Week 1- Foundations of Australian Constitutional Law PDF

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Foundations of Australian Constitutional Law...

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Foundations of Australian Constitutional Law Jemimah Roberts Lecturer / Convenor Constitutional Law

This lecture •

What is a ‘Constitution’?

•

Introducing the Australian Constitution

•

Foundational concepts in Australian constitutional law

2

What is a ‘Constitution’?

•

Political and legal constitutionalism

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Written vs unwritten?

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Flexible vs rigid?

4

Comparative examples

5

The Australian Constitution

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Commonwealth Constitution ― Section 9 of the Commonwealth of Australia Constitution Act 1900 (Imp)

•

State Constitutions ― Eg Constitution Act 1902 (NSW)

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Statutes ― Statute of Westminster ― Australia Acts

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Supplemented by common law and unwritten constitutional conventions

7

Commonwealth Constitution

https://www.peo.gov.au/multimedia/videos/the-constitution.html

8

Structure • •

8 Chapters Chapters I, II and III – The Parliament, The Executive Government and The Judicature

9

Section 51

10

Amendment? •

Requirement for referendum (section 128)

11

Australia: A Constitutional Hybrid

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Influence of the British and American constitutional traditions ― Elaine Thompson – the “Washminster” Mutation

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What concepts were “borrowed” from each of these models?

13

Westminster influence

14

Rule of law •

A. V. Dicey

•

Ivor Jennings

15

Responsible government • • •

Largely governed by constitutional conventions (although note s 64) Prime Minister, Cabinet etc Collective and individual ministerial responsibility

(Picture credit: Gary Ramage) https://www.theaustralian.com.au/nation/scott-morrisons-ministry-sworn-in-atgovernment-house/news-story/e1385b02c9aaf13c254fa3c1dfd4732e#&gid=null&pid=1

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Parliamentary sovereignty •

“Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) the King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, 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” ― A. V. Dicey, Introduction to the Study of the Law of the Constitution (1885) (emphasis added)

17

Example: Miller (No 2) •

R (on the application of Miller) v The Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41 (24 September 2019) ― “[41] Two fundamental principles of our constitutional law are relevant to the present case. The first is the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply.”

(Former) UK Supreme Court President Lady Hale delivering the Miller (No 2) judgment (Photograph: EPA)

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Relevance in Australian context?

•

To what extent does this principle apply in the Australian context? ― Parliament’s power is constrained by the Commonwealth Constitution ― Judicial review of legislation / power of invalidation

19

Constitutional monarchy •

Queen Elizabeth II of Australia

The Queen and Prince Philip end their Royal Tour (Photo credit - AAP: Lincoln Baker)

20

American influence

21

Federalism •

Powers are distributed between a central government and regional government

•

In Australia, the Constitution establishes a federal system of government with powers distributed between the Commonwealth and the States ― Section 51

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Cf United States Constitution – Article 1, Section 8 “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 23

Separation of powers •

“The accumulation of all powers, legislative, executive and judicia[l] in the same hands, whether of one, a few, or many, and whether hereditary, self– appointed, or elective, may justly be pronounced the very definition of tyranny” (James Madison, Federalist No. 51, 1788).

•

Checks and balances

(Picture source: https://www.docsoffreedom.org/student/readings/separation-of-powers-with-checks-and-balances)

Eg Impeachment •

U.S. Constitution, Article II, section 4 – “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

18 Dec 2019 – US House of Representatives votes to adopt the articles of impeachment accusing US President Donald Trump of abuse of power and obstruction of Congress 25

Australia: A partial separation of powers? •

Note relationship between Executive and Legislature (responsible govt)

Picture source: Parliamentary Education Office (peo.gov.au) 26

Judicial review

27

•

“[I]n [the Australian] system the principle of [Marbury v. Madison] is accepted as axiomatic” – Communist Party Case per Fullagar J p 263

Picture source: https://www.hcourt.gov.au/about/the-building 28

Conclusion

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