Published on 15/05/2007

Constitutional Interpretation 2

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

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Methods of Constitutional Interpretation

Originalism or ‘Intentionalism’

*    Doctrine – the overriding duty of the court is to give effect to the intentions of those who formulated the Constitution
*    Intentionalism vs. Literalism – to the Engineers style literalist, the bare text is both the beginning and the end of the search for intention
-    In contrast, for the intentionalist, who regards the text as a servant of intention, further sources of intention such as the Convention Debates will also typically be relevant
-    Especially when text is considered to be ambiguous
*    Intentionalism and the High Court – approach cautiously adopted in Cole v Whitfield
-    Convention Debates used in the event of ambiguity in the actual text
-    Approach reaffirmed by the Court in New South Wales v Commonwealth Corporations (1991)
-    “On the basis of decisions like Cole and the Corporations case, it would seem that a moderate version of intentionalism is indeed emerging on the court, according to which both debates and ‘subjective’ intention will be regarded as irrelevant where the words of the Constitution evince a clear and certain meaning, but will be considered for the purpose of resolving ambiguity.” – G Craven, ‘The Crisis of Constitutional Literalism in Australia’
*    Tendency to infer ambiguity – the intentionalist will generally err on the side of discerning ambiguity in order to bring intention evidence into play
*    Intentionalism and a return to federalism – as Craven notes, the founding fathers unquestionably intended that the balance of power should be considerably more in favour of the States than has come to be the case, so intentionalism would see this view brought to the fore
*    Intentionalism is restrictive – it’s a legal species of historical determinism
*    Objections:
-    (i) constitutional developments being ruled by the ‘dead hand of the past’
-    (ii) if judges are not trained in the art of policy making, are they any better educated in interpreting history?

Textualism

*    Doctrine – focuses on the original meaning of the constitutional text
-    Designed to give words and phrases an expansive rather than narrow interpretation, as long as it is an interpretation they can bear
*    Method – read terms of the Constitution and give them their nature effect
-    If ambiguous, then read terms in context of entire document
*    Ideological basis – purpose of the Constitution is anti-revolutionary
-    Actually protects rights in many circumstances, as “generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it.”
*    Objections – not as objective as it purports to be
-    Original meaning is often unable to be directly applied to modern developments, especially technological, and thus textualism relies upon the implicit exercise of jurisprudence

Contemporary Meaning

*    Doctrine – it is the job of the court, in addition to interpreting and applying the constitution, to expound national ideals of individual liberty and fair treatment, even when the content of these ideals is not expressed as a matter of positive law in the written Constitution – Thomas Grey, ‘Do We Have an Unwritten Constitution?’
*    Concepts rather than conceptions – Dworkin argues that taking the contemporary meaning of terms actually upholds the wishes of the framers
-    Take their ‘concepts’ rather than their ‘conceptions’
    E.g. we may hold a universal belief in a ‘concept’ such as fairness, and yet hold diverging opinions on the ‘conception’ of fairness
*    Tells it like it is – avoids resorting to bad legislative history and strained reading of constitutional language to support results that would be better justified by explication of contemporary moral and political ideals not drawn from the constitutional text
*    Objection – while Deane J in Theophanous v Herald & Weekly Times Ltd states that the electorate are a check on the evolutionary tendencies of contemporary interpretation, he fails to recognise the difficulty inherent in amending the Constitution
*    Politicises the court – the judiciary becomes the mouthpiece of the majority

(a) Incidentality and the Implied Incidental Power

Incidental Powers

*    Definition – a power may be considered incidental if its denial would render the express grant of a power or control ineffective – D’Emden v Pedder (1904)
*    Distinguished from express incidental power – unlike express incidental power conferred by s 51(xxxix) which is purely legislative, the doctrine of implied incidental power extends to executive and judicial powers as well as legislative power
*    Requisite elements – for a legislative incidental power, it is sufficient that ‘the provision is appropriate to effectuate the exercise of the power; one is not confined to what is necessary for the effective exercise of power’ – Nationwide News Pty Ltd v Wills (1992) per Mason CJ
-    power need only be ‘appropriate,’ need not be ‘necessary’
-    see more detailed test for incidental powers below

Incidentality

*    Definition – ‘incidentality’ is a relationship between the Act or action under challenge and a head of power
*    Requisite degree of connection – as long as the end is legitimate, and the means are (i) appropriate, (ii) plainly adapted to the end, and (iii) not prohibited by the Constitution, then incidentality is satisfied – McCulloch v Maryland (1819) 4 Wheat 316 at 421 per Marshall CJ
-    Not test in Australian law, just background where it came from

Test of incidentality - Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (Mason CJ)

