Topic: Tutorials various questions in constitutional law

Topic: Tutorials various questions in constitutional law

Pages: 20, Double spaced
Sources: 30

Order type: Coursework
Subject: Law

Style: Not specified
Language: English (U.S.)

Order Description

These are the tutorial questions needed for an open book exam.
Tutorial Week 6

1. Over what matters can Australia enact legislation under the External Affairs head of power?
2. What effects does Australia’s participation in international human rights instruments have on Australian domestic law and policy? What are the legislative mechanisms through which Australia implements its obligations under various international human rights treaties?
3. How effective are such mechanisms in protecting human rights such as the right to freedom from discrimination on the basis of sex or race?
4. Is there evidence of a growing willingness to expand the range of legal mechanisms which allow for international human rights norms to find expression in the Australian legal system?
5. Did increased international scrutiny over Australia’s domestic human rights record engender political resistance during the Howard era? If so, why?
6. What have been some of the important consequences for the federal-state balance of recent High Court cases interpreting s 51(xxix) Constitution?

NB: Students should prepare written answers to the following discussion question and hypothetical before the seminar and be prepared to read and discuss your answer with the class.

7. In a speech delivered just months after the decision in the Tasmanian Dams case was delivered, Sir Daryl Dawson stated that
“it is patent that the construction of the external affairs power which has now found favour offers Commonwealth new and independent heads of power on a potentially limitless range of subjects, whatever restrictions are imposed or latitude allowed in the implementation of a particular treaty”. Other commentators have described the decision in the Tasmanian Dams case as the culmination of a “transformation” of the Constitution by “extraordinary legal subterfuge” (see BW6, 918-920).
Do you agree with the above statement? Why or why not?


In January 2003, Australia entered into a treaty with New Zealand (“The Trans-Tasman Gaming Treaty”) to establish a uniform gambling policy between the two countries. Recent media coverage in both Australia and New Zealand has highlighted the links between the gambling industry and organized crime in both countries. The relatively unregulated travel between both countries has resulted in Trans-Tasman money laundering schemes and other crimes associated with the gaming industry.

Article 1 of the Trans-Tasman Gaming Treaty states:
“Both state parties to this Treaty hereby agree to regulate, prohibit and control gambling on a uniform basis to control the problems of organized crimes associated with the gaming industry.”

Article 2 of the Treaty further provides in relevant part:
(a) “Both State parties to this Treaty agree there shall be no more than 1 pokie per 200 club members in any facility where gambling takes place.
No more than 2 gambling facilities shall be allowed within a two mile radius in any city.”
(b) “Both state parties to this Treaty agree to prosecute in their ordinary criminal courts offences specified in Schedule 1 to this Treaty, committed in either State, all of which are associated with the gaming industry.”
Pursuant to the Trans-Tasman Gaming Treaty, the Commonwealth government enacted the Uniform Gaming Act 2003 (Cth). Section 1 of the Uniform
Gaming Act (Cth) provides:
(a) There shall be no more than 1 gambling facility within a two mile radius in any city or town within Australia.
(b) There shall be no more than 1 pokie per 150 club members in any facility where gambling takes place within Australia.

Section 2 of the Act provides: “Any criminal activity associated with organized crime in the gaming industry, as specified in Schedule 1 to this Act, shall be punishable in the ordinary criminal courts in this country, whether the criminal offence takes place in Australia or New Zealand.”

Section 3 of the Act establishes a new Ministerial portfolio for Gaming. The Federal Minister for Gaming is empowered under this Section to veto or approve any advertisement whatsoever which has the effect of criticising the Trans-Tasman Gaming Treaty. Section 3 specifically provides:
(a) No person, Corporation or Authority shall without the Approval of the Minister publish any advertisement, handbill, leaflet or badge advocating the repeal or denunciation of the Trans-Tasman Gaming Treaty;
(b) Any person, Corporation or Authority may apply to the Minister for approval to publish material which would otherwise be prohibited under this Section;
(c) The Minister may in his or her absolute discretion approve or veto any advertisement whatsoever which has the effect of advocating repeal or denunciation of the Treaty;
(d) Notwithstanding anything else contained in this Section, the Minister shall not approve an application by or on behalf of a State government or instrumentality.

After the enactment of this law, the Prime Minister issued the following Press Release: “The Commonwealth government is concerned over the Mounting evidence of links between organized crime and gambling in both New Zealand and Australia which is destroying the fabric of our society. The creation of a new Ministerial portfolio for Gaming as well as the recently enacted Uniform Gaming Act will allow us to monitor and control the spiralling crime rate associated with the Gaming industry as well as prevent the wealthy gambling lobby from propping up political parties or otherwise spending funds to undermine our ability to regulate Australia’s currently out of control gaming industry.”

