[3] Const Prohibitions - (3) INTERGOVERNMENTAL IMMUNITIES

Question 1

What did the HCA collapse in the State SC Judges Superannuation case (Austin)?

Answer 1

the discrimination prohibition into the broader structural integrity doctrine,

Question 2

What was held in the State SC Judges Superannuation case?

Answer 2

a Cth law will be unconstitutional where it prevents a State from fulfilling their constitutional functions as independent governments or severely impairs its capacity to do so

Question 3

What is the rule in Engineers?

Answer 3

Prima facie, Cth laws can be characterised as falling within one of the heads of Cth power will if expressed to do so, validly apply to the States and their instrumentalities

Question 4

what’s the exception to the rule in Engineers?

Answer 4

the implied constitutional prohibition of intergovernmental immunities WILL INVALIDATE Cth legislation that impairs or adversely affects the existence of a State or its capacity to perform its ‘constitutional functions’

Question 5

Types of discrimination which can occur from Cth laws per Queensland Electricity Commission

Answer 5

form (de jure) - textually discriminatory

effect (de facto) - as a matter of substance, the actual operation of the law is to discriminate

Question 6

1st exception to prohibition of discriminatory Cth laws on States by II

Answer 6

If the Cth law removes a privilege or benefit enjoyed by the State(s) and not others then this isn’t discrimination (ie, not isolating the State from the general law).

Question 7

2nd exception to prohibition of discriminatory Cth laws on States by II

Answer 7

Where the content, context or subject matter of the power in fact contemplates discrimination against states (like defence, external affairs, and possibly industrial relations)

Question 8

3rd exception to prohibition of discriminatory Cth laws on States by II

Answer 8

Rational discrimination - law under a head of power + fulfils rational non-discriminatory purpose

Question 9

example of rational non-discriminatory purpose (3rd exception to prohibition of discriminatory Cth laws on States by II)

Answer 9

o Eg, members of state parliament may have greater access to relevant info and access to far greater means of communication – voices more influential  may be necessary to provide greater punishment to MoP rather than natural persons.

Question 10

what is the principle of structural integrity (which forms the exception to the engineers rule?)

Answer 10

Cth cannot validly enact a law of general application which fundamentally impedes the States from carrying out essential gov functions or prevents the state from continuing to function as a government (principles from Melbourne Corporation, as collapsed by State Supreme Court Judges case)

Question 11

examples of provisions that inhibit principle of structural integrity of states

Answer 11

removing parliamentary privilege, seeking to prohibit states from raising any tax at all, Cth control of state activities over large geographical area

Question 12

for high level employees, States must

Answer 12

be free to regulate all aspects of their employment

Question 13

for low level employees, States must be freeto determine

Answer 13

number and identity of employees, length of employment and who it wishes to dismiss on redundancy grounds

Question 14

In respect of state employees, what’s a potential provision which could be read down?

Answer 14

an undistributed expression that covers all state employees and attempts to regulate them, –> could read it down to just include lower level employees

Question 15

State Banking case Banking Act that provided that a bank could not engage in business with state government/authority without the consent of the federal treasurer - valid or invalid?

Answer 15

invalid because it severely limited independence in banking

Question 16

Payroll Tax Case - 2.5% payroll tax imposed on all wages paid by any employer, including a State or any state public authority, provided few exemptions for private employers but not for states - valid or invalid?

Answer 16

Valid - was not discriminatory and didn’t hinder state’s ability to function

Question 17

State SC Judges Superannuation Case - Act affected super entitlements of state judges - treated state judges differently from other high income earners and federal judges - valid or invalid?

Answer 17

Invalid - significant impairment of the exercise of the state of its freedom to select the manner and method for discharge of its constitutional functions respecting the appointment and remuneration of the judges of the courts of the state

Question 18

Australian Education Union - Industrial Relations Act stated that cth Commission could refrain from hearing/dismiss matters on the basis that further proceedings were unnecessary/undesirable to public interest - but prohibited from doing so when the dispute was in a state where the dispute could be heard by a state arbitrator - VIC only state that didn’t have this - valid or invalid?

Answer 18

Valid - not discrimination - purely accidental, coud apply to any state that abolished/lacked state arbitration system

Question 19

Noting the law after Austin (Judges Super case) which collapsed the 2 Melbourne Corporation principles what must be noted?

Answer 19

The strong dissenting judgement in the Payroll Tax Case (Barwick, McTiernan and Owen) who didn’t accept the State Banking Case –> this could affect discrimination arguments

Question 20

What is the uncertainty that arises out of the stance taken in Austin?

Answer 20

Interpretation of the 2 principles from Melbourne Corporation -

(1) makes no difference if principles are collapsed as it’s a reformulation of the State Banking case
(2) that discrimination is merely evidence of undermining of structural integrity and may be permitted if it doesn’t seriously affect the capacity of the State to discharge constitutional functions

Question 21

Per Mason J in Tas Dams, the implied prohibitions derived from Melbourne Corporation represent

Answer 21

the sole federalism-based constraints on Commonwealth power. All others were washed away by Engineers –> arguably takes things too far

Question 22

What happened in Austin?

Answer 22

Cth legislation affected the superannuation entitlements of State judges
–> Act was held invalid because it placed a disability or burden on the operations and activities of the state (hindered the fundamental relationship of States with their judges)