PART I THEMES AND INSTITUTIONS

Transcription

1 PART I THEMES AND INSTITUTIONS I Intrductin and Framewrk 1 A Histrical Cntext The British Parliament culd make law binding upn the Australian Cmmnwealth until States cntinued t be bund by British law until Sme English legislatin may still apply in Australia. B Levels f Gvernment Australia is a federalist cuntry; there are tw primary levels f gvernment, the Cmmnwealth (with ne federal Parliament), and the states/territries (each with separate Parliaments). Municipal authrities frm a less imprtant, third tier f gvernment. 1 Pwer divisin Legislative pwers are divided between the Cmmnwealth and states/territries, asset ut in the Cnstitutin. There are three types f federal pwer: Exclusive jurisdictin matters made the exclusive prvince f the Cmmnwealth parliament; Cncurrent pwers matters able t be dealt with by bth Cmmnwealth and state/territry Parliaments; and Residual pwers - matters left unspecified in the Cnstitutin; the exclusive prvince f the states/territries. In practice, the Cmmnwealth may influence areas utside its cnstitutinal jurisdictin by impsing cnditins n the way mney granted t the states/territries is spent. Because many federalist issues arise in the cntext f finance and trade, they might be thught t be reslved in the Cmmnwealth s favur by reference t s 51(i) (the relevant head f pwer). Hwever, even where the spending f mney is invlved, an exercise f pwer may still fall utside the scpe f ss Internal cnflict f laws Where a law enacted by a state r territry cnflicts with ne enacted by the Cmmnwealth, the latter will prevail t the extent f the incnsistency. Fr example, the State cnstitutins ften purprt t be able t legislate in all cases whatsever ; 4 clearly, this expansive pwer is limited by the federal Cnstitutin. 1 Rsemary Hunter, 'Institutins, Institutinal Structure and Surces f Law' (2001). 2 See Statute f Westminster Adptin Act 1942 (Cth). 3 See Australia Act 1986 (Cth) s 3. 4 Victrian Cnstitutin s 16. Page 1 f 50

2 C Cnstitutins 1 States Each state has its wn Cnstitutin. They were riginally acts f the British Parliament, but are nw Acts f the Australian states. By s 107 f the Cmmnwealth Cnstitutin, the states cnstitutins were expressed as remaining in frce thrugh federatin. 2 Cmmnwealth The Cmmnwealth Cnstitutin is still cntained in an Act f the British Parliament. 3 Mdificatin State cnstitutins can be altered by their enacting Parliament. Mdifying the Cmmnwealth Cnstitutin is a mre invlved prcedure; it cnsists f the fllwing stages: Enactment the prpsed amendment must be passed by federal Parliament; and Referendum the prpsed amendment is put t ppular vte; t be accepted, it must be assented t by a majrity f vters in a majrity f states. Many referenda have failed since federatin. The Cnstitutin is designed t be resistant t change; this is because the rules f gvernment it creates are fundatinal (ie, universal and atempral, and thus stable). 4 Purpse A cnstitutin primarily establishes and sets limits n the exercise f svereign pwer; hwever, it als serves varius related functins: Cdificatin a cnstitutin lays dwn fundatinal principles f a gvernment and its cnstituting sciety; Arms f gvernment a cnstitutin defines and creates the arms f its gvernment (and is supplemented by unwritten cnventins); Federal structure a cnstitutin distributes pwer between federal and state levels f gvernment; Curt hierarchy a cnstitutin defines the jurisdictin f the highest curt and establishes its appeal prcess and judicial tenure (lwer curts are legislated); D Parliaments With the exceptins f Queensland and the territries, all Parliaments in Australia are cmpsed f three bdies tw f practical significance, ne symblic: The Queen represented by the Gvernr General at Cmmnwealth level and by State Gvernrs in the states; Upper Huse at Cmmnwealth level, the Senate; in Victria, the Legislative Cuncil; Page 2 f 50

3 Lwer Huse at Cmmnwealth level, the Huse f Representatives; in Victria, the Legislative Assembly. 1 A bicameral system This is a bicameral (tw chamber) system f Parliament. It is mdelled n the Westminster (British) Parliament; its Upper Huse is called the Huse f Lrds (unelected aristcrats) and its Lwer Huse the Huse f Cmmns. By cntrast, in all Australian Parliaments, members f bth Upper and Lwer Huses are elected. Nevertheless, Australia s Lwer Huses f Parliament are still cnceived f as the peple's huse (ie, mst representative). This has been used t justify additinal pwers ver the Upper Huses: The gverning party is determined by the hlder f the majrity f Lwer Huse seats nly; Prpsals fr legislating gvernment expenditures can nly be initiated in a Lwer Huse (and amendment by the Upper Huse is generally nt pssible). 2 Queensland and the territries Queensland and the Territries have unicameral parliaments; ie, nly Lwer Huses. Fr example, Queensland s Upper Huse was ablished in Functins Frmulating and passing legislatin; Analysing statutry rules and regulatins; Receiving petitins frm members f the public; and Cntrlling Ministers (via questin time) 4 Parliamentary cmmittees Parliamentary cmmittees are cmprised by members f the Upper Huse (as in the case f a Senate Cmmittee), Lwer Huse (as in the case f a Huse f Representatives Cmmittee), r bth huses (as in Jint Cmmittees). They prvide versight fr gvernment actin. Mst cmmittees exist indefinitely. Others are created extempre fr the purpse f inquiring int a particular matter (eg, deaths in custdy). It is cmmn fr cmmittee findings t frm the basis fr new legislatin (eg, Victria s ablitin f prvcatin). 5 The legislative prcess Bill Intrduced t parliament accmpanied by an explanatry memrandum by the Minister wh has respnsibility fr its subject matter Occasinally, a Bill may be intrduced by a backbencher r ppsitin member ( a private member Bill ); such Bills rarely succeed First Reading Page 3 f 50

