CONSTITUTIONAL DOCUMENTS & THEIR HISTORY

CONSTITUTIONAL DOCUMENTS & THEIR HISTORY 1788: English law displaced the law & land of the original people. Absolute rule by Governor. 1823: Supreme Cts of NSW and Tasmania. Council nominated by Governor to act with Governor. 1842: In NSW, Legislative Council established (12 Nominated by Crown, 24 elected) Australian Constitutions Act 1850 (Imp) Framework for constitution making: Provided that Governor was empowered to make laws for the peace, welfare and good government of the colony with the advice and consent of the Legislative Council NSW Constitution Act 1855 (UK) Bicameral legislature, Responsible government Upper House (Senate) : Governed by majority of States (12 each) Lower House (House of Rep) : Governed by majority of People (min. of 5 each) More populated states would thus dominate the lower house and smaller colonies favour a more powerful Senate {Patrick Parkinson, Tradition and Change in Australian Law} Self Government was subject to: The principle of repugnancy: Colonies could not pass any law which was inconsistent to a law of the UK Parliament Colonial legislation had territorial limits Reserved power of English Monarch to disallow a colonial law even after the relevant Governor had given assent. Colonial Laws Validity Act 1865 s3 freed the colonies from the wide version of the repugnancy principle: Only UK laws deliberately extending to the colony after settlement could raise issues of repugnancy (The Act remained a part of Commonwealth law until 1939 with the ratification of the Statute of Westminster; and a part of State law until the Australia Act 1986) Federation Constitutional conventions began in 1890s. Draft constitution approved in referenda in colonies 1919, Australia signed the Treaty of Versailles and joined the League of Nations in its own rights. Commonwealth of Australia Constitution Act 1900 (UK) s9: gives Australians the power to amend their own Constitution s128: amendment by absolute majority of each House of Parliament On 1 Jan 1901, the Australian nation was created a Federation. Balfour Declaration of 1926 The dominions are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. 2 nd Imperial Conference in 1930 Agreed that the appointment of the Governor General should be on the advice of Dominion Ministers The 1 st Australian born GG appointed in 1931 (Isaacs) Statue to Westminster 1931 (UK) Adopted by the Cth Parliament in 1942 (retrospective to 1939) s1 & s2: freed dominions, including Cth, from imperial restrictions by excluding the operation of the Colonial Laws Validity Act and thereby the repugnancy doctrine: Cth (but not States) could now repeal or amend a UK Act which had previously applied to it. s3: removed the restriction that Dominions could not make laws with extraterritorial effect s4: provided that UK Parliament would only henceforth legislate for the Cth following the request and consent of the Cth Parliament. s8: ensures that nothing in the Statute of Westminster authorises the Cth to override the Cth Constitution. Cth's legislative powers does not extend to the States. The independent link between the States and the UK which existed before Federation preserved. Repugnancy principle (for States) preserved. The Australia Acts Australia Act 1986 (Cth) & Australia Act 1986 (UK): on request and consent of each State; on request and consent of the Cth Parliament Signalled the end of the power of the British Parliament to legislate for Australia (s1) and removed the doctrine of extraterritoriality (s2) and repugnancy (s3) {Blackshield & Willaims (5 th ed), Ch 3, pp 141 145} This was made clear in Sue v Hill (1999) 199 CLR 462 where Gleeson CJ, Gummow and Hayne JJ held that the United Kingdom is now a foreign power for the purposes of s44(i) of the Constitution. Subject to the Cth Constitution and the Statute of Westminster, it: confirmed the plenary(absolute) power of the States to make laws for the peace, order and good government of that State; removed the CLVA repugnancy provision at State level (Each state given power to repeal or amend UK law that had been extended to it) allowed State parliaments to legislate with extraterritorial effect ; Terminated appeals from the States to the Privy Council Removed the power of the UK Parliament to disallow legislation; or to require that certain classes of State legislation be assented to in the UK (eg constitutional amendments) Confirmed the constitutional practice that the State Governor acts on the advice of the Premier of the State, not the UK government. Repealed s4 of the Statute of Westminster (UK Parliament legislating for the Cth on the request and consent of the Cth) Entrenchment of the Australia Acts and remaining parts of the Statue of Westminster: 1

s15 of the Australia Act allows the Commonwealth to repeal or amend both the Statute of Westminster and the Australia Act but provides that neither Act can be amended except by a s128 constitutional amendment or with the request and consent of all the States. Cases confirming effect of the Australia Acts: Sue v Hill (1999) 199 CLR 462 Facts: Heather Hill who stood for senate in QLD had not renounced her UK citizenship. No one who is the subject of a foreign power is eligible for election to Senate or House of Rep. Held: Callinan J: Nothing can serve so well to give legitimacy to a nation and its constitutional integrity as a rare and complete consensus of governments of the kind that the enactment of the Australia Act represents. AG (WA) v Marquet (2003) 217 CLR 545 Facts: At issue was the attempted repeal of the Electoral Distribution Act 1947 (WA) with a view of replacing the State electoral distribution under