Vous êtes sur la page 1sur 67

Table of Contents

Introduction to Rule of Law............................................................................................... 3

Formal and Substantive ROL (Tamanaha, 2004) ................................................................. 5
Mock scenarios: compatible with ROL? ...................................................................................... 5

Constitutionalism ............................................................................................................. 6
Constitutionalism ............................................................................................................. 7
Rule of Law ....................................................................................................................... 8
Constitutionalism, Judicial Review and Separation of Powers ............................................ 9
What Australia inherited and what it rejected from the US and UK systems ............................. 11
Responsible government ......................................................................................................... 11
Rule of Law in UK vs US – Stephen Gayeler .............................................................................. 11
Tension between Federalism & Responsible Govt. in the Australian Senate .............................. 12
Overview of Constitution ........................................................................................................ 13

Judicial review ................................................................................................................ 13

Parliamentary Sovereignty .............................................................................................. 14
Parliamentary sovereignty gains its authority from representative democracy ......................... 15
Limiting the power of parliamentary sovereignty ..................................................................... 15
Limits of Parliamentary Sovereignty ........................................................................................ 16
Judicial Review ....................................................................................................................... 16
Problems with Democracy....................................................................................................... 17
Rights and Freedoms ............................................................................................................... 17
The Legislature and Judiciary ................................................................................................... 17
Sovereignty and Self Determination ........................................................................................ 18
Treaty making overseas........................................................................................................... 20
Agreement making in Australia ............................................................................................... 21
Conclusion .............................................................................................................................. 22
Race and the Australian Constitution ....................................................................................... 23
20th / 21st Century developments .......................................................................................... 23
The reconciliation process ....................................................................................................... 25
Expert Panel recommendations 2012....................................................................................... 26
From the CLVA 1865 to Federation .......................................................................................... 26

Federation ...................................................................................................................... 28
Reasons for Federation ........................................................................................................... 28
Creation of Federation ............................................................................................................ 28
What were the States worried about with regards to federation? ............................................ 28
Benefits of Federalism – Brian Galligan and Cliff Walsh ............................................................ 28
Evolution of Federations ......................................................................................................... 29

We are federated but are we legally independent? ......................................................... 29

Summary of Australian Legislative Independence .................................................................... 30
Which Act applies? - Copyright Owners Reproduction Society Case 1956 .................................. 30
Does UK still have any influence? - Sue v Hilll ........................................................................... 30

Popular Sovereignty........................................................................................................ 31
Does popular sovereignty give legitimacy to the constitution? ................................................. 31
1.1 Composition ................................................................................................................. 32
1.1.1 Eligibility........................................................................................................................... 32
1.1.2 Restrictions on Eligibility.................................................................................................. 32
1.1.3 Restrictions on Eligibility – Cases..................................................................................... 33
1.1.4 Representativeness and Diversity ................................................................................... 35
1.2 Powers and Functions ................................................................................................... 36
1.2.1 Representation ................................................................................................................ 36
1.2.2 Legislative Power ............................................................................................................. 37

The Federal Parliament ................................................................................................... 38

Democracy is not in our constitution, neither is the Separation of Powers ................................ 38
The right to vote at Federal Elections? – S41 ............................................................................ 38
On Implied Rights in the Constitution….................................................................................... 40

Limitations on State Constitutions .................................................................................. 41

Limits originating from the Commonwealth Constitution ......................................................... 41
Limits resulting from the phrase ‘Peace, Welfare and Good Government’................................. 41
Limits based on abrogation of ‘deeply rooted rights’ ................................................................ 42

Constitutional amendment ............................................................................................. 42

Alternative Procedure of Legislation ........................................................................................ 42
Amending the constitution of the courts.................................................................................. 43

Manner and Form Requirements .................................................................................... 43

Parliamentary Sovereignty Paradox: Inability to bind future Parliaments ................................. 43
Double Entrenchment ............................................................................................................. 43

Composition & Royal Prerogative.................................................................................... 44

Powers and Functions ............................................................................................................. 44
Modification of prerogative powers ........................................................................................ 45
Prerogative Powers – Cases ..................................................................................................... 46

Executive Accountability ................................................................................................. 47

Delegated Legislation .............................................................................................................. 47
Judicial Review of Administrative Action for the Executive ....................................................... 48
Non-Judicial Methods – Responsible Government ................................................................... 50
Other Methods (Integrity Institutions, Merits Review, The Ombudsman) ................................. 52
Composition and appointments .............................................................................................. 52

Defining Judicial Power ................................................................................................... 53

Separation of Powers ...................................................................................................... 53
Separation of Federal Judicial Power ............................................................................... 54
Persona Designata Rule ........................................................................................................... 55

Judiciary Class Notes ....................................................................................................... 55

Judicial power in the constitution – B&W ................................................................................ 55
The judicial power cake ........................................................................................................... 55
Is this judicial power?.............................................................................................................. 56
Separation of judicial powers .................................................................................................. 56
Discussion questions ............................................................................................................... 56
Exceptions and anomalies ....................................................................................................... 57
Accountability - Michael Coper ....................................................................................... 59
Human rights in Australia................................................................................................ 61
Human Rights Protection in Parliament – Williams and Burton................................................. 61
Existence of Negative/Positive claims in Australia – B&W ........................................................ 61
ACT and Victoria Bills of Rights ................................................................................................ 61
Common Law and Protection of Rights - Meagher .................................................................... 62
Common Law – Spiegelman ..................................................................................................... 62
Q. Who is responsible for the (a) initiation and (b) ratification of amendments to the Australian
Constitution? What other models might exist in this respect? Are they preferable? .................. 64
Upcoming Referendum ........................................................................................................... 65
Reasons Why Constitutional Amendments Fail ........................................................................ 65
Key Chapters........................................................................................................................... 67
Sections .................................................................................................................................. 67

1A Introduction to Rule of Law

Introduction to Rule of Law
Tamanaha “On the Rule of Law”
Endorsement of ROL is ubiquitous. No other idea has ever received as much global endorsement
and this is unparalleled in human history. This is despite numerous difficulties which have developed
after the fall of communist regimes eg:
 Conflicts  Economic crises
 New divisions between  New divisions between rich/poor
Islamic/nonislamic countries countries
HOWEVER: there is little agreement as to what ROL actually means – it is an elusive concept that is
rarely articulated.
 Academics argue that the phrase ‘ROL’ has become meaningless due to overuse
 Many governments want ‘rule by law’ as opposed to Rule of Law
 There has been a deterioration of rule of law in the west (notably America)
 Rule of law originally developed with non-liberal governments
Support of the rule of law is not exclusive to the west, it is also supported in many countries (though
these countries often have corrupt governments where ROL is suspect). In many of these countries
democracy has been rejected and individual rights admonished (particularly in Islamic countries).
Some examples include:
 China  Zimbabwe
 Russia  Mexico
 Iran  Afghanistan
ROL & Economic Development
 Many argue that without RUL, sustainable economic development is impossible
 The World Bank and IMF provide financial assistance to countries that are developing on the
condition that they adopt ROL. This creates an environment for financial certainty, economic
growth and investment
 However, millions of dollars have been spent developing ROL around the world with small results
Risks of ROL?
 Rule by judges  Incompatible with social welfare state and
distributive justice?

Possible ingredients of ROL

 Individual rights  Equally applied and known law?
 Democracy
i. Both an end and a means to an end – elusive
ii. Works to curb arbitrary use of power by the judiciary, executive and legislative
iii. Accountability
iv. Predictability, certainty
v. Justice and fairness
vi. Difference between rule of law and law not of man
vii. Functioning society / legitimacy
viii. It is because of ROL that we are not subject to rampant indeterminacy
 ROL is not just a matter of setting up institutions or doctrines –about culture & we need to keep in
mind the context e.g. with Stalin in Russia, there was a lot of rule, a lot of law, and not a lot of ROL
 There is a difference between formal versus substantive law: there are several different types of
the rule of law from formal to substantive
 Mutual reinforcement of the Rule of Law is really important – those in power affirm that they are
bound by the law e.g. Assange seeking to sue Gillard for defamation
 Rule of law has to accept the reality of executive discretion – they must be able to coexist – some
decisions have to be made which are sensitive to context
 Rule by judiciary: In any discussion of the rule of law the judiciary will become the focus – there
is a danger that rule of law could become rule by judges – who watches the watchmen…
 Governments can only do things which are within the legal limits of their powers

Tamanaha; Three Themes

 Government Limited by Law

- Governments must operate within the framework of the Law
- Power of the Sovereign -> amendments can overturn the framework
- Key to successful implementation of RoL is based on setting limitations on Government
 Formal Legality
- Public, prospective laws, with the qualities of generality, equality of application and certainty
- Rule-bound order established and maintained by Government
- Fair Hearing – Rights based
- Predictability
 Rule of Law, Not Man
- laws are not self-interpreting or applying
- Separation of Powers doctrine protected the Judiciary but also lessened the potential for abuse
the may come from Judges’ imposed power
- Rule of Law may become Rule by Judges if they are decided to have the final say on matters

Formal and Substantive ROL (Tamanaha, 2004)

Formal Rule of Law Substantive Rule of Law

Formal: oriented around process and sources of Substantive: More focused on the content of the
law, relatively less focus on the content of the law – is it justified, is it in keeping with moral
law, doesn’t take into account cultural values of principles? Takes into account society and the
society. (Manner in which law was developed) response of the public (social values). Considers
 the law needs to be clear and public what is in formal formulations, but includes
 The formal rule is more of a structure of how requirements about the content of the law.
things can be built onto it – like a process  Kind of saying: formal plus a second
 You are asking: has the law been passed by question: is it a good or bad law?
process? – not is it any good  Is it moral? Is it lined up with social values?
 Prospective  Human rights?
 Focused on the legality – was it legal to be  Social welfare
passed?  Substantive equality
 Was it a valid law in a very valid legal sense:
did it pass the house and the senate with
majority, did it receive royal assent
 Body that passes the law needs legal
o There must be popular consent to the
institutions with power
o That element is taken care of in
Australia because referendums are
held every year and we live in a
o equality of application

Mock scenarios: compatible with ROL?

1. A law passed today imposing a fine on any person who submitted their 2012 tax return after
31 October 2012
BREACHES   If you got rid of the retrospectivity you’d be happy from a
substantive rule of law perspective. If it was prospective it
 Not prospective – can’t be retrospective
would be ok
 If you’re punishing people for not paying their tax returns –
does this punish a certain demographic of the community
2. A law preventing protest within 1000m of Parliament House
 Is compatible because it preserves the
processes of government so that they BREACHES 
cannot interfere with governmental  Infringes on rights to freedom of speech
process  Morality
 If it has passed validly – not in breach of  Human rights
the constitution then there is nothing
wrong with it in a formalist sense
3. A law authorising discounted medicine for persons to the age pension
 Not fair
 Perhaps it should be means tested
 Departure from treating
 Other groups also have barriers to access
everyone equally
 Provides substantive equality
 Equitable though not strictly fair
 People with less means should have access to medicine

 Less contested concept than Rule of Law
 Can be seen as where power is distributed – encapsulates institution facilitating power by
identifying a source
 Governments establish strong chain of command
 Another dimension: it is about how power is constrained; how are citizens protected against
arbitrary use of power
i. Facilitates creation of institutions
ii. Regulates relationships between institutions
iii. Regulates relationships between institutions and citizens
 Values emerge in constitutions (SA constitution is explicit about values)
 Adjusts for the social values of the time – a bit like an agreement with the people: a social
contract. In a democratic sense, we will have the right to update the constitution. Though we living
today have not given consent to the constitution, our acquiescence to the law implies consent to
the provisions of the constitutions

Distinction of Description
Written Constitution: where the constitution is codified in writing e.g.
Australian constitution plus, common law. In a written constitution, most
things are codified but not all. The Australia Acts and the Westminster acts
are also part of the constitutional framework. The states are another place
Written V. Unwritten we have constitutions.
constitution I. The NSW constitution is the Constitution Act 1902.
Unwritten constitutions: were constitution is not codified e.g. there is no
document in the UK, all of the constitutional provisions permeate the law.
They have the Magna Carta, the Act of Settlements etc. Though it is
unwritten, this is a bit of a misnomer since there are important written
documents in unwritten constitutions (also in NZ).

 Flexible constitution: can be changed by an ordinary act of parliament

Flexible vs. rigid  Rigid constitution: must be amended by a procedure (e.g. Australian
constitutions constitution must be amended by referendum)

 Political constitution: held account by political means – Parliament,

committees, debates
o Putting trust in political process to protect society
o Downsides: minorities can be disadvantaged because politics is
about majority rule, if you don’t have the same resources as the
majority you will be disadvantaged, people with deep pockets will
Political vs. legal be able to go to the court more than those with less money
constitutions  Legal constitution: principle institutions are held to account through law
in the court room
o An independent judiciary is really important for legal
constitutionalism to work
o Downsides: only people with legal power would be able to have
influence, courts have limited capacity to enforce their own
decisions – really depends on if the executive and parliament
follow through on their decisions

NOTE: certain preconditions have to exist for these to be effective: having a democracy (e.g. an
open parliament, vigorous public debate, an active democracy, deliberation, participation,
transparency). If citizens are disengaged from the process, who will hold officials to account?
Australian constitutionalism is a mix between the two; UK was historically political and becoming
more legal

1B Constitutionalism & the Rule of Law
Adam Tomkins “Public Law” (2003) pg.4
Constitutions serve three broad functions
1. Provide for the creation of institutions by the state
 Legislature: to make laws
 Executive agencies (government, local authorities, cabinet and regulations
 Judiciary: to apply and interpret laws
 Other: defence, head of state
2. Regulate relations between those institutions and one another
 The Separation of Powers, Rule of Law and Federalism are ideas which
constitutions may use to regulate the legal and political relations of these
institutions and the State
 When institutions disagree – someone must have the final say and all
constitutions answer this in someway [e.g. in the US the Supreme Court has the
final say whereas in the UK there is sovereignty of parliament (parliament has
final say)]
3. Regulate relations between institutions and people
 Most constitutions embody certain rights (e.g. democracy, human rights)
Constitutions and Culture
 Constitutions do not just embody these three functions, they also embody the fundamental
principles of a nation’s values
 You cannot understand a constitution without understanding the values which underpin it
 Therefore public law is about politics

Constitutions as Contracts
 John Locke: constitutions are high level contracts between the citizenry and government
 However: these contracts involve no bartering – we inherit government (not like contract)
 We are still stakeholders in the constitution, we are a part of it and we can change it (if we
advocate this)

The Difference Between Political and Legal Constitutions

Political Constitution Legal Constitution
Political Constitution: those who exercise political Legal Constitution: principle way government is
power (government) are constitutionally accountable held to account is through the law, court room and
through political means and through political judiciary
institutions (parliament)  Legal systems and judges must be independent
 More closely aligned to parliamentary from government and political influence
sovereignty  Judges not democratically elected
 Requires vibrant and strong politics  Effectiveness of LC less obvious than PC
 High level of impendence from government  Law is expensive
 PC makes sense because elections are  If judge misbehaves then “who watches the
fundamentally political acts – governments are watchmen?”
only legitimate if they have the support of the  Does not ignore minorities (everyone can sue)
majority  No discrimination
 More transparent and participatory (difficult in  The duality of legal and illegal is sometimes not
practice) effective at solving social problems
 Ignores majority of minorities
Lewis Henkin (1994) “Commentary and Materials on Aus Federal Constitutional Law”
Elements of constitutionalism are:
1. Popular sovereignty: people are source of the constitution’s power and authority
2. Rule of law: laws which government must abide by
3. Representative government: the Australian political system is one in which the people elect
members of Parliament to represent them
4. Separations of powers and limited government: a system of checks and balance to prevent
arbitrary abuse of power
5. Respect for individual rights
6. Institutions to monitor the constitutional blueprint
7. Self-determination: the rights of citizens to choose their political affiliation

Rule of Law
Tamanaha “On the Rule of Law”
Rule of Law can be pared down to two categories:
Formal Rule of Law Substantive Rule of Law
 Formal ROL  Substantive ROL
o Address manner in which the law was o Accept that ROL has formal attributes
promulgated o Certain substantive rights are also
o the clarity of ensuring norm inherited based on ROL
o Do not seek judgement on the law itself o These rights are used to distinguish
o Doesn’t matter whether it good or bad between good and bad laws
There are three broad themes which have governed the ROL debate:
1. Government limited by law: the sovereign, the state and its officials are limited by law. This
is generally to restrain government tyranny. This concept can be attributed to:
 Governments needing to abide by currently existing positive laws
 When government officials seek to change the law they cannot do so in just any way
that they desire – there are restraints on their law making power (divine law, customary
law, human and civil rights)
This creates philosophical paradoxes – Hobbes and Aquinas theorised that ROL is
conceptually impossible because it is illogical that the sovereign can be curtailed by the very
power that it wields. However, historically, monarchs and kings acquiesced to the rule of law
implicitly by:
 Accepting that the law as binding (not always voluntarily – e.g. when King John was
bound by the Magna Carta under duress)
 It was widely understood that the monarch and his government officials operated under
the laws which applied to everyone
 Routine conduct of government officials implied that they were subject to legal
constraints just like everyone else
2. Formal legality: public, prospective, stable, general laws are equally applicable with a fair
hearing within a judicial process.
 Dominant theme of liberalism and capitalism
 Individuals know what conduct will expose them to sanction by the government
 There is evidence to suggest that there is a positive correlation between formal legality
and economic development
 Limitations of formal legality:
i. It is compatible with a regime of laws with inequitable or evil content or
authoritarian/non democratic regimes (e.g. slavery, segregation, apartheid)
ii. Effective system of ROL may actually strengthen grip of authoritarian regime
iii. Requires that citizens forego objectives of distributive equality (a more equal
distribution of social goods)
iv. There are many circumstances where formal legality is not appropriate or social
3. Rule of Law not Man: to live under the ROL is to not be subject to the vagaries of other individuals –
whether it is monarchs, judges, government officials, or fellow citizens.
 Shielded from human weaknesses such as bias, passion, prejudice error etc.
 Limitations of Rule of Law not man
i. However – in practice doesn’t really work because laws are interpreted by men
ii. Reintroduces human laws into the legal process
iii. Danger that ROL may become law by judges’
Adam Tomkins & Colin Turpin “British Government and the Constitution”
Accountability: a liability or obligation attaching to those invested with public powers or duties
 Retrospective: allows for post mortem of decision
 Democracy: those elected by the people are given power for the public good
 Obligation to account to independent agency (e.g. legislature, court or tribunal)
 Sometimes internal: e.g. superior officers within an organisation
 Reparations: should be made to those who were the victim of unaccountable conduct

AV Dicey “Introduction to the study of the law of the constitution” (1959)

 Supremacy of the law is characteristic of the English constitution.
 3 Main conceptions of ROL.

1. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the courts of the land. I.e. man can
only be punished if he has breached the law.
2. No man is above the rule of law and every man is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunal.
3. General principles of the constitution such as the right to personal liberty, are with us as a result of
judicial decisions determining the rights of the private person in particular cases brought before the
courts.  Constitution is spread by the Rule of Law.

3 Definitions of ROL:

1. Absolute supremacy of regular law, rule by law and law alone.

2. Equality before the law.
3. Rights of individuals are defined and enforced by the courts.

WI Jennings “The Law and the Constitution” (1959)

 Public authorities do possess wide discretionary powers.
 Dicey did not consider powers of authorities. He thought that the British constitution was
concerned almost entirely with the rights of individuals.
 Parliament can pass what legislation it pleases. It is not limited by any written constitution. Its
powers are wide and unlimited.
 In most countries, not on the administrative authorities but also legislature have powers limited
by constitution.
 In England, administration has powers limited by legislation but the powers of legislature are not
limited at all.

 Individual rights adequately protected by the ordinary common law, and did not need special
protection through a juridially enforceable Bill of Rights or any other mechanism directed to
the extension of legislative and govt. power.
 Runs through English constitution, inseperable connection b/w the means of enforcing a right
and the right to be enforced, which is the strength of judicial legislation.
 Right to individual freedom is part of the constitution because it is inherent in the ordinary law
of the land.
 Right to individual freedom is inherently part of the constitution.

Constitutionalism, Judicial Review and Separation of Powers

B&W “Australian Constitutional Law and Theory” pg 2 - 11
Constitutional Law
Constitutional law (Dicey): ‘all rules which directly or indirectly affect the distribution or the
exercise of the sovereign power of the state’
Jennings: ‘The rules governing the composition, powers and methods of operation of the main
institutions of the government, and the general principles applicable to their relations to the citizens’
 Australian constitution is a hybrid:
o UK: took essence of Westminster system of representative and responsible
 Representative government: govt by the people through elected reps
 Responsible government: executive arm of govt responsible for parliament &

= authority derived from

Executive Legislature Elected reps Citizens

o USA: that citizens need to be protected from power of government by distributing

power so that there is no single chain of command
 Separation of powers: allocates power to legislature, judiciary and executive
 Federalism: allocates governmental powers among different political and
territorial units
o The Australian constitution is both written and unwritten – written document is
Commonwealth of Australia Constitution Act 1900; complemented by Statute of
Westminster 1931 and the Australia Act 1986 (Cth)

Judicial Review
The Australian Constitution assumes that, in any case where a statute is enacted by the Parliament
of the Commonwealth or by any Australian State or Territory in a way that exceeds the legislative
powers recognized or conferred by the Constitution, or infringes some express or implied
constitutional limitation on the permissible exercise of those powers, the courts (and in practice
especially the High Court) have the power to declare the enactment to be unconstitutional and
therefore invalid.

