Constitutional Law Notes.pdf - Table of Contents Answer Plan 5 Characterisation 6 SUBJECT MATTER POWERS SUFFICIENT CONNECTION TEST 6 If no sufficient

Constitutional Law Notes.pdf - Table of Contents Answer...

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Table of Contents Answer Plan 5 Characterisation 6 S UBJECT MATTER POWERS : SUFFICIENT CONNECTION TEST 6 If no sufficient connection - try implied power 6 If it is a Purposive power - Appropriate and Adapted test 7 D UAL AND MULTIPLE CHARACTERISATION 7 Trade and Commerce Power 9 H EAD OF POWER 9 I NTERPRETATION - SCOPE OF POWER 9 Meaning of ‘trade and commerce’ 9 Where s 51(i) does not have power 10 ‘with other countries’ 10 ‘among the states’ 10 C HARACTERISATION 10 L IMITATIONS 10 Nationhood Power 13 H EAD OF POWER 13 I NTERPRETATION - SCOPE OF POWER 13 1. Protection of the Nation 13 2. Advancement of the Nation 13 3. No interference with federal balance 13 C HARACTERISATION 13 L IMITATIONS 14 External Affairs Power 16 H EAD OF POWER 16 I NTERPRETATION 16 1. Geographic externality [Subject matter: applying the test of ‘sufficient connection’] 16 2. International comity: purposive power 16 3. Treaty enactment: applying a treaty is a purposive power 16 Entering (and existing) treaties 17 4. Matters of international concern: purposive power 17 C HARACTERISATION 18 1. Geographic externality: subject matter power 18 2. ‘International’ externality: purposive power 18 L IMITATIONS 18 Aliens Power 21 H EAD OF POWER : ALIENS POWER 21 1
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What is an alien? 21 Can a person born in Australia still be an ‘alien’? 21 S COPE 21 Executive power 21 C HARACTERISATION 22 L IMITATIONS 22 Race Power 24 H EAD OF POWER 24 S COPE 24 1. Does the law relate to a particular race or races? 24 2. Is the law special (i.e. does the law discriminate between one or more groups of people from, and give different treatment to the people of the particular race? 24 3. Was the law deemed necessary by Parliament? 24 Is the law to the benefit of the racial group targeted? 24 C HARACTERISATION 25 L IMITATIONS 25 Judicial Power of Commonwealth 26 D EFINITION OF JUDICIAL POWER 26 A PPROACH 26 CH III THE J UDICIARY 26 Remuneration 27 Tenure 27 I NDICIA ( INDICATORS ) OF JUDICIAL POWER 27 P ROHIBITORY RULES 27 P ERMISSIVE RULES 28 S EPARATION OF JUDICIAL POWER 29 Principle 29 Administrative body v judicial power 29 Persona designata: exception to Boilermakers 30 Incompatibility doctrine 30 Casualised Judiciary 30 Power to determine criminal guilt is exclusive to Ch III courts 30 Separation of powers & States 31 D ETENTIONS 31 Protective 31 Immigration 31 Preventive 31 I MPARTIALITY , I NDEPENDENCE & I NTEGRITY 31 R EMEDIES 31 A CCESS TO CONSTITUTIONAL JUSTICE 31 2
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Matters 31 Standing 31 Intergovernmental Immunities 32 P OSITION BEFORE E NGINEERS C ASE 32 Implied immunity of instrumentalities 32 Reserved state powers 32 A MALGAMATED SOCIETY OF ENGINEERS V A DELAIDE STEAMSHIP (1920) 32 L AW L IMITATIONS 32 State prerogatives 32 Taxation 32 M ELBOURNE C ORPORATION P RINCIPLE 32 R EFORMULATED M ELB . C ORP . 33 S TATE L AW + C TH GOVT . 33 Executive Spending Power 34 Implied Freedom of Political Communication 35 NO RIGHT TO FREE SPEECH 35 L ANGE V ABC 35 How to know if this implied freedom has been breached? 35 F REEDOM OF POLITICAL COMMUNICATION 35 C ASES APPLYING LANGE ' TEST 35 M C C LOY V N SW (2015): NEW TEST 36
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