Summary Australian Constitutional Law and Theory complete PDF

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51 Legislative powers of the Parliament The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) trade and commerce with other countries, and among the States; (ii) taxation; but so as not to discriminate between States or parts of States; (iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth; (iv) borrowing money on the public credit of the Commonwealth; (v) postal, telegraphic, telephonic, and other like services; (vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; (vii) lighthouses, lightships, beacons and buoys; (viii) astronomical and meteorological observations; (ix) quarantine; (x) fisheries in Australian waters beyond territorial limits; (xi) census and statistics; (xii) currency, coinage, and legal tender; (xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; (xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) weights and measures; (xvi) bills of exchange and promissory notes; (xvii) bankruptcy and insolvency; (xviii) copyrights, patents of inventions and designs, and trade marks; (xix) naturalization and aliens; (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) marriage; (xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiii) invalid and old-age pensions; (xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; (xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; (xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; (xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws; (xxvii) immigration and emigration;

(xxviii) the influx of criminals; (xxix) external affairs; (xxx) the relations of the Commonwealth with the islands of the Pacific; (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; (xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth; (xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State; (xxxiv) railway construction and extension in any State with the consent of that State; (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; (xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. Week 1 – Intro to Constitutional law Pages 1-4 1. Constitutional Law  The Cth of Australia came into existence (on 1 January in 1901) with the establishment of the Commonwealth of Australia Constitution Act 1900 (Imp)  Australia took from the UK the Westminster system of representative and responsible government, while from other nations with written constitutions, especially the US, it adopted the concepts of federalism, the separation of powers and judicial review  Under s 59, the Queen is able to disallow, or annul, laws made by the federal Parliament  Representative government means government by the people through their elected representatives, while responsible government means that the executive arm of government is responsible to Parliament for its actions  “Constitutional monarchy” describes the power embodied in the idea of “monarchy” and limits the ideals and principles of “constitutionalism”

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AV Dicey defines the term “constitutional law” as “all the rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state”  Sir Ivor Jennings defines a constitution as a document setting out “the rules governing the composition, powers and methods of operation of the main institutions of government, and the general principles applicable to their relations to the citizens”  Giovanni Sartori argues that a constitution is “a fundamental law, or a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure a ‘limited government’”  An example of a “nominal” constitution is the British Indian Ocean Territory (Constitution) Order 2004 (considered in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009])  In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] Lord Mance (in dissent) protested against the very concept of such a “constitution” stating “A colony … consists … of people living in a territory, with links to a parent state. The Crown’s ‘constituent’ power to introduce a constitution … is a power intended to enable the proper governance of the territory, at least among other things for the benefit of the people inhabiting it. A constitution which exiles a territory’s inhabitants is a contradiction in terms”  A “written” constitution is usually a single solemn document which founds a political community, defines its chief political institutions, confers their powers, and circumscribes the permissible limits of those powers  Australian constitutional law is both written and unwritten. The written document known as “the Australian Constitution” is set out in s 9 of the Commonwealth of Australia Constitution Act 1900. It is complemented by the Statute of Westminster 1931 (Imp) and the Australia Act 1986 (Cth) and is supplemented by the common law and unwritten conventions  AV Dicey explained it, a “flexible” constitution (Australia - flexible) “is one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body”. Thus, even if there are constitutional rules restricting the powers of parliament, so long as the constitution is “flexible” parliament itself can amend the rules to remove those restrictions by exercising its ordinary powers  A “rigid” constitution according to Dicey “is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws”. Thus, under the “rigid” Australia Constitution, amendments are initiated by the Commonwealth Parliament, but can only be effected by a referendum satisfying the requirements of s 128 2. Constitutionalism and Judicial Review  The Australian Constitution assumes that where a statute is enacted by any Australian parliament that exceeds the powers recognised or conferred by the Constitution, or infringes some express or implied constitutional limitation, any court has the power to declare the enactment to be unconstitutional and therefore invalid Pages 122-131 3. Federation – George Williams, Human Rights under the Australian Constitution

