2. State Constitutions

Question 1

Recall

Relevant constitutions in Queensland

Answer 1

1. Constitution of Queensland 2001 (Qld)
2. Constitution Act 1867 (Qld)
3. Constitutional Amendment Act 1934 (Qld)

Question 2

Relevance of the Consitution of Queensland 2001

Answer 2

Gives Qld Parliament broad grant of power to make laws for “peace welfare and good government for the people of Queensland”

Question 3

State constitions’ “power to make laws for peace welfare and good government” - broad grant of power or limitation?

Answer 3

Broad grant of power confirmed by the Steamship case

Union Steamship v King (1988) 166 CLR 1, [11]-[16]

Question 4

Difference between state and federal consititutions on the power given to its subjects

Answer 4

State constitution gives the state general power while Cth constitution gives specific and enumerated power (limited power - power granted to the Cth in the constitution in s51 on law-making on certain and specific things )

Question 5

What limits state powers?

Answer 5

1. Federal constitution
   - s106 Cth: Where there is inconsistency between a Commonwealth law and a State law, the Commonwealth law prevails
   - s52 Cth: CC has exclusive power to pick heads of power in executive branch
   - For example, State cannot impose taxes on goods
2. Doctrine of repugnancy (since repealed)
   - Refers to a situation where State or territory law is invalid for being inconsistent with its paramount law by the UK imperial parliament.
3. Extraterritoriality
   - Stemming from the presumption that colonies did not have power over things outside their borders.
   - Nowadays, the Statute of Westminster proved Cth of Australia does have ET power and the Australia Act confirmed states do too.
   - Prior to Australia Act, Steamship case highlighted States have ET power as long as there is a nexus

Union Steamship v King (1988) 166 CLR 1, [24].

Question 6

Can state constitution restrict state parliament?

Answer 6

No, not really, because it is not entrneched like the CC is. S128 CC entrenches the constitution, making its contents changeable only by a strenuous double referendum. However, state constititions are not entrenched, which means it is easier to amend, which makes it less restrictive on powers of state parliaments.

Question 7

Are state constitutions entrenched?

Answer 7

State consitutions are not entrenched as a whole but parts of it are entrenched.

A Queensland example is the entrenched abolishment of the upper house of parliament in 1922. This bicameral Qld parliament structure was entrenched by s3 Amendment Act 1934. S3 of the Act in itself is entrenched also, so this feature cannot be changed unless a referendum says so (restrictive procedure/manner and form provision).

Question 8

Recall

Restrictive procedure/manner and form provisions - parliamentary sovereignty

Answer 8

Restrictive procedures pose a challenge to parliamentary sovereignty. If parliaments are always sovereign, then the one power they cannot have is to bind their successors. Otherwise it would infringe the sovereignty of the later parliament.

For this reason, UK parliament cannot prescribe restrictive procedures for future parliament. In Australia, as we are not 100% sovereign parliament, we do have some power to enact restrictive procedures (s5 CLVA => s6 Australia Act)

Question 9

Can Cth prescribe restrictive procedures?

Answer 9

It is still undecided whether Cth can prescribe restrictive procedures. It is assumed it cannot because law-making is entirely governed by the federal constitution and it specifies the 3 ways to pass laws (normal way, deadlock way and finally restrictive procedure for constitutional amendments).

IDK what this means.