Interpretation & Characterisation
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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Continued
Dual Characterisation Actors & Announcers Case (1982)
• A single law can possess more than one character
• If a law can be characterised as a law with respect to one of the
Parliament’s enumerated powers, it is irrelevant that the law may also
be characterised as with respect to a subject matter outside Cth power.
• It is sufficient that one of the characters falls within a HOP
• The task is not to single out the paramount character
Characterisation of Purposive Powers Leask v Commonwealth (1996)
• a power defined by reference to purpose ie. Defence Power
• If the head power is a purposive one, a law may be invalid if the
legislation is not reasonably proportionate to achieving the purpose of
that power.
• ‘the court may have to inquire whether the law goes further than is necessary to achieve the purpose’ per Dawson J
• Motives of parliament and purpose of law are relevant if legislative power granted is purposive Murphyores (1976)
• Purpose of law refers to end or objective the legislation serves, not the underlying motive Kruger v Cth (1997)
Proportionality
• Means of assessing the reasonableness of means chosen by the lawmaker to achieve certain ends.
• 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)
Severance & 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
• In some cases the terms of the statute will indicate that it was not intended that any offensive provisions be read down.
• Reading down must result in a ‘consistent and effective body of provisions’ Strickland v Rola Concrete Pipes per Barwick CJ
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 (1906)
• 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
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 & 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 Engine-Driver’s Case (1913)
• Court should reconsider previous decision only with great caution
and for strong reasons Hughes & Vale Pty Ltd v NSW (1953) per Kitto
J
• Will re-open decision if it involves a question of ‘vital constitutional importance’ Qld v The Cth (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)