Constitutional Law
Constitutional Law LAW5007 Exam Notes
Table of Contents State Legislative Power................................................................................. 3 Manner and Form Requirements .................................................................. 5 The Executive Powers of the Commonwealth .............................................. 7 The Legislative Powers of Commonwealth ................................................ 10 External Affairs Power: s 51 (xxix) ............................................................ 12 The Corporations Power: s 51 (xx) ............................................................. 15 The Race Power: s 51 (xxvi) ....................................................................... 19 The Grants Power s 96 ................................................................................ 21 Appropriation and Expenditure................................................................... 23 Intergovernmental Immunities: State Immunity ......................................... 24 Intergovernmental Immunities: Commonwealth Immunity ....................... 27 Separation of Judicial Power: Commonwealth ........................................... 29 State Separation of Judicial Power ............................................................. 34 Implied Freedom of Political Communication ........................................... 36 Implied Right to Vote ................................................................................. 38 Inconsistency: s 109 .................................................................................... 39
State Legislative Power • •
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The legislative capacity of the State parliaments is to ‘make laws for the peace order and good government (or ‘welfare’) of the States. However, this is not a limiting provision, and courts are not able to strike down legislation on the ground that the legislation does not promote or secure peace, order and/or good government (Union Steamship). s 16 of the Victorian Constitution confers plenary power, that is, the power to a ‘complete and unrestricted power to make laws with reference to the State concerned (Clayton v Heffron; Union Steamship). State Constitutions are controlled but are inherently flexible, and thus not presumed to pose contraints on State legislative power (McCawley) Certain restrictions on State legislative power are imposed by the Cth Constitution (ss 52, 90, 109) However, if a law is enacted which undermines the representative character of the Parliament, then that law is very likely to be deemed invalid (Taylor) In this case, Isaacs and Powers JJ (perhaps quite controversially) held that the Crown, in a monarchial system, can never be removed. However, it is unlikely that the same views would be held in the current day. This means that the State Parliaments are not agents or delegates of the Imperial Parliament and therefore they can delegate their powers, provided the delegation does not amount to ‘abdication’. High Court affirmed that the formula confers a complete and unrestricted power to make laws with reference to the state concerned (Clayton v Heffron)
Doctrine of Implied Repeal • General rule: State legislative power is plenary and State Constitutions are regular Acts of Parliament, which may be expressly (Taylor) or impliedly (McCawley) repealed/amended by the passing of new legislation • Unless special legislative procedures are prescribes, and States’ Constitution Act can be amended or repealed in the same fashion as any other local legislation (McCawley) o This rule is applicable in all States
Extraterritorial Legislative Power • Originally the jurisdiction of colonial legislatures to make laws was confined to their own territories (Mcleod v AG NSW) • This was later expounded to a position whereby State legislatures could enact extraterritorial powers (Broken Hill South Ltd v Commissioner of Taxation NSW 1937) o ‘It is within the competence of the State legislature to make any fact, circumstances, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability’ (Dixon J) o This is known as the ‘nexus test’: any connection between the law and the territory • In 1986 the Australia Acts came into operation whereby s 2(1) AA declares that the ‘legislative powers of the Parliament of each state shall include full power to make laws for the peace, order and good government of that State that have extra-territorial operation’
o
o
Note: this phrase is different to the Commonwealth’s extra-territorial power clause with the addition of ‘peace, order and good government’ – not words of limitation and that this inclusion still requires the establishment of some kind of connection between the law and the territory to which the liability is imposed upon (as a matter of policy to reduce the potential for conflict between the law of different States and assists in maintaining harmony within the federation) (Union Steamship) This is liberally applied whereby even a remote and general connexion between subject matter of the legislation and the state will suffice (Pearce v Florenca)
Charter of Human Rights and Responsibilities Act 2006 (Vic) • • • •
The courts must try to interpret the statute in a way to be compatible with human rights where it is possible to do so ( s 32(1)) Must be accompanied by a statement of compatibility (s 28) If it is unable to do so, it is empowered to issue a Declaration of Inconsistent Interpretation (s 36), but the court does not invalidate the statute (s 36(5)) The Minister is required to table a response within 6 months and it is up to Parliament to decide on the course of action
Manner and Form Requirements •
One of the rules of Parliamentary Sovereignty (PS) is that a P cannot bind its successors, a later P cannot be restricted by an earlier P. However, this is what restrictive procedures (RP) aim to do, one P passes an Act saying that a later P cannot do something. As such RP’s tend to undermine PS and the plenary power of states as per s 2(1) of the AA.
