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Course Structure Power to make law? (Characterisation) Commonwealth Parliament

Whether there is a relevant head of power?
Subject matter power -- sufficient connection required. Marriage power: s 51(xxi) Trade and commerce power: s 51(i) External affairs power: territorial external s 51(xxix) Corporation power: s 51(xx) Grants power: s 96 -- power to spending, need additional appropriation. Taxation power: s 51(ii). Excise duties: s 90 -- need to prove taxation power first. Purposive power -- appropriate and adapted to achieve legislative purpose External affairs power: implementation of treaty s 51(xxix) Defence power: s 51(vi) Nationhood power (maybe power to appropriate s 81, 83 and spending -- spending arising from nationhood power) Where the incidental power can be applied? --reasonable proportionality"; "sufficiency of connection"; "appropriate and adapted" Express incidental power: s 51(xxxix) Implied incidental power. State Parliament

State has plenary legislative power. Except for s 52, s 90 and s 114.

Express prohibition?
Commonwealth law

s 51(xxxi) -- compulsory acquisition of property on just term. s 116 -- freedom of religion. s 92 -- freedom of interstate trade.

State law

s 90 -- Commonwealth has exclusive power to impose customs and exercise duty. s 92 -- freedom of interstate trade. Implied prohibition?
Commonwealth law

Implications flowing from federalism -- Intergovernmental immunities -- Melbourne Corporation doctrine Implications flowing from the maintenance of representative and responsible government -- Implied freedom of political communication State law

Implication flowing from federalism -- Intergovernmental immunities -- Cigmatic doctrine. Formality issue?

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". Inoperative or ineffective?

Whether a State law is inconsistent with a Commonwealth law?
Impossibility of obedience Denial of rights Cover the field Whether a subject of the Queen is immune to the law (usually for State law) Immunity from laws that discriminate against resident of another State. Whether the law is restricted by s 51(xxxi) -- compulsory acquisition of property on just term.

1

Introduction of Australian Federal Constitutional Law

Australian Federalism System




The Constitution, and constitutional law, explains the foundation and the authority of the exercise of public power, and defines the limits of that power. Governments and parliaments may only act in conformity with the Constitution -- any attempt to use legislative, executive or judicial power in an unconstitutional manner will be unlawful; a ruling by the HC of Australia will have legal paramouncy, overriding the state or federal government's statues or actions. There is a dual sovereignty, with two levels of government
✴ National (Commonwealth government)
✴ Regional (State governments) The Constitution is divided into eight chapters, with the first three chapters setting out the rules for the Commonwealth legislature, the executive and the judiciary, and the remainder mainly dealing with the rule for trade and finance, the states and territories, and amending the Constitution. The structure indicates the drafters' intention to structurally separate the three branches of Commonwealth government, indicating some adherence to the doctrine of "separation of powers". Parliamentary sovereignty means that Parliament is absolutely sovereign and has the constitutional power to make or unmake any law at all.

• In Australia, this doctrine is modified, as no Parliament is absolutely sovereign-- all the legislature are limited by the Commonwealth legislation and the HC can examine laws for compliance with it.

• But the doctrine still has a role in constitutional interpretation, as the HC will only invalidate Australian laws for lack of constitutionality, not because they are bad, unjust, or morally wrong. The rule of dictates that society must be governed by a system of law, not by arbitrary unconstrained expressions of power; the law applies to all equally (including the government) and the law must be clear, accessible and stable. The Constitution therefore incorporates British concepts of responsible government, constitutional monarchy, parliamentary sovereignty and the absence of a strong statement of individual rights, such as a Bill of Rights. These sit alongside the federalist nature of the Constitution, the state-oriented Senate and the modified separation of powers doctrine.

Powers of Parliament





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 96, 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).

