Professional Documents
Culture Documents
Notes (Good For Uk V Us)
Notes (Good For Uk V Us)
Notes (Good For Uk V Us)
Constitutionalism ............................................................................................................. 6
Constitutionalism ............................................................................................................. 7
Rule of Law ....................................................................................................................... 8
Constitutionalism, Judicial Review and Separation of Powers ............................................ 9
What Australia inherited and what it rejected from the US and UK systems ............................. 11
Responsible government ......................................................................................................... 11
Rule of Law in UK vs US – Stephen Gayeler .............................................................................. 11
Tension between Federalism & Responsible Govt. in the Australian Senate .............................. 12
Overview of Constitution ........................................................................................................ 13
Federation ...................................................................................................................... 28
Reasons for Federation ........................................................................................................... 28
Creation of Federation ............................................................................................................ 28
What were the States worried about with regards to federation? ............................................ 28
Benefits of Federalism – Brian Galligan and Cliff Walsh ............................................................ 28
Evolution of Federations ......................................................................................................... 29
Popular Sovereignty........................................................................................................ 31
1
Does popular sovereignty give legitimacy to the constitution? ................................................. 31
1.1 Composition ................................................................................................................. 32
1.1.1 Eligibility........................................................................................................................... 32
1.1.2 Restrictions on Eligibility.................................................................................................. 32
1.1.3 Restrictions on Eligibility – Cases..................................................................................... 33
1.1.4 Representativeness and Diversity ................................................................................... 35
1.2 Powers and Functions ................................................................................................... 36
1.2.1 Representation ................................................................................................................ 36
1.2.2 Legislative Power ............................................................................................................. 37
4
Formal and Substantive ROL (Tamanaha, 2004)
5
Constitutionalism
Less contested concept than Rule of Law
Can be seen as where power is distributed – encapsulates institution facilitating power by
identifying a source
Governments establish strong chain of command
Another dimension: it is about how power is constrained; how are citizens protected against
arbitrary use of power
i. Facilitates creation of institutions
ii. Regulates relationships between institutions
iii. Regulates relationships between institutions and citizens
Values emerge in constitutions (SA constitution is explicit about values)
Adjusts for the social values of the time – a bit like an agreement with the people: a social
contract. In a democratic sense, we will have the right to update the constitution. Though we living
today have not given consent to the constitution, our acquiescence to the law implies consent to
the provisions of the constitutions
Distinction of Description
constitution
Written Constitution: where the constitution is codified in writing e.g.
Australian constitution plus, common law. In a written constitution, most
things are codified but not all. The Australia Acts and the Westminster acts
are also part of the constitutional framework. The states are another place
Written V. Unwritten we have constitutions.
constitution I. The NSW constitution is the Constitution Act 1902.
Unwritten constitutions: were constitution is not codified e.g. there is no
document in the UK, all of the constitutional provisions permeate the law.
They have the Magna Carta, the Act of Settlements etc. Though it is
unwritten, this is a bit of a misnomer since there are important written
documents in unwritten constitutions (also in NZ).
NOTE: certain preconditions have to exist for these to be effective: having a democracy (e.g. an
open parliament, vigorous public debate, an active democracy, deliberation, participation,
transparency). If citizens are disengaged from the process, who will hold officials to account?
Australian constitutionalism is a mix between the two; UK was historically political and becoming
more legal
6
1B Constitutionalism & the Rule of Law
Constitutionalism
Adam Tomkins “Public Law” (2003) pg.4
Constitutions serve three broad functions
1. Provide for the creation of institutions by the state
Legislature: to make laws
Executive agencies (government, local authorities, cabinet and regulations
Judiciary: to apply and interpret laws
Other: defence, head of state
2. Regulate relations between those institutions and one another
The Separation of Powers, Rule of Law and Federalism are ideas which
constitutions may use to regulate the legal and political relations of these
institutions and the State
When institutions disagree – someone must have the final say and all
constitutions answer this in someway [e.g. in the US the Supreme Court has the
final say whereas in the UK there is sovereignty of parliament (parliament has
final say)]
3. Regulate relations between institutions and people
Most constitutions embody certain rights (e.g. democracy, human rights)
Constitutions and Culture
Constitutions do not just embody these three functions, they also embody the fundamental
principles of a nation’s values
You cannot understand a constitution without understanding the values which underpin it
Therefore public law is about politics
Constitutions as Contracts
John Locke: constitutions are high level contracts between the citizenry and government
However: these contracts involve no bartering – we inherit government (not like contract)
We are still stakeholders in the constitution, we are a part of it and we can change it (if we
advocate this)
7
Rule of Law
Tamanaha “On the Rule of Law”
Rule of Law can be pared down to two categories:
Formal Rule of Law Substantive Rule of Law
Formal ROL Substantive ROL
o Address manner in which the law was o Accept that ROL has formal attributes
promulgated o Certain substantive rights are also
o the clarity of ensuring norm inherited based on ROL
o Do not seek judgement on the law itself o These rights are used to distinguish
o Doesn’t matter whether it good or bad between good and bad laws
law
There are three broad themes which have governed the ROL debate:
1. Government limited by law: the sovereign, the state and its officials are limited by law. This
is generally to restrain government tyranny. This concept can be attributed to:
Governments needing to abide by currently existing positive laws
When government officials seek to change the law they cannot do so in just any way
that they desire – there are restraints on their law making power (divine law, customary
law, human and civil rights)
This creates philosophical paradoxes – Hobbes and Aquinas theorised that ROL is
conceptually impossible because it is illogical that the sovereign can be curtailed by the very
power that it wields. However, historically, monarchs and kings acquiesced to the rule of law
implicitly by:
Accepting that the law as binding (not always voluntarily – e.g. when King John was
bound by the Magna Carta under duress)
It was widely understood that the monarch and his government officials operated under
the laws which applied to everyone
Routine conduct of government officials implied that they were subject to legal
constraints just like everyone else
2. Formal legality: public, prospective, stable, general laws are equally applicable with a fair
hearing within a judicial process.
Dominant theme of liberalism and capitalism
Individuals know what conduct will expose them to sanction by the government
apparatus
There is evidence to suggest that there is a positive correlation between formal legality
and economic development
Limitations of formal legality:
i. It is compatible with a regime of laws with inequitable or evil content or
authoritarian/non democratic regimes (e.g. slavery, segregation, apartheid)
ii. Effective system of ROL may actually strengthen grip of authoritarian regime
iii. Requires that citizens forego objectives of distributive equality (a more equal
distribution of social goods)
iv. There are many circumstances where formal legality is not appropriate or social
beneficial
3. Rule of Law not Man: to live under the ROL is to not be subject to the vagaries of other individuals –
whether it is monarchs, judges, government officials, or fellow citizens.
Shielded from human weaknesses such as bias, passion, prejudice error etc.
Limitations of Rule of Law not man
i. However – in practice doesn’t really work because laws are interpreted by men
ii. Reintroduces human laws into the legal process
iii. Danger that ROL may become law by judges’
Adam Tomkins & Colin Turpin “British Government and the Constitution”
Accountability: a liability or obligation attaching to those invested with public powers or duties
Retrospective: allows for post mortem of decision
Democracy: those elected by the people are given power for the public good
Obligation to account to independent agency (e.g. legislature, court or tribunal)
Sometimes internal: e.g. superior officers within an organisation
Reparations: should be made to those who were the victim of unaccountable conduct
8
1. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the courts of the land. I.e. man can
only be punished if he has breached the law.
2. No man is above the rule of law and every man is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunal.
3. General principles of the constitution such as the right to personal liberty, are with us as a result of
judicial decisions determining the rights of the private person in particular cases brought before the
courts. Constitution is spread by the Rule of Law.
3 Definitions of ROL:
Dicey
Individual rights adequately protected by the ordinary common law, and did not need special
protection through a juridially enforceable Bill of Rights or any other mechanism directed to
the extension of legislative and govt. power.
Runs through English constitution, inseperable connection b/w the means of enforcing a right
and the right to be enforced, which is the strength of judicial legislation.
Right to individual freedom is part of the constitution because it is inherent in the ordinary law
of the land.
Right to individual freedom is inherently part of the constitution.
Judicial Review
The Australian Constitution assumes that, in any case where a statute is enacted by the Parliament
of the Commonwealth or by any Australian State or Territory in a way that exceeds the legislative
powers recognized or conferred by the Constitution, or infringes some express or implied
constitutional limitation on the permissible exercise of those powers, the courts (and in practice
especially the High Court) have the power to declare the enactment to be unconstitutional and
therefore invalid.
Separation of Powers
Baron de Montesquieu “The Spirit of the Laws” (1949)
In every government there are three sorts of power: the legislative, the executive in respect
to things dependent on the law of nations, and the executive in regard to matters that
depend on the civil law
When the legislative and executive powers are united in the same person… there can be no
liberty… Again there is no liberty, if the judiciary power be not separated from the legislative
and executive
There would be an end of everything, were the same man or the same body, whether of the
nobles or of the people, to exercise those three powers
NOTE: based on a study of Locke’s writings and an imperfect understanding of the
eighteenth-century English Constitution – concerned with the preservation of political liberty
10
The strict doctrine is only a theory and it has to give way to the realities of government
where some overlap is inevitable. But while permitting this overlap to occur, a system of
checks and balances has developed.
