[1] Principles of Constitutional Interpretation Flashcards
Step 1 of Constitutional Interpretation
(1) Characterise the act to determine its subject matter (determine by reference to the rights, duties powers and privileges which the law changes, regulates or abolishes) - Fairfax Kitto J
Step 2 of Constitutional Interpretation
(2) Interpret the relevant Constitutional provision by defining the head of power (what’s its core meaning and what matters incidental to that core meaning can also be regulated?) Give heed to Engineers principles of strict legalism and textualism
+ consider if power is purposive or non purposive (Murphyores)
Purposive Cth head of power
the relevant law must not only relate to the subject matter of head of power, but also must be exercised pursuant to the specific purpose provided for in the head of power
eg, s 51(vi) defence power: law must not only regulated armed forced but be for the purpose of defending the Cth and maintaining the Constitution and its laws
Non-purposive
powers that simply state a subject matter: an activity (eg, trade and commerce, external affairs, taxation, immigration) or a type of person (aliens, corporations) or an object (lighthouses, fisheries, currency)
eg, taxation power - as long as statute is wrt taxation can be for whatever purpose Cth parliament wants
Step 3 of Constitutional Interpretation
Examine the practical as well as legal operation of the law to determine if there is a sufficient connection to the head of power (as interpreted) (Grainpool)
Step 4 of Constitutional Interpretation
even if the impugned legislation is authorised by a head of power, does the law breach an express or implied constitutional prohibition?
If the law is prima facie unconstitutional what can you do first?
(1) attempt to read down the provision validly
requirements of reading down the provision
a. The law must be ambiguous
b. The law permit two or three meanings (select constitutionally valid meaning)
What are the limitations on reading down a provision?
(1) If the ‘read down’ interpretation no longer means what Parliament intended it to mean
(2) If the expression is undistributed
What is an undistributed expression?
contains both constitutional and unconstitutional subject matter
How could you distribute an expression?
By adding in a definitions section clarifying the meaning of it so it’s purely constitutional
IF the statute is still invalid after attempting to read down what must the court then attempt?
to sever the invalid parts of the Act - most appropriate where the ‘invalidated portions are relatively few and specific’ (Industrial Relations Case)
Limitations on severance
a. the rest of the Act cannot operate without the part that you wish to sever;
b. the Act does not make sense without the severed provision;
c. the remainder of the Act imputes a new meaning on the state so as to undermine the true meaning of the Act
What’s the incidental power priniciple?
“where any power or control is expressly granted, there is included in the grant, the full extent of the capacity of the grantor, and without special mention [ie, implied], every power and every control the denial of which would render the grant itself ineffective” (D’Emden v Peder)
What does the incidental power mean?
o Included in the power is the power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter directly in power
o It is implied that the incidental power allows any other power that is needed (necessary) to make effective the direct head of power