4 A mere intrductry frmality Secnd Reading The substance f the Bill is debated May be referred t a Cmmittee fr examinatin A Cmmittee f the whle Huse is then frmed t cnsider the Bill in detail At this stage, the Oppsitin might suggest amendments t the Bill Third Reading Of the Bill in its final state; anther frmality Assent by the ther Huse Where a secnd Huse exists, the same prcess f intrductin, first, secnd and third readings ccurs If the ther Huse passes the Bill, it will be sent t the Queen's representative fr assent If the ther Huse makes amendments, the Bill returns t its instigating Huse fr apprval If the Huses becme deadlcked (such that neither is willing t accept the ther s psitin as where, eg, ne party hlds a majrity in the ne Huse and a minrity in the ther), a cmprmise will usually be reached and the Bill passed in mdified frm Ryal Assent The Queen's representative (Gvernr General, Gvernr, r Administratr in the Nrthern Territry) must apprve the Bill befre it is enacted This is als little mre than a frmality; Bills are always apprved Enactment The Bill is nw an Act f Parliament, thugh it may nt cme int frce immediately All these prceedings are recrded in Hansard, which ften prve useful when interpreting, applying, and critiquing the resulting legislatin. 6 Other surces f Australian law Other surces f Australian law include: Cnstitutins rules arising ut f the Cmmnwealth and state Cnstitutins; Delegated legislatin law made by delegates f Parliament Case law binding n lwer curts and persuasive t Curts in ther hierarchies Cnstitutinal cnventins histrical develpments made binding by custm [Abriginal custmary law arguably a pluralist legal system f its wn] E The Executive The executive is the bdy that makes plicy decisins abut the running f the cuntry, state r territry. It implements these decisins via subrdinate agencies, and hlds effective pwer. Accrding t the Cnstitutin, the Queen's representatives pssess sle executive pwer. Hwever, cnventin dictates that executive pwer is exercised by the current gvernment; Page 4 f 50

5 effectively, the Gvernr General r relevant Gvernr will nly act n the advice f gvernment Ministers. The executive is als cmpsed f the fllwing figures: Prime Minister, Premier r Chief Minister; Cabinet (the Prime Minister r Premier plus an inner circle f the mst pwerful Ministers); Other Ministers wh have been chsen frm the plitical party in gvernment; and Executive Cuncil (the Queen's representative, Prime Minister r Premier, plus a handful f Ministers). Functins f the Executive branch include: Plicy-making; Administratin; and Making and amending delegated legislatin (a class f statutry regulatins ver which the executive has peratinal cntrl). F Administratin and Bureaucracy Gvernment administratin implements legislatin and gvernment prgrammes. It is gruped int a number f public services, each f which is rganised int departments directed by a respnsible Minister (wh is answerable t Parliament fr their department, which als submit annual reprts n prgress). Service departments are als respnsible fr devising new plicies, which are smetimes the basis fr legislative prpsals. Department heads may als be authrised by an Act f Parliament t make delegated r legislatin and exercise discretin in the administratin f an Act. They can als decide disputes arising ut f an Act under their cntrl. Hwever, such administrative decisins d nt carry with them a dctrine f stare decesis (they are nt binding precedent). G Judicial System 1 Functin Curts reslve disputes between parties, usually in an adversarial fashin. Parties may be private citizens, crpratins, statutry bdies, r even gvernments. Curts exercise judicial pwer. 2 Characteristics Curts are reactive in that they will nly adjudicate a given dispute between parties when called upn t d s. A strict separatin f pwers is bserved between the judiciary and ther arms f gvernment. Judges have security f tenure t prevent interference frm Parliament r the executive. Page 5 f 50

6 3 The Australian curt hierarchy In additin t standard curts f first instance and appeal, several specialised tribunals exist t hear disputes f particular kinds (eg, urban planning). They made and are bund t fllw precedent. Supreme Curts f the states and territries have unlimited riginal civil and criminal jurisdictin in all matters invlving the cmmn law r arising under state r territry legislatin. The Federal Curt f Australia, which was created in 1976, deals primarily with matters arising under Cmmnwealth legislatin. In its riginal jurisdictin, cases are heard by a single judge. In its appellate jurisdictin (frm a single judge f the Federal Curt r single judge f a State Supreme Curt in a federal matter), cases are heard by a Full Curt cmprising three judges. The Family Curt f Australia has exclusive jurisdictin ver matters arising under the Family Law Act 1975 (Cth). The High Curt f Australia is the ultimate curt f appeal. In its riginal jurisdictin, it deals with cnstitutinal law matters (including determining the cnstitutinal validity f Cmmnwealth legislatin) and disputes between state gvernments. 4 Histrical nullities The British Judicial Cmmittee f the Privy Cuncil (nce the Star Chamber) was previusly available as a further curt f appeal frm all ultimate curts f the clnies f the British Empire. It existed in an attempt t harmnise law amng the British Cmmnwealth and with England. Thugh Privy Cuncillrs usually were r had been English judges, it was nt part f the English curt hierarchy. The rle f the Privy Cuncil in deciding Australian disputes was successively diminished during the 20 th century: Appeals frm the High Curt t the Privy Cuncil in cnstitutinal and ther federal cases were ablished in 1968; In 1975, all remaining appeals frm the High Curt t the Privy Cuncil were ablished; Finally, in 1986, appeals frm State Supreme Curts t the Privy Cuncil were als ablished. Page 6 f 50

