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11065_Constitutional Law, Conformity Principle Reasonably appropriate…

- - - - International Relation Power
        
        This authorises laws aimed at preserving internation law and friendly relationships with other nations
        
        The power covers matters falling within the doctrine of comity, which provides that nations will recognise each others sovereignty, experessed in laws and executive decisions.
        R v Sharkey (1949) 79 CLR 121, a prohibition on sedition was upheld as maintaining comity with the United Kingdom and Commonwealth nations
        
        HCA have suggested the international power may authorise laws on matters of international concern.
        Support for this can be found in Tasmanian Dam Case
        HCA as rcently backed away from the view that mere international concern can enliven the external affairs power.
      - The term 'external affairs' is characteristically vague. The HCA's jurispridence has interprested this power as having three aspects.
        
        Geographical
        
        The obvious interpretation of 'external affairs' as covering those affairs located outside of Australia
        New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337
        What is physically external to Australia?
        
        Treaty Power
        
        The power to 'sign and ratify' treaties rests with the Commonwealth executive under s 61 of the Constitution
        
        Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 illustrates the wide scope of the treaty power
        
        Precursor to Tas Dam
        
        R v Burgess: Ex Parte Henry (1936) 55 CLR 608
        Koowarta v Bjelke-Petersen (1982) 153 CLR 168 concerned a challenge by Queensland to the Racial Discrimination Act 1975 (Cth)
        An expansive view of the power was taken, and any law implementing a treaty may be within the federal power.
        
        Tasmanian Dam was culmination of a series of HCA decisions that expanded the scope of the treaty powert
        
        The most significant component of the external affairs power
        
        Limits
        
        The treaty in question must be a bona fide international agreement
        
        Commonwealth may not rely on treaties 'entered into merely to [...] confer legislative power upon the Commonwealth
        Tasmania Dam (1983) 158 CLR 1, 218-9 (Brennan J)
        This is not an onerous test
        
        The Commonwealth legislation must be reasonably related to the treaty
        
        In Richardson v Forestry Commission (1988) 164 CLR 261, a majority thought the question was whether the legislature could reasonably form the view that the law was necessary to implement the treaty.
        The case of Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 adopts a stricter view.
        
        The treaty power is subject to other constitutional limits on Commonwealth power
        
        It has been suggested that the Commonwealth law must implement a binding treaty obligation, not mere aspiration
        
        After IRA Case which confirmed Tasmania Dam the test now seems to be
        
        Mere aspiration
        No, (IRA Case)
        
        Recommendation
        Maybe, A suitable degree of precision required (wording) of vaguearies (Richardson)
        
        Obligation
        Prima facie, yes (Tasmania Dam)
        
        Future Obligations
        Maybe, Reasonably apprehended future obligation (Richardson)
      - the external affairs power authorises a broad range of Commonwealth laws
        It is hard to think of any subject matter that cannot potentially be covered
        "[T]here is almost no aspect of life which under modern conditions may not be the subject of an internation agreement and therefore the possible subject of Commonwealth legislative power Tasmanian Dam @ 100 Gibbs CJ
  - - - In Australian Communist Party (Communist Case) (1951) 83 CLR 1, Fullagar J noted two aspects of the power:
        
        The primary aspect covers laws that have defence at their direct and immediate object
        
        The secondary aspect covers a range of matters only indirectly related to defence.
      - The defence power operates differently in times of war and peace, therefore has two distinct aspects.
        
        Wartime
        The wartime power is extremely broad. See Farey v Burnett (1916) 21 CLR 433, concerning legislation fixing the price of bread.
        In WWI case of Lloyd v Wallach (1915) 20 CLR 299 the HCA upheld legislation giving a minister power to detain anyone who threatened defence of the Commonwealth.
        
        Whilst very broad, the wartime power does have limits imposed by HCA.
        R v University of Sydney; Ex parte Drummond (1943) 67 CLR 95 concerns limits placed on the number of students admitted to university.
        
