MLL323 Constitutional Law Exam Notes
Topic 1: An Introduction to Australian Constitutionalism
Unit examines both Australian and Vic constitutions and the principles that inform their history, structure and operation.
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Primary source of legal authority, the blueprint for govn and the document that defines the relationship b/w Australians and
their public institutions all in one
All legislation – whether commonwealth, state or territory must be sourced to and be consistent with the Australian
Constitution
The HC recognizes that the common law must also conform to the constitution
Constitution = King of Laws
How do you involve a society in the drafting of a constitution? What is the danger of excluding certain groups of people from the
process?
George Williams – less than inclusive process took place during 1890’s when constitution was drafted
" At the referendums of 1899 and 1900 the draft constitution was supported by a majority of voters in each colony
" Voting = voluntary – 60% of people able to vote
" Large sections of the community were also excluded from voting – most women and aboriginals
" Small % of Australians casted vote in favour of draft of constitution
" In NSW, QLD and Tas figure below 10%
Sources of Australian Law
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Entire Aust Const is contained in ONE section of a British Statute – Australian Const Act 1900 (UK) – same in 2013
Question is therefore raised – is it possible for the UK parliament at Westminster to still amend our constitution?
Acceptable principle of law that a parliament can unmake what it has made
However, Britain holds closely the notion of parliamentary sovereignty – which primarily states that the UK parliament has
the power to make or unmake any law whatsoever, irrespective of subject matter, presumably including the Australian
Constitution.
However, unlikely UK would do this. Following the statute of Westminster and the Australia Acts it is likely that the HC
would rule that our consti can only be amended in accordance with the procedure in s 128.
Although we do remain a constitutional monarchy, commentators have claimed that the passage of the Australia Acts in 1986
marked the final severing of all legal ties with the UK.
Commonwealth Electoral Act 1918 (Cth)
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Important apparatus for functioning of Australia’s const system
Tells us who can and can’t vote in Comm elections and establishes the system of voting and the allocation and distribution of
parliamentary seats
However, Act is not entrenched by a provision like s 128
Therefore provisions can be amended or abolished by ordinary parliamentary legislation
Fundamentals of Aust Constitutionalism
What is a (state) constitution?
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Basic law of a state
Higher or paramount law – everyone is subject to the constitution; no laws at federal level can conflict with the constitution
itself
Institutions of govt
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! Limitations
! Relationships
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Written (Aus, US, India) vs unwritten (UK, NZ)
Flexible (UK) vs entrenched (Cambodia)
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Ordinary rules (NZ), vs special status (Aus)
Australian constitution
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Emphasis on ‘rule of law’
‘Rule of law’ – HC judges referred to it as a foundational principle to support well-established presumptions of statutory
construction which hold that the legislature does not intend to abrogate fundamental common law rights
UK lacks a written constitution
Constitution is paramount over fed & state laws ie is a form of ‘higher law’ which is supreme over people, governments and
other rules of the legal system.
Enforced by courts – job of enforcing constitution is given to the courts; judiciary that holds legislative structure to account
Unconstitutionality leads to invalidity
Constitutional conventions:
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Sovereignty
The sovereignty of parliament is the dominant characteristic of our political institutions
The principle of parliamentary sovereignty means neither more nor less that this namely that parliament… has… ‘the right to
make or unmake any law that no person/body is recognised by the law of England as having a right to override or set aside the
legislation of parliament’
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# How do you involve a society in the drafting of a Constitution?
