive power of the Parliament;
- s 90: exclusive power over customs, exercise and bounties -- prevents States from imposing customs and excise
- s 114: State may not raise forces. Taxation of property of Commonwealth or State -- prevents States from raising armies or taxing Commonwealth property.
- s 115: State not to coin money -- prevents States from coining money.

• The Commonwealth has plenary power to make laws with respect to the Territories in s 122.

• The States otherwise have plenary powers, with their own Constitutions recognised in s 106 and their own laws recognised in s 108.

• The Commonwealth may induce the State to make particular laws by attaching conditions to financial grants in s 6, while the States can also 'hand over' or 'refer' specific powers to the Commonwealth through s 51(xxxvii)

• The Commonwealth may also pass laws which give effect to international obligations, overriding State laws, as provided by s 51(xxix). Mental Storm of Constitutional Law

Does the relevant Parliament have the power to enact the law in question?
✴ For the Commonwealth Parliament, start by characterising the law.
➡ Is there a relevant head of legislative power?
✓ Dual characterisation is possible.
➡ Subject matter power or purposive power?
✓ For a subject matter power, is there a sufficient connection with that head of power?
✓ For a purposive power, is the law capable of being seen as reasonably appropriate and adapted to achieve that purpose?
➡ Does the incidental power apply?
✓ Express incidental power: s 51(xxxix)
✓ Implied incidental power.
✴ For a State Parliament
➡ There is plenary legislative power.
➡ But is it a law with respect to the peace, welfare and good government of the State?
➡ Is there a Cigamatic issue?
✓ A State legislature has no power to impair the capacities of the Commonwealth executive.
✦ Does the law breach an express constitutional prohibition?
✴ For a Commonwealth law, does it breaches:
➡ s 51(xxxi) -- compulsory acquisition of property on just terms?
➡ s 116 -- freedom or religion?
➡ s 92 -- freedom of interstate trade?
✴ For a State law, does it breach:
➡ s 90 -- Commonwealth has exclusive power to impose customs and exercise duties?
➡ s 92 -- freedom of interstate trade?
✦ Does the law breach any implied constitutional prohibition?
✴ Does it breach implications flowing from federalism?
➡ Melbourne Corporation Doctrine.

2

Introduction

Doest it breach implication flowing from representative government?
➡ Implied freedom of political communication.
✦ Can the law be 'read down' or 'served'?
✴ s 15A of the Acts Interpretation Act 1901 (Cth).
✦ Do any issues arise as to the formalities of enacting the law? For example,
✴ s 53 provides that "proposed law appropriating revenue or moneys ... shall not originate [or be amended] in the Senate -but "proposed laws appropriating revenue or moneys" can be rejected by the Senate, while the Senate may also validly request amendments.
✴ s 54 provides that "Bills appropriating revenue for the ordinary annual services of the Government shall deal only with such appropriation" -- no tacking is possible.
✴ s 55 provides that "laws imposing taxation shall deal only with the imposition of taxation and that any provision dealing with other matters shall be of no effect -- no tacking is possible.
✴ s 56 applies to both categories of appropriation bills -- it provides that "a vote for the appropriation of money shall not be passed unless the purpose of the appropriation has been recommended in the same session by a message from the Governor-General to the House in which it originated".
✦ Is the law ineffective or inoperative for any other reason? For example,
✴ Is the State law inconsistent with a valid Commonwealth law?
➡ Directly?
➡ Indirectly?
✴ Does a subject of the Queen have an immunity from the law under s 117?
➡ Immunity from laws that discriminate against residents of other States.
✴ Is it a scheme to avoid the operation of s 51(xxxi)?
➡ Compulsory acquisition of property on just terms.
✦ To whom the law applies? For example,
✴ Is the law intended to bind the Crown and can it do so? Cigamatic
✴ Does it only apply to trading, financial or foreign corporations and if so, is the body in question a trading, financial or foreign corporation under s 51(xx)?

