Is it possible to legislate in Victoria to confer the jurisdiction to hear and determine any
legal disputes which may arise from the report of the IIHQ in the Victorian Minister for
Health? If so, what legislative procedure must be followed? If not, why not?
In order to confer jurisdiction away from the Supreme Court of Victoria, and toward the
Victorian Minister for Health, Andrew Dann would have to attempt to pass a Bill amending
Section 85 of the Victorian Constitution. This is because Section 85 confers supreme
jurisdiction in or in relation to Victoria in all cases whatsoever to Supreme Court of Victoria.
This provision gives the Supreme Court of Victoria unlimited jurisdiction, meaning it would
have jurisdiction to hear the IIHQ report.
Although the basal position is that the Victorian Parliament has plenary legislative power to
make laws in all cases whatsoever under Section 2 of the Australia Act 1987 (Cth), Section
85 is subject to a binding manner and form provision contained in Section 18(1B)(k). This
provision requires an absolute majority in both the Legislative Assembly and the Legislative
Council before a Bill can receive assent. Given that this provision is self-entrenched and is
linked to the higher authority of the Australia Act 1987 (Cth), this is a binding restrictive
procedure.
Ultimately, it is possible for Andrew Dann to satisfy this restrictive procedure by introducing
a Bill to amend Section 85 and gaining absolute majority support in both Houses of
Parliament for that Bill. This would allow for a specific amendment to the jurisdiction of
Supreme Court, giving the Minister for Health jurisdiction to hear the IIHQ report.
Furthermore, the amending Act would be ‘in respect to’ the powers of parliament, as it
would have the effect of expressly amending a manner and form provision.
However, as a practical consideration, it seems unlikely that such an outlandish
encroachment upon the jurisdiction of the Supreme Court of Victoria would be approved of
by an absolute majority, especially in the Legislative Council (where Andrew Dann would not
necessarily have majority support).
It is possible in Victoria to amend s 15 of the Victorian Constitution such that legislation
relating to the IIHQ only requires the approval of the Legislative Assembly and the royal
assent from the Governor. If so, what legislative procedure must be followed? If not, why
not?
Section 15 of the Victorian Constitution explicitly dictates that the legislative power of the
State of Victoria shall be vested in a Parliament, which shall consist of Her Majesty, the
Council, and the Assembly, to be known as the Parliament of Victoria. Section 15 is
protected by restrictive procedures set out in section 18(1B)(b) of the Victorian Constitution.
More specifically, Section 18(1B)(b) imposes that the composition of Parliament is not
subject to change unless a referendum is successfully conducted pursuant to Part 9A of the
Electoral Act 2002.
To be binding, a State restrictive procedure must be self-entrenched, and must be
supported by a higher power; in this case, the Australia Act 1986 (Cth).
In relation to self-entrenchment, Section 18(1B)(b) is self-entrenched in Section 18(1B)(a) of
the Victorian Constitution (Attorney-General (NSW) v Trethowan). This means that the
manner and form provision itself cannot be repealed.
Regarding support from a higher power, Section 18(1B)(b) fits within Section 6 of the
Australia Act 1986 (Cth). This Act is deemed a higher law because it is an Act of the
Commonwealth Parliament, and the State Constitution (which is just a standard piece of
State legislation) is subject to Commonwealth law.
As a result, the manner and form provision which restricts Section 15 is binding. However,
this provision can still be changed by referendum. This would require an Act to pass through
both Houses of State Parliament, and then subsequently for a majority of eligible Victoria
voters to approve the change. Finally, the law seeking to remove the influence of the
Legislative Council has to be a law ‘respecting the constitution, powers or procedure of the
Parliament of the State’. Based on the findings of legal academia a law to abolish or restore
a House of Parliament is respecting the constitution of the Parliament.
Ultimately, provided these conditions are met, the restrictive procedure protecting Section
15 could be satisfied, meaning legislation could be passed without the involvement of the
Legislative Council.
