Manner and Form requirements

Question 1

What are manner and form provisions?

Answer 1

• specific rules or procedures that a legislature MUST follow when enacting laws –> they dictate the ‘manner’ (the way) and ‘form’ (structure) in which laws must be made

Question 2

What conditions must be present for a ‘manner and form’ provision to be legally binding?

Answer 2

• Provision that = prevents legislature from passing certain types of laws DOES NOT qualify as a manner and form provision
• Legislature CANNOT give away its law-making power to another body –> means it can’t create another provision that transfers its authority to another entity
• Agreement made w executive branch of government –> where executive promises NOT to change the agreement is NOT considered a manner and form provision, even if it is ratified by Parliament –> b/c such an agreement does NOT concern the legislative process itself
• Mandatory nature: for provision to valid ‘manner and form’ = MUST be mandatory in nature

Summary –>
1. Must be mandatory procedure for how laws should be made
2. cannot simply ‘prohibit’ other laws, cannot transfer legal authority to another body or involve agreements w the executive that do NOT concern the legislative process

Question 3

How does the Judiciary influence Manner and Form provision?

Answer 3

• Traditionally reluctant to intervene in legislative process –> but when Parliament has enacted a law declaring that a step in the process shall NOT be taken –> follows that courts should ENFORCE that by the appropriate remedies

Question 4

What are the 3 ELEMENTS (not conditions) for a ‘true’ manner and form requirement?

Answer 4

1. Amending Law should respect the ‘constitution, powers or procedure’ of the State Parliament
2. Targeting Law subject to manner and form requirements should be doubly entrenched
3. Is there a ‘true’ manner and form requirement –> not simply an ‘abdication’ of power

Question 5

Example of Double Entrenchment?

Answer 5

Section Y: Section X can only be amended or repealed through a referendum
HOWEVER
Section Y –> must itself also be entreched such as ‘The content of this section … extends to any bill seeking to amend or repeal this section’

Question 6

Example of ‘Constitution, Powers or Procedures’

Answer 6

Constitution = Composition of Parliament, Abolition of Houses
Power = Parliament’s own legislative authority
Procedure = rules which have the force of law for its own conduct

Question 7

Explanation of ‘True’ Manner and Form requirements

Answer 7

• NOT an abdication of power such as simply handing it over to unrepresentative body
• Must also be mandatory

Question 8

Significance of A-G (NSW) v Trethowan (reinforced the 3 manner and form provisions)

Answer 8

• Demonstrated amending law respecting the ‘constitution, process and powers’ of the State Parliament
• Had a double entrenched provision
• Not an abdication of power

Question 9

Significance of A-G (WA) v Marquet

Answer 9

• Demonstrated amending law respected the ‘constitution, powers and procedures’ of the State Parliament
• Double Entrenched
• Mandatory and NOT an abdication of power