What Australia inherited and what it rejected from the US and UK systems
or Description
Representative government: representative democracy is a variety of democracy
founded on the principle of elected people representing a group of people, as
opposed to direct democracy
Separation of powers: a SOP; not necessarily same one
Federalism: a system of government where power is divided by a national
and NO BILL OF RIGHTS
No to republican government: queen is still head of state
We fused the legislature and executive branches of power – no strict SOP
Unwritten conventions
Heriditary head of state - a constitutional monarchy
Responsible government: a conception of a system of government that
embodies the principle of parliamentary accountability, the foundation of the
Westminster system of parliamentary democracy
Upper house can’t originate or amend money bills
Priviledges of house of commons: here are a series of practices built up
over time (e.g. where a member of parliament is in parliament they are immune
from defamation – preserve integrity of debate)
No bill of rights
Who has the final say? In our system it is the courts (same as US) but not the UK
Responsible government
Doing our best to express majority will at all times
Chain of command – continuing accountability
Power emanates from the crown, who are responsible for the executive, who are responsible
for the parliament, who are elected by the people
Crown > Executive > Parliament > People
In the US system the president does not sit in congress due to a strict separation of powers
NOTE: even though Tamanaha says there are ingredients which are necessary for ROL; UK
seems to have none of them - yet ROL still exist in the UK.
THEREFORE: ROL is not just about institutions but also about rules and setting: there exists an
underlying assumption that government will operate within certain limits - some things have helped
contribute to that over the years: Habeus Corpus Act, Magna Carta and the Common Law. It is
widely expected commitment that government should operate within legal limits.
12
2A A Washminster Hybrid
Overview of Constitution
Jeff Goldsworthy “Australia: Devotion to Legalism”
Federation of six states enacted by UK parliament in 1900 when Australia was part of British Empire
Constitutional monarchy where Queen is represented by Governor General at Federal level
1986: authority of UK extinguished
Though the Constitution gets authority from the Queen – it also gets authority from the Australian people
No constitutional recognition is given to Aboriginal people – referendum occurring soon on this issue
The constitution can only be amended by a law passed by parliament which is also approved by referendum
which garners the approval of the majority of states as well as the majority of the Australian populace
Judicial review
Judicial review: the doctrine under which legislative and executive actions are subject to review (and
possible invalidation) by the judiciary. Usually it is judges who perform judicial review → well versed in
objectivity and interpretation
Federal
administrative law
Merits Review: review facts, laws & policy Judicial Review: legality of decision
Very broad by courts
New decision can be made very narrow
By tribunals: branch of the executive
Put in shoes of original decision maker
There is internal & external merits
review
Administrative Investigation: Commonwealth Ombudsman has wide powers to investigate complaints about
administrative actions of Aus government agencies. The Ombudsman makes recommendations to government
bodies after its investigations. It can hold government bodies to account by writing reports of its recommendations or
bringing investigations before parliament
• AHRC provides similar function in investigating human rights or discrimination claims
What justifications are advanced for giving the courts a power of judicial review?
Constitution is higher law – must be protected JR is an interpretive role: interpreting
Parliament should not have this task – breach legislation and constitution → role specifically
of SOP; courts must be independent suited to these learned judges
Court is the least dangerous branch (independent and interpreter of laws)
o S 76: gives court jurisdiction for review of government action
o S 30: of Judiciary Act talks about HC having original jurisdiction in matters of
interpretation. Relates to S76 of constitution
o It is ASSUMED that judicial review exists in the Australian system
o Stubbs talks about how the drafters of the Australian constitution were familiar with US
13
system of JR and assumed it would be implemented at federal level
Parliamentary Sovereignty
1. How does Dicey define parliamentary sovereignty? How does he define the rule of law?
a. Parliamentary sovereignty
i. Parliament has the ability to make or unmake any law
ii. No person or body can override legislation of parliament
iii. Courts have a limited role – they also have the role of statutory interpretation (no
judicial review)
b. Rule of law (Dicey’s conception of the ROL is formal)
i. Supremacy of regular law (not arbitrary power)
ii. Equal application of law (e.g. can’t single out a group for special treatment)
iii. Faith in common law to protect rights – you don’t need a constitution to have
rights protection (right protection is inherent in the system)
2. Where parliament is sovereign, is it subject to any kind of constraints? Consider the
perspectives of Dicey himself, and TRS Allan.
Theorist Opinion
1. External limits: people don’t obey the law (pg. 83 of textbook). People simply won’t
obey bad laws and will re-elect the government at the next election
Dicey 2. Internal limits: legislature has moral feelings and then will choose not to legislate in
matters. Members of parliament have morale character that will prevent them from
making unjust law
1. You can’t promulgate laws that go outside of moral and democratic boundaries –
laws that infringe representative democracy don’t deserve to be adhered to
2. Democracy is an essential component in a sovereign parliament – if you start
making laws which are opposed to democracy they would be avoid because they
would be rejected
Allan 3. Parliamentary sovereignty is no longer absolute in the UK even though it originated
in the UK
4. Political morality may direct judicial resistence as opposed to judicial obedience
5. Allan is asserting a limited role of the courts in judicial review
14
Parliamentary
Parliamentary sovereignty gains its sovereignty
authority from representative democracy
Representative
3. Discussion topic: “Parliamentary sovereignty is democracy
compatible with the rule of law”
Conclusion: checks do a decent job of protecting rights and protecting ROL - but there probably
should be more than just parliament to preserve ROL
- Paradox: parliaments instil rule of law and are also a threat to it
Independent judiciary
o Prevent the executive and its many agents from imposing their powers upon the judiciary
Legal liberty
o Equating democracy with liberty is an error - liberty is not the right to do whatever one
chooses, then everyone would be under constant threat of others doing the same
o Liberty exists only if people are free from tyranny
Alexander Hamiltyon, James Madison *& John Jay “The Federalist Papers”
Madison: “democracies have ever been spectacles of turbulence and contention; have ever
been found incompatible with personal security or the rights of property; and have generally been
as short in their lvies as they have been violent in their deaths”
However – it was not questioned that governments should be democratic. Mechanisms were
identified to keep power in check:
o Representative democracy (rather than direct): would allow representatives to exercise
deliberation and wisdom when enacting laws
o Separation of powers
Vertical separation of powers: between states and federal government
Horizontal separation of powers: between executive, legislature and judiciary
o Judicial review of legislation
The supremacy of the constitution would be vitiated by contrary legislation – this
should be invalidated by the courts
Did not advocate for bill of rights – might narrow protection to those stated in Bill
Constitutions replace the role of: natural law, customary law in providing legal restraints on the
sovereign
15
2B Political & Legal Constitutionalism
Limits of Parliamentary Sovereignty
Anne Twomey “Implied Limitations on Legislative Power in the UK
PARLIAMENTARY SUPREMACY HAS LIMITS
Parliament cannot promulgate undemocratic laws – if it does it will be stymied by the courts
Parliament was a body with limited power – it could not use this power to extend its power and
circumvent the courts
Limits must apply to the House of Commons to prevent passing laws which are undemocratic
o It would be absurd to allow a democratically elected parliament to destroy democracy
The Parliament Act could hypothetically be used to dismiss the House of Lords – too much
government power in a bicameral system
o could be used to introduce oppressive undemocratic legislation (eg. anti-terror laws
There are common law rights so deeply entrenched that they cannot be removed by parliament
Though there is parliamentary supremacy – the legislature cannot dismiss judicial review
CONTRA: parliamentary supremacy is so deeply rooted that it cannot be overridden
Conclusion
Judicial review and separation of powers are essential
Prevents arbitrary abuse of power by legislature and preserves democracy
Judicial Review
Mathew Stubbs “A Brief History of Judicial Review of Legislation”
In the US the Supreme Court has powers of judicial review
The court’s job is to interpret the constitution and superior law to that by parliament
Federalism
Key components of Federalism according to Dicey are:
Supremacy of the constitution Constitution is supreme and
Distribution among bodies with different powers the judiciary is the final
Courts act as interpreters of the constitution interpreter
Adrienne Stone “Judicial Review Without Rights: Some Problems for the Democratic
Legitimacy of Judicial Review”
Australian Constitution and judicial review
Established in 1901 – 3 branches of government: executive, judiciary and legislature
Judicial review is final & authoritative – produced complex case laws interpreting constitution
Mostly structural review
Controversy in US because there is no express or clear foundation for judicial review
Australia and Canada: introduction of judicial review challenges to constitutional order
16
Problems with Democracy
Christopher L Eisgruber “Constitutional Self-Government and Judicial Review”
Democracy: government by people, exercised directly or elected representatives John Locke
Majority rule is a common deception – a majority can be only a fraction of the people
represented in a society – 51% could hold a majority – this is hardly democratic
Government should look after all people, not just the majority
Impartiality: taking into account everyone’s view
Taking turns is important (e.g. should we build sports stadiums or art galleries?)
