LECTURE NOTES Topic 1: An introduction to Australian ...

LECTURE NOTES Topic 1: An introduction to Australian constitutionalism Government ‘rules’ (i.e. 76 seats in HoR to form government)  Not in constitution  English convention  Unwritten rule  Therefore no legal remedy available as non judiciable What is a constitution?  United the colonies- main purpose  Divides the powers  Created Australia- a new nation  Usually establishes nation or government  Three arms of government- executive, judicial, legislative  Contains fundamental rules that define state and institutions Is the Australian constitution a law? If so, is it the same as every other law? Why (not)?  It is a law  Entrenched or higher law- harder to change i.e. referendum or interpretation via high court  S109- federal law overrides inconsistency with state law Do all countries have/need a written/entrenched constitution like Australia?  No- UK and NZ  America has one Why does Australia have one but NZ & UK don’t? What about the constitutions of the Australian states?  NZ and UK do not have written constitution From what circumstances was the Australian constitution born? Do they differ from the birth of the American constitution? Constitutional consequences?  Wanted a Federation, therefore needed the rules written down  Influences by American constitution What elements of Australian society were not involved in the drafting of the Australian constitution?  Women  Aboriginals  Authority therefore may be on questionable grounds- ‘we weren’t involved therefore we are not subject to your rules’ What is parliamentary sovereignty? Popular sovereignty? What parliament enacted the commonwealth of Australia constitution act?  State and commonwealth parliament have limited powers  If truly sovereign, laws cant be challenged in court  Political remedy- vote them out  Not sovereign  Means that parliament has the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament Brief constitutional chronology  1215: significance of magna carta

Limited arbitrary exercise of royal power and come to represent birth of what we call rule of law  Provided that no person could be arbitrarily arrested or imprisoned by Monarch  1295: birth of bicameral parliament  Two houses  Significance for judiciary of case of prohibitions (1607) and case of proclamations (1611)  Prohibitions: king or queen can’t be personally involved in criminal casesdetermined by law, separation of powers  Proclamations: monarch can’t create new crime by proclamation- courts only (not the case anymore)  Impact the English civil war had on Australian constitutionalism  Parliament v the crown  Parliament won  Parliament won, therefore became supreme legal characteristic  Therefore statute trumps common law  Glorious Revolution: Bill of Rights 1688 o Conferred title of kings and queen- hold that title at will of parliament o Taxes can only be levied by parliament o Parliamentary privilegestatements made in parliament cannot be challenged o Parliamentary law cannot be suspended by monarch  Act of settlement 1701 o Determines who is lawfully entitled to be king or queen of England- can’t be catholic, males preferred (changed recently) Sources of Australian constitutional law  1855: Victorian constitution  1865: Colonial Laws Validity Act and the bizarre south Australian judge Benjamin Boothby  Started invalidating colonial south Australian statues because they clashed with English common law  Forgetting that legislation trumps common law  Act enacted- made clear that colonial parliaments can pass any act they want subject to statutes that sought to regulate same behaviour as English laws  1890’s: what forces drove the movement towards federation?  Defence and protection from English defence force Trade s 92 