Homework Question - Who Owns the Land that Prison is On?

[AllForHer]

So, in short, we have been told to assume the Commonwealth can make legislation on this subject matter, but we have to find some other way in which the Act itself isn't Constitutional. Make sense?

 

[Maria1]

Hi, Allforher. I am currently faced with a similar question. Thank you for posting this because I thought I was in the wrong direction. Now just trying to structure my answer

 

[AllForHer]

I actually slightly amended my direction - the Cth legislation basically impedes on the State's right to exercise legislative powers in respect of that subject matter, which is contrary to the Melbourne Corporation principle and therefore the Constitution. I've also identified issues with the Courts since they're not really Chapter III courts, but like you, I'm trying to now find the best way to structure my argument! Trying to stick to IRAC, but it's not as easy as anticipated.

 

[Tim W]

I'm curious now. Why do you think there is a Constitutional issue?

They're law students.
It's their assignment question in Constitutional.

 

[AllForHer]

In case anyone was wondering, I got 36/40 (or 90%) for this assignment. Cheers for the help, @Tim W.

 

[Rod]

Congrats. BTW, where is Tim's help, can't see it here.

I'd not heard of the Melbourne Corporation before but to me it sort of seems obvious. You can't be allowed to grant yourself powers that are not listed in a constitution because the alternative leads to tyearanny. If you need extra powers then amend the constitution. Seems like a fairly fundamental principle to me.

 

[AllForHer]

Tim's assistance was given in my first thread regarding this topic.

Melbourne Corp principle runs a bit deeper than that. It's not about restricting the Commonwealth from tyearannical governance, it's more about upholding the parallel structure of plenary State powers and restricting federal powers to within the heads of power. If it were intended just to restrict tyearanny, the States wouldn't have plenary powers, either.

Amending the Constitution is also not that easy - it requires a referendum, and there have only been eight successful referendums out of 44 since the Constitution was enacted.

Anyway. Onward to exams.