Characterisation Constitutional Law
Chapter 16 – Process of Characterisation
• Sections 51 & 52 assign legislative powers to Cth Parliament. • Characterisation = process of determining whether a law falls within one of these heads of power. • The question is whether the law relates to the subject matter or purpose of the heads of power in a way that allows it to be described as a law “with respect to” that head of power. • Simplest view of ‘characterisation’& the judicial review of legislation encapsulated by Roberts J in United States v Butler (1936)
United
States v Butler (1936)
• Legalism - Engineer’s case (1920) – assumed that the question is whether the subject matter on which the federal parliament has legislated “squares with” one of the designated subject matters on which it has the power to legislate. If it does, then the legislation is valid. • Approach from this case = Constitutional text identifies particular definitional area and its important to determine whether the subject of impugned legislations within that area. (1) Define the limits of the subject matter area – constitutional interpretation (2) then determine whether the challenged law wiles within those limits. – Characterisation • Judicial approach to characterisation depends on ascertaining the “pith and substance” of the relevant law. The Act specified one list of legislative powers assigned to the Dominion of Canada (s91) and another list assigned to the Provinces (s92). So typically each list contained a head of power to which impugned legislation plausibly be assigned. Problem – determining which two competing characterisations of the law was the more appropriate. Approached in a way to identify the true nature and character of the legislation. Australia don’t have the competing characterisation, have only one list of enumerated powers for federal/central legislature. So in Australia law characterised in a way that brings it within the Cth power not where it
• Sections 51 & 52 assign legislative powers to Cth Parliament. • Characterisation = process of determining whether a law falls within one of these heads of power. • The question is whether the law relates to the subject matter or purpose of the heads of power in a way that allows it to be described as a law “with respect to” that head of power. • Simplest view of ‘characterisation’& the judicial review of legislation encapsulated by Roberts J in United States v Butler (1936)
United
States v Butler (1936)
• Legalism - Engineer’s case (1920) – assumed that the question is whether the subject matter on which the federal parliament has legislated “squares with” one of the designated subject matters on which it has the power to legislate. If it does, then the legislation is valid. • Approach from this case = Constitutional text identifies particular definitional area and its important to determine whether the subject of impugned legislations within that area. (1) Define the limits of the subject matter area – constitutional interpretation (2) then determine whether the challenged law wiles within those limits. – Characterisation • Judicial approach to characterisation depends on ascertaining the “pith and substance” of the relevant law. The Act specified one list of legislative powers assigned to the Dominion of Canada (s91) and another list assigned to the Provinces (s92). So typically each list contained a head of power to which impugned legislation plausibly be assigned. Problem – determining which two competing characterisations of the law was the more appropriate. Approached in a way to identify the true nature and character of the legislation. Australia don’t have the competing characterisation, have only one list of enumerated powers for federal/central legislature. So in Australia law characterised in a way that brings it within the Cth power not where it