However – it is impossible to take turns on moral issues. Matters of preference and morality
should be treated differently. Majority rule can be undemocratic – can be pragmatically useful
to democracy but not conducive to democracy
17
ROL not entirely entrenched in Aus constitution as it does not preclude retrospective legislation
18
Argument for Internal sovereignty: implies renegotiation of the internal
ordering of Australian government to recognise a sphere of autonomy in
which Indigenous peoples can express their sovereign authority and identity
Australian governments have not engaged with the idea that Indigenous
peoples should have sovereignty – though they have embraced the idea that
they should have self determination
John Howard: “the very notion of a treaty in this context conjures the idea
that we are two separate nations
o Chose to focus on practical reconciliation at the expense of the treaty
or equal rights agenda – appealed to notions of equal citizenship
Lisa Strelein: “focusing on citizenship has proved a difficult obstacle for
Government Indigenous peoples, for whom self-determination means more than merely
political rights of participation”
WA Government (2001): “Aboriginal people have continuing rights and
responsibilities as the first people of WA, including traditional ownership &
connection with the land and waters. These rights should be respected…”
Canada: recognises the inherent right of Indigenous self governance
o Does not confer sovereignty – must still abide by nation’s laws but
laws can coexist
US: deals with tribes on a case by case basis and recognises tribes right to
self-government
Popular sovereignty: principle that the authority of the government is created
and sustained by the consent of its people (Rule by the People), who are the
source of all political power
Constitution Act 1901: originally gained authority from British Parliament
1986: Australia cut its ties with the British legal system through Australia Acts
New source of legitimacy is the Australian People – supported by s128 of
Constitution which allows change by referendum
S128 means that sovereignty rests with people – not the courts or legislature
Implications for Indigenous Sovereignty
Indigenous peoples like any other Australians are part of constituting force
Legitimacy of nation depends on Indigenous acceptance of Constitution as
much as non-indigenous acceptance
Coe v Commonwealth (1979)
Facts: plaintiffs claimed that Abos were a sovereign nation and that Britain
had wrongly asserted their sovereignty over Australia
Judiciary Finding: “not possible to say that Aboriginal people are organised as a
distinct political society separated from others… no legislative, executive or
judicial organs… sovereignty is impossible for law to maintain”
Mabo (1992): findings of Coe were rejected – Aboriginal laws were recognisable
by the Australian legal system and their rights and interests to customary lands
survived the acquisition of British sovereignty
Left room for the continued operation of some local laws or customs among
Indigenous people to be recognised by Australian law
Gerard Brennan: colonisation process was change in sovereignty
o By implication, sovereignty existed before 1788 and some customary
law continued after 1788
Yorta Yorta v Victoria (2002): Indigenous peoples rights to land including to
native title, continue to have legal effect only because they are recognised by the
Australian legal system that came into being after settlement
Canada: adopted an interpretive framework based on the idea of reconciling
Crown sovereignty with the history of prior occupation by Indigenous peoples
United States: acknowledged that Indigenous peoples were sovereign prior to
the British. Tribal sovereignty was diminished by occupation but not extinguished :
‘ are more correctly perhaps: denominated, domestic dependant nations’
NZ: Assertion of authority over the North and South islands by the British Crown
was legally effective and that sovereignty in NZ now resides in parliament
Summary
1. Acquisition of Crown Sovereignty over the continent is a matter for international law
2. The consequences of that acquisition of sovereignty for the internal distribution of authority
and rights is a matter for the domestic legal and political sphere
19
3. Whether popular sovereignty is now underpinning the Australian constitution or not, the
constitution can be changed by referendum
4. Australia is not unique in having contested idea about Aboriginal and state sovereignty
20
S35(1): “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognised and affirmed”. Significant legal impact but Canada can still renege on a
treaty if it can justify the purpose under the constitution
Prior to 1982 treaties that were meant to protect inherent Indigenous rights had been
steadily whittled away
Land Claims Process and Modern Treaty Making
In recent times Canada has entered into a 4th period of treaty making
1973: Calder v Attorney General of British Columbia, the Supreme Court of Canada
indicated that Aboriginal peoples in British Columbia who had not signed treaties retained
legal rights to their territories under native title – though there was no treaty this was
legitimate under common law
Mid 1970s: comprehensive land claim agreements began to be settled and over the years
the policy broadened to include issues like offshore rights, resource revenue sharing and
involvement in environmental decision making
1995: federal government decided to recognise the inherent right of Aboriginal self
government
o Nisga’a Agreement (2000): remains modern treaty that took 25 years of
negotiation and resulted in cash settlement of $190m and established Nisga’a’s
government, 1900 square km of land, entitlements to fish stocks and wildlife
harvests
o Now exercises rights of self-government
What can be learned
Shows enduring nature of treaty relationships – sometimes made hundreds of years ago
Land, resource and self-government issues are being resolved by negotiation and then
given the strongest sense of legal backing
Offers model for what treaty process might look like
Shows need for sophisticated system for negotiating complex agreements that keeps
legalism and bureaucracy under control
21
historical relationship with their country, their prior occupancy of the continent and that there are
those who have maintained and asserted their traditional rights to the present time," he said.
"This is a cultural reality which can be accepted without comprising, symbolically or otherwise,
Australia's identity as a nation." Although Aboriginal notions of sovereignty would belong in a
different "universe of discourse", he said, "it would be sovereignty under traditional law and
custom".
Conclusion
Recognition in State constitutions: Recognition of Indigenous Peoples at state level was added
to Victorian Constitution in 2004 and the Victorian Charter of Human Rights and
Responsibilities 2006
o VCHR: s19 protects the “distinct cultural rights” of Aboriginal people
Queensland government has developed recognition of Aboriginal peoples in the preamble of their
state constitution
Treaty movement: focus by the Council for Aboriginal Reconciliation has turned to
recommendations for an agreement or treaty through which unresolved issues of reconciliation
can be resolved as Australia is the only Commonwealth nation that does not have a treaty with its
indigenous peoples
o eg.NZ has the Te Tiriti o Waitangi an agreement signed between the British and <500
Maori chiefs, Canada and US have hundreds of treaties dating back to 1600s
22
Indigenous People & The Constitution
Race and the Australian Constitution
Report of Expert Panel “Recognising Abo & Torres Strait Islander Peoples in Constitution”
The preamble of the constitution makes no reference to Aboriginal people
At federation there were only two references to Aboriginal people:
o S51 (xxvi) (the race power): Commonwealth parliament denied power to make laws with
respect to Aboriginal people in any state, for whom it is deemed necessary to make special
laws. Conferred on parliament power to make laws with respect to “the people of any race,
other than the Aboriginal race in any State, for whom it is deemed necessary to make special
laws” – note amended in 1967
o 1890s convention debates: elucidate that purpose was to authorise Commonwealth to
make racially discriminatory laws
o Edmund Barton (Aus first prime minister and justice of HC) in 1898: race power is
necessary to regulate affairs of people of coloured or inferior races
o CJ Robert French: purpose to control, restrict, protect and repatriate coloured races
living in Australia
o CONTRA: Kingston felt that, though they are undesirable and should be kept out, once
they are citizens they should have equal rights
o Professor Harris Moore: the section is aimed at migrants (eg. Chinese miners,
Japanese settlers) as opposed to natuives
o S127: “in reckoning the numbers of the people of the Commonwealth, or of a State or other
part of the Commonwealth, aboriginal natives shall not be counted”
o Purpose was to prevent Queensland and WA from using large Aboriginal populations to
gain extra seats in Commonwealth parliament and gain larger share of taxation revenue
NOTE: in original drafting of constitution there was originally a clause giving equal protection of rights
to all citizens (similar to 14th amendment in US constitution). This was rejected so that State’s could
keep making discriminatory laws for Aboriginals
24
Murray Islands under a communal native title soured in their pre-sovereign laws and customs
J Brennan: “fiction by which the rights & interests of indigenous inhabitants in land were treated
as non-existent was justified by policy which has no place in contemporary law of the country”
Noel Pearson: the most critical event in overturning racial discrimination in so far as indigenous
people are concerned
o Need for constitutional change – though rights better protected by Racial
Discrimination Act 1975 (cwth); concerned that Commonwealth can still abuse rights
Response of Cwth
o 1993: enactment of Native Title Act 1993
o Establishment of indigenous land fund
o Delivery of social justice package
ATSIC report noted objectives of corporate plan the securing of constitutional recognition of
special status and cultural identity of Australian people
Interpretation of the altered race power after 1967
Justice of HC 1982: race powers wide enough to
o a) to regulate and control the people of any race
o b) protect the people of any race
Policy approaches after 1972
1972: Prime Minister William McMahon acknowledged concern about policy of assimilation
1972: after election of Whitlam govmt assimilation policy abandoned – now self determination
o Abos keen to grasp self-determination but not trained after years of assimilation
o Inadequate education system, lack of self esteem
Numerous commissions in to Aboriginal Deaths in Custody, Offices, HREOC
1996: Howard government chose policy of reconciliation
1999: electors rejected constitutional amendment recognising Abos
2007: NT Emergency response involved Cwth assuming direct responsibility of Abo affairs in NT
o Response has been subject to controversy
o After re-election – Howard maintained emergency response and announced ‘closing the
gap’ policy
2008: Kevin Rudd apologised to Indigenous peoples in parliament
‘Closing the Gap’
Argument remains that until discrimination is removed from constitution, we will not ultimately
succeed in achieving socioeconomic equality for Aboriginals
o Significantly lower life expectancy, mortality, education, employment
26
Held: Hagarty CJ held that the Legislative Assembly could not delegate to another body the
authority to create offences
Alex Castles “The Reception and Status of English Law in Australia”
1858: responsible government with bicameral Parliaments had been created in NSW, SA, Vic
and Tasmania - the question whether the new legislatures could enact laws contrary to Statues
and un-enacted law which had been received in Australia became a pressing issue
o Judge Boothby threatened to frustrate many legislative endeavours of SA Parliament
1863: seemed no limit to the laws declared invalid through careless drafting or through
repugnancy
o Communications between Cwth and SA reflected need for remedial legislation and bill
1865: Colonial Laws Validity Act 1865 was sent from London to Adelaide
o Applied to all of Australia
o Under CLVA, local laws were void if they were repugnant to English statutes, which
applied to the state by paramount force
P Parkinson “Tradition and Change in Australian Law”
Throughout most of the 18th century, the monarchs retained a personal involvement in
government in the sense that ministers were in office by royal choice and owed their position to
that link with the Crown, rather than with each other or with their political party. The Privy Council
continued to decline in practical significance, and by the middle of the century it was possible to
identify one minister who was leader of the government.
1832: Reform Act was passed which effected the abolition of various constituencies which no
longer had sizeable populations to support them, and which created new constituencies….
making it impossible for the Crown to retain its influence over the Parliament in quite the way it
had done hitherto.
By the end of the 19th century, British constitutionalism had reached a point where a
representative Parliament had emerged as the sovereign power and the notion of rule according
to the law, rather than according to the arbitrary wishes of the monarch, was firmly entrenched.