Marbury v Madison 5 US (1 Cranch) 137 (1803)

 Marshall CJ: people have the right to establish principles for their future government that
will be conducive to their happiness - this is a fundamental right of Americans
 Written constitutions form the fundamental and paramount law of the nation - if a law made
by parliament does not abide by the constitution then it is void
 If a government creates a law which does not abide by the constitution – are the courts
bound to follow it? It is the duty of the courts to interpret what the new law is
 If two laws conflict with each other the courts must decide on the operation of each within
the bounds of the constitution

JR Lucas “The Principles of Politics” (1966)

 The combination of Constitution and Supreme Court has proved in practice an effective
check upon the powers of the other organs of government in America
 The question then arises about the role of the Supreme Court: if the Supreme Court is the
sole authoritative interpreter of the Constitution, it will be argued by proponents of the
various doctrines of sovereignty that in the United States sovereignty is vested in the
Supreme Court
 The Supreme Court takes a generous view of its interpretive powers, and does not feel
restricted to determining the semi-historical question of what the words of the Constitution
were meant to mean when they were adopted: and secondly, the decisions of the Supreme
Court are effective
 The Supreme Court can only adjudicate disputed cases, and cannot promulgate laws… the
restriction on initiative does confine the Supreme Court’s powers to those questions on
which the citizens of the United States are not all agreed
 If the Supreme Court were thought to be abusing its position as interpreter it would lose
respect and cease to be effective

Separation of Powers
Baron de Montesquieu “The Spirit of the Laws” (1949)
 In every government there are three sorts of power: the legislative, the executive in respect
to things dependent on the law of nations, and the executive in regard to matters that
depend on the civil law
 When the legislative and executive powers are united in the same person… there can be no
liberty… Again there is no liberty, if the judiciary power be not separated from the legislative
and executive
 There would be an end of everything, were the same man or the same body, whether of the
nobles or of the people, to exercise those three powers
 NOTE: based on a study of Locke’s writings and an imperfect understanding of the
eighteenth-century English Constitution – concerned with the preservation of political liberty

O Hood Phillips & P Jackson “Constitutional and Administrative Law” (1987)

 The categories are inclined to become blurred when it is attempted to apply them to the
details of a particular constitution
 THERE MUST BE SOME OVERLAP: a complete separation of powers, in the sense of a
distribution of the three functions of government among three independent sets of organs
with no overlapping or co-ordination, would (even if theoretically possible) bring government
to a standstill

G Carney “Separation of Powers in the Westminster System” (1994)

 No current constitutional system which adopts a complete separation of powers.

 The strict doctrine is only a theory and it has to give way to the realities of government
where some overlap is inevitable. But while permitting this overlap to occur, a system of
checks and balances has developed.

What Australia inherited and what it rejected from the US and UK systems
 or  Description
 Representative government: representative democracy is a variety of democracy
founded on the principle of elected people representing a group of people, as
opposed to direct democracy
 Separation of powers: a SOP; not necessarily same one
 Federalism: a system of government where power is divided by a national

 government and state governments - enumerated powers to federal government

and not the state government
 Judicial review: establishment of a supreme federal court –idea that the court has
the last say & the constitutional validity of the constitution
 The supremacy of federal laws over State laws in cases of inconsistency
 Written constitution: is (rigid) the paramount law of the land
 Bicameral parliament: a parliament with two houses (the senate and the house of
representatives) – in US there is an equal representation of states regardless of
population; Australia has adopted this. Queensland is a unicameral parliament it
abolished its bicameral structure in 1922
 Federalism: US and Australia constitutions specify what the national government
can do and the States have the residue (everything else)
 Australia has steered away from private rights: there is no explicit rights protection

 
No to republican government: queen is still head of state
 We fused the legislature and executive branches of power – no strict SOP
 Unwritten conventions
 Heriditary head of state - a constitutional monarchy
 Responsible government: a conception of a system of government that
embodies the principle of parliamentary accountability, the foundation of the
Westminster system of parliamentary democracy
  Upper house can’t originate or amend money bills
 Priviledges of house of commons: here are a series of practices built up
over time (e.g. where a member of parliament is in parliament they are immune
from defamation – preserve integrity of debate)
 No bill of rights

Overview of key concepts

Who has the final say? In our system it is the courts (same as US) but not the UK

Responsible government
 Doing our best to express majority will at all times
 Chain of command – continuing accountability
 Power emanates from the crown, who are responsible for the executive, who are responsible
for the parliament, who are elected by the people
 Crown > Executive > Parliament > People
 In the US system the president does not sit in congress due to a strict separation of powers

Rule of Law in UK vs US – Stephen Gayeler

 There is no responsible government in US  ROL is implied – no written constitution

 Strict SOP – President is not answerable to  UK has an assumed attitude of limited
congress. Strict SOP was result of US government – the laws that end up being
becoming independent through revolutionary passed end up being in line with this
war – SOP was to protect against tyranny  No judicial review
 Australia did not have such a civil law so  No bill of rights
there is no strict SOP  No strict separation of powers

 NOTE: even though Tamanaha says there are ingredients which are necessary for ROL; UK
seems to have none of them - yet ROL still exist in the UK.
 THEREFORE: ROL is not just about institutions but also about rules and setting: there exists an
underlying assumption that government will operate within certain limits - some things have helped
contribute to that over the years: Habeus Corpus Act, Magna Carta and the Common Law. It is
widely expected commitment that government should operate within legal limits.

Tension between Federalism & Responsible Govt. in the Australian Senate

 Federalism: will of the majority of the states. In Australia this is represented in the SENATE
o Price of federation was that senate seats were given an equal number of seats
(Original states get 12 each)
o The territories get 2 reps each
o Very difficult to get a majority in the senate – still frustrating will of majority, but along
party lines not state lines
 Responsible government: will of the majority of the people
o Number of reps is determined by population: NSW 32% of population, ~32% of seats
 Originally the will of the majority was frustrated by the minority of states
 NOW THE SENATE IS MUCH MORE PARTY RUN – was originally more of a state house, not a
majority house – however quickly after election, the senators started to vote along party lines –
state of origin was not as important – still a house of review but more along party lines

2A A Washminster Hybrid
Overview of Constitution
Jeff Goldsworthy “Australia: Devotion to Legalism”
 Federation of six states enacted by UK parliament in 1900 when Australia was part of British Empire
 Constitutional monarchy where Queen is represented by Governor General at Federal level
 1986: authority of UK extinguished
 Though the Constitution gets authority from the Queen – it also gets authority from the Australian people
 No constitutional recognition is given to Aboriginal people – referendum occurring soon on this issue
 The constitution can only be amended by a law passed by parliament which is also approved by referendum
which garners the approval of the majority of states as well as the majority of the Australian populace

Judicial review
Judicial review: the doctrine under which legislative and executive actions are subject to review (and
possible invalidation) by the judiciary. Usually it is judges who perform judicial review → well versed in
objectivity and interpretation
administrative law

Legislative Action: Review of Government

constitutionally valid? Action: was decision
lawful? (e.g. s 75 judiciary
power to deal with issues
against officers of the
Structural JR: rules for operation Commonwealth – some
Rights based JR: interpreting rights as protection of judicial review
of government based on the moral concepts – difficult to interpret
interpretation of the vertical & of executive action
 Dialogic forms of JR take into account
horizontal SOP in the constitution international HR legislation
- this often goes to federalism
 Stone: complex case law

Merits Review: review facts, laws & policy Judicial Review: legality of decision
 Very broad  by courts
 New decision can be made  very narrow
 By tribunals: branch of the executive
 Put in shoes of original decision maker
 There is internal & external merits

Administrative Investigation: Commonwealth Ombudsman has wide powers to investigate complaints about
administrative actions of Aus government agencies. The Ombudsman makes recommendations to government
bodies after its investigations. It can hold government bodies to account by writing reports of its recommendations or
bringing investigations before parliament
• AHRC provides similar function in investigating human rights or discrimination claims

What justifications are advanced for giving the courts a power of judicial review?
 Constitution is higher law – must be protected  JR is an interpretive role: interpreting
 Parliament should not have this task – breach legislation and constitution → role specifically
of SOP; courts must be independent suited to these learned judges
 Court is the least dangerous branch (independent and interpreter of laws)
o S 76: gives court jurisdiction for review of government action
o S 30: of Judiciary Act talks about HC having original jurisdiction in matters of
interpretation. Relates to S76 of constitution
o It is ASSUMED that judicial review exists in the Australian system
o Stubbs talks about how the drafters of the Australian constitution were familiar with US

system of JR and assumed it would be implemented at federal level

Is Judicial Review consistent with a democratic system of government?

Argument in favour Argument against

- Judges are needed to keep watch over the - Sometimes judges may bring their own
parliament – preserve democracy and help to values to bear against interpretations of the
prevent against undemocratic majoritarian constitution
decisions - Decisions that judges make may be out of
- Democracy is also about impartiality – putting line with what most of Aus actually wants
in a system which works for everyone - It is undemocratic – the more democratic way
o e.g. the parliament tried to ban the is to leave those difficult interpretations in the
communist party in 1951 – this is hands of parliament
undemocratic. This was prevented by the - Judges are not democratically elected and so
High Court and preserved democracy are not compelled to answer for the people –
o e.g. Mabo: making sure that the voice of minority in the population – taken from a
the indigenous people are preserved privileged part of society and are not
- Democracy means more than majority will – it representative of the wider population
is important in a constitution you can put - If judges make a poor decision it is very
under lock and key certain democratic values difficult to remove a judge
which are immune from interference from - Should you have a small number of judges
parliament (e.g. if the majority suddenly didn’t frustrating the will of the majority by going
want elections, the courts could prevent this) against the will of democratically elected
o e.g. Roach case: criminals in gaol were parliament
going to have their right to vote taken
away – this was stopped by the courts
- There are limits to judicial review –has to wait
for a case to be brought, then it can exercise
its powers. This puts strong limits on JR

Parliamentary Sovereignty
1. How does Dicey define parliamentary sovereignty? How does he define the rule of law?
a. Parliamentary sovereignty
i. Parliament has the ability to make or unmake any law
ii. No person or body can override legislation of parliament
iii. Courts have a limited role – they also have the role of statutory interpretation (no
judicial review)
b. Rule of law (Dicey’s conception of the ROL is formal)
i. Supremacy of regular law (not arbitrary power)
ii. Equal application of law (e.g. can’t single out a group for special treatment)
iii. Faith in common law to protect rights – you don’t need a constitution to have
rights protection (right protection is inherent in the system)
2. Where parliament is sovereign, is it subject to any kind of constraints? Consider the
perspectives of Dicey himself, and TRS Allan.

Theorist Opinion
1. External limits: people don’t obey the law (pg. 83 of textbook). People simply won’t
obey bad laws and will re-elect the government at the next election
Dicey 2. Internal limits: legislature has moral feelings and then will choose not to legislate in
matters. Members of parliament have morale character that will prevent them from
making unjust law
1. You can’t promulgate laws that go outside of moral and democratic boundaries –
laws that infringe representative democracy don’t deserve to be adhered to
2. Democracy is an essential component in a sovereign parliament – if you start
making laws which are opposed to democracy they would be avoid because they
would be rejected
Allan 3. Parliamentary sovereignty is no longer absolute in the UK even though it originated
in the UK
4. Political morality may direct judicial resistence as opposed to judicial obedience
5. Allan is asserting a limited role of the courts in judicial review
Parliamentary sovereignty gains its sovereignty
authority from representative democracy
3. Discussion topic: “Parliamentary sovereignty is democracy
compatible with the rule of law”

Argument in favour Argument against

- Legislation as placing limits on government - Risk – absolute power with no real check >
actions abuse of power
- Allan – ‘representative democracy’: if you o e.g. the fox hunting case in the UK –
agree with Allan that parliament has an o e.g. Retrospective laws
internal logic then this will serve the ROL – o e.g. Bikie laws
you cant just take rights away from certain - Civil liberties
rights in society - Minority rights
- Internal limits on parliament - External/interest limits may not be effective
- External limits on parliament: if parliament - Parliaments have performed actions which
acts outside of its boundaries then laws will have threatened ROL
not be followed

Conclusion: checks do a decent job of protecting rights and protecting ROL - but there probably
should be more than just parliament to preserve ROL
- Paradox: parliaments instil rule of law and are also a threat to it

Limiting the power of parliamentary sovereignty


 Independent judiciary
o Prevent the executive and its many agents from imposing their powers upon the judiciary
 Legal liberty
o Equating democracy with liberty is an error - liberty is not the right to do whatever one
chooses, then everyone would be under constant threat of others doing the same
o Liberty exists only if people are free from tyranny

Alexander Hamiltyon, James Madison *& John Jay “The Federalist Papers”

 Madison: “democracies have ever been spectacles of turbulence and contention; have ever
been found incompatible with personal security or the rights of property; and have generally been
as short in their lvies as they have been violent in their deaths”
 However – it was not questioned that governments should be democratic. Mechanisms were
identified to keep power in check:
o Representative democracy (rather than direct): would allow representatives to exercise
deliberation and wisdom when enacting laws
o Separation of powers
 Vertical separation of powers: between states and federal government
 Horizontal separation of powers: between executive, legislature and judiciary
o Judicial review of legislation
 The supremacy of the constitution would be vitiated by contrary legislation – this
should be invalidated by the courts
 Did not advocate for bill of rights – might narrow protection to those stated in Bill
 Constitutions replace the role of: natural law, customary law in providing legal restraints on the

2B Political & Legal Constitutionalism
Limits of Parliamentary Sovereignty
Anne Twomey “Implied Limitations on Legislative Power in the UK
 Parliament cannot promulgate undemocratic laws – if it does it will be stymied by the courts
 Parliament was a body with limited power – it could not use this power to extend its power and
circumvent the courts
 Limits must apply to the House of Commons to prevent passing laws which are undemocratic
o It would be absurd to allow a democratically elected parliament to destroy democracy
 The Parliament Act could hypothetically be used to dismiss the House of Lords – too much
government power in a bicameral system
o could be used to introduce oppressive undemocratic legislation (eg. anti-terror laws
 There are common law rights so deeply entrenched that they cannot be removed by parliament
 Though there is parliamentary supremacy – the legislature cannot dismiss judicial review
 CONTRA: parliamentary supremacy is so deeply rooted that it cannot be overridden

The Scenario in the UK

 The 1949 Parliament Act amended without approval of the House of Lords (UK COURT)
o The amendments were invalid and therefore amendments to the Hunting Act which were
an extension of the parliament act were also invalid
 Westminster Parliament limited by Parliament Act 1901
 The House of Lords could not determine the validity of an Act of Parliament which was contrary
to the principle of parliamentary supremacy
 Parliament cannot extend the duration of parliament or amend the Parliament Act 1911 – there is
no provision in the act saying it can amend itself
 The extension of the life of parliament is a matter of fundamental constitutional importance

 Judicial review and separation of powers are essential
 Prevents arbitrary abuse of power by legislature and preserves democracy

Judicial Review
Mathew Stubbs “A Brief History of Judicial Review of Legislation”
 In the US the Supreme Court has powers of judicial review
 The court’s job is to interpret the constitution and superior law to that by parliament
Key components of Federalism according to Dicey are:
 Supremacy of the constitution Constitution is supreme and
 Distribution among bodies with different powers the judiciary is the final
 Courts act as interpreters of the constitution interpreter
Adrienne Stone “Judicial Review Without Rights: Some Problems for the Democratic
Legitimacy of Judicial Review”
Australian Constitution and judicial review
 Established in 1901 – 3 branches of government: executive, judiciary and legislature
 Judicial review is final & authoritative – produced complex case laws interpreting constitution
 Mostly structural review
 Controversy in US because there is no express or clear foundation for judicial review
 Australia and Canada: introduction of judicial review challenges to constitutional order

For Judicial Review Against Judicial Review

 Preserves Stone opposes JR of rights – less opposed to structural
elements  Notions of “rights” too vague & contested concepts which are difficult to
necessary for interpret – often takes into account international HR legislation
Democracy  Conveys too much power to the courts
 HR can be interpreted in many different ways which can be problematic for
judicial review – they are moral concepts
 Even if there is a correct HR answer – how are these issues to be resolved?

Problems with Democracy
Christopher L Eisgruber “Constitutional Self-Government and Judicial Review”
Democracy: government by people, exercised directly or elected representatives John Locke
 Majority rule is a common deception – a majority can be only a fraction of the people
represented in a society – 51% could hold a majority – this is hardly democratic
 Government should look after all people, not just the majority
Impartiality: taking into account everyone’s view
 Taking turns is important (e.g. should we build sports stadiums or art galleries?)
 However – it is impossible to take turns on moral issues. Matters of preference and morality
should be treated differently. Majority rule can be undemocratic – can be pragmatically useful
to democracy but not conducive to democracy

Rights and Freedoms

Robert French “The Future of Australian Constitutionalism”
 French is careful not to call “rights” by their name – would rather call them “freedoms”
 Freedoms operate as conditions on legislative power rather than enforceable rights (e.g. trial by
jury, freedom of religion & freedom from discrimination by one State against residents of another)
o Prohibition against civil conscription laws relating to the provision of medical and dental
services, unjust acquisition of property by the Commonwealth etc.
Legal Constitutionalism and Constitutional Litigation
 Federalism: “federalism… means legalism – the predominance of the judiciary in the
Constitution – the prevalence of a spirit of legality among the people” (Dicey)
 There have been virtually no cases in the past 3 years where a state government has initiated a
challenge to the constitutional validity of a Commonwealth of vice versa
 Some governments ignore inconvenient court decisions (not Australia); though the courts are
sometimes criticised for their decisions rather than their reasoning (Mabo and Wik)
 After Mabo and Wik the courts suffered severe criticism but still continued with their jobs
 Judicial Review: has the potential to stymie the legislative process

The Legislature and Judiciary

Cheryl Saunders & Katherine LeRoy “Perspectives on the Rule of Law”
Parliament: the law maker recognised as having the authority to lay down the general laws by which
the community and government are bound
 Sovereign legislatures bring enforceability to the legislature
 Legislatures can themselves be dangerous if wielding arbitrary power - need judicial oversight
 Paradox: parliament depends on the rule of law and is also a threat to it
Courts: independent arbiters of disputes, in accordance with legal norms. Two additional roles:
1. Determine disputes over the lawfulness of executive action
2. Interpret & apply legislation with principles & procedures designed to protect ROL
 Courts are most vulnerable to breach of ROL because
o they depend on other institutions for appointment and for resources
o Most are constituted by legislation and depend on legislation
 Safeguards against breach of ROL (mostly constitutional)
o Security of tenure and no reduction in remuneration
 Rule of law depends on the vigilance of courts as well as their self-restraint
 Contradictions
 Apex courts effectively make law even though they are not law makers
 Courts must interpret law but are bound by statute law which they interpret (e.g. to what
extent can a court interpret a statute to protect other constitutional values, including ROL?)
 Rule of law linked to constitutionalism as it assumes limits on public power
 Even in UK where there is no written constitution; limits on public power are essentially
constitutionally protected by statute and common law
 Almost everywhere else – constitutions enjoy some express form of constitutional protection
 The Australian Constitution is expressed to be binding but is disputed lending some support to
the notion that acceptance depends on belief in the value of the adherence to the law itself
 Constitution effectively gives judiciary monopoly on judicial power
o S75: also gives judiciary power to deal with issues against officers of the Commonwealth
o Provides some protection for judicial review of executive action

 ROL not entirely entrenched in Aus constitution as it does not preclude retrospective legislation

3A Indigenous Sovereignty & Crown

B&W “Australian Constitutional Law and Theory” pg 152-153
 The governmental structures of the Australian Commonwealth were originally conceived of as
deriving their legitimacy from the sovereignty of the British Parliament and the Imperial Crown
 Yet the pattern of colonial settlement and expansion unfolded against the background of an
older, perhaps competing, source of constitutive normative order for Australia: namely, the
diverse patterns of normative belief and authority expressed through the various traditions and
practices of the indigenous Australian peoples
 Both Mabo (No 2) and the Wik Case took care to avoid any tendency to undermine the formal
constituent structures of national independence. They recognized the customary laws and
entitlements of indigenous peoples only to the extent that the norms of the constitutionally
established nation allowed or required such recognition. Moreover, in both cases native title is
said to continue only when not extinguished
 It is only the functionally more minimal forms of native title, involving no practical interference
with concurrent non-indigenous title or use, which the common law principles permit to survive.
Aborigines and the Constitution
 1902: s 4 of the Commonwealth Franchise Act 1902 (Cth) specifically denied the voting rights
of “aboriginal native[s] of Australia… unless so entitled under Section 41 of the Constitution”
 1962: Commonwealth Electoral Act 1918 (Cth) was amended to extend universal adult
suffrage to Aboriginal people

