Problem Question Flowchart in Constitutional Law PDF

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CONSTITUTIONAL LAW PROBLEM QUESTION FLOWCHART LLB280: Constitutional Law 2017 STAGE ONE: IS THE CTH LAW CONSTITUTIONALLY VALID? Identify the Cth Law Is it respect a subject matter head of power? (i. direct characterization) Is reasonably appropriate and adapted to a purposive head of power? Corporat...

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CONSTITUTIONAL LAW PROBLEM QUESTION FLOWCHART LLB280: Constitutional Law 2017

STAGE ONE: IS THE CTH LAW CONSTITUTIONALLY VALID? Identify the Cth Law Is it ‘with respect to’ a subject matter head of power? (i.e. direct characterization)

Is reasonably appropriate and adapted to a purposive head of power?

Corporations Power (s51(xx))External Affairs Power (s51(xxix))

Defence Power (s51(vi)) Nationhood Power (s61 & s51(xxxix)) External Affairs (s51(xxix))

No: the law is not constitutionally valid

NO: can the law be characterised as incidental to the head of power?

YES: the law may be constitutionally valid (dependent on constitutional limitations, below) Does the law infringe the freedom of interstate trade & commerce? S92

If there is a grant, is it valid under s96?

Has there been an acquisition of property that was not made on just terms? (s51(xxxi))

Does the law infringe the freedom of religion? (s116)

Does the law discriminate on the basis of interstate residence? (s117)

Has the law infringed the right to trial by jury for indictable Cth offences? (s80)

NO TO ANY OF THE ABOVE: The law is constitutionally valid

Created By Dr Niamh Kinchin, School of Law, University of Wollongong

Does the law impinge on the implied freedom of political communication? (or implied freedom of association, voting equality or right to vote)?

Does the law impermissibly confer judicial power on the leg/exec, or vice versa?

YES TO ANY OF THE ABOVE: The law is not constitutionally valid (or re s117 – a person is immune from the law)

Does the law impinge on implied intergovernmental immunities?

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CONSTITUTIONAL LAW PROBLEM QUESTION FLOWCHART LLB280: Constitutional Law 2017

STAGE TWO: IS THERE A STATE LAW & IS IT CONSTITUTIONALLY VALID?

Identify the State Law

Does the law impinge the Kable or Wainohu principles?

Does the law infringe the implied freedom of political communication?

YES: The law is not constitutionally valid

Does the law infringe the freedom of interstate trade & commerce? S92

NO: The law may be constitutionally valid

Does the law discriminate on the basis of interstate residence? (s117)

Does the law impinge on implied intergovernmental immunities?

YES: The law is not constitutionally valid

Is the State law inconsistent with the relevant Cth law? (s109) NO: The State law is constitutionally valid

Created By Dr Niamh Kinchin, School of Law, University of Wollongong

YES: The State law is not constitutionally valid

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