FEDERAL CONSTITUTIONAL LAW

DETAILED READING GUIDE S1 2017

The prescribed text is George Williams, Sean Brennan & Andrew Lynch, Blackshield &
Williams Australian Constitutional Law & Theory: Commentary and Materials (6th ed,
Federation Press, 2014) (hereafter 'Casebook').

Assessment tasks and class discussion are based on the prescribed readings from the 6th
edition of the Casebook. However, we recognise some students who hold a copy of the
5th edition from the earlier, related course may face difficulties buying a fresh copy of
the 6th edition. The reading guide refers to the roughly equivalent passages in the 5th
edition in square brackets. But please be aware that you will need to consult the 6th
edition to ensure you are familiar with revised and new material that will form part of the
assessable material this semester. This is your responsibility not your teacher's.

Format of this Reading Guide and classes

Before class:

For each class, a number of compulsory readings have been set. Please make sure you
have completed these readings before class. There are a number of Background
Questions that have been designed to guide your reading. You should be able to answer
these questions comfortably before class. In addition, you should also read the
newspapers and be prepared to discuss any constitutional issues of interest that arise as
the course progresses. To assist you in identifying these stories, you can follow the
UNSW Federal Constitutional Twitter hashtag #unswfedcon. This hashtag is embedded
in the Moodle site for all students to access.

In Federal Constitutional Law, it is important to be precise when referring to the

principles established by cases, including having an understanding of which judges were
involved in them. As such, it is important for you to complete the readings in the
Casebook rather than relying on short summaries of what the case might have stood for
as these will lack the detail and precision of what is required in this course. Further,
because we will frequently be referring to exactly what was said, and by whom, it is
important that you bring a copy of the Casebook to class with you.

You should also try to read through a couple of complete cases in the course of the
semester. We will be doing this with Kartinyeri v Commonwealth (1998). There is also an
extended case extract of McCloy v NSW (2015).

1
In class:

Class time will not be spent lecturing on the readings. It will be devoted to:
A guided discussion of the more difficult concepts raised by the readings to
ensure understanding of the material;
Critical discussion of the cases and the perspectives provided in the different
readings. The Reading Guide includes a list of Discussion Questions that will
form the basis of this discussion. You should have read through these questions
and be ready to contribute to the discussion. The type of critical engagement these
Discussion Questions require will be assessed in the essay-style questions in the
final examination.
Answering problem-based questions of a similar style to those in the mid-session
assignment and final examination.

2
FUNDAMENTALS OF AUSTRALIAN CONSTITUTIONAL LAW

Reading:
The Constitution
Casebook 1362-79 [1371-87] (Appendix 1)

Discussion Questions:
What is/are the purpose(s) of a Constitution?
Must Constitutions be written? What are the differences in the operation of
written v unwritten constitutional systems?
What do you already know about the Commonwealth Constitution?
What is/are the purpose(s) of the Commonwealth Constitution?
What rights are protected in the Constitution?
Have a look at the news and be prepared to discuss some topical constitutional
issues.

3
THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION A

Reading:
Pre-Engineers
Casebook 242-53 [254-62] (Chapter 6, sections 3-5) [Chapter 6, sections 1-3]
The Engineers case
Casebook 253-61 [264-70] (Chapter 6, section 6) [Chapter 6, section 4]
The Jumbunna principle
Casebook 182-86 [275-79] (Chapter 5, section 2) [Chapter 6, section 6]

Cases:
Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129
Victoria v Commonwealth (1971) 122 CLR 353
Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309

Background Questions to guide reading:

What is the Jumbunna principle?
What were the doctrines of reserved State powers and implied immunity of
instrumentalities?
What were the facts of the Engineers Case?
What general approach to constitutional interpretation was adopted by the High
Court in the Engineers Case?
How was this approach applied to the facts in Engineers Case?
Why did that approach result in the demise of the reserved State powers doctrine?

Discussion Questions:
What does Engineers tell us about the relationship between ss 51, 107 and 109 of
the Constitution? Is this a persuasive explanation of this relationship?
Should the Constitution be interpreted by reference to settled rules of statutory
construction?
What do you think is the underlying motivation for the decision in Engineers?
If Latham, Windeyer and Gageler are correct in describing the decision as a
political one, is it legitimate for the High Court to adopt this approach to
constitutional interpretation?
In Engineers, what did the High Court regard as the proper relationship between
the courts and the legislature/executive? Do you agree with this approach?

4
THE HIGH COURT AND CONSTITUTIONAL INTERPRETATION B

Reading:
Literalism, legalism and judicial choice
Casebook 170-82 [270-75; 284-88] (Chapter 5, section 1) [Chapter 6, section 5; Chapter
7, section 2]
The dead hand and the living tree
Casebook 186-213 [288-317] (Chapter 5, section 3) [Chapter 7, section 3]

Background Questions to guide reading:

What is originalism? Consider the differences between intentional originalism,
textual originalism and incremental accommodation.
What is strict and complete legalism? How does it differ, if at all, from a
literalist approach to interpretation?
What is a purposive and a progressive approach to constitutional
interpretation?

