The Corporations Powers S 51(xx) provides: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Cth with respect to: [...] foreign corporations, and trading or financial corporations formed within the limits of the Cth; [...]

1. What are the entities with respect to which Parliament may legislate?2. What kinds of legislation may Parliament make with respect to these entities?

1. Is the body regulated by s51(xx) a constitutional corporation?1.1 Foreign corporation: not formed within Cth and has separate legal personality under foreign law

1.2 Trading corporations: Formed within the limits of the Cth, set up primarily to engage in trade. 3 tests:1.2.1 Purpose of creation (nature determined by the purpose for which it was created). St George County Council (1974): local council not a trading corp because one of its functions was to supply electricity

Gibbs CJ: purpose not trade, but ‘for local government to provide an essential service to the inhabitants’ Menzies J: companies established to undertake public works for community benefit may not be trading

corporations. A uni may have a bookshop and a church may run a charity shop, but this does not make them trading entities.

1.2.2 Predominant activity (current activities of corporation). Adopted by dissenters, Barwick, Stephen, St George Barwick CJ: a trading corporation is a corporation whose ‘predominant and characteristic activity’ is

trading in goods or services (524). The purposes for which a corporation trades are largely irrelevant. It is the company’s current activity that matters, not its original purpose.

Stephen: Current activities less important than intended activity1.2.3 Substantial activity (favoured approach, are activities a ‘substantial’ or ‘not insignificant’ part of the company’s operations?). adopted by Mason, Murphy in Adamson’s Case (1979): WA and SA Aussie Rules leagues rules prevented player transfers without the consent of the player’s current club. Issue: whether the rules were in breach of the TPA in restricting trade. both held a trading corporation must have trade as a substantial part of its current activity, while not set up primarily for trade, it was a substantial part or operations (Merchandise, tickets, food, dividends)

Murphy: ‘as long as trading is not insubstantial, the fact that the trading is incidental to other activities does not prevent it being a trading corporation. Mason: preferred St George dissent

1.3 Financial corporations: definition adopted by Mason, Murphy, Deane in Superannuation Board Case (1982): ‘A company that trades in finance (e.g. borrows or lends money), as opposed to dealing in goods or services’. E.g Banks, building societies and broking firms

Deane J: a super fund for Vic public servants was a financial corporation as financial activities constituted a substantial part of its operations. Determining by if it engages in significant trading activity rather than comparison of its activities significantly lowered threshold.

Barwick: look beyond predominate activity, make judgement considering all future + current activities Gibbs CJ, Wilson dissenters: purpose of the corporation was governmental, not financial

2. Does trade occur only within one state? Huddart Parker v Moorehead (1908): early HC ruled s51(xx) didn't extend to corporations trading within a

single state. This was overruled in Concrete Pipes, Huddart was wrongly decided, as it relied on reserved powers reasoning but was struck down breadth (not limited to constitutional corporations)

Strickland v Rocla Concrete Pipes (1971): did TPA (Cth) provisions on anti-competitive conduct apply to a corporation trading exclusively within Qld? intra-state trading corporations were within Cth power

3. is corporation covered by the act S51(xx) is a power with regard to a particular type of entity. It is not a purposive power (like defence) or a

power to regulate a specific activity. HC determines outer limits on a case-by-case basis 2.1 Creation and abolition

Cth lacks the power to legislate with respect to the incorporation of corporations. NSW v Cth (Incorporation Case) (1990): cth enacted corporations act, a comprehensive scheme to

regulate australian corporations: 6:1 The words ‘formed within the Cth’ refer to corporations already formed under state laws. States eventually referred their corporations power to the cth

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Cth v Bank of NSW (Banking Case) (1948): Parliament may regulate the activities of corporations, but not ban them or remove their legal status.

Cth may incorporate corporations by relying on other heads of power, Keyzer: ABC is incorporated under s 51(v) conferring power to legislate for ‘postal, telegraphic, telephonic and other like devices’.

2.2 Distinctive character test (narrow view) subject matter of the law must relate to ‘distinctive character’ of trading and financial corporations, not

relations of corporations with contractors or employees. Re Dingjan; Ex parte Wagner (1995): legislation enabling a tribunal to set aside ‘unfair contracts’ entered

into by constitutional corporations was outside power 4:3. Toohey and mchugh: ‘it is a plenary power and the only test is sufficient connection – not sufficient here. Left scope open to uncertainty.

2.3 Object of statutory command test (wider view, preferred): constitutional corporation within the object of laws command cf. dingjan.

if law instructs a constitutional corporation to do or not do something, it is likely to fall within s51(xx). also supports laws aimed at protecting corporations from conduct intended/likely to cause them loss or damage.

