Laws 150 federal constitutional law wk 20/7/00 Introduction

Rights implied from express provs (express provs that are not themselves rights provs)

• 
  Eg: McHugh J in ACTB in which he implied from ss 7 & 24 that you need free speech at election time but limited himself via text (kept to election time).
  
• 
  Best modern eg is Lange – freedom of speech should be moved from category 4 to category 3 (from ss 7, 24, 64 & 128, freedom of polirical communication rights were implied).
  

4. 
   Rights implied from general Const provs or from the structure of the Const
   

• 
  General Const provs:
  

In Leeth, Deane & Toohey JJ purported to imply equality from Preamble.

Wider views from ACTB. In ACTB Mason CJ said ‘necessary’ was too strict a test – from text more liberal [3] (more legitimate, closer to text, more liberal); from structure less liberal.

• 
  Structure of Const:
  

Eg: SOP doctrine (Boilermakers’).

5. 
   Rights can be implied from the common law & converted into a constitutional prohibition
   

• 
  Modern version of Dr Bonham’s Case.
  
• 
  See BLF Case (1986) per Street CJ.
  
• 
  See ACTB per Gaudron J where implied rights from fact that we are a free society (p 628.9-629.1) & per Dawson J (p 635.9).
  
• 
  HCA not commented much on this issue.
  
• 
  Union Steamship v King (1988) – Zines p 418:
  

HCA says 2 things:

1. 
   Thro’ expression of “peace, order & good gov’nt” were words thro’ which you could limit pwr & imply rights (see Street CJ & Priestley J in BLF) – HCA rejected this & said these are not words of limitation.
   
2. 
   There were fundamental rights deeply rooted in common law & our democratic society (Cook) – HCA leaves this door open.
   

Engineers’'>WK 14.1

13/11/00
Engineers’ Revisited

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  Engineers’ Case (1920)
  

• 
  Background:
  
• 
  After Fed’n, q was whether gov’nts could control others. Can Cth tell what States should do & vice versa? Yes Const says something on this:
  
• 
  s 114: neither Cth nor State can tax the property of the other (interpreted as prohibiting property taxes). HCA has adopted a “criterion of liability” approach when asking themselves that relationship betw’n tax & property but does not incl all taxes. If had rates – property. Income tax & incl income derived from property (“criterion of liability” is the earning of income).
  
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  ss 106 (preserves State Consts until amended in accordance with their own provs: any Cth law applying to State Const could be incl) & 107 & 108.
  
• 
  Q: s 106 is said to be subj to this Const & also s 51 is subj to it – which prevails (mutual subjection to Const)? See Zines on pp 336-341. Zines offers a sol’n on p 340 (this is not the view of HCA) > s 106 should be seen as subj to rest of Const as well as s 51, & s 51 subj to Const should be seen as subj to limitations on Cth’s pwrs (like s 92, etc).
  
• 
  See Australian Railways Union Case (1930) per Dixon J.
  

• 
  As with US, there have been several periods on Cth binding the States. Is Cth bound by State instrumentalities & vice versa?
  
• 
  1st period (1904-1920): period of immunity of instrumentalities – D’Emden v Pedder (1904) – States could not make laws binding the Cth, & Cth could not bind the States. This was influenced by intention of framers & US cases.
  
• 
  2nd period: non-immunity. Cth can make laws binding the States (Engineers). We are still in this period but should regard ourselves in a sub-branch. New limitations recognised in State Banking Case (1947) re: general principle of non-discrimination.
  

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  Cth industrial leg’n could apply to WA gov’nt sawmill.
  
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  Q: Could CTh law bind a State instrumentality established under State leg’n?
  
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  Several points:
  

1. 
   Holding:
   

• 
  Cth could bind the State under s 51(xxxv) – see p 753.4.
  
• 
  There are said to be 3 resevations (only 1 was an exception):
  

1. 
   Not discussing State activity under Royal Prerogative (putting aside issue of RP) – this was not an exception (said in 1940s).
   
