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Lecture

7.1 States - Power to Amend.doc

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
State Constitutions—Power to Amend Background • State constitutions originally enacted by UK parliament o Re-enacted by individual states (all states except WA, where it was merely amended) • State constitutions continue after federation, but subject to Cth consititon: s106 Constitution • Generally the constitution is just an act that parliaments may amend by a later act: s5 Colonial Laws Validity Act 1865 o BUT State parliaments may restrict ‘manner and form’ of amendments of given sections: s5  Usually ‘passed by absolute majority’ or ‘submitted to referendum’ In Queensland • Original: Constitution Act 1867 o Supplemented by several Constitution Amendment Acts o Manner and form restrictions (1934, 1977)—certain sections cannot be amended without referendum • Old act consolidated: Constitution of Queensland 2001 o Mainly rewrote in plain English o Change: ‘guarantee of tenure’ for District Ct judges also o Sections protected by ‘manner and form’ left unchanged  Didn’t want to hold a referendum just to tidy up the act  Therefore these sections still exist as separate legislation  Printed with current constitution for convenience • Currently o Constitution of Queensland 2001 o Eight remaining sections of Constitution Act 1867 and amending acts  Constitution Amendment Acts 1890 & 1934 Andrew Trotter LWB242 2009-1 Constitutional Amendment Power Colonial Laws Validity Act 1865 (Imp) s 5 The States have: • Full power within its jurisdiction to o Establish courts of judicature and o To abolish and reconstitute the same, and o To alter the constitution thereof, and o To make provision for the administration of justice therein, and • Full power o To make laws respecting the constitution, powers and procedure of such legislature o Provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament… • Widely interpreted Taylor v A-G of Qld (1917) o Bills from legislative assembly repeatedly knocked back by legislative council o Alternative passed—if twice passed below and rejected above, can be passed by referendum: Parliamentary Bills Referendum Act 1908 o Bill put forward to abolish legislative council—rejected obviously by legislative council—put to referendum o Referendum failed o Includes power to create an alternative legislative procedure: o Includes power to dissolve the Queensland Legislative Council  Although moot point—referendum failed o Although may not include elimination of the crown: Taylor v A-G of Qld (1917) per Isaacs J at 474 • Amendment need not be express McCawley v The King [1920] PC from Qld o Industrial Arbitration Act 1916 s6(6) providing that the president of the court of arbitration (renewable 7 year term) can be appointed to SC  Designed to guarantee such a person the same rights as SC judges  BUT true effect was to authorise SC appointment for only 7yrs  Not capable of authorising SC appointment for life o Contrary constitution? s15: SC judges appointed for life during good behaviour ↔ IAA s6(6) for 7 years o No express provision to correct constitution o Rejected the argument that “it can only be altered by an Act which in plain and unmistakable language refers to it and asserts the intention of the Legislature to alter it”: 705 per Lord Birkenhead (for the court) Andrew Trotter LWB242 2009-1 Manner and Form Requirements • May impose manner and form requirements: Colonial Laws Validity Act s 5; Australia Act 1986 s 6 o Amendments that don’t conform with these requirements have no effect: AA s6 Inclusions and effect • Includes referendum, absolute or two thirds majority • Sections
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