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The Federal and State courts on constitutional law: the 2005 term. [Paper presented at the] 2006 Constitutional Law Conference, Sydney 24 February 2006



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2006 CONSTITUTIONAL LAW CONFERENCE SYDNEY 24 FEBRUARY 2006

‘THE FEDERAL AND STATE COURTS ON CONSTITUTIONAL LAW: THE 2005 TERM’

The Hon Justice Susan Kiefel

Each paper on this topic has been in the nature of a report of cases involving

constitutional issues which have come before State and Federal Courts in the past year. The

approach which has been taken, and from which I shall not depart, has been to provide an

overview of the types of issues dealt with by the Courts and to identify any interesting trends

or developments in jurisprudence.

The preparation for a report such as this is time consuming. Happily it fell to my

Associate, Ms Gitanjali Bajaj, whose considerable assistance I acknowledge. Ms Bajaj

identified some 95 cases which contained a reference to the Constitution. Those cases

containing something more than a reference are included in two schedules of 45 cases which

are provided with this report. Even so, I have not referred to every case in the report which I

now provide.

Previous speakers such as French J, in 2003, and Wheeler J, last year, have referred to

the State and Federal Courts providing a filtering mechanism for constitutional matters which

would otherwise burden the High Court. I do not doubt that is so. The larger number of

constitutional issues raised in proceedings before the Courts are either misconceived or fall at

the first hurdle, usually on a point of statutory construction unconnected with the application

of any constitutional provision. The impression I have is that relatively few are the subject of

appeals. That may say something about the seriousness with which they were first raised.

The use of the State and Federal Courts is therefore efficient. Nevertheless there are

sometimes arguments before the Courts which raise constitutional questions of substance.

There may be a test propounded by a decision of the High Court which is difficult to apply.

The meaning to be given to terms in the Constitution is often unclear. In resolving these

problems and in identifying areas which the High Court might consider revisiting, the Courts

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contribute to the constitutional discourse.

There were some cases of the substantive kind in the 2005 year. In Cross v Barnes

Towing & Salvage[1] the tension between the freedom of intercourse and that of trade and

commerce was resolved by the New South Wales Court of Appeal. Selway J interpreted the

decision in Bourke v State Bank of New South Wales[2] in a case on the insurance power,

Victorian WorkCover Authority v Andrews[3]. It will be obvious to you that his Honour’s

contribution to the Federal Court in the area of constitutional law, and indeed all areas of law,

is sorely missed. In Direct Factory Outlets Homebush Pty Ltd v Property Council of

Australia Ltd[4] (‘Direct Factory Outlets’) an uncertainty about what constituted government

or political matters, which are the subject of the implied freedom of communication, was

identified by Sackville J. And a possible lack of uniformity between cases dealing with the

power to detain aliens was identified by a Full Court of the Federal Court in Minister for

Immigration and Multicultural and Indigenous Affairs v Lorenzo[5].

IMPLIED FREEDOM OF POLITICAL AND GOVERNMENT COMMUNICATION

Last year Wheeler J commented that there were but a few cases raising the principle

of the implied freedom of communication on matters of government and politics established

in Lange v Australian Broadcasting Corporation[6] (‘Lange’). The 2005 year however saw

something of a resurgence of interest, but not success. A notable feature of the cases is the

approach taken to the first enquiry posed by Lange’s case, which is to say, whether the law in

question burdens the freedom of communication, either in its terms, operation or effect.

Some cases show a willingness to accept that effect is present. Most of them disclose a

difficulty in determining whether the communication in question is on matters of government

or politics within the meaning of Lange’s case and as further explained in Coleman v

Power[7]. The context provided by those cases for the operation of the immunity, and the

meaning which is therefore to be given to the terms, received attention in Direct Factory

Outlets.

The nature of immunity was reiterated by Spigelman CJ in John Fairfax Publications

Pty Ltd v Ryde Local Court[8]. The appeal concerned the refusal of the newspaper publisher

to access Court records in proceedings involving Magistrate O’Shane, against whom an

apprehended domestic violence order had been made. The Chief Justice dealt with the matter

shortly, pointing out, in terms echoing Brennan J in Cunliffe v The Commonwealth[9], that

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the freedom is a negative one which creates an immunity rather than any freestanding right.

The Constitutional immunity does not provide a right of access to legislative or executive

documents, let alone to judicial documents. There must be a burden that exists independently

of the law.

The proceedings brought by the broadcaster Alan Jones against John Fairfax in Jones

v John Fairfax Publications Pty Ltd[10], in common with Lange, were defamation

proceedings. At issue was the publisher’s inability to plead truth as a defence because of a

provision of the New South Wales defamation legislation. The statements made by the

publisher concerned the honesty of the broadcaster, it being said that he had offered to cease

his criticisms of a certain corporation in return for the corporation benefiting his football

club.