# What is the danger of excluding certain groups of people from that process?
# Does the authority of the Aus Const’n rest on popular sovereignty?
Constitutions can be written or unwritten and flexible or entrenched
Written vs unwritten
Australia constitution is written
Even where written, may be supplemented by constitutionally approved rules or processes (eg in Australia’s case, by
reference to customs known as constitutional conventions or by judicial interpretation)
• Lack of fed structure is one reason why the UK and NZ has persisted with unwritten constitutions
Flexible vs entrenched
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Constitutions differ in how prescriptive they are about the conduct of state affairs
Some constitutions like the UK are flexible – most of the instruments of which they consist could be overridden by a law
made tomorrow by UK supreme political institution, the parl of Westminster
Other constitutions are entrenched to a greater or lesser degree – aka cannot be amended easily
Entrenchment achieved by the application of mandatory amendment processes – whole of the commonwealth const is
entrenched by s 128 – proposed change be contained in an act of parl and supported at a national referendum by a majority of
electors in a majority of states
Sources of Australian constitutional law
1. History
Four sources of constitutional power
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Pre-colonial legal systems
The Washminster system
Imperial power
The Australia Acts
History
# Australia is still treated for constitutional purposes as a
‘tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the
British dominions’
- Constitution still rests on terra nullius – land was empty when we got here
- If we later decided that the terra nullius doctrine was irrelevant – would have to go back and change a lot
- Legal history we have is influenced by original fiction about terra nullius
- Cooper v Stuart 14 App. Cas. 286
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# Later, the Privy Council’s characterisation of pre-colonial inhabitants of Australia was described as ‘a discriminatory
denigration of indigenous inhabitants, their social organization and customs’
# Practically unoccupied – even despite the Mabo decision
Mabo v Queensland (No 2) (1992) 175 CLR 1 per Brennan CJ at 40
• Case reversed attitude in regards to land rights
Four Sources of Constitutional Power
Pre-colonial legal systems
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History informs constitutional law
Prior to 1788 indigenous people had many systems however these don’t contribute to common law today
Dutch came to Australia before England – however they did not bring any legal systems with them
# None of Australia’s hundreds of pre-colonial systems of regulation have ever been given legal recognition
# Some limited recognition in non-constitutional areas
! Native title
! Indigenous traditional marriage as a defence
! No other introduced systems
• Almost impossible for indigenous people to regain land rights due to current constitution
The Washminster system
# Took from the British system
! Structure of the Constitutional monarchy – retained Crown as head of state
! Parliamentary sovereignty – talk about in more depth later on
! Responsible government – key principles underpinning Australian const law
# Took from the American system
! Federalism – UK not a fed system, but Aus system and US system is, power is divided between tears of government
! Senate elected on a states’ franchise – senate elected in such a way to be representative of state
! Rigid constitution – written and also inflexible
! Judicial review – s 75, s73 of Const Act – notion that courts could keep govn to account
# Law ‘received’ into Australia was a product of a long and complex history – state of history was in US and UK at that time as
opposed to complex proceeding of history
# Australia has led with some constitutional innovations, e.g. ‘universal’ male suffrage(all males can vote – Australia first to do
this) – some ways copied US law, but also have lead as we have taken progressive steps in the law
Imperial power – what extent has it influenced const law in Aust today?
# UK common law ‘inherited’ – inherited upon colonisation
# UK could legislate for the colonies and they did
! Copyright Act 1911 (UK)
! Naturalisation and Aliens Act 1914 (UK)
# Local colonial legislatures could modify the inherited law to suit circumstances but only to certain extent – couldn’t conflict
with laws of England
Colonial Laws Validity Act 1865
# Made it clear that the colonial legislature could act without constraint from London except where the colonial legislation
clearly conflicted with a British Act
# UK could still legislate for Australia
# The Balfour Report - recommended review of legal relationship between UK and its dominions
# Statute of Westminster 1931
! Disapplied Colonial Laws Validity Act ‘repugnancy’ rule
! Severs the connection b/w commonwealth parliament and Britain
! UK would only enact legislation with ‘request and consent’
! Aus legislature extra-territorial competence
BUT, States still subject to constitutional disabilities
The Australia acts
# Power of UK Parlt to legislate for Aus created problems
Australia Act 1986
# Complete break with UK
# UK parliament and Aus parliament pass this act therefore ultimate break with UK
# S1 – terminates power to legislate for Aus
# S3 – gives state parlts power to repeal / amend UK leg’n
# S11 – abolishes appeals to the Privy Council from Australian Cts, other than HC
Australia today
# Still a constitutional monarchy
# Republic referendum failed 1999
# Not going to occur in the new future because of history with referendums in the past
Labour party does not command the overruling number of seats in parliament – they are in government however because they have
equal number of seats as liberal however independents backed labour at last election – yet to test whether independents support Rudd
To enable functioning of constitutional system…
Commonwealth Electoral Act 1918 (Cth)
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Who can vote
Who can’t
System for voting
Allocation / distribution of parliamentary seats
Judicial interpretation – most significant contributor to changes in constitutional history
Although bound by precedents change can occur because perhaps the meaning of words change over time and therefore interpretation
changes
R v Brislan (1935): Section about telecommunications; at the time there were no mobile phones – even though not
changing constitution/law it still is
# E.g. Al-Kateb v Godwin 2004 – Asylum seeker, seeking asylum not yet a refugee, in Australia, couldn’t be returned
anywhere else, and not given rights in Australia, what do we do with him? Indefinitely detain him in detention – not morally
great decision but legally fine by const.