        Transitioning to peacetime
        
        The defence power authorises laws managing the trasition to peacetime. The scope of power during the transition is less than in wartime, but more than what is normally available in timesw of peace. After a period of time it ceases to be as expansive
        
        Dawson v Commonwealth (1946) 73 CLR 157 concerned a post-WWII challenge to wartime restrictions on sale of land.
        "The defence power must 'extend to sustaining for some reasonable period of time' measures necessary for the transition to peace." (1946) 73 CLR 157, 184 (Dixon J)
        
        Peacetime
        
        The peacetime power is narrower thasn the wartime and transitional powers. However, it still has significant scope.
        
        Clothing Factory Case (1935) 53 CL R 533
        
        Most prominent case examining defence power - Communist Party Case
        
        Capital Issues Case (1953) 87 CLR 177
        
        Contrasting decision Shipping Board Case (1926) 39 CLR 1
    - - Thomas v Mowbray (2007) 233 CLR 307 concerned validity of interim contro,l orders issued under anti-terrorism legislation.
      - The HCA in Thomas did not regard the defence power as covering general policing
        Kirby in dissent
- - - - D'emden v Pedder (1904) 1 CLR 91
        This early HCA case set tone for dual sovereignty era
        .
        The main question concerned whether federal salaries were subject to stamp duties. A conflict arose between Tasmania who sought to levy the duties of federal employees and the Commonwealth who refused to pay
        HCA held that states could not be permitted to burden the federal government's payment of salaries to its officers by taxing the receipts
    - - HCA initially followed D'emden with Deakin v Webb (1904) 1 CLR 585 and Commonwealth v New South Wales (1906) CLR 807
      - Privy Council rejected D'emden iin Webb v Outrim [1907] AC 81, holding that a state can tax the salary of a Commonwealth officer.
      - However, in Baxter v Commissioner of Taxation (1907) 4 CLR 1087, the HCA approved D'emden and criticised the view of the Privy Council
        
        Baxter v Commissioner of Taxation
        Case concerned an attempt by NSW to tax the salary of Commonwealth officials.
        HCA ruled the tax was unconstitutional, upholding D'emden.
        The court noted the need for purposive interpretation.
        Griffith CJ heavily criticised the Privy Council, saying it acted like an 'astral intelligence' and was interpreting the Constitution 'with the aid of a dictionary' (at 1106).
      - Railway Servant's Case (1906)
        This case concerned State immunity from Commonwealth laws, specifically, the Commonwealth law relating to industrial arbitration pruported to bind NSW government instrumentalities.
        
        The Commonwealth may make laws concerning 'industrial arbitration' under s 51(xxxv)
        
        However, the issue of implied immunities must also be considered to see if the law is valid.
      - Exceptions to immunities
        Immunities were not entirely unqualified
        
        The trading activities of State instrumentalities may be subject to Commonwealth regulation in the same way as other companies
        
        Local governments, unlike State governments, do not enjoy immunity from Commonwealth laws
        Municipalities Case (1919) 26 Clr 508
        
        Where a Commonwealth power, by its very terms, involves control of some aspect of State governmet, interference will be permitted
      - Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920)
        Engineers marked the beginning of the era of legislative supremacy.
        
        In Engineers, D'emden was reinterpreted and Railway Servants was overruled.
        
        Engineers concerned a union award for engineers that was endorsed by a Commonwealth industrial relations tribunal.
    - - Melbourne Corporation v Commonwealth (1947) 74 CLR 31
        HCA's current approach to dual federalism commenced with Melbourne Corp, which concerned an attempt by the Commonwealth to nationalisw the bankig industry,
        Under s 51(xiii), the Commonwealth may make laws with respect to banking, other than state banking. The Banking Act 1945 (CTH) attempted to prevent private banks from providing services for a State or State instrumentality.
        
        The two questions which were asked of the legislation were:
        Is the legislation in power?
        Does the legialtion violate any prohibitions?
        
        Whilst Latham CJ thought the legislation failed the first but passed the second question, Rich, Starke and Dixon JJ thought the law passed the first and failed the second.
        In his leading judgment, Dixon J wrote about the significance of Engineers and how the Commonwealth has broad powers, making laws affecting the States.
        Dixon J qualified this statement by saying that State immunity against Commonwealth control is implied from the federal system.
      - Commonwealth v Cigamatic (1962)
        Cigamatic clarified Melb Corp application of Commonwealth immunity.
        
