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LAWS3000: Combined Lecture Notes
Week 1 Introduction :
Topics covered (1) Federation and Independence (2) The Constitution and Constitutionalism As you do the readings consider the following:
- What is the purpose of a constitution?
- If the constitution establishes Australia, what kind of country is it? What kind of government does it have?
- What establishes independence? Ensure you have at least orientated yourself to the Constitution – in particular, its structure and s 51. Kartinyeri case Kartinyeri concerned s 51 (xvI) of the Constitution. This provides: ‘ 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: … the people of any race for whom it is deemed necessary to make special laws ’ The provision used to read: ‘( xxvi) The people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws’ It was amended in 1967 to delete ‘other than the aboriginal race in any State’. The general understanding was that this would allow the Commonwealth law to pass laws for advancing the position of Indigenous Australians. Kartinyeri asked whether the Commonwealth law, passed under the race power, must be for the benefit of a particular race.
You will follow the lecture if you understand:
- What were the facts?
- What was the legal issue?
- What did the majority decide? Why (Including the ratio – ie the legal principle shared by the majority judges and the differences between them)
- What did Kirby J (dissenting) decide? Why? The extracts provided set out some differences between some of the judges on how the Constitution should be interpreted. The Joint Select Committee Report reflects recent suggestions for amending the ‘race power’, that you will consider them together in tutorial one (Week 2). Federation and Independence This lecture Introduce the Commonwealth Constitution by Exploring the federating of the states; the forming of the Commonwealth of Australia; Tracing the shift from reception of Imperial law to constitutional independence. Federation Once, there was no Commonwealth of Australia … The land that became Australia was ‘settled’ first in 1788 – the ‘reception’ of UK law, which remained superior; Slowly towards federation: States first appeared as Several self-governing colonies with a bicameral legislature and government This first arose because the colonies fragmenting in NSW for example: Van Diemen’s Land, 1825 As colonies grow, co-operation between colonies go along with it The problem of tariffs and protectionism Two Conventions – 1891 (failed to gain support in the colonies), 1897 1897 - 98: composed a constitution bill – agreed to by the governments and legislatures of the colonies, and then by referendum; finally, enacted into law by the British Parliament. WA had not acted, but they passed a referendum before the proclamation of the Constitution Popular referendum (60% of eligible voters voted …) Commonwealth of Australia Constitution Act 1900 (Imp) - In force, 1 January 1901
(1) ‘The Colonial Laws Validity Act 1865 shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.’ (2) (a) Laws passed in the Dominion after this Statute cannot be void for repugnancy with the law of England (current or future) (b) The Dominion Parliament may amend any English law still applying in the Dominion Section 4: ➢ A UK Act will only extend to the Dominion if the Act expressly declares that the Dominion has requested and consented to the Act. Importantly, the States’ existing legal position was maintained – s 9(1). I.e. the UK Parliament could, legally, still extend legislation to the States. The Australia Acts Australia Act 1986 (UK) and Australia Act 1986 (Cth) Australia Act 1986 (Cth) enabled by s 51(xxxviii) of the Constitution ➢ At the request of state parliaments – exercise any power which, prior to federation, could not be exercised by the legislatures of the former colonies Long title: ➢ An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation’ Ended the power of UK Acts to extend to the Commonwealth, States, or Territories (s1) States have all legislative power belonging to the UK Parliament excepting foreign affairs (s 2) and any laws that would repeal, amend, or be repugnant (conflict) with the Australia Act, the Constitution, or the Statute of Westminster (s 5). Repealed the Colonial Laws Validity Act 1865 for the States – UK laws passed after the Australia Act cannot be paramount and State Parliament may amend any law (s 3) Privy Council appeals terminated, and UK government no long holds responsibility in State matters (ss 10, 11) Can only repeal or amend the Australia Act through an Act of the Commonwealth as requested and with the concurrence of all the States (s 15). The basic position to the Australia act then is that the UK can no longer pass laws extending to the states. And the states now hold all legislative power that the UK once held. Two questions What if the UK repealed the Australia Act (UK)? How does the Constitution, an Imperial statute remain entrenched? Why can’t it simply be repealed, if Australia can now repeal Imperial statutes? Part of this question was addressed in the case of: Sue v Hill (1999) 199 CLR 462. Facts: Heather Hill stood for and won a seat in the Senate at the 1998 federal election. She was disqualified because she had not renounced her UK citizenship.