7 I Fundamental Cncepts 5 A Cnstitutin A cnstitutin is a set f legal rules describing hw gvernment is structured and perated. Wheare: The cllectin f legal and nn-legal rules which gvern the gvernrs Jennings: The dcument in which are set ut the rules gverning cmpsitin, pwers and methds f peratin f the main institutins f gvernment Cnstitutins may be written r unwritten. Written cnstitutins are reducible t a single, selfcntained dcument, whereas unwritten cnstitutins may be spread acrss a number f surces (eg, the United Kingdm). Hwever, the separatin between written and unwritten is nt a dichtmy: many gradatins f frmality and singularity may be identified between the tw extremes. Even a written cnstitutin cmprises mre than the dcument itself: Case law Judicial interpretatins f its express prvisins, further implicatins and applicatins: Example: the statement abslutely free in cnnectin with interstate trade and cmmerce (s 92) des nt actually mean abslutely free accrding t the High Curt f Australia; rather, it means, free in sme circumstances ; Cnventins Infrmal, generally nn-enfrceable agreements abut the manner in which certain prvisins are t be treated in practice; and Imperial statutes Legislatin in the parent jurisdictin that bind the Cmmnwealth by intentin, such as the Statute f Westminster 1931 (Imp), the Australia Acts 1986 (UK) and the Cmmnwealth f Australia Cnstitutin Act 1901 (Imp); Cmmn law rules These fur additinal surces f cnstitutinal law are crucial, in Australia, fr the prper and effective functining f gvernment. 1 Cnstitutinal cnventins Cnstitutinal cnventins are practices fllwed in relatin t the peratin f gvernment. Fr example, the dctrine f respnsible gvernment is a primarily tacit cnventin. Thus, while s 1 f the Australian Cnstitutin may vest enrmus pwers in the Queen and gvernr-general, they are rarely used. Fr example, the Queen in Cuncil must give assent t new legislatin (s 59) and can in thery refuse t give such assent but in practice such apprval is always given. In a similar fashin, s 61 vests executive pwer in the Queen. 5 Adapted frm and based upn the wrk f S Jseph and M Castan, Federal Cnstitutinal Law: A Cntemprary View (2001) 2-12, Page 7 f 50

8 2 Relatinship between Queen in Cuncil and Parliament In practice, unwritten cnventin effectively curtails the exercise f the Queen in Cuncil s brad executive pwers. The Queen and gvernr-general are seen as being respnsible t the legislature, s that while executive pwer is, at least technically, vested in them, they must act nly upn the advice f cabinet and the Prime Minister, wh are in turn infrmed by the elected majrity in the Huse f Representatives. There is thus indirect accuntability between the Queen and gvernrs-general and the peple: Parliament Executive Queen Elected by the peple Cmmand a lwer huse majrity Infrmed and advised by the Prime Minister The ne exceptin t this chain f accuntability is the existence f reserve pwers, which are capable f being exercised independently f Cabinet s advice. Fr example, gvernr-general Kerr dismissed the Whitlam gvernment. Hwever, it is generally accepted that there must be reasnable cause fr making use f such pwers; thugh nt binding, this is still an effective cnstraint upn their use. 3 The purpse f a cnstitutin The functin r purpse f a cnstitutin is largely a matter f plitical thery; as such, varius pinins are prffered: Sartri: a cnstitutin is a tels (an end) They cnstrain substantive definitins They are a garantisme (a fundamental law which restricts arbitrary pwer and ensures limited gvernment ) Why prtect liberties? Why limit pwer? Reductinist answer: t limit gvernment (Sartri) Hwever, cnstitutins serve different, ften cnflicting purpses, and can t all be reduced t a single reasn fr being Because nt all cnstitutins limit pwer, a mre accurate answer wuld nte a multiplicity f purpses Alternative psitin: Parliament is suppsed t represent its cnstituency; where their electin is legitimate, they shuld have abslute pwer t prmte the cmmn welfare (elected dictatrship) Naturally, the purpse f a cnstitutin ught als t be assessed by reference t ther fundatinal principles, such as parliamentary svereignty, the rule f law, etc. Page 8 f 50

9 B Parliamentary Svereignty This ideal is the idea that Parliament is abslutely svereign with respect t law-making and amendment (with the exceptin, perhaps, f its bligatins under internatinal law). It shuld be endwed with cnstitutinal pwer t make r unmake any law whatever, with n ther bdy having such authrity and all persns bliged t bey Parliamentary statutes. 6 In reality, Australian Parliaments are nt abslutely svereign; state and federal Parliaments are cnstrained by the Cmmnwealth Cnstitutin. Nevertheless, Parliamentary svereignty is imprtant t the extent that statutes are unable t be vided by the Curts unless uncnstitutinal. Arguably, abslute Parliamentary svereignty is undesirable because it lacks the checks and balances required t ensure it is exercised apprpriately. (Examples include cnstitutin, cmmittee, and judiciary.) These are particularly imprtant in Britain and Australia, where n cnstitutinally-enshrined Bill f Rights exists (unlike the United States f America). Parliamentary versight ensures that at least in thery thugh Parliament may be influenced by agendas at dds with majrity pinin, their capacity t enact ppressive and undesirable legislatin remains limited. Histry has seen Australian Parliaments pass many discriminative laws (eg, denying wmen vting rights, breaching human rights with respect t refugees, denying Abriginal rights). Given that Members f Parliament are elected by the peple, this suggests that citizens are nt trubled by such laws. Hwever, it is als pssible that the partisan structure f the electin mandates the enactment f legislatin supprted by bth majr parties. That nt being the case, even with the mst extensive prtectins, a plitical system cannt prtect against shrt-sightedness r apathy in the electrate. C The Rule f Law Dicey sets ut three aspects t the rule f law: Ruled by regular law The gvernrs must act within the law f the gverned; T be legitimate, a law cannt cnfer wide discretinary authrity. Arguably, mdern gvernment regularly departs frm this first requirement (eg, in the apparently arbitrary nature f sme administrative decisins, such as Centrelink). It shuld als be nted that discretin is smetimes a gd thing: it enables flexibility in applying laws, recgnises the discrepancies inherent in any interpretatin f the law, is sensitive t the unique character f every situatin, and accunts fr ther salient matters that a strictly determinative rule may ignre. That said, discretin carries with it the ptential fr imprper prcess; it intrduces an unchecked arbitrary element int decisin-making and has the ptential t be abused. The cntemprary Australian apprach appears t maintain prcedural and substantive fairness by balancing discretin with cnstraint, respect fr law with flexibility and pragmatism in its applicatin. Equality befre the law The law applies t and is enfrceable against all members f sciety, including the gvernrs theref; Gvernment must prceed in accrdance with the laws it creates. 6 A V Dicey, Intrductin t the Study f the Law f the Cnstitutin (10 th ed 1964) 40. Page 9 f 50

