LAWS1116 Lecture 12

Legislative and Constituent Power of the States

  • State Constitutions are far less rigid than the Australian Constitution.
  • ss 106 – 108 guarentee continuance of the States, Parliaments, and Constitutions.
  • Born of UK imperial legislation dating back to their origin as colonies.
  • They *can* add manner and form requirements to make them more rigid though
  • State Parliaments able to amend their own Constitutions since the Colonial Laws Validity Act (1865)
  • Any law passed that is inconsistent with a state constitution is still valid, and automatically modifies it, as the legislature has full authority to do so unless a specific manner and form requirement prohibits it (McCawley v R)

Pre Australia Act

  • Repugnancy to Imperial laws limited State law making
  • UK could legislate for the States
  • States could not make extra-territorial laws
  • Manner and Form requirements included those in British Acts or the letters patent
  • Subject to Cth laws/Constitution (ss 106-109)

Post Australia Act

  • UK cannot legislate for the States
  • States MAY legislate extra-territorially (but not establish formal foreign relations – that power reserved to the Cth)
  • Repugnancy abolished
  • Manner and form requirements limited only to those self-imposed by the States
  • No more appeals to the Privy council
  • CLVA still applies to any law passed BEFORE the Australia Act (1986)

++Manner and Form Limitations

  • Only applies if “respecting constitution, powers, and procedures of Parliament”
  • Constitution
    • Composition of parliament – NOT the written Act
    • Does not include the qualification of members of Parliament (WA v Wilsmore)
    • Does include the method of electoral distribution (AG (WA) v Marquet (2003)) – could imply that Wilsmore is no longer good law, as it held that “constitution” is broader than just abolishing/changing houses – but did no specify just how broad.
  • Powers – legislative power and Parliamentary power (eg. contempt)
  • Procedure – Procedure for reading Bills
  • Includes referenda (AG (NSW) v Trethowan (1931))
  • If too had to realistically meet, a manner and form requirement MAY be considered an unconstitutional limitation instead and disregarded. The more likely it *could* potentially be met, the less likely this is to occur. (West Lakes v SA (1980))
  • “Comalco clauses” where extra-parliamentary approval is required to change a law are NOT binding requirements (Comalco v AG (Qld) (1976), West Lakes)
  • Requirement must be mandatory (eg. shall) and not directory (eg. may) – less definitive the wording is, the more gray area exists (Clayton v Heffron (1960))
  • Manner and form requirements MUST apply to themselves to achieve anything.
  • Plaintiff needs standing to bring action – can only challenge its constitutionality if it affects their private rights (ACF v Cth (1980))
  • If a referendum is involved, then EVERYONE in Queensland has sufficient standing (Queensland Constitution Act)
  • Courts will strike down unconstitutional law AFTER it has passed, but are not willing to grant an injunction preventing its passage (Trethowan) – may be different in Queensland, as Constitution specifically grants that authority, but has never been used.
  • s 53 (5) of the Queensland Act designed to FORCE referenda to include Queensland in a republic. Explicitly sets out ‘protected’ sections, but MAY be too broad to only apply to the ‘constitution, powers, and procedures of parliament’ – which could lead to some being able to be circumvented legally.
  • Whether manner and form requirements and potentially binding future limitations ARE valid ultimately comes down to paradoxical discussions of sovereignty – may be resolved via the use of the reconstitution theory.

The Reconstitution Theory

  • The idea that Parliament can reconstitute itself for a particular Act or purpose, and subsequently impose additional requirements on the newly reconstituted Parliament without diminishing its sovereignty.
  • Dixon and Rich suggested it in Trethowan
  • 2 of the judges in the UK fox hunting case also used the reconstitution theory in order to justify the reconstituted powers of the Queen and commons over the entire Parliament (including House of Lords).
  • If upheld (and no cases have ever been decided directly on the basis of this reasoning) it would allow Parliament to impose any manner and form requirements, not merely on those relating to the constitution, powers, and procedures of Parliament.
  • Alternative idea: Limited to applying only to ‘Fundamental’ features, which is slightly broader than ‘constitution, powers, and procedures’, but still limited to prevent manner and form requirements on the proverbial dog Act.
  • Does not apply to the Cth Parliament, as they cannot change powers or reconstitute without a referendum (s 128 limitation)

Queensland Solution (s 53)

  • if valid, entrenches ALL fundament change via referenda
  • NSW also entrenched independence of judiciary this way.

Relevant Cases

McCawley v The King (1920) 28 CLR 106

Issue: Was McCawley’s appointment unlawful without explicit constitutional change?
Held: No, it was not – the Queensland legislature had the authority to change the constitution, so passing the Industrial Arbitration Act was effectively just an indirect method of modifying it. This was initially rejected by the High Court (4:3 – Higgins and Isaacs among the dissenters, as always pre-1920) but ultimately decreed by the Privy Council.

Western Australia v Wilsmore (1982) 149 CLR 79

Issue: Did amending the Electoral Act to modify the qualifications of electors trigger the manner and form requirements involved in modifying the constitution of Parliament
Held: It only affected who could vote for the members of Parliament, not the actual constitution of Parliament – as such the manner and form requirements (absolute majority) did not apply

Attorney-General (WA) v Marquet (2003) 217 CLR 545

Issue: Were two WA Acts relating to the distribution of electors modifying the constitution Parliament (and as such, subject to the absolute majority manner and form requirement)?
Held: Yes, they were - “constitution” is broader than just abolishing/changing houses

Attorney-General (NSW) v Trethowan (Trethowan's case) (1931) 44 CLR 394

Issue: Did the Parliament of NSW have the authority to abolish the Legislative Council of NSW without requiring a referendum?
Held: No, they did not – referenda are part of manner and form requirements, even though the law has not been formally passed prior to the conclusion. (‘passed’ given a broad definition) Rich argued it introduced the electorate into the constitution of Parliament. Court also expressed reluctance to issue an injunction, instead favouring striking down unconstitutional laws once passed.

West Lakes Ltd v South Australia (1980) 25 SASR 389

Issue: Was a requirement that West Lakes Ltd approve of any legislative changes a valid manner and form requirement?
Held: Held it was not, as it was not entrenched itself (making itself subject to removal), was not likely to be met (making it an unconstitutional limitation), and involved the authority of a non-parliamentary body, which valid manner and form requirements cannot do.

Commonwealth Aluminium Corporation Ltd v Attorney-General (Qld) [1976] Qd R 231

Issue: Did a requirement involved extra-parliamentary approval of Comalco constitute a manner and form requirement?
Held: No it did not – it was a delegation of legislative authority, not a law with respect to the ‘constitution, powers or procedures’ as per the CLVA.

Clayton v Heffron (1960) 105 CLR 214

Issue: Was the requirement that a bill twice passed by the Legislative Assembly and rejected by the Legislative Council (to abolish the Legislative Council) required a free conference between the houses *first* before being put to a referendum?
Held: No, it did not, as it was too easy for either house to thwart and the requirement was not sufficiently specific to require the conference be held, only that it was attempted to be held (directory, not mandatory)

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493

Issue: Did the ACF have sufficient standing to challenge the Environment Protection Act?
Held: No, they did not – had to affect their personal rights, and not merely be unconstitutional.