LAWS1116 CONSTITUTIONAL LAW

TUTORIAL QUESTIONS

Tutorial 1: Economic Powers

Question 1

Silver Lining is a charity that owns and operates a school for children with special needs

in Biloela, a remote Queensland town. Silver Lining is incorporated under Queensland

law and its stated objects include: (a) providing education to children with special

needs; and (b) raising funds for the school through donations and investments. It

charges parents of students a minimal fee that only partially covers the cost of operating

the school. Silver Lining holds a small number of shares in a mining company that it has

held for the past ten years. The School operates within its grounds a vegetable plot

which is used for educational purposes of the children. The local grocery store owned

by Green Plus, a family owned Queensland company that trades exclusively within the

local district, occasionally buys vegetables grown by the School children. The School

uses the money so earned to improve school facilities.

In 2015, the Commonwealth Parliament enacts the Grocery Price Stabilisation Act (GPS

Act) to deal with rising grocery prices. Section 5 makes it an offence for a ‘constitutional

corporation’ to buy or sell grocery products above the rates fixed by regulation. Section

10 of the GPS Act provides that a constitutional corporation that is found to be regularly

contravening section 5 is liable on conviction by the Federal Court to deregistration as a

corporation. ‘Constitutional Corporation’ is defined as ‘any corporation within the

meaning of section 51(xx) of the Constitution’. Green Plus has a practice of paying more

for School produce than the market price in order to support the School. Silver Lining

and Green Plus are prosecuted under sections 5 and 10 over a series of transactions by

which Green Plus bought quantities of tomatoes from the School above the price fixed

by regulation under the GPS Act.

Advise Silver Lining and Green Plus about their prospects of defending the charges,

citing relevant constitutional provisions and judicial authority. In your advice, consider

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only the legal issues arising in relation to s 51(xx) of the Constitution, assuming that the

legislation is otherwise constitutionally valid.

Question 2

The Commonwealth Ports Authority Act 2020 (Cth) establishes the Ports Authority with

a monopoly of providing navigational services and stevedoring services to all ships

using Commonwealth ports. (Stevedoring services involve the loading and unloading of

goods carried by ships.) The Act includes the following provisions.

Section 20 empowers the Ports Authority to determine charges for the services it

provides to ships.

Section 21 empowers the Minister to prescribe by regulation amounts that an importer

must pay for different categories of goods loaded for exportation or unloaded for

importation at the various Commonwealth Ports. The section permits the Minister to fix

different amounts for goods imported or exported at different Commonwealth Ports.

Pursuant to section 20, the Ports Authority fixes an overall charge based on the tonnage

of a ship that requires ship owners to pay at the rate of $10 per ton of cargo carried up

to a maximum of $50,000. Pacific Shipping is a company that operates a small vessel

between Brisbane and Hong Kong with a cargo capacity of 5,000 tons, bringing

manufactured light goods to Brisbane and taking away agricultural products to Hong

Kong. Owing to a steep rise in fuel, the company finds it hard to pay the charges

imposed by the Ports Authority.

The profitability of the company is also affected by the fact that Brisbane retailers have

resorted to buying goods from Sydney, where the amounts fixed for importation of

manufactured goods under section 21 are considerably lower. Pacific Shipping seeks

your advice on its chances for successfully challenging the validity of sections 20 and 21.

Assume that Pacific Shipping has standing to challenge the Act. Please give your advice,

stating reasons and the relevant constitutional provisions and judicial authorities.

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Tutorial 2: International Powers

Technological advances in the second half of the 21st Century have led to the

widespread use of robot like devices known as ‘avatars’. The operators of these devices,

which look like robotic versions of humans, can download specific information directly

from their brains into the avatar’s operating system. There is growing concern in

Australia about the dangers of using avatars to replace human employees in the

manufacturing sector. There is also significant international debate about the use of

avatars in warfare.

The International Committee of the Red Cross convenes an international conference in

Geneva in August 2056 to discuss the issue of the use of avatars in armed conflict. The

conference endorses a draft convention, the Geneva Convention on the Deployment and

Use of Humanoid Avatars in Armed Conflict, to be opened for signature by states in June

2057. The Preamble reads as follows:

WHEREAS there is widespread concern in the international community about

the use of humanoid avatars in warfare and WHEREAS state parties wish to

ensure compliance with the international law of armed conflict, the following

convention is hereby opened for signature [...]

