#7113 - Manner And Form Theory - Constitutional Law

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

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

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

• 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.

• 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).

• 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 The section (s 7A) itself could not be repealed without following the same process (self-entrenched).

• 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).

• 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 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.

• 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

• 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

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

  • 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

• 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

• 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 (17-16, Labor speaker could not vote where there is not a tie).

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

• DECISION: the court took a purposive and not literal approach in deciding the provision applied to an attempt to repeal and replace the Act. Accordingly an absolute majority was required.

The below are plenary sources of legislative power including constituent power.

The second law (the law challenged as not complying with the manner and form requirement) must be a law with respect to the constitution, powers or procedures of the State parliament.

Arguably much of s 18 and s 85(5) will not be binding under AA s 6 as much of it has nothing to do with the constitution, powers or procedures of parliament. [However, these provisions may be binding under pure procedure and form according to Goldsworthy and Greg Taylor; see below].

• Express repeal requirements: ____

• Absolute majority requirements: ____

• Referendum requirement: ____

• Super-majority requirement:____

The Constitution Act 1975 (Vic) s 18 provides a number of purported manner and form requirements.

• This includes a requirement that an absolute majority of all members of both Houses vote to repeal, alter or vary s 85 (s 18(2A)). Normally to pass legislation all that is required is a majority of the members present at the time (a majority of a quorum).

• S 18 itself cannot be repealed or altered without passage through both houses and approval by the majority of voters at a referendum.