1.CHARACTERISATION/INTERPRETATION/RESTRICTIONS
A.CTH 1.Substance not Form: R v Barger . McHugh J in Re Dingjan; Ex parte
Wagner; (“First character of law must be determined. That is done by reference to the
rights, powers, liabilities, duties and privileges which it creates. Secondly, a judgement
must be made as 2 whether the law as so characterised so operates that it can be said 2
be connected to a head of power conferred by 51 … if a connection exists between the
law and a s 51 head of power, the law will be “with respect to” that head of power’ 2.Mere
economic convenience insufficient: WA Airlines (Cth enacted leg affecting Cth plane
service travelling from Perth, Broome to Adelaide. State challenged HC; Even if it is
economically convenient, it wont be sufficient for direct legal effect. i)DIRECT LEGAL
EFFECT; Fairfax v Fed Commission of Taxation Kitto J “nature of rights, duties,
powers and privileges”. The substance of the enactment is the obligation which it
imposes. B)STEPS: i)CHARACTERISATION – Head of Power: A. Ordinary and
natural meaning Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
(Union served a log of claims on 8544 e’ers including 3 WA Gov instrumetalities which
challenged the validity C & A Act apllying on them thorugh s51(xxxv) HC; Cth heads of
power to be given full scope & effect according to natural & ordinary meaning of words.
ANA Case at 225 Apply words “without making implications or imposing limitations which
are not found in the express words… [it should be] construed with all the generality which
the words used admit” ii)INTERPREATION –Scope & Meaning: Decide whether subject
matter (direct legal effect) falls within 1.Core: e.g. Tax power, imposing tax = core
2.Incidental operation of head of power: imposing penalty = incidental.
3.Proportionality? Nationwide News P/L v Wills Mason J “reasonably proportionate to
pursuit of [the]end” ! Leask proportionality not relevant. 4.Subject Matter: Law can
be characterised as a law with respect to more than 1 subject matter: Murphyores Inc
Pty Ltd v Cth; Sand on Frazer island case, environmental impact statement before you
can export HELD: The law in respect to subject matter not within Cth power irrelevant
(e.g. came under Trade & Commerce anyway, despite dealing with environment).
5.Severance: 1.Divisible? Cut out invalid part 2.Distributive? Read down general
provision so as to fall within scope of power s15A Acts Interpretation Act 1901 (Cth)
“every Act shall be read and construed subject to Consti, and so as not to exceed the
legislative power of the Cth” iii)RESTRICTIONS 1.Express e.g. s 92; 2.Implied Cth
immunity from state law/implied freedom political speech B.STATE i)Plenary Legislative
Power Prima facie assumption that state source of power valid under “peace, welfare
and good governance” s 2 Constitution Act 1867 (Qld) & s 8 Constitution of
Queensland 2001. S 2 Australia Act 1986 (Cth) – states have full power to make laws
for peace order and good government 1.Not words of limitation Union Steamship
“Peace, welfare and good governance” ^. ii)RESTRICTIONS? 2. FEDERALISM & STATE
A)STATE CONSTI’S Ch V Consti (Cth) deals with States. I)Existence of State:
Guaranteed by s106Consti (Cth). Victoria v The Cth (payroll tax on all e’ers in Aus,
Assessment Act defined an e’er to include all state crowns. Vic sought decl that Acts
invalid so far as they imposed tax on state HC: Acts were valid exercise of power
authorised by Consti. NOTE: Later attempts to prioritise Cth tax payments over State
payments = invalid
B)FEDERALISM: “The Consti was enacted 2 give effect to agreement reached by people
of NSW, VIC, SA, Qld, Tas & WA to unite “in one indissoluble Federal Cth’ Capital
Duplicators P/L v Australian Capital Territory (1992) HCA (excise and licence fees)
C)FISCAL FEDERALISM: State gov’s receive more than half of their $ from Fed Gov to
spend on State matters
D)BALANCE “There is no more effective way of checking action of one gov than by the
counter-action of another gov” Sharman, “Working Together Towrards and Inclusive
Federalism?” (1998) (i)CENTRALISM: streamlined government; less duplication;
uniformity; effective coordination; economic efficiencies; ii)DECENTRALISM: Diversity of
policies and experimentation, regional loyalty, responsiveness to local circumstances,
enhanced opportunity for political participation, checks and balances which flow from
dividend power” E)CONCURRENT POWERS: Leg powers in s51 do not automatically
preclude State from legislating on those topics Pirrie v McFarlane (P laid an information
charging Mc with dring on public hwy w/out Vic driver’s licence. Mc member of Air Force,
