Incidental powers

-    There is a general doctrine of implied incidental power at common law, giving power to legislate on matters incidental to the subject matter of a head of power
-    There is also an express incidental power provided by s 51 (xxxix) giving power to legislate with respect to matters incidental to the execution of powers vested
-    Note that these powers are distinct

Implied incidental power
-    General principle at common law – “where any power or control is expressly granted, there is included in the grant … every power and every control the denial of which would render the grant itself ineffective” – D’Emden v Pedder (1904);
-    Must be a sufficient connection - O’Sullivan v Noarlunga Meat (1954) per Fullagar J

-    ‘With respect to’  - extends powers broadly where there is a relevance or connection to the subject matter - Grannall v Marrickville Margarine (1955)

-    Implied incidental matter extends to matters ‘found necessary to effectuate its main purpose’ (of the power conferred) - Grannall v Marrickville Margarine (1955)

-    ‘It is enough that the provision is appropriate to effectuate the exercise of the power; one is not confined to what is necessary’ – Nationwide News v Wills (1992)

-    Must be a real connection (not sufficient that it ‘touches or concerns’ the subject matter) - Grannall v Marrickville Margarine (1955)

-    Example: The grant of power over interstate trade and commerce does not incidentally include ‘power to legislate for intrastate trade and commerce when its only relationship to interstate trade and commerce lies in the fact that the purpose of engagement in such intrastate activity is to conduce to the efficiency, competitiveness, and profitability of the interstate activity’ - A-G (WA) v ANA Commission (1976) per Stephen J

-    Use of the incidental power may be rejected if found to be disproportionate, it must be reasonably and appropriately adapted to the pursuit of an end within power – that is it must be reasonably proportionate – Nationwide News v Wills (1992) per Mason CJ

-    Incidental powers still subject to freedoms and prohibitions in Constitution - Grannall v Marrickville Margarine (1955)

Express incidental power

-    s 51 (xxxix) – gives power to legislate with respect to “matters incidental to the execution of any power vested by this Constitution in the Parliament … or in the Government of the Cth, or in the Federal Judicature, or in any department or officer of the Cth”

-    Confined to matters incidental to existing powers - enhances mode of execution of power (the implied incidental power enlarges the topic area over which legislation can be passed)

Davis v The Commonwealth (1988) 166 CLR 79

-    Facts: Committee set up to organise Bicentennial celebrations, they passed the Australian Bicentennial Authority Act 1980 that restricted the use of any terms or logos associated with the Bicentenary.  Davis wanted to use the term 200 years and the Authority refused his request to do so.  Davis appealed on the grounds that the law was invalid.

-    Mason CJ, Deane and Gaudron JJ held:

-    s 51 (xxxix) enables parliament to legislate in aid of an exercise of executive power

-    Consequences of this include: executive power extends to the incorporation of such a commercial Authority to program celebrations rather than a government body.

-    s 51 (xxxix) can not circumvent other restrictions in the Constitution - the High Court said that these restrictions were an intrusion on freedom of expression

-    Also s 51 (xxxix) is related to execution and not subject matter.

-    “Judgement made it clear that if a regulatory provision is reasonably incidental, or proportionate, to the Commonwealth’s legitimate national purpose, that provision can validly be enforced by a criminal sanction.”

Proportionality

-    An inquiry into the proportionality of a law involves value judgments of its reasonableness and appropriateness

-    Relevant in a number of areas
o    Determination of breaches of constitutional guarantees
o    The direct scope of purposive powers
o    A factor to be taken into account within the incidental power

-    Purposive criteria can only be invoked in cases where characterisation depends on purpose, eg for purposive powers (eg defence) and cases relying on the incidental power - Cunliffe v Commonwealth (1994)

Purposive powers

-    If the head power is a purposive one (eg defence power), law may be invalid if the legislation is not reasonably proportionate to achieving the purpose of that power - Leask v Commonwealth (1996) per Dawson J
-    ‘the court may have to inquire whether the law goes further than is necessary to achieve the purpose’

Incidental power

Nationwide News v Wills (1992)
-    A law only falls within the incidental scope if it is capable of being considered to be reasonably proportionate – reasonably and appropriately adapted – to the pursuit of its end
-    Necessary to consider to what extent the law goes beyond what is reasonably necessary or conceivably desirable to achieve the legitimate object

Leask v Commonwealth (1996)
-    ‘The disproportion of the law to an end asserted to be within power may suggest that the law is actually a means of achieving another end which is beyond power’
-    Yet, the terms ‘appropriate and adapted’ and ‘reasonable proportionality’ are best avoided when enunciating a test to determine whether a law exceeds a non-purposive head of power
-    If a sufficient connection is established, ‘it matters not how ill-adapted, inappropriate or disproportionate a law is or may be thought to be’ - Cunliffe

Severance and reading down

-    Applicable when statute:
o    cannot be characterised under a head of power
o    contravenes some express or implied limitation

-    When something can be severed or read down, it should be – s 15a  Acts Interpretation Act (1901) (not an imperative rule of law, only request)
Reading down

-    Where act is so general as to apply to matters beyond the Commonwealth’s power, the court can read it down so that it falls within a head of power
-    If the court is faced with more than one way to read down a statute to make it valid, it will decline to read down

Hindmarsh Island Case (1997)
-    Act conferred powers upon a ‘person’ incompatible with the functions of a judge
-    The word ‘person’ was read down to mean ‘person that is not a judge’

Railway Servants Case
-    If legislative intention against reading down, then it can’t be done
-    Explicit reference to state railways meant act couldn’t be read down to include them

-    Reading down must result in a ‘consistent and effective body of provisions’ - Strickland v Rola Concrete Pipes per Barwick CJ

Severance

-    If court is unable to read down, it should try to sever the offending provision, and read the statue as if it was not there

-    If severing would have the effect of creating a new law, the court will not sever the provision (as to sever would be to undertake a legislative role)
-    Can’t sever if to do so would make a substantial difference or a new law altogether

-    Can only sever if the language requires only an excision, not a substitution of words

Australian National Airways v Cth (1945)
-    Unless an intention affirmatively appears to the contrary, the provisions of a statute are to be taken as independent of one another and not interdependent – following s 15A of Acts Interpretation Act
-    Cth legislation sought to (a) establish an airline; (b) give that airline a monopoly
-    Sections giving rise to (a) were capable of full operation without (b)
-    Therefore the act was severable

Precedent and overruling

-    Australian courts are bound by decisions of the High Court (stare decisis), except the High Court itself

-    High Court is not bound by its own decisions – Australian Agricultural Co v Federated Engine-Drivers & Firemen’s Association (Engine-Driver’s Case) (1913)

-    Court should reconsider previous decision only with great caution and for strong reasons - Hughes & Vale Pty Ltd v New South Wales (1953) per Kitto J

-    Will re-open decision if it involves a question of ‘vital constitutional importance’  - Queensland v The Commonwealth (1977)

-    Re-open if the decision is manifestly wrong – Engine-Driver’s Case  (1913)

-    Matters which may justify departure from previous decision – Cth v Hospital Contribution Fund (1982)
o    Earlier decision did not rest upon a sound principle expounded in a significant succession of cases
o    Difference between the reasoning of the justices constituting the majority
o    Earlier decision had led to no useful result or considerable inconvenience
o    Earlier decision had not been independently acted on in a manner that militated against consideration

-    High Court should not adhere to precedent to divert it from what it now regards as “the true intent of the statute” – John v Federal Commissioner of Taxation (1989)