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Final Exam notes
Constitutional Law (LAWS1116)
University of Queensland
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TAXATION, APPROPRIATION AND
SPENDING POWERS (CH13)
This week’s lecture examines some of the Commonwealth’s other economic powers, focusing on taxation and spending.
IMPORTANCE OF FISCAL POWERS It is useful to begin by examining the constitutional importance of fiscal powers. - Constitutionalism and the rule of law require stable, reliable constraints on government power. There is no constitutionalism where the government can seize and spend citizens’ money at will. The principle that taxation requires the consent of the governed is found in the Magna Carta 1215 and the Bill of Rights 1688. - There is no express prohibition in the Australian Constitution on taxation without consent. However, the Constitution assumes that people’s rights cannot be taken away except under the authority of law.
CONSTITUTIONAL PRINCIPLES Some of the main constitutional principles in this area are as follows: - There shall be no taxation except under the authority of Parliament (that is, through legislation). - Taxation bills shall deal only with taxation: s 55. - All revenue raised by the government must be paid into the Consolidated Revenue Fund (CRF): s 81. - No money shall be drawn from the Treasury except under appropriation made by law: s 83. - The Commonwealth may not discriminate between the states in laws of taxation or revenue: ss 51(ii), 99. Appropriation bills for the ‘ordinary annual services of government’ (OASG), also known as ‘supply bills’, must deal only with the OASG: s 54. - Taxation or appropriation bills may not originate in the Senate: s 53. - Taxation or supply bills may not be amended by the Senate. Other appropriations bills may be amended by the Senate, but not ‘so as to increase the proposed charge or burden on the people’: s 53. - Constitutional convention holds that the government must resign when defeated on a supply bill.
THE TAXATION POWER Section 51(ii) provides: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: [...] (ii) taxation; but not so as to discriminate between States or parts of States; [...] - This is a concurrent power. The states may also levy taxes. However, the power to impose duties of customs and excise belongs exclusively to the Commonwealth: s90.
WHAT IS A TAX?
Latham CJ stated in Matthews v Chicory Marketing Board that a tax is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered. This definition has four elements. - A compulsory exaction of money; - By a public authority; - For public purposes; - Not a payment for services. Fines and other financial penalties for breaches of law are not taxes: MacCormick v Commissioner of Taxation (1984)
PROCEDURAL LIMITS The taxation power is subject to both procedural and substantive limits. - We saw previously that tax laws cannot originate in or be amended by the Senate: s 53. The Senate may return a tax law with a request for amendment. However, the House of Representatives need not comply. - Laws imposing taxation must deal only with taxation. Furthermore, laws imposing taxation (other than duties of customs or excise) must deal with only one subject of taxation: s 55. Laws imposing duties of customs must deal only with customs and laws imposing duties of excise must deal only with excise: s 55.
‘TACKING ON’ Section 55 says tax laws must deal only with tax. There is a historical reason for this. - Historically, the House of Lords had the power to block legislation, but money bills were rarely rejected. - The House of Commons attached substantive provisions to money bills to make it difficult for Lords to reject them (‘tacking on’). This led to tensions between the Houses. - Eventually, a compromise was reached. The Lords would not block money bills if the Commons did not tack other provisions onto them. - In the Australian context, the convention was codified in ss 54 and 55. Note that ‘tacking on’ is still common in some jurisdictions, such as the United States.
AIR CALEDONIE V COMMONWEALTH Air Caledonie illustrates both the definition of taxation and the application of s 55. The case concerned an amendment to the Migration Act 1958 (Cth). - The amendment instituted an Immigration Clearance Fee of $5 to be collected from all passengers entering Australia by air. The airline was required to pay the fee, whether or not it had collected the charge from the passenger. Was this a tax? If so, it could not be contained in the Migration Act, as under s 55 laws imposing taxation must deal only with taxation. The High Court held the Clearance Fee was a tax and therefore could not be included as an amendment to the Migration Act. - The Court applied the definition set out by Latham CJ in Matthews. A key issue was whether the fee was a ‘payment for services’ and therefore not a tax.