2

Constitutional Interpretation 1) According to the intention of the framers -- the interpretation of the Australian Constitution is to look at the Constitution itself, and to gather from it what is its intention.: Drawbacks. 2) Intention is to be identified according to the rules of statutory interpretation. Commonwealth heads of power are to be interpreted in accordance with the natural meaning of the words: Engineers Case. Words limiting the scope of those powers are not to be read into the Constitution, unless that implication follows necessarily or logically from the Constitution's text: Engineers Case.
‣ But necessity does not mean political or social necessity, and
‣ Ambiguity, manifest absurdity and injustice are to be avoided. An Act is assumed not to abrogate rights unless a contrary intention is made expressly clear. -- Principle of legality. An Act will be assumed to conform to international law, unless the contrary is expressly made clear. An Act will be read as conforming to the Constitution as far as this is possible, as provided by s 15A of the AIA. 3) When text is ambiguous, recourse must be had to the context and scheme of the whole Act or Constitution: Engineers Case. 4) Words have a fixed connotation but their denotation may differ from time to time ... The attributes ... 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: Street. 5) In practice, different interpretation approaches may be differed on a case by case basis. 6) The HC is not bound by its own decisions, but it will normally follow its own decisions unless there are strong reason to depart from them.The stability and predicability of the Constitution is a strong incentive for following the doctrine of stare decisis.

Approaches to Constitutional Interpretation The principles underlying constitutional interpretation are not very different from those underlying the interpretation of ordinary statutes. This is because the Constitution is a fundamental document, and it is phrased in more open and general language than a tax or a real property statute is framed.
✦ Major approaches to constitutional interpretation includes:
- Literalism and legalism
- Use of historical materials
- Intention of framers.
- Textualism
- Incremental accommodation

Literalism and Legalism

A literal or formalist interrogation of the text of an Act of Parliament is the conventional starting point for statutory interpretation, and this is true also for Constitutional interpretation.

Literalism





With respect to literalism, it was held in Engineers Case, the Constitution must be interpreted according to the "settled rules of [statutory]
construction".1 The settled rule is golden rule, which requires the language of a Statute must be read in its plain and natural sense (reading the statute as a whole). Since Constitution is in the form of a statute, Commonwealth heads of power are to be interpreted in accordance with the natural meaning of the words: Engineers Case. Words limiting the scope of those powers are not to be read into the Constitution, unless that implication follows necessarily or logically from the Constitution's text: Engineers Case.

• But necessity does not mean political or social necessity, and

• Ambiguity, manifest absurdity and injustice are to be avoided. The context in which a provision appears is also useful in interpretation, this is because "the ordinary meaning of the terms employed in one place may be restricted by terms used elsewhere": Engineers Case. Thus, when text is ambiguous, recourse must be had to the context and scheme of the whole Act or Constitution: Engineers Case.

• But no political considerations, or fear of misuse can be taken into account:Tasmanian Dam2 The consequence is that Constitution must be read "naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it, and then lucet ipsa per se."

Legalism

Legalism requires "close adherence to legal reasoning", which "is the only way to maintain the confidence of all parties in Federal conflicts". 3
✦ But legalism 'does not insist that interpretive or justificatory reasoning be limited to only one source, but only that all its sources be located within a self- contained autonomous body of law.'
✦ However, legalistic 'rules' are very limited: 'precepts' change over time (this is not subjective to judges, but 'intra- systemic').

1 Amalgamated

Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129. Commonwealth v Tasmania (Tasmanian Dam Case) (1983). 3 Dixon CJ, Swearing in speech, 1952. 2

3

Constitutional Interpretation

Use of Historical Materials 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. 4
✦ Intention of the legislature: the intention of the enactment is to be gathered from its words: Drawbacks.

• 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.

Intention of Framers

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. 5

Textualism Doctrine of 'textual originalism' attempts to establish the meaning of the Constitution would have had according to the general understanding of the time.
✦ This is distinct from the 'intentional originalism' which attempts to discover the subjective intentions of its authors.
✦ Thus, the relevant intention of the constitutional provision is that expressed in the Constitution itself, not the subjective intentions of its framers of makers: Eastman.6
✦ The concepts and purposes of the Constitution are to be constructed at a sufficient level of abstraction or generality so as to enable it to be infused with the current understanding of those concepts and purposes: Eastman.

