Case Law

Question 1

R v Barger

Answer 1

No longer valid law
Established ‘reserve powers doctrine’.

Question 2

Engineers Case

Answer 2

Overturned the reserved powers doctrine.

Question 3

Fairfax v Federal Commissioner of Taxation

Answer 3

Dual characterisation of a Cth law is now allowed if at least one of its characters is within a head of power [TB p 74].

Kitto J established the modern test for characterisation – what is ‘the nature of the rights, duties, powers, and privileges which it changes, regulates, or abolishes.’

Question 4

South Australia v Commonwealth (First Uniform Tax case)

Answer 4

Characterisation

The indirect consequences of an Act are not relevant to the validity of the Act, so long as it can be characterized under a head of power.

Question 5

Murphyores Incorporated Pty Ltd v Commonwealth

Answer 5

“Leading case demonstrating that the policy behind a law and the law’s indirect consequences are generally irrelevant for the purposes of characterising that law.” [TB p 75]

Question 6

Work Choices

Answer 6

Any law with respect to the constitutional corporation is within the scope of the corporations power → broad view (object of command test).

Question 7

Leask v Commonwealth

Answer 7

Proportionality is relevant when considering the direct or incidental exercises of power under purposive powers in the Constitution.

Question 8

Communist Party case

Answer 8

Majority found that the Act could not be characterised as being for the defence of the nation because of insufficient evidence (other than Parliamentary opinion) that defending against communism as a subject that could come within s 51(vi).

It was disproportionate.

See later, Thomas v Mowbray (2007) 233 CLR 307

Question 9

Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330

Answer 9

limited interpretation of the corporations power.
It was challenged in the Concrete Pipes case in 1971.

Question 10

Strickland v Rocla Concrete Pipes (Concrete Pipes case) (1971) 124 CLR 468

Answer 10

HCA unanimously overturned Huddart Parker.

Gave Cth ability to regulate a massive section of the economy related to trading, financial and foreign corporations.

This case confirmed that the Cth could use the corporations power to regulate intrastate trade if it was carried out by a constitutional corporation.

Question 11

R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533

Answer 11

3:2 majority held that a local govt entity that sells electricity and electrical appliances was not a trading corporation. It was a public authority that supplied goods and services to the public.

Question 12

Adamnson’s case

Answer 12

Whether something is a trading corporation is a matter of fact and degree but three judges said that the activities or functions of the corporation are the prime consideration, not the purpose.

Not all corporations that trade are trading corporations because the trading activity might be slight or incidental compared to its other activities.

Question 13

Tasmanian Dam case

Answer 13

Corporations power: Majority held that the HEC was a trading corporation because its electricity trade made up a “sufficiently significant proportion” of its overall activities. (Followed Adamson’s case - current activities test).

External Affairs Power: All judges agreed that the Cth can implement laws on matters of international concern but they all differed on what that means.

Express rights - acquisition of property on just terms: There must be an acquisition of rights or interests of some kind, not merely limiting those rights.

Question 14

Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union v Queensland Rail (2015) 256 CLR 171

Answer 14

Corporations cannot be put outside of the reach of federal law just because the state declares it not to be a corporation.

Question 15

Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR

Answer 15

Deane J defines financial corproations

Question 16

State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR 282

Answer 16

You can be both a trading corporation and a financial corporation at the same time. You need to look at the activities of the corporation (Adamson’s case) to determine the type of corporation, and they can be both based on this test.

Question 17

Actor’s & Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169

Answer 17

The corporations power can be directed towards the activities of a natural person if the law is protecting a trading corporation.

Question 18

Fencott v Muller (1983) 152 CLR 570

Answer 18

Natural persons can be controlled by the incidental scope of the corporations power to regulate corporations.

Shelf companies can be determined as trading or financial by reference to the objects of their corporate constitutions.

Question 19

Seas and Submerged Lands case

Answer 19

External affairs power

Confirmed that s 51(xxix) conferred extraterritorial power on the Cth.

Question 20

Polyukhovich v Commonwealth (1991) 172 CLR 501

Answer 20

External affairs power

Mason CJ, Deane, Dawson and McHugh JJ all confirmed that Cth’s extraterritorial power is plenary and so no nexus is required.

Question 21

ILO case

Answer 21

Upheld Polyukhovich - extraterritoriality is a plenary power

“If a place, person, matter or thing lies outside the geographical limits of the country, then it is external and falls within the meaning of the phrase ‘external affairs’.”

Question 22

XYZ v Commonwealth (2006) 227 CLR 532

Answer 22

The majority endorsed Polyukhovich principle of plenary power for extraterritoriality.

