Cases
Prep:
- CONSULT EXAMPLE IN ‘EXAM PREP PLANNING’ DOC
- How flexibility is bad, how constraint is good/bad
- Donoghue v Stevenson = constraint v choice
- Louth v Diprose = adversarial system, narrative (language)
- Relate themes together = access to justice, nature of law reconsidered
- Description notes: Legal independence, Mabo
- Revisit McBain
- Critically examine: the fact that the law is both flexible and stable can be in some
ways problematic
McBain v Victoria (division of powers (constitution), standing)
Material facts
- Meldrum needed IVF help from Dr McBain, but he was precluded by Infertility
Treatment Act 1995: only eligible if married or in de facto relationship.
- This state law is contrary to the federal: Sex Discrimination Act 1984: cannot
discriminate provision of a service based on marital status.
- S 109 of the Constitution: when Commonwealth and State laws are inconsistent, the
Commonwealth law prevails, and state is invalid to the extent of the inconsistency.
- The Commonwealth legislated the Sex Discrimination Act through the external affairs
power (Constitutions, . 51 [xxix]) in order to uphold their international treaty
obligations to the UN Convention on the Elimination of All Forms of Discrimination
Against Women.
Division of power (creating a federal system): McBain
- Refer to Federal v State in Tas Dam (below).
- The McBain case showcases the way in which power is divided in our legal system.
The legal matter for the court to decide was whether Victorian State law was
inconsistent with the Commonwealth law. This of course presupposes that the
Commonwealth law is valid and supported by legislative power under the
Constitution.
- The purpose of creating a federal system of government is to provide checks and
balances in the system. By prescribing specific legislative power to the
Commonwealth and residual legislative powers to the States, a dispersal of power is
achieved such that Commonwealth legislation ensures the protection of
fundamental national interests in the Constitution, whilst allowing for State
parliaments to legislate with respect to their own affairs which they see fit (ss 106-
1
, 107 of Constitution preserve existing State Constitutions and parliamentary powers).
This is provided that these state laws are not inconsistent with Commonwealth laws,
which are indirectly an expression of upholding constitutional interests, which are
placed at higher importance than state legislation.
- Refer to PROBLEM in principles notes
Standing: McBain
- McBain demonstrated the need to present the dispute to the court in a form which
accords with an existing classification. Any challenge to existing law means finding a
cause of action that the courts will accept in order for proceedings to be heard.
- Come back to this, refer to thorough foundations notes.
Tasmanian Dams Case (division of powers [validity of Commonwealth law,
formalism/autonomy) (pg 63)
Facts
- Issue: what is the scope of the internal affairs power prescribed to the federal
parliament?
- Under the constitution, the Commonwealth has no specific power to legislate on
conservation or environmental matters, so it relief on the external affairs power s
51(xxix) to uphold an international treaty which Australia had ratified in 1974, the
‘Convention for the Protection of World Cultural and Natural Heritage’
- 4 of the 7 high court members held that: (wide view) = external affairs power
supports enacting legislation to implement international treaty obligations entered
to in good faith, even where the subject matter would otherwise fall outside
Commonwealth’s legislative power. (whereas in Koowarta v Bjelke-Peterson (1982),
the majority of HC held that the issue at hand also needs to be of ‘international
concern’.
Division of power – federal system (representative and responsible government (write this)
- Federal v State: Tas Dam showcases how particular national interests are protected
over state interests by the constitution. To avoid a confluence in legislative power,
state parliaments retain general, or residual legislative power to create laws
concerning general matters of their state. However, as the constitution is an
instrument of maintaining the stability of law and governance, national interests
enumerated in the constitution to which all the states are subscribed, prevail in the
interest of this stability. (purpose of dividing power = stability of law)
2
Prep:
- CONSULT EXAMPLE IN ‘EXAM PREP PLANNING’ DOC
- How flexibility is bad, how constraint is good/bad
- Donoghue v Stevenson = constraint v choice
- Louth v Diprose = adversarial system, narrative (language)
- Relate themes together = access to justice, nature of law reconsidered
- Description notes: Legal independence, Mabo
- Revisit McBain
- Critically examine: the fact that the law is both flexible and stable can be in some
ways problematic
McBain v Victoria (division of powers (constitution), standing)
Material facts
- Meldrum needed IVF help from Dr McBain, but he was precluded by Infertility
Treatment Act 1995: only eligible if married or in de facto relationship.
- This state law is contrary to the federal: Sex Discrimination Act 1984: cannot
discriminate provision of a service based on marital status.
- S 109 of the Constitution: when Commonwealth and State laws are inconsistent, the
Commonwealth law prevails, and state is invalid to the extent of the inconsistency.
- The Commonwealth legislated the Sex Discrimination Act through the external affairs
power (Constitutions, . 51 [xxix]) in order to uphold their international treaty
obligations to the UN Convention on the Elimination of All Forms of Discrimination
Against Women.
Division of power (creating a federal system): McBain
- Refer to Federal v State in Tas Dam (below).
- The McBain case showcases the way in which power is divided in our legal system.
The legal matter for the court to decide was whether Victorian State law was
inconsistent with the Commonwealth law. This of course presupposes that the
Commonwealth law is valid and supported by legislative power under the
Constitution.
- The purpose of creating a federal system of government is to provide checks and
balances in the system. By prescribing specific legislative power to the
Commonwealth and residual legislative powers to the States, a dispersal of power is
achieved such that Commonwealth legislation ensures the protection of
fundamental national interests in the Constitution, whilst allowing for State
parliaments to legislate with respect to their own affairs which they see fit (ss 106-
1
, 107 of Constitution preserve existing State Constitutions and parliamentary powers).
This is provided that these state laws are not inconsistent with Commonwealth laws,
which are indirectly an expression of upholding constitutional interests, which are
placed at higher importance than state legislation.
- Refer to PROBLEM in principles notes
Standing: McBain
- McBain demonstrated the need to present the dispute to the court in a form which
accords with an existing classification. Any challenge to existing law means finding a
cause of action that the courts will accept in order for proceedings to be heard.
- Come back to this, refer to thorough foundations notes.
Tasmanian Dams Case (division of powers [validity of Commonwealth law,
formalism/autonomy) (pg 63)
Facts
- Issue: what is the scope of the internal affairs power prescribed to the federal
parliament?
- Under the constitution, the Commonwealth has no specific power to legislate on
conservation or environmental matters, so it relief on the external affairs power s
51(xxix) to uphold an international treaty which Australia had ratified in 1974, the
‘Convention for the Protection of World Cultural and Natural Heritage’
- 4 of the 7 high court members held that: (wide view) = external affairs power
supports enacting legislation to implement international treaty obligations entered
to in good faith, even where the subject matter would otherwise fall outside
Commonwealth’s legislative power. (whereas in Koowarta v Bjelke-Peterson (1982),
the majority of HC held that the issue at hand also needs to be of ‘international
concern’.
Division of power – federal system (representative and responsible government (write this)
- Federal v State: Tas Dam showcases how particular national interests are protected
over state interests by the constitution. To avoid a confluence in legislative power,
state parliaments retain general, or residual legislative power to create laws
concerning general matters of their state. However, as the constitution is an
instrument of maintaining the stability of law and governance, national interests
enumerated in the constitution to which all the states are subscribed, prevail in the
interest of this stability. (purpose of dividing power = stability of law)
2