argued that he was immune from state laws, because he was employed by Cth and was
engaging in Cth business at the time) HC Implied intergovernmental immunities read in
light of Engineers – state law inoperative only if it was invalid to the extent of
inconsistency with federal law by virtue of s109. No fed law immunising Mc from
operation of those laws
F)EXCLUSIVE POWERS: S 52 (public services, places), s90 (customs & excise), s114
(defence), s115 (states can’t coin money)
G)STATE POWER TO MAKE LAWS: I)Extraterritorial Power: s2(1) Australia Act 1986
(Cth) “the legislative powers of the Parliament of each State include full power to make
laws for he peace, order and good government of that State that have extra-territorial
operation” 1.MUST be a connection between State and matter regulated (albeit
remote or general) Pearce v Florenca; (fisherman charged under WA leg 4 possession
of undersized lobsters 1.5km of Coast. Leg extended 3km from ‘WA waters’. HELD:
Whether inconsistent with Seas & Submerged Lands Act (Cth). Validity = YES – test
should be “liberally applied ! Union Steamship Co of Aus v King
H)CAN STATES REGULATE CTH Commonwealth v Cigmatic Ltd (in liq); HC: “I
cannot see how it could be thought that states leg power could directly deprive the Cth of
priority to which it is entitled under law derived from prerogative” Per Dixon CJ. NOTE:
Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority
Defence Housing Auhority argued that principle espoused in Cigmatic protected them
from operation of state residential tenancies leg HC: “Both in Uther & Cigmatic a
distinction is drawn between State laws affecting Cth executive capacities and state laws
of general application regulating activities carried on by the Crown in those exercise of
those capacities in the same manner as its subjects” (443-4) ! If State purported to
regulate the Cth directly = ultra vires BUT, if Cth engages in an activity that is
regulated by State law then State law applies
I)CONSTITUTIONAL LIMITS ON STATE POWER i)Manner & Form Restrictions s6
Australia Act 1986 (Cth) “… A law made after the commencement of this Act by the
Parliament of a State respecting the Constitution, powers or procedure of the Parliament
of the State shall be of no force or effect unless it is made in such manner and form as
may be required by a law made by that Parliament. ! Leg subject to requirements of
a manner & form provision if: 1.manner & form provision is contained in an Act of
Parliament; 2.Leg in question relates to the constitution (composition), powers or
procedures of the Parliament; 3.Terms of the manner & form requirements mandatory;
4.Terms of manner & form requirements relate to legislative process; 5.Manner & form
provision must not have abdicated the authority of Parliament. 3. S51(i) TRADE & COMMERCE: import/export, trade practices, operation
of Fed government business enterprises, international shipping, aviation &
regulation of Inter-State road transport.
A)HEAD OF STATE S51(i) “Trade and commerce with other countries among the States”
= RIGHT i)Interpretation W & A McArthur Ltd v Queensland (sand on Frazer Island)
HC: “all the commercial arrangements of which transport is the direct and necessary
result from part of trade and commerce. The mutual communing, negotiations, verbal and
by correspondence, bargain, transport and delivery, are all, but not exclusively, parts of
that class of relations” Also Goods; people (ANA) and intangibles (Bank
Nationalisation) Huddart Parker Ltd v Cth; Cth leg gave preference to union members
for employment in loading/unloading ships involved in interstate & international trade HC:
VALID because it “directly regulates the choice of persons to perform work which forms
part of or is an incident in interstate & external commerce” Dixon J ii)Effect 1.Can
regulate others engaged in Trade & Commerce; 2.Can engage in trade &
commerce: Australian National Airways Ltd v Cth (validity of Australian Airlines Act
1945 (Cth) set up Gov airline to run interstate *& Territorial air services. ANA challenged
leg on 2 grounds; a) trade & commerce power did not give Cth power to undertake
trading or commercial activities AND b) power did not extend to authorise the interstate
transportation of persons who were not themselves engaged in trading activities) HC:
s51(1) ALLOWS Cth to incorporate a Co to conduct an interstate/export trading &
commercial business. 3.Not a power to regulate national economy Pape v
Commissioner of Taxation (tax bonuses in 2008, valid under s51(i)) (economic stimulus
package) HC; Incidental scope of power allowed Cth to do it, taxation power/implied
nationhood power.