Discussion Questions:
Why are the methods the High Court uses to interpret the Constitution important?
What was the approach that was adopted by the High Court in the Engineers
Case?
What are the arguments in support of an originalist interpretation of the
Commonwealth Constitution? Are you persuaded by them?
What are the arguments for and against a legalistic approach to interpretation?
How useful are the labels activist and legalist?
What are the arguments for and against a purposive / progressive approach to
interpretation
Do you think it is desirable and possible for the Court to adopt a single and
consistent approach to constitutional interpretation?
How would you approach constitutional interpretation?

5
THE HIGH COURT AND CHARACTERISATION - A

Reading:
Characterisation
Casebook 760-64 [741-45] (Chapter 17, section 1) [Chapter 16, section 1]
Dual characterisation
Casebook 764-73 [745-54] (Chapter 17, section 2) [Chapter 16, section 2]
Interaction between heads of power
Casebook 773-78 [754-59] (Chapter 17, section 3) [Chapter 16, section 3]
Subject matter and purpose powers
Casebook 778-779 (Chapter 17, section 4) [Chapter 16, section 4]
Subject matter powers
Casebook 779-788 (Chapter 17, section 5) [Chapter 16, section 5]

Cases:
Bank Nationalisation Case (1948) 76 CLR 1
Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1
Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
Actors and Announcers Equity v Fontana Films (1982) 150 CLR 169
Pidoto v Victoria (1943) 68 CLR 87
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1
Stenhouse v Coleman (1944) 69 CLR 457
Re F; Ex parte F (1986) 161 CLR 376
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479
Australian National Airways Pty Ltd v Commonwealth (ANA Case) (1945) 71 CLR 29
DEmden v Pedder (1904) 1 CLR 91
Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55
Burton v Honan (1952) 86 CLR 169

Background Questions:
What is the High Courts current approach to characterisation?
What are the differences in approaches to characterisation between subject-matter
and purposive powers?
Which powers are subject matter powers and which are purposive powers?
What approach does the High Court take to the relationship between the heads of
power?
What test of connection is applied to the incidental powers?

6
Discussion Questions:
What is the purpose of characterisation?
To what extent does the prospect of dual characterisation properly permit of a
capacity for judicial choice?
Do you find the distinction drawn between the purposive and subject matter
powers persuasive?
What do you think is the likely result of the High Courts current approach to
characterisation for the operation of the Australian federal system?
What is the function of the implied incidental power?

7
THE HIGH COURT AND CHARACTERISATION - B / OTHER
FUNDAMENTALS

Reading:
Proportionality - purpose powers
Casebook 788-801 (Chapter 17, section 6) [Chapter 16, section 6]
Precedent and overruling
Casebook 480-88 [584-92] (Chapter 11, section 5(b)) [(Chapter 12, section 5(b))]
Reading down and severance
Casebook 473-76 [578-81] (Chapter 11, section 4(b)) [Chapter 12, section 4(b)].

Cases:
Polyukhovich v Commonwealth (1991) 172 CLR 501
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Leask v Commonwealth (1996) 187 CLR 579
Rowe v Electoral Commissioner (2010) 243 CLR 1
Australian Agricultural Co v Federated Engine-Drivers & Firemens
Association (Engine-Drivers Case) (1913) 17 CLR 261
John v Federal Commissioner of Taxation (1989) 166 CLR 417
Wurridjal v Commonwealth (2009) 237 CLR 309
Stevens v Head (1993) 176 CLR 433
Queensland v Commonwealth (Second Territory Senators Case) (1977) 139 CLR 585
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1

Background Questions:
How extensive is use of the proportionality test in the characterisation process?
What is the consequence if the Commonwealth Parliament lacks legislative power
to enact a provision in an Act, or a provision of an Act violates an express or
implied guarantee in the Constitution?
Explain the difference between reading down and severance.
What value does the doctrine of precedent have in the judicial reading of the
Constitution by the High Court?

Discussion Questions:
For what underlying purpose does the Court adopt a proportionality test in
characterisation? In constitutional limitations?
How acceptable is the role of proportionality in the characterisation process?
Is reading down/severance a legitimate function for the courts to perform?

8
 Should the High Court adopt a more liberal or restrictive approach to overturning
its own decisions in constitutional cases?
May individual judges depart from past decision with which they disagree? What
is the role of the dissenting judge?

9
THE EXTERNAL AFFAIRS POWER A

Reading:
Relations with other countries
Casebook 896-98 [878-80] (Chapter 20, section 3(a)) [Chapter 19, section 4(a)]
Matters external to Australia
Casebook 898-902 [880-84] (Chapter 20, section 3(b)) [Chapter 19, section 4(b)]
Implementing treaties first approaches
Casebook 903-908 [885-91] (Chapter 20, section 4(a)-(b)) [Chapter 19, section 5(a)-(b)]

Cases:
R v Sharkey (1949) 79 CLR 121
NSW v Commonwealth (1975) 135 CLR 337 (Seas & Submerged Lands Case)
Thomas v Mowbray (2007) 233 CLR 307
Polyukhovich v Commonwealth (1991) 172 CLR 501
Horta v Commonwealth (1994) 181 CLR 183
R v Burgess; Ex parte Henry (1936) 55 CLR 608

Background Questions:
What are the different aspects of the external affairs power? Are they subject
matter powers or purposive?
After the cases of Horta v Commonwealth (1994), XYZ v Commonwealth (2006)
and Pape v Commissioner of Taxation (2009), is mere externality enough to
activate the external affairs power?
In what circumstances has the High Court upheld legislation on the basis it
sufficiently affects Australias relations with other countries?
What are the two issues that the Court considers in relation to the treaty
implementation aspect of the external affairs power?
Does any standard approach to the legislative implementation of treaties emerge
from R v Burgess; Ex parte Henry (1936)?
Discussion Questions:
How can we know whether legislation sufficiently affects Australias relations
with other countries as to be within the power?
By reference to Brennan Js judgment in Polyukhovich v Commonwealth (1991),
consider whether there should be limits on the geographically external aspect of
the power.
In the early case of R v Burgess; Ex parte Henry (1936), what are the judges
concerns about the legislative implementation aspect of the external affairs
power? Are these legitimate concerns that should affect the Courts approach to
interpretation?

