Constitutional Law

Constitutional Law Notes

What is a Constitution?
• Constitutional government is a government that as a Constitution which limits the powers of political authorities and is not susceptible to easy modification or abrogation
• Constitution as Paramount Law o A law overriding all other laws (laws must comply with the Constitution or will be deemed invalid)
 Will not be able to be amended through an ordinary statute o Determines the power of each area of government (separation of powers) o Usually found in written form – one or more documents o Will include – details of the key branches of government (their composition and power), protected rights and freedoms, procedure of changing the Constitution
• Constitution as the actual system of government (living Constitution) o Need to consult supplementary legislation, conventions and relevant judicial proceedings o Many areas of government are not specified in the Constitution but have developed through convention (e.g. the Australian Constitution makes no mention of the Prime Minister) o Constitution in actual operation (a country may have a very good written Constitution but the experience of the society does not reflect the Constitution if judges/politicians are corrupt)
• Constitution in the Philosophical Sense o The realization of an ideal (never fully realised) o Designed to limit/contain power and implement the rule of law
• The Unwritten Constitution – a constitutional government may exist without a written constitution o E.g. the United Kingdom – government derives their composition, powers, privileges and basic procedures from ancient custom and common law, conventional practice and a few defining statutes o Parliament is supreme – legislation cannot be questioned by the courts
• Mixture of ideas – Westminster system from the UK, the written form, federalism, separation of powers and judicial review from the USA
• Dicey – constitutional law includes “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State”
• Ideal Constitution – constitutional stability (hard to change), representative democracy, separation of power, federal distribution of power, protects basic rights and liberties
Separation of Powers
• Sections of the Constitution vests the three great powers into three different branches of government o s.1 – legislative power vested in Parliament (Queen, Senate and HoR) o s.61 – executive power vested in the Queen (exercised by GG) o s.71 – judicial power vested in High Court, other federal courts and other courts (State Courts) (known as CH III Courts)
• This ideal is impossible to achieve completely o E.g. Separation of powers does not completely exist in Australia – the executive has majority support in HoR, the executive organized the legislative agenda (the executive control what Bills are passed), High Court allows legislature wide law making power, judges are appointed by the executive and removable by Parliament
• The HC has condoned integration of the legislative and executive power but is strict on separation of judicial and non-judicial powers

• Legislative Power o Capacity to change existing legal relations (creating new rules – must apply generally (or to a class), not an individual) o Legislative power is distributed between Federal and State level o Legislation that involves matters of policy or principle should be made by Parliament (not the Executive)
• Executive Power o Extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth o Most commonly – accomplishing physical tasks within the limits of the law (e.g. carrying out public work on Crown land using funds already appropriated for the purpose) o Police power – keep the peace and investigate and prosecute criminals. Police officers have no power to violate a citizen’s rights without the authority of law o Military power – power to declare war and peace, deploy the nation’s military forces o Foreign Affairs power – power to conduct relations with other nations and international organisations and make treaties with foreign States (treaties must be adopted by legislation to become domestic law) o Contracts power – power to enter into contracts to achieve the purposes of government (can’t create legal relations unilaterally, only consensually) o Power to alter legal relations unilaterally or coercively – power to create new legal relations or modify existing legal relations without the consent of the affected person (e.g. licences, authorisations, approvals and other regulatory orders)  Quasi-Judicial Power
 Different from legislative power in that while it allows the creation of new legal rights, these rights are not general and only apply in the particular case

• Judicial Power o ‘The power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, wether the rights relate to life, liberty or property.’ The exercise of this power does not begin until ‘some tribunal which has the power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action’ – per Griffith CJ, Huddart, Parker & Co Pty Ltd v Moorehead (1909) at p.357. o Two key aspects- existence of a controversy and the capacity to determine the controversy conclusively o Judicial power is controlled power – it’s exercise is based on authoritative legal materials (rules, principles, conceptions and standards) o Judicial power of the Cth is vested almost exclusively in CH III courts o Key question when it comes to judicial power – is the relevant power characterised as judicial power o Jurisdiction (is the matter one in relation to which the judge may act?) – no court has unlimited jurisdiction (s.73 – appellate jurisdiction, s.74 - original jurisdiction in respect to certain subjects, s.76 – Parliament can confer additional original jurisdiction) o Effect – declare rights and duties of litigants according to established law but not altering legal positions (incremental changes)

Elements of Judicial Power (each must exist for the power to be deemed judicial) o Controversy
 Must be a controversy between two parties (either the Crown and a subject or between two subjects)
 Controversy is absolutely necessary  Ch III defines federal jurisdiction in relation to matters (Re Judiciary Act interpreted the term ‘matter’ to refer to a controversy concerning a right, duty or liability
 The dispute must be brought before the court – the court does not go out of their way to bring a matter before them
 The Question of Standing – judicial power can only be exercised when a controversy is brought before the court by a person entitled to do so. The person has locus standi – a personal interest in the matter greater than the public
• The Attorney-General has standing to bring an action to defend a public right o Rights, Liberty and Property
 The controversy must concern ‘rights, liberty or property’
 Two elements: rights must be - existing rights and basic rights
 Pre-Existing Rights
• Must decide controversy according to existing rights and obligations, not create new rights and obligations – Tasmanian Breweries Case (1970)
• This means that judges don’t make law – this is arguable. However, if judges do make law it is different to law made by the legislature (they can’t make law on any matter they want – limited to the controversy at hand – and must observe the rule of natural justice)
 Basic Rights
• R v Quinn (1977) – judicial power is exercised only with respect to ‘basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom.’
• Problem – what rights are considered basic? o Conclusiveness
 Capacity to give a binding or authoritative decision (whether subject to appeal or not)
 The court/tribunal doesn’t necessarily have to possess the ability to enforce its own decisions – R v Davison (1954)
 Court of Record – a court that has the power to both make determinations and enforce them (Alexander’s Case (1918))
 Doctrine of res judicata – the matter cannot be litigated again by the same litigants
 Doctrine of functus officio – the decisions cannot be varied by the same tribunal except in very limited circumstances
 Doctrine of collateral attack – the decision made within jurisdiction cannot be questioned in a collateral proceeding
 De novo hearings – the decision must not be subject to a de novo hearing (when a court rehears both the evidence and legal submissions
• Brandy v HREOC (1995) – stated the requirements of a de novo hearing o The original decision is not enforceable because the aggrieved party failed to appeal o There is no onus to appeal o To enforce the decision, a new action must commence in a proper court o Prosecutor must lead all the evidence – no discretion, it is a new action o The court must rehear the case on facts and law
 If all of these conditions are met, the initial decision is not conclusive o Non-Consensual
 Both parties don’t need to consent to go to court

• Chameleon Power o R v Quinn – the power vested in the registrar to cancel the registration of a trade mark was non-judicial. However, in Farberfabriken, the court held this power to be constitutional. Why? o A chameleon power is judicial when vested in a court and is non-judicial when vested in some other body o Principle of contradiction – you can’t say something is and isn’t at the same time – condemned in Visnic v ASIC (2007) and Alberran (2007)
Separation of Legislative & Executive Powers o Weak separation – the executive usually controls the HoR, parliament can delegate wide legislative power to the executive, the GG can summon/prorogue (suspend)/dissolve parliament o Victorian Stevedoring Co and General Contracting Co v Dignan (1931)
 The separation was initially weak – but has been further weakened by the court
 s.3 (which allowed the GG to make regulations on all aspects of waterside employment) challenged based on unconstitutional delegation of legislative power
 s.3 was upheld – reasons: responsible government is a safeguard, parliament can repeal bad executive law
 Court suggested 2 limitations to delegated legislation:
• Must not be too wide that legislation can’t be characterized
• Must not amount to abdication of power o Legislative Standards Act – lay down standards about delegating legislative power (laudable, not binding – not Constitutional)

Separation of Judicial and Non-Judicial Power
• The High Court is very strict in ensuring that judicial power is not given to other bodies and that non-judicial power is not given to courts
• Rationale: o Federalist: independent judiciary to maintain federal division (an independent judiciary can only be achieved if the judicial power is separated from other powers) o Libertarian: checks and balances and judicial independence

• KEY PROVISION: s.71 – The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
• s.72 – the tenure and remuneration of federal judges
• s.73 – the appellate jurisdiction of the High Court
• s.75-76 – the original jurisdiction of the High Court
• s.77 – the Parliament’s power to define and invest federal jurisdiction in federal and State courts

• The High Court seeks to invest judicial power in only CH III Courts and prevent the vesting of non-judicial power in these courts