        A NSW statute interfered with Crown prerogative rights of the Commonwealth in the payment of debts after insolvency.
        Majority followed Dixon J in Uther v Federal Commissioner of Taxation (1947) 74 CLR 509.
        A Federal system is necessarily a 'dual system'. If any supremacy exists, it belongs to the Commonwelath> States have no power to regulate the rights, privileges, duties or disablities of the Commonwealth.
      - Payroll Tax Case (1971)
        Concerned an attempt by the Commonwealth to impose a tax on wages, including State employess as well as private employers.
        HCA unanimously held the Commonwealth legislation to be a valid exercise of the taxation power in s 51(ii)
      - Queensland Electoral Commission v Commonwealth (1985)
        Arose from an industrial dispute between electricity workers and the Qld government. The Commonwealth passed legislation to bring the dispute under Commonwelath jurisdaiction.
        HCA held that the Commonwealth law was invalid and the doctrine of State immunity was described as having two limbs.
        The first of those limbs precludes discrimination against either a stae or States generally.
      - Native Title Act Case (1995)
        The Native Title Act 1993 (Cth) limited the way State governments could respond to native title claims and in some cases, States were required to pay compensation.
        WA argued the Act was discriminatory and interfered with its capacity to function as a governement.
        HCA held that the legislation did not violate either limb of the state immunity. The Act was not intended to discriminate. The Act does not deprppive WA of its ability to function as a goverment.
        Second limb only protects the following areas.
      - Re Australian Education Union (1995)
        AEU case arose from Vic legislation imposing new industrial arbitration system.
        HCA held there was no blanket immunity against Commonwealth imposing industrial relations laws on the states.
        However
        Commonwealth may not interfere in State employment with respect to:
        
        The 'number and identity of persons' employed or dismissed by the States and the 'term of appointment' of employees.
        
        Qualifications and eligibility for employment
        
        The 'number, identity, terms and conditions of employment for the higher levels of government.
      - Industrial Relations Case (1996)
        The Industrial Relations Act 1988 (Cth) was amended to increase protections for workers, restricting the grounds of dismissal.
        HCA ruled that the legislation did not bind the States as employers, since it interefered with the protected areas designated in the AEU case.
        In particular:
        
        The number and identity of redundancies
        
        The conditions of employment providede at the 'higher levels of government'.
      - Re Residential Tenancies Tribunal of New South Wales (1997)
        Raised questions of Commonwealth immunity form State laws, specifically, does State tenancy legislation leases taken out by Commonwealth instrumentalities?
        HCA held that the States cannot pass laws to interfere with the 'capactities' of the Commonwealth, but they may regulate Commonwealth 'activities'.
        -Commonwealth laws may not single out the Commonwealth or remove special privileges enjoyed by the Crfown in right of the Commonwealth.
        
        However Commonwealth activities may be regulated outside the above limits.
      - Austin v Commonwealth (2003)
        Austin concerned a Commonwealth 'superannuation contributions surcharge' directed at 'higher income earners', such as State judges. Two judges, from NSW and Vic, challenged the levy.
        HCA held, by maojrity, that the legislation was invalid, as it interfered with the ability of the States to discharge their functions under the principle set out in the AEU case.
        All the judges in Austin, with sole exception of McHugh J, held that the two limbs of the State immunity from previous cases were better expressed as a single, overriding test.
        It is therefore now possible that mere discrimination may not always be enough in itself to infringe the immunity.
      - Clarke v Federal Commissioner of Taxation (2009)
        Clarke followed Austin to hold that a federal surcharge could nor be levied upon the retirement benefits of state legislators.
        
        French CJ reformulated the test for intergovernmental immunities in terms of a multifactoral approach incorporating the factors considered in earlier case.
        
        Does it impact on the ability of the states to exercise their powers and functions?
        
        Does the law single out the states or impose a special burden on them?
        
