4

Question 1

When did the NSW Constitution stop being flexible and why

Answer 1

1929
s 7A of Constitution Act 1902 was passed to entrench Legislative Council

Question 2

What are the two sources of power to entrench

Answer 2

s 5 CLVA 1865

s 6 AA 1986

Question 3

What does ‘constitution’ mean in regards to CLVA and AA

Answer 3

not ‘the Constitution’ but rather, how it is constituted, make up or composition

Question 4

What does ‘constitution’ include re: CLVA and AA + case

Answer 4

Number of Houses, election of members
Marquet: ‘features which go to give the Parliament and its Houses a representative character’ so likely voting and electoral resitributions

Question 5

Does ‘Parliament’ re CLVA and AA include executive?

Answer 5

No

Question 6

What did the Privy Council find in McCawley

Answer 6

The Qld Constitution could be impliedly amended in the same way as any ordinary Act, such as a Dog Act, if a later law was passed that was inconsistent with it. This was because the Constitution was not rigid or ‘controlled’

Question 7

What was noted by Lord Birkenhead in McCawley

Answer 7

‘It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian
Legislatures. GENIUS

Question 8

What did the HCA find in Trethowan (3)

Answer 8

• NSW Parliament was not sovereign, so the argument that a sovereign legislature cannot bind itself did not apply.
• A law abolishing the Legislative Council was one respecting the
  ‘constitution’ of the legislature.
• A referendum was a manner and form procedure – not the
  abdication of power to an external body.

Question 9

Facts of Trethowan?

Answer 9

The Lang Labor Government later sought to abolish the Legislative Council without a referendum by repealing s 7A by enacting ordinary legislation.

Question 10

Facts of S-E Drainage Board

Answer 10

S 6 of the Real Property Act stated that no law inconsistent with the Act could apply unless it expressly stated ‘notwithstanding the provisions of the Real Property Act’. S 6 was the entrenching provision, and the entire Real Property Act comprised the entrenched provisions.

Question 11

Facts of West Lake

Answer 11

A commercial agreement, scheduled to an Act, said that the agreement cannot be changed without the consent of the developer. A bill was prepared to amend the Act to state that the developer’s consent was not required. The developer sought an injunction to prevent the bill being introduced into Parliament

Question 12

What did the SASC find in West Lakes

Answer 12

Contracts can’t bind
Ministers or MPs to prevent them from introducing bills or voting on legislation. It also held that the requirement for consent was not a manner and form requirement, but a purported abdication of power.

Question 13

What did King CJ note in West Lakes (2)

Answer 13

Even a special majority might be invalid if it were so high and made a provision so difficult to amend that it appeared to be an attempt to deprive Parliament of its power to do so.
A referendum requirement is easily seen to be a manner and form provision because it is confined to obtaining the direct approval of the people whom the ‘representative legislature’ represents.

Question 14

Facts of Marquet

Answer 14

WA electoral law about redistributions contained an entrenching provision that it could not be amended except by a law passed by an absolute majority in each House.

Question 15

Why did the Court agree to hear Marquet before it was passed as a bill

Answer 15

It agreed because of the public interest in certainty in electoral laws and validly elected Parliaments and because all parties agreed to this.

Question 16

What did the Court hold in Marquet?

Answer 16

The amending bill concerning electoral
distributions was one with respect to the constitution, powers or procedure of Parliament. It went to the features that make the Parliament representative.

Question 17

Where was the amending law tests applied incorrectly (2)

Answer 17

Kirby J in Marquet and the Court in South Eastern

Question 18

What has the court about s 106 of the Constitution as a potential source of entrenchment (2)

Answer 18

McGinty Gummow J: If a manner and form provision is not made binding by a higher
law, such as s 6 of the Australia Acts, then s 106 gives it no greater force.

Marquet: s 106
was ‘subject to this Constitution’ and therefore subject to s 51(xxxviii), which supports s 6 of the Australia Act 1986 (Cth).

Question 19

What is the Ranasinghe principle

Answer 19

Privy Council took the view that ‘a legislature has no power to ignore
the conditions of law-making that are imposed by the instrument which itself regulates its power to make law’. It reached this conclusion in relation to the Constitution of Ceylon, a unitary state, to which the CLVA did not apply.

Question 20

Does Ranasinghe apply? (2)

Answer 20

Gummow J in McGinty confined Ranasinghe to: ‘‘the propositions that a manner and form provision which appears
in the written constitution of a unitary State where no paramount law, such as s 5 of the 1865 Act, remains in force, continues to place a restraint upon law making, and that the question of the observance of the restraint is justiciable’.

Marquet: AA leaves no other room in a federation