2. 
   What we say about s 51(xxxv) might not apply to s 51(ii) – why? Not clear – not an exception.
   

Can Cth tax States? Yes.

3. 
   Only true exception: discriminatory law – laws that discriminate against the States not between them (treating the States differently against people) – State Banking Case (1947).
   

• 
  US pos’n distinguished on 2 grounds:
  

1. 
   We have resp gov’nt & they do not (gov’nt resp to Parl) – p 755.6 Note 9.
   
2. 
   Common sovereignty of Crown (we still have Crown) – p 751-2.
   

• 
  This doctrine was seen as reciprocal > Cth can regulate States, & States can regulate Cth > this is not the case.
  

2. 
   Exploded doctrine of “reserved State pwrs”
   

• 
  See p 752.8 (“But it is a fundamental & fatal error to read s 107 as reserving any pwr from the Cth that falls fairly within the explicit terms of an express grant in s 51, as that grant is reasonably construed, unless that reservation is as explicitly stated”).
  

3. 
   Concerns issue of interpretation.
   

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  Symbolic role is exploding doctrine of “reserved State pwrs”.
  
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  Decided that doctrine of “immunity of instrumentalities” (doctrine of implied prohibitions) is incorrect.
  
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  In construing the Const, there is focus on text (p 746.9, 749.8, 751.5).
  
• 
  HCA did not deny making of implications:
  

Mason J

Latham CJ in SA v Cth (1942) & Dixon J in West v Commissioner of Taxation (NSW) (1937) – Engineers is not opposed to making of implications (p 754 Note 5).

Abuse of pwr is dealt with by politics.

It really decided that one should interpret lang of Const by focussing on text, but implications could be drawn when they are necessary.

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  RTE Latham (on p 757) criticises the case in 1937, saying that it cut us off from more political astute thinking of US, & placed Aust into a strict, rigid, legalistic Br pattern (this is sort of true).
  
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  Real rationale of case was change in Aust circs – growth of nationalism as a result of WWI (per Windeyer J). Changes in Const interp – not necessarily to correct error but because of changing society (p 758).
  
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  Jeffrey Goldsworthy (p 759 Note 2) who attacks Windeyer J – either Const says something or not; either it implies a limit or not; can’t change times.
  

WK 14.2

16/11/00
Intergovernmental Immunity

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  State Banking Case (1947)
  

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  This is politically & legally an imp case.
  
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  In Banking Act 1945 (Cth), Cth provided that no bank could deal with a State without permission of Cth.
  
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  Challenged that this prov contravened limitation on Cth pwr.
  
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  Law held invalid by 5:1.
  
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  Discriminated against States relative to rest of country (States could not deal with private banks).
  
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  4 strands of reasons:
  

1. 
   Now obsolete > When law of Cth discriminates against States, its true topic is the States & Cth has no pwr in s 51 to legislate on topic of States. View of Latham CJ & Williams J in State Banking Case, & Barwick CJ in Payroll Tax Case (1971), & was destroyed by Mason J in QEC (1985).
   
2. 
   Cth cannot discriminate against States but there is a wider prohibition > Cth cannot excessively interfere with State functions. This originated in judgment of Rich & Starke JJ. The doctrine was pinned down in Dam by Mason J, & was recognised as 2nd limb in test in QEC & Education Union Case (1995). This is a sensible doctrine.
   
3. 
   Discrimination doctrine (Dixon J). Generally speaking, a Cth law cannot discriminate against the States. If it does, it is invalid. Applied occasionally (eg: in QEC in 1995).
   

Some pwrs seen as envisaging discrimination but maj do not.

“The federal sys itself is the foundation of the restraint upon the use of the pwr to control the States” (p 764.8).

“But, to my mind, the efficacy of the sys logically demands that, unless a givel legislative pwr appears from its content, context or subj matter so to intend, it should not be understood as authorising the Cth to make a law aimed at the restriction or the control of a State in the exercise of its executive authority” (p 766).

The inference > from fed sys that Cth can’t discriminate against the States – why? Because if States singled out, don’t have protection as if the laws were to apply generally.

