Procedural Guide to Establish Validity of Legislation

(1) Is relevant enumerated head of power purposive or non-purposive?
*    Non-purposive – a power defined by reference to subject matter rather than purpose
-    Majority of constitutional heads of power are non-purposive
-    Go to (2)
*    Purposive – a power defined by reference to purpose
-    Defence power (s 51(vi)
-    The treaty implementation aspect of the external affairs power (s 51(xxix))
-    Go to (3)

(2) Having identified relevant enumerated head of power as non-purposive, it must then be determined whether the law is a law ‘with respect to’ that head of power. 2 step process elucidated in Re Dingjan; Ex Parte Wagner (1995) 183 CLR 323
NOTE: if dealing with incidental power which impinges on a Constitutional guarantee/prohibition, must also satisfy (4)

(2.1) The character of the law must be determined
*    Effect of law  - Court considers the nature of the rights, duties, power and privileges the law changes, regulates, or abolishes
*    Dual characterisation - “laws may in truth possess a number of characters” - Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982)
*    Indirect effects irrelevant – Court does not consider indirect effects arising from application of legislation – Re Barger (1908)
*    Creation of personal difficulties irrelevant  - fact that Act creates difficulties for many persons which are out of all proportion to the advantages gained does not affect characterisation – Herald & Weekly Times Ltd v The Commonwealth (1966)

(2.2) Judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to the enumerated head of power
*    Nature of connection  - determined with reference to practical, as well as legal, operation of the law
*    Connection established by level 1 proportionality test – connection satisfied by the ‘suitability’ of the law: is the law appropriate and adapted to achieving its ends?
    Inappropriateness not be established simply by indicating a more appropriate method of obtaining the end - Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1
-    No consideration of necessity or reasonableness – Nationwide News; Leask
*    Requisite degree of connection  - negative test, connection must not be ‘so insubstantial, tenuous or distant’ that it cannot sensibly be described as a law ‘with respect to’ the head of power – Melbourne Corporation v The Commonwealth (1947) per Dixon J
*    Requisite connection sufficient in cases of dual characterisation – as long as connection is established, it doesn’t matter than law could also be characterised as a law with respect to a matter left to the States - Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982)

(3) Having identified relevant enumerated head of power as purposive, it must then be determined whether the law is a law ‘with respect to’ that head of power.  1 step process elucidated in obiter of Leask v Commonwealth (1996) .
NOTE: if dealing with incidental power which impinges on a Constitutional guarantee/prohibition, must also satisfy (4)

(3.1) Is the law a law for the specified purpose of the enumerated power?
*    Level 1 proportionality test – involves inquiry into whether the law is appropriate and adapted to achieving its ends
-    E.g. law enacted under s 51(vi), the defence power, must be reasonably adapted for the purpose of the military and naval defence of the nation against enemy aliens – Australian Communist Party v Commonwealth (Communist Party Case) (1951)
*    Level 2 proportionality test – involves an inquiry into whether there are other, less extreme, means available for achieving the same end
-    i.e. does law go further than necessary to achieve purpose of enumerated power?
-    Always a contentious issue in cases of treaty implementation under the external affairs power
    Treaty implementation is a purposive subset of the non-purposive power of external affairs, and thus it must be shown that the purpose of the law is the implementation of the treaty, as this is the link between the subset and the external affairs power
*    Parliament cannot ‘recite itself into power’ under the defence power – purpose requirement cannot be satisfied simply by identifying objects or people as a threat to national security, there must be sufficient evidence – Australian Communist Party v Commonwealth (Communist Party Case) (1951)
-    “A power to make laws with respect to lighthouses [s 51(vii)] does not authorise the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.”
-    If guilty of recitation into power then an Act will be invalid due to failure of level 2 proportionality test

