THE POSSIBLE CONSITUTIONAL VALIDITY OF THE IRON ORE PROCESSING (MINERALOGY PTY. LTD.) AGREEMENT ACT 2020 (WA) DESPITE ITS IMPLIED ENCROACHMENT TOWARDS JUDICIARY POWERS

Abstract

This paper will look at the possible Constitutional validity of the Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Amendment Act 2020 (WA) (The Agreement Act (WA)). It will be based on the principles of separation of powers and the rule of law considering the differences between judicial and non-judicial power and how the incompatibility doctrine stems from this dichotomyi . Prima facie, some sections of the Agreement Act (WA) come across as discriminatory where the Western Australian State Parliament encroaches on powers reserved exclusively to the judicature. These sections will be reviewed considering, taking the Agreement Act (WA) on its whole, may be interpreted as Western Australia not encroaching on Chapter III of the Australian Constitution but rather playing its part by making law in line with Western Australian public policy, a power specifically reserved for State legislature.ii Before this, Chapters III & V of the Australian Constitution will be looked at to assist in providing a specific point of reference as to where the judiciary and state legislative powers lie. Following these will be a comparative analysis of cases arguing both for and against the validity of an Act where separation of power encroachment serves as a focal point. The ratio decidendi and some orbiter dictum of these cases will provide a bigger picture of this debate and confirm the non-absoluteness of one correct argument.iii And finally, based on the findings, it will be opined that the Agreement Act is valid.