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.
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 taken 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...