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Manner And Form Theory Notes

Law Notes > Constitutional Law Notes

This is an extract of our Manner And Form Theory document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Manner and form (making State constitutions rigid) Foundations Colonial Laws Validity Act 1865 (Imperial): the 'continuing power' and 'the proviso' S 5 Colonial Laws Validity Act Colonial legislatures may establish, &c. courts of law. Representative legislature may alter constitution.

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[the continuing power] Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein;

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and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature;

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[the proviso] 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, letters patent, Order in Council, or colonial law for the time being in force in the said colony.

Cases: Manner and form Taylor v A-G of Queensland (1917 HCA): States have constituent legislative power

* Labor government wanted to permanently abolish upper house; passed law making legislation able to be passed without consent of upper house

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HCA decision: parliament could abolish upper house by relying on CLVA s 5; parliament has power over its own constitution since the makeup of parliament is part of its constitution. States have constituent legislative power (power to change their own constitutions). o

Subsequent cases held that States could do this under their plenary legislative power, not just under the CLVA.

McCawley v the King (1918 Privy Council): inconsistent laws will impliedly change constitution

* Since State Constitutions are flexible and uncontrolled, if a State parliament passes a law inconsistent with a provision in the State constitution, the mere existence of the conflict repeals or amends the provision of the constitution to the extent of the inconsistency. This is the same process as applies to ordinary legislation.

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DANGER: State constitutions can be changed inadvertently. It may be that courts should have required clear words to impliedly repeal/amend State constitutions. However even if the constitution is changed, States can pass legislation to restore it (even retrospectively).

A-G (NSW) v Trethowan (1931 HCA)

* NSW legislature enacted legislation requiring that for parliament to abolish the Legislative Council, a Bill must be passed through both Houses, and, two or more months later, the Bill must be approved by a majority of electors in a referendum. The section (s 7A) itself could not be repealed without following the same process (self
entrenched).

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Labor government got in and passed a Bill to repeal s 7A and another to abolish the upper house (upper house passed them reliant on legal challenge).

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DECISION: NSWSC, HCA and PC held s 7A to be valid and binding given CLVA s

5. Approval of the electorate via referendum is a valid manner and form requirement.

West Lakes v South Australia (1980 SA Supreme Court)

* West Lakes Ltd and SA government reached an agreement where WL would develop an area of Adelaide, including adding a football stadium, and the government would give certain guarantees in return. The agreement stated it could not be changed without the consent of WL (purported M&F requirement). A special Act was passed with the formal agreement included in a schedule and was to be regarded as having the same force as a statute.

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Parliament wanted to allow installation of floodlights at the stadium; WL wanted to prevent this as it would put them in breach of their obligations to the residents of the area

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DECISION: SA Parliament had not intended to restrict its own legislative power. However, in obiter, the majority also said that, if a parliament had intended to subject its powers to the assent of a private corporation o

the law (authorising floodlight installation) would not be binding under CLVA s 5 (now AA s 6) as not a CPP law

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if the law is a CPP law, it would not be binding as a requirement of consent from an outside body that is not representative of the electors cannot be regarded as a M&F requirement (King J)referendum OK as is representative (giving electors a direct vote)assent of private corporation not representative

A-G (WA) v Marquet (2003 HCA)

* Electoral Districts Act 1947 (WA) required an absolute majority for any change to electoral districts; this only applied to laws to amend the provisions but not to the repeal of the Act altogether

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WA Parliament wanted to make the electoral districts (country and city) equal in size and knew it would have trouble getting an absolute majority in the upper house. It decided to repeal the whole Act and replace it with another Act essentially the same but with the required changes. The repeal and replacement legislation was passed, but not by absolute majority (1716, Labor speaker could not vote where there is not a tie).

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ISSUE: did the legislation have to satisfy the absolute majority requirement given it governed amendments and not repeals?

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