Australian constitutional law
Encyclopedia
Australian constitutional law is the area of the law of Australia
relating to the interpretation and application of the Constitution of Australia
. Several major doctrines of Australian constitutional law have developed.
For the story of how Australia evolved from a set of British colonies to an independent nation, see constitutional history of Australia
. For a briefer outline of the basic structure of the Constitution, see Commonwealth of Australia Constitution Act. For an overview of constitutional law generally, see constitutional law
.
in 1900 after its text had been negotiated in Australian Constitutional Convention
s in the 1890s and approved by the voters in each of the Australian colonies. (The British government did, however, insist on one change to the text, to allow a greater range of appeals to the Privy Council
in London.) It came into force on 1 January 1901, at which time the Commonwealth of Australia came into being.
The Constitution created a framework of government some of whose main
features, and sources of inspiration, were the following:
This last feature – the ability of the courts to declare legislation unconstitutional and therefore invalid – is itself the source of the body of constitutional doctrine examined in this article. It has its origin in American experience, where the right of the Supreme Court of the United States
to strike down legislation deemed incompatible with the Constitution was first asserted by the Supreme Court itself in the seminal case of Marbury v. Madison
in 1803. Although completely foreign to both British and Australian colonial experience, the framers of the Australian Constitution clearly intended that the practice would take hold in Australia, and even expressly adverted to it in the Constitutional text (in section 76). This power of judicial review
of legislation for conformity with the Constitution has been exercised almost exclusively by the High Court of Australia
, and almost invariably with a Full Bench of all its members.
A brief overview of the other listed features will provide a background for the doctrinal developments examined below.
" is not used in the Constitution, it was intended that the Commonwealth (like the colonies) would continue to recognise the British Sovereign. "The Queen" (meaning Queen Victoria
, and defined to include "Her Majesty's heirs and successors in the sovereignty of the United Kingdom"), was one of the three elements of Parliament
, along with the Senate and the House of Representatives (section 1). Today the Queen of Australia has replaced the Queen of the United Kingdom within Australia's parliament, though they happen to be the same person. The Monarch is represented in Australia by an appointed Governor-General
. The executive power is vested in the Governor-General "as the Queen's representative" (section 61), as is the command-in-chief of the armed forces (section 68).
The text of the Constitution assigns sweeping powers to the Governor-General, e.g., to dismiss Parliament (sections 5 and 57), to refuse assent to Bill
s passed by Parliament (section 58), and to appoint and dismiss government Ministers (section 64). At the time the Constitution was drafted and adopted, though, it was understood that constitutional convention
would limit the exercise of these powers. A governor-general, like the former Governors of the Colonies, would only act on ministerial advice except in extreme circumstances.
However, this reliance on constitutional convention
, rather than the constitutional text, means the limits of the Governor-General's powers are unclear. Powers that can be exercised without or against ministerial advice are reserve powers. They include the power to commission a Prime Minister
, except that where a particular party or coalition of parties has a majority of seats in the House of Representatives and an acknowledged parliamentary leader, that person must, by convention, be chosen. They probably include the power to dismiss a Prime Minister who has been subject to a vote of no confidence
in the House of Representatives and who refuses to either resign or advise the calling of an election.
The reserve powers may also include the power to dismiss a Prime Minister who is engaging in persistent illegal action (Governor Sir Philip Game
of New South Wales dismissed Premier Jack Lang on this ground in 1932). However, it remains controversial whether they include the power to dismiss a Prime Minister who, while retaining the confidence of the House of Representatives, is not able to get the annual supply Bill
passed by the Senate, as happened during the Australian constitutional crisis of 1975
; when the Governor-General acted against the advice of Ministers.
The role of the Queen is nowadays even more circumscribed, and amounts only to appointing (and, in theory, dismissing) a Governor-General on the advice of the Prime Minister
, as well as performing (by invitation) certain ceremonial functions when she is personally present in Australia. See Constitutional history of Australia
for further details on the development of the monarch's role in relation to Australia.
The importance of constitutional convention
s in this area means that Australia cannot be said, strictly, to operate entirely under a written constitution
, but has to some extent a system like the British unwritten constitution. However, it would be a mistake to exaggerate the importance of this aspect of Australia's constitutional
arrangements, because:
polity, with enumerated limited specific powers conferred on the Federal Parliament. The State Parliaments are not assigned specific enumerated powers; rather the powers of their predecessor colonial Parliaments are continued except insofar as they are expressly withdrawn or vested exclusively in the Federal Parliament by the Constitution. An alternative model, the Canadian
, in which it is the regional (State) units who are assigned a list of enumerated powers, was rejected by the framers.
The bulk of enumerated powers are contained in section 51
and section 52. Section 52 powers are ‘exclusive’ to the Commonwealth (although some section 51 powers are in practice necessarily exclusive, such as the power with respect to borrowing money on the public credit of the Commonwealth in paragraph (iv), and the power to legislate with respect to matters referred to the Commonwealth by a State in paragraph (xxxvii)). By contrast, the subjects in section 51
can be legislated on by both state and Commonwealth parliaments. However, in the event of inconsistency or an intention by the Commonwealth to cover the field the Commonwealth law prevails by section 109
.
Both concurrent (section 51
) and exclusive (section 52) powers are stated to be "subject to this Constitution". As a result, the Commonwealth's law-making power is subject to the limitations and guarantees in the Constitution (both express and implied). For example, section 99 forbids the Commonwealth from giving preference to any State or part of a State "by any law or regulation of trade, commerce, or revenue". And as discussed below, an implied guarantee of freedom of political communication has been held to limit the Commonwealth's power to regulate political discourse.
The list of powers assigned to the Federal Parliament is quite similar to that assigned by the United States Constitution
to the Congress
, but is in some respects broader: for instance, it includes "astronomical and meteorological observations", marriage and divorce, and interstate industrial relations. The interpretation of similar heads of power – for instance the Trade and Commerce Power
in Australia and the Commerce Clause
in the US – has in some cases been different.
The constitution also provides some opportunities for Federal-State co-operation: any State can "refer" a "matter" to the Commonwealth Parliament, and the Commonwealth Parliament can exercise, "at the request or with the concurrence of the Parliaments of all the States directly concerned", any power which, at the time of Federation, could be exercised only by the British Parliament.
Bill, although as the Australian constitutional crisis of 1975
demonstrates, it may defer or refuse to pass such a Bill altogether; Bills to impose taxation or appropriate revenue may not originate in the Senate; and the Senate may not amend a Bill so as to increase taxation.
Again, federalism is evident in the process of constitutional amendment
, which requires that the Bill to amend the Constitution be approved by a majority of electors overall and a majority of electors in a majority of States (that is, four out of the six).
Additionally, amendments "altering the limits" of a State or diminishing its proportional representation in Parliament require the approval of electors in that State.
it, and that the continued existence of the government would depend on it maintaining the confidence of at least the lower house of the legislature.
These arrangements, however, are only hinted at in the text of the Constitution. There is a requirement (section 64) that the "Queen's Ministers of State", who are nominally appointed by the Governor-General, be or swiftly become members of either House of
Parliament. The existence of the Prime Minister
and Cabinet
, and the requirement for them to have the confidence of the House of Representatives, are not mentioned. Nonetheless, these have been fundamental features of Australian constitutional practice from the start.
. Legislative power is dealt with in Chapter I, and is vested in the Federal Parliament (section 1). Executive power
is dealt with in Chapter II, and is vested in the Governor-General as the Queen's representative (section 61). The judicature is dealt with in Chapter III, and is vested in the Federal High Court and "in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" (section 71).
However, the Queen is an element of the Parliament as well as being head of the executive; and the Ministers of State who "advise" the Governor-General are actually required to be or become members of Parliament.
While there is no significant separation of the legislative and executive powers (the "political branches"), the High Court has developed an increasingly stringent doctrine of the separation of the judicial power from the other two.
of members to both Houses of Parliament from the beginning (sections 7 and 24). This was a novelty at the time, since the national upper houses with which the framers were best acquainted were chosen by other means: indirect election by the State legislatures (United States Senate
before the Seventeenth Amendment
in 1913), executive appointment for life (Canadian Senate
), or hereditary succession (United Kingdom House of Lords
).
On the same principle, any amendment to the Constitution requires approval at a referendum
, by the process set out in section 128 of the Constitution. A double majority – a majority of electors and of a majority of states – is required.
Constitutional referendums were based on the Swiss
practice. However, the Swiss use of the popular initiative
in constitutional amendment was not followed, so that constitutional alterations, although they must be approved by the people, can only be initiated by Parliament.
The use of the referendum in initially adopting the Constitution, and its requirement for constitutional amendment, has been cited by justices of the High Court to argue that the Constitution is fundamentally based on popular sovereignty
(rather than on the supremacy of the British Parliament, which is its technical legal foundation). This doctrine has achieved greater prominence since the cessation, in 1986, of all authority of that Parliament over Australia: see Constitutional history of Australia
for details.
There have been 44 proposals for constitutional amendment put to the people since Federation. Of these, only 8 have passed.
” doctrine and "implied inter-governmental immunities" were used to preserve state power. Reserved state powers holds that the Constitution should be read in a restrictive way so as to preserve as much autonomy as possible for the States. Implied intergovernmental immunities holds that Commonwealth and States are immune to each other’s laws and cannot mutually regulate each other’s governmental apparatus.
In 1920 the Engineer’s case
(after changes in the composition of the Court) swept away this doctrine. The court now insisted on adhering only to the language of the constitutional text, read as a whole, in its natural sense, and in light of the circumstances in which it was made: there was to be no reading in of implications by reference to the presumed intentions of the framers.
As a result, the constitution is no longer read in a way which attempts to preserve the power of the states.
, a line of judicial reasoning asserted that Commonwealth powers should be interpreted broadly rather than narrowly wherever possible2.
After Engineers, this approach was reinforced. For example, Section 109
, regarding inconsistency between Commonwealth and State laws, was broadly interpreted. Commonwealth law prevails not only where inconsistent obligations are imposed, but where Commonwealth legislation evinces an intention to "cover the field" by being the whole law on a particular subject3. The Commonwealth can "manufacture" inconsistency by expressly stating that its legislation is intended to cover the field. 4 However, an issue that was raised, without being conclusively resolved, in the Workplace Relations Challenge
was whether the Commonwealth can "clear the field" by stating an intention that State laws are not to apply even if the Commonwealth does not enact other laws in their place.
