TOPIC 1 Australian Constitutionalism

Transcription

1 TOPIC 1 Australian Cnstitutinalism 1. HISTORY a) Clnial Perid 1778 first fleet arrive in Aus and UK establish clny f NSW - Australian cnstitutinal histry begins, Australia was terra nullius (legally empty) nw recgnised as legal fictin; Mab (recgnised re; prperty law). Because f this Australia was cnsidered as being settled rather than cnquered this resulted in the English legal system and cnstitutin being applied here. All suitable English statute and cmmn law applied, including parliamentary svereignty Australian Curts Act Official date f receptin f English law (t the extent that they were relevant and useful t Australian cnditins) re eastern clnies including Victria, even thugh ne must nte that Victria nt established until 1851! - WA= 1829, SA= 1836, ACT & NT= Due t this receptin f English law we gt the Bill f Rights (1688) & Act f Settlement (1701) imprtant in terms f develpment f Australian cnstitutinalism; as it acted as a cnfirmatin f the pwer f Imp Parliament (UK parli) t enact legislatin which wuld have legal effect in Australian clnies. Frm penal settlement and military autcracy t respnsible gvernment; - NSW Act 1823 (Imp) re Legislative Cuncil respnsible gvernment mdelled n Westminster system (U.K) with bicameral legislature; Australian Cnstitutins Act (N. 2) 1850 (Imp)- prvided fr the establishment f the Victrian legislative cuncil - Allwed fr the electin f the first Vic parli & separatin frm NSW as a separate clny (ccurred in 1851) - The act allwed (empwered) the Victrian legislative cuncil (elected peple) t draft a new Victrian cnstitutin - They negtiated with UK authrities, wh then enacted the Cnstitutin Act 1855 Interesting feature even thugh this was an act f UK parli, it gave Vic parli the pwer t amend/alter the cnstitutin (which was dne extensively leading up t 1975) S up until 1975 (when the Cnstitutin Act was enacted as a Victrian Act), Vic had a cmbinatin f Imperial Act and a number f amendments What laws culd clnial gvernments pass? - Clnial parliaments exercised plenary legislative pwer (ie were sverign ) meaning that they had brad pwers t enact laws fr the peace, rder and gd gvernment fr each f the respective clnies. This hwever des nt mean they can nly pass law n the abve 3 things (peace, rder, gd gv) R v Burah (1978); plenary pwers f legislatin, as large, and f the same nature, as thse f the Imperial Parliament itself ie, nt limited by the abve statement. - Hwever, this ability t pass laws n essentially whatever they want is subject t three fetters ie, THREE CONSTRAINTS: 1. REPUGNACY laws which were incnsistent with English statute laws

2 The Clnial Laws Validity Act 1865 (Imp), was passed in respnse t judge (Benjamin Bthby) invalidating many clnial laws n the grund that they ffended fundamental principles f English laws s 2 - vid if repugnant t Imperial legislatin that extended t clny; IE it narrwed the cncept f repugnancy AND limited it t British statutes which has been expressly extended t apply t clnies (EG f this is mercantile shipping) s 3 - cnfirmed that Clnial legislatures DID have pwer t amend, repeal, alter and vary British Law (unless repugnancy see s 2) This allwed the dminin parliaments t enact legislatin that was incnsistent with British law, hwever England retained cntrl as they culd enact a statute applying t the clnies and it wuld take precedence. 2. TERRITORIALITY As nted abve; Under Australian Cnstitutin Act (1850) was the phrase clnial legislatures had pwer t legislate fr peace, rder and gd gvernance f the clny IE wuld nly apply t VIC & NSW DID NOT mean that they culd nly pass laws fr gd gv, peace & rder and is basically meaningless parliament can legislate n whatever they want. This is cntrary t the psitin f the Imperial parliament (UK) EG f view is that UK parli culd enact law banning smking in Paris, which wuld be a valid UK law, but French culd ignre it (as n cnnectin t their clny), but this des nt make it invalid. 3. RESERVATION & DISALLOWANCE BY ENGLISH MONARCH Sme laws had t been reserved fr the assent f the British Mnarch. IE Vic parliament culd add amendments t Clnial Laws Validity Act (1865). But these changes had t be shwn t the British Mnarch, even after ging thrugh bth huses and being assented t by the Gvernr. The idea f this was t keep sme srt f eye n key changes s that the Victrians (fr example) didn t g nuts This was rarely exercised b) Twards Federalism i. Reasns DEFENCE Primary cnsideratin fr British (6 clnial gvernments had n chance f defending big cntinent, need fr natinal gv t crdinate defence) ECONOMICS Need fr natinal gv t crdinate natinal currency, system f weights & measures, infrastructure Tariffs & free trade Prtectinism OR free trade? Needed a natinal gv t impse sme frm f natinal barrier (big r small) Peple invlved in drafting the cnstitutin f Australia were largely burgeisie and they wanted free trade (e.g. s 92 trade cmmerce and intercurse between states shall be abslutely free ) RISE OF AUSTRALIAN NATIONALISM Psitive side: culture, identity Negative side: racism was significant frce in Australian federatin Universal beliefs in White Australia, fear f Asia, Deakin spke f selfpreservatin f the white race, Immigratin Restrictin Act was ne f the first acts passed by the new gvernment..