Sovereignty and Self Determination

Brennan et al. “Treaty”
 Treaty making with Indigenous peoples would be inconsistent with Australian sovereignty as it
would imply recognition of another sovereignty inside Australia: “a nation… does not make a
treaty with itself” (John Howard)
 Sovereignty is about political & legal authority – in the context of Indigenous Australians it does
not necessarily mean international statehood or secession
The Idea of Sovereignty (Jean Bodin)
 Sovereignty 16th century definition: an idea borne out of the chaos of 16th century France that
meant “legal and political authority constructed to be absolute and monolithic as a fortress
against social chaos”
o Notions of sovereignty have evolved far from this original “top of the pyramid” definition
 Sovereignty modern definition: about the power and authority to govern (is sovereignty with
people or institutions like government? Is it an absolute power or a qualified power?). Often
divided into:
o External sovereignty: who has the power to deal externally with other nations
o Internal sovereignty: where power is distributed within a nation’s boundaries
Differing Perspectives of Sovereignty
Perspective Description
 Aborigines were sovereign before Australia was colonised – never
extinguished and remains intact today
 Practice sovereignty different to European nation states – obligations were
not to a monarch but to maintenance of the land
 Self determination: sovereignty rests with individuals and autonomy as a
“people” – ability to make decisions across political, social & economic lives
o Cannot be granted by a Constitution or an institution
Indigenous o Under international law – right to self-determination belongs to
Peoples peoples not to states – “kind of internal sovereignty” Noel Pearson
 1992: Aboriginal communities proposed a model for nation in Australia
 Larissa Behrendt: “recognition of sovereignty is a device by which other
rights can be achieved. Rather than being the aim of political advocacy, it is
the starting point for recognition of rights and inclusion in democratic process”

 Argument for Internal sovereignty: implies renegotiation of the internal
ordering of Australian government to recognise a sphere of autonomy in
which Indigenous peoples can express their sovereign authority and identity
 Australian governments have not engaged with the idea that Indigenous
peoples should have sovereignty – though they have embraced the idea that
they should have self determination
 John Howard: “the very notion of a treaty in this context conjures the idea
that we are two separate nations
o Chose to focus on practical reconciliation at the expense of the treaty
or equal rights agenda – appealed to notions of equal citizenship
 Lisa Strelein: “focusing on citizenship has proved a difficult obstacle for
Government Indigenous peoples, for whom self-determination means more than merely
political rights of participation”
 WA Government (2001): “Aboriginal people have continuing rights and
responsibilities as the first people of WA, including traditional ownership &
connection with the land and waters. These rights should be respected…”
 Canada: recognises the inherent right of Indigenous self governance
o Does not confer sovereignty – must still abide by nation’s laws but
laws can coexist
 US: deals with tribes on a case by case basis and recognises tribes right to
Popular sovereignty: principle that the authority of the government is created
and sustained by the consent of its people (Rule by the People), who are the
source of all political power
 Constitution Act 1901: originally gained authority from British Parliament
 1986: Australia cut its ties with the British legal system through Australia Acts
 New source of legitimacy is the Australian People – supported by s128 of
Constitution which allows change by referendum
 S128 means that sovereignty rests with people – not the courts or legislature
Implications for Indigenous Sovereignty
 Indigenous peoples like any other Australians are part of constituting force
 Legitimacy of nation depends on Indigenous acceptance of Constitution as
much as non-indigenous acceptance
Coe v Commonwealth (1979)
 Facts: plaintiffs claimed that Abos were a sovereign nation and that Britain
had wrongly asserted their sovereignty over Australia
Judiciary  Finding: “not possible to say that Aboriginal people are organised as a
distinct political society separated from others… no legislative, executive or
judicial organs… sovereignty is impossible for law to maintain”
Mabo (1992): findings of Coe were rejected – Aboriginal laws were recognisable
by the Australian legal system and their rights and interests to customary lands
survived the acquisition of British sovereignty
 Left room for the continued operation of some local laws or customs among
Indigenous people to be recognised by Australian law
 Gerard Brennan: colonisation process was change in sovereignty
o By implication, sovereignty existed before 1788 and some customary
law continued after 1788
Yorta Yorta v Victoria (2002): Indigenous peoples rights to land including to
native title, continue to have legal effect only because they are recognised by the
Australian legal system that came into being after settlement
Canada: adopted an interpretive framework based on the idea of reconciling
Crown sovereignty with the history of prior occupation by Indigenous peoples
United States: acknowledged that Indigenous peoples were sovereign prior to
the British. Tribal sovereignty was diminished by occupation but not extinguished :
‘ are more correctly perhaps: denominated, domestic dependant nations’
NZ: Assertion of authority over the North and South islands by the British Crown
was legally effective and that sovereignty in NZ now resides in parliament
1. Acquisition of Crown Sovereignty over the continent is a matter for international law
2. The consequences of that acquisition of sovereignty for the internal distribution of authority
and rights is a matter for the domestic legal and political sphere
3. Whether popular sovereignty is now underpinning the Australian constitution or not, the
constitution can be changed by referendum
4. Australia is not unique in having contested idea about Aboriginal and state sovereignty

B&W “Australian Constitutional Law and Theory” pg 178

HREOC Native Title Report
 The Australian courts have a monopoly on law making
 Paradox: the recognition of native title was premised on the supreme power of the state to the
exclusion of the sovereignty of other peoples
 This assertion entailed that there could thereafter be no parallel law-making system in the
territory over which it asserted sovereignty
 The evolution of the principle of self-determination at international law challenges the notion that
the non-Indigenous state has exclusive jurisdiction over traditional land…
B&W “Australian Constitutional Law and Theory” pg 183
The United Nations Declaration on the Rights of Indigenous Peoples (2007)
 Not a legally binding instrument under international law unlike ICCPR
 "…an important standard for the treatment of indigenous peoples that will undoubtedly be a
significant tool towards eliminating human rights violations against the planet's 370 million
indigenous people and assisting them in combating discrimination and marginalisation…”
 Does not recognise Indigenous rights to self determination

Treaty making overseas

Brennan et al. “Treaty” pg. 87-94
Canada Treaty History with Indigenous
 Hundreds of treaties in Canada between Indigenous peoples and the Crown – many signed
prior to Confederation in 1867 – increasing proportion have been signed since
 Early relations were based on lucrative trade agreements involving fur
 1664: first treaty signed with British Crown: military cooperation and guaranteeing of
 Next 100 years: Practice of entering into treaties for ‘peace and friendship continued
 1763: war between British and French ended with Britain taking control of the French
possessions in North America – guaranteed Aboriginal nations undisturbed possession of
their territories unless they were purchased by the Crown
 Late 1700s: USA war of independence sent flood of British loyalists into Canadian territory
o Put pressure on British to buy land – in return for compensation gained Aboriginal
reserves for hunting, fishing and cultural rights
 1871-1921: covered much of the Canadian landmass and opened up colonial expansion to
the West and South
o Overtime, Crown became more secure in its control over Canadian territory – began
to renege on promises of equal respect through friendship
o Treaty rights of Aboriginal people were abrogated and systems of government
squeezed out by one size fits all model Indian Act 1876
Principles of Treaty Interpretation and the Significance of Federalism
 1867: After Confederation parliament still made treaties with the Indigenous
 Land ceded by Aboriginal nations fell to them – fulfilment of other treaty promises required
provincial cooperation
 Intergovernmental tensions between 3 sides (national government, provincial (state)
governments and Aboriginals)were inevitable
 Canadian courts have become involved: decided that treaties are not international in
character but are legally enforceable
o Developed principles of treaty interpretation
o Theme of reconciliation has been more prominent recently in Canada – seek
principled compromises based on a shared will to live together in a modern
multicultural society
Constitutional Protection
 1960s-70s: Canadian Aboriginals were successful in drawing attention to their inherent
rights as First Nations
 Repatriation: converting a British constitution to more home-grown constitutional document
was an important issue – Aboriginals seized this opportunity to demand that this document
recognise them and their treaty history


S35(1): “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognised and affirmed”. Significant legal impact but Canada can still renege on a
treaty if it can justify the purpose under the constitution
 Prior to 1982 treaties that were meant to protect inherent Indigenous rights had been
steadily whittled away
Land Claims Process and Modern Treaty Making
 In recent times Canada has entered into a 4th period of treaty making
 1973: Calder v Attorney General of British Columbia, the Supreme Court of Canada
indicated that Aboriginal peoples in British Columbia who had not signed treaties retained
legal rights to their territories under native title – though there was no treaty this was
legitimate under common law
 Mid 1970s: comprehensive land claim agreements began to be settled and over the years
the policy broadened to include issues like offshore rights, resource revenue sharing and
involvement in environmental decision making
 1995: federal government decided to recognise the inherent right of Aboriginal self
o Nisga’a Agreement (2000): remains modern treaty that took 25 years of
negotiation and resulted in cash settlement of $190m and established Nisga’a’s
government, 1900 square km of land, entitlements to fish stocks and wildlife
o Now exercises rights of self-government
What can be learned
 Shows enduring nature of treaty relationships – sometimes made hundreds of years ago
 Land, resource and self-government issues are being resolved by negotiation and then
given the strongest sense of legal backing
 Offers model for what treaty process might look like
 Shows need for sophisticated system for negotiating complex agreements that keeps
legalism and bureaucracy under control

Agreement making in Australia

Report of Expert Panel “Recognising Abo & Torres Strait Islander Peoples in Constitution”
 There is strong support among non-indigenous community for forms of binding agreements
between Abo & Torres Strait Islander communities & governmental & non-governmental parties
 Different forms of agreement with indigenous peoples can take:
o Treaties entered into on a sovereign-to-sovereign basis
o Agreements with constitutional backing
o Agreements that are enforceable as contracts; and
o agreements with statutory backing
 Batman Treaty 1835: an agreement between grazier John Batman and a group of Aboriginals
for land - the only occasion on which a colonist is known to have negotiated the occupation of
Aboriginal land with the traditional owners
o Declared void in August 1835 because the Aboriginals did not have the right to deal land
which belonged to the crown
 1913: Williams v Attorney General the non recognition of the treaty “very practical application
of the doctrine that the Crown had acquired full legal and beneficial ownership of all lads of Aus”
 1837: idea of treaty with Aboriginals promoted by Saxe Bannister the attorney general for NSW
 1977: idea of treaty resurrected at National Aboriginal Conference by group of elders
 1979: Aboriginal treaty committee established by group of non-indigenous Australians to promote
the idea of a treaty to include provisions relating to:
- protection of language, law and culture - recognition of land rights
- exploitation of natural resources - self determination
 1988: renewed calls for treaty after bicentenary – constitutional commission found amendment to
constitution was not necessary
 2000: Council for Aboriginal reconciliation provided report to Parliament to “put in place a
process which will unite all Australians by way of an agreement, or treaty…
o Langton and Palmer: note that negotiated agreements had replaced treaties in modern
arrangement for engagement with respect to resource use
 2009: Robert French CJ: dismissed the legal argument used by the former prime minister John
Howard against the reaching of a treaty with indigenous Australia. The Mabo decisions and the
Native Title Act recognised indigenous rights without undermining Australia's sovereignty and
could provide the basis for an agreement. "Such an agreement could recognise and
acknowledge traditional law and custom of indigenous communities across Australia, their

historical relationship with their country, their prior occupancy of the continent and that there are
those who have maintained and asserted their traditional rights to the present time," he said.
"This is a cultural reality which can be accepted without comprising, symbolically or otherwise,
Australia's identity as a nation." Although Aboriginal notions of sovereignty would belong in a
different "universe of discourse", he said, "it would be sovereignty under traditional law and

 Recognition in State constitutions: Recognition of Indigenous Peoples at state level was added
to Victorian Constitution in 2004 and the Victorian Charter of Human Rights and
Responsibilities 2006
o VCHR: s19 protects the “distinct cultural rights” of Aboriginal people
 Queensland government has developed recognition of Aboriginal peoples in the preamble of their
state constitution
 Treaty movement: focus by the Council for Aboriginal Reconciliation has turned to
recommendations for an agreement or treaty through which unresolved issues of reconciliation
can be resolved as Australia is the only Commonwealth nation that does not have a treaty with its
indigenous peoples
o eg.NZ has the Te Tiriti o Waitangi an agreement signed between the British and <500
Maori chiefs, Canada and US have hundreds of treaties dating back to 1600s

Sean Brennan et al. “Treaty”

For treaty Against treaty
 However – treaties have had a subtle and  The experiences of the US, Canada and NZ with
profound impact treaty-making may seem Aus adopting similar
o Treaties could introduce notions of rights, measures less attractive since those peoples are
sovereignty still mired in poverty and their rights violated
o Can introduce ideas of self-government,  These are issues which perhaps no legal
connections to land and economic self- remedy can solve
sufficiency (eg. as per the right to fishing in  HOWEVER: treaty process in Canada has been
Canada and US) slow, complex and expensive
 More accountability for promises made o Early treaties negotiated in duress and
(particularly in Canada where treaties are provisions breached repeatedly
ongoing, frequent and often re-negotiated)  Treaty is only as good as the underlying
 Treaties could have enduring political, legal and relationship and the preparedness for each side
cultural significance by embodying rights and to honour commitments
responsibilities  Many technical and procedural issues:
 “an attempt to express in legal terms the unique o Who will be the parties to negotiations?
relationship between the coloniser and the o What process adopted?
colonised o Legal effect of outcome?
 Way of tackling economic development and o How will it be financed?
tackling social problems in indigenous  Better to forge relationship through constitution,
communities – backed by empirical research bill of rights, common law, government action?

Indigenous People & The Constitution
Race and the Australian Constitution
Report of Expert Panel “Recognising Abo & Torres Strait Islander Peoples in Constitution”
 The preamble of the constitution makes no reference to Aboriginal people
 At federation there were only two references to Aboriginal people:
o S51 (xxvi) (the race power): Commonwealth parliament denied power to make laws with
respect to Aboriginal people in any state, for whom it is deemed necessary to make special
laws. Conferred on parliament power to make laws with respect to “the people of any race,
other than the Aboriginal race in any State, for whom it is deemed necessary to make special
laws” – note amended in 1967
o 1890s convention debates: elucidate that purpose was to authorise Commonwealth to
make racially discriminatory laws
o Edmund Barton (Aus first prime minister and justice of HC) in 1898: race power is
necessary to regulate affairs of people of coloured or inferior races
o CJ Robert French: purpose to control, restrict, protect and repatriate coloured races
living in Australia
o CONTRA: Kingston felt that, though they are undesirable and should be kept out, once
they are citizens they should have equal rights
o Professor Harris Moore: the section is aimed at migrants (eg. Chinese miners,
Japanese settlers) as opposed to natuives
o S127: “in reckoning the numbers of the people of the Commonwealth, or of a State or other
part of the Commonwealth, aboriginal natives shall not be counted”
o Purpose was to prevent Queensland and WA from using large Aboriginal populations to
gain extra seats in Commonwealth parliament and gain larger share of taxation revenue
NOTE: in original drafting of constitution there was originally a clause giving equal protection of rights
to all citizens (similar to 14th amendment in US constitution). This was rejected so that State’s could
keep making discriminatory laws for Aboriginals

20th / 21st Century developments

Report of Expert Panel “Recognising Abo & Torres Strait Islander Peoples in Constitution”
 Many believe that Indigenous peoples first got the vote as a result of 1967 referendum – more
complicated than that
 Aboriginals could vote but discouraged to by the AEC - few Aboriginals knew rights so few voted
Development of Indigenous Suffrage by State
State Development of the right to vote
NSW  1858: had the right to vote after framing state constitution (all males >21)

Queensland  1859: gained self-government and excluded Aboriginals from voting

 1965: Queensland passed legislation allowing Abos vote in State elections
Victoria  1857: had the right to vote after framing state constitution (all males >21)
WA  1965 WA passed legislation giving Abos right to vote in State elections
 1895: SA gave women (including Aboriginal women) right to vote – also extended
NT to NT which was a colony of South Australia
 1910: denied vote after responsibility for NT passed to Commonwealth
 1856: had the right to vote after framing state constitution (all males >21)
SA  1890s: polling booth near Murray River where Aboriginal men and women voted
 1895: SA gave women (including Aboriginal women) right to vote
Tasmania  1896: had the right to vote after framing state constitution (all males >21)
 1901: no right to votes
Commonwealth  1902: federal franchise extended to women – a proposal to extend to Aboriginals
failed as they were viewed as not having intelligence to vote
 1949: Commonwealth Electorate Act 1918 amended to extend franchise to ‘any
aboriginal native of Australia’ entitled to vote under law of State or ‘who has been a
member of the Defence Force’
 1962: Commonwealth Parliament enacted the Commonwealth Electorate Act
1962 to give Aboriginals the right to enrol to vote
o WA passed legislation giving Abos right to vote in State elections
 1965: Queensland passed legislation allowing Abos vote in State elections
 1983: compulsory enrolment for all Australians in including Aboriginals

Early Voices for Change

 1910: calls to amend Constitution to provide Cwth with power to make laws for Aboriginals
 1929: majority of the Royal Commission on the Constitution noted:
o The adverse effect of ill-treatment of Aboriginals for reputation of Australia
o Recommended against amending S51(xxvi) because states better equipped at making
laws for Aboriginals
o Minority: Financial burden of providing for Aboriginals should not fall on the States
 1933-1936: Melbourne Aboriginal community sought support for petition to King George VI
seeking representation in parliament, enfranchisement and land rights
 1936: Australian Aborigines League established
 1959: Joint Parliamentary Committee on Constitutional Review recommended repeal of s 127
and exclusion of Aboriginal people from 51(xxvi) removed
 1963: Yirrkala Elders of Yolngu people presented bark petition to Commonwealth protesting
mining on sacred lands
 1964: Labour opposition proposed bill to remove aboriginals from S51(xvi) and s127
o Called attention to possible UN criticism
o Bill lapsed when parliament dissolved
 1965: prime minister Robert Menzies introduced same bill
o Bill passed both houses but not put to referendum
 1966: private members bill to repeal s 51 (xxvi), proposed new section prohibiting any law that
subjected person naturalised to Australia from any discrimination
o Passed both houses – did not go to referendum
 1966 August: walk-off of 200 Aboriginal stockmen – about pay and equal rights and citizenship
1967 Referendum
The referendum of 27 May 1967, called by the Holt Government, approved two amendments to the
Australian constitution relating to Indigenous Australians. The first question, referred to as the 'nexus
question' was an attempt to alter the balance of numbers in the Senate and the House of
Representatives (failed overwhelmingly). The second question was to determine whether two
references in the Australian Constitution, which discriminated against Aboriginal people, should be
removed. This fact sheet addresses the second question. The sections of the Constitution under
scrutiny were:
51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order,
and good government of the Commonwealth with respect to:-
...(xxvi) The people of any race, other than the aboriginal people in any State, for whom it is
necessary to make special laws.
127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the
Commonwealth, aboriginal natives should not be counted.
As a result of the political climate, this referendum saw the highest YES vote ever recorded in a
Federal referendum, with 90.77 per cent voting for change. It is interesting to note that because the
majority of parliamentarians supported the proposed amendment, a NO case was never formulated
for presentation as part of the referendum campaign. Copies of the YES case can be located on files
identified below. The Constitution was changed, giving formal effect to the referendum result, by the
Constitution Alteration (Aboriginals) 1967 (Act No 55 of 1967), which received assent on 10 August
NOTE: 1967 referendum did not give Aboriginal & Torres Strait Islander peoples right to vote.
1988 Constitutional Commission report
 Recommended repeal of s25 of Constitution because “it (was) no longer appropriate to include
provision which contemplates disqualification of members of race from voting”
 Recommended new paragraph xxvii that would give Commonwealth express power to make
laws for Aboriginal peoples because the whole country was responsible for them
o Would reflect “affirmation of the will of Australians that policies of oppression and neglect
of Aboriginal citizens were to be at an end” Brennan
 Recommended s124G: would give everyone right to be free from discrimination based on race
 Also considered proposal for constitutional backing for agreement between Abos and Cwth
o Noted disregard for dispossession of lands
o Recognise that Australia was occupied before European settlement

Impact of Mabo v Queensland (no2)

 HC upheld claim by Meriam people to rights of possession, occupation, use and enjoyment of

Murray Islands under a communal native title soured in their pre-sovereign laws and customs
 J Brennan: “fiction by which the rights & interests of indigenous inhabitants in land were treated
as non-existent was justified by policy which has no place in contemporary law of the country”
 Noel Pearson: the most critical event in overturning racial discrimination in so far as indigenous
people are concerned
o Need for constitutional change – though rights better protected by Racial
Discrimination Act 1975 (cwth); concerned that Commonwealth can still abuse rights
 Response of Cwth
o 1993: enactment of Native Title Act 1993
o Establishment of indigenous land fund
o Delivery of social justice package
 ATSIC report noted objectives of corporate plan the securing of constitutional recognition of
special status and cultural identity of Australian people
Interpretation of the altered race power after 1967
 Justice of HC 1982: race powers wide enough to
o a) to regulate and control the people of any race
o b) protect the people of any race
Policy approaches after 1972
 1972: Prime Minister William McMahon acknowledged concern about policy of assimilation
 1972: after election of Whitlam govmt assimilation policy abandoned – now self determination
o Abos keen to grasp self-determination but not trained after years of assimilation
o Inadequate education system, lack of self esteem
 Numerous commissions in to Aboriginal Deaths in Custody, Offices, HREOC
 1996: Howard government chose policy of reconciliation
 1999: electors rejected constitutional amendment recognising Abos
 2007: NT Emergency response involved Cwth assuming direct responsibility of Abo affairs in NT
o Response has been subject to controversy
o After re-election – Howard maintained emergency response and announced ‘closing the
gap’ policy
 2008: Kevin Rudd apologised to Indigenous peoples in parliament
‘Closing the Gap’
 Argument remains that until discrimination is removed from constitution, we will not ultimately
succeed in achieving socioeconomic equality for Aboriginals
o Significantly lower life expectancy, mortality, education, employment

The reconciliation process

Going Forward: Social Justice for the First Australians “Submission to the Commonwealth
Government from the Council for Aboriginal Reconciliation (AGPS, 1995)”
 In proposing a statement of acknowledgement in the preamble to the Australian Constitution, the
Council is not recommending that there is any separation or division of the nation… It is an
acknowledgement of what took place in 1788 and continued thereafter. Questions of indigenous
self-determination or indigenous sovereignty are perceived by some as threats to the fabric of
Australia’s national structures, while at the same time, such issues are symbols of indigenous
aspirations to control their own destinies.
Recognizing Aboriginal and Torres Strait Islanders Rights “Council for Aboriginal
Reconciliation (AGPS, 2000)”
 The meaning of self-determination is often confused by references to secession and separate
statehood, but such references are unfairly inflammatory and do not reflect Aboriginal and Torres
Strait Islander aspirations
 There are some models of self-determination and empowerment already existing in Australia, for
example in the Torres Strait or in the system of Local Aboriginal Councils, where regional self-
government is evolving
 It is necessary for all governments in Australia to ensure that Aboriginal and Torres Strait
Islander peoples have equal rights to effectively participate in public life and that no decisions
directly relating to their rights and interests are taken without their agreement
What Path Forward for Reconciliation? The Challenges of a New Relationship with Indigenous
People “L Behrendt (AGPS, 2001)”
 The Council for Aboriginal Reconciliation took great pride in the fact that reconciliation was a
“people’s movement”.
 There was an incongruency between the notion of a “people’s movement” and the findings of
hostility towards the reconciliation process
 Reconciliation is a grassroots movement in competition with other grassroots movements.