that Act with a new and more equal distribution. Held: Majority of HC held that the attempted repeal was blocked by s13 of that Act which provided that any Bill to amend this Act must be passed by an absolute majority in both Houses of the State Parliament. The restrian was said to be rendered effective by s6 of the Australia Act. Court approved the constitutional validity of the Australia Act (Cth) and rejected the necessity for and relevance of the UK Australia Act. Only Kirby J dissented saying that it imposes new restrains on legislative power: However desirable particular provisions of the Australia Act 1986 (Cth) may seem to be, it is a statute... purporting to alter the Constitution... without the one essential and undoubted entrenched requirement of such alterations... in accordance with s128 CONSTITUTIONAL FUNDAMENTALS What is a Constitution? The fundamental basic law of the land (Legal source of legitimate authority) A higher form of law (superior to other laws, usu prescribed procedure for amendments) Source of legitimacy in Australia? Legal: Legal sovereignty of the British Parliament which enacted the Australian Constitution Developments over the 20 th century did not affect the Australian Constitution. Constitution of US & India begin with We, the People of India/US... (Popular Sovereignty). The Australian Constitution derives its validity from an exercise British sovereignty. - Its legal status is derived from the fact that it was contained in an enactment of the British Imperial Parliament. - Its political legitimacy/authority was based on the words contained in the preamble to that enactment which refers to the people of the Australian colonies having agreed to united in a federal Cth. Popular/Political Sovereignty in Australia? Australian people as electors, Agreement of colonies in federation, 1890s referenda, Preamble to the UK Act: Whereas the people of the colonies have agreed to unite in one indissoluble Federal Cth, Australia Act supported by a remarkable consensus, Constitution recognises the role of the people by entrusting to them its amendment. However: In the referenda leading to federation, only 52% of eligible voters actually voted, most women and Aborgines were not in the Convention and were denied a vote, there is much conservatism and ignorance of Australians in constitutional matters. Federalism Establisment of a central (Federal) Government and State Governments. All Federations are subject to centripetal and centrifugal tendencies, with political power moving towards or away from the centre. The Centre: Institutions (political, legal and administrative) with authority over the whole territory of a nation-state Regions (States): Institutions with authority over the geographical area into which the nation is divided. Distribution of power: Each set of Institution has its own and some concurrent powers A set of rules for resolving conflict between the Centre and the Regions (If there are any conflict of laws, the Cth prevails) Judicial authority to interpret and enforce these rules on basis of their conformity with the Constitution. A Constitution: a written legal document outlining these arrangement, which cannot be amended by either the Centre or Regions at their own discretion. US Constitution of 1787 Institution Power Personnel Control Congress Power to make laws Elected representatives Presidential veto; Supreme Court review of validity. President Executive power Elected. Cannot be a member of Congress Supreme Court Judicial power including review of legislative and executive activity Appointed by President with Senate ratification Senate ratification necessary for cabinet and diplomatic appointments, and treaties; Judicial review; Impeachment by removal by Congress Impeachment by Congress Westminster System 2

Parliament Make laws Representatives elected to lower house. Elected or appointed to upper house. Executive Council (Cabinet) Executive power Ministers appointed by the Crown with the support of the lower House. Must be members of Parliament The Courts Judicial power Judges appointed by the Executive (Royal assent) Supervision and/or expulsion by the House Maintain support of the lower House. Parliamentary and Judicial Review Superior Court justices removal by the Crown on an address from both Houses on certain grounds Australian Constitution States: retained their own Constitutions subject to the Cth Constitution (s 106 107) Powers: - Powers of the Cth listed (s 51 & s 52), some exclusive to the Cth - Some exclusive to the Cth - Concurrent powers (s 109: valid Cth law prevails) - States have power to make laws for the peace welfare and good government of the State. No comprehensive bill of rights: Vitality of Australian federalism removes the need for a Bill of Rights to entrench the protection of individual civil liberties in the Constitution. A federal constitution is itself a bill of rights as the division of authority between different spheres of government guarantees due process in government. (James Gillespie New Federalisms ) Federalism in the Cth Parliament Each State has an equal number of seats in the Senate (12) plus 2 for each of the NT and ACT Minimum of 5 seats in the House of Representatives Westminster System of Responsible Government: Ministers administer Departments of State and must be members of Parliament (Cth Const. s64) Collective and individual ministerial responsibilities to Parliament Ministers constitute Cabinet which is the policy maker (Constitution does not mention the PM or Cabinet) Ministers constitute the Executive Council which advises the Crown's representative. Qn: So how does this make it responsible? Dicey argued that the