7.1 Introduction
In examining the state constitution we examine possible restrictions on state legislative power. We examine whether the following are restrictions on state legislative power.
1 The provision stating the legislature has power to make laws for the “peace welfare and good government of NSW in all cases” s5 Constitutional Act 1902 (NSW) AND s5 Colonial Laws Validity Act (imp) AND s6 of Australia Act
2 Common law rights that go so deep (doctrine of fundamental rights) that even parliament cannot be accepted by the courts to have destroyed them (FRASER V STATE SERVICES COMMISSION)
3 Amending State Constitution 4 Manner and form requirements
7.2 Peace Welfare and Good Governance
(p428)Does the words ‘Peace, welfare and good governance’ convey limited or limitless powers?
Implies Limitations Does Not Imply Limitations
BUILDINGG CONSTRUCTION EMPLOYEES & BUILDER’S
LABOURERS FEDERATION OF NSW v MINISTER FOR INDUSTRIAL RELATIONS ((1986) BLF CASE (p429)
Courts have to power to construe whether a piece of legislation was really for the “peace welfare and good government”. These words do not confer plenary power and is not unlimited in scope, instead it is a binding limit. (Street CJ)
If the legislation was not for the “peace, welfare and good government of that state” then the statue is regarded as unconstitutional. (Street CJ)
Reference to these words conferring plenary power are to indicate that States are not mere delegates of the British Parliament and this can delegate their own power. (Street CJ)
UNION STEAMSHIP CO OF AUSTRALIA PTY LTD v KING (1988) (p432)
Law in this area was left unsettled until the HC concluded that those words did no confer jurisdiction on the courts to strike down legislation on the ground that in the court’s opinion the legislation does not promote or secure “peace welfare and good governance”.
Therefore it has been conclusively decided that these words do not imply limitations on
parliamentary sovereignty.
7.3 Deep Common Law Rights
(p429) Although this argument was raised in BLF case the statue in question did not infringe this so called deep common law right, hence the issue wasn’t conclusively decided.
However there is a lack of authority that demonstrates situations where deep common law rights has even held to invalidate a state. Street CJ was uncertain about this doctrine but not expressly reject it.
Authority to support rejection of ‘deep common law rights’ as limitations on state power
BLF CASE– Kirby P (p431) Agreed with Lord Reid in BRITISH RAILWAYS BOARD v PICKIN (1974)
where he rejected the notion that any right run “so deep” that no legislature could invade it because such an idea is obsolete since the supremacy of Parliament was finally demonstrated by the Revolution of 1688. Also it has been an unbroken tradition that
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parliament has always respected the democratic will of the people.
Kirby warned the risk of such doctrine: if judges can apply this doctrine to overrule parliament it will be more dangerous than parliament legislation. Once we allow judges to do this there will be no limit on judicial power and no one really knows what “deep common law rights” are, it is an issue for the judges to decide. It is unfair for judges to substitute his opinion for that of elected representative especially since perceptions of “deep common law rights “ may vary in place and time (lack of legitimacy).
HC - UNION STREAMSHIP CO OF
AUSTRALIA v KING (1988) (p432) Was enthusiastic about this doctrine. However they did not conclusively decide on the issue and left the issue open for debate.
HC – DURHAM HOLDINGS v NSW (2001)
(p434) The argument that land owners in the case’s right to receive “just”
or “properly adequate” compensation is such a “deeply rooted right” as to operate as a restraint upon legislative power was raised. This argument was rejected by the HC and refused special leave.
Gaudron, Mchugh, Gummow & Hayne JJ: argued that
fundamental rights principle if accepted would in effect modify the constitutional arrangements proposed by s106 of the constitution.
Therefore overall ‘deep common law rights’ cannot be held to be an approved limit on state legislative power
DURHAM HOLDINGS v NSW (2001) p434
Kirby argued the state of the commonwealth so it derives its constitutional status from the Federal constitution
S107 of the constitution shows the state parliament must be of a kind appropriate to a state of the commonwealth and to a legislature that can fulfil functions envisaged for it by the constitution.
Ultimately a ‘a law of state’ made by parliament could only be ‘law’ of a kind envisaged by the
constitution. Hence extreme laws (e.g. ones that go against ‘deep common law rights’) might fall outside that constitutional presupposition.
Commentator’s support on rejection of ‘deep rooted rights doctrine’
Goldsworhty (p435)45 rejects the argument that some laws would be unjust or undemocratic for such a doctrine to apply because courts do not possess the power to protect deeply rooted rights in a democratic system of government against abuse by parliament. ( e.g. killing blue eye babies or removing large
population’s right to vote.)
He pointed out that there is a fatal flaw in such an argument because it treats moral & legal authority and moral & legal obligation as equal. It is unreasonable to believe a morally fallible legislature could have unlimited moral authority to enact laws and that people would have a moral obligation to obey whatever laws it enacts no matter how undemocratic or unjust
Therefore in reality parliament is unlikely to impose unpopular statues because they will be voted out.