The body of the Convention contains, among others, the following provisions:

Article 9 provides that the use of avatars for ‘any military purpose’ must be ‘strictly

supervised by the states concerned’ and that state parties must enact ‘any regulations

necessary to achieve that end’.

Article 10 provides that avatars are not to be used ‘at any stage in the preparation or

deployment of large scale armaments’.

The Commonwealth government has noted these areas of concern, but is also actively

researching potential uses of avatars in the Australian armed forces. The

Commonwealth Parliament subsequently passes the Humanoid Avatar (Responsible Use)

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Act 2057 (Cth). The legislation receives the royal assent on 2 February 2057. It provides,

in relevant part, as follows:

Section 14 provides that the use of avatars in ‘dangerous work’ is prohibited unless

strictly supervised. The term ‘dangerous work’ is defined as ‘any work carried out in a

civilian or military context using tools, machinery or equipment that poses a serious

potential risk to worker or public safety’. The maximum penalty for breaching the

section is a $125,000 fine.

Section 15 empowers the Minister for Defence to establish a government owned

Australian Avatar Factory for the purpose of ‘manufacturing safe, technologically

advanced avatars for civilian, military and commercial use’.

Section 16 provides that ‘the use of avatars in the manufacture of any kind of weaponry

or explosive device is prohibited’.

Are ss 14, 15 and 16 of the Humanoid Avatar (Responsible Use) Act 2057 (Cth)

authorised by the external affairs power in s 51(xxix) of the Constitution? Are these

provisions authorised by the defence power in s 51(vi) of the Constitution? Would it

make a difference if Australia was engaged in a protracted international armed conflict

at the time the legislation was enacted?

Tutorial 3: Resolving Conflicts of Laws

Question 1

Compare the development of the law relating to characterisation of federal legislation

and the interpretation of federal heads of power with the development of the law

relating to inconsistency between Commonwealth and State legislation. Are there any

parallels? Are there any consistent themes?

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Question 2

What are the differences between Australian Boot Trade Employees Federation v

Whybrow & Co (1910) 10 CLR 266, Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR

466 and Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253? Are they

differences in the tests applied, the facts of each case, or both the tests and the facts?

Question 3

A Commonwealth statute provides:

This Act is not intended, and shall be deemed never to have been intended, to exclude or

limit the operation of a law of a State or Territory that furthers objects which are

substantially the same as the objects of this Act and is capable of operating concurrently

with this Act.

What kind of inconsistency between Commonwealth and State laws is this provision

calculated to address? Which decided cases shed light on the capacity of the provision to

achieve its objectives?

Tutorial 4: Executive Power and Intergovernmental Immunities

Question 1

Should the High Court decisions in Williams v Commonwealth (2012) 248 CLR 156 and

Williams v Commonwealth (No 2) [2014] HCA 23 be regarded as positive or negative

developments for Australian federalism?

Question 2

In 2020, Australia emerges (successfully) from a very long and bitter war following a

disastrous act of international terrorism. The economy has been ravaged by almost

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seven years of government control of key sectors of the economy and there is

widespread unemployment. Concerned for the re-integration of returned ex-service

personnel into the Australia economy, the Commonwealth passes the Ex-Service

Personnel Reintegration Act 2021 (Cth). The Act calls on all major employers to do their

part. In separate sections it provides:

1. All employers must give priority to ex-service personnel when employing new staff to

any position whatsoever.

2. When ex-service personnel are employed by the States, the States must pay all ex-

service personnel a minimum wage to be declared from time to time in the Regulations

under the Act.

3. State governments must give priority to ex-service personnel in promotion decisions

within their departments.

4. The State governments must ensure that their departments employ all ex-service

personnel who do not have full-time employment by a date to be set in the Regulations,

even if this means displacing other employees.

The States commence proceedings in which they concede that the defence power

supports the legislation, but argue that these measures are an unconstitutional,

discriminatory interference with their capacities to function as independent

governments. Queensland and Victoria also argue that the Act (and especially measure

4) has a discriminatory impact on them in particular, because by far most of the

returned ex-service personnel have resettled in those states.

Give judgment in this case, showing how your decision derives from the Commonwealth

Constitution as interpreted and applied in the decided cases.

