Outline: The purpose of this paper is to Advise Allan, Belinda and CareFree Pty Ltd as to the constitutional validity of the Medicinal Cannabis Act 2011 (Cth) (MCA) in terms of whether its provisions apply to them under the trade and commerce power s 51(i) and as to whether the MCEA (Medicinal Cannabis Export Authority) is constitutionally valid in light of the separation of judicial power doctrine. This paper begins by analysing the validity of MCEA.
In doing so the paper not only confers to the characterisation of the laws under the trade and commerce powers of s 51(i), but also includes the implied incidental powers and the doctrine of principles of separation of judicial power. There after it advises Allan, Belinda and Carefree Pty Ltd as to the constitutional validity of the MCA. The rational is simply to first understand the constitutional validity of MCEA, as the outcome of the advisory matter inherently depends on it. Jurisdiction:
The foremost step in determining the validity of the given ACT is to determine the jurisdiction of the given Act. This Medicinal Cannabis Act 2011 (Cth) is a commonwealth Act therefore falls under the Commonwealth Constitution instead of the state based constitution. Validity of Medicinal Act 2011? This paper aims to prove whether the given impugned law is valid or invalid. In doing so it follows a three step process in order to determine the validity of the Commonwealth legislation as set out in Grain pool of Western Australia V Commonwealth.
Commonwealth Constitution Head of Power: The current given Act falls under s 51(i) of the Commonwealth Constitution. This section states that “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to trade and commerce with other countries, and among the States”. In interpreting the Medicinal Cannabis Act 2011, this paper sought to adopt golden rule approach which states that the wording of the statue, Constitution is also a statue; the words must be aken as its natural and ordinary meaning. According to the natural and ordinary meaning, the parliament has the powers to make law for peace, order and good government of the commonwealth with respect to trade and commerce with other countries and among states. In the MCA the parliament under Commonwealth Constitution s 51(i) has power to make this Act, as it involves trade and commerce with the other countries and among the states, the moral and political implication of export of cannabis are not being considered in this paper.
Therefore according to the golden rule approach of interpretation, Commonwealth has powers to enact the MCA. Furthermore according to Kirby J in the BLF case when the text of the legislation is explicit and the meaning is clear it must be applied. However where the meaning of the words in the legislation is ambiguous and unclear then the court may refer to the other approaches such as extrinsic materials. It is now that the words of the heads of power must be given broad interpretation according to the Bank Nationalisation case.
Therefore in broad terms the words “power to make laws for the peace, order, and good government of the Commonwealth” means that the given legislation falls under the peace and good government in relation to “the trade and commerce with other countries and among states”. As it aims to regulate the export and cultivation of cannabis for the sole purpose of medicinal use. In the present legislation, words have a clear meaning and thus according to the golden rule approach, their natural and ordinary meaning will apply.
Therefore the parliament enactment of the given Act is within the power and the scope of head of power which is in the present case Commonwealth Constitution s 51 (i). Characterisation of the impugned Act: The second step in determining the validity of the given Act is the characterisation. “Characterisation” refers to the process of determining whether a law falls within one of these heads of power. In simple characterisation refers to the nature of the legislation. It has been already established that under the s 51(i) head of power the parliament has the power to enact the given legislation.
In characterisation, this paper seeks to determine, whether the given act falls under the subject matter and or purpose power of the head of power, the Commonwealth Constitution s 51 (i) is a subject matter power and therefore looks at characterisation of this subject matter power. In determining the characterisation of the given law this paper raises what is the direct legal operation of the given Act or according to Latham CJ in Bank Nationalisation Case what is the actual operation of the impugned law and what the law does in “terms of creating, changing, regulating or abolishing, rights duties, powers or privileges”.
The given impugned law deals with regulating the trade and commerce of cannabis for medicinal purpose. In doing so the legislation put certain restrictions on people and businesses in order to regulate the cannabis export purely for medicinal purpose, and at the same time it restricts and forbids the dealing of cannabis for any other purpose. Even though there are sections of the impugned legislation that seems out of its character such as restrictions on aerial spraying,and does seem to make this character invalid, but as it is known that the presence of other purposes outside the powers of the parliament will not invalidate the legislation.
Also once it is recognised that a law may possess several distinct characters, the fact that only some of the elements in the description of the law falls within one or more of the heads of power, will be in no way fatal to its validity. Therefore in the given impugned law, the MCA is related to the trade and commerce with other countries, the character of the law, even though not all of them, does fall under the enumerated head of power Commonwealth Constitution s51 (i).
