Manner AND FORM Answer PDF

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MANNER AND FORM ANSWER:  

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There might be 3 different types of situation: (1) there is no existing prior m and f provision which needs to be complied with. - Q is: Is the provision which is proposed to be inserted into legislation a valid and binding manner and form prov? To answer this question, need to go through issues below. (2) where there is an existing or prior manner and form provision and it is proposed to insert a provision which falls within that m and f provision BUT which is itself not a m and form provision. - Q to be answered here is-is the prior or existing m and form privison a valid and binding m and form provision? To answer this question, need to go through the issues below. (3) Is where there is an existing or prior manner and form provision and it is proposed to insert a provision which itself appears also to be a manner and form provision. - In this situation, there may be 3 Qs. - Q1: does the provision proposed to be inserted fall within the existing or prior m and form provision? - Q2: If you answer yes to the 1st Q then, is that prior or existing m and form provision a valid and binding m and f Provision? To answer this question, need to go through the issues below. - Q3: If the prior or existing m and f privsion is a valid and binding m and f provision AND the proposed proivison complies with that m and f provision, OR - if the prior or existing manner and form prov is not a valid and binding m and f provison so that the proposed porivsion does not need to follow the rquiements of the prior or existing provision, then the 3rd Q: is the proposed provision a valid and binding prov? Need to go through the issues below.

Cth legislation: 

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Normal procedures: normally, a proposed law (a Bill) is introduced into a Legislative Chamber (i.e. the Senate or House of Rep) by a Minister. - Subsequently, the Bill is “read” 3 times (i.e. voted on 3 times) in each Chamber. Exceptions: there are occasions when:  constitutions (i.e. s57 and s.128 of the Cth Constitution, and s.73(1) and (2) of the Constitution Act 1889 (WA))  and legislation (i.e. s.15 of the Australia Acts 1986 (Cth & UK), and s16M of the Electoral Act 1907 (WA) [inserted in 2005, replacing s.13 of the Electoral Distribution Act 1947 (WA)]  stipulates different procedures (i.e. absolute majorities for votes in the Legislative Chamber or referendum) for the enactment of legislation or for constitutional amendments.

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 These are called manner and form provisions. CONSTITUTIONALISM-S.128: The manner and form requirements of s.128 apply to the alteration of any provision of the Cth Cons.  The manner and form requirements of s.128 do not apply to other Cth legislation.  S.128 of the Cth constitution sets out 2 manner and form requirements: (1) special majorities, (2) referenda.  It is doubly entrenched so that s.128 cannot itself be amended without going through the SAME procedure. Nor can new provisions or subject matters be entrenched without being inserted in the Cth Cons. pursuant to the same manner and form requirements.

State legislation: 1) WHAT IS A M+F PROVISION? 

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M+F provisions are special procedures that must be followed in order to pass certain laws. - Form provision: might be “inconsistent legislation enacted after this present Act is not to have effect, to the extent of the inconsittency-unless the latter Act (inconsistent legislation) expressly declares that it is to have effect nothwithstanding this Present Act.” - Manner provisions: says that future/latter legislation on a particular subject atter requires special majorities in both houses of Parl (i.e. s.73(1) of Cons WA Act; or approval at a referendum; or BOTH special majortiies and a referendum-s.73(2) of Cons Act WA. Narrow view: Dixon J in Attorney-General (NSW) v Trethowan: “The proviso (in s.5 of the Colonial Laws Validity Act 1865 (UK)) recognizes that the exercise of the power [of State Parliament to make laws] may to some extent be qualified or controlled by law…such a law…cannot do more than prescribe the mode in which laws respecting [the constitution, powers and procedure of such State Parliament] must be made.” Broad view: Dixon J in Trethowan: “The more natural, the wider and more generally accepted meaning [of the words “manner and form” in the proviso of s.5 of the CLV Act] includes within the s.5 proviso all the conditions which the Imperial [UK] Parliament or that of the self-governing State or Colony may see fit to prescribe as essential to the enactment of a valid law.” Dixon J in Trethowan laid out both meanings but preferred wider meaning. King CJ in West lakes stated “It is true that Dixon in Trethowan’s case…gave manner and form a very wide meaning.”… “Trethowan’s case…however, concerned a requirement that an important constitutional alteration be approved by electors at a referendum.”

