Sources of Contemporary Australian Law (HSC SSCE Legal Studies): Revision Notes

The Australian Constitution

What is a constitution?

A constitution consists of fundamental rules and principles that govern how an organisation or nation operates. It provides the framework and guidelines for how institutions function. Constitutions can apply to various organisations, from social clubs to nation-states. Australia's Commonwealth Constitution came into effect on 1 January 1901, establishing the legal framework for governing the nation.

Pre-federation Australia

Before the Constitution came into force, Australia consisted of six separate colonies that were independent of each other. Each colony had the right to govern within its own borders but remained answerable to the British Government rather than any Australian authority. Throughout the 1800s, support gradually grew for the idea that Australia would be better served if these colonies united into one nation under a centralised government.

Federation refers to the process of uniting several states to form a single national government. The path to federation was neither simple nor uncontroversial. An emotional and sometimes bitter debate raged for two decades leading up to 1901, with various viewpoints and concerns shaping the final document.

Arguments for and against federation

The smaller colonies, particularly, feared being overshadowed or "consumed" by the larger, more populous colonies of New South Wales and Victoria. This apprehension played a substantial role in shaping the Constitution. As with any democratic process, politicians had to persuade the public to support their proposals, often making trade-offs to gain voter confidence. The following arguments were central to the federation debate:

Arguments supporting federation:

• Economics: Removing trade barriers between colonies would create a more efficient economy
• Transport: A national rail network would solve problems caused by different rail gauges in different colonies
• Defence: With Australia far from Britain, a unified military force would reduce vulnerability to attack
• Nationalism: There was a desire to foster a unique Australian identity distinct from Britain (noting that in 1900, 96% of Australians were of British origin)
• Immigration control: National policies could implement the White Australia Policy to restrict non-European immigration

Arguments against federation:

• Trade protection: Tariffs could protect industries in certain colonies from competition with other colonies
• Fear of domination: Smaller states worried that larger, wealthier states would override their interests
• Apathy: Many felt federation was irrelevant to daily life, compounded by the severe economic depression of the 1890s
• Expense: Federation would be costly to achieve and a national government expensive to run
• Labour concerns: Queensland wanted to protect its sugar industry by continuing to use Pacific Islander workers

Key terms relevant to this debate include tariffs (taxes on imports or exports), rail gauge (the distance between railway tracks), and the White Australia Policy (government policy allowing only Europeans and English-speaking people to immigrate, enforced through the infamous "Dictation Test").

The Commonwealth of Australia Constitution Act 1900

After a series of referendums in 1898, 1899 and 1900, the colonies found a compromise position on a proposed constitution. A referendum is the referral of a particular issue to the electorate for a vote. Before the Constitution could take effect, approval from the British Parliament was required. The Commonwealth of Australia Constitution Act 1900 (UK) was passed, and Australia came into existence as a nation on 1 January 1901.

Key features of the Constitution Act

The British Act established several fundamental features of Australia's governmental structure:

Federal structure: Australia became a federated nation consisting of six states. Western Australia joined shortly after the other states. The Northern Territory gained self-government in 1978 and the Australian Capital Territory in 1988.

Bicameral federal parliament: The Act created a two-house federal parliament consisting of the House of Representatives and the Senate.

High Court of Australia: The Act established the High Court to oversee other courts and provide "final and conclusive" judgements on appeals (s 73 of the Constitution). The notation s is the abbreviation for 'section' of any legislation, while 'ss' indicates 'sections' (plural).

Division of powers: The Act outlined both the division of powers (s 51) and the separation of powers as they would apply in Australia.

Amendment process: The Constitution could be altered by referendum (s 128).

Division of powers

The Constitution clearly reflects the concerns that arose during the federation process. The reluctance of states to surrender complete control to the Commonwealth is evident in Chapter I, Part V of the Constitution (ss 51 to 60). These sections established the division of powers between the Commonwealth and the states.

Legislative powers (s 51)

Section 51 specifies the legislative powers of the Federal Parliament—the legal power or capacity to make laws. The Federal Parliament can make laws regarding all matters listed in s 51, sometimes referred to as the "enumerated powers". These include:

• Trade and commerce with other countries and among the states (s 51(i))
• Taxation, without discrimination between states (s 51(ii))
• Postal, telegraphic, telephonic and similar services (s 51(v))
• Naval and military defence (s 51(vi))
• Currency, coinage and legal tender (s 51(xii))
• Weights and measures (s 51(xv))
• Naturalisation and aliens (s 51(xix))
• Marriage (s 51(xxi))
• Divorce and matrimonial causes (s 51(xxii))
• Social security benefits including maternity allowances, pensions, unemployment and medical services (s 51(xxiiiA))
• Indigenous peoples (s 51(xxvi))
• Immigration and emigration (s 51(xxvii))
• External affairs (s 51(xxix))
• Acquisition of property on just terms (s 51(xxxi))
• Railways for Commonwealth purposes (ss 51(xxxii-xxxiv))
• Industrial disputes extending beyond one state (s 51(xxxv))
• Matters referred by state parliaments (s 51(xxxvii))

Concurrent powers

It is important to understand that states can also make laws in many areas listed in s 51. These are called concurrent powers—powers existing at the same time and held by both state and federal parliaments. For example, both levels of government can legislate on taxation, though specific constitutional provisions may limit state powers in certain areas.

