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Law Notes Constitutional Law Notes

State Law Notes

Updated State Law Notes

Constitutional Law Notes

Constitutional Law

Approximately 121 pages

These notes were used to achieve a High Distinction in Constitutional Law at Monash University, and include both policy and problem question notes. Be aware that at the time this exam was taken the unit did not include a separate policy question but rather included it within problem questions. The notes package also includes a list of case notes and constitutional theory separate to the problem structures.

The notes cover all course content.

They include clear and easily usable problem str...

Available here

The following is a more accessible 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:

Problem question structures: Constitutional Law 2012

If the problem concerns a State law

Plenary power

  1. Introduction

  • Identify the State law

  • Identify arguments of both parties

  1. 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.

Limitations

Extraterritoriality

  1. 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

  1. 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

    • 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.

  1. 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 sections2 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.

  1. Is the M&F provision binding under AA s 6?

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

  1. Is the first law self-entrenched?

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).

  1. 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).

  • 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.

  1. 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...

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