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LAWS2150 Final Notes

PROBLEM NOTES ....................................... 1

RACES POWER .................................................. 1

TAXATION POWER ............................................ 3

GRANTS POWER ............................................... 6

INCONSISTENCY OF LAWS ................................ 7

THE FEDERAL COMPACT: MELB CORPS ............ 9

FREEDOM OF INTERSTATE T&C ...................... 11

TRIAL BY JURY ................................................. 13

FREEDOM OF RELIGION.................................. 14

IMPLIED FREEDOM OF POLITICAL COMMS .... 16

JUDICIAL POWER AND DETENTION ................ 18

EXTERNAL AFFAIRS POWER ............................ 21

TRADE AND COMMERCE POWER ................... 23

CORPORATIONS POWER ................................ 25

ESSAY NOTES .............................................. 31

FUNDAMENTALS OF CONSTITUTIONAL LAW . 34

Implied Immunity of Instrumentalities and Reserved State Powers Doctrine ................ 34

Engineer’s Case ........................................... 36

CONSTITUTIONAL INTERPRETATION .............. 38

Doctrine of Precedent ................................ 38

The Jumbunna Principle ............................. 41

Judicial Reasoning ....................................... 42

Approaches to Interpretation ..................... 46

CORPORATIONS POWER ................................ 57

Scope .......................................................... 57

Work Choices (Reasoning and Criticism) .... 60

RACES POWER ................................................ 63

Races Case Summaries ............................... 65

TAXATION POWER .......................................... 69

Tax Case Summaries ................................... 70

GRANTS POWER ............................................. 74

Grants Case Summaries .............................. 77

INCONSISTENCY OF LAWS .............................. 78

TRIAL BY JURY ................................................. 83

Trial by Jury Case Summaries ..................... 86

FREEDOM OF RELIGION.................................. 88

Freedom of Religion Case Summaries ........ 90

FREEDOM OF INTERSTATE T&C ...................... 92

Interstate T&C Case Summaries ................. 94

IMPLIED FREEDOM OF POLITICAL COMMUNICATION ......................................... 98

Implied Freedom Case Summaries ........... 100

JUDICIAL POWER AND DETENTION .............. 115

KEY CONSTITUTIONAL PRINCIPLES ............... 125

The Federal Balance ................................. 125

The Federal Compact ................................ 126

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PROBLEM NOTES RACES POWER s 51(xxvi) gives the Commonwealth the power to make laws with respect to ‘the people of any race, for whom it is deemed necessary to make special laws’.

1. Characterisation

a. Characterisation of the act is to be done with reference to the rights, powers, liabilities, duties

and privileges (Grain Pool, Bank Nationalisation) b. This is done by considering legal and practical operation of the act (Dingjan, Bank Nationalisation,

Fairfax)

c. An act can be dually characterised under two heads of power (Fontana Films, Fairfax, Grain Pool)

2. Is there a sufficient connection between the law and the races power? a. Is the law with respect to the people of any ‘race’?

i. Race is not a term of art (Tasie Dams per Brennan and Deane)

ii. DICTA: There is a biological element to the concept of race (Tasie Dams per Brennan) iii. DICTA: Non-scientific factors (such as common history, religion, spiritual beliefs, culture)

are also relevant (Tasie Dams per Brennan and Deane)

iv. DICTA: Individuals or group regard themselves or are regarded by others as having a

particular historical identity in terms of their colour or racial/national/ethnic origins (Tasie Dams per Brennan)

v. DICTA: Can also apply to sub-groups within a race (Tasie Dams per Deane; Kartinyeri per

Gaudron, Gummow, Hayne and Kirby) vi. Aboriginal people are a race (Tassie Dams; Kartinyeri)

b. Is the law a ‘special law’ for the people of the race concerned?

i. The special quality of a law is determined by reference to its differential operation upon the people of a particular race (Native Title Act Case; Kartinyeri per Gummow and Hayne)

ii. A law that applies equally for all races is not special (Koowarta) e.g. law directed toward

the elimination of all racial discrimination (Koowarta) iii. However, a general law can be a special law where it is of special or significant importance

to the people of a particular race (Tasmanian Dams; Native Title Act Case)