*    Test of incidentality – ‘law must be reasonably and appropriately adapted to the pursuit of an end within power’
-    i.e. is the law capable of being considered to be reasonably proportionate to the pursuit of an end within power
*     Reasonable proportionality –satisfied by negative answer to one of these questions:
-    (1) does law go beyond what is reasonably necessary or conceivably desirably for the achievement of the specified end?
        If so
-    (2) does law cause adverse consequences unrelated to the achievement of the specified end?
-    important to ascertain whether adverse consequences result in any infringement of fundamental values traditionally protected by the common law

Criticism of Test – Leask v Commonwealth (1996) 187 CLR 579 (Dawson J)
*    Implication of desirability – Dawson is concerned that deciding the sufficiency of a connection between a law and the subject matter of a head of power by reference to proportionality suggests that the Court is concerned with the desirability of legislation

(B) Characterisation

Recognition of multiple characters - Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982)
*    FACTS: case concerned with a secondary boycott found to have been engaged in by a trade union and some of its officers. s 45D of the Trade Practices Act 1974 (Cth) prevents such boycotts. Its validity, or more pointedly the validity of one of its subsections, was questioned in this case. Ss (1)(b)(i) prohibits 2 or more persons from engaging in concert in conduct that hinders or prevents the supply or acquisition by a corporation of goods or services from a third person if the conduct is for the purpose, and would have or be likely to have the effect, of causing substantial loss or damages to the business of the corporation or of corporate affiliate.
*    RULING: Not sure
*    REASONING:
*    Potential source of legislative power is s 51(xx) which gives power to legislate with respect to:
-    “Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”
*    Sub-section in question is composed of 3 elements:
-    (1) existence of conduct by persons in concert which impedes a dealing in goods or services
-    (2) the fact that that dealing is a dealing to which those persons are not themselves parties
-    (3) the presence of resultant and intended actual or likely detriment to one of the parties to the dealing, it being a corporation
-    law could be described by reference to any one of these elements, but all three must be captured to give it its ‘true character’
*    When a law is described in detail its parts tend to fall within different paragraphs of s 51, or not within enumerated grants of power at all
-    “laws may in truth possess a number of characters.”
-    Thus, “If a law enacted by the federal legislature can be fairly described both as a law with respect to a grant of power to it and as a law with respect to a matter or matters left to the States, that will suffice to support its validity as a law of the Commonwealth.”

What Can be Taken Into Account? – R v Barger (1908)
*    Substance not motive – Court gives regard to the substance of legislation rather than its literal form
-    Motives of legislature and desired end of legislation are irrelevant
*    Indirect effects irrelevant – Court does not consider indirect effects arising from application of legislation

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(C) Dual Characterisation

Charcterisation influenced by reserved State powers doctrine - R v Barger: Commonwealth v Mackay (1908)
*    FACTS: both cases concerned with validity of the “Excise Tariff 1906”
-    R v Barger – action for penalties for manufacturing excisable goods without a licence, question being whether goods were excisable goods
-     Commonwealth v Mackay – action to recover fixed duties in respect of similar goods manufactured by Mackay
-    both parties claim that Act is not an exercise of the taxation power but an attempt to regulate the internal trade and industry of the States
*    RULING: Griffith CJ, Barton and O’Connor JJ (majority) – act is invalid
*    REASONING:
*    Appears to rest on 2 independent grounds:
-    (1) the legislation did not fall within s 51(ii) because the term ‘taxation’ therein should be read down pursuant to the reserved State powers doctrine
-    taxation defined as taxation not imposed as a means of regulating the domestic affairs of States
-    If Act were held valid it would give government immense powers under taxation, could tax any trade or occupation, with a remission of the tax to all persons who carry it on in accordance with specified conditions
•    Amount of fee might be made so large as to be prohibitive except on compliance with these conditions
-     (2) the legislation should be characterised as a law dealing not with taxation, but with the ‘conditions of manufacture of agricultural implements,’ a subject over which the Commonwealth had no legislative power
-    Primary meaning of ‘taxation’ is raising money for the purposes of government by means of contributions from individual persons
•    Power to tax necessarily involves the power to select the subjects of taxation
•    Subjects generally differentiated by reference to objective facts or attributes
•    In this case, indistinguishable goods were being taxed differently dependent upon the observance or otherwise of rules of conduct defined in the Act