B)CTH CAN’T MAKE ANY TRADE & COMMERCE RULE, MUST RELATE TO OTHER
STATES/COUNTRIES: i)Not mere production/manufacture Grannall v Marrickville
Margarine P/L; May be an ‘essential preliminary condition to trade & commerce between
states in merchandise” Does not necessarily mean manufacture, production or
importation, trade & commerce among states. Beal v Marrickville Margarine Ltd B laid
an info that MM had failed to comply with State dairy industry regs. MM argued that leg
infringed s92 Consti, HC: “[A] manufacturer is usually a trader b/cause part of his
business is 2 sell his products but to manufacture is not, of itself, trade, and it it an error
to treat all aspects of business of manufacturing to meet orders as trading’. 1:Must be
sufficiently connected to incidental scope of power O’Sullivan v Noarlunga Meat
Ltd (State & Cth law regulated abattoirs, slaughter. State required licence. N didn’t have
licence, tried to send 152 lambs overseas, charged under state leg) HC Cth law valid
under s51(i) because it could benefit/adversely affect the export power of Aus Can
include: “packing, getup, description, labelling, handling, and anything at all that may
reasonably be considered likely to affect an export market by developing/impairing it” Can
go further back: “factory or the field or the mine”.
C)INTERSTATE & OVERSEAS ACTIVITIES: Murphyores Inc P/L (sand on Frazer
Island) HC: Cth can impose any condition it wants to export & import PLENARY
D)INTRASTATE TRADE ACTIVITIES: S51(i) contains no explicit prohibition on
regulation of intra-State matters, does not reserve the subject matter of intrastate trade to
States (Strickland v Rocla Concrete Pipes) Cth can only use s51(i) to regulate intrastate
trade “to the extent necessary to make effectual [the] exercise of power over interstate
commerce” (R v Burgess; Ex parte Henry (air safety)) I)Incidental Power TEST:
Sufficient connection between the law & subject-matter of Head of Power. 1.Direct,
proximate, substantive connection: Redfern v Dunlop Rubber Australia Ltd (tyres,
manufacturers sued because they agreed not to sell at wholesale price, price fixing HC:
impossible to tell who is trading inter/intra, therefore direct connection between interstate
& intrastate traders. 2.Causative Connection: Airlines of NSW v NSW (No 2); (Cth
licencing & state licencing regime, pilots didn’t want to pay 2 fees). HC: Cth licencing
regime applied because SAFETY connected intrastate trade to interstate trade.
O’Sullivan v Noarlunga Meat Ltd; HC: Regulating both intra & interstate trade activities
because not all lambs sold overseas. 3.Economic connection sufficient? Minister for
Justice (WA) v Australian National Airlines Commission (intrastop over on flight) HC:
NO, just because you are economically benefiting from intra-state trade does not mean it
comes under s51(i) E)METHOD: i)Test & Scope Sufficient connection ii)Interstate &
overseas intrastate manufacture not within scope iii)Restrictions? S92 (public interest?)
(reasonable?). 4. RESTRICTION S92 “trade, commerce and intercourse among the States
… shall be absolutely free”
A)RESTRICTION ON TRADE & COMMERCE Cole v Whitfield enunciated the principle
that the freedom in s92 is “a freedom from discriminatory burdens of protectionist kind”
i)Discriminatory Burden: “A law will discriminate against interstate trade or commerce if
the law on its face subjects that trade/commerce to a disability/disadvantages OR if the
factual operation of the law produces such a result’ Cole v Whitfield (crayfish in Tas
prescribed minimum size for catch. SA crayfish producers challenged validity because it
hindered free trade among states, Tas argued that protection of a scarce natural resource
warranted) HC: No discrimination because everyone had burden, Sa producer had to
follow Tas laws. Castlemaine Tooheys Ltd v SA (SA regs prescribed 15c refund for nonrefillable glass beer bottles & metal beer containers. 4c refund for glass bottles. Refund at
point of sale. Interstate beer suppliers to make own arrangements for collection. CT
argued scheme was discriminatory & protectionist b/cause the difference in fee
discriminated against interstate producers who used non-refillable bottles also making
own arrangements for collection significant burden) HC: Leg discriminatory b/cause of
different rates. Collection requirements was a burden, Practical effect was to prevent Pl
from growing market share. Although legitimate public purpose, measures were not
proportionate. 5.