1. Tassie Dams: Law preventing the damage of objects that were of significance to Aboriginal cultural heritage was held to be supported by the races power

iv. Law need not directly confer a legal right/power to the race, discriminatory benefit is valid

(Tasie Dams) c. Is the law deemed necessary?

i. In general, this is for parliament to determine (Native Title Act Case)

1. However, the courts have left open the possibility that the Court retains some supervisory jurisdiction over manifest abuse of the races power (Native Title Act Case; Kartinyeri per Gummow, Hayne and McHugh)

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ii. Been suggested that parliament must have some material upon which it might reasonably

conclude that there is a difference (between the race at issue and other races)

necessitating some special legislative measure (Kartinyeri per Gaudron) 1. Is the law reasonably appropriate and adapted to the difference?

iii. UNCLEAR whether parliament can deem a detrimental law necessary - competing dicta

1. DICTA: can use power to impose detriment (Tassie Dams per Gibbs; Native Title Act Case; Kartinyeri per Gummow and Hayne)

2. DICTA: may discriminate against people except for Aboriginal people (Tassie Dams per Deane)

3. DICTA: benefit only for all people (Koowarta per Murphy; Kartinyeri per Kirby)

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TAXATION POWER s 51(ii) gives the Commonwealth the power to make laws with respect to ‘taxation’

1. Characterisation a. Characterisation of the act is to be done with reference to the rights, powers, liabilities, duties

and privileges (Grain Pool, Bank Nationalisation)

b. This is done by considering legal and practical operation of the act (Dingjan, Bank Nationalisation,

Fairfax) c. An act can be dually characterised under two heads of power (Fontana Films, Fairfax, Grain Pool)

2. Is there a sufficient connection between the law and taxation power?

STEP 1: Is it a tax?

a. General principles i. Starting point is Latham J’s definition in Matthews – that is, a tax is (1) a compulsory

exaction of money by a (2) public authority for (3) public purposes, (4) enforceable by law,

and is (5) not a payment for services rendered ii. However, this definition is not exhaustive (Air Caledonie)

iii. It can be a tax if it does not meet all the positive criteria in the Mathews test (Air Caledonie; Lutton per Hayne and Gaudron JJ)

iv. Fee for service is not the only extraction that cannot be a tax, penalties, arbitrary, fines

and charges for the acquisition of property may be relevant (Air Caledonie) - i.e. negative

requirements b. Positive Requirements

i. Compulsory exaction of money;

ii. By a public authority; 1. Does not have to be exacted by a public authority (Air Caledonie; Australian Tape

Manufacturers per majority cf McHugh J) 2. Important to consider only if the character of the authority will be relevant and

influential in deciding whether the purposes on which the moneys raised are to be expended are themselves public (Australian Tape Manufacturers)

iii. For public purposes; and

1. Does not have to be for a public purpose (Air Caledonie) a. Factors indicating for public purpose:

i. Tax paid into consolidated revenue (Australian Tape)

ii. Public interest - take money from one group and give it another (Australian Tape)

b. Factors indicating not a public purpose:

i. Payment to Cth is merely so that they act as an intermediary in the payment process (Luton)

ii. Where beneficiaries of the scheme are of a limited class (Luton)

iv. Enforceable by law

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c. Negative Requirements

i. Fee for service (s 53) - 3 elements (Air Caledonie; Matthews)

1. There is a specific identifiable service 2. A fee is paid for this service

3. The fee is rendered to, or at the request of, the person required to make the

payment 4. Fee is proportionate to the cost of the service

a. ISSUE: Differentiated rates

b. A relationship between fee and cost can be discerned even where differentiated rates are charged to users of the same service (Air Services)

c. Different tests posited for establishing required relationship between fee

and cost of services in context of a differentiated pricing scheme: i. Gleeson CJ and Kirby J in Air Services