10
THE EXTERNAL AFFAIRS POWER B

Reading:
Treaty implementation modern jurisprudence
Casebook 908-29 [891-912] (Chapter 20, section 4(c)-(e)) [Chapter 19, section 5(c)-(e)]

Cases:
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case)
Richardson v Forestry Commission (1988) 164 CLR 261
Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act Case)
Pape v Commissioner of Taxation (2009) 238 CLR 1

Background Questions:
What three approaches to the Commonwealths legislative power to implement
treaties did the Court adopt in Koowarta v Bjelke-Petersen (1982)? What was the
ratio of the case?
What approach was adopted in Tasmania v Commonwealth (1983) (Tasmanian
Dam Case?
How did the Court subsequently elaborate upon the approach taken in Tasmanian
Dam Case in Victoria v Commonwealth (Industrial Relations Case) (1996))?
After Pape v Commissioner of Taxation (2009), does the external affairs power
extend to the power to implement international recommendations?
Is partial implementation of a treaty permissible?

Discussion Questions:
What are the arguments for/against the following approaches to the treaty
implementation aspect of the external affairs power?
(a) treaties must be indisputably international in character
(b) treaties must be on a matter of international concern
(c) any bona fide treaty may be implemented into domestic law
Was the result in Tasmania v Commonwealth (1983) the final blow to real
federalism?

11
THE ECONOMIC POWERS A

Reading:
The trade and commerce power
Casebook 802-815 [779-92] (Chapter 18, section 1) [Chapter 17, section 1]

The corporations power which corporations?

Casebook 815-27 [792-803] (Chapter 18, section 2(a)-(b)) [Chapter 17, section 2(a)-(b)]

Cases:
W & A McArthur Ltd v Queensland (1920) 28 CLR 530
Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29
R v Burgess; ex parte Henry (1936) 55 CLR 608
Wragg v New South Wales (1953) 88 CLR 353
Airlines of NSW v New South Wales (No 2) (1965) 113 CLR 54
OSullivan v Noarlunga Meat (1954) 92 CLR 565
A-G (WA); Ex rel Ansett v ANAC (1976) 138 CLR 492
Pape v Commissioner of Taxation (2009) 238 CLR 1
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468
R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533
R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR
190
State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282
Fencott v Muller (1983) 152 CLR 570
Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case)
New South Wales v Commonwealth (1990) 169 CLR 482 (Incorporation Case)

Background Questions:
What does trade and commerce in s 51(i) refer to?
To what extent can the interstate trade and commerce power extend to the
regulation of intrastate trade and commerce?
What initial limits were proposed to the scope of s 51(xx) by the majority in
Huddart, Parker & Co Pty Ltd v Moorehead (1909) and Strickland v Rocla
Concrete Pipes Ltd (1971)?
Can the Commonwealth regulate production under the interstate trade and
commerce power?
What are the two questions that must be answered to determine whether a
corporation is bound by a law that purports to rely on s 51(xx)?
By reference to authority, state the current test applied by the High Court to

12
 determine whether a corporation is a trading or financial corporation.
What does trading and financial mean in s 51(xx)?
To what extent does s 51(xx) allow the Commonwealth to regulate the
incorporation of constitutional corporations?

Discussion Questions
What sort of information is required to determine whether a law is supported
under the trade and commerce power?
To what extent has the Australian approach to the trade and commerce power
differed from that taken in the United States? What effect has this had on the
federation?
Is a percentage approach to the trading/financial activities for determining
whether a corporation is a constitutional corporation helpful?
What are the advantages and disadvantages of adopting a substantial trading
activities test to determining whether a corporation is a trading/financial
corporation?

13
THE ECONOMIC POWERS B

Reading:
The corporations power reach of the power
Casebook 828-44 [804-23] (Chapter 18, section 2(c)) [Chapter 17, section 2(c)-(d)]

Cases:
Actors and Announcers Equity v Fontana Films (1982) 150 CLR 169
Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case)
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1

Background Questions:
Can the Commonwealth regulate any activity of a foreign, trading or financial
corporation? Or is it necessary for the Commonwealth to demonstrate that a law is
sufficiently connected to a 51(xx) corporation in its capacity as a foreign,
trading and/or financial corporation?
What is the High Courts current position on whether the Commonwealth can
regulate agents of constitutional corporations (such as directors and employees)?
What is the High Courts current position on whether the Commonwealth can
regulate the conduct of third parties towards corporations?
Does the decision of Re Dingjan; Ex parte Wagner (1995) simply offer authority
for the proposition that all activities of a sub-contractor engaged by a
constitutional corporation will also fall within the Commonwealths legislative
power under s.51(xx)?