George Williams, “Human Rights under the Australian Constitution”
Framers were clearly influenced by the words of J Bryce and AV Dicey
Both authors sceptical of need to guarantee rights in written constitutions
Dicey: civil liberties adequately protected through common law and political processes – an
aspect of the ROL
o No bill of rights consistent with notion of parliamentary sovereignty – that parliament can
make or unmake any law
Responsible government is an appropriate mechanism to protect minority rights
Clause 110 (everyone treated equally clause) rejected because the delegates were concerned to
maintain the power of colonies, once they became the Australian states, to discriminate between
people on the ground of their race.
The framers also debated whether the Constitution should grant the right to vote to women. The
result was a compromise embodied in s 41 of the Constitution.
Holder suggested a compromise that would allow women who were qualified to vote under the
law of their state to also be able to vote for the new federal Parliament. This preserved the ability
of each state to determine its own franchise for federal elections, at least until the federal
Parliament enacted a uniform franchise.
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The Acquisition of Legal Independence
and Popular Sovereignty
Federation
Bicameral legislature and responsible government emerged in the colonies by 1855. The movement
towards federation came from Britain’s Colonial Secretary, Earl Grey, who tried to introduce a Bill
which later became the Australian Constitutions Act 1850.
Creation of Federation
The Australian nation was created as a federation on 01/01/1901. The main tenets of the Constitution
were highlight by the Constitutional Commission:
Evolution of Federations
Federations always evolve. They can evolve in two ways:
Centripetal – towards the centre, more power to Federal Parliament
Centrifugal – away from the centre, more power to component States.
Evolution of Aus federalism generally been centripetal - Cwth Parliament getting more power. Usually
because HC has determined Cwth needs more power to meet national needs - especially in war. The
centripetal evolution has often been criticised. However, there have been opinions that it should be
taken further:
If national Parliament is to resolve problems that states can’t handle (as Australians seem to
want), constitutional change is needed.
Commonwealth Parliament needs to be able to make general laws rather than just specific
This wouldn’t diminish power of States, unless they have been operating poorly
o No sensible government would want to interfere with a State that’s running well.
o But if a State is not operating well, and going from bad to worse, why shouldn’t the
Commonwealth government be able to intervene?
This would be less undemocratic than State governments appointing administrators to run
dysfunctional councils.
Popular Sovereignty
Popular sovereignty: the principle that the authority of the government is created and sustained by
the consent of its people, who are the source of all political power
- Saunders extract: for every constitution there must be an explanation for why it is binding
- The idea that you can point to the people as the source of sovereignty applies in the US and
India – does this apply in Australia?
- Why is the constitution binding?
o Dixon: binding in 1900 because we are a British Colony – there is an acceptance the
Imperial Parliament has the ability to pass laws using paramount force which apply to
its dominions. This is viewed as a binding expression of parliamentary sovereignty
o The popular movements towards independence demonstrated in Australia in the
1890s and 1900s do not count as an expression of legal sovereignty but it is an
expression of political legitimacy
o Why is the constitution binding today or in 1986?
The Australian people are accepting of the authority of the constitution.
Popular sovereignty underpins the legitimacy of the constitution. Preamble of
the Constitution states that ”the people of New South Wales, Victoria, South
Australia, Queensland and Tasmania…have agreed to unite in one
indissoluble Federal Commonwealth…” suggesting popular approval and
acceptance of Australian people
Supported by 128 – allows amendment
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The Legislature
1.1 Composition
1.1.1 Eligibility
Eligibility for election to the federal Parliament is determined by Commonwealth legislation:
Australian Constitution
s 43 – ‘A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member
of the other House’
This basically means that if you are a member of either House of Parliament, you cannot qualify to be chosen
to sit in the other House concurrently
s 44 – Any person who falls within the disqualifying categories, ‘shall be incapable of being chosen or of sitting as
a senator or a member of the House of Representatives’
‘Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a
subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for
any offence punishable under the law of the Commonwealth or of a State by imprisonment for one
year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown
out of any of the revenues of the Commonwealth; or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the
Commonwealth otherwise than as a member and in common with the other members of an
incorporated company consisting of more than twenty‑five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.’
High Court case which considers s 44 (i) – Cannot have allegiance to foreign powers
Facts: Senator Wood was a British citizen, and so his election was challenged
Legal Issues: Was Senator Wood’s status in violation of s 44 (i)?
Judgment – Joint Judgment. Not necessary to consider s 44 (i) of the Australian Constitution Matter was
dealt with simply under s 163 (1)(b) of the Commonwealth Electoral Act 1918 (Cth). Requires an
elected person to be an Australian Citizen – Doesn’t attract s 44 (i) ‘Wood had not been validly elected,
but… the election was not void as the problem could be solved by a further distribution of preferences’
Sykes v Cleary (1992) 176 CLR 77
Cleary disqualified since it is contrary to s 44 (iv) and the separation of powers. Precedent set by this judgement
held that public servants had to resign from the public service before nominating
Facts: Cleary was a school teacher, but has been on leave without pay for about 2 years
o 1 February 1990: Took leave without pay
o 20 March 1992: Lodged nomination for seat of Wills
o 11 April 1992: Still on leave without pay, Election day
o 16 April 1992: Resigned as it became clear he had won
Legal Issues: was Cleary an ‘officer’ of the crown as specified in s 44 (iv)? Does he violate this restriction?
Separation of Powers: A member of the executive cannot be a member of the legislature
Judgment: Majority Judgment (Mason CJ, Toohey and McHugh JJ) Cleary was disqualified . He was still an
‘officer’ the day he lodged his nomination and the day he got elected under the Teaching Service Act 1981
(Vic). This is exactly contrary to s 44 (iv). Just because he was on leave without pay, doesn’t mean you’re no
longer an ‘officer’. Doesn’t matter that he’s under a State parliament and not Commonwealth.
Goes against the separation of powers
1. Performance by a public servant of their public duty would impair capacity to attend duties of being a
member of the House – Would impair his ability to perform both roles
2. Considerable risk that a public servant would share political opinions of the Minister of their department
and would not bring to bear as a member of the House, a free and independent judgement
3. Membership of the House would detract from the performance of the relevant public service duty – Would
impair his ability to perform both roles
Dissenting Judgment (Deane J): Cleary’s position was saved by his resignation on 16 April 1992. Question
of whether he was ‘incapable of being chosen’ should be answered at the point in time when he was ‘chosen’
– 23 April 1992. Other six judges took ‘being chosen’ to refer to the entire ‘process of being chosen, of which
nomination is an essential part’
Background Facts: Second and Third Respondents
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o Born in Switzerland – Swiss citizen at the time of birth (1923)
o Migrated to Australia – Became naturalized as an Australian citizen (1960)
o Did not demand Switzerland to renounce his Swiss citizenship although he was eligible to
Third Respondent – Mr Kardamitsis
o Born in Greece – Greek citizen at the time of birth (1952)
o Migrated to Australia – Became an Australian citizen (1975)
o Did not request Greece to renounce his Greek citizenship
Believed that the step of becoming a citizen broke his bond of allegiance
Legal Issues: Second and Third Respondents
Did their lack of reasonable action amount to violation of s 44 (i)?
Judgment – Majority Judgment (Mason CJ, Toohey and McHugh JJ)
‘It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who
had taken all reasonable steps to divest himself or herself of any conflicting allegiance’
o Neither candidates took the steps needed to divest themselves from foreign identities.
o Remained “entitled to the rights and privileges of a subject or citizen of a foreign power”
o ‘what amounts to reasonable steps to denounce foreign nationality’ depends on ‘the situation of the
individual, the requirements of the foreign law and the extent of connexion between the individual
and the foreign state.’
Background Facts
Hill was an Australian citizen but still had UK citizenship
Was elected as a senator, and subsequently, relinquished her UK citizenship (only after election)
Legal Issues
Did Hill’s status violate s 44 (i) of the Constitution?
What were the implications of the Australia Act 1986 (Cth)?
With respect to s 376 of the Commonwealth Electoral Act 1918 (Cth)
o Is this the only method of raising issues of disqualification?
o s 353 – ‘the validity of any election or return may disputed by petition addressed to the Court of
Disputed Returns and not otherwise’
o s 354 – constitutes High Court as ‘the Court of Disputed Returns’; confers upon it jurisdiction to try
the petitions referred to in s 353; and endows it with’ all the powers and functions of the Court of
Disputed Returns’
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1.1.4 Representativeness and Diversity
Elaine Thompson
Parliament has been criticised for its lack of diversity and representation:
Despite party differences, members of
Parliament were remarkably homogeneous Australian Population
o White Aborigine
Asian s
o Male Other 5% 1%
o Anglo-Australian European
Does not reflect diversity of Australia 19%
Gender
Neither house is near the ideal equity of 50%
1.2.1 Representation
Cheryl Saunders
‘Representative democracy ‘is the source of legitimacy for both parliament and government’.
Provides justification for the supremacy of the legislature in the exercise of its law-making function
Provides a basis for the assumption that this power will not be abused
Protection of rights
‘Together with responsible government and the rule of law, it provides a foundation for an approach to
the protection of rights’
Approach relies on the allocation of power between institution of government
o In contrast, does not rely on rights instruments to limit what each institution can do
Representative democracy + Responsible government + Rule of Law = Rights Protection
Question: What is the extent of constitutional protection for democratic rules?
Has appeared in the High Court in three contexts:
o The fairness of constituency boundaries;
o Freedom of political communication about political and governmental affairs; and
o Voting rights
Cases pressured High Court to consider whether the concept of democracy in 1901 could
evolve over time so as to affect the meaning or application of the Constitution
o Do indications of a more restricted conception of representation in 1901 inhibit a
contemporary understanding of the general constitutional requirement for the Houses of
Parliament to be ‘directly chosen by the people’?
o How are core features of representative democracy that are not spelt out in the
Constitution nevertheless protected by it?