1. Is the objective to raise general revenue or cover the

price of the services? a. Cover the price means discernible relationship

between fee and cost

b. Revenue-raising points to tax

2. Are the charges ‘reasonably related’ to the expenses? a. If reasonably related, proportionate

3. Is there a rational basis for discrimination between

users? a. If rational basis, proportionate

ii. McHugh: ‘Is pricing structure a reasonably and appropriately

adapted means of achieving a legitimate public purpose other than revenue raising which is related to the functions, powers or

duties of the statutory authority?’ 1. Considerations: Purpose, mandate of body, adapted to

objective

5. Examples

a. Tax: Payment to fund run by govt agency requiring contribution from every dairyman and every owner of a milk depot (Parton)

b. Tax: Immigration fee was payable by both citizens and non-citizens (Air Services)

c. Fee: Payment for grading, testing and stamping eggs (Harper)

d. Fee: Charges imposed on aircraft operators to recoup cost of providing

services re air traffic, rescue (Air Services)

ii. Penalty 1. Imposes a liability to pay pursuant to a breach of some prohibition/duty

(Northern Suburbs)

2. Factors against characterisation as penalty (Northern Suburbs) a. Law does not mandate or proscribe conduct of any kind

b. Does not make it an offence to fail to do something

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c. Does not provide for recovery of civil penalties for failure to carry out a

requirement

iii. Arbitrary 1. Liability can only be imposed for a taxation by reference to ascertainable criteria

(MacCormick)

iv. A fine v. A charge for the acquisition of property

STEP 2: What are the consequences?

d. General principles i. Laws imposing taxation must deal with this subject only and they are invalid insofar as

they deal with other subjects (s55)

ii. Laws imposing taxation shall deal with one subject of taxation only (s55) iii. **Note on application

1. Where Act has both tax and non-tax - Invalid

2. Where Act deals with tax and things other than tax - Parts that deal with other

things are invalid/risk that one statute dealing with 2 taxations would be contrary to s 55

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GRANTS POWER s 96 gives the Parliament the right to grant financial assistance to any State on such terms and conditions as the Parliament thinks fit – (originally intended as a temporary provision,

x Not a head of power, but a source of power; analysis is slightly different

1. STEP 1: Outline the scope of the power

a. Extremely broad – terms and conditions of a grant may go beyond s 51 heads of power i. can operate to discriminate between States (Latham CJ in Moran, affrmd Privy Ccl) –

despite the Melbourne Corps Principle (as per Dixon J in Second Uniform Tax Case)

ii. can use State as a conduit or agency to distribute money to private persons, so long as money is placed in the hands of the state (Ibid, Dixon CJ in Second UTC) terms and

conditions of a grant may go beyond s 51 heads of power

2. STEP 2: Characterise the legislation in question

a. Characterisation of the act is to be done with reference to the rights, powers, liabilities, duties

and privileges (Grain Pool, Bank Nationalisation)

b. This is done by considering legal and practical operation of the act (Dingjan, Bank Nationalisation, Fairfax)

c. When considering a legislator scheme wrt tax and grants, assess each act individually, rather than

looking at the cumulative or consequential effect of the scheme (Latham CJ in First UTC)

3. STEP 3: Do any Limitations on the power apply in the circumstances?

a. Terms and conditions cannot be coercive (demand obedience) – they cannot compel States to surrender a power, or prohibit an exercise of power

i. While the freedom of a State to accept or reject a grant may be politically restricted in

reality, it must remain unrestricted in a legal sense (Wilson J in DOGS Case) ii. BUT a grant may induce an action with an attractive offer – this is not a compulsion

(Latham CJ in First UTC)

b. Subject to freedom of religion under s 116, which limits all provisions of the constitution (DOGS Case)

c. Subject to limitation in s 51(xxxi): acquisition of property on just terms (PJ Magennis) [F: Cth could

not enter agreement with States to acquire land on terms that were not just] 4. Court is NOT concerned with wisdom or expedience of the policy (Wilson J in DOGS Case)

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INCONSISTENCY OF LAWS s 109 provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.