The claim that the freedom of communication on government and political matters

was burdened, was rejected by Simpson J, for the reason that the statement in question could

not conceivably be said to be in relation to these matters. Her Honour went on to deal with

the second limb of Lange. As modified by Coleman v Power, it requires consideration, where

the freedom is effectively burdened, as to whether the law is reasonably adapted and

appropriate to serve a legitimate end in a manner which is compatible with the maintenance

of the constitutionally prescribed system of representative and responsible government. Her

Honour found that there was not an unacceptable impediment.

The second limb of Lange was the focus of a decision in a leaflet case in the Northern

Territory. In Meyerhoff v Darwin City Council[11] the appellant had been convicted of a

contravention of a by-law which made it an offence for a person to affix a handbill to power

poles, sign posts or other fixtures in a street, without a permit. The leaflet promoted a

‘syringe festival’ and contained rather ambiguous statements such as ‘end the war on drugs’.

The Court was told that it promoted the safe use of drugs and provided opportunities for

participants to consider health and other issues relating to drug use. It was said that the

festival was an event which could be used to advocate drug law reform. Southwood J

accepted, at the outset, that the by-law did burden freedom of communication about a

government or political matter. His Honour then turned to the second limb and held that the

by-laws had a legitimate purpose in the maintenance of the amenity of the environment,

integrity of fixtures, avoidance of waste and litter and associated costs. It only incidentally

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burdened the freedom. An appeal from this decision was dismissed.

In Direct Factory Outlets, it was alleged that the respondents had engaged in an

arrangement or understanding which had the effect or likely effect of substantially lessening

competition, in breach of s 45(2) of the Trade Practices Act 1974 (Cth). The subject matter

of the alleged arrangement was the making of representations to a local authority concerning

whether approval should be given to the development or operation of outlet centres, bringing

legal or administrative proceedings, and attempting to persuade planning authorities to take

or refrain from action. Obviously these actions were contrary to the appellant’s interest. The

respondents argued that Lange applies to communications at all levels of government

including communications relating to the affairs of state authorities. His Honour did not

finally determine the matter, because there was an unanswered threshold question as to the

operation of s 45(2). His Honour did however consider whether there was any substance to

the respondents’ contention.

Sackville J noted that there was an important qualification stated in Lange - that the

freedom of communication which the Constitution protects is not absolute and that ‘it is

limited to what is necessary for the effective operation of that system of representative and

responsible government provided for by the Constitution’. The freedom, after all, was found

to be implied by that system of government, to which sections 7 and 24 and other sections

gave effect. It referred to communications between electors and elected representatives

concerning government and political matters central to the system of government. The

decision in APLA Ltd v Legal Services Commissioner (NSW)[12] (‘APLA’), which I note will

be the subject of further discussion today, reiterates the limitations on the scope of the

implied freedom.

Sackville J observed that after Coleman v Power and APLA uncertainty remained as

to which communications can be regarded to be ‘about government or political matters’. It is

clear however that for a communication to come within the first limb of Lange, it must

concern the system of representative and responsible government for which the Constitution

provides. Coleman v Power shows that a communication about state officials or authorities

may be sufficiently related to a system of representative and responsible government to come

within the first limb of Lange. It strongly suggests that no narrow view is to be taken of the

concept of government or political affairs and this is demonstrated by the willingness of the

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majority to accept that a communication alleging corruption on the part of a State police

officer had a sufficient federal connexion. They were also apparently influenced by the role

State police have in the administration of federal justice. The majority judgments point to the

fact that police corruption at State level might have electoral and political consequences at a

federal level. The integrated nature of law enforcement was therefore a key element in the

reasoning.

Even on a broad view of the Lange principle, his Honour considered it difficult to see

how a communication with a local authority on development matters could be said to relate to

the system of responsible and representative government. No link was shown.

His Honour went on to say that as a matter of policy there may be much to be said for

granting the same protection to communications on State and local government issues as

Lange grants communications relating to federal matters. That is not however the current

law. If it were, Coleman v Power would not have had to analyse the link between

communications about police corruption and electors’ assessments on federal political issues.

With those statements about the first limb in Lange, I turn to the decision of the

Western Australian Court of Appeal in Holland v R[13]. The appellant in that case had been

convicted under provisions of the Commonwealth Customs Act 1901 (‘Customs Act’) which

prohibit the importation of publications containing child pornography. In particular it

prohibited material which described or depicted a person under 16 who is involved in a

sexual pose or activity and was likely to offend a reasonable adult.

There were two publications, a novel and a magazine. The novel was said by the

appellant to deal with the moral rights and wrongs of sex by adult males with under-aged

youths and to discuss issues surrounding gay intergenerational relationships. The magazine

contained a number of messages, McLure JA observed. Its object was said to be the

promotion of humane moral laws in all countries. It contained articles about historical

differences in attitude and laws and advocated freedom for adults to have sex with children

and a child’s right to self determination in sexual matters.

The appellant apparently sought to, or did, introduce a body of evidence which

established that there was, within the community, a political discussion concerning the

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legitimacy of intergenerational homosexual issues.

The Chief Justice approached the matter on the assumption that the items bore the

necessary relationship to a matter of governmental or political significance. Although his

Honour expressed some doubt about whether the Customs Act effectively burdened or

restricted the freedom, he went on to determine the appeal on the basis of the second limb.

