LAW 2501 Lecture Notes - Lecture 2: Australia Act 1986, Good Governance, Harry Gibbs
23 May 2018
School
Department
Course
Professor
VALIDITY
Federal Legislative Power
❖ s 1 C*: Cth Parliament has legislative power
❖ Fed Parliament has power to enact laws for the
peace, order and good government of the Cth with
respect to certain subject matters contained in ss
51 & 52
➢ ss 51 & 52 are ‘subject to this constitution’ >
no legislative power to override constitution
➢ parliament cannot define what the words in ss
51 & 52 mean; court interprets meaning
State Legislative Power
❖ s 5 SA C*: The legislative council & house of
assembly have power to make laws for the peace,
order & good governance of SA
➢ ‘peace, order & good government’ = words of
limitation
❖ s 106 Cth C* saves states C*, subject to that C*
❖ s 107 saves power of state parliaments, unless it is
by this C* exclusively vested in the Cth parliament
or withdrawn from the State parliament
❖ s 109 resolves inconsistency between Cth & State
laws- Cth prevails
❖ Australia Act 1986: States can legislate extra-
territorially as long as there is a connection
between the extraterritorial matter and the enacting
state
PROCESS TO DETERMINE VALIDITY OF
LAWS (repeat for each section under examination-
section by section- one section may be within power
and other may not- different sections may be
supported by different heads of power)
START: clearly determine and state which section of
the ‘problem’ legislation applies to the question
State is Cth or State law under examination
IF STATE
STEP 1: According to s 5 of the Constitution Act 1943
(SA), ‘states have plenary legislative power’. The
Commonwealth Constitution ss106-107 ‘saves’ these
powers subject to the Commonwealth C*.
see if limitation applies above (power is exclusively
Cth ss 51/52, inconsistent law s 109)
Given this, the State has the power to make laws for
any area including…
IF CTH
1. FIRST: C* vests the Cth parliament with power to
legislate with respect to…
1. s 52: for the peace, order and good
government of the Cth with respect to an
enumerated head of power
- s 51(xx) corporations
- s 51(xxix) external affairs
-s 51(vi) defence
-s 51(ii) taxation
2. s 51: for the peace, order and good
government of Cth with respect to three
exclusive powers
-s 52(i) seat of Govt
-s 52(ii) public service matters
-s 52(iii) other matters declared by C* to be
within exclusive power of Parliament
3. s 122: to make laws for the government of any
territory surrendered by any state and
accepted by the Cth
-state power + surrender + acceptance
THE ISSUE IS whether parliament had the power to
pass the law under the C*? if the law was made with
respect to one of the heads of power, it is valid. If not
with respect to the head of power, invalid.
Undertake two stage process outlined by McHugh J in
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, 369.
Affirmed in Grain Pool of Western Australia v
Commonwealth (2000) 202 CLR 479, 492.
STEP 1: Interpret the applicable head of power
(GO TO NOTES ON EACH HEAD OF POWER –
tax pwr has its own process)
STEP 2: determine whether legislation in question is
made with respect to the head of power
1. ‘Firstly, the legislation must be analysed to
determine the true character of the law. This is
done by reference to the rights, powers,
liabilities, duties and privileges that it creates.’
Re Dingjan; Ex parte Wagner (1995) 183 CLR
323, 369 (McHugh J);
a. Multiple characterisations
i. Law can have two characterisations: so
long as the law can fairly be characterised
as one with respect to a subject matter
within Cth power, it does not matter that it
might also be characterised as bearing
upon some other subject matter that is not
within the power Fairfax v FCT;
ii. So long as the remaining elements, which
do not fall within the power, are not of
such significance that the law cannot fairly
be described as one with respect to one or
more of such grants of power, the law will
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Federal legislative power: s 52: for the peace, order and good. S 1 c*: cth parliament has legislative power. Fed parliament has power to enact laws for the peace, order and good government of the cth with respect to certain subject matters contained in ss. Ss 51 & 52 are subject to this constitution" > no legislative power to override constitution. Parliament cannot define what the words in ss. S 5 sa c*: the legislative council & house of assembly have power to make laws for the peace, order & good governance of sa. Peace, order & good government" = words of limitation. S 106 cth c* saves states c*, subject to that c* S 107 saves power of state parliaments, unless it is by this c* exclusively vested in the cth parliament or withdrawn from the state parliament. S 109 resolves inconsistency between cth & state laws- cth prevails.
