Leask v Commonwealth
Encyclopedia
Leask v Commonwealth 187 CLR
579 is a High Court of Australia
case that discussed the role of proportionality in the Australian Constitution
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offence.
), and that it was an inappropriate means to achieving the end. (Proportionality may be examined by testing if the law is appropriate and adapted to some means.) Dawson J noted that the test of whether the measures in a law are appropriate and necessary to achieve certain objectives, while used in Europe, was irrelevant for the Australian Constitution; "[t]hey are essentially political rather than judicial considerations".
Re Dingjan; Ex parte Wagner described the process by which it is determined whether a law is "with respect to" a section 51
head of power:
Thus, the connection involves some kind of degree, but once it has been established, it does not matter whether the law is appropriate for its aims.
However, proportionality may be relevant, and a law not invalid, if an immunity conferred by a limitation of a power is affected incidentally by the achievement of a legitimate end.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
579 is a High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
case that discussed the role of proportionality in the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
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Background
The act under question was the Financial Transactions Reports Act 1988 (Cth), which imposed an obligation on 'cash dealers' to report all transactions above $10,000 to a statutory authority. It was also an offence if it could be proved the transactions were designed to avoid tracking. The offence was a strict liabilityStrict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
offence.
Incidentality
Once there is a sufficient connection between the Act and the head of power, proportionality is irrelevant for non-purposive powers. Whether or not there is a sufficient connection does not rely on the desirability of the legislation.Proportionality
It was noted that the law was disproportionate to the currency and coins power (section 51(xii)Section 51(xii) of the Australian Constitution
Section 51 is a subsection of Section 51 of the Constitution of Australia that gives the Commonwealth Parliament the right to legislate with respect to “currency, coinage, and legal tender.”...
), and that it was an inappropriate means to achieving the end. (Proportionality may be examined by testing if the law is appropriate and adapted to some means.) Dawson J noted that the test of whether the measures in a law are appropriate and necessary to achieve certain objectives, while used in Europe, was irrelevant for the Australian Constitution; "[t]hey are essentially political rather than judicial considerations".
Re Dingjan; Ex parte Wagner described the process by which it is determined whether a law is "with respect to" a section 51
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
head of power:
- By reference to the rights, powers, liabilities, duties and privileges which it creates (Commonwealth v TasmaniaCommonwealth v TasmaniaCommonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...
) - A judgment as to the connection of this characterisation to the head of power
Thus, the connection involves some kind of degree, but once it has been established, it does not matter whether the law is appropriate for its aims.
However, proportionality may be relevant, and a law not invalid, if an immunity conferred by a limitation of a power is affected incidentally by the achievement of a legitimate end.