Prohibitory Rules
1. Judicial power of the Cth shall not be vested in bodies not designated in CH III
• Such bodies = High Court, Federal Courts (Federal Court, Family Court, Federal Magistrates Court) and State Courts in which Parliament vests federal judicial power)
• Boilermakers Case (1956) – established this rule: the language of the Constitution prevents the possibility of vesting judicial power in other bodies
2. Judicial power may be vested only in courts in the strict sense
• A body is regarded as court if its main function or functions are judicial – Alexander’s Case (1918)
3. Federal courts that exercise judicial power must conform to s.72
• The court must be constituted as provided in s.72 – Alexander’s Case
• Requirements: federal judges are appointed by the Governor-General; removal can only be done by the Governor-General on an address of both houses of parliament on the grounds of proved misbehaviour or incapacity; remuneration of judges must be fixed and not diminish
• Tenure for life (until 70) – can’t appoint judges for fixed terms (Alexander’s Case)
4. A court may delegate judicial power but must not abdicate judicial power
• Relieve the court from some of their work by assigning non-contentious aspects of jurisdiction to officials who are not judges
• Harris v Caladine (1991) – Held that delegation of judicial powers to those who are not judges (e.g. registrars) is valid providing that: o The delegation is not so extensive that it can no longer be said that judges constitute the court o The delegation must not be inconsistent with the obligation of the court to act judicially, and the decisions must be subject to review or appeal by a judge
• The structure of the Court must not change
• The person the power is delegated to must be an official of the court
5. Judicial powers not within CH III must not be vested in the High Court or other federal courts
• Re Judiciary Act (1921) – s.88 of the Act gave power to the HC to determine the validity of laws referred to it by the Governor General. It was held that as the power was judicial power outside of CH II, it was not exercisable by the High Court
• The express vesting of some powers means the exclusion of other powers
6. Federal courts cannot exercise State judicial power except in cases of ‘accrued jurisdiction’
• Federal courts can exercise State judicial power in cases in which both Federal and State jurisdiction arise in the same controversy
7. Parliament must not vest non-judicial power in CH III courts
• Boilermakers Case - the reasoning that judicial power cannot be vested in bodies that are not CH III courts due to the express vestment of such power in CH III courts must be applied to legislative and executive power (non-judicial power). As non-judicial power is expressly vested in other bodies, this means they cannot be vested in CH III courts.
• There are exceptions. There is a difference between Federal and State courts in respect to this: (more non-judicial power can be given to State courts than to federal courts) o Non-judicial power may be given to State courts providing that it is not incompatible with the exercise of federal judicial power (Kable, Fardon, Baker) o Non-judicial power can’t be given to the HC or federal courts unless it’s incidental to the exercise of judicial power (Bond, Thornton, Davison)

8. State Parliaments must not vest in State courts non-judicial powers that are incompatible with their exercise of federal judicial power
• There is an absence of an explicit separation of powers in State Constitutions – allows State courts to exercise non-judicial power
• Alexander’s Case – State Parliaments can give State courts non-judicial powers providing they do not threaten the character of the courts as bodies that primarily perform judicial function and do not undermine the courts’ capacity to exercise federal judicial power by diminishing public confidence
9. Parliament must not remove from courts jurisdiction that the Constitution has directly vested in them
• Appellate Jurisdiction – s.73 has jurisdiction to hear appeals from all judgments from the original jurisdiction of the High Court, any other federal court, State Supreme Court, or any court – this right to appeal to the High Court cannot be removed (Cockle v Isaksen (1958))
• Original Jurisdiction under s.75 cannot be removed – Lim v Minister of Immigration (1992)
10. Parliament must not direct the way courts exercise judicial power
• Parliament cannot direct the manner and outcome of the exercise of judicial power
• Legislation should not impose a judgment on the court (Calder v Bull) or intervene in judicial proceedings
11. The ban on bills of attainder and ex post facto punishment
• Basic doctrine – it is lawful to do whatever the al woes not forbid
• Retrospective laws are not permitted – Polyukhvich v Commonwealth (1991)

Permissive Rules
1. The persona designate rule
• Non-judicial power can be vested in a judge in his/her personal capacity – Hilton v Wells (1985)
• Grollo v Palmer (1995) imposed two conditions: o Compatibility condition – compatible with the judge’s capacity to perform further judicial functions (time) and with the court’s responsibility (confidence) o Consent condition – the judge must consent to being given the power unless it is incidental to judicial power
2. Judicial power with respect to military offences by service personnel may be vested in courts martial
• Power outside CH III, thus can be given to a military tribunal – White v Director of Military Prosecutions (2007)
• A service offence can also be a ‘civil’ offence triable under a CH III court (e.g. assault of a civilian while on duty)
• What is a service offence? - E.g. desertion in times of war, insubordination, drunkenness on duty, unlawful discharge of a weapon. Two theories: o Service status theory – triable by court marital if committed by a military servicemen even if it does not concern military discipline o Service connection theory – triable by court martial only if connected to the purpose of maintaining military discipline (majority of judges like this theory but some disagreement – e.g. Alpert (2004) – rape by a service personnel while on recreational leave, triable by court martial)

3. Parliament may exercise judicial power in relation to its own powers, privileges and immunities
• Contempt of Parliament – influencing a member one way or another, giving false evidence to a committee of Parliament, stopping a member from getting to Parliament (Parliament decides what is contempt)
• With these acts – parliament can exercise judicial power in relation to them (s.49 - Parliament may declare its own privileges – Parliamentary Privileges Act)
4. Superior courts may make rules of procedure
• Legislative in character – power of courts to regulate their own procedure (general rules of conduct
• R v Davison (1954) – making procedural rules is ‘an extreme example of a function that may be given to courts as an incident of judicial power or dealt with directly as an exercise of legislative power’

Separation of Powers in State Constitutions
• State Constitutions do not recongise separation of powers to any degree - courts did not recognize any separation until Kable v DPP (1996)
• State Parliaments can delegate but not abdicate legislative power
• HC’s doctrine of institutional integrity (DII) has effected a degree of separation of powers. 4 aspects: o Grant of Incompatible Jurisdiction – State legislature must not grant a State court a power that is incompatible with its role as a court exercising federal judicial power o E.g. - Kable v DPP (1996) – legislation allowed the court to issue a detention order if it was likely that Kable would commit an act of violence - giving the court the power to make detention orders makes the court an instrument of government policy (undermines public confidence/independence) – this is incompatible with the federal judicial power vested in them) o Depriving Supervisory Jurisdiction – State Supreme Courts have the power to confine inferior courts to the limits of their jurisdiction by granting relief (usually by writ of certiorari) on the grounds of jurisdictional error (an error leading to the court exceeding its legal power) o State parliament can’t deprive Supreme Courts of this power – Kirk v Industrial Court of New South Wales (2010) o Integrity of the constitution of courts should not be affected– excessive acting appointment would distort the character of the court as an independent and impartial body (this is not constitutional – tenure until 70) o State law leading to failure of natural justice – basic requirements are impartiality and reasonable hearing o Gypsy Jokers (2008); K-Generation (2009) – possible for court to receive criminal intelligence and not give this information to the defendant Commonwealth-State Relations
• The relationship between Cth and State government is a crucial part of the constitutional framework
• Federation is evident throughout the Constitution
• Cth and States have defined areas of power – there is a possibility of conflict o s.51 – enumerated powers of the Cth o Some powers are exclusive to Cth – s.52 and some other ones scattered throughout the Cth (e.g. ss. 90 and 122) o Some powers are exclusive to States as they are not explicitly given to the Cth – Residual Powers (s.107) o Some powers are concurrent – s.51  this raises the possibility of conflict
• Conflict can arise in 3 ways: o Inconsistencies between Cth and State legislation in respect of concurrent powers (s.109 prevails) o Cth legislation affects the executive government of the States o State legislation affects the executive government of the Cth
• First question to ask: Does the subject matter of the law fall within one or more enumerated heads of power of the Cth?
• Crown Immunity: o Distinct from intergovernmental immunities o The Crown is immune from lawsuits, legislation doesn’t bind the crown, the Crown is a priority in the repayment of debts
• Intergovernmental Immunities: o The idea that the Cth and the States may be impliedly wholly or partly immune from each other’s laws o Prohibits the Cth and the States imposing upon each other’s agents and instrumentalities burdens that fetter, control or interfere with the free exercise of the legislative or executive power o To what extent is the executive of the State/Cth government immune from interference from the other level of government? o Three stages in the HC’s approach
 Dual sovereignty (1903-1920) – extensive ‘immunity of instrumentalities’ was recognised (very strict)
 Legislative sovereignty (1920 – 1947) – no immunities were enforced. The Cth was given broad power to regulate the States (this shift was caused by The Engineer’s Case)
 Dual Federalism (1947 – present) – immunities revived in a modified form. A balance between the two previous stages (compromise of strict and relaxed)

Dual Sovereignty
• Early days – the court was prepared to subject federal powers to heavy scrutiny
• Doctrine of reserved powers - where a power wasn’t expressly given to the Cth, it belonged to the States

• D’Emden v Pedder (1904) o Interference with Cth by a State o Looked at whether salary paid by the Cth to a Cth employee was subject to State stamp duty o Held: this was not allowed as it was a form of interference by the States. The statute was read down so not to apply to the Cth o ‘When a State attempts to … fetter control or interfere with, the free exercise of the legislative or executive power of the Cth’ the attempt is invalid (p.111) – need to keep the two levels of government separate o Followed by Deakin v Webb, Cth v NSW and Baxter v Commissioner of Taxation o KEY CASE: established that the two levels of government were wholly immune from the other level of government

• Railway Servants’ Case (1906) o Interference with States by the Cth o Cth law relating to industrial arbitration scheme that was to bind NSW government instrumentalities (businesses that are under the control of the gov’t –e.g. Australia Post, provision of utilities) o While the Cth has the power to make laws with respect to this under the conciliation and arbitration power (s.51(xxxv)). However, need to consider implied immunities – this will restrict the exercise of Cth power o Held: the Cth could not force NSW to take part in the industrial arbitration framework. Need to keep each government level separate

