Comparative Constitutional
Law
Class 11
September 27, 2006
Australian Constitutional Interpretation
I
WRAP-UP
• Federal constitution
• Modern democracy/constitutional
monarchy
SEPARATION OF POWERS
• Advisory opinions permitted? (Contrast to
U.S. and Canada)NO
• Executive-legislative separation?
• Judicial independence? See s. 72
(appointed until age 70 (amended from life
in 1977), can’t be removed except by both
Houses of Parliament on ground of proved
misbehavior or incapacity, salaries can’t
be reduced while in office)
AMENDMENT
• Contrast amendment procedures with U.S.
and Canada
AMENDMENT
• Contrast amendment procedures with U.S.
and Canada AUSTRALIA: Requires
federal legislation and approval by majority
of voters nation-wide and in a majority of
states
U.S. Amendment Article V
• The Congress, whenever two thirds of both Houses shall
deem it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures of
two thirds of the several States, shall call a Convention
for proposing Amendments, which, in either Case, shall
be valid to all Intents and Purposes, as part of this
Constitution, when ratified by the Legislatures of three
fourths of the several States, or by Conventions in three
fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided
that no Amendment which may be made prior to the Year
One thousand eight hundred and eight shall in any
Manner affect the first and fourth Clauses in the Ninth
Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the
Senate
Canada Part V 1982 Constitution
Act
• Most amendments subject to 7-50 formula
(resolutions of the Senate and House of
Commons; and resolutions of the legislative
assemblies of at least two-thirds of the
provinces that have, in the aggregate,
according to the then latest general census,
at least fifty per cent of the population of all
the provinces).
• Some require unanimous consent, others
consent of only one province
AMENDMENT
• How many times has the Australian
Constitution been amended (compare with
U.S. and Canada)
RIGHTS
• Compare rights provisions in Australian
and Canadian and U.S. Constitutions
RIGHTS
• Compare rights provisions in Australian
and Canadian and U.S. Constitutions Why
are rights so limited? Doctrine of
parliamentary sovereignty: parliament as
best doctrines of liberty. Natural rights, not
utilitarian view. Desire for strong
government
AMENDMENT
• How many times has constitution been
amended (compare with U.S. and
Canada) 8 of 44 proposals (U.S. 27
Amendments, Canada 10 amendments)
JUDICIAL REVIEW
• Contrast with U.S. and Canada
COMPARE AND CONTRAST
• Australian High Court, U.S. Supreme
Court and Supreme Court of Canada
• Jurisdiction, judiciary, leave to appeal,
number of cases heard, number of
judges, how they are appointed,
background, # women and minority
justices?
JUDICIAL COMMITTEE OF THE
PRIVY COUNCIL
• All Commonwealth
realms had right of
appeal to Privy Council in
England. Some retained
this after independence
but many began to find it
out of tune with their
values
IMPACT OF PRIVY COUNCIL IN
AUSTRALIA
• Compare with that of Canada
• See section 74 (inter se), 76
AUSTRALIAN CONSTITUTIONAL
INTERPRETATION
• What problems exist for interpreters of the
Australian constitution?
• Positivist or normativist?
• Originalist or “living tree”?
• Compare to U.S. and Canada
AUSTRALIAN CONSTITUTIONAL
INTERPRETATION
• Formalism
• Literalism
• Engineers
Sir Samuel Walker Griffith
• First Chief Justice of
the High Court (19031919)
High Court: First Sitting (1903)
Justice O’Connor
• Served on High Court
1903-1912
• Former Senator
• Favored Federation
• Involved in
Constitutional
convention
Sir Edmund Barton
• First Prime Minister of
Australia (1901-1903)
• Protectionist
• Work defusing first
international cricket riot in
1879 (he was umpiring)
led to start of his political
career
• Leading federalist in
NSW at time of
constitutional conventions
Justice Higgins
• Served as justice on
the High Court 19061929
Justice Isaac Isaacs
• Served on the High
Court 1906-1930
• Difficult, uncollegial
• Radical
• Later appointed
Governor-General
• Opposed to Zionism