S51(ii) TAXATION; but so as not 2 discriminate between States/part
of States
A)CONTEXT: i)Finance is a crucial part of governance; a)build & maintain facilities
b)stimulate & protect local industr c)distribution of wealth; d)Encourage public investment
e)indirect stimulus (super) f)influence behaviour (carbon tax). Ii)Fiscal Federalism:
Consti attempts to distribute financial powers between state & fed Govs
B)POWER: Concurrent power, except two forms which are Exclusive to the Cth
(s90).Matthews v Chicory Marketing Board “a compulsory exaction of money by a
public authority for public purposes, enforceable by law, and not a payment for services
rendered (Latham CJ). NOTE: All 3 elements ^ are not essential Air Caledonie
International v Commonwealth. i)Compulsory Levy: Victoria v The Commonwealth No
choice, but to pay is sufficient. 1.NOTE: Even where there is a technical choice: “when
desired contributions are obtained not by direct command but by exposing the intended
contributor if he does not pay, to worse burdens or consequences which he will naturally
seek to avoid the payment becomes an exaction” A-G (NSW) v Homebush Flour Mills
Ltd; (farmers grew flour, state bought it, farmers bought back from state at higher price.
HC: No real choice for farmers, they have to buy it so they can sell it!). ii)By A Public
Authority: Must be imposed by Gov/someone appointed by Gov. NOTE: Doesn’t really
matter WHO imposes it, as long as it is for public purpose. Iii)Public Purpose: s81
Consti - “All revenues/moneys received by Exec Gov of Cth shall form one Consolidated
Revenue Fund, to be appropriated for the purposes of the Cth…” Australian Tape
Manufacturers Association Ltd v Cth (Blank Tape Royalty case) (Amendments to
Copyright Act, imposed a blank tape royalty on vendors of blank tapes. Royalty goes to a
Collecting Society (limited by guarantee) who distributed them to the copyright owners)
HC: “a solution to a complex problem of public importance is of necessity a public
purpose” (504-505 Mason CJ, Brennan, Deane and Gaudron JJ). B/cause it only
benefited a certain segment of society, it wasn’t for a “public purpose”, it affected the
livelihood of certain peoples. IV)NOT TAXES: 1.Payment/fee for services rendered
Harper v Victoria (Vic Egg Board) HC: a fee will be for a service and not a tax if there is
a ‘discernable relationship’ between the fee & service. Not a tax. TEST: ‘Discernable
relationship’ between fee & service (Harper v Vic). Parton v Milk Board (Vic) HC: Vic
leg did not impose a tax when it required dairy distributors to contribute $ to a fund
administered by Gov agency. Agency used $ to promote milk consumption, admin
expenses etc. “The Board performs no particular service for the dairyman or the owner of
a milk depot for which his contribution may be considered as a fee or
recompense” (Dixon J). Air Caledonie International v Cth (fee for people arriving into
airports, airlines collect fees, Cth looked at immigration stats, validity of fee, argued
service was entry into Aus) HC For a fee to be a payment for services rendered, it need
be “… a charge exacted for particular identified services provided/rendered individually
to, or at the request/direction of, the particular person required to make the payment”.
