State Constitutions

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This topic is within Principles of Public Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 426-445 (Chapter 10, sections 1, 2 and 3 to paragraph in middle of 445 ending “... the Colonial Laws Validity Act‟).

Introduction

[1]State constitutions differ from the Commonwealth constitutions because they are flexible. This means they can be amended and altered through a normal process rather than a specialised process (referendum, double majority), as the commonwealth constitution requires.

“The internal legislative power on the States, for most practical purposes, is plenary.[2]” However, there has been discussion about restrictions to State Parliaments.

Limitations on State Constitutions

Over the years, there have been three main issues which were declared to impose limitations on State Parliaments.

Limits originating from the Commonwealth Constitution

The Commonwealth Constitution includes multiple limitations to State Parliaments. These limitations can be categorised into three types:

Areas of power exclusively vested in the Commonwealth

“Areas of power exclusively vested in the Commonwealth Parliament are necessarily excised from the power of the States[3]”.

  • s 90 – the Commonwealth alone has the power to levy duties of customs or excise.
  • s 51 – some of the powers assigned by s 51 (vi – naval and military defence, xii - currency, coinage and legal tender) are made exclusive to the Commonwealth Parliament by provisions in chapter V.

Express Limitations

“Some provisions of the Constitution expressly limit the State Legislative power[4]”.

  • s 114 – States cannot impose taxes on properties which belong to the Commonwealth
  • s 117 – States cannot discriminate against residents of other states.
  • s 92 – Interstate trade and commerce must be absolutely free.
    • s 112 gives States the power to enact laws for the "inspection" of s 92, but any such laws that arise out of this qualification are subject to Commonwealth annulment.

Implied Limitations

“State legislative powers may be subject to limitations implied in the [Commonwealth] Constitution[5]

  • s 106 - States constitutions are ultimately subject to the Commonwealth Constitution.

Where the Constitution outlines a limitation on the power of the Commonwealth, this limitation will flow on through s 106 to limit State legislative power. However, this is only if it is deemed necessary to ensure the effectiveness of the limitation at the Commonwealth level.

Limits resulting from the phrase ‘Peace, Welfare and Good Government’

s 5 of the Constitution Act 1902 (NSW) declares that “The Legislature shall…have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever”.

This general phrase is used in all State constitutions, with the slight variation of “peace order and good government” in some. A debate has emerged whether that phrase implies that State legislation is subject to judicial review according to those words.

  • In other words, can judges strike down laws which are not for the ‘peace, welfare and good government’ of New South Wales as unconstitutional?

If so, the words constitute a limitation on State legislative power.

This question was discussed in Building Construction Employees and Builder’s Labourers Federation of NSW v Minister for Industrial Relations (BLF case) where it was decided that:

  • The inclusion of the phrase in question indeed granted the Courts power to strike down laws not for the ‘peace, welfare and good governance’ as unconstitutional.
  • Therefore, the BLF case established that the wording of s 5 constituted a limitation on State legislative power.

However, this view was ultimately rejected by the High Court in Union Steamship Co of Australia Pty Ltd v King which ruled as follows:

  • Since the words ‘peace, welfare and good government’ and ‘peace, order and good government’ are interchangeable, they should be viewed as having “no special semantic significance, but is simply a conventional formula used by the Imperial Parliament when it wished to confer plenary power[6]”.

Thus, the phrase does not pose a limitation to the power of the State Parliaments.

Limits based on abrogation of ‘rights deeply rooted’

[7]Some of the judgement in Union Steamship hints at the possibility that the State Parliaments are limited from abrogating rights which are ‘deeply rooted’ in either the democratic system and the Common Law. This subject was later discussed in Durham Holdings Pty Ltd v New South Wales. Whilst the case was dismissed, it did establish that:

  • The State Parliaments are limited from abrogating rights which are deemed to be ‘deeply rooted’ in the democratic system or the Common Law.
  • However, the Plaintiff failed because the right for fair compensation did not constitute a ‘deeply rooted’ right.

Thus, the inability to abrogate rights which are ‘deeply rooted’ is a limitation on State legislative power.  

J. Goldsworthy: The Sovereignty of Parliament

In this paper[8], Goldworthy argues against the idea that courts should protect these deeply rooted rights.

  • People cannot rely on courts to use morality in order to defend their rights, because there is nothing which indicates that the Judiciary has a greater moral conscience than the Parliament.
  • If anything, greater faith should be entrusted to the Parliament, since they are, after all, elected and thus represent the will of the people.
  • If the ultimate authority rested with the courts, the same predicament would ensue: court decisions which are considered unjust (and, since judges are also morally fallible, this will obviously happen sometimes) would still have to be accepted.
  • Someone must have an ultimate authority, and it is favourable to the people that the Parliament will have this authority than the Judiciary.
Editor’s thoughts: Since Parliaments are always looking for re-election, they are therefore inclined to please the people rather than distemper them in any way. The members of the judicature are appointed regardless of the opinion of the masses, and sometimes cannot be removed from office. Therefore, it would be preferable to the people to place the ultimate authority with the Parliament, which, by virtue of self interest, would be more hesitant to abrogate the people’s rights in any way.

Constitutional amendment

[9] States have the power to amend their Constitutions (subject to ‘manner and form’ requirements). This power is originally derived from s 5 of the Colonial Laws Validity Act 1865 (Imp) but is now found in s 6 of the Australia Act (1986).

Alternative Procedure of Legislation

[10]In 1908, The Legislative Council in Queensland repeatedly rejected bills passed by the Legislative Assembly, creating a political deadlock. To resolve this problem, the Parliamentary Bills Referendum Act 1908 (Qld) was passed, which allowed for an alternative legislative procedure:

  • If a bill was passed by the Legislative Assembly twice, and was rejected by the Legislative Council twice in succession, the bill could be submitted to a referendum.