The test applied by his Honour was that proposed by Gaudron J in Levy v State of Victoria[14]

and approved by Gleeson J in Coleman v Power - to enquire as to the direct purpose of the

law and whether it is to restrict political communication. If it does it would be valid only if

necessary for the maintenance of some overriding public purpose. If, on the other hand, it

had some other purpose, connected with a subject matter within power and only incidentally

restricted political communication, it would be valid if it was reasonably appropriate and

adapted to that purpose. The Chief Justice held that the direct purpose was not to restrict

political communication, but to prohibit the importation of publications likely to cause

offence.

Roberts-Smith JA did not accept that material falling within the specific description of

the prohibition could be part of a legitimate discourse or debate on governmental or political

matters. His Honour accepted that there was a political debate in Australia about sexual

offences against children and associated issues, but the Customs Act and Regulations, neither

in their terms or their operational or practical effect, burdened governmental or political

discussion about such matters. The fact that there were other writings contained in the

publications, apart from the child pornography falling within the prohibition, was not to the

point. The conduct of political discourse or debate about the issues identified by the

appellant did not require or justify their presentation in combination with child pornography.

McLure JA analysed the material and concluded that the magazine could not be

regarded as wholly non-political, for its advocacy component was not insubstantial. Conduct

relating to criticism of any law or government policy would, her Honour considered, seem to

be a political matter. The effect of the Customs Act provision was to directly limit the content

of communication, which, in the case of the magazine, was a political communication. From

the reasoning which follows, it is possible that a different conclusion as to the nature of the

communication was open.

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Turning to the second limb, her Honour considered there was a reasonable

apprehension that child pornography causes harm. The Parliament saw a link between child

pornography and the commission of offences prohibiting sexual relations with children and

the Courts could not take a different view given that such an approach informs their

sentencing practices in relation to breaches of laws relating to child pornography. Whether

that harm had to be established is a difficult question but not one which had to be resolved in

the case. In the present case the offending material, the child pornography, had no relevant

connexion with the political content in the magazine and was entirely gratitutious. It could

not be said that child pornography might reasonably be expected to be used in the course of

communications on political matters. Her Honour concluded that the prohibition was

therefore reasonably appropriate and adapted, as required.

SECTION 109 INCONSISTENCY

In his paper, French J was dismissive of cases concerning s 109 inconsistency. His

Honour went so far as to refer to then yearly offerings as ‘the usual small grab bag of cases’.

In 2005 however they enjoyed some success in the Courts. Each concerned direct

inconsistency.

At issue in Rio Tinto Coal Australia Pty Ltd v Queensland Coal and Oil Shale Mining

Industry (Superannuation) Pty Ltd[15] was Queensland legislation requiring mine workers

and owners to contribute to a superannuation fund. Certified Agreements and Australian

Workplace Agreements entered into pursuant to the Commonwealth Workplace Relations Act

(1996) provided that employees were to be given a choice of funds and were not to be limited

to a statutory fund. Muir J held the state provision void for the inconsistency created by

sections in the Commonwealth Act.

Tamberlin J in Optus Networks Pty Ltd v Rockdale City Council[ 16 ] accepted a

submission that a provision of the New South Wales Environmental Planning and

Assessment Act 1979 was invalid. It provided that a local authority might, upon application,

usually made by developers for the purpose of avoiding expense, modify a development

consent by deleting a condition of development approval which required Optus cable

television lines to be laid underground. A provision scheduled to the Commonwealth

Telecommunications Act 1977 provided that a State law had no effect to the extent to which it

discriminated against a telecommunications carrier. Optus argued, and his Honour accepted,

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that the deletion of the condition gave rise to an operational inconsistency, by the exercise of

the power under the State law which conflicted in its practical operation with a

Commonwealth law. There was, his Honour found, (and the case really turned upon this)

discrimination because of both direct and indirect effects of the deletion of the condition to

Optus compared with other users of overhead lines.

In Loo v Director of Public Prosecutions (Vic)[ 17 ] the Victorian Court of Appeal

considered the operation of provisions of the State Confiscation Act 1997 and Chapter V of

the Corporations Act 2001 (Cth) (the winding up provisions) for possible inconsistencies.

One effect of the confiscation order made under the State Act was that a charge was created

so as to secure payment of a pecuniary penalty order. Winding up of course involves secured

and unsecured creditors, so the State Act would involve the creation of a further, separate

class of creditors. A section of the Corporations Law allowed State laws to prevail over the

Corporations Act, even if there was an inconsistency, if certain requirements relating to the

State Act and Commonwealth Regulations were present.

The President, with whom the other members of the Court agreed, held there to be a

direct conflict between the State Act and the Corporations legislation given that those

requirements were not met. His Honour rejected the contention that the two Acts could

operate concurrently. Here the direct inconsistency arose because the Corporations Act

created rights in creditors of a company who are entitled to have their debts and claims paid

in accordance with priorities provided for under the Act. Those rights would be adversely

affected if the provisions of the Confiscation Act were permitted to operate according to their

terms because they had the effect of creating a special class of secured creditor by means of a

charge created after the commencement of the winding up. The conflict was such as to alter,

impair or detract from the operation of the Commonwealth law.