Cth > “no person may use a cheque” > falls under s 51(xvi) & valid > can vote out gov’nt.

Cth > “no State may use a cheque” > State not protected.

4. 
   Dissenting view of McTiernan J > “justifiable” discrimination. Either says Engineers or perhaps more rationally saying this fell into exception if pwr envisages discrimination, there can be (p 767).
   

This is the view of Brennan & Deane JJ in QEC in dissent, but the maj view in Lemonthyme (1988) & Australian Education Union Case (1995).
Summary (State Banking Case):

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  Case’s holding is as per Dixon J. Invalid because discriminated against States. This was not a pwr that envisaged discrimination.
  

• 
  QEC v Cth (1985)
  

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  Total ban against laws discriminating against States. Applied once in State Banking, & now in QEC.
  
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  Leg’n arose out of Qld pwr dispute. Concerned State Elec Comm. Cth passed Conciliation & Arbitration Act (Cth) regulating disputes in Qld elec pwr industry.
  

s 6: “electricity disputes” – s 6(1) applied Act to current dispute; s 6(2) applied to future disputes.

s 7: “expeditious” – disputes had to be resolved (by IRC).

s 8: “must decide” – provided that IRC had to decide the disputes & could not put off to State Tribs.

s 9: “full bench” – IRC had to hear this with a full bench rather than 1 & then full bench (in interests of expedition).

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  Impact on State would not have been enormous.
  
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  HCA endorsed the 2 implied prohibitions. HCA held leg’n invalid (Brennan J dissenting, & also Deane J) for breaching the State Banking principle (discriminating against the State).
  
• 
  Endorsed 2 implied prohibitions:
  

1. 
   General prohib’n against discriminatory laws (State Banking principle) – placing on States special burdens or disabilities. With discrimination prohib’n, there is a low threshold.
   
2. 
   Applies to non-discriminatory laws (general laws). Prohib’n against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as gov’nts (Mason J following his arg in Dam). Has a high threshold > impairment of capacity to function as State gov’nt not interference with functions (everything interferes with functions).
   

• 
  Several points:
  

1. 
   Applies to discr’n of 1 or all of them.
   

Discr’n against the States, not betw’n them (betw’n them is not constitutionally imp) – p 769.2.

2. 
   Applies to State leg as well, not just State exec, & also to State cts.
   
3. 
   Applies to not just States but also to their instrumentalities.
   

Also Elec Comm, city of Melb (not a State).

Applies in a substantive way even if discr’n is not 100%.

• 
  There are exceptions to this general prohib’n:
  

1. 
   Will not apply where it is a removal of a State privilege (restoring State to equality is not discr’n) – p 770.3.
   
2. 
   If terms of the pwr [s 51 (…), s 52] or its nature or subj matter envisage laws that discriminate agaisnt States, then it will not apply to those pwrs – eg: s 51(vi) [DixonJ].
   

• 
  Q: Does s 51(xxxv) envisage discr’n? HCA divided on this pt.
  
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  Maj said s 51(xxxv) does not envisage discr’n (p 770).
  

It discriminates agaisnt States.

Does s 51(xxxv) envisage discr’n? No > therefore, invalid, even though this Act has little impact.

3% priv producers.

97% is almost 100 % > therefore, effectively discriminates against the States.

• 
  Dissents by Brennan & Deane JJ.
  
• 
  Both Brennan & Deane JJ recognise that s 51(xxxv) envisages laws dealing with particular ind disputes.
  
• 
  Deane J held s 7 valid, ss 8 & 9 invalid.
  
• 
  Brennan J: Cth can make law dealing with an ind disp but discr’n must be rational or proprtional (ie, Cth can make law dealing with an ind disp so long as reason for signalling this out is related to the pwr & is proportional) – p 772, 773. Held s 6(2) valid but all rest invalid.
  

Summary (QEC):

• 
  Case clearly est the 2 limbs of implied prohib’n even though on 2nd limb (non-discriminatory aspect) it was dicta.
  