Expert Panel recommendations 2012

The Panel recommends:
1. That section 25 be repealed
2. That section 51(xxvi) be repealed.
3. That a new ‘section 51A’ be inserted, along the following lines:
Section 51A Recognition of Aboriginal and Torres Strait Islander peoples
 Recognising that the continent and its islands now known as Australia were first occupied by
Aboriginal and Torres Strait Islander peoples;
 Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples
with their traditional lands and waters;
 Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait
Islander peoples;
 Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander
the Parliament shall, subject to this Constitution, have power to make laws for the peace,
order and good government of the Commonwealth with respect to Aboriginal and Torres Strait
Islander peoples.
4. That a new ‘section 116A’ be inserted, along the following lines:
Section 116A Prohibition of racial discrimination
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race,
colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of
overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the
cultures, languages or heritage of any group.

5. That a new ‘section 127A’ be inserted, along the following lines:

Section 127A Recognition of languages
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages,

From the CLVA 1865 to Federation

The Colonial Legislatures
 Bicameral legislatures of Australia under 19th century British rule did not have omicompetence of
parliament in Westminster
 1850s: political slogan of “responsible government” was powerful enough to ensure that colonies
gained real powers of local government
o Derivation from British parliament gave them continuity with its organic traditions
R v Burah (India)
 Theory of responsible government expressed in a series of cases beginning with this one
 Facts: an Indian statue in 1869 passed after outbreaks of political violence authorised Lieutenant
Governor of Bengal to issue notifications removing hill areas from jurisdiction of the courts –
effectively martial law
 Held: Burrah and his accomplice convicted of murder
 Appealed to Calcuta court: held that they did have jurisdiction
 Crown appealed to privy council: did Act of 1869 operate as a delegation of legislative power
o Lords held no delegation of legislative power – Indian legislature cannot act beyond
Imperial Parliament
Hodge v The Queen (Canada)
 Facts: licence commissioners had prohibited card playing in taverns
 Legal Question: did card playing come under list of provincial or dominion powers?

 Held: Hagarty CJ held that the Legislative Assembly could not delegate to another body the
authority to create offences
Alex Castles “The Reception and Status of English Law in Australia”
 1858: responsible government with bicameral Parliaments had been created in NSW, SA, Vic
and Tasmania - the question whether the new legislatures could enact laws contrary to Statues
and un-enacted law which had been received in Australia became a pressing issue
o Judge Boothby threatened to frustrate many legislative endeavours of SA Parliament
 1863: seemed no limit to the laws declared invalid through careless drafting or through
o Communications between Cwth and SA reflected need for remedial legislation and bill
 1865: Colonial Laws Validity Act 1865 was sent from London to Adelaide
o Applied to all of Australia
o Under CLVA, local laws were void if they were repugnant to English statutes, which
applied to the state by paramount force
P Parkinson “Tradition and Change in Australian Law”
 Throughout most of the 18th century, the monarchs retained a personal involvement in
government in the sense that ministers were in office by royal choice and owed their position to
that link with the Crown, rather than with each other or with their political party. The Privy Council
continued to decline in practical significance, and by the middle of the century it was possible to
identify one minister who was leader of the government.
 1832: Reform Act was passed which effected the abolition of various constituencies which no
longer had sizeable populations to support them, and which created new constituencies….
making it impossible for the Crown to retain its influence over the Parliament in quite the way it
had done hitherto.
 By the end of the 19th century, British constitutionalism had reached a point where a
representative Parliament had emerged as the sovereign power and the notion of rule according
to the law, rather than according to the arbitrary wishes of the monarch, was firmly entrenched.
George Williams, “Human Rights under the Australian Constitution”
 Framers were clearly influenced by the words of J Bryce and AV Dicey
 Both authors sceptical of need to guarantee rights in written constitutions
 Dicey: civil liberties adequately protected through common law and political processes – an
aspect of the ROL
o No bill of rights consistent with notion of parliamentary sovereignty – that parliament can
make or unmake any law
 Responsible government is an appropriate mechanism to protect minority rights
 Clause 110 (everyone treated equally clause) rejected because the delegates were concerned to
maintain the power of colonies, once they became the Australian states, to discriminate between
people on the ground of their race.
 The framers also debated whether the Constitution should grant the right to vote to women. The
result was a compromise embodied in s 41 of the Constitution.
 Holder suggested a compromise that would allow women who were qualified to vote under the
law of their state to also be able to vote for the new federal Parliament. This preserved the ability
of each state to determine its own franchise for federal elections, at least until the federal
Parliament enacted a uniform franchise.

The Acquisition of Legal Independence
and Popular Sovereignty
Bicameral legislature and responsible government emerged in the colonies by 1855. The movement
towards federation came from Britain’s Colonial Secretary, Earl Grey, who tried to introduce a Bill
which later became the Australian Constitutions Act 1850.

Reasons for Federation

1. Economic: Removal of inter-colonial tariffs could improve trade. However, NSW in favour of free
trade, whilst Victoria favoured protectionist tariffs to help ailing sectors following the gold rush.
The complications associated with tariffs is that they were a large source of income for the states
2. Political: distribution of population
a. There was a disproportionate distribution of the population
b. Smaller colonies feared being politically overpowered by the larger
c. Larger colonies feared having to subsidise other smaller colonies
3. National defence: to have a national defence force against Germany and France – have a
national defence force to look out for our interests
4. Interstate trade: was both a reason to federate and also a barrier to it
5. Immigration: stop having an influx of cheap labour
6. Infrastructure: having a national train line, better access to telegraphic services, roads and mail,
and immigration service

Creation of Federation
The Australian nation was created as a federation on 01/01/1901. The main tenets of the Constitution
were highlight by the Constitutional Commission:

Borrowed elements from US Constitution Reflects Federal Nature

 Both Federal &State Governments, each with its own  Fair and equal treatment of states
governmental institutions by the Federal government states
 Distributes authority between Federal & State Govmts  Fair treatment of inter-state citizens.
 Judiciary appointed by Fed Gov; provide judicial review  Equal representation in the Senate.
 Supremacy of federal laws over State laws
 Entrenchment of these features in a rigid

What were the States worried about with regards to federation?

 Larger states were worried about how revenue was going to be allocated between the states
and worried about subsidising the smaller states. Now it is more a matter of strong economic
states subsidising weak economic states
 Smaller states worried about losing their identity
 The states had the mind that they were giving just enough power to the Federal government
for things such as defence, trade and immigration but still retain autonomy in the Federation.
They did not want to adopt the Canadian model where a lot of power is allocated to Federal
government. However, in practice it has not worked out this way…

Benefits of Federalism – Brian Galligan and Cliff Walsh

Federalism secures democracy and human rights through the notions of voice and exit
 Voice: It is easier for individuals to participate in the small political units that make up a
federation rather than a massive unitary government
 Exit: if an individual is dissatisfied with his treatment by a State government, he can simply go
to another State
Other benefits included:
 Constitution anchors pluralist democracy  Citizens of Federal states have more remedies
 Division of powers: govmt wont get too large (e.g. appeal to High Court)
 Slowness of legal decisions = due process  Enables strength of large nation to be added to the
enhanced participation through a dual citizenship

Evolution of Federations
Federations always evolve. They can evolve in two ways:
 Centripetal – towards the centre, more power to Federal Parliament
 Centrifugal – away from the centre, more power to component States.
Evolution of Aus federalism generally been centripetal - Cwth Parliament getting more power. Usually
because HC has determined Cwth needs more power to meet national needs - especially in war. The
centripetal evolution has often been criticised. However, there have been opinions that it should be
taken further:
 If national Parliament is to resolve problems that states can’t handle (as Australians seem to
want), constitutional change is needed.
 Commonwealth Parliament needs to be able to make general laws rather than just specific
 This wouldn’t diminish power of States, unless they have been operating poorly
o No sensible government would want to interfere with a State that’s running well.
o But if a State is not operating well, and going from bad to worse, why shouldn’t the
Commonwealth government be able to intervene?
 This would be less undemocratic than State governments appointing administrators to run
dysfunctional councils.

We are federated but are we legally independent?

 Australia was not independent
o There were still appeals to the privy council
 From State Supreme Courts and from the High Court
o Foreign relations still governed by the parliament
Doctrine Description
 If there were any clashes between Australian law and laws applied by the British
parliament, the British law would prevail under the Doctrine of Repugnancy
 Colonial Laws Validity Act 1865
o Conflicts of statutes (not common law)
o Local statutes could not be seen to be repugnant when conflicting with British
laws which were not intended to be applied in Australia
o Only regards statutes which are enforceable with “Paramount Force”. If the
British passed a law which applied to all the colonies (including Australia) then it
would have to adhere to these laws
 Australian Constitution is a British Act applies by paramount force
 The Australia act applies by paramount force
 Statute of Westminster
Doctrine of
 The CLVA
Union Steamship Co of New Zealand v Commonwealth
 There was a clash between the Merchant Shipping Act 1894 (Imp) and the Navigation Act
1912 (cth). Was the subsequent act repugnant to the prior act?
 Because the Imperial Parliament passed the Cth of Australia act in 1901 -S98 of the
Constitution gave the Commonwealth powers of naval and shipping matters
 We know that later acts repeal previous acts, and the British parliament had explicitly
given the commonwealth powers of naval and shipping matters
 However - the High Court ruled that repugnancy still applied, despite s 98 of the
Constitution, and that the Navigation Act 1912 was invalid because the Merchant Shipping
Act 1894 (Imp) overruled it
Commonwealth v Limerick Steamship Co Ltd
Decision in Union Steamship odd, a couple of months earlier, the court took a different view:
 s 39(2) of Judiciary Act 1903 (Cth) (excludes the possibility of appeals to the Privy
Council in constitutional cases) was valid
 It was not repugnant to Judicial Committee Act 1844/Australian Courts Act 1828 (Imp)
because the power to enact s 39(2) was conferred by the Commonwealth of Australia
Constitution Act (Imp)
 Applied the law of “assuming two imperial enactments conflict, the later must prevail”
Ratio: if Imperial statute gives rise to repugnancy, it will be impliedly repealed (to the extent of
its inconsistency with the grants of power in the Cwth Constitution). Effectively, this means the
repugnancy doctrine has ceased to apply to Australia.
The question arises, why then did this reasoning didn’t apply in Union Steamship Co of New
Zealand v Commonwealth? An explanation was attempted in Commonwealth v Kreglinger &
Fernau Ltd (Skin Wool Case), which also dealt with s 39(2) of the Judiciary Act 1903 (Cth):
Regulations dealt with in Merchant Shipping Act 1894 (Imp) applied to non-Australian ships,
whereas the issue of s 39(2) is concerned with purely Australian affairs.
There are two interpretations of the doctrine of extraterritoriality:
 Broad: an exercise of colonial legislative power is invalid unless its operation has
Doctrine of sufficient connection with the geographical area of the legislating colony.
Extra-  Narrow: a colony’s laws can never have any operation outside its territorial borders.
Territoriality Cwth can pass laws affecting mainland of Aus but not outside of the coast (e.g. fish)
o Fish o Oil refineries
o Marrying overseas o Laws regarding naval officers on board ships
 As colonies of British Empire, Parliaments had no extraterritorial legislative functions
at all. Some version of the doctrine of extraterritoriality continued to applied to the
Commonwealth Parliament until the adoption of the Statute of Westminster 1931
(UK), and to the State Parliaments until the adoption of the Australia Act 1986 (Cth).
 Orthodox view regarding extraterritorial power is mentioned in Hodge v The Queen:
o Local legislature is supreme within its limits of subjects, with same authority as
the imperial Parliament would have under like circumstances
o Question: how far does law-making power extend beyond geographical borders?
 Under international law, a state can sometime legislate extraterritorially (i.e. Crimes
(Child Sex Tourism) Amendment Act 1994 (Cth) permits prosecution of Australians
for offences committed outside its borders). It should also be noted that s 51 of the
Constitution impliedly confers the power to legislate extraterritorially (i.e. s 51 (i)
provides a power to make laws regarding “trade and commerce with other countries”).

Summary of Australian Legislative Independence

1939/1942 Statute of 1986 The Australia Acts
Westminster s1: ended ability of British to
1901 Australian S2: freed Cwth (but not States) legislate for Aus
Constitution from operation of CLVA – s2: removed doctrine of
repugnancy & extraterritoriality extraterritoriality for States
S4: British can legislate for Aus s3: removed the doctrine of
only by “request and consent” repugnancy for the States
S10: act did not automatically s11: completely removed the
apply – 1942 act backdated to ability to appeal to Privy
1939 (start of WWII) Council
Cth State Cth State Cth State
     
     
UK Laws apply by Request & consent
paramount force   of Cwth parliament   

Which Act applies? - Copyright Owners Reproduction Society Case 1956

Australia UK
 Copyright Act (1911)
 Copyright Act (1911)  Amendements (1928)
 Repeals > Copyright Act (1956)
 1956 British act was seen not to be effective in Australia due to paramount force because there was no
request and consent of the Commonwealth Parliament
 Courts said amendments also did not apply as by a matter of convention in 1928 and as a manner of
general understanding, the UK could only pass laws effective in Australia by official request and consent
 So even though the Statute of Westminster had not passed yet, it was already a convention which was
to be followed – a convention which is legally enforceable. So even though the Copy Right Act 1911
had been repealed in the UK in 1956 it continued to be effective in Aus

Does UK still have any influence? - Sue v Hilll

The High Court decided that the UK retains no residual influence upon legislative, executive or judicial
processes in Australia – it is considered a ‘foreign power’
 s 1 of the Australia Act 1986 (Cth) severs legislative links
Legislative  Section is well within the powers of the Commonwealth Parliament, by virtue of s
51(xxxviii) of the Constitution.
 UK admitted that it would be against constitutional practice for British ministers to tender
advice to the Crown for the appointment of Australian ministers (as was once the custom)
– no executive influence
 Executive UK decisions, such as entering military alliances and acceding to treaties have
no legal consequence on us. Therefore, no executive influence.
Judicial  S11 terminated the possibility of appealing to Privy Council

Popular Sovereignty
Popular sovereignty: the principle that the authority of the government is created and sustained by
the consent of its people, who are the source of all political power
- Saunders extract: for every constitution there must be an explanation for why it is binding
- The idea that you can point to the people as the source of sovereignty applies in the US and
India – does this apply in Australia?
- Why is the constitution binding?
o Dixon: binding in 1900 because we are a British Colony – there is an acceptance the
Imperial Parliament has the ability to pass laws using paramount force which apply to
its dominions. This is viewed as a binding expression of parliamentary sovereignty
o The popular movements towards independence demonstrated in Australia in the
1890s and 1900s do not count as an expression of legal sovereignty but it is an
expression of political legitimacy
o Why is the constitution binding today or in 1986?
 The Australian people are accepting of the authority of the constitution.
Popular sovereignty underpins the legitimacy of the constitution. Preamble of
the Constitution states that ”the people of New South Wales, Victoria, South
Australia, Queensland and Tasmania…have agreed to unite in one
indissoluble Federal Commonwealth…” suggesting popular approval and
acceptance of Australian people
 Supported by 128 – allows amendment

Does popular sovereignty give legitimacy to the constitution?

For Against
 Popular sovereignty doesn’t require full  1900 – exclusions from franchise
popular endorsement o Women
 Supports notions of democracy, o Indigenous
representative and responsible  Poor knowledge
government o Acquiescence
 1899 – low turnout

The Legislature
1.1 Composition
1.1.1 Eligibility
Eligibility for election to the federal Parliament is determined by Commonwealth legislation:

Commonwealth Electoral Act 1919 (Cth) s 163(1)

‘Specifies candidates must be:
(1) A person who:
(a) has reached the age of 18 years
(b) is an Australian Citizen; and
(c) is either
(i) an elector qualified to vote at a House of Representatives election; or
(ii) a person qualified to become such an elector;

is qualified to be elected as a Senator or member of the House of Representatives. ’

Essentially it means that they must be:

 Over 18
 Australian citizens
 An elector(or qualified to become an elector) who is entitled to vote for the House of Reps.
1.1.2 Restrictions on Eligibility

Australian Constitution
s 43 – ‘A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member
of the other House’
 This basically means that if you are a member of either House of Parliament, you cannot qualify to be chosen
to sit in the other House concurrently
s 44 – Any person who falls within the disqualifying categories, ‘shall be incapable of being chosen or of sitting as
a senator or a member of the House of Representatives’
‘Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a
subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for
any offence punishable under the law of the Commonwealth or of a State by imprisonment for one
year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown
out of any of the revenues of the Commonwealth; or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the
Commonwealth otherwise than as a member and in common with the other members of an
incorporated company consisting of more than twenty‑five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.’

Essentially it means they cannot be:

(i) A person under acknowledgement of allegiance to a foreign power (i.e. Citizenship)

(ii) A person attainted for treason, or has been convicted for a sentence of a year and over
(iii) A person who is bankrupt
(iv) A public servant
(v) A person with a monetary interest in any agreement with the Commonwealth.

Source: Blackshield and Wilfliams, Commonwealth of Australia Constitution Act

1.1.3 Restrictions on Eligibility – Cases
You must read S44 and S116 together to tell who cannot be in parliament:
- e.g. dual citizenship
- The test of allegiance is if you have taken all reasonable steps to renounce your citizenship.
You don’t necessarily have to have the citizenship revoked by the other country because this
is out of the person’s control.

Re Webster (1975) 132 CLR 270

First case which considers the application of s 44 (v) – Cannot have a pecuniary interest
 Facts: Senator Webster was a shareholder in company which entered into contracts with Cwth departments
o s 44 (v) of the Constitution – disqualifies persons who have pecuniary interests in agreements with
the Commonwealth from being eligible for election
 Legal Issues: was Senator Webster’s involvement in violation of s 44 (v)?
 Judgment: Barwick CJ To attract s 44 (5), the contracts need to be executor ‘Because of the evident
purpose of the disqualification provision, it applies only to executory contracts.’ There must be, ‘something
remains [remaining] to be done by the contractor in performance of the contract’
o Disqualification would rely on:
 Exchanges over ‘a substantial period of time’ and
 Must have been one where the Crown could ‘conceivably influence the contractor in relation to
parliamentary affairs by the very existence of the agreement’ or
 By ‘something [being] done or refrained from being done in relation to the contract or to its
subject matter’.
 Webster was deemed to still be eligible
 Barwick CJ applied a narrow definition of s44 – ‘Its wording is obscure and anachronistic and that its
application should therefore be narrowly confined’ (Blackshield and Williams)

Re Wood (1988) 167 CLR 145

High Court case which considers s 44 (i) – Cannot have allegiance to foreign powers
 Facts: Senator Wood was a British citizen, and so his election was challenged
 Legal Issues: Was Senator Wood’s status in violation of s 44 (i)?
 Judgment – Joint Judgment. Not necessary to consider s 44 (i) of the Australian Constitution Matter was
dealt with simply under s 163 (1)(b) of the Commonwealth Electoral Act 1918 (Cth). Requires an
elected person to be an Australian Citizen – Doesn’t attract s 44 (i) ‘Wood had not been validly elected,
but… the election was not void as the problem could be solved by a further distribution of preferences’
Sykes v Cleary (1992) 176 CLR 77
Cleary disqualified since it is contrary to s 44 (iv) and the separation of powers. Precedent set by this judgement
held that public servants had to resign from the public service before nominating
 Facts: Cleary was a school teacher, but has been on leave without pay for about 2 years
o 1 February 1990: Took leave without pay
o 20 March 1992: Lodged nomination for seat of Wills
o 11 April 1992: Still on leave without pay, Election day
o 16 April 1992: Resigned as it became clear he had won
 Legal Issues: was Cleary an ‘officer’ of the crown as specified in s 44 (iv)? Does he violate this restriction?
Separation of Powers: A member of the executive cannot be a member of the legislature
 Judgment: Majority Judgment (Mason CJ, Toohey and McHugh JJ) Cleary was disqualified . He was still an
‘officer’ the day he lodged his nomination and the day he got elected under the Teaching Service Act 1981
(Vic). This is exactly contrary to s 44 (iv). Just because he was on leave without pay, doesn’t mean you’re no
longer an ‘officer’. Doesn’t matter that he’s under a State parliament and not Commonwealth.
Goes against the separation of powers
1. Performance by a public servant of their public duty would impair capacity to attend duties of being a
member of the House – Would impair his ability to perform both roles
2. Considerable risk that a public servant would share political opinions of the Minister of their department
and would not bring to bear as a member of the House, a free and independent judgement
3. Membership of the House would detract from the performance of the relevant public service duty – Would
impair his ability to perform both roles
 Dissenting Judgment (Deane J): Cleary’s position was saved by his resignation on 16 April 1992. Question
of whether he was ‘incapable of being chosen’ should be answered at the point in time when he was ‘chosen’
– 23 April 1992. Other six judges took ‘being chosen’ to refer to the entire ‘process of being chosen, of which
nomination is an essential part’
Background Facts: Second and Third Respondents

 Both candidates had citizenships of another nation still

 Second respondent – Mr Delacretaz

o Born in Switzerland – Swiss citizen at the time of birth (1923)
o Migrated to Australia – Became naturalized as an Australian citizen (1960)
o Did not demand Switzerland to renounce his Swiss citizenship although he was eligible to
 Third Respondent – Mr Kardamitsis
o Born in Greece – Greek citizen at the time of birth (1952)
o Migrated to Australia – Became an Australian citizen (1975)
o Did not request Greece to renounce his Greek citizenship
 Believed that the step of becoming a citizen broke his bond of allegiance
Legal Issues: Second and Third Respondents
 Did their lack of reasonable action amount to violation of s 44 (i)?
Judgment – Majority Judgment (Mason CJ, Toohey and McHugh JJ)
 ‘It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who
had taken all reasonable steps to divest himself or herself of any conflicting allegiance’
o Neither candidates took the steps needed to divest themselves from foreign identities.
o Remained “entitled to the rights and privileges of a subject or citizen of a foreign power”
o ‘what amounts to reasonable steps to denounce foreign nationality’ depends on ‘the situation of the
individual, the requirements of the foreign law and the extent of connexion between the individual
and the foreign state.’