        Is the impact of the clearly authorised by a Commonwealth head of power?
- - - - Commonwealth legislation that affects the executive government of the States
      - Inconsistencies between Commonwealth and State legislation in respect of the concurrent powers in s 51
        
        s 109 resolves this, such that Commonwealth law prevails, but identifying inconsistencies is not straightforward.
      - State legislation that affects the executive government of the Commonwealth
        A Commonwealth law must be within power in order to be valid. State law will not be valid if the concern an exclusive Commonwealth power.
    - - A Commonwealth law and a state law will clearly be inconsistent if one of them requires an act and the other prohibits it.
      - See R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 33. The Liquor Act 1912 (Qld) required a referendum on trading hours to be held along with the Senate elections.
        The Commonwealth Electoral Act for bade this and was upheld under 2 109.
  - - - Clyde Engineering v Cowburn (1926) 37 CLR 466 involved a clash of Commonwealth v state awards
      - Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 relfects post-Engineers approach in Clyde Engineering case
      - Australian Boot Trade Employees Federation v Whybrow & Co (1910)10 CLR 266
    - - Hume and Palmer (1926) 38 CLR 441
        where federal and state laws applied the same rule to steamship navigation (ships passing on starboard) but provided for different procedure and penatly
    - - The Kakariki Case (1938) 59 CLR 618 involved competing state and federal laws providing for salvage of ships
      - Recent case of Momcilovic v The Queen (2011) 245 CLR 1 discussed different maximum penalties for drug trafficking under state and federal law
      - Western Australia v Commonawealth (Mining Act Case) (1999) 196 CLR 392 provides another good example
  - - - If a Comonwealth law shows an intention to cover the field - that is, to comprehensively regulate a topic - then any state laws on that topic will be overridden
      - Covering the field test is arguably the most important overarching theme in the High Court's cassos on inconsistency.
      - The test is oft traced back to Dixon J's judgment in Ex parte McLean (1930) 43 CLR 472
        The reason is that the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to State law, then no inconsistenct would be exhibitied. (1930) 43 CLR 472, 483 (Dixon J)
    - - HCA has held that where a state ;aw is affected by s 109, it is not invalid, but is rendered merely inoperative.
        
        This means that the state law will recommence if the inconsistency is removed. This might happen if the federal law is repealed.
        
        The state law is rendered inoperative and ineffective from the moment the inconsistency arises. This cannot be retrospectively remedied.
        
        The HCA is likely to sever the inoperative provisions where possible. (This depends on how integral the provisons are to the statute. If the provisions cannot be severed the whole statute will be inoperative.)
- - - - Is the legislation within power? A distinction exists between Commonwealth which relies upon enumerated powers and State which enjoy residual powers.
      - Does the legislation violate any prohibitions? Consider any relevant immunities at this point.
    - - Examine the constitutional head of power that supports the law
      - Examine the correspondence between the law and the power
      - Dominant characterisation
        
        The HCA's approach to characterisation has changed over time.
        The dominant characterisation approach was one taken by earlier courts, such as in R v Barger to determine whether the Commonwealth was interfering with State power under s 51 of the Constitution
        A majority struck down the Commonwealth law in that case on grounds of characterisation.
    - - R v Barger (1908) 6 CLR 41
        An example of dominant characteristic approach.
        Facts: Case concerned a Commonwealth law imposing a special tariff on agricultural machinery used by factories that did not grant their workers certain minimum conditions.
        The legislation was challenged on two grounds.
        
        It was outside the taxation power in s 51(ii) of the Constitution; and
        
        It discriminated between the states, which is expressly prohibited in s 51(ii)
        
        Held: A majority struck down the law on both grounds. The Commonwealth can use a tax to achieve an end not solely related to taxation. The legislatures motives are, in this sense, irrelevant.
        However, the Constitution reserves certain powers for the states. It must be read as a whole. The Commonwealth cannot use taxation to interfere with areas of state power.
      - Huddart, Parker & Co v Moorehead (1909) 8 CLR 330
        Another dominant characterisation case which examines the corporations power s51(xx)
        Facts: Case concerned wide ranging Commonwealth legislation aimed at monopolies and restraint of trade agreements. A Commonwealth officer sought to use the Act to question Huddart about its activities. The company refused to comply.
        
        HELD: The law struck down with majority judges differing widely on the proper interpretation of the corporations power. They all thought it should be interpreted narrowly, in order to protect state powers.
    - - High Court decision in Engineers
        The HCA departed from earlier precedents set by the original court in favour of the dissenting view of Isaacs J.
        HELD: Section 51 must be interpreted using two guiding principles: the sovereignty of the Imperial Parliament and the doctrine of responsible government. It follows that the Commonwealth arbitration power should be read literally, as covering all disputes extending across state borders.
        
