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Law Notes Constitutional Law Notes

State Legislative Power Theory Notes

Updated State Legislative Power Theory 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...

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:

State legislative power

Plenary legislative power

In State constitutions there is a broad sweeping legislative power such. In most states it is the power to make laws for the POAGG of the State.

Constitution Act 1975 (Vic)

CONSTITUTION ACT 1975 (Vic)

S 16 Legislative power of Parliament

The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.

Australia Act 1986 (Cth) s 2

AUSTRALIA ACT 1986 (Cth)

- SECT 2
Legislative powers of Parliaments of States

  1. It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.

  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.

AA s 2 also shows that the State has plenary power.

Not limited by POAGG etc

The provisions such as s 16 or POAGG are ‘stock formulae’ and are not works of limitation; you cannot argue that the State legislature is prevented from passing ‘unjust’ or bad laws (Privy Council as approved by HCA in Union Steamship Co v King).

This type of power is regarded as a plenary legislative power, meaning it is general and not subject to limitations inherent in the power itself. Any limitations come from external sources (such as the Commonwealth Constitution).

Examples of sweeping nature of plenary power

  • Builders Labourers Federation case (1986): legislation directing Supreme Court to accept minister’s declaration as valid and to award costs against the BLF who were fighting deregistration held valid under plenary legislative power (note this was pre-Kable).

  • Kable: legislation struck down only for violating Ch III of Constitution.

  • Durham Holdings: NSW Parliament held not to be under any obligation to pay a just price for compulsory acquisition of all coal in NSW (unlike the Cth). Legislation valid.

Effect of Charter of Human Rights and Responsibilities act 2006 (Vic) on state legislative power

S 32 Interpretation

(1) So far as it is possible to do...

Buy the full version of these notes or essay plans and more in our Constitutional Law Notes.