Post reserved State powers doctrine, dual characterisation markedly pro-Cth - Fairfax v Federal Commissioner of Taxation (1965)
*    FACTS: at issue was validity of the Income Tax and Social Services Contribution Assessment 1936 (Cth), Pt III, Div 9B which effectively exempted the income earned by superannuation funds from income tax provided that the funds were invested in Cth, State or Territory gov securities.
*    RULING: provisions were unanimously held valid under s 51(ii)
*    REASONING:
*     (1) the Court affirmed dissenting statement of Higgins J from Barger’s Case, that, subject only to the limitations expressed in the Const, the power with respect to taxation is ‘plenary and absolute; unlimited as to amount, as to subjects, as to objects, as to conditions, as to machinery’
-    “the Parliament has, prima facie, power to tax whom it chooses, power to exempt whom it chooses, power to impose such conditions as to liability or as to exemption as it chooses.” – Higgins J
*    (2) given scope of Cth power recognised in (1), a law is not not a law with respect to taxation simply because;
-    (i) it exhibits on its face a purpose of suppressing or discouraging certain behaviour
-    (ii) it is to be explained more convincingly as a means to that end than as a means to provide the Government with revenue
-    invalidation on these grounds would indicate that Court is concerned with motives of legislature, a big no no
*    (3) principles arising from (2) - a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed
-    Principle applies even though the revenue obtained is obviously negligible
-    Principle applies even though revenue purpose of the tax may be secondary
*    (4) question of validity refined thus - “is [the law] in real substance a law upon, ‘with respect to,’ one or more of the enumerated subjects”
-    substance determined with reference to the nature of rights, duties, power and privileges the law changes, regulates, or abolishes
-    i.e. the substance of the enactment is the obligation which it imposes, and the only obligation imposed is to pay income tax
•    from (3) it doesn’t matter that legislative policy is to induce investment in government securities, and that taxation is a secondary concern

(D) Proportionality

*    Definition – assessment of the reasonableness of means chosen by the lawmaker to achieve certain ends
*    Ironic conception – notion of proportionality was borne of Marshall CJ’s famous statement in McCulloch v Maryland (1819) 17 US 159, which in fact used the words ‘appropriate’ and ‘adapted’ to signify anything but a requirement that the means adopted by the legislature to achieve a constitutionally valid end must be proportionate to that end

Fundamental elucidation of proportionality - Leask v Commonwealth (1996) 187 CLR 579
*    FACTS: case concerned the validity of s 31(1) of the Financial Transaction Reports Act 1988 (Cth). Under the Act currency transaction over A$10,000 had to be reported to AUSTRAC. Reporting obligation designed to prevent tax evasion and money laundering. s 31(1) rendered it an offence for one to be a party to two or more non-reportable cash transactions if it could reasonably be believed that the transactions were being performed in a way which concealed their existence from AUSTRAC.
*    RULING: HC unanimously found the law to be valid under s 51(xii), the currency and coinage power
*    REASONING:
*    Leask argued that s 31(1) imposed strict liability, and was therefore disproportionate to the ends of s 51(xii); it was an inappropriate method of achieving an end within power and thus was invalid
-    Court held that proportionality was an irrelevant issue with regard to characterisation under most heads of power
*    In cases where validity depends on characterisation, it may be material to ascertain whether the law is capable of being ‘reasonably considered to be appropriate and adapted’ to the provision of a matter incidental to the subject matter of a head of power – Cunliffe v The Commonwealth (1994) 182 CLR 272 per Mason CJ
-    Criterion of reasonable proportionality
*    “The fact that the legislative powers conferred upon the Commonwealth Parliament by s 51 of the Constitution are expressed to be with respect to subject matters means that a law is within power if the acts, facts, matters, or things upon which it operates fall within the description of one or more heads of power.”
*    Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 – in determining whether a law is ‘with respect to’ a head of power in s 51 two steps must be taken
-    (1) character of the law must be determined
-    done by reference to the rights, powers, liabilities, duties and privileges which it creates
-    (2) judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to an enumerated head of power
-    connection determined with reference to practical, as well as legal, operation of the law
-    if connection exists then law will be a law ‘with respect to’ the head of power unless connection is ‘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) 74 CLR 31 per Dixon J
-    once requisite connection has been established it is not for the court to consider whether the legislature has chosen a means of achieving its aim which goes further than is necessary or desirable
-    i.e. no proportionality considerations
*    Fact that for many persons difficulties are created which are out of all proportion to the advantage gained affords no ground for invalidation – Herald & Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418
*    When a law’s validity is sought to be sustained by reference to an implied incidental power, its purpose becomes of material consideration – Cunliffe per Mason CJ
-    i.e. when a law operates on a subject matter beyond power, but is justified on the ground that it is designed to achieve an end within power, requisite connection will be dependent upon:
-    law being appropriate and adapted to the end in view (reasonable proportionality test)
-    PROBLEM: as Dawson notes most heads of power do not have an end or purpose other than the authorisatoin of legislation upon their subject matter and whether a law is upon a subject matter depends upon its connection with that subject matter
*    Reasonable proportionality test may be used in case of law supported by a purposive power
-    In determining whether a law is for a specified purpose Court may inquire into whether it goes further than is necessary to achieve that purpose
-    Purpose as evinced from the face of the instrument in question, the facts to which it applies and the circumstances which called it forth
-    A 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) 83 CLR 1
*    Reasonable proportionality test relevant when law is said to fall foul of a constitutional limitation on legislative power – ACTV v The Commonwealth (1992) 177 CLR 106
-    A law may affect an immunity conferred by a limitation on power as long as the affect is merely incidental to the achievement of a legitimate end
-    Incidentality determined with reference to whether law is appropriate and adapted to that end