Sue v Hill (1999) 199 CLR 462

 Final case which considers eligibility on the basis of s 44 (i)

 Important precedent in establishing the impact of Australia’s independence from the UK

Background Facts
 Hill was an Australian citizen but still had UK citizenship
 Was elected as a senator, and subsequently, relinquished her UK citizenship (only after election)

Legal Issues
 Did Hill’s status violate s 44 (i) of the Constitution?
 What were the implications of the Australia Act 1986 (Cth)?
 With respect to s 376 of the Commonwealth Electoral Act 1918 (Cth)
o Is this the only method of raising issues of disqualification?
o s 353 – ‘the validity of any election or return may disputed by petition addressed to the Court of
Disputed Returns and not otherwise’
o s 354 – constitutes High Court as ‘the Court of Disputed Returns’; confers upon it jurisdiction to try
the petitions referred to in s 353; and endows it with’ all the powers and functions of the Court of
Disputed Returns’

Judgment – Majority Judgment (Gleeson CJ, Gummow and Hayne JJ)

 Since Australia Act 1986 (Cth), the UK is considered a foreign power
o It has no legislative, executive or judicial influence over Australia
o s 1 – UK cannot legislate to Australia
o s 11 – terminated the possibility of appealing to the Privy Council
 No executive influence
o Executive UK decisions, such as entering military alliances and acceding to treaties have no legal
consequence on us
 Hill violated s 44 by failing to renounce her citizenship
o The UK is a ‘foreign power’, despite the fact it was not so when Constitution was written
 High Court’s capacity to determine the issue
o High Court does have the jurisdiction, but matter has to be raised ONLY
 ‘on a referral by one of the House of Parliament’ or
 ‘incidentally in determining whether an election should be set aside on the ground that the
elected person has committed an illegal practice’ (on petition)
o s 47 of the Constitution gives Parliament the power to disqualify members of Parliament
 The fact that it has already done so might not deter the High Court from giving a different
answer in response to a petition under ss 353-354 of the Act

1.1.4 Representativeness and Diversity

Elaine Thompson

Parliament has been criticised for its lack of diversity and representation:
 Despite party differences, members of
Parliament were remarkably homogeneous Australian Population
o White Aborigine
Asian s
o Male Other 5% 1%
o Anglo-Australian European
 Does not reflect diversity of Australia 19%

 Notion: ‘white males could represent world

views, values & interests of all Aus’ Anglo-
o Notion was rejected Celtic
Ethnicity and Race
 Neither Australian House of Parliament can
claim to be reasonably representative

The Senate House of Representatives

 1999 (NEW): 1 Asian Senator  1990s: No Aboriginal members
 1999 (NEW): 1 Aboriginal Senator o Suggestion of entrenching guaranteed
 Other Senators from overseas Indigenous parliamentary seats
 UK – 7  Zimbabwe -1 o Noble, but breaches ‘one vote, one value
 Eire – 1  Papua New Guinea – 1 view’ of democracy
 Born in non-English speaking country – 8 (~5%)
 All 10 are Anglo or Anglo-Australian  Aus born, but from an “ethnic” background –6-10

 Neither house is near the ideal equity of 50%

The Senate House of Representatives

o 1999 Senate – 23 (28.9%)  House of Representatives – 33 (22.3%)

 Representation within parties are very similar

 House of Representatives –  House of Representatives –  House of Representatives –

16 (23.9%) 15 (23.4%) 2/16 (12.5%)
 Senate – 9/29 (31%)  Senate – 9/31 (29%)  Senate – 0

Representing the Majority

 Australian electoral system has been criticised
 Party that wins majority of seats in Lower House is not always representative of majority
o 1998 Election: Coalition party won with lower majority of first preference vote
 Had over 54% of seats
 Less than 40% of first preference vote
 Opposition obtained majority of two party preferred vote
o Distortion represents there this is a limitation on the claim of Government form that they
are speaking on the ‘will of the majority’
 Electorates no longer see governments as ‘representing the wishes of all the people’
o 1998: Minor-party first preference vote nationwide – 20.4%
 NSW – 21.5% (Increase of 7%)
o Substantial minority see major parties as out-of-touch and unresponsive to their needs
Representing the Minority
 Changes to proportionate representation in 1948
o Means minority parties and independents can be elected if they have at least 7% support
o Means if electorate is discontent with majority party, can vote another party in
o Norm: Neither major party holds a majority in the Senate

1.2 Powers and Functions

1.2.1 Representation

Cheryl Saunders

‘Representative democracy ‘is the source of legitimacy for both parliament and government’.
 Provides justification for the supremacy of the legislature in the exercise of its law-making function
 Provides a basis for the assumption that this power will not be abused
Protection of rights
‘Together with responsible government and the rule of law, it provides a foundation for an approach to
the protection of rights’
 Approach relies on the allocation of power between institution of government
o In contrast, does not rely on rights instruments to limit what each institution can do
 Representative democracy + Responsible government + Rule of Law = Rights Protection
Question: What is the extent of constitutional protection for democratic rules?
 Has appeared in the High Court in three contexts:
o The fairness of constituency boundaries;
o Freedom of political communication about political and governmental affairs; and
o Voting rights
 Cases pressured High Court to consider whether the concept of democracy in 1901 could
evolve over time so as to affect the meaning or application of the Constitution
o Do indications of a more restricted conception of representation in 1901 inhibit a
contemporary understanding of the general constitutional requirement for the Houses of
Parliament to be ‘directly chosen by the people’?
o How are core features of representative democracy that are not spelt out in the
Constitution nevertheless protected by it?
Concepts of Representation
 ‘There is the usual ambiguity about the nature of the constitutional relationship between
representatives and those that are represented’
o Traditional view: Members of Parliament are not delegates of the voters
 They are not subject to instruction by them
 They can make decisions contrary to popular prejudice
o In practice: Members individually and collectively keep a close eye on public opinion
 Regular elections and a sense of self-preservation (Accountability)
 Australian politics is dictated by two national parties
o The Australian Labour Party
o The Coalition (Liberal party of Australia + National Party)
 Party discipline is tight
o Extremely rare for a member of a parliamentary party to flout it in voting (betray)
o Party discipline ensures that where government has a majority in any House, their
measures will pass
Centrality of Elections
 Held frequently – ‘unprecedented level of voting among the advanced democracies’
o Commonwealth – At least every 3 years
o States – Up to 4 years in most States
 Voting is effectively compulsory and the requirement is enforced
o Use of preferential voting ensures each Member can claim support of a majority of voters
 Also allows governing party to generally claim support of a majority of voters
overall (although not necessarily on the basis of first preference votes)
o To ensure effectiveness of system:
 Administration is efficient
 Elections are held at convenient times and locations
 As a corollary, once Parliament is elected – Representative democracy is subordinated to
responsible government
o Prime Minister or Premier is commissioned by the Crown
o Electoral system makes it more likely than not that the governing party will have a clear
majority in the lower House
 Does not require reliance on complex coalition agreements
o Party discipline – Strong, so that executive government can count on its members to
support all its measure throughout its term of office, at least in the lower House
 Parliamentary proceedings – Confrontation between government and opposition can be lively
o Objective: Mainly used as a tool to ascertain victory in the next election instead of public
deliberation on current policy proposals
 Parliaments are acquiescent rather than deliberative (Readily accepting rather than considering)
o Favours efficiency and unity over diversity and institutional balance
Modified Westminster
 Federal and State Parliaments were modelled broadly on the Parliament at Westminster
o Continue to share its functions and procedures
 Evolution of bicameralism (Two Houses)
o Originally: Protect property interests and moderate impulsive tendencies of Lower House
o 20th century: Upper Houses are democratic – Greater claim to substantive power
 Also greater potential for conflict
 Upper Houses have authority to ‘review’ proposed legislation and government
action, backed by powerful sanctions
o Divided opinion over whether an upper House
 Should be regretted as blot on the constitutional landscape OR
 Welcomed for its contribution to the deliberative potential of Parliament
 A second difference – Combination of representative government+Australian federalism
o Limitation of parliamentary sovereignty under a federal Constitution
o Creation of the Senate as a powerful second Chamber to represent the States

1.2.2 Legislative Power

Cheryl Saunders

 Constitution confers the ‘legislative power of the Commonwealth’ on the Parliament

o Purpose: Derived from common law
o Legislative authority is required to create
 Legal rights and duties
 To impose taxation; and
 To alter existing law
 Legislative power of the Commonwealth necessarily is subject to the Constitution
o It can be exercised only in areas in which authority has been allocated to the
Commonwealth for the purposes of the federal division of power
o s 51 – Lists most of the legislative power
 Apart from these constraints, Parliament is supreme in the exercise of its legislative powers
o No enforceable requirement for legislation to be: general, certain, equitable, prospective
or territorially bounded
 Further standards for exercise of legislative power drawn from:
o Text and structure of the Constitution in response to particular issues, framed by:
 References to federalism
 References to Separation of Powers
 References to the Rule of Law

Legislature (2)
The Federal Parliament
Democracy is not in our constitution, neither is the Separation of Powers
- S7 of constitution
o Senate directly chosen by people of the state
o The Commonwealth Electoral Act expands on this
- S24 of constitution
o House of Reps members directly chosen people of Commonwealth

Note: the word democracy does not appear in the Commonwealth Electoral Act

From S7 and s24 the High Court has established constitutionally protected:
Implied Freedom of Political Communication

This is very narrow – you must have implied freedom of political communication with politics so you
know who you are voting for.
 The current entitlement to vote is governed by the Commonwealth Electoral Act 1918 (Cth)
 Voting at federal elections has been compulsory since 1924.
 It might… be argued that, if ss 7 and 24 confer a right to vote, Parliament cannot compel electors
to vote and that compulsory voting, as established by s 245 of the Commonwealth Electoral Act, is
constitutionally flawed.

Langer v Commonwealth (1996) 186 CLR 302

Background facts
 s 240: of CEA 1918 (Cth) prescribes voting process by which voter
numbers boxes consecutively
 s 270: voting like 1,2,3,3 accepted - same numbers disqualified
 s 329A: is a punishable offence for anyone to encourage voters to
deviate from this process
 1993: federal election, the Plaintiff encouraged voters to deviate from
the specified process, in a way which is still ok with s 270
 Australian Electoral Commission emphasised adherence to the
process as counter publicity
 Plaintiff sued for an injunction
 Commission’s adverts were misleading and intimidating – have
unfair effect on voters’ decisions
 s 329A infringed constitutional freedoms of political communication
 s 240 inconsistent with s 24 of Constitution – voting process means people aren’t choosing freely
Other claims
 Elections in 1993 were not ‘free’. Therefore, Parliament is invalid, and High Court Justices
appointed since then (Gummow and Brennan) are disqualified from hearing the case.
Legal issues
 Voting - Compulsory voting
 s 240 – valid by unanimous decision
 s 270 – a savings provision, not an alternate voting method
 s 329A – valid by 5:1 majority.
“s 24 of the Constitution does not limit the Parliament’s selection of the method of voting by which a
voter’s choice is made so long as the method allows a free choice”
“it is not to the point that, if a ballot paper were filled in otherwise than in accordance with s 240, the
vote would better express the voter’s political opinion”

The right to vote at Federal Elections? – S41

 s 41 of the Constitution… might be viewed as guaranteeing a right to vote in federal elections
for anyone entitled to vote for the lower house of a State Parliament – basically says that
states are determining who can vote at the commonwealth level
o Rights to vote could differ depending on what state you are in

o This is a transitional provision – only operates for people in the states prior to 1902

King v Jones(1972) 128 CLR 221

Stephen J: section may be viewed from two aspects, as a restraint upon Commonwealth legislative
power or as a Constitutional guarantee; I prefer the latter view… It guarantees an entitlement to the
federal franchise for those State-enfranchised electors who fall within its terms.
 Despite the dicta in King v Jones, the Court… accepted the “transitional” view of s 41.

R v Pearson; Ex parte Sipka (1983) 152 CLR 254

 Facts: voters who were enrolled in State level hadn’t enrolled for the Federal level by the time
the writs were issued.
 Argument: by virtue of s 41 they deserve the right to vote for federal
 Legal issues: voting - Express right to vote
o is s 41 transitional or ongoing?
 Judgement: s 41 is transitional, and its practical effect is spent:
o “The definition of the constitutional franchise was to yield to statutory franchise when
the Parliament…defined the qualification of electors throughout the Commonwealth.
o If s 41 was ongoing, “the power conferred upon the Parliament to legislate for a
uniform franchise would be destroyed. A Parliament of a State would be empowered
to give the federal franchise to those whom the Commonwealth Parliament has
excluded or disqualified.
o The Commonwealth must have the power to set a uniform franchise.
o It is clear that s 41 meant to ensure those who already had voting rights in 1901 would
not lose them when the statutory franchise was enacted.
o However, from then and on, the effect was spent and the statutory franchise governed

Debate: does the constitution have a fixed or ambulatory meaning (ambulatory means it
changes over time)
- The words “directly chosen” are ambulatory and change over time
- There were two amendments of the CEA
- The first one said if you had <3 years in prison then you couldn’t vote
- The second one said <6 years

Roach v Electoral Commission

 Facts: 2006, prisoners serving a 3 year sentence could not vote for federal parliament. In
2006, the Commonwealth Electoral Act 1919 (Cth) was amended to include s 93(8AA), which
disqualified all prisoners from voting to the federal parliament.
 Argument: s 93(8AA) is invalid, goes against implied right to vote
 Legal issues: Implied right to vote; Commonwealth’s ability to prevent certain ppl from voting
 Implied right to vote: amendment was inconsistent with our system of democracy which the
Constitution seeks to establish
o Against the implied meaning of s 7 and s 24 – “directly chosen by the people”
o This phrase has an evolving meaning. Today, it means universal adult suffrage.
Anything less than that, cannot be described as chosen by the people.
 Parliament’s capacity: Parliament indeed has the power to withhold voting rights of certain
citizens, but this disqualification needs to be for a substantial reason - In this case those who
committed serious criminal conduct.
o “Serious offending represents such a form of civic irresponsibility that is appropriate for
Parliament to mark such behaviour as anti-social and to direct that physical separation
from the community will be accompanied by symbolic separation in the form of loss of a
fundamental political right”.
o However, imprisonment does not necessarily indicate serious criminal conduct – a criteria
needs to be set for what ‘serious criminal conduct’ is, and this criteria is the duration of
the sentence.
o Reducing it to all prisoners means it includes a substantial amount of minor offenders,
thus “broke the rational connection necessary to reconcile the disenfranchisement with
the constitutional imperative of choice by people”.
o Blanket ban is an arbitrary method, and does not serve the purpose of democracy.
o Amendments struck down, previous statute restored

Rowe v Electoral Commission

 Facts: Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006
(Cth) removed the grace period between the date of the issue of the writs and the closure of the
o Many people could not enroll in time.
o Rowe attempted to enroll after the issuing of the writs, but was unable now because of the
removal of the grace period.
o Sought declaration that the 2006 amendments were invalid.
 Legal issues: implied right to vote - Commonwealth’s ability to prevent certain ppl from voting
 Judgement
 (Implied right to vote): Using Ex rel McKinlay v The Commonwealth[1]: “ss 7 and 24, because of
changed historical circumstances including legislative history, have come to be a constitutional
protection of the right to vote.”
 Parliament's Capacity: Commonwealth has capacity, but needs to be proportionate. “An
electoral law which denies enrollment and therefore the right to vote...can only be justified if it
serves the purpose of the constitutional mandate” “a law affecting such a change causes a
detriment. Its justification must be that is it nevertheless, beneficial because it contributes to the
fulfillment of the mandate. If the detriment...is disproportionate to that benefit, then the law will be
invalid as inconsistent with that mandate.” Detriment deemed disproportionate, a large number of
voters would not be able to vote, no reason why we need to remove the grace period

On Implied Rights in the Constitution…

There is no explicit SOP in the Constitution: this is implied through the text and structure of the
Constitution. There is nothing in the constitution about the separation of powers – this is implied
through the structure. It is implied through the chapter structure – everything is separate and so this is
implied. Similarly, the words DIRECTLY CHOSEN imply the democracy factor – that the people must
be democratically elected

State Constitutions
State constitutions differ from the Commonwealth constitutions because they are flexible - can be
amended and altered through a normal process rather than a specialised process (referendum, double
majority), as the commonwealth constitution requires.

Limitations on State Constitutions

There have been 3 issues which were declared to impose limitations on State Parliaments

Limits originating from the Commonwealth Constitution

The Commonwealth Constitution includes multiple limitations to State Parliaments. These limitations
can be categorised into three types:
Constitutional Limit Description
“Areas of power exclusively vested in the Commonwealth Parliament are
1. Areas of power
necessarily excised from the power of the States”.
exclusively vested in
the Commonwealth s 90: the Cwth alone has the power to levy duties of customs or excise
s 51: some of the powers assigned by s 51 (vi – naval and military defence,
xii - currency, coinage and legal tender) are made exclusive to the
Commonwealth Parliament by provisions in chapter V

“Some provisions… expressly limit State Legislative power”

s 114: States cannot impose taxes on properties which belong to the Cwth
2. Express Limitations s 117: States cannot discriminate against residents of other states
s 92: Interstate trade and commerce must be absolutely free.
s 112: gives States the power to enact laws for the "inspection" of s 92, but
any such laws that arise out of this qualification are subject to
Commonwealth annulment
“State legislative powers may be subject to limitations implied in the Cwth
s 106: States constitutions are ultimately subject to the Cwth Constitution
3. Implied Limitations
 Where the Constitution outlines a limitation on the power of the
Commonwealth, this limitation will flow on through s106 to limit State
legislative power. However, this is only if it is deemed necessary to
ensure the effectiveness of the limitation at the Commonwealth level.

Limits resulting from the phrase ‘Peace, Welfare and Good Government’
s 5 of the Constitution Act 1902 (NSW) declares that:
“The Legislature shall…have power to make laws for the peace, welfare, and good government of
New South Wales in all cases whatsoever”.
 In other words, can judges strike down laws which are not for the ‘peace, welfare and good
government’ of New South Wales as unconstitutional – BMF Case
 If so, the words constitute a limitation on State legislative power

Building Construction Labourers Federation of NSW v Minister for Industrial Relations

 The inclusion of the phrase in question indeed granted the Courts power to strike down laws not
for the ‘peace, welfare and good governance’ as unconstitutional
 Therefore, the BLF case established that the wording of s 5 constituted a limitation on State
legislative power

Union Steamship Co of Australia Pty Ltd v King – Disagrees with BMF

 However, BMF view was ultimately rejected by the High Court in Union Steamship Co of Australia
Pty Ltd v King which ruled as follows:
 Since the words ‘peace, welfare and good government’ & ‘peace, order and good government’ are
interchangeable, they should be viewed as having “no special semantic significance, but is simply
a conventional formula used by the Imperial Parliament when it wished to confer plenary power”
 Thus, the phrase does not pose a limitation to the power of the State Parliaments.

Limits based on abrogation of ‘deeply rooted rights’
Some of the judgement in Union Steamship hints at the possibility that the State Parliaments are
limited from abrogating rights which are ‘deeply rooted’ in either the democratic system and the
Common Law.

Durham Holdings Pty Ltd v New South Wales

 This subject was later discussed in Durham Holdings Pty Ltd v New South Wales. Whilst the
case was dismissed, it did establish that:
o The State Parliaments are limited from abrogating rights which are deemed to be ‘deeply
rooted’ in the democratic system or the Common Law
o However, the Plaintiff failed because the right for fair compensation did not constitute a
‘deeply rooted’ right.
 Thus, inability to abrogate rights which are ‘deeply rooted’ is a limitation on State legislative power.

