Australian Constitutional Law

• Australian constitutional law comprises the rules in the Commonwealth and state constitutions, self-government Acts of territories, court judgments, and relevant literature

Australian Constitutional System

• Shaped by the 'Westminster' (parliamentary) system of the UK and the 'Washington' (federal) system of the United States
• The Commonwealth Constitution, established by the Commonwealth of Australia Constitution Act 1900 (Imp), is a hybrid of these systems, referred to as the 'Washminster' mutation
• Essential facets of the Westminster system: representative government, parliamentary supremacy, and responsible government
• Core doctrines of the American system are federalism, judicial review, and the separation of powers.
• American drafters prioritized limiting governmental action to prevent power abuses, leading to a division of power between two independent tiers of government (federalism)
• Governmental power is distributed among the legislature, executive, and judiciary (separation of powers) at both levels of government
• The judiciary checks the validity of legislative and executive actions by judicial review

Australian Constitutionalism

• Constitutions define governmental powers and their limitations
• A political philosophy characterized by the belief that governments should be limited by fundamental principles (Waluchow, 2001)
• Limits exist as individual or group rights against government (e.g., free expression, equality)
• Limits can concern the scope of authority (e.g., federal vs. state jurisdiction), mechanisms for exercising power (e.g., procedural requirements), and civil rights
• Constitutionalism is the idea that government should be limited in its powers and must observe limitations for its authority
• R.D. Lumb noted in 1983 that constitutionalism is government by prescribed or limited means
• Constitutional systems subject those wielding state power to limitations arising from written or unwritten constitutions
• Public power exercises are subject to principles and rules governing how power is exercised.
• Waluchow and Lumb agree that the essence of constitutionalism is ʻlimited government', restraint is placed on the exercise of public power
• May include procedural restraints (manner and form provisions) and substantive restraints (restrictions on a government's scope of authority, like power distribution)
• The need for free trade, movement between colonies, and resolving interstate trade disputes significantly impacted Australia's constitutional movement
• The Constitution embodies the basic aims and ambitions of the founding fathers
• Constitution s 92 provides "trade, commerce and intercourse among the States ... shall be absolutely free"
• Constitution s 101 established an Inter-State Commission, vesting it with adjudicative and administrative powers over sections relating to trade and commerce
• Constitution s 51(vi) provides that the parliament can make laws with respect to the naval and military defence of the Commonwealth
• Key aim is to regulate the structure of the three main branches of government, including their relationships and powers, and to divide powers between federal and state governments
• Australia has not incorporated a bill or charter of rights to advance rights and freedoms, leaving this for common law

Framers of the Constitution

• The framers displayed racism, believing states should retain power to enact discriminatory electoral laws (s 25)
• Racist framers didn't believe that Aboriginal people should be counted in the census (s 127)
• Section 25 remains in the Constitution, and s 51(xxvi) has been interpreted to allow racially discriminatory laws (Kartinyeri v Commonwealth (1998) 195 CLR 337)
• Sexist framers did not involve women in debates, shaping the Constitution, which impacted its character
• Kruger v Commonwealth (1997) 190 CLR 1 illustrates the Constitution's inability to protect human rights
• Referenda preceding approval of the draft constitution excluded many people
• The Constitution framers voted against the proposal for a constitutional protection of civil rights
• Aboriginal plaintiffs challenged constitutional validity of the Northern Territory Aboriginals Ordinance 1918 in Kruger v Commonwealth (1997) 190 CLR 1

Allegations of the Aboriginal Plaintiffs in Kruger v Commonwealth

• Removal and detention were wrongful and unauthorized by s 122 of the Constitution
• Interference with freedom of religion, protected by s 116 of the Constitution
• Infringement of implied right of equality and freedom of movement and association
• Usurping judicial power of the Commonwealth by authorizing punishment without due process
• All allegations failed because the Constitution has few express rights/freedoms and existing ones are narrowly interpreted
• High Court emphasized the constitutional validity of law in a system without a bill of rights, which is unrelated to its morality

Fundamental Questions About Sovereignty

• They could challenge the sovereignty of the Commonwealth and Refuse to obey laws due to lack of ancestral consent to British invasion and occupation
• The British believed Australia was terra nullius ('empty land') and treated New South Wales as a 'settled' colony
• There was no legal obligation to make a treaty with or compensate the dispossessed
• Terra nullius notion rejected by High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1
• Mabo claimed that Meriam people were entitled to ownership, occupation, and possession of Murray Islands
• A majority of the High Court rejected the doctrine of terra nullius
• The acquisition of the Australian continent is an 'Act of State' which is not susceptible to judicial review (Mabo (No 2) at 31–2, 78-9)

Representative Government

• Sections 7 and 24 of the Constitution require the Senate and House of Representatives members to be directly chosen by the people through periodic elections
• The Second Australasian Convention in Adelaide in 1897 resolved that the purpose of the Constitution was 'to enlarge the powers of self-government of the people of Australia'
• Sections 1, 7, 8, 13, 24, 25, 28, and 30 give effect to self-government by providing fundamental features of representative government.
• The Constitution vests considerable discretion on the Australian electoral system

Federalism

• Legislative power is shared by the Commonwealth and the states
• According to Harrison Moore, 'federal government' is where governmental powers are distributed between two classes of organization (central and local governments) independent of each other
• Every citizen is subject to two independent bodies of law: federal and state law
• The Constitution establishes that Australia is a ‘federal' state
• Federal states divide power between two independent governments (central/regional), unitary states vest power in the central government
• UK, New Zealand, France, and most Scandinavian and African nations are unitary states
• Autonomy of self-governing states is protected by ss 106-108 of the Constitution
• Section 106 saves the state constitutions
• Section 107 saves the power of the state parliaments
• Section 108 saves the power of state laws
• 6 characteristics are indicative of 'federal' states: Origins, States as members, A federal chamber, Sub-national legislative bodies, Financial powers, and A constitutional court

Parliamentary Supremacy

• The power of a legislature to make or unmake any law within its sphere of competence
• One example of Federal Law is the Kartinyeri v Commonwealth (1998) 195 CLR 337, regarding the Hindmarsh Island Bridge Act 1997 (Cth)
• The Commonwealth argued that it is an incident of parliamentary supremacy that what the parliament can enact it can also repeal, this argument was upheld
• Legislative power is also checked by the courts, exercising their power of judicial review
• the High Court can review the constitutionality of legislative action in Australia
• In the Australian Communist Party v Commonwealth (1951) 83 CLR 1, The Commonwealth enacted legislation to dissolve the Australian Communist Party
• The Australian Communist Party challenged the law's validity, Dixon J struck down the legislation and said that Australian Government is government under the Constitution