The Commonwealth can only legislate with respect to an enumerated head of power, This does not mean that the law must be solely, or even predominantly, directed at that head of power. As long as it can be "fairly characterized" as a law with respect to an enumerated power, it is irrelevant that it could also be categorised as a law regarding some other subject matter. 5.
Likewise, Parliament's motivation in passing the law is irrelevant.6 An example is environmental legislation. The Constitution does not provide the Commonwealth Parliament with any power to control the environment or its use. Nonetheless, a very broad-ranging environmental protection Act could be passed relying on a combination of powers such as interstate and international trade
, corporations
, taxation, foreign affairs
and so on. The law can be supported by those powers although Parliament intended it to be an ‘environmental law’. Particularly in the last two decades, many Acts of very wide-ranging effect have been passed on just these bases, in fields as diverse as environment protection, privacy, and anti-discrimination, fields in which the Commonwealth has no direct power.
being still a newer notion). Since one of the main reasons for Federation was to create a common market
, inevitably authority over these taxes was vested exclusively in the Commonwealth Parliament (section 90). It was acknowledged that this would create a situation where the Commonwealth would raise much more money than it could spend, whereas the States, being still responsible for most areas of law and of social infrastructure, would need to spend much more money than they could raise (the problem now known as "vertical fiscal imbalance
"). Although the framers were able to agree on a formula for distribution of the Commonwealth's surplus to the States in the first few years after Federation, they could not agree on a long-term formula. Accordingly, section 96 of the Constitution provides that the Commonwealth Parliament "may grant financial assistance to any State on such terms and conditions as it thinks fit".
One result of this has been that the Commonwealth has been able to make grants to the States on terms so specific as to amount to the virtual takeover of particular fields of competence. For instance, although the Constitution gives the Commonwealth no express power over education, by means of "tied grants" it has in fact become paramount in the field of tertiary education. Although any state has the option to refuse a grant, the consequences of doing so make this unattractive. Similarly, the Commonwealth has become dominant in the field of public hospitals, and a major player in the field of roads and other major infrastructure.
The Commonwealth has also come to monopolise income tax
(see Constitutional basis of taxation in Australia
. Once the advantages of income tax were recognized, both the Commonwealth and the States levied income taxes. However, during World War II
, the Commonwealth government decided to take over the collection of income taxes, and return some proceeds to the States as grants. The Commonwealth passed legislation to levy income tax at a nation-wide rate similar to the previous combination of Commonwealth tax and the various state taxes. Separate legislation then granted section 96 monetary grants to states provided the State did not levy income taxes. In practice, it would be difficult for States to continue taxing.
This arrangement was twice challenged by the States in the High Court, and twice upheld6,7. In Victoria v Commonwealth ("the Second Uniform Tax case")
(1957) 99 CLR 575 the taxation part of the scheme was valid based on the taxation power, and the grants held valid on the basis of the words ‘terms and conditions’ of section 96.
States are also at the mercy of the High Court's definition of an "excise duty," which states cannot levy. The High Court has long stated the definition in terms such as "an inland tax on a step in production, manufacture, sale or distribution of goods". However, it does not include a mere fee for a licence to carry on a particular business or profession. Accordingly, the States had for a long time levied, with the compliance of the High Court, "business franchise fees" on retailers of products, particularly liquor and tobacco products. These "franchise fees" were mostly calculated according to the value of the retailer's sales in a specific preceding period, rather than on the value of goods currently being sold. Although these seem similar to excise duties, a series of High Court precedents had effectively "quarantined" such fees from disallowance in the areas of liquor retailing, tobacco retailing, and petrol distribution. In 1997, by a bare majority, the High Court decided that this area of doctrinal quarantine was incoherent with the rest of the law relating to excise duties, and removed it8. The immediate result was the loss of some $5 billion (Australian) in the annual revenues of the States and Territories.
In 1999 the Commonwealth Parliament passed legislation introducing a new broad-based Federal indirect tax, the Goods and Services Tax; the revenue from this tax was to go entirely to the States and Territories, in exchange for their abolishing a range of other indirect taxes. By this stage, the financial dependence of the States on the Commonwealth had become almost complete.
Section 51(v) of the Australian Constitution
gives the Commonwealth Parliament power over "postal, telegraphic, telephonic, and other like services". With little controversy, this power now covers radio, television, satellite, cable, and optic fibre technologies.
A greater struggle occurred over Commonwealth legislation in the field of aviation. Commonwealth regulation is based on the interstate and international trade and commerce power
. Prima facie, it does not cover intrastate aviation. However, a purely intrastate aviation industry is no longer economically feasible and separate systems of state regulation pose safety concerns. As a result, the High Court held that all aviation has an interstate character, placing it within Commonwealth legislative power. It is interesting to note here that in 1937 a referendum was submitted to the people giving the Commonwealth power over aviation, and that the referendum was rejected by the people. The rejection of a power by the people has never persuaded the Court that the Commonwealth should not exercise the power.
Another example concerns intellectual property
. Although the Constitution gave the Commonwealth Parliament power over "copyrights, patents of inventions and designs, and trade marks", the enormous growth of electronic media content has given this power a much wider scope than could possibly have been envisaged at Federation.
and an amendment in 1928
allowed the Commonwealth to take over and manage state debts. An amendment passed in 1967
gave the Commonwealth power over Aboriginal affairs, which has had a significant effect particularly in the pastoral and central regions of Australia.
An amendment passed in 1946
gave the Commonwealth power to provide a wide range of social services. This included unemployment and sickness benefits, maternity allowances, child endowment, and medical and dental services. Apart from defence, social services is the largest area of Commonwealth expenditure. Along with the grants power, it is the basis for the Medicare
scheme of universal health insurance.
The High Court decided that the corporations power
was not broad enough to cover incorporation itself. 9. This decision threatened the validity of Australian companies incorporated under commonwealth law. The states used ‘the referral power’
to refer the power over incorporation to the Commonwealth Parliament.
The High Court has held that the power covers the regulation of conduct that takes place outside Australia. In particular, it was held sufficient to criminalise as war crimes conduct in Europe during World War II
conducted by Australian citizens resident in Australia. 11. (Note that the Commonwealth has no general criminal jurisdiction.)
The power has also been held to extend to the implementation of international treaties, even if the subject matter of the treaty is otherwise not within Commonwealth power. In the case of Koowarta v Bjelke-Petersen
, the High Court found that the Commonwealth had the power to implement the United Nations
Convention on the Elimination of All Forms of Racial Discrimination
in the form of the Racial Discrimination Act. In the case of Commonwealth v Tasmania
, the High Court has upheld Commonwealth legislation forbidding the Tasmanian government from proceeding with a dam that would have submerged an area of Tasmanian government-owned land that had been declared a World Heritage Area under the World Heritage Convention to which Australia is a party12. Land use is otherwise a State responsibility.
More recently, the external affairs power has been used to remove the States' power to criminalise male homosexual activity. This followed an adverse report by the Human Rights Committee
on Tasmanian provisions. The Human Rights Committee
was established under the International Covenant on Civil and Political Rights
, to which Australia is a party. Rather than challenge the resulting Commonwealth Human Rights (Sexual Conduct) Act of 1994, the Tasmanian Parliament repealed the legislation in question.
Although it would appear that there is an open-ended potential for the Commonwealth to encroach on areas of traditional State competence through the external affairs power, to date it has been used with some discretion, if only because the use of the power in this way inevitably excites considerable political controversy.
As corporations have come to dominate the economy, the practical scope the corporations power has increased. For example, in 2005 the Commonwealth Parliament enacted the WorkChoices
legislation, which, relying primarily on the corporations power, seeks to create a uniform national industrial relations system to the exclusion of both the States' and the Commonwealth's own industrial relations systems. Previous systems were based on the ‘conciliation and arbitration’ power. The new legislation applies to all employees of a "constitutional corporation." A constitutional corporation is a corporation within the meaning of section 51(xx) of the Constitution. The legislation also applies to employees of the Commonwealth and its agencies, and some others. The expected coverage of this law is approximately 85% of the Australian workforce. That proportion is likely to increase as employers who operate as sole traders or in partnerships incorporate in order to take advantage of the new legislation's relatively "employer-friendly" provisions.
On 14 November 2006, the High Court by a 5-to-2 majority upheld the validity of the WorkChoices
legislation against all the challenges that had been made to it in an action brought by each of the States and mainland Territories, as well as certain trade unions28. The single majority judgment, while it did not expressly adopt, waved aside all the objections that had been argued against the "object of command" test for the validity of the exercise of the corporations power. Accordingly, the judgment suggests that, henceforth, it may be a sufficient basis of validity that Federal legislation be specifically addressed to constitutional corporations ("A constitutional corporation must...", "A constitutional corporation must not..."), without any additional requirement that the legislation also address some aspect of the status or activities of corporations which is specific to such entities. If this is correct, then given the preponderant role of corporations in the modern economy, the possibility exists for substantial Federal control of the greater part of the economy, with little if any regard to the traditional constitutional "heads of power".
All but the last of these have been read down by the High Court, at least relative to the content of the corresponding United States guarantees. On the other hand, since the 1990s the High Court has been developing a jurisprudence
of rights said to be implied in the text and structure of the Constitution.
In addition, a constitutional requirement that "trade, commerce, and intercourse among the States ... shall be absolutely free" (section 92) was, for a time, interpreted as a guarantee of some degree of freedom from economic regulation by either Commonwealth or State Parliaments. The reference to "intercourse", on the other hand, has always been understood as guaranteeing a right to movement across State boundaries.
Although express protections for human
and civil rights
in the Constitution are scant, and have mostly been read down, some protections have been created by the High Court through its jurisprudence
on the separation of powers and through its findings of rights implied by the text and structure of the constitutional document.
, trial by jury
, and "just terms" compensation. (A referendum proposal to amend the Constitution to clarify these rights and to make them good also against the States was defeated in 1988.) As will be seen, guaranteed access to the High Court can itself amount to an important right. And the guarantee of free trade and commerce was for a time interpreted as something like an individual right.
The prohibition on establishing any religion has had nothing like the impact that the corresponding ban on making a law "respecting an establishment of religion" in the
First Amendment to the United States Constitution
has had in that country. The High Court, in rejecting a challenge to Federal funding of church schools13, seemed to take the view that nothing less than an explicit establishment of a State Church
as the official religion of the Commonwealth would come within the terms of the prohibition.
acquisition of property on just terms" in Section 51(xxxi)
. By contrast, the Fifth Amendment to the United States Constitution
contains a prohibition: "nor shall private property be taken ... without just compensation". The differences between acquisition and taking, and between terms and compensation, combined with the fact that the Australian provision is expressed as a positive grant of power coupled with a limitation, have been read so as to weaken the Australian guarantee relative to the American one.