fundamental principles of British constitutional law were representative democracy, parliamentary sovereignty and the rule of law. Separation of Powers Dispersal of power between the 3 branches of the Constitution (not replicated in State Constitutions): Ch I The Parliament: Legislative function: making of new laws and the alteration or repeal of existing law. Ch II The Executive: Executive/Administrative function: general and detailed carrying on of government according to law, including framing of policy Ch III Judicature: Judicial function: interpretation of law and its application by rule of discretion to the facts of particular cases No strict separation between the legislature and executives Ministers are Members of Parliament Parliament can delegate legislative power to the executive (Victorian Stevedoring v Dignan) Executive plays a substantial role in dispute resolution Importance of the separation of judicial power Maintenance of the Constitution and the rule of law Brennan: It is the maintenance of the rule of law in politically charged cases that makes it essential that the Judiciary be, be seen as, and see themselves as, independent of government and immune from its influence.. Kable Doctrine says that federal judicial power can be vested in the state court. State parliament cannot legislate incompatibly with the court's functions. Principle that courts must continue to have the powers that is had in federation including the power of the rule of law to keep the executives in check. Parliamentary Sovereignty AV Dicey's notion of parliamentary sovereignty: the Parliament has the right to make or unmake any law whatever, and further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament. A Parliament cannot bind future parliaments. Qualifications in Australia: Subject to colonial parliaments in UK Cth Constitution limits parliament powers (Courts can invalidate legislation if it is inconsistent with constitution, or if it is ultra vires beyond powers of Parliament) There is a manner and form procedure in the States Important Qualifications Generally: Legal power is limited by the rules which prescribe how it must be exercised, including: Formal procedures, Constitutional practices, Arguable liberal democratic values Distinction between legal and moral authority, law and politics Subjection to elected members of Parliament External limits (subject to whether subjects will follow or resist the laws) and Internal limits (character of members in parliament influenced by circumstances) 3

Leslie Stephen: power of legislature is limited from within, because legislature is the product of a certain social condition, and determined by whatever determines the society; and from without, because the power of imposing laws is dependant upon the instincts of subordination Has been argued that to limit Parliament's powers is to adopt a cure must more dangerous that the highly improbably disease of parliamentary tyranny (Jeffrey Goldsworthy) The Rule of Law The principle of legality: core idea to ensure limited government, that govt acts within the law. Not mentioned in Cth or State Constitution except s75(5) of the Constitution which says that an ordinary act of the Parliament cannot change what the Constitution allows. 3 conceptions (Dicey): 1. No man is punishable except for a distinct breach of the law established 2. No man is above the law (All persons and authorities, public and private, are bound by the law) 3. General principles of the constitution are the result of judicial decisions and not from constitution itself. Tension is when Parliament tries to prevent the courts from reviewing Parliament decisions. At Cth level it is easier to do because if you say the court cannot question the legality of what an officer does, that you are putting him above the rule of law. Until recently, there is no parliamentary impediment where the preventive clauses have prevented courts to reviewing the officers. But that turned around recently at state level as well. Thin sense of Rule of Law Describes ideological thinking behind rule of law: There should be legal norms; the legal norms should be prospective, open and clear; it should not be impossible to comply with the legal norm; the making of the legal norm should be guided by open, clear and fairly stable general norms Those having authority to apply or enforce legal norms should do so correctly and consistently and should be accountable for their compliance. Thick sense of Rule of Law Rule of law is not value free: The rule of law includes the principles, procedures and values of the political system which embody freedom from arbitrary government and respect for individuals. While maintaining the legality/merits distinction (Is it legal under the constitution? What are the benefits of the legislation?) Australian courts may adopt a more normative understanding Statutory interpretation and judicial review are informed by general principles of justice derived from the common law. Parliamentary sovereignty must be understood in the light that: the intention of Parliament is a product of both legislative purposes gleaned from the statute as a whole and judicial interpretation sensitive to deeply rooted constitutional values. CONSTITUTIONS & THEIR AMENDMENT Rigid or Flexible? A flexible constitution is one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body (Dicey) A rigid constitution is one under which fundamental laws cannot be changed in the same manner as ordinary laws Spectrum, including political and social considerations, Policy arguments. Section 128: a proposed law to alter the Constitution must be Passed by an absolute majority of both Houses of the