Pape's Case 2009 HCA 23 (7 July 2009) – State Powers – Professor George Winter – Constitutional - UNSW Law School – Will Inhibit Exercise of Commonwealth Powers – Wrong
The Commonwealth won hands down.
French CJ's main point seems to be that very large scale detrimental economic movements are matters for the attention of the Commonwealth Executive as government as only it has resources of sufficient scale. The Parliament may make laws at least under its ancillary powers to aid the Executive in dealing with such matters.
Justices Gummow, Crennan and Bell seems to be that the law of the Parliament merely altered the destination of funds already appropriated It has some kinship with the defence power which also deals with matters of the largest consequence. They approved of a statement in the Parliamentary Practice.
And the citizens should say amen to that.
Justices Hayne & Kiefel referred to every law student's hairy chestnut – the great case of Mc Culloch v Maryland 1819 17 US 159 @ 206 endorsing the proposition:
“let it be within the scope of the Constitution” then “all means “.... “ are
appropriate”.
The incidental power of the Parliament is capable of applying to everything to which the Australian Constitution is directed.
Heydon J, in dissent, stands alone. He seems to be saying that a general crisis can not be attended to just because it is a crisis and outside the Commonwealths listed powers. The others say one can look at the rest of the Constitution. Power may arise from any appropriate provision depending what is happening.
It would seem that the Commonwealth Government is a “general government” within its proper area. But it is also limited.
What those limits are will be found by the familiar technique of the common law. They will be decided on one by one. The common law technique is not a matter of abstract theory but live in the pragmatic world of case by case. Thus the iron law of unintended consequences from the application of abstract theory may be avoided.
And see blog on Sir Maurice Byers.