• 
  On 1st limb it clarifies:
  

can apply to discr’n against less than all States

can apply to discr’n less than 100%

State Banking principle (discriminating against the States) still applies.

• 
  Brennan J: imp decision on rational discr’n (originally McTiernan J in State Banking & Williams J in Second Uniform Tax Case).
  

Brennan J’s approach of rational discr’n is now accepted as HCA’s approach today.

• 
  Lemonthyme (1988)
  

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  Cth wanted to determine if on WH List.
  
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  Pending the inquiry, Cth said there should be no logging.
  
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  Leg’n challenged:
  

1. 
   Did not fall within “external affairs” pwr.
   
2. 
   Discriminated against Tasmania because this area was public land owned by Tas & was singled out – discriminated against State. But HCA rejected arg. Act was valid because discr’n was rational (singling it out because of its heritage properties). This was 1st time HCA endorsed rational discr’n (no dissent on this pt).
   

• 
  Education Union Case (1995)
  

• 
  HCA held 6:1 that IRC had juris. Dawson J dissented on gd that there was lack of pwr.
  
• 
  7 pts of maj:
  

1. 
   HCA confirmed 2 implied prohib’ns (2 elementsof prohib’n) – see p 778.7:
   

1. 
   prohib’n against discriminatory laws.
   
2. 
   prohib’n against general (non-discriminatory) laws which destro States or impair their ability to function.
   

• 
  Don’t really address s 106 (p 779.1). Zines suggests (p 340) that s 106 should not be a factor – this is sensible (HCA not yet adopted this).
  
• 
  Distinction betw’n gov’ntal & non-gov’ntal functions (reject it but do keep it for higher & lower stage of gov’nt).
  

2. 
   When is States capacity to function impaired?
   

• 
  Look at Deane J in QEC, & say “to control the States” (why “control” gives more guidance than “impairment of capacity”).
  

• 
  Distinguish betw’n highest levels of gov’nt (Parliamentarians, judges, etc) & rest (school teachers). See p 780-1.
  
• 
  Cth can control minimum wages of lower public servants & leave open whether Cth can control promotion & tfr.
  
• 
  Cth can control wages & working conditions of lower public servants but not the number of employees (State must be uncontrolled in size of its public sector).
  
• 
  Higher officials – Cth cannot control anything re: them.
  

5) & 6) Rational discr’n:

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  Cth IRC could refrain from hearing an industrial dispute (p 782 line 2).
  
• 
  Discr’n here was rational; it was not arbitrary (applied QEC) – p 782.9.
  

7) Confuse disputes against States with disputes betw’n States.

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  s 111 disputes were all industrial disputes (not just those in public sector).
  

Summary (Education Union Case):

• 
  It clarifies as ratio, not dicta, the 2nd implied general prohibition:
  

Discriminatory law: law discriminates against States (1 or more). Eg: QEC (Cth statute applied only to Qld pwr).

This case > general law cannot impair capacity of States – all disputes, not just States but also priv sector disputes (applied to all people). 1st time said Commission didn’t have some pwr.

• 
  Essential limitation re: reg’n of State employment by Cth is that Cth can’t control employment conditions of high officials or removal of lower (redundancy, because State should control size of its public sector – no., identity & redundancy with States). Ordinary terms & conditions of public sector can be controlled.
  
• 
  Represents a further endorsement of rational discrimination (endorsed in Lemonthyme).
  

• 
  Vic v Cth (Industrial Relations Act Case) (1996)
  

• 
  Adds nothing.
  
• 
  Raised both gen & discr limbs.
  
• 
  Claimed that leg’n gave IRC juris over State beyond that accepted via Education Union.
  
• 
  HCA said:
  

1. 
   We endorse Education Union.
   
2. 
   We can avoid leg’n as breaching the limits by reading down.
   
3. 
   Raised discr’n pt on p 786 para 4.
   

1. 
   Does not excessivley impinge on WA.
   
2. 
   If it did, it was rational.
   

• 
  Endorses previous case (Mason CJ replaced by Gummow J, & Dawson J goes along with it).