State Constitutions - Public Law

State Constitutions

Page 478-496

Constitution Act 1902 (NSW):

• State constitutions came from the British Imperial Parliament enactments. In 1885 NSW got its own constitution. 1850 was a general Constitution for all states.

• Section five states that the legislature shall have the power to make laws for the peace, welfare and good governance of NSW in all cases.

• This conferred the state with plenary legislative power. That is complete power or wide ranging absolute power.

• Section two of the Australia Act 1986 also gives this power but was used to get rid of extraterritoriality.

• The question is whether this plenary power is actually a restriction on government if something is not good government.

Page 479

Building Construction Employees and Builder’s Labourers Federation of NSw v Minister for Industrial Realtions (BLF case) (1986)- Is section five of the NSW Constitution a limit to state legislating powers or does it confer plenary power?

Facts:

• BLF were dismissed in the NSW Supreme Court.

• They appealed but before the appeal was heard, the NSW Parliament passed the Builders Labourers Special Federation (Special Provisions) ACT 1986 (NSW).

• The Act was designed to remove issues arising in the union’s Supreme Court hearing. The government wanted to prevent any adverse determination.

• This amounted to legislative judgment, not a judicial judgment.

• Remedy sought:

• BLF wants the court to find the government’s BLF Act 1986 unconstitutional under the NSW Constitution section five in which the government must make laws for the peace, welfare and good government of NSW. They want the act to be void.

Prior Proceedings:

• The plaintiffs lost in the NSW Supreme Court under Lee J.

• They are now appealing to the NSW Court of Appeal under Street CJ, Kirby P, Glass JA, Mahoney JA and Priestly JA.

Legal Issue:

• The NSW court of appeal must decide if the actions of Parliament were invalid because section five of the NSW constitution may present a limit in how the government can legislate.

Outcome:

• BLF lost. Two judges disagreed. Two believed that the courts could strike down Parliamentary acts. One reserved judgment.

Legal reasoning:

• Street CJ reasoned that NSW parliament does not have unlimited legislative power. Their terms in section five limit their power in a binding way and judges can strike down legislation which is not for the peace, welfare and good government of the people. In Bonham’s case, Coke argued that the courts will strike down Parliament acts if they are repugnant and impossible to perform. These words present apprehension on the part of judges. 350 years later, Robin Cook argued that some common laws co so deep that the courts will not allow Parliament to go against them. The Courts must prevent tyrannous excesses and limit government power.

• Kirby P disagreed. He reasoned that since 1688 revolution, Parliament has had supremacy. Tradition has repeatedly reinforced Parliament expressing the democratic will of the people. The courts cannot protect the people from oppressive Parliamentary majorities. If legislation is clear, the judge cannot substitute his own opinion for that of elected parliament. The idea of basic rights varies and if judges could go against Parliament, they would have no limit to their power. Dicey argued that Parliament is only sovereign in its words expressed in its acts. The chief protection for people must lie in the democratic nature of the parliamentary institutions. The words in section five do not provide a limitation on legislature. Whether there should be more legal protection is a matter of debate in the community.

Ratio Decidendi:

• The NSW parliament does have plenary powers conferred by section five of the Constitution.

Page 483

Union Steamship co of Australia pty ltd v King (1988) – The Court further shows that section five gives the government plenary power. They go against Street CJ’s reasoning.

Facts:

• The court went against Street CJ’s reasoning.

• The words in section five were seen to have no special semantic significance. They were just a formula used by Parliament to confer plenary power on the NSW government.

Outcome:

• Union steamship co lost

Legal reasoning:

• The judges reasoned that the state plenary power was established after a series of Privy Council decisions. They decided that Colonial Parliaments have the same legislative power as Imperial Parliaments. The words are not that of limitation. Just as the UK courts do not invalidate the laws made by the NSW parliament, neither is the NSW Parliament susceptible to judicial review on these grounds.

• They refused to explore the question of whether the exercising of legislative power is subject to restraints by reference to rights deeply rooted in our democratic system.

• The words order and welfare are show to interchangeable. They are a formula and not a limit.

Page 484

Durham Holdings Pty Ltd v NSW (2001) – Shows that the states are not bound by rights protected in the Constitution and that the Parliament can legislate as it wishes without considering these rights.

Facts:

• NSW parliament put coal in their name (vested) in certain NSW land, through the Coal Acquistion Act 1981 (NSW). It provided for payments to land owners.

• In 1990 the amount of payments was capped. This denied full compensation.

• Under Commonwealth acquisition, their statute would require under section 51(31) of the constitution that such an acquisition was made on “just terms”.

• Durham, a mining company, argues that the NSW Parliament has not provided fair compensation and is as such exceeding its legislative powers. The scheme is invalid.

Remedy sought:

• Durham wants the government of NSW to pay proper compensation because it has overstepped its legislative powers.

Prior Proceedings:

• The Court of Appeal rejected Durham’s claim.

• The plaintiff is requesting leave to appeal to the High Court under Gaudron, McHuch, Cummow, Hayne, Kirby and Callinan.

Legal issue:

• Is the right to receive ‘just’ or ‘properly adequate’ compensation a deeply rooted right as to operate restraint upon the legislative power of NSW Parliament.

Outcome:

• Durham lost. Appeal refused because the argument would have no prospect of success.

Legal reasoning:

• Gaudron, McHugh, Gummow and Hayne reasoned that the plaintiff was unable to show any evidence where such a principle of just compensation as a deeply rooted right existed. To create this limitation, new text would have to be introduced into the Constitution. Some limits on the exercise of legislative powers does exist that are not spelled out in the constitution but this limitation is not one of them.

• They left the fundamental rights in the Constitution question open.

• Callinan reserved his position.

• Kirby J dissented by suggesting limitations from different sources can arise. Section 197 of the Constitution gives each state the right to a Parliament as a requirement. Certain rights may be protected from extreme laws but the injustice to the plaintiff falls outside this instance.

Ratio decidendi:

• The right to receive ‘just’ compensation does not create a restraint on the legislative power of NSW parliament.

Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999):

• Courts do not have the power to protect deeply rooted rights in the democracy against Parliament’s abuse.

• There is no extreme case limit like Kirby J argued.

• It is a worthless argument to suggest Parliament will always pass just statutes or that the courts will never be justified in obeying wicked statutes.

• If Parliament started enacting absurd laws, it makes parliamentary sovereignty an absurdity with no rational justification.

• He argued that instead that it is a practical necessity that some institutions have ultimate power to decide any legal question that might arise. Otherwise laws would be recommendations and not resolve disputes.

• If judges had ultimate authority there would still be occasional injustices.

• There is a chain of legal authority and the availability of methods to overrule unjust decisions at some point come to an end. Whichever ultimate authority there is must be trusted to exercise power responsibly. There can be no power without trust.

Constitutional Amendment:

• In section five of the Colonial Laws Validity Act 1865 every state has flexible, not rigid constitutions. They can re-act and re-write their own constitution Act in a form required.

• In 1908 there was political deadlock between the Legislative Assembly (lower house) and the Legislative Council (upper house) in Queensland Parliament.

  • The Parliamentary Bills Referendum Act 1908 was enacted to deal with future deadlocks.

  • If a Bill was twice passed by one house and rejected by the other house, it could have a referendum and if approved receive royal assent. This was another way to get laws through.

Page 487

Taylor v Attorney General of Queensland (1917) – This case looks at the...