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    Problem Question Flowchart

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    This flowchart summarizes the process for determining the constitutional validity of Commonwealth and State laws in Australia. It begins by identifying the law and determining if it is supported by a valid head of Commonwealth legislative power. It then considers whether the law infringes on any express or implied constitutional rights and freedoms. For State laws, a similar process is followed to analyze validity and potential conflicts with Commonwealth laws due to inconsistency. The overall flowchart provides a concise visual guide to the key questions and stages in a constitutional law problem question.

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    Problem Question Flowchart

    Uploaded by

    abi
    229 views2 pages
    This flowchart summarizes the process for determining the constitutional validity of Commonwealth and State laws in Australia. It begins by identifying the law and determining if it is supported by a valid head of Commonwealth legislative power. It then considers whether the law infringes on any express or implied constitutional rights and freedoms. For State laws, a similar process is followed to analyze validity and potential conflicts with Commonwealth laws due to inconsistency. The overall flowchart provides a concise visual guide to the key questions and stages in a constitutional law problem question.

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    This flowchart summarizes the process for determining the constitutional validity of Commonwealth and State laws in Australia. It begins by identifying the law and determining if it is supported by a valid head of Commonwealth legislative power. It then considers whether the law infringes on any express or implied constitutional rights and freedoms. For State laws, a similar process is followed to analyze validity and potential conflicts with Commonwealth laws due to inconsistency. The overall flowchart provides a concise visual guide to the key questions and stages in a constitutional law problem question.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    229 views2 pages

    Problem Question Flowchart

    Uploaded by

    abi
    This flowchart summarizes the process for determining the constitutional validity of Commonwealth and State laws in Australia. It begins by identifying the law and determining if it is supported by a valid head of Commonwealth legislative power. It then considers whether the law infringes on any express or implied constitutional rights and freedoms. For State laws, a similar process is followed to analyze validity and potential conflicts with Commonwealth laws due to inconsistency. The overall flowchart provides a concise visual guide to the key questions and stages in a constitutional law problem question.

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    CONSTITUTIONAL LAW PROBLEM QUESTION FLOWCHART

    LLB2280/LLB 280: Constitutional Law 2020

    STAGE ONE: IS THE CTH LAW CONSTITUTIONALLY VALID?


    Identify the Cth Law

    Is it ‘with respect to’ a subject matter Is reasonably appropriate and


    head of power? (i.e. direct adapted to a purposive head of
    characterization) power?
    Corporations Power (s51(xx))
    External Affairs Power (s51(xxix)) Nationhood Power (s61 & s51(xxxix))
    Immigration and emigration (s51(xxvii)) External Affairs (s51(xxix))
    Naturalisation and aliens (s51(xix))

    No: the law is not


    NO: can the law be characterised as constitutionally valid
    More likely to apply incidental to the head of power?
    to a State law

    YES: the law may be constitutionally


    valid (dependent on constitutional
    limitations, below)
    If there is a State Does the law
    grant, is it valid infringe the
    under s96? freedom of
    interstate trade &
    commerce? S92

    Has there been an Does the law Does the law Has the law Does the law impinge on Does the law Does the law
    acquisition of infringe the discriminate on infringed the right to the implied freedom of impermissibly impinge on
    property that was not freedom of the basis of trial by jury for political communication? confer judicial implied
    made on just terms? religion? (s116) interstate indictable Cth (or implied freedom of power on the intergovernmental
    (s51(xxxi)) residence? (s117) offences? (s80) association, voting leg/exec, or immunities?
    equality or right to vote)? vice versa?

    NO TO ANY OF THE ABOVE: YES TO ANY OF THE ABOVE: The law is


    The law is constitutionally not constitutionally valid (or re s117 – a
    valid person is immune from the law)

    Created By Dr Niamh Kinchin, School of Law, University of Wollongong 1


    CONSTITUTIONAL LAW PROBLEM QUESTION FLOWCHART

    LLB2280/LLB 280: Constitutional Law 2020

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

    Identify the State Law

    Does the law Does the law infringe the Does the law Does the law Does the law
    compromise the implied freedom of infringe the freedom discriminate on the basis impinge on
    integrity of the Ct as political communication? of interstate trade & of interstate residence? implied
    an institution? commerce? (s92) (s117) intergovernmental
    (Kable, Wainohou) immunities?

    NO: The law may be


    constitutionally valid YES: The law is not constitutionally
    YES: The law is not constitutionally valid
    valid

    Is the State law inconsistent with the


    relevant Cth law? (s109)

    NO: The State law is YES: The State law is not


    constitutionally valid constitutionally valid

    Created By Dr Niamh Kinchin, School of Law, University of Wollongong 2

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