#7096 - State Law - Constitutional Law

• Identify the State law

• Identify arguments of both parties

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.

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]

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

  • Makers of 1^st law want to prove the manner and form provision is binding and that the 2^nd law was not validly enacted.

  • Makers of 2^nd law want to show it is not binding and that their law is therefore valid.

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.

The first law will be binding if three sub-questions can be answered in the affirmative.

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).

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.

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).

• Requiring express words will be OK

• Requiring a referendum has been held to be permissible (Trethowan)

Majorities

• 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 A-G (WA) v Marquet (lec thinks is ok; Greg Taylor thinks is not)

• Super-majority/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 super-majorities are too onerous since it allows a minority to prevent legislation being passed

  • However 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)

   • A corporation/non-parliamentary 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).

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:

  • 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).

[Conclude whether binding under AA s 6; if not a CPP law go onto pure procedure and form]

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.

• 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:

  • Express words

  • 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]

[Conclude on whether made out in s 6 or pure procedure and form]

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...