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West v Commissioner of Taxation
(1) the tax is general and non-discriminatory and does not impair the Commonwealth's powers and functions
(2) Cth has not exercised its protective power under s 109
Alders - s52 (i) upheld
Commonwealth Parliament has exclusive power to make laws in respect of 'all places acquired by the Commonwealth for public purposes'
Melbourne Corporation Case
Commonwealth cannot make laws that restrict or burden a State from exercising its constitutional powers. Distinguish:
(a) laws of general application and
(b) laws singling out governments and placing burdens upon the exercise of constitutional powers or performance of constitutional functions
QEC v Commonwealth
1. Prohibition against discrimination which involves the placing on states of special burdens or disabilities
2. Prohibition against laws of general application which operate to threaten or curtail the continued existence of the States or their capacity to function as governments
Austin v Commonwealth
There is only one test -whether the law curtails the capacity of the States to function as governments.
Two categories of employees (a) Non-high level officers and (b) high level officers
•With respect to (a) category, the following are critical to the capacity of a State to function
-Determining the number and identity of persons to hire
-Determining periods of appointment
-Determining the number and identity of persons to terminate
•With respect to category (b), the following are critical to a State's capacity to function:
-All the powers mentioned with respect to category (a)
-Powers to determine terms and conditions
Work Choices Case
The interest of a State in having a 'State industrial authority' determine a matter is not so vital to the functioning of the State that it affects the capacity of the State to 'function as a government' or to 'exercise constitutional functions'.
Clarke v Commissioner of Taxation
6 matters relevant to the question whether a Commonwealth law fails for unconstitutionally burdening States
Clarke v Commissioner of Taxation
1.Whether the law in question singles out one or more of the States and imposes a special burden or disability on them which is not imposed on persons generally.
2.Whether the operation of a law of general application imposes a particular burden or disability on the States.
3.The effect of the law upon the capacity of the States to exercise their constitutional powers.
4.The effect of the law upon the exercise of their functions by the States.
5.The nature of the capacity or functions affected.
6. The extent to which the constitutional head of power under which the law is made authorises its discriminatory application.
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