Concepts of Representation
‘There is the usual ambiguity about the nature of the constitutional relationship between
representatives and those that are represented’
o Traditional view: Members of Parliament are not delegates of the voters
They are not subject to instruction by them
They can make decisions contrary to popular prejudice
o In practice: Members individually and collectively keep a close eye on public opinion
Regular elections and a sense of self-preservation (Accountability)
Australian politics is dictated by two national parties
o The Australian Labour Party
o The Coalition (Liberal party of Australia + National Party)
Party discipline is tight
o Extremely rare for a member of a parliamentary party to flout it in voting (betray)
o Party discipline ensures that where government has a majority in any House, their
measures will pass
Centrality of Elections
Held frequently – ‘unprecedented level of voting among the advanced democracies’
o Commonwealth – At least every 3 years
o States – Up to 4 years in most States
Voting is effectively compulsory and the requirement is enforced
o Use of preferential voting ensures each Member can claim support of a majority of voters
Also allows governing party to generally claim support of a majority of voters
overall (although not necessarily on the basis of first preference votes)
o To ensure effectiveness of system:
Administration is efficient
Elections are held at convenient times and locations
As a corollary, once Parliament is elected – Representative democracy is subordinated to
responsible government
o Prime Minister or Premier is commissioned by the Crown
o Electoral system makes it more likely than not that the governing party will have a clear
majority in the lower House
Does not require reliance on complex coalition agreements
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o Party discipline – Strong, so that executive government can count on its members to
support all its measure throughout its term of office, at least in the lower House
Parliamentary proceedings – Confrontation between government and opposition can be lively
o Objective: Mainly used as a tool to ascertain victory in the next election instead of public
deliberation on current policy proposals
Parliaments are acquiescent rather than deliberative (Readily accepting rather than considering)
o Favours efficiency and unity over diversity and institutional balance
Modified Westminster
Federal and State Parliaments were modelled broadly on the Parliament at Westminster
o Continue to share its functions and procedures
Evolution of bicameralism (Two Houses)
o Originally: Protect property interests and moderate impulsive tendencies of Lower House
o 20th century: Upper Houses are democratic – Greater claim to substantive power
Also greater potential for conflict
Upper Houses have authority to ‘review’ proposed legislation and government
action, backed by powerful sanctions
o Divided opinion over whether an upper House
Should be regretted as blot on the constitutional landscape OR
Welcomed for its contribution to the deliberative potential of Parliament
A second difference – Combination of representative government+Australian federalism
o Limitation of parliamentary sovereignty under a federal Constitution
o Creation of the Senate as a powerful second Chamber to represent the States
Cheryl Saunders
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Legislature (2)
The Federal Parliament
Democracy is not in our constitution, neither is the Separation of Powers
- S7 of constitution
o Senate directly chosen by people of the state
o The Commonwealth Electoral Act expands on this
- S24 of constitution
o House of Reps members directly chosen people of Commonwealth
Note: the word democracy does not appear in the Commonwealth Electoral Act
From S7 and s24 the High Court has established constitutionally protected:
Implied Freedom of Political Communication
This is very narrow – you must have implied freedom of political communication with politics so you
know who you are voting for.
The current entitlement to vote is governed by the Commonwealth Electoral Act 1918 (Cth)
Voting at federal elections has been compulsory since 1924.
It might… be argued that, if ss 7 and 24 confer a right to vote, Parliament cannot compel electors
to vote and that compulsory voting, as established by s 245 of the Commonwealth Electoral Act, is
constitutionally flawed.
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o This is a transitional provision – only operates for people in the states prior to 1902
Debate: does the constitution have a fixed or ambulatory meaning (ambulatory means it
changes over time)
- The words “directly chosen” are ambulatory and change over time
- There were two amendments of the CEA
- The first one said if you had <3 years in prison then you couldn’t vote
- The second one said <6 years
Facts: 2006, prisoners serving a 3 year sentence could not vote for federal parliament. In
2006, the Commonwealth Electoral Act 1919 (Cth) was amended to include s 93(8AA), which
disqualified all prisoners from voting to the federal parliament.
Argument: s 93(8AA) is invalid, goes against implied right to vote
Legal issues: Implied right to vote; Commonwealth’s ability to prevent certain ppl from voting
Judgement
Implied right to vote: amendment was inconsistent with our system of democracy which the
Constitution seeks to establish
o Against the implied meaning of s 7 and s 24 – “directly chosen by the people”
o This phrase has an evolving meaning. Today, it means universal adult suffrage.
Anything less than that, cannot be described as chosen by the people.
Parliament’s capacity: Parliament indeed has the power to withhold voting rights of certain
citizens, but this disqualification needs to be for a substantial reason - In this case those who
committed serious criminal conduct.
o “Serious offending represents such a form of civic irresponsibility that is appropriate for
Parliament to mark such behaviour as anti-social and to direct that physical separation
from the community will be accompanied by symbolic separation in the form of loss of a
fundamental political right”.
o However, imprisonment does not necessarily indicate serious criminal conduct – a criteria
needs to be set for what ‘serious criminal conduct’ is, and this criteria is the duration of
the sentence.
o Reducing it to all prisoners means it includes a substantial amount of minor offenders,
thus “broke the rational connection necessary to reconcile the disenfranchisement with
the constitutional imperative of choice by people”.
o Blanket ban is an arbitrary method, and does not serve the purpose of democracy.
o Amendments struck down, previous statute restored
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Rowe v Electoral Commission
Facts: Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006
(Cth) removed the grace period between the date of the issue of the writs and the closure of the
rolls.
o Many people could not enroll in time.
o Rowe attempted to enroll after the issuing of the writs, but was unable now because of the
removal of the grace period.
o Sought declaration that the 2006 amendments were invalid.
Legal issues: implied right to vote - Commonwealth’s ability to prevent certain ppl from voting
Judgement
(Implied right to vote): Using Ex rel McKinlay v The Commonwealth[1]: “ss 7 and 24, because of
changed historical circumstances including legislative history, have come to be a constitutional
protection of the right to vote.”
Parliament's Capacity: Commonwealth has capacity, but needs to be proportionate. “An
electoral law which denies enrollment and therefore the right to vote...can only be justified if it
serves the purpose of the constitutional mandate” “a law affecting such a change causes a
detriment. Its justification must be that is it nevertheless, beneficial because it contributes to the
fulfillment of the mandate. If the detriment...is disproportionate to that benefit, then the law will be
invalid as inconsistent with that mandate.” Detriment deemed disproportionate, a large number of
voters would not be able to vote, no reason why we need to remove the grace period
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State Constitutions
State constitutions differ from the Commonwealth constitutions because they are flexible - can be
amended and altered through a normal process rather than a specialised process (referendum, double
majority), as the commonwealth constitution requires.
Limits resulting from the phrase ‘Peace, Welfare and Good Government’
s 5 of the Constitution Act 1902 (NSW) declares that:
“The Legislature shall…have power to make laws for the peace, welfare, and good government of
New South Wales in all cases whatsoever”.
In other words, can judges strike down laws which are not for the ‘peace, welfare and good
government’ of New South Wales as unconstitutional – BMF Case
If so, the words constitute a limitation on State legislative power
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Limits based on abrogation of ‘deeply rooted rights’
Some of the judgement in Union Steamship hints at the possibility that the State Parliaments are
limited from abrogating rights which are ‘deeply rooted’ in either the democratic system and the
Common Law.
Constitutional amendment
States have the power to amend their Constitutions (subject to ‘manner and form’ requirements).
This power is originally derived from s 5 of the Colonial Laws Validity Act 1865 (Imp) but is now
found in s 6 of the Australia Act (1986).
If a bill was passed by the Legislative Assembly twice, and was rejected by the Legislative Council
twice in succession, the bill could be submitted to a referendum
In 1915, the government used this alternative legislative procedure in an effort to abolish the
Legislative Council.
The Supreme Court of Queensland issued an injunction to put a stop to the referendum
The HC removed that injunction since the Queensland government were not going to respond to
the result of the referendum until the High court determined the constitutional issues of this case
Referendum resulted in a majority ‘no’ decision, yet the HC proceeded to make a ruling anyways:
43
population really wanted, then the law would still be passed (after the referendum)
Rather, it’s a method of avoiding rash decisions & implementing careful consideration for passing certain laws
The Executive
Composition & Royal Prerogative
At one time, monarchs of
Federal Executive
England ruled through autocratic
means, making laws through the
exercise of the royal prerogative Represents Queen…
44
executive power of the States’ (Federalism) 3. Property rights: entitlement to royal metals,
o What are ‘the subjects with which federal royal fish, treasure trove, and the ownership of
executive power may deal’? the foreshore, the sea bed and its subsoil
Saunders
Case Law: Ruddock v Vadarlis (Tampa Case) (2001) – Case demonstrates the uncertainty about
what the executive branch can do without parliamentary authority
o Black CJ – ‘Doubtful’ that the necessary prerogative exists at common law; that is the
prerogative as the residue of authority left to the executive
o Ultimately, still unclear as to how to determine the boundaries of executive with legislative
power BREADTH: what subjects can executive power be used to
deal with?
Breadth of Executive Power
What are ‘the subjects with which federal executive power may deal’?
o Essentially an aspect of the division of powers between the Commonwealth and the States
o Two questions in determining breadth
o Consideration of whether breadth applies to executive ‘capacities’ or only to
powers in the nature of the prerogative
Strong view that considerations of breadth are relevant in assessing all
claims of executive power – means that valid Commonwealth contact
requires a link with a subject of legislative power
o Whether and if so how far the breath of executive power extend beyond the
ambit of Commonwealth legislative power
It is settled that it does extend beyond to some degree
45
o To the extent that scope of federal executive power exceeds legislative power,
problems of principle arise in regards to responsible government and federalism
Case demonstrates that when legislation covers the same area as a prerogative power, the prerogative
power is modified or extinguished
This power is now derived from the legislation and is subject to the conditions of the legislation
Background Facts
UK government requestioned a hotel for soldiers.