COMMONWEALTH POWERS

2005 was a busy year for challenges to the validity of legislation.

The Aliens Power

In the Federal Court, in matters concerning migration, Commonwealth powers

concerning aliens created some work for the Court. They were singularly unmeritorious and

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for the most part either ignored binding authority or sought to apply minority views. In

Doumit v The Commonwealth[18] there was an attempt to argue that a provision of the

Migration Act 1958 (Cth) (‘Migration Act’) required a head of power relating to citizenship

and not aliens. This was rejected. A Full Court did not accept there to be a distinction

between an alien and a non-citizen. It had been held in Singh v Commonwealth of

Australia[19] that there was constitutional support for the provision and the terms alien and

non-citizen were considered to be synonymous.

In Taurino v Minister for Immigration and Multicultural and Indigenous Affairs[ 20 ]

(‘Taurino’) it was sought to argue that the immigration powers (s 51(xxvii)) did not apply to

the applicant and he was not an alien within the meaning of s 51(xix). An attempt to apply

the minority judgments in Shaw v Minister for Immigration and Multicultural Affairs[21]

which applied a test of allegiance to the Queen to determine whether a person was,

constitutionally, an alien was not accepted. An argument that the minority view in both Shaw

and Re Patterson; Ex parte Taylor[22], that a person absorbed into the community was not an

alien, was also rejected. A further case relying upon the allegiance issue was dismissed in

Koroitamana v Commonwealth of Australia[23].

The Taxation Power

Detained non-citizens questioned the constitutional validity of the section of the

Migration Act which permits the Commonwealth to recoup the costs of their detention from

them. In Qureshi v Minister for Immigration and Multicultural and Indigenous Affairs[24]

Kenny J dealt with an argument that the charge for costs was a tax because it was enacted by

the Commonwealth for public purposes. It could not be a payments for services rendered, it

was contended. Her Honour held that payments for services are not the only exaction that

resembles a tax, but are not. There are a number of factors relevant to the question, including

the relationship of the charge to the cost to the provider. Here there was a close connexion

between the payment required and the cost of the person’s detention. It was not material that

some of the costs did not provide commensurate value to the person.

Section 55 received further attention in the Western Australian Supreme Court in

Deputy Commissioner of Taxation (Cth) v Robinswood Pty Ltd[25]. A provision of the

taxation legislation specified that a general interest charge was applicable where there was an

amount owed to the Commonwealth by a person under a taxation law which had become

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payable before a certain date and remained unpaid. The section was said to be breached

because the interest charge was a second subject of taxation. Wheeler J held that the

provision for the interest charge was not a law imposing taxation. The liability to interest

arose because a tax was already imposed by other legislation and it was a secondary and

ancillary measure for the protection of the revenue, not the imposition of a tax. This was so

at least where the rate of interest was not exceptional or wholly disproportionate to the

amount of interest which might be recovered in ordinary commercial transactions.

Invalidity by reference to s 55 was again raised, and rejected, by Wheeler JA in H’var

Steel Services Pty Ltd v Deputy Commissioner of Taxation[26], which concerned the liability

to pay a debt on a daily balance of a running balance account. The question was resolved

upon what was characterised as a law imposing taxation. Relevantly her Honour held it must

create a liability to tax as distinct from an ancillary obligation to facilitate the collection of

tax.

The Acquisition of Property on Just Terms

The cases involving the taxation power to which I referred also deal with the power to

acquire property. Unsurprisingly in each case the laws which provided for detention charges,

general interest charges and the debt, were held not to be concerned with the acquisition of

property.

Another case dealing with an alleged acquisition of property was dealt with by the

Court of Appeal in the A.C.T. Supreme Court in Environmental Planning Authority v

Rashleigh[27]. The question was what amounted to an acquisition. The appellant and his

wife were Crown lessees and installed a water bore. Later in that year legislation was passed

which required a person to obtain a licence for a bore. The appellant’s right to access the

water was however preserved. It was held that even if the right to extract water was one of

the bundle of rights that go to make up property, the imposition of a regime to regulate access

to underground water does not amount to an acquisition of that property. The prohibition or

control of use is not the same thing as an acquisition. It is not enough that the legislation

adversely affects or terminates the pre-existing right. The appellant’s rights were not

interfered with.

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The Race Power

Commonwealth of Australia v South-East Queensland Aboriginal Corporation for

Legal Services[28] concerned s 21 of the Aboriginal and Torres Strait Islander Commission

Act 1989 (Cth) (‘ATSIC Act’) which imposed a restriction on the right to dispose of property

that had been obtained by means of a grant made to a body by the Aboriginal and Torres

Strait Islander Commission without its consent. It was submitted that although s 51(xxvi) of

the Constitution conferred sufficient power on the Commonwealth Parliament to enact the

Act, the provision of the ATSIC Act was not within the incidental power. It was submitted

that the Act infringed the implied constitutional limitation on the s 51(xxvi) power not to

adversely discriminate against Aboriginal people. Muir J did not accept this submission,

holding that the restriction on sales was a characteristic of the grant made under the Act.

