Lecture on Implied Intergovernmental Immunities & Section 5139 of the Australian Constitution
Introduction
- Discussion about implied intergovernmental immunities and reference to a North American case, McCulloch v. Maryland (1819).
- McCulloch v. Maryland: US Supreme Court devised the theory of implied powers.
- Implied powers: Existence of an express power implies an incidental power necessary for its exercise.
Theory of Implied Powers
- If given an express power, it comes with necessary incidental powers.
- 1955 High Court: Every legislative power carries authority to legislate incidental matters necessary for its main purpose.
Section 5139 of the Australian Constitution
- Speaker: Renato Costa, Aussie Law video presentation.
- Section 51(39): Commonwealth Parliament can make laws regarding matters incidental to executing any power vested by the constitution.
- Express incidental power complements the theory of implied powers.
- Justice Barton: Incidental power makes assurance doubly sure.
- Section 51(39): Exists to ensure Commonwealth can legislate on peripheral matters necessary for exercising core powers.
Delimitation of Incidental Powers
- Incidental powers lie outside the core but belong to the periphery of heads of power.
- Not a "peace, welfare, and good government" power.
- Ensures Commonwealth Parliament can legislate on issues typical of other branches.
- Chief Justice Mason: Section 51(39) focuses on execution of powers in the three branches of government.
Judicial Interpretation and Case Law
- Pape's Case: Commonwealth expenditure authorized under nationhood power linked to executive powers (section 61).
- Incidental power supports laws necessary for Commonwealth objectives.
- Examples: penalties, reporting, licensing, agency establishment, and incorporation of companies.
- Interpretation by the High Court is case-by-case.
- Chief Justice Dixon: Incidental powers are questions of degree.
Characterization of Laws
- Section 51(39) is not unrestricted, cannot legislate on anything.
- Guarantees certain powers not typically for Commonwealth Parliament.
- Interpretation involves judicial judgment and discretion.
- Justice Kirby in Lisk and Comra (1996): Disagreement due to differing judicial views on constitutional boundaries.
Conclusion
- Section 51(39) provides a double assurance for Commonwealth Parliament's power.
- Important for interpreting incidental powers.
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Key Takeaway: Section 51(39) of the Australian Constitution provides a framework for the Commonwealth Parliament to legislate on matters incidental to its powers, ensuring comprehensive execution of governmental functions within constitutional boundaries.