Requisition was pursuant to legislation (Defence of the Realm Consolidation Act 1914 (UK)) which
provided for compensation
When hotel owners asked for compensation, UK government claimed they exercised prerogative powers
Legal Issues: did the prerogative power exist, and if so how was this affected by the legislation?
Judgment: legislation modified prerogative powers – compensation was payable. The prerogative is ‘merged’ in
the higher title derived by the Act of Parliament. When there is a statutory provision covering precisely the same
ground, prerogative is extinguished (John Simon KC)
While the executive power may derive some of its content by reference to the royal prerogative, it is a power
conferred from the Constitution - the power to determine who enters Australia is a main sovereign power
It cannot be that the Constitution or any legislation deprives government from having this power
Facts: Norwegian ship carrying asylum seekers came into Australian territorial waters and were expelled
from Australia. Government claimed that the detention and expulsion of the asylum seekers was an exercise
of prerogative power
Legal Issues: does the Crown have the royal prerogative to exclude aliens from Australia
Executive Accountability
Delegated legislation: is law made by an executive authority under powers given to them by the
legislature in order to implement and administer the requirements of that primary legislation. It is law
made by a person or body other than the legislature but with the legislature's authority
There are very few limits at all between the parliament and the executive from an SOP
standpoint – legislature can confer many powers to executive
Delegated Legislation
Cheryl Saunders - Separation of Legislative Powers
Illustrates the influence of the underlying conception of legislative power and the structure of
responsible government on the constitutional separation of powers
Legal Issues
Did the doctrine of the separation of powers impose limits on delegation of legislative power to the
Executive?
47
people, but as a power of ‘plenary and absolute’ nature
o A power once delegated to the executive, no matter how extensive, lacks ‘independent
and unqualified authority which is an attribute of true legislative power’
Delegated authority is controlled by the empowering statute and will lapse if the
statute is repealed
Re-decision
DIMIA refuses Joe’s application
Merits review
Judicial review
Substantive problem (regarding substance): if you think the decision maker made an error of
fact, then you should go to the AAT or RRT. However you run the risk that they will just make the
same decision as DIMIA
o At AAT or RRT they will consider the same information as DIMIA – no more information
Procedural problem: if something went wrong with the procedure - would go before the courts
SOP: administrative tribunals cannot look at judicial review – it is only something which can be
examined by the courts
Human rights in judicial review: few rights enshrined in constitution, more likely to pursued by
tribunals or the courts. However, DIMIA still owes its existence to statute – if it is not within its
mandate to rule on rights issues then it wont
Why does the RRT and AAT have so much power?: they are part of the executive and are in a
sense keeping the executive in check (executive checking the power of executive)
o No one should have unfettered power
o They also have experts from all fields – an informed way of making decisions
o Not just a few old guys making a call – very much based on factual questions
o Executive must be answerable to the law
More thoughts on judicial review
What is court’s power to respond to the request? If court has power, what is the public body’s power?
- SOP: who has the last say and what is lawful government action?
o Parliament confers power onto Executive – makes law. Courts have the final say on
matters of procedure and legalistic interpretation
- Judicial review of admin action is not about redressing injustice or error
- Judges should never have the final say on government decisions; government is legitimised due
to representative government
- Executive are more expert in making policy decisions – they are making decisions every day, they
are going to be very informed and across the detail of their area and it makes sense that they
make decisions. The judges do not have this expertise
- JR provided under Constitutional JRAA and also under the constitution
o In all Matters:
In which a writ of Mandamus or prohibition or an injunction is sought against an
officer of the Commonwealth; the HC shall have original jurisdiction
o There are different sorts of errors of law and not all errors of law are guaranteed
o The only judicial review that is guaranteed relates to jurisdiction
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Jurisdictional error - It is interesting to think about this in terms of cats and dogs…
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions
and powers conferred on him or her; does something which he or she lacks power to do…
Cat Act 2013 Jurisdiction error - very open and difficult to define
Cats Tribunal - Jurisdictional error if it a decision was made regarding dogs
- Orders on cats - Jurisdictional error if a lion did it and they said that it does not have
- Disruptive jurisdiction because a lion is a cat
- Irrelevant consideration: ignored request because Jill has red hair
- Natural justice: if Jill was not allowed to present evidence on the
case (e.g. CCTV footage)
The ‘core task’ of judicial review is determining the legal validity of government action
What is the court’s power to respond to the request?
Justice Brennan: because the courts have no staff to enforce their orders… the efficacy of
judicial review is dependent… on the public acceptance of its “political legitimacy”
What is Judicial Review for?
His Honour (Brennan J) stated in Attorney-General (NSW) v Quin (1990) 170 CLR 1:
JR has always been more comfortable with review for errors of process than errors of substance
eg. jurisdictional errors
The job of judicial review was to enforce the legal limits to the exercise of power
It was not to cure administrative injustice or error, although if a court’s decision were to have that
effect then ‘so be it’
His Honour acknowledged that it can be difficult to distinguish merits and legality
Judicial review judgments abound with assertions that the court’s job is not to determine the case on
its merits, but to review only for contravention of an Act, breach of natural justice or illegality
Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24:
“The limited role of a court reviewing the exercise of an administrative discretion must constantly be
borne in mind. It is not the function of the court to substitute its own decision for that of the
administrator by exercising a discretion which the legislature has vested in the administrator”
It is fundamental that the reviewing court cannot substitute its decision for that of the administrator.
The most the court can do when it finds that a ground of review has been established is to nullify
the impugned decision or act…
Formal and Substantive Reasons for why Courts cannot substitute decisions
Formal: ‘the Act… gave the job to the administrator, not the court. The court can state that the job has
been done so badly that it should be regarded as not having being done at all, but it has no warrant for
taking the further step of doing the job itself’
This would be an exercise of executive power, conflicts with the Separation of Powers
This would be usurping the power of the Executive
Substantive: ‘the inability of a judicial review court to substitute its decision for that of the
administrator is that such a course would be more than illegitimate; it would be politically and
managerially foolish’
There would be loss of public confidence in the courts
Important rule of law dimension to administrative law is proposition that all powers have limits
‘The overall ground of judicial review is that the repository of public power has breached the limits
placed upon the grant of that power. Usually, the breach will consist of:
the done of power doing something more than was authorised, or
doing something authorised in an unauthorised way.
Aronson and Groves emphasise that realistically Parliament:
(1) Is unlikely to spell out all of the legal limits which will apply to a power conferred upon the
executive – which means a great deal is left to judicial implication in giving effect to
administrative law principles
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(2) is unlikely to spell out whether an executive decision would be a legal nullity if it was the
subject of a successful judicial review challenge – which means the courts have to determine
whether the error is a legally fatal one
When is Executive action reviewable by the courts?
When it comes to constituently guaranteed judicial review, the crucial threshold for whether an
error of law is a reviewable error is whether it is appropriately categorised as a ‘jurisdictional error’.
In terms of the judicial review made by a statute like the federal ADJR Act, ‘all material legal
errors’ are reviewable.
o Unprotected by the constitutionally guaranteed minimum of judicial review, Parliament
retains a legal capacity to limit/exclude review of such errors
s 64 – ‘no Minister of State shall hold office for a longer period than three months unless she is or
becomes a senator or a member of the House of Representatives’
Problems:
(1) Chain of accountability – do ministers actually control over their departments & public
servants?
(2) Does parliament actually have control of the ministers?
(3) Problems caused by the Senate’s power to block supply under s 53. (Block money bills)
o Obstructs the majoritarian notion of responsible government
o Senate can potentially impede smooth operation of responsible government
(4) The Governor General is actually invested with tremendous power. Has power, and has done
so before, to dismiss a government which enjoys a majority in the lower house.
Parliament has capacity to call the Executive into account. It has a power to take ‘reasonable’
measures to ensure the proper exercise of its functions- this power is defined by the conventions
and practices of the time
Reaffirmed conventions of responsible government, the review function of the Upper House and
developed the new idea that a Court could impose a remedy that interfered in the political arena
Background facts: Michael Egan, treasurer, was called upon by the Legislative Council to produce
certain documents. He refused to do so since the cabinet previously agreed that such requests should
be declined. The Legislative Council passed a resolution charging him in contempt and another a
resolution which suspends him from the council. He was then forcefully removed into the street. Egan
sought a declaration to invalidate the two resolutions (claiming he wasn’t in contempt) and that his
removal was a trespass (It was this claim which made the matter justiciable)
Legal Issues: did Parliament have the power to call the government into account?