3

Constitutional Interpretation General Approach

The interpretation of the Australian Constitution should employ the ordinary rules of statutory interpretation.Thus the only safe rule is to look at the Constitution itself, and to gather from it what is its intention.: Drawbacks Case (1904)
✴ Language of the Constitution
- Golden rule: the only safe course is to read the language of the stature in what seems to be its natural sense: Engineers Case (1920)
- In cases of ambiguity, "recourse must be had to the context and scheme of the Act": Engineers Case (1920)
✴ Intention of the legislature: the intention of the enactment is to be gathered from its words: Drawbacks Case (1904)
- If the words are plain, effect must be given to them:
- If the words are doubtful, the intention of the legislature is to be gathered from the other provisions of the Statute aided by a consideration of surrounding circumstances, also including the contemporaneous circumstances, i.e., to the history of the law, for example, the previous legislation, historical facts surrounding the bringing the law into existence.
- The Constitution should be construed purposively. The founders' intentions and understandings...are relevant...and only can be construed 'to the extent that they can be seen to be generally consensual:Work Choices Case (2006)
- Words have a fixed connotation but their denotation may differ from time to time: Street v Queensland Bar Association (1989)
✦ Other settled rules of statutory construction: Engineers Case (1920)

• In cases of ambiguity, "recourse must be had to the context and scheme of the Act".

• There are also a number of statutory assumptions:
- An Act is assumed not to abrogate human rights unless a contrary intention is made expressly clear
- An Act is assumed not to contravene international law unless a contrary intention is made expressly clear
- An Act will be read as conforming to the Constitution as far as this is possible, as provided by s 15A of the Acts Interpretation Act 1901 (Cth)

1. This case involved a claim by a union of engineers in the Commonwealth Court of Conciliation and Arbitration for an award relating to 843 employers across Australia, including three governmental employers in Western Australia. Issue: Whether a Commonwealth law made under the 'conciliation and arbitration' power in s 51(xxxv) could authorise the making of an award binding those three governmental employers in Western Australia Held, The Commonwealth law made under the 'conciliation and arbitration' power in s 51(xxxv) indeed could authorise the making of an award binding those three governmental employers in Western Australia

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129 Impact of the case

Its overthrow of the 'implied immunities' and 'reserved State powers' doctrine was decisive and of lasting effect.

• 'Implied immunities' doctrine
- This doctrine asserted that both the Commonwealth and the States are sovereign within their respective spheres of power- thus, they must be free from interference or the imposition of burdens by other governments

• 'Reversed State powers' doctrine
- This doctrine asserts that the Constitution established a Commonwealth of a small central government with limited powers, while the States exercised broad plenary powers, as preserved by ss 106-107 of the Constitution Reasoning

In analysing s 51(xxxv), Knox CJ, Isaacs, Rich and Starke JJ asserted that it was "in terms so general that it extends to all industrial disputes in fact extending beyond the limits of any one State, no exception being expressed as to industrial disputes in which States are concerned". Interpretation of the Constitution

The Court (Knox CJ, Isaacs, Rich and Starke JJ) prefers 'golden rule' or 'universal rule':

• The only safe course is to read the language of the stature in what seems to be its natural sense.

• The ordinary meaning of the terms employed in one place may be restricted by terms used elsewhere: that is pure legal construction. But once their true meaning is so ascertained, they cannot be further limited by the fear of abuse.

• The non-granting of powers, the expressed qualifications of powers granted, the expressed retention of powers, are all to be taken into account by a Court.

• But the extravagant use of the granted powers in the actual working of the Constitution is a matter to be guarded against by the constituencies and not by the Court.
✦ Settled rules of (statutory) construction (asserted by the court):

• The 'golden rule'- "to read the language of the statute in what seems to be its natural sense", from Lord Haldane LC in Vacher's Case (1913)

4

Constitutional Interpretation

1. The Commonwealth of Australia was established on 1st January, 1901 and uniform duties of Customs and uniform duties of Excise were imposed on 8th October, 1901. Before the imposition of the uniform duties, the Commonwealth was to make monthly payments to each State of all' revenues collected there in by the Commonwealth", as provided by s89 of the Constitutions.

