#7316 - Fundamentals Of Australian Constitutional Law - Federal Constitutional Law

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, undue or reasonable

• Section 103 provide that rates for railway are not unlawful

• Section 105 about the Commonwealth to take over debts of the states as long as the state indemnifies

• Section 105A allows the Commonwealth to make certain agreements with regards to state debts

Chapter V – The States

• Sections 106-108 discussing the Saving of State Constitutions, Parliaments and Laws which continue unless altered by this constitution

• Section 109 – Provides that Commonwealth laws prevail if inconsistent with Commonwealth laws

• Section 110 – Extends the power given to a governor of a state to the governor of a state presently

• Section 111 allows states to surrender territories to the Commonwealth

• Section 112 allows states to levy charges for inspection of goods but the proceeds go to the CTH

• Section 113 makes the use, consumption, sale or storage of intoxicating liquids subject to state laws

• Section 114 restricts states from raising forces without consent and prevents taxing CTH/State property by the other

• Section 115 – States can’t coin money or make anything but gold and silver coin a legal tender to pay debts

• Section 116 – CTH can’t make laws establishing religion or prohibiting the free exercise of religion

• Section 117 – Subjects of the Queen not to be subject to any disability/discrimination that he would be subject to in any other state**

• Section 118 – Commonwealth gives credit to the laws and judicial proceedings of every state

• Section 119 – Commonwealth pledges to protect every state against violence and domestic violence

• Section 120 – States to make provision for detention of offenders convicted of offences against the CTH

Chapter VI – New States

• Section 121 – Allows new states to be admitted to the CTH by Parliament

• Section 122 – Parliament can make laws for any territory surrendered by any State

• Section 123 – Parliament of the CTH with the acceptance of State Parliaments can alter boundaries of states

• Section 124 – New States can be formed by separation of a territory from a State but only with the consent of the Parliament and the Parliament of the States

Chapter VII - Miscellaneous

• Section 125 – Seat of government to be determined by Parliament

• Section 127 – Queen can authorize the GG to appoint deputies to exercise his functions as he thinks fit

Chapter VIII – Alteration of the Constitution

• Section 128 – Alteration must be done by:

  • A majority in each house of parliament

  • Not less than two nor more than six months after its passage it has to be submitted in each state or territory for a vote of the electors

• Stare decisis implies courts follow their own decisions – but for apex courts it entails no logical conclusion as to whether it should be bound by its own decisions.

• Generally courts are not so bound but in England the House of Lords suggested as such (Beamish, London Tramways) – eventually dealing with this paradox by circumventing it as a matter of ‘practice’ to follow itself rather than precedent (“Practice Statement” [1966] 1 WLR 1234)

  • This was also sometimes attributed to the idea that the HOL was an upper chamber of the Westminster Parliament – giving its decisions a sort of legislative status

  • The Privy Council, having a similar composition to the HOL, never followed this approach