LAWS 1205

SEMESTER 2 2000

QUESTION 3

MARK:83

(i)

The Commonwealth Parliament enjoys certain privileges as provided for by s49 of the Constitution. These powers of Parliament were widened by the Parliamentary Privileges Act. State Parliaments, however, do not have a section equivalent to s49, and neither do they have a Parliamentary Privileges Act. It is for this reason that the privileges State Parliaments enjoy are derived from the common law. The law in Egan v Willis provides that State Parliaments are able to do whatever is reasonable necessary to protect its functions. The relevant factors involved in this test are the principles of responsible government, and also the legislative function of each House.

To what extent the Privileges Act of the NSW Legislature alters the common law as provided for in Egan depends on the validity of the law. The principle of parliamentary supremacy states that a Parliament can enact any law it chooses, and it has been established that this is a plenary power (Clayton v Heffron). There are no fundamental limitations then to what a State Parliament can legislate on (BLF).

Section of the NSW Act will be effective in changing the laws relating to the powers and privileges of the NSW legislature so long as it complies with constitutional requirements (Ranasinghe) and does not breach the principle of representative democracy (Stephens). It appears that all constitutional requirements have been met, yet the principle of representative democracy which flows from the principle of responsible government must also not be infringed. Though it was held in Stephens that State legislative power is also limited by the principle of representative democracy, as was the case the Commonwealth in Political Broadcasts, the more recent decision in Lange casts doubt on this principle being a free standing constitutional requirement. By holding that a Minister is not under any obligation to disclose a document, even upon the request of one of the Houses, appear to fall foul of the principle of responsible government, as the Minister owes his/her life in Government to, and is accountable to, the Parliament.

The principle of parliamentary supremacy is fundamental, however, so the Legislature’s ability to pass any act they choose, even one that does not comply with the principle of responsible government, may result in s1 of the Act effectively changing the law in question. The Act simply overrides the law as held in Egan.

(ii)

There may be grounds for questioning the constitutional validity of s1 of the Act, due to the fact that a Minister is not obliged to comply with a court order. Is this situation were a matter for the Cth, s1 would clearly be invalid, as it interferes with judicial process and severely undermines the doctrine of the separation of powers (BLF).

This, however, is not a Cth matter as it involves the NSW legislature. The separation of powers is not an entrenched constitutional principle in the States, and, therefore, legislation which interferes with judicial process is not held to be invalid on that account (McCawley – not entrenched) (BLF – not invalid). It could therefore be assumed that s1 of the Act cannot be declared invalid due to the fact it interferes with judicial process.

It has been held, though, that the structure of th state judiciary is nevertheless effected by implications drawn from ch 3 of the constitution in so far as the state courts play a role in the federal judicial system. AS a result, it has been held that some sort of trickle down effect exists so that the doctrine of separation of powers does exist in the states (Kable). It is unclear to what extent this occurs, and such uncertainty renders it difficult to assess the constitutional validity of s1. If a trickle down effect were to exist, s 1 would clearly infringe judicial process and undermine the principle of the separation of powers.

(III)

The principle that parliament cannot bind its successors due to parliamentary supremacy (McCauley, SE Drainage) is subject to the qualification that if a particular law is entrenched then it must be amended according tot eh manner and form provided in the original act (Trethowam). The entrenchment of laws that relate to the constitution, powers, or procedure of the legislature is possible due to s 6 of the Australia Act. In order to determine whether the govt would have to comply with s 2 of the Act in order to amend s 1 or s 2, it must be established first whether s 2 contains a manner and form requirement.

A manner and form requirement is a condition imposed on law making (Trethowam), and s 2 clearly contains certain conditions that must supposedly be fulfilled to amend the Act. These conditions are as follows:

  • The Bill must be introduced only int eh legislative counsil

Is this a manner and form requirement or is it an attempt to deprive parliament of powers (West Lakes). This condition would appear to limit the ability of the legislative assembly to instroduce a bill to amend the Act and even though they must eventually approve the bill, by preventing the LA from introducing it several impacts upon their powers, and may consequently be viewed not as a manner and form requirement at all but rather a deprevation of the powers of parliament.

  • Voted on only after three months has expired: this appears to be a valid manner and form requirement and would be a condition that must be complied with.
  • Approved by both houses: this is clearly and a manner and form requirement and does not deprive parliament of power.
  • After a futther three months, the bill must be approved by a majority of those voting at a referendum: this condition likewise is a valid manner and form requirement although query the need for three months to pass and the effect this has on parliament and its powers.

For s 2 to be regarded as imposing a manner and form requirement, all of the above conditions must have been declared to be manner and form requirements, and not merely provisions that attempt to deprive parliament of power. There is a strong argument that by allowing only the legislative counsil to introduce a bill, the powers of parliament are deprived and thus s 2 does not effectively entrench the Act. If, however, s 2 was regarded as a manner and form requirement, there is a futher requirment that the new bill relate to the constitution, powers, or procedure of the legislature (Trethowam). This means that the new bill must relate to either the make-up of the legislature, the topics on which it can legislate, or the way in which a bill is introduced (Dixon J – Trethowam).

Given that the new bill would seek to amend either s 1 or s 2, it must be determined whether these sections relate to the constitution, powers or procedure (CPP) of the legislature as described above. It is clear that s 2 relates to the way in which a bill is introduced, so in order to amend it, s 2 would have to be complied with.

It is also possible to entrench laws based on the general principles of constitutional law. This approach provides that parliament can enact legislation (Clayton), it can repeal legislation (South East Drainage), and it possible to entrench provisions (Trethowam). It is clear then that parliament can reconstruct itself (Ranasinghe), and that parliament is whatever the constitution defines to be (Harris). It is not clear though whether parliament can reconstruct itself in a fashion that limits the legislative freedom of a later parliament as this Act purports to do. Cases such as Harris and Ranasinghe would say that the NSW legislature could enact its Act and effectively entrench it, where as, as illustrated above, West Lakes limits the ability of a parliament to restrict the freedom of its successors. On this later view, s 2 would nto have be complied with as it deprives parliament of the power.