Topic 6 – Characterisation
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‘Subject to this constitution’: Means legislation is supported by a head of power, but
it may be ruled invalid from another area of the constitution.
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Characterisation: the process of determining whether a commonwealth law is with respect
to one of the legislative heads of power outlined in section 51 or 52 of the constitution
Engineers (1920) – Abolition of two doctrines from federation
Facts:
 Engineers were a union, instigated a dispute with employers including the WA Minister.
 Engaged CTH legislation for dispute. Wanted higher salaries.
 Implied immunities Doctrine contested. Taken directly from the USA, meant the CTH
legislation didn’t bind the States as legal persons.
 Reserved Powers Doctrine were contested.
HELD:
 Implied immunities doctrine was abolished and states now bound as legal persons,
under CTH legislation.

Abolished reserve powers doctrine. States have residual power and anything not
mentioned in constitution is the state’s power.
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Federation created a superior level of government, thus doctrines were first put in place
to keep states onside. Reserve powers doctrines allowed states to be happy by having
more power after federation. Reserve Powers meant heads of powers under s61 was
interpreted narrowly. Federation’s generally fragile at the start.
By the time the original creators of constitution were not on high court, were able to get
rid of both doctrines.
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Once getting rid of reserve powers doctrine, words in s51 were given
ordinary and normal broad meaning.
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Justice Higgins said that reserve powers doctrine was wrong. High court from 1920
onwards changed.
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Expanded CTH legislative power at detriment of the states.
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High court will always favour broader meaning of s51, unless there is something else in
the constitution which would suggest otherwise.
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Constitutional Interpretation & Cth Legislative Power
Example Characterisation: Marriage S51 (21)
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Marriage today in ordinary broad meaning is the union of two people.
Thus the CTH has power over all of marriage, with head of power.
ACT tried to legislate over same sex marriage, however found to be CTH power.
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Words of the constitution must reflect community values and change over
time.
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Constitution meaning changes, just how common laws changes over time.
Marriage is an artificial legal creation.
o Marriage is created by an act of parliament.
o Bankruptcy etc are artificial legal creations.
Jury meaning has changed as well, such as the inclusion of women. Jury rooms used to
be created very uncomfortable to speed up resolution.
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Characterisation under High Court
1. The constitution is to be construed with all the generality the words admit.
Give words there natural meaning and there broad meaning if possible.
2. What is the legal rights and obligations the law creates?
3. Are those legal rights and obligations in respect to a subject matter under
s51
Dual Characterisation
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Law could be recognised under s51 and another section not under s51.
It could be characterised in either, as long as some of it is recognised under s51.
If law is in respect to a subject matter under s51 then valid, does not matter about
morality or how law is secured. One exception though.
o Murphy Laws: Cth has power over international trade and commerce s51(1).
Wanted to stop mining for environmental reasons. So made commerce
requirement of requiring a license to export. License involved environmental
impact consideration. Main purpose of law not relevant, as long as had
a subject matter in s51. Thus can use other heads of power to cover other
sections
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Nature of a Constitution
General Interpretative Rule
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Originalism was rejected by the HC. Words and phrases are not frozen
from when the constitution was enacted. Grain Pool CASE
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Words can be interpreted in light of community values and change over time.
Each head of power has a core and then an outer radius of contemporary
circumstances can change depending on circumstances.
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The Process of Characterisation
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There must be a sufficient connection between the law and the subject matter of the
head of power= make a judgement as to whether the legal rights and
obligations created in the law are in relation to a subject matter under s51.
o
TEST to determine whether there is a sufficient connection: Consider
the law and the nature of the rights/liabilities/obligations/powers which
the law amends/regulates/abolishes- that in respect to subject
matters. Leask v Commonwealth
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If a c/w law is with respect to (has sufficient connection with) a head of power, what
regulatory options are available to it?
o Can regulate or prohibit an activity if becomes within a head of power.
o Can enforce laws, such as civil or criminal sanctions. (Criminal and civil law is
regulation).
Work Choices
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If act, read in context, according to their “true nature and character” and “real
substance”, constituted a “law upon, ‘with respect to’, one or more of the
enumerated subjects. Alternatively, were the provisions “so incidental as not in
truth [such as] to affect its character”?
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If, applying the foregoing approach, the impugned law may be characterised as one with
respect to the nominated head of power, which is sufficient for the discharge of the
judicial function.
Fairfax v Commissioner of Taxation (1965) 114 CLR 1
Facts:
 Tax exemptions were going to be taken away from super funds unless 30% of
investments were done with Cth or public bonds.
 CTH were trying to encourage investment.
 Primary purpose of tax is revenue raising. Not primary purpose of this law.
 Primary purpose was to get investment from super funds.
HELD:
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Cth were not denying that primary purpose was not revenue raising, but instead to
provide a strong incentive to super funds to invest.