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Proportionality in relation to non-purposive heads of power – The Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1

*    Implementation of a bona fide international convention is sufficient to establish the requisite connection between the law effecting the implementation and the external affairs power
-    Reasonable proportionality used to determine whether law does in fact implement convention

‘The Relevance of Proportionality in Characterisation,’ Castan and Joseph

*    Purposive heads of power include:
-    Defence power (s 51(vi)
-    The treaty implementation aspect of the external affairs power (s 51(xxix))
*    Three levels to the proportionality test:
-    (1) ‘suitability’ – involves inquiry into whether the law is appropriate and adapted to achieving its ends
-    (2) ‘necessity’ – involves an inquiry into whether there are other, less extreme, means available for achieving the same end
-    (3) ‘balancing’ – 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
*    Proportionality and constitutional guarantees – few constitutional guarantees are absolute. In many instances a test of proportionality is applied to determine whether a law survives constitutional challenge despite its prima facie incompatibility with a constitutional guarantee.
-    Constitutional guarantees act as prohibitions on State and Commonwealth government power
-    Ruling in Leask appears to endorse the strictest use of ‘balancing’ proportionality in respect to constitutional guarantees

Parliament cannot ‘recite itself into power’ under purposive heads of power – Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1
*    FACTS: Court examined the validity of the Communist Party Dissolution Act 1950 (Cth). Act outlawed the Australian Communist Party (ACP) and gave discretionary power to G-G to dissolve affiliated organisations and impose civil disqualifications upon certain people, if they were believed to be engaged or likely to engage in acts prejudicial to the security of the Cth. Act challenged as being outside the defence power.
*    RULING: by a majority of 6 to 1 the HC found the law invalid
*    REASONING:
*    Identification of ACP and its members as threats to national security does not automatically bring the law within the defence power
-    “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.”
-    Parliament cannot conclusively ‘recite itself into power’
*    Act could not be characterised as being for the defence of the nation
-    Insufficient evidence, beyond the opinion of the legislature and the executive, to classify the need to combat communism as a subject matter capable of coming within s 51(vi)
    Therefore disproportionate to the purpose of defending the nation to dissolve the ACP etc.

Proportionality in incidental characterisation - Nationwide News v Wills (1992) 177 CLR 1

*    FACTS: concerned validity of s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth), which rendered it an offence to use words calculated to bring a member of the Industrial Relations Commission into disrepute.
*    RULING: majority found law to be an impermissible restriction on the implied constitutional right of political communication
*    REASONING:
*    Law could not be characterised as an incidental exercise of power under s 51(xxxv), the industrial relations power
-    Finding based on law’s disproportionate impact on freedom of expression

(E) Severance and Reading Down

*    Reading down – encourages the Court to save the legislation under challenge by reading it in a way which is within power
*    Severance – asks the Court to investigate whether the invalid parts of an Act can be cut away leaving the rest to be enforced
*    Limitation on doctrines – while courts should try if possible to save legislation it is not for them to make new law
-    What is read down or saved by way of severance must keep its original character
*    Statutory force – doctrines given statutory force in s 15A of the Acts Interpretation Act:
-    Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power

Application of the Acts Interpretation Act – Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29
*    FACTS: case concerned potential severance of Part IV from the Airlines Act. Ps argued that Part contained provisions indispensable to the conception upon which the statute was based, and thus that invalidation of Part necessitated invalidation of whole
*    REASONING:
*    s 15A of the Acts Interpretation Act establishes that 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

(F) Precedent and Overruling

*    Precedent – all Australian courts are bound by decisions of the High Court (following the doctrine of stare decisis) except the High Court itself
-    Conclusion that the High Court is not bound by its own decisions was affirmed in Australian Agricultural Co v Federated Engine-Drivers & Fireman’s Association (Engine-Drivers’ Case) (1913) 17 CLR 261

Factors influencing departure from precedent - Commonwealth v Hospital Contribution Fund (1981) 150 CLR 49
*    “There is no doubt that this Court has power to review and depart from its previous decisions. However, such a course is not lightly undertaken.”
*    Majority identified four matters which might prevent departure from a previous decision:
-    (i) earlier decisions rested upon a principle carefully worked out in a significant succession of cases
-    (ii) there was no difference between the reasons of the justices constituting the majority in one of the earlier decisions
-    (iii) earlier decisions had achieved a useful result, rather than leading to considerable inconvenience
-    (iv) earlier decisions had been independently acted on in a manner which militated against reconsideration