New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Constitutional law


  1. 03/02/2017
    Constitutional law: diversity jurisdiction

    Mr Burns complained to the Anti-Discrimination Board of NSW about statements made by Ms Corbett and Mr Gaynor, which he claimed were public acts which vilified homosexuals contrary to s 49ZT of the Anti-Discrimination Act 1977 (NSW). Both complaints were referred to NCAT. At all material times, Mr Burns was a resident of NSW, Ms Corbett was a resident of Victoria and Mr Gaynor was a resident of Queensland.

    The issue on the appeal was whether NCAT had jurisdiction to determine the complaint. This raised a question:

    • relating to the exercise of a diversity jurisdiction in State courts: see s 75(iv) of the Constitution; and
    • whether NCAT was a “court of a State”. 


    • Section 39 of the Judiciary Act 1903 (Cth), by operation of s 109 of the Constitution, denies any State jurisdiction in State courts when determining a matter identified in ss 75 and 76 of the Constitution
    • Section 39 conditionally invests State courts with federal jurisdiction in respect of a matter identified in ss 75 and 76 of the Constitution. A State law that purports to authorise a tribunal, which is not a “court of a State”, to exercise such jurisdiction is inconsistent with s 39. The State law is inoperative to the extent of the inconsistency: s 109 Constitution.
    • In this case, as the claim was between parties of different states, the diversity jurisdiction was invoked. NCAT was not a court of a State and had no jurisdiction to determine matters between residents of different states.

    Burns v Corbett; Gaynor v Burns  [2017] NSWCA 3
  2. 13/12/2016Hong Kong
    Constitutional law: principle of proportionality; application of principle; stages involved in applying ‘structured proportionality’; whether fourth stage of balancing should be applied in Hong Kong; application of margin of appreciation in domestic as opposed to supra-national context; whether town planning restrictions breach article 6 and article 105 of the Basic Law on private property rights; application of proportionality in this context

    Hysan Development Co Ltd owned extensive properties and challenged a series of planning restrictions, arguing that they represented a disproportionate infringement of their property rights.

    Court findings: The Court noted that the Hong Kong courts apply a form of structured proportionality similar to that applied internationally, however, thus far they have ommitted the final ‘balancing’ or ‘weighing stage’. The Court determined that the fourth stage was necessary in order to balance individual and societal rights.

    The Court concluded that Hong Kong courts should apply a ‘margin of discretion’, similar to the ‘margin of appreciation applied in Europe, which varies according to the nature of the right and the identity of the decision-maker. For socio-economic policy issues, the standard for invalidity will be higher, approaching the ‘manifestly without reasonable foundation’ requirement applied in Europe.

