Answering Problem Questions Checklist:

Transcription

1 Simn Dicksn 1! Cmmnwealth Cnstitutinal Law Summary Answering Prblem Questins Checklist: Is the law yu are assessing the validity f a f Cth r State Act? I. Is the Cmmnwealth Law Cnstitutinally Valid? a. Is there a head f legislative pwer that supprts the law? [Characterisatin] i. What is the character (peratin and effect) f the law? ii. What is the meaning f the head f pwer? iii. Sufficient Cnnectin Is there a sufficient cnnectin between the law s peratin/effect and the head f pwer, such that it is a law with respect t the head f pwer? b. Des the Cmmnwealth law breach any Cnstitutinal Limitatins? II. Is the State Law Cnstitutinally Valid? a. Assume the law is within State legislative pwer; then ask b. Des the State law breach any cnstitutinal limitatins? c. Is the State law incnsistent with a Cmmnwealth Law (s109)?

2 Simn Dicksn 2! Fundatinal Cncepts Principles f Interpretatin: Jumbunna Principle Jumbunna; cited in Grain Pl f WA v Cmmnwealth The cnstitutinal text is t be cnstrued with all the generality which the wrds used admit Grain Pl [T]he curt shuld always lean t the brader interpretatin unless there is smething in the cntext r the rest f the Cnstitutin t indicate that the narrwer interpretatin will best carry ut its bject and purpse Jumbunna per O Cnnr J Nte, hwever, that Cnstitutinal Restrictins shuld be interpreted narrwly A-G Victria; Ex Parte Black Ordinary Principles f Statutry Interpretatin Apply Tasmania v Cmmnwealth ( Tas Dam ); Engineers The apprach is ne f textualism r legalism; that is, the meaning f the Cnstitutin is t be fund in the text r structure f the Cnstitutin, r frm what can be necessarily implied frm the text r structure. Yu must lk at the text f the Cnstitutin and give the wrds their nature meaning intentin is expressed in the text Yu must read the dcument the Cnstitutin as a whle, lking at its cntext and scheme, and against the backgrund f the state f the law (including the cmmn law) at the time the Cnstitutin enacted. Hwever, we must take int accunt the nature f the instrument it is a Cnstitutin, nt an rdinary act, and thus was intended t endure acrss time and changing circumstances Rejectin f Reserve Pwers Dctrine & Dctrine f Intergvernmental Immunities: These were dctrines develped by the early HCA per Griffith CJ, Bartn and O Cnnr JJ [eg Huddart Parker] which maintained that Cmmnwealth pwers were t be interpreted in a limited way s as nt t intrude int areas traditinally regulated by the States. and that Cmmnwealth laws culd nt bind the State gvernments r their agencies and vice versa, respectively. First and fremst, yu cannt read dwn a pwer by reference t vague, individual cnceptins f the spirit f the cnstitutinal cmpact Engineers Engineers, in reiterating that rdinary principles f statutry interpretatin apply, als made it explicitly clear that if the natural meaning f the Cnstitutin purprts t extent Cmmnwealth pwer int areas traditinally regulated by the states, then s be it (subject t a cntrary intentin per Jumbanna). Cnsequently, s107 f the Cnstitutin des nt perate t reserve any pwers t the states. Yu must als nt read dwn a pwer in feat that it might be abused plicing abuse is a mater fr the plitical prcess particularly in light f the dctrine f respnsible gvernment! If it be cnceivable that the representatives f the peple f Australia as a whle wuld ever prceed t use their natinal pwers t injure the peple f Australia it is certainly within the pwer f the peple themselves t resent and reverse what may be dne. N prtectin f this Curt in such a case is necessary r prper. - Engineers

3 Simn Dicksn 3! Histrical References: In cases f ambiguity, it is acceptable t refer t the histry f the prvisin (including cnventin debates) fr the purpse f identifying the cntemprary meaning f the language, subjects t which it was direct, and the nature and bjectives f the prvisin Cle v Whitfield Hwever, it histrical interpretatins cannt substitute fr the meaning f the actual wrds used Cle Living frce thery: This is the thery that the Cnstitutin is an rganic dcument and shuld therefre be read in light f cntemprary circumstances and perceptins (Thephanus) and shuld adapt t changing nrms and circumstances (ANA per Dixn J) Preserving the Validity f Legislatin: - Acts Interpretatin Act s15a Reading Dwn: A prvisin with brad scpe may be read as being either valid, r invalid, the curt will read it dwn apply nly t its valid applicatin Re Dingian (crpratins pwer) Severance: If a certain sectin/prvisin is invalid, the curt will sever it frm the remaining valid legislatin, prvided the rest f the legislatin can still functin Air Calednie (taxatin pwer)