• R v Barger (1904) o Interference with States by Cth o Question – could a Cth law impose a special tariff on agricultural machinery used by factories that didn’t grant their workers certain conditions o Held: no as this was outside the Cth’s taxation power (can’t use taxation to interfere with an area of State power – indirectly interfering with workers conditions) and it discriminated between the States o The Cth can’t use the taxation power to interfere with a State area
• Exception to the Immunities - 3 main exceptions: o Interference is permitted in regard to a Cth power that involved control of some aspect of State government –(e.g. Cth power to regulate interstate trade and commerce) o Trading activities of State instrumentalities may be subject to Cth regulations as long as regulations are the same as other businesses (general regulations that only apply to trading activity, not employment conditions) o Local governments do not enjoy immunity from Cth laws

Legislative Sovereignty
• Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) (The Engineers’ Case) o Concerned a union award for engineers that was endorsed by a Cth industrial relations tribunal. Was the award binding on the States as employers? o Question – Does the Cth government have the power to make laws binding on the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of one State? o s.51(xxxv) – arbitration power – read broadly to cover all disputes across State borders. No reason why an Act based on this power would not apply to States.90 o States that the Railway Servants’ Case was decided wrongly o What changed? – different judges (influential judges left)
• West v Commissioner of Taxation (NSW) (1937) o Concerned whether the NSW State government could tax the pension of a retired Cth public servant o Dixon J stated that ‘where … separate and exclusive governmental powers have been allotted to two distinct organisms, neither is intended … to destroy or weaken the capacity of functions expressly conferred on the other’

Dual Federalism (this is where we are at now – look at these cases)
• Melbourne Corporation v Commonwealth (1947) o Interference with States by the Cth o Concerned an attempt by the Cth government to nationalise the banking industry. The Banking Act 1945 (Cth) attempted to prevent private banks from providing services for a State or a State instrumentality (s.48 made them bank with the Commonwealth Bank). The Melbourne City Council challenged this law on the grounds that it was not within the Cth banking power and it was an impermissible interference with State governments o Held: the HC struck s.48 down and stated that it was invalid based on the fact that the law singled out the States
 Dixon J – Laws that impose a disability or burden upon the States are unconstitutional. ‘A distinction is drawn between laws of general application and laws singling out governments and placing special burdens upon the exercise of powers or the fulfilment of functions constitutionally belonging to them.’ (pp.81-82)
• This applies to all powers under s.51 – except for some powers which authorise discrimination against the States (xxxi, xxxii, xxxiii, xxxiv)
 Dixon J: - stated what he believed to be the legal proposition of the Engineers’ Case – a power given to the Cth to legislate in respect to a given subject allows the Cth to make laws that affect the operations of the States and their agencies
 Reservations – the use of federal legislative power to make a law that discriminates against States
 Stated that the Cth cannot enact a law ‘aimed at the restriction or control of a State in the exercise of its executive authority’
 Starke J – stated that legislation will be invalid if aimed to destroy the other level of government. Question: does ‘the legislation or the executive action curtails or interferes in a substantial manner with the exercise of constitutional power by the other’? (p.75) – if so, the legislation is invalid.
 Latham CJ – based his reasoning on either/or characterisation, which is now discredited
 Rich J – There is no implication in the Constitution that the Cth is restricted from exercising its powers to the fullest extent due to reservation to the States. However, ‘the Constitution expressly provides for the continued existence of the States. Any action on the part of the Cth … which would prevent a State from continuing to exist and function as such is necessarily invalid.’ Action can be invalid in two cases –
 ‘where the Cth singles out the States or agencies … and imposes on them restrictions which prevent them from performing those functions’
 ‘where, although the States or their essential agencies are not singled out, they are subjected to some provision of general application which in its application to the would so prevent or impede them.’ (p.66) o Two key questions (Dixon J approach):
 Is the legislation within power?
 If so - Does the legislation violate any prohibitions? (offend an express or implied limitation on the Cth’s use of power)
• It was held that the law was within the banking power but violated an implied immunity o Some confusion as to which criteria to address in regards to interference with State function as all judges adopted different approaches

• Commonwealth v CIgamatic (1962) o Interference with the Cth by a State o Concerned a NSW statute that interfered with the Crown’s prerogative right of the Cth to be prioritised in the payment of debt after insolvency o Stated that the federal system is a dual system – if there is any supremacy, it belongs to the Cth (States do not have the power to regulate the rights, privileges, duties or disabilities of the Cth) o Uther v Federal Commissioner of Taxation (1947) – Rich J stated that a State is allowed to abolish a prerogative of the Crown. Dixon CJ held in Cigamatic that Uther should not be considered as binding

• Victoria v Commonwealth (Payroll Tax Case) (1971) o Interference with States by the Cth o A Cth Act imposed a general tax of 2.5% on all wages paid by an employer (which included States and State entities). States argued that this was not within the Cth’s power as it interfered with the functioning of State governments as employers o HC held this was valid as it was a general law – didn’t only apply States in order to disadvantage them (applied to all employers – some exceptions) o Reaffirmed the principle in Melbourne Corporation o Barwick CJ – ‘the government cannot ‘aim’ its legislation against a State’
 His understanding of Melbourne Corporation – ‘a law of the Cth which in substance takes a State or its powers or function of government as its subject matter is invalid because it cannot be supported upon any granted legislative power’ (p.372)
 Looked at characterisation – if the Act has two subject matters (one within s.51 and one not), then you need to consider what is the true subject matter - ‘It is the lack of an appropriate subject matter rather than the presence of an implied limitation upon some granted power that such a law … would fail.’ (p.373) o Windeyer J – ‘implications arising from the existence of the States as parts of the Cth … may restrict the manner in which the Parliament can lawfully exercise its power to make laws.’ (p.403)
 ‘A law, although it be with respect to a designated subject matter, cannot be for the peace, order and good government of the Cth if it be directed to the States to prevent their carrying out their functions.’ (p.403)
 Melbourne Corporation was decided on - Implied limitation to the power of the Cth due to the federal structure of the Constitution o Gibbs J – ‘there should not be implied in the Constitution a limitation upon the legislative powers of the Cth that would render invalid any law to the extent which it purports to impose a tax upon the States.’ (p.423-424)
 Accepts Dixon J’s view that a law is bad if it discriminates against States in the sense that is imposes a burden or disability upon them
 Key question: does the legislation discriminate against the States?

• Queensland Electricity Commission v Cth (1986) o Interference with States by the Cth o There was an industrial dispute between electricity workers and the QEC (QLD government body). The Cth government intervened by passing legislation to bring the case into Cth jurisdiction to be dealt with by the Cth Conciliation and Arbitration Commission o HC held that this law was discriminatory against QLD and was invalid o Clarified the test to apply to Intergovernmental Immunities cases (QEC test – per Mason J at p.217-218): (If yes, the law was invalid)
 Does the Cth law single out or discriminate against the States? (anti-discrimination test – laws can’t place special burdens on State governments that don’t apply to other bodies)
 Does the law inhibit the capacity of a State to function as a government? (function as a government test – laws of general application cannot operate to destroy or curtail the existence of States or their capacity to function as governments)
 Key things to note: o Prohibits legislation that both discriminates against a particular State and States in general o A law that deprives a State of a right, privilege or benefit that places them on equal footing with other States is not discriminatory o These prohibitions apply both to States and agencies of the States (e.g. Melbourne Corporation) o Deane J – the fact that a general law places an onerous burden on the States does not necessarily mean that it is discriminatory – the law must ‘discriminate in the sense that its operation involves a singling out of the States in a way that would prevent them from performing their essential functions or which would impede them in doing so’ (e.g. Payroll Tax Case – just because the tax paid by the States was particularly large and had an onerous effect, the legislation was not discriminatory as it did not single States out

• Western Australia v Commonwealth (Native Title Act Case) (1995) o Interference with States by the Cth o The Act limited the way in which State government could respond to native title claims. The State had to pay compensation in some cases. WA argued that this Act was discriminatory and that is interfered with their capacity to function as a government. o HC held the Act was not discriminatory (it may affect WA more as there is a higher percentage of Indigenous people; but this wasn’t intentional) o HC also held that there was no deprivation of the ability to function as government. o The case stated that the second limb of the QEC test applies to:
 The ‘existence and nature’ of the State gov’t, but not specific powers
 The ‘machinery of government’ and the capacity of the relevant organs to exercise their power
 The essential ‘personnel, property, good and services’ the State requires to operate

• Re Australian Education Union; Ex parte Victoria (1995) o Interference with States by the Cth o A dispute arose when the Victorian government offered redundancy packages to some school teachers and health workers. The union wished to bring the dispute under a federal award. o Distinction between two categories of employees:
 (A) Non-high level officers (anyone not in the top level of managers)
 (B) High level officers (e.g. ministers, ministerial assistants and advisers, heads of departments, parliamentary officers, judges) o Held that the Cth can’t interfere in State employment with respect to: (these aspects are critical to a State’s capacity to function)
 For Category (A) (p.232)
• The ‘number and identity of persons’ of people to employ
• The ‘term of appointment’ of employees (part-time, full-time, casual, until retirement, etc)
• The ‘number and identity’ of people who they wish to dismiss, with or without notice, on redundancy grounds
 For Category (B) (p.233)
• All those for Category (A)
• Qualification and eligibility conditions
• Number, identity, terms and conditions of employment for the higher levels of government o Basically – the Cth cannot interfere with category (B) employees in any respect o Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ gave a joint judgment. o Held: ‘the existence of the States … and their capacity to function as a government would not be impaired by the operation of federal awards made in respect of the vast majority of employees … if the award provisions were confined to minimum wages and working conditions which take appropriate account of any special functions or responsibilities’ (p.230) (F&R means amount of work done, skill level, responsibility level o Basically – the Cth arbitration system could extended to industrial relations within the States on matters such as minimum wages and working conditions; however, cannot extend into areas of policy judgment in relation to employment structure o As this law was about redundancy, it was invalid

• Victoria v Commonwealth (Industrial Relations Act Case) (1996) o Interference with States by the Cth – application of AEU Case o The Act was amended to increase protections for workers (restricted the grounds of dismissal) o The HC ruled that the legislation did not bind the States as employers, since it interfered with the protected areas designated in the AEU Case.
 The ‘number and identity’ of redundancies.
 The conditions of employment provided at the ‘higher levels of government’.

