#7464 - Federation To Popular Sovereignty - Public Law

Federation to Popular Sovereignty

Page 147-152

The Path to Federation:

• The Constitution was approved by Australians in the 1898-1900 referenda. The applied draft was enacted by British Parliament as the Commonwealth of Australia Constitution Act 1900 and came into force January 1901.

Patrick Parkinson, Tradition and Change in Australian law (2005):

• Federation was important to:

  • Create inter-colonial cooperation.

  • Prevent internal political problems like land policy and electoral reform.

  • Prevent customs tariffs at colony borders.

  • For defence purposes against common enemies.

• Federation was disliked because:

  • Victoria, since the 1860s has protection to local industries. NSW used protection as a source of government revenue.

  • Smaller colonies in population feared they would lose their identity to the larger mass and be dominated by NSW>

  • Large colonies were afraid they would have to subsidise struggling economies of Tasmania, SA and WA.

• A Federal Council of Australia was created in 1885 to pass Bills for a few states about exclusion of criminals, extradition, regulate fisheries and enforce judgments over borders. It was the first major inter colonial co-operation.

• Britain had no experience with Federation. The Canadian Constitution gave too much power to the senate, consisting of an equal number of state members and a House of Representatives that reflected the national distribution of the population.

• The problems were preventing protectionist policies, how to structure the lower and upper house- e.g. how would disputes be reconciled?

• There was an 1891 convention but it did not gain popular support.

• Only in 1895 did they decide on a popular vote to debate the Constitution Bill.

• The High Court was decided to be the final court of appeal unless her Majesty was involved.

• It was decided that deadlocks between the upper and lower house should be decided on a majority sitting.

• The Customs Treaties Provision said that three quarters of customs duties would go to the states as revenue but only for the next ten years because NSW did not want it in the constitution.

• The Act was passed by the British government. It did not include a bill of rights.

• S. 80 gives the right to a jury for indictable offences.

• S. 116 gives the right to freedom of religion (not to practice though).

• S.117 gives no discrimination against state residence.

• S.26 gave the states the power to deal with Aboriginals.

• S.127 meant the census did not include Aboriginals (1967 ended).

• Inglis Clark, Attorney General argued that a US style bill of rights should be included.

George Williams, Human Rights under the Australian Constitution (1999):

• They did not think that they needed to guarantee civil liberties because Dicey said that they were protected through political process and the common law. Parliamentary sovereignty gives parliament the right to make any law and no person can override it. In reality they wanted to have racially discriminative legislation that prevented Asians and Africans getting mining licences in WA for example.

Page 241-246

Australian Federalism:

Constitutional Commission, Final Report (1988):

• The presidential system and Bill of Rights of America were rejected. But the following was adopted:

• A central government and state government with their own institutions.

• Distribution of authority between the states and the government.

• Judicial authority appointed by the Federal government which makes sure the government keeps within its legislative powers.

• Supremacy of Federal over state laws.

• A rigid and hard to alter constitution.

• The Commonwealth had to behave fairly to each state and states could not discriminate against people or trade from other states and there had to be equal representation in the senate.

Brian Galligan and Cliff Walsh, Australian federalism yes or no? (1992):

• Federalism is a method of dividing powers so general and regional governments co-ordinate and are independent.

• In the Federalist papers it was argued that Federalism gives people the right to pursue happiness and restricts government from legislating against this. States play a major role and if people do not like their values then they can move to another state (public choice theory). This protects human rights.

James Gillespie, New Federalism:

• It is believed that dividing powers between levels of government guarantees the state won’t become oppressive.

• The Federalist Papers argued that the limits of the Constitution set checks and balances. The necessity of balancing interests through government creates a wealth of political thought that guarantees due process in government. Citizens of a federal state have more remedies to draw upon because of the multiple governments.

• However proponents of this view don not explain what they mean by liberty and see freedom as a lack of external constraint. However the primary catalyst for change has been the High Court’s interpretation of the Constitution and political pressure for the Commonwealth to meet national needs particularly in war time.