Normal rule concerning the enactment of new legislation: The general rule is that State Constitutions can be amended by a State Statue enacted in accordance with the normal Parliamentary procedures (that is, passed via the normal procedures of the Legislative Council and Legislative Assembly approval and Governor’s asset)McCawley v R. - The source of legislative power conferred upon WA Parliament is in S.2 WA Cons. Act 1899, which enables WA Parliament to make laws for the peace, order and good government of the Colony of WA. Exception to this general rule is: where there is no applicable, valid and binding manner and form provision protecting the State statute or State Constitution, a state Statue amending that constitution must-as follow the M+F procedures (e.g. special Parliamentary majorities and/or referenda) 

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Exception to the exception: The manner and form provisions do not need to be followed-if the manner and form provision is itself amended or repealed. If that occurs, then the McCawley general rule applies.

SIDE NOTE-WA Cons Act 1889:  S.73(1): requires that the WA Cons can be amended by the WA Parl if an absolute majority is achieved in both the Leg. Council and Leg. Assembly.  S.73(2): requires both absolute majorities in both Houses of parl and referendum. -NOTE: s.73(2) entrenches s.2 of the WA Cons. Act.  Both s.73(1) and s.73(2) are m+f provisions. GENERAL STRUCTURE: 1) Identify the amending provision (proposed legislation trying to amend a provision). 2) Identify the provision being amended. 3) Identify any provision entrenching the provision that is being amended: i.e. identify whether there is a prior manner and form provision, which protects the provision being amended? i.e. s.73(2) protects ALL OF s.73. First consider the protecting provision:  (1) is there a prior, valid and binding m+f provision to which the protecting provision had to comply with? i.e. s.73(2).  (2) Is the protecting provision a manner and form provision? i.e. s.73(2) a m and f prov?  Or is it a substantive restraint on state legislative power? - If it determined that it is a substantive restraint, then the amending provision/legilsation does not have to comply with the protecting provision (i.e. s.73(2)) HOWEVER if it is a m and f provision, then move to next Q.

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(3) Is the protecting provision (s.73(2)(e)) mandatory or directory? - E.g: s.73(2)(e) uses the word ‘shall’-mandatory. - If it is determined that s.73(2) is directory, then the amending legislation does not have to follow the protecting provisions procedures, however if the protecting provision is mandatory then the amending legislation has to follow s.73(2) procedures.

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(4) Is the protecting provision-s.73(2)(e) justiciable? - If answer is yes, then go to next point.

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(5) Was the protecting provision-s.73(2)-validly inserted into the WA Cons Act? Was s.73(2) validly created? - (1) Is there a prior valid and binding m and form prov applicable to the insertion of the protecting provision-s.73(2)? - (2) Under the traditional view-McCawley case, m and form prov can be validly inserted using normal standard parliamentary procedures-this occurred with the Bill which inserted s.73(2). - (3) Under the newer view of Kirby and Gummow, a m and f prov’s insertion or creation must follow the procedures in that the proposed manner and form prov.  Note-the Bill inserting s.73(2) was not inserted with a referendum and therefore on this newer view-s.73(2) would be invadily inserted and therefore on the newer view, s.73(2) does not have to be followed by amending legislation.  However, ASSUME that the traditional view prevails.

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(6) Is the protecting provision-s.73(2)(e) binding on the amending legislation? - Discuss the 6 possible sources of legal efficacy of m and f prov. - (a) s.6: Q: does the amending legislation/Bill relate to the WA Parliament’s cons, powers or procedures? - Marquet focused on the word ‘constitution’. - Comalco: Hall J said in his view: a law which expressly or impledly repeals or amends the provision of a prior law which are protected by a m and f prov, is a law respecting parliaments powers and procedures. - However this view is not a majority view . THEREFORE the amending legislation/Bill falls within s.6 of the Aus Act because the substance of the Bill relates to the WA parlaiment’s power and procedures. - If this argument is correct, then the protecting provision s.73(2) is binding on the Bill and then the Bill must follow s.73(2) procedures.

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HOWEVER one might argue that the Bill falls outside of s.6, bcs on a more textual view of the Bill, that Bill only remotely affects/relates to the WA parliament. If this argument is correct, then s.73(2)(e) is not bidning on the Bill bcs of s.6 of Aus Act.