2. Goods were imported, and then produced and manufactured in the State of Victoria between 1st January, 1901, and 8th October, 1901, and duties of Excise were paid thereon to the Commonwealth and the said duties of Excise were duly credited to the State of Victoria as prescribed by sec. 89 of the Constitution of the Commonwealth of Australia.The said goods passed into the State of Tasmania for consumption after 8th October, 1901.

3. The goods so imported passed into the State of Tasmania for consumption after 8th October, 1901. Some of the said goods were dutiable under the Tasmanian tariff in force prior to 8th October, 1901, at a rate higher than, some at a rate equal to, and some at a rate lower than the rate paid thereon under the said Victorian tariff as aforesaid.

4. Neither the whole nor any part of the said duties of Customs collected in Victoria by the Commonwealth or of the said duties of Excise paid in Victoria to the Commonwealth as aforesaid have been paid or credited by the Commonwealth to the State of Tasmania.

5. The said duties of Customs and duties of Excise amounted approximately to
£12,000.

6. The State of Tasmania contends that upon the true construction of the Constitution of the Commonwealth of Australia (s 93 of the Constitution) the said duties of Customs and duties of Excise must be taken to have been collected in Tasmania, and that the State of Tasmania is entitled to be credited therewith by the Commonwealth. Issue:

1. Is the State of Tasmania entitled under the Constitution of the Commonwealth of Australia to be credited by the Commonwealth with the duties of customs collected by the Commonwealth in the State of Victoria on goods imported into Victoria between 1st January, 1901, and 8th October, 1901, and passing therefrom into the State of Tasmania for consumption after the said 8th October, 1901?

2. Is the State of Tasmania entitled under the Constitution of the Commonwealth of Australia to be credited with the duties of Excise paid on goods produced and manufactured in the State of Victoria between 1st January, 1901, and 8th October, 1901, and passing therefrom into the State of Tasmania for consumption after the said 8th October, 1901?
Held, The State of Tasmania was not entitled to be credited with the duties. Action failed.

• In cases of ambiguity, "recourse must be had to the context and scheme of the Act", from Lord Loreburn LC in AttorneyGeneral for Ontario v Attorney-General for Canada (1912)

• There are also a number of statutory assumptions:

• An Act is assumed not to abrogate human rights unless a contrary intention is made expressly clear

• An Act is assumed not to contravene international law unless a contrary intention is made expressly clear

• An Act will be read as conforming to the Constitution as far as this is possible, as provided by s 15A of the Acts Interpretation Act 1901 (Cth) State Law v Commonwealth Law

The High Court now favours strong Commonwealth powers, with the supremacy of the Commonwealth over the States enforced through s 109 of the Constitution.

• It is a fundamental and fatal error to read sec 107 as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in sec 51, as that grant is reasonably construed, unless that reservation is as explicitly stated.

• The effect of State legislation, though fully within the powers preserved by sec 107, may in a given case depend on sec

109.

• Which means, in case of conflict, giving to valid Commonwealth legislation the supremacy expressly declared by the Constitution, measuring that supremacy according to the very words of sec 109. Use of historical materials

Tasmania v Commonwealth and Victoria (Drawbacks case) (1904) 1 CLR 329 O'Connor J: [358]

• It appeals to me the only safe rule is to look at the Stature itself, and to gather from it what is its intention.

• If the meaning of the language is plain and clear, we have nothing to do but to obey it -- to administer it as we find it.

• The intention of the enactment is to be gathered from its words.

• If the words are plain, effect must be given to them;

• If they are doubtful, the intention of the legislature is to be gathered from the other provisions of the Statute aided by a consideration of surrounding circumstances.

• In all cases in order to discover the intention, you may have recourse to contemporaneous circumstances -- to the history of the law, and you may gather from the instrument itself the object of the legislature in passing it.

• In considering the history of the law, you may look into previous legislation, you must have regard to the historical facts surrounding the bringing the law into existence.

• There is no foundation for any such distinction that there might be a difference in the rules of interpretation to be applied to the Constitution and those to be applied to any other Act of Parliament.