1. General principles

a. For s 109 to apply, there must be a valid State and Cth law (Carter)

i. ‘Laws’ for the purposes of s 109 include: 1. Acts of Parliament 2. Regulations and subordinate legislation (Second Airlines Case)

3. Not soft instruments - e.g. policy manuals, admin instructions, industrial awards

There are three broad situations in which inconsistency arises (Karkariki per Dixon J)

SITUATION 1: It is impossible to obey both laws at once (direct)

1. Explanation: One law requires you must do X, while the other prohibits X

2. Examples a. Brisbane Licensing Court: State referendum on the same day as the federal Senate election

b. Australia Boot v Whybrow: Cth law prescribes higher minimum wage than State law, though

possible to obey both laws by paying the highest minimum wage c. Ex parte Mclean: Cth and State laws prohibit same conduct, but with different penalties

SITUATION 2: One law purports to convey a right, privilege or entitlement that the other purports to take away

(direct) (Clyde Engineering)

1. Explanation: One law says you can do X, the other that you cannot do X.

2. Consider rights conferred by each law, and whether Cth is conferring a positive right free from restrictions,

or a qualified right (i.e. subject to other legislation) 3. Examples

a. Colvin: Commonwealth law allowed employers in certain industries to employ women to work on

certain machines, state law made this an offence

b. Clyde Engineering: Commonwealth and State set different working hours in a week, with different pay conditions

SITUATION 3: Commonwealth law evinces an intention to ‘cover the field’ (indirect)

1. Three considerations (Clyde Engineering; McLean) a. Is the Cth law intended to be exclusive? This can be indicated by...

i. Expression intention: clear statement in statute (Wenn)

ii. Implied Intention: 1. Detail of the Cth law (McClean - the more exhaustive in detail, the more likely the

Cth intended to ‘cover the field’).

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2. Subject matter of the Cth law (Goulden; Mining Act Case - if the subject matter of

the law requires uniformity across states, e.g. currency, IP, tax. etc, then

operation is likely to be exclusive) b. In what area/field is the Cth law intended to exclusively operate?

i. Matter of fact to be determined by the court by looking at the subject matter of the Act

(Ansett) e.g. broad: O’Sullivan, narrow: Airlines c. Does the state law operate in the same area of the Cth law?

i. Where they operate on the same subject, the laws will be inconsistent (McLean)

ii. No inconsistency where the two laws are directed to different purposes within the same field (Commercial Radio)

1. Commercial Radio: One law was concerned with technical requirements of

broadcasting and the other with the environment of of broadcasting, held no inconsistency

2. Manufactured inconsistency (e.g. provisions of this Act shall apply to the exclusion of any provisions of any law of a state)

a. Controversial Position: It is not possible for Cth to force its legislation into direct conflict with State

laws (Evatt J in West and Kitto J in Second Airlines Case)

b. However, the position in Evatt does not appear to be supported by the High Court anymore.

Rather, courts treat this issue as a matter of construction. c. Therefore, if Commonwealth makes a genuine attempt at legislating on a head of power, and it is

not an attempt to exclude state concurrent power, it is valid to cover the field (Wenn)

d. S 109 may operate where Cth chooses to enact a scheme involving less detailed regulation than State law provides (Work Choices)

3. Manufactured consistency - i.e. rollback clauses (e.g. Act is ‘not intended to exclude or limit the concurrent operation of any law of a State or Territory)

a. A law can effectively declare its intention to not cover the field

b. However, this cannot overcome direct inconsistency or collision (Credit Tribunal, Momcilovic),

which will still render the state law invalid c. Rollback clauses cannot operate retrospectively (Visauskas, Metwally) e.g. so as to revive State

legislation by not covering the field

EFFECT OF INCONSISTENCY

1. State law will not be invalid; it is valid though rendered inoperative (Native Title Case)

2. Thus, if at some later point the Cth law ceases to operate, the State law will resume its effect (Butler)

3. Only the particular inconsistent provision in state legislation will be affected, not the whole statute, as long as it is severable (Wenn)

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THE FEDERAL COMPACT: MELBOURNE CORPORATIONS PRINCIPAL Statement of principle:

1. In Austin (Gaudron, Gummow and Hayne JJ with whom Kirby and Gleeson CJ substantially agreed on this point), hold that the principle should be considered a single test, informed by concepts such as

‘special burden’ on the States, and ‘curtailment’ of ‘capacity’ to function as governments.