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Tutorial 5: Judicial Power: the Commonwealth

In 2020, the Commonwealth government wishes to honour its pre-election promise to

the electorate to take measures to make radio and television broadcasting in Australia

more responsible and ethical. Using its majority in each House, the government enacts

the Australian Broadcasting Court Act (the Act). The Act contains, inter alia, provisions

having the following effects.

Section 3 This section imposes an obligation on all television and radio broadcasters to

observe the Australian Broadcasting Code (the Code) set out in the Schedule to the Act.

The Code prohibits certain defined types of conduct relating to broadcasting. Any

broadcaster commits a prohibited act is liable upon conviction by the Australian

Broadcasting Court (the Court) to a penalty not exceeding $200,000.

Section 4 This section empowers the Court to determine (on the complaint of any

person or on its own motion) whether any program broadcast on television or radio is

`objectionable matter'. In determining whether a program is `objectionable matter', the

Court is required to have regard to the following considerations:

(a) The importance of maintaining the freedoms of expression and information in a

liberal society;

(b) The need to protect the public morality;

(c) The need to secure and promote the Australian national identity;

(d) The sensibilities of ethnic or other minorities.

Section 5 This section makes it an offence to broadcast any program determined by the

Court to be ‘objectionable matter’. Any broadcaster, who commits an offence under this

section, is made liable, upon conviction by the Court, to a penalty of penalty of $ 500,000

for such offence.

Section 6 According to this section, the Court comprises three serving judges of the

Federal Court of Australia designated in that behalf by the Governor-General. They

serve for a period of five years and are eligible for reappointment.

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Section 8 This section permits the Court to authorise the Registrar of the Court to

inquire into and report on complaints concerning the broadcasting of objectionable

matter. The Court may take the registrar's report into account in its determinations

under section 4.

Section 9 A broadcaster or complainant may appeal to the High Court against a decision

of the Court under sections 3 or 4. Such appeal shall be heard by a single judge of the

High Court who may, if he/she considers it necessary, receive new evidence concerning

the matter.

The Court has determined that the program The Bachelor proposed to be shown on

Channel 6 constitutes ‘objectionable matter’ for being offensive to a section of

Australian society. Channel 6 broadcasts the program in disregard of the determination

and is charged for the offence under section 5. Channel 6 argues in its defence that the

charge is unconstitutional. The Commonwealth Attorney-General seeks your advice on

whether Channel 6 has a good defence based on Chapter III of the Constitution.

(1) Please advise the Attorney-General, citing relevant constitutional provisions and

judicial authorities.

(2) If you find that the charge is not valid owing to the unconstitutionality of the

Australian Broadcasting Court Act, please recommend amendments to the Act that will

make it constitutional for the future.

Tutorial 6: Judicial Power: the States

The Queensland government of 2018 is determined to combat the growing scourge of

so-called ‘Bikkie Gangs’, which roam the Brisbane suburbs stealing people’s biscuits.

The Queensland Parliament therefore passes the Taking Steps to Stamp Down on Bad

People Act 2018 (Qld), which contains the following provisions:

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Section 5 makes it an offence to steal one or more biscuits from a residential home or

moveable dwelling.

Section 6 prescribes that the maximum penalty for breaches of section 5 is ten years

imprisonment, unless the offender is a member of a Proscribed Biscuit Stealing

Organisation, in which case the maximum penalty is twenty years imprisonment.

Section 8 gives the Supreme Court of Queensland the power to declare any group of five

or more individuals a Proscribed Biscuit Stealing Organisation for the purposes of the

Act. The section states that upon application by a Queensland police officer, furnishing

particulars of the organisation and its members, the Supreme Court ‘must’ issue a

declaration under section 8, provided it is satisfied that the persons named in the

application are residents of Queensland.

Section 9 gives the Supreme Court of Queensland the power to issue a Special Biscuit

Detention Order against any offender under the Act who reaches the end of their

sentence and still poses ‘a genuine threat to biscuits and the community’. A person

subject to such an order may be detained indefinitely in prison until such time as the

order is revoked by the Supreme Court.

Jim Callan is president of the Graceville Biscuit Appreciators Society. He is concerned

that an application may be made to declare the society a Proscribed Biscuit Stealing

Organisation. He seeks your advice on whether the Taking Steps to Stamp Down on Bad

People Act is consistent with the doctrine of institutional integrity of state courts.