• Re Residential Tenancies Tribunal of NSW (1997) o Interference with Cth by a State (rare – the Cth’s legislative powers have expanded over time) o Question – did the State tenancy legislation cover leases taken out by Cth instrumentalities (in this case – the defence force) o HC held that States can’t pass laws that interfere with the ‘capacities’ of the Cth, but they may regulate Cth ‘activities’ (State laws can’t single out Cth or remove special privileges enjoyed by the Crown)

• Austin v Commonwealth (2003) o Interference with States by the Cth o Concerned a Cth ‘superannuation contributions surcharge’ directed at high income earners (included State judges) o HC held that the levy was invalid as it interfered with the ability of the States to discharge their functions under the principle set out in the AEU Case (relating to the appointment and remuneration of judges) o Reformulated the QEC test: Instead of two limbs, it was expressed as a single, overriding test (per Gaudron, Gummon and Hayne JJ, p.249)
 Does the Commonwealth law curtail or interfere with the capacity of a State to function as a government?
• Mere discrimination may not always be enough to infringe immunity o McHugh J maintained the QEC two limb test applies

• Clarke v Commissioner of Taxation (2009) o French CJ identified 6 factors: (only one judge – only opinion, not binding) – these factors form a multifactorial test to determine the application of
 1. Whether the law in question singles out one or more of the States and imposes a special burden or disability on them which is not imposed on persons generally
 2. Whether the operation of a law of general application impose a particular burden or disability on the States
 3. The effect of the law upon the capacity of the States to exercise their constitutional powers
 4. The effect of the law upon the exercise of their functions by the States
 5.The nature of the capacity or functions affected
 6. The extent to which the constitutional head of power under which the law is made authorises its discriminatory application

Characterisation
• When evaluating legislation, ask: o Does the Cth law match up with a s.51 power or another power within the Constitution? o What is the subject matter of the law? Does it fall within one or more enumerated heads of power? (Characterisation)

• The HC approach to characterisation has changed over time.
• Early view – Cth powers should be limited to protect the reserve powers of the State o Dominant characterisation – What is the true subject of the law? (e.g. is the true subject matter of the law taxation or is the Cth using the taxation power to interfere with education?) o E.g. R v Barger (1908) - A Cth law imposed a tariff on agricultural machinery used by factories that did not grant their employees certain minimum working conditions. This law was about both taxation (imposing a tariff) as well as industrial relations (the effect of the tariff was to try and improve workers’ conditions)
 HC struck down the law (the dominant character of the law was not with respect to taxation – it was a law about working conditions) – stated that while the Cth can use tax to achieve an end not solely related to taxation; the Cth cannot use taxation to interfere with areas of state power. o E.g. Huddart, Parker & Co v Moorehead (1909) - Cth tried to use the corporation power to question the plaintiff about its trading activities. The company refused to comply
 HC held that the dominant character of the law was not regulating corporations; rather, to regulate trade and commerce (a State power). Thus, the law was invalid

• Engineers’ Case – moved away from the dominant characterisation approach o Dual/Multiple Characterisation – Is there a reasonable view of the law that places it within the head of power? (does not look at the true purpose of the law)
 A law can have more than one legitimate subject matter – as long as at least one of the law’s subject matters is within Cth power, the law is valid
• The connection between the law and the purpose must be genuine and not ‘so insubstantial, tenuous or distant that [the law] cannot sensibly be described as a law ‘with respect to’ the head of power’ (Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003))
 This grants the Cth more power – they can make a law that impacts both a federal and State power and it will be valid

o E.g. Fairfax v Federal Commissioner of Taxation (1965) – concerned attempts of the Cth to use taxation to encourage private investments in government securities as superannuation funds were exempted from income tax if they bought government bonds. The law was challenged on the basis that it was not truly about taxation, rather about the investment of superannuation funds; thus, outside of the Cth power
 HC held that the law was valid and that Cth laws with respect to a s.51 power may also affect another area
• As long as the law can be characterised as a law ‘with respect to’ a subject matter that is within Cth power, it is irrelevant that the law may also be characterised as bearing upon some subject matter not within the Cth’s power

o E.g. NSW v Cth (Work Choices Case) (2006) – concerned legislation that relied on the corporations power but affect industrial relations.
 HC held that the law was valid – stated that the Cth powers must be read with ‘all generality that the words admit’

• Two types of powers in ss.51 & 52: subject matter and purposive o If the power is one of subject matter: test = Is there sufficient connection between the law and the head of power? o If the power is purposive: test = proportionality

Conflict of Laws
• Must first determine if a law is valid o Cth – the law must be within the powers of the Cth (s.51) o State laws will not be valid if they concern an exclusive Cth power (s.52)
• There are some heads of power that both Cth and States can legislate in regards to. What happens if there is a conflict?
• For a conflict to arise, there must be a valid Cth and a valid State law o In most conflict of law cases, the initial step is determining if both laws are valid o The Cth cannot create an inconsistency in order to extend their powers (Airlines of New South Wales Pty Ltd v New South Wales (1965))
• 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. (Cth law trumps State law)
• How to determine if two laws are inconsistent? o Conflict of Duties – A Cth law and a State law will be inconsistent if one law requires an act and the other law prohibits it
 R v Brisbane Licensing Court; Ex parte Daniell (1920) – The Liquor Act 1912 (Qld) required a referendum on trading hours to be held along with the Senate elections. However, the Commonwealth Electoral Act forbade this. The Cth law prevailed under s.109. o Conflict of Rights – A Cth law and a State law will be inconsistent if one law authorises an act an another law prohibits it
 Tension between the laws – even though you can obey both laws by not doing the act
 Colvin v Bradley Brothers (1943) – a State law prohibited women from working on milling machines. A Cth industrial award permitted it. The Cth law prevailed as it intended for women to do that type of law
 O’Sullivan v Noarlunga Meat (No 1) (1954) – if a person is required to get both a Cth grant and a State grant under two different laws; getting only the Cth grant will suffice
• Exceptions – Commercial Radio Coffs Harbour v Fuller (1986) – Cth law required the erection of an antennae to establish a radio station and State law required the plaintiff to get approval. Plaintiff tried to argue they only had to follow Cth law (in order to avoid planning process). HC held that both laws applied o Overlapping Requirements – one law imposes certain requirements while another law imposes more onerous requirements
 No clear conflict – can obey both laws by meeting the more onerous requirements
 Depends on how you interpret the less onerous requirements – as a minimum standard that another law can build on or designed to exhaust the requirements
 Clyde Engineering v Cowburn (1910) – Cth award set a working week of 48 hours while NSW set a 44 hour week. After this, overtime was payable. NSW award was more onerous on employees. HC held that the Cth law prevailed as it was not intended to be a minimum standard; rather, to standardise employment arrangements on a national basis. o Different Penalties – a Cth and State law may impose the same restriction but different penalties or procedures
 Hume v Palmer (1926) – Cth and State law applied the same rules to steamship navigation but provided for different penalties. The Cth law prevailed. o Operational Inconsistency – two different laws are not directly in conflict, but when these laws are exercised/in operation, there is conflict
 The Cth law will tend to prevail
 Cth v WA (Mining Act Case) (1999) – the Mining Act 1978 (WA) authorised mining activities. The Defence Act 1903 (Cth) excluded people from defence practice areas. No direct conflict between the laws but when a defence practice area is declared in a mining area, operational conflict will arise.
 Suggestions of ‘operational conflict’ are usually rejected o Covering the Field – If a Cth law shows an intention to cover the field (completely regulate a particular topic), then any State laws on that topic are invalid
 These two laws may even require the same conduct or pursue the same purpose
 Two questions: (conflict if both questions are answered yes)
• Is the Cth law intended to be exclusive? (the only law on the topic)
• Does the State law operate in the same field as the Cth law?
 Sometimes this intention is explicitly stated in the law; other times the scope of the law will provide evidence (e.g. Clyde Engineering v Cowburn – the Cth intended to nationalise working conditions)
• Test: ‘Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first?’ (per Isaacs J, p.489) o Applied in Ex parte McLean (1930) by Dixon J
 The Cth can do the opposite and make an express provision of ‘clearing the field’ – indicating that the Act is to operate concurrently with State laws (R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (GMAC Case) (1977)) – no inconsistency between Cth and State law as the Act was not intended to be exhaustive – such a provision is effective
• A Cth law can’t declare that there is no inconsistency but in times of doubt surrounding whether a Cth law intends to ‘cover the field’, such a provision is helpful
• Viskauskas v Niland (1983) - different processes in federal and state racial discrimination statutes. HC ruled that the Cth law was intended to be exhaustive (this outcome surprised the Cth who passed an amendment that the Act stating it was not intended to cover the field) o Wollongong v Metwally (1984) – the Court held that the retrospective declaration of intent cannot eliminate the inconsistency that was declared

• What are the consequences of conflict? o If a State law us affected by s.109, it is rendered inoperative (not invalid as the Constitution suggests) – the State law will immediately come back into effect if the inconsistence is removed (e.g. the federal law is repealed)
 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) – the word ‘invalid’ in the Constitution should be interpreted as meaning ‘inoperative’ (per Latham CJ, p.573) o If the inconsistent provisions can be severed from the rest of the Act, they will be – if the inconsistent provisions are essential to the Act, the whole Act will be inoperative.