2. The ‘essential’ question ‘whether the law restricts or burdens one or more of the States in their

exercise of their constitutional powers’ 3. Kirby J explains that discrimination may be an indicator of attempted impairment by the Commonwealth

of the States’ functions, but it must still be measured by reference to the broader principle.

Key considerations:

x Form and practical operation/effect of the Act (Austin per majority)

x Note: French CJ in Clarke has indicated that answering the essential question involves a multi-factorial

assessment. **Note: none are necessarily determinative; do not list these out rather use them in the fact application stage when making analogies

1. Whether the law in question singles out one of more of the states and imposes a special

burden or disability on them which is not imposed on persons generally 2. Whether the operation of a law of general application imposes a particular burden or

disability on the States

3. The effect of the law on the capacity of the States to exercise their constitutional powers 4. The effect of the law on the exercise of their functions by the States

5. The nature of the capacity or functions affected

6. The subject matter of the law affecting the State or States and in particular the extent to

which the head of power under which the law is made authorises its discriminatory application

Cases to draw analogies (VERY IMPORTANT IN MELBS CORPS)

x Payroll Tax Case: A generally applicable payroll tax regime (2.5 per cent on all wages paid by an employer, including the State) did not breach the principle.

x QEC: Immunity extends to government statutory agencies (per Mason J) x Tasmanian Dam Case: Cth law had the effect of halting the construction of the Franklin Dam by the

Tasmanian HEC. [NOT INVALID] o Court – immunity is not concerned with maintaining the policy jurisdiction of the States, but their

exercise of constitutional functions o Brennan – may have been different if the land effected was government land and not wilderness.

x AEU: Cth law introduced a system of compulsory arbitration if there was no State system of compulsory

arbitration o Majority – Distinction between high level and low level employees: Cth can set pay and working

conditions of low level not high level (those conditions and terms were to be set by State). State

retained ability to determine qualifications and eligibility of employee o Dawson J – If determination of number and identity of persons employed is critical, says so are

terms and conditions as this will determine the number and identify of persons employed. He also

takes aim at the distinction between high and low level employees – State functions through who

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it employs at higher and lower levels of government

x Austin per majority – NOTED: high level of judicial office, discrimination as it only focused on judges (taxation of state officials is not breach if done in a non-discriminatory way), surcharge impaired State’s ability to select and remunerate judges [Facts: Cth enacted scheme imposing a surcharge on

superannuation of high income earners. This scheme didn’t apply to judges because judicial pensions do not depend on a contributory superannuation scheme, but are paid out of CRF. To equalize the liability of State judges with other high income earners, the Cth enacted separate legislation imposing a surcharge

on state judges calculated upon notional contributions made to a notional fund]

x Work Choices Case per Majority – Interest of state having industrial matters dealt with by State bodies with such that there is no conflict with Cth body not so vital to the functioning of the State [Facts: Cth law

prohibiting State industrial bodies from hearing matters before AIRC]

x Fortescue per majority: immunity is not concerned with maintaining the policy jurisdiction of the States, but their exercise of constitutional functions [Mining tax and interference with how WA uses royalties]

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FREEDOM OF INTERSTATE TRADE AND COMMERCE s 92 provides that the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

General principles

1. Under s92, law will be invalid if following 3 criteria are met (Cole; Betfair 1) a. The law places a burden on interstate trade;

b. The burden discriminates against such trade so as to impair competition between local and out

of state traders;

c. The burden is of protectionist kind

STEP 1: Does the law place a burden on interstate trade?

1. Characterise the law - what rights, obligations, duties does it create? (Grain Pool; Bank Nationalisation;

Fairfax; Betfair) 2. Is there a burden?

a. Must be imposed ‘in common circumstance of the setting in which the trade occurs’ (Betfair 2)

b. Can be fiscal or non-fiscal (restriction, quota, specification) c. Must be general, cannot relate to one individual or a specific group

3. Is the burden on interstate trade?

a. Not intrastate or international or trade with the territories

STEP 2: Is the burden discriminatory on its face or in its practical effect?

