Introduction Notes

1. Introduction Constitution Classifications Written or unwritten * A written constitution is a document which founds a political community and defines its chief political institutions, confers powers and circumscribes permissible limits. Example include the Constitution of the United States * Whereas UK never adopted a single document so it sometimes said that the constitution of UK is "unwritten". Rigid or flexible (Dicey): * A flexible constitution is one under which every law of every description can legally be changed with ease by one and the same body. * Whereas a rigid constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed like ordinary laws. In order to effect a constitutional change, the legislative body may have to follow a special and more difficult procedure. Australia's Constitution Commonwealth of Australia was formed on 1st January 1901 by the Commonwealth of Australia Constitution Act (Imp) Our system is a hybrid model between: * United Kingdom - representation and responsible government * United State - Federation, separation of powers & judicial review Australian Constitution have both a written and unwritten part * The written document known as "the Australian Constitution" is set out in s9 of the Commonwealth of Australia Constitution Act 1900. It is complemented by the Statute of Westminster 1931 (Imp) and the Australia Act 1986 (Cth) and is supplemented by the common law and unwritten conventions. I. Parliament: 2 houses of Parliament plus the Queen, relationship between them and their powers. II. The Executive: Queen, GG and Minister (plus departments) III. The Judiciary: federal only, but has impacts on the State judiciary IV. Finance and Trade: central to much debate at federation V. The States: fundamental to federation, saving of their powers VI. New states (include territories power): no New States have joined the Commonwealth, but we have many internal and external territories. VII. Miscellaneous (s 125 re seat of government, s 126 GG delegation) VIII. Alteration of the Constitution (s 128) * Each of the Australian States also has a written constitution supplemented by conventions and the common law. Flexible and rigid Constitution * Under the "rigid" Australian Constitution, amendments are initiated by the Commonwealth Parliament but can only be effected by a referendum satisfying the requirements of s 128. * The Constitutions of the Australian States are for the most part flexible. Australian History Pre-1788 Indigenous Australians, their law and customs 1788 -- 1800s * British settlement of the continent, arrival of British law * Establishment of colonies, legal systems within them --> Absolute rule by Governor * Magna Carta was signed by King John in 1812. Was not merely a peace treaty between the king and the barons. It was an important symbol in the limiting of the monarchical power. It has been reaffirmed by each of the monarch since. Formed the principle of the rule of law. 1 1. Introduction * Colonial Laws Validity Act 1865 * It confirmed that colonial legislation (provided it had been passed in the proper manner) was to have full effect within the colony, limited only to the extent that it was not in contradiction with ("repugnant to") any Act of Parliament that contained powers which extended beyond the boundaries of the United Kingdom to include that colony. This had the effect of strengthening the position of colonial legislatures, while at the same time restating their ultimate subordination to the Westminster Parliament. Middle / late 1800s * Federation movement * 1891 -- 1897 attempted at drafting Constitution: main difference -- involvement of 'the people' by referendum 1900 -- 1901 Federation / Constitution: Imperial Statute, not a revolution 1920 -- 1942 * Balfour Declaration leading to Statutes of Westminster (1931, 1942) * The Parliament of Australia passed the Statute of Westminster Adoption Act in 1942. In order to clarify its war powers, this adoption was backdated to 3 September 1939, the beginning of the Second World War. * Under s 2 of the Statute of Westminster, it provided that the Colonial Laws Validity Act, and thus the doctrine of repugnancy, did not apply to the Dominion (including Australia). * Sec 3 removed the restriction that Dominions could not make laws with extraterritorial effect * However, the Statute of Westminster left two impediments to full Australia independence: * Under s 4, the United Kingdom could still legislate for the Commonwealth, albeit at the Commonwealth's "request and consent". * The States were still bound by the doctrine of repugnancy (under the Colonial Laws Validity Act) and extraterritoriality. 