Discussion Questions
What is it about s 51(xx) which explains the trepidation of members of the High
Court towards its interpretation?
In Work Choices (2006), the majority judgment joint judgment asked:

when it is said that there is a point at which the legislative powers of

the federal Parliament and the legislative powers of the States are to be
divided lest the federal balance be disturbed, how is that point to be
identified?

By reference to decided case law, consider whether or not any attempt to discern a
place for federal balance in the construction of Commonwealth legislative
powers is fundamentally incompatible with the methodology favoured by the
Court in the Engineers Case (1920).

14
 In Work Choices, why did the majority reject the distinctive character test?
Why did the minority in Work Choices say that the majority was wrong to rely
upon the quote of Gaudron J in Re Pacific Coal Pty Ltd; ex parte Construction,
Forestry, Mining and Energy Union (2000)?

15
THE RACES POWER A

Reading:
Interpretation of terms special laws, necessary, and people of any race
Casebook 986-1008 [972-993] (Chapter 22, sections 1-4) [Chapter 21, sections 1-4]

Cases:
Kartinyeri v Commonwealth (1998) 195 CLR 337 (Hindmarsh Island Bridge case)
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case)
Western Australia v Commonwealth (1995) 183 CLR 373 (Native Title Act case)

Background Questions:
What mention does the Constitution make of Australias Indigenous peoples?
When does a person belong to the people of any race?
Can a law be made for some of the people of a race?
Can a law of general application be special?
Is s 51(xxvi) limited to beneficial laws?

Discussion Questions
What was the purpose of s 51(xxvi) when it was enacted in 1900, and what
assumptions underpinned this purpose?
What political consequences do you think the 1967 referendum might have had?
How do concepts of parliamentary sovereignty and popular sovereignty collide in
Kirby Js dissent in Kartinyeri v Commonwealth (1997)?
Whats the relevance of principles of international law, community values and
human rights to the interpretation of s 51(xxvi)?
Who decides whether a s 51(xxvi) law is necessary? Do you think this position
vests power in the right constitutional institution?
In Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR
373, the joint judgment opined that:

If the requirement that a law enacted under s 51(xxvi) be special were held to evoke a
judicial evaluation of the needs of the people of a race or of the threats or problems that
confronted them in order to determine whether the law was, or could be deemed to be,
necessary, the Court would be required to form a political value judgment. Yet it is
clear that that judgment is for the Parliament , not for the Court. If the Court retains
some supervisory jurisdiction to examine the question of necessity against the possibility
of a manifest abuse of the races power, this case is not the occasion for an examination of
that jurisdiction.

16
In the later case of Kartinyeri v Commonwealth (1998) 195 CLR 337, some
members of the Court considered its ability to apply a test of manifest abuse in
respect of the races power, as suggested in the passage above. Through a
consideration of the opinions in that case, assess the limits of judicial review as a
corrective against measures which impact negatively upon human rights.

17
THE RACES POWER B AND CRITICAL JUDGMENTS EXERCISE

Reading:

Kartinyeri v Commonwealth (1998) 195 CLR 337 (Hindmarsh Island Bridge case) (to be
read in full)

Special Exercise:

Consult Gabrielle Appleby & Rosalind Dixon (eds), The Critical Judgments
Project (2016) and rewrite Kartinyeri as you think it ought to have been decided.

FULL INSTRUCTIONS TO BE PROVIDED DURING THE SEMESTER

18
THE TAXATION AND GRANTS POWERS

Reading:
What is a tax?
Casebook 1010-18 [1021-28] (Chapter 23, section 1(a)) [Chapter 23, section 1(a)]
Fees for services
Casebook 1018-22 [1028-33] (Chapter 23, section 1(b)) [Chapter 23, section 1(b)]

The early cases

Casebook 1067-69 [1083-85] (Chapter 24, section 2(a)) [Chapter 24, section 2(a)]
The uniform tax cases
Casebook 1069-77 [1085-93] (Chapter 24, section 2(b)) [Chapter 24, section 2(b)]
Limits?
Casebook 1077-80 [1097-1100] (Chapter 24, section 2(c)) [Chapter 24, section 2(d)]

Cases:
Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263
Air Caledonie International v Commonwealth (1988) 165 CLR 462
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480
Northern Suburbs Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555
Luton v Lessels (2002) 210 CLR 333
Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2011) 244 CLR 97
Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133
Parton v Milk Board (1949) 80 CLR 229
Harper v Victoria (1966) 114 CLR 361
Victoria v Commonwealth (Federal Roads Case) (1926) 38 CLR 399
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR
735
WR Moran Pty Ltd v Deputy Commissioner of Taxation for New South Wales [1940] AC
838
South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373
Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR
559

Background Questions:
Why does the meaning of a tax in the Constitution matter?
What are the positive and negative characteristics of a tax?
How is the element of compulsoriness approached by the High Court?
On what issues did the Court split in Australian Tape Manufacturers Association

19
 Ltd v Commonwealth (1993)?
Does Tape Manufacturers mean that any payment to Consolidated Revenue must
be a tax?
What is the test for determining whether an exaction is a fee for services or a tax?
What are the limits on the Commonwealths power to attach conditions to grants
made to the States under s 96 of the Constitution?