Federal Parliament, or by one House twice, and At a referendum, passed by a majority of the people as a whole, and by a majority of the people in a majority of the states (at least 4 out of 6 states) Australia: The frozen continent Since 1901, 44 proposals have been put to referendum only 8 succeeded Since 1977, 8 proposals all unsuccessful Australians are notorious for not voting for a constitutional change. Why does no Australian want to change constitution: If it ain't broke, don't fix it, No one really cares; play safe and let things be; ignorance of the system and world. What about referendum as a tool: It still depends on whether the parliament wants to change it. If the people want to change it but the parliament doesn't then nothing will happen as well. Constitution was against citizen initiated referendum because of popular interests. Argument that citizen initiated referendum is contrary to representative government. Are referendums a good tool for public engagement? It is essentially just a yes or no question. There is also the problem of adversarial system politics/debate. Labour is associated with favouring constitutional change, favouring more central govt power. Liberal is associated with preserving constitution (conservative) But there are other ways to update the system of government Machinery provisions for referendum Much of government system is defined by ordinary legislation or convention External affairs power to implement legislation through treaties Corporations power Ordinary legislation of parliament: Discrimination Act, Human Rights Act... Role of High Court State Constitution States owe their existence and juridical basis to s106 and 107 of the Cth Constitution Ch V. 4

s106: The Constitution of each State of the Cth shall, subject to this constitution, continue as at the establishment of the Cth until altered in accordance with the Constitution of the State (Saving of Constitution) s107: Every power of the Parliament of a Colony which has become a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Cth or withdrawn from the Parliament of the State, continue as at the establishment of the Cth (Saving of Power of Parliament) NSW Constitution Act 1902 (NSW) s5 The Legislature shall, subject to the provisions of the Cth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of NSW in all cases whatsoever. Flexible State Constitutions State constitutional law is based on the proposition that Parliament is legislatively sovereign and free to amend the Constitution Act simply by legislating inconsistently with it A State constitution is not to be understood as a fundamental law that limits the powers of the Parliament Based on 19thcentury constitutional theory Colonial Laws Validity Act 1865 s5 Every colonial legislature shall have full power within its jurisdiction to establish courts of judicature and to abolish and reconstitute the same and to make provision for the administration of justice Every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature Great Britain has shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived Consistently with the genius of the British people the legislative powers given were given completely and unequivocally in the belief that these young communities would successfully work out their own constitutional salvation Lord Birkenhead in McCawley v The King Flexibility of State constitutions confirmed by the High Court in Taylor v AG(Qld) (1917) 23 CLR 457 Taylor v AG(Qld) (1917) 23 CLR 457 Facts: Qld Parliament enacted an Act which established an alternative legislative procedure which allows a Bill to be presented for Royal assent if it was twice passed by Legislative Assembly and twice rejected by Legislative Council. Legislative Assembly also passed a Bill to Amend the Constitution by abolishing the Legislative Council. Issue 1: Did the Qld legislature have the power to enact alternative legislative procedures? Held: YES The Qld Parliament has full power over the constitution, powers and procedure of it legislature, including its composition, form and nature, derived from the CLVA can legislate a procedure for bypassing the Legislative Council notwithstanding that it amended the Constitution by implication Issue 2: Could the Qld Parliament use its CLVA power to legislate to abolish the Legislative Council? YES it may alter the Qld Constitution Act Qualifications s 5 of the CLVA cannot be used to abolish the representative character of the Parliament Per Isaacs and Powers JJ, the reference to the legislature in s 5 does not include the Crown, which is a fundamental conception basic to the very nature of our constitution Referendum in 1915 voted against abolition of the Legislative Council Qld Legislative Council abolished in 1921 without a further referendum. McCawley v The King [1920] AC 691 Facts: Legislation affecting constitution of the Courts. QLD Industrial Arbitration Act 1916 (Qld) s6(6) allows President of Court of Industrial Arbitration to be appointed to Supreme Court for renewable 7 year term. Constitutional guarantee of judicial life tenure and salary. Qld Parliament can validly enact legislation authorising an appointment to the Supreme Court for a limited seven-year period and thereby amend the State s Constitution by implication CLVA s 5 gives the States full power with respect to its judicial system The State constitution is not a controlled constitution it was not the policy of the Imperial Legislature to shackle or control the legislative powers of the nascent Australian legislatures Manner and Form restrictive procedures Colonial Laws Validity Act 1865 s 5 proviso: Every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of parliament, letters patent, order in council, or colonial law for the time being in force in the said colony By virtue of ss 2, 3 of the Australia Act 1986 the CLVA ceased to apply to State Legislatures and the State Parliaments were given full legislative power. But s 6 of the Australia Act continues the power to make provisions for manner and form requirements (AG (WA) v Marquet) Australia Act 1986 s 6 a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effectunless it is made in such manner and formas may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act 5