1. Discriminatory if

a. Discriminates between interstate and intrastate trade, even if it burdens only a few interstate traders so long as they make up the ‘essence’ of all interstate traders (Castlemain Tooheys)

b. Imposes a competitive advantage on an interstate supplier of goods and services compared with

intrastate suppliers of similar or different goods and services which may appeal to a similar class of consumer (Betfair 1)

c. It creates disability or disadvantage or if factual operation creates such a result (Cole)

d. Imposes an unequal tax on retailers, even if it has an equalising effect

2. Not discriminatory if a. It applies generally and equally to interstate trade and local trades (Betfair 2, Sportsbet); Example

- legislation was not held to be discriminatory because the regulations applied equally to all

Tasmanian Crayfish (Cole) b. It only targets a few interstate traders who do not represent all inter-state traders (Betfair 2)

c. It protects the industry by preserving a natural resource (Cole)

d. ‘It attempts on its face to solve pressing social problems’ (Castlemaine Tooheys) 3. Irrelevant factors:

a. Different business models of individual competitors (Betfair 2)

STEP 3: Does the discrimination have a protectionist effect?

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1. Protectionist if:

a. It impairs out-of-state competition to level the playing field (Bath; Betfair 1)

b. Raises protective barrier around particular trade (Cole) c. It protects state revenue (ONLY INDICATIVE, Betfair 1)

d. Local traders sell goods that are ‘substitutes’ for goods sold by interstate traders, as long as they compete in the same market and law interferes with that competition (Betfair 1)

2. Not protectionist if:

a. Burden does not create a competitive or market advantage for local industry (Cole)

b. Law has real object of prescribing a standard for a product or service or a norm of commercial conduct

STEP 4: Does the law pursue a legitimate non-protectionist purpose?

1. **NOTE: Usually spelt out in the object section of an Act or a second reading speech - mainly a matter of statutory interpretation

2. Castlemaine - the court has less authority to determine what is legitimate

3. Betfair - questioned the approach undertaken in

STEP 5: Exception - Is the law ‘reasonably necessary’ or ‘reasonably appropriate and adapted’ to that purpose?

1. PROPORTIONATE: Analogise with Tooheys: While the law was for a non-protectionist environmental

purpose, it still discriminated against interstate traders economically. SA Government imposed the refund

scheme for refillable bottles, disadvantageous to the sale of beer in non-refillable bottles who found it hard to change their manufacturing to use refillable bottles (preventing plaintiff from expanding share of

SA market)

2. NOT PROPORTIONATE: Analogise with Betfair 1: Law was made for a non-protectionist purpose but discriminated against interstate traders without any logical basis, claimed that online betting was ruining

the integrity of gambling when there was no proof that this in fact occurred.

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TRIAL BY JURY s 80 states that ‘the trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State, the trial shall be held at such place or places as the Parliament describes.

There are 3 main elements: If there is (1) a trial on indictment; and (2) the offence concerned is against any law

of the Commonwealth, (3) the trial shall be by jury.

STEP 1: Whether there is a trial on indictment

1. The Court has repeatedly held that the application of this protection lies wholly within the discretion of Parliament and its determination of whether a trial shall be summary or on indictment (Kingswell per majority; Cheng per McHugh)

2. Trials on indictment are not trials of ‘indictable offences’ (indictable offences being ‘serious’ offences that are generally punishable by imprisonment)

STEP 2: Whether the offence concerned is against any Commonwealth law

1. Must be a law a. Power of federal judges to punish for contempt of court does not apply (Colina)

2. Does not apply to offences against state or territory laws (Bernasconi)

STEP 3: If above is satisfied, what does s 80 guarantee with respect to the trial by jury?