Exclusive powers (s 52)

Section 52 outlines the exclusive powers of the federal government—powers that can be exercised only by the Federal Parliament. Only the Commonwealth can legislate on:

• The seat of government and places acquired by the Commonwealth for public purposes (s 52(i))
• Matters relating to Commonwealth public service departments (s 52(ii))
• Other matters declared by the Constitution to be within exclusive Commonwealth power (s 52(iii))

The exclusive powers also include areas such as trade and commerce with other countries, foreign relations (external affairs), and national defence. While s 90 clearly states that the federal government has exclusive power over customs, and s 114 forbids states from raising or maintaining military forces, determining how the Constitution applies to specific situations is not always straightforward.

Residual powers

Powers that belong solely to the states are known as residual powers—those matters on which states can legislate because they are not referred to in the Constitution. Each state has its own constitution enabling it to make laws in various areas, excluding any area directly denied to states by the Australian Constitution. Key residual powers include:

• De facto relationships (in New South Wales, this now includes same-sex relationships)
• Crime
• Hospitals
• Public transport
• Environmental protection (an area not considered when the Constitution was drafted)

Resolving conflicts: Section 109

When state and Commonwealth laws conflict, s 109 provides the resolution mechanism: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." This ensures Commonwealth law takes precedence when both levels of government have legislated on the same matter under concurrent powers.

Checks and balances in the Constitution

The Constitution contains several "checks and balances" resulting from federation debates:

Senate representation: The Senate provides a check on the power of the House of Representatives. Sometimes called the "states' house", all states have equal representation with 12 senators each, regardless of population. Each territory has two senators. This ensures smaller states cannot be overwhelmed by more populous states.

Amendment requirements: Section 128 specifies that constitutional changes require a majority of states (four out of six) to vote "yes", plus an absolute majority (50% plus one) of voters Australia-wide. This strict requirement has made constitutional change very difficult—no referendum has succeeded since 1977.

Division of powers: Section 51 ensures states retain control over residual powers, maintaining state autonomy in areas not specifically granted to the Commonwealth.

Amending the Australian Constitution

The legal system must be dynamic to remain effective. While statutes can be changed through the parliamentary process and common law through judicial precedents, the Constitution has a unique alteration process found in Chapter VII, s 128—the referendum.

Section 128 requirements

The fear of smaller colonies being marginalised resulted in a process making constitutional change difficult. Of 44 proposed amendments, only eight have been successful. The requirements for successfully altering the Constitution are:

1. The proposed change must pass both houses (Senate and House of Representatives) with an absolute majority
2. The proposal must be put to electors between two and six months after passing through both houses
3. An absolute majority of voters Australia-wide must approve (50% plus one)
4. A majority of states must approve (four out of six states)
5. The alteration must receive royal assent from the Governor-General

The 1967 referendum

The most successful referendum in Australian history occurred in 1967, with 90.77% voting in favour. This referendum altered s 51(xxvi) and deleted s 127, enabling the Commonwealth Government to pass laws relating to Aboriginal and Torres Strait Islander peoples. This ensured consistency of laws, as some states had discriminatory laws and were reluctant to change them. Prior to this, Indigenous people could only be counted as part of the "flora and fauna". This referendum demonstrates how constitutional change, though difficult, can address historical injustices.

The last successful referendum occurred in 1977, amending s 72 to require judges in the High Court and other federal courts to retire at age 70. The most recent referendum was held on 11 November 1999 regarding changing Australia to a republic with a president appointed by a two-thirds bipartisan (having support from two major political parties) majority of both houses of parliament. The proposal was soundly defeated, though republican sentiment continues.

Separation of powers

In 1887, Lord Acton famously stated: "Power tends to corrupt, and absolute power corrupts absolutely." This principle underlies the separation of powers doctrine underpinning modern democracies. Developed by 18th century French philosopher Charles de Secondat Montesquieu, the doctrine holds that civil liberties (basic rights of individuals protected by law, such as religion and freedom of speech) are at risk if the key organs of government are controlled by one person or group.

Three arms of government

Montesquieu identified three key organs of government:

The legislature: The law-makers. In Australia, this is the parliament consisting of the House of Representatives and the Senate.

The executive: The ministers and government departments who administer laws made by parliament. In Australia, the Governor-General, Prime Minister and Cabinet are members of the executive.

The judiciary: The courts which interpret and apply the law.