4 Simn Dicksn 4! Cmmnwealth Laws I. Is there a head f legislative pwer that supprts the law? A. Characterisatin Heads f Pwer: i. Crpratins s51(xx) ii. Trade and Cmmerce s51(i) iii. External Affairs s51(xxix) iv. Races s51 (xxvi) v. Taxatin s51(ii) vi. Grants s96 vii. Apprpriatins ss81 & 83 viii. Natinhd ss61 & 51(xxxix) ix. Defence s51(vi) B. Des the Cmmnwealth law breach any Cnstitutinal Limitatins? Limitatins: i. Freedm f Plitical Cmmunicatin ii. Freedm f Interstate Trade s92 iii. Cmmunist Party Principle iv. State Immunity Dctrine!

5 Simn Dicksn 5! Characterisatin Principles: i. What is the meaning f the head f pwer? The pwer t make laws with respect t a subject is brad these are nt wrds f limitatin. Heads f pwer are plenary, and shuld be interpreted bradly Bank Natinalisatin ii.what is the character (peratin and effect) f the law? Must lk at bth the frmal legal peratin f the law, and its practical effects Grain Pl; Bank Natinalisatin The character f the law must be determined by reference t the rights, pwers, liabilities, duties and privileges which it creates Grain Pl iii. Is there a sufficient cnnectin between the law s peratin/effect and the head f pwer, such that it is a law with respect t the head f pwer? - Grain Pl; Bank Natinalisatin [T]he practical as well as the legal peratin f the law must be examine t determine if there is a sufficient cnnectin between the law and the head f pwer Grain Pl Dual characterisatin: If a law can be characterised with respect t a subject matter within a pwer, the fact that it can als be characterised as a law with respect t anther subject matter, utside the pwer, is irrelevant Grain Pl; Fairfax v Cmmissiner f Taxatin; Tas Dam If a sufficient cnnectin exists, the curt shuld nt evaluate the merits f the law: If a sufficient cnnectin with the head f pwer des exist, the justice and wisdm f the law, and the degree t which the means it adpts are necessary r desirable, are matters f legislative chice Grain Pl Nte: The cncept f prprtinality has been intrduced t evaluate laws made under the external affairs, natinhd pwers eg Tas Dam Als: Stellis argues this is misleading, since the incidental area f pwers requires reference t the purpses f the pwer, and purpse is central t purpsive heads f pwer.

6 Simn Dicksn 6! Heads f Pwer: Arguably [Cth law & relevant sectins if necessary] may be supprted by [insert heads f pwer]. Imprtantly a law can be characterised under multiple heads f pwer it is a fundamental cnstitutinal errr in characterisatin t search fr a law s suppsedly true character (Wrk Chices). " Heads f Pwer: i. Crpratins s51(xx) ii. Trade and Cmmerce s51(i) iii. External Affairs s51(xxix) iv. Races s51 (xxvi) v. Taxatin s51(ii) vi. Grants s96 vii. Apprpriatins ss81 & 83 viii. Natinhd ss61 & 51(xxxix) ix. Defence s51(vi)! Crpratins Pwer s51(xx)

