AMENDMENT OF STATE CONSTITUTIONS - MANNER AND FORM

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1 LAWS5007 Public Law Introduction to public law AMENDMENT OF STATE CONSTITUTIONS - MANNER AND FORM Issue: can a provision be amended only by abiding by manner and form provisions? State legislation/constitutions By virtue of s 5 CLV [now s 6 Australia Acts], the legislature has full power to amend the State Constitutions by legislating inconsistently with it [doctrine of implied repeal]: McCawley v the King - But s 5 cannot be used to abolish the representative character of Parliament: Taylor v A-G of QLD Entrenched provisions must relate to the Constitution, powers and procedures of Parliament. - This extends to features which give Parliament a representative character, such as electoral distribution: Marquet s case Entrenching provisions [manner and form provisions; e.g. special majority or referendum]: - Must themselves be protected w/ manner and form requirements or they can be repealed by amending legislation: Trethowan s case - Cannot purport to prescribe the contents of future acts: South-Eastern Drainage Board - Cannot seek to abdicate legislative power: West Lakes v SA Commonwealth legislation Can Cth legislation use manner and form provisions? Possibly. Entrenching provisions: - Legislatures cannot ignore conditions of law-making imposed by the instrument that which regulates its lawmaking power: Ranasinghe i.e. Constitution prescribes an absolute majority, so can t have a special majority as a manner and form requirement for amending Cth legislation 1

2 The legislature and representative democracy REPRESENTATION OF PEOPLE IN THE LEGISLATURE Issue: does legislation purport to override system of representative democracy? Representative democracy is a principle implied from the structure and text of the Constitution; esp. the phrase directly chosen by the people in ss 7, 24: Nationwide News v Wills; Australian Capital Television v Cth; Theophanus v Herald and Weekly Times Parliament given broad scope to determine the system of representative democracy: McGinty s case; Mulholland v AEC; Langer - Can determine electoral system; size of electoral divisions; the franchise: McGinty No overlap rule and requirement of 500 members for a political party within Parliament s scope: Mulholland - No constitutional requirements of electorates of equal size: McKinlay s case But there must be quantitative equality b/w states equal number of senators for each state: s 7 Constitution The Parliament may make laws increasing or diminishing the number of senators for each State, but must maintain equal representation of the original States at no less than six: s 7 - Parliament can choose whatever method of voting, provided that the method allows free choice (thus preferential voting is ok): Langer - Parliament can allow representation to Territories in either Senate or House of Reps: The Parliament may make laws allowing the representation of a Territory in either House of Parliament to the extent and on the terms which it thinks fit: s 122 ss 7 and 24 must be read as interim provisions until Parliament decided to allow representation to a Territory under s 122 Issue: is a particular person eligible for election? Disqualifications: Australian Constitution s 44 2

3 - Allegiance to, or subject or citizen of, a foreign power UK is a foreign power for the purposes of this section: Sue v Hill A person must take reasonable steps to divest themselves of foreign allegiance: Sykes v Cleary - Convicted of treason - Convicted of a Cth or State offence punishable by imprisonment for one or more years - Undischarged bankrupt or insolvent - Holding any office of profit under the Crown Public servants, including teachers, are disqualified: Sykes v Cleary - Holding any pension payable during the pleasure of the Crown from Cth revenue - Having any direct or indirect pecuniary interest in any agreement with the Cth Public Service otherwise than as a member of an incorporated company consisting of more than 25 persons Restrictions on freedoms allowed if it is reasonably appropriate and adapted to serve a legitimate end Political communication Offence provision prohibiting the publishing of any matter or thing with the intention of encouraging persons to fill in a ballot paper otherwise than in accordance w/ prescribed manner = appropriate and adapted to a legitimate legislative purpose: Langer - Brennan CJ: the restriction on freedom of speech imposed by the offence provision to protect the preferential method of voting, not to repress freedom of political discussion - Toohey and Gaudron JJ: offence provision operated to prevent conduct intended to encourage voters to vote in such a way that their votes would not be effective or as effective as the votes of other voters (thus adapted to the end of making elections as representative as possible) Issue: is legislation which purports to restrict freedom(s) valid? VOTING AND THE RIGHT TO VOTE Issue: does a person have a right to vote/are they eligible to vote? Right to vote implied in Constitution from ss 7 and 24 (Senate and House of Reps directly chosen by the people) 3

4 - NB: s 41 ( No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall be prevented by any law of the Cth from voting at federal elections ) a dead letter; does not protect anyone s right to vote s 41 only applied to a person who acquired the entitlement to vote in a State election before the enactment of the uniform federal franchise in 1902: R v Pearson; Ex Parte Sipka Right to vote expressly provided in s 93 Commonwealth Electoral Act - s 245(1) makes federal parliamentary voting compulsory; s 240 specifies preferential voting Eligible for voting: Australian citizens over 18 Ineligible for voting: Prisoners serving a 3 year sentence or more A person of an unsound mind A person convicted of treason Permanent residents Citizens who go overseas for more than 6 years Issue: is legislation which purports to disenfranchise someone valid? Limitations on the right to vote must be for a legitimate end, and reasonably appropriate and adapted to achieving that end, which is also consistent w/ the maintenance of representative democracy: Roach - Removing right to vote from all prisoners does not serve purpose of democracy the blanket ban is arbitrary, as mere imprisonment does not necessarily indicate serious criminal conduct: Roach - Disqualification on the basis of race, religion, gender not a legitimate end consistent w/ the maintenance of democracy: Roach Limitations on right to vote must not undermine the aim of making elections as expressive of popular choice as possible: Rowe 4