External Affairs Power
• External Affairs power – s.51(xxix) – concurrent power shared by the Cth and States
• The power is vague (only says ‘external affairs’) – the High Court has interpreted the power to have thee sub-powers:

• The Geographical Power o Literal – this power applies to laws concerning things, people and events outside of Australia; applied broadly o Australia’s Territorial Sea: NSW v Cth (Seas and Submerged Lands Case (1975) – territorial sea has been defined by international law as extending from the low water mark to 12 nautical miles (approx. 22km) offshore. The Ct passed a law that operated in this area. NSW challenged it. The HC upheld this legislation by saying it fell within the treaty power and within the geographical power (the sea is physically external to Australia)
 The external affairs power covers ‘any affair which in its nature is external to the continent of Australia’. – per Barwick CJ o War Crimes: Polyukhovic v Cth (1991) – concerned a Cth law that retrospectively criminalised war crimes during WWII. The HC upheld the legislation under the geographical power.
 Raised a debate regarding whether the thing legislated on must have some connection to Australia – majority held that there did not need to be a connection. Brennan J argued this – there needs to be some Australian connection

• The Treaty Power o The power of the Cth to pass legislation implementing international treaties that Australia has signed (legislation must be passed for the treaty to be binding in Australia) o First use of the power in Roche v Kronheimer (1921) – Higgins J used to the external affair power to uphold the Treaty of Peace Act 1919 (Cth) which implemented the Treaty of Peace signed at Versailles after WWI (other judges used defence power) o R v Burgess; Ex parte Henry (1936) – an unlicensed aviator who performed stunts near the Sydney Harbour Bridge was charged under the Air Navigation Act 1920 (Cth) which said it is an offence to fly in Australian airspace without a licence. The aviator challenged the law. HC stated that the law fell within the treaty power (implemented the ‘International Convention for the Regulation of Aerial Navigation’)
 It is clear ‘that the legislative power of the Cth over “external affairs” certainly includes the power to execute within the Cth treaties and conventions entered into with foreign powers.’ – per Evatt and McTiernan JJ, p.687
 RULE: the treaty power extends to all bona fide treaties
 Note: the law was held invalid as it did not resemble the Convention enough
 Starke and Dixon JJ proposed limitations to the treaty power
• Starke J: the laws will only be valid if the ‘matter is “of sufficient international significance’ – p.658
• Dixon J: the treaty must be of ‘some matter indisputably international in character’ to be implemented in Australia – p.669 o Koowarta v Bjelke-Petersen (1982) – the RDA threatened to invalidate a QLD statute prohibiting Indigenous people from owning large parcels of land. The HC held that the RDA was supported by the treaty power (implementing the 1966 International Convention on the Elimination of All Forms of Racial Discrimination)
 Debate about whether the treaty must have an international element and not be purely domestic in application. If not, this could allow the Cth to have a huge amount of power
 RULE: expansive view – any law implementing a treaty may be within federal power (could possible be interpreted as needing ‘international concern’)
 Gibbs CJ, Aickin and Wilson JJ adopted the limitations of Dixon J in R v Burgess o KEY CASE: Cth v TAS (Tasmanian Dam Case) (1983) - Tasmanian government proposed to build a dam that would flood the Franklin River. Plan opposed by conservationists and the Cth. UNESCO declared the Franklin River a World Heritage Site in 1982. Cth passed legislation to protect the site and prohibit the construction of the dam. HC upheld the legislation – within the external affairs treaty power.
 RULE: the treaty power is not limited by content – only requirement is that Australia has signed an international treaty in good faith about the topic that has been legislated on (even if the topic is traditionally legislated by the States). Don’t need to prove that the topic is in relation to a matter of international concern.
 Could possible lead to the Cth using treaties to interfere in many State powers
 Brennan J’s two step test: o Does the treaty impose an obligation? o If not, the Act has to be justified as dealing with a matter of international concern.
 Gibbs CJ dissented – stated that the external affairs power was not operative in this situation as the legislation did not affect Australia’s relations with other nations and heritage was not such a burning international issue o Richardson v Forestry Commission (1988) – An act established a commission to investigate if a certain area of forest in Tasmania could qualify for world heritage. The Act prohibited certain works from occurring within the area. The majority held the act to be valid.
 The High Court has a broad view of complying with a treaty obligation o Limits on treaty power:
 Treaty must be a bona fide international agreement (good faith)
• Tasmanian Dam Case – treaty must be genuine – the Cth can’t rely on treaties ‘entered into merely to … confer legislative power upon the Cth’ (e.g. the Cth may enter into a bilateral treaty with a nation who they provide incentive to so they can interfere with State matters)
 Cth legislation must be reasonably related to the treaty
• Airlines of NSW Pty Ltd v NSW (No 2) (1965) – strict approach – is the Cth law appropriate and adapted to the implementation of the treaty?
• Richardson v Forestry Commission (1988) – relaxed approach – could the Cth legislature reasonably form the view that the law was necessary to implement the treaty?
• VIC v Cth (Industrial Relations Act Case) (1996) – middle position – the legislation must have a close enough connection to the treaty – ‘It is for the legislature to choose the means [of implementing the treaty] provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end’
• Legislation conforms to a treaty if it is reasonably capable of being considered to be appropriate and adapted to its implementation
 Treaty Power is subject to other constitutional limits on Cth power (both express and implied)
• Thus applies to all s.51 powers – cannot override constitutional rights or guarantees
• However, the HC doesn’t read down this power in reference to the jurisdiction of the States
• ‘power … [is] “subject to this Constitution” so that such treaties and conventions could not be used to enable the Parliament to set at nought constitutional guarantees elsewhere contained’ (R v Burgess; Ex parte Henry, per Evatt and McTiernan JJ, p.687)
• E.g. Freedom of religion (s.??) Melbourne Corporation principle, freedom of communication, separation of powers
 The Cth must implement a binding treaty power, not a mere aspiration
• QLD v Cth (Daintree Rainforest Case) (1989) – A binding obligation is required but the HC won’t scrutinise a treaty (will look at the views of the international community to see if they think the treaty is intended to be binding)
• Richardson – the HC held that the Cth could use the treaty power to pre-emptively fulfil a possible future obligation (e.g. if an area was going to be World Heritage listed)
• Industrial Relations Act Case (1996) – there must be a specific obligation – a mere aspiration will not allow this power to operate (may be hard to distinguish – benefit of doubt is given to the Cth) o This case left the idea of whether an Act could be based on a recommendation – but the answer is No.

• The International Relations Power o Power directed at legislation aimed at preserving Australia’s relations with other nations o Doctrine of comity – nations accept each other’s sovereignty
 Thomas v Mowbray (2007) – ‘the pursuit and advancement of comity with foreign government and the preservation of the integrity of foreign states may be a subject matter of a law with respect to external affairs’ – per Gummow and Crennan JJ, p.364 o E.g. R v Sharkey (1949) - upheld federal legislation upholding sedition (including sedition against the British Crown – the UK and other Cth countries). HC held that this law was within the power of the Cth as the law was necessary to maintain friendly relations with other nations of the Cth
 ‘The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs’ - per Latham CJ, p. 136. o Power can be used to pass Cth legislation to recognise or exclude the operation of foreign laws in Australia (will also cover extradition)
 Kirmani v Captain Cook Cruises (No 1) (1985) – concerned the validity of legislation excluding the operation of British Imperial Act in Australia. HC held that this law fell under the external affairs power – laws that clarify international laws are valid. o Possible to use this aspect of the external affairs power to authorise a mere aspiration on a topic of international concern (treaty power not applicable)
 Tasmanian Dam Case – Mason, Murphy and Deane JJ supported this idea
 HC has recently said that a mere aspiration wont be enough to enliven the external affairs power (Industrial Relations Act Case) – need either a binding obligation or the doctrine of comity o How do you work out if a matter is of international concern? o Brennan J in Polyukhovich – ‘international concern’ is vague so that it should be approached with caution – need proof (e.g. clear expression by the international community, adhered to in international practice)