Three elements to manner & form 1. entrenched provisions eg There shall be a Legislative Council comprised of 30 members chosen directly by the electors 2. entrenching provisions that certain sections cannot be amended or repealed or laws on certain matters cannot be enacted without following a particular manner or form - eg a special majority or referendum ( manner ) - eg amending legislation must express its intention to override the earlier law ( form ) 3. amending or repealing law - eg The Legislative Council shall be abolished Double Entrenchment To be effective, the entrenching provision must protect itself with a manner and form requirement for amendment or repeal; otherwise A later amending law will have the effect of impliedly amending the entrenching provision The amending law would not need to comply with manner and form requirements Example: Constitution Amendment Act 1929 (NSW) s 7A provided that : The Legislative Council shall not be abolished nor shall its constitution or powers be altered except in the manner provided in this section; viz... A Bill shall not be presented to the Governor for assent until the Bill has been approved by the electors in accordance with this section s 7A(6) provides the double entrenchment that: The provisions of this section shall extend to any Bill for the repeal or amendment of this section Effectiveness of double entrenchment confirmed in AG(NSW) v Trethowan (High Ct) AG(NSW) v Trethowan (1931) 44 CLR 395 Facts: Lang government sought to abolish Legislative Council without referendum. Members of Legislative Council sought an injunction to prevent the Bill from being presented to the Governor. s 7A(6) could not be repealed by an ordinary act of Parliament. It could only be repealed in the manner prescribed by s 7A itself, that is, by a referendum. Section 7A thus incorporated a manner and form requirement imposed by a law within the meaning of the proviso to s 5 of the CLVA. Issue: Did the NSW Parliament have the power to prescribe to their successors a particular mode by which and by which alone constitutional changes may be effected by amending the Constitution to include s7a? Held: nyes this power is derived from the Imperial Parliament. Although the Imperial Parliament cannot limit its own sovereignty, it can confer power on a subordinate legislature to do so. (Dixon J: NSW is not a sovereign body but has statutory origins) Privy Council agreed nthe entrenching section was a valid manner and form provision. Trethowan's Case demonstrated that if a manner and form provision has not been doubly entrenched, a parliament is free to legislate to remove the entrenchment and amend the protected provision. nit could only be removed following the referendum requirement Rich J: McCrawley's Case reaffirms the full power of such a legislature.. to regulate its own constitution McTiernan J dissented arguing that a manner and form requirement reduces substantive legislative powers. Notes 1. Entrenchment itself does not require any particular procedure 2. Entrenching provisions are restricted to manner and form 3. Entrenching provisions cannot prescribe the contents of future legislation cannot abdicate legislative power West Lakes Ltd v South Australia (1980) Facts: The SA government and a company made a number of agreements regarding development of a suburb. These agreements were then included in and given the force of legislation. The legislation provided that any amendments to the agreement as provided in the legislation will only be effective if consent is granted in writing by the company. Amendments proposed so that the consent of the company was not required. Company brought proceedings to prevent the amendments. Held (SA SC): The executive cannot fetter Parliament by entering into contractual obligations Prior consent of a non-legislative body cannot control the legislature (does not prescribe a manner or form of lawmaking.) The only exception is a referendum of the people as in Trethowan's case. King CJ: Ministers of State cannot... by means of contractual obligations entered into on behalf of the State fetter their own freedom... to propose, consider and... vote for laws... 4. When an issue arises under s5 of the CLVA or s6 of the Australia Act, the first question to be asked is whether the amending law is a law in respect of the constitution, powers or procedure of the Parliament. Only if it is such a law, it then becomes necessary to ask whether there is any manner and form which later law must be passed. SE Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 Fact: s6 of Real Property Act purported to prescribe the contents of future legislation. Error in legal analysis: Court should have asked whether SE Drainage Amendment Act was a law respecting the Constitution, Powers and Procedures of such legislature. High Court asked whether the earlier law, rather than the amending law, concerned the constitution, powers or procedure of the legislature In any event, neither law did (real property and costs of drainage construction) 5. In respect of the constitution, powers or procedure of the Parliament 6