Essentially a course on federalism; we look at s 51 of the Constitution (the main pwr conferring section), prohibitions on the Cth, & the fed division of legislative pwr.
When drafting the Aust Const in 1890s, 2 essential models were analysed:
Canada
USA
USA:
basic federal principle is that certain pwrs (leg, exec & jud) were given to the United States (fed gov’nt) & residue remained with States.
because it is a gov’nt of limited pwrs, always have to explain where it gets its pwr from (expressly or impliedly) – ie, can only do what is authorised.
whereas the States in the US only have to show pwr is not taken away.
10th Amendment in Bill of Rights adopts this fed principle.
Canada:
in 1860s looked at US & saw States too strong, & therefore, differed in their federal balance.
created a central gov’nt much stronger (residue with centre & not States).
but today the reality is that the provinces in Canada are now much stronger.
Australia:
adopted US principle.
therefore, Cth is, like US, a gov’nt of limited pwr.
local equivalent is s 107 – States retain all pwrs not exclusively vested in the Cth (analogous to 10th Amendment).
Cth is a gov’nt of limited pwr – therefore, whether leg, exec or jud, has to point to express or implied pwr given to it.
State only has to show pwr not taken away.
Technique of Constitutional Analysis
Look at validity of Cth law > see law as a provision (section or subsection).
Always 2 qs to ask:
is there a Cth pwr or authority to enact it? If not, invalid; if yes
is there relevant prohibition (like implied right which prevents Cth from enacting it)?
1st issue is that of characterisation (there has been a change in HCA from single to multiple characterisation).
Cth is given leg pwr in 3 main sections – ss 51 (principal one), 52 & 122.
So, to see is Cth law is valid, firstly as what is the character of the law – look at s 51 & the 39 placita (placitum) under it to see if Cth has the topic.
Eg: under the Marriage Act 1960, if parents of illegitimate child married then child was legitimised. In A-G (Vic) v Cth (1962), the q of what is this law’s topic arose. Is it ‘status’ or ‘children’ (Cth has no pwr over either of these)? Therefore, because of the difficulties of single characterisation, HCA adopted multiple subject characterisations – ‘status’, ‘children’ or ‘marriage’, & therefore provision was valid.
2 kinds of leg pwr
All pwrs in s 51 (main pwr conferring section) are concurrent (that means Cth & State can both exercise it).
But there is a resolution of inconsistency (s 109 says that Cth prevails over State).
s 51(xxii) – divorce
s 122 – pwr over territories
s 52 – also analogous to territories
connotation 1900 (ie, look at ‘original’ or ‘essential’ meaning which is ‘fixed’ from time of Federation); denotation 2000 (what is denoted by it; meaning of the words today) – Const is evolving in a changing society.
Eg: assume transportation provision (there isn’t one) – diff in 1900 than in 2000.
Eg: assume Cth given pwr over marriage [s 51(xxii)] – does it incl de facto? We take def’n of 1900 & whatever falls within it today does so; does it incl gay marriage?
Doctrine of ‘reserved state pwrs’
Basic fed principle in s 107 – certain pwrs given to Cth & residue remain with States.
Look at law & see if it is the list.
Engineers (1920) exploded the doctrine of ‘reserved state pwrs’.
Doctrine of ‘reserved state pwrs’ is the doctrine used by the 1st 3 judges of HCA – certain pwrs reserved for the State > therefore, read Cth pwrs more narrowly.
Engineers (1920) said reserved pwrs doctrine is wrong.
ie, look to Cth & then because of general principle, if Cth does not have it, then look to State & if it is not taken away.
WK 2.1
24/7/00 Trade & Commerce
Why do we start with this particular pwr?
s 51(i) is potentially the largest & most general Cth pwr.
Though they have not gone as far as US cts, Aust cts will do so in the future.
This section raises interesting qs of interpretation (earliest interpretative pwr).
Unsatisfactory because most recent case (in 1976) does not represent the current position.
Cases concerning this section have been decided on narrow & unsatisfactory grounds.
People talk about this as if it were interstate & foreign but the actual words are commerce with other countries & among the States (broad concept) – s 51(i) & s 92.
‘Interstate’ means movement across State boundary whereas concept of commerce ‘among the States’ may not require that but that it requires more than one State.
H C Sleigh v SA (1977)
oil refineries were not in every state so they entered into agreement to supply each other in diff’nt States.
was this agreement among the petrol cos an agreement involving commerce among the States.
HCA said that you need movement across State boundary.