10 Nte that Dicey s secnd aspect has tw pssible interpretatins: i) that all persns (gverns and gverned) are subject t the law [crrect]; ii) that all such persns are subject t the same laws [incrrect]. Dicey des nt require that the cntent f law be identical as twards all persns; fr example, adults may be subject t different laws than children. What is required is that all persns are gverned by the rule f law (as distinct frm caprice r might). Individual rights Rights are best prtected by a bttm up prcess (ie, by the peple); Prtectin is nt the result f a written cnstitutin but judicial decisins interpreting and applying it. This third aspect has a clear nrmative cmpnent: the rule f law ught t prtect individuals. Dicey argues that such prtectin wuld be mre effective by the peple than by a written dcument (such as a Bill f Rights). This certainly reflects the United Kingdm experience, and may als apply in Australia. Hwever, this may nt be apprpriate in many ther cuntries. D Representative Gvernment Representative gvernment cnsists f gvernment by peple thrugh their representatives. It is t be cntrasted with direct gvernment (rule by a majrity). Representatives are usually chsen via demcratic electin. Implicit in such systems in the ntin f plitical equality: each persn receives a single vte f equal value t every ther. E Respnsible Gvernment A respnsible gvernment is ne whse executive is accuntable t Parliament fr its actins. In Australia, this ccurs in tw ways: Parliamentary cntrls upn supply (ss 81 and 83) Executive spending must be authrised by the Huse f Representatives (and apprved by the Senate); Ministerial accuntability Each member f Cabinet is als a member f Parliament; this regulates their actins t the extent that, under s 64 f the Cnstitutin, they may be frced t resign fr miscnduct. F Federalism Federalism is a system f gvernment cnsisting in tw levels f gvernment which divide gvernmental pwer between them. In Australia, these tw levels are federal (Cmmnwealth) and state, and pwer is divided as fllws: States have plenary (abslute) pwer; hwever The Cmmnwealth has pwer in the areas set ut in s 51 f the Cnstitutin Federalist principles are reflected in the cmpsitin f the Cmmnwealth Senate, which has an equal number f representatives frm each state (s 7). This ensures that each state has an effective influence upn federal law. Hwever, it is arguably incnsistent with the principle f Page 10 f 50

11 representative gvernment t the extent that it allws smaller states, like Tasmania, t have greater legislative pwer per vter than larger states. Amendment f the Cnstitutin itself is als federalist: a duble majrity is required (ie, a majrity f vters verall and a majrity f vters in a majrity f states). The full prcedure fr cnstitutinal amendment is set ut in s 128. G Separatin f Pwers Gvernment pwer is allcated t three different bdies: executive, legislative and judicial. Each branch serves different functins; their separatin is meant t limit the clustering f pwer in any ne arm f gvernment. The fact that members f Parliament als serve as Ministers in cabinet undermines the strict separatin f pwers (in that a single persn serves bth legislative and executive functins); hwever, functinal separatin arguably still persists. Page 11 f 50

12 III The Australian Federal System A Key Features f Australian Federalism 7 Cmpsitin One central gvernment and six state gvernments, each with its wn legislature, executive and judiciary; The senate equally represents all states; Divisin f pwer Lawmaking pwers are divided between the natinal and state legislatures whereby the frmer are specified in the Cnstitutin and the remaining functins are left t the states; Federal laws prevail ver state laws t the extent f any incnsistency; The Cnstitutin embdies sme features f crdinate federalism (with each level f gvernment maintaining a high degree f autnmy); Cf Canada, where diverse cultural grups maintain cmplete independence; The Cnstitutin als embdies sme features f cperative federalism (there being interdependence between federal and state gvernments); Judiciary A judiciary is appinted by the federal gvernment t determine whether either level f gvernment has exceeded its pwers; A judicial umpire regulates the peratin f the divisin f pwer between them; Operatin These features are entrenched by a rigid cnstitutinal framewrk that is difficult t alter; The practical interactin between each level f gvernment depends n bth legal and extralegal (such as plitical and ecnmic) factrs; The Cnstitutinal Cmmissin als criticises Wheare s definitin f crdinate federalism as cmprising bth legal and extralegal cmpnents; they maintain that the Cnstitutin shuld nly be cnstrued by reference t its terms and the interpretatins theref by the High Curt f Australia. B The Ratinale behind Federalism in Australia The drafters f the Cnstitutin wanted any unin t preserve the states: Dicey: inhabitants f each state feel a strnger attachment t their wn state than the federal gvernment; The views f the framers are nw cnsidered a primary surce fr the purpses f interpreting the Cnstitutin: Research essay: with the emergence f Parliamentary Hansard as a valid surce f legislative interpretatin, recrds f the cnstitutinal cmmittee can be used t interpret the text itself; A federal frm f gvernment affrded representatin t state interests in the senate, and meant that states culd be granted funds and jurisdictin by the federal gvernment; Federatin was desired fr several reasns (primarily plitical and pragmatic): 7 See Cnstitutinal Cmmissin Reprt Page 12 f 50