• Regulation of Matters of International Concern

• External Affairs and Federalism o External affairs power authorises a broad range of Cth laws – can pass a law on anything and rely on the external affairs power – only need a relevant treaty (there are many treaties about a vast range of matters) o This power poses a significant threat to the federal balance o Industrial Relations Act Case shows that the court is becoming more cautious about applying the treaty power

Defence Power
• s.51(vI) – ‘the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.’
• Defence power is a concurrent power – but there are a number of constitutional provisions relevant to defence: o s.68 - ‘The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.’  executive has control over day to day military operations o s.114 - ‘A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force [...]’  States cannot establish a defence force (the defence power is more than just establishing a defence force) o s.119 - ‘The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.’  in return for States not establishing an army, the Cth will defend the States from attack (e.g. military protects States from internal violence)

• Nature of the Power o Elastic – the scope of the power changes depending on the historical and social circumstances (war time or peace time)
 Andrews v Howell (1941) – ‘its application depends upon facts’ such as ‘the existence and character of hostilities, or a threat of hostilities, against the Commonwealth’ – per Dixon J, p.278
 Australian Communist Party v Commonwealth (Communist Party Case) (1951) – Fullagar J has identified two aspects of the power:
• 1. Primary – Laws that have defences as ‘their direct and immediate object’ (core)
• 2. Secondary – a range of matters only indirectly related to defence (penumbra) o Purposive – authorises legislation with a particular purpose (not a subject matter power)
 Purposive power can cover laws on a large range of subject matters as long as they relate to a certain purpose
• Stenhouse v Coleman (1944) – is a matter ‘incidental or conducive to the prosecution of a war that is being fought’
• Relevant characterisation is one of proportionality, not sufficient connection to a subject matter

• The Wartime Power o The defend power is extremely broad during wartime – can regulate any aspect of the economy or Australian life o War time – a war that Australia is involved in as a party (scope can vary with the extent that Australia is involved in) o Farey v Buryett (1916) – concerned legislation fixing the price of bread during wartime. HC upheld law under defence power. Law not directly concerned with defence but assisted the war effort (need to tightly control the economy)
 Scope of defence power is virtually unlimited during a time of total war where Australia is threatened o Lloyd v Wallach (1915) – HC upheld legislation giving a minister the power to detain anyone who threatened the defence of the Cth during WWI o Legislation during war covers a very broad range of matters – price controls, rent controls and employment regulations o Taxation and defence – First Uniform Tax Case (1942) – held that the defence power supported the seizure of tax office personnel and property as it was wartime and fund were needed for the war o Limits on the wartime power:
 R v University of Sydney; Ex parte Drummond (1943) – legislation placed limits on the number of students admitted to uni. Cth argued this was needed to support war effort. HC rejected this as there was no attempt to encourage people to contribute to the war – need a sufficient connection to defence.
 Industrial Lighting Case (1943) – restrictions on lighting for industrial premises. HC said law lacked a sufficient connection to defence. (‘no specific relation to the subject of defence’ – per Latham CJ, p.418)
 Jehovah’s Witnesses Case (1943) – Cth declared Jehovah’s witnesses a ‘subversive organisation’ which allowed government to seize group’s property and prohibit publications. HC said restrictions were unsupported by the defence power as this legislation can be used for purposes not related to defence.

• The Transition to Peace o Defence power authorises laws managing the transition from war to peace o Scope at this time is less than in war time but more than in peace time o Law may deal with the repatriation and rehabilitation of soldiers, rebuilding a destroyed city o Limits on the Transition to Peace Power:
 R v Foster; Ex parte Rural Bank of New South Wales (1949) – HC held that a number of WWII regulations could not be sustained after the war (restriction on employment, petrol sales and supply of residential housing). The power does not cover ‘any problem […] created or aggravated by the war’ for an indefinite period as this would amount to a general power.
• ‘the cessation of hostilities leaves behind various matters which can legitimately be made the subject of Commonwealth legislation as being incidental to the execution of the defence power in the past’ –p.81

• Peacetime Power o Defence power is narrowest during peacetime  stull significant scope as the Constitution has been interpreted due to the Engineer’s Case o Defence power covers ‘defence preparedness’ and matters such as ‘the enlistment (compulsory or voluntary) and training and equipment of men and women in nay, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications.’ – Australian Communist Party v Commonwealth (Communist Party Case) (1951) – p.254 o Successful use of the defence power:
 Clothing Factory Case (1935) – HC upheld legislation creating a Cth factory to produce clothes for both military personnel and civilians (multiple characterisation – had both a defence and not defence purpose – enough to hold it within the defence power)
 Capital Issues Case (1953) – HC upheld legislation allowing the Treasure to restrict businesses from raising capital in ways competing with government capital issues (defence power as raising money through governmental bonds was necessary to fund the military) o Unsuccessful use of the defence power:
 Shipping Board Case (1926) – law authorised the Cth Shipping Board to produce and sell equipment for generating electricity. Cth argued that a reliable supply of electricity was needed for naval defence. HC struck down law – not a sufficient connection with defence (this law may have been okay during wartime)
 Communist Party Case (1951) - The Communist Party Dissolution Act 1951 (Cth) outlawed the Communist Party, confiscated its property and allowed GG to outlaw other associated groups. Cth argued that these measures were needed for national defence. HC struck down the law – not supported by the defence power
• This case would now raise concerns of the implied freedom of political communication

• Military Discipline o Defence power supports the establishment of service tribunals to hear charges against military personnel (even during peace time) o R v Tracey; Ex parte Ryan (1989) –HC upheld the Defence Force Discipline Act 1982 (Cth) which established military tribunals. Limitations – can’t prevent civilian courts from also trying military personnel.

• Internal Threats o s.51(vi) – extends to ‘the control of the forces to execute and maintain the laws of Commonwealth’  this could be construed as police power (establishing a Cth police force); however, the police power falls under the incidental power (s.51(xxxix)) – look elsewhere to find a power to cover internal threats o Terrorist attacks – lead to questions whether the defence power covers internal threats  Thomas v Mowbray (2007) – HC upheld anti-terrorism legislation allowing ‘interim control orders’ under the defence power. Allowed the power to extend to internal attacks against body politic as a whole/against the government or public Corporations Power
• s.51(xx) – The power to make laws with respect to ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’
• Concurrent power – Cth has been given enormous power to regulate economic activity (after Work Choices Case)
• Two key questions in regards to this power: o What are the entities with respect to which the Commonwealth may make law under s.51(xx)? o What kind of law can the Commonwealth make with respect to these entities?

What is a Corporation?
• s.51(xx) applies to ‘constitutional corporations’ – foreign corporations, trading corporations formed with the Cth and financial corporations formed within the Cth
• What is a corporation? o An association that is given an artificial legal personality by law o Established by State or Federal Law – uniform Corporations Act in every jurisdiction o A corporation may be incorporated under a special statute (e.g. University of Queensland Act 1998 (Qld), City of Brisbane Act) o Incorporation means – the company is a separate entity from its shareholders and directors, the company can sue in tis corporate name, there is perpetual succession (employees change, company remains), power to acquire and hold property

• Foreign Corporations o A corporation ‘formed outside the limits of the Cth’ (Incorporations Case (1990)) o Entity must be a corporation at foreign law (Adamson’s Case (1979) – an entity is a corporation if, under foreign law, it is an entity separate from its members) o Foreign corporation does not need to be a trading or financial corporation – s.51(xx) applies to all corporations

• Trading Corporations o s.51(xx) will apply to corporations that only engage in intra-State trading (trading only within one State)
 Huddart, Parker & Co v Moorehead (1908) said that s.51(xx) does not apply to corporations that conduct only intra-State trade but this decision was overruled in Strickland v Rocia Concrete Pipes (Concrete Pipes Case) (1971) – said that the Huddart Parker decision was based on the reserved powers doctrine which was later overruled in the High Court o What is a trading corporation? – a corporation set up to engage in trade (What was the purpose of setting up the corporation? Look at memorandum documents). There are three tests to determine whether or not a corporation is a trading corporation?
 1. Nature of the corporation is determined by the purpose for which It was set up (purpose test)
• R v Trade Practices Tribunal; Ex parte St George Country Council (1974) – The Council was set up to provide an essential service to inhabitants; thus, was not a trading corporation. What was the purpose for which the corporation was set up? (per Gibbs and Menzies JJ)
 2. Predominant and characteristic current activity (activities test)
• St George Country Council Case (1974) – a corporation will be a trading corporation if it’s predominant characteristic activity is trading. The ends for which the corporation trades is irrelevant. (per Barwick CJ)
 3.Trading activities are a ‘substantial’ or ‘not insignificant’ part of its operation
• Authority favours this case – but it is not certain
• This is basically a judgment call
• R v Federal Court of Australia; Ex parte Western Australian National Football League (Adamson’s Case) (1979) – applied the activities test but said the trading activity must not be insubstantial (per Mason and Murphy JJ). Held that the WA and SA football leagues were trading corporations
• Applied in State Superannuation Board v TPC (1982) by Deane J – minority said that the superannuation fund was not a constitutional corporation because its predominant or characteristic activity was governmental in nature

o Trading corporations – football leagues, state superannuation board, hydro electric commission of Tasmania (Tasmanian Dam Case (1983)), shelf companies (a company that has been set up but not in operation – Fencott v Muller (1983) – in the absence of activities, apply the purpose test)

