Fundamentals of Australian Constitutional Law

The Constitution

Commonwealth of Australia Constitution Act

Sections 1-9 deal with introductory matters (the short title, definitions, how the constitution binds everyone in a state)

Chapter I – The Parliament

Part I - General

Section 1 – Legislative power is vested in a Federal Parliament consisting of Queen, Senate and HOR called ‘The Parliament’
Section 2-5 deal with the Governor general (appointed by the Queen, paid from the CRC, , can appoint times for holding parliament
Section 6 provides that there must be a yearly session of Parliament

Part II – The Senate

Section 7 – composition of senators is chosen by the people of the State (some exceptions for QLD); there are six senators per state until otherwise provided, each chosen for 6 years
Section 8-10 – Qualification of electors and method of election of senators determined by the State
Section 11 – Failure to choose does not stop the senate from conducting business
Section 12 – Governors can issue writs for elections of Senates
Section 13-15 deal with rotations of senators and casual vacancies
Section 16 – Qualification of Senators same as for members of HOR
Section 17-18 – President of senate must be elected, he must be a senator at all times
Section 19 – A senator can resign by writing to the GG or President
Section 20-21 – Any vacancies have to be notified, two consecutive vacancies and the senator’s position is vacated
Section 22 (Quorum) – One-third of all senators required for the Senate to exercise its powers
Section 23 – Questions arising in the Senate are determined by a majority

Part III – The House of Representatives

Sections 24-29 deal with the composition of the HOR, the presence of each state and electoral divisions
Section 30 - Qualification of electors determined by state
Section 31 – Laws of the state for elections apply to elections in the state of HOR members
Section 32 – GG can issue writs for general elections of HOR members
Section 33 – if there is a HOR vacancy the speaker can issue a writ for a new member, or the GG if there is no speaker
Section 34 – qualification - 21 years old, entitled to vote (or to become qualified), a natural-born subject of the Queen or naturalized for five years
Section 35-36 – The Speaker must be chosen before the dispatch of business. The speak must always be a member. If vacant a member can be chosen by the HOR to perform his duties
Section 37 – A member can resign by writing to the GG or Speaker
Section 38 – If a member of the HOR is absent for 2 months their place becomes vacant
Section 39 (Quorum) – One-third present before dispatch of business
Section 40 – Questions arising in the HOR are determined by majority

Part IV – Both Houses of the Parliament

Section 41-50 deals with various powers (rights of electors – can’t be barred if entitled, oath of allegiance, can only be a member of one house, disqualification for allegiance to a foreign power or treason or bankruptcy or holding an office of profit etc.)

Part V Powers of Parliament

Section 51 enumerates the many heads of power the Federal Parliament can legislate under
Section 52 gives the FP exclusive power to make laws for the POGG wrt:
- The seat of government of the CTH and all places acquired by it
- Matters relating to any department of the public service
Section 53-56 deals with various powers in relation to legislation appropriation and tax
Section 57 allows for the dissolution when a bill fails to pass or is passed with amendments two times. It also gives the power to the governor general to call a joint sitting if this occurs after dissolution
Section 58-60 deals with ascent and disallowance by the Gov. Gen.

Chapter III – the Judicature

Section 71 appoints the High Court as the supreme federal court
Section 72 deals with judicial appointment backspace, tenure and remuneration
Section 73 gives the high court jurisdiction over all judgments of any judges exercising the original jurisdiction of the High Court, or any other federal court or Supreme Court of any state, all of the interstate commission as to questions of law
Section 74 is the High Court the power to certify questions to be determined by her Majesty in Council
Section 75 deals with the original jurisdiction of the High Court in matters
- Arising under any treaty
- Affecting consuls or representatives of other countries
- In which someone is being sued or suing on behalf of the Commonwealth
- Between states
- In which mandamus prohibition or injunction is sought
Section 76 gives the power to the Parliament to confer on the high court jurisdiction over matters arising under the Constitution, laws made by the Parliament, admiralty, relating to matters claimed under the laws of different states
Section 76 further gives the Parliament's power to define jurisdiction
Section 78 gives Parliament power to make laws for proceedings against the Commonwealth or state
Section 79 allows federal jurisdiction of any court to be exercised by a number of judges prescribed by Parliament
Section 80 gives a right to jury trial on indictment of any offense

Chapter IV - Finance and Trade

Section 81-83 establishes the consolidated revenue fund and provide it may only be used in accordance with law
Section 84-85 deals with the transfer of offices and property when departments are of a state become transferred to the Commonwealth
Section 86-S. 90 deals with customs excess and bounties
Section 92 provides that trade it would be in the Commonwealth is to be free
Section 93-97 further deals with financial matters
Section 98 expands the scope of trade and commerce
Section 99 provides that the Commonwealth cannot give preference to certain states
Section 100 prohibits the Commonwealth from regulating reasonable use of waters by the state
Section 101 establishes the Interstate Commission
Section 102 provides that the Parliament can make any law with respect to trade or commerce to forbid preferences by state if they are unjust,...

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