Work Choices Case (2006): series of controversial amendments to the Workplace Relations Act 1996 (Cth). supported by s 51(xxxv) (conciliation and arbitration). But instead sought to rely on corporations power and regulate employers operating within a single state. Brought 85% of national workforce within federal jurisdiction. challenged on a number of grounds, including:

o deals with internal relations of corporations with their workers, rather than their relations with external entities. rejected as unjustifiably limiting the plain words of the power ‘there seems every reason to treat relationships with employees as a matter external to the corporation’

o The existence of a specific industrial relations power in s 51(xxxv) precludes using s 51(xx) for industrial relations purposes. rejected based on the Engineers doctrine (states don't have reserved powers) and multiple characterisation. (Preferred test is distinctive character)

o Majority: Gleeson, Gummow, Hayne, Heydon and Crennan upheld legislation on a broad reading of s 51(xx). The law regulates constitutional corporations and is therefore within the power.

o strong dissent: Callinan, Kirby: unless powers like s 51(xx) are limited federal balance will be destroyed.

o Callinan: nothing in Constitution to suggest that the Cth’s powers should be enlarged, by successive decisions of this Court, so that the Parliament of each State is progressively reduced until it becomes no more than an impotent debating society. This Court too is a creature of the Constitution. [...] The Court goes beyond power if it reshapes the federation

o Wide reading to 51(xx) but limited 51(xxxv) to irrelevance2.4 Third parties

Actors and Announcers Equity v Fontana Films (1982): provision of TPA prohibited secondary boycotts of corporations (where action is taken against a corporation to stop it dealing with a third party who is the real target of the action). upheld on the basis that it regulates third party actions that are intended to cause corporations loss or damage.

o Narrow view: regulating corporations activities. Gibbs: relied on federal nature of const and warned against giving Cth too much power to make any kind of law. Requisite connection required to limit this. broad interpretation woulfd have extraordinary consequences and may subvert the federal nature of the const.

o Broader view: regulating corporations generally: gained momentum after influence of Mason J who dismissed the narrow view: ‘a constitutional grant of legislative power should be construed liberally and not in any narrow or pedantic fashion.

Fencott v muller: s51(xx) may extend beyond corporations to regulate conduct or behaviour of individuals2.5 lack of sufficient connection

corporations power is now very broad and workchoices cemented this, but HC has occasionally been willing to strike down law for not being sufficiently connected.

Davis v Cth (1988): legislation sought to give the ABA a monopoly over certain words and symbols, including ‘200 years’. Held: s51(xx) would cover misleading use of corporate names or symbols, but granting a monopoly over ‘200 years’ beyond its scope.

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Tas dam: cth prohibited hydro-electric-comission of Tas from building dam, even though building the dam was not a trading activity, as it was preparation to trading

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Taxation, Appropriation and Spending Powers1. Is the law valid? Does it fall within head of power?

S51(ii): Parliament shall, subject to Const, have power to make laws for peace, order and good gov of Cth with respect to: … taxation; but not so as to discriminate between States or parts of States. ‘concurrent’

o Fairfax v Federal Commissioner of Taxation (1965): superannuation fund taxed unless they were invested in prescribed public securities. Purpose: investment incentive. Argued not a law ‘with respect to taxation’ as its purpose was unrelated to revenue. Rejected by HC parliament may use s51(ii) to regulate activities that normally fall outside Cth jurisdiction

s 90: duties of customs and excise power belongs exclusively to the Cth.o narrow definition helps prevent VFIo excise duties are levies on goods at any point of production/distribution connected to output o Peterswald v Bartley (1904): licence fee on brewers not an excise duty, as not related to output.o Dennis Hotels v Victoria (1960): distinction between licence fees and duties of excise. Fullgar, Kitto and

Taylor, narrow approach: licence fee levied on retailers or consumers at the point of sale is not an excise duty, even if based on turnover (Has withstood numerous challenges)

Dixon CJ, McTiernan and Windeyer dissent: wide approach considering substance. licence fee would be passed on to consumers

o Matthews v Chicory Marketing Board (1938): levy calculated by acreage planted sufficiently related to output to qualify as an excise duty. Vic law imposing the tax was struck down.

o Capital Duplicators v ACT 1993): tax on retailers based on the production or distribution of the goods, rather than purely their sale, is an excise duty. (backdating)

o Dickenson’s Arcade v Tas (1974): states may impose consumption taxes. Menzies, Gibbs, Stephen and Mason: followed Dennis Hotels literalist precedent Gibbs: immaterial that it had same effect as tax on retail. Barwick, McTiernan dissent: focus substantive affect not form

2. Must fulfil the definition of tax: ‘a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered.’

Matthews v Chicory Board (1938): Vic gov authority imposed tax on chicory cropped land and sold it to NSW buyer. Was an excise and prohibited under s90. Latham CJ tax is (Air Caledonie: not exhaustive):

1. A compulsory exaction of money (AG NSW v Homebush: choice may exist on paper but not in practise. Storage of flour at own expense and risk meant it was cheaper to by own flour back at extortionate price.)