    Hysan Development Co Ltd v Town Planning Board  [2016] HKCFA 84
  3. 05/07/2016
    Constitutional law: Commonwealth grants of financial assistance to the States; Commonwealth of Australia Constitution, s 96; whether impermissible for Commonwealth to provide funding in respect of objects outside areas of legislative competence; Commonwealth may provide funding outside areas of federal legislative competence subject to any relevant constitutional provision to the contrary; Commonwealth funding of non-government schools, including religious schools; Commonwealth of Australia Constitution, s 116; whether legislation establishing funding regime, or funding itself, impermissible as contrary to s 116; whether funding Acts laws for establishing religion, imposing religious observance or prohibiting the free exercise of religion; importance of legislative purpose; challenge to Commonwealth grants of financial assistance pursuant to Commonwealth of Australia Constitution, s 96; whether plaintiffs have standing to challenge validity of Commonwealth laws and executive acts relating to funding of non-government school; whether standing limited to existing funding arrangements.
    Hoxton Park Residents Action Group Inc v Liverpool City Council  [2016] NSWCA 157
  4. 03/06/2016Canada
    Constitutional law: statutory provisions requiring provision of information or documents by notaries practising law in Quebec for the purposes of collecting tax from or auditing clients of those notaries; declaratory action to have relevant statutory provisions declared unconstitutional; constitutional validity of legislative regime as it relates to notaries and solicitors; constitutional validity of legislative exception for accounting records of lawyer provided for in definition of “solicitor-client privilege”; Section 8 of the Charter protects against unreasonable searches and seizures; government action intruded upon individual’s expectation of privacy and constituted a seizure; seizure was an unreasonable intrusion upon that right to privacy; legislative regime with respect to notaries and lawyers and accounting records exception unconstitutional and of no force or effect.
    Attorney General of Canada v Chambre des Notaires de Quebec  (2016) SCC 20
  5. 26/04/2016United States
    Constitutional law: police officer demoted as punishment for picking up and delivering to his mother a political campaign sign; claim that demotion by respondents was based on the mistaken view that the police officer had engaged in constitutionally protected speech; whether claim actionable where employer’s action prompted by perceived, rather than actual, exercise of right to free speech; police officer entitled to challenge unlawful action under the First Amendment even where employer’s actions based on factual mistake; remitted to lower courts for determination in the first instance of whether employer did in fact demote the police officer out of an improper motive or whether it may have acted under a neutral policy.
    Heffernan v City of Patterson  578 US (2016)
  6. 18/11/2015
    Constitutional law: judicial review; constitutional validity of legislation; whether conferral of power on magistrate under s 3ZQZB of the Crimes Act 1914 (Cth) in a personal capacity was an invalid conferral of the judicial power of the Commonwealth; whether the destruction of property in s 3ZQZB(4)(d) of the Crimes Act 1914 (Cth) involved an acquisition of property other than on just terms, contrary to s 51(xxxi) of the Constitution
    Paphos Providores Pty Ltd v Constable Ladha  [2015] NSWCA 353
  7. 16/11/2015
    Constitutional law: external affairs power; Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6(1)(a), 6(3)(aa), 7(1)(e); whether law criminalising acts preparatory to entry into a foreign State with intent to engage in a hostile activity supported by external affairs power; whether law with respect to matters geographically external to Australia; whether law with respect to Australia’s foreign relations; whether law with respect to matters of international concern; whether law with respect to recommendations of international agencies; law held to be valid law with respect to matters geographically external to Australia
    Alqudsi v Commonwealth of Australia; Alqudsi v R  [2015] NSWCA 351
  8. 12/11/2015
    Constitutional law: Constitution Ch III ss 71, 76(ii), 77(iii); constitutional validity of provisions of the Crimes (Sentence Administration) Act 2005 (ACT); cancellation of periodic detention; whether conferral of the cancellation power on the Sentence Administration Board and the exercise of that power by the board to cancel the appellant’s periodic detention was invalid; whether or not exercise of judicial power; characteristics of judicial power; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 applied; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 applied; appeal dismissed
    Jacka v Australian Capital Territory and Anor  [2014] ACTCA 49
  9. 16/10/2015Canada
    Constitutional law: Constitution Act 1867 ss 91(27), 92(13); division of powers; criminal law; property and civil rights; whether provincial Automatic Roadside Prohibition Scheme falls within federal government’s exclusive criminal law power; province’s purpose in enacting law not to oust criminal law; scheme concerned with preventing death, serious injury by removing drunk drivers; scheme complementary to federal criminal law; scheme within province’s property and civil jurisdiction
    Goodwin v British Columbia (Superintendent of Motor Vehicles)  [2015] SCC 46
  10. 16/10/2015Canada
    Constitutional law: Canadian Charter of Rights and Freedoms s 11; presumption of innocence; right to a fair trial; roadside breath testing; Automatic Roadside Prohibition Scheme imposes automatic 90-day licence suspensions where drivers “fail” roadside breath tests; whether automatic imposition of suspension infringes s 11 Charter presumption of innocence; whether scheme creates a criminal “offence” within meaning of s 11 of Charter; scheme regulatory in nature and without true penal consequences; criminal fair-trial rights in s 11 not engaged
    Goodwin v British Columbia (Superintendent of Motor Vehicles)  [2015] SCC 46