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Although the Victorian Parliament has plenary legislative power (s 16 Vic Const; s 2(2) Australia Act), s 6 of the AA provides that laws respecting the constitution, powers or procedures (CPP) of Parliament are of no effect unless made in such manner and form (M&F) as required.
Steps for Restrictive Procedures Question Is the [first law] a true Manner and Form Provision or Abdication of Parliaments Power? • Double Entrenched: o It must refer to itself (McCawley, Trethowan) o Examine actual M&F (‘this section, any provision’ o If the RP doesn’t protect itself it will be ineffective because any later parliament could amend or repeal that protective provision by the ordinary legislative procedures and amentd the protected topic •
Mandatory: must establish a mandatory requirement for passage of the law (Trethowan) o Look for mandatory language (must, shall)
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Genuine: must operate on, or relate to, the legislative process (Trethowan) o Cannot amount to deprivation of power or an abdication of power (Westlakes) o Must retain the ‘representative character of the legislature (e.g. not a third party) (Westlakes) Not too onerous: if too strict that it prevents P from using law making powers then it is abdication of P’s power and invalid (Westlakes) o This is a question of degree (Westlakes) o Consider subject matter: the more serious/important the subject matter the more onerous M&F may be (Westlakes) o A simple referendum is generally not too onerous (Trethowan) – but if for something unimportant or trivial like amending the Dogs Act it might be invalid (Westlakes) o Special majorities: defined as 3/5ths of the whole numbers of members of the Assemby and Council may be tolerated for important issues (Westlakes) o Absolute majority: (more than half eligible to vote) is not too onerous in the context of laws regarding electoral boundaries (Marquet) o If RP directed at extra-parliamentary body must really ask if provision is truly a law prescribing M&F or a renunciation of the power to legislate on that topic unless the condition exists (Westlakes)
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Table of Contents State Legislative Power................................................................................. 3 Manner and Form Requirements .................................................................. 5 The Executive Powers of the Commonwealth .............................................. 7 The Legislative Powers of Commonwealth ................................................ 10 External Affairs Power: s 51 (xxix) ............................................................ 12 The Corporations Power: s 51 (xx) ............................................................. 15 The Race Power: s 51 (xxvi) ....................................................................... 19 The Grants Power s 96 ................................................................................ 21 Appropriation and Expenditure................................................................... 23 Intergovernmental Immunities: State Immunity ......................................... 24 Intergovernmental Immunities: Commonwealth Immunity ....................... 27 Separation of Judicial Power: Commonwealth ........................................... 29 State Separation of Judicial Power ............................................................. 34 Implied Freedom of Political Communication ........................................... 36 Implied Right to Vote ................................................................................. 38 Inconsistency: s 109 .................................................................................... 39
State Legislative Power • •
•
• • • •
• •
The legislative capacity of the State parliaments is to ‘make laws for the peace order and good government (or ‘welfare’) of the States. However, this is not a limiting provision, and courts are not able to strike down legislation on the ground that the legislation does not promote or secure peace, order and/or good government (Union Steamship). s 16 of the Victorian Constitution confers plenary power, that is, the power to a ‘complete and unrestricted power to make laws with reference to the State concerned (Clayton v Heffron; Union Steamship). State Constitutions are controlled but are inherently flexible, and thus not presumed to pose contraints on State legislative power (McCawley) Certain restrictions on State legislative power are imposed by the Cth Constitution (ss 52, 90, 109) However, if a law is enacted which undermines the representative character of the Parliament, then that law is very likely to be deemed invalid (Taylor) In this case, Isaacs and Powers JJ (perhaps quite controversially) held that the Crown, in a monarchial system, can never be removed. However, it is unlikely that the same views would be held in the current day. This means that the State Parliaments are not agents or delegates of the Imperial Parliament and therefore they can delegate their powers, provided the delegation does not amount to ‘abdication’. High Court affirmed that the formula confers a complete and unrestricted power to make laws with reference to the state concerned (Clayton v Heffron)
