We already know that Australia is a federation with a written constitution. We have a number of videos in a playlist about Australian federalism and we have a lot of other videos talking about the structure of the written constitution of Australia. And since we have this federal written constitution, that constitution has a division of powers.
It separates what is within the scope of the Commonwealth and what is not. So for example, sections 51 and 52 say what the Commonwealth can legislate about. This list of matters, of subjects, of which the Commonwealth Parliament can legislate about, they are called Heads of Power.
So the Heads of Power are the subject matters listed in the Constitution that compose the subjects on which the Commonwealth Parliament can legislate. Let me give you an example. When the Commonwealth Parliament creates a law that creates a new tax, I have to check if the Commonwealth Parliament has the possibility of enacting such a law. What do I do?
I open the Constitution, I go to section 51 and then I checked section 51 too. And there I find an appropriate head of power that gives the Commonwealth Parliament the power to legislate about taxation. You know what I just did there? I went through the process of the constitutional characterization of a federal law.
Hello everyone, my name is Renato Costa, this is Aussie Law and today I will tell you everything you need to know about the process of the constitutional characterisation of federal laws and how to identify an appropriate head of power in the Australian Constitution. In many sections of the Constitution, like for example sections 51, 52 and 77, the framers put the expression with respect to, to designate the kind of laws that the Commonwealth Parliament could legislate about. The Commonwealth Parliament can make laws with respect to something. And these, as we've seen, are commonly called heads of power.
The constitutional heads of power are in sections 51, 52, 76, 77, 78, 96, 105a, 122 and 128. Generally however, the first place that you go to to check a head of power is the long list of section 51 of the Australian constitution. All right, you got it. You already know what a head of power is. So what is the characterization of laws?
We call characterization the process of deciding what a law is a law with respect to. It is about identifying the connection between what a law is about and an appropriate head of power. Professor Colin Howard once said the characterization is the ascertainment of legislative intention by inspection of the terms of the statute.
What he was saying was that characterization is about how one can check legislative intention. And the process to check that intention is through analyzing what the statute says, what it is about, what are its terms. Professor Leslie Zine said that this is a process where one has to pigeonhole a federal statute somewhere in the constitution's catalogue of powers.
Indeed, it is the process of determining whether a federal law is supported by a constitutional head of power. And look, this can be a fairly simple process. Most of the time this process is almost imperceptible.
It's like this preliminary process that you go through when you're thinking about the scope of the law. But some other times this process of characterization can be excruciating and this is why the High Court of Australia has sort of created a test. They devised some steps of this process of checking whether a law is supported by a constitutional head of power. In the Grain Pool case of 2000 the majority of the High Court said that this step-by-step process would look something like this. Firstly, The constitutional text is to be construed with all the generality which the words used admit.
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. Professor Nicolas Aruni has translated this into basically three characterization inquiries that you have to go through.
First, you have to characterize the law. That is, you have to check what is the area encompassed by the legislation. What the terms of the law are about.
That is, you have to identify the subject matter of the law. Then, in the second step, you need to interpret the relevant head or heads of power. What is taxation? What is quarantine?
What is banking? What is marriage? What are the external affairs?
What is a corporation? When you establish an interpretation of an area of a head of power, then you move to the third step. Here, you want to determine... whether the law, the federal law that you have just characterized it, has any connection with the head of power as you have interpreted it.
This is the point where the methods of interpretation gets really controversial. Because if I follow, for example, a literal approach to interpreting the constitution, and particularly let's say section 51 of the Australian constitution, then it would be easier to find a connection between the broad interpretation of the head of power and the legislation as I interpreted it. Do you see that? If I interpret the head of powers broadly, it is easier to accommodate laws that will touch on those subject matters of the head of power. This is called the problem of characterization.
It's about how to interpret the appropriate head of power, how to interpret the scope of the law and how to connect the two in a way that is more accommodating or not. Well, if you want to know more about that, you can check the playlist that is appearing on your screen, because there I have a lot of videos that explain a bit more about the methods of constitutional interpretation. So, to determine whether a law is valid, I need to go through the process of characterization.
A process that asks whether a law can be characterized as a law that is with respect to one of the Commonwealth's constitutionally enumerated legislative heads of power.