The Insurance Power

The insurance power was the subject of detailed consideration by Selway J in

Victorian WorkCover Authority v Andrews[29]. The Commonwealth Act provided for a

process of licensing to an eligible corporation, by which the licensee became an employer for

the purposes of the Act and liable to pay compensation to employees. The licence also had

the effect that the licensee was not subject to the laws of a State or Territory relating to

workers’ compensation. It was not disputed that there were a number of sources of power for

the law. Section 51(xiv) however excepts the area of State insurance from the subject matter

of insurance. It was argued that the proviso means that the Commonwealth cannot legislate

in relation to insurance conducted by a State and that the limitation is applicable to all

Commonwealth legislative powers, not just the insurance power.

His Honour accepted the submission that the Commonwealth legislative powers

should be limited in relation to ‘State insurance’ in the same way as they were held to be in

relation to ‘State banking’, by the decision in Bourke v State Bank of New South Wales[30]

(‘Bourke’). His Honour also accepted the concession that the business conducted by the

applicant was State insurance. The question then was whether the relevant provisions ‘touch

and concern’ State insurance in a way that is not merely ‘insubstantial, tenuous or distant’

and is consequently not a law ‘with respect to’ ‘insurance other than State insurance’.

The fact that the Commonwealth provisions had financial consequences for State

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insurance was not sufficient, his Honour held. It did not limit the freedom of a State to

determine for itself whether and on what terms it wishes to ‘advance the moneys of the State’

for the purpose of carrying on an insurance business. It was not entirely clear what the Court

meant to say in Bourke. His Honour however considered that it did not say that the

appropriate test is one based upon an exclusive State power. If that were so the Victorian

Parliament could exclude all Commonwealth legislation or insurance. Bourke’s case,

properly considered, holds that the Commonwealth has legislative power pursuant to

s 51(xiv) to legislate generally in relation to insurance other than State insurance. Where the

law is a general law that incidentally affects a State insurer, for example because it affects the

market in which the State insurer operates, the law does not fall within the proviso. It was

envisaged by the proviso that there be a continuing capacity of a State insurance business to

operate in a commercial marketplace. So understood the Commonwealth Act does not have

any effect on ‘State insurance’. They affect the mandatory requirement in Victoria that

employers be insured in relation to workers compensation liability; that requirement is not

‘State insurance’.

CHAPTER III

Recent years have seen something of an increase in visa cancellation cases in the

Federal Court, the cancellation being a prelude to a deportation order. They often involve a

visa holder who has been in Australia for a long time. They have not obtained citizenship but

have spent some time creating an extensive criminal record. They fail what is called the

‘character test’ because of their record. That enables cancellation of their visa.

Taurino, which I have mentioned, was such a case, but its focus was the application of

the Migration Act to the appellant. In Minister for Immigration and Multicultural and

Indigenous Affairs v Lorenzo[31] it was argued that the section authorising the cancellation of

visas infringed Chapter III. It had however been held in Chu Kheng Lim v Minister for

Immigration, Local Government and Ethnic Affairs[32] (‘Lim’) that the power to make laws

with respect to aliens, which includes a power to expel or deport, includes a power to restrain

an alien in custody to the extent necessary to make the deportation effective. It was an

incident of the power to determine whether an alien entered or remained in Australia. Such a

power can be conferred without infringing Chapter III’s exclusive vesting of judicial power

in the Courts because the authority to detain was neither punitive in nature nor part of the

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judicial power of the Commonwealth.

Lim provided a complete answer to the case sought to be raised in Lorenzo. The Full

Court however observed that the High Court might choose to revisit the jurisprudence

concerning the application of Chapter III to an exercise of the aliens power. If it did so, in

their Honours’ view, they would need to consider two cases which followed Lim - Al-Kateb v

Godwin[33] and Re Woolley; Ex Parte Applicants M276/2003[34]. The two cases are not

necessarily uniform in their approach, it was said. Their Honours did not explain the

inconsistencies in any detail. Reference is made to a passage by Gummow J in Al-Kateb that

once it is accepted that many forms of detention involve some non-punitive purpose, it

follows that a punitive/non-punitive distinction cannot be the basis upon which the Chapter

III limitations are enlivened. Accordingly the focussing of attention on whether detention is

‘penal or punitive in character’ is apt to mislead. This statement does appear to deny part of

the reasoning of the Court in Lim but does not itself provide an alternative approach.

The criminal jurisdiction of the Industrial Relations Commission of New South Wales

was questioned in Powercoal Pty Ltd v Industrial Relations Commission of New South

Wales[35] in the context of breaches of an Act by mine owners with consequential penalties.