Section 44(i) of the Constitution provides a person is disqualified if they are ‘under any acknowledgement of allegiance, obedience, or adherence to a foreign power …’ Issue: Was the United Kingdom a ‘foreign power’ under s 44(i)? Hill’s argument: At federation, all members of the Empire were British subjects. There was no differentiation. Britain could not be considered a ‘foreign power’. Ask yourself: what kind of argument is this? What does it rely on? Majority, ‘at least since 1986 with respect to the exercise of legislative power, the United Kingdom is to be classified as a foreign power.’ [64] How did they reach this conclusion? ‘the words [of s 44(i)] invite attention to questions of international and domestic sovereignty’ [48] The Constitution was to be read in light of the ‘march of history’ [51]; the Const was to endure [51]; end of empire, rise of full constitutional power [52] Pointed to changing quality of ‘the Crown’ [56]-[57] (see also Gaudron J, [169]) ➢ Royal Style and Titles Act 1973 (Cth) – ‘Queen of Australia’ Since ‘at least the commencement of the Australia Act 1986 (Cth)’ the Court has not been bound to recognise and give effect to exercises of legislative, executive, or judicial power by UK institutions [59] ➢ Since 1986, the UK government has had no (theoretical) responsibility for the government of any state – advice was given to the Queen by the Premier of the State (basis of Executive government) ➢ And since 1929 – the Queen takes advice from Cth ministers in Cth matters [77] Does the ‘march of history’ mean the Constitution’s meaning has changed? ‘Whilst the text of the Constitution has not changed, its operation has.’ [78] And that this was expected by drafter [95] Callinan J: ➢ The evolutionary theory is, with respect, a theory to be regarded with great caution. In propounding it, neither the petitioners nor the Commonwealth identify a date upon which the evolution became complete, in the sense that, as and from it, the United Kingdom was a foreign power. Nor could they point to any statute, historical occurrence or event which necessarily concluded the process. …’ [290] ➢ ‘‘The great concern about an evolutionary theory of this kind is the doubt to which it gives rise with respect to peoples' rights, status and obligations as this case shows. The truth is that the defining event in practice will, and can only be a decision of this Court ruling that the evolutionary process is complete’ [291] Q – what if UK Parliament repealed Australia Act (UK) or passed inconsistent legislation? ➢ William Wade, ‘The Legal Basis of Sovereignty’ [1955] CLJ 172, 174: there is one, and only one, limit to Parliament’s legal power: it cannot detract from its own continuing sovereignty.’
➢ What are some of the main features of the Commonwealth Constitution?
- Type of government
- Separation of powers
- Empowering and limiting What is constitutionalism? What is a constitution? Establishes and regulates a legal body; In the case of constitutional law, a constitution establishes and regulates the civil and public institutions of the modern state; AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1st ed, 1885; 10th ed, 1959) 23 – ‘constitutional law’ as including ‘all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state’. In Australia: ➢ The Commonwealth of Australia ➢ Federation of six previously existing, self-governing colonies – separate constitutions. Constitution Act 1902 (NSW) Sets out a structural relationship ➢ E.g. determining what happens when state and federal law are inconsistent – s 109 Does it do more? ➢ Rights? Implied by the document? Features Recall – popular sovereignty? Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 171 Deane J: the present legitimacy of the Constitution ‘lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people’. Bistricic v Rokov (1976) 135 CLR 552, 566 Murphy J: the Constitution is binding because of ‘its continuing acceptance by the Australian people’. Preamble to the Constitution Act: ‘Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania … have agreed to unite in one indissoluble Federal Commonwealth …’ Cf The US Constitution opens, ‘We the People of the United States …’ Mixed Government – mixed sovereignty? Does sovereignty have to be unitary? Jean Bodin in the 16thC, sovereignty consisted in ‘the most high, absolute, and perpetuall power over the citisens and subjects of the Commonweale’ – Jean Bodin, De La République (quoted and discussed further in Jacques Maritain, Man and State (Chicago University Press 1951) 31, 33-34)