2. By a public authority (a public authority is established by an act: Tape manufacturers v cth)3. For public purposes

HC has treated fees imposed on individuals that serve public interests as taxes (air caledonie) Charge must not be for enforcement of pre-existing private liability (lutton v Lessels) All funds raised by Cth must be paid into CRF. Funds may be appropriated ‘for the purposes of the Cth’ per

S 81 as authorised by legislation: s83. AAP Case (1975): AAP made tied grants to regional councils conditional on the councils implementing

federal government policies. Challenged as funds were not being used for the ‘purposes of the Cth’ but for local government activities. Held: ‘purposes of the Cth’ are whatever purposes the Parliament chooses, wide interpretation.

Second Uniform Tax Case (1957), Dixon: by giving tied grants states under s 96, to states or local councils, the federal government may accomplish policy objectives outside normal powers of the Cth

o HC: grants aren’t coercive because they don't have to accept grants o Quick and garran: intended to be used in cases of emergency medicine not the daily food of

the constitution. Conceived by framers as a transitional power, confined to supplementing state resources. Lane: exceeds powers; avoids prohibitions, damages federalism

Combet v Cth (2005): specificity required for s81. argued general appropriation for ‘departmental expenditure’ did not cover expenditure on advertising not mentioned in budget notes. rejected

o Gleeson CJ: deferred to parliament on limits like majority: ‘parliament may decide how precisely to express appropriations. ‘One-line appropriations are valid’

o McHugh, Kirby JJ dissent: appropriations must be precise enough to be meaningfully evaluated. (Kirby: would undermine transparency and accountability)

Pape v Commissioner of Taxation (2009) qualified APP broad approach. ‘tax bonus payments’ unsupported by head of power? HC: s81 covers spending related to cth purposes defined elsewhere in the const, not confined to s51,, but also s61 (executive’s power to respond to international challenges to Australia’s interests)

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o 61, national interest, is a very broad power, extends to almost anything, in effect unlikely power will be limited following pape

o HC has curtailed the scope of s 61 in Williams v Cth [4. Not a payment for services.

Air Caledonie v Cth (1998) Migration Act 1958 (Cth) instituted an immigration fee of to be collected from all passengers entering Australia by air. airline required to pay regardless of collection from passengers. P argued that fee was a tax and couldn’t be inserted into the Migration Act as the Act as it contravened s.55. HC held provision invalid: in order for a fee to be a ‘payment for services’, there must be an identifiable service rendered. The fee must be directly related to the provision of the service.

o Conditions not satisfied: no service provided to citizens and fee paid by airlines, not passengers. Cf. Airservices Australia v Canadian Airlines (1999): Compass leased planes from Canadian before

liquidating. Airservices was a statutory corporation associated with Cth authority regulating air traffic services. Compass owed Airservices fees relating to lease. Following liquidation, Airservices imposed a statutory lien over the leased aircraft, forcing the lessors to pay outstanding fees or forfeit planes.

o fees were for public safety functions, and fixed according to a complex formula. did not cost actual service to each customer. Compass charged more than value of service received.

o Compass argued the charge was a tax imposed in contravention of s 55. HCA disagreed, viewing the charge as a ‘payment for services’. Fees were imposed not to raise revenue, but to cover the cost of services across a group of users. The fees were reasonably related to the expenses incurred.

o Gleeson CJ and Kirby j: ‘charges were not imposed to raise revenue, but were for the provision of services to recover the costs across range of users and services. rational basis for discrimination between users.’

MacCormick v Commissioner of Tax (1984): fines/financial penalties for breaches of law aren’t taxes

3. Procedural and substantive limits on s51(ii)s53: Tax laws cannot originate in or be amended by the Senate

senate may return a tax law with amendment request but house of reps need not comply Lower house is larger and more democratic and therefore should have more control.

S55: laws dealing with taxation must deal with only one subject of taxation. (custom only with custom and excise only with excise)

Strict application in Air Caledonie Second Fringe Benefits Tax Case (1987): Fringe Benefits Act imposed tax on several fringe benefits. Majority:

whether statute relates to one or more subjects involves assessment of fact & value. Deferred to Parliament’s understanding: various taxes imposed all dealt with common subject of fringe benefits. Wont override Parliament’s view unless matters dealt with are clearly separate

‘Tacking on’: Historically, House of Lords had the power to block legislation, but money bills were rarely rejected. House of Commons attached substantive provisions to money bills. Compromise: The Lords would not block money bills if Commons did not tack on. codified in ss54 and 55.

