General Pointers on Constitutional
Policy in the Exam
 Consider what the question is asking.
 Define any relevant terms.
 Pick at least 3 areas of Constitutional Law or key cases




which you could discuss in relation to the topic.
Set out the law clearly and succinctly.
Be aware of alternative viewpoints and incorporate
those into your essay.
Have an opinion and make a balanced argument.
Address the question in your conclusion.
Key Constitutional Policy Topics
 Human Rights
 Parliamentary Sovereignty
 Division of Powers/Federalism
Human Rights
 This may encompass a question on the impact a
particular case has had in protecting human rights or
may ask you to comment on whether the Constitution
effectively protects human rights.
 Note that the founders did not intend the Constitution
to be a human rights and adopted the theory of a
benevolent parliament from the U.K.
 Key areas of law to be aware of are Separation of
Powers (particularly state separation of powers),
Implied Freedom of Political Communication and the
Australian Communist Party Case.
Australian Communist Party
Case
Facts; The High Court was ruling on Constitutional validity
of the Australian Communist Party Dissolution Act. It was
argued the Act was valid under the defence power.
Held; the law was invalid.
This was not a case about the justice or injustice of the law in
question but the outcome protected human rights. This
demonstrates the way in which the Constitution may
unintentionally protect human rights.
Kirby J in Thomas described this as a judgment ‘worthy of a
free and confident society’. He viewed the verdict reached
in Thomas as a wrongful departure ; ‘form of judicial
tyranny’ .
DPP v Kable
The legislation enabled renewable six month detention
orders to be made and only applied to Kable.
HCA (4-2) held legislation to be invalid.
Doctrine of Incompatibility; state courts with fed
jurisdiction cannot be vested with powers which may
undermine the judiciary or public confidence in
judicial process.
Gaudron J in Kable
Public confidence cannot be maintained if courts are required
to deprive persons of their liberty not on the basis that they
have breached any law, but on the basis that an opinion is
formed by reference to material (which may or may not be
admissible in criminal proceedings) that on the balance of
probabilities, they may do so.
Also, stated that public confidence requires laws to be of
general application and not just applicable to one
applicant.
Fardon v A-G – Kirby J (dissent)
 Unthinkable for Kable to stand alone.
 Should be invalid because punishment based on
predicted future conduct rather than past criminal
offences, imposition of additional punishment on
select class of prisoners and double punishment for
offence for which time has already been served.
 Concerned about Kable being rendered a
‘Constitutional Guard Dog that barks but once’.
Implied Freedoms
 Political Communication – arising from representative
nature of the Constitution (ACTV, Lange).
 Implied right to vote – Roach.
Deane J in Theophaneous;
‘It should not be that the failure to include a detailed list of
constitutional rights should be treated as somehow
precluding or impeding the implication of rights, privileges
and immunities from either the Constitution’s express terms
or the fundamental doctrines upon which it was structured
and which it incorporated as part of its very fabric.’
Example Questions
Does Kable v DPP effectively protect human rights?
The Constitution of Australia does not protect many human rights.
Nevertheless, the High Court through Constitutional
Interpretation has shown itself to be an appropriate protector of
individual rights and has upheld the democratic system of
government for all people. The cases of Lange and Kable and
their successors demonstrate the strength of those decisions. Do
you agree or disagree with this statement?
Following Lange and Roach some commentators were hopeful that
the High Court had a new enthusiasm for drawing implications
from the Constitution for beneficial purposes but in Betfair the
High Court refused to imply that protectionist legislation for the
benefit of the people of the state may be valid. This conflicts
with Lange and Roach, undermining the hopes of those
commentators. Comment on this statement with reference to at
least one case.
Parliamentary Sovereignty
Described by A.V Dicey as the power bestowed on the Parliament 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 principle has been adopted in Australia from the U.K but has not
been adopted to the same extent because in the Australian context the
written Constitution provides some limitations to the doctrine.
The advantage of the doctrine is placing the power to make legally and
morally sensitive decisions in the hands of elected representatives but
the disadvantage is that there is a lack of checks and balances.
All areas which deal with Constitutional Limitations are potentially
relevant to a question on Parliamentary Sovereignty.
What is the doctrine of Parliamentary
Sovereignty and to what extent does it
apply in Australia?
 This question requires definition of the term parliamentary
sovereignty, as well as your opinion on Parliamentary
Sovereignty in Australia.
 Essential to answer both parts but most of your policy
discussion will be concentrated in the second part of the
question.