• Financial Corporations o Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) – a corporation is a financial corporations when it conducts ‘transactions in which the subject of the transactions is finance (such as borrowing or lending money) as distinct from transactions (such as the purchase or sole of particular goods …) in which finance, although involved in the payment of the price, cannot be properly seen as constituting the subject of the transaction.’ – per Deane J, p.642 o Suffices if financial dealing is a substantial part of its activity o E.g. – banks, building societies, finance companies, o Superannuation Boar v Trade Practices Commission (1982) – approved above test and said that a corporation is a financial corporation if it engages in financial activities. Significant as it said that financial activities need not be the corporations predominant activities. But need only form a substantial proportion of its total activities o Bourke v State Bank of NSW (1990) – commonwealth can’t regulate State Banks

Development of Corporations Power
• Corporation power was basically ignored as a basis for Cth legislation until Strickland overruled Huddart Parker
• Huddart, Parker & Co v Moorehead (1909) o Held that the corporations power could not support the Australian Industries Preservation Act 1906 (Cth) (early version of trades practices legislation) o Court held that the corporations power should be construed narrowly in order to protect the reserved powers of the States o Fear that a broader interpretation would give the Cth an uncontrollable power o Isaacs J dissented and said that the corporations power was exercisable wherever ‘these specific objects are found, irrespective of whether they are engaged in foreign or Inter-State commerce, or commerce confined to a single State’. The autonomy of the States is safeguarded to an extent in that the power restricted the Cth in regards to what type of corporations they could legislation on (foreign, trading and financial). This already limits the Cth power; thus, you shouldn’t put even further limits on it. (p.393)
 Isaacs J essentially looked at two questions – which corporations fall within s.51(xx)? And what aspects or activities of a corporation can be regulated under s.51(xx)?
• Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes Case) (1971) o Challenge to aspects of the Trade Practices Act 1965 (Cth). o Overruled Huddart Parker – said that it was decided on the reserved powers doctrine which was now overruled in the Engineer’s Case (1920)

What kind of laws can Parliament make with respect to constitutional corporations?
• s.51(xx) is a power in relations to persons or entities, not activities (like the aliens and races power)
• HC refuses to place an outer limit on the power – each case is determined on a case by case basis with limits being pushed further out (Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982)) o ‘The subject of the power is corporations … the power is not expressed as one with respect to the activities of corporations, let alone activities of a particular kind or kinds.’ – per Mason J, p.207
• Tasmanian Dam Case (1983) – extended the scope of the power to allow the Cth to regulate activities undertaken for the purposes of its trading activities

• Parliament has no power with respect to incorporation of companies generally o s.51(xx) does not enable the Cth to enact its own corporations law that would regulate all aspects of companies (including their incorporation) o Why? – NSW v Cth (Incorporations Case) (1990) said:
 The words ‘formed within the Cth’ refers to corporations already formed
 s.51(xiii) gives power to make laws with respect to incorporations of banks (expressio unius exclusion alterius – express inclusion of one thing excludes another)
 Parliament cannot have the power to legislate on formation of foreign corporations

• Parliament cannot make law to abolish corporations o Parliament may regulate the conduct of activities of corporations but not ban them – Cth v Bank of NSW (Banking Case) (1948)

• Parliament may establish Cth corporations under other heads of powers o E.g. the ABC and NBN were created under s.51(v) ‘postal, telegraphic, telephonic, and other like services’; Commonwealth Bank established under s.51(xiii) ‘banking, other than State banking’; Australian National Airways created under s.51(i) ‘trade and commerce with other countries, and among the States’.

• Extent of power to regulate corporation – there are two tests: o The ‘Distinctive Character’ test:
 The aspect or activities that the Cth can regulate must have something to do with the characteristic that brings the corporation within the Cth power (e.g. if the law is in respect to a trading corporation, the law must have something to do with trading activities of that corporation) o Objective of Statutory Command test:
 No limits – Cth can regulate any aspect or activity of the corporation
 Dominant test – fears of power being too broad
 A law is valid under s.51(xx) if the object of statutory command is a constitutional corporation (directed at a corporation in s.51(xx))
 Re Dingjan; Ex parte Wagner (1995) – ‘the corporations power is directed to persons and not subject matters … the power conferred by s.51(xx) also extends to any subject that affects the corporation…. the law must have ‘a relevance to or connection with’ a s.51(xx) corporation.’ – per McHugh J, p.368
• Gave no clear answer – agreed that the question shouldn’t be ‘what aspects or activities of a corporation can be regulated?’; rather, should be ‘what degree of relevance or connection to ‘constitutional corporations’ is necessary?’
 Also supports laws directed to protecting constitutional corporations from conduct intended and likely to cause loss or damage to the corporation (Fontana Films)

• May regulate purely intra-state activities of trading corporations o See above about intra-state corporations (Strickland) o If the purely intra-state activity is banking, parliament has no power due to s.51(xiii) ‘banking, other than State banking’

• Regulation of activities of third parties in relation to constitutional corporations o Actors and Announces Equity v Fontana Films (1982) upheld s.45D of the TPA, which prohibited secondary boycott of corporations.
 The prohibited conduct is sufficiently relevant for the prohibition of it to be described as a law with respect to the subject of constitutional corporations – per Gibbs J, p.183. However, there are limits to the power to regulate third parties o Davies v Commonwealth (1998) – HC considered the validity of certain provisions of the Australian Bicentennial Authority Act 1980 (Cth). Provisions granted the Authority a monopoly of certain symbols and expression including the term ‘200’. In their joint judgment, Mason CJ, Deane J and Gaudron J stated that s.51(xx) could be used to grant protection to corporation against deceptive use of its symbols but they held that this went far beyond protection of that kind

• Regulation of industrial relations by corporation power – The Work Choices Case o Work Choices Case – large expansion of the corporations power o Work Choices legislation was a series of amendments to the Workplace Relations Act (Cth). The main Act was supported by the conciliation and arbitration power. Gov’t used corporations power to support the new Act o Aim of legislation = use corporation power to install a comprehensive law governing industrial relations that radically changed the existing systems. The Act brought 85% of the Australian workforce within federal jurisdiction o Law not supported by s.51(xxxv) – power over industrial disputes extending beyond the limits of any one State o Challenged on the basis that:
 There is a distinction between internal and external relations of corporations and s.51(xx) does not apply to internal relations
• REJECTED – this added a new filter to the test and was indirectly based on the discredited reserved powers doctrine
 The existence of specific industrial relations powers in s.51(xxxv) precludes the use of s.51(xx)
• REJECTED – s.51(xxxv) deals with a narrower subject of conciliation and arbitration and a law may have several characters (the fact that is deals with IR doesn’t mean it isn’t a law on constitutional corporations) o Majority said the rejection of the plaintiffs’ arguments ‘is favoured by a consideration of the text and structure of the Constitution and by the course of authority in this Court since at least the demise of the reserved powers doctrine in 1920.’

• Other limits on the corporations power o Like all s.51 powers, the corporations power ‘is subject to this Constitution’ o Nationwide News v Wills (1992) – s.51 powers are subject to the implied freedom of communication o Melbourne Corporation Case (1947) – cannot impair the capacity of the States to function as States Taxation and Spending
• The people consent to the government taking money off them
• No taxation is possible except under the authority of an Act of Parliament
• Relevant sections: o s.81 - government revenue must be paid into the Consolidated Revenue Fund (CRF) o s.82 – Commonwealth expenditure takes priority in applying CRF funds o s.83 – money can only be drawn from the fund under an appropriation law o s.54 – appropriation bills for ordinary services of government (OASG) must only deal with such appropriations
• If the Budget is not passed by both houses, it is convention for the PM to resign

Power to Impose Tax
• s.51(ii) – Parliament has the power to make laws with respect to ‘taxation; but so as not to discriminate between States or parts of States’ o This power has had a significant impact on the evolution of Australia’s federal structure o Cth uses this power to raise most of its revenue – income tax and GST o Only limit on taxation is that it doesn’t ‘discriminate between States or parts of States’
• s.90 – power to impose duties of customs and excise belong exclusively to the Cth
• Cth has a monopoly on income tax o Established In the State Grants (Income Tax Reimbursement) Act 1942 (Cth) o Uniform Tax Scheme 1942 – States receive reimbursements from the Cth on the condition that they do not impose income tax
• States taxes – stamp duty, land tax, various sales tax
• Federal and State taxes can’t conflict because a federal tax can only be fore federal purposes and State taxes can only be for State purposes – Victoria v Cth

What is a Tax?
• Different types of taxes – income tax, wealth tax, land tax, stamp duty, duties of customs and excise
• First question = is the exaction in question a tax?
• Matthews v Chicory Marketing Board (Vic) (1938) – A tax is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment rendered for services (per Latham CJ)
• Compulsory exaction of money: o Air Caledonie v Cth (1998) – the Migration Amendment Act 1987 (Cth) tried to impose a $5 fee for immigration clearance upon international airline passengers entering Australia into the Migration Act 1958 (Cth). Plaintiff argued that the fee was a tax and couldn’t be inserted into the Migration Act as the Act dealt with matters other than the imposition of taxation (contravened s.55). Held that the $5 fee was a tax. o Rule: If the person required to pay is (a) given no choice about whether or not the acquire the services; and (b) the amount of the exaction has no discernible relationship with the value of what is acquired; the exaction is a tax o Also suggested that Latham CJ’s definition was not exhaustive (an exaction may be a tax even if a specified characteristic is missing or may not be a tax even if all characteristics are present)

