Characterisation and separation of powers

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Introduction The constitutional validity of the Regulating Organic Food Security Act 2014 (Cth) (Impugned Act, hereafter referred to as IA) is an issue that will be discussed in this essay in addition to whether the National Organic Food Security Commission is valid as well. Both of these will be discussed with regards to the issues of characterisation and separation of powers. Head of power/Trade and Commerce Firstly the scope of power in this case is non-purposive and the physical movement of organic food across state borders satisfies the term trade[1], a term which is enumerated in s51 (i)[2] of the Australian Constitution, under trade and commerce.

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However the issue arises of whether the IA applies to interstate only. It is implied that s 51 (i) does not give rise to a legislative powers in regards to trade and commerce operating intrastate. For the IA to be enforceable upon ‘Healthy Meals Now’ and ‘Get-it-there-Quick’ it must purport to regulate intrastate trade and commerce.Despite this even though there is no explicit power to support intrastate trade regulations[3], intrastate trade may be allowed and be regulated if it is intimately connected to interstate trade and commerce[4] as well as if it is fundamentally economically linked with interstate trade and commerce[5] in which case reasonably is. In determining the constitutional validity of the IA, the Commonwealth Constitution head of power must be interpreted. In relation to this, there are two approaches that can be utilised when observing the IA and the first is to view the IA in regards of the narrow ‘golden rule’ approach or secondly on a broad interpretation approach. Both of these have similar fundamentals in terms defining words on their plain definition so that it does not create an illogical outcome. Hence to determine constitutional validity it is in essence to interpret the restrictions of the head of power. In this case the effect of the IA should be measured using a broad interpretation of the trade and commerce power. This approach interprets the legislation whilst maintaining that public policy principles that arise from a piece of legislation remain logical. The important point is that there must be attention to the duties that may arise or be eliminated as a result of the IA in addition to the character of powers and any rights in which the IA may create, change or exclude.[6] To establish the constitutional validity of the National Organic Food Security Commission (NOFSC) it must be characterised to its real character as well as its true nature[7]. The direct operation of the IA within s51 (i) of the Commonwealth Constitution must be considered so that it can be determined whether or not the NOFSC is a legitimate use of power.[8] The courts also have a duty to determine the proper operation of the IA in eliminating,

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