Incremental Accommodation





A way to reconcile history and change (intention of framers vs textualism) is the incremental approach. Connotation here means "the 'central' or 'core' meaning at the time of framing". -- therefore, it is the "essential characters": Cheatle. 7 By contrast, denotation means circumference.The meaning the words may bear today. Words have a fixed connotation but their denotation may differ from time to time ... The attributes ... 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: Street.8 That is to say, the connotation of words in the Constitution is fixed as at 1900; its denotation may be subject to change as new instances, or different kinds of instances, arise. Examples of new developments in science and technology:

• R v Brislan - 'other like services' (s 51(v))9

• Grain Pool - 'Copyrights, patents of inventions and designs, and trade marks' (s 51(xviii) - 'inventions' incorporates later developments, eg plant variety rights.10

Miscellaneous An Act is assumed not to abrogate rights unless a contrary intention is made expressly clear. -- Principle of legality. An Act will be assumed to conform to international law, unless the contrary is expressly made clear.
✦ An Act will be read as conforming to the Constitution as far as this is possible, as provided by s 15A of the AIA.11

4 Tasmania

v Commonwealth and Victoria (Drawbacks case) (1904). New South Wales v Commonwealth (Work Choices Case) (2006). 6 Eastman v The Queen (2000). 7 Cheatle v The Queen (1993). 8 Street v Queensland Bar Association (1989). 9 R v Brislan; Ex parte Williams (1935). 10 Grain Pool of WA v Cth (2000). 11 Acts Interpretation Act 1901 (Cth). 5

4

Reading Down & Severance

Reading Down and Severance Even when a particular statutory provision, or a particular application of such a provision is held to be unconstitutional, that does not necessarily mean that the entire stature will fail.
✦ s 15A of the AIA provides "where an Act is so general as to apply to matters beyond power, the court will construe it in a more limited sense; and will confine its meaning (unless contrary intention is clear in the Act)."
✦ The consequence is that so far as it is reasonably possible to do so, legislation should be construed as being within power: Work Choice Case.
✦ But if the Court concludes that the challenged law 'was intended to operate fully and completely according to its term, or not at all', the Court will not, under the guise of interpretation and severance, uphold what would effectively be a new and different law:Work Choice Case.

Reading Down 'Reading down' involves the the HC preserving the validity of a provision by reading it down from a broad application so that it does not apply where it cannot validly do so.
✦ In cases where the HC holds that a particular application of a provision would be invalid, it is often able to preserve the validity of the provision in its other application by 'reading it down' so as not to apply where it cannot validly do so.

But there is no reading down where:
✴ There is a contrary intention expressed in the legislation;
✴ It would involve changing the text.

Severance Where 'reading it down' is not possible, a court may still 'sever', that is, cut away, the offending parts of an Act instead of striking down all of it:
✦ However, under the following situations, severance is not possible:

- If it would lead to a substitution of the language of the statute rather than an excision of words.
- If after severance, the legal effect of the statute would be changed.
- If the remainder of statutory text, or part of it, is so independent with the served words, that to remove them would change the whole effect of the law, there is no severance.
- If the severance is not in accordance with the apparent intention of the legislature, as revealed in the terms of the whole Act. -- So if the intention is that the statute should stand or fall as a whole, severance is not possible.

Thus, 'if the invalidated portions are relatively few and specific, surgery ... will be available and appropriate... Where, however, the resulting invalidation is substantial and would strike down key provisions of a comprehensive and integrated legislative measure ... severance will be inappropriate.' 'Judicial surgery' should not involve the Court's performing a legislative task:Work Choices Case.