A few months after the enactment of the Uniform Gaming Act, a letter from the Australian Minister of Foreign Affairs to the New Zealand Minister of Foreign Affairs was disclosed under the Freedom of Information Act 1982 (Cth). The letter states in pertinent part:
“I am delighted we entered into the Trans-Tasman Gaming Treaty because my government will now be able to gain extensive control over gambling which was previously within the domain of the State legislatures. State governments have demonstrated time and again that they lack the political courage to tackle the key players in organized crime associated with the gaming industry. The Federal government is now in a position to take the lead on these issues.”
Discuss separately whether Sections 1, 2 and 3 of the Uniform Gaming Act 2003 (Cth) are a valid exercise of the external affairs power found in s 51(xxix) Constitution.

1. What was the central issue in the Incorporation Case?
2. What were the reasons for the decision of the majority (look for arguments concerning textual language, convenience and history)? What use did the majority make of the Convention debates?
3. How did Deane J reply to each of the arguments used by the majority? Whose judgment do you think is better? Why?
4. Why does McQueen chastise the High Court as bad historians?
5. The majority said that the change in language between the 1891 draft and the 1897 draft of the corporations power was not intended to alter the meaning of the words “formed in”. Why does McQueen argue that the change in language was important, and did affect the meaning of this phrase?
6. According to McQueen, why was the meaning of the provision left unclear? How does McQueen explain the political context within which the Huddart Parker case was decided?
7. What does the Incorporation Case and McQueen’s criticisms of it tell you about the use of the idea of ‘original intent’ as a method of constitutional interpretation? (Original intent is the idea that the role of the court is to give effect to the objective intentions of the drafters of the Constitution).
8. What did the majority of the High Court hold in Re Dingjan; Ex parte Wagner?
9. What factors are relevant to determining whether or not a particular company is a “trading or financial corporation”? How were these factors applied in Adamson’s Case, the State Superannuation Board Case and Fencott v Muller?
10. Summarise the argument of the majority about the scope of the corporations power in the Work Choices Case. How did the arguments of Kirby J and Callinan J differ from the majority on this issue? Which approach do you agree with?
11. What are some of the political and legal consequences that may flow from the High Court’s affirmation of the Commonwealth’s submissions in Work Choices regarding the scope of the corporations power?
12. What developments have transpired under the Rudd/Gillard Labor Governments with regard to the Work Choices Legislation?
13. What are the key characteristics of the defence power? How does its scope change in different social and political circumstances?
14. What are the key principles that emerge from the High Court’s decision in the Communist Party Case?
15. Is the Communist Party case still important in our contemporary political climate? Why or why not?
16. How does the defence power operate in contemporary circumstances? Did the interpretation of s 51(vi) in Thomas v Mowbray (2007) 233 CLR 307 affect the scope of the defence power?

[NB: Students should prepare a written answer to the following hypothetical before the tutorial and be prepared to read and discuss your answer with the class]


Approximately 10% of the world’s population live with disability. They are the largest global minority. In August 2006, the UN General Assembly adopted overwhelmingly the Convention on the Rights of Persons with Disabilities (‘the Convention’). Australia, along with a number of other countries, immediately ratified the Convention.

The purpose of the Convention (which has 33 Articles) is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments which, when combined with various social barriers, may hinder their full and effective participation in society on an equal basis with others.

Article 24 of the Convention provides:
(1) States Parties recognise the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive, education system at all levels, and life-long learning…”

Article 27 of the Convention further provides in relevant part:
(1) States Parties recognize the right of persons with disabilities to work on an equal basis with others. This includes the right to the opportunity to gain a living by work freely chosen or accepted in the labour market and a work environment that is open, inclusive and accessible to persons with disabilities.

After ratifying the Convention, the Commonwealth Parliament passed the Employment and Education Act for Persons with Disabilities 2006 (Cth) (hereinafter the Act).

Section 5 of the Act provides:
(1) Commonwealth and State government agencies shall promote the employment of persons with disabilities through employment programmes, incentives and other measures;
(2) All foreign corporations and trading or financial corporations formed within the limits of the Commonwealth shall develop employment programs which specify that persons with disabilities shall constitute 5% of all new employees;
(3) All corporations, except for those referred to in sub-section (2) shall develop employment programs which specify that persons with disabilities shall constitute 2.5% of all new employees.

Section 6 of the Act further provides:
(1) State government providers of education shall ensure that persons with disabilities are not to be excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary and secondary education on the basis of disability.

Section 7 of the Act provides:
(1) Any corporation referred to in Section 7 that fails to immediately institute employment programs referred to in that Part within six months of the passage of the Act, shall be subject to penalties in an amount equalling 5% of the overall proceeds of such corporation in the preceding twelve month period.