Murphy J dissented & said commerce among the States meant commerce which concerns more than one State.
What movement is required by HCA?
3 things/pwrs that extend s 51(i):
implied incidental pwr
express incidental pwr – s 51(xxxix)
s 98
Implied Incidental Pwr (p 173)
It is a general principle of common law that where pwr/grant is given to anybody, there is automatically enough additional pwr granted to make the original grant effective.
This applies to public pwrs & private pwrs (eg in wills & deeds).
Doctrine applies to leg, exec & jud pwrs.
Eg: authorised to drive car & therefore enough sufficient pwr to get inside garage to get to car (implied incidental pwr).
Eg: if Cth sets up ct & gives it pwr to issue orders but does not expressly say can enforce it, there will be an implied judicial pwr (if given pwr to issue orders, can then have implied incidental pwr to enforce them).
Express Incidental Pwr – s 51(xxxix)
Authorises Cth Parl to make laws on matter incidental to execution of any pwr vested in any of the branches.
implied incidental pwr applies to all branches & also to priv law
incidental to execution (express) as opposed to incidental to subj matter (implied)
s 98
Provides for Cth’s pwr in relation to trade & commerce to extend to incl interstate & foreign navigation & shipping (among the States & overseas).
s 51 is subj to constitutional prohibitions:
express prohibition (area where pwr is denied) – eg: for s 51(i) they are ss 92 (guaranteeing freedom of trade, commerce & intercourse), 99 & 100 (not often).
implied prohibition
limitation on degree to which Cth can treat States.
implied rights (freedom of political communication).
Additional points
There was to be a body set up called the ‘Interstate Commission’ (ss 101-104).
This was 1st set up in 1912 & was challenged in the Wheat Case (1915) on the basis that it was given jud pwr.
In 1975 Whitlam gov’nt passed Interstate Commission Act which was never proclaimed; this was then approved by Hawke in 1978 but in 1988/9 the Interstate Commission Act went together with Industries Commission.
The prob is that the Const says there will be such a body & it does not exist today – HCA is also set up by Const, so there is the possibility of gov’nt getting rid of HCA.
s 51(i) needs to be read with s 51(xx) because they complement each other.
s 51(xx) deals with Cth pwr over, among other things, trading corporations.
A lot that you cannot do under s 51(i), you can do under s 51(xx).
A lot of the modern activity is on s 51(xx) & not s 51(i) but you still have to bother about s 51(i).
Main issues (p 173)
Pwr is for interstate & commerce not for intrastate trade & commerce – to what extent does s 51(i) enable Cth to regulate intrastate trade & commerce?
To what extent besides interstate & foreign, can Cth regulate matters antecedent or subsequent to it?
Cases
W & A McArthur v Qld (1920) p 165
important case on s 92; overruled in 1936 by Privy Council.
Knox CJ, Isaacs & Starke JJ said that “trade & commerce” requires transportation – transportation is part of commerce & necessary to interstate commerce.
transport is a “truism” – movement across boundary is regarded by HCA as necessary.
this passage is still used by HCA.
Bank of NSW v Cth (1948)
see Dixon J who gave a wide def’n to “trade, commerce & intercourse” in s 92.
Dixon J said movement & transportation is part of commerce & it is generally accepted that movement across boundary is necessary (see Murphy J who disagreed).
Airlines Case (1945)
gov’nt set up an airline to engage in interstate & territorial commerce & gave it a monopoly (nationalisation). 2 issues addressed were establishment & monopoly.
challenged TAA’s existence by arguing that Cth could not establish it as an airline:
s 51(i) only gives pwr to Cth to regulate commerce & not to engage in it.
transport is not commerce but is merely ancillary to it.
Both these args were rejected [i) was read widely & ii) see Dixon J].
trade is narrow & is included in commerce; commerce does not require a commercial element (see Dixon J p167).
movement across border would be interstate commerce (no element of reward – see Bank Nationalisation Case & US interpretation).
TAA established & monopoly created [had to sever within Part IV concerning interstate monopoly (not sever territorial monopoly)]. Ct felt it was able to sever monopoly from establishment & also within the monopoly matter because of structure of ANA Act 1945 (Cth).
s 15A of Acts Interpretation Act 1901 (Cth) authorises ‘reading down’, says construe provisions to be compatible with Const if possible & authorises severance (for State leg’n use IA 1987) – not going to use severance if result is radically diff’nt from what was intended.
s 15A leads to a presumption of independence of provisions and therefore counteracts interdependence.
