Tutorial Week 7





  1. What was the central issue in the Incorporation Case?
  2. What were the reasons for the decision of the majority (look for arguments concerning textual language, convenience and history)?What use did the majority make of the Convention debates?
  3. How did Deane J reply to each of the arguments used by the majority?Whose judgment do you think is better? Why?
  4. Why does McQueen chastise the High Court as bad historians?
  5. The majority said that the change in language between the 1891 draft and the 1897 draft of the corporations power was not intended to alter the meaning of the words “formed in”. Why does McQueen argue that the change in language was important, and did affect the meaning of this phrase?
  6. According to McQueen, why was the meaning of the provision left unclear? How does McQueen explain the political context within which the Huddart Parker case was decided?
  7. What does the Incorporation Case and McQueen’s criticisms of it tell you about the use of the idea of ‘original intent’ as a method of constitutional interpretation? (Original intent is the idea that the role of the court is to give effect to the objective intentions of the drafters of the Constitution).
  8. What did the majority of the High Court hold in Re Dingjan; Ex parte Wagner?
  9. What factors are relevant to determining whether or not a particular company is a “trading or financial corporation”?How were these factors applied in Adamson’s Case, the State Superannuation Board Case and Fencott v Muller?
  10. Summarise the argument of the majority about the scope of the corporations power in the Work ChoicesHow did the arguments of Kirby J and Callinan J differ from the majority on this issue?Which approach do you agree with?
  11. What are some of the political and legal consequences that may flow from the High Court’s affirmation of the Commonwealth’s submissions in Work Choices regarding the scope of the corporations power?
  12. What developments have transpired under the Rudd/Gillard Labor Governments with regard to the Work Choices Legislation?
  13. What are the key characteristics of the defence power?How does its scope change in different social and political circumstances?
  14. What are the key principles that emerge from the High Court’s decision in the Communist Party Case?
  15. Is the Communist Party case still important in our contemporary political climate?Why or why not?
  16. How does the defence power operate in contemporary circumstances? Did the interpretation of s 51(vi) in Thomas v Mowbray (2007) 233 CLR 307 affect the scope of the defence power?



[NB: Students should prepare a written answer to the following hypothetical before the tutorial and be prepared to read and discuss your answer with the class]




Approximately 10% of the world’s population live with disability. They are the largest global minority. In August 2006, the UN General Assembly adopted overwhelmingly the Convention on the Rights of Persons with Disabilities (‘the Convention’). Australia, along with a number of other countries, immediately ratified the Convention.


The purpose of the Convention (which has 33 Articles) is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments which, when combined with various social barriers, may hinder their full and effective participation in society on an equal basis with others.


Article 24 of the Convention provides:

(1)     States Parties recognise the right of persons with disabilities to education.           With a view to realizing this right without discrimination and on the basis of           equal opportunity, States Parties shall ensure an inclusive, education system       at all levels, and life-long learning…”


Article 27 of the Convention further provides in relevant part:

(1)     States Parties recognize the right of persons with disabilities to work on an           equal basis with others. This includes the right to the opportunity to gain a           living by work freely chosen or accepted in the labour market and a work           environment that is open, inclusive and accessible to persons with           disabilities.


After ratifying the Convention, the Commonwealth Parliament passed the Employment and Education Act for Persons with Disabilities 2006 (Cth) (hereinafter the Act).


Section 5 of the Act provides:

(1)     Commonwealth and State government agencies shall promote the           employment of persons with disabilities through employment programmes,           incentives and other measures;

(2)     All foreign corporations and trading or financial corporations formed within           the limits of the Commonwealth shall develop employment programs which           specify that persons with disabilities shall constitute 5% of all new           employees;

(3)     All corporations, except for those referred to in sub-section (2) shall develop           employment programs which specify that persons with disabilities shall           constitute 2.5% of all new employees.


Section 6 of the Act further provides:

(1)     State governmentproviders of education shall ensure that persons with           disabilities are not to be excluded from the general education system on the           basis of disability, and that children with disabilities are not excluded from           free and compulsory primary and secondary education on the basis of           disability.


Section 7 of the Act provides:

(1)     Any corporation referred to in Section 7 that fails to immediately institute           employment programs referred to in that Part within six months of the           passage of the Act, shall be subject to penalties in an amount equalling 5%           of the overall proceeds of such corporation in the preceding twelve month           period.


Discuss whether Sections 5, 6 and 7 of the Employment and Education Act for Persons with Disabilities 2006 (Cth) are a valid exercise of the corporations power and/or the external affairs powers (ss 51(xx), 51(xxix) Constitution).