S51(ii): Parliament may impose ‘taxation; but not so as to discriminate between States’ deliberate scheme (Barger) or merely incidental to overarching objective (ellitot) R v Barger (1908): states had industrial awards cth regarded unreasonable, but cth couldn’t impose

discriminatory tax to enforce its preferred policies. Cth statutory Excise Tariff provided that manufacturers providing ‘fair and reasonable’ labour conditions were exempted from excise duty. Discriminatory, clearly intended to allow the imposition of different duties in different states.

o Form: tax. Substance: industrial relations and beyond cth powero Issacs: various wages suiting diff conditions was actually an absence of discrimination

Cf. Elliot v Cth (1935): Maritime workers at prescribed ports required a licence to work in those ports. Cth designated ‘prescribed ports’ in all states except WA and Tas. Elliott was based in Sydney and objected to having to pay for a licence when workers in other states did not.

o s99 prohibits Cth discriminating between the states in laws of trade, commerce or revenue.o Upheld by majority: discrimination was not between states, but between different Cth ports, having

regard to local conditions. Discrimination was incidental.o Issacs: ‘nothing to prevent parliament, charged with the welfare of the people as a whole, from doing

what every state in the Cth has power to for its own citizens … from basing its taxation measures on considerations of fairness and justice’

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Freedom of Interstate TradeS92: On 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.

strongly worded, reflecting the importance the framers placed on it. Even broader than the US and Canadian clauses it was modelled on (Quick and Garran). But not absolute, still subject to legal limits

Early cases on s92 used Free trade theory and focused only on discriminatory barriers that distinguished internal and external traders. Problem not all restriction on internal and external traders from discriminatory barriers.

Fox v Robbins (1909) struck down law imposing higher licence fees on bars selling imported beer

Individual rights theory (extends beyond discriminatory laws) James v SA (1927): gov attempt to regulate dried fruit trade, limiting production and telling producers

where to sell their crops, banning export in this case. The law didn't discriminate between internal and external traders but nonetheless was found to infringe s92. Still the case when gov tried to compulsory acquire his property and produce.

Cth v Bank of NSW (1948): Banking Act 1947 (Cth) nationalisation of banking industry, creating a monopoly. Violated s92, even though it was not discriminatory as a monopoly is only justified if it is the only reasonable mode of regulation

Cole v Whitfield (1988): Fisheries Act 1959 (Cth) banned taking, trading or possession of crayfish below a certain size (conservation measure). Didn’t distinguish internal/external traders. W farmed crayfish in Tas and imported SA crayfish. SA law didn't impose size limits. Charged with selling undersized crayfish. Challenged under s92

HCA rejected it. regulations were reasonable and there was no practical way of distinguishing local and imported crayfish.

S92 doesn’t protect an individual right to free trade, but rather bans ‘discriminatory burdens of a protectionist kind’.

The Cole v Whitfield test effectively contains three elements (all be satisfied to invalidate s92):1. A burden on trade (such as restriction on interstate trade)2. Discrimination between internal and external traders (on its face the law subjects that trade or

commerce to be a disability or disadvantage OR if the factual operation produces such a result)3. A protectionist impact (does law confer a competitive advantage on goods from particular state

by requiring interstate competitors to comply with special, local regulations?) non-exhaustive list of laws that would violate s92 (examples of protectionism prior to federation): Tariffs

that increase the price of imports, quotas on imports, differential railway rates (or other transport costs) and subsidies for local goods.

History used to identify meaning of language used. Considered the subject, nature and objective to which the language was directed (Opposite method to engineers).

o Intent to create free trade and uniform tax, removing barriers to federalismo Prof LaNauze: ‘absolutely free’ understood to connote not only freedom from boarder customs to

protect local industry but also duties not protectionist in purpose but compatible with free tradeo Griffith: free trade and commerce is not to be restricted by and taxes and prohibits interference

by the imposition of differential rates on railways or rivers

Bath v Alston (1988) (financial equalisation measures) Applied Cole v Whitfield. Higher licence fees imposed on sellers of imported tobacco. Vic gov argued this

merely levelled playing field, since tobacco wholesalers in other states did not have to pay Vic licence fee for wholesalers. HC struck down 4-3, law has a protectionist effect by disadvantaging imported tobacco.

Majority: Mason, Brennan, Deane and Gaurdron: Retailer who sells only tobacco purchased from Vic will pay appropriate fee for license. While retailer who sells only interstate purchased tobacco products will pay the flat fee plus 25%. undeniably protectionist in both form and substance.

Dissent: Wilson, Dawson and Toohey: object to equalise burdens on imported and local tobacco not to favour the local product

4. is the law a proportionate measure in pursuit of a legitimate objective?1. Legitimate objective

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2. Is the pursuit of this objective proportionate?

