Australian Constitutional Law Exam Notes

Topics: High Court of Australia, Australian constitutional law, Law Pages: 28 (10129 words) Published: February 4, 2014
Constitutional Law Exam Notes
Introductory Cases
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineer’s Case”) (1920) 28 CLR 129 – Cth introduced industrial law – applied to state governments and entities within s51(xxxv) (arbitration power) as employers re industrial disputes. Said Cth could not make binding award over State governments. Abolished STATE RESERVED POWERS doctrine (that Cth could not intrude) – shifted balance of power to Commonwealth. High Court stated must look at words of constitution and give them their natural and ordinary meaning – no assumptions nor presumptions, give full effect, interpret grants generously, not restrictively. Federal overrules State. Melb Corp notes restrictions though… Melbourne Corporation v Commonwealth (“Melbourne Corporation Case”) (1947) 74 CLR 31 – Cth introduced Banking Act, prohibited private banks conducting business with State unless Cth Treasurer agreed. Cth laws invalid if they ① deny existence or ability of State to govern itself OR ② single out any one State. Implied limitation on the constitution. 2 limbs – discrimination limb (against State govt/entities), guarantee limb (guarantee exists that we are a Federation). Commonwealth cannot legislate so as to curtail the capacity of State government entities. O’Sullivan v Noarlanga Meat Ltd (1954) 92 CLR 565 – (incidental s51(i) scope) – Cth statute states regulations that meat being prepared and sorted for export must be stored in a certain way. Goes to “quality and standard of export product” = CORE. Regulations dictating things such as drainage systems and hygiene incidental to core power (way before actual exportation) = sufficient connection. Must be a physical connection, not merely economic, under incidental scope. Murphyores Inc Pty Ltd v Commonwealth (1976) 215 CLR 185 – s51(i) case – mining on Fraser Island, conservation lobby – Cth changed export provisions – cannot export unless provide satisfactory environmental impact statement. Covered both T&C power and environmental laws. Valid as under a head of power. If multiple characterisations present, ie one within power, one beyond, as long as one is within power then law is valid. Leask v Commonwealth (1996) 187 CLR 579 – Cth financial act imposing obligation to report cash transactions above $10,000. Disproportionate to currency and coins power (s51(xii)). For a law to be valid there needs to be a sufficient connection between how the law operates and what effects it creates and the subject matter of the head of power. Exam hints:

1. Know scope & meaning of power from Constitution on which you intend to rely. 2. Look at statute/proposed law and state “This is a law with respect to **** Constitutional head of power”. 3. Note restrictions – state “the law appear to be valid with respect to **** but may be struck down because it infringes an express or implied prohibition ***”. 4. Check: direct effect of the law. Does the direct effect connect to the subject matter of the constitutional head of power? What is the direct legal effect upon the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes? (Kitto J in Fairfax) 5. If characterised as valid, then say it’s VALID. Can only be struck down by restrictions. 6. If under core, don’t go into incidental.

7. Incidental = other things to fulfil objective and purpose of power, to give it its full effect – must be connected to power, keep connection going and say “this has sufficient connection”. 8. Restrictions = express (eg states “limited to ***”) or implied (must be sufficient connection) Taxation Power s51(ii) and Taxation Provisions (s55)

Concurrent power (other than income tax which is Cth exclusive (Uniform Tax Cases – Cth/State arrangement from 1940’s), excise duties & customs duties which are Cth exclusive – s.90 prohibition = state government cannot raise revenue by duty of excise or duty of customs). Prohibition: s51(ii) prohibits...
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