Section 18(1B)(k) states that it shall be unlawful to present to the Governor for royal
assent a Bill to repeal, alter or vary section 75(1) of the Victorian Constitution – which
establishes the Supreme Court of Victoria – unless it is approved by the majority of the
electors voting at a referendum. Is this restrictive procedure valid in light of the decision
in West Lakes?
This manner and form provision, which imposes a referendum as a requirement for the
amendment of Section 75(1), would be likely to be deemed valid in light of the reasoning
used in West Lakes Ltd v South Australia.
In West Lakes, King CJ noted that any restrictive procedure which is too onerous to satisfy as
a practical matter, such that it amounts to a deprivation of legislative power, will generally
be deemed ineffective. For example, a manner and form provision requiring a special
majority of 90% in both Houses of Parliament would likely be ineffective. One of the key
issues in this case was that the restrictive procedure consisted of consent from a private
company. If a private company were inserted into the process, the Parliament would lose
the ability to independently amend the Act.
In this case, the manner and form provision does not appear to be overly onerous, as it
merely calls for a referendum. Whilst there is no definite principle regarding the acceptable
level of difficulty, an absolute majority of the State population does not appear overly
difficult to achieve. In fact, a referendum was held not to be a valid manner and form
provison in Attorney-General (NSW) v Trethowan. Moreover, whilst some legislative power
is conferred to the Victorian population, there is nothing in this restrictive provision which
entirely strips power from the Parliament (as was the case in West Lakes).
What is required in order for the restrictive procedure in Section 18(2A), regarding the
jurisdiction of the Supreme Court of Victoria, to be binding as a matter of constitutional
law?
Section 18(2A) of the Victorian Constitution imposes a restrictive procedure on the
alteration of Section 85 of the Victorian Constitution, which governs the powers and the
jurisdiction of the Supreme Court. Namely, it requires that an amendment to Section 85 is
void unless the Bill is passed by an absolute majority in both Houses of State Parliament
respectively.
For this manner and form provision to be deemed binding, there are two key elements.
First, the provision imposing the restrictive procedure must be self-entrenched. Second, the
amending law must be supported by a higher power; in this case, the Australia Act 1986
(Cth).
It must be noted that for the amending law to be supported by the Australia Act 1986 (Cth),
the Act must be respecting the constitution, powers and procedures of State Parliament.
That is, the law must be specifically relevant to the workings of Parliament.
What procedures must be followed to amend the Australian Constitution and does this
apply to its preamble/covering clauses?
Pursuant to section 128 of the Australian Constitution, the text shall not be altered except
by referendum. This is a particularly onerous restrictive procedure which has only been
undertaken 44 times in Australia’s history, of which, only eight have succeeded.
The referendum process consists of several steps. First, a bill containing the proposal,
alongside the referendum question(s), must be passed by an absolute majority in the
originating House of Parliament. The bill must also pass by an absolute majority in the other
House (there is a mechanism by which this step can be bypassed, but it has never been
utilised). Next, all eligible voters in Australia must vote either ‘yes’ or ‘no’ to the proposed
amendment. The referendum is only a success if a double majority is achieved (over half of
all eligible voters approve the change, and over half, or more than four, of States must have
a majority ‘yes’ vote).
Divergent opinions have arisen regarding the scope of section 128 to amend or repeal the
covering clauses of the Constitution. This is a topic which has been discussed in the context
of the possibility of Australia becoming a republic at the Australian Constitutional
Convention 1998. It has been suggested that in order to amend the covering clauses of the
Commonwealth of Australia Constitution Act, the Constitution itself may have to be altered,
in accordance with section 128, to confer on the Commonwealth Parliament the power to
amend section 8 of the Statute of Westminster to the extent necessary for the purpose of
amending the preamble. Hence, whilst this area remains murky, the better view is that the
preamble of the Constitution is outside the scope of section 128.
What is the purpose of the first paragraph of Section 55 of the Australian Constitution and
the consequence if it is breached?