Page 153-157

The Colonial Legacy: The Commonwealth:

• The Commonwealth of Australia Constitution Act was a British statute applying to all Australians by force. Australia was not free from English legislation.

• The Colonial Laws Validity Act continued to apply. It was a notion of repugnancy to limit the Commonwealth in its legislative powers.

  • Repugnancy doctrine: Australian colonies cannot apply laws repugnant to British laws. The Colonial Laws Validity Act limited the colonies power.

  • Doctrine of extraterritoriality: Australian law was limited to Australia. Commonwealth stopped this in the 1931 statute of Westminster.

• The Commonwealth did not receive British statue because of the Australian Courts Act 1828. So the Commonwealth was free from the repugnancy act. Commonwealth laws were meant to override the Validity Act to prevent inconsistency.

• Yet the courts still applied the repugnancy doctrine.

Page 153

Commonwealth v kreglinger and Fernau Ltd (skin Wool Case) (1926)- the repugnancy doctrine was upheld.

Facts:

• The Australian Courts Act 1928 stopped the Commonwealth receiving British law. It was argued then that Australia was not limited by the repugnancy doctrine.

• However in this case Isaacs J upheld the repugnancy doctrine.

Legal Issue:

• Is s.39(2) of the Judiciary Act 1903 (Cth) repugnant because it seeks to exclude appeals to the Privy Council from State Supreme courts in constitutional cases?

• In other cases like Commonwealth v Limerick Steamship Co Ltd (1924) it was found that the Australian Constitution overrode the particular Imperial Laws in the Colonial Laws Validity Act that might give rise to repugnancy.

Legal reasoning:

• Isaacs J reasoned that some matters must be dealt with an Empire view in order for responsible government to develop throughout the Empire.

• In the Steamship case the question was dealing with Australian affairs. Here the case involves the rights of the Empire.

• States were also limited by a doctrine of extraterritoriality which prevented Australian laws going out of the country. For example you could not prosecute Australians overseas. Only Britain had sovereignty and its laws had no limits.

The Statute of Westminster (1931):

• The Statute of Westminster 1931 freed Dominions, including the Commonwealth from the imperial restrictions like the Colonial Laws Validity Act and extraterritoriality doctrine (shown in s.2). Britain could still legislate for Australia but only with Parliament’s request.

• It made Australia less colonially dependent.

• Australia only adopted it in the Statute of Westminster Adoption Act 1942.

• The UK has always relied heavily on conventions. They had the power to legislate for the Dominions through Parliament force but did not do it. The Statute of Westminster set up a more tangible guarantee that the Doctrine of Repugnancy would not apply.

The Colonial Legacy: The States:

• Under s.4, the UK could only legislate for Australia with consent. The states were still bound by the doctrines of repugnancy (Colonial Laws Validity Act) and extraterritoriality. Only the Australia Act stopped this incongruity.

Page 157

Croft v Dunphy (1933)- A case about extraterritoriality.

Facts:

• Dorothy Smart was seized by Canadian custom officers carrying a rum cargo from a French island.

• The ship was seized under the Customs Act 1927 because she was trying to avoid customs. She was registered in Nova Scotia.

Legal Issue:

• In a case involving a Canadian vessel, can a dominion extend its jurisdiction or extraterritoriality?

Outcome:

• Lord Macmillian of the Privy Council held that extraterritoriality can be extended. It relaxed the rule throughout the Empire but the Australian courts were reluctant to take the benefit of the relaxation.

Legal reasoning:

• States can legislate effectively for their own territories. For purposes like police, revenue, public health and fisheries, as state may have laws for the seas surrounding its coasts to a distance further that the ordinary limits of its territory.

Page 168-177

The Australia Act

• The Australia Act 1986 was assented on the 4^th December. It came into operation on the 3^rd March.

• It was proclaimed by Elizabeth II.

• It ended Imperial laws in Australia. There was no more extraterritoriality or repugnancy in the states or the commonwealth.

• It severed legal ties with the UK.

Page 168

Sue v Hill (1999) - It is shown that the UK has no legislative significance over Australia since the Australia Acts.

Facts:

• Heather Hill stood for the Senate in Queensland in the 1998 federal election.

• She was...