        Multiple characterisation
        The HCA's post-Engineers approach is known as dual or multiple characterisation. This means the HCA now accepts that a law can have more than one legitimate subject matter and still validly fall within a s 51 head of power. Even if the law concerns both corporations or interstate trade, at least one of the law's subjects is within the head of power, it will be deemed valid. It doe snot matter that it also affects state jurisdiction.
        
        Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1
        Facts: Fairfax concerned attempts to use taxation to encourage private investment in federal government securities.
        HELD: HCA unanimously rejected Fairfax's argument. Federal powers may extend to laws that also have another purpose. Due to Engineer's case which set the pendulum swinging so far in the opposite of federalism (and state sovereignty), the HCA in this decision reached the opposite conclusion to the one held in Barger
        
        Federal Movement
        The HCA's shifting approach to Commonwealth powers can be seen as an example of constitutional movement.
        Case law reflects two centres of gravity: the plenary of the Cth and the autonomy of the states. In this backdrop Engineers continues to be debated.
        The broad approach adopted in the case has led to the expansion of Commonwealth powers over time at the expense of the States
- - - - s 51(xx) has become a massive source of power for the Commonwealth Parliament to regulate economic activity.
        
        Two issues are raised by interpretation of the power
        
        In relation to what entities may the Parliament legislate?
        
        What kinds of legislation may Parliament make with respect to these entities?
        
        Three categories of corporations which can be known as 'constitutional corporations'
        
        Foreign corporations
        
        Trading corporations
        
        Financial corporations
    - - If yes, Foreign Corporation and therefore, s 51(xx) likely to apply (Workchoices Act 2006)
      - Is it a Shelf Corporation? Look to Memorandum Article of Association Fencott v Muller (1983)
      - Is it a Financial Corporation? Do financial activities comprise the subject matter of the transaction? Re Ku-ring-gai (1978) May only be incidental SSB v TPC (1982)
      - Is it a Trading Corporation? Does trading activity comprise "sufficiently significant proportion" of overall activities Current activities test Anderson's Case (1979)
        
        I f yes, Constitutional Corporation which means: After Concrete Pipes Case (1971) law has the potential to regulate intrastate trade and commerce
        
        Issue 2: Does the Cth law fall within the scope of s51(xx)? Note, 2 interpretations of the Core of Power have developed, discuss.
        
        Narrow view
        
        Minority in Concrete Pipes Case (1971) Dawson at 316 "For the law to be valid...the fact that it is a trading or financial corporation should be significant in the way the law relates to it" Distinctive Character Test (Dingles 1995) OVERRULED in Concrete Pipes Case (1971)
        
        Does the law affect the incorporation of a Corporation? Subject to the Constitution "Formed" is past tense. Incorporation Case (1990)
        
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        Broad View
        
        Majority in AAEA v Fonmann Films (1982) Plenary Power therefore no "nexus" required once it is established that the Act in question attempts to regulate a "Constitutional Corporation". Object of Command Test
        
        Does the Cth law affect natural persons other than the corporate entity? Incidental? Work Choices Act (2006)
        
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  - - - This is another concurrent power, States may also levy taxes. However the poewr to impose duties of customs and excise belongs exclusively to the Commonwealth: s90
      - What is a tax?
        
        Latham CJ stated in Matthews v Chicory Marketin Board 1938 60 CLR 263, 276 that a tax is
        a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered.
        This definition has four elements:
        
        A compulsory exaction of money
        
        By a public authority
        
        Not a payment for services
        
        For public purposes
        
        Fines and other financial penalties are not taxes: MacCormick v Commissioner of Taxation (1984) 158 CLR 622, 639
        
        Case Illustrations
        
        Air Caldonie v Commonwealth (1998) 165 CLR 462
        Air Caledonie illustrates both the defintion of taxation and the application of s55. The case concerned an amendment to the Migration Act 1958 (Cth).
        Facts: The amendment instituted an Immigration Clearance Fee of $5 to be collected from all passengers entering Australia by air. The airline was required to pay the fee, whether or not it had collected the charge from the passenger.
        Held: The Clearance Fee was a tax and therefore could not be inclued as an amendment to the Migration Act. The Court applied the definition set out by Latham CJ in Matthews. A key issue was whether the fee was a 'payment for service' and therefore not a tax.
        