Therefore the given Act is valid in terms of its character, as it affects the trade and commerce of cannabis for the purpose of medicinal use. Sufficient Connection with head of power: The third step in determining the validity of the impugned law is to ask whether there is a sufficient connection with the head of power. That is how close the connection is between the impugned law and the heads of power. Sufficient connection with head of power fairly described as a law “with respect to” a head of power.
Next step is how close a connection needs to be? This is answered in Re Dingjan: Ex parte Wagner that “connection need not be close, but must not be too ‘insubstantial, tenuous or distant’. As in the given head of power, is the power to legislate with respect to trade and commerce the words “with respect” ought never to be neglected in considering the extent of power conferred. Therefore in the given impugned law, trade and commerce of cannabis is under the powers of the given head of ower,there are certain characters such as aerial spraying, licensing arrangement and other restrictions that seem to be outside the scope of the given head of power, According to Dixon CJ in Grannall v Marrickville Margarine Pty Ltd “ every legislative power carries with it the authority to legislate in relations to acts, matters and things the control of which is found necessary to effectuate it main purpose and thus carries the power to make laws governing or affecting many matters that are incidental to the subject matter. Therefore there is sufficient connection with Medicinal Cannabis Act 2011 and the given head of power.
As it is necessary outcome in order to maintain the trade and commerce of cannabis. It is not appropriate to rely on incidental powers, as they are related to safety issues concerning the subject matter. In the present case there is no safety issue, thus incidental powers are not in question. Breach of Separation of Judicial Power: In this part of the paper seeks to counter the application of the doctrine and principles separation of judicial power. Judicial powers are defined by Griffith CJ as power which every sovereign authority must of necessity have to decide controversies between subjects, itself and its subject.
Judicial power is divided into three component, Legislative, Judicial and executive, and they must be independent of each other in order to achieve fairness and justice. As Dixon J has suggested that “by virtue of the separation of powers, parliament is restrained both from reposing any power essentially judicial in any other organ or body and from reposing any other than that judicial power in such tribunals. In the given impugned law, section 2(1) it states that the presidential member will be Judge of the Federal Court of Australia with tenure of 7 years maximum.
However it is acknowledged that Chapter 3 courts can only exercise Chapter III powers, and justices are to have a specific tenure. Which in the given impugned law is described as 7 years maximum? There is also a rule that Chapter III courts cannot exercise powers other than Chapter III. In the given impugned law there is a breach of Chapter III power exercise rules, however there is an exception persona designata, Although Judges may not perform non judicial task, as part of their judicial oles, appointment of Judge personally or as an individual rather than a judge to non-judicial role is allowed. Therefore the placement of Justice on the MCEA export authority will be valid under separation of power doctrine, however it must be asked, since persona designata is applicable, is it compatible with Commonwealth Constitution s72 tenure. Because of the limited information available, it is not known who will be the judge; hence this paper is unable to evaluate the incompatibility issues applicable in this matter.
In simple it will be incompatible, if the Justice appointed as a member, will be also be dealing with determination of MCEA under MCA s 6 than there will be breach and persona designata will not apply, thus it will render the MCEA constitutionally invalid. Advisory finale: From the above it is concluded that the Medicinal Cannabis Act 2011 (Cth) is constitutionally valid. Even though some characters of the impugned law does not fit the head of power, but possesses sufficient connection, thus concluding the legislation as constitutionally valid.
Therefore the following advice is given accordingly. Allan: Allan, after the research, this paper could not get a hold onto the MCEA conditions, however, provided the constitutionally validity of the given Act, MCEA is on the right by refusing to grant you a license to transport. You may take your matter further with MCEA and challenge their decision based on terms and conditions set by MCEA Belinda: This paper has reached a conclusion, where it finds MCEA constitutionally valid both under the head of power s51 (i) and under the judicial power doctrine.
Thus, your infringement notice of $10000 is constitutionally valid. This paper had its limitation, as aerial spray condition is very likely to infringe other legislations, such as freedom doctrine, however due to the limitation, this paper did not consider other avenues. You are strongly advised to seek second opinion, and you may be able to seek a more favourable decision. Carefree Living Pty Ltd: This paper has reached a conclusion, where it finds MCEA constitutionally valid. Therefore MCEA condition of export license must be fulfilled.
This paper is limited by its resources, and cannot comment on the terms and conditions of the MCEA, however, it is very likely those there terms and conditions may infringe other legislations which may render their criteria as invalid. Conclusion: This paper concludes that the Medicinal Cannabis Act is constitutionally valid under the head of power 51(i). Paper is limited by the information provided in order to evaluate its validity under the separation of power doctrine, provided MCEA meets the requirement of persona designata and refute any incompatibilities, based on the information provided.