1. Essential characteristics (Cheatle)

a. Representativeness, independence, randomness of selection, protection of integrity of verdict,

measured group deliberation and attention to the evidence 2. Verdict must be unanimous (Cheatle)

3. Can have less than 12 jurors (Brownlee) - may be an issue if less than 10 (per Gaudron, Gummow, Hayne JJ)

4. Need not determine all factual questions (Cheng) - Judges can do so in sentencing

5. Need not have absolute sequestration (separation from public) (Brownlee)

6. Jury cannot be vetted (Katsuno)

7. Commonwealth DPP cannot be given juror information (Katsuno) 8. No protection against double jeopardy required (R v LK per French CJ) 9. Jurors can be discharged from the jury (Brownlee)

10. Direct acquittal allowed (R v LK per French CJ) - A verdict of no case to answer involves the judge determining a question of law and so appeal under s 107 is also regarding a question of law. Allowed as

no interference with jury’s function

**NOTE: Jury trial cannot be waived (Brown)

1. Brown:Accused not allowed to waive right 2. Correct approach is to invalidate law rather than read down (R v LK per French)

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FREEDOM OF RELIGION s 116 provides that the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

This test contains four limbs, prohibiting the Commonwealth from making any laws:

1. For establishing any religion

2. For imposing any religious observance 3. For prohibiting the free exercise of any religion

4. Requiring a religious test as a qualification for any office or public trust

*NOTE: Undecided whether s 116 applies to laws made by the Commonwealth for the territories (Kruger) - Held

it does apply but did not apply to to laws self-governing legislatures of the territories (per Gaudron J; Toohey and Gaudron JJ)

STEP 1: Whether it is a religion

For s 116 purposes, there is no single definition of what constitutes a ‘religion’ that has been endorsed by a majority.

Three approaches have been endorsed:

1. Narrow Approach (Scientology case per Mason and Brennan)

a. Two criteria

i. Belief in a supernatural being, thing or principle

ii. The acceptance of canons of conduct in order to give effect to that belief b. Criteria may vary in comparative importance and there may be different intensity of belief or of

acceptance of canons of conduct among religions or among the adherents to a religion

2. Broad Approach (Jehovah's Witness per Latham and supported by Murphy in Scientology)

a. If a person/group genuinely believe that their beliefs/practices constitute a religion, then the

court should accept that these beliefs/practices are in fact a religion for the purposes of s 116

b. Latham in Jehovah's Witness: ‘Each person chooses the content of his own religion’ 3. Medium Approach (Scientology per Wilson and Deane J)

a. There is no single characteristic that can be laid down as constituting a formularised legal

criterion. However, it is possible to formulate the more important of the guidelines:

i. Collection of ideas/practices that involves belief in the supernatural. ii. The ideas relate to human nature and place in the universe and relationship with

supernatural.

iii. Ideas are accepted by adherents are requiring or encouraging them to observe particular standards or codes of conduct.

iv. This constitutes an identifiable group.

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v. Adherents themselves see the collection of ideas/practises as constituting a religion.

(most important element)

LIMB 1: Whether the law is for establishing a religion

1. Establishing

a. Establishment includes the establishment or recognition of one religion as a national institution (DOGS Case per Wilson, Mason, Gibbs, Barwick JJ)

b. Unclear how this is determined:

i. Wilson J: Establishment involves the deliberate selection of one to be preferred from among others, resulting in a reciprocal relationship between church and state. This goes

deeper than financial assistance, whether casual or regular.

ii. Mason J (narrower view): Involves the concession of favours, titles and advantages to one church which are denied to others that are so special to constitute the establishment of

a national institution iii. Barwick CJ: Involves the entrenchment of a religion as a feature of an identified with the

body politic. This this means having the citizenry involved in the maintenance of the

religion

iv. Stephen J: took a more flexible view extending s 116 to the favouring of one church over

another

LIMB 3: Whether the law is for prohibiting the free exercise of any religion

1. The freedom protected by s 116 is not absolute (Jehova’s Witness)

2. Therefore, the relevant test is whether the law has been enacted for the purpose of prohibiting the free exercise of religion (Kruger)

3. It is unclear how to determine the above, and differing approaches have been taken

a. Some judges have confined the inquiry to the law’s terms (Krygger, Kruger per Gummow and Brennan)

b. Other judges look at practical operation (Kruger per Gaudron and Toohey) in 2 stages

i. Does the law, in effect, curtail the free exercise of religion? If so, then 1. If it is for a specific purpose unconnected with free exercise of religion (i.e.

