COMMONWEALTH LAWS A Commonwealth law must have a head of power Corporations power (s 51(xx)) Trade and Commerce power (s 51(i)) External affairs power (s 51(xxix)) Immigration and emigration power (s 51(xxvii)) Aliens (s 51(xix)) Defence (s 51(vi)) Race (s Taxation (s 51(ii)) Acquisition of property on just terms (s Other heads of power enumerated in s 51 Executive power (s 61) and Territories (s 122) Grants to States (s 96) Nationhood Spending Incidental power Do any prohibitions limitations apply?
Acquisition of property MUST be on just terms (s Prohibition on discrimination and preference between States (ss 51(ii), 99) Freedom of interstate trade and commerce Right to trial jury for indictable Commonwealth offences (s 80) Freedom of religion (s 116) Right to vote Freedom of political communication Separation of judicial power LLB203 Constitutional Law CORPORATIONS POWER Parliament has power to make laws with respect to corporations, and trading and financial formed within the limits of the Commonwealth) (s 51(xx) to regulating most activities functions of a corporation (Workchoices case) Must be able to distinguish between corporations and constitutional corporations.
The parliament tried to exploit this suggestion Stephen Murphy JJ in the World Heritage Properties Conservation Act 1983, including a provision that: The could proclaim property if protection or conservation of the property Australia is a matter of international Since the majority in Tasmania v Commonwealth held that sufficient parts of the law were valid as an implementation of the treaty, they did not need to discussion this provision, however: Mason J observed that even if a subject was a matter of international concern, that not mean that Parliament may depart from the provisions of the treaty after it has been entered into Gibbs J who said the treaty was not sufficient basis for the act, held that the position might be different if Australia came under an international obligation to protect or conserve the property.
In Polyukhovich v Cth Brennan and Toohey who had rejected the external to basis for the War crimes Act 1945 seemed to assume that a law could be valid if ti was based on a matter of international concern, but held that there was not enough evidence of such concern in this case.
SCOPE OF THE DEFENCE POWER AT PEACETIME Notionally only core of power remains (Marcus Clark v Commonwealth) The peacetime aspect of the defence power has been held to extend to: Control of military service laws relating to military service fall within core of power: Kryger v Williams Control of commodities necessary for defence: Jenkins v Commonwealth Maintenance of must be a nexus with defence purposes (Shipping Board cf Cloning Factory case) 1.
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Invalid if unconnected with any purpose of naval or military Shipping Board Case 2.In XYZ v Cth Callinan and Heydon JJ doubted at that international concern itself could support a law under the external affairs power.o Evident this has only been used as an argument of last resort so far until Cth dares to base a law on nothing but alleged international concern we shall probably keep accumulating contrary dicta.If merely corporations then outside the scope of the power Not limited to regulating he trading financial activities of trading financial corporations 1.IS THE RELEVANT ORGANISATION A FOREIGN, TRADING OR FINANCIAL CORPORATION?parliament can make laws to implement a treaty regardless of subject matter, no requirement of international concern as proffered Stephen J in Koowarta.o That the legislation intrudes into an area hitherto state power is no reason to deny validity to the Cth law alone: Victoria v Cth There is no requirement that the matter be of international concern (Industrial Relations case). Is a law valid with respect to the Treaty Implementation power under s 51(xxix)?Buying and selling is the very heart of trading: R v Trade Practices 3.Trading can be interpreted in its current sense: case Trading corporations include: a football association, with majority applying current activities approach case) a state cricket association with its own ground (Hughes v Western Australian Cricket Association) the Red Cross Society and a hospital (Re E v Australian Red Cross in trade commerce University of at least of the revenue came from trading activities substantial trading activities that formed a significant proportion of the universities overall activities (Quickenden v Tasmanian Authority sold electrical power in bulk (Tasmanian Dams case) Financial Corporations: Predominant activity of a financial corporation is the borrowing of moneys to lend to its members, the lending of those moneys, the receipt of repayments and the ultimate repayment of moneys to the source from which they came.movements of goods and persons, transmission of electrical current, transportation, traffic, current, movement): Bank Nationalisation case profit motive not essential, but indicative (R v Trade Practices Tribunal) manufacturing is an essential preliminary condition to trade and commerce but is NOT in itself trade (Grannall v Marrickville Margarines) s 98 extends the definition of to include shipping and railways the property of any but it must still be oversea or interstate: SS Kalibia v Wilson Application to facts: It appears that (or section) not fit within the or element of the s51(i) power to legislate on trade or commerce matters, the next elements is whether the law matches either the 2nd or 3rd element, with other countries or interstate respectively.If the answer appears no, still go on and analyse the next elements saying a court finds 2. Starting Commonwealth has power to prohibit, regulate and control the importation exportation of goods for any purpose (Murphyores Inc v Commonwealth). Geographical basis: subject matter outside of the Australian International treaties: giving effect to international basis: dealing with matters of international Relations with other nations. GEOGRAPHICAL BASIS The external affairs power can be used to regulate anything geographically external to Australia: Seas and Submerged Lands case This extends to places, persons, matters or things physically external to Australia: Polyukhovich v The Commonwealth, XYZ v The Commonwealth Threats from outside Australia: Thomas v Mowbray 2.