The Fundamentals Of Australian Constitutional Law
The Constitution
 Australian Constitution enacted as s 9 of the Commonwealth of Australia Constitution Act 1900.
This is a British Act.
 It establishes the Commonwealth and the States as a federal system.
 The States also have Constitutions - these are the 19th century statutes that gave each colony
responsible government. They continued as State constitutions.
 The Constitution is enforced by the High Court which has the power to invalidate any
unconstitutional exercise of legislative, executive or judicial power.
Legislative powers
 The Commonwealth can pass laws as long as they come within the heads of power set out in s 51
(are laws ‘with respect to’ those heads of power) or another provision of the Constitution.
 The States can pass any laws provided they are for the ‘peace, welfare and good government’ of the
State (they are not restricted by s 51 or any other heads of power)
 Sometimes the Constitution specifically prevents a State from making particular laws - eg the States
can’t make laws with respect to excises or can’t impose customs duties (s 90).
 If a State law is inconsistent with a Commonwealth law, the State law is read down to the extent of
the inconsistency (s 109).
Executive power
 Most significant powers of the Executive are conferred by legislation but some derive directly from
the Constitution (eg the Governor-General’s power as Commander-in-Chief of the armed forces)
and some from common law (ie prerogatives).
 The Executive cannot impose penalties or spend money without parliamentary approval.
 According to the principles of responsible government, the Governor-General exercises nearly all
powers only on the advice of the Prime Minister and/or another minister. Therefore the real
executive power belongs to elected representatives.
Judicial power
 Judicial power is the power to resolve disputes by the application of law.
 It is exercised by the High Court, the Federal Court, the Family Court and some State courts.
 Because judges are independent, the exercise of their functions cannot be interfered with by the
legislature or the executive.
Freedoms
 Freedoms as expressed or implied in the Constitution are limits to Commonwealth law making
power (the Commonwealth cannot make a law which infringes a freedom).
 Freedoms can also limit the scope of State laws. It depends on the wording of the section or the
scope of the implied freedom.
Separation of Powers
 The Constitution imposes a separation of powers on the Commonwealth. That is, there is a
separation between legislative and executive powers on the one hand and judicial power on the
other.
 There are also some limitations on the intermingling of legislative and executive powers (see eg
s 44(iv), but compare s 64).
 The States are not required to have a separation of powers (though they tend to in practice).
 This clear position has been to some extent confused by the High Court Kable decision in 1996 in
respect of State courts that also exercise federal jurisdiction.
What is Constitutional Law?
 The rules that constitute the state.
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It is both a legal and a political document
It defines the powers of the Govt and their institutions – the machinery of Govt.
Constitutions may be written or unwritten
What is Australian Constitutional Law?
 Rules in the Constitutions of the Commonwealth, States and Territories and the judgments that
interpret and apply them.
 The Constitution
 An Act proclaimed in 1901 to reflect the balance and powers between the Commonwealth and the
States at Federation
 Each State also has its own Constitution
What is Sovereignty
 It is the source of the legitimacy of the power of the state – where the authority comes from
Rule of Law & Judicial Review
What is the rule of Law?
 A set of contestable doctrines
 AV Dicey defines it by separating it into three categories:
 Ruled by the law - supremacy or predominance of the law as opposed to arbitrary power
 Equality before the law - equal subjection of all classes to the ordinary law of the land
 Power comes from the people - the rights of individuals is the source of the law
1. Ruled by the Law
Clause 5 of the Commonwealth of Australia Constitution Act 1900 (Imp)
 “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall
be binding on the courts, judges, and people of every State and of every part of the Commonwealth,
notwithstanding anything in the laws of any State.”
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27-28 per Brennan, Deane &
Dawson JJ
 Cambodian asylum seekers arrived on Australian land. Detained and applications rejected. P sought
review of decision and orders they be released. Fed Court set hearing date for determining if
wrongfully detained. Two days before, parliament passed Migration Act which allowed detention.
HC struck down the Act – not constitutionally valid.
 Held: Every citizen is ‘ruled by the law, and by the law alone’ and ‘may with us be punished for a
breach of law, but he can be punished for nothing else.’
Fardon v Attorney-General (Q), (2004) 78 ALJR 1519; [2004] HCA 46
 This case directly raises the issue whether the “rule of law” doctrine gives rise to certain
implications about the proper (read desirable) content of law.
