manner and form explained
Manner and Form
Introduction
by Anne Twomey∗
Does anyone really understand manner and form? This was the question that George Williams put to me when asking me to give this paper. The answer has to be ‘very few people indeed’. Why? There appear to be two reasons. The first is that most lawyers have been brought up on a diet of the Commonwealth Constitution and assume, incorrectly, that State Constitutions function in the same manner. This is largely the consequence of Law Schools focusing almost exclusively on the Commonwealth Constitution and failing to teach ‘manner and form’. The second reason is that until recently, there were very few entrenched State constitutional provisions. Those that existed covered major issues of governance, such as the existence of a Legislative Council, which were not likely to involve issues relevant to the practice of the average lawyer.
This position has begun to change. The volume of entrenched State constitutional provisions has increased in recent years, particularly in Victoria where there is now an abundance of purportedly entrenched provisions covering subjects ranging from the delivery of water services1 to access to government information.2 Many of these provisions are likely to be ineffective, so it would be dangerous to take them at face value. A much keener analysis is required to determine their effect, if any.
The other change of importance is the increasing use of constitutional implications as a means of constraining legislative power. While the High Court has given some guidance as to the application of constitutional implications at the Commonwealth level,3 particularly with regard to the implied freedom of political communication, there is very little understanding of how (or even if) the same principles can be applied to State Constitutions.
Understanding manner and form is absolutely fundamental to understanding the operation of State Constitutions. Without that understanding, it is impossible to know
Introduction
by Anne Twomey∗
Does anyone really understand manner and form? This was the question that George Williams put to me when asking me to give this paper. The answer has to be ‘very few people indeed’. Why? There appear to be two reasons. The first is that most lawyers have been brought up on a diet of the Commonwealth Constitution and assume, incorrectly, that State Constitutions function in the same manner. This is largely the consequence of Law Schools focusing almost exclusively on the Commonwealth Constitution and failing to teach ‘manner and form’. The second reason is that until recently, there were very few entrenched State constitutional provisions. Those that existed covered major issues of governance, such as the existence of a Legislative Council, which were not likely to involve issues relevant to the practice of the average lawyer.
This position has begun to change. The volume of entrenched State constitutional provisions has increased in recent years, particularly in Victoria where there is now an abundance of purportedly entrenched provisions covering subjects ranging from the delivery of water services1 to access to government information.2 Many of these provisions are likely to be ineffective, so it would be dangerous to take them at face value. A much keener analysis is required to determine their effect, if any.
The other change of importance is the increasing use of constitutional implications as a means of constraining legislative power. While the High Court has given some guidance as to the application of constitutional implications at the Commonwealth level,3 particularly with regard to the implied freedom of political communication, there is very little understanding of how (or even if) the same principles can be applied to State Constitutions.
Understanding manner and form is absolutely fundamental to understanding the operation of State Constitutions. Without that understanding, it is impossible to know