Peace, Welfare and Good Government
Peace, Welfare and Good Government •
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State constitutions confer a general power upon the state parliaments o Cf. heads of power for Cth o For “peace, welfare and good government of the States in all cases whatsoever” State parliaments have plenary and ample powers (as the imperial parliament) subject to express and implied limitations: Powell v Apollo Candle (1885) Facets o Power to amend constitution o Lack of enforceable separation of judicial power
Constitutional Amendment Power Colonial Laws Validity Act 1865 (Imp) s 5 The States have: • Full power within its jurisdiction to o Establish courts of judicature and o To abolish and reconstitute the same, and o To alter the constitution thereof, and o To make provision for the administration of justice therein, and • Full power o To make laws respecting the constitution, powers and procedure of such legislature o Provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament… •
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Widely interpreted Taylor v A-G of Qld (1917) o Bills from legislative assembly repeatedly knocked back by legislative council o Alternative passed—if twice passed below and rejected above, can be passed by referendum: Parliamentary Bills Referendum Act 1908 o Bill put forward to abolish legislative council—rejected obviously by legislative council—put to referendum o Referendum failed o Includes power to create an alternative legislative procedure: o Includes power to dissolve the Queensland Legislative Council Although moot point—referendum failed o Although may not include elimination of the crown: Taylor v A-G of Qld (1917) per Isaacs J at 474 Amendment need not be express o Cf. originally had to be expressly overturned: Cooper v Commissioner of Income Tax (1907) McCawley v The King [1920] PC from Qld o Industrial Arbitration Act 1916 s6(6) providing that the president of the court of arbitration (renewable 7 year term) can be appointed to SC Designed to guarantee such a person the same rights as SC judges BUT true effect was to authorise SC appointment for only 7yrs
Andrew Trotter
LWB242
2009-1
Not capable of authorising SC appointment for life o Contrary constitution? s15: SC judges appointed for life during good behaviour ↔ IAA s6(6) for 7 years o No express provision to correct constitution o Rejected the argument that “it can only be altered by an Act which in plain and unmistakable language refers to it and asserts the intention of the Legislature to alter it”: 705 per Lord Birkenhead (for the court) No Express Separation of Judicial Power •
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Separation of judicial power not entrenched, therefore acts interfering with judicial process: o Legislature encroaching on judicial power: Building Construction Employees and Builders’ Labourers’ Federation of NSW v Minister for Industrial Relations (1986) (act passed during legal proceedings to determine the decision by a minister to cancel union registration—act dictated that the cancellation of the registration of the union must be accepted as valid, regardless of the opinion of the court—Kirby P accepted that the act was a breach of the separation of powers but it didn’t matter) o Legislature imparting non-judicial power on the courts: Gilbertson v SA (1978) (PC) (act allowing an appeal to the SASC from an order of the electoral districts boundaries commission—conferring non-judicial power on SC?—PC said any jurisdiction may be conferred upon the courts, even if non-judicial) However o Kable v DPP (State supreme courts part of the federal system (ss 73, 77 Cth Constitution—separation of powers applies also to State courts) o Also (see separation of powers notes) Re Criminal Proceeds Confiscation Act 2002 [2003] QCA 249 Nth Aust Aboriginal Legal Aid Service v Bradley [2004] 206 ALR 315 Fardon v A-G (Qld) [2004] 210 ALR 50 Forge v ASIC [2006] 229 ALR 223
Limits •
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•
“Peace, welfare and good government” = a limit—laws which do not confer that benefit can be struck down: Building Construction Employees and Builders’ Labourers’ Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 NOT words of limitation—‘peace, order and good government’ cannot be used by courts to strike down limitations: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10 o A power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words "for the peace, order and good government" are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony … the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Express limits
Andrew Trotter
LWB242
2009-1
•
o Manner and form restrictions o Restrictions in Commonwealth Constitution Duties of custom and excise: s90 Freedom of interstate trade & commerce: s92 Taxation of state property: s114 Discrimination based on residency: s117 Laws conflicting with Cth laws: s109 Implied o Implied freedom of communication o Limits on making laws which apply outside the territory of that state
[Compulsory acquisition and marketing schemes] → s92 [freedom of interstate T&C] • Compulsory acquisition schemes are valid so long as there is no discrimination against other states: Barley Marketing Board v Norman (1990) (All barley vested in NSW—board would sell & market as a whole—voided all contracts for sale of barley by NSW producers—functions of Board included marketing, improving grade, appointment of agents & maximisation of returns || benefited small growers (benefit of bargaining power of Board against large purchasers) | NSW maltsters purchase direct from Vic but Vic could not purchase direct from NSW not a discriminatory burden of a protectionist kind → valid) o Where no exclusion of one group from the market | no resultant difference in price to purchasers in each state (not protectionist) o BUT if there are any restrictions on export that advantage producers or purchasers in the state → invalid