Australia has … a Constitutional Monarchy The Queen is … ➢ Represented by a Governor-General; ➢ Part of the legislature – an Act of Parliament is not an Act until the Queen gives her assent (ss 1, 58); ➢ May prorogue (suspend) or dissolve Parliament (ss 5, 57); ➢ Has Executive power (s 61); ➢ Has command of the military (s 68). By convention , all of these powers are exercised on the advice of the Prime Minister and his or her ministers. Australia is … a Federation The Preamble again: ‘the people of New South Wales, Victoria …’ US influence ➢ Section 106 – the colonies as pre-existing sources of authority ➢ Senate: States’ house comprising six senators from each State (s 7) Consider: ➢ Amending the Constitution – requires a majority of voters and a majority of voters in a majority of States (s 128 ). Differences to US: ➢ direct election of Senators ➢ HC as the final court of appeal in all questions of State and Cth law ‘the idea of a federal compact between states’; ‘a Commonwealth of commonwealths’ (Nicholas Aroney) Gummow J in McGinty v Western Australia (1996) 186 CLR 140, 275: ‘Broad statements as to the reposition of ‘sovereignty’ in ‘the people’ of Australia, if they are to be given legal rather than popular or political meaning, must be understood in the light of the federal considerations contained in s 128’ Australia is … democratic Universal suffrage for white males in the lower Houses of Parliament; extension of franchise to women in two colonies before the end of the century Representative government – ss 7, 24, and 28 (direct elections by the people) ‘people’ referenced in the Preamble to the Constitution Amendment – s 128 (but note – majority nationally and majority in majority of states) Responsible Government (Joe Hockey’s ‘Come at me, bro’) Inheritance from the Westminster system of Parliament Ministers of State (the Government) must be a member of the Senate or the House of Representatives (s 64) – Political constitutionalism.
Constitutionalism ‘stands for the commonplace but nonetheless significant idea that governmental power must be legally restrained in order to diminish the possibility of its abuse.’ (Gerangelos et al) ‘In some minimal sense of the term, a constitution consists of a set of norms (rules, principles or values) creating, structuring, and possibly defining the limits of, government power or authority. Understood in this way, all states have constitutions and all states are constitutional states.’ Waluchow. Is that enough? Do we need some form of Rights; scope of authority; mechanisms of power; form and manner or legislative enactment? The Rule of Law Common law as backdrop, inheritance, on-going source of constitutional principles Importantly includes – the rule of law Dixon J: ‘an assumption’ of the Constitution ( Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193) ➢ But what is it? Features of a legal system? A good legal system? A limit on power? Supremacy of Parliament – with general law making power – over the Executive Equality before the law, before the courts Adjudication by an independent (body) judiciary Following the Constitution – being ruled by law Rule of law: Legalistic conception Legal philosopher (A) - Joseph Raz: ➢ the making of particular laws should be guided by open and relatively stable general rules’ Rules should be: prospective, clear, and stable ➢ Capable of guiding peoples’ behaviour Requires an independent judiciary (interpreting the law consistently) and access to courts A legalistic or formal idea – compatible with tyranny? ➢ “Your second child must be given to the state for work in the state factory” Rule of Law: Non-legalistic conception Legal Philosopher (B) - TRS Allan: Criticises Raz ➢ Raz’s conception focuses on the good of the individual’s moral autonomy, but tries to be only ‘legalistic’ ➢ We are already demanding something that fits more with certain democracies Allan – the Rule of Law requires (on top of Raz): ➢ Government to justify its exercise of authority by pointing to law;
➢ Examining the exercise of power with suspicion and viewing it in favour of the individual Adequate protection of fundamental human rights? The Principle of Legality The Court will not interpret Parliament as having intended to curtail fundamental human rights or freedoms unless this intention is clearly manifested by unambiguous language. E.g. Kartinyeri v Commonwealth (1998) 195 CLR 337 [32] (Gaudron J): ‘as a matter of construction, a legislative intention to interfere with fundamental common law rights, freedoms and immunities must be “clearly manifested by unmistakable and unambiguous language” … .’ E.g. A law prohibits all ‘disruptive speech’ in public places:
- Insulting language? Political protest? Language inciting violence? Week 1 Lecture (Live/Echo) Introduction and Kartinyeri Business organisations/corporations – constitutional stands as the foundation. Abortion clinic “buffer zone laws” – argument is that it is unconstitutional because it is against the implied freedom of political communication. ‘Dual Citizenship’ Crisis: Section 44(i) – for example Barnaby Joyce. ‘Medevac’ Bill: Section 53/ ‘no confidence’ issue A potential case for the infringement of the executive power in other countries – Philippines’ Federalism proposition. – Laws passed for “National bible Day” – questioning the separation of church and state. Requirements for assessments the research essay questions will be released in the next week Exams – half will be a problem question – so you can practice through tutorials and half will be an essay.