Answering the Question
 Define the term in the introduction and provide signposts
to your answer. State that the Commonwealth Parliament
does not have absolute sovereignty because it is
constrained by written Constitution.
Areas of Constitutional Law which may be relevant;
 Intergovernmental Immunities
 Implied Rights
 Freedom of Interstate Trade and Commerce
 Manner and Form Provisions.
Body Paragraph 1
The Commonwealth Parliament has broad powers and its
powers have been interpreted expansively by the High
Court.
Legislation made cannot be struck down on the basis of
being unjust or on the basis of Court disagreement.
[N]othing depends on the justice or injustice of the law in
question… it is only because the legislative power of the
Commonwealth Parliament is limited by an instrument
emanating from a superior authority that it arises in the
case of the Commonwealth Parliament.
Fullagar J in ACP v Commonwealth.
Body Paragraph 2
Is the Federal nature of the Australian Political system a
constraint on Parliamentary Sovereignty?
- Division of Powers
- Maintenance of a federal system
- Intergovernmental immunities; can’t legislate in a way
which may impair the ability of the state to function as
a government.
- May be able to contrast against Grants Power.
Body Paragraph 3
Implied Prohibitions on the power of the Commonwealth in
respect of the Representative system of government, eg.
freedom of political communication and voting.
Consider the effect of these as restrictions on Parliamentary
Sovereignty – how significant are they?
Note the 2nd limb from Lange enables the Commonwealth to
circumvent the freedom if the circumvention is for a
legitimate purpose and is appropriate and adapted.
Conclude
Give an opinion as to what extent Parliamentary
sovereignty operates in Australia.
Comment on the merit of Parliamentary sovereignty.
The balance between a check on legislative power and
the ability of the representative Parliament to pass the
laws which it sees fit on the behalf of the people.
Division of Powers/Federalism
 This type of question will require an evaluation or
discussion of areas of law which have affected the
division of powers between the states and
Commonwealth.
 Generally, it will require some discussion of the trend
in constitutional interpretation to interpret the powers
of the Commonwealth expansively.
 It is important to understand federalism as a concept
and the rationale behind it.
 Key topics include external affairs power, corporations
power, grants power and IGI.
What is the most significant
criticism you would make of the
Engineers Case?
 This is a question asking about a specific case, in order
to answer it you would need a strong knowledge about
this particular case and its impact.
 It is also asking for you to single out one thing as a key
criticism – as the significance of the Engineers Case is
the end of the Reserved Powers doctrine, the shift in
the division of powers between Commonwealth and
state is a logical criticism to make.
Example Introduction
The most significant criticism to be made of the decision
which the High Court reached in the Engineers Case would
be the challenge the decision has posed to federalism. The
decision radically altered the federal balance of power by
removing the reserved powers doctrine. This doctrine had
operated to protect state legislative power by preventing the
Commonwealth from legislating in areas where power was
reserved. The impact of the decision in Engineers has been
to skew the federal division of power in favour of the
Commonwealth, giving the federal parliament expansive
powers, particularly in areas of external affairs,
corporations and grants of financial assistance to states.
This expansive approach to Constitutional interpretation
has posed a massive challenge to federalism in Australia
and the impact which the Engineers Case had in
precipitating this is the most significant reason for
criticisms of the decision.
Body Paragraph 1
 What was the position prior to Engineers?
The R.P doctrine operated, as per Barger.
 Summarise the facts in 1-2 sentences.
Industrial Relations claim lodged in arbitration court and
defendants included state government employees. Under
reserve powers doctrine, the Court could not have affected
relations between state government and employees.
 What was held and why.
The R.P doctrine was abolished – note obiter comments from
court which set out reciprocal powers, indicating the court
did not intend to challenge federalism.
Body Paragraph 2
 As the Reserve Powers doctrine no longer limits the
legislative power of the Commonwealth, the heads of
power under the Constitution have been interpreted in
ways that see the Commonwealth move into
traditional areas of state power.
Eg. EAP s.51(xxix)
Judicial discussion in both Tas Dams and Koowarta
provide great insight on federalism.
Murphy J in Koowarta
There are limitations imposed on the ability of the
Commonwealth to enter into treaties in relation to its
external affairs power, such as s 116 which provides that
the Commonwealth cannot legislate with respect to
religion, but if otherwise, unless confined by
Parliament, the external affairs power remains
unconfined.
Held that there was plenary Cth Power.
Mason J in Koowarta
 Not sensible to suggest that these powers can be left to
the states and that the states can then be expected to
act uniformly and cooperatively in implementing these
powers.