Australians have a right as citizens to enter country, cannot put charge on legal right, also
it was an amending act in Consti Nothern Suburbs General Cemetery Reserve Trust v
Cth; Cth Training Guarantee Act imposed levy, intended to be used by states to provide
training programs for those e’ers who had paid levy. HC: No sufficient relationship
between fee & service, therefore not a fee for service, and a tax. Privileges & Statutory
Licences; Harper v Minister for Sea Fisheries; licence to fish for abalone, H argued that
it was invalid. HC Abalone rare, natural resource. Fee was not tax on abalone, but fee for
right to fish abalone. A proprietary right to be able to fish in first place. Discernable
relationship between fee & services, because it was a limited resource Hematite
Petroleum P/L v Vic; Fee for licence to extract natural gases/oil. HC Enormous resource,
fee was a tax on the oil (or pipes) or both (goods). It you are going to argue that it’s a fee
for a right, you have to argue that it’s a right to a privilege. Ha v NSW; Imposed heavy
licencing fee on tobacco shops. HC: Fee charged was 110% of profits, exceeded fee for
regulating industry. 2.Penalty; Re Dymond (provision that said a tax is imposed, anyone
who doesn’t fill in proper sales tax return get’s a fine) HC: Penalty, because it was
punitive, also because there was a pre-existing obligation. 3.An arbitrary tax: Deputy
Fed Commissioner of Taxation v Truhold Benefit P/L; “liability can only be imposed by
reference to ascertainable criteria with sufficiently general application & the tax cannot
lawfully be imposed as a result of some administrative decision based upon individual
preference unrelated to any test laid down by the regulation “. MacCormick v FCT; HC:
Conclusive certificate of Commissioner of Taxation to be invalid as an “incontestable tax”
! It can’t be incontestable, the law must be knowable and you must be able to test.
C)CONSEQUENCES:
CTH
Franchises Wholesale and retain tobacco licence fee = $50 + 25% of value of tobacco
sold in previous month but one. HELD: Not an excise. Mason CJ & Deane J: Substance
test, DH confined to alcohol and tobacco licences; Dawson J critical of substance test,
DH substance. Toohey & Gaudron JJ excise limited to locally produced goods.
CONTRAST Ha v NSW Appellant retailers & wholesalers of tobacco, challenged
imposition of licence fee as being in breach of s90. Respondents argued wasn’t excise
fees, but instead fees for licence to carry on business. NSW tobacco licence (monthly
fee) = $10 + 100% value of tobacco sold in 2 months before. HELD: Invalid. 7. S51(xxxi): The Acquisition of Property on Just Terms
STATE
Not a Tax
Need to find another head of
power to support
PWGG – plenary power Union
Steamship
Tax
Check if breaches any on
restrictions to tax s55; s51(1)
(discriminate); s99 (preference)
Check if it is a tax on GOODS. If
so, excise duty in breach s90.
D)RESTRICTIONS: I)Taxation, but so as not to discriminate between States/part of
States; s51(ii) ii)s99 “The Cth shall not, by any law or regulation of trade, commerce, or
revenue, give preference to one State or any part thereof over another State or any part
thereof. Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic);
considered Commonwealth Places (Mirror Taxes) Act 1998, designed to ensure that State
tax laws continued to apply in Cth’s exclusive public places. “Without discrimination
between States or parts of respective States, it is difficult to see how one could be given
preference over the other” (Street v Queensland Bar Association) A preference =
discrimination + benefit iii)s114; Cth & States cannot tax each other’s property; iv)s88
Customs duties must be uniform throughout Cth v)s55; “Laws imposing taxation shall
deal with the imposition of taxation, and any provision therein dealing with any other
matter shall be of no effect”. Air Caledonie Inernational v Cth Amending act invalid, not
amended act (Migration Act). Laws imposing taxation, except laws imposing duties of
customs of excise, shall deal with ONE subject of taxation only. Permanent Trustee
Australia Ltd v Commissioner of State Revenue (a law imposing tax can deal with the
“assessment, collection and recovery of tax”). NOTE: Elliot v Cth; Cth regulation for
licensing on seamen. No prescribed port in WA or Tas. Latham CJ: While regulations
were discriminatory (s51(ii)), something more than discrimination or lack of uniformity
needed to be shown before s99 could operate. To infringe s99, it would be necessary to
demonstrate that the fed law gave an express preference to a State/part of State rather
than a port/ports in Australia as such. No preference to Fremantle. (Remember:
preference = discrimination + benefit Elliot v Cth). 6. s90 Excise Duty & Customs Duty – RESTRICTION ON STATES/
TERRITORES- Prohibition on taxes on goods for states, gives more power to
Cth.