13 Regulating interstate and internatinal trade; Natinalising rules gverning taxatin and crpratins; Prviding fr a single natinal defence scheme; It was als believed that the peple were mst likely t accept a federal system; Dicey and Bryce als prved influential surces; C Dividing Pwer under the Australian Cnstitutin Legislative pwer is divided between the Australian states and the federal gvernment. State lawmaking is limited by tw surces: The relevant state cnstitutin; and Sectins 51, 52 and 90 f the Australian Cnstitutin. State legislative pwer is plenary unless limited by ne f these surces. This limitatin can take tw frms: 1 Exclusive Cmmnwealth pwers 2 Cncurrent Cmmnwealth and state pwers In the case f an exclusive pwer, the Cmmnwealth has sle jurisdictin. Sectins 52 and 90 set ut exclusive pwers. Where a pwer is cncurrent, bth Cmmnwealth and states may make laws in respect f its subject matter. Sectin 51 sets ut many heads f pwer which are able t be exercised cncurrently by federal and state Parliaments. Hwever, where there is cnflict between state and Cmmnwealth laws; and the Cmmnwealth has cncurrent pwer t legislate in respect f the subject matter, the Cmmnwealth law prevails t the extent f the incnsistency (s 109). The effect f this divisin f pwer is t limit parliamentary svereignty at bth federal and state levels. It gives effect t cperative federalism, which seeks t minimise redundancy and inefficiency in gvernment. Other relevant prvisins in the Cnstitutin include: Sectin Purpse and effect 106 Old clnies were transfrmed int states at the time f federatin; their cnstitutins were t cntinue until mdified by the relevant state Parliaments Mst f the frmer clnies pwers and sme clnial laws were t cntinue as state laws; the surces f parliamentary pwer available t the states are set ut in their wn cnstitutins (and, by negative implicatin, the Cmmnwealth Cnstitutin) Page 13 f 50

14 51 Set ut the lawmaking pwers f the Cmmnwealth Parliament by enumerating the fields in which it may legislate 52 Sets ut exclusive federal pwers (exercised nly by the Cmmnwealth) 90 Vests the pwer t pass laws with respect t custms and excise taxes in the federal Parliament 109 Prvides that in the event f incnsistency f laws falling within a cncurrent head f pwer (such as thse utlined in s 51), the Cmmnwealth law will prevail 122 Federal Parliament may make laws in respect f territries; it may als grant them representatin in federal Parliament t the extent and n the terms which it thinks fit 128 Prvides a special mechanism t change the Cnstitutin itself; the mechanism reflects federal principles (by requiring a majrity f states) and natinal principles (by requiring an verall majrity f the ppulace); the prcedure is quite elabrate, requiring referendum Fr an illustratin f the peratin f this distributin f legislative pwer, see the Age Discriminatin Act 2004 (Cth) ss 9, 10, 12, 13, 39. Sectin Purpse and effect 9 Limits gegraphical applicatin t Australian gegraphical limits; this shws that the Act was intended t have effect thrughut Australia (sub-s 2) and its territries (sub-s 1) 10 Outlines the heads f pwers in reliance upn which the Act was passed (crpratins, trade and cmmerce, treaty, etc); shws that federal Parliament des nt have any general capacity t make laws but is limited t specific heads f pwer; sub-ss 2 11 define when the Act will apply, limiting it t circumstances permissible under a head f pwer 13 States that the Act is intended t apply t the executive gvernments f the Cmmnwealth, states, territries, and Nrflk Island; this means that gvernment fficials are subject t the law that they create (Dicey s first aspect); when applied t such fficials, it will be als necessary t cnsider whether the Cmmnwealth actually has pwer t legislate in that specific area 39 Sub-sectin 4 creates an exemptin where the cnduct cmplies with a state r territry law; shws hw Cmmnwealth laws must deal with their existence in a cntext f cncurrent state and federal pwer; this is an example f expressly leaving rm fr states t regulate cncurrently n the same subject matter Page 14 f 50

15 D Crwn and Intergvernmental Immunity 1 Crwn (gvernmental) immunity Crwn immunity is the antiquated term fr gvernmental immunity. Bth refer t the presumptin that the gvernment, its emplyees and agencies are nt bund by its legislatin r that f anther plity. T rebut this presumptin, legislatin will ften state expressly that it intends t bind the gvernment r ther plities (see, eg, Age Discriminatin Act 2004 (Cth) s 13). 2 Intergvernmental immunity Because there are many areas in which bth federal and state parliaments have cncurrent legislative pwer, there exists ptential fr cnflict between their laws. Thugh s 109 makes it clear that in the case f incnsistency the federal law will prevail, where n federal law exists the issue arises as t whether the states can bind the Cmmnwealth (and vice versa, where the Cmmnwealth has pwer t legislate). Issue: des ne level f gvernment have the capacity t bind anther in the federatin? If nt, is each gvernment immune frm the laws f every ther? A state may establish a crpratin t cnduct its affairs. Is a Cmmnwealth law regulating crpratins applicable t that state crpratin? Cnversely, are state laws applicable t federal agents and instrumentalities? This issue mst frequently arises in the cntext f deciding whether Cmmnwealth laws can bind state gvernments. The present authrity is Austin s case, a recent decisin f the High Curt f Australia. In shrt, Cmmnwealth Acts which expressly declare that they bind the states are binding. Hwever, there is an exceptin. A narrw sphere f limited immunity is said t be implied by the Cnstitutin (which makes n express statement abut the issue). The result is that the federal Parliament may use their legislative pwer t enfrce natinal plicy bjectives and, in large part, bind the states and their gvernments. E The Dctrine f Implied Immunities 1 Initial psitin: blanket immunity The starting psitin was that states and Cmmnwealth were nrmally t be immune frm each ther s laws. This was knwn as the implied immunity f instrumentalities. D Emden v Pedder (1904) HCA: Facts Tasmania passes a law authrising the cllectin f state incme tax. A Cmmnwealth servant living in Tasmania argues that he is nt bliged t pay the tax because this wuld interfere with the Cmmnwealth s decisin t pay a particular wage t their emplyees. Decisin In Demden v Pedder, the High Curt f Australia declared the Cmmnwealth t be cmpletely immune frm state laws. The Cmmnwealth emplyee is therefre nt required t pay the Page 15 f 50