NON-DISCRIMINATION RULE
Section 51 (ii) stipulates that Parliament may impose ‘taxation; but not so as to discriminate between States or parts of States’. - An early case was R v Barger (1908). The statutory Excise Tariff provided that manufacturers providing ‘fair and reasonable’ labour conditions were exempted from excise duty. - It was held that the provision was discriminatory, as it was clearly intended to allow the imposition of different duties in different states. The Court looked to the substance and purpose of the legislation, not merely its form. Some states had industrial awards clearly regarded as ‘unreasonable’ by the Commonwealth. The Commonwealth may not impose discriminatory taxation to enforce its preferred policies. Barger may be contrasted with Elliot v Commonwealth (1935) - Section 99 of the Constitution prohibits the Commonwealth from discriminating between the states in laws of trade, commerce or revenue. - Maritime workers at prescribed ports required a licence to work in those ports. The Commonwealth designated ‘prescribed ports’ in all states except Western Australia and Tasmania. - Elliott was a maritime worker based in Sydney. He objected to having to pay for a licence when workers in other states did not.
A majority of the High Court upheld the law. The discrimination was not between states, as such, but rather between different Commonwealth ports, having regard to local conditions.
The distinction between Barger and Elliott seems to be something like the following. - The legislation in Barger was clearly intended to authorise discrimination between the states. - The law in Elliott, on the other hand, sought to apply uniform conditions to Commonwealth ports, regardless of location. These conditions just happened to be relevant to ports in some states and not others. The discrimination was incidental to the law.
REGULATORY USE OF TAXATION Can the Parliament impose a tax with the intention not of raising revenue, but of regulating activities or changing people’s behaviour? - See Fairfax v Federal Commissioner of Taxation (1965). Income from superannuation funds was taxed unless they were invested in prescribed public securities. The purpose of the law was not to raise funds, but to give employers an incentive to invest in the public sector. - It was argued that this was not a law ‘with respect to taxation’, under s 51 (ii), as its purpose was unrelated to revenue. However, this argument was rejected by the High Court. The Parliament may therefore use the taxation power to regulate activities that normally fall outside Commonwealth jurisdiction.
DUTIES OF CUSTOMS AND EXCISE The power to impose duties of customs and excise is exclusive to the Commonwealth: s 90. - Customs duties are duties on imports and exports. Excise duties are levies on goods at any point of the production or distribution process as they move from manufacturer to consumer.
- A charge will typically be identified as an excise duty only if it is connected to output (that is, the charge reflects the amount of goods produced). The states may impose consumption taxes: Dickenson’s Arcade v Tasmania (1974) The High Court ruled in Peterswald v Bartley (1904) that a licence fee on brewers was not an excise duty, as it was not related to output.
Matthews v Chicory Marketing Board (1938) concerned a levy on chicory growers calculated by acreage planted. - This was held to be sufficiently related to output to qualify as an excise duty. The Victorian law imposing the tax was struck down.
A distinction has now arisen between licence fees, on the one hand, and duties of excise, on the other hand. - A licence fee levied on retailers or consumers at the point of sale is not an excise duty, even if based on turnover: Dennis Hotels v Victoria (1960) 104 CLR 529. - However, a tax on retailers based on the production or distribution of the goods, rather than purely their sale, is an excise duty: Capital Duplicators v Australian Capital Territory (No 2) (1993)
APPROPRIATION AND SPENDING All funds raised by the Commonwealth must be paid into the Consolidated Revenue Fund (CRF). Section 81 then allows funds to be appropriated from the CRF ‘for the purposes of the Commonwealth’. - An appropriation from the CRF must be authorised by legislation: s 83. The term ‘purposes of the Commonwealth’ is not confined to subjects listed in s 51. The High Court has generally interpreted the term widely.