Held: s 51(i) enabled Fed Parl to incorporate a company to conduct an interstate or export trading & commercial business & also that interstate transportation, certainly when conducted for profit, does satisfy trade & commerce.
Summary (Airlines Case):
A lot depends on drafting & if doubts as to its validity, make sure it is set out neatly so that sections can be severed – ie, structure & arrangement of Act makes a big difference.
3 main points:
Cth is not confined to regulating priv activity under s 51(i) but can engage in that (interstate & foreign) activity & can do so via corporate form.
Established that transport was commerce if for reward, & probably if not for reward (see also McArthur).
structure & drafting of Act is VIP in allowing for severance
WK 2.2
27/7/00 Note:
Pwrs can be divided into purposive & non-purposive.
The principal pwr that is purposive is s 51(vi) relating to defence.
Most of the other pwrs relate to subj matter – eg: s 51(i) trade & commerce, s 51(xxix) external affairs, s 51(xxxv) conciliation & arbitration, s 51(xix) aliens, s 51(xx) artificial persons like corporations.
If a pwr is purposive then its purpose becomes relevant & imp test to see whether pwr falls within its purpose is q of proportionality (contains concept of due process) – ie, if you have a purposive pwr, then pwr must be proportional to its purpose.
If a pwr is non-purposive then the purpose for which it is exercised is not imp so long as it falls within subj matter
s 51(i) is thought to be a non-purposive pwr; the pwr can be exercised for whatever purpose, or with whatever motives, Parl thinks fit, whether or not they be ‘commercial’ – this was est in Huddart Parker v Cth (1931) & reaffirmed in Murphyores v Cth (1976).
Huddart Parker v Cth (1931)
s 3 of Transport Workers Act authorised a reg’n requiring that in employment, engagement or picking-up of waterside workers for overseas & interstate vessels priority should be given to persons who were members of Waterside Workers’ Fed.
HCA said this provision was a valid law under s 51(i).
HCA said not a purposive pwr but a subj matter pwr & if exercise the latter for whatever purpose, it is okay.
Murphyores (1976)
modified version of Huddart.
Cth wanted to prohibit mining of mineral sands until gov’nt env enquiry.
Cth has no pwr over mining, so could not prohibit this.
Cth therefore prohibited exportation without permit (ie, limit export which was the purpose of mining).
HCA held that the reg’n was a valid exercise of trade & commerce pwr, as it dealt with export of goods overseas; the consideration of the env matters did not affect its validity.
Mason J: by imposing a prohibition on exportation, the law is dealing with something at the core/heart of trade & commerce pwr (p 171).
2 things come out of this case:
prohibit to foreign – yes; prohibit to interstate – prima facie yes but subj to s 92 (governs freedom of trade).
was law exercised for an improper reason (for env & not commercial purpose)? HCA rejected this saying motives are irrelevant (see Mason J p172) – ie, s 51(i) is a non-purposive pwr, it is a subj matter pwr.
To what extent can Cth regulate intrastate commerce whilst regulating interstate & foreign commerce? (issue relating to implied incidental pwr)
Despite the 3 cases to be discussed, the current pos’n is still unclear.
R v Burgess (1936)
concerned prosecution of pilot who flew without a licence intrastate.
Cth reg’n of Air Navigation Regulations prohibited persons flying “within the limits of the Cth”; did not distinguish betw’n interstate, intrastate & foreign jumps.
could Cth regulate such commerce (intrastate jumps)?
2 args were made to ct:
general: interstate (& foreign) commerce & intrastate were so linked that intrastate became part of interstate [rejected by HCA].
narrow: focus on air navigation, & because of physical intermingling in air routes & airports (“commingling” theory), Cth had to control all air navigation [rejected by HCA because not enough evidence but left the door open – see next case].
See Latham CJ (prob of evidence), Dixon J (could regulate intrastate if necessary) & Evatt & McTiernan JJ (reject “commingling” theory).
Summary:
Reg’n of intrastate aviation failed because:
distinction betw’n physical & non-physical aspects of aviation was not drawn by reg’n.
physical interconnections could be proved more powerfully only 30 yrs later (vol of traffic higher, etc).
Why didn’t ct break up the line “within the limits of the Cth” into
so that it could be read down (using s 15A of AIA) to exclude intrastate (ie, so that it could be severed accordingly)?
