Case notes for native title, including: Milirrpum v Nabalco (1971) Mabo v Queensland (No 2) (1992) Western Australia v Commonwealth (1995) Western Australia v Ward (2002) Commonwealth v Yarmir...
United States position on delegation of legislative power (Strict SOP !ele !elega gati tion on need needs s to be cond condit itio ione ned" d" #n Field ield v" $lar $lar% %e case case cour courtt foun found d t&e t&e delegation conditioned and &ence valid" #n Pana'a case court )nd t&at power found found to be uncond uncondit ition ioned ed resu resulti lting ng in wider wider )eld )eld of dis discr creti etion on w&ic& w&ic& was not allowed" *owever t&ere was a dissent t&at said t&at all t&e ti'e t&e conditions need not be narrowly tailored because it isn’t possible for t&e legislature to pre+e'pt conditions re,uired for t&e e-ecutive to ta%e a particular action . as conditions will always fall s&ort" /&erefore conditions 'ay also be broad principles" (Presidential action not allowed in Pana'a $o'pany
II.
Today’s Class
$ontinuation of United States position on delegation of legislative power +
0ation 0ational al ro roadc adcast astin ing g $o'pa $o'pany ny v" v" US US (1 (1374 374
#n t&is case t&ere’s a co''unications act of 1345 and by virtue of t&at act certain powers are being given to a federal co''unications co''ission" /&e role of t&e co'' co''is issi sion on was was to co'e co'e up wit& wit& rule rules s and and regul egulat atio ions ns in relat elatio ion n to c&ai c&ain n broadca broadcastin sting g for t&e purposes purposes of public interest interest convenienc convenience e or necessity necessity"" /&e networ% networ% co'panie co'panies s were were entering entering into contract contracts s wit& radio stations stations w&ic& w&ic& were were &inde &inderin ring g t&e full full availa availabil bility ity of radio radio progr progra's a's a'ong a'ong t&e t&e people people of t&e US (asically indulging in unfair trade practices" Purpose of ct+ fullest availability of radio progra's to all persons of US" Federal co''ission t&erefore &ad power to co'e up wit& rules to prevent unfair trade practices" $ondition was t&erefore t&erefore public interest convenience or necessity" $ourt6 Went wit& $ardoo’s dissent" ecause (1 even t&oug& public interest interest necessity and convenience are broad conditions t&ese are to be read along wit& t&e purpose of t&e act" #n t&is case t&e court said t&at t&e purpose was being s,uarely 'et even t&oug& t&e conditions are broadly fra'ed" /&ree principles principles governing governing 8udge’s 8udge’s decision6 decision6 1" 9aw 'ust 'ust &ave clear clear legisla legislative tive policy: policy:purp purpose ose 2" So'e So'e power power being given given to ac&ieve ac&ieve purpos purpose e wit& wit& condit condition ions s to t&e e-ecu e-ecutiv tive e (contingent on satisfaction of certain conditions 4" /&ese conditions conditions need not not be narrowly narrowly tailored tailored . can be broad broad as long as as t&ey’re 'eeting t&e purpose of t&e act
;atio6 /&erefore conditions need not be narrowly fra'ed as long as t&ey’re 'eeting t&e purpose of t&e act" /&e idea of a socialist state arises during t&e WW" Pana'a re)ning co'pany is a &indrance to t&e e-ecutive" 0ational broadcasting co'pany allowed t&e e-ecutive in US to function . 'a%ing co'pro'ise wit& strict SOP of US" /&ey didn’t want to overrule pana'a as not to vitiate constitutional power"
UK’s position on DL
0ot&ing preventing parlia'ent fro' delegating power to t&e ad'inistration"
/&ere was a plet&ora of delegated legislation during t&e late 13 t& and early 2= t& century" $o''ittee establis&ed . !onoug&e'ore $o''ittee ($o''ittee on ?inisterial Powers . to see w&et&er delegation of legislative power can be controlled . reco''endations given w&ic& &ad no binding power"