AAP CASE (1975) - The Australian Assistance Plan (AAP) made tied grants to regional councils. The grants were conditional on the councils implementing federal government policies. The AAP scheme was challenged on the basis that the funds were not being used for the ‘purposes of the Commonwealth’. Rather, they were being used for local government activities. - However, this argument was rejected by the High Court. The ‘purposes of the Commonwealth’ are whatever purposes the Parliament chooses. The Commonwealth may also give tied grants to the states under s 96, on the condition of implementing Commonwealth policy. See the Second Uniform Tax Case (1957) - These decisions mean that, by giving tied grants to states or local councils, the federal government may accomplish policy objectives outside the normal powers of the Commonwealth.
COMBET V COMMONWEALTH (2005) The High Court asked how specific an appropriation must be to fall within s 81. - It was argued that a general appropriation in the supply bills of $1,447,552 for ‘departmental expenditure’ of the Department of Employment and Workplace Relations did not cover expenditure on an advertising campaign not mentioned in the budget notes.
FREEDOM OF INTERSTATE TRADE,
COMMERCE & INTERCOURSE (P303–316)
THE ECONOMICS OF FEDERATIONS
The issue of interstate trade arises from Australia’s character as a federation. - A federation is an association of semi-autonomous political units, defined by geography. - The terms of the association are defined by the federal constitution. - Each of the units enjoys some level of political and economic autonomy, but they are also bound by political and economic bonds. - The main economic bond is typically the commitment to a common market.
VERTICAL FISCAL BALANCE Vertical fiscal balance concerns the balance of revenue between the federal and state governments. - Balance occurs where both federal and state governments enjoy flexible and stable sources of revenue. - Vertical fiscal imbalance arises where central government controls the most flexible sources of revenue, such as income tax, excise duties and consumption taxes. Australia presently has a very high level of vertical fiscal imbalance, due to the federal government’s dominance of taxation revenue. - This creates serious challenges in funding infrastructure and service provision by the states.
HORIZONTAL FISCAL BALANCE Horizontal fiscal balance concerns the balance of revenue between the different states. - Horizontal imbalance can lead to interstate tensions and undermine the federation. Australia has some horizontal fiscal imbalance. - Victoria and New South Wales are more populous and enjoy economies of scale. Queensland and Western Australia benefit from mining revenue. Tasmania and South Australia are fiscally weak. Federations may employ fiscal equalisation measures to avoid imbalance, but this undermines incentives for states to compete and innovate.
ECONOMIC HEALTH The following conditions help federations to maintain economic health: - A flexible economy, featuring free movement of goods, services, capital and people; - A centralised set of clear rules relating to interstate and overseas trade; - Clear rules in each state relating to intrastate trade, with the possibility of regulatory competition; - Minimising fiscal imbalances, so the federal and state governments can fund their activities. Economic health helps to maintain the health of the federation as a whole.
PROTECTIONISM BEFORE FEDERATION The Australian economy before federation was highly protectionist.
- The different colonies had border taxes and differential railway charges, as well as licence fees and other barriers to entry.
- This caused ongoing tensions between the colonies that persisted after federation. [T]he principal goals of the movement towards the federation of the Australian colonies included the elimination of intercolonial border duties. Cole v Whitfield (1998) 165 CLR 360, 392 per curiam.
CONSTITUTIONAL SOLUTIONS The Constitution was framed with the aim of overcoming protectionism. - Section 51(i) centralises power over interstate and overseas trade and commerce. - Section 90 centralises power over excise and customs duties. Section 88 requires these duties to be made uniform within two years of federation. - Section 92 establishes freedom of interstate trade. - Section 98 gives the Commonwealth power over navigation, shipping and railways. Parliament may forbid discriminatory railway tariffs: s 102. - No discrimination between the states is allowed in regulation of trade and commerce (s 99).
SECTION 92 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. - The section is strongly worded, reflecting the importance the framers placed on it. It purports to make trade absolutely free.
A LIMITED FREEDOM What does s 92 mean when it says trade must be absolutely free? - There is no absolute freedom under law. Your freedom of movement does not permit you to punch me in the nose. Freedom of religion does not permit human sacrifice. - Freedom of trade cannot be literally absolute. It does not protect interstate trade in illegal drugs or free movement of contract killers. - The freedom is therefore subject to legal limits. However, the framers may have intended these limits to be minimised and made uniform throughout the country.
