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