Topic 3 Notes - Sources Of Law - The Australian Constitution PDF

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LAW112: Introduction To The Australian Legal System – Charles Sturt University TOPIC 3 Notes: Sources of law: The Australian Constitution

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Australian Constitution (Public Law)

Found in the Commonwealth of Australia Constitution Act 1900, 63 & 64 Vict, c 12, s 9.

Sources of Constitutional Law

Constitution – Rules on law making Statutes – supplementary law granted by the constitution (eg S71 to create additional federal courts other than high court) Convention – accepted rules of behaviour, obliged politically to follow but not legally to allow flexibility

Doctrine of Separation Of Powers

S51 Legislature - ‘heads of power’ – power to make laws ie Parliament S61 Executive – power to administer laws – ie government S71 Judicial – power to interpret law and enforce laws – ie court system. Creates High Court that cannot be abolished by the commonwealth. Implied safeguard for separation of powers. S76 Constitution – High Court power to determine constitutional matters R v Kirby; ex parte Boilermakers Society of Australia (1956) 96 CLR 254. An arbitration court, created under constitution, was given power to make industrial awards (legislative) and punish breaches of those awards (judicial). Breach of doctrine as it could not make an award and then enforce it. Australian Capital Television Pty Limited v Commonwealth [No 2] (1992) 177 CLR 106, 211. Implied freedom of political free speech. Struck down laws made under S51 restricting political advertising (“subject to this constitution”) as S 7 and 24 state that parliament shall be chosen by the people.

Express limits of law making powers for CTH

S 51(ii) – Tax law that discriminates between states S92 – Laws restricting trade, commerce and travel between states

S,128 – referendum/amendment 1) Upper/Lower house majority vote. 2) Majority of electors in majority of states AND majority of population overall. 3) Queen ascent

8 successful referendums out of 44 have passed since federation. 1967 referendum very significant. 90% of Australians said yes to amending S51 and 127 to include Aboriginals to be counted in the population and gave the commonwealth power to make laws to benefit Aboriginal people, S 9, 27, 29-30 Constitution Parliament is wholly elected by the people.

Good relationship between executive and legislature. Legislature chooses the prime minister and executive ministers from within the legislature, based on the legislature’s confidence in them. Assumes political parties are effective and disciplined and Government (executive) is answerable to public opinion. Practically, the governor is the head of government, with an executive council (government – prime minister and ministers) giving advice. Prime minister or cabinet not mentioned in constitution. S52 Commonwealth Parliament makes laws: Geographic location of Cth govt (all laws) Matters relating to Cth govt departments Customs (inbound goods) and Excise (local made goods) duties Other inferred under constitution EG S71 power to create courts etc S51 Commonwealth and state parliaments can make laws in areas listed. “Cover the field” case law means. S109 can be used by CTH to legislate on all S51 and automatically supersede state legislation even if no inconstancy. S 106 and S107 States have power to make laws that are not specifically granted to the commonwealth. EG – Health/Education is a state power

S109

Changing Constitution

Representative Government Responsible Government

Exclusive Legislative Powers

Concurrent Legislative Powers

Residual Legislative Powers

Inconsistency

Summary

(Dees, 2010)...