Week 4 Seminar

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School
St. John's University **We aren't endorsed by this school
Course
ACT 1975
Subject
Law
Date
Sep 11, 2023
Pages
4
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MLL 323 - CONSTITUTIONAL LAW TOPIC 2 - STATE RESTRICTIVE PROCEDURES Please carefully read sections 18 and 85 of the Constitution Act 1975 (Vic) (' Victorian Constitution' ) and then answer the following: - Restrictive procedures - circumstances in which legislatures can prevent future legislatures from passing law - Referendum - s 128 - requires a restrictive procedure - majority at cth level - At a state level - they cant be so onerous that it amounts to a deprivation of legislative power - cant be so difficult to comply with that what you do ends up curtailing the legislative power - Westlakes case o In this case, extra parliamentary approval of a law was at issue o Held to be unlawful as it amounted to a deprivation of legislative power and you can't have an extra parliamentary body with extra power o Sliding scale - the more constitutionally important the feature of the constitution is, the more restrictive you can be - if its less important you will likely have less scope - NOTE: why do manner and form provisions matter? We have manner and form provisions to prevent a future legislature from amending the constitution by a simple majority. These provisions are important because of the way in which legislation works - if there is inconsistency between earlier and later act, the later act applies and considers earlier act to the extent of inconsistency o These provisions seek to guard against provisions where parliament just passes through a simply majority in consideration of bills that should be
repealed or amended as they are critical to the constitution o Self entrenched manner and form - if you have a specific act inconsistent with an earlier act but doesn't meet the manner and form, it isn't necessarily repeal the manner and form requirement automatically 1. What kinds of restrictive/manner and form procedures does s 18 contain? - S 18 - Power of parliament to alter the act - Referendum - s 1B, Special Majority - S 2, Absolute Majority - s 2(a) - Restrictive procedure you want to apply depends on which section of the constitution you are looking to amend or repeal 2. Can the Victorian Parliament pass a law to remove certain kinds of cases from the jurisdiction of the Supreme Court? If so, what procedure must it follow before such a law becomes effective? - Jurisdiction set out in s 85 o Relevant - ss 5 - curtails ability to amend s 85 and the jurisdiction of the court o Requirements of this subsection - you cant amend unless amending act expressly states the section and expressly states and intention to amend or repeal, the member of the parliament who wants to introduce has to state the reasons in the second reading etc - see legislation o Section shows the nature of the procedure to amend - First Question when looking at answering questions about Restrictive Procedures : Does the restrictive procedure apply to the legislation you want to amend/repeal - in this section it does because s 85 specifically says what needs to be done - will always be in the legislation along the lines of this section can't be varied or amended unless ...
- Second - look at whether the restrictive procedure is self- entrenched - do you have to look at restrictive procedures to amend the section you are looking at - IF RP wasn't entrenched, you can. Pass a law by simple majority abolishing the RP and then go on to legislate the topic with a simple majority that was previously subject to a RP o If RP is not self-entrenched, there is no good protection against the section being amended or varied/repealed - Third - whether RP is valid - in Westlakes sense - is it truly a procedure with respect to manner or form or merely a deprivation of restricting what the parliament can or can't do - look at the ideas discussed in Westlakes - Fourth - relates to Australia Act - when is RP actually binding on parliament - s 6 of the Australia Act states Parliament has to follow RP relating to constitution powers and procedures of parliament o Provision explored in Marquett case - discussed WA trying to increase number of seats of electoral council to 36 and change electoral boundaries - matters that affected the powers and procedures of parliament - so laws with respect to number of seats in a house of parliament and potentially electoral boundaries - things that go to representative character of legislative chamber are manners that go to legislative power of constitution and fall with s 6 of the act - Jurisdiction of supreme court does not look at that of Australia. - section 85 does not have comply with the jurisdiction - Answer to question 2 - yes in an uncontrollable way 3. Can the Victorian Parliament pass a law to abolish the Supreme Court? If so, what procedure must it follow before such a law becomes effective? - Yes - process discussed above 4. Can the Victorian Parliament pass a law to change the qualifications to vote in elections for the
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