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Judd v McKeon (1926) 38 CLR 380

Q: Does s 9 of the Constitution mean voting is voluntary?
A: No, the right to vote is also a duty.


Roach v Electoral Commissioner (2007) 233 CLR 162

‘the words of ss 7 and 24, because of changed historical circumstances, including legislative history, have come to be a constitutional protection of the right to vote’ (Gleeson CJ, 174)


Rowe v Electoral Commissioner (2010) 243 CLR 1

‘Implicit in [the constitutional authority to develop the franchise] was the possibility that the constitutional concept would acquire, as it did, a more democratic content than existed at Federation. That content, being constitutional in character, although it may be subject to adjustment from time to time, cannot now be diminished.’ (French CJ, 18)

I.e., the voting franchise can grow, but it cannot be reduced by taking away the right to vote.


Boilermakers’ Case

Seminal case on the separation of powers in Australia - strict judicial separation. Established a 2-limbed test for determining when the implied separation of powers under the Constitution will be breached.
1. Cth judicial power can only be vested in a Chap III court.
2. federal Chap. III court cannot be invested with anything other than federal judicial power, or powers auxiliary or incidental to the exercise of federal judicial power. (i.e., can't be invested with executive or legislative power)

Principle prevents Chapter III courts from exercising non-judicial powers, however in some circumstances (persona designata) federal judges are entitled to perform roles outside their judicial functions.


Engineers’ Case

Rejected the reserved state powers doctrine.

Since this case, the HCA has given the Commonwealth's powers an increasingly broad interpretation and refuses “to imply limits within the scope of its powers to preserve a place for state regulation.” (TB, p.135)


Work Choices Case

After this case, it is generally accepted that the Cth can legislate on any subject matter under s 51(xx) (Corporations Power) as long as the law relates to the activities of trading, financial or foreign corporations. The HCA essentially broadened the scope of the Cth’s powers

Commonwealth powers are not limited by each other. The Commonwealth has a broad power over foreign and national corporations.


Tasmanian Dam Case

No ‘federal balance’.

Demonstrates a common law trend that began in the Engineers case that you can’t draw on a particular vision of what federalism looks like to limit the scope of Commonwealth powers.

Parliament can pass laws to implement Australia's international obligations on any subject matter.


R v Richards, Ex parte Fitzpatrick & Browne (1955) 92 CLR 157

The Court held that if the warrant had set out the particulars of the allegations then it could have reviewed the terms of the allegations, however it was in general terms and was therefore conclusive.

S 9 of the Parliamentary Privilege Act now requires that any warrant emanating from Parliament that commits a person to imprisonment must set out the particulars” of allegations → a decision to imprison someone by Parliament is now subject to judicial review.


Laurance v Katter [2000] 1 Qd R 147

There is now a right of reply to allegations of misconduct made in the course of Parliament.

S 16 Parliamentary Privileges Act

Davies JA held that s 16 was confined to statements made in Parliament.
Pincus JA held that s 16 was invalid for impinging on the implied freedom of political communication.

Similar case: Rann v Olsen (2000) 76 SASR 450


Egan v Willis (1996) 40 NSWLR 650

A trespass was held to have occurred against Egan but the Council’s resolution to hold Egan in contempt and suspend him from the House was valid and confirmed Parliament’s privilege to do so.

Parliamentary privileges may be justiciable when they are part of a dispute arising under the general law.


Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1

Held that the words “peace, order and good government” in the Cth Constitution is not a limit on legislative power, though the ability to read a limit into these words was left open by the Court.


Kartinyeri v Commonwealth (1998) 195 CLR 337

Whether s 51(xxvi) of the Constitution could only be used to the benefit of ATSI peoples.

2 judges (Gummow and Hayne JJ) held that the power was plenary (unqualified, absolute) and could pass laws that discriminate either beneficial or detrimental.

2 “judges held that the power to pass discriminatory laws was limited either by the wording of the text itself (Gaudron J) or by the underlying purpose in a modern Constitution (Kirby J).

The scope of the race power remains uncertain because the HCA has not been called upon to interpret it since. It has remained unresolved.


Wright & Advertiser Newspaper Ltd v Lewis (1990) 53 SASR 416 (FC)

Parliamentary privilege can prevent some actions but it cannot be used to prevent a fair trial because this would turn the privilege from a shield into a sword.


Re Gallagher [2018] HCA 17

Gallagher sent a declaration renouncing her British Citizenship to the home officer of the UK but on the date of nomination of being a candidate she remained a British citizen.

The court held that, ‘it is not sufficient that a person has taken all reasonable steps required by the foreign law, that only applies if they are irredeemably prevented from renouncing their citizenship. If there is a way to do it, then it must be done before nomination.


Re Caravan (2017) 91 ALJR 1209

Dual citizens must get rid of their foreign citizenship before running for Parliament.