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By parliamentary sovereignty, Dicey meant ‘that parliament … has … the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’. This found expression in a diluted form in the Australian Constitution, in the grant of plenary power to the Commonwealth in the specified areas listed mainly in sections 51 and 52, but subject to the adoption of the US notion of judicial review, under which the HC can invalidate legislation inconsistent with the Constitution 5. The Statute of Westminster  The Statute of Westminster 1931 (Imp) freed the Dominions, including the Cth, from the Imperial restrictions by excluding the operation of the Colonial Laws Validity Act and thereby the repugnancy doctrine. The Statute also removed any restrictions upon Cth legislative power arising under the extraterritoriality doctrine  s 2 of the Statute of Westminster provided that the Colonial Laws Validity Act, and thus the doctrine of repugnancy, did not apply to the Dominions (including Australia)  Under s 4 the British Parliament could still legislate for Australia, but only with the “request and consent” of the Commonwealth Parliament  The Cth Parliament could now enact laws inconsistent with British legislation (except that, under s 8, it could not alter or repeal the Australian Constitution); while any territorial limit on its legislative powers was brought to an end by s 3  Under s 2 of the Statute of Westminster, it was clear, at least once Australia had “adopted” the Statute of Westminster, that neither the repugnancy doctrine nor the Colonial Laws Validity Act could restrict the powers of the Cth Parliament. s 2 was applied in Copyright Owners Reproduction Society Ltd v EMI (Australia) Pty Ltd (1958) 100 CLR 597  The Copyright Act 1911 (Imp) applied to Australia by “paramount force”  The HC held that the Copyright Act 1956 (UK) did not extend to Australia since it did not comply with the “request and consent” requirement of s 4 of the Statute of Westminster  It was not necessarily that the British parliament could not legislate contrary to the Statute of Westminster, but rather that, as a matter of construction, it could not be interpreted as having intended to do so unless such an intention had been made unmistakably clear  The Statute of Westminster left 2 impediments to full Australian legal independence: 1. Under s 4, the UK could still legislate for the Cth, albeit at the Cth’s “request and consent” 2. The states were still bound by the doctrines of repugnancy (under the Colonial Laws Validity Act) and extraterritoriality  These limits were deemed incongruous but was dispelled by the Australia Act 1986 Pages 141-145 7. The Australia Act  The Australia Act 1986 (Cth) ended the continued application and paramountcy of Imperial laws in the Australian States  The passing of the Act also signalled the end of the power of the British Parliament to legislate for Australia (s 1) and removed the doctrines of

extraterritoriality (s 2) and repugnancy (s 3) insofar as they applied to the States  The UK version was enacted, as the Statute of Westminster required, with the Cth’s request and consent, as expressed by the Australia (Request and Consent) Act 1986 (Cth)  The Australia Act severed legal ties with the UK in Sue v Hill (by Gleeson CJ, Gummow, Gaudron and Hayne JJ), where it was held that the UK is now “a foreign power” for the purposes of s 44(i) of the Constitution  Sue v Hill  Facts: – D (Hill) was Australian citizen but still had UK citizen – D was elected as a senator, and subsequently, relinquished her UK citizenship (only after election)  Issues – Eligibility for the Federal Parliament – Restrictions o Violation of s 44(1) – Independence as a result of the Australia Act o Is the UK a ‘foreign power’? – Does the HC, sitting as the Court of Disputed Returns have the capacity to determine the question in proceedings instituted by petition?  Ratio –  Held: – Gleeson CJ, Gummow and Hayne JJ: by terminating any remaining appeals from Australian courts to the Privy Council, the Act had ensured that “no institutions of government of the UK exercise any judicial powers with respect to this country” – Majority held that the attempted repeal (of the Electoral Distribution Act 1947 (WA)) was blocked by s 13 of the 1947 Act, which effectively provided that “any Bill to amend this Act” must be passed by an absolute majority in both Houses of the State Parliament. The restraint thus imposed by s 13 was said to be rendered effective by s 6 of the Australia Act, which effectively reduplicates, for laws “made after the commencement of this Act”, the “manner and form” requirements formerly imposed by s 5 of the Colonial Laws Validity Act – Kirby J (in sole dissent) held that the Australia Act was unconstitutional because s 6 purported to impose a new restraint on the legislative power of State Parliaments, it impliedly amended ss 106 and 107 of the Cth Constitution by introducing into the State Constitutions a new element which had not been envisaged by those provisions. No amendment of ss 106 and 107 could be valid unless effected by referendum pursuant to s 128 of the federal Constitution Violation of s 44 (1) – Since Australia Act 1986 (Cth), the UK is considered a foreign power – it has no legislative, executive or judicial influence over Australia. o s 1 - UK cannot legislate to Australia o s 11 terminated the possibility of appealing to the Privy Council. o UK has admitted that it would be against constitutional practice for British ministers to tender advice to the Crown for the appointment of