J. Goldsworthy: The Sovereignty of Parliament

 Goldworthy argues against the idea that courts should protect these deeply rooted rights.
“Doctrine of parliamentary sovereignty is absurdity bereft of any rational justification” (eg. if they were
to suddenly pass ‘wicked’ a law saying that all blue eyed babies are to be killed then the judiciary
would not stand for this)
o HOWER: people cannot rely on courts to use morality in order to defend their rights; there is
nothing which indicates that the Judiciary has a greater moral conscience than the Parliament
o Greater faith should be entrusted to Parliament as they are elected & represent will of people
o If the ultimate authority rested with the courts, the same predicament would ensue: court
decisions which are considered unjust (and, since judges are also morally fallible, this will
obviously happen sometimes) would still have to be accepted
o Someone must have an ultimate authority, and it is favourable to the people that the Parliament
will have this authority than the Judiciary

Constitutional amendment
States have the power to amend their Constitutions (subject to ‘manner and form’ requirements).
This power is originally derived from s 5 of the Colonial Laws Validity Act 1865 (Imp) but is now
found in s 6 of the Australia Act (1986).

Alternative Procedure of Legislation

In 1908, The Legislative Council in Queensland repeatedly rejected bills passed by the Legislative
Assembly, creating a political deadlock. To resolve this problem, the Parliamentary Bills
Referendum Act 1908 (Qld) was passed, which allowed for an alternative legislative procedure:

 If a bill was passed by the Legislative Assembly twice, and was rejected by the Legislative Council
twice in succession, the bill could be submitted to a referendum
In 1915, the government used this alternative legislative procedure in an effort to abolish the
Legislative Council.
 The Supreme Court of Queensland issued an injunction to put a stop to the referendum
 The HC removed that injunction since the Queensland government were not going to respond to
the result of the referendum until the High court determined the constitutional issues of this case
 Referendum resulted in a majority ‘no’ decision, yet the HC proceeded to make a ruling anyways:

Taylor v Attorney-General of Queensland

 Queensland Parliament indeed possessed the power to pass the Parliamentary Bills Referendum
Act by virtue of s 5 of the Colonial Laws Validity Act.
 The words of s 5 were not intended to give representative legislatures the power to produce
anarchy by destroying the legislature.
 The powers of a colonial legislature "are limited to determining what shall be the nature of the
legislative body, what its powers of legislation, and what its methods of procedure."
 Since the effect of the Parliamentary Bills Referendum Act was "merely to limit the power of the
Legislative Council by rendering its concurrence unnecessary in the making of laws in certain
circumstances", it is a law within the competence of the then existing legislature.
 The Legislative council was finally abolished in 1921 (ironically, without a further referendum – the
Legislative Council consented to pass the pill ordinarily).
Amending the constitution of the courts
Roughly at the same time, there was an attempt in Queensland to amend the constitution with regards
to the courts of judicature. The Industrial Arbitration Act 1916 (Qld) created a new court, the Industrial
Arbitration Court (IAC) and sought to ensure (under s 6(6)) that the President of that court could also
be appointed a Justice of the Supreme Court of Queensland, with all the normal guarantees of such
an appointment, including tenure for life.

McCawley v The King

This issue was discussed in McCawley v the King:
 The tenure for life issue became problematic because the President of the IAC was only appointed for 7
years, and now s 6(6) sought to appoint him to the Supreme Court for life.
 Taylor’s case was express amendment…in this case parliament didn’t attempt to repeal or amend its
constitution. This law is impliedly amending the constitution

Manner and Form Requirements

Manner and form requirements: “restrict the legislative powers of the Parliament by requiring that
laws on certain topics may only be enacted by a special more difficult procedure”
 Originate from s 5 of the Colonial Laws Validity Act 1865 (Imp), and were later re-enacted in
s 6 of the Australia Act 1986 (Cth)
 Manner and form requirements pose a challenge to Dicey’s notion of Parliamentary
Sovereignty since they could limit the power of future Parliaments
Parliamentary Sovereignty Paradox: Inability to bind future Parliaments
Paradox: Parliamentary Sovereignty lies within the fact that a truly sovereign parliament should be
able to bind future parliaments, but also not be bound by any previous ones. Parliaments cannot
restrict substantive power of future parliaments, but may impose procedural restrictions on certain
legislation, which means a future parliament would have to use a more complicated legislative
procedure to alter the earlier parliament’s legislation eg. double entrenchment.

Double Entrenchment S6:

After the abolition of the Legislative Council in Queensland, NSW to repeal S6-
tried to do the same. This attempt failed, and in 1929 the
government sought to safeguard against future attempts by S7A:
amending the Constitution Act 1902 (NSW). to dismiss LA
 s 7A – Legislative Assembly cannot be abolished/lose its
power unless by referendum
 sub section (6) –s 7A itself cannot be changed/repealed NSW
unless by referendum Assembly
This is an example of double entrenchment: a double protection (LA)
on the law, & it entails that special manner & form provisions apply
to any legislation attempting to repeal or amend the section or
abolish the Legislative Council and this legislation itself. A future government attempted to both
abolish the Legislative Council and repeal this section, without using a referendum. Two members of
the Legislative Council procured an injunction from the Supreme Court to stop both those bills.

Trethowan v Peden (appeal to SC)

 s 7A thus incorporated a “manner and form” requirement imposed by the law within the meaning of the proviso
to s 5 of the Colonial Laws Validity Act
 Note: S (6) creates double entrenchment because it subjects itself to manner & form requirements
o If Sub-s (6) didn’t include subject itself to manner and form requirements, it could be have been
repealed by an ordinary act of Parliament, and then the whole of s 7A could also have been repealed
by an ordinary act of Parliament.
 If s 7A was repealed, the Upper House could be abolished by any normal act of Parliament
Trethowan v Peden (^^appeal to HC fromSC case ^^)
 s 5 of the Colonial Laws Validity Act 1865 (Imp) indeed empowers State Parliaments to entrench future
Parliaments through manner and form requirements
 This should not be seen as ‘restricting’ Parliaments, as technically if it was something that the majority

population really wanted, then the law would still be passed (after the referendum)
 Rather, it’s a method of avoiding rash decisions & implementing careful consideration for passing certain laws

The Executive
Composition & Royal Prerogative
At one time, monarchs of
Federal Executive
England ruled through autocratic
means, making laws through the
exercise of the royal prerogative Represents Queen…

The royal prerogative: ... the Governor Ministers &

remaining portion of the Crown's King or Queen
General public servants
original authority, and it is
therefore ... the name for the residue of discretionary power left at any moment in the hands of the
Crown, whether such power be in fact exercised by the King himself or by his Ministers
 Lost most of their power, especially in regard to legislation - became domain of Parliament
 By constitutional convention it came to be recognised that, even in their higher executive
functions, monarchs must act on the advice of their ministers, who must be members of
Parliament and ultimately responsible to it

Cheryl Saunders – More about Accountability and Responsible Government

Responsible government is a ‘safeguard for quality’ of government centres

 All Ministers are elected Members of Parliament
 Relationship of Ministers to Parliament acts as a quality control or mechanism through which fault
can publicly be exposed for consideration by voters at next election
However, responsible government is not necessarily effective: undermined by tendency of
governments increasingly to rely on exercise of executive power

Powers and Functions

Executive Power Prerogative Power
Executive Power : S 61 of the Constitution vests Prerogative powers: powers inherent to the
the executive power of Cwth in the Queen; states Crown by the common law, which have not been
that it is exercisable by the Governor-General as removed by legislation.
her representative; & provides that the power  Blackstone: prerogative powers are powers
“extends to the execution and maintenance of this that are unique to the Crown (ratifying
Constitution and of the laws of the Cwth treaties, issuing passports)
 s 61 of the Constitution: provides federal  Dicey (broader view): the ‘residue of
executive power ‘extends to the execution discretionary or arbitrary authority which at
and maintenance of this Constitution, and of any given time is legally left in the hands of
the laws of the Commonwealth’ the Crown’
Ambiguity of Executive Power a. ‘It is this more expansive definition that
 s61 is otherwise silent on scope of power has found judicial favour’ (Tomkins)
 Davis v Cwth (1988) – Executive power ‘has  Prerogative powers are a diminishing field –
often been discussed but never defined’ they cannot be expanded
(Mason CJ, Deane and Gaudron JJ)
Justice Evatt and the Republic Advisory
Saunders Committee divided the prerogatives of the Crown
Complications in determining scope of into three categories as follows:
 Relationship between Const. & common law 1. Executive prerogatives: the monarch had
 Division of exec. power between Cwth & States power to do various acts, eg. execute treaties,
for federal purposes (Nationhood) declare war, make peace, coin money,
 Impact of legislation on general executive incorporate bodies by royal charter, pardon
power (Powers conferred by statues) offenders and confer honours
What does executive power extend to?
2. Immunities & preferences: such as the
1. Depth of executive power via Parliament (RG)
o ‘What can the executive do without priority of Crown debts over those owed to other
parliamentary authority?’ creditors, immunity from the ordinary process of
2. Width of executive power of the Cwth via the the courts and freedom from distress for rent

executive power of the States’ (Federalism) 3. Property rights: entitlement to royal metals,
o What are ‘the subjects with which federal royal fish, treasure trove, and the ownership of
executive power may deal’? the foreshore, the sea bed and its subsoil

Modification of prerogative powers

Prerogative powers depend on common law - subject to modification by statute in 2 ways:
(1) Statutes may regulate the exercise of a prerogative power, thus depriving it of its
discretionary elements by imposing certain criteria or procedures which control the exercise of
power. This process still leaves the conceptual source of the power to the prerogative
(2) Statues may completely extinguish the prerogative, making what was previously an
inherent power a power which is derived from statute
3. New South Wales v Cadia Holdings Pty Ltd (2009) – Spigelman CJ, case demonstrates the
ability of statute to abolish prerogative powers of the Crown


Depth of Executive Power

go with parliamentary authority)

DEPTH (how far can executive
‘What can the executive do without parliamentary authority?’
o Inherent powers can be divided into two categories
o Prerogative powers – Power to enter into treaties
o Other ‘common law powers not unique to the Crown’ – Powers to
o Disagreement about understanding of prerogative powers
o It is the ‘residue of… authority… left in the hands of the Crown’ (Dicey)
o It is ‘a discretionary power to be exercised for the public good’ (Locke)
o It is settled that under these inherent powers conferred by section 61
o Commonwealth can enter into treaties, incorporate companies and make contracts
o Subject to considerations of breadth

Case Law: Ruddock v Vadarlis (Tampa Case) (2001) – Case demonstrates the uncertainty about
what the executive branch can do without parliamentary authority
o Black CJ – ‘Doubtful’ that the necessary prerogative exists at common law; that is the
prerogative as the residue of authority left to the executive
o Ultimately, still unclear as to how to determine the boundaries of executive with legislative
power BREADTH: what subjects can executive power be used to
deal with?
Breadth of Executive Power
What are ‘the subjects with which federal executive power may deal’?
o Essentially an aspect of the division of powers between the Commonwealth and the States
o Two questions in determining breadth
o Consideration of whether breadth applies to executive ‘capacities’ or only to
powers in the nature of the prerogative
 Strong view that considerations of breadth are relevant in assessing all
claims of executive power – means that valid Commonwealth contact
requires a link with a subject of legislative power
o Whether and if so how far the breath of executive power extend beyond the
ambit of Commonwealth legislative power
 It is settled that it does extend beyond to some degree

o To the extent that scope of federal executive power exceeds legislative power,
problems of principle arise in regards to responsible government and federalism

Prerogative Powers – Cases

Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508

 Case demonstrates that when legislation covers the same area as a prerogative power, the prerogative
power is modified or extinguished
 This power is now derived from the legislation and is subject to the conditions of the legislation
Background Facts
 UK government requestioned a hotel for soldiers.
 Requisition was pursuant to legislation (Defence of the Realm Consolidation Act 1914 (UK)) which
provided for compensation
 When hotel owners asked for compensation, UK government claimed they exercised prerogative powers

Legal Issues: did the prerogative power exist, and if so how was this affected by the legislation?

Judgment: legislation modified prerogative powers – compensation was payable. The prerogative is ‘merged’ in
the higher title derived by the Act of Parliament. When there is a statutory provision covering precisely the same
ground, prerogative is extinguished (John Simon KC)

Ruddock v Vadarlis (Tampa Case) (2001) 183 ALR 1

 While the executive power may derive some of its content by reference to the royal prerogative, it is a power
conferred from the Constitution - the power to determine who enters Australia is a main sovereign power
 It cannot be that the Constitution or any legislation deprives government from having this power

 Facts: Norwegian ship carrying asylum seekers came into Australian territorial waters and were expelled
from Australia. Government claimed that the detention and expulsion of the asylum seekers was an exercise
of prerogative power

 Legal Issues: does the Crown have the royal prerogative to exclude aliens from Australia

Judgment – Full Federal Court – Majority Opinion (Led by French J)

 Does the power exist? YES.
o French J Doesn’t look at whether this power has existed historically – draws he facts that it exists
because it is a main sovereign power
 Not the Constitution nor any legislation can deprive the government from having this power
o Prerogative power exists and includes detention and operates alongside the statute
o Unless modified by statute, s 61 of the Constitution allows the executive to exclude or prevent the
entry of a non-citizen to Australia and power incidental thereto
 Has the power been modified by statute?
o No express words that suggest that Migration Act 1958 aims to abrogate this power
o The Act seeks to confer power, not curtail it
 Decision reversed, valid exercise of prerogative power

Judgment – Full Federal Court – Dissenting Opinion (Black CJ)

 Prerogative powers are dated – ‘Prerogative powers have become incompatible with modern constitutional
jurisprudence’ – not exercised since 1771

Williams v Commonwealth (School Chaplains Case) [2012] HCA 23

 Loopsks at the ‘other capacities’ of the executive power

 As a result of Williams, the government no longer really has all the rights of a legal person
Background Facts: National School Chaplaincy Program (NSCP) created by the commonwealth in 2006 as a
voluntary program under which schools may seek financial support to establish or enhance chaplaincy programs.
Challenged the validity of the program as being beyond Commonwealth Power
Legal Issues
 Validity of NSCP as being beyond Commonwealth power. Believed that separation of church and state under
s 116 did not happen
 The validity of the Commonwealth’s appropriation of the funds and its expenditure of them pursuant to the
funding agreement
 Commonwealth lacked power to enter into funding agreement and make payments under it to SUQ
Judgment – French CJ
No longer can there be a complete analogy with a legal person – too simplistic – the government is very different
to an ordinary person in many respects:
 Ordinary/well recognised functions of govmt  Exercise of power derived from act of parliament
 Admin of departments of state  Exercise of powers defined by reference to prerogative
 Execution and maintenance of laws of the properly attributable to the Cwth
Commonwealth  Exercise of inherent authority derived from status of
Commonwealth as national government (Nationhood)

Executive Accountability
Delegated legislation: is law made by an executive authority under powers given to them by the
legislature in order to implement and administer the requirements of that primary legislation. It is law
made by a person or body other than the legislature but with the legislature's authority
 There are very few limits at all between the parliament and the executive from an SOP
standpoint – legislature can confer many powers to executive

Delegated Legislation
Cheryl Saunders - Separation of Legislative Powers

Separation of Legislative Powers – Practice

 Parliamentary control of delegated legislation through repeal of empowering statues is too blunt an
instrument to effective
 It is now supplemented by other relatively sophisticated parliamentary procedures:
(1) Legislation requires all subordinate instruments of a legislative character to be registered
on the Legislative Instruments Register, as a prerequisite to enforcement
(2) All registered instruments must be tabled in both Houses of Parliament and are subject to
disallowance by either House, within prescribed time limits
(3) Senate Standing Committee on Regulations and Ordinances is charged with
responsibility of scrutinising all instruments by reference to stipulated standards with a
view recommending disallowance to Senate if necessary
 Notice of a motion for disallowance will cause the Minister to spark negotiations
o If remedial action is taken – Notice of motion will be withdrawn
o If remedial action is not taken – If disallowed, cannot be remade for 6 months

Dignan (1931) - Delegated Legislation

 Illustrates the influence of the underlying conception of legislative power and the structure of
responsible government on the constitutional separation of powers

Legal Issues
 Did the doctrine of the separation of powers impose limits on delegation of legislative power to the

Judgment – Dixon and Evatt J

 The validity of the delegation was upheld
o No member of the court held that the doctrine of separation of powers imposed limits on
delegation of legislative power to the executive
 Limitations could be derived from the concept of law-making itself
o Legislative power of Australian Parliament is not conceived as a delegation from the

people, but as a power of ‘plenary and absolute’ nature
o A power once delegated to the executive, no matter how extensive, lacks ‘independent
and unqualified authority which is an attribute of true legislative power’
 Delegated authority is controlled by the empowering statute and will lapse if the
statute is repealed

Judicial Review of Administrative Action for the Executive

Con S51

Migration Act 1958

Gives power to

DIMIA refuses Joe’s application

Merits review
Judicial review

Can appeal if unjust

RRT / AAT Courts (FC/HC)
Can make new decision – replaces Legality – e.g breach of NJ (if there
original decision was information which was ignored
- binding by DIMIA official)

Original decision NULLIFIED

 Substantive problem (regarding substance): if you think the decision maker made an error of
fact, then you should go to the AAT or RRT. However you run the risk that they will just make the
same decision as DIMIA
o At AAT or RRT they will consider the same information as DIMIA – no more information
 Procedural problem: if something went wrong with the procedure - would go before the courts
 SOP: administrative tribunals cannot look at judicial review – it is only something which can be
examined by the courts
 Human rights in judicial review: few rights enshrined in constitution, more likely to pursued by
tribunals or the courts. However, DIMIA still owes its existence to statute – if it is not within its
mandate to rule on rights issues then it wont
 Why does the RRT and AAT have so much power?: they are part of the executive and are in a
sense keeping the executive in check (executive checking the power of executive)
o No one should have unfettered power
o They also have experts from all fields – an informed way of making decisions
o Not just a few old guys making a call – very much based on factual questions
o Executive must be answerable to the law
More thoughts on judicial review
What is court’s power to respond to the request? If court has power, what is the public body’s power?
- SOP: who has the last say and what is lawful government action?
o Parliament confers power onto Executive – makes law. Courts have the final say on
matters of procedure and legalistic interpretation
- Judicial review of admin action is not about redressing injustice or error
- Judges should never have the final say on government decisions; government is legitimised due
to representative government
- Executive are more expert in making policy decisions – they are making decisions every day, they
are going to be very informed and across the detail of their area and it makes sense that they
make decisions. The judges do not have this expertise
- JR provided under Constitutional JRAA and also under the constitution
o In all Matters:
 In which a writ of Mandamus or prohibition or an injunction is sought against an
officer of the Commonwealth; the HC shall have original jurisdiction
o There are different sorts of errors of law and not all errors of law are guaranteed
o The only judicial review that is guaranteed relates to jurisdiction
Jurisdictional error - It is interesting to think about this in terms of cats and dogs…
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions
and powers conferred on him or her; does something which he or she lacks power to do…
Cat Act 2013 Jurisdiction error - very open and difficult to define
Cats Tribunal - Jurisdictional error if it a decision was made regarding dogs
- Orders on cats - Jurisdictional error if a lion did it and they said that it does not have
- Disruptive jurisdiction because a lion is a cat
- Irrelevant consideration: ignored request because Jill has red hair
- Natural justice: if Jill was not allowed to present evidence on the
case (e.g. CCTV footage)

Mark Aronson and Matthew Groves

 The ‘core task’ of judicial review is determining the legal validity of government action
What is the court’s power to respond to the request?
 Justice Brennan: because the courts have no staff to enforce their orders… the efficacy of
judicial review is dependent… on the public acceptance of its “political legitimacy”
What is Judicial Review for?
His Honour (Brennan J) stated in Attorney-General (NSW) v Quin (1990) 170 CLR 1:
 JR has always been more comfortable with review for errors of process than errors of substance
eg. jurisdictional errors
 The job of judicial review was to enforce the legal limits to the exercise of power
 It was not to cure administrative injustice or error, although if a court’s decision were to have that
effect then ‘so be it’
 His Honour acknowledged that it can be difficult to distinguish merits and legality

Judicial review judgments abound with assertions that the court’s job is not to determine the case on
its merits, but to review only for contravention of an Act, breach of natural justice or illegality
Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24:
“The limited role of a court reviewing the exercise of an administrative discretion must constantly be
borne in mind. It is not the function of the court to substitute its own decision for that of the
administrator by exercising a discretion which the legislature has vested in the administrator”
 It is fundamental that the reviewing court cannot substitute its decision for that of the administrator.
The most the court can do when it finds that a ground of review has been established is to nullify
the impugned decision or act…
Formal and Substantive Reasons for why Courts cannot substitute decisions
Formal: ‘the Act… gave the job to the administrator, not the court. The court can state that the job has
been done so badly that it should be regarded as not having being done at all, but it has no warrant for
taking the further step of doing the job itself’
 This would be an exercise of executive power, conflicts with the Separation of Powers
 This would be usurping the power of the Executive
Substantive: ‘the inability of a judicial review court to substitute its decision for that of the
administrator is that such a course would be more than illegitimate; it would be politically and
managerially foolish’
 There would be loss of public confidence in the courts
Important rule of law dimension to administrative law is proposition that all powers have limits
‘The overall ground of judicial review is that the repository of public power has breached the limits
placed upon the grant of that power. Usually, the breach will consist of:
 the done of power doing something more than was authorised, or
 doing something authorised in an unauthorised way.
Aronson and Groves emphasise that realistically Parliament:
(1) Is unlikely to spell out all of the legal limits which will apply to a power conferred upon the
executive – which means a great deal is left to judicial implication in giving effect to
administrative law principles

(2) is unlikely to spell out whether an executive decision would be a legal nullity if it was the
subject of a successful judicial review challenge – which means the courts have to determine
whether the error is a legally fatal one
When is Executive action reviewable by the courts?
 When it comes to constituently guaranteed judicial review, the crucial threshold for whether an
error of law is a reviewable error is whether it is appropriately categorised as a ‘jurisdictional error’.
 In terms of the judicial review made by a statute like the federal ADJR Act, ‘all material legal
errors’ are reviewable.
o Unprotected by the constitutionally guaranteed minimum of judicial review, Parliament
retains a legal capacity to limit/exclude review of such errors

Non-Judicial Methods – Responsible Government

Responsible government: the Crown acts on advice of its ministers (except in the exercise of their
reserve powers). By virtue of s 64, all ministers must be elected members of parliament, and are
therefore accountable to their electors

s 64 – ‘no Minister of State shall hold office for a longer period than three months unless she is or
becomes a senator or a member of the House of Representatives’

Hugh Emy and Owen Hughes

Identifies elements of responsible government as well as their problems.