 It reinforced the notion that the separation of powers does not extend to the States
2. Equality before the law
There is no constitutional guarantee to equality before the law
Kartinyeri v The Commonwealth (1998) 195 CLR 337
 The Cth has the power to pass laws which discriminate against classes and subclasses of people,
including Aborigines.
A v Hayden [No 2] (1984) 156 CLR 532 per Brennan J (at 580)
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Minister for Foreign Affairs authorised members of ASIS to train small team of persons. Exercised
required rescue of participant hostage from 10th floor of hotel. Hotel staff not warned, and team
equipped with firearms etc.
“The incapacity of the executive government to dispense its servants from obedience to laws made
by Parliament is the cornerstone of a parliamentary democracy”
“The principle is that all officers and ministers ought to serve the Crown according to the laws”
“This is no obsolete rule; the principal is fundamental to our law, though it seems sometimes to be
forgotten when the executive government or their agencies are fettered or frustrated by laws which
affect the fulfilment of their policies.”
Leeth v Commonwealth (1992) 174 CLR 455 per Gaudron J at 502
 “All are equal before the law. And the concept of equal justice – a concept which requires the like
treatment of like persons in like circumstances, but also requires that genuine differences be treated
as such – is fundamental to judicial process”
3. Power comes from the People
 Australia has Constitutional sovereignty as opposed to Parliamentary Sovereignty, therefore the
idea is that the people have control through the Constitution. C is regarded as a reflection of, but
subject to, the power of people. Can be changed by referendum (s128).
 This is reflected in the Preamble to the Constitution:
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania,
humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal
Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under
the Constitution hereby established.
 Thus: both legally and politically binding.
Giving Effect to the Rule of Law
Separation of Judicial Power:
 Judicature determines boundaries of legislative and executive power, free from political influence.
 Section 71:
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called
the High Court of Australia, and in such other federal courts as the Parliament creates, and in
such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief
Justice, and so many other Justices, not less than two, as the Parliament prescribes.
 Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 at 10-11per Brennan CJ, Toohey,
McHugh & Gummow JJ
“… the separation of functions is designed to provide checks and balances on the exercise of
power by the respective organs of government in which the powers are reposed.”
 R v Davison (1954) 90 CLR 353 per Kitto J at 380-381
it is “necessary for the protection of the individual liberty of the citizen that these three functions
[of government] should be to some extent dispersed rather than concentrated in one set of hands.”
 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 275
o Only Chapter III courts can exercise judicial power
o Chapter III courts can only exercise Chapter III power and powers incidental to Ch III power
o We will examine the separation of judicial power in more detail later in the course.
 Marbury v Madison 5 US 137 (1803)
o The difference between the departments (of government) undoubtedly is that the Legislature
makes, the executive executes, and the judiciary construes, the law.
Protection of individual liberties:
 Right to a Fair Trial
 Kingswell v The Queen (1985) 159 CLR 264 at 300; Krakouer v The Queen (1998) 194 CLR 202
at 224
Cheatle v The Queen (1993) 177 CLR 541 at 552.
 Dietrich v The Queen (1992) 177 CLR 292 per Gaudron J at 362
 “The fundamental requirement that a trial be fair is entrenched in the Commonwealth
Constitution by Ch III’s implicit requirement that judicial power be exercised in accordance with
judicial process
The content of the law should be accessible to the public
 Incorporated Council of Law Reporting (Q) v Federal Commissioner of Taxation (1971) 125
CLR 659 at 672 per Windeyer J
“In any country governed by the common law, the publication of the reports of decisions of the
superior courts is essential for the continuance of the rule of law..”
Standing
 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35
Standing is the right of a person to appear before a Court to have a question of law determined
Legal Representation
Dietrich v The Queen (1992) 177 CLR 292
Presumption of Innocence
Fardon v Attorney-General (Q), 2 March 2004
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Judicial Review
Legislative/executive action is judged by courts. Power of the courts to review legislative decisions
– and determine if constitutionally valid.
 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 per Dixon J at 193
o C enacted legislation to dissolve any Australian Communist Party and gave GG power to
declare any organization which supported communism to be illegal. Legislation struck
down.
o In such a system I think that it would be impossible to say of a law of the character
described, which depends for its supposed connection with the power upon the conclusion
of the legislature concerning the doings and the designs of the bodies or person to be
affected and affords no objective test of the applica-bility of the power, that it is a law upon
a matter incidental to the execution and maintenance of the Constitution and the laws of
the Commonwealth.”
o …”the validity of a law or of an administrative act done under a law cannot be made to
depend on the opinion of the law-maker, or the person who is to do the act…” Fullagar J.