7 Simn Dicksn 7! 1. Is [Cth law] ne with respect t s51(xx)? i. What is the meaning f the Head f Pwer? General Rule: Interpreted bradly (Jumbunna), the Cth has pwer t pass laws with respect t freign crpratins, as well as trading, financial crpratins frmed within the limits f the Cth s51(xx) With respect t cnfers a brad pwer t make laws they are nt wrds f limitatin Bank Natinalisatin Sectin 51(xx) can regulate bth inter and intra state trading by cnstitutinal crpratins - Strickland Validly regulating a crpratin s activities includes the persns undertaking thse activities Industrial Curt ii. What is the character f the Cth law? Statement: With reference t the rights, pwers, liabilities, duties and privileges with [Cth law] creates (Grain Pl), and its practical and legal peratin and effects (Grain Pl), [Cth law] can be characterised as a law [describe law s peratin]. Therefre the present issue is " iii. Is there a sufficient cnnectin, such that [Cth Law] is a law with respect t s51(xx)? Rule: There must be a cnnectin between [Cth law] and s51(xx) which is mre than insubstantial, tenuus f distant (Re Dingian; Wrk Chices). Such a cnnectin is bradly cnstrued (Wrk Chices) and per Gaudrn J in Re Pacific Cal (apprved in Wrk Chices), extends t the regulatin f activities, functins, relatinships and the business f a crpratin [and] the impsitin f bligatins n it and t thse thrugh whm it acts. There must be mre than a mere textual reference t a Cnstitutinal Crpratin (Strickland; endrsed in Wrk Chices) Dual Characterisatin: A law can be with respect t s51(xx) even where it als relates t ther heads f pwer. - Fntana Applicatin: In the present case, the law [describe applicatin and effects], thereby perating t [insert ptin frm belw] " 1. Make the Actins/Relatinships f the Cnstitutinal Crpratins the Object f the Cmmand Statement: Sectins [insert sectins f Cth Act] directly regulates the actins/relatinships f nly cnstitutinal crpratins by impsing duties/cnferring rights and privileges upn them, thereby rendering them the bject f the statutry cmmand, and the law ne with respect t s51(xx). - Wrk Chices (rejecting Strickland); Tas Dams Only - The law must have mre than just a general applicatin extending t cnstitutinal crpratins as well as ther bdies/persns it cannt merely be a textual reference t cnstitutinal crpratins - Strickland; Masn j in Fntana; upheld in Wrk Chices This includes situatins where the law regulates the relatinship f the Cnstitutinal Crpratin with thers, prvided the Crpratin is still the bject f cmmand Wrk Chices Examples: Prvisins regulating (impsing a duty n) terms and cnditins a cnstitutinal crpratin can ffer t emplyees; prvisins regulating (impsing a duty n) the actin cnstitutinal crpratins can take against their emplyees 2. Impse duties n Others whse actins are Sufficiently cnnected with Cnstitutinal Crpratins

8 Simn Dicksn 8! Statement: Sectins [insert sectins f Cth Act] regulate the relatinship between Cnstitutinal Crpratins and [ther party] by [describe peratin f prvisins]. This relatinship is nt insubstantial, tenuus r distant (Re Dingian) but instead establishes a sufficient cnnectin (Fntana), thereby rendering the Cnstitutinal Crpratin the bject f the statutry cmmand, and the law ne with respect t s51(xx) - Wrk Chices; Fntana Sufficient Cnnectin - the Cnstitutinal Crpratin cannt be a mere reference pint t the third party (eg cntractr) there must be a real, nt insubstantial cnnectin (Re Dingian) This extends t regulating persns wh intend n harming the trading activities f a Cnstitutinal Crpratin Fntana This includes cntractrs Re Dingian Examples fr Analgising: Legislative prvisins regulating cnduct which can be taken against a cnstitutinal crpratin (ie cnferring rights r immunities n Cnstitutinal crpratins) Wrk Chices Legislative prvisins regulating what industrial actin emplyees can take against Cnstitutinal Crpratins (ie cnferring rights r immunities n cnstitutinal crpratins) Fntana; Wrk Chices Legislative prvisins regulating cnduct that cnsists f advising, encuraging r inciting an cnstitutinal crpratin t d smething (ie cnferring rights r immunities) Wrk Chices Legislative prvisins preventing persns frm making misrepresentatins abut the cntent f emplyment agreements between Cnstitutinal Crpratins and emplyees Wrk Chices! In Wrk Chices it was held that legislative prvisins which were an integral part f the legislative scheme t prhibit cnstitutinal crpratins and emplyees frm making certain agreements, and thus their cnnectin was nt insubstantial, tenuus r distant Legislative prvisins cntrlling entry t premises ccupied by cnstitutinal crpratins Wrk Chices! In Wrk Chices legislative prvisins singling ut cnstitutinal crpratins as the bject f the statutry cmmand, and thereby directly granting them a right/immunity frm entry by certain persns, was deemed sufficiently cnnected t s51(xx)! Includes prvisins cntrlling entry t CC s premises by cntractrs prviding services t the CC where the right f entry relates t activities undertaken by cntractrs in the curse f prviding services t the CC Wrk Chices; Re Dingian. Legislative Prvisins regulating cnduct that adversely affects (r intended t adversely effect) an emplyee r cntractr f a cnstitutinal crpratin in their capacity as such Fntana Includes laws making framewrks fr relatinship between CC and persns sufficiently cnnected with the CC: Legislative prvisins establishing a registratin system fr Unins (assciatins f emplyees and emplyers) which cnfers benefits and impses cnditins n thse which register Wrk Chices! The Curt in Wrk Chices held that it is within s51(xx) fr Parliament t regulate the emplyment relatinship between cnstitutinal crpratins and their emplyees by setting up a framewrk r scheme in which that can ccur! This included prvisins allwing fr incrpratin f these unins. The Curt in Wrk Chices said that since it was within s51(xx) t set up a framewrk in which emplyment relatinships between CC s and their emplyees culd be gverned it als extended t incrpratin f thse bdies which were part f the framewrk (ie unins). 3. Addresses the Internal Management f Crpratins [LAW UNCERTAIN]