Provide your advice with reference to decided cases.

Tutorial 7: Freedom of Interstate Trade

Better Living Pty Ltd, a trading corporation incorporated in Queensland, enters into a

contract of sale with a New South Wales importer of margarine products, Sunshine

Unlimited Pty Ltd. Better Living undertakes to supply 15,000 kg of margarine packed in

containers having the shape of a truncated cone. At the time the contract is concluded,

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the relevant New South Wales provision on the packaging of margarine is section 17 of

the Packaging of Margarine Act 2011 (NSW), which provides as follows:

Margarine and prepared fats shall be imported, held in stock or transported for the

purpose of sale or delivery, exhibited for sale, consigned or delivered only in the form of

cube-shape blocks having a net weight of 250g, 500g, 1kg or 2kg and in sealed containers.

The Director of Dairy Products may, on application by a New South Wales importer, grant

a licence to market margarine products which are packed in containers other than in

cube-shape.

Since New South Wales law does not permit margarine to be marketed unless it is in

cube-form the parties agree that the goods should be accepted and paid for only if

Sunshine Unlimited obtains a licence to market margarine packed in tubs having the

shape of a truncated cone. Sunshine Unlimited inquires of the competent New South

Wales Director whether it could market the margarine. The Director informs Sunshine

Unlimited that legislative provisions exist which prohibit the sale of margarine where

its external packaging is not cube-shaped. Sunshine Unlimited is also told that it is

unlikely that a dispensation from these provisions will be granted. The buyer repudiates

the contract because it is now impossible for him to market margarine packed in tubs

having the shape of a truncated cone.

The seller initiates legal proceedings in a New South Wales court in order to test the

constitutionality of the New South Wales legislation. Legal representatives of the New

South Wales Government claim that the requirement of the cubic form is necessary for

the protection of the consumer in order to prevent confusion between butter and

margarine. They state that the cubic form used for the sale of margarine is founded in

the habits of New South Wales consumers and is therefore an effective safeguard in that

respect. Furthermore, they claim that the form of packaging does not constitute a real

obstacle to interstate trade because a Queensland based manufacturer of margarine

could easily adapt the presentation of the product in order to market it in New South

Wales.

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Better Living has read in the Queensland newspaper, The Curious Quail, that you are a

tireless fighter for free trade and, therefore, it seeks your advice in this matter. Discuss,

with reference to decided cases, the compatibility or incompatibility of the New South

Wales legislation with section 92 of the Australian Constitution.

Tutorial 8: Express Constitutional Rights

In 2025, 20th century firearms, now obsolete, have been replaced by laser weapons.

Problems with the gun control legislation of the late 20th century has lead the

Commonwealth to pass an Act authorising an agreement with the States that if they will

confiscate all laser weapons held by persons not falling within designated categories

(police, military and farmers), the Commonwealth will reimburse the States for

whatever compensation the States chose to pay the owners.

Second, the legislation regulates the uses persons falling within the designated

categories can make of their laser weapons. Farmers are permitted to use laser

weapons for the sole purpose of controlling pests. They are specifically prohibited from

using laser weapons to hunt animals for resale.

Third, the legislation provides for the nationalisation of the businesses of laser weapon

dealers, partly because on the Commonwealth's account they pose a threat to internal

security. Noting that most laser dealers operate through companies, the legislation

empowers the Minister for Internal Security to replace existing directors of such

companies with new directors under the control of the Minister. The legislation

confirms that new directors will have full power to manage, direct and control the laser

dealing business, including a power to sell the business and undertaking to the

Department of Internal Security. However, shareholders remain entitled to dividends

declared by, and to participate in any winding up of, their companies.

Fourth, federal legislation of 1998 had entitled owners of regular firearms to

compensation credits for confiscated firearms, redeemable by yearly instalments over

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the course of 15 years. However, the new legislation of 2012 extinguishes all subsisting

rights to outstanding instalment entitlements.

Paul Bogan, a failed movie-maker, has set up a laser dealing business in the far north of

Western Australia. Norm Shepherd, a grazier from those parts, owns a laser weapon

which he uses to cull kangaroos on his property. He also runs a modest business selling

the kangaroo skins to tourists.