3 ii. Drafting f the cnstitutin - Funding fathers / Imprtant figures in Federatin: Alfred Deakin; Henry Parkes; Ed Bartn*; Samuel Griffiths*; Isaac Isaacs (* = cnstitutinal drafters) - Nt invlved in drafting; Wrking class / labr mvement Indigenus peple (s 128) Wmen iii. Cnstitutinal Cnventins - Like mini-parliaments, peple elected frm clnies t attend these and help draft and debated Sydney 1891 Adelaide 1897 Sydney 1897 Melburne Final draft f this cnventin put t electrs in varius clnies if Imperial parliament enacted Cmmnwealth f Australia Cnstitutin Act 1900 (Imp) n 9 th July cvering clauses 1: Preamble t cnst = preamble t UK act (NO preamble t Cnsti) 9 sectins f the British act which happen t cntain ur Australian cnstitutin Ie What we refer t as the Cnst is NOT an act f the Cth parliament, it is included in an act f the Imperial parliament iv. Appraising the 1900 cnstitutin - The 1900s Australian cnstitutin was; Highly pragmatic: it lacks the vert symblism (fund eg in USA, China), nt designed t evke natinal sentiments, very nuts and blts dcument Virtually rights-free: nly 5 express rights / 2 implied rights (frm HCA cases), nearly every ther cnstitutin cntains rights (eg human, individual, demcratic etc), reasn fr this was the drafters were mstly British and suspicius f the US apprach t cementing rights Frm the era: utilitarianism (greatest gd fr greatest number) ppular in late 1800s (c/f late 1700s where liberalist rights ntins were mre ppular this sentiment returned in the 1900s, especially pst WWII) = Beware f the cntext and the text f the Cnstitutin there s enrmus scpe fr interpretatin t determine cntext. The HCA is the sle interpreter (hence wields enrmus pwer) 2. POST FEDERATION SOVEREIGNTY & INDEPENDENCE? Where des the Cnstitutin get its legal frce? - This has changed ver time Orthdx 1900s view: - Cnsti was valid because the British parliament culd pass laws fr Australia, and it created legislatin with the Cnstitutin in it Nw: - Cnsti s legal frce cmes frm the fact that it is an rganic ie a fundamental law f Australia, it has frce because it expresses the svereign will f the Australian peple. - Legal frce because imperial legislatin;

4 What has changed and hw and what have been the milestnes in this prcess? GRADUAL PROCESS a) Imperial Cnference f 1926 cnvened by McKenzie King + Balfur Declaratin - Varius dminin PMs discussed with Britain hw t gvern. - The 1926 cnference was cnvened by Canada wh had cntrversially ablished Privy Cuncil appeals. - The Balfur Declaratin resulted which stated the dminin parliaments were NOT subrdinate, each was autnmus and c-equal. - The 1926 cnference led t the Statute f Westminster b) Statute f Westminster 1931 (U.K.) which the British parliament passed, which was intended t give effect the imperial cnference in THIS ALL RELATES TO LEGISLATIVE POWER OF CTH PARLIAMENT NOTHING TO SAY ABOUT STATES (s 1 dminins ) - Said that the clnial laws validity act was n lnger t apply t the dminins legislatures; s2 meaning that frm that pint n (based n this the dminin peeps were free t enact laws which were incnsistent with laws that acted with paramunt frce in the dminin legislatures) s3 cnfirmed that dminin peeps had full legislative pwer s4 brit parli said that they wuld n lnger enact laws that apply in the dminins (Aust, NZ, Canada = DOESN T APPLY TO STATES) unless the dminin parliament asks fr them t d s s 10 stated Westminster was nt t have effect in Australia/NZ until adpted by Aust/NZ parliaments c) Adptin by Australia in 1941 (Statute f Westminster Adptin Act 1941) When did Australia get its full legal independence frm the UK? = 3 March 1986 a) Australia Acts - Westminster was nly ever t d with the Cth until 1986 the states were still bund by the Clnial Laws Validity Act (ie, they culd nt enact legislatin which was incnsistent with UK) - Labr gvernment elected in 1983 = enacted Australia Act 1985/86 (step 1) Australia Acts (Request) Act 1985 (Vic) All states enacted identical legislatin t request the Cth enact legislatin t free frm frm the CLVA (states needs t ask because the Cth is restricted as t what areas it can legislatin n, hence s51(xxxviii) t allw states t hand ver pwer t Cth) (step 2) enacted Australia Act 1986 (Cth) (s 51(xxxviii)) As requested by the states (step 3) Australia (Request and Cnsent) Act 1985 (Cth); T ensure the acts validity, Cth requested the UK legislate an identical Aust act t achieve exactly the same result as was intended under the Cth act (step 4) Australia Act 1986 (U.K.) cmmenced 3/3/86. This date is the critical date at which AUSTRALIA ACHIEVED FULL LEGAL INDEPDENCE FROM UK Issue f Queenie being ur head f state. She s nly a symblic head, there is n real exercise f pwer via her. Will nt be cmplete until this final symblic link is remved? b) Australia Acts 1986 (Cth & U.K.), WHAT DOES IT DO?