Judgment
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Court of Appeal High Court
Both resolutions were The Legislative Council has the power to take measures to
valid ensure the proper exercise of its functions
However, trespass was This power is defined by the conventions and practices of the
committed contemporary time
The resolutions were thus valid
The Legislative Council has the power to charge the executive
with contempt and suspend them
The Parliament therefore has the power to call the government
into account. The government is answerable to the demands of
the Parliament
Judgment
Responsible Government
o As stated in Egan v Willis, the Legislative Council has the power to take measures to ensure
the proper exercise of its functions, and call the government into account
Legal professional privilege
o Yields to the accountability principle of responsible government:
o “access to legal advice on the basis of which the Executive acted…[was] reasonably
necessary for the exercise by the Legislative Council of its functions”
Public interest immunity
o For the performance of its proper functions, the Legislative Council will sometimes need
access to documents which may cause harm to the public interest if their exposed
o The issue is balancing Cabinet secrecy and the power of the Parliament to enforce
responsible government – however, it is not for the court to do this balancing – it is for the
Parliament
such a balancing exercise would not be a “constitutional function appropriate to be
undertaken by judicial officers”
“the court should respect the role of a House of Parliament in determining for itself what
it requires and the significance or weight to be given to particular information”
o The Legislative Council thus has the power to demand documents - subsequently, the
resolutions were valid
o However, court held that ‘cabinet documents’ (documents which reveal the internal
deliberations of the Cabinet) should remain secret, as they are a part of ‘ministerial
responsibility’, which is a part of responsible government
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Other Methods (Integrity Institutions, Merits Review, The Ombudsman)
The judiciary
Composition and appointments
A number of key issues need to be considered when assessing systems for making judicial
appointments. These include:
Judicial independence;
Merit-based appointments;
Equality and diversity;
o Culture, Gender, Age, Education, Geography
Transparency and accountability
The Justices have come from a relatively narrow selection of Australian society
o Only four women have been appointed
o Most have had experience at the Bar – None had been appointed from a full-time
academic position
o Appointments have often been political – First five justices were colonial politicians
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‘It is enough to say that outstanding professional skills and personal qualities, such as integrity
and industry, are required, together with a proper appreciation of the role of the Court’ (Williams)
o Confirms suggestion that appointees should be selected on essential criterion of merit
‘A belief that appointments that are made on merit alone is quite naïve’ (Gageler)
‘wider considerations can, and ought legitimately to be, brought to bear’ (Gageler)
Merit is argued as a threshold which must be met, after a consideration of diversity
‘we are not talking about diversity allowing someone who actually is not capable of doing the job to
be chosen because they would somehow create a more diverse judiciary’ (Cheryl Thomas)
Separation of Powers
The doctrine of the Separation of Powers purports to prevent the exercise of arbitrary or tyrannical
power. It does so by dividing powers between various independent institutions. In other words, rather
than one person holding all the power (like in a dictatorship), power is spread between separate
people. The power of the state is usually separated into three different arms:
Legislative (or lawmaking) power: the power to pass laws. It is entrusted to Parliament
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Executive power: the power to enforce or carry out the laws passed by Parliament. It is
entrusted to the government, and the public servants which the government employ (police,
public teachers and doctors, the RTA, etc)
Judicial power: the power to interpret and judge according to the law made by parliament. It
is entrusted to the courts and judges
If the legislative and executive powers are infused in the same institution, there can be no liberty. The same
applies when the judiciary is not separated from the legislative and executive
No separation between judiciary and legislature - citizens would be subject to arbitrary control; the judge
would be then the legislator
No separation between judiciary and executive - judges might behave with violence and oppression
Owen Wood Phillips & Paul Jackson - Constitutional and Administrative Law
The categories are inclined to be blurred. For example, the Constitution requires the executive to be
members of the legislative.
Complete separation of powers would bring government to a standstill
What the doctrine must be taken to advocate is the prevention of tyranny by the conferment of too much
power on any one person or body, and the check of one power by another.
Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan:
Vesting of judicial power in a body which also exercises non-judicial power is unconstitutional – Arbitration
court cannot enforce the no-strike clause.
Parliament cannot invest judicial power to anybody except a court as per s 71 and in accordance with s 72
(security of tenure)
There are considerations which indicate that the Constitution prohibits courts from doing functions which are
not a part of judicial power.
Chapter 3 does not allow powers which are foreign to the judicial power to be given to the courts.
Courts must be entirely independent of federal government as well as state.
Privy Council: the express mention of one thing means the exclusion of another.
Applying to the text of the Constitution – Chapter 3 expressly mentions Chapter 3 courts as the only type of
court invested with judicial power.
This excludes non-judicial power, therefore a Chapter 3 court cannot exercise such powers.
The decision in the Boilermakers Case has been seen as controversial and as “leading to excessive subtlety and
technicality in the operation of the Constitution without…any compensating benefit”.
However, the courts continue to affirm the Boilermakers Case. The rationale for that is to protect the individual
rights and freedoms of the people.
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Persona Designata Rule
The Persona Designata rule allows non-judicial functions to be assigned to particular people,
regardless of whether they also happen to be vested with judicial power since they are incidentally
judges as per Chapter 3.
Basically, although a Chapter 3 court cannot be endowed with non judicial functions, a federal judge
may be appointed or assigned to perform non-judicial functions as long as that particular assignment
is addressed to that particular person (and not the court).
Drake v Minister for Immigration & Ethnic Affairs (Bowen CJ and Deane J)
“Nothing in the Constitution precludes a justice of the High Court or a judge of this or any court created by the
Parliament under Ch III of the Constitution from, in his personal capacity, being appointed to an office involving
the performance of administrative or executive functions including functions which are quasi-judicial in their nature
Additionally, the power of the parliament to delegate its law making function to the executive in the
form of delegated legislation blurs the line between the executive and parliament. In theory however
there is supposed to be a strict SOP between the judiciary and the other two arms of government.
o Judicial power can only be exercised by CH III Courts. Our authority for this is the Meakes
case; Alexander’s case
o Ch III Courts can only exercise judicial power (Boiler makers principle)
The three types of courts discussed in S71 are the only courts which can exercise judicial power:
1. High Court
2. Other courts which legislature creates
o Federal court, Family court Federal magistrates court
3. Such other courts that it invests with federal jurisdiction: there are federal
criminal offences which are usually heard by State Supreme Court – when
these cases are heard they are exercising Federal jurisdiction)
o State supreme courts
Discussion questions
1. What is the modern rationale in Australia for a separation of judicial power and the
Boilermakers principle?
- Separation of judicial powers is necessary because:
o To protect federalism (e.g. you have an independent arbiter making decisions to resolve
disagreements between states). However, this could create pressure from the government
for the Federal Court to confer power to the Commonwealth as opposed to the states.
There is an assumption however that these judges would be independent – the prime
minister is not going to be influencing them behind the scenes.
o Baron de Montesquieu: you cannot vest too much power in one body or entity – you
need to fragment power to protect liberty. Vesting too much power with one entity or body
could have disastrous or tyrannical consequences
o Acts as a check against power: the separation of judicial power increases the
accountability of the executive and the legislature
NOTE: The modern rationale is more to do with rights protection than preserving federalism. Also on
the state level there is not a constitutionally mandated SOP – however parliament did entrench SOP
and security of tenure. In the Kable case, it was determined that you cannot entrench a separation of
judicial power on the state level in the same way that it is entrenched on a constitutional level – though
you can introduce legislation to mandate this, it will not bear constitutional authority.
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- Boilmaker principle
o the judicial power of the Commonwealth could not be vested in a tribunal that also
exercised non-judicial functions
o restricted the use of judicial power to Chapter III courts (under the Australian Constitution),
but also limited Chapter III courts to perform no other duty than exercising judicial power
o The rationale of this principle is that if a body were to have both then independence may
be vitiated
The judiciary is ultimately responsible for maintaining and enforcing the limits of governmental
power. This is the basis for which the whole system is constructed.
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- Persona designata exception: when a judge is given a role outside their role of a judge and this
is considered to be ok because they are not acting as a judge but rather a non-judicial person.
They have been given a non-judicial function to exercise and we know that this is not allowed,
however there is allowed when this conferral is as a person, not as a judge. The judge is not
eating judicial power cake, but it is ok because he is not doing it as a judge but as a person
o Examples of judges exercising non judicial power
Warrants (telephone warrants): this is interesting because the judge could issue
the warrant and then later be on the trial – they may have to awkwardly recuse
themselves without giving a reason
Royal Commissions
Preparing a report for parliament
o These roles are given to judges because they practiced in judicial functions so are
suitable to roles which are similar to what a judge does on a court eg. we would like these
individuals to be impartial, applying judgements to facts and are a
o These are explicitly non-judicial functions but to do them well you need to be a judge
o Arguably, parliamentarians are borrowing the services of judges to do their dirty work
o There are limits to the powers of judges with regards to non-judicial functions
Conclusion
The prohibition of assigning of non-judicial functions to bodies exercising judicial functions can be
circumvented using the Persona Designata Rule, as long as they don’t compromise its integrity
perceived integrity in any way.
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Accountability - Michael Coper
s 72 of Australian Constitution – ‘provides a procedure; only once invoked but never concluded; for
the removal of Justices in extreme cases’
‘Removal requires proved misbehaviour or incapacity’ and an address by both Houses of
Parliament
Measures of Accountability
Measure Description
The Court’s decisions are capable of being overridden in other ways – though not
commonly and not without difficulty
Decisions on common law and statutory interpretation, if perceived to be
wrong or inconvenient or otherwise inappropriate, may be overridden by
1. Court Parliament
Decisions can Decisions on the Constitution can too be overridden, however not by
be overridden Parliament alone, but by the electorate voting at a referendum to amend the
Constitution
Different effects on Justices:
o Some are inhibited from exercising a broad law-making function
o Some are emboldened by the knowledge that their errors can be
corrected
o Both views assume that legislative correction is a practical proposition
o In truth, legislative correction is sporadic, uncertain and relatively rare
It conducts its work in open court and it publishes its reasons for decision. Those
reasons are then open to public scrutiny, appraisal and criticism
Despite a limited statutory duty on many administrators to provide a
2. Publishes statement of reasons, this makes the Court significantly different form
reasons for administrative decision makers, whose accountability rests primarily in
decisions which correction on review or appeal
can be This is the key to Court’s accountability, open court principle and obligation to
scrutinised publish reasons are central elements to the rule of law that underpins our
democratic system of government
The efficacy of published reasons as an accountability measure depends,
however, on the existence of a community of informed & attentive critics
A way for which the Court is accountable for its work comes from within itself and
its own sense of responsibility
Accountability comes with the appointment of persons of integrity, whose
3. Holding itself
professional ethos and sense of public service have been developed over
accountable
many years
To some extent, we cross our fingers and rely on the appointers to be diligent
and responsible, and on the appointees to exercise internal and external
constraint
Tony Blackshield
Removal of Justices of the High Court is strictly controlled by section 72 (ii) of the Constitution, which seeks
to balanced judicial independence and judicial accountability. A justice may be removed only by the
Governor-General in Council, and only after ‘an address from both Houses of the Parliament in the same
session, praying from such removal on the ground of proved misbehaviour or incapacity’
Alpheus Todd
Misbehaviour includes,
o firstly, the improper exercise of judicial functions;
o secondly wilful neglect of duty, or non-attendance;’
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012
Source: By requiring the conduct of a judge to amount to ‘proved misbehaviour or incapacity’ in the estimation of
both Houses of the Parliament, the Constitution ensures that only the most serious complaints against judges are
considered.