• Imposition by a Public Authority o A public authority is a body that performs function or delivers services of a public nature – independent, statutory bodies have been treated as public authorities o Australian Tape Manufacturers v Cth (1991) – the majority stated ‘that it is not essential to the concept of a tax that the exaction should be by a public authority’ (if Latham CJ’s definition is not exhaustive, this judgment is okay)
• Requirement of Public Purposes o Taxes must no be used for the private purposes of the leader o Australian Tape Manufacturers v Cth (1991): money collected from a levy on the distribution of all blank recording tapes was not paid into the CRF but paid directly to the association of copyright owners. Held the levy was a tax as it was for a public purpose (finding a solution to a problem of public importance – copyright)
• Distinguish tax from: o Payment for services (getting something in return for money)
 Need to show that there is a specific identifiable service; the fee is payable by the person who received the service; the fee is proportionate to the cost of the service
 Service must be to the individual, not the public in order to not be a tax – A-G (NSW) v Homebush Flour Mills (1937)
 Air Caledonie v Cth (1998): held that a $5 immigration clearance fee paid by all incoming passengers and collected by the airline was a tax as it applied to citizens returning to Australia who did not need a licence; thus, there was no identifiable service
 Air Services Australia v Canadian Airlines (1999): held that air traffic service fees were not a tax as the charge clearly covered and was reasonably related to the expenses incurred and the charge was not imposed to raise revenue
• Held that the Ramsey Pricing Method is used to fix prices for monopoly services to ensure that a fair price is reached – if the price is not fair, the charge becomes a tax o A precise relation to the value of services is not required o There is no evidence of profit-making o The charge must bear a reasonable relation to the cost incurred by the provider o Fines and penalties for breaches of law (this is punishment) o Northern Suburbs General Cemetery Reserve Trust v Cth (1993) – held that the ‘training guarantee shortfall’ (the difference between how much an employer was required to spend on training and how much they did spend) paid into a Training Guarantee Fund was a tax, not a penalty due to a number of factors
• A fee is not a tax if it is arbitrary (that is, based on other than ascertainable criteria)
• Presumption that if an exaction is paid into the CRF, it is a tax (can be rebutted) – Australian Tape Manufacturers
• If there is an exaction which is held to be a tax, it will fall within the core of s.51(ii). If the law does not involve a tax, it may still be characterised as a law ‘with respect to taxation’ because it falls within the implied incidental aspect of s.51(ii) (s.51(xxxix) – Mutual Pools & Staff Pty Ltd v Cth (1994)
The power to impose tax is controlled by:
• Procedural Limits: o s.53 – taxation laws imposing taxation must originate in the HoR
 Because the government is responsible for fiscal policy and government is formed in the HOR o s.53 – the Senate cannot amend taxation bills (can still reject bills)
 The Senate may request a taxation bill to be amended but the HoR does not need to comply o s.55 – laws imposing tax must only deal with tax
 Practice of splitting tax legislation into two Acts – one dealing with the imposition if taxation and the other providing the machinery for assessing and collecting the tax (Moore v Cth (1951)) o s.55 – laws imposing tax (other than customs or excise) must deal with only one subject of taxation (State Chamber of Commerce v Industry v Cth (1987)) o s.55 – laws imposing duties of custom must deal only with customs o s.55 – laws imposing duties of excise must deal only with excise

• Substantive Limits o Discrimination – there cannot be discrimination between States or parts of Stated (s.51(ii) and s.99)
 R v Barger (1908): an excise duty, of which manufacturer’s giving ‘fair and reasonable’ labour conditions were exempted from, was held as discriminatory as the duty could differ between States o Subject to express and implied limitations in the Constitution
 E.g. implied freedom of political communication, freedom of religion (s.116), non-impairment of State’s capacity to function as States (taxation law struck down in Austin), separation of power o Tax laws may be used to regulate economic activity or change behaviour
 Governments use taxes to reallocate wealth, regulate the economy or influence social behaviour (e.g. carbon tax, alcopops tax, cigarettes tax)
 Must still be a law with respect to taxation: Fairfax v Commissioner of Taxation (1965) – an Act that provided that income from superannuation funds were taxed unless they were invested in prescribed public securities was held to be not a law with respect to taxation
• Customs and Excise Duties o s.55 – ‘laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.’ o s.90 – the power to impose customs and excise duties is exclusive to the Cth o Customs and excise duties are indirect taxes – taxing one person with the expectation that they will indemnify themselves at the expense of another

• Customs duty = tax on goods as they come in or leave the country o Dennis Hotels v Victoria (1960) – the taxpayer is taxed by reason of, and by reference to, his importation or exportation of goods o Different goods can attract different rates – a way of encouraging or discouraging imports or exports

• Excise duty = a tax on goods when they move from one party to another (e.g. manufacturer to wholesaler, wholesaler to retailer, retailer to consumer) o A tax on goods, not services o Narrow view – ‘a duty analogous to a customs duty imposed upon goods either in relation to quantity or value when produced or manufactured’ – Peterswald v Bartley (1904)
 Two requirements: a tax imposed upon goods (1) either in relation to quantity or value; and (2) at the point of time where the goods are ‘produced or manufactured’
 States argue this view so that they can impose such a charge without it being considered an excise duty o Broader view – ‘a tax upon a commodity at any point in the chain of distribution before it reaches the consumer’ – Parton v Milk Board (1949)
 ‘The tax must bear a close relation to the production or manufacture, the sale or the consumption of the goods and must be of such a nature as to affect them as the subjects of manufacture or production’ – Matthews v Chicory Marketing Board (Vic) (1938)
 Cth and manufacturers argue this view so to avoid having to pay such charges o Ways States avoid s.90:
 Mechanism of Marketing Boards – States set up a marketing board for a particular commodity funded by a charge levied on marketed goods – Parton v Milk Board (1949) (a Milk Board was to be financed by a levy upon ‘every dairyman’ and ‘every milk depot who sells or distributes milk’. The levy was held to be an excise duty, thus not allowed)
 Mechanism of Licensing Fees – States require traders to pay a licence fee based on the amount of sales in the previous year – Dennis Hotels Pty Ltd v Victoria (1960): licence granted to hotel owners upon payment of fees based on the cost of liquor purchased by them in the previous years. Not an excise duty as the connection between the goods and service was broken by the scheme o Model still exists – need to consider proximity of the criterion of calculation; the high rate of tax indicating the revenue raising nature of the tax; absence of regulatory content

Appropriation and Spending
• s.81 – All revenues or moneys raised or received by the … Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner … imposed by this Constitution o No money can be drawn from the treasury without an appropriation made through law o Appropriation must be for a purpose of the Cth, not a private purpose
• Purposes not confined to s.51 powers – AAP Case (1975)
• s.54 – a proposed law appropriating money ‘shall deal only with such appropriation’
• Appropriation for OASG: o s.53 – the Senate cannot amend a bill for OASG
 Unclear as s.53 provides that the Senate and HoR have the same powers in regards to all proposed laws o What constitutes OASG?
 OASG = recurrent, routine expenditure of government required for government to operate (not specific projects)
 1965 Compact states that the following are not OASG: construction of public works and buildings; acquisition of sites and buildings; items of plant and equipment; grants to States under s.96; new policies not authorised by special law
• 1975: the Senate failed to pass the Supply Bill which led to the dismissal of the government by the G-G

• Degree of specificity: o Combet v Cth (2005) – government spent money on advertising campaign to promote labour law reforms. The money was appropriated for the departmental expenditure of the Department of Employment and Workplace Relations. Held that the Department cannot spend the money in any way they wish; rather, it is for the Parliament to determine the purposes
• Grants Power o s.96 – allows the Cth to provide financial assistance to any State on ‘such terms and conditions as the Parliament thinks fit’ o Allows the Cth to exercise control in areas constitutionally in the States power o States can reject grants; however, they do not have many sources of income as they cannot levy an income tax o Deputy Federal Commissioner for Taxation v WR Moran (1939) – the grants power allows the Cth to address inequalities between the States; s.99 (non-discrimination rule) has no application to s.96 grants o Conditions must no authorise taking property except on just terms (s.51(xxxi)) – ICM v Cth (2009) o The Cth is the only level of government that imposes income tax. A portion of this tax is then distributed. The validity of this arrangement was upheld in South Australia v Cth (First Uniform Tax Case) (1942) and affirmed in Victoria v Cth (Second Uniform Tax Case) (1957)
 First Uniform Tax Case concerned four Cth laws that established the Cth’s monopoly over tax:
• Income Tax Act 1942 (Cth) – fixed Cth income tax at a very high rate
• State Grants (Income Tax Reimbursement) Act 1942 (Cth) – the Cth shall provide financial assistance to the States every year providing they don’t collect income tax
• Income Tax (War-time Arrangements) Act 1942 (Cth) – provided for the transfer to the Cth of State public servants engaged in assessment or collection of income tax along with property of State taxation departments
• Income Tax Assessment Act 1942 (Cth) – no taxpayer should pay a State income tax until after they had paid the Cth income tax
 Four States challenged the regime – the HC rejected the challenge. Found that all four Acts were valid; thus, the scheme was valid