(b) Need to look at other 5 sources. There is an argument as to whether s.6 is now the only or exlcusive source of legal efficacy-Marquet suggests this. - Is the protecting provision-s.73(2)(e) binding on the amending Bill under 1 of the other 5 sources of legal efficacy? If yes, then the Bill has to followed protecting provision-s.73(2) procedures. If NO-then Bill can be enacted without following s.73(2) procedures. 

(7) How can these difficulties be overcome? - (a) Can ensure that Bill cimplies with the protecting provision- s.73(2)’s procedures: i.e. (a) aboluste majorities, (b) put to referendum. - (b) Can amend the Bill so that it abolishes the WA SC except for the SC’s role under s.73(6). - (c) To have the Cth Parl to enact legislation: WA Parl might make a request to the Cth Parl and Cth parl may enact legislation under s.51(38) of Cons to circumvent the m and f requirements in the protecting provision-s.73(2).  This course was followed in s.14 of Aus Acts-amendement made by Cth and UK parliament to aspects of the WA Cons including s.50 that would have been otherwise protected by s.73(2)-Cth Parl may have the cons power to circumvent the requiremetsn of s.73(2). - (d) To try and have the State Parl enact a law that expressly amends or repeals the protecting provision-s.73(2).  There are 2 views concerning the sitatuon where a State law expressly repeals a m and f prov.  1) Professor Carne: a state law which expressly repeals a m and f prov is a law with respect to a state parliament’s cons, powers or procedures and therefore the repealing statute must comply with the m and f prov.  (2) Twomey: a state law expreslly repealing a m and f prov has to be characterized, that is, have to ask whetehr the repealing law relates to the state pairlament’s powers or procedures? If the substance of the repealing law relates to parliament’s cons, powers or procedures, then the repealing law must comply with the m and f proecdures, however if the substance of the repealing law is not a law with respect to parlimanets cons, powers or procedures then repealing law does not have to comply with the m and f procedures and then the m and f prov can be repealed by a staute enacted in accordance with ordinary parliamentary procedures and tehn the protected provision  E.g: (in exam: s.73(6)) can be repealed by ordinary procedures)

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(8) Does the amending Bill contain a m and f prov-i.e. trying to protect [the abolition of the SC] against future repeal or amendment? - Assuming the amending Bill was validly enacted, and assuming it does contain a m and f prov. - Then the Q is: would the amending bill’s m and f provision be valid and binding on future WA Parliaments which attempted to remove or repeal the legilstion? ie. would future WA leiglsation have to comply with the amending Bill’s m and f prov?

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Go through same issues: is it a valid and binding prov, is it substantive restraint, is it justiciable?, mandatory or directory etc.

Answer structure: 1) Was the m+f provision validly created?  TRADITIONAL POSITION-current view: it has generally been thought that providing there is no pre-existing valid and binding m+f provision, then a new manner and form provision can be inserted by a State Parliament using the ordinary and standard procedures (approval of a Bill, by an ordinary majority, 3 times in each House of the Parliament and the Governor’s assent) used to enact ordinary legislation. - HOWEVER a State Parliament’s power to impose valid and binding m+f requirements on future State Parliaments (by ordinary legislative procedures) undermines (UK) principles of parliamentary sovereignty, that is, (1) “Parliament is competent…to make or unmake any law whatsoever or any matter whatsoever…”, (2) A past or present Parliament cannot bind future parliaments.  NEWER VIEW: adopted by Gummow (McGinty) and Kirby (Marquet) consequently have appeared to repudiated what has “generally been thought” to have been the traditional position regarding a State Parliament’s power insert a m+ f provision. - Both took the view that when a m+f provision is inserted, that the State Parliament must follow the procedure that it intends to have in the new m+f provision and intends to apply in the future. a) Does it amount to a substantive restriction on legislative power? i.e. does the provision amount to abdication of power?  Generally: State Parliament cannot abdicate any part of its legislative power: Comalco, West Lakes - To be a manner and form provision… it must be one operative on the legislative process at some point’: The Comalco Case per Wanstall J  Parliament cannot abdicate legislative function where this is conferred by a higher law: Giris - State legislative power is not only granted by the State Constitution Acts but also derived from s107 of the CC and s2 of the AA 1986, so WA State Parl’s legislative power cannot be removed by State Parliament  2/3 majority is unlikely to be a substantive restraint, however any majority over 50% in a referendum is likely to be a substantive restraint. EXAMPLES- (a)Special majority in Parliament: appears to be a substantive restraint on Parliament rather than a m+f provision-West Lakes.