Although it’s necessary for some institution to have ultimate authority to decide any legal questions that may arise, it is better for that institution to be parliament rather than judges. The safeguards are illusory
45 The sovereignty of Parliament: History and Philosophy
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because there are no real limits; to limit a body’s power it must be transferred to another body but that may no prevent abuse.
7.4 Amending State Constitution
(p436) Each State Parliament has power to amend the constitution of its State, subject to ‘manner and form’
requirements.
At Federation 1901 Australia Constitution Act ensured that in:
s106 that in each State the Constitution Act of the former colony would ‘continue as at the establishment of the Commonwealth’.
s107 ensured Its continuance was ‘subject to this Constitution’., and to alteration ‘in accordance with Constitution of State’.
What powers were removed from States upon Federation?
Those exclusively vested in Commonwealth (e.g s90) & implied limitations constitution.
S114 – raising military without Commonwealth consent; taxing commonwealth property
S115 – coining money
S117 – laws discriminating against residents of other states
S92 – trade commerce and intercourse shall be free Can state governments amend state constitution?
TAYLOR v ATTORNEY-GENERAL OF
QLD (1917)- HC p436 Barton J: bill to abolish Legislative Council is at variance with constitution as it is not a bill passed under the constitution even if constitution contains power to amend the constitution through ordinary legislation.
In this case however there was antecedent legislation (s5 Colonial Laws Validity Act) which authorised amendments in very wide terms and thus extended the ordinary constitutional power. However CLVA might not reach to altering the representative character of the legislature (i.e. to dictatorship)
Issac J: Agreed with Barton J but with 2 exceptions. (1) any attempt to eliminate the crown and (2) the representative nature of legislature but you can change the structure (bicameralism unicameralism)
MCCLAWLEY v THE KING (1920) –
Privy Council p439 Lord Birkenhead: distinction between controlled and uncontrolled constitution. The latter can be modified entirely at any time with ordinary statute (don’t need to pass act to repeal). The former contains some mechanism which must be followed prior to change or some other restriction on change. (Australia is controlled constitution)
7.5 Manner and Form Requirement
(p440) Manner and form requirements restrict legislative powers of Parliament by requiring that laws on certain topic may only be enacted by a special and more difficult procedure.
Source of the requirement: This restriction originated from the proviso to s5 of Colonial Laws Validity Act 1865 (IMP) which provided that ‘every representative legislature... full power to make laws respecting the Constitution, Powers and Procedures of such Legislature; ... such laws shall be passed in such a Manner &
Form as may from time to time be required by any Act of Parliament” .
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The Australia Act 1986 (cth) has similar proviso enacted in s6 about ‘manner & form’ is what makes manner and forms binding rather than s6 of CLVA since commencement of the Act.
“a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedures of the Parliament of the State shall be of no force or effect unless it is made in such a manner and form as may from time to time be required by a law made by the Parliament, whether made before or after the commencement of this act”
Manner & Form may present double entrenchment (example): Following the abolishment of QLD upper house by QLD Labor Party, LP of NSW attempted to follow but after its initial failure the government created a double entrenchment.
S7A Constitutional Act 1902 (NSW) – states the legislative council or senate cannot be abolished without a referendum AND
S7A(6) stats that s7A cannot be amended or repealed without a referendum. Makes intention of parliament clear.
How does the ‘double entrenchment’ work?
TRETHOWAN v PEDEN (1930)
Supreme Court NSW (p441) If s7A didn’t have as7A(6) then it’s not double entrenched, instead the whole of s7A could be repealed. Once s7A is repealed the legislative council could be abolished by ordinary Act of Parliament. Alternatively, parliament does not even have to first repeal s7A to abolish the legislative council. Instead parliament cans simply legislate to abolish the legislative council so that the legislation is inconsistent with s7A, where it would impliedly repeal s7A.
However due to s7A(6) we had a different result. The ss cannot be repealed by ordinary act of parliament but only in manner prescribed by s7(A) i.e. referendum. Therefore s7A incorporated a manner & form requirement imposed by a law within the meaning of the proviso of s5 Colonial Laws Validity Act 1865.
ATTORNEY GENERAL (NSW) v
TRETHOWAN (1931) HC (p441) When the TRETHOWAN V PEDAN case appealed to HC, HC affirmed SC’s reasoning by decision of 3:2.
Dixon J explains why the manner & form requirement applies:
Parliamentary sovereignty cannot be applied to the legislature of NSW because it is not sovereign. Instead its law derives from imperial parliament who confers power on the NSW legislature and determines the extent of those powers and conditions which govern their exercise.
The limitations on the legislature of NSW derives directly or indirectly from the sovereign of the Imperial Parliament, due to their sovereignty to confer the legislature of NSW as much or as little rigidity of its constitution as might be proper.
Rich J’s explanation: from MCCAWLEY’S CASE (1920) it was reaffirmed that NSW has the power to regulate its own constitution, such a power would naturally extend to enactment of safeguards to prevent hasty action or straining improvident.
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