• Judicial interpretation allowed us to evolve but also held us back to an extent
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Fundamentals of Australian constitutionalism
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Federalism
Separation of powers
Responsible government
Judicial review
Parliamentary sovereignty / supremacy
The rule of law
Federalism
The union to which the people of what were formerly self-governing colonies agreed was a federal union, and the colonies became
States of the new federation. Each State retained its own Constitution and its own organs of government: legislative, executive and
judicial. This division of power between a central government and the governments of the State or provinces is the essence of a
federation.
Murray Gleeson, Former Chief Justice of the High Court
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Element of unity – we are one
Independent entities that come together in one unity
How do we know what powers the commonwealth govn have? Its in the constitution
Can the commonwealth govn go beyond those powers? They shouldn’t but they do sometimes, but the law says they
cannot go beyond powers
What powers to states have? Power is given to them in the state constitution. They have the powers which are not outlined
in the state constitution
What kind of powers have commonwealth government got? Military, money, international relations (all things of a
national character) state has; healthcare, licensing, marriage, criminal justice
Reasons for federation
# Trade & taxes – s92 finance and trade
! Trade, commerce between the states shall be absolutely free
# Infrastructure, e.g. railroads
# Defence – isolated and vulnerable to external threat
# Immigration
# National pride
Why does a federal system of government require a written constitution?
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More certainty to have the constitution written down – can hold people to it better
Everybody is subject to the law of government
Separation of powers
Don’t want to give absolute power to any body – this could cause corruption therefore important to separate the power
In the US – absolute separation of powers; whereas we have an overlap of powers in some sense, eg executive can have legislative
power because they are in parliament
# Power separated to three arms of govt
! CH1 – Parliament
! CH2 – Executive
! CH3 – Judiciary
Separation of powers – overlap
# S64 – Cth Ministers are drawn from and accountable to the parliament
# Partial separation of powers
# Why do we have the overlap? Responsible government $ notion/idea that executive government exceeds their power by
making them accountable
# Theory that they can be questioned in parliament and have to answer to account for their actions
# Ontop of that parliament have the money – if they don’t like what the govn is doing, they wont give them money
Separation of powers – states
# State constitutions do NOT recognise a separation of powers
# Similar UK – at the state level more like the UK
Responsible government
The most British of constitutional features is the doctrine of ‘responsible government’
• Along with a dual parliament, it remains the defining characteristic of the Westminster System
People who are elected should be responsible for what they do – make a major mistake you should resign (in theory, doesn’t happen
anymore though)
# S64 – Government ministers must be drawn from and accountable to Parliament
# S61 – vests exec power in GG, BUT responsible govt – must act on advice of ministers
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# S83 Parliament controls treasury – exec has power but Parl’t controls money
‘Responsible Government, as applied to parliamentary systems modelled on the Westminster system, mean that government, though
formally carried out in the name of the Crown (Executive), in reality is conducted by Ministers who are members of parliament.’
Judicial Review
# Courts have power to enforce the Constitution – the ‘guardians’
! Laws that offend constitution may be struck down
! Administrative decisions that are unconstitutional may be declared invalid
‘The power to declare invalid an expression of the will of a democratically elected legislature involves a responsibility of a special
kind. The existence of an unelected body with a capacity to decide that an enactment of an elected parliament is without effect will only
be accepted if the community is confident that such power will be exercised for the purpose for which, and in accordance with the
conditions upon which, it was given.’