Doctrine of Implied Repeal • General rule: State legislative power is plenary and State Constitutions are regular Acts of Parliament, which may be expressly (Taylor) or impliedly (McCawley) repealed/amended by the passing of new legislation • Unless special legislative procedures are prescribes, and States’ Constitution Act can be amended or repealed in the same fashion as any other local legislation (McCawley) o This rule is applicable in all States
Extraterritorial Legislative Power • Originally the jurisdiction of colonial legislatures to make laws was confined to their own territories (Mcleod v AG NSW) • This was later expounded to a position whereby State legislatures could enact extraterritorial powers (Broken Hill South Ltd v Commissioner of Taxation NSW 1937) o ‘It is within the competence of the State legislature to make any fact, circumstances, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability’ (Dixon J) o This is known as the ‘nexus test’: any connection between the law and the territory • In 1986 the Australia Acts came into operation whereby s 2(1) AA declares that the ‘legislative powers of the Parliament of each state shall include full power to make laws for the peace, order and good government of that State that have extra-territorial operation’
o
o
Note: this phrase is different to the Commonwealth’s extra-territorial power clause with the addition of ‘peace, order and good government’ – not words of limitation and that this inclusion still requires the establishment of some kind of connection between the law and the territory to which the liability is imposed upon (as a matter of policy to reduce the potential for conflict between the law of different States and assists in maintaining harmony within the federation) (Union Steamship) This is liberally applied whereby even a remote and general connexion between subject matter of the legislation and the state will suffice (Pearce v Florenca)
Charter of Human Rights and Responsibilities Act 2006 (Vic) • • • •
The courts must try to interpret the statute in a way to be compatible with human rights where it is possible to do so ( s 32(1)) Must be accompanied by a statement of compatibility (s 28) If it is unable to do so, it is empowered to issue a Declaration of Inconsistent Interpretation (s 36), but the court does not invalidate the statute (s 36(5)) The Minister is required to table a response within 6 months and it is up to Parliament to decide on the course of action
Manner and Form Requirements •
One of the rules of Parliamentary Sovereignty (PS) is that a P cannot bind its successors, a later P cannot be restricted by an earlier P. However, this is what restrictive procedures (RP) aim to do, one P passes an Act saying that a later P cannot do something. As such RP’s tend to undermine PS and the plenary power of states as per s 2(1) of the AA.
•
Although the Victorian Parliament has plenary legislative power (s 16 Vic Const; s 2(2) Australia Act), s 6 of the AA provides that laws respecting the constitution, powers or procedures (CPP) of Parliament are of no effect unless made in such manner and form (M&F) as required.
Steps for Restrictive Procedures Question Is the [first law] a true Manner and Form Provision or Abdication of Parliaments Power? • Double Entrenched: o It must refer to itself (McCawley, Trethowan) o Examine actual M&F (‘this section, any provision’ o If the RP doesn’t protect itself it will be ineffective because any later parliament could amend or repeal that protective provision by the ordinary legislative procedures and amentd the protected topic •
Mandatory: must establish a mandatory requirement for passage of the law (Trethowan) o Look for mandatory language (must, shall)
•
Genuine: must operate on, or relate to, the legislative process (Trethowan) o Cannot amount to deprivation of power or an abdication of power (Westlakes) o Must retain the ‘representative character of the legislature (e.g. not a third party) (Westlakes) Not too onerous: if too strict that it prevents P from using law making powers then it is abdication of P’s power and invalid (Westlakes) o This is a question of degree (Westlakes) o Consider subject matter: the more serious/important the subject matter the more onerous M&F may be (Westlakes) o A simple referendum is generally not too onerous (Trethowan) – but if for something unimportant or trivial like amending the Dogs Act it might be invalid (Westlakes) o Special majorities: defined as 3/5ths of the whole numbers of members of the Assemby and Council may be tolerated for important issues (Westlakes) o Absolute majority: (more than half eligible to vote) is not too onerous in the context of laws regarding electoral boundaries (Marquet) o If RP directed at extra-parliamentary body must really ask if provision is truly a law prescribing M&F or a renunciation of the power to legislate on that topic unless the condition exists (Westlakes)
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