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Problem question structures: Constitutional Law 2012 If the problem concerns a State law Plenary power
* Identify the State law
Identify arguments of both parties
2. Does the State have power to make the law?
States have plenary legislative power under the Constitution Act 1975 (Vic) s 16 and Australia Act 1986 (Cth) s 2. This means that, subject to (mostly external) limitations, States have the power to make any law on any subject matter. Accordingly, [law] is valid, subject to any limitations to be considered next.
3. Is there a limitation of extraterritoriality on the State law?
For States to legislate outside the State, the HCA has held there must be a nexus: a remote or general connection between the State and the matter it is legislating for ( Pearce v Florenca (1976), endorsed in Union Steamship Co v King (1988)).
If a State's extraterritorial laws interfere unduly with the legislative powers of another State, the extraterritorial powers may be limited (this is implied by the federal nature of our system); however, the mere fact a State's laws operate in another State is not enough to breach this limit (Mobil Oil v Victoria).
[Discuss arguments per facts]
Manner & form
4. Is there a limitation of manner and form on the State law?
1. Introduction Identify:
'First law': the law imposing the manner and form requirement and describe the M&F requirements.
'Second law': the challenged law alleged to be required to comply with first law
Arguments of the parties o
Makers of 1st law want to prove the manner and form provision is binding and that the 2nd law was not validly enacted.
Makers of 2nd law want to show it is not binding and that their law is therefore valid.
2. The applicable law
Australia Act (1986) (AA) s 6 provides that laws about the constitution, powers and procedures of State Parliaments can only be passed if they comply with any applicable manner and form (M&F) requirement that has been passed. AUSTRALIA ACT 1986 s 6 Manner and form of making certain State laws Notwithstanding sections 2 and 3(2) above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.
3. Is the M&F provision binding under AA s 6?
The first law will be binding if three subquestions can be answered in the affirmative. i.
Is the first law selfentrenched?
For a provision imposing a M&F requirement to be effective, it must require the same hurdle for its repeal or amendment as it imposes. If not, a future parliament can simply repeal the provision imposing the M&F requirement and pass the desired law; even simply passing the desired law with no express repeal can result in an implied repeal for inconsistency (McCawley v the King). ii.
Is the first law valid rather than an abdication of parliament's power?
Since AA s 2(2) confers a continuing plenary power on all State legislatures and the Act cannot be changed by a State parliament, the State legislature cannot abdicate its power or part of it. AUSTRALIA ACT 1986 SECT 2 Legislative powers of Parliaments of States (2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.
Whether the first law is an abdication of power is a question of degree. Courts will decide that at some point, a law makes it too difficult to make changes to the law. The courts may decide there is an invalid abdication of power if: 1) The M&F provision is too onerous Whether the provision is too onerous will depend on the degree of the restrictive procedure (King J in West Lakes). o
Requiring express words will be OK
Requiring a referendum has been held to be permissible (Trethowan)
Simple majority (50% + 1 person of those present) ok
Absolute majority (50% + 1 of all eligible to vote): it is not absolutely certain whether a court would consider this acceptable, but it has been accepted as a
valid M&F requirement in AG (WA) v Marquet (lec thinks is ok; Greg Taylor thinks is not) o
Supermajority/special majority (anything over 50% + 1): as there are not authorities on this, it is uncertain whether a court would consider a super
majority too onerous.It could be argued in court that all supermajorities are too onerous since it allows a minority to prevent legislation being passedHowever courts may consider it a matter of degree and draw a line somewhere between 50%100%. King J in West Lakes suggested this would be the case.
King J also said it may also depend on whether parliament is trying to protect an important constitutional principle; the more important a principle, the higher a majority may be OK.
2) The legislative decision maker is not sufficiently representative (analogise with one of these cases) o
A corporation/nonparliamentary body will not be sufficiently representative (West Lakes)
Parliament is sufficiently representative (Marquet)
Referenda are sufficiently representative (Trethowan); however it could be argued (per McTiernan J in Trethowan) that a referendum is an invalid abdication of power since parliament has given a veto to an outside body (the electors), which is contrary to parliament having full power to change its own constitution. Rich J in the same case argued that the provision merely reconstituted parliament as including a third house (the electorate), which it was permitted to do (though Rich J's position may have been untenable given the wording of s 7A in referring to the legislature separately to the electorate).
iii. Is the second law in respect of the constitution, powers or procedures of parliament?