Discussion Questions:
Does Airservices Australia v Canadian Airlines International Ltd (1999) make the
fee for services exception more realistic in line with commercial practice, or does
it simply muddy the clear waters of Parton v Milk Board (1949) and Harper v
Victoria (1966)?
In respect of the Uniform Tax Cases, did the Commonwealth legislative package
prevent the States from raising income tax?
Is the reasoning in the Uniform Tax Cases persuasive? What appears to be the
basis for Dixon Js support of the outcome in the Second Uniform Tax case?
How has the High Courts interpretation of the grants power shaped Australias
federation?

20
THE DEFENCE POWER

Reading:
General scope
Casebook 845-57 [825-37] (Chapter 19, sections 1-4) [Chapter 18, sections 1-4]
Cold War: the Communist Party Case
Casebook 863-76 [843-56] (Chapter 19, section 6) [Chapter 18, section 6]
Terrorism and national security
Casebook 876-84 [857-64] (Chapter 19, section 7) [Chapter 18, section 7]

Cases:
Andrews v Howell (1941) 65 CLR 255
Stenhouse v Coleman (1944) 69 CLR 457
R v Foster (1949) 79 CLR 43
Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1
Attorney-General (Vic) v Commonwealth (Clothing Factory Case) (1935) 52 CLR
533
Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist
Party Case)
Marcus Clark & Co Ltd v Commonwealth (Capital Issues Case) (1952) 87 CLR
177
Thomas v Mowbray (2007) 233 CLR 307

Discussion Questions:
How is the defence power different from those we have considered so far?
Who should decide whether there is a sufficient threat to the defence of Australia
to activate the defence power?
Does the Communist Party Case have anything to do with the protection of civil
liberties?
How useful is section 51(vi) in supporting the Commonwealths anti-terrorism
laws?

21
INCONSISTENCY OF LAWS

Reading:
The meaning of invalid and prevail
Casebook 297-98 [332] (Chapter 8, section 1) [Chapter 8, section 1]
The tests of inconsistency
Casebook 298-310 [333-45] (Chapter 8, section 2) [Chapter 8, section 2]
Manufacturing inconsistency
Casebook 311-321 [347-58] (Chapter 8, section 4) [Chapter 8, section 4]
Manufacturing consistency
Casebook 321-331 [358-64] (Chapter 8, section 5) [Chapter 8, section 5 and discussion in
6th edition of Momcilovic ]

Cases:
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373
Telstra Corporation v Worthing (1997) 197 CLR 61
APLA Ltd v Legal Services Commissioner (NSW) (2005) 219 ALR 403
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Ex parte McLean (1930) 43 CLR 472
Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47
Ansett Transport Industries v Wardley (1980) 142 CLR 237
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330
Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392
West v Commissioner of Taxation (NSW) (1937) 56 CLR 657
Wenn v Attorney-General (Vic) (1948) 77 CLR 84
Airlines of New South Wales Pty Ltd v NSW (No 2) (Second Airlines Case) (1965) 113
CLR 54
Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR
545
Viskauskas v Niland (1983) 153 CLR 280
University of Wollongong v Metwally (1984) 158 CLR 447
Momcilovic v The Queen (2011) 245 CLR 1

Background Questions:
What are laws of the State and the Commonwealth for the purposes of s 109?
How has the High Court interpreted invalid in s 109?
What are the three different tests of inconsistency under s 109? How does the test
of alter, impair, detract sit in this framework?

22
 What questions must be asked in the covering the field test?
What is operational inconsistency? Is it a separate test of inconsistency?
Can the Commonwealth manufacture inconsistency through an express provision?
What, if any, are the limits on this?
Can the Commonwealth avoid inconsistency between a Commonwealth provision
and State laws by including an express provision to that effect? What, if any, are
the limits on this?

Discussion Questions:
What does the covering the field test do to the federal balance?
Can Wardley (1980) and Goulden (1986) be reconciled?
What is the role of statutory interpretation in determining an inconsistency under s
109?
Would it be a complete solution to the problem of uncertainty about the operation
of s 109 for the Commonwealth to include an express provision in all legislation
stating whether or not the legislation was intended to override State law?

23
THE FEDERAL COMPACT MELBOURNE CORPORATION PRINCIPLE

Reading:
The Melbourne Corporation Principle
Casebook 1084-91 [1104-11] (Chapter 25, section 2(a)) [Chapter 25, section 2(a)]
Restatement I: two principles
Casebook 1091-1100 [1111-21] (Chapter 25, section 2(b))
Restatement II: one principle
Casebook 1101-13 [1121-32] (Chapter 25, section 2(c)) [Chapter 25, section 2(c)]
Cases:
Melbourne Corporation v Commonwealth (1947) 74 CLR 31
Victoria v Commonwealth (1971) 122 CLR 353 (Payroll Tax Case)
Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam Case)
Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192
Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188
Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act Case)
Austin v Commonwealth (2003) 215 CLR 185
Clarke v Commissioner of Taxation (2009) 258 ALR 623
Fortescue Metals Group Ltd v Commonwealth (2013) 300 ALR 26
New South Wales v Commonwealth (Work Choices case) (2006) 229 CLR 1