It was submitted that Ch III prevents a conferral of criminal jurisdiction. The predominant

jurisdiction exercised by the Commission was arbitral and quasi-legislative and these

functions were incompatible with the exercise of a civil jurisdiction. Spigelman CJ observed

that the submission was based upon the proposition that the Commission exercises federal

jurisdiction and that the Court must be and remain a repository for such a jurisdiction. It

involved, and sought to extend, the decision in Kable v Director of Public Prosecutions for

New South Wales[36] (‘Kable’) but Fardon v Attorney-General for the State of

Queensland[37] (‘Fardon’) had limited the scope of Kable. In Fardon the majority viewed

the restriction on State legislative powers to laws which would impinge upon the institutional

integrity of the Court in question. McHugh J in particular had said that the bare fact that

State legislation invests a State Court with powers that are, or jurisdiction which was,

repugnant to notions of traditional jurisdiction would seldom compromise the institutional

integrity of the Court to the extent that it affects the Court’s capacity to exercise federal

jurisdiction impartially and according to federal laws. The Chief Justice held that the mere

fact that Commission’s arbitral judicial powers are not strictly separate did not affect the

institutional integrity of the Court.

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In the criminal sphere s 80 was raised in R v Wilkie; R v Burroughs; R v

Mainprize[38]. It was argued that the taking of evidence by audio-visual link from overseas

violated the requirements of the section, that the trial be before a jury and take place ‘in the

State’ where the offence was committed. The requirements, it was alleged, necessitated that

all of the evidence must be both ‘given and received’ ‘in the State’. The New South Wales

Court of Criminal Appeal was not however persuaded that the taking of evidence by such

means breached the feature of a trial by jury, that the witness appear in person in the

courtroom. It was held by Spigelman CJ that although s 80 manifests the significance that

has always attached to ensuring the venue of a criminal trial is the community where the

crime is committed, a trial can still be accurately described as being held ‘in the State’ even if

some elements of the trial occur elsewhere. The fact that a witness is not physically present

in the State does not deprive a trial of that essential quality. The principle is not concerned

with the physical location of a witness, as distinct from the point of reception of the evidence.

It is the reception that is critical. The position is the same as other longstanding ways of

tendering evidence. Even in 1901 it was theoretically possible for a trial to take place

without the presence of any witness because of the use of depositions.

The Chief Justice made some further observations on the approach to constitutional

interpretation. His Honour stated that the Constitution, by its nature, is a document that was

intended to endure through technological changes. Thus, applying the principle that the

interpretation of a document must be determined by the nature of that document, the

Constitution, as an instrument of government, must be interpreted so that it is able to adapt to

changing circumstances. Video link evidence is a precise, accurate and instantaneous

reflection of the physical image and words of a witness, by equipment physically located in

the State and directly observable by judge, jury and the public of the State and therefore

sufficiently answers the description of a trial held ‘in the State’.

There were the usual discussions of what constitutes a matter or matters within ss 75

and 76. In Gumana v Northern Territory of Australia[39] the applicants held land grants

under Northern Territory legislation. They sought declarations that they had the right to

exclude fisherman and others from certain waters on the basis of those land grants. Selway J

however held that the nature and extent of the rights conferred by the grants did not give rise

to a ‘matter’ and there was no proper dispute to found the claim to declarations. And there

were the usual further attempts to extend Kable.

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SECTION 92

Perhaps one of the more important decisions of the year was Cross v Barnes Towing

& Salvage (Qld). I have left it for brief mention last because it will be the subject of

discussion in a later paper today. In legal history there has been an observed desire, on the

part of New South Wales lawyers, to practice in Queensland. Here a Queensland tow truck

operator wanted to operate in New South Wales. New South Wales legislation however

required him to have a licence and he was charged for a contravention of it. It was held by

Spigelman CJ that the legislative scheme was not discriminatory and protectionist in effect.

Handley JA found that the discrimination was against all operators in New South Wales who

are not licensees, not against tow truck drivers in other States. In the process the Chief

Justice considered whether broad word ‘intercourse’ in s 92 should be read down so as not to

extend to matters within the trade and commerce limb or whether the test for an

impermissible burden should be the same for acts of intercourse in trade and commerce, as

that applicable to the trade or commerce limb. I am sure that the later speaker will explain to

you the Chief Justice’s solution.

UCASES BY SECTION OR TOPIC

UA. Chapter I Part V: Powers of The Parliament

• Section 51(xiv) - Insurance Power:

o Victorian Workcover Authority v Andrews [2005] FCA 94

• Section 51 (xix) - Naturalisation and Aliens:

o Koroitamana v Cth of Australia (2005) 142 FCR 391

o Shaw v MIMIA (2005) 142 FCR 402

o Doumit v Cth (2005) 144 FCR 298

o Taurino v MIMIA (2005) 143 FCR 1

o Doumit v MIMIA [2005] FCA 666

• Section 51(xxvi) - People of any race for whom it is deemed to make special laws:

o The Commonwealth of Australia v South East Qld Aboriginal Corp for Legal

Services (2005) 219 ALR 180

o Gumana v Northern Territory of Australia (2005) 218 ALR 292

• Section 51(xxxi) - Acquisition of Property other than on Just Terms :