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 The point at which a special majority provision becomes an attempt to deprive Parliament of its power is reached quicker where the legislative topic which is subject to requirements is not a fundamental constitutional provision: King CJ in West Lakes  Court must balance the constitutional significance of the law with the difficulty of changing it (if a fundamental law, extraordinary requirements can be harsher)  Provision calling for a 2/3rds majority can be a valid majority in Marquet. - Types of special majorities: (1) Absolute majority- An absolute majority is more than half of the total votes of those eligible to vote, even if they are not present-Marquet.  (2) 2/3rds majority: Ranasinghe  (3) 3/5ths majority: s.18(2) of Cons. Act (Vic). (b) Referendum: Referendums are valid M+F requirements as they require direct approval of people, whom the legislature represents: West Lakes  Trethowan established that referendums are valid requirements. Requiring a 51% majority was held to be valid in this case. (c) Agreement between outside bodies- The Legislature cannot create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence (i.e third parties/outside bodies): Comalco. - (d) Outside bodies consent : West Lakes: King CJ-where the restrictive condition was one which required concurrence by a group lying outside of the legislative process, the restraint should be regarded as substantive. - (e) Specific words in new Act: South-Eastern Drainage Board: - Legislature has power to 'couch its enactments in such literary form as it may choose' and could not 'be effectively commanded by a prior legislature to express its intention in a particular way' - Evatt J

b) Is it mandatory or directory?:  Mandatory provisions CANNOT be discretionary or optional. - If a provision contains the word “must” or “shall” then it is mandatory. - “Is invalid unless”-form requirement-therefore mandatory. - If a provision contains the word “may” then it is discretionary and the manner and form provision does not have to be followed.  Non compliance with a directory requirement is usually intended to have no effect on the validity of the law: Clayton v Heffron

Dixon CJ, McTiernan, Taylor & Windeyer JJ: (HCA) In determining whether a provision is mandatory or a substantive restraint: the distinction must be governed by the intention expressed by the legislation conferring the power and prescribing the steps to be taken in the course of its exercise.  Commonly, there is no express declaration in the statutory power, therefore the question is then determined by reference to the nature of the power conferred, the consequences which flow from its exercise, the character and purpose of the procedure described. Most M+F requirements are mandatory if their purpose is to curtail the exercise of legislative power. -

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c) Is it justiciable?:  Even where a requirement is mandatory, judicial review may be confined to checking its basic compliance without going any further.  BHP v Dagi: “The Victorian Court of Appeal has the power, and …the duty, to inquire into the question of compliance with the manner and form provisions which [the Victorian] Parliament itself has enacted.” 2) Is the m+f Provision binding on the State Parliament and applicable? a) Identify the 6 possible sources that make m+f provisions binding: - S.5 of Western Australian Constitution Act 1890 (UK). - S.6 of Australia Acts 1986 (UK & Cth). - S.106 of Cth Constitution. - S.2(1) of Constitution Act 1899 (WA). - Intrinsic efficacy of restrictions in Constitutions - Reconstituted legislature  The m+f provision must be legally binding under a source of legal efficacy. Sources are above.  There have been strong arguments raised in recent dicta in McGinty and Marquet, that suggest that S.6 of the Australia Acts may be the exclusive source of binding authority on a m+f provision. s.5 of WA Cons Act: 

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The source of power to entrench State laws used to be under s.5 of the Colonial Laws Validity Act 1865, however, S.5 was repealed by s.3(1) of the Australia Acts 1986, and replaced by s.6 of Australia Acts. S.5 made it clear that colonial legislatures were competent to make laws that changed their own constitutions, powers and procedures.

s.6-Australia Acts:

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S.6 of the Australia Acts is a source of legal efficacy to both restrict and empower a State’s legislative power. Under s.6 the Australia Acts, a law ‘respecting the constitution, powers or procedures of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament.’

3 phrases in s.6:  (1)“A law made by that Parliament”: - S.16(2): of the Australia Acts says that the phrase includes the WA Constitution 1899. - ALSO: The manner and form provision can be contained in any Act of the State parliament-providing the legislation is a law respecting the cons, powers or p...