In the event of a serious complaint about a judge, where the Parliament is called upon to consider the
removal, there is currently no standard way to assist the Parliament
The bill enables Parliament to establish a Parliamentary Commission where a resolution is passed by each
House of the parliament, in the same sittings, to investigate a specified allegation about a specified
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Commonwealth judicial officer
Rights Protection
Human rights are entitlements which a human being can claim simply because he is a human being.
Examples may be drawn from the Universal Declaration of Human Rights 1948[2]:
Article 3: Right to life, liberty and security of person
Article 18: Right to freedom of thought, conscience and religion
Article 19: Right to freedom of opinion and expression
Article 20: Right to peaceful assembly
Article 26: Right to education
Although the declaration was drafted as a non-binding statement of values, it is now viewed as a form
of customary international law which should be binding to all states – it has influence which exceeds
its legal effect (similarly to the Magna Carta).
Human rights can be sorted into 2 broad classifications Civil/Political rights, & Economic/Social rights:
Right Description
“Civil and political rights can be described as the rights which enable
individuals to operate freely within the political system and to be protected
from arbitral action in the administration of the law” or “limitations on what
the government might to do the individual”
Civil/political These include freedoms to exercise rights without government intervention – namely,
rights liberty, freedom of expression, freedom of religion, freedom of movement etc. In
(negative addition, they ensure that a person whose rights have been violated will have
immunity available remedies as a result. Examples are provided through the International
claims) Covenant on Civil and Political Rights:
Article 19: Freedom of expression
Article 26: Equal protection under the law
Despite these legislations, neither of the Covenants (or the Universal Declaration of Human Rights
1948) have been wholly implemented. Australia is the only democratic country in the world without
such a national law.
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Human rights in Australia
Roach v Electoral Commission
Australian Constitution not the outcome of a revolution
Framers not prepared to put fetters on legislative action
Scarcity of formal guarantees of rights and freedoms in Constitution – reflects high level of
acceptance in sovereignty in government
Strengths Weaknesses
Prevent HR abuses before they occur via Lots of bills – difficult to scrutinise all
promulgation of statute legislation for HR principles
Democratically sound Disagreement as to what constitutes rights
The effect of these being ‘freedoms’ rather than ‘rights’ (namely, negative claims rather than positive)
is that the only available remedy upon infringement is the invalidation of the legislation which curtails
them. If these were positive claims, the victim would be entitled to further relief such as damages.
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The parliament then determines whether to amend the legislation in question so it is compatible
with human rights
Encourages dialogue between the branches of government and the community with regards to
rights, rather than judicial or legislative monologue.
Protects rights from the International Covenant on Civil and Political Rights
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Bills and Charters of Rights
Argument Description
Statutes already exist (e.g. the Racial Discrimination Act)
Constitution
o express rights (right to trial by jury on indictment, right to unfair
The argument that the acquisition of property
current system is o implied rights (right to political freedom of speech)
adequate Common law (Meagher)
o principle of legality
INADEQUATTE: G o presumption of consistency
Robertson; Indigenous, Structure conventions of government
homeless, young people o eg. bicameral parliament
o responsible government
o parliament committees
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Constitutional Change & Issue
The contemporary issue will be the local government referendum.
We will look at the theory of changing the constitution today and this will be brought to live in the
current constitutional issue – the local government referendum.
What are the other ways can the constitution evolve over time (Saunders)
o The judicial interpretation of the words of the constitution may create change. If the
context changes we may need to re-examine the constitution. Certain questions are not
answered on the face of the constitutional text and judges need to give meaning to them
(eg. the Corporation’s power which led dormant for many years until the judiciary gives
power to them).
o S51: the referral provision which allows a state to refer their powers on a particular topic to
the commonwealth. For example, after September 11, police powers, which are usually
the purview of the state, were referred by the State to the Commonwealth
o Transitional provisions (‘… until parliament otherwise provides…’): if parliament passes
legislation on this topic then this constitutional section becomes invalid as the law evolves
o Intergovernmental cooperation: where the Commonwealth and the State’s will come
together to pool their powers to cooperate on certain things (eg. Gonski reforms). The
limits of the Constitution are overcome by federal cooperation
It is often said that the constitution is frozen in time. Others say, sure, it’s pretty frozen under
S128,but the Constitution does evolve, so perhaps it is not as frozen as people would like to think
Q. Who is responsible for the (a) initiation and (b) ratification of amendments to the
Australian Constitution? What other models might exist in this respect? Are they
preferable?
The Commonwealth parliament initiates constitutional change
Only the Commonwealth parliament may initiate Constitutional changes in Australia
In practice, s128 the Deadlock mechanism, in reality, there is dialogue between the upper and
lower houses, if there was a deadlock there would be a referendum
IF the senate proposed something twice and was shot down by the lower house it would go to the
Governor General (who acts on behalf of the prime-minister)
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o HYPOTHETICAL: parliament could get rid of redundant provisions of the constitution if
both houses agree and the courts oversee
Upcoming Referendum
Example the local government referendum: Commonwealth gives funds directly to local
governments, validates what they are doing already and to fend off constitutional challenges since
the Commonwealth already gives funding to local governments
o This proposed change already failed at referendum at 1974 and 1988
o Bill was introduced into parliament on 29/05/2013. It will be held on 14 September 2013.
Change reads:
o ‘Financial assistance to states and local government bodies. During a period of ten years and
after the establishment of the commonwealth and thereafter until the parliament otherwise
provides, the parliament may grant financial assistance to any state, or to any local
government body formed by a law of a state.’
o Julia Gillard: constitution is 113 years old and does not recognise the local arm of
government that most people deal with every day
o Concern that referendum is rushed and that it doesn’t have the State’s on side and may fail
Labour had only 1 of 25 proposals successful & only 8 of 44 successful across both
parties
The last successful referendum – 4 different changes on the one ballot paper:
1977: Regarding the retirement age of judges
o There was no ‘no’ case (pamphlet denouncing the change) – if no MP votes
against the bill in parliament, there is no ‘no’ case. The provision for this is under
the Referendum Machinery Provisions Act 1984
1977: Senate vacancy – convention was broken during the dismissal, a change was
made to s 15 that when a Senator leaves the replacement must be from same party
1977: territories were not allowed to vote. Now they are included in the national vote
but they do not count as states for the purpose of having to get the majority of sates
on side
Failed referendums:
1977: pre amble giving recognition to contribution of immigration, primacy of ROL,
deep kinship that Aboriginals have with their land – only 38% of the vote. Criticisms
were levelled at Prime Minister who insisted to write the pre-amble herself. This was
maligned – the reference to Aboriginal culture was very underwhelming. THIs was
purely symbolic and not substantive
Constitutionalism A complex of ideas, attitudes, and patterns of behavior elaborating the principle that the
authority of government derives from and is limited by a body of fundamental law
Judicial Review The doctrine under which legislative and executive actions are subject to review (and
possible invalidation) by the judiciary – NOTE: notion inherited from US
Parliamentary Parliament has the right to make or unmake any law whatever; and further, no person or
body is recognised as having the right to override the legislation of parliament (Dicey)
Sovereignty
Persona When a judge is given a role outside their role of a judge and this is considered to be
Designata acceptable because they are not acting as a judge but rather a non-judicial person
Popular People are source of the constitution’s power and authority - Dicey
Sovereignty
Representative The Australian political system is one in which the people elect members of Parliament to
represent them
Government
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Key Sections of the Constitution
Key Chapters
Chapter Name Description
Ch 1 The Parliament Detailed and comprehensive
Specify the composition and procedures of both houses
2 The Executive Dealing with structure and powers of executive government
Government
3 The Judicature Deals with structure & powers of and independence of judicature
Sections
Section Description
7 Senate directly chosen by people of the state - the Commonwealth Electoral Act
expands on this – can be read with s24 to give implied freedom of political communication
Roach v Electoral Commission: meaning has evolved to mean adult suffrage
24 House of Reps members directly chosen people of Commonwealth – can be read with
s7 to give implied freedom of political communication
Roach v Electoral Commission: meaning has evolved to mean adult suffrage
41 Might be viewed as guaranteeing a right to vote in federal elections for anyone entitled to
vote for the lower house of a State Parliament – basically says that states are determining
who can vote at the commonwealth level
Rights to vote could differ depending on what state you are in
Transitional provision – only operates for people in the states prior to 1902
51 (i) provides a power to make laws regarding “trade and commerce with other countries
51 51. The Parliament shall, subject to this Constitution, have power to make laws for the
(xxvi) peace, order, and good government of the Commonwealth with respect to:-
...(xxvi) The people of any race, other than the aboriginal people in any State, for whom it
is necessary to make special laws.
*Removed by 1967 referendum
59 British Colony: Queen has power to disallow or annul laws of federal parliament
SOP: effectively guarantees a constitutional remedy against excess of official power by
75 (v) officers of the Commonwealth, including ministers of the crown
76 Gives court jurisdiction for review of government action
98 Gave the Commonwealth powers of naval and shipping matters
116 Government shall not make any law which encroaches on freedom of religion
127 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other
part of the Commonwealth, aboriginal natives should not be counted.*
*Removed by 1967 referendum
128 Provides for amendment of the constitution by the Australian people voting at referendum
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