5

Characterisation

Function of Characterisation In order to determine whether a law is unconstitutional or not, follow the steps below:
- Characterise the law: what is the subject of the law?
- Does the law, as characterised come under a subject of power?
- Interpret the constitutional power:What does the subject of power permit? What is its scope?
- Does the law breach a prohibition or limitation on the exercise of power?
✦ The term 'characterisation' refers to the process of determining whether a law falls within one of the heads of power in ss 51 and 52, by ascertaining whether the law relates to the subject matter or purpose of the head of power in a way that allows it to be described as a law 'with respect to' that head of power.

- Text of the Constitution is to be construed 'with all the generality which the words used admit' unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose: Bank Nationalisation Case.
- Character of the law is ascertained through looking at "the actual operation of the law in question in creating, changing, regulating or abolishing rights, duties, powers or privileges...": Bank Nationalisation Case.
- Practical (legal) effect, or operation, as well as legal provisions are to be examined: Bank Nationalisation Case.
- However, Justice, wisdom, desirability of law are legislative choices, not judicial.

Dual Characterisation A law may possesses several distinct characters: Generally speaking, dual characterisation is not a bar to the validity of a law: ANA Case. 12
✦ Thus, it is a fundamental error to describe a law as "really", "truly" or "properly" characterised as a law with respect to one subject matter, rather than another, i.e., reject the 'unique characterisation doctrine':Work Choices Case.
✦ In addition, if a law is characterised as one with respect to a head of Commonwealth power, it does not matter that it also affects a matter not included in the heads of Commonwealth power: Fairfax. 13
- That is to say, if a law enacted by the federal legislature can be fairly described both as a law with respect to a grant of power to it and as a law with respect to a matter or matters left the States, that will suffice to support its validity as a law of the Commonwealth: AAEA v Fontana.14
- So long as the remaining elements, which do not fall within any such grant of power, are not of such significance,...the law will be valid: AAEA v Fontana.
- It is irrelevant which of these subjects is the "motive" behind the legislation: Murphyores.

• Thus, in Murphyores, the legislation was valid although it had a consequential or indirect effect on environmental problems which the Commonwealth does not have the power to make laws. -- What is sufficient is that the legislation was validly made under the 'trade and commerce' power under which the Commonwealth has the power to make laws.

Interaction between Heads of Power The primary rule is that "one power may not fetter the scope of another", or require another to be 'read down': Pidoto.15
✦ Thus, each head of power must be construed independently according to its nature meaning, so that one head of power cannot be used to limit the scope of another: Pidoto.
✦ However, the secondary rule is that where there is an express, positive limitation or exclusion in a power that is of general application, this may restrict the scope of other powers (except where the incidental power is concerned):Work Choices Case
- other than State banking -- s 51(xiii)
- but so as not to discriminate between States or parts of States -- s 51(ii)
- but so that such bounties shall be uniform throughout the Commonwealth -- s 51(iii)
- other than State insurance -- s 51 (xiv)
- but not so as to authorise any form of civil conscription -- s 51(xxiiiA)

Heads of Power of the Constitution


The heads of power listed in ss 51 and 52 of the Constitution may be either a 'subject matter' power or a 'purpose' power. The characterisation tests are different. Qualified condition or prohibition against participation in an activity is within constitutional power: Murphyores. 16
✓ If the Commonwealth has the power to authorise or prohibit something with respect to a head of power in ss 51 or 52, so that it also has the power to place conditions on such an authorisation: Murphyores (s 51(xx) 'trade and commerce' power).

