UK Constitutional Law Association

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Chris Piggott-McKellar: Digging for Trouble? The Attempt to Enshrine a Fracking Ban in the Constitution of the Australian State of Victoria

Australia’s readiness to change Prime Ministers is not matched by its readiness to change the Australian Constitution. While the occupant of The Lodge (Australia’s equivalent of Number 10) has changed seven times in the past 11 years, the federal constitution has only been changed eight times since 1901. This is because the rigid Australian Constitution can only be amended at a referendum.

It is an entirely different story in the six states of the Australian federation. They inherited from the Imperial Parliament in the 1800s their own flexible, uncontrolled constitutions which could be remoulded by their respective parliaments.

This is what makes the manifesto pledge by the Premier of Victoria, Daniel Andrews, who was re-elected on Saturday, to enshrine a ban on fracking in the state’s constitution so interesting to UK constitutional observers (each Australian state has a Premier, who is in effect the state’s ‘prime minister’).

Can a parliament which inherited the same flexible DNA as Westminster abrogate its sovereignty, and use so-called ‘manner and form’ provisions to bind itself?

The use of manner and forms in the UK has been the subject of recent debate, most notably when Westminster passed laws stating that the devolved parliaments and governments of Scotland and Wales are permanent parts of the UK’s constitutional arrangements.

This blog explains why the Australian state parliaments can go much further than Westminster and use manner and form to unquestionably bind themselves, but only on a limited number of ‘constitutional’ matters. The blog also explains why a ban on fracking is unlikely to satisfy this narrow ‘constitutional’ definition, and may therefore be politically but not legally significant.

The origins of manner and form in the Australian colonies

During the mid-19th century, each of the six Australian colonies inherited constitutions from Imperial instruments, usually as Orders in Council or Imperial enactments. Gradually, each colony acquired a local legislature with plenary legislative power.

By Federation in 1901, most parliaments had adopted their own constitutional acts (for eg, in 1867 the Queensland legislature amended the Order in Council under which it was established, and passed its own Constitution Act 1867).

In 1901 the Australian Constitution came into force. In language which might resonate with contemporary debates, the states did not thereafter become “vassals” of the Commonwealth. The Australian Constitution transformed the colonies into states, but importantly it preserved state constitutions as they existed before Federation.

The colonial constitutions (which became state constitutions in 1901) received from the Imperial Parliament were intended to be flexible; they had the status of ordinary acts, which could be amended in the ordinary manner.

This was confirmed by the Privy Council (then Australia’s final court of appeal), in the 1920 case McCawley v The King (‘McCawley’), where Lord Birkenhead LC said:

It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control… the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people, what was given was given completely, and unequivocally, in the belief, fully justified by the event, that these younger communities would successfully work out their own constitutional salvation…

The Privy Council held that Queensland’s Constitution Act 1867 could be amended even by an implication contained in later inconsistent legislation. This was some 80 years before Laws LJ in Thoburn v Sutherland City Council drew a distinction between “ordinary statutes (which) may be impliedly repealed” and “constitutional statutes (which) may not”.

In McCawley, Lord Birkenhead LC went on to state that the state parliaments were “masters of (their) own households except in so far as (their) powers have been restricted” (my emphasis).

That exception had been created in 1865, when the Imperial Parliament passed the Colonial Laws Validity Act (‘CLVA’).

The CLVA applied to the Australian colonies by paramount force. Section 5 confirmed that colonial parliaments had full power to make laws concerning the:

“constitution, powers and procedures of such legislatures provided that such laws have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony”.

Colonial parliaments were thereafter empowered to do something which Westminster itself could not: bind future parliaments, through the use of manner and form. As outlined below, these provisions now feature in all state constitutions.

The Australian states remained under the yoke of the CLVA (and indeed remained dependent colonies of Britain in some ways) right up until the passing of the Australia Acts in 1986. These parallel acts passed in the UK and Australia severed residual ties between the two nations, and the Australian states and the UK.

Because of the way the Australian Constitution distributes powers between the state and federal governments, the Commonwealth parliament could not automatically pass a replacement for section 5 of the CLVA.

Removing this section without a “backstop”, to again use modern parlance, would have created a constitutional void which deprived the states of their ability to entrench further aspects of their constitutions.

The states then used a little-known provision of the Australian Constitution, section 51 (xxxviii), and referred legislative power which only Westminster possessed at Federation to the Commonwealth. This provided for a replacement source for manner and forms, section 6 of the Australia Act.