The use of the term "acquisition" has been interpreted so as to require that the Commonwealth (or some other party for a Commonwealth purpose) actually acquire possessory or proprietary rights over the property in question, or at least some benefit: the mere extinguishment
of a person's proprietary rights by the Commonwealth (or a prohibition on effectively exercising them) is insufficient to amount to an acquisition12. And "just terms" has been taken to mean something less than "just compensation"; in particular, it does not necessarily require payment to the owner of the value of the property when it was compulsorily acquired14.
The Australian film The Castle
addresses this issue also.
for a Federal offence must be by jury
(section 80) has been rendered virtually worthless, because the High Court has decided that it is only applicable to a trial which proceeds formally by way of indictment, and it is completely in Parliament's discretion to decide which offences are triable on indictment and which are not. Powerful dissents to the effect that the section must be given some substantive meaning (e.g. that the trial of offences of some specific degree of gravity must be by jury) have not prevailed14.
On the other hand, where Parliament has prescribed jury trial, the
Court has been willing to impose some content on that notion. In
particular, it has insisted that conviction by a jury for a Federal
offence must be by the unanimous agreement of the jurors – a majority
verdict will not suffice15.
(section 76), and the exceptions to, and conditions on, its power to hear appeal
s (section 73). However, the Constitution grants the Court some original jurisdiction directly, without the possibility of Parliamentary limitation (section 75). This includes matters in which "a writ
of Mandamus
or prohibition
or an injunction
is sought against an officer of the Commonwealth".
In recent years, the Parliament has all but eliminated the possibility of appeal against many decisions in the area of migration
, especially in regard to applications for refugee
status. However, since the Parliament is not constitutionally able to limit or abolish access to the High Court for the purpose of applying for one of these "constitutional writs", such applications have become a major means of challenging migration decisions. In fact these applications now constitute the bulk of the Court's work.
was the High Court's disallowance of a Commonwealth Act which had the aim of nationalizing the banking industry16.
Finally, however, in Cole v Whitfield
, which was notable also for its willingness to use the transcripts of the Convention debates as an aid to interpretation, the Court unanimously decided that what the section prohibited, in relation to interstate trade and commerce, were only "discriminatory burdens of a protectionist kind"17. That is, the section did no more than guarantee "free trade
" (in the conventional sense) among the States. But in relation to "intercourse" (i.e. personal movement between States), the Court suggested that the scope of the guarantee would be much wider, and may even, in relation to some forms of such intercourse, be truly absolute.
that sections 7 and 24 of the Constitution, which state that the Senate and the House of Representatives "shall be composed of members directly chosen by the people", conferred a limited "right to vote"18. In principle, these words guaranteed qualified universal franchise, and limited the Federal government's legislative power to limit that franchise.
The case itself concerned Commonwealth amendments, passed in 2006, which disenfranchised all prisoners from voting. Prior to the amendment, the Commonwealth Electoral Act disenfranchised only those prisoners serving sentences of three years or more. The case was brought by Vickie Roach who is serving a four year gaol term for negligently causing serious injury in a car accident and her legal team comprised Ron Merkel, QC and Michael Pearce, SC. In the past High Court Judge Michael Kirby had written that "...in Australia, there may be a basic right to vote implied in the text of the constitution itself". The court held that the 2006 amendments were invalid as they went beyond the limit of what is permissible under sections 7 and 24. However, the court upheld the validity of the statutory provisions prior to amendment.
, concerned a Federal provision criminalising the "bringing into disrepute" of members of an industrial relations tribunal, and a prosecution under that provision of a person who had published a
newspaper article repeatedly describing such members as "corrupt" and "compliant"19. The second case, Australian Capital Television Pty Ltd v Commonwealth
, concerned a Federal attempt to ban political advertising on radio and television during election periods and to strictly control it at other times, via a system of "free time" entitlements20.
In both cases, the majority of the High Court reasoned that, since the Constitution required direct election of members of the Federal Parliament, and since moreover the Ministers of State were required to be or swiftly become members of that Parliament, the result was that "representative democracy is constitutionally entrenched". That being so, freedom of public discussion of political and economic matters is essential to allow the people to make their political judgments so as to exercise their right to vote effectively. Furthermore, since "public affairs and political discussion are indivisible", it is impossible to limit this necessary freedom to purely Federal issues:
it applies also to issues which might be the preserve of the State or local levels of government. Therefore, there is implied in the Constitution a guarantee of freedom of communication on all political matters.
The Court stressed that this freedom is not absolute, but the result in both cases was that the relevant Federal legislation was struck down. In the latter case, some strong dissents to the effect that limiting expenditure on political advertising in the electronic media might actually enhance representative democracy did not prevail.
Both these cases concerned the validity of Federal legislation. But two years later, the Court extended the implied guarantee into the area of private law, by holding that it also applied to limit the statutory and common law of defamation
. A former chairman of a Commonwealth Parliamentary Committee on Migration claimed to have been defamed by a newspaper which had published a
letter accusing him of bias, in his official capacity, towards people of his own ethnic background21. By trial, it was conceded that the accusation was false. However the Court accepted a "constitutional defence" which was said (by three Justices) to operate when otherwise defamatory statements concerning the fitness of a public official to hold office were published without knowledge of, or recklessness as to, their falsity, and when publication was
reasonable in the circumstances.
This case, however, and a series of following cases, failed to produce a clear statement of the operative principle which commanded the support of a majority of the Court. But in 1997 (in Lange v Australian Broadcasting Corporation
which, curiously, involved the alleged defamation of a former Prime Minister of New Zealand22) a unanimous Court did state the operative principle. It rejected the "constitutional defence" of the migration-bias case just discussed, and instead expanded the scope of "qualified privilege", requiring the defendant to have actively taken reasonable steps to verify the accuracy of the published material, and also, in most circumstances, to have given the defamed person an opportunity to respond. On the other hand, the Court made it clear that the qualified privilege may extend to discussion concerning the United Nations and other countries, even where there is no direct nexus with the exercise of political choice in Australia.
The constitutional guarantee of freedom of political communication is, prima facie
, far more restricted than the generalized guarantee of
freedom of speech and of the press in the First Amendment to the United States Constitution
. But it remains to be seen whether a suitable expansion of the notion of "political communication" may not lead, in time, to a similar result. In the migration-bias case, some of the Justices, while being careful to quarantine "commercial speech without political content", seemed to imply that the scope of "political speech" may nevertheless be very broad indeed. Mitchell Landrigan goes as far as arguing that the exception to the Anti-Discrimination Act 1977 (NSW) permitting the exclsion of women from ordination as priests infringes the right of women to "rise to positions from which they may take part in political speech as [politically persuasive] religious leaders."
The judicial power of the Commonwealth is vested, in Chapter III of the Constitution, in the High Court and such other courts as the Parliament creates or invests with Federal jurisdiction (section 71). In Australian constitutional jargon, such courts are called "Chapter III courts". The members of Chapter III courts can only be removed by the Governor-General on an address from both Houses of Parliament on the ground of proved misbehaviour or incapacity, and otherwise hold office until the age of 70 (section 72). (Judicial office was originally for life; the age limit was introduced by a referendum in 1977.)
In separate cases in 191523 and 191824, the High Court held that "judicial power" (essentially, the power of interpretation of the law and enforcement of decisions) could not be invested in anything other than a Chapter III court, and specifically, in anything other than a body whose members have life tenure. Conversely, in the Boilermakers' Case
of 195625, the Court held that Chapter III courts could not be invested with anything other than judicial power. (By this decision, the system of industrial arbitration that had been in place for 30 years, and which involved judges of the Conciliation and Arbitration Court acting in both a judicial and an administrative capacity, was overturned.)
To some extent the rigour of this doctrine was softened by the Court's subsequent acceptance that judges could, constitutionally, be assigned functions in their personal capacity as judges rather than as members of a Chapter III court. But this raised the question of which such functions were compatible with the simultaneous holding of Federal judicial office. The answers offered by the Court have been controversial and have involved some very fine distinctions: for instance, it has held that a power to authorize telephone interceptions is compatible26, while a power to make recommendations concerning the protection of land which might be of heritage significance to Aboriginals is not compatible27.
The most striking application (and extension) of this "incompatibility" doctrine, however, has involved the Supreme Court of the State of New South Wales. (Recall that in the Australian model of federalism, the Parliament may invest State courts with Federal jurisdiction: this "autochthonous expedient", in the words of High Court Justice Sir Owen Dixon, was essentially an economy measure in a country of small population. It has been Kable v Director of Public Prosecutions (NSW) 28 concerned a criminal law passed by the New South Parliament and directed at a single named individual (somewhat in the manner of a Bill of attainder
). The individual was a prisoner (under State law) whose sentence was about to expire but who was alleged to have made threats against the safety of various persons, to be carried out when released. The State Parliament enacted a law, applying only to him, which authorized the Supreme Court of New South Wales to make "preventive detention orders" for periods up to six months, with the possibility of renewal. The orders were to be made if the Court was satisfied, "on the balance of probabilities", that the person to whom the Act applied was "more likely than not to commit a serious act of violence".
It is clear that, had the Federal Parliament passed such an Act, it would be found invalid, as being in effect a legislative judgment, and so in violation of the constitutional separation of the judicial power. However, the High Court found that the separation of powers was not a feature of the New South Wales constitution, and so the State Act was not invalid on that ground.
The Act was found invalid, however, on the ground that, since the Supreme Court of New South Wales had been invested with Federal jurisdiction, it must not be required to perform a function which is "incompatible" with the exercise of the judicial power of the Commonwealth. To that extent, the States are not free to legislate as they please with respect to their own courts. And a requirement to order the "preventive detention" of someone who has not been charged with any criminal offence was found "incompatible" with the exercise of Federal judicial power. In this rather circuitous manner, the High Court has found a limited constitutional guarantee of due process.
"CLR" stands for the Commonwealth Law Reports, "ALR" for the
Australian Law Reports. Each case also has a link to the full text
online at the Australian Legal Information Institute (AustLII).