Andrew Trotter
LWB242
2009-1
• •
State constitutions confer a general power upon the state parliaments o Cf. heads of power for Cth o For “peace, welfare and good government of the States in all cases whatsoever” State parliaments have plenary and ample powers (as the imperial parliament) subject to express and implied limitations: Powell v Apollo Candle (1885) Facets o Power to amend constitution o Lack of enforceable separation of judicial power
Constitutional Amendment Power Colonial Laws Validity Act 1865 (Imp) s 5 The States have: • Full power within its jurisdiction to o Establish courts of judicature and o To abolish and reconstitute the same, and o To alter the constitution thereof, and o To make provision for the administration of justice therein, and • Full power o To make laws respecting the constitution, powers and procedure of such legislature o Provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament… •
•
Widely interpreted Taylor v A-G of Qld (1917) o Bills from legislative assembly repeatedly knocked back by legislative council o Alternative passed—if twice passed below and rejected above, can be passed by referendum: Parliamentary Bills Referendum Act 1908 o Bill put forward to abolish legislative council—rejected obviously by legislative council—put to referendum o Referendum failed o Includes power to create an alternative legislative procedure: o Includes power to dissolve the Queensland Legislative Council Although moot point—referendum failed o Although may not include elimination of the crown: Taylor v A-G of Qld (1917) per Isaacs J at 474 Amendment need not be express o Cf. originally had to be expressly overturned: Cooper v Commissioner of Income Tax (1907) McCawley v The King [1920] PC from Qld o Industrial Arbitration Act 1916 s6(6) providing that the president of the court of arbitration (renewable 7 year term) can be appointed to SC Designed to guarantee such a person the same rights as SC judges BUT true effect was to authorise SC appointment for only 7yrs
Andrew Trotter
LWB242
2009-1
Not capable of authorising SC appointment for life o Contrary constitution? s15: SC judges appointed for life during good behaviour ↔ IAA s6(6) for 7 years o No express provision to correct constitution o Rejected the argument that “it can only be altered by an Act which in plain and unmistakable language refers to it and asserts the intention of the Legislature to alter it”: 705 per Lord Birkenhead (for the court) No Express Separation of Judicial Power •
•
Separation of judicial power not entrenched, therefore acts interfering with judicial process: o Legislature encroaching on judicial power: Building Construction Employees and Builders’ Labourers’ Federation of NSW v Minister for Industrial Relations (1986) (act passed during legal proceedings to determine the decision by a minister to cancel union registration—act dictated that the cancellation of the registration of the union must be accepted as valid, regardless of the opinion of the court—Kirby P accepted that the act was a breach of the separation of powers but it didn’t matter) o Legislature imparting non-judicial power on the courts: Gilbertson v SA (1978) (PC) (act allowing an appeal to the SASC from an order of the electoral districts boundaries commission—conferring non-judicial power on SC?—PC said any jurisdiction may be conferred upon the courts, even if non-judicial) However o Kable v DPP (State supreme courts part of the federal system (ss 73, 77 Cth Constitution—separation of powers applies also to State courts) o Also (see separation of powers notes) Re Criminal Proceeds Confiscation Act 2002 [2003] QCA 249 Nth Aust Aboriginal Legal Aid Service v Bradley [2004] 206 ALR 315 Fardon v A-G (Qld) [2004] 210 ALR 50 Forge v ASIC [2006] 229 ALR 223
Limits •
•
•
“Peace, welfare and good government” = a limit—laws which do not confer that benefit can be struck down: Building Construction Employees and Builders’ Labourers’ Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 NOT words of limitation—‘peace, order and good government’ cannot be used by courts to strike down limitations: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10 o A power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words "for the peace, order and good government" are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony … the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Express limits
Andrew Trotter
LWB242
2009-1
•
o Manner and form restrictions o Restrictions in Commonwealth Constitution Duties of custom and excise: s90 Freedom of interstate trade & commerce: s92 Taxation of state property: s114 Discrimination based on residency: s117 Laws conflicting with Cth laws: s109 Implied o Implied freedom of communication o Limits on making laws which apply outside the territory of that state
[Compulsory acquisition and marketing schemes] → s92 [freedom of interstate T&C] • Compulsory acquisition schemes are valid so long as there is no discrimination against other states: Barley Marketing Board v Norman (1990) (All barley vested in NSW—board would sell & market as a whole—voided all contracts for sale of barley by NSW producers—functions of Board included marketing, improving grade, appointment of agents & maximisation of returns || benefited small growers (benefit of bargaining power of Board against large purchasers) | NSW maltsters purchase direct from Vic but Vic could not purchase direct from NSW not a discriminatory burden of a protectionist kind → valid) o Where no exclusion of one group from the market | no resultant difference in price to purchasers in each state (not protectionist) o BUT if there are any restrictions on export that advantage producers or purchasers in the state → invalid
Andrew Trotter
LWB242
2009-1