Why do you think the High Court has the power of judicial review? Is it undemocratic?
What other options exist for scrutiny of parliamentary legislation other than judicial review?
Parliamentary sovereignty / Supremacy
Parliamentary sovereignty
A principle that exists in England – has all the power, parliament can do whatever it chooses its not obstructed by anything or anybody
Dicey – absolute parliamentary sovereignty
e.g. kill all blue eyed babies
# NOT in Australia
# Legislative power is restricted
! Ss51, 52 outline subject matters for which Cth can pass laws
# States can pass laws on any subject matter, but subject to s 109
# Parliament still supreme
! Parliament can abrogate judicial decisions
! Exec is accountable to parliament
! Reflective of democratic mandate
The rule of law
Rule of law implied in the Cth Const under s 75 and covering clause 5
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Dicey
All persons are equal in the eyes of and before the law -
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S5 ‘[t]his 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 every part of the Commonwealth’
‘Its major features are its insistence on an open public administration of justice, with reasoned decisions by an independent judiciary,
based on publicly promulgated, prospective, principled legislation. On this understanding, the principle of the rule of law is directed
primarily at the judiciary and other subordinate legal institutions such as the police, prosecution service, and administrative authorities.
It directs them to apply statutory and common law faithfully, openly, and in a principled way. The principle of the rule of law also
applies to the legislature, and directs it (and the courts to the extent that they develop and change the law) to make laws which could be
faithfully applied, ie. To make them reasonably clear in formulation, and coherent and transparent in purpose. It also directs them to
establish and maintain a system of courts, and other legal institutions, which are capable of observing the requirements of the rule of
law.’
Topic 2: The Executive
THE CROWN
What constitutes the crown and its proper role in the Australian federation remains misunderstood
There was a time when the British Crown (the monarchy) did exercise real power in both the UK and throughout the
commonwealth
However – aftermath of English Civil War, Parliament (not the monarchy) became the dominant legal characteristic, to the
extent that the monarchy’s position in the constitutional structure depended on an Act of Parliament
Ministers, not the monarch personally, came to exercise govn power on behalf of the crown
This was a theoretical and practical compromise
Monarchy/Crown would still exist – more as a figurehead – with Ministers exercising real govn power ostensibly on their
behalf as ‘Ministers of the Crown’ (term still used today)
The Ministers of the Executive Government – actually have real power
Eventually, responsible govn supplied the missing (democractic) piece in the governmental puzzle with ministers having to be
elected to, drawn from and so accountable to the parliament and therefore the Australian people
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The Crown – Commonwealth & State
Main concern – understand relationship b/w Crown and the executive (government) power of the state and Commonwealth
governments. Can use crown, government and executive government interchangeably.
Crown is comprised of the following persons and institutions
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Queen of Australia
Governor- General (the Queen’s representative in Australia)
Ministers (Including the Prime Minister) – the more senior group of ministers have come to been known as the Cabinet
Government Departments (also known as the public service. Each minister is personally responsible for one or more
departments eg finance, justice, immigration)
The same structure is reproduced at the State level with the Governors no the Governor-General the Queen’s representative.
THE COMMONWEALTH EXECUTIVE
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Often said the role of GG is mostly ceremonial, the controversy that engulfed Dr Hollingworth in 2003 indicates that the role
and its proper discharge is fundamental to the health of our const
Hollingworth resigned from office of GG after sustained criticism of his inaction when Anglican Archbishop (allogations of
child abuse) in his diocese
Looking at ch II of the Const – see how Crown/ministerial relationships manifests – particularly s 61, 62, 64… refer to GG,
federal executive council and s 64 states ministers ‘shall hold office during the pleasure of the GG’
Literal reading of s 61 and 68 – GG is very powerful person
Commonwealth executive power
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If executive power is the power to conduct the business of government, what then is the scope of this power as it pertains to
the commonwealth? As per s 61 of the constitution
Section 61: ‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the
Queen’s representative, and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth.’