Frances Brumby, a local pub owner, recently purchased a laser weapon from Paul for

self defence. Previously, she had owned a pump action shot gun which had been

confiscated under the 1998 legislation and for which she had been entitled to

compensation under that legislation.

All three seek your advice on their prospects of success in challenging the 2012 federal

legislation. You should confine your advice to the issues arising out of paragraph

51(xxxi) of the Constitution.

Tutorial 9: Implied Constitutional Rights

In introducing the Commercial Broadcasting Act 2025 (Cth) to the House of

Representatives, the Minister for Communications stated that the object of the

legislation was to protect public health by restricting the sale of harmful and addictive

substances. The Act contains the following key provisions:

3. No person or corporation shall broadcast on electronic media including radio,

television and the Internet, any advertisement, information or matter that pertains to

the sale or consumption of products containing tobacco, alcohol or prairie grass.

4. No person shall form or be member of an association that has among its objectives

the promotion or appreciation of tobacco alcohol or prairie grass.

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5. Any person who contravenes section 3 or section 4 shall be guilty of an offence

punishable with a fine not exceeding $100,000.

The President of the Alternative Medical Practitioners Association (AMPA) holds the

professional opinion that prairie grass smoked in moderation is a good preventative

drug for the common cold. She appears on the 7:30pm Sunday evening current affairs

program on Channel 99, The 6:30pm Project, and vigorously defends her pro-prairie

grass position. The program is recorded on Saturday morning for broadcast the

following night. In the course of a heated exchange with her interviewer, comedian Dave

Snooze, she describes the Commercial Broadcasting Act as ‘the latest draconian

intervention in the life of a free people by the crypto-fascist Minister for

Communications masquerading as a social reformer and moral crusader’. After the

recording, she storms out of the studio and with other members of the AMPA, conducts

an impromptu march on the street outside to protest against the Act.

Channel 99 Ltd is prosecuted by the Attorney-General for contravening section 3 and is

sued by the Minister for Communications for defamation. The President of the AMPA

and other marchers are prosecuted under s 10 of the Public Safety Act (Qld) which

makes it an offence to conduct marches on public roads without the written authority of

the Police Commissioner.

Advise (a) Channel 99 and (b) the AMPA President and members of their prospects for

successfully defending themselves in these proceedings. Assume that the

Commonwealth Parliament has the power to make laws with respect to electronic

media.

Tutorial 10: Constitutional Change

At the Queensland State general election held in January 2020, the Electoral Reform

Party (ERP) gains a majority in the Legislative Assembly. It enacts in the ordinary

manner, the Electoral Reform Act 2020 (Qld). The Act contains, among others, the

following provisions:

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Section 2 The Legislative Assembly shall be composed of members directly chosen by

the people of the State. In this section the ‘people of the State’ means all persons who

are over the age of 16 years.

Section 3 (1) A Bill which repeals or amends sections 2 or this section 3, shall not be

presented for assent by or in the name of the Queen, unless it is passed and approved by

the electors at a referendum in accordance with the procedure set out in subsection (2)

of this section.

(2) A Bill of the kind referred to in subsection (1) shall be passed by a four fifths

majority of the Legislative Assembly. If the Legislative Assembly fails to pass such a Bill

by a four fifths majority, but passes it by a simple majority, the Speaker shall summon a

conference of the leaders of all the political parties represented in the Assembly and the

independent members. If at such a conference, there is no agreement among all the

leaders and independents members, the Bill shall be presented to the electorate for its

approval. If a majority of electors voting approve the Bill it shall be presented to the

Governor for assent by or in the name of the Queen.

At the election held in December 2022, the ERP is defeated and the Wisdom Party (WP)

takes power. Pursuant to a campaign pledge, the WP presents to the Assembly the Age

of Voting Bill which raises the age qualification of voters to 18 years. The Bill is passed

by a simple majority and the Speaker calls a conference of party leaders and

independents as provided in section 3(2). The independent members of the Assembly,

who collectively oppose the Bill, refuse to attend the conference. Upon being so

informed by the Speaker, the Electoral Commission takes steps to submit the Bill for the

approval of the electors at a referendum.

The Queensland Suffrage Society, a non-profit incorporated association which

campaigns for democracy, wishes to bring an action to stop the referendum going

ahead. Discuss the Society’s chances of success having regard only to the law of

Queensland relating to ‘manner and form’ requirements.