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Interpretation Scope/Need for a head of power Commonwealth • Requires head of Commonwealth legislative power: Attorney-General v Colonial Sugar Refining Co (the Royal Commissions case) (1913) 17 CLR 644 (words of legislative powers restrict power to legislate—not a general power) - most likely contained in s51, although there are others State • Not limited to any specific subject matter  Have the power to legislate for ‘peace, order/welfare and good government’ ← plenary power  These words do not limit the power: Union Steamship Co v King • Must be cleared to be valid from other criterion:  General prohibitions— • s92: freedom of interstate trade and commerce and intercourse • s117: right of a citizen of one state to not be discriminated against another  State-oriented prohibitions— • s114: state not to raise taxes against Commonwealth property of any kind, nor to raise defence forces • s115: state not to print money  Exclusive Commonwealth power— • s52: exclusive powers relating to the public service, seat of government an other areas in the constitution • s90: exclusive control of customs etc.  Extra-territoriality powers of a state – whether there is a sufficient connection with the state; and then  Inconsistency with any Commonwealth law → struck down to the extent of the inconsistency: s109 Constitution Interpretation • Context and text of the Constitution, where the broad interpretation is narrowed due to the context or other express provisions of the constitution: Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 • Implications: Where there are some implications made into the text, where they are suggested by the structure or text of the Constitution: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520  Implications include freedom of political communication due to the prescribed system of representative/responsible govt: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106;  Commonwealth-state legislative immunities due to the federal nature in the constitution: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 • Plain and natural meaning: contrasting the implications doctrine, there is also a need to give the words of the Constitution its plain and natural meaning: Engineers’ case Andrew Trotter LWB242 2009-1  Prevented implications such as the ‘reserved powers’ doctrine, which said the Constitution impliedly left the states exclusive power to legislate on certain areas • Commonwealth legislative power is to be interpreted broadly, so as to give some flexibility to the document to deal with varying conditions: Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 o Parliament is able to make and unmake any laws it wishes within its heads of power: Arthus Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 72 o Parliament’s law-making ability also has a corresponding power to unmake laws: Kartinyeri v Commonwealth (1998) 195 CLR 337 Connection with Head of Power • Can’t be too remote or indirect to be properly classified as a law related to that purpose: Re Dinjan; Ex parte Wagner (1995) 183 CLR 323 o Look to substance rather than form: Bank of NSW v Commonwealth • Words can refer to either their contemporary meaning (denotation) or the meaning at the time of enactment (connotation) o Eg of ‘denotation’: where the terms ‘postal, telegraphic and telephonic and other like services was extended to mean all forms of communication, including radio: R v Brislan; Ex parte Williams (1935) 54 CLR 262 • Power to legislate includes— o Regulate the pursuit: Murphyores Inc Pty Ltd v Commonwealth (176) 136 CLR 1 o Prohibit its occurrence, whether absolutely or conditionally: Murphyores Inc Pty Ltd v Commonwealth (176) 136 CLR 1 o Participate itself: Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29; or o Protect the rights held by it: Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 • Where there is an express exclusion, the Commonwealth can’t legislate around it by using a different power o Eg: can’t legislate for state banks under the corporations power: Bank of NSW v Commonwealth (1948) 76 CLR 1 Purpose of Power • The court will look at the purpose of the law where that law is a purposive power, such as defence. • To test the purpose of the legislation – the ‘reasonable proprotionality’ test: • The test involves whether the law goes further than is necessary to achieve its purpose: Leask v Commonwealth (1996) 187 CLR 579, or whether there is a less restrictive means
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