Discuss whether Sections 5, 6 and 7 of the Employment and Education Act for Persons with Disabilities 2006 (Cth) are a valid exercise of the corporations power and/or the external affairs powers (ss 51(xx), 51(xxix) Constitution).


90 member states of the United Nations signed a joint statement on the Rights of Lesbian, Gay, Bisexual and Transgender (“LGBT”) Persons drafted by the United Nations Human Rights Council. The joint statement provides in pertinent part:
We call on states to take steps to end acts of violence, discrimination, denigration and related human rights violations committed against individuals because of their sexual orientation or gender identity, encourage Special Procedures, treaty bodies and other stakeholders to continue to integrate these issues within their relevant mandates.

After signing this statement, twenty five states (including Australia, Canada, New Zealand, the UK and the United States) entered into a multi-lateral treaty, the Convention on the Elimination of All Forms of Discrimination Against Sexual Minorities (‘the Treaty’). The Treaty addresses the issues of discrimination and related human rights violations, such as harassment, intimidation and vilification in all places. The Treaty aims to minimise the emotional and physical consequences resulting from homophobic and transphobic hate speech as well as victimization and potential violence that can result from such speech. The Treaty states:

Convention on the Elimination of All Forms of Discrimination Against Sexual Minorities

Homophobic and transphobic hate speech has devastating psychological and physical effects on its targets as well as the wider group of which they are or perceived to be a member. These injuries may include pecuniary loss as well as a variety of negative feelings, such as loss of dignity, depression and other physical ailments. Each state signatory to this Treaty undertakes to address the issue of homophobic and transphobic hate speech. This Treaty is intended to promote equality of opportunity for all members of the community and improve the quality of democratic life through a citizenry respectful of the dignity and worth of all its members.

Art 1(1):

Any advocacy of hatred based on homosexual orientation or transgender identity that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Harassment, intimidation and vilification of such persons shall also be prohibited by law.
Article 1 (2):
State parties undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, discrimination against sexual minorities and, to this end, shall declare an offence punishable by law:
(a) All dissemination of ideas based on the superiority of heterosexual orientation or inferiority of homosexual orientation or which is otherwise based on hatred of homosexuals or group of sexual minorities;
(b) Incitement to discrimination against homosexuals as well as acts of hatred or violence or incitement to such acts against any homosexual or group of sexual minorities.
Art 2(1): ‘Homosexual’ means a person who is attracted to members of the same sex.
Article 2(2): ‘Sexual minorities’ means homosexual, lesbian, gay, bisexual and transgender.
Article 2(3): “Harassment, intimidation or vilification” means any gesture, any written, verbal or physical act that is reasonably perceived as being motivated either by any actual or perceived homosexual, lesbian, gay, bisexual or transgender orientation of a person and that a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming such person or placing such person in reasonable fear of physical or emotional harm.

After Australia became a signatory to the Treaty in January 2013, the Australian government enacted into law the Sexual Orientation Discrimination Act 2013 (Cth) which provides that:

Sexual Orientation Discrimination Act 2013 (Cth)

Section 1: It is unlawful for a person to do an act otherwise than in private, if
(a) the act is reasonably likely:
(i) to vilify another person or group of persons, or
(ii) intimidate another person or group of persons, and
(b) the act is done because of the sexual orientation or gender identity of that person or group of persons.

For purposes of this section, vilify means to offend, insult or humiliate a person or a group of persons; intimidate means to cause fear of physical harm to a person or to the property of a person or to the members of a group of persons.

Section 1 does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.

Section 2: Any person who knowingly or recklessly does an act that is reasonably likely in all the circumstances to incite (through the expression of insults, slander, acts of violence or otherwise) hatred towards or discrimination of, a person or group of persons on the ground of the sexual orientation or gender identity of the person or members of the group is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.

Section 2 does not apply to communications which are true or acts done reasonably and in good faith.

Arnie Dolt, a journalist, makes some controversial statements in The OZ (a conservative tabloid with widespread circulation) suggesting certain high profile gay men, such as Dim Hillson (a recently appointed Commissioner to the Australian Human Rights Commission), were not genuinely homosexual but were pretending to be gay so they could access benefits increasingly available to sexual minority groups, including prestigious appointments to human rights bodies. Dim Hilson and several prominent gay figures have brought a suit in the Federal Court against Arnie for breaching the Sexual Orientation Discrimination Act 2013 (Cth). The Commonwealth DPP also charges Arnie with committing an offence under Section 2 of the Act. Arnie wishes to challenge the constitutionality of this law.
Discuss the constitutional validity of Section 1 and Section 2 of the Sexual Orientation Discrimination Act 2013 (Cth) under s51(xxix) of the Constitution.