FREE TRADE THEORY The early cases on s 92 focused only on discriminatory barriers that distinguished internal and external traders - Fox v Robbins (1909) struck down a Western Australian law imposing higher licence fees on bars selling imported beer. - This focus on discriminatory laws become known as the free trade theory of s 92. - What about barriers to free trade that are not discriminatory and restrict the actions of internal and external traders alike?
INDIVIDUAL RIGHTS THEORY The Australian governments in the 1920s decided to regulate the dried fruit trade, limiting production and telling producers where to sell their crops. - James v South Australia (1927) concerned a fruit grower who challenged the South Australian Dried Fruits Board who ordered him not to export his produce.
- The High Court struck down the law by a 4-3 majority. The law has a protectionist effect by disadvantaging imported tobacco. It therefore satisfies the three elements from Cole v Whitfield.
CASTLEMAINE TOOHEYS V SOUTH AUSTRALIA Castlemaine Tooheys challenged a South Australian bottle return scheme. - Non-refillable bottles required a compulsory refund of 15c, while refillable bottles had a compulsory refund of 4c. - Furthermore, non-refillable bottles had to be returned to the retailer, while refillable bottles could be returned to collection depots. - Local beer was sold mainly in refillable bottles, while imported beer was sold mainly in non- refillable bottles. The legislation was not discriminatory on its face, but the High Court held that it nonetheless violated s 92. - The scheme was protectionist and discriminatory in its effects, since it severely limited Castlemaine Toohey’s market share. - The stated aims of the scheme were litter control and conservation, but the High Court found these objectives did not require two different methods of returning the bottles.
BETFAIR V WESTERN AUSTRALIA (2008) The principles articulated by the majority judgment in Castlemaine Tooheys were applied in Betfair. - A Western Australian law prohibited online betting exchanges. The Western Australian government argued the law was needed to protect the integrity of the betting industry. - The law had a discriminatory impact, as local Western Australian betting was dominated by the TAB. The plaintiffs were a Tasmanian betting exchange and a local punter. - The High Court struck down the law. There were other less discriminatory methods available, such as regulating betting exchanges. - The judges accepted that the law had a non-discriminatory objective. However, this alone did not save the law from invalidity under s 92. - Furthermore, a law that has the object of prohibition will not be saved by the existence of discretionary exceptions depending on an executive officer. - A discriminatory prohibition on a particular industry will be invalid if less drastic measures are available to achieve the same policy objectives.
BETAFAIR NO 2 [BETFAIR V RACHIGN NSW (2012) Betfair No 2 concerned legislation requiring bookmakers to pay a license fee to use information about races in New South Wales. - The fees were calculated based on the wagering pool. It was argued that this impacted more heavily on online bookmakers than traditional bookmakers like the TAB. - However, the High Court upheld the legislation. The fees were imposed uniformly on intrastate and interstate bookmakers. It was not proven that they had a protectionist effect.
STATE MONOPOLIES
Early cases such as James and the Banking Case suggested that government monopolies would offend s 92. - The question arose again in the Barley Board Case (1990) 171 CLR 182. The case upheld a scheme where all barley grown in New South Wales had to be sold through the Barley Marketing Board. - The High Court considered the scheme was not discriminatory and therefore was consistent with the free trade reading of s 92.
The High Court in the Barley Board Case did note that where a commodity was a scarce resource local to a particular state, the imposition of a government monopoly might offend s 92.
The joint judgment in Betfair No 1 pointed out that local and interstate commerce are interrelated. State based restrictions on a national market may therefore undermine the spirit of s 92. - 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
Section 92 covers ‘trade, commerce, and intercourse among the States’. The case law focuses on trade and commerce. What is meant here by freedom of intercourse? - The joint judgment in Cole v Whitfield said that the term confers ‘a personal freedom to pass to and fro among the States without burden’. - Deane and Toohey JJ suggested in Nationwide News v Wills (1992) 177 CLR 1 that the freedom may cover not only physical movement, but ‘all of the modern forms of inter-state communication’. - Brennan J held in Nationwide News that discrimination is not a necessary element of the test for freedom of intercourse. A restriction on border crossing between the states will be invalid unless: - The law is mainly enacted for a purpose other than limiting interstate movement; - The burden on movement is appropriate and adapted to the intended purpose; and - The limitation on movement is necessary and incidental to the law’s operation. - It is unclear whether the freedom extends to movement of information (as Deane and Toohey JJ suggested) or only persons and goods.
