No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
My thanks to G J Lindell for constructive suggestions. The credit for any inadequacies or errors is, of course, all mine.
1 Some of the topics in s 51 are exclusive to the Commonwealth in whole or in part but they take on this exclusive character because their subject matter is inherently beyond the competence of the States (eg placita (iv) and (xxxiii)) or because other parts of the Constitution exclude the States from the area (eg s 90 interacting with s 51(ii) and s 114 interacting with s 51(vi)).
2 I am aware that some writers would use the tag “characterisation” to cover both issues (a) and (b) . I find it more appropriate, however, to confine the term “characterisation” to the “with respect to” issue.
3 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55, 77 per Dixon CJ, McTiernan, Webb and Kitto JJ.
4 Le Mesurier v Connor (1929) 42 CLR 481, 497-498.
5 (1981) 38 ALR 25. See case note (1982) 13 FL Rev 191.
6 Ibid 31.
7 Eg Burton v Honan (1952) 86 CLR 169, 178 per Dixon CJ.
8 (1981) 38 ALR 25, 56.
9 Ibid.
10 Regulations 198 and 199 made under the Air Navigation Act 1920-1963 (Cth).
11 (1965) 113 CLR 54.
12 Ibid 92-94 per Barwick CJ, 142 per Menzies J, 151 per Windeyer J and 166-167 per Owen J. McTiernan J (ibid 105-106) held that the law was supported by s 51(xxix) (the external affairs power) and did not refer to s 51(i). Kitto J (ibid 115-117) held that the legislation could be upheld because it was relevant to the safety of all air nevigation within Commonwealth power. Taylor J considered the law invalid (ibid 131 ).
13 In Victoria v Commonwealth and Hayden (the AAP case) (1975) 134 CLR 338, 406 Jacobs J set out a radical theory of s 51(xxxix) which has not received any direct comment from other members of the Court. The essence of the theory of Jacobs J is contained in this extract: (ibid 414)
“… the Oxford Dictionary defines the adjective 'incident' first as 'liable or apt to befall or occur to; likely to happen; hence, naturally appertaining or attaching'. On the other hand, it defines 'incidental' first as 'occurring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part'. This, it seems to me, is the distinction between the implied incidental power and the express power in s 51(xxxix).
“Whatever is incident (in the above sense) to the subject matter of power comes within the ambit of the main power. It is incident to that power in that it naturally appertains and attaches to that power. However, what is incidental to the execution of a main power includes every matter which occurs or is liable to occur in subordinate conjunction with the execution of that power, even though it forms no essential part of the main power itself. It is subordinate but just as importantly it is in conjunction. Thus a subject matter incidental to the execution of a power may have a wider ambit than the power implied in respect of the incidents of a subject matter of power”.
I do not intend to discuss this theory other than to say that it is compatible with the propositions which I set out about the potential for Commonwealth expansion. The theory of Jacobs J might, however, have taken under the implied incidental power the matters which I suggest are within the reach of s 51(xxxix).
14 (1966) 115 CLR 418.
15 (1976) 136 CLR 1.
16 (1966) 115 CLR 418, 433-434 per Kitto J, 439-440 per Menzies J with Taylor, Windeyer and Owen JJ concurring with Kitto J. McTiernan J rested his decision on a narrower basis.
17 Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1, 8 per McTiernan J, 11-12 per Stephen J, 22-23 per Mason J with Barwick CJ (ibid 5) endorsing the judgment of Stephen J, and Gibbs J (ibid 9) and Jacobs J (ibid 26) endorsing the judgments of both Stephen J and Mason J. Murphy J did not comment on the general proposition and relied on his proposition that the Commonwealth could control export by referenceto.national considerations (ibid 26-27).
18 (1949) 79 CLR 43.
19 Ibid 91-92.
20 Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54; Attorney-General (Western Australia) ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission (the Port Hedland case) (1976) 138 CLR 492.
21 (1981) 38 ALR 25, 34 per Gibbs CJ, 38 per Stephen J.