Contemporary use of manner and form in the Australian states

Each of the six state parliaments has enshrined or entrenched at least one aspect of their constitution, using a combination of the CLVA and/or the Australia Act.

The most commonly used manner and form requires bills to be passed by special majorities (for eg, a two-third majority or an absolute, not a simple, majority). Referendum entrenchment is another common type of manner and form. This requires a bill to be approved by the voters of a state at a referendum before it receives assent.

Interestingly, there is currently no requirement for manner and forms to be passed in the same method which they seek to prescribe. Therefore, a state parliament could use (and indeed many have used) a simple parliamentary majority to bind a future parliament from legislating on a subject unless the people first give approval at a state referendum.

It is unlikely the CLVA was intended to be used in this way. Indeed, there is obiter dicta from the High Court (the court of final appeal in Australia which hears constitutional matters) questioning the legitimacy of this approach. For example, Kirby J said in Attorney-General (WA) v Marquet:

the absurdity of the postulate that would permit one Parliament, by a vote of a simple majority, to require that no change to its constituent powers might occur without a two-thirds, 80 per cent or 90 per cent or 99 per cent majority to be effective, shows the limits to which the undemocratic potential of s 5 of the CLVA, so construed, could be pushed, at least in legal theory.

There are two further important points to make about the effectiveness of manner and forms. Firstly, to be truly effective, a manner and form must itself be entrenched. If not, the manner and form can be repealed in the ordinary manner, and in turn so can the part of the constitution that provision seeks to protect. This is called ‘double entrenchment’.

Secondly, manner and forms only apply to laws concerning the “constitution, powers and procedures of the Parliament of the state”. The High Court has read section 6 of the Australia Act narrowly. For example, laws which qualify who can vote or stand for parliament fall outside this definition, while laws which preserve the representative character of state parliaments fall within it.

Manner and form therefore cannot apply to laws establishing the executive or judicial branches of state governments. Nor, it would seem, can they apply to laws banning fracking (although it should be noted, the details of how the Victorian government plans to enshrine such a ban have not yet been released).

The narrow applicability of section 6 has not deterred states from past constitutional adventurism. Victoria has already entrenched in its constitution provisions guaranteeing state provision of water services and the office of the state prosecutor.

A constitutional ban on fracking, if it proceeds, is likely to join this list of entrenched provisions which provide a political, but not a legal, barrier to being amended in the ordinary manner.

There have been murmurs in Australia over the years that there might be some other principle which supports the use of manner and form – for example the so-called ‘Ranasinghe principle’, which derives from a case concerning the constitution of Sri Lanka (then Ceylon).

However, the High Court appeared to throw cold water on this idea in Attorney-General (WA) v Marquet:

the express provisions of s 6 can leave no room for the operation of some other principle, at the very least in the field in which s 6 operates, if such a principle can be derived…

It is therefore likely that section 6 is currently the only base for manner and forms.

The use of manner and form in Australian state constitutions therefore highlights several interesting points for UK observers. Firstly, Australia has a two-tiered constitutional system, with a rigid, written constitution at the federal level contrasted with flexible, unwritten state constitutions. Secondly, it highlights the peculiar constitutional status of the Australian states, which retained an umbilical-like link to Britain right up until 1986.

The contemporary use of manner and forms is therefore not an invention of rogue Australian states, but a hangover from the Imperial Parliament. If this month’s Victorian election is anything to go by, states will continue to probe the outer boundaries of their use, to interesting political and legal ends.

Chris Piggott-McKellar has been a special adviser to Ministers in Australia, and a speech writer for the Queensland Governor (the vice-regal representative in the state of Queensland). He lives and works in London while completing his Juris Doctor at the University of Southern Queensland.

(Suggested citation: C. Piggott-McKellar, ‘Digging for Trouble? The Attempt to Enshrine a Fracking Ban in the Constitution of the Australian State of Victoria’, U.K. Const. L. Blog (30th Nov. 2018) (available at https://ukconstitutionallaw.org/))

One comment on “Chris Piggott-McKellar: Digging for Trouble? The Attempt to Enshrine a Fracking Ban in the Constitution of the Australian State of Victoria

  1. Pingback: Into the Open | Verfassungsblog

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This entry was posted on November 30, 2018 by in Australia, Comparative law and tagged .
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