LAWS5011 Federal Constitutional Law Conditionally University of Sydney

University of Sydney

LAWS5011 Federal Constitutional Law Conditionally University of Sydn

Lecture 1
Murphyores Inc Pty Ltd v Cth (1976) 136
CLR 1
34/38
Intro/Trade &
Commerce
power
– a law placing conditions on the import or export of goods is a law within the core of the international trade and commerce power while a law regulating production for export is
within the incidental range of that power.
– held that if the Cth had the power under the interstate trade and commerce power (s51(i)) to prohibit the export of minerals absolutely, then the Cth could prohibit their export
conditionally by requiring the consent of the relevant Minister prior to export.
– Cth may participate in the activity and it may protect persons or things who are the subject of the power by regulating the actions of third parties where the actions of the latter
may harm those subjects of the power.
– a customs regulation which required a mining company to obtain the consent of the Minister for the Environment before a mineral could be exported from an environmentally
sensitive area was recognized as a law with an environmental goal, but was nevertheless also a law dealing with export and was therefore a law with respect to trade and
commerce with other countries and fell within s51(i).
Mason J: “it is no objection to the validity of the law otherwise in power that it touches or affects a topic on which the Cth has no power to legislate.”
Melb Corporation v Cth (1947) 74 CLR
31
35 Intro
– Cth cannot legislate so as to discriminate against the states or burden their capacity to function.
– the Cth Parlt could not single out State govts for special treatment; it followed that s48 of the Banking Act 1945 (Cth), which prohibited private banks from conducting banking
business for a State govt or instrumentality, were invalid.
– a law will be invalid it if ‘discriminates’ or it it ‘impairs the continued existence of a State or its capacity to function’.
Amalgamated Society of Engineers v
Adelaide Steamhsip Co Ltd (Engineers
case) (1920) 115 CLR 418
Intro
– stated that each Cth legislative power ought to be characterized according to its plain and natural meaning, w/o resort to any implications.
– rejected the method of characterization used in the first 20 years of federation, a method which had constructed constitutional implications in order to protect state legislative
power. These implications were known as the ‘reserve powers’ doctrine, according to which certain powers were reserved for the States and the ‘implied immunities’ doctrine
according to which states were immune from Cth legislative power.
– Although purpose may be relevant when deciding whether a law comes within the incidental range of power, it is important to note that the over-riding test is that of sufficiency of
connection.
– Purpose is important only because purpose may help establish the connection btw the operation or effect of the law and power.
– Dawson J: “To determine the validity of a law said to be supported by a purposive power, a court must ask whether it is a law for the specified purpose”.
– , Brennan J: One of the methods the courts uses to determine whether the law is a law for a purpose within s51 is the ‘reasonable proportionality test’, or whether the law is
‘appropriate and adapted’ or ‘reasonably appropriate’:
– the role that proportionality plays in the characterization of non-purposive powers is not entirely clear.·
* Dawson and Gummow JJ – stated clearly that proportionality is not relevant to characterization of non-purposive powers except where the court is balancing a head of power
against a constitutional limitation on power.
* Brennan J – where there is a challenge to a non-purposive law on the ground that its operation and effect do not reveal a sufficient connection to the subject of a head of power,
‘proportionality’ is a concept used to ascertain whether an Act achieves an effect or purpose within power.
* McHugh J – unequivocally stated that where a sufficient connection is established, proportionality is irrelevant, but where a law is passed for a purpose beyond power, the
concept ‘may sometimes be helpful in determining whether the subject matter of the impugned law is sufficiently connected to the subject of federal power’.
* Kirby J – more disposed to a liberal use of the concept, though guarded with his language.
– In cases where a constitutional limitation or immunity is not absolute but must be balanced against some other legitimate objective, the court will ask whether the
law is reasonably proportionate to the other legitimate end
Austin v Cth (2003) 195 ALR 321 internet intro
– HC held invalid Cth legislation imposing a superannuation contributions surcharge on state judges, holding by maj that it placed an unconstitutional burden or disability on the
operations or activities of states and was beyond power.
– Justice Austin is a NSW Supreme Crt judge and Master Kings is a member of the Vic Supreme Crt. They argued that the surcharge did not apply to their pension entitlements,
but if it did apply it was invalid. Their argument that the surcharge was invalid was supported by the states of NSW, Vic, SA and WA which intervened.
– the HC unanimoulsy upheld that the legislation applied to Justice Austin but by maj held that its application was invalid.
– the Court unanimously held that Master Kings was not liable to pay the surchage because she was appointed before the surcharge took effect in 1997. It did not apply to serving
judges, and the court held that she was, within the meaning of legilsation, a judge.
SUMMARY OF LEGAL CASES
Leask v Cth (1996) 140 ALR 1 40 Intro
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