Dual citizens will be ineligible even if they don’t know about their other citizenship and they must follow the law of the foreign country to get rid of the foreign citizenship unless it imposes unreasonable requirements to do so.


‘Tampa Case’
Ruddock v Vadarlis (2001) 110 FCR 491

Government argued prerogative power to exclude aliens.

Federal Court: North J held illegal, prerogative power abolished due to Migration Act covering the field
Full Federal Court disagreed and held legal
High Court held matter had been overtaken by events and appeal dismissed
Government then passed retrospective validating Act on the matter


Cadia Holdings v New South Wales (2010) 242 CLR 195

Prerogative power in rights to royalties from gold.
Mine had both gold and copper.
Cth sought to receive royalties from all of it.
Court held Act limited the prerogative power to gold.


Bropho v Western Australia (1990) 171 CLR 1

Court held that given the rise of state owned companies and commercial companies, the presumption that statutes did not bind the crown depended on the individual circumstances.


ACCC v Baxter Healthcare Pty Ltd (2005) ATPR 42-066

Trade Practices Act; derivative Crown Immunity from statute. (Baxter wanted to claim derivative Crown immunity from the TPA because damaging its interests would damage the Crown's, but the HCA rejected this 'shield')


Davis v Commonwealth (1988) 166 CLR 79

200 years of repression and depression T-Shirts.

Celebration of bicentennial essentially national – parliament had power to pass laws relating to the bicentenary but they were not proportionate to the purpose.


Pape v Commissioner of Taxation (2009) 238 CLR 1

Cth spending must be supported by legislation


Cross-Vesting Case
Re Wakim; Ex parte McNally (1999) 198 CLR 511

Federal Courts cannot be cross-vested with State jurisdiction because it breaches the separation of federal judicial power by requiring federal courts to exercise state judicial power. There is no strict separation at state level, but there is at Cth level.


Brandy v HREOC
(Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245)

s 25ZAA(2) of the Racial Discrimination Act

The newly implemented enforceability of HREOC’s decisions at the federal registry under the amended section 25ZAA(2) gave a power element of conclusiveness to the HREOC that made a previously non-judicial power an exercise of judicial power. It was therefore invalidated by the first limb of the Boilermaker’s test.


Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1

Only the Judiciary can detain a person as punishment for criminal guilt BUT the power to make laws with respect to ‘aliens’ in 51(xix) of the Constitution extended to a power to receive, investigate and determine an application by aliens for entry into Australia.

An ‘aliens’ ‘status, rights and immunities’ differ from those of Australian Citizens. s 54L of the Migration Act 1958 (Cth) would be repugnant to Ch III of the Consitution if it was about citizens.


Al-Kateb v Godwin (2004) 219 CLR 562

Migration Act 1958 (Cth) ss 189 and 198

The legislation DID authorize the indefinite detention of a person in Mr Al-Kateb’s position, and that in doing so it did not breach the guarantees of Chapter III because it’s purpose was non-punitive. The purpose was to exclude the alien from the community by segregation (Hayne J, Heydon J agreeing at 648) and to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community (McHigh J at 584). They found that the detention was administrative, not punitive.


Nicholas v The Queen (1998) 193 CLR 173

S 233(b) Customs Act (Cth) was found to be merely a rule of evidence, which does not impair the judicial function.

A law that directs how judicial discretion should be applied is different from a law that merely prescribes a court’s practice or procedure.


Huddart Parker & Co v Moorehead (1909) 8 CLR 330, 357

Defines judicial power

decide controversies
power to give a binding and authoritative decision
must be called upon to take action (can't just make declarations on the law without a matter)


Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Boilermaker’s principle does not apply to state courts exercising federal jurisdiction and usurpation by the legislature is not a ground for challenging the law because State Supreme Courts predated the structure of the court system created under Ch III, but nonetheless, the NSW Act was incompatible with the exercise of federal judicial power by the Supreme Court.

State Courts vested with federal jurisdiction must not exercise their power in a way that is incompatible with the exercise of federal jurisdiction and so the separation of powers in the Commonwealth Constitution feeds down into the state courts in these circumstances.


Fardon v Attorney-General (Qld) (2004) 223 CLR 575

For the majority, the procedural safeguards were enough to maintain the independence and impartiality of the supreme court.
They included:
The rules of evidence also applied and there is a right to appeal.
Conferred a substantial discretion about whether an order should be made, and if so, the type of order.
It applied to a class of persons (allowed) not a specific person.
Left the court discretion as to the outcome.


K-Generation v Liquor Licensing Court (2009) 237 CLR 501

French CJ used the beneficial construction approach to statutory construction.

The beneficial construction approach stretched the meaning of the provisions to the point where substantial uncertainty was caused as to the validity of laws and their practical operation and effect, which impacts the rule of law because subjects can not be sure of the laws that bind them and how they can abide by them.