9 Simn Dicksn 9! Statement: Althugh sectins [insert sectins f Cth Act] regulate the internal management f cnstitutinal crpratins (eg bard vting; AGMs; directrs duties) it remains uncertain whether this is within the scpe f s51(xx). Hwever, the rejectin f the external/internal divide in Wrk Chices suggests this may be permissible.! This was als cnsidered by Murphy J in Fntana

10 Simn Dicksn 10! New Suth Wales v Cmmnwealth (Wrk Chices Case) (2006) 229 CLR 1 Facts: The Cmmnwealth Parliament sught t amend its wrkplace relatins legislatin t shift its Cnstitutinal basis fr the Cnciliatin and Arbitratin pwer t the Crpratins Pwer. The Cmmnwealth sught varius ways t regulate emplyment relatinships between Cnstitutinal Crpratins and their emplyees. The central cncept in the scheme was the definitin f emplyer, since emplyee was defined by reference t the frmer. This definitin was given an exhaustive ( means ), and layered cnstructin (s as t draw strength frm different heads f pwer), setting emplyers ut as (a) cnstitutinal crpratins, (b) the Cmmnwealth (c) the Cmmnwealth Authrity and (d) a persn r club which is unincrprated. Cf Strickland! Nte the difference between this definitin and that in Strickland, which included trading crpratins and all thers and thus lacked an insufficient cnnectin t s51(xx). Issue: Thus, the issue was t what extent this scheme, based in its definitin f emplyer (and thus emplyee) was supprted by s51(xx). Held (Majrity): The majrity held that s(a) was validly enacted under s51(xx), and espused a very expansive understanding f the scpe f s51(xx). The majrity rejected the fllwing arguments by New Suth Wales: NSW (and unins) argued that s51(xx) nly empwers laws with respect t external relatinships f cnstitutinal crpratins, as ppsed t internal relatinships (based n Isaacs J in Huddart Parker).! The Curt said yu cannt transpse a radically different idea (ie in this case a cnflict f laws cncept) int characterisatin prcesses. Mrever, this distinctin finds n supprt in Cnventin Debates r the Cnstitutin s drafting histry, and presents an unstable definitin f the pwer hw d we differentiate between intentinal and exnternal matters? NSW argued that s51(xx) is limited by the distinctive character test established by a minrity in Fntana and Tasmania Dams [see principles sectin belw fr mre]! The Curt adpted Masn J s criticisms f this test frm Fntana and Tasmania Dams namely that this wuld be difficult t apply t freign crpratins, since what is distinctive abut a freign crpratin is its freignness and Australian laws cannt apply t that directly. Further, there is n reasn the pwer shuld perate different depending n the type f crpratin.! The Curt als said this is a persns pwer, nt ne with respect t functins, activities r relatinships. Mrever, this test placed an additinal filter limiting the scpe f s51(xx) by reference t assumptins abut federal balance which is cntrary t Jumbunna and Engineers principles f interpretatin. NSW argued that s51(xx) shuld be limited and read dwn in light f the Cnciliatin and Arbitratins Pwer (s51(xxxv)) which cntains internal limitatins, and which is prperly the pwer t authrise industrial relatins legislatin.! The Curt rejected this, saying s51(xxxv) cntains n psitive restrictins it merely delimits the subject matter f the pwer (a limited descriptin is nt a psitive restrictin)! The Curt said that a law can have multiple characteristics and be characterised under multiple heads f pwer searching fr a true character is a fundamental cnstitutinal errr in characterisatin! Finally, the curt said that the subject matter f s51(xxxv) was nt industrial relatins it is cnciliatin and arbitratin f disputes, which is different. Dissent: Kirby J and Callinan J were cncerned that a further expansin f federal pwer wuld imperil the federal system by letting the Cth regulate areas like educatin and health.! Kirby J asserted that a cncentratin f pwer in the hands f the federal gvernment is bad fr citizens. While a strng argument in plitical science, it lacks a jurisprudential basis.! Callinan J rejected Engineers and mre mdern principles f Cnstitutinal interpretatin that have resulted in an expansin f federal pwer. Very behind the times.