Because ct won’t distribute or define the provision if Parl doesn’t. Ct will not read down composite or undistributed expressions (as this would be legislating & not a judicial role) unless Parl has distributed/defined them (eg: Australian National Airlines Act 1945 in which there could be severance in the def’n) or indicated pwr it is relying on (although this latter point concerning placita does not bind HCA).
See Concrete Pipes Case (1971) & Re Dingjan (1995) which discuss severance & reading down & confine Burgess.
Airlines of NSW (No 2) (1965)
the limits of Cth’s pwr to secure a uniform sys of air navigation regulation by using s 51(i) were made clear in this case.
reg’ns under ANR.
more convincing effort made to ct to show interdependence off all aviation & need for one authority to control all aviation to avoid disaster (ie, safety issue) – doc’ntary evidence & charts presented to demonstrate physical link betw’n all aviation.
regs 198 (keeping planes out of air) & 199 (in regard to licence application, must consider “safety, regularity & efficiency” of air navigation) – physical aspects relating to aviation.
reg 200B (authorised aviation & extended it beyond physical aspects to incl eco factors like profitability) – went beyond & said anyone authorised could fly.
in relation to 198 & 199, ct applied Dixon J’s judgment in Burgess & said it is necessary to use intrastate to make interstate & foreign aviation effective [valid]. Barwick CJ rejects “commingling” but says that there are cases in which, for safety reasons, the reg’n of interstate & foreign trade & commerce in the area of air navigation should include intrastate activities.
200B was held to be invalid.
why did HCA hold 198 & 199 valid, & 200B invalid? Because of proximity:
if guaranteeing safety of interstate & foreign commerce, then allowed to monitor intrastate because of interdependence [physical connection in relation to safety].
but when talking about mere economic aspect it is too remote to support interdependence (see Kitto J).
Distinguish the above 2 cases:
In Burgess, reg’n sought to regulate all commerce across border & did not distinguish betw’n physical & economic (safety & non-safety), & broad “commingling” theory rejected.
In Airlines of NSW (No 2), evidence was very powerful.
Notes (p 182):
Upholding regs 198 & 199 as they apply to intrastate air operations is not compatible with Dixon CJ in Wragg v NSW (1953) because Dixon CJ in Wragg, repeating what he said in Burgess, said that Const distinguishes betw’n diff’nt types of commerce (inter, intra) & this has to be maintained.
There is no constitutional basis for the distinction made by Kitto J betw’n safety & “merely consequential” matters like financial considerations. [safety is allowed because important]
Constitutional basis is some form of reserved state pwr although that should not be there.
This distinction is not consistent with Barwick CJ’s statement that Cth pwr is not merely to protect but also to “foster & encourage” interstate & foreign trade & commerce.
If pwr to regulate is to incl “foster & encourage”, then cannot limit it to just safety.
Yes.
Does Airlines of NSW (No 2) apply to roads? Aviation is sui generis (ie, trying to isolate this case off but logically the principles do apply) – never been litigation on this subj. [Winterton says that on major interstate highways, probably can be controlled, but on local roads, probably not]
All main airlines are now trading corporations and therefore this problem of interstate & intrastate can be solved today under s 51(xx). [s 51(xx) applies to all forms of trade]
Western Australian Airlines Case (Ansett) (1976)
unsatisfactory case; decided unnecessarily on s 51(i); does not represent law today, although last case on it.
relying on ANA Act, Cth sought to authoriseTAA to fly betw’n Perth/Darwin & Darwin/Perth (can do so under s122); but journey not economically viable & therefore made stop over in Port Hedland (which was purely intrastate – relying on s 19B of ANA Act).
HCA (5 members) held:
s 19B was valid under territories pwr s 122 by 3:2 (Stephen J, Mason J & Murphy J as opposed to Barwick CJ & Gibbs J) & invalid under s 51(i) by 3:1 (Barwick CJ, Gibbs J & Stephen J as opposed to Murphy J).
ie, case stands for proposition that valid under one pwr & invalid under another.
why did Mason J not have to decide s 51(i)? Because there was no interstate pwr issue but a territory issue.
ct able to sever territorial commerce from interstate because s 19 was able to be severed – see s 19(2)(a), (b), (c) & (d).
neither ‘necessity’ nor the economic interdependence of intrastate & interstate trade & commerce will provide a sufficient ground for reg’n of intrastate trade & commerce under s 51(i).
ie, Cth could authorise if part of territorial journey, not part of intrastate journey – ie, Cth could authorise Syd to Goulburn if going on to Canberra but not Syd to Goulburn if going on to Melb.