(4) Is the law’s affect on a Constitutional guarantee merely incidental to the achievement of a legitimate end?
*    Level 1 proportionality test – involves inquiry into whether
the law is appropriate and adapted to achieving its ends – ACTV v The Commonwealth (1992)
-    Implied level 2 proportionality test – ACTV ruling seems to imply that in determining appropriateness the court may have consideration to whether or not there are less extreme means available for achieving the same end
*    Level 3 proportionality test - involves a weighing up of the importance in achieving the end sought by the law, and the significance of the detriment caused by the law to other interests – Nationwide News; Leask (in the opinion of Castan)
-    Importance of end vs. significance of detriment
 
3.1-3.2 Constitutional Interpretation

Reserved State Powers (‘Implied Prohibitions’)

*    Nature of doctrine – if a Cth legislative power could be interpreted broadly or narrowly, the narrow meaning was to be adopted to prevent or curtail Cth legislation intruding into an area or activity reserved for State legislative power
*    Non-reciprocal power – doctrine favoured States over Cth, but there was no reciprocal limitation on State legislation

Doctrine of Immunity of Instrumentalities

*    Nature of doctrine – “[W]hen a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorised by the Constitution, is to that extent invalid and inoperative.” – D’Emden v Pedder (1904) per Griffith CJ
*    Reciprocal power – mutual and reciprocal implied prohibition on use of Cth and State powers
-    Reciprocation recognised in Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association (Railway Servants Case) (1906)
*    Doctrinal limitations – doctrine subject to limitations and exceptions:
-    (i) Cth legislation could subject Cth employees’ salaries to non-discriminatory State taxation legislation – Chaplin v Commissioner of State Taxation (SA) (1911)
-    (ii) States were subject to Cth legislation, controls and financial imposts under the customs power, weights and measures, and immigration – R v Sutton (Wire Netting Case) (1908)
-    (iii) State instrumentalities engaged in non-governmental functions (e.g. employees of State utilities) could be subject to Cth industrial relations legislation – Federated Engine Drivers’ and Fireman’s Association of Australia v Broken Hill Proprietary Co Ltd (1911)

Reserved State Powers and Immunity of Instrumentalities Doctrines Overthrown – Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (The Engineers Case) (1920)
*    FACTS: industrial dispute arose between Amalgamated Society of Engineers and various Australian employers, including the WA government. Engineers’ Union lodged claim for an award and, therefore, sought to have Cth industrial laws applied to a State employer.
*    CENTRAL QUESTION: could an industrial award made under the Commonwealth Conciliation and Arbitration Act 1904 (Cth) enacted pursuant to the ‘conciliation and arbitration’ power in s 51(xxxv) of the Constitution validly apply to and bind the State of WA?
*    RULING: majority of 5 to 1 held that Cth Act and award could and did constitutionally apply to the States
-    Power for Act conferred under s 51 (xxxv)
-    No express or implied limitation upon power which might invalidate Act
-    s 107 not considered to give rise to a limitation in this case
*    REASONING:
*    (1) Majority adhered to a strict interpretation of the Constitution, considered doctrine of reserved State powers to be an unjustifiable judicial restriction upon the literal interpretation of the Const.
-    Not the court’s place to limit government power out of fear of its abuse
-    Would run contrary to notion of responsible government
-    Job for the constituencies not the courts
-    Doctrine of political necessity as a means of interpretation, is indefensible on any ground
-     Majority implying that reserved state powers and immunity of instrumentalities doctrines were borne of this means
*    (2) Grant of legislative power to the Cth involved grant of an “authority as plenary and as ample as the Imperial Parliament in the plenitude of its power possessed and could bestow” – Hodge v The Queen 9 App Cas 117
-    given extent of power, it is ridiculous to rule that Cth legislation does not bind States and their agencies
-    Gives rise to famous 2 step test for validity of Cth legislation:
-    (i) does it fall under an enumerated power in the Const?
-    (ii) is there any Const limitation upon the power which might invalidate the legislation?
*    (3) It is a fundamental error to read s 107 of the Const as reserving any power from the Cth that falls fairly within an express power of the Const
-    the moment State legislation encounters repugnant Cth legislation operating on the same filed the State legislation must give way
-    s 107 is trumped by s 109

Continued on page 2