Jump to content

Page:New South Wales v Commonwealth of Australia (2006).pdf/71

From Wikisource
This page has been proofread, but needs to be validated.

61.

upon suggestions that s 51(xx) could be interpreted as having an unduly broad reach, such as would disturb a proper or intended "federal balance", it invites the closest attention to what assumptions underpin the suggestions. Finally, the assertion of a specific test for characterisation of a law as being a law with respect to constitutional corporations either runs serious risk of inverting the proper order of inquiry or posits a test that again invokes notions of federal balance.

142 The general principles to be applied in determining whether a law is with respect to a head of legislative power are well settled. It is necessary, always, to construe the constitutional text and to do that "with all the generality which the words used admit"[1]. The character of the law must then be determined by reference to the rights, powers, liabilities, duties and privileges which it creates[2]. The practical as well as the legal operation of the law must be examined[3]. If a law fairly answers the description of being a law with respect to two subject-matters, one a subject-matter within s 51 and the other not, it is valid notwithstanding there is no independent connection between the two subject-matters[4]. Finally, as remarked in Grain Pool of Western Australia v The Commonwealth[5], "if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice[6]".

143 The argument that the object of command test has been, or should be, rejected is an argument that focuses upon what is said not to establish the

  1. ↑ R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225–226; Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16].
  2. ↑ Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 352–353 [7], 372 [58]; Grain Pool (2000) 202 CLR 479 at 492 [16].
  3. ↑ Re Dingjan (1995) 183 CLR 323 at 369; Grain Pool (2000) 202 CLR 479 at 492 [16].
  4. ↑ Re F; Ex parte F (1986) 161 CLR 376 at 388; Grain Pool (2000) 202 CLR 479 at 492 [16].
  5. ↑ (2000) 202 CLR 479 at 492 [16].
  6. ↑ Leask (1996) 187 CLR 579 at 602.
Retrieved from "https://en.wikisource.org/w/index.php?title=Page:New_South_Wales_v_Commonwealth_of_Australia_(2006).pdf/71&oldid=14489092"