 Marbury v Madison 5 US 137 (1803) per Marshall CJ
 Held that the Supreme Court’s function was to uphold the Constitution
 It could therefore issue the order of mandamus to compel the executive government to
honour the appointment
 This case is oft cited in the US and in Australia as being the authority that judicial review is a
feature of the Constitutional system in both countries
 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564:
“The Constitution displaced, or rendered inapplicable, the English common law doctrine of the
general competence and unqualified supremacy of the legislature. It placed upon the federal
judicature the responsibility of deciding the limits of the respective powers of State and
Commonwealth governments.”
 Section 75(v):
The decisions of ministers and public servants acting as the Crown in right of the Commonwealth
are also susceptible to judicial review through the prerogative writs outlined in s 75(v) of the
Constitution.
 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 per Gleeson CJ
The Australian Constitution is framed upon the assumption of the rule of law
Representative & Responsible Government
Representative government
 The Constitution sets up a system of representative government - supremacy of the people
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See sections 1, 7, 8, 13, 24, 25, 28, 30 and 128 of the Constitution
Section 1
 The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall
consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The
Parliament, or The Parliament of the Commonwealth.
Section 7
 The Senate shall be composed of senators for each State, directly chosen by the people of the State,
voting, until the Parliament otherwise provides, as one electorate.
Section 24
 The House of Representatives shall be composed of members directly chosen by the people of the
Commonwealth, and the number of such members shall be, as nearly as practicable, twice the
number of the senators.
Section 128
 This Constitution shall not be altered except in the following manner:
The proposed law for the alteration thereof must be passed by an absolute majority of each House
of the Parliament, and not less than two nor more than six months after its passage through both
Houses the proposed law shall be submitted in each State and Territory to the electors qualified to
vote for the election of members of the House of Representatives.
Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106
Gaudron J (at 210)
“Representative parliamentary democracy is a fundamental part of the Constitution. The notion of a
free society governed in accordance with the principles of representative parliamentary democracy
may entail freedom of movement, freedom of association and perhaps freedom of speech generally.
But, so far as free elections are an indispensable part of a society of that kind, it necessarily entails
freedom of political discourse. That discourse is not limited to communication between candidates
and electors but extends to communications between members of society generally.”
McHugh J (at 227 - 228)
“The requirement in ss 7 and 24 of the Constitution that Senators and members of the House of
Representatives be “directly chosen by the people”, interpreted against the background of
representative and responsible government, means that the people have a constitutional right to
convey and receive opinions, arguments and information concerning matter intended or likely to
affect voting in an election for the Senate or the House of Representatives.”
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Langer v The Commonwealth (1996) 186 CLR 302
Toohey, Gaudron JJ
The requirement found in s 24 of the Constitution that members of the House of Representatives be
“chosen by the people” must be taken as primarily mandating a democratic electoral system and,
however broadly construed the words “chosen by the people”, there is nothing to support the view
that members elected pursuant to a full or modified preferential system are not properly described
as “chosen by the people”.
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Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
o “Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the
House of Representatives to be directly chosen at periodic elections by the people of the States and
of the Commonwealth respectively.”
Parliamentary Supremacy?
 An element of Dicey’s formulation of the rule of law is parliamentary supremacy
 s51 of the Constitution gives the parliament the power to make and unmake laws
Section 51
 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: …
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564:
 “The Constitution displaced, or rendered inapplicable, the English common law doctrine of the
general competence and unqualified supremacy of the legislature. It placed upon the federal
judicature the responsibility of deciding the limits of the respective powers of State and
Commonwealth governments.”
 C exercises legislative power, but is restricted by all the express/implied limitations on power that
operate in the Constitution that are applied by ChIII courts (judicial review).
Mobil Oil Australia v Victoria:
 Abuse of legislative power is not a reason for denying existence of legislative power.
 Parliamentary power is not absolute – exercise of legislative power checked by will of people.
Responsible Government
 Doctrine: Executive is responsible to the Legislature, who in turn is responsible to people
(elections).
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers Case) (1920) 28
CLR 129 at 146 per Knox CJ, Isaacs, Rich and Starke JJ
 “For the proper construction of the Australian Constitution it is essential to bear in mind two
cardinal features of our political system which are interwoven in its texture and, notwithstanding
considerable similarity of structural design, including the depositary of the residual powers,
radically distinguish it from the American Constitution. Pervading the instrument, they must be
taken into account in determining the meaning of its language. One is the common sovereignty of
all parts of the British Empire; the other is the principle of responsible government.”
