Constitutional Law 2015

Summary
It appears that s 1(2) and (3), s 2, s 3, s 4(2), s 5 and s 7 are all valid, s 4(3) may be valid if it can be read down. s 4(1), s 6 and s 8 are all invalid. Even if the suggested sections are severed the Act is still functional and operational.

Heads of Power

Defence Power

I determined that use of the defence power would not be a valid use of the power despite the Prime Ministers assertions and wording of s 1(1) of the Act. I took the view that the High Court would not defer to parliament and therefore the Act would not pass a proportionality test for being too broad, too vague and not rationally connected.

External Affairs Power

S 1, s 2, s 3 and s 4 of the Act may be supported by the External Affairs power s 51 (xxix) of the Australian constitution.

Gibbs CJ said in the Tasmanian Dams Case, that whether a matter was of international concern it depended on whether it was regarded by the nations of the world as a proper subject for international concern.

Murphy J also said in the Tasmanian Dams case that the External Affairs Power under s51 xxix of the Australian Constitution can be relied on to enact legislation to implement an international treaty inside Australia. Toohey JJ stated in stated in Polyukhovic that there must be some nexus to Australia for use of the external affairs power to be valid.

The matter of the requirement for a need of a need for a ‘nexus’ to Australia is in a state of flux with the Industrial Relations Case suggesting that approach is finished, however this approach was again revived by XYZ v Commonwealth.

Where legislation is enacted to implement a treaty the Industrial Relations Case affirmed that it is important to consider whether the statements of the treaty are aspirational or whether they create an obligation as there must be some obligation on government to implement the treaty at a domestic level for legislation to be valid.

For legislation to be authorised under a purpose power it must pass a proportionality test, incorporating 4 questions, A) is the law too vague?, B) is the law overbroad?, C) Does the law achieve its intended ends?, ie is it rationally connected?, D) Does the law breach any human rights?

In this case s 2 and s 3 of the Act are specific in implementing measures that allow it to meet its obligations under Article 2 of the Treaty could possibly be valid under the External Affairs power. They are broad and slightly vague however are rationally connected to the purpose and do not breach any human rights.

Furthermore, the fact that 126 countries have signed the treaty adds significant weight to there being a sufficient impact on international relations to invoke the External Affairs power to enact the legislation.

It could be argued that both s 2 & s 3 are too vague and too broad, however given the severity of the potential impact of climate change the court may hold that they are necessary.

s 4 of the Act reflects Article 3 of the Treaty however all of s 4(1) and (2) would likely fail the proportionality test being not rationally connected to the purpose of Article 3 by not specifically affecting external affairs, and s 4(3) would be too broad, failing the test where it includes any place in the commonwealth of Australia, not necessarily being international.

Trade and Commerce Power

s 4 may be supported by the Trade and Commerce power.

The Trade and Commerce power states that the parliament have power to make laws for the peace, order and good government of the Commonwealth with respect to trade and commerce with other countries, and among states. This power includes all commercial arrangements but not interstate trade where no money or products move across state borders. This includes all matters that may affect Australia’s export trade, either beneficially or adversely, are the legitimate concern of the commonwealth.

s 4(1) and (3) would not be valid under the trade and commerce power as intra-state trade would be captured as well as inter-state trade. s 4(2) would be valid under the Trade and Commerce power as it specifically relates to interstate trade.

Spending Power

s 96 of the constitution states that the parliament may grant financial assistance to any State on such terms and conditions as it thinks fit.

Specific purpose grants allow the commonwealth to implement policy that is beyond their constitutional powers and attach terms and conditions to those grants. s 96 does not have any obligation to have any equality with its grants.

It is therefore likely that s 7 of the Act is valid under s 96.

Limitations

Right to a trial by Jury

s 80 of the constitution sets out that there should be a trial by jury if the charge is an indictable offence which potentially contradicts s 5 of the Act.

The Criminal Code(Qld), s 3 sets out crimes, misdemeanours and simple offences. The high court has consistently adopted a literal, narrow view of s 80 stating that it is up to the commonwealth to determine what is an indictable offence. In Kingswel,l Deane J dissented and suggested that a serious offence could be seen as one with a term of imprisonment of more than 1 year. Importantly the 1988 referendum tried to amend s 80 to require trial by jury for an offence that was punishable by imprisonment of two years or more, this referendum failed. This influenced McHugh J in his decision in Cheng, supporting the view that the will of the people did not support such a change.

The result of a trial by jury has significant implications, including that majority verdicts are not allowed, and furthermore a trial by jury cannot be waived.

Whilst s5 does not say whether the offence is indictable or summary, the penalties are severe, including up to 2 years in jail, up to $50,000 fine for individuals, or up to $500,000 fine for organisations. The severity of these penalties might lead a court to take the view that the offence is indictable thereby limiting s 80 of the constitution.

However, given that s 5 of the act specifically precludes a charge to being heard by jury it is perhaps more likely that a court would adopt a literal view, that as has been consistently held, and find that the section is valid.

Freedom of political communication

Does s 8 of the Act limit the implied constitutional right to freedom of political communication?

Dean and Toohey JJ in Nationwide News Pty Ltd v Wills said that because ministers are chosen by the people in s 7, s 24 & s 128 of the constitution, there must be a freedom to political discussion. The case of Lange v Australian Broadcasting Corporation provided a two-step test to determine the validity of a law that potentially limits the constitutional right for freedom of political communication.

The first question asks ‘Does the law effectively burden freedom of communication about government of political matters?’. If the answer is no, then the law is valid, if the answer is yes, then a second question must be asked.