Separation of powers in Australia

Australia's founders wanted the separation of powers doctrine to apply upon federation. The first three chapters of the Constitution reflect this structure:

• Chapter I: The Parliament (ss 1 to 60)
• Chapter II: The Executive (ss 61 to 70)
• Chapter III: The Judicature (ss 71 to 80)

However, the Australian Constitution only partially realises pure separation of powers because some executive members are also members of the legislature. Ministers and the Prime Minister belong to both the executive and the legislature—true separation between these two arms does not exist in Australia.

Role of the High Court

Chapter III of the Constitution ("The Judicature") creates the judicial system of the Commonwealth. Section 71 establishes the High Court of Australia, specifying it must contain one Chief Justice and at least two other judges.

Establishment and composition

The High Court's first sitting occurred on 6 October 1903 with three judges. The number increased to five in 1906 and to the current number of seven judges in 1912. Section 71 also authorises the Commonwealth Parliament to create other courts. Over time, Parliament has established the Federal Court, Family Court, and Federal Circuit Court of Australia, all under federal jurisdiction.

Section 72 outlines how High Court judges are appointed and, following a successful 1977 referendum, specifies mandatory retirement at age 70. Most High Court judges come from state Supreme Courts or the Federal Court. They are chosen by the "Governor-General in Council", meaning the government of the day effectively selects them. While most sittings occur in Canberra, cases can be heard in other capital cities or by video link when warranted.

Original jurisdiction

The High Court has both original and appellate jurisdiction. Original jurisdiction refers to the ability or power of a court to hear a case in the first instance. The High Court's original jurisdiction is outlined in ss 75 and 76:

Section 75 grants the High Court original jurisdiction in matters:

• Arising under any treaty (s 75(i))
• Affecting consuls or other foreign representatives (s 75(ii))
• Where the Commonwealth is a party (s 75(iii))
• Between states or residents of different states (s 75(iv))
• Where a writ of mandamus (court order compelling a government official to perform a task), prohibition (court order forbidding a lower court from hearing a matter), or injunction (court order requiring or preventing a particular action) is sought against a Commonwealth officer (s 75(v))

Section 76 allows Parliament to confer original jurisdiction on matters:

• Arising under the Constitution or involving its interpretation (s 76(i))
• Arising under Commonwealth laws (s 76(ii))
• Of Admiralty and maritime jurisdiction (s 76(iii))
• Relating to the same subject matter under laws of different states (s 76(iv))

Appellate jurisdiction

Section 73 outlines the High Court's appellate jurisdiction, giving it power to "hear and determine all judgements" from:

• The High Court exercising its original jurisdiction
• Any Federal Court exercising federal jurisdiction
• The Supreme Court of any state

Section 73 also declares that "the judgement of the High Court in all such cases shall be final and conclusive". Currently, all appeals require special leave (High Court approval for the case to come before it in appellate jurisdiction) to be granted. The High Court Rules 2004, effective from 1 January 2005, govern the practice and procedure of appellate jurisdiction.

Appeals generally relate to questions of law (disputed legal contentions left for judges to decide, such as whether evidence is admissible), matters of such significance as to warrant High Court attention, or disputes between various courts requiring final adjudication. Since the Australia Act 1986 (Cth) severed the judicial link with England, the High Court is the final court of appeal—no appeals go to the Privy Council in England.

Interpreting the Constitution

As community conditions, standards and attitudes evolve, they should be reflected in judicial views and decisions. This is how law maintains its relevance, effectiveness and community acceptance. When cases concerning constitutional interpretation come before the High Court, generally all seven judges (or sometimes five) hear and decide the matter, ensuring a final decision even when judges disagree.

High Court influence on division of powers

One fundamental duty of the High Court is making final determinations about how the Constitution is to be interpreted. This invariably involves stipulating what areas the Commonwealth can legislate on and what areas belong to states. The High Court also makes statements on how each level of government can use its powers and outlines any limits on such powers.

Key cases demonstrating the High Court's interpretive role include:

If either the Commonwealth or a state passes a law contravening the Constitution, that law would be deemed unconstitutional and declared invalid. The government would be acting ultra vires (Latin: beyond the power or authority legally held to perform an act).

Judicial review

The system of judicial review involves courts reviewing actions of government officials or departments. Generally, it investigates the legality of a decision or action. The High Court exercises judicial review whenever it determines whether a particular law is constitutionally valid. It has almost unlimited jurisdiction to review Commonwealth administrative decisions.

The Federal Court undertakes most judicial reviews by applying the Administrative Decisions (Judicial Review) Act 1977 (Cth). This Act applies strict rules and does not give the Federal Court power to review decisions on their merits. Appeals can go to the High Court by leave.

Courts other than federal courts may also review decisions on merits if they have statutory authority.

Generally, judicial review involves courts investigating whether a government official or department acted ultra vires or followed the rules of natural justice (principles ensuring fairness of decision-making procedures, including the right to present your case, freedom from bias by decision-makers, and the right to a decision based on relevant evidence).

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