LEASK v COMMONWEALTH OF AUSTRALIA

Members: Brennan CJ
Dawson J
Toohey J
Gaudron J

McHugh J
Gummow J
Kirby J

Tribunal:
Full High Court

Decision date: 5 November 1996

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McHugh J

If there is a sufficient connection between a subject of federal power and the subject matter of a federal law, it matters not that the federal law is harsh, oppressive, or inappropriate or that it is disproportionate or ill adapted to obtain the legislative purpose. As soon as it can be seen that the ``subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the Legislature and not for the Judiciary''. ^[133] Burton v Honan (1952) 86 CLR 169 at 179; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 101. Where, however, the dominant subject matter of an impugned law is not itself a head of federal power, but that law has ostensibly been passed to achieve some purpose falling within a subject of Commonwealth power, the sub-test of proportionality may sometimes prove helpful in determining whether the subject matter of the impugned law is sufficiently connected to the subject of federal power. Thus, in Nationwide News Pty Ltd v Wills , ^[134] (1992) 177 CLR 1. I thought that the test of proportionality assisted in determining whether

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ATC 5089

a law making it an offence to publish words calculated to bring the Industrial Relations Commission or any of its members into disrepute was a law with respect to ``conciliation and arbitration''. However, it needs to be firmly kept in mind in such a case that proportionality is nothing more than a guide to sufficiency of connection. As Dawson J pointed out in Nationwide : ^[135] (1992) 177 CLR 1 at 88.

``No doubt a law which is inappropriate or ill-adapted for the purpose of achieving a legitimate end may fail for want of a power. But it fails not because the Court considers the law to be inappropriate or ill adapted but because the very fact that the law is inappropriate or ill adapted prevents there being a sufficient connexion between the law and a relevant head of power. The question is essentially one of connexion, not appropriateness or proportionality, and where a sufficient connexion is established it is not for the Court to judge whether the law is inappropriate or disproportionate.''

Subject to the foregoing remarks, I agree for the reasons given by Dawson J that s 31(1) of the Financial Transaction Reports Act 1988 (Cth) is a valid law of the Parliament of the Commonwealth.