AUSTRALIAN CONSTITUTIONAL LAW

 

EXAMINER'S STATEMENT

 

September 1997

 

 

Question 1

 

The student is told to consider each law under Constit s5 1 (xx).

 

(a) This law requires a finding that incorporated tertiary institutions are trading corporations.

 

Discussion of identification of trading corporations requires the student to consider Adamson's Case and State Superannuation Case. Tertiary institutions may not all be trading corporations depends upon amount of fee paying by students etc. selling of education.

 

Assuming tertiary corporations are trading corporations the student must consider whether the Commonwealth can deal with the employment contract of such corporations. This requires consideration of what activities have been found to be within s5 1 (xx) in cases such as Huddart Parker (Isaacs J dissent), Concrete Pipes, Fontana Films, Tasmanian Dams, Dingian and Victoria v The Commonwealth ....

 

(b) Again the student must characterise the newspaper corporation as a trading corporation and this would seem to be more obvious than under (a) using Adamson's Case and State Superannuation.

 

Advertising could be characterised as trading activity itself ... Concrete Pipes would render law valid or could be seen as activity undertaken for purpose of trade and then student should discuss Tas Dams and the different views there or use Dingian's Case which would also accept the law as valid.

 

Question 2

 

This question will involve discussion of Constit 5 1 (i), 5 1 (ii) and 5 1 (xx).

 

(a) Minimum safety standards in the manufacturing process of a manufacturer/exporter will require a consideration of the reach of s5 1 (i) and the validity in distinguishing between the production and distribution aspects of trade and commerce. The issues raised and relevant case law are dealt with on p46-47 of the text and p52-56. The case law referred to in that part such as Crowe, Foster, O'Sullivan's Case, Grannall, Beal and the validity of the latter today in the light of Australian Coarse Grains.

 

(b) Minimum safety standards to be applied in the manufacture of goods by a corporation will require a discussion of the corporation's power (Constit s51(xx)). The problem raises the validity of Isaac J's judgment in Huddart Parker suggesting that a purely manufacturing corporation would be outside s51(xx) - see text p104-105 (if such a creature exists). Assuming a manufacturing corporation is captured by s51(xx) will the activity be within power as minimum safety standards is not trading activity of trading corporation. Concrete Pipes and Tasmanian Dams and wider obiters, see text p97.

 

(c) A non-compulsory scheme to adopt minimum safety standards in manufacture with tax incentives to obtain compliance will require discussion of the taxation power (Constit s51(ii)). The issues are dealt with in the text p71-76 and will be resolved by discussion of Fairfax and Northern Suburbs General Cemetery Trust Case.

 

 

Question 3

 

The problem is based on the external affairs power (Constit s51 (xxix)).

 

(a) This requires discussion of the extent to which the rights and liabilities of the subject will be affected by Australia being a signatory to the Convention see Walker v Baird and Bradley v The Commonwealth.

 

(b) This requires discussion of the implications of Melbourne Corp or considered in Re Australian Education Union on Queensland Electricity Commission and the limits discussed in the text book p 128-132.

 

(c) This requires a discussion of the obligations imposed by the treaty and adherence to the terms of the treaty, see textbook p 118-126 and discuss s109.

 

 

Question 4

 

This question requires a discussion of Boilermakers Case and the practical consequences of that case.

 

(a) When considering the Commissioner's powers it is necessary to identify him as a federal administrative officer who may not exercise judicial power and consideration of whether his powers are judicial requires a discussion of the analytical descriptions of an exercise of judicial power contained in the text book.

 

(b) When considering the Tribunal's powers the same discussion will occur... the body is not constituted as a court within Chapter 111 of the Constitution so this Tribunal must not be exercising judicial power and again the discussion focuses on the analytical descriptions of an exercise of judicial power in particular Tasmanian Breweries and Precision Data Holding. The provision about contempt calls for comment that the proceedings with respect to contempt must go to a court.

 

(c) When considering the appeal to the Federal Court of Australia the student must recognise this as s77(i) and s76(ii) "appeal" to the original jurisdiction of that court and the law itself must be valid from some substantive grant.

 

 

Question 5

 

This question requires the student to consider jurisdictional issues.

 

  1. There is no appeal to the High Court relying upon s73.

 

(b) The High Court's jurisdiction will require the student to consider s75(iii) and s75(v). The challenge is directed to the Tribunal which will not fall within s75(iii) but members of the Tribunal will come within s75(v) provided there is an appropriate remedy which in this instance will be mandamus with certiorari.

 

(c) The other possibility for challenge is s76(i) which has been vested: see Judiciary Act s30(a).

 

The student will need to discuss the case law from the case list on these areas.

 

 

Question 6

 

The possible defence available to Y's parents is a defence based on s109 but that will depend upon the validity of the Commonwealth law. The question really requires the student to discuss the validity of the Commonwealth law which in fact appears to be invalid.

 

The Commonwealth law seeks to rely upon s5 1(i). The area to be discussed is that part of the textbook at p52 onwards. The direct legal effect of the law is intra-State conduct. The law obliges parents to ensure their children attain computer literacy skills. A connection between the law and overseas trade commerce cannot be spelt out by looking at cases such as O'Sullivan's Case. The necessary effect or the practical consequences will be an increase in overseas exports but this will only establish an economic nexus between the intrastate activity and the overseas trade and commerce see Wragg's Case, Airlines No. 2 and Ansett Transport Industries.

 

 

 

 

Question 7

 

Is the law for the conservation, preservation of a natural resource or is it grounded in discriminatory protectionism Cole v Whitfield? Should be considered in detail - the law on its face subjected all to same burdens, factual operation subject both inter and intra-State trader to same measures on size, number and freshness.

 

But was it really non-protectionist regulation - Fox v Robbins, Vacuum Oil, NEDCO, Grannall and lpec should all be considered as to protectionism using the Cole v Whitfield approach.

 

In Cole v Whitfield much is made of fact the crayfish were indistinguishable etc here using Castlemaine Tooheys the law can be struck down as grounded in discriminatory protectionism as the law was not adapted appropriate reasonable to preserve conserve etc it is burdening the inter-State trader without commensurate benefit since the more Tas crayfish are sold the better preserved and conserved will be the NSW industry.

 

 

Question 8

 

Commonwealth-State relations problem which requires consideration of a general State law being able to bind the Commonwealth. The State can tax the Commonwealth Engineers Case, Pay-roll Tax Case; it does not fall within the express prohibition in s114. See text p384-385. There is then the dicta in Bogle p410-411 of text. The law is not discriminatory, discuss Melbourne Corporation. The Commonwealth has the potential to immunise itself, see O'Reilly.

 

The prosecution of the seamen for environmental offences involves discussion of p401-403 of text and Pirrie v McFarlane.

 

Can a State regulate the defence power; see p407-408 of text.