(1) Ministers are members of parliament and thus held accountable to electors.
(2) Governor General acts on behalf of ministers, but also has reserve power that he may draw
upon in the case that the government breaches the Constitution
(3) Government may be dismissed in two ways: losing an election, or losing a vote of
confidence in the lower house
(4) Executive is supported by an independent, political-free bureaucracy whose employees are
promoted on the basis of merit. They form their duties objectively regardless of the party in
(5) Direct chain of accountability through all executive members

(1) Chain of accountability – do ministers actually control over their departments & public
(2) Does parliament actually have control of the ministers?
(3) Problems caused by the Senate’s power to block supply under s 53. (Block money bills)
o Obstructs the majoritarian notion of responsible government
o Senate can potentially impede smooth operation of responsible government
(4) The Governor General is actually invested with tremendous power. Has power, and has done
so before, to dismiss a government which enjoys a majority in the lower house.

Egan v Willis (1998) 195 CLR 424

 Parliament has capacity to call the Executive into account. It has a power to take ‘reasonable’
measures to ensure the proper exercise of its functions- this power is defined by the conventions
and practices of the time
 Reaffirmed conventions of responsible government, the review function of the Upper House and
developed the new idea that a Court could impose a remedy that interfered in the political arena
Background facts: Michael Egan, treasurer, was called upon by the Legislative Council to produce
certain documents. He refused to do so since the cabinet previously agreed that such requests should
be declined. The Legislative Council passed a resolution charging him in contempt and another a
resolution which suspends him from the council. He was then forcefully removed into the street. Egan
sought a declaration to invalidate the two resolutions (claiming he wasn’t in contempt) and that his
removal was a trespass (It was this claim which made the matter justiciable)
Legal Issues: did Parliament have the power to call the government into account?

Court of Appeal High Court
 Both resolutions were  The Legislative Council has the power to take measures to
valid ensure the proper exercise of its functions
 However, trespass was  This power is defined by the conventions and practices of the
committed contemporary time
 The resolutions were thus valid
 The Legislative Council has the power to charge the executive
with contempt and suspend them
 The Parliament therefore has the power to call the government
into account. The government is answerable to the demands of
the Parliament

Egan v Chadwick (1999) 46 NSWLR 563

 Background Facts: case reaffirms notion of accountability of a government to Parliament.

Michael Egan, treasurer, was called upon again to produce documents. He refused, claiming the
documents were protected by the legal professional privilege and public interest immunity.
Legislative Council passed a resolution charging him in contempt and another a resolution which
suspends him from the council – He was then forcefully removed into the street. Egan sued that
his removal constituted an assault
 Legal Issues: responsible Government: power of Parliament to call the government into account

 Responsible Government
o As stated in Egan v Willis, the Legislative Council has the power to take measures to ensure
the proper exercise of its functions, and call the government into account
 Legal professional privilege
o Yields to the accountability principle of responsible government:
o “access to legal advice on the basis of which the Executive acted…[was] reasonably
necessary for the exercise by the Legislative Council of its functions”
 Public interest immunity
o For the performance of its proper functions, the Legislative Council will sometimes need
access to documents which may cause harm to the public interest if their exposed
o The issue is balancing Cabinet secrecy and the power of the Parliament to enforce
responsible government – however, it is not for the court to do this balancing – it is for the
 such a balancing exercise would not be a “constitutional function appropriate to be
undertaken by judicial officers”
 “the court should respect the role of a House of Parliament in determining for itself what
it requires and the significance or weight to be given to particular information”
o The Legislative Council thus has the power to demand documents - subsequently, the
resolutions were valid
o However, court held that ‘cabinet documents’ (documents which reveal the internal
deliberations of the Cabinet) should remain secret, as they are a part of ‘ministerial
responsibility’, which is a part of responsible government

Other Methods (Integrity Institutions, Merits Review, The Ombudsman)

Integrity Institutions: supplementing traditional institutions of

government (Saunders):
• deal more effectively with individual grievances
• Investigating maladministration
• Enhancing transparency
• Combating corruption
• Protecting electoral democracy

Merits Review Transparency Anti-corruption Ombudsman (Exec)

Freedom of Information Act Two main functions are to

1992: conveys right to investigate complaints
freedom of information from members of the
Has the coercive powers of a public and to undertake its
May substitute their own idea Requires agencies to make Royal Commission and can own investigations
for what is ‘correct or certain categories of compel witnesses to testify
preferable’ information publicly available  Significant powers of
Not bound by government Commissioners must be questioning seldom
policy Some exemptions (cabinet former judges used
Significant mechanism for notes)  Expanded alot
responding to individual Usually more members from
grievances governing party

The judiciary
Composition and appointments

A number of key issues need to be considered when assessing systems for making judicial
appointments. These include:

 Judicial independence;
 Merit-based appointments;
 Equality and diversity;
o Culture, Gender, Age, Education, Geography
 Transparency and accountability

Source: Blackshield and Williams

There have been 48 appointments to the High Court

 The Justices have come from a relatively narrow selection of Australian society
o Only four women have been appointed
o Most have had experience at the Bar – None had been appointed from a full-time
academic position
o Appointments have often been political – First five justices were colonial politicians

 ‘It is enough to say that outstanding professional skills and personal qualities, such as integrity
and industry, are required, together with a proper appreciation of the role of the Court’ (Williams)
o Confirms suggestion that appointees should be selected on essential criterion of merit

Source: Francesa Dominello and Eddy Neumann

 There is yet to be an appointment not of Anglo-Celtic background

o May not accurately reflect contemporary values, questions legitimacy

Source: Andrew Lynch

 ‘A belief that appointments that are made on merit alone is quite naïve’ (Gageler)
 ‘wider considerations can, and ought legitimately to be, brought to bear’ (Gageler)
 Merit is argued as a threshold which must be met, after a consideration of diversity
 ‘we are not talking about diversity allowing someone who actually is not capable of doing the job to
be chosen because they would somehow create a more diverse judiciary’ (Cheryl Thomas)

Defining Judicial Power

Ultimately, the decision in the Boilermakers Case has often been circumvented as the definition of
what exactly is ‘judicial power’ is vague enough for manoeuvrability. The classic definition was given in
Huddart, Parker & Co Pty Ltd v Moorehead:
 “…power which every sovereign authority must of necessity have to decide controversies between
subjects, or between itself & subjects, whether rights relate to life, liberty or property
 The exercise of this power does not begin until some tribunal which has power to give a binding and
authoritative decision (whether subject to appeal or not) is called upon to take action ”.
This vague definition entails that tribunals (which are considered administrative or executive
institutions which are not vested with judicial power) whose functions might be considered ‘judicial’
have still been valid, if the particular grant of power can be matched with a legislative purpose. For
example, in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, it was held that
the functions of the Trade Practices Tribunal did not involve judicial power.
 Thus, the line between judicial and executive power in can blurred
 Changing circumstances from 1900 make it harder to draw up a particular definition.
 Keeping a broad definition of judicial power enables the courts greater leeway

A.R. Blackshield - The Law

 “Judicial power” is controlled power - its exercise must be based on authoritative legal materials
 Some argue that the application of “standards” exceeds the scope of judicial power because, by applying
standards, the individual brings into play his subjective evaluations
 Others argue that tightly defined legislative guidelines leave the court no leeway in its application of the
predetermined law, which is also incompatible with the idea of “judicial power”
 A court has a “duty” to act – must settle an issue that is brought up.
 However it usually lacks discretion in two areas:
o Cannot embark on action of its own initiative - must wait until a claim is filed or an application is
o Must then determine the issues raised by that claim or application.

Separation of Powers
The doctrine of the Separation of Powers purports to prevent the exercise of arbitrary or tyrannical
power. It does so by dividing powers between various independent institutions. In other words, rather
than one person holding all the power (like in a dictatorship), power is spread between separate
people. The power of the state is usually separated into three different arms:
 Legislative (or lawmaking) power: the power to pass laws. It is entrusted to Parliament

 Executive power: the power to enforce or carry out the laws passed by Parliament. It is
entrusted to the government, and the public servants which the government employ (police,
public teachers and doctors, the RTA, etc)
 Judicial power: the power to interpret and judge according to the law made by parliament. It
is entrusted to the courts and judges

Baron de Montesquieu - The Spirit of the Laws

 If the legislative and executive powers are infused in the same institution, there can be no liberty. The same
applies when the judiciary is not separated from the legislative and executive
 No separation between judiciary and legislature - citizens would be subject to arbitrary control; the judge
would be then the legislator
 No separation between judiciary and executive - judges might behave with violence and oppression

Owen Wood Phillips & Paul Jackson - Constitutional and Administrative Law

 The categories are inclined to be blurred. For example, the Constitution requires the executive to be
members of the legislative.
 Complete separation of powers would bring government to a standstill
 What the doctrine must be taken to advocate is the prevention of tyranny by the conferment of too much
power on any one person or body, and the check of one power by another.

Gerard Carney - Separation of Powers in the Westminster System

 There is no current constitutional system which has complete separation of powers.

 The strict doctrine is only a theory – gives way to the realities of government where some overlap is
 Whilst this overlap exists, a system of checks and balances has developed

Separation of Federal Judicial Power

Judicial review is relied upon to enforce limits on the executive and the legislature. To ensure this,
courts must be entirely independent from the government and the legislature.
 This applies in both in the state and federal level.
The separation of federal judicial power from the other branches of government was discussed in

Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan:

 Dixon J suggested two principles of the separation:

o Judicial power can only be vested in a court as per under Chapter 3 of the Constitution (s 71)
o A court as per Chapter 3 of the Constitution can only be invested with judicial power (can’t be invested
with non-judicial power)
 This is except for those additional powers which were strictly incidental to its functioning as a court
 Thus, judicial and non-judicial power could not be mixed up in the same court.
 This suggestion was held in R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ Case): SEE
BELOW ↓ ↓ ↓ ↓ ↓ ↓ ↓ ↓ ↓ ↓↓ ↓ ↓ ↓ ↓↓ ↓ ↓ ↓ ↓↓ ↓ ↓ ↓ ↓↓ ↓ ↓ ↓ ↓
R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ Case)

 Vesting of judicial power in a body which also exercises non-judicial power is unconstitutional – Arbitration
court cannot enforce the no-strike clause.
 Parliament cannot invest judicial power to anybody except a court as per s 71 and in accordance with s 72
(security of tenure)
 There are considerations which indicate that the Constitution prohibits courts from doing functions which are
not a part of judicial power.
 Chapter 3 does not allow powers which are foreign to the judicial power to be given to the courts.
 Courts must be entirely independent of federal government as well as state.
 Privy Council: the express mention of one thing means the exclusion of another.
 Applying to the text of the Constitution – Chapter 3 expressly mentions Chapter 3 courts as the only type of
court invested with judicial power.
 This excludes non-judicial power, therefore a Chapter 3 court cannot exercise such powers.

The decision in the Boilermakers Case has been seen as controversial and as “leading to excessive subtlety and
technicality in the operation of the Constitution without…any compensating benefit”.
However, the courts continue to affirm the Boilermakers Case. The rationale for that is to protect the individual
rights and freedoms of the people.

Persona Designata Rule
The Persona Designata rule allows non-judicial functions to be assigned to particular people,
regardless of whether they also happen to be vested with judicial power since they are incidentally
judges as per Chapter 3.

Basically, although a Chapter 3 court cannot be endowed with non judicial functions, a federal judge
may be appointed or assigned to perform non-judicial functions as long as that particular assignment
is addressed to that particular person (and not the court).

Drake v Minister for Immigration & Ethnic Affairs (Bowen CJ and Deane J)

“Nothing in the Constitution precludes a justice of the High Court or a judge of this or any court created by the
Parliament under Ch III of the Constitution from, in his personal capacity, being appointed to an office involving
the performance of administrative or executive functions including functions which are quasi-judicial in their nature

Hilton v Wells >>> Reaffirms the above case ^^

 The requirement of the person being a Chapter 3 judge is simply reflective of the qualifications the person
issuing warrants must have
Grollo v Palmer debated whether judge could be assigned admin/exec role persona designata
 2 conditions are needed to confer non-judicial functions on judges as designated persons:
oConsent from the judge himself.
oMust not be incompatible with judge’s performance of judicial functions/proper discharge of judiciary
 Incompatibility can consist of:
o Such a strong commitment to the performance of non-judicial functions that it is not possible for him to
exercise judicial functions
o Nature of non-judicial functions compromise ability of judge to exercise judicial functions with integrity
o Nature of non-judicial functions diminish public confidence in the ability of the judge to exercise judicial
functions with integrity.

Judiciary Class Notes

Again in the domain of the separation of powers - the High Court has said there is an implied structural
SOP in Australia as reflected in the beginning 3 chapters of the constitution which outline the roles of
the judiciary, executive & legislature. However, since we have inherited responsible government from
Britain, this is not a strict SOP as there are numerous accountability measures which vitiate this SOP.

Additionally, the power of the parliament to delegate its law making function to the executive in the
form of delegated legislation blurs the line between the executive and parliament. In theory however
there is supposed to be a strict SOP between the judiciary and the other two arms of government.

Judicial power in the constitution – B&W

Constitution S71: judicial power shall be vested in the HC, other federal courts that parliament
creates. The HC shall consist of a Chief Justice, and so many other Justices, not less than two, as the
parliament prescribes.

o Judicial power can only be exercised by CH III Courts. Our authority for this is the Meakes
case; Alexander’s case
o Ch III Courts can only exercise judicial power (Boiler makers principle)

The three types of courts discussed in S71 are the only courts which can exercise judicial power:
1. High Court
2. Other courts which legislature creates
o Federal court, Family court Federal magistrates court
3. Such other courts that it invests with federal jurisdiction: there are federal
criminal offences which are usually heard by State Supreme Court – when
these cases are heard they are exercising Federal jurisdiction)
o State supreme courts

The judicial power cake

- Two fundamental principles which place a limitation on judicial power in Australia
o Only judges can eat it
o This is the only thing which judges can eat
- What are the ingredients of this judicial power cake? How do we delineate judicial power from
executive power? How do you define judicial power?
o Judges enforce & declare rights as opposed to exercising arbitrary power
o Resolve disputes between powers?
o Binding and conclusive decision to resolve a controversy or dispute between parties and
for which involves the determination of existing rights as opposed to the creation of new
o Interpreting statutes and the constitution – restricted by existing rules
o Judiciary has autonomy but not too much discretion – there is a sweet spot between the 2
o Blackshield says that the historical role of a body could determine whether the role is
judicial or non-judicial?
o Is the power being exercised in a judicial manner?
o When a matter is heard ex-parte this is an indication of the power being non-judicial
o Some powers are so borderline, that the chameleon doctrine can come into play: e.g. if it
is heard in a tribunal it is administrative if it is in a court it is judicial

Is this judicial power?

Scenario Reasons
A body makes an award for a dispute - This is non-judicial as they are creating new
between an employer and employee  rights
A body interprets legislation to decide if the - This is judicial power as they are interpreting
rights of an employee have been violated?  rights
- Cannot create precedent – courts are bound by
the doctrine of precedent
Merits Review Tribunal – AAT (this is not
straightforward)  -
Rule of evidence do not apply in the AAT
Judges actually do make the decision on the
tribunal but the power is still non-judicial

Separation of judicial powers

- Enforcing the separation between judicial powers is difficult
- Finding whether something is judicial or non-judicial can have huge ramifications for
commonwealth law
- If a body exercises judicial power, and is decided by a judge, then under s 72 it could be
constitutionally valid or vice versa

Discussion questions
1. What is the modern rationale in Australia for a separation of judicial power and the
Boilermakers principle?
- Separation of judicial powers is necessary because:
o To protect federalism (e.g. you have an independent arbiter making decisions to resolve
disagreements between states). However, this could create pressure from the government
for the Federal Court to confer power to the Commonwealth as opposed to the states.
There is an assumption however that these judges would be independent – the prime
minister is not going to be influencing them behind the scenes.
o Baron de Montesquieu: you cannot vest too much power in one body or entity – you
need to fragment power to protect liberty. Vesting too much power with one entity or body
could have disastrous or tyrannical consequences
o Acts as a check against power: the separation of judicial power increases the
accountability of the executive and the legislature

NOTE: The modern rationale is more to do with rights protection than preserving federalism. Also on
the state level there is not a constitutionally mandated SOP – however parliament did entrench SOP
and security of tenure. In the Kable case, it was determined that you cannot entrench a separation of
judicial power on the state level in the same way that it is entrenched on a constitutional level – though
you can introduce legislation to mandate this, it will not bear constitutional authority.

- Boilmaker principle
o the judicial power of the Commonwealth could not be vested in a tribunal that also
exercised non-judicial functions
o restricted the use of judicial power to Chapter III courts (under the Australian Constitution),
but also limited Chapter III courts to perform no other duty than exercising judicial power
o The rationale of this principle is that if a body were to have both then independence may
be vitiated

The judiciary is ultimately responsible for maintaining and enforcing the limits of governmental
power. This is the basis for which the whole system is constructed.

2. What is the relevance of s 72 of the Constitution to the Separation of powers?

- S 72 says that judges must be appointed by the governor general, shall not be removed except by
the governor general (for being naughty), shall receive remuneration (security of tenure)
- Any bodies which appoint officers outside of this definition could not be considered to be a court
for the purposes of SP
- Security of tenure: provides a check against judges being dismissed because they have made a
decision that the legislature and the executive do not like – helps to preserve their independence.
- Remuneration is fixed over the judge’s tenure: the executive cannot put pressure on the
judges by reducing remuneration if there is a judgement that they do not like
o Salaries of judges are usually done at arms-length from parliament to prevent any
conflicts of interest
- These measures give the public confidence in their independence
- The HC has had constant refurbishment issues since the 1990s – this has been speculated
humorously whether the executive has been expressing their displeasure over Mabo and Wiik

3. Outside the constitution, what protections exist for judicial independence?

- Immunity of the judiciary from civil liability: they cannot be charged with negligence etc. from the
conduct of their job – they are not immune from prosecution for corruption
- Process for making judicial appointments can enhance judicial independence – however, the
current process is a non-transparent process and judges are appointed by the executive, perhaps
bringing the independence of the judiciary into doubt

Exceptions and anomalies

- Some doubt over where courts and territories fit in – they get there source of power from s122 and
not from CH3 – this has not been addressed by the courts yet
- Parliament has the power to punish people for contempt – try convict and punish people who hold
parliament in contempt – the parliament has the power to gaol someone for 90 days; sounds like
judicial power but exercised by the parliament
- Military tribunals: exercise what looks like judicial power in the sense that certain offences for
indecency and theft, where they are committed by a member of the military on the military base,
they will be punished by the military tribunal. For a long time this was just accepted from a
historical perspective that there was a long standing tradition that the military should be able to try
their own internally – the drafters of the constitution probably expected this power to be exercised
this way. However, it has changed recently because they were originally established via s 51 as a
power of the Commonwealth. It has recently changed so that there was a CH III court established
by the John Howard government where judges had 10 year terms after they left the military and so
did not have
o Therefore you had a non-constitutional conferral power onto a ch III court due to a lack of
security of tenure – it looks like judicial power, sounds like judicial power but its actually
legislative power. New court was found to be invalid because it is constitutionally invalid
o There are plans for a new court which will abide by Ch III
o R v Bevan; Ex parte Elias and Gordon (1942) it was held that courts martial and other
military tribunals “do not form part of the judicial system of administering the law of the
land” and to give them jurisdiction even over civilians “would involve no infringement upon
judicial power of the Commonwealth”

- Persona designata exception: when a judge is given a role outside their role of a judge and this
is considered to be ok because they are not acting as a judge but rather a non-judicial person.
They have been given a non-judicial function to exercise and we know that this is not allowed,
however there is allowed when this conferral is as a person, not as a judge. The judge is not
eating judicial power cake, but it is ok because he is not doing it as a judge but as a person
o Examples of judges exercising non judicial power
 Warrants (telephone warrants): this is interesting because the judge could issue
the warrant and then later be on the trial – they may have to awkwardly recuse
themselves without giving a reason
 Royal Commissions
 Preparing a report for parliament
o These roles are given to judges because they practiced in judicial functions so are
suitable to roles which are similar to what a judge does on a court eg. we would like these
individuals to be impartial, applying judgements to facts and are a
o These are explicitly non-judicial functions but to do them well you need to be a judge
o Arguably, parliamentarians are borrowing the services of judges to do their dirty work
o There are limits to the powers of judges with regards to non-judicial functions

The prohibition of assigning of non-judicial functions to bodies exercising judicial functions can be
circumvented using the Persona Designata Rule, as long as they don’t compromise its integrity
perceived integrity in any way.