Castlemaine Tooheys v South Australia (1990): SA bottle return scheme challenged for giving Tooheys 2 disadvantages: 1) Non-refillable bottles required a compulsory refund of 15c, while refillable bottles had a compulsory refund of 4c. 2) non-refillable bottles had to be returned to the retailer, while refillable bottles could be returned to collection depots. Local bottles refillable, interstate not. Severely limited Tooheys market share.

Not protectionist/discriminatory on face, but was in effect violating s92. objectives of litter control and conservation did not require two different methods of returning the bottles.

Gaudron, McHugh: discrimination lies in unequal treatment of equals and, conversely in equal treatment of unequals. Distinction between refillable and non-refillable discriminatory

Mason CJ, Brennan, Deane, Dawson and Toohey JJ joint judgment: set out important principles:1. A law burdening interstate trade will only be consistent with s92 if it is necessary or appropriate

and adapted to a legitimate policy objective (either protection of the community from a real danger to welfare, or to enhance welfare)

2. The burden placed on interstate trade must be incidental to the law. 3. The burden must not be disproportionate.4. A discriminatory law will only be upheld if there is no other reasonable alternative.

Betfair v Western Australia (2008): majority principles in Castlemaine Tooheys were applied. WA law prohibited online betting exchanges. WA government argued the law was needed to protect the integrity of the betting industry. had a discriminatory impact as local WA betting was dominated by the TAB. The plaintiffs were a Tasmanian betting exchange and a local punter.

HCA struck down the law. There were other less discriminatory methods available, such as regulating betting exchanges.

Added clarifications:o Presence of a non-discriminatory objective does not save the law from invalidity under s92.o A law that has the object of prohibition will not be saved by the existence of discretionary

exceptions depending on an executive officer.o A discriminatory prohibition on a particular industry will be invalid if less drastic measures are

available to achieve the same policy objectives.

State monopolies Early cases James and Banking Case suggested that gov monopolies would offend s92. question arose

again in Barley Board Case (1990) which upheld a scheme where all barley grown in NSW had to be sold through the Barley Marketing Board. HCA: not discriminatory and :. consistent with free trade, s92.

o where a commodity was a scarce resource or most inexpensive local to a particular state, the imposition of a government monopoly might offend s92.

The joint judgment in Betfair pointed out that local and interstate commerce are interrelated. State based restrictions on a national market may therefore undermine the spirit of s92.

o It remains to be seen what attitude the High Court will take to government monopolies in the future. Would the Banking Act 1947 (Cth) be valid today?

Freedom of intercourse Cole v Whitfield : ‘a personal freedom to pass to and fro among the States without burden’. Nationwide News v Wills (1992)

o Deane and Toohey JJ: freedom may cover not only physical movement, but ‘all of the modern forms of inter-state communication’.

o Brennan J: discrimination not necessary. A restriction on border crossing will be invalid unless: law is mainly enacted for a purpose other than limiting interstate movement appropriate and adapted to the intended purpose necessary and incidental to the law’s operation

o It is unclear whether the freedom extends to movement of information (as Deane and Toohey JJ suggested) or only persons and goods.

Brennan: ‘ideas have no location. The expression of ideas, whether literary or other form can be moved across boarders to attract the scope s92.

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Express Rights1. Acquisition of Property: s 51(xxxi)

grants power of eminent domain to cth and is a guarantee against appropriation without compensation. Elements:

1. Acquisition 2. of property 3. from any state or person 4. For any purpose which parliament has the power to make laws. (s51, 52, 61, 71 Blackley v cth)5. On just terms.

Transfer of property by law from one person to another does not require compensation when transfer is authorised by the very nature of the Cth power under which its made

Exemptions: taxation (AG v Schmidt), forfeiture of goods involved in evasion of customs/laws (burton v honan), confiscation of crime proceeds, sequestration of property of a bankrupt, wealth transfer (Nintendo)

2. ‘Property’ (defined broadly) must be definable, identifiable by third parties, and have some degree of permanence or stability Exclusive possession of land without title: Army Minister v. Dalziel (1944). Dalziel rented, ‘extends to any

acquisition of any interest in any property’ Company shares: Bank of NSW v. Cth (1948): authorised the CBA to acquire shares in bank and appoint

new directors to replace company directors. Cause of action (rights to sue): Georgiadis v. Telecommunications Commission (1994) Statutory rights to gov payments not covered: Health Insurance Commission v Peverill (1994) voluntary sale presumed to be made on just terms: Trade Practices Commission v Tooth; BMA v cth McClintock v cth: forced sale