        Airservices Australia v Canadian Airlines (1999) 202 CLR 133
        Facts: The fees charged by Airservices were for public safety functions, such as firefighting. The fees were fixed according to a complex formula. However, the formula did not cost the actual service to the customer. Compass was charged more than the value of the services it received.
        Held: The Court reasoned that the fees were imposed not soas to raise revenue, but to cover the cost of services across a group of users. The fees were reasonably related to the expenses incurred.
  - - - Customs duties are duties on imports and exports.
      - Excise duties are levies on goods at any poit of the production or distribution process as they move from manufacturer to consumer
        A charge will typically be identified as an excise duty if it is connected to output (that is, the charge reflecs the amount of goods produced).
      - The states may impose consuption taxes: Dickenson's Arcade v Tasmania (1974) 130 CLR 171
- - - - The protections of judicial independence in the states therefore do not come from the state constitutions. State courts are vested with federal power under s 71. This means they must possess certain minimum characteristics.
        Federal judicial powers may only be exercised by a court in the 'strict sense'. This means it (the court), must be primarily judicial in nature. (Alexander's Case (1918) 25 CLR 434)
      - Insitutional Integrity
        
        The HCA has developed this idea further to yield the doctrine of institutional integrity of state courts (sometimes called the Kable doctrine.
        State courts are not permitted to exercise functions that are not compatible with their exercise of federal judicial power. Their composition and powers must be consistent with their status as a component of a unified national judiciary.
        
        Kable v Director of Public Prosecutions (1996) 189 CLR 51 https://www.bitlylinks.com/3SvuQ189n
        
        A majority of the HCA held that the legislation was invalid as the legislation conferred upon the Supreme Court a function incompatible with the exercise of federal judicial power.
        The separation of powers is not constitutionally protected in the states. However, state courts are bound by the separation of powers in the Commonwealth Constitution.
        The legislation 'weakens confidence in the institutions which comprise the judicial system brought into existence by Ch III of the Constitution': Gaudron J
        In some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers: 118 McHugh J
        
        Federal Courts
        
        Chapter III requirements/Polyukhovich
        
        State courts with federal jurisdiction
        
        Kable principle and institutional integrity
        
        The Aftermath
        Kable was not applied between 1996 and 2009 (except in Qld decision of Re Criminal Proceeds Act [2004] 1 Qd R 40. This led to Kirby J famously describing the principle as 'a constitutional guard dog that barked but once': Baker v The Queen ((2004) 233 CLR 513, 535
        
        Fardon v Attorney General (2004) 223 CLR 575
        https://bit.ly/3uDlY1P
        The case of Fardon highlights the reasons for Kirby J's pessism.
        The case concerned serial rapist, Robert John Fardon, where legialtion was clearly aimed at keeping him in jail, but did not specifically name him.
        A majority (Kirby J dissenting) upheld the law.
        Nothing in the Act gives any ground for concluding that it impairs the institutional capacity of the Supreme Court federal jurisdaiction...Nothing in the Act might lead a reasonable person to conclude that the Spureme Court of Queensland, when exercisinf federal jurisdiction, might be an impartial tribunal free of governmental...influence or might not be capable of administering invested federal jurisdiction according to law: 62 McHugh J
    - - Federal courts
        
        Rule in Boilermaker's Case
      - State courts with federal jurisdiction
        
        Rule in Alexander's Case
    - - Institutional integrity cases can be grouped into four categories
        
        Jurisdiction of state courts
        
        Impermissible grants of jurisdiction
        
        Constitution of state courts
        
        Impermissible withdrawal of jurisdiction
  - - - Forge v Asic (2006) 228 CLR 45
        https://bit.ly/34OvC71
        [The institutional integrity of the body may be distorted by such appointments if the informed observer may reasonably conclude that the institution no longer is, and no longer appears to be, independent and impartial as, for example, would be the case if a significant element of its membership stood to gain or lose from the way in which the duties of office were executed: 86 (Gummow, Hayne and Crennan JJ)
    - - The institutional integrity of a court may be be affected both by the grant of power and the withdrawal of power
        