Australian ministers (as was once the custom) – no executive influence. o Executive UK decisions, such as entering military alliances and acceding to treaties have no legal consequence on us. Therefore, no executive influence. – The UK is a ‘foreign power’, despite the fact it was not so when the Constitution was written. – “The constitution speaks to the present and its interpretation takes account of and moves with these developments”. Capacity – HC does have the jurisdiction – This can be done either through a petition or a parliamentary referral. – Parliament did have the power to disqualify members of parliament, yet it is unclear whether they still do.  Attorney-General (WA) v Marquet (2003)  Facts –  Issue – Were two WA Acts relating to the distribution of electors modifying the constitution Parliament (and as such, subject to the absolute majority manner and form requirement)?  Ratio –  Held – Yes, they were - “constitution” is broader than just abolishing/changing houses – Majority held that it was sufficient that the Act had been passed in reliance on Constitution s 51(xxxviii), which gives the Cth parliament power to legislate at the request of the State parliaments – Murphy J held that the severing of residual legal links with Britain fell within the external affairs power, and Mason and Deane JJ relied on that view as establishing that the matter was one “within the authority of the Parliament or Government of the Commonwealth” for the purposes of s 9(1) of the Statute of Westminster. On this basis, the Australian version of the Australian Act may have been valid even without reliance on s 51(xxxviii) Week 2 – State legislative powers Pages 426-436 Chapter 10: State Constitutions 1. Introduction  S 5 of the Colonial Laws Validity Act 1865 (Imp) made clear, each local representative legislature had “full power to make laws respecting [its own] constitution, powers, and procedure”  The colonial constitutions in force on 1 January 1901 were expressly preserved in force by s 106 of the Constitution – to “continue as at the establishment of the Commonwealth … until altered in accordance with the Constitution of the State”

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S 107 made it clear that, except as to powers given exclusively to the Cth or “withdrawn from the Parliament of the State”, the existing legislative powers of the State Parliaments were to “continue”  S 108 ensured that existing State legislation remained in force, along with the State’s existing “powers of alteration and of repeal in respect of any such law”  S 108, however, was subject to the possibility of Cth legislative override under s 109  Three limitations from the Constitution under s 106 arise: 1. Areas of power exclusively vested in the Cth Parliament are necessarily excised from the powers of the States (i.e. s 90, s 51) 2. Some provisions of the Constitution expressly limit State legislative power (notably s 114, which provides that a State “shall not … impose any tax on property of any kind belonging to the Cth”). S 117 prevents the States from discriminating against residents of other States and s 92 commands that interstate “trade, commerce and intercourse” shall be “absolutely free”. S 112 permits state “inspection laws” 3. Since s 106 makes the State constitutions “subject to this Constitution, State legislative powers may be subject to limitations implied in the Constitution (e.g. federalism). Most other implications that may be discerned in the Cth Constitution will operate primarily as limitations on Cth legislative power; whether they also operate as limits on State legislative power is not always clear. If they do operate, it is clear that they do so with the words “subject to this Constitution” in s 106. In Theophanous v Herald & Weekly Times Ltd (1994), Deane J asserted that: “The concurrent legislative powers of each State … [are] derived from its constitution which … is subjugated to the Constitution as a whole by s 106”. A limitation on Cth legislative power will flow on through s 106 to limit State legislative power as well if, but only if, the limitation at State level is necessary to ensure the effectiveness of the limitation at Cth level. As Dawson J observed in McGinty v Western Australia (1996): “The continuation by s 106 … of the former colonial constitutions as State Constitutions is made ‘subject to this Constitution’, but this does not serve to apply to the States provisions of the Cth Constitution which otherwise have no application to them”  In R v Burah (1878) each colonial Parliament “has, and was intended to have, plenary powers, the State Parliaments are invested with Australia’s closest approximation to the British concept of “parliamentary sovereignty”  The Taxation of Colonies Act 1778 provides that Parliament “will not impose any duty, tax, or assessment whatever, payable in any of his Majesty’s colonies”, with limited exceptions for the benefit of the colonies 2. State Legislative Power (a) Peace, Welfare and Good Government  S 5 of the Constitution Act 1902 (NSW) states: “The Legislature shall, subject to the provisions of the Cth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of NSW in all cases whatsoever  A suggestion that “peace, welfare and good government” are words of limitation was made by Street CJ in Building Construction Employees and Builders’ Labourers Federation of NSW v Minister for Industrial Relations (BLF Case). Here a challenge to the deregistration of the BLF had been

dismissed by Lee J in the NSWSC. The Union appealed, but before the appeal could be heard the NSW Parliament passed the Builders Labourers Federation (Special Provisions) Act 1986 (NSW) which sought to remove doubts that had arisen in the hearing before Lee J. Kirby P: “Its plain object was to remove any risk of an adverse determination of the appeal from Lee J. It amounts … to a legislative judgment”. It was argues before the NSWCA that the Act was invalid because s 5 of the NSW Constitution did not empower the Parliament to abrogate certain fundamental rights. The argument failed BLF case  Facts: – The Builder’s Labourers Federation of New South Wales was deregistered. – The unio...