1. Russell Mathews argues that the vertical fiscal imbalance that characterises Australia’s constitutional system breaks the link between spending and taxing decisions for both the Commonwealth and State governments and, accordingly, “there has been a loss of accountability and a weakening of democratic controls over all the governments concerned” (extracted in BW5, 1094). What does ‘vertical fiscal imbalance’ mean in the Australian constitutional context? Critically evaluate Mathews’ comments about Australia’s vertical fiscal imbalance by considering the positive and negative aspects of the split accountability that it introduces.
2. Discuss the role of at least two Commonwealth heads of power in the development of vertical fiscal imbalance in Australia.
3. The scope of the power of expenditure was recently considered by the High Court in Pape v Commissioner of Taxation (2009) 238 CLR 1. What was the result in that case? Does this decision of the High Court expand or restrict the power of the federal parliament to appropriate and expend revenue?
4. Has the High Court adopted a narrow or broad interpretation of the grants power in s 96 Constitution? How has this interpretation affected the “federal balance” in the Australian context?
5. Explain how vertical fiscal imbalance has been enhanced by the High Court’s interpretation of the various spending powers, including sections 81, 96, 51 (ii), and 90. How did the introduction of the GST contribute to the problem of vertical fiscal imbalance?
6. In Cole v Whitfield (1988) 165 CLR 360, what purpose did the Court say s 92 was intended to serve? How did the court use the Convention Debates in reaching this Conclusion? What is the test for the application of s 92? What kind of laws does it apply to?
7. In the pre-Cole era there were two different interpretations of Section 92 of the Australian Constitution. Under the individual rights or laissez-faire theoretical approach, a law would be found violative of section 92 if the regulation directly restricted trade and commerce rather than indirectly. This became known as the ‘criterion of operation’ test. What criticisms were levelled against this approach to interpreting s 92 by the court in Cole v Whitfield?
8. Why did the court say it would be rare for s 92 to invalidate Commonwealth, as opposed to State, legislation?
9. In applying s 92, does the Court examine only the law’s direct legal effect, or also at the ‘factual operation’ of the law? What does the court mean by ‘factual operation’?
10. What law was being challenged in Cole v Whitfield? Did this law directly discriminate against trade in an impermissible way? Did the ‘factual operation’ of this law discriminate against trade in an impermissible way? Why? Was the law protectionist? Why? Was the law valid or invalid?
11. What was the law under challenge in Bath v Alston Holdings?
12. Castlemaine Tooheys is a crucial case on the application of the Cole v Whitfield test for s 92. In general terms, how did the Court develop the idea of ‘protectionist discrimination’ as the touchstone for the application of s 92?
13. Why did the majority in Castlemaine say the law failed the s 92 test?
14. The High Court revisited s 92 in the 2008 case of Betfair Pty Ltd v Western Australia (2008) 234 CLR 418. How did the Court treat the earlier authorities of Cole v Whitfield and Castlemaine Tooheys?
15. Does the decision in Betfair consider the contemporary economic climate? How did this influence the interpretation of s 92 Constitution?

[NB: Students should prepare a written answer to the following hypothetical before the seminar and be prepared to read and discuss your answer with the class]


Victoria runs one of the most exceptional global thoroughbred racing events annually. The Victorian Spring Horse Racing Carnival beginning in early September lasts 50 days. In 2006, approximately 800 000 people attended the Carnival. It has been estimated by the Premier of Victoria that the Carnival last year yielded a total economic benefit to the state of close to $630 million. In addition, interstate visitors spent close to $50 million on raceday packages organised by interstate horse owners.

In July 2007, there emerged an outbreak of equine influenza in Queensland and New South Wales but no reported cases in Victoria or in any other states. In August 2007, Victoria passed the Horse Flu Quarantine Act 2007 (Vic) to ban the movement of horses into Victoria from all other states in Australia unless certain protocols are followed. The protocols require that horses from interstate be administered a horses flu vaccine the cost of which is $ 3,500 per vaccination. Horses must be administered a course of three vaccinations over a three week period. In addition, interstate horses must be quarantined for two weeks after the administration of the last vaccine and undergo a health test establishing they are not carrying the equine influenza virus. Interstate horses failing to provide proof of having followed this protocol are barred from entering Victoria to compete in this year’s annual Spring Horse Racing Carnival. After the Carnival ends, interstate horses will be allowed to enter Victoria. Because there is not enough vaccine in the country to vaccinate all of the potential thoroughbreds in the country, horses in Victoria will not be vaccinated until more vaccine arrives from overseas. This is estimated to be at least one month after the Racing Carnival ends.

Thoroughbred horse owners intending to compete in the 2007 Racing Carnival from all states (particularly Western Australia, Tasmania and South Australia) are angry about the legislation. During the fourth week of the Carnival, over 200 Victorian thoroughbred horses exhibited symptoms of the horse flu and one quarter of the horses who were to compete in the Carnival were infected with the virus and withdrawn from participation.

Discuss whether the Victorian Act is a valid exercise of state legislative power.