International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319

The majority (French CJ, Gummow, Bell and Heydon JJ) all explained that the ex parte requirement was a serious incursion into the judicial process and undermined the institutional integrity of the court.

The Kable doctrine was used to strike down provisions for making a restraining order against the property of people suspected of engaging in serious crime under the Criminal Assets Recovery Act 1990 (NSW). (Resurgence of the Kable Doctrine)


South Australia v Totani (2010) 242 CLR 1

(French CJ, Gummow, Crennan, Kiefel and Bell JJ) The scheme used the courts in a way that was inconsistent with the judicial process because they were acting under the direction of the executive.

This was because the Attorney-General made the determinations about threats to public safety and order, and engagement in criminal conduct while the courts were only left to determine whether the individual was a ‘member’ of the declared organisation.


Wainohu v New South Wales (2011) 243 CLR 181

The HCA held that s 13(2) of the Act (which said that an eligible judge making a declaration did not have to give reasons) was a significant incursion into the judicial process. The judge’s function (acting persona designata) was so closely connected with the court that it would still undermine the court’s institutional integrity.


Condon v Pompano (2013) 252 CLR 38

Although the scheme involved significant incursions into the open court principle, this was not enough to undermine the Court’s institutional integrity.

The hearing to determine whether something was criminal intelligence was ex parte and closed, including to the respondent BUT a Criminal Organisation Public Interest Monitor (a government-appointed lawyer) attended the hearing to ‘test, and make submissions to the court about the appropriateness and validity of the monitored application’.


Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

HCA extended the application of the Kable Principle beyond institutional integrity and impartiality to include the supervisory jurisdiction of the Supreme Courts over inferior state courts and the exercise of executive power. These are also essential characteristics of the supreme Courts protected by Ch III.

Entrenched a minimum requirement of judicial review at the state level.
Rule of Law: HCA has strengthened its position as the ultimate court of appeal with supervisory jurisdiction for all errors of law, retains ultimate authority to check the powers of the executive, and no Australian Parliament can create courts and tribunals outside the integrated court system envisaged by Ch III.


Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Davis J's appointment as Deputy President of the AAT was upheld because he was acting in his personal capacity and the office did not involve an impermissible attempt to confer powers on a Ch III Court that were inconsistent with the exercise of judicial power.


Hilton v Wells (1985) 157 CLR 57

Court issuing warrants to permit phone tapping in ex parte applications.

Gibbs CJ, Wilson and Dawson JJ indicated that where the powers are to be conferred on a ‘court’ it will be presumed that was the intention, where the reference is to the ‘judge’ rather than ‘court’, it will be presumed that the power was intended to be personally conferred to the judge who has been elected because of their judicial qualifications. The nature of the power would also be relevant (non-judicial powers more likely to be conferred on the judge personally - persona designata)


Grollo v Palmer (1995) 184 CLR 348

Phone Tapping Case: McHugh J's dissent

Disagreed that public confidence could be maintained in the judiciary when judges were involved in ‘secret, ex parte administrative procedures that approve the acts of federal law enforcement officers’→ it infringes on the principle of open justice.

Individual judge’s integrity might be compromised by their potential to sit in cases in which they have previously been involved through the issuing of the telecommunications interception warrant.

You can’t use the judge to cloak executive action and give it legitimacy.

Accepts the majority’s reasoning about needing the procedural protection, but other people can do it (e.g. retired judges).


Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

Justice Jane Matthew's appointment as the Reporter for the Minister for ATSI Affairs.

Political decisions, liable to be removed, acting more like a ministerial advisor. The role involved the balancing of competing interests - essentially political.


Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan Informant (1931) 46 CLR 73

Without delegated legislation, “effective government would be impossible”. (main judgements are Evatt and Dixon JJ)

This case shows that Australia doesn’t have a strict separation of powers doctrine because the executive has the legitimate capacity to exercise legislative power like Parliament through delegated legislation. This is facilitated by the convention of responsible government because members of the executive are held to account by Parliament, which acts as a safeguard to democracy to allow them to take on legislative functions when parliament delegates the power to do so to them. (see 3 arguments in case note)


Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

'in our constitutional system, the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alliteration of the law fall within the province of Parliament, not the Executive.'
(tension between separation of powers in Australia and international law in a dualist system)


Tasmanian Dam Case (international law)

Australia must be able to effectively represent itself on the international stage, be able to conduct foreign affairs, and determine which obligations are accepted by Australia under international law. Therefore, the implication this has on federation is that international law has contributed to the centralization of government in the Commonwealth.

States and territories are also bound to fulfill Australia's international obligations that the Commonwealth government commits itself to.


Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Commonwealth Parliament cannot remove court jurisdiction.


BLF Case (1986) 7 NSWLR 372

Extreme laws
Parliament can't pass laws that tell the court what the outcome of litigation can be.

We do not have a definitive statement of what laws are considered extreme.