Question 23

R v Sharkey (1949) 79 CLR 121

Answer 23

Authority for the scope of the external affairs power extends to things regarding relations with other nations.

The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the Commonwealth.

Question 24

Koowarta v Bjelke-Peterson (1982) 153 CLR 168

Answer 24

Brennan J (at 258) endorsed the extension of Sharkey to cover laws about relations with other “international persons” like the UN.

All judges differed in reasoning on what treaties can be incorporated.

The broad view was later confirmed in the Tasmanian Dam case where Mason, Murphy, Deane and Brennan JJ all confirmed that s 51(xxix) gave the Cth the legislative power to incorporate all of its treaty obligations into Aus law.

Question 25

Plaintiff S195/2016 v Minister of Immigration and Border Protection (2017) 261 CLR 622

Answer 25

HCA unanimously held that “the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to international law” (at 186)

Legislature and executive do not have to conform to international law.

Question 26

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Answer 26

Unincorporated treaties have a procedural effect on Australian law and can impact the procedures that need to be followed in the making of Administrative decisions.

However, there is no substantive effect.

Question 27

Richardson v Forestry Commission (1988) 164 CLR 261

Answer 27

Broad interpretation of external affairs power now unanimously accepted.

Cth can legislate on matters that are reasonably incidental to Australia’s treaty obligations.

Question 28

R v Licensing Court of Brisbane; Ex parte Daniell (1920)

Answer 28

Impossible simultaneous obedience.
s 109 inconsistency

Question 29

McBain v Victoria (2009) 99 FCR 116

Answer 29

Impossibility of simultaneous obedience

s 109 inconsistency

Question 30

Clyde Engineering v Cowburn (1926) 37 CLR 466

Answer 30

Conferral of rights test - inconsistency

It was possible to obey both laws, but they were still inconsistent because the state law took away a right conferred by the Cth law.

Cover the field test introduced→ per Isaacs J at 489 (indirect inconsistency)

Question 31

Ansett Transport Industries v Wardley (1980) 142 CLR 237

Answer 31

Suggested that there is quite a lot of flexibility in the test for direct inconsistency.

If the HCA reads the Cth legislation narrowly, then it can allow the State law to coexist harmoniously, but if they read the Cth legislation broadly, they can invalidate State laws.

Question 32

Ex parte McLean (1930) 43 CLR 472

Answer 32

Cover the field test for inconsistency Per Dixon J at 483

Question 33

Credit Tribunal; Ex parte General Motors Acceptance Corp (1977) 137 CLR 54

Answer 33

Express intention to ‘clear the field’ may save a State law that might otherwise be indirectly inconsistent (per Mason J (at 563))

Question 34

Kakariki case

Answer 34

Ship wrecks case

Nothing in the language of s 329 to suggest that the Cth have exclusive power. They confer concurrent and parallel powers that both can act on, but if the Cth acts first then the States cannot intervene.

Operational (contingent) inconsistency

Question 35

Melbourne Corporations (State Banking Case)

Answer 35

There is no immunity against Cth laws except for 2 circumstances:

If the Cth law impairs the states ability to function
If the Cth law discriminates against the State or States

2 types of discrimination, direct and indirect. Can discriminate against State govt agencies, or discriminate against a State.

Question 36

QEC v Commonwealth

Answer 36

Mason J for the majority: “Discrimination against a particular State, at least so long as it involves the imposition of a special burden or disability on that State, by isolating it from the general law applicable to others, including other States, falls squarely within the principle.” (at 217)

Question 37

Richardson v Forestry Commission

Answer 37

Confirmed the ‘rational discrimination’ exception explained by Brennan J in QEC.

Discrimination needs to be reasonable and not arbitrary if it is to be valid.

Question 38

Native Title Act case

Answer 38

Majority gave us some examples on what impairing the State’s ability to function means.

Impairing the make up of 3 branches of state government;
Impairing capacity of state to engage employees (hiring and firing public servants);
Impede ability of state to acquire goods and services;
Impede ability of state to acquire land

Question 39

AEU case

Re Australian Education Union & Australian Nursing Federation; ex parte Victoria (1995) 184 CLR 188

Answer 39

Cth cannot interfere with a State’s right to choose who to hire and
who to fire.

However, the Cth can regulate the conditions of employment (including their pay) of lower level public servants of the States. But Cth cannot regulate conditions of senior staff (like Ministers, Heads of Departments, Judges, Ministerial assistants etc).

