CONSTITUTIONAL CHARACTERISATION: EMBEDDING VALUE JUDGEMENTS ABOUT THE RELATIONSHIP BETWEEN THE LEGISLATURE AND THE JUDICIARY.

• Date: 01 August 2021
• Author: Stellios, James

CONTENTS I Introduction II Constitutional Characterisation A Essential Character 1 Subject Matter Powers 2 Purposive Powers 3 Core versus Incidental 4 Summary B Definitional Character C Telescopic Character 1 Subject Matter Powers 2 Purposive Powers 3 Core versus Incidental Area D Summary III Value Judgements in Constitutional Characterisation IV Recent Cases: Core State Functions and Aliens A Core versus Incidental Areas of Subject Matter Powers B Characterisation of Subjects as Persons or Juristic Classifications V Conclusion I INTRODUCTION

In Australian constitutional law, the expression 'characterisation' has been used to describe the process of determining whether a Commonwealth law is supported by a federal head of power. In Grain Pool of Western Australia v Commonwealth ('Grain Pool'), (1) the High Court considered whether provisions of the Plant Variety Rights Act 1987 (Cth) and the Plant Breeder's Rights Act 1994 (Cth) were supported by s 51(xviii) of the Constitution. (2) That power authorises the enactment of laws with respect to 'copyrights, patents of inventions and designs, and trade marks'. (3) On the question of characterisation, the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:

The general principles which are to be applied to determine whether a law is with respect to a head of legislative power such as s 51(xviii) are well settled. They include the following. First, the constitutional text is to be construed 'with all the generality which the words used admit'. Here the words used are 'patents of inventions'. This, by 1900, was 'a recognised category of legislation (as taxation, bankruptcy), and when the validity of such legislation is in question the task is to consider whether it 'answers the description, and to disregard purpose or object. Secondly, the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. Thirdly, the practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power. Fourthly, as Mason and Deane JJ explained in Re F; Ex parte F: 'In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other of which is not a subject matter appearing in s 51, it will be valid notwithstanding that there is no independent connection between the two subject matters.' Finally, 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. (4) These statements of principle allude to various features of the characterisation process which are commonly reduced to three basic characterisation enquiries: first, the interpretation of the head of power; secondly, the determination of the character of the impugned statutory provision; and thirdly, the determination of a sufficient connection between the two. (5) Across these three enquiries, there are elements of both constitutional and statutory characterisation; only the former is the subject of this article.

This article has two main objectives. First, Part II will seek to explain that the constitutional characterisation enquiry can be organised into three distinct steps: what I call the essential character, the definitional character, and the telescopic character. Each step contributes to the reach of federal power. Secondly, Part III will elaborate on the proposition that this conceptual schema is not self-evident; instead, it shows the use of constitutional principles and rules to disguise value judgements about the relationship between the legislature and the judiciary. Some of that territory is well understood, but some of it is not, particularly choices made about the essential character of a power. Having developed these two main objectives, the article will turn in Part IV to reflect on the application of this schema through the lens of two recent High Court cases, Spence v Queensland ('Spence') (6) and Love v Commonwealth ('Love'). (7)

II CONSTITUTIONAL CHARACTERISATION

Other than Professor Leslie Zines's sophisticated analysis of characterisation in chs 2-4 of The High Court and the Constitution, (8) there has been little written about the constitutional characterisation process. (9) The purpose of this Part is to explore in more detail, and develop a schema of, constitutional characterisation principles. It will be explained that there are three distinct and sequential stages in that characterisation process. For convenience of taxonomical treatment, these steps are referred to as the essential character of a power, the definitional character of a power and the telescopic character of a power.

A Essential Character

The first step in the constitutional characterisation process is to classify a constitutional head of power into a category. Heads of power have been classified in different ways. At the highest level of generality, they have been characterised into two broad categories: subject matter and purposive powers. (10)

I Subject Matter Powers

In relation to subject matter powers, there have been various attempts to further classify subjects into subcategories. It was recognised very early that the subjects of powers could be classified as 'natural' or 'artificial'. In Attorney-General (NSW) ex rel Tooth & Co Ltd v Brewery Employes Union of NSW ('Union Label Case'), the High Court considered whether the reference to 'trade marks' in s 51(xviii) supported Commonwealth legislation authorising the use of workers' marks. (11) A majority held that, in 1900, 'trade marks' were a special class of property involving a right of dominion, (12) and that workers' marks did not satisfy that conception. (13) Thus, the impugned workers' marks provisions were held invalid. (14) As Griffith CJ said, Parliament could not 'by calling something else by the name of "trade mark", create a new and different kind of industrial property'. (15)

In an enduring and influential dissent, Higgins J said that established 'principles of interpretation compel us to take into account the nature and scope' of the provision being interpreted. (16) His Honour contrasted the subject of trademarks with 'concrete, physical objects' like cattle; there was 'a vital distinction arising from the nature of the subject'. (17) In relation to physical objects, his Honour said, 'the boundaries of the class are fixed by external nature'. (18) By contrast, trademarks 'are artificial products of society, and dependent upon the will of society'. (19) His Honour continued:

The class 'cattle' cannot well be extended by man; the class 'trade marks' can be extended. Power to make laws as to any class of rights involves a power to alter those rights, to define those rights, to limit those rights, to extend those rights, and to extend the class of those who may enjoy those rights. In the same clause of sec 51, power is given to make laws with respect to 'copyrights' (rights of multiplying copies of books, &c); with respect to 'patents' (rights to make or sell inventions); and with respect to 'trade marks' (rights to use marks for the purposes of trade). The power to make laws 'with respect to' these rights, involves a power to declare what shall be the subject of such rights. (20) For his Honour, other subjects not fixed by nature included 'marriage', 'parental rights' and 'promissory notes'. (21)

There have been other attempts to further refine the classification of artificial subjects. As already indicated, in Grain Pool, 'patents of inventions' (also a subject within s 51(xviii)), along with 'taxation' (22) and 'bankruptcy', were characterised by the Court as 'recognised categories] of legislation'. (23) In that case, the approach of Higgins J was endorsed by six members of the Court. (24) In Commonwealth v Australian Capital Territory ('Marriage Equality Act Case'), 'marriage' was described as referring 'to a status, reflective of a social institution, to which legal consequences attach and from which legal consequences follow' (25) --'a recognised topic of juristic classi fication. (26) The expression was wide enough, it was held, to include the union of same-sex couples. (27) Again, Higgins J's reasoning from the Union Label Case was relied upon by a unanimous six-member Court. (28)

The importance of this essential characterisation step may have been somewhat obscured by the concurrent emphasis by Higgins J in the Union Label Case and the Court in Grain Pool and the Marriage Equality Act Case on reading the Constitution dynamically in recognition that it is an instrument of government intended to endure and that the 1900 usage of a term offers only 'the central type', not 'the circumference of the power. (29) Such an interpretive mandate can be achieved in different ways. The point for present purposes is that the nature of the head of power, as an artificial subject, is an important conceptual means of achieving that flexible interpretive approach. (30)

Cutting across the physical-artificial distinction are other attempts at subject matter classification. Subject matters have also been characterised as entities, activities (31) or other things. Entities can be, on the one hand, artificial or juristic (eg corporations, (32) with their legal personality created endogenously to the law (33)) or, on the other hand, natural or physical (eg members of a race, (34) identifiable by features exogenous to the law). (35) Activities are more likely to be defined exogenously by social, business or commercial conduct, interactions or transactions. Examples include interstate and overseas trading activities, (36) banking, (37) astronomical and meteorological observations, (38) and, probably, the conduct or provision of postal, telegraphic, telephonic and other like...