3. Characterisation and Interpretation Flashcards
Recall
Reserve powers doctrine
Narrow approach stating States hold reserve powers where it was not instructed in the Constitution. In R v Barger (1908), a new tax law was introduced (granting tax exemption based on labour conditions). The HCA held that the law was invalid because it infringed the area of labour conditions, which was a reserved power of the States to figure out. This case also negated the possibility of dual characterisation (can be a tax issue and labour condition issue!).
What is characterisation?
The process of determining whether a federal law is supported by a federal head of power as founded in the Cth Constitution.
Recall significance
Engineers case 1920
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
It overrided the Reserved Powers doctrine. The relevant head of power was s51(35). The court held that RPD was simply an implication - allowing judges to be influenced by policy preference/what the outcome may be.
Focus was on the literal meaning of the words of the Constitution
Test of characterisation
- Characterise the federal law (subject matter)
- Interpret the head(s) of power (what is “insert HOP”?)
- Find the connection between the federal law and the head(s) of power
Fairfax v FCT (1965)
Tax law on superannuation funds. Held, valid law per s51(2).
The characterisation of a law will be determined by the nature of the obligation, right or privilege the law regulates, changes or abolishes.
Dual characterisation is okay - as long as one of the issue is within a head of power (Cth)
Murphyore (1976)
Case which was characterised as s51(1) - international trade. M mined on Fraser Island (K’gari) and wanted to export minerals overseas. Under the federal Customs Act, export of minerals had to be approved by federal Minister for Mining. M sought injuction for Minister to seek environmental report being made, saying that federal government does not have power over the environment (s51). HC unanimously rejected injunction. Therefore, dual characterisation occurred, despite the indirect process of the environment, the fact is, the exportation of minerals was the direct impact of this process.
Recall
Incidental characterisation/power
In the characterisation process, if a law does not operate directly upon the subject matter of a power, then greater attention is given to the purpose of the law to determine its connection with the constitutional subject matter.
Griffin v Constantine (1954) - Federal Spirits Act imposed tax on potable alcohol, and lower tax on industrial spirits. s16 of the Act prohibited the sale of industrial spirits for human consumption - which Constantine did. Characterisation of the law indicates it is not a tax law. However, tax was the incidental power. By selling lower taxed spirits, this is undermining the tax law.
Heads of power
ss 51, 52 lists subject matters in which the Cth can legislate.
51,52,76,77,78,96,105A,122,128
Proportionality - what is the relevance of the proportionality/reasonability of the law on the process of characterisation?
Generally irrelevant except for purposive powers. Factor in incidental powers, to determine how reasonably connected the law and the incidental power is.
Leask (1996) - a case of Cth provisions requiring ‘cash dealers’ to report large cash transactions, the Cth relied on heads of power of taxation and currency. Orbiter indicated proportionality is rarely relevant to direct characterisation, except for purposive powers.
Self-directed learning question
What is the difference between direct and incidental characterisation?
Characterisation is the process of determining which head of power under the Cth Constitution gives power to a federal law in question.
Direct characterisation is when a law is characterised to a HOP based on the direct, foremost legal operation of the law.
Indirect characterisation is when a law can be analysed against another HOP due to an incidental connection.
Purposive powers
Some HOPs propose powers with purpose - s56 for the purpose of defence. If relevant power is purposive, the proposed law must be reasonably appropriate and adapted (proportional) to achieving that purpose.
For example, in ACP case (1951), the Communist Party Dissolution Act tried to get rid of Communist Parties. ACP challenged the validity of the law. HC struck down the law justifying that it was “outside power”. Cth claimed the law was necessary for the purpose of defence of nation. Court held it was disproportional.
Another purposive power - external affairs power.
Constitutional interpretative styles of judges
Literalist interpretation
Dictated since Engineers case. In Territory Senators Case, both majority and minority decision used literal interpretation, but coming to different conclusion.
Territorial senators cases
s7 Cth Constitution: The Senate shall be composed of senators for each State, directly chosen by the people of the State.
Cth claimed relevancy is in s122: The Parliament may make laws for the government of any territory and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
Judgement 4:3 for the law. The different judgements came from different interpretive styles: either reading up, or reading down (s7 to s122, or s122 to s7).
Interpretative styles
Originalism and comparative approach
Originalism: Judge interprets words in light of the intention of the drafters of the Constitution
Comparative: Looking at other Cth countries. Usually USA.
Example of originalist interpretation - The Commonwealth v Australian Capital Territory [2013] HCA 55
Interpretative styles
Progressive
Policy
Stare Decisis
Implications
Progressive: As of current times
Policy: Judgement influenced by policy/public choice (democracy), some may lean to federalism (clear line of powers)
Stare decisis: precedent
Implication: When judges don’t rely on express words, but words implied into the Constitution