In 1915, the government used this alternative legislative procedure in an effort to abolish the Legislative Council.

  • The Supreme Court of Queensland issued an injunction to put a stop to the referendum.
  • The High Court removed that injunction since the Queensland government were not going to respond to the result of the referendum until the High court determined the constitutional issues of this case.
  • The referendum resulted in a majority ‘no’ decision, yet the High Court proceeded to make a ruling anyways:
  • Taylor v Attorney-General of Queensland
    • Queensland Parliament indeed possessed the power to pass the Parliamentary Bills Referendum Act by virtue of s 5 of the Colonial Laws Validity Act.
    • The words of s 5 were not intended to give representative legislatures the power to produce anarchy by destroying the legislature.
    • The powers of a colonial legislature "are limited to determining what shall be the nature of the legislative body, what its powers of legislation, and what its methods of procedure."
    • Since the effect of the Parliamentary Bills Referendum Act was "merely to limit the power of the Legislative Council by rendering its concurrence unnecessary in the making of laws in certain circumstances", it is a law within the competence of the then existing legislature.

The Legislative council was finally abolished in 1921 (ironically, without a further referendum – the Legislative Council consented to pass the pill ordinarily).

Amending the constitution of the courts

[11]Roughly at the same time, there was an attempt in Queensland to amend the constitution with regards to the courts of judicature.

The Industrial Arbitration Act 1916 (Qld) created a new court, the Industrial Arbitration Court (IAC) and sought to ensure (under s 6(6)) that the President of that court could also be appointed a Justice of the Supreme Court of Queensland, with all the normal guarantees of such an appointment, including tenure for life. This issue was discussed in McCawley v The King:

  • The tenure for life issue became problematic because the President of the IAC was only appointed for 7 years, and now s 6(6) sought to appoint him to the Supreme Court for life.
  • Taylor’s case was express amendment…in this case parliament didn’t attempt to repeal or amend its constitution. This law is impliedly amending the constitution


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Manner and Form Requirements

Manner and form requirements “restrict the legislative powers of the Parliament by requiring that laws on certain topics may only be enacted by a special more difficult procedure[12]”. They originate from s 5 of the Colonial Laws Validity Act 1865 (Imp), and were later re-enacted in s 6 of the Australia Act 1986 (Cth).

Manner and form requirements pose a challenge to Dicey’s notion of Parliamentary Sovereignty since they could limit the power of future Parliaments.

Parliamentary Sovereignty Paradox: Inability to bind future Parliaments

The paradox of Parliamentary Sovereignty lies within the fact that a truly sovereign parliament should be able to bind future parliaments, but also not be bound by any previous ones.

The problem arises when an earlier sovereign parliament creates a ruling that binds a future one. One of the parliaments must now lose their sovereignty – If the later parliament is bound by the earlier one, it cannot be sovereign. However, if the later parliament is not bound by the earlier one, then the earlier parliament was not sovereign.

The situation we have today is that parliaments cannot restrict substantive power of future parliaments, but may impose procedural restrictions on certain legislation, which means a future parliament would have to use a more complicated legislative procedure to alter the earlier parliament’s legislation.

An example of procedural restrictions is double entrenchment.

Double Entrenchment

After the abolition of the Legislative Council in Queensland, NSW tried to do the same. This attempt failed, and in 1929 the government sought to safeguard against future attempts by amending the Constitution Act 1902 (NSW).

  • s 7A – Legislative Assembly cannot be abolished/lose its power unless by referendum.
  • sub section (6) –s 7A itself cannot be changed/repealed unless by referendum
  • This is an example of double entrenchment, a double protection on the law, and it entails that special manner and form provisions apply to any legislation attempting to repeal or amend the section or abolish the Legislative Council and this legislation itself.

A future government attempted to both abolish the Legislative Council and repeal this section, without using a referendum. Two members of the Legislative Council procured an injunction from the Supreme Court to stop both those bills. This was the case of Trethowan v Peden:

  • s 7A thus incorporated a “manner and form” requirement imposed by the law within the meaning of the proviso to s 5 of the Colonial Laws Validity Act.
  • Note: Sub-s (6) creates double entrenchment because it subjects itself to manner and form requirements.
  • If Sub-s (6) didn’t include subject itself to manner and form requirements, it could be have been repealed by an ordinary act of Parliament, and then the whole of s 7A could also have been repealed by an ordinary act of Parliament.
  • If s 7A was repealed, the Upper House could be abolished by any normal act of Parliament.

The government then appealed to the High Court, which affirmed the Supreme Court’s injunction. This case was Attorney-General v Trethowan:

  • s 5 of the Colonial Laws Validity Act 1865 (Imp) indeed empowers State Parliaments to entrench future Parliaments through manner and form requirements.
  • This should not be seen as ‘restricting’ Parliaments, as technically if it was something that the majority population really wanted, then the law would still be passed (after the referendum).
  • Rather, it is a method of avoiding rash decisions and implementing careful consideration for the passing of certain laws.

Trethowan v Peden & Attorney-General v Trethowan -

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End

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References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. Textbook, pp. 426-8
  2. Textbook, p. 427
  3. Textbook, p. 426
  4. Textbook, p. 426
  5. Textbook, p. 427
  6. Textbook, p. 432
  7. Textbook, p.433
  8. Goldsworthy, J, The Sovereignty of Parliament: History and Philosophy, Clarendon Press, 1999 in Textbook, pp. 435-6
  9. Textbook, p. 436
  10. Textbook, p. 436
  11. Textbook, pp. 438-9
  12. Textbook, p. 440
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