#7107 - State Legislative Power Theory - Constitutional Law

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.

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

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).

• 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.

• Does not restrict legislative power

• CHRR gives no power to invalidate an Act of Vic Parliament so provides no constitutionally entrenched protection of human rights or judicial independence

• Gives courts the power to interpret legislation consistently with human rights as long as that is consistent with the purpose of the legislation

The only limitation on the States’ plenary legislative power is a limitation on their extraterritorial (outside the boundaries of the State) legislative power.

• Cth Parliament has an unlimited extraterritorial power (s 51(29))

• For States to...