12 Australian

National Airways Pty Ltd v Commonwealth (ANA Case) (1945). Fairfax v Federal Commissioner of Taxation (1965);Work Choices Case (2006). 14 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982). 15 Pidoto v Victoria (1943). 16 Murphyores Incorporated Pty Ltd v Commonwealth (1976). 13

6

Characterisation

Subject Matter Power

According to Dixon J in Stenhouse, the subject matter powers in s 51 of the Constitution can be described by:17
- reference to a class of legal, commercial, economic, or social transaction or activity, for example, 'trade and commerce' power in s 51(i); 'banking' power in s 51(xiii); 'marriage' power in s 51(xxi);
- specifying some class of public service, for example, 'postal installations' in s 51(v); 'lighthouses' power in s 51(vii)
- undertaking or operation, for example, 'railway construction ... with the consent of that State' power in s 51(xxxiv);
- naming a recognised category of legislation, for example, 'taxation' power in s 51(ii); 'bankruptcy' power in s 51 (xvii)

Test for 'subject matter power"18

Test for (law with respect to) subject powers is sufficient connection, five steps: McHugh J's broad approach in Re Dingjan,18 was affirmed and further developed by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Grain.19 1) Construing the constitutional text with all the generality which the words admit: Grain. 2) Determination of the character of the law with reference to "the rights, power, liabilities, duties and privileges which it creates": Re Dingjan.
- The name of the Act is immaterial in determining the character of a law: Fairfax.
- In characterising a law as being with respect to a 'subject matter power', the purpose and object of the law must be disregarded: Stenhouse.
- Where a law which directly and on its face operates upon or affects the subject matter power, for example, a law operates to confer rights or impose obligation upon the parties to the subject matter (for example, marriage), it is characterised as a law with respect to that subject matter (for example, marriage): Re F. 3) Examination of the practical and legal operation of the law to determine if there is a "sufficient connection" between the law and the head of power: Re Dingjan.
- Where a law does not on its face directly operate upon or affect the subject matter, validity under s 51(xxi) will depend upon the nature and strength of any connexion between what the law does and the subject matter: Re F.
- However, if the connection is 'so insubstantial, tenuous or distant', the law cannot be described as a law 'with respect to' the head of power: Re Dingjan. 4) It is irrelevant whether a law answers the the description of two subject matters, one of which is and the other is not a subject matter appearing in s 51, as long as it is a law with respect to a head of power": Grain.
➡ That is to say, where a law is characterised as one with respect to a head of Commonwealth power, it does not matter that it has a consequential or indirect effect on a matter not included in the heads of Commonwealth power: Murphyores, Fairfax. 5) If a "sufficient connection" with the head of power exists, that is all that is required, -- "the justice and wisdom of the law --are matters of legislative choice": Grain.
- Court does not concerned with political, economic, or social desirability or undesirability: ANA Case.

Purpose Power Some powers in the Constitution describe a purpose rather than a subject. When the Commonwealth enacts a statute under a purposive head of powers, it must be directed to that purpose or objectives.
✦ Thus, for purposive powers, a concept of 'proportionality' is used to test the validity of the impugned Act.

Proportionality

The concept of 'proportionality' in the characterisation context means there should be a reasonable relationship or appropriate balance between an objective and the methods used to achieve that object; that is, there must be some connection between the means used and the ends achieved.

Under following contexts, it is permissible to consider the proportionality in characterisation of a law or provision:

• In the characterisation of purposive powers

• In examining a law for sufficient connection to a Commonwealth head of power such as to amount to a proper use of the incidental exercise of the power.

• In addition, proportionality tests are also permitted when examining Commonwealth laws for conformity with a Constitutional prohibition, limitation or guarantee, such as ss 92, 116, 117 or the implied freedom of political communication.

Test for 'purposive powers'

The test of characterisation of a law as being with respect to a purpose power is one of proportionality. that is., the stature must be reasonably capable of being seen as 'appropriate and adapted' to achieve a particular purpose: ANA Case.
✦ The Court thus examine whether a law is 'appropriate and adapted' to a particular purpose, or whether the law goes further than necessary to achieve the purpose.
✦ If a less restrictive method is available to achieve the same objective, the law or provision may be beyond power.

17 18

Stenhouse v Coleman (1944). Re F; Ex parte F (1986). 7

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