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In simple terms, executive power is the power to conduct the business of government
Key issue: scope of the powers available to the Executive Government pursuant to s 61 – which states that the power of the
commonwealth… ‘extends to the execution…’
What then, is the nature and scope of this power? What are the sorts of decisions, powers, action and activities that the Cth
government can (and cannot) make/undertake?
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Keep in mind – fundamental public law principle… MUST be a source of law (const, common law or statute) for every
action, decision, power and activity of govn
Every decision the govn makes and every power it purports to exercise must be provided by and sourced to law
Previously, the HC was in favour of a restrictive interpretation of the scope of the executive power available under s 61
Originally it was thought the Cth executive power was limited to the following
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Those powers expressly conferred on the GG by the Const that are exercisable by the Cth govn through the principle of
responsible government is ss 2, 5, 64, 68; and
The power regarding subject matters vested in the Executive Govn by valid Cth legislation. These subject matters were
limited to those enumerated in s 51 and 52 of the Const. in this way, the const established a federal limitation on the scope of
Cth executive power exercisable pursuant to s 61
In more recent times, the HC has given s 61 a more expansive interpretation as to the sources – therefore scope of power available to
the cth (executive) government
The HC in Barton v Cth, Victoria v Cth & Hayden (the APP case), Davis v Cth and Pape v Commissioner of Taxation grappled with
the issue of how far the executive power of the Cth, pursuant to s 61 extends.
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The cases involved either the Cth Govn taking action/exercising a power not supported or provided by legislation (APP case)
or the exercise of a power provided by Cth legislation decision but doubt as to what legislative head of power supported the
legislation (Barton, Davis and Pape).
These cases saw the emergence of what has become known as the ‘implied nationhood power’ component of Cth executive
power ie the powers and privileges which are inherent in the Cth being the govn for an entire nation. It is implied from that
part of the text of s 61 that states that the ‘executive power of the cth…extends to the…maintenance of this const’
AAP Case
Issue: legality of an executive policy to set up the Australia Assistance Plan (AAP)
Through the AAP – a nationwide system of regional councils was established for planning and implementing a nationally
coordinated system of social welfare services
• The AAP had no legislative basis, other than an appropriation of nearly $6m from treasury by an Appropriation Act, for
defraying the expenses of the plan
• State of Vic challenged set up of AAP – not within the scope of the executive power of the commonwealth govn to establish
a scheme
Did s 61 of the Cth Const give the Executive Govn the power to establish and implement the AAP? Ie… if the power to
establish the AAP was not provided by legislation on what legal/constitutional basis was it done?
• Hanks stated – executive power of the comm extended beyond these powers which are expressly conferred on the GG by the
const which includes functions, powers and privileges which can be described as inherent in a national govn
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By s 61, the executive power of the Cth was vested in the Crown. It extends to the execution and the maintenance of the Const and of
the laws of the Cth. It enables the Crown to undertake all executive action that is appropriate to the position of the Cth under the const
and to the spheres of responsibility vested in it by the Const. in includes the prerogative powers of the Crown, that is, the powers
accorded to the Crown by the Common law – Barton v Commonwealth (1975)
From this, the HC gave s 61 a significantly broader reading to now include the following:
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The powers expressly conferred on the GG by the Const which are exercised pursuant to responsible govn (ss 64 & 68)
The power vested in it by Cth legislation regarding subject maters listed in s 51 and 52
The power to make decisions sourced to the prerogative powers – ie the common law powers of the Crown (eg power to enter
treaties, declare war, right to priority in debt payment). The prerogative powers stem from the common law so do not need a
legislative basis to be validly exercised.