5 - s 1 terminates right f U.K. Parliament t legislate fr States r Cmmnwealth (replaces Statute f Westminster 1931, s 4) extended it t apply t states!; - s 3 re inapplicability f Clnial Laws Validity Act 1865 t any subsequent legislatin f State (cf Statute f Westminster 1931, s states can enact laws which are incnsistent with imperial legislatin which perates by way f paramunt frce - s 2 allwed states t enact extra territrial legislatin - ss 8 and 9 re disallwance and repugnancy; - s 15 entrenched the Aust Acts, which can nw nly be mdified if all states request the Cmmnwealth amend it OR thrugh s 128 referendum Randm Questin Can the UK Parliament amend the Federal Cnstitutin? - British perspective (ignre Australia). Yes is cntained entirely in a British Act & therefre the British Parl can amend r repeal it. Aus Acts 1986 British said it wuld never legislate n Australian matters Hwever, they can ignre their wn restrictins, s thus culd amend - Reactin in Aus Wuld ignre it, legal ratinale fr this? Nt cmplied with s view Cnst has legal frce because it was enacted by British parliament 2009 view frce is in Australian peple. Whatever British d is irrelevant 3. FUNDAMENTAL THEMES OF AUSTRALIAN CONSTITUTIONALISM a) Parliamentary Svereignty/Supremacy (UK) & Judicial Review (UK/US) Svereignty - British parliament = abslutely svereignty Can pass any law they like (UK), n curt can invalidate laws (UK) Supremacy - Aus n parliament is/ever has been abslutely svereign Legislative pwers f parliament subject t terms f cnsti cnstrained by text & interpretatin f cnst by HC (incl state gvernments) HC has pwer f judicial review (US) laws can be invalided because they re uncnstitutinal SAMPLE TEMPLATE S 117 FREEDOM FROM INTERSTATE DISCRIMINATION 1. Is he entitled t the prtectin f s 117? 2. Identify the disability f discriminatin a. Is the persn affected by the law treated DIFFERENTLY frm a resident f the legislating state? b. Direct r indirect?; indirect is better; Stephens (dissent) in Henry v Behm c. Hypthetical cmparisn if the persn were a resident f that state, wuld the disability f discriminatin disappear r becmes s minimal as t virtually have n affect? i. If s prima facie breach

6 ii. If everyne suffers this discriminatin then it des nt breach s 177, it is just a discriminatry law; Street v Queensland Bar Assciatin (1989) verruled majrity view in Henry v Behm 3. Is the disability r discriminatin justified? NB; Strng prtectin BUT nt abslute a. Is the discriminatry legislatin in relatin t s a right that is naturally and exclusively assciated with residence in a state? i. Can the right itself be limited by way f necessary implicatin? - Eg due t federal system, states are able t enact sme s 117 discrim laws such as the vic cnsti preventing anyne ther than Victrians frm vting in state electin - Permissible because right t vte fr state electin is a right naturally and exclusively assciated with residence in that state

7 STEPS TO FEDERAL CHARACTERISATION 1. Identify all the subject matters r purpses f the statute. Cnsider the substance f the law a. What is the actual legal peratin f the law? What rights, bligatins and duties des it create, vary r destry? (mst imprtant fr DIRECT CHARACTERISATION); Leask v Cth, Bank f NSW v Cth b. What is the practical peratin f the law? What are its cnsequences r effects? (imprtant fr INCIDENTAL CHARACTERIZATION, where prprtinality is an issue) 2. Is there a sufficient cnnectin between the subject matter / purpse f the statute and a s 51 head f pwer? - NOTE! There can be a cmbinatin f heads f pwer authrizing the law; Thmas v Mwbray a. YES? b. Des it fall under the Cre r Incidental range f the law? (REMEMBER, lk at each sectin f the Act separately t see if it is within the Cre r incidental range) i. CORE range? = the purpse f the law is irrelevant; Murphyres, Al Kateb (except defence, which is a purpsive HP- Stenhuse v Cleman) ii. INCIDENTAL range?; Davis 1. PURPOSE! Is the statute reasnably apprpriate and adapted t give effect t the cre subject matter f the head f pwer? = is it necessary? Are there less extreme ways it culd be dne?; Narlunga Meat (Remember the judicial deference thugh!)