Incidental Power, Purpose and Proportionality
Does the law invoke the implied incidental power?
Incidental power must be “necessary” to give effect to the express power, but the court has interpreted this as “real or sufficient connection” which is broader. (Grannall v Marrickville Margarine). In determining “whether such a connection exists, it is material to have regard to the purpose of provision and the reasonableness of the connection between the law and the subject-matter of the power” (Mason in Nationwide News).
i) Incidental power from trade and commerce extends to abattoir regulation if exclusively for export (O’Sullivan v. Noarlunga Meat), but not if only some products are for export (Swift Australian v. Boyd Parkinson).
ii) Efficiency, competitiveness and profitability are not sufficient connection (Attorney-General (WA) v. ANA Commission).
iii) Express Incidental Power (s. 51 (xxxix) is related not to matters incidental, but rather to matters which arise in the execution of various powers (Burton v Honan).
Is it a purposive power?
- Distinguished from “subject matter powers” (Dixon in Stenhouse v. Coleman)
- If yes, then is it “appropriate and adapted to the purpose”?
- The test is an “exercise in proportionality” (Dawson in Leask v. Cth)
Note the Trade and Commerce specific rules regarding intrastate trade:
- The power to “prohibit, regulate and control the importation and exportation of goods… lie at the heart of trade and commerce with other countries” (Stephen, Mason in Murphyores)
- The distinction between interstate and intrastate trade “must be maintained however much inter-dependence may now exist between those two divisions of trade and however artificial the distinction may be.” (Gibbs in Attorney-General (WA) v. ANA Commission). The incidental power cannot override this distinction (Dixon in Wragg v. NSW)
- Ensuring safety does not permit regulation of intrstate trade(R v. Burgess: Ex Parte Henry)
- Where regulation protects against danger of “real possibility of physical interference” with the very activity itself, falls within power; merely consequential falls outside (Second Airlines Case)
Laws for Taxation:
- Where the subject matter is proximate to the tax power, the incidental power may be permitted (Griffin v. Constantine)
- Prohibiting paying of income tax to states before full discharge of income tax debt to Cth is beyond the incidental power (Second Uniform Tax Case)
Also note:
- The power to make laws with respect to an activity gives the Cth the power to prohibit that activity altogether (Bank Nationalisation Case)
- Where the ends are in power, as long as the means achieve that end, they are also within the power (Herald and Weekly Times v. Cth)
- Although an Act may not seem to have an obvious connection with the subject of the power, the connection may be established by social facts (Herald and Weekly Times v. Cth). Legislative history may also provide the necessary link (Griffin v. Constantine).