1986 * Australian Acts 1986 * Colonial Laws Validity Act has no operation in the States. * Allowed State parliaments to legislate with extraterritorial effect * Removed the power of the UK Parliament * To disallow State legislation * To require that certain classes of State legislation such as constitutional amendments be assented to in the UK * No more appeals to Privy Council. * Confirmed the HC's position as the only "apex" court with power to shape the development of Australian law. * Separation of powers. 1992 -- Mabo (reconsideration of settlement) 1999 Failed republican and preamble referenda Path to Federation (Page 122) The lead up to Federation in Australia was a process that had taken over 60 years of effort and fluctuating public interest. The idea first appeared in 1890s and was heavily promoted by Sir Henry Parkes, the Father of Federation. It was not until the 2 conventions that the constitution was approved by the people via a referendum in 1898 and 1900 respectively. The draft Bill was sent to and enacted by the British Parliament as the Commonwealth of Australia Constitution Act 1900 (IMP) which came into effect 1st January 1901. Reasons for / against Federation 2 1. Introduction Reasons for Federation Reasons against Federation * Economic benefits: Removed tariff barriers between States, but the new issue was a federated Commonwealth would need to determine whether its tariff policy with regard to imports from overseas would be protectionist or free trade. * National defence: fear of a common enemy from the expansion of German interest in the South Pacific and activities of the French. * Nationalism: the proportion of Australian born was increasing. * Different trade policy:Victoria had protectionist policy whereas NSW supported free trade. * Size: Small colonies may lose their identities and be dominated by larger colonies such as NSW. * Economic cost:There was a chance that larger colonies could be required to subsidise the struggling economies of Tasmania and South Australia, and, if it joined,Western Australia. * Experience:The experience of other federation in the second half of the 19th century was less than inspiring, for example, the US had experienced a traumatic civil war. * Others: Disputes over land policy and electoral reforms. Once the colonies agreed on Federation, problem arose as to how to structure the federation within the Westminster system of government ( Parkinson p123) Since Britain did not have a Federal System, Australia looked to other examples such as America, Canada and Switzerland. Canadian model though to have a too powerful central government The American model was deemed favourable because * it protected the States' rights. Some powers were left in Federal's hands but most powers were within State jurisdiction. This was essentially the separation of powers. * Also provided that the "senate should consist of equal number of members from each state while the House of representative should reflect the national distribution of population" * Created a federal judiciary to decide whether the government had exceeded its ambit of power * Supremacy of federal laws over state laws in the event of inconsistency: s109 * Entrenchment s128. Other debated issues during the path to federation Whether appeals from HC should go to Privy Council (decided that HC should be the final court of appeal in matters of constitutional interpretation unless the public interest of another part of Her Majesty's Dominions were involved). Custom duties (decided that 3/4 would be paid to state for the first 10 years of federation) Deadlock provision (agreed that following double dissolution of both Houses, only an overall majority --3/5 -- in a joint sitting of the Houses was required to resolve the deadlock) The Act was finally passed in 1900 Assent by Queen was required because only an Act of the Imperial Parliament could provide legal basis for the federation of colonies Although Australia largely adopted the US model it did not include a Bill of Rights. Parliamentary Sovereignty Dicey, Introduction to the Study of the Law of the Constitution, page 83 What is parliamentary sovereignty? "Parliament has the right to make and unmake any laws" * No one including the courts has the right to override legislation made by parliament (but it can be struck down by judicial review if it is inconsistent with the constitution). * Everyone including the court must obey the laws of Parliament The role of "the people" is limited to voting at elections so there is no legal or effective means of challenging the government (e.g When Howard had majority in both upper and lower houses he pushed through with work choices 05-06. Despite its lack of popularity people had no effective legal means to challenge it before election). * Electors are the political sovereigns * Parliament is the legal sovereign (powers of law making unrestricted by legal limits). Judges develop a body of common law * Not inconsistent with parliamentary sovereignty * Parliament can override common law with statute 3

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