1. ‘Acquisition’ (defined narrowly) Involves compulsion (Poulton v Cth) as distinguished from a consensual acquisition (BMA v Cth) Key element: taking control, deprivation or dispossession (Banking case)1. Regulation of property without transferring title to gov doesn't amount to acquisition

o Cth v Tas: Mason, Murphy and Brennan JJ: ‘not enough legislation adversely effects a pre-existing right; there must be an acquisition of an interest in ‘property’, however slight or insubstantial

Deane dissented on issue: not necessary to show material gain to Cth/another o *Georgiadis (1994): legislation preventing workers suing was an ‘acquisition’, as the

extinguishment of the right conferred substantial benefit on Cth (immunity from litigation).o Cf Peverill (1994): Medicare benefits retrospectively being reduced was not ‘acquisition’. It was

based on policy considerations and nobody ‘acquired’ a corresponding benefit. 2. Must gain ‘proprietary’ interest

o ICM: NSW funding agreement with Cth requiring legislation reducing entitlement. Majority: no acquisition of property Hayne, Kiefel and Bell JJ, licences were property, but no acquisition because state gained

no ‘identifiable or measurable advantage from regulations’. Dissent Heydon: were property as they were definable, identifiable by third parties and

had a considerable degree of permanence, capable of assumption by third parties etc. o Australasia v Cth [2013] HCA (‘BATA’): Plain Packaging Act regulated the appearance of packaging

and the use of trade marks on packaging. Argued: extinguished intellectual property rights -which constituted property, aim was to deter sale of tobacco products – which was benefit.

Differing opinions as to whether the intellectual entitlements constituted ‘property’ 6/7 held that there is no ‘acquisition’, French CJ ‘the interest or benefit accruing to the Cth or another person must be

proprietary in nature and the Cth has acquired no such interest’. Dissent Heydon: purpose to provide protection, should be read widely not confined to

narrow/pedantic definitions. Cth need not obtain a proprietary interest. sterilises property rights and compels presence of Cth’s messages - amounts to identifiable and measurable advantage

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3. Removing licenseo Newcrest Mining v Cth: cancellation of mining licence amounted to acquisition. No compensation

as HC was bound by Teori Tau (s.122) later overruled by Wurridjal v Cth o Cth v WA (1999): Cth law authorised military training on state land. Prevented access. Majority:

frequent authorisation could amount to acquisition but no evidence of this. Kirby, Callinan JJ dissent: The extent of the authorisations is not relevant.

4. for any purpose parliament has power to make laws (application to states) Cth does not have to take property directly, can be done through a third party for cth purpose (TPA v

Tooth or Collins v hunter: service people authorised to occupy unused houses without owners consent) Magennis v Cth (1949) struck down agreement via statute for state to take property on terms not just

where act disclosed intent Pye v Renshaw (1951) upheld an informal agreement for Cth to make a grant of financial assistance on

the basis that the state would acquire property on terms not just. ICM (2009): 3 of majority expressly left the issue of informal agreements open, but held doesn’t extend

to terms requiring the state to acquire property other than on just terms. Spencer v Cth: suggests willingness to overrule pye v renshaw tree clearing restrictions made farm

unviable. Dismissed as no agreement between cth and state to take property. Insufficient evidence of informal agreement

o constitutionality of this practice was left open in ICM but will most likely by reconsidered in Spencer v Cth [2010] when it returns to Court Pye v Renshaw will probably be overruled

5. Just Terms Nelungaloo v Cth (1948) Williams J: compensation required is understood as a fair amount that takes into

account both the property owner’s interests and the public interest in the acquisition. Grace v cth: market value and naturally flowing costs good guide (but not required) APMB v Tonking (1942): body determining must be unbiased, give fair hearing and allow review Dalziel: necessary owner will be able to make submissions on amount of compensation Magennis: requires terms actually be just and not on terms parliament considers just. Georgiadis: Brennan J: Nothing less than ‘full compensation’ will suffice, individual’s property interest

prevails over communities. Not a balancing of interests. Purpose to protect owners

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2. Trial by jury S80: trial on indictment of any offence against the law of the Cth shall be by jury. only applies to Cth offences but most criminal offences occur under state legislation. HC Narrow interpretation: Historical safeguard R v Archdall (1928): whether to make an offence triable ‘on indictment’ is up to parliament. Can make an

offence punishable by substantial imprisonment, but declare it a summary offence, so s 80 does not apply. (literalist interpretation to avoid affect). Confirmed in Kingswell v R (1985)

o Brennan, Deane strong dissent: (echoing Dixon, Evatt) ‘trial on indictment’ suggests serious offense, shouldn't dilute. bulwark against tyrannous arbitrary punishment

o Dixon and Evatt JJ in R v Lowenstein: makes a mockery of s 80, rendering protection illusory Brown v R (1986): can’t be waived accused. Deane: ‘words are mandatory’ focused on form. Gibbs and

Wilson, dissent: reflect a libertarian approach, focus on substance and purpose of framers. Cheatle v R (1993): If a trial is on indictment, s80 requires conviction by unanimous jury verdict.