16 state tax. When a state attempts t give t its legislative r executive authrity an peratin which, if valid, wuld fetter, cntrl, r interfere with the free exercise f the legislative r executive pwer f the Cmmnwealth, the attempt, unless expressly authrised by the Cnstitutin, is t that extent invalid and inperative. These strng statements f cmplete immunity cntinued up until the Engineers Case. Irnically, their effect was t reduce the effectiveness f the Cmmnwealth s ability t regulate natinal plicy and state laws. They prved difficult t rebut, especially given the fact that the riginal High Curt justices were ften framers themselves. This made it difficult t verturn the dctrine n the basis f accepted interpretative criteria (ie, the framers intentins ). Railway Servants Case (1906) HCA: Facts The Cmmnwealth attempts t enfrce an industrial award upn a state railway authrity. Decisin The later Railways Servants Case cnfirmed the reverse; namely, that the states are cmpletely immune frm Cmmnwealth laws purprting t bind them. The states are therefre nt bund by the Cmmnwealth industrial award. When first applied by an infant federatin, the dctrine was thught t prtect states and their agencies frm Cmmnwealth interference. 8 In practice, hwever, it made it difficult t implement plicy n a natinal level, since states were free t disregard it. 2 Engineers Case: Overturning implied immunity This psitin was verruled by the High Curt f Australia in the Engineers Case. Knx CJ, Isaacs, Rich and Starke JJ reasned that the dctrine finds n place where the rdinary principles f cnstructin are applied s as t discver in the actual terms f the Instrument their expressed r necessarily implied meaning. The principle we apply t the Cmmnwealth we must apply als t the states, leaving their respective Acts f legislatin full peratin within their respective areas and subject matters, but, in case f cnflict, giving t valid Cmmnwealth legislatin the supremacy expressly declared by the Cnstitutin, measuring that supremacy accrding t the very wrds f s 109. We therefre hld that states, and persns natural r artificial representing states, when parties t industrial disputes in fact, are subject t Cmmnwealth legislatin under pl 9 (xxxv) f s 51 f the Cnstitutin, if such legislatin n its true cnstructin applies t them. 8 Blackshield and Williams, Pl is a cmmn abbreviatin fr plenum. Page 16 f 50

17 Engineers Case (1920) HCA: Facts A unin f engineers ldges a claim fr an award cncerning 843 emplyers acrss Australia, including 3 gvernmental emplyers in Western Australia Issue Can a Cmmnwealth law made under the cnciliatin and arbitratin pwer (s 51(xxxv)) make an award binding upn the state gvernment emplyers? Decisin The High Curt declares Cmmnwealth legislatin binding upn state gvernment instrumentalities. In biter, this denial f intergvernmental immunity is described as being reciprcal (ie, it als allws states t bind the Cmmnwealth). The Engineers Case marked a turning pint in hw cases were interpreted by the curts. They wuld nw lk exclusively at pwers granted t the Cmmnwealth by the Cnstitutin. There is n lgical reasn t cnstrain their exercise by reference t immunity implied by the grant f pwer; n their true cnstructin, the pwers d extend t the states, which are therefre bund by Cmmnwealth legislatin. 3 State Banking Case: Qualificatins t Engineers In general, the Cmmnwealth can pass legislatin binding the states. Hwever, the pst- Engineers psitin still impsed limits upn Cmmnwealth legislatin: The Cmmnwealth still has t find a head f pwer under which t enact a new law; Any legislatin which breaches an express r implied prhibitin n Cmmnwealth pwer will be invalid Such prhibitins can be derived frm the inherent nature f federalism, which requires that states are functining gvernments Because the Cnstitutin implies that states exist as functining gvernments, the Cmmnwealth cannt pass a law which interferes with the ability f states t functin as gvernments In particular, the general rule that the Cmmnwealth can bind the states is qualified by tw imprtant exceptins (State Banking): Discriminatry laws The Cmmnwealth may nt discriminate against the states by singling them ut fr special treatment; and Laws curtailing essential gvernmental functin The Cmmnwealth may nt enact laws even if they are f general applicatin which prevent r impede states frm carrying ut nrmal and essential functins f gvernment. These exceptins t Engineers cnstitute implied limitatins n the Cmmnwealth Parliament s pwer t legislate with respect t the states. Such limitatins are said t be derived frm the very Page 17 f 50

18 nature f Australian federatin, which implies that states are discrete gvernment entities capable f exercising independent gvernmental functins. Melburne Crpratin v Cmmnwealth (1947) HCA ( State Banking Case ): Facts Under s 48 f the Banking Act 1945 (Cth), a bank engaging in business with a state gvernment must btain permissin frm the Cmmnwealth treasurer t d s Because the Cmmnwealth wanted t create a unifrm natinal bank (and nt a series f discrete, private, state banks), the treasurer wuld ften refuse his permissin The Melburne City Cuncil is ntified that it wuld be treated as an authrity t which s 48 applies The Cuncil seeks t declare s 48 cnstitutinally invalid (and s be able t cnduct banking withut the apprval f the treasurer) Issues Is there a head f pwer within which the legislatin is enacted? Majrity: yes; banking, ther than state banking : s 51(xiii) The law appears t pertain t banking, but this may nt be the case Des the legislatin discriminate against state entities? Des the legislatin curtail the ability f states t exercise their essential gvernmental functins? Reasning Starke J: States have n general immunity t Cmmnwealth laws, subject t the limitatin that such laws d nt impede the states functining as gvernments (t d such wuld be t cntravene an implied limitatin in the Cnstitutin) The nature f this limitatin is t prevent a law which curtails r interferes in a substantial manner with the exercise f cnstitutinal pwer by a state (at 75) Discriminatin means: are state entities being singled ut frm nn-state entities? If they are, then are they prevented frm perfrming their nrmal acts as a result? If nt, then des the law impede essential gvernment functins? The fcus is n the ability f states t exercise their functins as gvernments This limitatin is implied frm the Cnstitutin, which implicitly treats states as functining independent gvernments The limitatin als applies t executive pwer (at 75) Dixn J: If a law has an actual and immediate peratin in a head f pwer assigned t the Cmmnwealth under the Cnstitutin, this is prima facie evidence that the law is valid The fact that a law is enacted with an intentin r purpse falling utside the area f pwer will nt invalidate it Hwever, a head f pwer will nt supprt a law which places a special burden upn the states they cannt be singled ut The federal system itself is the fundatin f the restraint upn the use f the pwer t cntrl the states. The same cnstitutinal bjectin applies t ther pwers, if under them the states are made the bjects f special burdens r Page 18 f 50

