Chapter
The Federal Council and the Federal movement
1890 Melbourne and 1891 Sydney
Intergovernmental immunity
The proper rules of construction
Intergovernmental immunities
Reserved State powers doctrine
The relationship between a court of review and Parliament
The role of extra-legal considerations in constitutional interpretation
Why Engineers remains a classic
3 The Uniform Income Tax Cases
Evolution of the Uniform Income Tax Scheme
The Challenge and the Outcome: 1942
Problems for the plaintiffs
4 The Bank Nationalisation Cases: The Defeat of Labor’s Most Controversial Economic Initiative
The background and evolution of the challenged legislative provisions
The central provisions of the Banking Act 1947
The submissions of the parties
The contestants’ arguments and forensic strategies
The High Court’s decision88
Evaluation of the Bank Nationalisation cases
The captains and the kings depart
5 The Communist Party Case
The Communist Party Dissolution Act 1950
The significance of the case
6 Fitzpatrick and Browne: Imprisonment by a House of Parliament
The case in the High Court
Early development of the separation of powers
Political background to the Boilermakers case
The decision of the High Court
The impact of the Boilermakers case
On industrial arbitration
8 The Race Power: A Constitutional Chimera
Genesis of the race power
The race power in the first sixty-six years
Constructional Issues in the Race Power
The Native Title Act case
General Propositions Relating to the Race Power
9 The Double Dissolution Cases
The 1914 double dissolution and the debate over the nature of the Governor-General’s power
The 1974 double dissolution
The Territory Senators case
Unresolved aspects of s. 57
The powers of the Governor-General
‘With amendments to which the House of Representatives will not agree’
Availability of declaratory relief as to the invalidity of a dissolution before a proclamation dissolving both Houses
Suggestions for amendment of s. 57
10 1975: The Dismissal of the Whitlam Government
Did the Senate have power to block Supply?
The propriety of the Dismissal
Should the Chief Justice have advised the Governor-General?
The legacy of the Dismissal
11 The Tasmanian Dam Case
Later constitutional developments
12 The Murphy Affair in Retrospect
Summary of alleged misconduct and misbehaviour
Suspension and admonition
Proved’ as a guarantee of procedural fairness
A key issue: ‘proved’ by whom and where?
13 The Privy Council and the Constitution
Constitutional interpretation
The Privy Council and section 92
Restrictions on the exercise of Commonwealth legislative power
Cases affecting State constitutions
The termination of the Privy Council’s jurisdictionWhen the Privy Council (Limitation of Appeals) Act 1968 (Cth)
The role of the Privy Council in the development of Australian constitutional law
General constitutional principles
Federal constitutional law
14 Cole v Whitfield: ‘Absolutely Free’ Trade?
The new test: ‘Discriminatory burdens of a protectionist kind’
The application of the new test
Legislation in importing States after Cole: discrimination Bath v Alston Holdings Pty Ltd
Castlemaine Tooheys Ltd v South Australia
Should discrimination be essential for invalidity?
Legislation in importing States after Cole: protection
Is there protection where some interstate products are favoured equally with all or some local products?
Is there protection where no existing local products are advantaged?
Is there protection where some local products are adversely affected equally with the relevant interstate products?
Should protection (whether in purpose or effect) be unnecessary for invalidity?
A protectionist purpose should be sufficient for invalidity
A protectionist effect should not be sufficient for invalidity
The preferable test: whether the legislation is ‘directed against’ interstate imports
Legislation in exporting States after Cole
Discrimination’ according to Norman
The Cole test is inappropriate for legislation in an exporting State
Freedom of interstate intercourse
The problem of different tests for trade or commerce and intercourse
15 The ‘Labour Relations Power’ in the Constitution and Public Sector Employees
The labour relations power: an overview
The Australian Social Welfare Union case in brief
On the way to the High Court: Australian Conciliation and Arbitration Commission proceedings
In the High Court: the Australian Social Welfare Union case
Arguments before the Court
Reviewing the constitutional meaning of ‘industrial disputes’: inconsistencies and anomalies
Differing tests and differing outcomes
Returning to the broad view of industrial dispute
Sowing the seed to reconsider: expressions of support or the wider view
Clerks in credit unions and government
Coverage of Commonwealth public sector employees
The potential Achilles heel: State public servants
Administrative services of the State
Intergovernmental immunity and the definition of ‘industrial disputes’
Implications for cases involving State employees
Unfolding of choice: move to federal from State jurisdiction?
The Hancock Committee report and legislative amendment to the statutory definition
Victorian public and private sector employees and the referral of power
16 The Implied Freedom of Political Communication
The constitutional dilemma
Surmounting the dilemma: the court’s reasons
Accounting for the seismic shift
Murphy and implied rights
Early support for implied rights
The expansion and contraction of implied free speech
Australian Constitutional Landmarks
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