1. APL Peer-Led Tutorial Semester 2 2013 Anna Gruen

2. The Legislature Is the Act valid? – Head of power? Federal: – s51 Cn for most subjects eg. trade and commerce, taxation – Creation of an electoral system (qualification of electors s8, s30 or qualification and disqualification of members s16, s34, s51(xxxvi) State: – NSW: Receives plenary power to legislate for ‘peace, welfare and good government’ (s5 NSW Cn, R v Burah)

3. The Legislature Are there limitations? – Implied Cn rights (only applies at Federal level) Representative government (s24 Cn) – Implied guarantee of voting equality (franchise) – McKinlay, McGinty – Right to vote – Roach, Rowe (reason for the exclusion must be considered and whether it is ‘reasonably appropriate and adapted to serve and end’) – Implied freedom of political communication – Nationwide News PL v Wills, ACTV v Cth » Freedom under Cth Constitution constrains State Parl re Cth political matters (Theophanus) and re State political matters (NN, ACTV, Theophanus)

4. The Legislature Are there limitations? – Abdication: to what extent can Parl transfer part or all of its legislative power to another body which it may or may not have created for that purpose? Question of degree of power transferred where delegation (which is approved by Dignan’s case) while abdication is not.

5. The Legislature Manner and form – Federal Parliaments cannot bind its successors (SE Drainage Board) – STATE legislative power can be constrained by the operation of previous enacted legislative provisions requiring special legislative procedures to be complied with by Parl only in relation to certain issues regarding the ‘Constitution, powers or procedure of Parliament’ (CLVA s5 and Australia Acts s6)

6. Manner and Form Is the law that purports to amend or repeal the entrenched provision one respecting ‘Constitution, powers or procedure of Parliament’? (Trethowan, Marquet’s case) – eg. Voting systems Is the ‘manner and form’ provision legitimate? – The question to be asked is whether the m&f provision is whether it is proportionate regarding the issue it is designed to entrench (Trethowan, Westlakes) – Has it been doubly entrenched? (Westlakes)

7. Executive Head of power? – Non statutory Prerogative power (eg. declare or conduct war, make treaties) – Legislation is presumed not to limit prerogative powers or property rights of the Crown. Other power – ‘as a legal person’ (Davis, NSW v Bardolph) – although this has been rejected in Williams! Nationhood power – incorporated in s61

8. Nationhood power There are a number of indicators which would suggest a matter could be dealt with under nationhood power – Is it ‘peculiarly adapted to the governing of a nation and which cannot otherwise be carried on for the benefit of the nation’? (AAP case) – Is it necessary that the task is carried out by the Executive? (Davis, Pape) Is if for the ‘protection and advancement of the nation’? (Davis) Is it of national proportions enough to attract the nationhood power? Also consider proportionality (Davis, Pape) – urgency of the situation, whether the measures are permanent

9. Executive Limitations on the head of power of the Executive – Prerogative power can be overridden by statute Consider: terms of the legislation (Cadia), nature and essentiality of the prerogative (Tampa), whether the legislation and prerogative cover the same field (Tampa)

10. Crown Immunity Is the legislation intended to apply to members of the Executive government? (Cth v WA) – Presumption of statutory construction that the ‘Crown’ is immune unless legislation shows a contrary intention either ‘expressly or by necessary implication’ (Bropho) Consider the content and purpose of the particular provision. What is the mischief to be addressed? Will the purpose be frustrated if it does not apply to the Crown? (Bropho) If yes, then legislation applies to members of the Executive gov along with other persons. If no, does the immunity extend to X?

11. Is X part of the Executive government such that X is immune from legislation? (Bropho) – Person ‘personifies the executive government of the country’ Agency of the State – (eg. Departments, executive authorities - Bropho) – (eg. Statutory authorities – Townsville Hospital – see next slide) Private contractors hired by the Crown (see next slide – Baxter) Other State Governments (Bradken)

12. Statutory Authorities Presumption: against Crown immunity extending to statutory authorities. Test: was it Parl intention (as shown in statute creating body) that the body should enjoy Crown status in relation to the functioning of the body? (Townsville Hospital) – Consider nature of the function of the authority, degree of independent of authority from central government control, nature of immunity/privilege being claimed

13. Third parties dealing with Crown ACCC v Baxter Crown immunity is presumed not to apply to third parties. However, if the application of legislation that does not bind the Crown but binds third parties would divest the Crown of proprietary, contractual or other legal rights or interests, a contrary intention may appear from the language, objects and subject matter of the Act.

14. Judiciary SCENARIO 1: Commission with judges appointed to it FEDERAL Separation of Powers Cth judicial power: s71 Cn – What type of power is conferred by the body (Commission)? Judicial or non judicial Indications that it’s judicial – binding and authoritative, enforceability (Brandy), decisions regarding rights (Thomas v Mowbray)

15. Judiciary (a) Cth judicial power may only be exercised by courts (s71 Cn) (Wheat case) (b) Ch III Federal Courts can only exercise JP, and non JP incidental to the exercise of JP (Boilermakers case)

16. Judiciary Often, the issue here is that a Ch III judge are not allowed to exercise non JP powers at Cth level. (Boilermaker’s case). There are 2 exceptions. – Is the non JP power incidental to the JP? (Boilermakers) eg. administrative functions of a judge within the court – PERSONA DESIGNATA

17. Persona Designata Judges may exercise non judicial functions in a personal capacity (Drake) – Is the judge exercising his duty in a personal capacity? (Hilton) Factors to consider include (a) is the legislation applicable to all judges, (b) what is the nature of the power conferred?, (c) did the legislation express an intention to invest the court with jurisdiction? – Incompatibility test (Grollo) – (a) judge must consent, (b) the commitment cannot impair his capacity to perform judicial functions and (c) cannot be a threat to public confidence.

18. Judiciary Institutional integrity SCENARIO 2: Minister (upon consulting a taskforce) advise federal court that they must make an order (and make it ex parte) – Issue: about the way that the JP is exercised – No strongly entrenched SoP at state level (BLF case, affirmed in KABLE)

19. 1) What type of power is the judge/body exercising? Tasmania Breweries test is good for this Extension of the incompatibility doctrine to the State courts which also exercise federal judicial power. 2) If the judge/Ch III court is exercising JP, is it incompatible with an exercise of federal judicial power?

20. How can the incompatibility come about? Judges must be perceived to be independent of the legislature and executive otherwise public confidence is lost (Fardon) Cannot be carrying out political purpose (KABLE) When the function is repugnant to the political process to a fundamental degree (KABLE) Ad hominem legislation (only effecting one person) (KABLE) ex parte applications (ie. Without notice – determined in absence of affected party) May be okay (Thomas v Mowbray) Court not impartial – when there is a ‘must’ order from a minister