3. Religious freedom S116: The cth 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 Cth (not state Kruger v Cth)

o two limbs: establishment clause and free exercise clause narrow interpretation of violation. Wisconsin v Yoder: Similar US 1st Amendment has broader

interpretation. Statute requiring school attendance unjustifiably burdened religious practices broad interpretation of definition: includes freedom to not have a religion but not broad enough for

Buddhism Latham in Jehovah’s Case3.1 establishment clause

o DOGS Case (1981): upheld funding of religious schools, interpreting s 116 narrowly.o Barwick CJ and Wilson J ruled that the term ‘establishment’ in s 116 is confined to establishment

of a religion as a national or Cth institution. (literal approach)o Gibbs and Mason JJ ‘establishment’ only applies to designation of an official state religion. o Stephen J broader: establishment clause prohibits discrimination between religions. o Murphy J dissented. term ‘establishment’ should be interpreted widely to ban any state

assistance to religious institutions. Followed US interpretation. strongly criticised. Purposive: referred to all religions, non-preferential funding is still establishing religion.

3.2 free exercise clause Krygger v Williams (1912): Krygger objected to compulsory military service on religious grounds, he

regarded all military duties as a sin. HC dismissive and not well reasoned o Griffith CJ described the argument as ‘absurd’. He thought it plain that military service had

‘nothing at all to do with religion’, esp as s allotted religious objectors to non-combat o only laws specifically targeting religious practices will offend s 116. May get diff result now

Jehovah’s Witnesses Case (1943): cth thought the Jehovah’s Witnesses were obstructing the war effort. gov responded by seizing church’s property.

o Latham CJ s166 protects not only the free exercise of religion, but also the freedom not to have a religion at all. freedom isn’t absolute, subject to limitations ‘reasonably necessary for protection of community and in the interests of social order’. War was a legitimate end

Kruger v Cth (1997): accepted Latham in Jehovah. gov policy of removing indigenous children from families did not violate s 116. free exercise clause only prohibits laws intended to impact on the free exercise of religion. General laws that incidentally impact on religious freedom are permitted.

4. An express right to vote? S41: no adult who has the right to vote for the lower house of her state legislature may be deprived of the

vote at Cth level R v Pearson (1983): s41 transitional and no longer of any effect, despite not containing words such as

‘until the Parliament otherwise provides’ like other transitional provisions. Ironically, HC has found and implied right to vote in ss 7 and 24.

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Implied Rights (qualified right of freedom of political communication)Basis of the implied right

ACTV v Cth (1992): Broadcasting Act prohibited political ads at election times (Federal and State); required free air time for parties in previous parliament proportionate to number of first preference votes. Breached implied right and burdened states.

Nationwide News v Wills (1992): Charged under Industrial Relations Act for publishing writing titled ‘advance Australia fascist’ calculated to bring commission under disrepute. Virulent attack on Australian industrial relations commission calling judiciary corrupt and compliant. The act was found to penalise true or reasonably justifiable statements.

ACTV and Nationwide News: majority used two stage process of reasoning:1. const provisions reveal an intention to set up a representative form of government (ss. 7, 24, 64

and 128) ACTV 6:1 (Mason CJ, Deane, Toohey, Gaudron, Brennan and McHugh JJ; Dawson J

dissenting): Const contained an implied freedom of political communication.2. Freedom of communication is essential to the functioning of this form of government.

Nationwide, Brennan: ‘where representative democracy is constitutionally entrenched, the freedom of discussion which is incidental and essential to sustain it is as firmly entrenched in the Constitution.’

ACTV: freedom is an indispensable incident of constitutional processes of responsible and representative government. Is an immunity from laws interfering with the free flow of political information.

ACTV, Mason: Only by exercising that freedom can citizens communicate views relevant to political decisions and bring about change. Without it gov would cease to respond to needs and wishes of people and no longer be representative

Lange v ABC (1997): rare unanimous joint judgment: clarified that the freedom derived from the words ‘directly chosen by the people’ in ss 7 and 24. end of Dawson J’s resistance

o ss7, 24: Senate and the House of Reps must be ‘directly chosen’ implies necessary conditions must be put in place for citizens to choose their representatives. If citizens are to have an effective choice, they must be free to discuss candidates performance.

o ‘freedom of communication of political nature is incidental to constitutional system of government and cant be curtailed by legislative or executive power and the common law cannot be inconsistent with it. But the freedom is not absolute and it follows that the limit on legislative power is also not absolute.’

o ss7, 24 ‘do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. right to non-interference.