        South Australia v Totani (2010) 242 CLR 14
        https://bit.ly/3rG7ts4
        Facts: The Serious and Organised Crime (Control Act 2008 (SA) enabled the Attorney-General to make declarations in relation to organisations engaged in serious criminal activity.
        Held: A majority of the HCA invalidated the law under the Kable doctrine. The Mags court has no real discretion under the legislation, it must do as directed by the government and police. The court must act the behest of the executive: 89 Hayne J
        
        Wainohu v NSW (2011) 243 CLR 181
        https://bit.ly/3uDY71R
        Facts: Wainohu concerned a similar provision to Totani. The main difference being that the intial declaration was made by an individual judge, not the Attorney-General
        Held: The making of the declaration was a non-judicial power given to the judge in a personal capacity. However, the majority held the function was incompatible with judicial integrity.
        
        Kucczborski v Queensland [2014] HCA 46
        https://bit.ly/3LqDMmL
        Facts: The Vicious Lawless Association Disestablishment Act 2013 (Qld) made it an offence for participantsin a criminal organisation to gather in groups of three or more or wear insignia on licensed premises.
        Held: The HCA upheld the legislation. The laws may be harsh, but they do not remove the ability of the courts to decide whether the elements of the offence have been met. The judicial role is still preserved.
  - - - the open court principle: Gypsy Jokers; Pompano
      - Parties must have notice of decisions affecting them:International Finance Trust
      - Judges must generally give reasons for their decisions: Wainohu
      - Defendants have a riht to know the particulars of the charged offence: Kirk
      - Defendants must not be compelled to give evidence for the prosecution: Kirk
- - - - a claim that somebody else do or not do something. It therefore entails a correlative duty on the other party.
    - - Need not involve any correlative duty. Hoever, freedoms need legal protection if they are to be meaningful. This protection is typically provided by enforceable rights.
  - - - Cole v Whitfield [1988] HCA 18
        https://bit.ly/3uXjpYL
        In Cole v Whitfield the HCA defined how far the freedom in s 92 extends in an unanimous joint judgment. The judgment opted for free trade theory over the individual rights theory.
        The Cole v Whitfield test effectively contains three elements
        
        A burden on trade
        
        Discrimination between internal and external traders
        
        A protectionist impact
        
        Post Cole v Whitfield
        Palmer v Western Australia [2021] HCA 5
        https://bit.ly/3rH6OXq
        The HCA unanimously held that the interstate, trade and commerce limbs are to be considered together rather than separately.
        
        Consideration of the validity must be directed to the provisions of the empowering Act, not any directions issued under the Act.
        The test is whether the law imposes unjustified burdens of a discriminatory kind (removing the protectionist element). A burden may be justified if it is reasonably necessary.
        
        That there is no alternative, less restrictive means available
        
        To achieving a legitimate (non-discriminatory) object)
  - - - Acquisition
        
        HCA approach to 'acquisition of property' is characterised by a broad interpretaion of property and a narrow interpretation of acquisition.
        
        'Acquisition' requires transfer of a concrete benefit to the government or another person. It does not include regulation of property use.
        The property need not be transferred directly to the Commonwealth: P J Magennis v Commonwealth (1949) 80 CLR 382. However, there must be an acquisition of property by someone.
        Compensation need not be paid for diminished property value resulting from action.
      - of property
        
        What has been deemed to be an acquisition of 'property' has been broad and varied
        
        HCA understands 'property' in its widest sense
        
        Exclusive possession of land without title: Minister for the Army v Dalziel (1944) 68 CLR 261
        https://bit.ly/3rJJFUh
        
        Company shares: Bank of New South Wales v Commonwealth (1948) 76 CLR 1
        https://bit.ly/3Bgeovb
        
        Confidential information protected by equitable remedies: Smith Kline v Secretary, Department of Community Services (1991-1992) 173 CLR 194
        https://bit.ly/35XAoPU
        
        Choses in action (rights to sue): Georgiadis v Telecommunications Commission (1994) 179 CLR 297
        https://bit.ly/3HOH1Cq
        
        Statutory rights to government payments: Health Insurance Commission v Peverill (1994) 179 CLR 226
        https://bit.ly/3rKxfLQ
      - Any state or person
      - any purpose in respect of which Parliament has power to make laws
      - on just terms
        
        'Just terms' do not necessarily mean market value. However market value at the time of acquisition should be the starting point: Nelungaloo v Commonwealth (1948) 75 CLR 495, 507 (Williams J)
        https://bit.ly/3gDRLHE
        
        The compensation required is understood to be a fair amount that takes into account both the property owner's interests and the public interest in the acquisition.
        