1Amalgamated Society of Engineers
v Adelaide Steamship Co Ltd (1920) 28 CLR 129 AustLII
2Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 AustLII
3Ex parte McLean (1930) 43 CLR 472 AustLII
4Wenn v Attorney-General (Victoria) (1948) 77 CLR 84 AustLII
5Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 AustLII
6South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 AustLII
7Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 AustLII
8Ngo Ngo Ha v New South Wales (1997) 146 ALR 355 AustLII
9New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 AustLII
10Re Wakim; Ex parte McNally (1999) 163 ALR 270 AustLII
11Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 AustLII
12Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 AustLII
13Attorney-General (Victoria); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 AustLII
14Kingswell v The Queen (1985) 159 CLR 264 AustLII
15Cheatle v The Queen (1993) 177 CLR 541 AustLII
16Bank of NSW v Commonwealth (Bank Nationalization Case) (1948) 76 CLR 1 AustLII
17Cole v Whitfield (1988) 165 CLR 360 AustLII
18Roach v Electoral Commissioner (2007) HCA 43 AustLII
19Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 AustLII
20Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 AustLII
21Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 AustLII
22Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 AustLII
23New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 AustLII
24Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 AustLII
25R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254 AustLII
26Grollo v Palmer (1995) 184 CLR 348 AustLII
27Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island Case) (1996) 138 ALR 220 AustLII
28Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577 AustLII
29New South Wales v Commonwealth of Australia [2006] HCA 52 AustLII
Law of Australia
The law of Australia consists of the Australian common law , federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories...
relating to the interpretation and application of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. Several major doctrines of Australian constitutional law have developed.
For the story of how Australia evolved from a set of British colonies to an independent nation, see constitutional history of Australia
Constitutional history of Australia
-Emergence of the Commonwealth of Australia:After European settlement in 1788, Australia was politically organised as a number of separate British colonies, eventually six in all...
. For a briefer outline of the basic structure of the Constitution, see Commonwealth of Australia Constitution Act. For an overview of constitutional law generally, see constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
.
The Constitution and the High Court
Constitutional law in the Commonwealth of Australia consists mostly of that body of doctrine which interprets the Commonwealth Constitution. The Constitution itself is embodied in clause 9 of the Commonwealth of Australia Constitution Act, which was passed by the British ParliamentParliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
in 1900 after its text had been negotiated in Australian Constitutional Convention
Constitutional Convention (Australia)
In Australian history, the term Constitutional Convention refers to four distinct gatherings.-1891 convention:The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Constitution for the proposed federation of the British colonies in Australia and New Zealand. There...
s in the 1890s and approved by the voters in each of the Australian colonies. (The British government did, however, insist on one change to the text, to allow a greater range of appeals to the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
in London.) It came into force on 1 January 1901, at which time the Commonwealth of Australia came into being.
The Constitution created a framework of government some of whose main
features, and sources of inspiration, were the following:
- constitutional monarchyMonarchyA monarchy is a form of government in which the office of head of state is usually held until death or abdication and is often hereditary and includes a royal house. In some cases, the monarch is elected...
(British and existing colonial models) - federalismFederalismFederalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
(United States model) - parliamentary, or "responsible", government (British and existing colonial models)
- distinct textual separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
(US model) - direct electionElectionAn election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...
to both Houses of Parliament (then a novelty) - requirement of a referendumReferendumA referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
for amendment of the Constitution (Swiss model) - only very limited guarantees of personal rights (rejection of the US model)
- judicial reviewJudicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
(US model)
This last feature – the ability of the courts to declare legislation unconstitutional and therefore invalid – is itself the source of the body of constitutional doctrine examined in this article. It has its origin in American experience, where the right of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
to strike down legislation deemed incompatible with the Constitution was first asserted by the Supreme Court itself in the seminal case of Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
in 1803. Although completely foreign to both British and Australian colonial experience, the framers of the Australian Constitution clearly intended that the practice would take hold in Australia, and even expressly adverted to it in the Constitutional text (in section 76). This power of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of legislation for conformity with the Constitution has been exercised almost exclusively by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, and almost invariably with a Full Bench of all its members.
A brief overview of the other listed features will provide a background for the doctrinal developments examined below.
Constitutional monarchy
Australia is a constitutional monarchy. Although the term "Head of StateHead of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
" is not used in the Constitution, it was intended that the Commonwealth (like the colonies) would continue to recognise the British Sovereign. "The Queen" (meaning Queen Victoria
Victoria of the United Kingdom
Victoria was the monarch of the United Kingdom of Great Britain and Ireland from 20 June 1837 until her death. From 1 May 1876, she used the additional title of Empress of India....
, and defined to include "Her Majesty's heirs and successors in the sovereignty of the United Kingdom"), was one of the three elements of Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
, along with the Senate and the House of Representatives (section 1). Today the Queen of Australia has replaced the Queen of the United Kingdom within Australia's parliament, though they happen to be the same person. The Monarch is represented in Australia by an appointed Governor-General
Governor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
. The executive power is vested in the Governor-General "as the Queen's representative" (section 61), as is the command-in-chief of the armed forces (section 68).
The text of the Constitution assigns sweeping powers to the Governor-General, e.g., to dismiss Parliament (sections 5 and 57), to refuse assent to Bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
s passed by Parliament (section 58), and to appoint and dismiss government Ministers (section 64). At the time the Constitution was drafted and adopted, though, it was understood that constitutional convention
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
would limit the exercise of these powers. A governor-general, like the former Governors of the Colonies, would only act on ministerial advice except in extreme circumstances.
However, this reliance on constitutional convention
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
, rather than the constitutional text, means the limits of the Governor-General's powers are unclear. Powers that can be exercised without or against ministerial advice are reserve powers. They include the power to commission a Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
, except that where a particular party or coalition of parties has a majority of seats in the House of Representatives and an acknowledged parliamentary leader, that person must, by convention, be chosen. They probably include the power to dismiss a Prime Minister who has been subject to a vote of no confidence
Motion of no confidence
A motion of no confidence is a parliamentary motion whose passing would demonstrate to the head of state that the elected parliament no longer has confidence in the appointed government.-Overview:Typically, when a parliament passes a vote of no...
in the House of Representatives and who refuses to either resign or advise the calling of an election.
The reserve powers may also include the power to dismiss a Prime Minister who is engaging in persistent illegal action (Governor Sir Philip Game
Philip Game
Air Vice-Marshal Sir Philip Woolcott Game GCB, GCVO, GBE, KCMG, DSO was a British Royal Air Force commander, who later served as Governor of New South Wales and Commissioner of Police of the Metropolis...
of New South Wales dismissed Premier Jack Lang on this ground in 1932). However, it remains controversial whether they include the power to dismiss a Prime Minister who, while retaining the confidence of the House of Representatives, is not able to get the annual supply Bill
Loss of Supply
Loss of supply occurs where a government in a parliamentary democracy using the Westminster System or a system derived from it is denied a supply of treasury or exchequer funds, by whichever house or houses of parliament or head of state is constitutionally entitled to grant and deny supply. A...
passed by the Senate, as happened during the Australian constitutional crisis of 1975
Australian constitutional crisis of 1975
The 1975 Australian constitutional crisis has been described as the greatest political crisis and constitutional crisis in Australia's history. It culminated on 11 November 1975 with the removal of the Prime Minister, Gough Whitlam of the Australian Labor Party , by Governor-General Sir John Kerr...
; when the Governor-General acted against the advice of Ministers.
The role of the Queen is nowadays even more circumscribed, and amounts only to appointing (and, in theory, dismissing) a Governor-General on the advice of the Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
, as well as performing (by invitation) certain ceremonial functions when she is personally present in Australia. See Constitutional history of Australia
Constitutional history of Australia
-Emergence of the Commonwealth of Australia:After European settlement in 1788, Australia was politically organised as a number of separate British colonies, eventually six in all...
for further details on the development of the monarch's role in relation to Australia.
The importance of constitutional convention
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
s in this area means that Australia cannot be said, strictly, to operate entirely under a written constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
, but has to some extent a system like the British unwritten constitution. However, it would be a mistake to exaggerate the importance of this aspect of Australia's constitutional
arrangements, because:
- the reliance on constitutional conventionConstitutional convention (political custom)A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
is confined almost entirely to the relations between the Queen/Governor-General and the Ministers of State; and - more completely written constitutional systems also develop binding conventions: for instance, popular election to the Electoral College of the United States, though not mandated by the United States ConstitutionUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, has probably become a binding norm.
Division of powers
The Constitution sets up the Commonwealth of Australia as a federalFederalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
polity, with enumerated limited specific powers conferred on the Federal Parliament. The State Parliaments are not assigned specific enumerated powers; rather the powers of their predecessor colonial Parliaments are continued except insofar as they are expressly withdrawn or vested exclusively in the Federal Parliament by the Constitution. An alternative model, the Canadian
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, in which it is the regional (State) units who are assigned a list of enumerated powers, was rejected by the framers.
The bulk of enumerated powers are contained in section 51
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
and section 52. Section 52 powers are ‘exclusive’ to the Commonwealth (although some section 51 powers are in practice necessarily exclusive, such as the power with respect to borrowing money on the public credit of the Commonwealth in paragraph (iv), and the power to legislate with respect to matters referred to the Commonwealth by a State in paragraph (xxxvii)). By contrast, the subjects in section 51
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
can be legislated on by both state and Commonwealth parliaments. However, in the event of inconsistency or an intention by the Commonwealth to cover the field the Commonwealth law prevails by section 109
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
.
Both concurrent (section 51
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
) and exclusive (section 52) powers are stated to be "subject to this Constitution". As a result, the Commonwealth's law-making power is subject to the limitations and guarantees in the Constitution (both express and implied). For example, section 99 forbids the Commonwealth from giving preference to any State or part of a State "by any law or regulation of trade, commerce, or revenue". And as discussed below, an implied guarantee of freedom of political communication has been held to limit the Commonwealth's power to regulate political discourse.
The list of powers assigned to the Federal Parliament is quite similar to that assigned by the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
to the Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, but is in some respects broader: for instance, it includes "astronomical and meteorological observations", marriage and divorce, and interstate industrial relations. The interpretation of similar heads of power – for instance the Trade and Commerce Power
Section 51(i) of the Australian Constitution
Section 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
in Australia and the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
in the US – has in some cases been different.
The constitution also provides some opportunities for Federal-State co-operation: any State can "refer" a "matter" to the Commonwealth Parliament, and the Commonwealth Parliament can exercise, "at the request or with the concurrence of the Parliaments of all the States directly concerned", any power which, at the time of Federation, could be exercised only by the British Parliament.