Question 40

Austin v Cth

Answer 40

ONLY ONE TEST FOR IMMUNITIES (5 judges), discrimination is not an independent ground to test for immunity from Cth or State govt laws.

Question 41

Clarke v Commissioner for Taxation 2009

Answer 41

Held that the Commonwealth law impermissibly curtailed the capacity of the states because it deprived the states of their autonomy in making decisions about the remuneration of their parliamentarians.

Question 42

Pirrie v Mcfarlane 1925

Answer 42

Both Cth and States are bound by each other because no immunity (post Engineers)

Question 43

Cth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372

Answer 43

Cth has immunity from State laws.
Authorises broad Cth immunity from State laws.

Majority accepted Dixon J’s dissent from Uther and held that Cth has full immunity from State laws, it doesn’t have to be bound by State laws.

However there are 2 exceptions (s 64 Judiciary Act (suing the Cth in a court for a civil matter, then the Cth is the equivalent of any other party in a civil suit in a court, no special treatment → Macguire v Simpson) and Criminal law exception, can’t be immune from the criminal laws of the state)

Question 44

Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410

Answer 44

If the law is treating the Cth like any other person, then the Cth doesn’t have immunity (e.g. having their house inspected). However, if a State is trying to do something that goes to how the Cth govt governs, then there is immunity from the State law.

Question 45

Federal Roads case

Answer 45

Cth is not limited to attaching conditions that fall under s 51 heads of power → they can attach any conditions to any grant.

Question 46

First Uniform Tax Case

Answer 46

The Grant Mechanism (Latham CJ):

Coercion through political and economic pressure is not a compelling argument because the Grants Act s 4 acknowledges the State right to collect income tax and does not force them to stop doing so, it just gives them an incentive to stop imposing income taxes.

Question 47

DOGS case

Answer 47

States can accept grants and just forward the money towards whatever the Cth wanted the money put toward (in this case, private schools).

Question 48

Second Uniform Tax Case

Answer 48

States have to be constitutionally capable of fulfilling the conditions imposed upon them by the Commonwealth
* Commonwealth could not induce states to breach the Constitution

Question 49

DFCT (NSW) v Moran (1939) 61 CLR 735

Answer 49

TAS flour millers got money back from tax scheme via grant but other state’s millers did not.

Grant is permissible under s 96. Grants under s 96 are not limited by s 99 because grants are giving money, not making laws about trade or commerce etc under s 99. One is a grant, one is regarding a law.

Tax would not be allowed to discriminate against States, all States must be taxed equally under s 51(2), but you can do whatever you want with grants.

Question 50

Cole v Whitfield (1988) 165 CLR 360

Answer 50

Established a 4 step test for identifying reaches of s 92 [see TB p 410].

The laws are not relevantly discriminatory or protectionist because it did not give the TAS crayfish market a competitive advantage over imported crayfish or the trade of such crayfish. Therefore, it is valid.

It only served to conserve the natural resource of TAS crayfish, therefore it was valid.

If evidence had been led that SA crayfish tend to be much smaller than TAS crayfish, then the result might have been different.

Question 51

W & A McArthur Ltd v Queensland (1920) 28 CLR 530

Answer 51

The ordinary meanings of “trade and commerce” as understood by traders and commercial people are to apply to s 92.

(at 547) → “The mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport, and the delivery are all, but not exclusively parts of that class of relations between mankind which the world calls ‘trade and commerce’.”

Question 52

Castlemaine Tooheys v South Australia (1990) 169 CLR 436

Answer 52

The proportionality test was established in Cole and explored in this case.

If regulations that have a protectionist effect have a legitimate non-protectionist objective and are incidental and not disproportionate to achieving that legitimate objective, then they do not breach s 92.

Question 53

Betfair 1

Answer 53

Because the WA government made it harder for an interstate company from operating within WA, and made it easier for betting companies already within WA to operate, it was discriminatory in the protectionist sense. There were alternative pathways to achieve their objects (like making an agreement for Betfair to contribute to the racing industry, rather than banning them at the outset).

Question 54

Betfair 2

Answer 54

Laws must discriminate against interstate trade when compared to intrastate trade (not against interstate traders per se). The relevant discrimination is that intrastate trade is significantly advantaged by the laws when compared to interstate trade.

Question 55

Palmer v State of Western Australia (2021) 272 CLR 505

Answer 55

Same test as the one for trade and commerce (but applied to interstate intercourse), only difference is that the protectionist discrimination does not apply to the free flow of people so you don’t need to see if the discrimination is protectionist.