HC ruled unanimously that superannuation tax investment law is a law in respect to
taxation, thus valid law.
 There is no limit on tax, as long as meets definition on tax, as non-purpose
power
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The CTH will often use taxation as a regulatory system, eg stop smoking and drinking
alcohol tax.
Incidental Legislative Power
 Parliament can legislate over matters incidental to heads of powers.
 Each head of power under s51 has an implied incidental range as well as a
core.
o ‘With respect to incidental’
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Cth legislate over tax and incidentally matters that relate to collecting of
tax.
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Cth can legislate over marriage and appropriate aspects to having
marriage law.
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o
TEST: Incidental range is power of things reasonably appropriate
or necessary to give effect to main head of power.
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EG: The marriage act states that parties must lodge a certificate to
confirm the legality of their marriage= reasonably appropriate to give
effect to marriage law.
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EG: Bigamy (marrying someone else while already married) is most likely
supported by incidental marriage power as not to core of power,
however reasonably appropriate to give effect to head of power.
o S51 (39) ‘incidental to’ (in respect to) not just to s51, but to the rest of the
constitution or executive or the judiciary. Davis, Pape.
Subject Matter vs Purpose Powers (Role of Purpose)
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Purpose/goal/reason for parliament making the law
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Vast majority of powers under s51 are non-purposive, but there are a few purposive
powers.
 Non-Purpose Powers: Taxation power (Fairfax), Corporations Power, Marriage,
Immigration
o
The purpose of the law does not matter and not relevant to validity.
 E.g. tax on all poor people. No role on high court to consider morality of
law or its purpose or aim=Political question, not characterisation issue.
o High Court Ruled invalid to use proportionality test when determining nonpurpose heads of power incidental range. TEST IS: ONE OF SUFFICENT
CONNECTION to subject matter (^above). Leask v Commonwealth
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Purpose Powers: Defence Power (purpose of defending the CTH and the States
stated in s51 (6)) (Thomas v Mowbray), Treaty aspect of external affairs.
o Purpose (aim/goal) of the law is relevant to validity and whether
sufficient connection to head of power.
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o TEST (Proportionality use by definition- determine whether legislation is
sourced to the head of power): Got to be a relationship between the
purpose of the law and the means in the laws to secure those ends
(purpose).
 (SUBJECTIVE; Thomas v Mowbray)
 Suitable aim?
 Measures no further than necessary? (Less restrictive means for
achieving the same end?)
 Proportionate (reasonably appropriate and adapted)?
o OTHER USE OF PROPORTIONALITY TEST: Used when legislation is supported
by a head of power and prima facie valid, but argument that it offends a
constitutional right or freedom.

If legislation is valid, might be argument it offends implied right to
political communication. Proportionality test can be used.
o The TEST involves determining whether the means employed by
the parliament in the legislation are reasonably appropriate and
adapted to achieve the purpose (ends) of the law.
Thomas v Mowbray (2007) – ‘Defence Power’
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First case regarding CTH terrorism related laws.
CTH legislation provides a regime for terrorist related orders.
Order made by federal magistrate to contain respondent such as not leaving his home,
visiting police regularly and not communicating with Osama Binladen.
Thomas engaged in Al Quida training.
Terrorist Act s64 contained the control order for terrorists.
Significant deprivation of Thomas’s liberty and has not been convicted of anything.
Thomas was deemed a risk of a public terrorist act in Australia.
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HELD:
 Defence head of power was relied upon. Defence powers are only purposive.
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