Background Questions:
What is the principle voiced in Melbourne Corporation (1947)? Before Austin in
2003, how did the Court interpret the Melbourne Corporation principle?
In Australian Education Union (1995) when did the Court hold that a
Commonwealth law about State public servants would violate the principle?
How did the Court apply the Melbourne Corporation test in the Industrial
Relations Act Case (1996)? How was s 6 read down?
What is the current restatement of the Melbourne Corporation principle?
Discussion Questions:
What is the source of the immunity of the States from Commonwealth laws?
How can the Melbourne Corporation principle be squared with that of the
Engineers case?
Are the distinctions drawn by the majority in Australian Education Union viable
or do you agree with Dawson Js dissent?
What is the continued relevance of discrimination within the restatement of the
Melbourne Corporation principle?
What was the relevance of discrimination in the majoritys reasoning in Austin?
Does Work Choices require a reappraisal of the importance of the principle of
federal immunity from Melbourne Corporation?

24
FREEDOM OF INTERSTATE TRADE AND COMMERCE A

Reading:
Individual rights theory as illustrated by the Bank Nationalisation Case
Casebook 1198-1201 [1199-1201] (paras 27.15-27.18 inclusive) [extract from Chapter 27,
section 1(a) starting at middle of 1199 and ending at bottom of 1201]
Cole v Whitfield
Casebook 1206-14 [1208-17] (Chapter 27, section 1(b)) [Chapter 27, section 1(b)]

Cases:
Bank of NSW v Commonwealth (1948) 76 CLR 1
Commonwealth v Bank of New South Wales [1950] AC 235
Cole v Whitfield (1988) 165 CLR 360

Background Questions:
What is the distinction between the individual right and free trade theories
underpinning the High Courts interpretation of s 92?
What was the High Courts approach to the interpretation of s 92 in Cole v
Whitfield? What is was the test developed in that case?
What did the High Court conclude about the Tasmanian regulation at issue in
Cole?

Discussion Questions:
How important was s 92 to the federation movement?
What is the relationship between ss 92 and 90 of the Constitution?
What is the problem for the High Court in relation to s 92?
How did the High Court reach the conclusion that, despite its broad language,
there are implicit qualifications in s 92?
How is s 92 reconciled with s 51(i)?
Consider the ways in which the unanimous opinion in Cole v Whitfield might be
said to be reflective of some of the theories of constitutional interpretation
considered earlier in the semester.
Why are State laws more likely to infringe s 92 than Commonwealth laws?
Analyse the following remarks of Michael Detmold with reference to the case law
on ss 92 and 96:

Where there is a choice as to meaning (as there usually is), the practical question
is not what the text means, but which meaning better serves the governance of the
Commonwealth. Of course, the text has a very important status in this practical
question ... It is the authentic text, the one that all may look to for constitutional

25
guidance; and the governance of the Commonwealth is not served by the
invention of new text for then there would be no authentic text. It is the text and
none other which is to be applied. But use and function, the practical questions,
are primary over meaning.

26
FREEDOM OF INTERSTATE TRADE AND COMMERCE B

Reading:
Developments since Cole v Whitfield
Casebook 1214-26 [1217-26] (Chapter 27, section 1(c)) [Chapter 27, section 1(c)]

Cases:
Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436
Betfair Pty Limited v Western Australia (2008) 234 CLR 418
Betfair Pty Ltd v Racing New South Wales (2012) 286 ALR 221
Sportsbet v New South Wales (2012) 286 ALR 404

Background Questions:
How was regulatory exception in Cole developed in Castlemaine?
On what basis did the majority and minority reasoning diverge in Bath v Alston
Holdings?
Since Betfair I, how has the High Court formulated the regulatory exception?
What is the relevance of substitutability to applying s 92?
What is the relevance of the individual trader in determining whether a provision
breaches s 92?

Discussion Questions:
The test formulated in Cole v Whitfield particularly as applied in Castlemaine
and Bath appears to require the Court to look to legislative purpose in assessing
whether a burden is of a protectionist kind. Is this legitimate from an
interpretative or methodological perspective?
Do the more recent decisions in Betfair I and II and Sportsbet clarify the
relevance of legislative purpose to possible applications of section 92?
What is the role of proportionality in determining whether s 92 has been
breached? To what extent does this test require the Court to engage in a subjective
evaluation of the regulatory measure?
What was the relevance of the contemporary economic context including the
national competition policy and the information economy in the majority
judgment in Betfair I? Do you think was a legitimate influence in their approach?
Can you reconcile the approaches of the joint judgment in Sportsbet v New South
Wales to a consideration of the practical operation of the fee with the approach of
the majority in Bath?

27
EXPRESS GUARANTEES TRIAL BY JURY AND FREEDOM OF RELIGION

Reading:
Trial by jury
Casebook 1156-67 [1155-65] (Chapter 26, section 4) [Chapter 26, section 2]

Freedom of religion
Casebook 1173-83 [1165-74] (Chapter 26, section 5(b)) [Chapter 26, section 3]

Cases:
R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556
Kingswell v R (1985) 159 CLR 264
Cheng v The Queen (2000) 203 CLR 248
Brown v R (1986) 160 CLR 171
Cheatle v The Queen (1993) 177 CLR 541
R v LK (2010) 241 CLR 177
Alqudsi v The Queen [2016] HCA 24 (extracts to be provided on Moodle)
Krygger v Williams (1912) 15 CLR 366
Adelaide Company of Jehovahs Witnesses Inc v Commonwealth (1943) 67 CLR 116
Church of The New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120
Kruger v Commonwealth (1997) 190 CLR 1
Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR
559

Background Questions:
Does s 80 apply in the territories?
Who determines whether there is a trial on indictment?
Can a trial by jury be waived?
If a trial is on indictment, what does s 80 guarantee? What are the functional
attributes of a trial by jury?
What do the different limbs of s 116 guarantee?
Does s 116 apply in the territories?
What is religion? Does the freedom of religion only protect the right to have a
religion?
What does free exercise of religion mean, and what is the relevance of the
purpose of the law to determining whether a law infringes this limb of s 116?
What does establishment of a religion mean?