The ‘implied nationhood power’ – the power to make decisions/take actions in areas that are inherently the domain of a
national government (eg established of body to co-ordinate the bicentennial celebrations (Davis v Cth), national initiatives in
science, literature and arts
Nationhood power
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Nationhood power was central to the HC decision in Pape v Commissioner of Taxation
In 2009 – government passed legislation introducing a tax bonus which provided a one off payment to certain categories of
taxpayers as the govn’s response to the GFC
Legislation was challenged on several bases one of which was that the legislation was not supported by a valid head of power
Majority found the legislation was valid
Chief Justice French and Justices Gummow, Crennan and Bell held that the legislation was valid as an exercise of legislative
power under s 51(xxxix) in conjunction with the implied nationhood component of s 61. As such the court discussed the
scope of executive power and in particular, an implied nationhood power
Chief Justice stated: The executive power of the Cth conferred by s 61 of the Const extends to the power to expend public
moneys for the purpose of avoiding or mitigating the large scale adverse effects of the circumstances affecting the national
economy disclosed on the facts of this case, and which expenditure is on a scale and within a time-frame peculiarly within the
capacity of the national govn’… ‘executive power is not limited to statutory powers and prerogative. It has to be capable of
serving the proper purposes of a national govn. Other hand – exigencies of ‘national govn’ cannot be invoked to set aside the
distribution of powers b/w cth and states and b/w the three branches of govn for which this const provides’
State Executive Power - Victoria
The organisation, powers, membership of state exec govn largely mirrors that of the comm with each state having a governor (not
governor-general) at its apex. In Vic the powers of the Govenor are mostly found in the Vic Const with procedural aspects of the
office contained in the Letters Patent Relating to the Office of Governor of Victoria
If the Queen visits Australia, what powers could she exercise with respect to a state?
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Queen may only exercise her powers when in Australia
Governor can exercise all powers of Queen (s7 Australia Acts)
Queen cannot exercise powers of Governor (implied in AA)
Executive Council
# Formal body that advises GG by reference to the views of Cabinet
# GG in Council = GG acting on advice of Exec Council
‘[T]he Governor in Council… is the body which gives the force of law to, and thus makes effective, decisions of the executive
government, ie the Cabinet and individual Ministers’
FAI Insurances v Winneke (1982)
Executive Council
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Chosen, summoned & sworn in by GG
Appointed & dismissed by GG on advice of PM
GG and Council have really extensive powers – however they don’t – just sounds like they do from the constitution
S64 – all ministers of state (ministers and parliamentary secretaries) must be members
Executive Council Powers
# GG in Council may:
! Make proclamations
! Make regulations / ordinances
! Make / terminate appts
! Creation / abolition of govt depts
! Issue writs for election
! Approve compulsory land acquisitions
! Authorise entry into international treaties
! Commision officers of ADF
! Authorise govt borrowings
! Grant land to Aboriginals
! Authorise issue of Treasury Notes & Cth Inscribed Stock
Executive Council Meetings
# Fortnightly
# Quorum = GG & 2 exec councilors – majority with 2 EC (except where GG absent – 3 minister)
Ministers
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Appointed by GG on advice of PM/Premier
Ministers are referred to in the constitution
From govt members of parlt – but not all members of govn party
In theory, labour party gets majority of seats in lower house of govn forms govn, the PM will select who will become a
minister, however there will be other people elected to parliament who are not ministers (back benches)
Departments & Public servants
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Each Minister responsible for department(s) of state
Ss69, 84, 85 with 70 & 86 provided for transfer of state depts to Cth at federation
S64 allows GG to establish depts
Public servants considered legal persons distinct from Crown, UNLESS
On behalf of Minister
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Responsible government
Principle of Responsible govnt
Other institution’s of govn not specifically mentioned in constitution
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Constitutional convention – Crown always acts on the advice of Ministers unless there are exceptional circumstances
Ministers are appointed from and responsible to Parliament and therefore to the people = Responsible govt
The are accountable through this mechanism of responsible govn – by being in parliament
Is question time a mechanism for keeping the govn accountable? (on ABC parliament question time)
Money for power – interdependence… give power to executive governments and to make sure they act responsibly we make
them accountable to parliament – give money to government
# Party in govn should have control of lower house – if they don’t they should resign, but they don’t need to have control of
upper house
3 Core Principles
1. GG acts only on constitutional advice from ministers that command the confidence of the lower house
A ministry that cannot command the confidence of the lower house must resign so GG can
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Invite opposition to test support in LH
Install caretaker govt while dissolving parlt - election