“On the imposition of uniform duties of customs the power of the Parliament to impose
duties of customs and of excise and to grant bounties on the production or export of
goods, shall become exclusive. NOTE: Not a head of power, because customs and
excises are taxes (S51(ii)) A)WHAT IS A DUTY OF EXCISE? “A tax in respect of goods
at any step in the production or distribution to the point of consumption” Capital
Duplicators P/L v Australian Capital Territory.’ ‘An inland tax on a step in production,
manufacture, sale or distribution of goods’ Ha v NSW. B)ANSWER METHOD: I)State
laws prima facie valid… PWGG Union Steamship; 2.Does it breach s90? 1.Is it a tax?
Attributes: Compulsory, public authority, public purpose, Not: Fee for service/privilege;
penalty; arbitrary 2.Is so, it the tax on goods? Substance test Hematite Petroleum P/
L v Vic; Capital Duplicators P/L v ACT (not ‘criterion of liability test’. Peterswald v
Bartley)
C)EXCISE CASES: Dennis Hotels P/L v Vic: (Licensing Act 1958 (Vic) prohibited sale
of liquor without license. Two fees in dispute. Annual Licensee fee calculated on volume
of liquor sold in previous year (6%) held: not to be an excise because fee did not relate
to same year in which licence was held. Temporary licence fee calculated on sales during
period licence held. HELD Invalid as excise fee. Dickenson’s Arcade P/L v Tas:
Tobacco Act 1972 (Tas) imposed tax on consumption of tobacco calculated on retail
value, collected at time of purchse by consumer. Imposed licence fees calculated on
value of tobacco sold y licensee in last 6 months. HELD: Licence fee was valid, but the
way in which tax collected turned the tax into an excise duty. Gosford Meats P/L v New
South Wales; fee calculated on basis of animals slaughtered in previous year, HELD:
Invalid as excise. Although Dennis Hostels has been allowed to stand – on its own facts,
it would fly in the face of both principle & authority to accept it as establishing a general
proposition that can be applied to a tax made payable, in the form of a licence fee, by a
manufacturer or producer of ‘goods’. ! If alcohol/tobacco, fee counted retrospectively =
ok. Capital Duplicators P/L v ACT CD sought declaration that licence fees were invalid
duty of excise. Licence fee calculated by reference to value of videos supplied during
period of licence HELD: Licence fee was excise duty, therefore invalid. Excise as not
merely regulatory, and the size of the fee exceeds cost of the scheme. Dennis Hostels
only applies to alcohol and tobacco. Phillip Morris Ltd v Commissioner for Business
S51(xxxi) “The acquisition of property on just terms from any State or person for any
purpose in respect of which the Parliament has power to make laws”
A)PURPOSE OF S51(XXIX) i)Sole Source of Compulsory acquisition of property by
Cth and ii)Restrict this power by requiring the payment of just terms. “What the
public enjoys should be at the public, and not the private expense. The authors of the
Consti must have been of that opinion when they inserted s51(xxxi) into Consti per
Callinan J, Smith v ANL Ltd
B)4 BASIC ELEMENTS i)Property: Wide def. Bank of NSW v Cth (Bank of
Nationalisation Case) per Dixon J: “s51(xxxi) not to be confined pedantically … but that
it extends to innominate and anomalous interests and includes the assumption and
indefinite continuance of exclusive possession and control for the purposes of the Cth of
any subject of property” Minister for the Army v Dalziel; (D leased vacant land which he
used as a commercial car park, land acquired, Gov argued he did not have a sufficient
pty interest). HC: Counts as property, he should have received some compensation.