Discussion Questions:
What are the arguments in favour and against a narrow reading of s 80?

28
 Is McHugh Js defence of the status quo in respect of s 80 in Cheng v The Queen
(2000) convincing?
Why was the establishment clause included in s 116 (see DOGS Case)? Is this a
legitimate influence in its interpretation?
Which of the three tests for religion in the Jehovahs Witness Case do you agree
with?
What two factors have contributed to the failure of s 116 as a tool of rights
protection?
Does Gaudron Js opinion in Kruger create opportunities for an expanded
operation of s 116 or merely explain its present effect?
Should religious practices be free from all laws?

29
IMPLIED FREEDOM OF POLITICAL COMMUNICATION - A
Reading:
Introduction
Casebook 1259 [1257] (Chapter 28, section 1) [Chapter 28, section 1]
Launch of the implied freedom
Casebook 1261-73 [1259-71] (Chapter 28, section 3) [Chapter 28, section 3]
Expansion and division
Casebook 1273-84 [1271-82] (Chapter 28, section 4) [Chapter 28, section 4]

Cases:
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Australian Capital Television v Commonwealth (1992) 177 CLR 106
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
McGinty v Western Australia (1996) 186 CLR 140

Background Questions:
What is meant by representative government, and how is it reflected in the terms
of the Constitution?
Whats the relationship between representative government and political
communication?
What are the different approaches apparent in the judgments in Nationwide News
and ACTV v Commonwealth to drawing an implication that protects political
communication?
What types of matters are encompassed within the concept of political and
government protected by the implied freedom?
Is the freedom of political communication limited to discussions at election time?
Is the freedom limited to discussions between electors and their elected
representatives?
Is the freedom limited to discussions about Commonwealth matters?
Is the freedom absolute? If not, what are the limits on the freedom that the
different judges develop (focus particularly on the two-tier test of Mason CJ in
ACTV).
Whats the relationship between the common law and the Constitution?

Discussion Questions:
In the early cases on the implied freedom, Dawson J accused the majority of
betraying the principles of the Engineers Case. Was that criticism fair?
How are rights protected in the Australian constitutional system if not in the
written text of the Constitution itself?

30
 Would the 1950 Commonwealth ban on the Communist Party have fallen foul of
the principle in Australian Capital Television v Commonwealth?
Was the Court correct to apply the implied freedom to the common law of
defamation in Theophanous v Herald & Weekly Times Ltd (1994)?
The determination of whether a law violates the implied freedom requires some
sort of balancing act between the means adopted by the law against the objective
served by the law. Different approaches to this balancing exercise may lead to
different judicial views on the constitutional validity of a law. Does this
undermine the legitimacy of the implied freedom?

31
IMPLIED FREEDOM OF POLITICAL COMMUNICATION B

Reading:
The implied freedom confirmed
Casebook 1284-91 [1282-95] (Chapter 28, section 5) [Chapter 28, section 5]
The Politics of Protest
Casebook 1300-11 [1301-14] (Chapter 29, section 3) [Chapter 29, section 2]
Langes Two Questions
Casebook 1327-35 (Chapter 29, section 6) []
Online Supplement Unions NSW v New South Wales [2013] HCA 583 (extracts)
available at www.federationpress.com.au/supplements/
McCloy v New South Wales [2015] HCA 34 (extracts available on Moodle, students may
also find the following helpful: Anne Twomey, McCloy v New South Wales: Out with
US corruption and in with German proportionality on AUSPUBLAW (15 October 2015)
<http://auspublaw.org/2015/10/mccloy-v-new-south-wales/>)

Cases:
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Brown v Classification Review Board (1998) 82 FCR 225 (Rabelais case)
Coleman v Power (2004) 220 CLR 1
Wotton v Queensland (2012) 246 CLR 1
Monis v The Queen (2013) 295 ALR 259
Unions NSW v New South Wales [2013] HCA 583
McCloy v New South Wales [2015] HCA 34

Background Questions:
How did the High Court consolidate the approach to drawing the implication on
which the freedom to political communication is based in Lange?
What is the current statement of the two-step test for determining whether the
implied freedom of political communication (NB this is often referred to as the
Lange test, but it has been modified in Coleman v Power and more recently
expanded in McCloy v New South Wales)?
In Lange, how did the High Court apply the two-limbed test to the common law
of defamation?
Consider the points of commonality between the judges to try to determine the
ratio of Coleman v Power.
What types of communication fall outside of the concept of communication on
political and government matters?
Under which step of the Lange test is the extent of the burden relevant?
What were the constitutionally important points of distinction between the

32
 legislative provisions that were struck down in Unions NSW and those that were
upheld in McCloy v New South Wales?