• The rules of interpretation to be applied to the Constitution should be the same as those to be applied to any other Act of Parliament. [Vanessa]
Intention of framers

• Doctrine of originalism:

• The constitutional interpretation should adhere to its 'original intent' (the original understanding of the text): Cole v Whitfield (1988)

• Doctrine of 'intentional originalism'

• The Constitution should be construed in the light of its history. It should be construed purposively. The founders' intentions and understandings...are relevant...and only can be construed 'to the extent that they can be seen to be generally consensual': New South Wales v Commonwealth (Work Choices Case) (2006) per Callinan J (dissenting) Textualism

• Doctrine of 'textual originalism'

• The focus is on the constitutional text, with no attempt to discover the subjective intentions of its authors. 5

1. The applicant was convicted of murder and was sentenced to imprisonment for life.

2. The grounds of the present application to the HC are as follows: a. At his trial, the applicant was unfit to plead. He was unfit to instruct counsel or to defend himself, because of mental illness. b. The Director of Public Prosecutions and Crown Prosecutor knew it was likely that the applicant suffered from mental illness which would render him unfit to plead, to instruct counsel or to defend himself, and should have informed the learned trial judge of the fact. c. Because of the applicant's mental illness and his unfitness to plead, the trial miscarried. Issue: the interpretation of the constitutional law is discussed in the case. (appellant jurisdiction of the HC, s73) The appeal is dismissed.

1. The Rules of the Supreme Court (Qld) prevented barristers from other being admitted while they continued to practice in other states (applicants had to sign an affidavit to that effect)

2. They were later amended to require only that applicants 'practice principally in the State of Queensland'; the amendments also imposed a 12 month period of conditional admission during which the applicant had to show that 'he has practised principally in Queensland'.

3. Mr Street is a New South Wales barrister wanting to practice in both Queensland and New South Wales. He argues that the practical effect of the admission requirements was to limit admissibility to residents of Queensland, hence infringing s 117 of the Constitution Held, Mr Street was immune from the Queensland Act due to s 117 of the Constitution.

Constitutional Interpretation

Eastman v The Queen (2000) 203 CLR 1

• The reason for the Court's interpretation is that the relevant intention of the constitutional provision is that expressed in the Constitution itself, not the subjective intentions of its framers of makers.

• It's an intention that is determined objectively.

• The meaning of the Constitution is not necessarily the same as that which it had for an earlier or a later generation.

• Our Constitution is constructed in such a way that most of its concepts and purposes are sated at a sufficient level of abstraction or generality to enable it to be infused with the current understanding of those concepts and purposes.

• The application (meaning) of a constitutional provision may therefore be informed by an appreciation of 'contemporary circumstances'.

• This approach recognises that those who made and enacted the Constitution intended it to endure, to be responsive and relevant to the community to which it would operate, and to be sufficiently malleable to account for circumstances and conditions that they could not have foreseen. Incremental accommodation

• Words have a fixed connotation but their denotation may differ from time to time: Street v Queensland Bar Association (1989) Street v Queensland Bar Association (1989) 168 CLR 461 Incremental Approach

• The essential meaning of the Constitution must remain the same, although with the passage of time its words must be applied to situations which were not envisaged at federation.

• Expressed in the technical language of the logician, the words have a fixed connotation but their denotation may differ from time to time.

• That is to say, the attributes which the words signify will not vary, but as time passes new and different things may be seen to possess those attributes sufficiently to justify the application of the words to them. s 117 Purpose of s 117

• The very object of federation was to bring into existence one nation and one people. .. therefore, it was designed to enhance national unity and a real sense of national identity by eliminating disability or discrimination on account of residence in another State. (Mason CJ at [485])

• The section should be seen as a counterpart such as s 51(ii), 92 and 99.

• A constitutional guarantee of equal rights of all residents in all States. Effect of contravention

