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Constitutional Law Assignment 2011

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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 …show more content…

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 power,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

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