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956):
 “Probably the most striking achievement of the framers of the Australian instrument of government
was the successful combination of the British system of parliamentary government containing an
executive responsible to the legislature with American federalism. This meant that the distinction
was perceived between the essential federal conception of a legal distribution of governmental
powers among the parts of the system and what was accidental to federalism, though essential to
British political conceptions of our time, namely the structure or composition of the legislative and
executive arms of government and their mutual relations. The fact that responsible government is
the central feature of the Australian constitutional system makes it correct enough to say that we
have not adopted the American theory of the separation of powers.”
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Executive acts on advice of Ministers (Re Patterson; Ex parte Taylor)
Ministers are members of Parliament: s64
Ministers are responsible to Legislature (majority can censure/sack them)
Ministers responsible to people at elections (NSW v Bardolph).
Executive is dependent upon Legislature for its funds (ss81, 83).
Lange v ABC: court identified provisions of Constitution that provide for responsible
government:
Section 6: P meet at least annually.
 There shall be a session of the Parliament once at least in every year, so that twelve months shall
not intervene between the last sitting of the Parliament in one session and its first sitting in the next
session.
Section 83: control of funds by Legislature
 No money shall be drawn from the Treasury of the Commonwealth except under appropriation
made by law.
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But until the expiration of one month after the first meeting of the Parliament the GovernorGeneral in Council may draw from the Treasury and expend such moneys as may be necessary for
the maintenance of any department transferred to the Commonwealth and for the holding of the
first elections for the Parliament.
Brown v West (1990) 169 CLR 195 at 205 per Mason CJ, Brennan, Deane, Dawson & Toohey JJ
 “Subject to certain provisions in the Constitution which charge the Consolidated Revenue Fund of
the Commonwealth with the payment of particular items of expenditure, the power of appropriation
is reposed solely in the Parliament. It is by ss 81 and 83 that our Constitution assures to the people
the effective control of the public purse.”
Section 49: freedom of speech in debate, power to coerce provision of info/witnesses enforces
responsibility of Executive to the organs of representative government.
 The powers, privileges, and immunities of the Senate and of the House of Representatives, and of
the members and the committees of each House, shall be such as are declared by the Parliament,
and until declared shall be those of the Commons House of Parliament of the United Kingdom, and
of its members and committees, at the establishment of the Commonwealth.
Constitutional Monarchy?
 The Executive is the Queen (formal repository of power): ss61
 She is represented by the GG: ss62 & 64 (combined), role of GG is largely ceremonial (Sue v Hill).
 The Executive acts on the advice of Cabinet - Ministers (Federal Executive Council): ss 32, 33, 64,
67, 72,103, 126.
 BUT GG has “reserve” powers that do not expressly require advice to be taken.
 Summon and prorogue parliament (s5)
 Dissolve HOR (ss 5, 28) and HOR and S at same time (s57) – detracts from responsible gov.
 Choice/removal of members of FDC (ss62, 64).
 Command in chief of naval/military forces of Commonwealth (s68).
 Cabinet is the senior Ministers from parliament, chosen by the Prime Minister.
 Prime Minister is leader of party that commands majority support in House of Reps.
The Separation of Executive Power
 The doctrine of responsible government is supposed to eliminate executive review of legislative
action (executive control over laws).
 The Legislature may delegate law-making power to the Executive, BUT it cannot abdicate its power
to make laws.
The Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (Dignan’s case)
(1931) 46 CLR 73 per Evatt J at 121
 “each and every one of the laws passed by Parliament must answer the description of a law upon
one or more of the subject matters of the Constitution. A law by which Parliament gave all of its
law-making authority to another body would be bad merely because it would fail to pass the last
test mentioned.”
Australian Independence?
Sir Owen Dixon: contrasting with US prototype
 “in one respect the Constitution of our Commonwealth was bound to depart altogether from its
prototype. It is not a supreme law purporting to obtain its force from the direct expression of a
people’s inherent authority to constitute a government. It is a statute of the British Parliament
enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions.”
Statute of Westminster 1931, adopted in Aus - The Statute of Westminster Adoption Act 1942
 Confirmed C had full power to enact legislation of extraterritorial operation (s3)
 UK could not enact legislation with effect within Aus unless C consents (s4)
Nadan v R [1926] AC
The Australia Acts 1986 (NSW, C’th and UK):
 UK has no power to legislate in Aus (s1)
 States have power to legislate with extraterritorial effect (s2(1))
 States enjoy plenary legislative power as wide as that enjoyed by Imperial Parliament, except
power to engage with other countries (s2(2).
