1.    Necessary to identify the power or powers which the Cth might invoke to support the Federal law.
2.    The power(s) must be interpreted, and the scope ascertained
3.    The law which is said to be supported by the power(s) must be characterised in order to ascertain whether it is a law ‘with respect to’ the subject matter of the identified powers.
4.    Necessary to consider whether there are any express or implied limitations which might render then Cth law invalid.

Constitutional Interpretation

The constitution should be read Engineers (1920)
1.    Giving the words their ‘natural and ordinary meaning’
2.    Naturally in light of the circumstances in which it was made
3.    With knowledge of the combined fabric of the common law
4.    With knowledge of the statute which preceded it
5.    Discovering in the actual terms of the instrument their expressed & necessarily implied meaning.

Ambulatory Approach Street v Queensland Bar Association (1989)
•    Useful starting point is to take an ‘originalist’ approach & ascertain the meaning of the language at the time of federation (connotation)
•    Proceed to consider the meaning of the words today (denotation)

Original Intent Cole v Whitfield (1988)
•    Original intent can be considered in cases of ambiguity
•    Allowed court to look at convention debates to ascertain contemporary meaning of language in constitution
•    BUT the plain meaning of the constitution cannot be substituted with the subjective opinions of the drafters or the convention debates.

Implications
•    the meaning of the constitution is not restricted to its express language, but extends also to implications which may be made regarding its meaning.
•    Can only be made on the grounds of necessity
•    No implication ‘can be drawn from the constitution which is not based on the actual terms of the constitution, or on its structure’ McGinty (1996)
•    Where implication sought to be derived from actual terms, it may be sufficient that the relevant intention is manifested according to accepted principles of interpretation ACTV v Cth (1992)
•    Where implication is structural rather than textual, the terms sought to be implied must be logically or practically necessary for the preservation of the integrity of the structure. ACTV v Cth (1992)
•    Implications cannot be drawn from extrinsic materials or circumstances. ACTV v Cth (1992)

Incidentality & the Implied Incidental Power

Express Incidental Power
•    s51(39) is an express power for the commonwealth to make laws regarding matters incidental to the execution if any power
•    → Subject to proportionality test

Doctrine of Implied Incidental Power
•    in addition to the express power, courts have held that each HOP contains an implied incidental power, giving the power to legislate on matters incidental to the subject matter of the power granted.
•    Defn: attached to each grant is an implied grant wide enough to make the express grant effective D’Emden v Pedder (1904)
•    unlike express power which is purely legislative, implied incidental power extends to executive & judicial powers as well as legislative power
•    Power need only be appropriate, it need not be necessary Nationwide News (’92)
•    Must be a real connection (not sufficient that it ‘touches or concerns’ the subject matter) Grannall v Marrickville Margarine (1955)
•    Incidental powers still subject to freedoms and prohibitions in Constitution  Grannall v Marrickville Margarine (1955)
•    ‘Incidentality’
is the relationship between the Act or action under challenge & a Head of power

Test of Incidentality Nationwide News v Wills (1992)
•    Having determined the character of the law with regard to its
•    Ask if a law of such a character is to be considered reasonably appropriate and adapted to the pursuit of an end within power’
•    This test can be informed by considerations of proportionality (per Mason CJ). Satisfied by a negative answer to one of following:
1.    Does the law go beyond what is reasonably necessary or conceivably desirable for the achievement of the specified end?
2.    Does law cause adverse consequences unrelated to the achievement of that specified end?

Characterisation

•    Characterisation =  the process of determining whether a law falls within a head of power by ascertaining, depending upon the nature of the power and its exercise, the subject matter or the purpose of the law.
•    A valid law must be capable of being characterised as being within a Cth head of power - Fairfax v Federal Commissioner of Taxation (1965)
•    The grants of power should be construed in a broad manner Bank Nationalisation Case (1948) per Dixon J
•    The terms ‘peace, order and good government’ do not limit the heads of power -Union Steamship Co of Australia v King (1988)
•    Statutory declaration cannot deem a law to be within power. There must be a judicial process to determine whether or not it is actually within power - Deputy Federal Commissioner of Taxation v Brown
•    BUT, if construction of act is ambiguous, statutory declarations may be considered Leask v Commonwealth
•    Within the subject matter of the grant of power, the kind of law the Cth can create is not restricted at all (ie. Plenary) Bank Nationalisation Case (1948) per Dixon J
•    The desirability of the legislation is not relevant Leask v Cth (1996)
•    If grant gives power to make laws with respect to an activity, it is within the power of the Cth to prohibit that activity altogether. Bank Nationalisation (1948)

2 Steps for Characterisation    Re Dingjan (1995) per McHugh


1.    Character - Character must be determined with reference to the rights, powers, liabilities, duties & privileges that it creates.

o    Court unconcerned with substance of law in terms of ‘motives, purpose or policy’ - Osborne v Cth (1911) The fact that the legislation purported to control the ownership of land does not make it outside the taxation power
o    Validity of a law should be tested by reference to its substantial operation, if its substance can be characterised under a head of power, it is valid –  once it appears that the law has “an actual and immediate operation within a field assigned … as a subject of legislative power, that is enough” – Fairfax v Federal C of Tax (1965)
o    Purpose or motivation behind a law is generally irrelevant Murphyores (1976)
o    ‘consequential effects’ are irrelevant for this purpose 1st Uniform Tax Case

2.    Connection - A judgment must be made as to whether the law operates so as to connect it to a HOP. Judgment based on the law’s practical & legal operation. If a connection exists between the operation of the law & the subject matter of the HOP, it will be a law w.r.t that subject matter, unless the connection is tenuous or distant.

o    Court disregards the motive & policy for determining connection
o    Where the end falls within the subject matter of the power, the means adopted, so long as they are capable of achieving that end, are for the legislature to decide Herald & Weekly Times v Cth (1966) per Kitto J
o    The law’s connection with the power may be determined, not merely from its legal terms and operation , but from its practical operation - Cunliffe v Cth (1994),
o    cannot use HOP as launch pad for other activities having only indirect effect on subject matter  Re Dingjan (1995) per Brennan

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