The first paragraph in section 55 of the Australian Constitution provides that laws imposing
taxation shall deal only with the imposition of taxation, and any provision therein dealing
with any other matter shall be on effect.
Put simply, this provision forces the Government to pass legislation which deals solely with
the imposition of a tax. In practice, this prevents the Government from sneakily tacking tax
provisions into unrelated pieces of legislation. The consequence of a breach of this
paragraph is the invalidation of all non-tax provisions contained in the legislation.
The workings of this provision were demonstrated, although in a somewhat alternative
manner, in the High Court case Air Caledonie International v Commonwealth. In short, this
case involved a challenge to the Migration Amendment Act 1987 (Cth), which sought to
insert a compulsory fee for immigration clearance into section 34A of the Migration Act
1974 (Cth). Upon establishing that this fee was, in fact, a tax, the High Court invalidated the
remainder (the non-tax provisions) of the amending Act. The entirety of the Migration Act
did not have to be invalidated because this would have been burdensome, but the High
Court made it clear that where a tax provision is inserted into legislation, that legislation
should deal exclusively with that tax.
What is the difference (if any) between the principles of representative government and
responsible government?
The principle of representative government and the principle of responsible government are
not the same.
Representative government is the doctrine where elected members of Parliament represent
their constituents. This implies that the Parliament itself is representative of the various
attitudes, backgrounds, and political stances of the Australian population. This doctrine is
imposed by sections 7 and 24 of the Australian Constitution, which prescribe the
composition of the House of Representatives and the Senate respectively.
In contrast, the principle of responsible government concerns the relationship between the
Parliament and the Executive. Fundamentally, responsible government imposes conventions
that ensure that the Government’s purpose is centred on best serving the people and the
country. As dictated in section 64 of the Australian Constitution, the Ministers must sit in,
and be drawn from, the Parliament. Section 61 also dictates that the executive power of the
Commonwealth is vested in the Queen and is exercisable by the Governor-General. Finally,
Section 83 provides that no money shall be drawn from the Treasury of the Commonwealth
except under appropriation made by law. The cumulative effect of these provisions is that
the Executive arm holds the decision-making power, but the Parliament holds the keys to
the Treasury. This exchange of ‘money for power’ protects the notion of responsible
government.
Ultimately, whilst both principles are essential to the successful execution of Government,
they are disjunct in terms of their overarching purpose.
What does it mean when the High Court says that in order to characterize the validity (or
otherwise) of Commonwealth legislation it must examine its legal and practical
operation?
The legal and practical operation of Commonwealth legislation is significant to the
characterisation process. Characterisation is the process of determining whether a piece of
legislation can be considered a law ‘with respect to’ a Commonwealth head of power in
section 51 of the Australian Constitution. This is a very important legal concept, as it goes to
the heart of whether the Commonwealth Parliament has the power to make certain laws,
and thus it dictates the validity of contested pieces of legislation.
The key test in determining whether a law is supported by a Commonwealth head of power
is whether the ‘rights, powers, liabilities, duties and privileges, created by the law have a
‘sufficient connection’ with at least one provision contained in section 51 (Grain Pool Case).
As such, we can see that the High Court’s key method for ascertaining an understanding of
the legal and practical operation of a piece of legislation is by delving into the ‘rights,
powers, liabilities, duties and privileges’ which are created by the legislation.
The case Fairfax v Federal Commissioner of Taxation is useful to demonstrate the workings
of this process of characterisation. In this case, the High Court analysed the legal and
practical application of a 1961 Amendment Act to the original Tax Act which provided that
superannuation fund incomes were no longer exempt from income tax unless at least 30%
of the fund’s assets were invested in government securities. Whilst it was clear that the
policy behind this legislation was somewhat motivated by a desire to encourage investment
in government securities, the High Court held that, based on the legal and practical
operation of the Act, the substance of the law was an imposition of income tax. As such, the
Act was deemed to be a law ‘with respect to’ the taxation power in section 51(ii).