5 Judicial power JUDICIAL POWER Issue: is judicial power being exercised? Indicia of judicial power: Decisions involve a controversy : Huddart v Moorehead - i.e. a matter - Not a hypothetical opinion/abstract question of law Decisions are enforceable: Brandy v HREOC; FCT v Munro - In Brandy, registration of the determination made by the HREOC w/ the Federal Court converted the nonbinding administrative determination into one that was binding, authoritative and enforceable Decisions are binding and conclusive: Momcilovic; Huddart v Moorehead - In Momcilovic, the Supreme Court s making of a declaration of inconsistent interpretation of the Vic Human Rights Charter held not to involve the exercise of judicial power - it sets down no guidance for the disposition of future cases involving similar principles of law, it has no legal effect upon the validity of the statutory provisions which is its subject, and is not a declaration of rights Decisions regard existing rights and duties: Thomas v Mowbray - Rights can relate to life, liberty, property: Huddart v Moorehead - The function of identifying a fact on which legislation will operate to create rights and liabilities is nonjudicial, but the function of deciding facts so that a person s rights can be determined is judicial: FCT v Munro Established legal standards applied (in accordance w/ judicial process): see Tasmanian Breweries case Historical considerations: - Thomas v Mowbray: although control orders create new rights and duties, there is historic precedent for the exercise of such powers by judges (e.g. AVOs) Not judicial power: Novel functions (e.g. imposing new rights and obligations); broad discretion: Tasmanian Breweries case - In Tasmanian Breweries, the power to declare agreements contrary to public interest, rendering the agreement unenforceable, and power to make orders against traders seeking to implement such agreements, were non-traditional rights Judge put in position of political/legal adviser: Wilson Issue: is the exercise of judicial power valid? s 71 = judicial power vested in HCA, fed courts, and other courts (State courts) of parliaments choosing 5

6 Cth parliament cannot vest judicial power in a court outside of Ch III: Wheat case; Waterside Workers Federation - Because of strict separation of powers at fed level b/w the fed judiciary and fed exec and legislature: Wheat case NB: s 64 Cth constitution = no constitutional separation of legislature and executive Defining features of a Ch III court: - Called a court, not a tribunal - Members appointed as per s 72 of the Constitution (giving them tenure meaning they cannot be removed, only mandatory retirement with age). If person presiding over tribunal does not have judicial tenure, then it is not a Ch III court: Waterside Workers Federation - Primary function is judicial (see above re judicial power) Issue: is legislation affecting judicial power valid? (i.e. giving judicial power to non-ch II court/undermining institutional integrity of court) Ch III courts cannot exercise non-judicial power: Boilermakers case - Exception: persona designata Legislation which purports to confer onto a court a function which undermines its institutional integrity = invalid: Kable/incompatibility principle - No strict separation of powers in State Constitutions, but incompatibility principle applies b/c of integrated court system (w/ HCA the highest court of appeal; the ability to vest state courts w/ federal jurisdiction pursuant to s 77): Wainohu Undermining of institutional integrity can = compromising court s independence and freedom from political control; undermining of public confidence: Totani Legislation which purports to remove inherent power of judicial review from a court = invalid (b/c the supervisory role of the Supreme Court is a defining characteristic of it): Kirk Decisional independence/procedural fairness The exec power to declare an association a criminal organization not invalid, b/c this does not decide or punish the criminal guilt of a person that still remains a matter for criminal proceedings: Kuzcborski - However, decisional independence of a court is impaired if [control] orders [for members of declared organizations] are to be imposed without any judicial determination that the D has engaged or may engage in criminal conduct: Totani Power to receive/hear/determine ex parte applications for restraining/control orders = invalid, b/c it directs the court as to the manner in which it exercises its jurisdiction, and deprives the court of the power to ensure fairness b/w the 6

7 parties to a dispute: International Finance Trust v NSW Crime Commission - NB: In Pompano, the relevant legislation allowed the Assistant Commission to obtain a declaration from the SC that information was criminal intelligence and the Finks were a criminal organisation ex parte in a closed hearing. Procedure was saved from invalidity only because of the SC s inherent jurisdiction to stay an application where practical unfairness becomes manifest. - However, [bikie] legislation that does not REQUIRE a court to lay down a new norm of conduct, or give effect to an executive or legislative decision, but instead to find facts and impose punishment as normal = valid: Kuzcborski The mere fact that a court is applying legislation that reflects the policy of the executive does not mean the executive is dictating to the courts: Kuzcborski [Bikie] legislation which imposes no duty on eligible judges to provide reasons when declaring application to make or revoke an application = invalid, because it makes judicial review more difficult and is incompatible w/ the institutional integrity of the court: Wainohu JUDICIAL INDEPENDENCE AND THE FUNCTIONS CONFERRED ON JUDGES Issue: has a non-judicial function been validly conferred upon a judge? There is nothing in the Cth Constitution that prevents judges, in their personal capacity, from being conferred with and performing administrative or executive functions: Drake v Minister for Immigration & Ethnic Affairs - Judges particularly well-suited for performing sensitive tasks such as issuing phone tap warrants: Hilton v Wells Two requirements (Grollo v Palmer): 1. Consent (of the judge) 2. Compatibility with the integrity of the judiciary (i.e. no interference with the judge s ability to perform judicial functions/properly discharge the judiciary s responsibilities) Incompatibility w/ judicial independence: - If the non-judicial function is closely connected with the Legislature or Executive, it must be performed independent of any instruction, wish or advice of the 7