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138 Pages • Complete Study Notes • Year: Pre-2019
CHARACTERISATION AND INTERPRETATION 3 ENGINEERS AND PRE-ENGINEERS 12 The Division of Legislative Power 12 Pre-Engineers 12 Implied Immunity of Instrumentalities 12 Reserved State Powers 14 The Engineers Case: 15 The Jumbunna Principle 17 EXTERNAL AFFAIRS POWER: purposive power (proportionality test of characterisation) 17 TRADE AND COMMERCE POWER: subject matter power 26 CORPORATIONS POWER: subject matter power 29 (a) Scope of the power 34 (b) Relationships that corporations have with others and broader aspects 36 (c) No regulation of state banking or insurance 38 (d) The “Trade and Commerce Power” compared with the “Corporations Power” 38 RACES POWER 39 Interpretation of “special laws”, “necessary”, “for” and “people of any race” 39 THE GRANTS POWER 44 THE TAXATION POWER 51 1. Is it a tax? 51 (a) Case Law: Positive attributes 52 (i) “Compulsory exaction”, “Public body” and “Public purposes” 54 2. The “fee for services” exception: s 53 Constitution 59 INCONSISTENCY OF LAWS 62 Tests for inconsistency 63 1. Direct Inconsistency: It is impossible to obey both laws? 63 2. Direct Inconsistency: Where one law confers a right, privilege or entitlement and the other takes it away or diminishes it 64 3. Indirect Inconsistency: Where the Commonwealth law “covers the field” 66 FEDERAL COMPACT: Melbourne Corporation Principle 75 FREEDOM OF INTERSTATE TRADE AND COMMERCE: s 92 87 EXPRESS GUARANTEES: 99 (a) FREEDOM OF RELIGION: s 116 99 (b) TRIAL BY JURY: s 80 103 IMPLIED FREEDOM OF POLITICAL COMMUNICATION 106 The types of legislation that can be challenged 113 What is “political communication” 116 JUDICIAL POWER AND DETENTION 117 The implied freedom from arbitrary detention 117 Separation of Judicial Power 118 EXECUTIVE DETENTION 119 Protective Detention 122 Immigration Detention 124 Control Orders 129 Separation of Power and State Courts 131 Preventative Detention 132 Boilermakers and Kable 134
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