Leask V Commonwealth - Decision - Proportionality


It was noted that the law was disproportionate to the currency and coins power (section 51(xii)), 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; "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:

  1. By reference to the rights, powers, liabilities, duties and privileges which it creates (Commonwealth v Tasmania)
  2. 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.

Read more about this topic:  Leask V Commonwealth, Decision