1. burden on political communication (reasonable debated of government policy or conduct) Covers communication on political matters (government policy, debate on performance), not other types

of speech. Cunliffe v Cth (1994): Migration Act: only registered migration agent could provide advice on migration

matters. Majority: advice on migration issues was not a political matter. APLA (NSW) (2005): Doesn’t protect commercial communications (marketing of legal services) States: ACTV, Mason CJ, Deane, Toohey and Gaudron JJ: political communication can’t be subdivided to

correspond with tiers of government. Stephens v WA News, majority: extends to discussion state members conduct

Levy v Victoria (1997): protects all forms of communication including actions. Levy protested against duck shooting by entering hunting area between hunters and ducks. charged and convicted under a Vic law which prohibited people from entering designated hunting areas.

2. law aimed at achieving a legitimate public purpose?

Levy v Victoria and Wotton v QLD: Reasonable restriction for public safety

3. Legitimate restrictions ACTV, Mason CJ and McHugh: restrictions on content will be more difficult to justify than restrictions on

mode (restrictions on content go directly to communicated ideas)12

two step test to determine permissibility of restriction (Lange modified by Coleman, per French` CJ)

1. must be aimed at a legitimate government objective.2. reasonably appropriate and adapted to the objective (Lange)

must not be excessive, cant be less extreme means available for same objective, proportionate

Court will consider need to protect the institutions of representative and responsible government (128). Lange required compatibility with the maintenance of these

Cant be too broad Nationwide, Dawson J disproportionate to the achievement of a legitimate end

Coleman v Power (2004): C distributed leaflets in Mall insulting police. Contained: ‘Get to know your local corrupt type coppers’; ‘Townsville cops – a good argument for a bill of rights’; and ‘Kiss my arse you slimy lying bastards’. Known officer approached, C proclaimed ‘this is a corrupt police officer’. Coleman was arrested and charged under Vagrants Act (Qld) for using ‘threatening, insulting or abusive words’ in a public place. read down, and conviction reversed. Both parties agreed it was a restriction on free speech.

o McHugh, Gummow, Hayne and Kirby JJ: insults may be political communication, if intended to make a political point.

o McHugh J: prohibition on insults, as opposed to threats or abuse, was too broad to be considered reasonably adapted to a legitimate end. read down to remove insults reference

o Gummow, Hayne and Kirby JJ: went further - provision was valid only in application to words that were likely to provoke violence.

Wotton v Qld [2012] HCA: further illustrates the issue of reasonable restrictions. Wotton participated in a protest on Palm Island following an indigenous death in custody. He was charged with rioting causing destruction and sentenced to six years. granted parole on the condition that he not attend public meetings without approval and that he not communicate with the media.

o French CJ, Gummow, Hayne, Crennan, Bell and Kiefel JJ held that the conditions burdened political speech, but were appropriate and adapted to public safety.

o Heydon J held that the conditions did not ‘realistically threaten’ freedom of speech. Monis v R: confirmed if not broadened this. CC prohibited using a postal service in way that ‘reasonable

persons would consider menacing, harassing and offensive’. French, Heydon and Hayne: didn't pass Lange. cf Heydon in Wotton

4. Defence of qualified privilege defences to defamation under common law were limited, this discouraged criticism: fair comment

required proof of truth and qualified privilege limited to communications between persons with a special relationship not general public (e.g. lawyer/client).

HC majority (Mason, Deane, Toohey, Gaudron) created an expanded defence of qualified privilege in 1994 cases: Theophanous v Herald & Weekly Times and Stephens v WA News. Critical of lower house member and parliamentary study trip respectively, both published in papers. Applied where:

1. imputation concerns a political matter and refers to a public officer or a candidate; and2. There was no awareness of falsity and the statement was not reckless or unreasonable.

Lange v ABC: Four Corners alleged misconduct by then NZ PM. HC clarified defence in a unanimous joint judgment:

1. communication must be disseminated to a wide audience/be public (damage is greater)2. must relate to a political matter3. must be reasonable (reasonable grounds to believe it is true and publisher took reasonable steps

to verify the facts, did not believe it to be untrue and sought response from person targeted, unless impractical or unnecessary)

4. must not be malicious (this will defeat defence. Requires proof of motivation by improper purpose unrelated to political debate, as intention to cause political damage is insufficient)

common law and statutes may expand the defence, but they may not lawfully restrict it.

HC majority has declined to uphold any other implied rights. Guadron and mchugh in ACTV hinted ss7 and 24 may entail a freedom of movement, association and speech generally. Gleeson in Roach thought ss7, 24 and changed historical circumstances may have created a protection of the right to vote.

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