Commonwealth Legislative Power

Question 1

What are ‘reserved state powers?’

Answer 1

• s51 = federal gov. able to exercise ‘exclusive powers’ such as taxation and external affairs = any power OUTSIDE of this section is reserved for states known as ‘residual powers’
  –> retains autonomy form states
  –> HCA has diminished the scope of Reserved State Powers

Question 2

What is ‘Characterisation’

Answer 2

Judicial process of determining whether law falls within scope of particular head of power conferred on the federal government by the Constitution

Question 3

What is the 3 step process in determining the constitutionality of the law under the doctrine of Characterisation

Answer 3

1. NOT consider motive behind legislature’s enactment of the law = reasons for why law was made is NOT considered
2. Court NOT take into account political and social or economic effects that the law might have
3. Court does NOT attempt to identify the ‘pith or substance’ of the law

Question 3

What are ‘incidental powers?’

Answer 3

• assessing whether a law is necessary or appropriate means of exercising that power WITHOUT specifying the head of power

Question 4

What do Incidental Powers allow the Commonwealth to do?

Answer 4

Pass laws that are NOT explicitly mentioned in s51
Questions if there is a reasonable connection b/w law and head of power to see if law is valid

Question 5

What did the case of Amalgamated Society state when reviewing the constitution? (Literalism)

Answer 5

• Interpreting constitution mandates the judiciary read the word’s according to their ‘natural meaning’ (focus on text itself)

Question 7

What is Originalism?

Answer 7

• Original way of interpreting constitution which asserts that meaning of Constitution should be grounded in the original understanding at the time it was drafted and ratified –> used when text is vague or ambiguous
  –> not used as much anymore as it was used by ‘prejudice white men’

Question 8

What are the consequences of an invalid law?

Answer 8

• It becomes ‘void ab initio’ –> law no longer exists

Question 9

What does ‘Reading down’ of a constituional law mean?

Answer 9

• Courts would interpret it in way which would deem it valid

Question 10

What does Severance of constituional law mean?

Answer 10

• Principle used by courts to address where PARTS of a statute or law is found to be unconstitutional
  –> court may ‘sever’ the unconstitutional part provided it does NOT affect the rest of the lawW

Question 11

When will severance not be applicable?

Answer 11

• Act cannot be comprehended

Question 12

What was significant about R v Barger (rejection of reserved state powers)

Answer 12

• Power to pass an Act must be vested either in theh Parliament or the state legislature

Question 13

What was significant about Amalgamated Society Engineers case?

Answer 13

• State law must give way to any repugnant Commonwealth Law as; all Commonwealth Acts have SUPREMACY over state acts