The High Court has generally resisted treating s 92 as conferring an individual right to trade, preferring instead to view it as a limited immunity against discriminatory and protectionist barriers.
SOURCES OF RIGHTS AND DUTIES
Common law rights arise from judicial decisions. They may later be codified. - Examples include the seller’s right to be paid under a contract or a pedestrian’s right in tort law that you drive carefully. Legislative rights arise from statutes and subordinate legislation. - Examples include a person’s right to receive unemployment benefits under social security legislation. This entails a duty by the government to pay.
CONSTITUTIONAL RIGHTS
Common law and statutory rights can be removed or changed by statute. Constitutional rights cannot be overridden by the legislature or the judiciary. - These rights often take the form of immunities against government action. - Constitutional rights can only be removed by constitutional amendment (although their scope will reflect judicial interpretations). The Constitution confers two types of rights: - Express rights: These are explicitly stated in the constitutional document. - Implied rights: These are implied from constitutional provisions or underlying principles.
EXPRESS CONSTITUTIONAL RIGHTS
- The right to freedom of interstate trade, commerce and intercourse: s 92.
- The right not to be discriminated against on grounds of residency: s 117.
- The right to compensation for any acquisition of your property by the Commonwealth: s51(xxxi).
- The right to a trial by jury when indicted for a Commonwealth offence: s 80.
- The right to freedom of religion: s 116.
- The right of state electors to vote in Commonwealth elections under s 41?
ACQUISITION OF PROPERTY Section 51 (xxxi) provides that where there is an acquisition of property from any state or person for any purpose in respect of which Parliament has power to make laws, it must be on just terms. - The right applies only to the Commonwealth. There is no guarantee of compensation for property taken by states: Pye v Renshaw (1951) - Various state laws provide for state acquisition and compensation. However, these rights can be taken away by an ordinary statute.
The High Court’s approach to ‘acquisition of property’ is characterised by a broad interpretation of property and a narrow interpretation of acquisition.
High Court understands ‘property’ in its widest sense. The term includes: - Exclusive possession of land without title: Minister for the Army v Dalziel (1944)
- Company shares: Bank of New South Wales v Commonwealth (1948) 76 CLR 1;
- Confidential information protected by equitable remedies: Smith Kline v Secretary, Department of Community Services (1991-1992);
- Choses in action (rights to sue): Georgiadis v Telecommunications Commission (1994)
- Statutory rights to government payments: Health Insurance Commission v Peverill (1994)
‘Acquisition’ requires transfer of a concrete benefit to the government or another person. It does not include regulation of property use. - The property need not be transferred directly to the Commonwealth: P J Magennis v Commonwealth (1949) 80 CLR 382. However, there must be an acquisition of the property by someone.
It follows that compensation need not be paid for diminished property value resulting from: - Export restrictions: Murphyores v Commonwealth (1976) 136 CLR 1; - Land zoning: Trade Practices Commission v Tooth (1979) 142 CLR 397; - Price controls: British Medical Association v Commonwealth (1949) 79 CLR 201; - Restrictions on trademark use: British American Tobacco Australasia v Commonwealth [2013] HCA 43.
A further illustration of this principle is provided by the Tasmanian Dam Case (1983) 158 CLR 1. - The case concerned Tasmania’s right to build a dam, against the wishes of the Commonwealth, in a World Heritage listed area. The Commonwealth prohibited the dam through legislation. On the issue of s 51 (xxxi), Mason, Murphy and Brennan JJ held that there was no acquisition of property, as there was no transfer of title. - Deane J dissented. He held it was not necessary to show a material gain to the Commonwealth or another party. The mere ability to restrict use of the land could be considered as an ‘acquisition’.