90 member states of the United Nations signed a joint statement on the Rights of Lesbian, Gay, Bisexual and Transgender (“LGBT”) Persons drafted by the United Nations Human Rights Council.  The joint statement provides in pertinent part:

We call on states to take steps to end acts of violence, discrimination, denigration and related human rights violations committed against individuals because of their sexual orientation or gender identity, encourage Special Procedures, treaty bodies and other stakeholders to continue to integrate these issues within their relevant mandates.


After signing this statement, twenty five states (including Australia, Canada, New Zealand, the UK and the United States) entered into a multi-lateral treaty, the Convention on the Elimination of All Forms of Discrimination Against Sexual Minorities (‘the Treaty’).The Treaty addresses the issues of discrimination and related human rights violations, such as harassment, intimidation and vilification in all places.  The Treaty aims to minimise the emotional and physical consequences resulting from homophobic and transphobic hate speech as well as victimization and potential violence that can result from such speech.  The Treaty states:


Convention on the Elimination of All Forms of Discrimination Against Sexual Minorities



Homophobic and transphobic hate speech has devastating psychological and physical effects on its targets as well as the wider group of which they are or perceived to be a member.  These injuries may include pecuniary loss as well as a variety of negative feelings, such as loss of dignity, depression and other physical ailments.  Each state signatory to this Treaty undertakes to address the issue of homophobic and transphobic hate speech.  This Treaty is intended to promote equality of opportunity for all members of the community and improve the quality of democratic life through a citizenry respectful of the dignity and worth of all its members.


Art 1(1): 


Any advocacy of hatred based on homosexual orientation or transgender identity that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.  Harassment, intimidation and vilification of such persons shall also be prohibited by law.

Article 1 (2):

State parties  undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of,  discrimination against sexual minorities and, to this end, shall declare an offence punishable by law:

(a)               All dissemination of ideas based on the superiority of heterosexual orientation or inferiority of homosexual orientation or which is otherwise based on hatred of homosexuals or group of sexual minorities;

(b)               Incitement to discrimination against homosexuals as well as acts of hatred or violence or incitement to such acts against any homosexual or group of sexual minorities.

Art 2(1): ‘Homosexual’ means a person who is attracted to members of the same sex.

Article 2(2): ‘Sexual minorities’ means homosexual, lesbian, gay, bisexual and transgender.

Article 2(3): Harassment, intimidation or vilification” means any gesture, any written, verbal or physical act that is reasonably perceived as being motivated either by any actual or perceived homosexual, lesbian, gay, bisexual or transgender orientation of a person and that a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming such person or placing such person in reasonable fear of physical or emotional harm.


After Australia became a signatory to the Treaty in January 2013, the Australian government enacted into law the Sexual Orientation Discrimination Act 2013 (Cth) which provides that:


Sexual Orientation Discrimination Act 2013 (Cth)


Section 1: It is unlawful for a person to do an act otherwise than in private, if

(a)       the act is reasonably likely:

(i)               to vilify another person or group of persons, or

(ii)            intimidate another person or group of persons, and

(b)      the act is done because of the sexual orientation or gender identity of that person or group of persons.


For purposes of this section, vilify means to offend, insult or humiliate a person or a group of persons; intimidate means to cause fear of physical harm to a person or to the property of a person or to the members of a group of persons.


Section 1 does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter. 


Section 2: Any person who knowingly or recklessly does an act that is reasonably likely in all the circumstances to incite (through the expression of insults, slander, acts of violence or otherwise) hatred towards or discrimination of, a person or group of persons on the ground of the sexual orientation or gender identity of the person or members of the group is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.


Section 2 does not apply to communications which are true or acts done reasonably and in good faith.


Arnie Dolt, a journalist, makes some controversial statements in The OZ (a conservative tabloid with widespread circulation) suggesting certain high profile gay men, such as Dim Hillson (a recently appointed Commissioner to the Australian Human Rights Commission), were not genuinely homosexual but were pretending to be gay so they could access benefits increasingly available to sexual minority groups, including prestigious appointments to human rights bodies.    Dim Hilson and several prominent gay figures have brought a suit in the Federal Court against Arnie for breaching the Sexual Orientation Discrimination Act 2013 (Cth). The Commonwealth DPP also charges Arnie with committing an offence under Section 2 of the Act.  Arnie wishes to challenge the constitutionality of this law.

Discuss the constitutional validity of Section 1 and Section 2 of the Sexual Orientation Discrimination Act 2013 (Cth) under s51(xxix) of the Constitution.




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