;eco''endations were6 1" #dentify essential legislative functions t&at can’t be delegated 2" Fi- t&e li'it of !9 in t&e Parent ct 4" ;e'ove *enry @###t& clauses (if t&ere’s an act w&ic& allows t&e e-ecutive to 'a%e rules . special power given to e-ecutive t&at if you t&in% t&is act is a conAicting wit& t&e rules you’re 'a%ing or b if you t&in% t&at t&is act isn’t suBcient enoug& to ac&ieve its purpose you can 'odify t&e act 5" Cac& &ouse of t&e parlia'ent 'ust &ave a standing co''ittee to go t&roug& t&e laws being 'ade by t&e ad'inistrative"
/&e $o''ittee t&erefore accepted t&e necessity of !9 and at t&e sa'e ti'e ac%nowledged proble's wit& giving !9 a free+&and" /&e $o''ittee co'es out of
g&ost of !icey" Parlia'ent doesn’t follow t&e' as t&ey’re 'erely reco''endatory in nature"
/&erefore all powers can be delegated to e-ecutive" UD Supre'e $ourt &as also not put any restrictions on delegation of legislative power by t&e legislature"
India’s position on DL
We &ave parlia'entary de'ocracy wit& constitutional li'its" /&erefore in b:w US and UD’s position of !9"
/&e scope of delegating aut&ority was discussed in 13E1 in t&e #n ;e !el&i laws act . )rst presidential reference see%ing advisory 8urisdiction of t&e S$ under rticle 154" /&ere were 4 pieces of legislation under consideration6
1" Section 7 of t&e !el&i 9aws ct of 1312
ives power to !el&i overn'ent to e-tend any law w&ic& is in force in any part of t&e country to !el&i"
2" Section 2 of t&e 8'er ?erwara e-tension of laws ct of 13E=
llows t&e govern'ent of 8'er+?erwara to e-tend any laws in any part of t&e country into t&e province of 8'er+?erwara
4" Section 2 of part $ state laws ct of 13E=
/&ey allow t&e Union /erritories to e-tend any laws w&ic& are enforced in any part states to part $ states
/&e govern'ent can co'e up wit& any 'odi)cations in all t&ree of t&ese laws" 4 gives special advantage to Part $ states t&at w&ile e-tending a diGerent law to t&at territory Part $ state can repeal or a'end a prevalent law"
/&ree #ssues6
H16 $an t&e e-ecutive be given t&e power to e-tend a law to its 8urisdiction> H26 #f yes can t&e e-ecutive do it wit& restrictions and 'odi)cations> H46 $an t&e e-ecutive be given t&e power to repeal and a'end laws 'ade by t&e legislature w&ile it is e-tending t&e law>
/&is case was decided by a seven+8udge benc&" /&ey were inAuenced by 'erican 8udg'ents" /&ere was #ndian precedent . Privy $ouncil and federal court decisions before t&e S$"
Privy $ouncil precedent6 Queen v" Burrah + governor general and council decided t&at cri'inal and civil 8urisdictions of t&e aro &ills will now be ad'inistered by an oBcer appointed by t&e lieutenant general t&e aro &ills" Secondly t&is act allows t&e lieutenant general to e-tend t&is act fro' aro &ills to D&asi &ills" urra& . a D&asi resident co''itted 'urder . oBcer appointed by lieutenant general gave &i' a deat& sentence" $alcutta *ig& $ourt said t&is was e-cessive delegation as overnor eneral already getting power fro' ritis& overn'ent . it cannot t&erefore delegate t&is power furt&er" Privy $ouncil reversed t&is decision saying t&at t&is isn’t e-cessive delegation as t&e governor general &asn’t been delegated power &e &as plenary powers . not an agent of t&e ritis& govern'ent"
Federal $ourt Precedent6 Jatinder Mohan Gupta v" State of Bihar . t&ere was a i&ar 'aintenance of public order cat and t&e govt" of i&ar to e-tend t&e life of t&e act post e-piry" W&ile e-tending life of t&e law it can 'odify it as well" F$ said t&at t&e e-ecutive cannot be given t&e power to e-tend t&e life of a legislation because it
a'ounts to reenact'ent by t&e e-ecutive" ;eenact'ent of t&e law is an essential legislative function w&ic& can only be done by t&e legislature"
!ecision6 y ?a8ority of E62 )rst two ,uestions in t&e positive last in t&e negative as t&at is an essential legislative function"