o Qureshi v MIMIA & Cth of Australia (2005) 214 ALR 525

o Hart v Deputy Commissioner of Taxation [2005] FCA 1748

o Rashliegh v EPA (2005) 155 ACTR 16

o EPA v Rashleigh [2005] ACTCA 42

o Winpar Holdings Ltd v Austrim Nylex (2005) 54 ACSR 562

o H’var Steel Services Pty Ltd v Deputy Commissioner of Taxation (2005) 59

ATR 5

o Deputy Commissioner of Taxation (Cth) v Robinswood Pty Ltd (2005) 59 ATR

479

- 17 -

• Section 51 (xxxv) - Conciliation and Arbitration for Industrial Disputes:

o Re IBM Global Services Australia Ltd (2005) 144 IR 389

• Section 51(xxxix) - Incidental Power:

o The Commonwealth of Australia v South East Qld Aboriginal Corp for Legal

Services (2005) 219 ALR 180

• Section 55 - Tax Bill:

o Qureshi v MIMIA & Cth of Australia (2005) 214 ALR 525

o H’var Steel Services Pty Ltd v Deputy Commissioner of Taxation (2005) 59

ATR 5

o Deputy Commissioner of Taxation (Cth) v Robinswood Pty Ltd (2005) 59

ATR 479

UB. Chapter II: The Executive Government

• Section 61 - Executive Power:

o SZBHT v MIMIA [2005] FCA 947

UC. Chapter III: The Judicature

• Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248

• MIMIA v Lorenzo [2005] FCAFC 13

• Sensis Pty Ltd v Members of the Full Bench of the Industrial relations Commission

(2005) 145 FCR 570

• Gumana v Northern Territory of Australia (2005) 218 ALR 292

• Glencore International AG v Takeovers Panel (2005) 220 ALR 495

• R v Blessington (2005) 190 FLR 47

• Powercoal Pty Ltd v Industrial relations Commission of NSW (2005) 145 IR 327

• Coal operations Australia v Industrial Relations Commission of NSW [2005] NSWCA

346

- 18 -

• Section 80 - Trial by Jury:

o R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794

o R v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311

• Section 73 - Appellate Jurisdiction of High Court

o Ewins v BHP Billiton Ltd [2005] VSC 4

• Section 75- Original Jurisdiction of High Court

o Gumana v Northern Territory of Australia (2005) 218 ALR 292

• Section 76 - Additional Original Jurisdiction

o Sensis Pty Ltd v Members of the Full Bench of the Industrial relations

Commission (2005) 145 FCR 570

o Gumana v Northern Territory of Australia (2005) 218 ALR 292

UD. Chapter IV - Finance and Trade

• Section 92 - Trade, Commerce and Intercourse among States:

o Cross v Barnes Towing and Salvage [2005] NSWCA 273

o Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133

• Section 98 - Navigation and State Railways:

o Gumana v Northern Territory of Australia (2005) 218 ALR 292

• Section 100 - Right to Use Water

o Gumana v Northern Territory of Australia (2005) 218 ALR 292

UE. Chapter V - The States

• Section 109 - Inconsistency of Laws:

o ASIC v Medical Defence Association of WA Inc (2005) 143 FCR 125

o Gumana v Northern Territory of Australia (2005) 218 ALR 292

o Optus Networks Pty Ltd v Rockdale City Council (2005) 144 FCR 158

- 19 -

o Canty v Deputy Commissioner of Taxation (2005) 63 NSWLR 152

o Re S & The Adoption Act 2000 (NSW) [2005] NSWSC 1346

o Rio Tinto Coal Australia Pty Ltd v Qld Coal & Oil Shale Mining Industry

(Superannuation) Pty Ltd [2005] QSC 340

o City of Mitcham v Hutchison 3G Australia Ltd (2005) 91 SASR 111

o Loo v DPP (Victoria) (2005) 23 ACLC 1962

o Bennett v Higgins (2005) 146 IR 205

o Vorhauer v NSW Minister for Health & Anor [2005] NSWSC 797

• Section 116 - Freedom of Religion:

o Carreon v The Honourable Amanda Vanstone [2005] FCA 865

• Section 117 - Rights of Residents in States:

o Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133

UF. Chapter VI - New States

• Section 122 - Government of Territories

o Gumana v Northern Territory of Australia (2005) 218 ALR 292

UG. Implied Freedom of Communication:

• Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005]