19 disabilities. Because the Cnstitutin cnceives f states as bdies whse existence and nature are independent f the pwers allcated t them by the Cmmnwealth, the distributin f pwers thugh allwing interrelatin cannt allw exercises f pwer calculated t destry r detract frm the independent exercise f the functins f the ne r the ther The Cnstitutin is a plitical instrument But it is really meaningless. It is nt a questin whether the [arguments] are plitical, fr nearly every cnsideratin arising frm the Cnstitutin can be s described, but whether they are cmpelling. The case f Cmmnwealth pwer being exercised ver states is different frm state pwer being exercised ver federal agents: the Cmmnwealth has a strnger psitin (with enumerated pwers affirmatively granted) and supremacy in cases f incnsistency States are separate gvernments and exercise independent functins; this lgically entails that the Cmmnwealth may nt enact laws aimed at the restrictin r cntrl f a state such a restrictin is plainly seen in the very frame f the Cnstitutin The nature f this limitatin is t prevent a law which discriminates against states r which places a particular disability r burden upn an peratin r activity f a state and upn the executin f its cnstitutinal pwers (at 79) Rich J: Twmey: the nature f the implied limitatin is t prevent laws which either single ut the states and impse n them restrictins that prevent the exercise f their nrmal and essential functins f gvernment, r laws f general applicatin which wuld have this effect (at 66) Williams J: Twmey: the nature f the implied limitatin is t prevent the exercise f legislative pwer fr the purpse f affecting the capacity f the ther [the state] t perfrm its essential gvernmental functins (at 99) Ultimately decides the matter n the basis f characterisatin Latham CJ: The issue is ne f characterisatin: is the legislatin cncerned with state functins r a Cmmnwealth head f pwer? Decisin Five judges (McTiernan J dissenting) hld that s 48 is invalid. Hwever, they each emphasise different aspects f the test fr intergvernmental immunity, leaving in dubt the precise criteria accrding t which Cmmnwealth laws are t be judged as interfering with r restricting a state s activities. The extent t which State Banking departs frm Engineers is als unclear. (a) Discriminatry laws Accrding t State Banking, a tw-stage test is applied t determine whether a law breaches the immunity granted in cases f discriminatry Cmmnwealth (and state) laws: 1 Des the law discriminate against r single ut the gvernment r agents f a state r states, whether in frm r effect? Page 19 f 50

20 Discriminatin can be either direct inferred frm the frm and express wrds f the statute r indirect where law f apparently neutral applicatin has a disprprtinate detrimental impact n the gvernment f a state r states. Indicia f direct (frmal) discriminatin Singling ut a state r entity cntrlled by a state Laws having n effect n the activities f a nn-state bdy, but penalising the same bdy where it is part f the state gvernment Eg, State Banking Indicia f indirect (substantive) discriminatin Where present circumstances dictate that the law will have a greater negative impact n a state prvider Where the state prvider is the primary prvider in the industry which is subject t the law Eg, by regulating all entities f a certain kind in the same way when mst entities f that kind happen t be wned by the state gvernment See Queensland Electricity Cmmissin Discriminatin may be directed at a gvernment itself, r an instrumentality r agent under its wnership (Queensland Electricity Cmmissin per Masn J). Queensland Electricity Cmmissin v Cmmnwealth (1985) HCA: Facts A Queensland gvernment authrity generates 99.7% f the state s electricity The authrity is engaged in an intractable unin dispute The Cmmnwealth passes legislatin t deal with the dispute, which cnsists f special rules applying t Queensland nly The legislatin is expressed as applying t bth gvernment and nn-gvernment entities in Queensland; it is thus a law f general applicatin t any electricity disputes which the state may encunter Issues Is this the kind f discriminatin identified in State Banking? Des the law single ut a gvernment entity specifically? Reasning State Banking was cncerned with laws distinguishing between state and nn-state entities; here, the law is ne f general applicatin, but is distinguished frm laws in ther states High Curt: this is still singling ut fr the purpses f the State Banking test Even thugh the law purprts t apply t all entities, it can still be said t target a gvernment entity because the substantive effect disprprtinately affects it High Curt: the fcus is n mre than the frm f a law The real questin is ne f substance: is the true effect f the law, as applied, t islate state authrities? The fact that the Act is general in applicatin is nt determinative it s the way in which the law perates in reality that is imprtant Similarly, a law can be invalid because it discriminates against either a single state f all states tgether: at 217 (Masn J), (Brennan J), 247 (Deane J), 262 (Dawsn J) Nt all discriminatin by Cmmnwealth law will vilate an implied immunity Page 20 f 50