The issue of ‘acquisition’ arose again in two 1994 cases relating to statutory extinguishment of rights. - Georgiadis v Telecommunications Commission (1994) 179 CLR 297 concerned legislation preventing workers from suing their employer (the Commonwealth) for injury under the common law. - The majority held that this was an ‘acquisition’, as the extinguishment of the right conferred a substantial benefit on the Commonwealth (immunity from litigation). - Health Insurance Commission v Peverill (1994) 179 CLR 226 concerned legislation retrospectively reducing Medicare benefits payable to doctors. - This was held not to be an ‘acquisition’. It was merely an adjustment of claims, based on policy considerations. Nobody ‘acquired’ a corresponding benefit.
- However, market value at the time of acquisition should be the starting point: Nelungaloo v Commonwealth (1948) 75 CLR 495, 507 (Williams J). The 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.
- Nothing less than ‘full compensation’ will suffice: Georgiadis, 311 (Brennan J). However, the exact amount of compensation leaves some room for discretion.
- The body determining the compensation must be unbiased and give the property owner a fair hearing. There must be reasonable provision for review of the decision: Apple and Pear Marketing Board v Tonking (1942) 66 CLR 77.
TRIAL BY JURY Section 80 provides: The trial on indictment of any offence against the law of the Commonwealth shall be by jury. - The provision only applies to Commonwealth offences. Most criminal offences occur under state legislation. - Furthermore, the section has been interpreted very narrowly by the High Court.
The High Court has held that whether to make an offence triable ‘on indictment’ is up to the Parliament: R v Archdall (1928) 41 CLR 128. - Parliament may make an offence punishable by substantial imprisonment, but declare it a summary offence, so s 80 does not apply.
The High Court’s reading of s 80 in Archdall has come in for some strong criticism. - Dixon and Evatt JJ have commented that the interpretation makes a mockery of s 80, rendering its protection purely ‘illusory’: R v Lowenstein (1938) 59 CLR 556, 581-582.
Nonetheless, Archdall was reaffirmed by a four judge majority in Kingswell v R (1985) 159 CLR 264. - Brennan and Deane JJ dissented strongly, echoing the earlier views of Dixon and Evatt JJ.
Section 80 can be circumvented by the Commonwealth, but it cannot be waived by an accused person: Brown v R (1986) 160 CLR 171.
If a trial is on indictment, s 80 requires conviction by a unanimous jury verdict. Conviction by majority verdict is inconsistent with the institution of trial by jury: Cheatle v R (1993) 177 CLR 541.
RELIGIOUS FREEDOM
Section 116 provides: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Section 116 is often viewed as having two limbs: - The establishment clause prohibits the Commonwealth from establishing a national religion or imposing religious observance. It also rules out imposing a religious test for any office under the Commonwealth.
- The free exercise clause prevents the Commonwealth from interfering with the free exercise of religious beliefs.
Section 116 does not apply to state laws: Kruger v Commonwealth (1997) 190 CLR 1. Section 116 has generally been construed narrowly by the High Court. - The High Court has adopted a broad understanding of the term ‘religion’, but a narrow interpretation of the circumstances in which a law impacting on religious practice will violate s 116. - It is interesting to compare s 116 with the similarly worded clause in the First Amendment to the United States Constitution, which has been interpreted much more extensively. - See, for example, Wisconsin v Yoder 406 US 205 (1972), where the Supreme Court held that a statute requiring high school attendance unjustifiably burdened the religious practices of the Amish.
The High Court has defined ‘religion’ broadly in the context of s 116. - A religion involves belief in a transcendent or supernatural reality and adherence to a set of rules of conduct with some supernatural significance. It does not necessarily involve belief in a supreme or unified deity. - See the Jehovah’s Witnesses Case (1943) 67 CLR 116, 123 (Latham CJ). - This definition is broad, but perhaps still not broad enough. Would Buddhism clearly count as a religion on this definition?