That is, ‘is the law reasonably and appropriately adapted to serve a legitimate end which is compatible with the constitutions system of democracy?’. If the answer is yes then the law is valid, if the answer is no then the law is invalid. In 2004 the high court recast the second question so that it read ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible….’

Section 6 of the Act sets out a meaning for ‘climate change scepticism. This meaning appears to preclude any form of convey a message from one citizen to another that might create doubt that it is scientifically proven that climate change results from carbon emissions. Given that both the Treaty and the Act refer to matters of carbon emissions the answer to the first limb of the proportionality test must be yes, as s8 specifically precludes communication of what are deemed political messages.

As the answer to the first limb is yes the second question must be asked. ‘is the law reasonably and appropriately adapted to serve a legitimate end in a manner which is compatible with the constitutions system of democracy?’

Given the severity of the punishments it is extremely unlikely that a court would be willing to validate a penalty of a one year imprisonment as being compatible with a system of democracy and therefore may find that the law is invalid.

Freedom of Interstate Trade

Does s 4 of the Act breach s 92 of the constitution ?

There have been a significant number of different interpretations over the meaning of s92 and in particular what ‘absolutely free’ and ‘intercourse’ constitute. Some have taken a literal ‘subject matter approach , some have taken an individual rights approach, other cases took a protectionist stance.

In determining whether the law is discriminatory in a protectionist sense it can be either in form (on the face of the law) or in substance (the practical effect of the law).

APLA Ltd v Legal Services Commissioner (NSW) set out a test to determine whether the law imposed by was a greater impediment than was reasonably required in order to achieve the object of the law.

The steps are to 1. Determine the object of the law, 2. Determine how the object of the law can be achieved 3. Determine whether the impediment to interstate intercourse is greater than is reasonable required to achieve the object of the law.
In this case we know that s1 of the Act refers to ‘reforming Australian industry to ensure a more rapid reduction in carbon emissions’.

A court will need to determine whether the restriction of trade of brown coal between States is reasonably required to achieve the object of the law. On the face of the act it appears as though drastically restricting the creation of carbon emissions is its goal and therefore any measures that can be implemented might well be considered as reasonable by a court given the severity of the consequences for the population of this planet.

Inconsistency

s 109 of the constitution states “when a law of a state is inconsistent with a law of the Commonwealth, the later shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The first step in determining a potential invalidity is establishing that both laws are valid, if one law is invalid there is no conflict. Then there are potentially three types of inconsistency, 1. It is impossible to obey both laws, 2. They hold inconsistent rights, privileges or entitlements or 3. The commonwealth intends to cover the field and there is a state law operating in that field.

Only one of these tests needs to be satisfied for there to be an inconsistency.

Climate Crisis Act (Qld)

Where there is an intention by the Commonwealth to cover the field there is a three part test 1. Identify the field, 2. Is the Commonwealth law intended to be the only law in that field? 3. Is the state law operating in the same field as the Commonwealth law? If the answer is yes to 2 & 3 then there is an inconsistency.

The court has held that where there are penalties for criminal conduct or discrimination, it is likely that the Commonwealth intends on covering the field. Therefore, it is likely that a court would find that there is an inconsistency between the laws with respect to the penalties, and thus the Commonwealth law would prevail.

Human Rights Act 2004 (ACT) (the ‘HR Act’) & Human Rights Amendment Act 2008 (ACT)

s16(2) of the HR Act states that everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information.

There is a rights inconsistency here whereby the Commonwealth is seeking to take away the right imposed by s 16 (2) of the HR Act via s 8 of the Act. There is also a cover the field inconsistency whereby the Commonwealth has imposed penalties in s8 implying an intention to cover the field, therefore it is likely that the Commonwealth law will prevail.

Reading Down and Severance

Section 15A of the Acts Interpretations Act 1901 (Cth) provides for an Act being valid to the extent that it does not exceed the powers of the constitution.

Reading Down

A court can read down a law so that whilst it does not apply where it is invalid it can still work within its power. For example ‘employee’ was read down to ‘employees other than higher level State public servants’ in Victoria v Commonwealth (IR case)

However, ‘larceny’ could not be read down in Pidoto v Victoria.

Severance

Severance simply means cutting away the invalid portions leaving the remainder in operation.

s1 could be severed entirely and the Act would remain operational however it is likely that only S1(1) would be severed. S4(1) would also be severed for being too broad for the External Affairs power and not within the scope of the trade and commerce power. S4(3) could be read down to remove the conflict of capturing intra-state trade so that it would operate under both the External Affairs power and the Trade and Commerce power. s 6 and s 8 would likely be severed due to the infringements imposed on the freedom of political communication.

As a result of any or all of the possible severances it is likely that the Act would remain operational.

Conclusion

It appears that s 1(2) and (3), s 2, s 3, s 4(2), s5 and s7 are all valid. s 4(3) may be valid if it can be read down. s 4(1), s 6 and s 8 are invalid. Even if the suggested sections are severed the Act is still functional and operational.

Unfortunately it is possible that s 5 will stand, meaning that Mr Muppet will not face a trial by jury. It would be ill advised to knowingly breach any provision of s 4 that might bring about s 5.

Big Coal Australia will not have to reduce its production by 50%, it will however have to reduce his carbon emissions by 50% with two years.

Perhaps more importantly however Big Coal Australia will have to consider its target market as all interstate sales will be restricted within one year and all international sales will be restricted within one year if s 4(3) is read down, this may have a far larger bearing on the commercial viability of BCA than your other concerns.