freedom is incidentally affected), it will not be invalid

ii. Is the curtailment proportionate to the attainment of some legitimate end? If so, then it will not be a law for the prohibited purpose

1. From Jehova’s Witness, a law can validly restrain religious practices which are

inconsistent with the maintenance of civil government and preservation of the

community

2. Consider other ways in which the law could have attained its legitimate end

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IMPLIED FREEDOM OF POLITICAL COMMUNICATION Freedom is derived from text of Constitution, which is said to create representative government (ss 7 & 24)

1. General principles

a. The Australian Constitution impliedly limits legislative power in order to ensure that the people

of the Cth may exercise a free choice as electors (McLoy)

i. Freedom is derived from text of Constitution, which is said to create representative

government (ss 7, 24)

To determine whether the law breaches the freedom of communication, we need to apply the 3 step test in McLoy (Note this test builds upon the test formulated in Lange and Coleman)

2. STEP 1 - BURDEN

a. TEST: Whether the law effectively burdens the freedom in its terms, operations or effect (McLoy; Lange)

b. Burden test has low threshold in that the extent of the burden is not relevant, rather just the mere

fact that the burden is there (Monis) c. Type of communication to which freedom applies:

i. Previously indicated that not possible to exhaustively define the scope of communications

covered by the freedom (Theophanous per Mason, Toohey and Gaudron JJ) 1. Conduct, policies, fitness for office of people public office

2. Political views and conduct of people involved in public debate

3. Speech which bears on issues which voters have to deal with or relevant to the development of public opinion

4. Does not include commercial speech or pure entertainment

ii. McCloy: Indirect burden on political donations iii. Monis/Coleman: ‘insulting’ communications were a type of communication to which the

freedom could apply (Coleman restricted use of threatening or abusive words in public)

3. STEP 2 - COMPATIBILITY TESTING

a. TEST: are the purpose of the law and the means adopted to achieve that purpose legitimate, in

that they are compatible with the maintenance of the constitutionally prescribed system of representative government? (McLloy)

i. Purpose: Matter of fact application

1. Protection of public peace legitimate purpose (Coleman) 2. Removing violence and threats from the public arena of public discussion is a

legitimate purpose (Coleman per McHugh)

3. Safeguarding integrity of the political process by reducing pressure on parties and candidates to raise substantial sums (Australian Capital Television)

4. Simply trying to protect the civility of public discourse is not a legitimate purpose

(Monis per French) ii. Means:

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1. Wotton/Brown arguably support the proposition that some censorship of public

comment is not inherently inimical to representative system of government

2. McLoy - capping political donations may be a means for strengthening representative democracy

3. McLoy - means legitimate primarily on the basis that they were commonly

adapted for the purpose in overseas jurisdictions

4. STEP 3 - PROPORTIONALITY TESTING

a. TEST: Is the law reasonably appropriate and adapted to advance that legitimate object? There are

three considerations involved (note: unclear whether all three need to be satisfied, however, per

McLoy it appears they do). i. Suitability: Does the provision have a rational connection to its purpose?

1. Measure must contribute to the realisation of the statute's legitimate purpose

(McLoy; Unions) ii. Necessity: Is there an obvious and compelling alternative that has a less restrictive effect

on the freedom?

1. Things to look at:

a. Any discretions b. Adaptable penalty regime (i.e. max penalty)

c. Means are direct (compare with McLoy where ban on political donations

from property developers was ok because it was targeted) d. Effectiveness of less heavy handed means

2. Examples

a. Disclosure not as effective as capping (McLoy) b. Limitation on bribery not as effective (McLoy)

iii. Adequacy in balance: Is there a balance between the positive effect of realising the law’s proper purpose with the negative effect of the limits on constitutional rights or freedom?

1. Weight of the burden:

a. Consider type of communication targeted - if only one type of

communication then unlikely to place a great weight (analogise to McLoy, where burden was held to be light because only applied to political

donations)

b. Consider competing public interest if applicable