Question 56

Communist Party case

Answer 56

The use of the defence power was disproportionate for peace time and Parliament could not “recite itself into power” by declaring that the ACP was a threat to security, therefore it can be regulated by the defence power.

Question 57

Thomas v Mowbray (2007) 233 CLR 307

Answer 57

Majority found that the changes to the Criminal Code in allowing control orders over certain individuals to prevent terrorist attacks were proportionate and valid under the defence power.

Majority accepted that the danger presented by modern terrorism is comparable to the danger of 1950s communism, and some were dismissive of the ACP case.

Kirby J in dissent defended the standing of the Communist Party case (at 442-443).

Question 58

Australian Capital Television v Commonwealth (1992) 177 CLR 106

Nationwide News v Wills (1992) 177 CLR 1

Answer 58

Both cases decided on the same day.
Challenged the Cth legislation regulating political advertising.

Freedom of political communication introduced. –> found in ss7 and 24 Constitution

Question 59

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104

Answer 59

Majority ( Mason CJ, Deane, Toohey and Gaudron JJ) held that the freedom of political communication applied to the common law defamation but some aspects of the CL in Victoria were inconsistent with the freedom.

Question 60

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Answer 60

Affirmed the existence of the freedom of political communication, identified the appropriate reasoning about the source of the freedom and clarified its nature, scope, content and limits.

Established a 2 part test for the scope of the freedom:

1. What is “political communication”? → (at 567) “Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?”
2. Limits to the implied freedom → (at 5670 “is the law reasonably appropriate and adapted to serve a legitimate end “

If the first answer is ‘yes’ and the second answer is ‘no’, then the law is invalid.

Rejected the idea of underlying constitutional concepts or principles as legitimate foundations for implied constitutional rights, therefore preventing any more from being implied in the Constitution.

Question 61

Coleman v Power (2004) 220 CLR 1

Answer 61

Reworded the second limb of the Lange test to “is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of REPRESENTATIVE and RESPONSIBLE GOVERNMENT?”

Question 62

McCloy v NSW (2015) 257 CLR 178

Answer 62

Majority adopted a structured approach to the proportionality test in the second step of the freedom of political communication

(French CJ, Keifel, Bell and Keane JJ) → is it suitable, necessary, and adequate in its balance?

Question 63

Brown v Tasmania (2017) 261 CLR 328

Answer 63

Majority followed the McCloy methodology. Two judges rejected it at unhelpful.

Question 64

Kruger v Commonwealth (Stolen Generation case) (1997) 190 CLR 1

Answer 64

Freedom of movement, association and participation → three justices recognised the freedoms and three justices were sceptical.

Question 65

Roach v Electoral Commissioner (2007) 233 CLR 162

Answer 65

Majority confirmed that ss7 and 24 entrench the right to vote, subject to some exceptions.

Question 66

Judd v McKeon (1926) 38 CLR 380

Answer 66

Duty to vote

Question 67

Levy v Victoria (1997)

Answer 67

Duck hunting case –> law was valid and proportionate to the legitimate purpose.

Question 68

Minister for the Army v Dalziel (1944) 68 CLR 261

Answer 68

Express rights - acquisition of property on just terms (s 51(xxxi))

Any property rights (leaseholds, freeholds, valuable rights and interests) are property capable of being acquired,→ super broad definition of property.

Question 69

Minister for the Army v Dalziel (1944) 68 CLR 261

Answer 69

Acquisition of property on just terms.

Any property rights (leaseholds, freeholds, valuable rights and interests) are property capable of being acquired,→ super broad definition of property.

Question 70

Newcrest Mining (WA) v Commonwalth (1997) 190 CLR 513

Answer 70

Gummow J (majority view): the property right taken does not need to correspond with the benefit obtained by the Cth when they acquire property.

Question 71

JT International SA v Commonwealth (2012) 250 CLR 1

Plain Packaging Case

Answer 71

narrower view of acquisition in s 51(xxxi) with a stronger adherence to the idea that it must be a proprietary right (not a mere benefit) being acquired to fall within s 51(xxxi).

Question 72

Georgiadis v Australian & Overseas Telecommunications Corp (1994) 179 CLR 297.

Answer 72

CL chose in action is a property right capable of being acquired.

The Commonwealth does not have to be the person who acquires the benefit in a claim under the acquisition of property on just terms. In this case, the person acquiring the benefit was the company the plaintiff worked for.

Question 73

Health Insurance Commission v Peverill (1994) 179 CLR 226

Answer 73

Statutory choses in actions are rights susceptible to variation by the Legislature and cannot be relevantly acquired by the Commonwealth (because to vary a right is not the same as acquiring a right).