Characterisation and heads of power

The idea

Characterisation is the method for deciding whether a Commonwealth law falls within a head of power in s 51 of the Constitution. It runs in the same order every time. Read the Constitution as an ordinary statute. Construe the head broadly. Characterise the law by what it does, then ask whether its connection to the power is sufficient.

Two ideas carry the method. The Constitution is read by the natural meaning of its text, so no power is cut down to protect a residue thought reserved to the States (Engineers). A law is measured by its legal and practical operation rather than by its label (Kartinyeri).

The standard of connection is generous. A law is valid once there is a substantial connection between it and the subject matter of the power. The connection fails only where it is so insubstantial, tenuous or distant that the law cannot sensibly be described as one with respect to the power.

The method is worth two to three sentences of an answer and no more. Characterisation is never examined on its own. It is the opening move before the analysis turns to the operative head, which is where the marks sit.

Where it comes from

Engineers reset the interpretive foundation. Before it the heads of power were read down to preserve powers thought reserved to the States, and neither the Commonwealth nor a State was taken to bind the other. Engineers rejected both doctrines. The heads in s 51 are granted subject to the Constitution, so their limits come from the text rather than from any assumption about what the States kept (Engineers, Isaacs J).

Kartinyeri fixed the characterisation test. Brennan CJ and McHugh J held that a law is characterised by the rights, duties, powers and privileges it changes, regulates or abolishes, so its real substance rather than its form fixes the head it answers to. Gummow and Hayne JJ construed the head with all the generality its words admit, undistorted by extreme examples of its future use. WorkChoices later confirmed the standard and held that the criterion of validity is a substantial connection, with the justice and wisdom of the law left to legislative choice.

How it is examined

Characterisation is never examined on its own. It is the opening move of almost every substantive head question, and the examiner expects two to three sentences before you turn to the operative power. A candidate who writes a page on method has spent the words in the wrong place.

Four moves are where the marks and the traps sit.

1. Construe the head broadly, with all the generality its words admit and undistorted by extreme examples of its future application.
2. Keep motive and unwelcome consequences out of the connection. This is because neither can control the meaning given to a head of power.
3. On a purposive or special power, switch from subject matter connection to whether the law is appropriate and adapted to the power's end.
4. Read the head by its text. This is because the bare removal of a limitation augments power, and framers or referendum history cannot override the words.

How to argue it

Work in a fixed order and attribute the contested step to the parties.

1. Read the Constitution as a statute. The head is construed by the natural meaning of its text, and a submission that the subject is reserved to the States fails on Engineers.
2. Construe the head broadly. Read the subject matter with all the generality its words admit before you measure the law against it (Kartinyeri, Gummow and Hayne JJ).
3. Characterise the law. Identify the rights, duties and powers it changes, regulates or abolishes, and describe its practical operation rather than its title (Kartinyeri, Brennan CJ and McHugh J).
4. Test the connection. The challenger will argue the connection is insubstantial, tenuous or distant. The Commonwealth will answer that a substantial connection exists on the law's operation. The better view is that the connection holds where the operation touches the subject matter in a real way, and the balance of authority favours validity once that link is shown.
5. Meet the standard objections. Where the challenger points to motive or a harsh consequence, neither controls the meaning of the head (Kartinyeri, Gummow and Hayne JJ). Where the law only reduces the operation of a valid Act, it takes that Act's character and validity.
6. Switch tests if the power is purposive. Defence and treaty implementation under external affairs are judged by whether the law is appropriate and adapted to the power's end rather than by subject matter connection (Kartinyeri, Gaudron J). Those powers are developed in later modules.

Practice problems

One hundred exam-style problems across twelve topics. Pick a topic, read the problem, write your own answer in IRAC, then reveal the Pass and H1 exemplars and the examiner's comments. Step through in order or jump to a random one. Nothing you type is saved or sent anywhere.

The trap

The costliest trap is testing an ordinary subject matter power for whether it is appropriate and adapted. A subject matter head is satisfied once a substantial connection exists, and the appropriate and adapted question belongs only to purposive or special powers such as defence or a special law under s 51(xxvi) (Kartinyeri, Gaudron J).

The second trap is the reserved State powers submission. A problem plants the argument that a subject belongs to the States, so the Commonwealth head must be read down. Engineers killed that reasoning. Construe the head by its text, answer the connection, then note that the submission fails.

The third is letting history beat text. The bare removal of a limitation augments power rather than confining it, so framers or referendum purpose cannot narrow what the words now do.

Key authorities

• Engineers reads the Constitution as an ordinary statute by the natural meaning of its text, and rejects reserved State powers and implied immunity of instrumentalities.★
• Kartinyeri (Gummow and Hayne JJ) construes the head with all the generality its words admit, and holds that motive and extreme consequences cannot control its meaning.★
• Kartinyeri (Brennan CJ and McHugh J) characterises a law by its legal and practical operation, valid unless the connection is insubstantial, tenuous or distant.★
• Kartinyeri (Gaudron J) tests a purposive or special power by whether the law is appropriate and adapted to its end, and holds that text prevails over history.★
• Kartinyeri (Kirby J, dissenting) read the amendment purpose to confine the races power to beneficial laws, an approach the majority rejected.
• WorkChoices makes validity turn on a substantial connection, with the wisdom of the means a matter of legislative choice.★
• Melbourne Corporation (Dixon J) is the source of the insubstantial, tenuous or distant formula adopted in Kartinyeri.