Whether Parliament Can Repeal Sections 9, 10 and 11 Will Turn on Whether These Sections

LAWS 1205

SEMESTER 1 2000

QUESTION 1

MARK: 74

Whether parliament can repeal sections 9, 10 and 11 will turn on whether these sections are entrenched by a manner and form provision.

Legislative Power

Tasmanian Parliament is granted under s5 Colonial Laws Validity Act (s2 Aus Acts), the power to legislate for the peace, order and good government of the state. This power has been interpreted as a plenary power giving the states the power to make changes to their own constitutions by ordinary legislative procedures (McCawley). Given the scope of this power, s9, 10 & 11 can be considered to have been validly enacted by the Willis Government.

In order to repeal or amend the constitution or any legislation, states can legislate contrary to the provisions, provided that they adhere to the laws at that time (s5 Colonial, s6 Aus Acts). Thus, to determine whether s9, 10 & 11 can be repealed, must determine whether there are any manner and form (m & f) requirements that must be adhered to.

S9

Does the law seeking to repeal this section relate to the constitution, powers and procedures of the Tasmanian legislature? No, this section only provides that macrosoft is the sole supplier of computers. AS there is no manner and form provision, the parliament can legislate to repeal this section through the ordinary process.

S10

* Does this law impose a manner and form requirement? Yes, it provides that any Bill must be approved by a majority of directors at macrosoft.

* Is this requirement legally binding, or can legislation later in time override it? The requirement is doubly entrenched by s10(2) which means that legislation cannot simply override it.

* Must satisfy 2 requirements to be legally binding m & f requirement:

(1) Does it lay down a procedure which must be followed, or does it simply amount to a denial of legislative power (West Lakes).

This provision amounts to denial of legislative power by giving people who aren't members of parliament the right to determine the validity of the law. It is not a procedure which must be followed by parliament.

S11

* Does this law impose a m&f requirement? Yes, it provides that a Bill must receive a 2/3 majority assent by a joint sitting.

* This provision is doubly entrenched by s10(2) as any change of s9 of Macrosoft Veto Act may detrimentally affect legal rights of macrosoft.

* Is the manner and form satisfy 2 criteria:

1) Is it a m & f requirement or denial of legislative power? Onerous special majority requirements may not be supported (West Lakes). 2/3 majority may be considered an onerous majority and amount to a m & f requirement so difficult that it amounts to a "magic formula", which essentially amounts to denial of law making powers (West Lakes). If it is considered that 2/3 majority is not too onerous, ask second question.

2) Does the law which would repeal the section relate to the constitution, powers and procedures of the parliament. Thus Premier Chin may be restricted by the manner and form requirement set out by s11 as it is doubly entrenched by s10(2), it sets out a procedural requirement which may not amount to a denial of legislative power, and any act seeking to repeat it would relate to the procedure which parliament must follow in making laws regarding Macrosoft Act, therefore can be considered binding manner and form requirements.

Would these provisions be considered binding under Dixon's sovereignty argument in Truthowan?

Parliament can determine its own law making procedures which must be adhered to for an authoritative expression of parliamentary power.