Starke J “every species of valuable right and interest including real and personal
property, incorporated hereditaments, such as rents and services, rights of way, rights of
profit or use in land or another, and choses in action”. Georgiadis v AOTIC A chose in
action; Mutual Pools v Cth; extinguishment of a contractual right ii)Acquisition;
1.Must be compulsory: e.g. guns buy back after Porth Arthur massacre 2.An interest
must be acquired rather than simply extinguished; If Gov asked you 2 put down all
your cows because of mad cow disease, that wouldn’t be extinguishment, because there
was no acquisition by Gov. Tasmanian Dam Case; Cth leg prohibited certain activities on
‘identified property’ HC: Found that property was sterilised and it can no longer be used,
but Cth did not actually acquire ANY benefit. Mason J; “[I]t is not enough that leg
adversely affects/terminates a pre-existing right that an owner enjoys in relation to his
property; there must be an acquisition whereby the Cth/another acquires an interest in
property, however slight or insubstantial it may be”. 3.Must be by the Cth/by some
person/body authorised by Cth iii)Purpose; In respect of which the Cth can make
laws – NEED ANOTHER SOURCE OF POWER iv)Just Terms; Cth v Huon Transport P/
L; If no provision at all, Court may imply on just terms; Grace Bros v Cth; If unjust terms
provided, law invalid. The Courts in implying terms consider: 1.Common law
principles of compensation: Nelungaloo P/L v Cth; 2.Reasonable man test: Johnston
Fear Case; 3.Practice of other legislatures/the interests of the community: Grace
Bros V)EXCEPTIONS – Acquisitions by Cth that don’t require ‘just terms’: 1.When
nature of the source of power precludes just terms: a)s51(ii) Taxation; b)s51(xvii)
Bankruptcy; c)Penalties for Cth Offences; d)Forfeiture of Property; e)s96 Grants to
States; 2.A law which resolves competing claims; e.g. resolves who gets a house in a
divorce. Mutual Pools & Staff v Cth; Cth sales tax on pools built in situ under challenge;
agreement between SPASA and Tax Commissioner that the sales tax continued to be
paid by pool builders until validity determined and if invalid, they were to be refunded the
tax with interest. Cth Act 1992 override agreement by providing for the direct refund of the
tax to consumer unless the builder not passed on tax. HELD: No breach, no acquisition,
outside par (xxxi). 3.Extinguishment or modification of mere statutory right: Health
Insurance Commission v Peverill; Doctor made claims under Medicare scheme for the
pathology services he had performed between Dec 1984-July 1989 on the basis of a
schedule of charges in the Health Insurance Act 1973 1991 Parliament passed
amendment act, which operated with retrospective effect. HC: the reduction in Medicare
rebates for pathology services as being animated by the purpose of producing a ‘genuine
adjustment of competing claims, rights and obligations in the common interests between
parties who stand in a particular relationship’.
8. S52 – REGULATION:
A)REGULATION s52: Once Cth has acquired places, the Cth can regulate it under
s52. S52 gives Cth exclusive power to make laws with respect to: (i) The seat of
government of the Cth and all places acquired by the Cth for public purposes. i)Just
Terms: Wurridgali (Indigenous land, the Cth might need to give extra compensation).
9. S83 The Appropriations Power:
A)APPROPRIATION & EXPENDITURE Ss 81 & 83 - not sources of power Pape v
Cth I)S81: Sets up a ‘Consolidated Revenue Fund’ ! Cth buys stuff, appropriation bill
(budget). Appropriation/Supply Bills. GG must not block supply ii)s83: Imposes a
condition on appropriations from Consolidated Revenue (see ss53, 54) iii)An
Appropriations Law must be passed before Treasury can disburse funds: Victoria v
Commonwealth (the Australian Assistance Plan case) Iv)Appropriation Law MUST
identify the purpose & quantum of any expenditure in order to be valid: A-G (Vic);
(Ex rel Dale) v cTH (No 1) (the Pharmaceutical Benefits case); HC: Narrow
interpretation of the phrase & concluded that a Fed scheme to provide free medicine had
to fit ‘within the four corners of the Consti’ (Williams J) ! must be supported by an
express Consti power, subject to any express or implied limitations on that power.