 If there is a disturbance of the balance of power
between the Commonwealth and the States, then it is
a necessary disturbance and one which is essential to
Australia’s participation in world affairs.
Gibbs CJ in Koowarta
 It is impossible to envisage any area of power which could
not become the subject of Commonwealth legislation if the
commonwealth became a party to an appropriate
international agreement.
 To understand the power as becoming available merely
because Australia enters into an international agreement or
because the subject matter is one of international concern
is to misunderstand the Federal Nature of the Constitution
 The Federal balance of power achieved by the Constitution
could be destroyed.
 This would make s.51 (xxix) a mechanism by which the
Commonwealth could achieve unlimited legislative power.
Deane J in Tas Dams
 It is generally best to interpret the provisions of the
Constitution in a broad scope except for where the context
indicates that a narrower interpretation will best carry out
the operation and purpose of that instrument.
 In the modern world, there are few subjects which are not
prone to becoming treaties and the distinction between
matters which are internal and matters which are external
has, for all practical purposes, disappeared.
 External affairs has no precise meaning and its
construction must be informed by the federal nature of the
Australian Constitution rather than the unlimited scope of
treaty making power.
Body Para 3
 Similarly, the Corporations Power under s.51(xx) has
been given a very expansive interpretation. This is
primarily illustrated by the High Court decision in the
Workchoices Case.
Majority Judgment in Workchoices
Concerns about federalism are irrelevant – should not be
concerned about federalism but should just ask
whether the law does in fact direct itself at a
Constitutional Corporation.
Kirby J in Workchoices
 The majority reasoning opens the way for the
Commonwealth to radically reduce application of state
laws where they have operated for more than a
century, eg. private schools and private hospitals;
opportunistic shift in federalism and a radical shift in
the make-up of the Australian nation.
 HCA charged with defending the checks and balances
of government within our system – the present age
shows the necessity of rediscovering the fundamental
federal nature of the Constitution.
Kirby J Cont.
Federalism is a political system of particular value in
contemporary circumstances as it protects the
freedom of individuals when the law, politics and
technology all tend to pull in the other direction.
‘Once a Constitutional Rubicon such as this is crossed,
there is rarely a going back’.
Body Para 4
The Grants Power under s.96 also provides an example of
the challenge posed to federalism in Australia.
- Discuss vertical fiscal imbalance in favour of the
Commonwealth. The only limitations are that states
cannot be coerced and that the state must be
constitutionally capable of fulfilling the conditions.
Menzies on the First Uniform Tax Case; the end of the
federal era in Australia.
Conclusion
The Engineers Case was a landmark case in Australian
Constitutional Law. It removed the doctrine of
reserved powers which had been a source of protection
for the states and enabled the powers of the
Commonwealth to be read far more expansively.
Federalism in Australia is currently very tenuous as the
Commonwealth powers broaden to an extent where
the states become almost legislatively crippled. The
most significant criticism to be made of Engineers
Case is the role which it played in creating this
situation.
Addressing Problem Questions
Is the legislation Commonwealth or State legislation?
- if state; is there a manner and form provision? Is it doubly entrenched?
Is it too onerous? Is the 2nd law a CPP law?
Is there any IGI breach – state purporting to regulate relationship between
Commonwealth and subjects (Cigamatic) as distinct from exercise
(Henderson)?
Does the legislation confer power on a state court which is incompatible with
judicial independence or public confidence in the judiciary (Kable)?
Does the law burden interstate commerce with a protectionist and discriminatory
effect without a non-discriminatory aim (Cole v Whitfield)?
Is it inconsistent with rights conferred by a Cth law (Ansett) or does it attempt to
legislate in an area where the Cth intends to cover the field (Clyde v Cowburn)?
Addressing Problem Questions
Continued
If Commonwealth;
does it fall within the direct or incidental scope of a head of power?
- EAP s.51(xxix)
- treaty
-international concern
-international relations
- extraterritoriality
statement
-Corporations s.51(xx)
-direct; object of command test
-incidental; adoption of Re Pacific Coal
which extends to employees
-Grants Power s.96
Addressing Problem Question
Continued
Limitations;
 IGI – impair capacity of state to function as gov (Austin).
Consider cases of QEC and State Banking.
 S.O.P; Is court other than Ch 3 exercising JP (Wheat Case) or Is
Ch 3 court exercising Non JP (Boilermakers)?
- Exceptions; Delegation (Princ 1) and
Incidental/Persona Designata (Princ 2).
 Implied Freedoms ; Political Communication (Lange). Is there a
burden on communication which is political? Is there merit to
burden and is means appropriate and adapted?