Parliamentary structures
Representation in the House of Representatives is based on population and ‘original states’ have equal numbers in the Senate. The two houses are equal in power except for certain restrictions in financial matters. For example, the Senate may not amend a supplyLoss of Supply
Loss of supply occurs where a government in a parliamentary democracy using the Westminster System or a system derived from it is denied a supply of treasury or exchequer funds, by whichever house or houses of parliament or head of state is constitutionally entitled to grant and deny supply. A...
Bill, although as the Australian constitutional crisis of 1975
Australian constitutional crisis of 1975
The 1975 Australian constitutional crisis has been described as the greatest political crisis and constitutional crisis in Australia's history. It culminated on 11 November 1975 with the removal of the Prime Minister, Gough Whitlam of the Australian Labor Party , by Governor-General Sir John Kerr...
demonstrates, it may defer or refuse to pass such a Bill altogether; Bills to impose taxation or appropriate revenue may not originate in the Senate; and the Senate may not amend a Bill so as to increase taxation.
Again, federalism is evident in the process of constitutional amendment
Referendums in Australia
In Australia, referendums are binding polls usually used to alter the Constitution of the Commonwealth or a state or territory. Non-binding polls are usually referred to as plebiscites.-Federal referendums:...
, which requires that the Bill to amend the Constitution be approved by a majority of electors overall and a majority of electors in a majority of States (that is, four out of the six).
Additionally, amendments "altering the limits" of a State or diminishing its proportional representation in Parliament require the approval of electors in that State.
Parliamentary government
It was assumed by the framers, in line with British and local colonial tradition, that the effective government would consist of Ministers who were members of Parliament and "responsible", that is, answerable, toit, and that the continued existence of the government would depend on it maintaining the confidence of at least the lower house of the legislature.
These arrangements, however, are only hinted at in the text of the Constitution. There is a requirement (section 64) that the "Queen's Ministers of State", who are nominally appointed by the Governor-General, be or swiftly become members of either House of
Parliament. The existence of the Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
and Cabinet
Cabinet (government)
A Cabinet is a body of high ranking government officials, typically representing the executive branch. It can also sometimes be referred to as the Council of Ministers, an Executive Council, or an Executive Committee.- Overview :...
, and the requirement for them to have the confidence of the House of Representatives, are not mentioned. Nonetheless, these have been fundamental features of Australian constitutional practice from the start.
Separation of powers
The constitution features a distinct separation of powersSeparation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. Legislative power is dealt with in Chapter I, and is vested in the Federal Parliament (section 1). Executive power
Executive Power
Executive Power is Vince Flynn's fifth novel, and the fourth to feature Mitch Rapp, an American agent that works for the CIA as an operative for a covert counter terrorism unit called the "Orion Team."-Plot summary:...
is dealt with in Chapter II, and is vested in the Governor-General as the Queen's representative (section 61). The judicature is dealt with in Chapter III, and is vested in the Federal High Court and "in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" (section 71).
However, the Queen is an element of the Parliament as well as being head of the executive; and the Ministers of State who "advise" the Governor-General are actually required to be or become members of Parliament.
While there is no significant separation of the legislative and executive powers (the "political branches"), the High Court has developed an increasingly stringent doctrine of the separation of the judicial power from the other two.
Direct election to both Houses of Parliament
The Constitution required direct electionElection
An election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...
of members to both Houses of Parliament from the beginning (sections 7 and 24). This was a novelty at the time, since the national upper houses with which the framers were best acquainted were chosen by other means: indirect election by the State legislatures (United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
before the Seventeenth Amendment
Seventeenth Amendment to the United States Constitution
The Seventeenth Amendment to the United States Constitution established direct election of United States Senators by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures...
in 1913), executive appointment for life (Canadian Senate
Canadian Senate
The Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
), or hereditary succession (United Kingdom House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
).
Referendum for constitutional amendment
The text of the Constitution was not presented to the British Parliament for formal enactment until it had been approved by the electors of the colonies.On the same principle, any amendment to the Constitution requires approval at a referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
, by the process set out in section 128 of the Constitution. A double majority – a majority of electors and of a majority of states – is required.
Constitutional referendums were based on the Swiss
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
practice. However, the Swiss use of the popular initiative
Initiative
In political science, an initiative is a means by which a petition signed by a certain minimum number of registered voters can force a public vote...
in constitutional amendment was not followed, so that constitutional alterations, although they must be approved by the people, can only be initiated by Parliament.
The use of the referendum in initially adopting the Constitution, and its requirement for constitutional amendment, has been cited by justices of the High Court to argue that the Constitution is fundamentally based on popular sovereignty
Popular sovereignty
Popular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...
(rather than on the supremacy of the British Parliament, which is its technical legal foundation). This doctrine has achieved greater prominence since the cessation, in 1986, of all authority of that Parliament over Australia: see Constitutional history of Australia
Constitutional history of Australia
-Emergence of the Commonwealth of Australia:After European settlement in 1788, Australia was politically organised as a number of separate British colonies, eventually six in all...
for details.
There have been 44 proposals for constitutional amendment put to the people since Federation. Of these, only 8 have passed.
The growth of central power
Probably the most obvious development in Australian constitutional law has been the steady growth in the power of the federal government relative to the states. Several factors could account for this, including:- doctrines of constitutional interpretation which favour a broad reading of Commonwealth powers
- the "fiscal imbalance" between the Commonwealth and the States (see Constitutional basis of taxation in AustraliaConstitutional basis of taxation in AustraliaThe constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51, section 90, section 53, section 55, and section 96...
) - the development of new areas of competence which did not exist at Federation, and which have fallen to the Commonwealth
- the growing importance of legislative areas that were always Commonwealth powers (for example, external affairsSection 51(xxix) of the Australian ConstitutionSection 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
and trading corporationsSection 51(xx) of the Australian ConstitutionSection 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
) - constitutional amendment or referral by the StatesSection 51(xxxvii) of the Australian ConstitutionSection 51 of the Australian Constitution permits the Commonwealth to legislate on matters referred to the Commonwealth by any state. As Australia is a federation, both states and the Commonwealth have legislative power, and the Australian constitution limits Commonwealth power...
- the willingness of Australian governments, including supporters of States' rights, to exercise their powers to the full
Reserved State Powers Doctrine and the Engineers case
Prior to 1920 the “reserved State powersReserved State powers
The reserved country powers, also called reserved powers, is a doctrine reserved exclusively for the states, that is used in the interpretation of the Constitution of Australia. It adopted a restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to...
” doctrine and "implied inter-governmental immunities" were used to preserve state power. Reserved state powers holds that the Constitution should be read in a restrictive way so as to preserve as much autonomy as possible for the States. Implied intergovernmental immunities holds that Commonwealth and States are immune to each other’s laws and cannot mutually regulate each other’s governmental apparatus.
In 1920 the Engineer’s case
Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 28 CLR 129 was a landmark Australian court case decided in the High Court of Australia on 31 August 1920...
(after changes in the composition of the Court) swept away this doctrine. The court now insisted on adhering only to the language of the constitutional text, read as a whole, in its natural sense, and in light of the circumstances in which it was made: there was to be no reading in of implications by reference to the presumed intentions of the framers.
As a result, the constitution is no longer read in a way which attempts to preserve the power of the states.
Broad interpretation of Commonwealth Powers
Even before the Engineer’s caseAmalgamated Society of Engineers v Adelaide Steamship Co. Ltd.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 28 CLR 129 was a landmark Australian court case decided in the High Court of Australia on 31 August 1920...
, a line of judicial reasoning asserted that Commonwealth powers should be interpreted broadly rather than narrowly wherever possible2.
After Engineers, this approach was reinforced. For example, Section 109
Section 109 of the Australian Constitution
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
, regarding inconsistency between Commonwealth and State laws, was broadly interpreted. Commonwealth law prevails not only where inconsistent obligations are imposed, but where Commonwealth legislation evinces an intention to "cover the field" by being the whole law on a particular subject3. The Commonwealth can "manufacture" inconsistency by expressly stating that its legislation is intended to cover the field. 4 However, an issue that was raised, without being conclusively resolved, in the Workplace Relations Challenge
New South Wales v Commonwealth (Workplace Relations Challenge)
In New South Wales & Ors v Commonwealth, a majority of the High Court of Australia held that the federal government's WorkChoices legislation was a valid exercise of constitutional power...
was whether the Commonwealth can "clear the field" by stating an intention that State laws are not to apply even if the Commonwealth does not enact other laws in their place.
The Commonwealth can only legislate with respect to an enumerated head of power, This does not mean that the law must be solely, or even predominantly, directed at that head of power. As long as it can be "fairly characterized" as a law with respect to an enumerated power, it is irrelevant that it could also be categorised as a law regarding some other subject matter. 5.
Likewise, Parliament's motivation in passing the law is irrelevant.6 An example is environmental legislation. The Constitution does not provide the Commonwealth Parliament with any power to control the environment or its use. Nonetheless, a very broad-ranging environmental protection Act could be passed relying on a combination of powers such as interstate and international trade
Section 51(i) of the Australian Constitution
Section 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
, corporations
Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
, taxation, foreign affairs
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
and so on. The law can be supported by those powers although Parliament intended it to be an ‘environmental law’. Particularly in the last two decades, many Acts of very wide-ranging effect have been passed on just these bases, in fields as diverse as environment protection, privacy, and anti-discrimination, fields in which the Commonwealth has no direct power.
Fiscal imbalance
At the time of Federation, the colonies' main source of revenue consisted of customs and excise duties (income taxIncome tax
An income tax is a tax levied on the income of individuals or businesses . Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate...
being still a newer notion). Since one of the main reasons for Federation was to create a common market
Customs union
A customs union is a type of trade bloc which is composed of a free trade area with a common external tariff. The participant countries set up common external trade policy, but in some cases they use different import quotas...
, inevitably authority over these taxes was vested exclusively in the Commonwealth Parliament (section 90). It was acknowledged that this would create a situation where the Commonwealth would raise much more money than it could spend, whereas the States, being still responsible for most areas of law and of social infrastructure, would need to spend much more money than they could raise (the problem now known as "vertical fiscal imbalance
Fiscal imbalance
- Meaning and Types :Fiscal imbalance is the term used to denote a mismatch in the revenue powers and expenditure responsibilities of a government. In the literature on fiscal federalism, two types of fiscal imbalances are measured: Vertical Fiscal Imbalance and Horizontal Fiscal Imbalance...