Latham CJ: s 81 conferred a ‘general, and not a limited, power of appropriation … in the
sense that it is for Parliament to determine whether or not a particular purpose shall be
adopted as a purpose of the Cth”. Victoria v The Cth; Appropriation of $6m to a welfare
scheme; Vic argued law invalid and that s81 only permitted expenditure on matters the
subject of which could be characterised as falling within an express head of power. HC:
Maj: Non-justiciable issues (McTiernan J); Vic had no standing (but said ‘purposes’ up to
Cth (Stephen J); Both appropriation and AAP valid (Jacobs J & Murphy J). Pape v The
Cth; Pape challenged proposal by Cth to payment to individuals to counteract impact of
the global financial crisis (i.e. encourage spending). Payments ranging from $250-$900
were made pursuant to the Tax Bonus for Working Australians Bill (No. 2). HELD:
Majority of court upheld leg; MAJ:
• Court rejected the Cth’s argument that the appropriations power in s81 was a source of
power for executive expenditure
• 2.The Cth’s power to spend money & its scope derives from Cth leg & executive
power;
• 3.The source of power for the cash-hand-outs was the Executive power in s61 to deal
with matters within the scope of implied nationhood power as identified in the AAP
case – in this case to address the impact of the GFC Pape v The Commonwealth; “Substantive power to spend the public moneys of the
Cth is not to be found in s81/s83, but elsewhere in the Constitution or statutes made
under it… It may also be an element or incident of the executive power of the Cth derived
from s61, subject to the appropriation requirement and supportable by legislation made
under the incidental power in s51(xxxix) (French CJ)
10. S92 – the ‘grants power – SOURCE OF FISCAL POWER
A)S92 “During the period of 10 years after the establishment of the Cth and thereafter until the
Parliament otherwise provides, the Parliament may grant financial assistance to any State on
such terms & conditions as the Parliament thinks fit”. I)Does not need a purpose: Unlike s81, a
grant of money under s96 DOES NOT need to relate to a purpose of the Cth! Victoria v The
Commonwealth; (Federal Roads case) Cth granted $ to states to build & maintain certain roads,
challenged on the basis that Cth did not have a source of power that would encompass building
and maintenance of roads. HC: (UNANIMOUS) Grants can relate to ANY purpose because
unlike s81, there are no limitations. Ii)S96 grants can be used to induce, but NOT to compel:
South Australia v Cth; States challenged Fed leg schemes that implemented uniform national
income tax, effectively removing power of States to levy concurrent incomes taxes. Revenue
excess to Cth needs could be granted to States under law said to be authorised under s96.
States argued that they were coercive. HC: S96 = power to ‘GIVE ASSISTANCE’ and not a
power to pass coercive laws. Victoria v The Cth; Second uniform tax case. HC: ‘Temptation
was not compulsion’, and absence of legal compulsion on States to accept money under a
grants law points to validity under s96.
B)S96 IS NOT SUBJECT TO S99: Deputy Commissioner of Taxation v W R Moran P/L: Fed
flour tax scheme, included granting money to Tas, the only State which imported flour. Argued
that scheme infringed s51(ii) and discriminated against Tas, and that s96 should operate subject
to the same restriction. HC: Scheme valid. “S99 is a means provided by the Consti which
enavles the Cth Parliament, when it thinks proper, to adjust inequalities between the States
which may arise from the application of uniform non-discriminatory Fed laws to States vary in
development and wealth” (Latham CJ) i)Grants under s96 cannot be used to circumvent
JUST TERMS requirement in s51(xxxi): Pye v Renshaw: HC: Cth could not use s96 2 grant $
to a State with the object of inducing it to acquire land on a compulsory basis, circumventing the
requirement of JUST TERMS in s51(xxxi). 11. RIGHTS AND FREEDOMS: RESTRICTIONS
“[T]he Aus Consti … does not seek to establish personal liberty by placing restrictions on
the exercise of governmental power. Those who framed the Aus Consti accepted the
view that individual rights were on the whole best left to the protection of the common law
and the supremacy of parliament… The framers preferred to place their faith in the
democratic process for the protection of individual rights and saw constitutional
guarantees as restricting that process” Dawson J Kruger v The Cth; 12. IMPLIED FREEDOM OF POLITICAL COMMUNICATION:
Implied by the Cth Consti in s 7 & 24 – “directly chosen by the people”. Nationwide
News P/L v Wills; NN published article attacking integrity & independence of Aus
Industrial Relations Commission; S299(1)(d)(ii) Industrial Relations Act made it an
offence to write words calculated to bring a member of Commission into disrepute. HC:
Provision invalid because 3 – no head of power; 4 – Breached implied freedom. “…
inherent in the Consti’s doctrine of representative gov is an implication of the freedom of
the people of the Cth to communicate info, opinions and ideas about ALL aspects of
government of the Cth including qualifications, conduct and performance of those
entrusted… with the exerice of any part of legislative, executive or judicial powers of