― E.g. the implied freedom of political communication Section 51(xxvi) and the 1967 Referendum
- Hindmarsh Island Bridge Act 1997 (Cth)- preventing a heritage declaration, protecting Aboriginal land
- 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 race in any State, for whom it is deemed necessary to make special laws What was the plaintiff’s argument?
- Two arguments [27]: ― (1) s 51(xxvi) does not authorise laws that discriminate between members of a racial group (ie benefiting some Aboriginal peoples and not others); ― (2) s 51(xxvi) only authorises laws that benefit the people of a race; or, if the law concerns the Aboriginal race, it must benefit the people of that race ▪ Or, if the law did discriminate against the people of a race, such discrimination must pursue a legitimate governmental purpose and the law must be a rational and proportionate way of pursuing that purpose Decision Must the law be for the benefit of a race, to be a law with respect to the race power (s 51(xxvi))?
- Gaudron J (Obiter)
- Gummow and Hayne JJ
- Kirby J (in dissent) Kirby J (In dissent)
- Para [152]: “… I have concluded that the race power in par (xxvi) of s 51 of the Constitution does not extend to the enactment of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race) by reference to their race.” (emphasis added).
- Relevance of:
- 1967 referendum (cf Gaudron J, Gummow and Hayne JJ)
- International law? Gaudron J (obiter)
- ‘Deemed necessary’ ― Justiciable? ― Necessity means:
▪ ‘some material upon which the Parliament might reasonably form a political judgment’ that there is a difference pertaining to that race [39] ▪ The ‘law must be reasonably capable of being viewed as appropriate and adapted to the difference stated’ [41] Gummow and Hayne JJ
- ‘To make special laws’ ― The quality of special is ‘ascertained “by reference to its differential operation upon the people of a particular race” ― ie The law may be ‘special’ by imposing a disadvantage or a benefit ― ‘Extreme examples, given particularly the lessons of history (including that of this country), may be imagined. But such apprehensions cannot, in accordance with received doctrine, control what otherwise is the meaning to be given today to heads of federal legislative power’ [87] Themes and reflections
- Who decides whether a s 51(xxvi) law is ‘necessary’? Do you think this position vests power in the right constitutional institution?
- What is the relevance of principles of international law, community values and human rights to the interpretation of s 51(xxvi)?
- What challenges for interpretation were presented by amendment of s 51(xxvi) at the 1967 referendum? Do you agree with the way the High Court responded? Constitutional reform: Amending the ‘race’ power Expert Panel Report 2012 Recommended that Australians should vote in a referendum to:
- Remove Section 25 – which, for Cth elections, discounts persons of any race disqualified from voting by a state law;
- Remove section 51(xxvi) – which can be used to pass laws that discriminate against people based on their race;
- Insert a new section 51A - to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for Aboriginal and Torres Strait Islander peoples, ‘[a]cknowledging the need to secure [their] advancement’;
- Insert a new section 116A, banning racial discrimination by government (while permitting positive discrimination); and
- Insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first languages, while confirming that English is Australia’s national language.
Chapter III – The Judicature s 71 – Judicial power and Courts s 72 – Judges’ appointment, tenure, and renumeration s 73 – Appellate jurisdiction of High Court s 74 – Appeal to Queen in Council s 75 – Original jurisdiction of High Court s 76 – Additional original jurisdiction s 77 – Power to define jurisdiction s 78 – Proceedings against Commonwealth or State s 79 – Number of judges s 80 – Trial by jury
- For indictable offences Appointment and Removal of Judges Section 72 Judges’ appointment, tenure, and renumeration The Justices of the High Court and of the other courts created by the Parliament: (i) Shall be appointed by the Governor-General in Council; (ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; (iii) Shall receive such remuneration as the Parliament may fix; but the renumeration shall not be diminished during their continuance in office. The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age. Appointment to HCA
- Section 72(i) = ‘by the Governor-General in Council’
- High Court of Australia Act 1979 (Cth) o S 7 – appointee must be a judge of a federal or State court, or else been enrolled as a legal practitioner in Australia for five years or more; o S 6 – the A-G shall consult with State A-Gs – difficult to know if this has any real impact
- Questions of representation? o State-basis o Gender
o Ethnicity?
- Professor Andrew Lynch, ‘Australia is lagging behind the world’s best on judicial appointments reform’, 13 August 2015, The Conversation
- Opaque process