FCA 1438

• John Fairfax Publications v Ryde Local Court (2005) 62 NSWLR 512

• Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133

• Meyerhoff v Darwin City Council (2005) 190 FLR 344

• Holland v R (2005) 222 ALR 694

• Becker v City of Onkaparinga [2005] SASC 428

- 20 -

UCASES BY COURT

UA. Federal Court of Australia

• Full Court

o Koroitamana v Cth of Australia (2005) 142 FCR 391

o Shaw v MIMIA (2005) 142 FCR 402

o Doumit v Cth (2005) 144 FCR 298

o Re IBM Global Services Australia Ltd (2005) 144 IR 389

o Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248

o MIMIA v Lorenzo [2005] FCAFC 13

o Sensis Pty Ltd v Members of the Full Bench of the Industrial relations

Commission (2005) 145 FCR 570

o ASIC v Medical Defence Association of WA Inc (2005) 143 FCR 125

• Single Judge

o Victorian Workcover Authority v Andrews [2005] FCA 94

o Taurino v MIMIA (2005) 143 FCR 1

o Doumit v MIMIA [2005] FCA 666

o Gumana v Northern Territory of Australia (2005) 218 ALR 292

o Qureshi v MIMIA & Cth of Australia (2005) 214 ALR 525

o Hart v Deputy Commissioner of Taxation [2005] FCA 1748

o SZBHT v MIMIA [2005] FCA 947

o Glencore International AG v Takeovers Panel (2005) 220 ALR 495

o Optus Networks Pty Ltd v Rockdale City Council (2005) 144 FCR 158

o Carreon v The Honourable Amanda Vanstone [2005] FCA 865

o Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia

[2005] FCA 1438

o S v Australian Crimes Commission (2005) 144 FCR 431

- 21 -

UB. Supreme Court of Australian Capital Territory

• Court of Appeal

o EPA v Rashleigh [2005] ACTCA 42

• Supreme Court

o Rashliegh v EPA (2005) 155 ACTR 16

UC. Supreme Court of New South Wales

• Court of Appeal/ Court of Criminal Appeal

o Powercoal Pty Ltd v Industrial relations Commission of NSW (2005) 145 IR

327

o Coal operations Australia v Industrial Relations Commission of NSW [2005]

NSWCA 346

o R v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311

o Cross v Barnes Towing and Salvage [2005] NSWCA 273

o Canty v Deputy Commissioner of Taxation (2005) 63 NSWLR 152

o John Fairfax Publications v Ryde Local Court (2005) 62 NSWLR 512

• Supreme Court

o R v Blessington (2005) 190 FLR 47

o R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794

o Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133

o Re S & The Adoption Act 2000 (NSW) [2005] NSWSC 1346

o Vorhauer v NSW Minister for Health & Anor [2005] NSWSC 797

UD. Supreme Court of Northern Territory

• Supreme Court

o Meyerhoff v Darwin City Council (2005) 190 FLR 344

- 22 -

UE. Supreme Court of Queensland

• Supreme Court

o The Commonwealth of Australia v South East Qld Aboriginal Corp for Legal

Services (2005) 219 ALR 180

o Rio Tinto Coal Australia Pty Ltd v Qld Coal & Oil Shale Mining Industry

(Superannuation) Pty Ltd [2005] QSC 340

UF. Supreme Court of South Australia

• Supreme Court

o City of Mitcham v Hutchison 3G Australia Ltd (2005) 91 SASR 111

o Becker v City of Onkaparinga [2005] SASC 428

UG. Supreme Court of Tasmania

UH. Supreme Court of Victoria

• Court of Appeal

o Winpar Holdings Ltd v Austrim Nylex (2005) 54 ACSR 562

o Loo v DPP (Victoria) (2005) 23 ACLC 1962

• Supreme Court

o Ewins v BHP Billiton Ltd [2005] VSC 4

UI. Supreme Court of Western Australia

• Court of Appeal

o Holland v R (2005) 222 ALR 694

o H’var Steel Services Pty Ltd v Deputy Commissioner of Taxation (2005) 59

ATR 5

o Bennett v Higgins (2005) 146 IR 205

- 23 -

• Supreme Court

o Deputy Commissioner of Taxation (Cth) v Robinswood Pty Ltd (2005) 59 ATR

479

- 24 -

1 [2005] NSWCA 273 2 (1991) 70 CLR 276 3 [2005] FCA 94 4 [2005] FCA 1438 5 [2005] FCAFC 13 6 (1997) 189 CLR 520 7 (2004) 209 ALR 182 8 (2005) 62 NSWLR 512 9 (1994) 182 CLR 272 at 327 10 [2005] NSWSC 1133 11 (2005) 190 FLR 344 12 (2005) 219 ALR 403 13 (2005) 222 ALR 694 14 (1997) 189 CLR 579 15 [2005] QSC 340 16 (2005) 144 FCR 158 17 (2005) 23 ACLC 1962 18 (2005) 144 FCR 298 19 (2004) 209 ALR 355 20 (2005) 143 FCR 1 21 (2003) 218 CLR 28 22 (2001) 207 CLR 391 23 (2005) 142 FCR 391 24 (2005) 214 ALR 525 25 (2005) 59 ATR 479 26 (2005) 59 ATR 5 27 [2005] ACTCA 42 28 (2005) 219 ALR 180 29 [2005] FCA 94 30 (1990) 170 CLR 276 31 [2005] FCAFC 13 32 (1992) 176 CLR 1 at 32 33 (2004) 219 CLR 562 34 (2004) 210 ALR 369 35 (2005) 145 IR 327 36 (1996) 189 CLR 51 37 (2004) 210 ALR 50 38 [2005] NSWCCA 311 39 (2005) 218 ALR 292