The establishment clause was discussed in Attorney General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559. - Black concerned the issue of whether it was constitutional for the Commonwealth to fund religious schools. The Court upheld the funding arrangement, interpreting s 116 narrowly. - Barwick CJ and Wilson J ruled that the term ‘establishment’ in s 116 is confined to establishment of a religion as a national or Commonwealth institution. - Gibbs and Mason JJ read the section even more narrowly. ‘Establishment’ only applies to the designation of an official state religion. - Stephen J took a broader view. He ruled that the establishment clause prohibits discrimination between religions. - Murphy J dissented. He argued that the term ‘establishment’ should be interpreted widely to ban any state assistance to religious institutions. He would therefore have struck down the funding arrangements. - Murphy J’s approach followed the United States interpretation of the equivalent First Amendment wording. However, it was strongly criticised by the majority.
The free exercise clause was considered in Krygger v Williams (1912) 15 CLR 366. Krygger objected to compulsory military service on religious grounds. He regarded all military duties as a sin. - The High Court was dismissive of Krygger’s argument. Griffith CJ described the argument as ‘absurd’ (371). He thought it plain that military service had ‘nothing at all to do with religion’ (369).
The majority in Pearson took the view that s 41 only protected the voting rights of persons who were enfranchised under state law prior to the adoption of a Commonwealth franchise law in 1902. - Note, however, that s 41 does not contain words such as ‘until the Parliament otherwise provides’. This distinguishes it from other transitional provisions.
It is now widely accepted that s 41 is spent. - Ironically, having read out of the Constitution the closest thing to an express right to vote, the High Court has effectively found an implied right to vote on the basis of ss 7 and 24. - For further discussion, see J Crowe and P Stephenson, 'An Express Constitutional Right to Vote? The Case for Reviving Section 41' (2014) 36 Sydney Law Review (forthcoming).
We looked at several different rights, including the right to just terms if your property is acquired by the government, the right to trial by jury and the right to religious freedom.
IMPLIED CONSTITUTIONAL RIGHTS CH
These are rights that the High Court has found are implied by or incidental to the express provisions of the Constitution.
CONSTITUTIONAL IMPLICATIONS The High Court has developed principles in several areas based on what is implied in the constitutional text. - The separation of powers is implied by the structure of the Constitution: Boilermakers Case - The Communist Party Case established that the rule of law is implied in the Constitution. - The Constitution implies intergovernmental immunities: Melbourne Corporation Case - The early High Court drew robust implications from the federal structure of the Constitution, but this was overruled in the Engineers Case. - Compare the dissenting views of Gibbs CJ in Tasmanian Dam and Callinan and Kirby JJ in Work Choices.
THE ROLE OF IMPLICATIONS Effective communication often relies on implications from people’s statements. - Suppose you meet your friend regularly for lunch at the Physiology Refectory. They text you saying ‘Hey, want to meet for lunch?’, but do not specify a location. Would you know where to meet them? - Suppose I ask you to lend me a copy of the textbook. You punch the person sitting next to you, steal their book and hand it to me. Have you done as I asked? These examples show that implications rely on the context of a statement.
HOW MUCH IS IMPILED Texts or utterances often take for granted a lot of background information. - The philosopher David Lewis illustrates this point using the Sherlock Holmes stories. I claim that it is true, though not explicit, in the stories that Holmes does not have a third nostril; that he never had a case in which the murderer turned out to be a purple gnome; that he solved his cases without the aid of divine revelation; that he never visited the moons of Saturn; and that he wears underpants.
Constitutional implications cont Some implications concern what is necessary for a statement or request to be effective. - Suppose I ask you to close the door. It would be odd for you to then ask permission to leave your seat, since that was implied in my request. Some constitutional implications seem to be of this sort. The High Court is examining what is necessary for a provision to be effective. - Sections 7 and 24 say that the Senate and the House of Representatives must be ‘directly chosen’. This seems to imply that the necessary conditions must be put in place for citizens to choose their representatives.
Final Exam notes
Course: Constitutional Law (LAWS1116)
University: University of Queensland
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