LAW 1504 Lecture Notes - Lecture 1: Australia Act 1986, Extraterritorial Jurisdiction, Union Company
23 May 2018
School
Department
Course
Professor
State Constitutional Law
Powers of state legislatures
STEP 1: States have plenary powers to make laws
for the peace, order and good governance of the state
under s 2(1) of the Australia Act 1986 (Cth) (Hodge
v The Queen). However, this power is subject to
particular restrictions.
STEP 2: LIMITS
LIMIT 1: Constitutional EXPRESS limitations-
state powers limited by federal constitution
• s 106: State constitution will continue
• s 107: saving of state powers
• s 109: renders inoperative any state legislation
that is inconsistent with Cth legislation
• Exclusive Cth legislative- states cannot exercise
s 51 enumerated powers
s 52 powers exclusive to the Cth
s 90 customs, excise and bounties
s 115 cant coin money
• Express prohibitions on sate parliaments
S 114 state can’t have naval and military force/
tax on Cth property
• Implied freedoms
Freedom of political communication (ACTV;
Roach; Rowe)
S courts- suitable receptacles of federal JP
(Kable)
• Limits which apply to both Federal and State
parliaments
s 92 freedom of interstate trade, commerce and
intercourse
s 117 states cannot discriminate against
residents of other states
• Constitutional IMPLIED restrictions
States cannot enact legislation which binds Cth
Inability to alter or impair the capacities and
functions of the commonwealth
(Commonwealth v Cigamatic Pty Ltd (In Liq)
(1962))
LIMIT 2: ‘Peace, welfare and good government’
• not a limitation (Union Steamship Co of
Australia Pty Ltd v King (1988)
LIMT 3: Territoriality- ability of a state
parliament to legislate outside its territory
• 3.1) Presumption that, in the absence of clear
words, the state legislation will only operate
within the territorial limits of it’s jurisdiction.
(Jumbunna Coal Mine NL v Victorian Coal
Miners’ Association (1908) (O’Connor J))
rebutted if act intends (through express words)
to operate extra-territorially
• 3.2) Ability to legislate extraterritorially:
Australia Act 1986 (Cth) s 2(1) ‘legislative
powers of the Parliament of each State include
full power to make laws for the of that State that
have extra-territorial operation.’
• 3.3)) Sufficient nexus
Necessary that there be a ‘sufficient nexus’
between the subject matter of the legislation of
the State, applied liberally: (Union Steamship
Co of Australia Pty Ltd v King (1988)
‘a law is valid if it is connected, not too
remotely, with the State which enacted it …
the test should be liberally applied … any real
connexion will suffice–remote or general–
between the subject matter of the legislation
and the State.’
Pearce v Florenca (1976) (Gibbs J).
• Relation can be- presence within the territory,
residence, domicile, carrying on business there,
or even remoter connections. ‘If a connection
exists, it is for the legislature to decide how far it
should go in the exercise of its powers.’
(Broken Hill South Ltd v Commissioner of
Taxation (NSW) (1937) 56 CLR 337, 375
(Dixon J))
LIMIT 4: ‘Manner and Form’ requirements that
must be complied with before a provision can be
altered or removed-
• 4.1 ) Purported manner and form provision…
• 4.2) Manner and form provisions are permissible
if they are ‘respecting the constitution, powers
or procedure of the Parliament of the State’:
Australia Act 1986 (Cth) s 6
• 4.3.) In order to be effective, manner and form
provisions must be double entrenched (Attorney-
General (NSW) v Trethowan)
ENSURE: the section which allows the repeal
is also double entrenched. (need two x
entrenchments, one of the law. One of the
entrenchment itself)
• 4.4) LIMITS
Does not apply if the provision ‘relates to the
substance of the lawmaking power, not to the
manner and form of its exercise’
(West Lakes Ltd v South Australia (1980)
LIMIT 5: Fundamental common law rights-
Highly unlikely to limit Parliament’s powers:
(Durham Holdings Pty Ltv v New South Wales
(2001))
LIMI 6: Repugnancy- No longer applicable
historically, invalid if ‘repugnant’ to laws of the
imperial parliament
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Step 1: states have plenary powers to make laws for the peace, order and good governance of the state under s 2(1) of the australia act 1986 (cth) (hodge v the queen). However, this power is subject to particular restrictions. S 114 state can"t have naval and military force/ tax on cth property. States cannot enact legislation which binds cth. Inability to alter or impair the capacities and functions of the commonwealth (commonwealth v cigamatic pty ltd (in liq) (1962)) Limit 2: peace, welfare and good government" not a limitation (union steamship co of. Miners" association (1908) (o"connor j)) rebutted if act intends (through express words) to operate extra-territorially: 3. 2) ability to legislate extraterritorially: Australia act 1986 (cth) s 2(1) legislative powers of the parliament of each state include full power to make laws for the of that state that have extra-territorial operation. ": 3. 3)) sufficient nexus.