Accountability - Michael Coper
s 72 of Australian Constitution – ‘provides a procedure; only once invoked but never concluded; for
the removal of Justices in extreme cases’
 ‘Removal requires proved misbehaviour or incapacity’ and an address by both Houses of
Measures of Accountability
Measure Description
The Court’s decisions are capable of being overridden in other ways – though not
commonly and not without difficulty
 Decisions on common law and statutory interpretation, if perceived to be
wrong or inconvenient or otherwise inappropriate, may be overridden by
1. Court Parliament
Decisions can  Decisions on the Constitution can too be overridden, however not by
be overridden Parliament alone, but by the electorate voting at a referendum to amend the
 Different effects on Justices:
o Some are inhibited from exercising a broad law-making function
o Some are emboldened by the knowledge that their errors can be
o Both views assume that legislative correction is a practical proposition
o In truth, legislative correction is sporadic, uncertain and relatively rare
It conducts its work in open court and it publishes its reasons for decision. Those
reasons are then open to public scrutiny, appraisal and criticism
 Despite a limited statutory duty on many administrators to provide a
2. Publishes statement of reasons, this makes the Court significantly different form
reasons for administrative decision makers, whose accountability rests primarily in
decisions which correction on review or appeal
can be  This is the key to Court’s accountability, open court principle and obligation to
scrutinised publish reasons are central elements to the rule of law that underpins our
democratic system of government
 The efficacy of published reasons as an accountability measure depends,
however, on the existence of a community of informed & attentive critics
A way for which the Court is accountable for its work comes from within itself and
its own sense of responsibility
 Accountability comes with the appointment of persons of integrity, whose
3. Holding itself
professional ethos and sense of public service have been developed over
many years
 To some extent, we cross our fingers and rely on the appointers to be diligent
and responsible, and on the appointees to exercise internal and external

Tony Blackshield
 Removal of Justices of the High Court is strictly controlled by section 72 (ii) of the Constitution, which seeks
to balanced judicial independence and judicial accountability. A justice may be removed only by the
Governor-General in Council, and only after ‘an address from both Houses of the Parliament in the same
session, praying from such removal on the ground of proved misbehaviour or incapacity’
Alpheus Todd
 Misbehaviour includes,
o firstly, the improper exercise of judicial functions;
o secondly wilful neglect of duty, or non-attendance;’
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012
Source: By requiring the conduct of a judge to amount to ‘proved misbehaviour or incapacity’ in the estimation of
both Houses of the Parliament, the Constitution ensures that only the most serious complaints against judges are
 In the event of a serious complaint about a judge, where the Parliament is called upon to consider the
removal, there is currently no standard way to assist the Parliament
 The bill enables Parliament to establish a Parliamentary Commission where a resolution is passed by each
House of the parliament, in the same sittings, to investigate a specified allegation about a specified

Commonwealth judicial officer

Rights Protection
Human rights are entitlements which a human being can claim simply because he is a human being.
Examples may be drawn from the Universal Declaration of Human Rights 1948[2]:
 Article 3: Right to life, liberty and security of person
 Article 18: Right to freedom of thought, conscience and religion
 Article 19: Right to freedom of opinion and expression
 Article 20: Right to peaceful assembly
 Article 26: Right to education

Although the declaration was drafted as a non-binding statement of values, it is now viewed as a form
of customary international law which should be binding to all states – it has influence which exceeds
its legal effect (similarly to the Magna Carta).

Louis Henkin - discusses the nature of human rights

 Human rights are defined and particular, not vague
 Human rights are universal
 They are the benefits which are essential for individual well-being, dignity and fulfilment and
that reflect a common sense of justice, fairness and decency
 Human rights imply the obligation of society to satisfy those claims (through development of
institutions, mobilising resources etc)
 Human rights are between an individual and the state
 Human rights are not necessarily absolute. In a case of emergency, these rights may be
undermined to the extent that is necessary

Human rights can be sorted into 2 broad classifications Civil/Political rights, & Economic/Social rights:

Right Description

“Civil and political rights can be described as the rights which enable
individuals to operate freely within the political system and to be protected
from arbitral action in the administration of the law” or “limitations on what
the government might to do the individual”

Civil/political These include freedoms to exercise rights without government intervention – namely,
rights liberty, freedom of expression, freedom of religion, freedom of movement etc. In
(negative addition, they ensure that a person whose rights have been violated will have
immunity available remedies as a result. Examples are provided through the International
claims) Covenant on Civil and Political Rights:
 Article 19: Freedom of expression
 Article 26: Equal protection under the law

“Allowing people to own property, to work in fair conditions and to be

guaranteed an adequate standard of living and facilities for education and
the enjoyment of life and the culture in which they live or have been
brought up,” or “claims to what society is deemed required to do for the
social rights These are the obligations of the state towards the individual – namely, the state must
(positive create institutions and provide resources for welfare, education etc. Examples are
claims) provided through the International Covenant on Economic, Social and Cultural
 Article 9: Right to social security
 Article 11: Right to adequate standard of living

Despite these legislations, neither of the Covenants (or the Universal Declaration of Human Rights
1948) have been wholly implemented. Australia is the only democratic country in the world without
such a national law.
Human rights in Australia
Roach v Electoral Commission
 Australian Constitution not the outcome of a revolution
 Framers not prepared to put fetters on legislative action
 Scarcity of formal guarantees of rights and freedoms in Constitution – reflects high level of
acceptance in sovereignty in government

Human Rights Protection in Parliament – Williams and Burton

 Australia has rejected a courts based model of HR protection and built upon laws in the UK to
emphasise the role of parliament
 The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) provides parliament with the
exclusive role of rights protection
 Parliamentarians see rights protection as a central role. Reflected by statutes:
o Racial Discrimination Act 1975 (Cwth)
o Sex Discrimination Act 1984 (Cth)
 Some human rights are explicitly or impliedly protected in the constitution
o Certain limits on legislature and executive (responsible and representative govmt)
o Separation of judicial power (ch III) – due process as a right
 Some rights are protected by the common law through two canons of statutory interpretation:
o The principle of legality: the notion that where the wording of a statute is ambiguous
it will not override fundamental rights
o Presumption of consistency: provides that legislation should be read consistently
with international human rights norms – where language in a statute is ambiguous
 A court decision by itself is unlikely to garner the support that a lasting HR issue needs

Strengths Weaknesses
 Prevent HR abuses before they occur via  Lots of bills – difficult to scrutinise all
promulgation of statute legislation for HR principles
 Democratically sound  Disagreement as to what constitutes rights

Existence of Negative/Positive claims in Australia – B&W

 The courts in Australia frequently recognised negative immunity claims, but rarely have they
recognised positive claims. This has been exemplified in:
o Lange v Australian Broadcasting Corporation: s 7 and s 24 of the Constitution (imply
political freedom) do not confer rights upon the individual but rather pose a restriction
upon the government to curtail these freedoms
o s 116 of Const. (freedom of religion) – “The Commonwealth shall not make any law…”

The effect of these being ‘freedoms’ rather than ‘rights’ (namely, negative claims rather than positive)
is that the only available remedy upon infringement is the invalidation of the legislation which curtails
them. If these were positive claims, the victim would be entitled to further relief such as damages.

ACT and Victoria Bills of Rights

The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act
2006 (Vic) are modeled after the UK model. This means they have the following characteristics:
 Ordinary piece of legislation, not constitutional
 New legislation must be accompanied by a written statement from Attorney-General regarding its
compliance with human rights
 The legislation is then reviewed by a parliamentary committee
 Judiciary not able to invalidate legislation, rather, declares incompatibility
 Attorney general prepares a written response (to the declaration of incompatibility) to present to
the parliament.

 The parliament then determines whether to amend the legislation in question so it is compatible
with human rights
 Encourages dialogue between the branches of government and the community with regards to
rights, rather than judicial or legislative monologue.
 Protects rights from the International Covenant on Civil and Political Rights

Common Law and Protection of Rights - Meagher

 Nothing new about judges employing interpretive powers to protect rights and interests
 1908: HC recognised and applied principle of legality to protect right of Australian person to
re-enter the country after a period of abstinence
 20th century: only used to protect narrow set of rights
 Rights that are fundamental and therefore protected by the courts increasingly at odds with
legislatures interpretation of rights after economic redistribution of power
 Rise of principle of legality: shock reaction to the horrors of WWII
o The international human rights movement provided judges with updated set of values
 1987: Re Bolton: Ex parte Bean fundamental right of liberty at common law not displaced by
statute which failed to be unequivocal in its expression
 Coco v Queen; Broph v WA: “presence of general words in a statute is insufficient to
authorise interference with basic immunities which are the foundation of our freedoms”
 Gleeson CJ: (importance of principle of legality to ROL): like a working hypothesis which
helps ROL
 HOWEVER: questions of content and scope of principle of legality no longer as pressing
where statutory bills now operate


 Dyzenaus, Hunt and Taggart: make strong argument that it is legitimate and consistent with
Common Law’s own methodology to draw on international human rights laws to update ‘set of
values’ that it protects by applying the principle of legality
o Promotes transparency and clarity in judicial method
o Some rights so well established that parliament must have had them in mind
 The adoption of international human rights norms has not been adopted as the rights touch
stone for the High Court regarding the principle of legality
o Recognised by J French as being real possibility (writing extra-currialy)

Relationship between Principle of legality and Presumption of Consistency

 Adopting international HR legislation in principle of legality would be convergence of the two
principles – has already occurred in NZ in Zauul v Attorney General

Common Law – Spiegelman

 Principles of Statutory interpretation are a distinct body of law

Bills and Charters of Rights
Argument Description
 Statutes already exist (e.g. the Racial Discrimination Act)
 Constitution
o express rights (right to trial by jury on indictment, right to unfair
The argument that the acquisition of property
current system is o implied rights (right to political freedom of speech)
adequate  Common law (Meagher)
o principle of legality
INADEQUATTE: G o presumption of consistency
Robertson; Indigenous,  Structure conventions of government
homeless, young people o eg. bicameral parliament
o responsible government
o parliament committees

 Democratic – validates parliamentary sovereignty

 Gaps exist currently
 important symbolically
 bring clarity to parliamentary debate
Pro Human Rights Act  protect minority rights
 dialogic model
(Legislation) Gaurdbam
o retains parliamentary sovereignty
o role of courts
 declaration
 interpretation
 flexibility – amended by legislation
 what rights? - ICCPR
 Currently has few rights (freedom of religion s116, freedom of political
communication s7 and 24)
 entrenched provides strong protection
 stability – rights stay consistent over time
 strong role for courts
o judicial review
charter of rights (H  protects against Parliament weakening rights
Roberts from ANU;  what rights
Sean Brennan) o right to free speech
o discrimination
(Robertson notes Brennan
does not outline draft)
 rights already protected well under current ‘Washminster’ system
 risk that defining rights excludes some rights from protection
Charter of rights is a  cannot predict how rights will be interpreted
bad idea (Galligan)  Static – could lead to difficulties (2nd amendment US constitution)
 gives too much power to courts (unaccountable to public)
 will politicise judiciary
 lead to more litigation
 Too much power in judiciary – may threaten liberty (Montisqeu)

 linked to Australia’s international obligations (HR treaties)

 makes it more difficult for parliament to ignore rights
HR Parliamentary o eg. scrutiny role – Parliamentary Joint Committee on HR
Scrutiny Act is  no judicial involvement
sufficient (Williams o respect for parliamentary sovereignty
and Burton)
 Galligan: NHRC (2008) – recommendations
o Incremental extension of Cwth legislation
o No charter or Bill of Rights – too much power to the judiciary
o Dialogic model: where judges act in advisory capacity to parliament
 Retain parliamentary supremacy & establish dialogue between courts & parliament
 Contra: creates SOP problems and is unconstitutional
 Guardbaum: New model of HR protection: 1. Legalised charter or bill of HR, 2. Judicial power to
enforce these rights, 3. Legislature has final say (eg. NZ and UK)

Constitutional Change & Issue
 The contemporary issue will be the local government referendum.
 We will look at the theory of changing the constitution today and this will be brought to live in the
current constitutional issue – the local government referendum.
 What are the other ways can the constitution evolve over time (Saunders)
o The judicial interpretation of the words of the constitution may create change. If the
context changes we may need to re-examine the constitution. Certain questions are not
answered on the face of the constitutional text and judges need to give meaning to them
(eg. the Corporation’s power which led dormant for many years until the judiciary gives
power to them).
o S51: the referral provision which allows a state to refer their powers on a particular topic to
the commonwealth. For example, after September 11, police powers, which are usually
the purview of the state, were referred by the State to the Commonwealth
o Transitional provisions (‘… until parliament otherwise provides…’): if parliament passes
legislation on this topic then this constitutional section becomes invalid as the law evolves
o Intergovernmental cooperation: where the Commonwealth and the State’s will come
together to pool their powers to cooperate on certain things (eg. Gonski reforms). The
limits of the Constitution are overcome by federal cooperation
 It is often said that the constitution is frozen in time. Others say, sure, it’s pretty frozen under
S128,but the Constitution does evolve, so perhaps it is not as frozen as people would like to think

Q. Who is responsible for the (a) initiation and (b) ratification of amendments to the
Australian Constitution? What other models might exist in this respect? Are they
 The Commonwealth parliament initiates constitutional change
 Only the Commonwealth parliament may initiate Constitutional changes in Australia
 In practice, s128 the Deadlock mechanism, in reality, there is dialogue between the upper and
lower houses, if there was a deadlock there would be a referendum
 IF the senate proposed something twice and was shot down by the lower house it would go to the
Governor General (who acts on behalf of the prime-minister)


 NOT CURRENTLY DONE BUT: a citizen’s referendum (POPULAR REFERENDUM), if a certain
% of the population were to sign a petition, you can initiate citizen led referendums in some
Western nations
o Proposed changes may not be very well thought through
o eg. in California there was a popular change where a Corporation with a lot of resources
swayed popular opinion towards genetically modified foods through expenditure on
o In California they passed a proposal to prevent the amount that taxes can be hiked – now
they are in huge budgetary problems
 Proposed in 1988: state parliaments could come together and propose a referendum – provided
they represent 50% of the population
o Problems with this: NSW with bulk of population would have a lot of Constitutional power
in determining what referendums are proposed (would still need 2 other parties)
o States having this power would decentralise power from corporations and Commonwealth


 4 of 6 states and the majority of people nationally
 Then goes to governor general who gives the change their assent
o HYPOTHETICAL: if people were not ratifying the change – perhaps legislature itself could
 In US and Canada, states must agree (including <50% of population)

o HYPOTHETICAL: parliament could get rid of redundant provisions of the constitution if
both houses agree and the courts oversee

Upcoming Referendum
 Example the local government referendum: Commonwealth gives funds directly to local
governments, validates what they are doing already and to fend off constitutional challenges since
the Commonwealth already gives funding to local governments
o This proposed change already failed at referendum at 1974 and 1988
o Bill was introduced into parliament on 29/05/2013. It will be held on 14 September 2013.
Change reads:
o ‘Financial assistance to states and local government bodies. During a period of ten years and
after the establishment of the commonwealth and thereafter until the parliament otherwise
provides, the parliament may grant financial assistance to any state, or to any local
government body formed by a law of a state.’
o Julia Gillard: constitution is 113 years old and does not recognise the local arm of
government that most people deal with every day
o Concern that referendum is rushed and that it doesn’t have the State’s on side and may fail
 Labour had only 1 of 25 proposals successful & only 8 of 44 successful across both
 The last successful referendum – 4 different changes on the one ballot paper:
 1977: Regarding the retirement age of judges
o There was no ‘no’ case (pamphlet denouncing the change) – if no MP votes
against the bill in parliament, there is no ‘no’ case. The provision for this is under
the Referendum Machinery Provisions Act 1984
 1977: Senate vacancy – convention was broken during the dismissal, a change was
made to s 15 that when a Senator leaves the replacement must be from same party
 1977: territories were not allowed to vote. Now they are included in the national vote
but they do not count as states for the purpose of having to get the majority of sates
on side
 Failed referendums:
 1977: pre amble giving recognition to contribution of immigration, primacy of ROL,
deep kinship that Aboriginals have with their land – only 38% of the vote. Criticisms
were levelled at Prime Minister who insisted to write the pre-amble herself. This was
maligned – the reference to Aboriginal culture was very underwhelming. THIs was
purely symbolic and not substantive

Reasons Why Constitutional Amendments Fail

 Effects of failed constitution
o Creates feeling of defeatism – disinclination for politicians to try to change the constitution
o There would be less pressure on the courts if Australians would change the constitution
 Reasons referendums fail
o Lack of understanding – people inclined to say ‘no’ if they do not understand what voting
o Though the rules for a referendum are under s128 of the constitution, rules for how
procedure of how referendums are run are under legislation: Referendum Machinery
Provisions Act 1984
 Limits the amount of money which can be spent on informing the public
o Government mismanagement – haste often comes into play, sometimes governments do
not leave enough time for referendums
o Politicisation of referendum – people may vote ‘no’ because they do not like the
government, even though this may have nothing to do with the merit of the referendum
 Note that when referendums are held at elections they have 50/50 success
o Bipartisan support is important – all referendums without it have failed
 Often the opposition will oppose referendums even if they agree
o Referendums often fail when the governments try to do too much
 1913 – 6 proposals
 1944 – 1 proposal that made 14 changes
Key Definitions
Term Definition
Set of fundamental principles or established precedents according to which a state or
other organization is governed
 Written/unwritten: whether act is codified in writing or not
Constitution  Flexible/inflexible: flexible can be changed by ordinary act of parliament,
inflexible require a process (eg. referendum)
o State constitutions are flexible
 Political/Legal: those who hold power held to account by political means (eg.
parliament, etc.), or legal means (courts)

Constitutionalism A complex of ideas, attitudes, and patterns of behavior elaborating the principle that the
authority of government derives from and is limited by a body of fundamental law

S 61 of the Constitution vests the executive power of Cwth in the Queen

Executive Power  Prerogative powers: powers inherent to the Crown by the common law,
which have not been removed by legislation.

Judicial Review The doctrine under which legislative and executive actions are subject to review (and
possible invalidation) by the judiciary – NOTE: notion inherited from US

Parliamentary Parliament has the right to make or unmake any law whatever; and further, no person or
body is recognised as having the right to override the legislation of parliament (Dicey)

Persona When a judge is given a role outside their role of a judge and this is considered to be
Designata acceptable because they are not acting as a judge but rather a non-judicial person

Popular People are source of the constitution’s power and authority - Dicey

Representative The Australian political system is one in which the people elect members of Parliament to
represent them

Responsible a conception of a system of government that embodies the principle of parliamentary

accountability, the foundation of the Westminster system of parliamentary democracy
Generally refers to the "authority and influence of law in society," especially as a
constraint upon behavior, including behavior of government officials
 Formal ROL: oriented around process and sources of law, relatively less focus on
Rule of Law the content of the law, doesn’t take into account cultural values of society
 Substantive ROL: More focused on content of law – is it justified? is it in keeping
with moral principles? Takes into account society and the response of the public
(social values).

Separation of A system of checks and balance to prevent arbitrary abuse of power


Key Sections of the Constitution
Key Chapters
Chapter Name Description
Ch 1 The Parliament  Detailed and comprehensive
 Specify the composition and procedures of both houses
2 The Executive  Dealing with structure and powers of executive government
3 The Judicature  Deals with structure & powers of and independence of judicature

Section Description
7 Senate directly chosen by people of the state - the Commonwealth Electoral Act
expands on this – can be read with s24 to give implied freedom of political communication
 Roach v Electoral Commission: meaning has evolved to mean adult suffrage
24 House of Reps members directly chosen people of Commonwealth – can be read with
s7 to give implied freedom of political communication
 Roach v Electoral Commission: meaning has evolved to mean adult suffrage
41 Might be viewed as guaranteeing a right to vote in federal elections for anyone entitled to
vote for the lower house of a State Parliament – basically says that states are determining
who can vote at the commonwealth level
 Rights to vote could differ depending on what state you are in
 Transitional provision – only operates for people in the states prior to 1902

51 (i) provides a power to make laws regarding “trade and commerce with other countries
51 51. The Parliament shall, subject to this Constitution, have power to make laws for the
(xxvi) peace, order, and good government of the Commonwealth with respect to:-
...(xxvi) The people of any race, other than the aboriginal people in any State, for whom it
is necessary to make special laws.
*Removed by 1967 referendum

59 British Colony: Queen has power to disallow or annul laws of federal parliament
SOP: effectively guarantees a constitutional remedy against excess of official power by
75 (v) officers of the Commonwealth, including ministers of the crown
76 Gives court jurisdiction for review of government action
98 Gave the Commonwealth powers of naval and shipping matters
116 Government shall not make any law which encroaches on freedom of religion
127 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other
part of the Commonwealth, aboriginal natives should not be counted.*
*Removed by 1967 referendum

128 Provides for amendment of the constitution by the Australian people voting at referendum