AA s 6 will only require a law to comply with a M&F provision if it is a law in respect of the constitution, powers or procedures of parliament.
Constitution: a law is a law in respect of the constitution of parliament if it relates to the nature and composition of parliament (Dixon J in Trethowan). Examples: o
A law abolishing a house: Trethowan
A law changing the distribution of electorates/votes (Marquet)
The qualifications (age, not being a felon) needed to stand as an MP were indicated in Marquet (in obiter) not to be part of the constitution of parliament
Procedures: a law is a law in respect of the procedures of parliament if it prescribes rules for parliament's own conduct (Dixon J in Trethowan).
Powers: a law is a law in respect of the powers of parliament if it relates to an expansion or limitation of the parliament's legislative authority (Dixon J in Trethowan).
4. Conclusion (on AA s6)
[Conclude whether binding under AA s 6; if not a CPP law go onto pure procedure and form]
5. Can a "pure procedure or form" argument make the first law binding?
Jeff Goldsworthy suggests (in an argument taken up by Greg Taylor) that where the second law is not a law in respect of the constitution, powers and procedures of Parliament (and so does not fall within the reach of AA s 6), a M&F provision may still be binding on it under an argument of 'pure procedure and form'. Essentially, the argument is that if the M&F provision places purely procedural restrictions on parliament's ability to legislate, this does not substantively restrict the continuing plenary power conferred under AA s 2(2) and the Vic Constitution s 16. o
Since the M&F provision does not make it more difficult to legislate, AA s 6 is not required and the M&F provision will be valid and binding, and can entrench itself by the M&F provision.
Pure procedural requirements: o
A particular phrase
Goldsworthy suggests that absolute majority requirements are purely procedural
[Discuss on facts whether the first law has requirements that are purely procedural]
6. Final conclusion to M&F
[Conclude on whether made out in s 6 or pure procedure and form]
Intergovernmental immunities: Structure for Cth immunity from State laws
5. Is the intergovernmental immunity protecting the Cth from the State law?
1. Introduction The implied intergovernmental immunity between the State and Commonwealth governments is a limitation found the CC. In respect of State laws binding the Commonwealth, it limits the extent to which a State Parliament can bind the Commonwealth.
It is implied by the principle of federalism, which requires autonomous and independent State and central governments.
The limitation is particularly important given that, as expressed by McHugh in the NSWCA in Australian Postal Commission v Dao, it would be problematic if legislation passed by representatives of the people of one State could (by binding the Commonwealth) indiscriminately bind the representatives of the entire population of Australia.
States are accepted to have a qualified power to bind the Commonwealth, in that they may not legislate to affect the capacities of the Cth, while they can legislate to affect the exercise of those capacities (Henderson). [Consider mentioning Kirby J's dissent if relevant]
Cth will argue [law] affects its capacities and is not binding due to the implied immunity.
[State/other] will argue that the law merely binds the Cth in the exercise of its capacities, so that there is no immunity.
2. Does the legislation affect the capacities of the Commonwealth?
State law singling out the Cth for regulation (INVALID) A law will affect the capacities of the Cth if it singles out the Cth government and imposes a disability on it, similarly to the rules applied to the Cth in State Banking and QEC (Henderson). Laws affecting Cth's privileges, powers and immunities (INVALID) A law will affect the capacities of the Cth if it affects the rights, privileges, powers and immunities of the Commonwealth conferred by CC s 61 (Henderson). This will be the case if the law purports to modify the nature of the Cth's executive power (excluding its common law powers). Powers protected include
the prerogative powers of the Commonwealth (unique exec powers)
the Cth's debt priority (Cigamatic; Uther)
the right to pardon offenders, etc
Rights conferred by statute The issue of Cth immunity will not arise if the Cth has conferred power on the executive by statute, since any State statute purporting to alter the power would be inconsistent and inoperative under CC s 109. Legislation binding the Cth in the exercise of its capacities (VALID) A law will not affect the capacities of the Cth if it instead merely affects the exercise of those capacities (Henderson). Legislation which assumes those capacities and simply seeks to regulate the Crown's activities when engaged in the exercise of those capacities is not invalid under the implied intergovernmental immunity. Valid laws include:
A State law of general application (that binds the Crown and subjects alike) (Henderson)
Alteration of powers/capacities of the Cth that it shares with its subjects (as long as there is a general and nondiscriminatory application) (Henderson)
Alteration of the
General application of criminal law (Pirrie)
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