Australian Constitutional Law: Notes

Topics: Separation of powers, High Court of Australia, Australian constitutional law Pages: 21 (6031 words) Published: June 21, 2013
70616: Australian Constitutional Law
Final exam revision
What is in the exam?4
Interpretation of the Constitution5
Characterisation of the law6
Subject matter powers - sufficient connection test6
As in the Bank Nationalisation Case6
As in Fairfax (1965)6
As in Herald (1966)6
As in Murphyores (1976)6
In Re Dingjan (1995)7
Purposive powers + - Reasonably appropriate and adapted test8
Subject Matter Powers9
The Race Power9
Tasmanian Dams9
Western Australia v Commonwealth9
Trade and Commerce Power10
Definition of Trade and Commerce10
Required to be interstate or overseas10
Intrastate trade10
Corporations Power12
Constitutional Corporations12
Power to incorporate12
Implied Incidental Power13
Purposive Powers16
External Affairs18
Physically external18
International Relations/relationships with other countries18
Matters of international concern18
Treaties/external affairs18
Grants Power21
S52 – regarding commonwealth land21
The Territories Power22
The States23
Commonwealth laws affecting the state23
State laws affecting the commonwealth23
Inconsistency of laws24
Implied Incidental Power25
Chapter 3 Courts and the Separation of power26
Does the Commonwealth Act create a Court?26
a)Is it constituted in accordance with Chapter III?26
b)Is it exercising the judicial power of the Commonwealth?26
Does the Cth. Act create a tribunal that is not a Chapter III court?27
a)Is it exercising judicial power of the Commonwealth?27
b)Are the members of the tribunal Chapter III judges?27
c)Are the judges acting in their personal capacity or their judicial capacity?27
Does the State Act create a court?28
Rights and Freedoms30
Freedom of religion30
Acquisition of property on just terms31
Implied Freedom of political Communication32
Implied Right to Due Process, Fair Trial & Equality33

What is in the exam?
* Characterising a law
* Heads of power
* The race power
* Trade and commerce
* Corporations
* External affairs
* Nationhood
* The territories power
* Grants power
* S52
* Other issues
* Separation of powers
* Judiciary
* Chapter 3 courts and the exercise of the judicial power of the commonwealth * Judges acting in persona designate
* Rights and Freedoms
* Free trade between states
* Freedom of religion
* Freedom of political communication
* Freedom to gather/travel
* Limited right to vote
* Right to a fair trial
* Right to a trial by jury
* Acquisition of property on just terms
* Melbourne Corporation
* Retrospectivity – Polyukovic, limited by university of Wollongong v metwally [can’t use retro to claim that inconsistency didn’t happen] * Reading down a law s15A interpretation act

* Inconstancy between state and federal laws
* Vanilla
* Explicit inconsistency
* “covering the field”

Interpretation of the Constitution
* The broader interpretation of the constitution is favoured: We are interpreting a Constitution broad and general in its terms … the court should in my opinion, always lean to the broader interpretation unless there is something in the context or the rest of the Constitution to indicate a narrower interpretation is better Dixon J in the Bank Nationalisation Case [interpretation of banking power; held: power to be construed broadly]

Characterisation of the law
A law must be characterised in order to be valid.
Subject matter powers are characterised via the sufficient connection test, purposive powers are characterised via the reasonably appropriate and adapted test Subject...
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