• s 117 relates not to a State or the Commonwealth, but to a 'subject of the Queen'.
❖ So a person not subject to any relevant disability or discrimination by a particular law could not have that law held invalid by establishing that it subjects a third person to such a disability or discrimination.
❖ Conversely, a person who would be so affected by the law is immune from its operation in so far as it subjects him to impermissible disability or discrimination, through the law itself remains valid in its application to persons who would not be so affected. (Mason J at [486])
✓ Therefore, the effect of contravention is that where s 117 applies, its effect is to confer on an individual an immunity against 'impermissible disability or discrimination', thereby leaving the law valid but its operation in the individual case averted by a personal cloak of immunity. (Mason CJ)
✓ For Brennan J, he pointed out that the different effect between s 92 and s 117.
- s 92 restricts legislative power, so that a purported law which offends s 92 is to that extent made without power and therefore binds nobody. -- the object of s 92 is to secure the freedom of the market.
- s 117 does not restrict legislative or other power. It confers an immunity on individuals. -- the object of s 117 is to secure equal treatment for the individuals whom it protects. Relevant test (Mason CJ at [487])

• The terms of s 117 invite a comparison of the actual situation of the out-of-State resident with what it would be if he were a resident of the legislating State. 6

Constitutional Interpretation
❖ The section does not invite a comparison between his actual situation and that of other residents of the legislating State.

• The section applies when a subject of the Queen, being an out-of State resident, is subject to a disability or discrimination under State law.
❖ It is enough that the individual is subject to either a disability or a discrimination. -- form of these two detriments is not important because the Statutes are generally intended to provide relief from discrimination rather than to punish the discriminator.

• Therefore, the real test is "for s 117 to apply, the applicant must prove, if he or she is a resident of the legislating State, that different circumstance would of itself either effectively remove the disability or discrimination or, for practical purposes in all the circumstances, mitigate its effect to the point where it would be rendered illusory. -- i.e., the applicants must prove if he was a resident of the legislating State, the detriment will not occur.

One Exam question Cannot have this kind of job unless you have a certificate of university degree in Victoria.

• NO out of state discrimination Limitations and exceptions

• All judges agreed that the scope of s 117 is limited by several exceptions

• Eg, non-state residents cannot participate in the electoral processes of a state, such as elections for that state's Parliament or representation in the Senate

• Brennan J: adopts the narrowest view (fewest exceptions) -- (based on constitutional imperatives)
- '[512] ...it is clear that there must be some exception to a general application of [s 117's] terms.'
- It is necessarily inconsistent with s 7 of the Constitution, which expressly discriminates against non-state citizens by entitling only citizens of a state to vote in that state's electorate
- 'In my opinion, the guarantee of equality of treatment is qualified only by necessary implication from the Constitution itself.'
- '[513] The necessity to preserve the institutions of government or their ability to function demands that electoral laws providing for a franchise based on residence in a state be given full effect.'
- However, this exception is 'narrowly confined' '[521] The law, which today pushes open the doors of the Supreme Court of Queensland for entry by suitably qualified barristers admitted and practising in other states, opens too the doors of state universities, hospitals and other institutions for entry by subjects of the Queen resident in other states in the same terms as residents of the relevant state.'

• McHugh J: (focus on the implications of the federalism)
- '[583] ...the existence of a federal system of government, composed of a union of independent states each continuing to govern its own people, necessarily requires the conclusion that some subject-matters are the concern only of the people of each state.'
- Such matters, not within the scope of s 117, '[584] would seem to include the franchise, the qualifications and conditions for holding public office in the state, and conduct which threatens the safety of the state or its people.'

• Mason J: broader view (based on American 'privileges and immunities' idea)

• '[491] To allow the section an unlimited scope would give it a reach extending beyond the object which it was designed to serve by trenching upon the autonomy of the states to a far-reaching degree...'

• '[492] The preservation of the autonomy of the states demands that the exclusion of out-of-state residents from the enjoyment of rights naturally and exclusively associated with residence in a state must be recognised as standing outside the operation of s 117.'

• Example: the right to enjoy state welfare benefits

• Rationale is that without these exceptions, it would offend accepted notions of state autonomy and financial independence.

• 'On the other hand, the same comments could not be made about the exclusion of out-of-state residents from participation in professional activities open to residents of the legislating state ... unless the exclusion could be justified as a proper and necessary discharge of the state's responsibility to the people of that state....
❖ So there is a two-stage test from Mason CJ for exceptions where there is a valid restriction of rights given by a State to residents:

• Whether or not the interest violated is a fundamental right basic to national unity?

• Whether the legislating State can demonstrate a substantial reason for the discrimination.

• Gaudron J 7

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