"). Although the framers were able to agree on a formula for distribution of the Commonwealth's surplus to the States in the first few years after Federation, they could not agree on a long-term formula. Accordingly, section 96 of the Constitution provides that the Commonwealth Parliament "may grant financial assistance to any State on such terms and conditions as it thinks fit".
One result of this has been that the Commonwealth has been able to make grants to the States on terms so specific as to amount to the virtual takeover of particular fields of competence. For instance, although the Constitution gives the Commonwealth no express power over education, by means of "tied grants" it has in fact become paramount in the field of tertiary education. Although any state has the option to refuse a grant, the consequences of doing so make this unattractive. Similarly, the Commonwealth has become dominant in the field of public hospitals, and a major player in the field of roads and other major infrastructure.
The Commonwealth has also come to monopolise income tax
Income tax
An income tax is a tax levied on the income of individuals or businesses . Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate...
(see Constitutional basis of taxation in Australia
Constitutional basis of taxation in Australia
The constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51, section 90, section 53, section 55, and section 96...
. Once the advantages of income tax were recognized, both the Commonwealth and the States levied income taxes. However, during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, the Commonwealth government decided to take over the collection of income taxes, and return some proceeds to the States as grants. The Commonwealth passed legislation to levy income tax at a nation-wide rate similar to the previous combination of Commonwealth tax and the various state taxes. Separate legislation then granted section 96 monetary grants to states provided the State did not levy income taxes. In practice, it would be difficult for States to continue taxing.
This arrangement was twice challenged by the States in the High Court, and twice upheld6,7. In Victoria v Commonwealth ("the Second Uniform Tax case")
Victoria v Commonwealth (1957)
Victoria v Commonwealth 99 CLR 575 is a High Court of Australia case that affirmed the Commonwealth government's ability to impose a scheme of uniform income tax, ultimately arising in a vertical fiscal imbalance in the spending requirements and taxing abilities of the various levels of...
(1957) 99 CLR 575 the taxation part of the scheme was valid based on the taxation power, and the grants held valid on the basis of the words ‘terms and conditions’ of section 96.
States are also at the mercy of the High Court's definition of an "excise duty," which states cannot levy. The High Court has long stated the definition in terms such as "an inland tax on a step in production, manufacture, sale or distribution of goods". However, it does not include a mere fee for a licence to carry on a particular business or profession. Accordingly, the States had for a long time levied, with the compliance of the High Court, "business franchise fees" on retailers of products, particularly liquor and tobacco products. These "franchise fees" were mostly calculated according to the value of the retailer's sales in a specific preceding period, rather than on the value of goods currently being sold. Although these seem similar to excise duties, a series of High Court precedents had effectively "quarantined" such fees from disallowance in the areas of liquor retailing, tobacco retailing, and petrol distribution. In 1997, by a bare majority, the High Court decided that this area of doctrinal quarantine was incoherent with the rest of the law relating to excise duties, and removed it8. The immediate result was the loss of some $5 billion (Australian) in the annual revenues of the States and Territories.
In 1999 the Commonwealth Parliament passed legislation introducing a new broad-based Federal indirect tax, the Goods and Services Tax; the revenue from this tax was to go entirely to the States and Territories, in exchange for their abolishing a range of other indirect taxes. By this stage, the financial dependence of the States on the Commonwealth had become almost complete.
New areas of competence
The development of various technologies during the twentieth century also added to the power of the centre.Section 51(v) of the Australian Constitution
Section 51(v) of the Australian Constitution
Section 51 of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia that gives the Commonwealth Parliament of Australia power to legislate on "postal, telegraphic, telephonic, and other like services".-Postal Services:...
gives the Commonwealth Parliament power over "postal, telegraphic, telephonic, and other like services". With little controversy, this power now covers radio, television, satellite, cable, and optic fibre technologies.
A greater struggle occurred over Commonwealth legislation in the field of aviation. Commonwealth regulation is based on the interstate and international trade and commerce power
Section 51(i) of the Australian Constitution
Section 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
. Prima facie, it does not cover intrastate aviation. However, a purely intrastate aviation industry is no longer economically feasible and separate systems of state regulation pose safety concerns. As a result, the High Court held that all aviation has an interstate character, placing it within Commonwealth legislative power. It is interesting to note here that in 1937 a referendum was submitted to the people giving the Commonwealth power over aviation, and that the referendum was rejected by the people. The rejection of a power by the people has never persuaded the Court that the Commonwealth should not exercise the power.
Another example concerns intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
. Although the Constitution gave the Commonwealth Parliament power over "copyrights, patents of inventions and designs, and trade marks", the enormous growth of electronic media content has given this power a much wider scope than could possibly have been envisaged at Federation.
New powers
The Commonwealth power has been extended by four constitutional amendments. An amendment in 1910Australian referendum, 1910 (State Debts)
The referendum of the 13 April 1910 approved an amendment to the Australian constitution. Technically it was a vote on the Constitution Alteration Act, 1909, which after being approved in the referendum received the Royal Assent on the 6 August.Upon the establishment of the Commonwealth of...
and an amendment in 1928
Australian referendum, 1928
The referendum of the 17 November 1928 approved an amendment to the Australian constitution concerning financial relations between the Commonwealth of Australia and its states...
allowed the Commonwealth to take over and manage state debts. An amendment passed in 1967
Australian referendum, 1967 (Aboriginals)
The referendum of 27 May 1967 approved two amendments to the Australian constitution relating to Indigenous Australians. Technically it was a vote on the Constitution Alteration 1967, which became law on 10 August 1967 following the results of the referendum...
gave the Commonwealth power over Aboriginal affairs, which has had a significant effect particularly in the pastoral and central regions of Australia.
An amendment passed in 1946
Australian referendum, 1946 (Social Services)
Constitution Alteration 1946 proposed to extend the powers of government over a range of social services. The question was put to a referendum in the Australian referendum, 1946 with two other questions...
gave the Commonwealth power to provide a wide range of social services. This included unemployment and sickness benefits, maternity allowances, child endowment, and medical and dental services. Apart from defence, social services is the largest area of Commonwealth expenditure. Along with the grants power, it is the basis for the Medicare
Medicare (Australia)
Medicare is Australia's publicly funded universal health care system, operated by the government authority Medicare Australia. Medicare is intended to provide affordable treatment by doctors and in public hospitals for all resident citizens and permanent residents except for those on Norfolk Island...
scheme of universal health insurance.
The High Court decided that the corporations power
Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
was not broad enough to cover incorporation itself. 9. This decision threatened the validity of Australian companies incorporated under commonwealth law. The states used ‘the referral power’
Section 51(xxxvii) of the Australian Constitution
Section 51 of the Australian Constitution permits the Commonwealth to legislate on matters referred to the Commonwealth by any state. As Australia is a federation, both states and the Commonwealth have legislative power, and the Australian constitution limits Commonwealth power...
to refer the power over incorporation to the Commonwealth Parliament.
The external affairs power
The Constitution gives the Commonwealth Parliament power over "external affairs". Originally this power had little content, because Australia's foreign relations were managed by the United Kingdom. As Australia gained in independence and international personality, so did the significance of this power.The High Court has held that the power covers the regulation of conduct that takes place outside Australia. In particular, it was held sufficient to criminalise as war crimes conduct in Europe during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
conducted by Australian citizens resident in Australia. 11. (Note that the Commonwealth has no general criminal jurisdiction.)
The power has also been held to extend to the implementation of international treaties, even if the subject matter of the treaty is otherwise not within Commonwealth power. In the case of Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen was a significant court case decided in the High Court of Australia on 11 May 1982. It concerned the constitutional validity of parts of the Racial Discrimination Act 1975, and the discriminatory acts of the Government of Queensland in blocking the purchase of land by...
, the High Court found that the Commonwealth had the power to implement the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races...
in the form of the Racial Discrimination Act. In the case of Commonwealth v Tasmania
Commonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...
, the High Court has upheld Commonwealth legislation forbidding the Tasmanian government from proceeding with a dam that would have submerged an area of Tasmanian government-owned land that had been declared a World Heritage Area under the World Heritage Convention to which Australia is a party12. Land use is otherwise a State responsibility.
More recently, the external affairs power has been used to remove the States' power to criminalise male homosexual activity. This followed an adverse report by the Human Rights Committee
Human Rights Committee
The United Nations Human Rights Committee is a United Nations body of 18 experts that meets three times a year for four-week sessions to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights,...
on Tasmanian provisions. The Human Rights Committee
Human Rights Committee
The United Nations Human Rights Committee is a United Nations body of 18 experts that meets three times a year for four-week sessions to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights,...
was established under the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, to which Australia is a party. Rather than challenge the resulting Commonwealth Human Rights (Sexual Conduct) Act of 1994, the Tasmanian Parliament repealed the legislation in question.
Although it would appear that there is an open-ended potential for the Commonwealth to encroach on areas of traditional State competence through the external affairs power, to date it has been used with some discretion, if only because the use of the power in this way inevitably excites considerable political controversy.
The corporations power
The corporations power allows the Commonwealth to legislate on "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". Although the width of the expression "trading or financial corporations" has never been authoritatively settled, it appears that it covers at least all commercial enterprises carried out under the corporate form.As corporations have come to dominate the economy, the practical scope the corporations power has increased. For example, in 2005 the Commonwealth Parliament enacted the WorkChoices
WorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
legislation, which, relying primarily on the corporations power, seeks to create a uniform national industrial relations system to the exclusion of both the States' and the Commonwealth's own industrial relations systems. Previous systems were based on the ‘conciliation and arbitration’ power. The new legislation applies to all employees of a "constitutional corporation." A constitutional corporation is a corporation within the meaning of section 51(xx) of the Constitution. The legislation also applies to employees of the Commonwealth and its agencies, and some others. The expected coverage of this law is approximately 85% of the Australian workforce. That proportion is likely to increase as employers who operate as sole traders or in partnerships incorporate in order to take advantage of the new legislation's relatively "employer-friendly" provisions.
On 14 November 2006, the High Court by a 5-to-2 majority upheld the validity of the WorkChoices
WorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
legislation against all the challenges that had been made to it in an action brought by each of the States and mainland Territories, as well as certain trade unions28. The single majority judgment, while it did not expressly adopt, waved aside all the objections that had been argued against the "object of command" test for the validity of the exercise of the corporations power. Accordingly, the judgment suggests that, henceforth, it may be a sufficient basis of validity that Federal legislation be specifically addressed to constitutional corporations ("A constitutional corporation must...", "A constitutional corporation must not..."), without any additional requirement that the legislation also address some aspect of the status or activities of corporations which is specific to such entities. If this is correct, then given the preponderant role of corporations in the modern economy, the possibility exists for substantial Federal control of the greater part of the economy, with little if any regard to the traditional constitutional "heads of power".