 States can enact laws repugnant to Imperial legislation (s3(2)
 These new powers remain subject to Commonwealth Constitution (s5)
 Queen’s power to disallow State legislation removed (s8)
 Involvement of Imp Parl in State affairs terminated (s10)
 Appeals to Privy Council from State Supreme Counrts terminated (s11)
 Aus constitutional ties with UK severed (Sue v Hill).
Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351
Thus:
 The Statute of Westminster and the Australia Acts cannot be amended or repealed other than by an
amendment to the Constitution in accordance with s128 OR
 Legislation passed pursuant to s51(xxxviii) which requires the concurrence of all of the State
Parliaments
 “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 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”
An Australian Republic?
 The Preamble to the Constitution recites the agreement of the people of the colonies to ‘unite in one
indissoluble Federal Commonwealth’.
 Although Aus’ constitutional ties severed, the language of Constitution still contemplates that
Queen exercise significant powers.
 People argue that Australia should confirm its status as independent replublic and remove all
references to Queen from Constitution via s128 (referendum provision).
 s44 – Disqualification provision
Who are ‘the people’?
Several sections of the Constitution refer to the ‘people’
 The Preamble - “agreement of the people”
 s7 - “the people of the States”
 s24 - “the people of the Commonwealth”
 s117 – “subjects” of the Queen of Australia” is synonymous with “Australia citizen” (Street v
Queensland Bar Association).
 Cv Cl 5 - “shall be binding on the courts, judges and people of every State”
Citizenship:
 Statutory right and can therefore be changed (re Patterson; Ex parte Taylor).
 DJL v Central Authority: mother took child to Australia without consent of American father.
Argued that child could not be expelled from Australia as under citizenship laws, an Australian
citizen has a right to return to Aus (Air Caledonie v The Commonwealth) and right to remain
(Robtelmes v Brenan).
 Argument rejected – Constitutional implications derived from idea of citizenship
Singh v The Queen [2004] HCA 43 per Gleeson CJ & Gummow, Hayne & Heydon JJ & Kirby J
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An alien was a person who did not have an allegiance to the Queen
Because baby Singh was born to parents in a detention centre who did not have an allegiance to the
Queen she was an alien
per McHugh J and Callinan J
“In my opinion, a person born in Australia is not, never has been and, without a constitutional
amendment, never could be an alien unless that person falls within one of three categories. None of
those categories applies to Ms Singh” at [35]
Kruger v Commonwealth (1997) 146 ALR 126 at 158 per Dawson J:
 Discussed people included in the drafting of the Constitution
 Aboriginal Ps challenged Constitutional validity of NT Aborinals Ordinance 1918 that authorized
Chief Protector of Aborigines to undertake the “care, custody and control” of Aboriginals in that
Territory. Ps removed from families and detained as part of assimilation. Argued that interfered
with freedom of religion (s116) as well as implied equality, freedom etc. HC: failed. Constitutional
validity of law has nothing to do with its morality.
 “It may be observed that a degree of inequality was lacking in the free agree­ment (which is said to
underlie the Constitution) … in that the referendum expressing that agreement excluded most
women and many Aboriginals”
Constitutional Reform
 Sections 105A, 51(xxiiiA), 51(xxvi), 127, 15, 72, 128
 The Constitution can only be altered by referendum under s 128 of the Constitution. Section 128
requires the approval of a majority of electors in a majority of States for any change to the
Constitution to be effected.
Implied Doctrines in Constitution:
Intergovernmental immunity: Commonwealth and States were sovereign in separate areas and able to
exercise their legislative power immune from operation of other’s legislation: Baxter v Commissioner
of Taxation.
State reserved powers: Commonwealth cannot exercise its legislative power in way that interferes with
residual or “reserved” powers of the States falling outside its enumerated powers: R v Barger.
 Both implied doctrines above rejected in Engineers case.
Melbourne Corporation v Commonwealth:
 Commonwealth may not impose special burdens/disabilities on State/s or curtail the existence
of the State/s or their capacity to function as governments.
Re Australian Education Union; Ex parte Victoria:
 Reformulated Melbourne Corporation principle.
 Limitation consists of two elements:
1. prohibition against discrimination placing on States special burdens/disabilities
2. prohibition against laws of general application which destroy/curtail the continued
existence of States or their capacity to function as governments.
 Approved and applied in Victoria v Commonwealth.