        BATA Case
        
        Bitish American Tobacco Australasia v Commonwealth (BATA Case) [2013] HCA 43
        https://bit.ly/34SyCPr
        The case concerned the Tobacco Plain Packaging Act 20011 (Cth), which regulated the appearance of tobacco packaging and the use of trademarks on packaging.
        The plaintiffs argued that this legislation extinguished intellectual property rights.
        Six HCA judges again held there had been no acquisition of property, but merely regulation of its use.
  - - - s 116 is viewed as having two llimbs
        
        The establishment clause prohibits the Commonwealth fro establishing a national religion or imposing religious observance. It also rules out imposing a religious tet for any office under the Commonwealth.
        
        The free exercise clause prevents the Commonwealth from interfering with the free exercise of religious beliefs.
        
        The right does not apply to state laws: Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1 https://bit.ly/3LtnJ7S
      - Definition of Religion
        
        HCA have defined religion broadly in the context of s 166.
        A religion involves belief in a transcendent or supernatural reality and an adherence to a set of rules or conduct with some supernatural significance. It does not necessarily involve belief ina supreme or unified deity.
        See: Jehovah's Witnesses Case (1943) CLR 116, 123 (Latham CJ)
        https://bit.ly/3LvoaOG
      - Establishment Clause
        
        The establishment clause was discussed in Attorney General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559
        https://bit.ly/3oJgxdL
        Black concerned the issue of whether it was constitutional for the COmmonwealth to fund religious schools. The Court upheld the funding, interpreting s 116 narrowly.
        Barwick CJ and Wilson J ruled that the term 'establishment' in s 116 is confined to establishment of a religion as a national or Commonwealth institution.
        Gibbs and Mason JJ read the section even more narrowly. 'Establishment' only applies to the designation of an official state religion.
- - - - The prohibitory rules, which prohibit certain ways of allocating judicial power
      - The permissive rules which recognise certain limited exceptions to the prohibitory rules
    - - A court in the strict sense is a body whose functions are primarily judicial in character. Federal judicial power can only be vested in a body that is primarily judicial in function.
        This is particularly relevant in relation to states courts exercising federal jurisdiction.
    - - In Alexander's it was established that bodies exercising federal judicial power are required to be primarily judicial in function.
        In Boilermakers, it established that non-judicial power cannot be vested in the HCA or other federal courts. This strengthened the rule in Alexander's in relation to federal courts, they must be exclusively judicial in function.
        Alexander's is therefore now restricted to state courts exercising federal judicial power.6
  - - - Federal courts exerciing judicial power must be correctly constituted under s 72.
        
        They must qualify as chapter III courts
        
        The requirements of s 72 are:
        
        Judges are appointed by the Governor-General in Council
        
        Judges must be appointed with tenure until the age of 70, when they must retire
        
        Judges are removable only on a special vote of both Houses of Parliament on grounds of proven misbehaviour or incapacity
        
        The remuneratin of judges must not be reduced during their terms of office
      - Alexander's Case (1918) 25 CLR 434
        
        Alexander's Case illustrates this principle.
        HCA judges were appointed for seven year renewable terms to Arbitration Court. The question arose whether this mode of appointed contravened s 72.
        Griffith CJ thought the arrangement was valid. Four other judges failed to resolve the issue.
        However, Barton and Powers JJ disapproved. They said a judge already holding tenure cannot be appointed to another court unless she or he also enjoys tenure on the second body.
      - Federal Courts
        
        Chapter III requirements/Polyukhovich
      - State courts with federal jurisdiction
        
        Kable principle and institutional integrity
- - - - Citizens cede autonomy to be afforded protections of governmental policy
        
        Health
        
        Roads and Infrastructure
        
        Ambulance
        
        Police
      - Australian Constitutionalism
        
        Common law doctrine of legality
        
        Rule of law
        
        Federal division of powers
        
        Comprehensive judicial review
        
        Separation of powers
        
        Representative and responsible government