Discussion Questions:
The Court is very careful to emphasise that the implied freedom is a limit on
legislative/executive power and not a source of personal rights. In practice, what
does this distinction mean?
Does the majority joint judgments approach in McCloy v New South Wales
(2015) give greater clarity for applying the proportionality test? Do you agree
with the criticisms of that approach made by Gageler J?
What is the relationship between the joint judgments approach to the second limb
in McCloy and Mason CJs two-tier test in ACTV?
Do you think the interpretative reading-down exercise in relation to s 7(1)(d) of
the Vagrants, Gaming and Other Offences Act 1931 (Qld), in which three of the
majority judges engaged (Gummow, Kirby and Hayne JJ) in Coleman v Power
was legitimate?
In Monis (2013), on what basis did the approach of French CJ and Hayne J differ
from Crennan, Kiefel and Bell JJ? Which approach do you prefer, and why?
Do you think that the implied freedom has failed, is failing, and will go on failing
(Heydon J in Monis)?
In both Monis and Unions NSW the High Court scrutinised the legitimacy of the
purpose of the provision. Is it appropriate for the High Court to engage in this
type of review, or do you think the Court should simply accept the legitimacy of a
legislative provision, and limit its review to the proportionality of the measure to
that objective?

33
JUDICIAL POWER & DETENTION A

Reading:
Introduction
Casebook 541-43 [640-41] (Chapter 13, section 1) [Chapter 14, section 1]
The incompatibility doctrine
Casebook 543-54 [641-52] (Chapter 13, section 2) [Chapter 14, section 2]
Preventive detention
Casebook 574-89 [672-90] (Chapter 13, section 5) [Chapter 14, section 5]

Cases:
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992)
176 CLR 1
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
New South Wales v Kable (2013) 298 ALR 144
Baker v The Queen (2004) 223 CLR 513
Fardon v Attorney-General (Qld) (2004) 223 CLR 575

Background Questions:
Revision questions:
o Where does the separation of powers derive from?
o What are the two limbs of the Boilermakers principle and what are the
exceptions to them?
Does the separation of powers apply at State level?
State the constitutional principle derived from the majority in Kable v DPP (1996).
Where does the incompatibility doctrine come from?
How does an implication from Chapter III, concerned as it is with federal judicial
power, result in the invalidation of a State law in Kable v DPP (1996)?

Discussion Questions:
Based on what constitutional text and structure did the High Court imply the
limits in the Kable principle? Is this reasoning consistent with the orthodox
legalism espoused by the Court in Engineers?
Is Kable simply yet another assault on the federal structure?
Did the Court retreat from the reasoning of Kable in the later cases of Baker and
Fardon? If so, what might explain the retreat?

34
JUDICIAL POWER & DETENTION B

Reading:
Protective detention
Casebook 554-57 [652-55] (Chapter 13, section 3) [Chapter 14, section 3]
Immigration detention
Casebook 557-74 [655-72] (Chapter 13, section 4) [Chapter 14, section 4]
Extract from Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014]
HCA 34, [21]-[28]
Control orders
Casebook 589-602 [728-39] (Chapter 13, section 6) [Chapter 15, section 6]

Cases:
Kruger v Commonwealth (1997) 190 CLR 1
Al-Kateb v Godwin (2004) 219 CLR 562
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous
Affairs (2004) 219 CLR 486
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1
Plaintiff M47-2012 v Director-General of Security (2012) 292 ALR 243
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34
Thomas v Mowbray (2007) 233 CLR 307
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638
Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1
(extracts to be provided on Moodle)

Questions:
What is the broad constitutional principle derived from Lim, what is its
relationship to the Boilermakers principle?
What exceptions exist to the principle that detention can only be lawfully ordered
by a Court?
How did the framework of exceptions help defeat the argument in Kruger v
Commonwealth (1997) that forced removal of Aboriginal children from their
families was unconstitutional?
How is it that a person may be held in detention indefinitely, with no prospect of
release, yet this is not seen as an instance of the Executive appropriating the
judicial power of punishment?
In Thomas v Mowbray, why did the majority find that the function conferred on
the federal judiciary to issue control orders was judicial in character? How did
the majority address each of Thomas arguments that the power was non-judicial?

35
Discussion Questions:
Do you think it is legitimate for a constitutional system to draw a distinction
between the governments power to detain citizens and non citizens?
In Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014)
French CJ, Hayne, Crennan, Kiefel and Keane JJ signaled that the reasonableness
of administrative detention will form part of the constitutional inquiry. Does this
constitute a shift in the jurisprudence?
Explain how Hayne Js judgment in Thomas v Mowbray differed from the
majority position in respect of Chapter III. Which position do you find the most
persuasive Hayne J or the majority and why?
Sir Anthony Mason has said: We ought to be wary of distilling too much from
Chapter III by way of implication. There is much to be said for the view that, if a
tenable interpretation leaves the Parliament with power to regulate a topic or
matter, that interpretation should be preferred to one which puts the topic or
matter beyond the reach of the Parliament by constitutionalizing it. Such an
interpretation would preserve greater flexibility instead of tying us to an
interpretation that may prove to be inconvenient and unalterable.

Discuss this comment with reference to the decisions of the High Court in Kable
and Al-Kateb.

36