No Bill of Rights
The Constitution contains no comprehensive set of human rights guarantees. Factors sometimes cited for this include faith in the common law's protection of rights and a belief that a powerful Senate would effectively resist overzealous governments. The Constitution does contain protection for several specific rights. These include:- right to vote in Commonwealth elections if you can vote in State ones (section 41)
- freedom of religionFreedom of religionFreedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, and prohibition of religious tests for Federal offices (section 116) - trial by juryJuryA jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
in Federal cases tried on indictmentIndictmentAn indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
(section 80) - "just terms" for the compulsory "acquisition" of property by the Commonwealth (section 51(xxxi))
- an ambiguously worded prohibition on discrimination against residents of other States (section 117)
All but the last of these have been read down by the High Court, at least relative to the content of the corresponding United States guarantees. On the other hand, since the 1990s the High Court has been developing a jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
of rights said to be implied in the text and structure of the Constitution.
In addition, a constitutional requirement that "trade, commerce, and intercourse among the States ... shall be absolutely free" (section 92) was, for a time, interpreted as a guarantee of some degree of freedom from economic regulation by either Commonwealth or State Parliaments. The reference to "intercourse", on the other hand, has always been understood as guaranteeing a right to movement across State boundaries.
Although express protections for human
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
and civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
in the Constitution are scant, and have mostly been read down, some protections have been created by the High Court through its jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
on the separation of powers and through its findings of rights implied by the text and structure of the constitutional document.
Express rights
As mentioned, there are three rights which the Constitution guarantees against the Commonwealth – religious freedomFreedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, trial by jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
, and "just terms" compensation. (A referendum proposal to amend the Constitution to clarify these rights and to make them good also against the States was defeated in 1988.) As will be seen, guaranteed access to the High Court can itself amount to an important right. And the guarantee of free trade and commerce was for a time interpreted as something like an individual right.
Freedom of religion
The Constitution states that the Commonwealth "shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth" (section 116).The prohibition on establishing any religion has had nothing like the impact that the corresponding ban on making a law "respecting an establishment of religion" in the
First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
has had in that country. The High Court, in rejecting a challenge to Federal funding of church schools13, seemed to take the view that nothing less than an explicit establishment of a State Church
State religion
A state religion is a religious body or creed officially endorsed by the state...
as the official religion of the Commonwealth would come within the terms of the prohibition.
"Just terms" compensation
The Constitution gives the Commonwealth power "with respect to ... theacquisition of property on just terms" in Section 51(xxxi)
Section 51(xxxi) of the Australian Constitution
Section 51 of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia providing that the Commonwealth has the power to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the...
. By contrast, the Fifth Amendment to the United States Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
contains a prohibition: "nor shall private property be taken ... without just compensation". The differences between acquisition and taking, and between terms and compensation, combined with the fact that the Australian provision is expressed as a positive grant of power coupled with a limitation, have been read so as to weaken the Australian guarantee relative to the American one.
The use of the term "acquisition" has been interpreted so as to require that the Commonwealth (or some other party for a Commonwealth purpose) actually acquire possessory or proprietary rights over the property in question, or at least some benefit: the mere extinguishment
Extinguishment
Extinguishment is the destruction of a right or contract. If the subject of the contract is destroyed , then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts , debts, rents, and right of ways...
of a person's proprietary rights by the Commonwealth (or a prohibition on effectively exercising them) is insufficient to amount to an acquisition12. And "just terms" has been taken to mean something less than "just compensation"; in particular, it does not necessarily require payment to the owner of the value of the property when it was compulsorily acquired14.
The Australian film The Castle
The Castle (film)
The Castle is a 1997 Australian comedy film directed by Rob Sitch. It starred Michael Caton, Anne Tenney, Stephen Curry, Sophie Lee, Eric Bana and Charles 'Bud' Tingwell. The screenwriting team comprised Sitch, Santo Cilauro, Tom Gleisner and Jane Kennedy of Working Dog Productions.The Castle was...
addresses this issue also.
Trial by jury
The constitutional guarantee that a trial on indictmentIndictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
for a Federal offence must be by jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
(section 80) has been rendered virtually worthless, because the High Court has decided that it is only applicable to a trial which proceeds formally by way of indictment, and it is completely in Parliament's discretion to decide which offences are triable on indictment and which are not. Powerful dissents to the effect that the section must be given some substantive meaning (e.g. that the trial of offences of some specific degree of gravity must be by jury) have not prevailed14.
On the other hand, where Parliament has prescribed jury trial, the
Court has been willing to impose some content on that notion. In
particular, it has insisted that conviction by a jury for a Federal
offence must be by the unanimous agreement of the jurors – a majority
verdict will not suffice15.
Access to the High Court
To a very large extent, the Constitution leaves it to Parliament to determine both the High Court's original jurisdictionOriginal jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
(section 76), and the exceptions to, and conditions on, its power to hear appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
s (section 73). However, the Constitution grants the Court some original jurisdiction directly, without the possibility of Parliamentary limitation (section 75). This includes matters in which "a writ
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...
of Mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
or prohibition
Prohibition (writ)
A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it.This...
or an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
is sought against an officer of the Commonwealth".
In recent years, the Parliament has all but eliminated the possibility of appeal against many decisions in the area of migration
Human migration
Human migration is physical movement by humans from one area to another, sometimes over long distances or in large groups. Historically this movement was nomadic, often causing significant conflict with the indigenous population and their displacement or cultural assimilation. Only a few nomadic...
, especially in regard to applications for refugee
Refugee
A refugee is a person who outside her country of origin or habitual residence because she has suffered persecution on account of race, religion, nationality, political opinion, or because she is a member of a persecuted 'social group'. Such a person may be referred to as an 'asylum seeker' until...
status. However, since the Parliament is not constitutionally able to limit or abolish access to the High Court for the purpose of applying for one of these "constitutional writs", such applications have become a major means of challenging migration decisions. In fact these applications now constitute the bulk of the Court's work.
Freedom from economic regulation?
The constitutional requirement that "trade, commerce, and intercourse amongst the States ... shall be absolutely free" (section 92) was for a considerable time interpreted as a guarantee of some degree of freedom from government regulation. A notable example of this line of jurisprudenceJurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
was the High Court's disallowance of a Commonwealth Act which had the aim of nationalizing the banking industry16.
Finally, however, in Cole v Whitfield
Cole v Whitfield
Cole v Whitfield 165 CLR 360; [1988] HCA 18 was a landmark High Court of Australia decision where the Court overruled the long-held notion that the words "absolutely free" in Section 92 of the Australian Constitution protected a personal individual right of freedom in interstate trade. It was...
, which was notable also for its willingness to use the transcripts of the Convention debates as an aid to interpretation, the Court unanimously decided that what the section prohibited, in relation to interstate trade and commerce, were only "discriminatory burdens of a protectionist kind"17. That is, the section did no more than guarantee "free trade
Free trade
Under a free trade policy, prices emerge from supply and demand, and are the sole determinant of resource allocation. 'Free' trade differs from other forms of trade policy where the allocation of goods and services among trading countries are determined by price strategies that may differ from...
" (in the conventional sense) among the States. But in relation to "intercourse" (i.e. personal movement between States), the Court suggested that the scope of the guarantee would be much wider, and may even, in relation to some forms of such intercourse, be truly absolute.
Right to vote
In 2007, the High Court held in Roach v Electoral CommissionerRoach v Electoral Commissioner
Roach v Electoral Commissioner HCA 43 is a High Court of Australia case dealing with the validity of Commonwealth legislation that prevented prisoners from voting...
that sections 7 and 24 of the Constitution, which state that the Senate and the House of Representatives "shall be composed of members directly chosen by the people", conferred a limited "right to vote"18. In principle, these words guaranteed qualified universal franchise, and limited the Federal government's legislative power to limit that franchise.
The case itself concerned Commonwealth amendments, passed in 2006, which disenfranchised all prisoners from voting. Prior to the amendment, the Commonwealth Electoral Act disenfranchised only those prisoners serving sentences of three years or more. The case was brought by Vickie Roach who is serving a four year gaol term for negligently causing serious injury in a car accident and her legal team comprised Ron Merkel, QC and Michael Pearce, SC. In the past High Court Judge Michael Kirby had written that "...in Australia, there may be a basic right to vote implied in the text of the constitution itself". The court held that the 2006 amendments were invalid as they went beyond the limit of what is permissible under sections 7 and 24. However, the court upheld the validity of the statutory provisions prior to amendment.
Implied rights
Implied rights are the political and civil freedoms that necessarily underlie the actual words of the constitution but are not themselves expressly stated directly in the constitution. Since the 1990s the High Court has discovered rights which are said to be implied by the very structure and textual form of the Constitution. Chief amongst these is an implied right to freedom of communication on political matters. In addition, some protections of civil liberties have been the result of the High Court's zealous attempts to safeguard the independence of, and confidence in, the Federal judiciary.Freedom of political communication
A couple of cases decided in 1992 established a new implied right to freedom of communication on political matters. The first case, Nationwide News Pty Ltd v WillsNationwide News Pty Ltd v Wills
Nationwide News Pty Ltd v Wills 177 CLR 1 is a High Court of Australia case that deals with a number of issues regarding the Australian Constitution, including freedom of interstate intercourse , the implied freedom of political communication, and the role of proportionality.- Background :The...
, concerned a Federal provision criminalising the "bringing into disrepute" of members of an industrial relations tribunal, and a prosecution under that provision of a person who had published a
newspaper article repeatedly describing such members as "corrupt" and "compliant"19. The second case, Australian Capital Television Pty Ltd v Commonwealth
Australian Capital Television Pty Ltd v Commonwealth
Australian Capital Television v Commonwealth 177 CLR 106 was a significant court case decided in the High Court of Australia on 30 September 1992...
, concerned a Federal attempt to ban political advertising on radio and television during election periods and to strictly control it at other times, via a system of "free time" entitlements20.