21 Eg, the acquisitin f prperty n just terms necessarily singles ut the state whse prperty frms the subject f the acquisitin, but this is nt in vilatin Deane and Brennan J: Discriminatin is permissible if it is reasnable This is an imprecise test Merely depriving states f a right, privilege r benefit that ther citizens dn t pssess will nt amunt t vilatin f the implied immunity frm discriminatry laws The discriminatin must be impermissible That is, sme disability r restrictin must have been impsed upn the state r states exercise f their cnstitutinal functins This need nt threaten the cntinued existence f the state r states, hwever 2 Des the law nevertheless fulfil a ratinal nn-discriminatry purpse? If the law frmally r substantively discriminates (against states r the Cmmnwealth thugh states are primarily the fcus here), it becmes necessary t justify the legislatin at the secnd stage. The Cmmnwealth gvernment will usually argue that its legislatin is necessary in rder t effectively be able t regulate ne f its heads f pwer under s 51 f the Cnstitutin. Hwever, just having a pwer des nt entail the ability t use it fr discriminatry purpses. Even s, the presence f such a pwer can smetimes in exceptinal circumstances be used t justify a law discriminating against a state gvernment. Such circumstances are t be inferred where the relevant legislative pwer appears, frm its cntent, cntext r subject matter, t be intended t authrise the discriminatry peratin f the particular law. 10 Examples are t be seen in heads f pwer where a particular exercise f the relevant legislative pwer necessarily invlves distinctins between different gegraphical areas: defence (s 51(vi)), quarantine (s 51(ix)) and medical services such as immunisatin (s 51(xxiiiA)) may prvide illustratins. 11 Anther example is arguably prvided by s 51 (xxi), which prvides fr the acquisitin f prperty n just terms frm any State r States. Such pwer necessarily invlves gegraphical distinctins between different areas f prperty, and s appears t authrise legislatin specific t (and thus discriminating against) the relevant State r States in which the prperty is situated. In Richardsn v Frestry Cmmissin, it was held that laws prhibiting lgging in tw Tasmanian frests cnstituted reasnable discriminatin and were therefre valid. Despite affecting nly ne state, the legislatin was reasnably necessary t prtect Heritage frests, thereby fulfilling Australia s bligatins under an internatinal treaty. When cnsidering a nvel head f pwer, the fllwing indicia may be used t determine whether it appears intended t authrise the discriminatry peratin f a law: Cntent f the pwer; 10 Queensland Electricity Cmmissin, (Deane J). 11 Ibid. Page 21 f 50

22 Cntext f the pwer; r Subject matter f the pwer. If the law fulfils a ratinal nn-discriminatry purpse (ie, t enable the effective regulatin f the subject matter f the pwer) then immunity will nt survive and the relevant state will be bund. (b) Laws curtailing essential gvernmental functin Anther surce f implied intergvernmental immunity cncerns laws impeding essential gvernment functins. In Australian Educatin Unin, the majrity (6:1) described this exceptin as preventing an impairment r curtailment f the capacity f a state t functin as a gvernment. They went n t apply the limitatin, invalidating the Cmmnwealth law. Nte that Australian Educatin Unin is nt an example f discriminatin being used t invalidate a law. The utcme hinges nt upn the singling ut f state emplyees, but n the law s effect upn gvernmental functins. Re Australian Educatin Unin; Ex parte Victria (1995) 184 CLR 188: Facts The Cmmnwealth Industrial Cmmissin regulates emplyment, specifying certain minimal requirements fr dismissal, remuneratin and ther wrking cnditins The Cmmissin frequently makes awards cncerning state emplyers; the Victrian state gvernment is ne such emplyer Issue Can the Cmmissin bind state gvernments and impse minimum standards f emplyment? Reasning On the facts, tw rights are crucial t the functining f the state and are therefre prtected by the immunity: Right t hire and dismiss emplyees If emplyees becme redundant, a state shuld be able t dismiss them as it becmes necessary, rather than be bund by the emplyment laws passed by federal Parliament; and States need t be able t chse wh they emply and fr hw lng, as well as the cnditins f their dismissal Right t cntrl senir members f gvernment Senir emplyees f state gvernments are als immune frm federal laws regulating wages and emplyment cnditins. This includes: Ministers, ministerial assistants and advisers, heads f departments and high level statutry ffice hlders, parliamentary fficers and judges (at 233). The Cmmnwealth can regulate minimum wages and maximum wrking hurs, but regulatins relating t terminatin are invalid t the extent that they apply t state Page 22 f 50

23 gvernments The Cmmnwealth can t regulate these things because states shuld be able t decide fr themselves hw many emplyees t retain year t year Because cnditins frequently fluctuate, state gvernments must be able t jettisn unnecessary emplyees withut being subjected t unfair dismissal laws enacted by the Cmmnwealth t be able t carry ut their gvernmental functins with currency and efficiency Regulatin f emplyment by the Cmmnwealth wuld impair their ability t emply staff t carry ut their demcratic mandate If states are t have the integrity and autnmy prvided fr by the Cnstitutin, they require freedm t determine the terms and cnditins relating t their emplyment f higher level fficials (eg, judges, Ministers, etc) Thus, even where the law is nt discriminatry, it may still breach an implied prhibitin where its prvisins perate t destry r curtail the cntinued existence f the states r their capacity t functin as gvernments Decisin Majrity The Cmmnwealth s ability t regulate state emplyment cnditins is cnstitutinally limited. Thugh the right t hire and dismiss its emplyees is critical t a gvernment s functining, the right t regulate their minimum wages and cnditins f emplyment is nt s essential. Cnsequently, these matters are able t be legislated fr by the federal Parliament, subject t the prvis that it takes apprpriate accunt f any special functins r respnsibilities which attach t the emplyees in questin (majrity, 232 3). This means that the Cmmnwealth cannt even regulate the remuneratin f mre senir emplyees (eg, Ministers). The reasning behind the majrity s supprt f the secnd immunity is that the right t regulate all aspects f the emplyment f its senir staff is crucial t the functining f a state. Minrity Dawsn J is critical f the distinctin between hiring/dismissal and regulating wages/cnditins. His Hnur views wages and cnditins as being just as crucial t a state s prper exercise f gvernmental functins as hiring and dismissal f their staff (at ). Dawsn J als dismisses the distinctin between senir and ther emplyees, arguing that all are crucial t the functining f a state (at 250). He prpses a return t pre-engineers blanket immunity fr bth state and Cmmnwealth in relatin t industrial laws. Hwever, this wuld undermine the rati f Engineers in principle and prevent the effective setting f minimum and universal industrial cnditins by the federal gvernment. Since Melburne Crpratin, Victria v Cmmnwealth, and Australian Educatin Unin, the exceptin t the Engineers principle (that n intergvernmental immunity exists) has been described as having tw limbs: Discriminatin A prhibitin n Cmmnwealth laws that impse special burdens r disabilities n Page 23 f 50