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8.2 States - Peace, welfare and good government.doc

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Queensland University of Technology

Peace, Welfare and Good Government • State constitutions confer a general power upon the state parliaments o Cf. heads of power for Cth o For “peace, welfare and good government of the States in all cases whatsoever” • State parliaments have plenary and ample powers (as the imperial parliament) subject to express and implied limitations: Powell v Apollo Candle (1885) • Facets o Power to amend constitution o Lack of enforceable separation of judicial power 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 o Cf. originally had to be expressly overturned: Cooper v Commissioner of Income Tax (1907) 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 Andrew Trotter LWB242 2009-1  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) No Express Separation of Judicial Power • Separation of judicial power not entrenched, therefore acts interfering with judicial process: o Legislature encroaching on judicial power: Building Construction Employees and Builders’ Labourers’ Federation of NSW v Minister for Industrial Relations (1986) (act passed during legal proceedings to determine the decision by a minister to cancel union registration—act dictated that the cancellation of the registration of the union must be accepted as valid, regardless of the opinion of the court—Kirby P accepted that the act was a breach of the separation of powers but it didn’t matter)
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