In both cases, the majority of the High Court reasoned that, since the Constitution required direct election of members of the Federal Parliament, and since moreover the Ministers of State were required to be or swiftly become members of that Parliament, the result was that "representative democracy is constitutionally entrenched". That being so, freedom of public discussion of political and economic matters is essential to allow the people to make their political judgments so as to exercise their right to vote effectively. Furthermore, since "public affairs and political discussion are indivisible", it is impossible to limit this necessary freedom to purely Federal issues:
it applies also to issues which might be the preserve of the State or local levels of government. Therefore, there is implied in the Constitution a guarantee of freedom of communication on all political matters.
The Court stressed that this freedom is not absolute, but the result in both cases was that the relevant Federal legislation was struck down. In the latter case, some strong dissents to the effect that limiting expenditure on political advertising in the electronic media might actually enhance representative democracy did not prevail.
Both these cases concerned the validity of Federal legislation. But two years later, the Court extended the implied guarantee into the area of private law, by holding that it also applied to limit the statutory and common law of defamation
Slander and libel
Defamation—also called calumny, vilification, traducement, slander , and libel —is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image...
. A former chairman of a Commonwealth Parliamentary Committee on Migration claimed to have been defamed by a newspaper which had published a
letter accusing him of bias, in his official capacity, towards people of his own ethnic background21. By trial, it was conceded that the accusation was false. However the Court accepted a "constitutional defence" which was said (by three Justices) to operate when otherwise defamatory statements concerning the fitness of a public official to hold office were published without knowledge of, or recklessness as to, their falsity, and when publication was
reasonable in the circumstances.
This case, however, and a series of following cases, failed to produce a clear statement of the operative principle which commanded the support of a majority of the Court. But in 1997 (in Lange v Australian Broadcasting Corporation
Lange v Australian Broadcasting Corporation
Lange v Australian Broadcasting Corporation 189 CLR 520 is a High Court of Australia case that deals with the implied freedom of political communication in the Australian Constitution.-Background:...
which, curiously, involved the alleged defamation of a former Prime Minister of New Zealand22) a unanimous Court did state the operative principle. It rejected the "constitutional defence" of the migration-bias case just discussed, and instead expanded the scope of "qualified privilege", requiring the defendant to have actively taken reasonable steps to verify the accuracy of the published material, and also, in most circumstances, to have given the defamed person an opportunity to respond. On the other hand, the Court made it clear that the qualified privilege may extend to discussion concerning the United Nations and other countries, even where there is no direct nexus with the exercise of political choice in Australia.
The constitutional guarantee of freedom of political communication is, prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
, far more restricted than the generalized guarantee of
freedom of speech and of the press in the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. But it remains to be seen whether a suitable expansion of the notion of "political communication" may not lead, in time, to a similar result. In the migration-bias case, some of the Justices, while being careful to quarantine "commercial speech without political content", seemed to imply that the scope of "political speech" may nevertheless be very broad indeed. Mitchell Landrigan goes as far as arguing that the exception to the Anti-Discrimination Act 1977 (NSW) permitting the exclsion of women from ordination as priests infringes the right of women to "rise to positions from which they may take part in political speech as [politically persuasive] religious leaders."
Right to due process?
As mentioned above, the fact that the Constitution prescribes a system of "responsible", or parliamentary, government means that there can be no meaningful separation of the legislative and executive powers, despite their distinct textual separation in the Constitution. However, the same consideration does not militate against a separation of the judicial power from the other two, and in fact the High Court has come to insist on this with some force. It has also held that the separation of the judicial power implies that a body exercising that power must do so in a manner that is consistent with traditional notions of what constitutes judicial process. The result may be a limited constitutional guarantee of due process.The judicial power of the Commonwealth is vested, in Chapter III of the Constitution, in the High Court and such other courts as the Parliament creates or invests with Federal jurisdiction (section 71). In Australian constitutional jargon, such courts are called "Chapter III courts". The members of Chapter III courts can only be removed by the Governor-General on an address from both Houses of Parliament on the ground of proved misbehaviour or incapacity, and otherwise hold office until the age of 70 (section 72). (Judicial office was originally for life; the age limit was introduced by a referendum in 1977.)
In separate cases in 191523 and 191824, the High Court held that "judicial power" (essentially, the power of interpretation of the law and enforcement of decisions) could not be invested in anything other than a Chapter III court, and specifically, in anything other than a body whose members have life tenure. Conversely, in the Boilermakers' Case
R v Kirby; Ex parte Boilermakers' Society of Australia
R v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; 94 CLR 254 was a case in which the High Court of Australia held that the judicial power of the Commonwealth could not be vested in a tribunal that also exercised non-judicial functions...
of 195625, the Court held that Chapter III courts could not be invested with anything other than judicial power. (By this decision, the system of industrial arbitration that had been in place for 30 years, and which involved judges of the Conciliation and Arbitration Court acting in both a judicial and an administrative capacity, was overturned.)
To some extent the rigour of this doctrine was softened by the Court's subsequent acceptance that judges could, constitutionally, be assigned functions in their personal capacity as judges rather than as members of a Chapter III court. But this raised the question of which such functions were compatible with the simultaneous holding of Federal judicial office. The answers offered by the Court have been controversial and have involved some very fine distinctions: for instance, it has held that a power to authorize telephone interceptions is compatible26, while a power to make recommendations concerning the protection of land which might be of heritage significance to Aboriginals is not compatible27.
The most striking application (and extension) of this "incompatibility" doctrine, however, has involved the Supreme Court of the State of New South Wales. (Recall that in the Australian model of federalism, the Parliament may invest State courts with Federal jurisdiction: this "autochthonous expedient", in the words of High Court Justice Sir Owen Dixon, was essentially an economy measure in a country of small population. It has been Kable v Director of Public Prosecutions (NSW) 28 concerned a criminal law passed by the New South Parliament and directed at a single named individual (somewhat in the manner of a Bill of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
). The individual was a prisoner (under State law) whose sentence was about to expire but who was alleged to have made threats against the safety of various persons, to be carried out when released. The State Parliament enacted a law, applying only to him, which authorized the Supreme Court of New South Wales to make "preventive detention orders" for periods up to six months, with the possibility of renewal. The orders were to be made if the Court was satisfied, "on the balance of probabilities", that the person to whom the Act applied was "more likely than not to commit a serious act of violence".
It is clear that, had the Federal Parliament passed such an Act, it would be found invalid, as being in effect a legislative judgment, and so in violation of the constitutional separation of the judicial power. However, the High Court found that the separation of powers was not a feature of the New South Wales constitution, and so the State Act was not invalid on that ground.
The Act was found invalid, however, on the ground that, since the Supreme Court of New South Wales had been invested with Federal jurisdiction, it must not be required to perform a function which is "incompatible" with the exercise of the judicial power of the Commonwealth. To that extent, the States are not free to legislate as they please with respect to their own courts. And a requirement to order the "preventive detention" of someone who has not been charged with any criminal offence was found "incompatible" with the exercise of Federal judicial power. In this rather circuitous manner, the High Court has found a limited constitutional guarantee of due process.
See also
- Australian Constitution
- Constitutional history of AustraliaConstitutional history of Australia-Emergence of the Commonwealth of Australia:After European settlement in 1788, Australia was politically organised as a number of separate British colonies, eventually six in all...
- Separation of powers in AustraliaSeparation of powers in AustraliaThe doctrine of separation of powers refers to the separation of the legislature, the executive and the judiciary. A strict separation is not maintained in Australia, following the Westminster system and the doctrine of responsible government. Nevertheless, it is clear that it has been heavily...
- Federalism in AustraliaFederalism in AustraliaOn 1 January 1901 the Australian nation emerged as a federation. The model of Australian federalism adheres closely to the original model of the United States of America.- Federal features in the Australian Constitution :...
- Referendums in AustraliaReferendums in AustraliaIn Australia, referendums are binding polls usually used to alter the Constitution of the Commonwealth or a state or territory. Non-binding polls are usually referred to as plebiscites.-Federal referendums:...
- Section 51 of the Australian ConstitutionSection 51 of the Australian ConstitutionSection 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
– federal heads of power
-
-
- Trade and Commerce PowerSection 51(i) of the Australian ConstitutionSection 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
; Corporations PowerSection 51(xx) of the Australian ConstitutionSection 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
; External Affairs PowerSection 51(xxix) of the Australian ConstitutionSection 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
- Section 109 of the Australian ConstitutionSection 109 of the Australian ConstitutionIn Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that the laws of the Commonwealth shall prevail over those of a State to the extent of...
– inconsistency between state and federal laws
- Section 109 of the Australian Constitution
- Trade and Commerce Power
-
Cases cited
Note: All cases cited are decisions of the High Court of Australia."CLR" stands for the Commonwealth Law Reports, "ALR" for the
Australian Law Reports. Each case also has a link to the full text
online at the Australian Legal Information Institute (AustLII).
1Amalgamated Society of Engineers
Amalgamated Society of Engineers
Amalgamated Society of Engineers may refer to one of the following trade unions:* Amalgamated Engineering and Electrical Union in the United Kingdom, known as the Amalgamated Society of Engineers from 1851 until 1920...
v Adelaide Steamship Co Ltd (1920) 28 CLR 129 AustLII
2Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 AustLII
3Ex parte McLean (1930) 43 CLR 472 AustLII
4Wenn v Attorney-General (Victoria) (1948) 77 CLR 84 AustLII
5Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 AustLII
6South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 AustLII
7Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 AustLII
8Ngo Ngo Ha v New South Wales (1997) 146 ALR 355 AustLII
9New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 AustLII
10Re Wakim; Ex parte McNally (1999) 163 ALR 270 AustLII
11Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 AustLII
12Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 AustLII
13Attorney-General (Victoria); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 AustLII
14Kingswell v The Queen (1985) 159 CLR 264 AustLII
15Cheatle v The Queen (1993) 177 CLR 541 AustLII
16Bank of NSW v Commonwealth (Bank Nationalization Case) (1948) 76 CLR 1 AustLII
17Cole v Whitfield (1988) 165 CLR 360 AustLII
18Roach v Electoral Commissioner (2007) HCA 43 AustLII
19Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 AustLII
20Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 AustLII
21Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 AustLII
22Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 AustLII
23New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 AustLII
24Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 AustLII
25R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254 AustLII
26Grollo v Palmer (1995) 184 CLR 348 AustLII
27Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island Case) (1996) 138 ALR 220 AustLII
28Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577 AustLII
29New South Wales v Commonwealth of Australia [2006] HCA 52 AustLII
External links
- Full text of the Constitution from the Australian Attorney-General's Department