Topic 1: Introduction to Constitutionalism
Topic 1: Introduction to Constitutionalism History Statute of Westminster 1931 (UK) - UK laws were not binding on Australian Commonwealth - Made Australia wholly independent to the UK - Gave Australia the ability to make extra-territorial legislation Australia Act 1986 (Cth) - Did for the states what the Statute of Westminster did for the Commonwealth - States and territories were given full power to make laws - Enacted at Commonwealth and UK Parliament level - S 6 only way that aspects of state constitutions are entrenched Queen is the head of state. Australia is still a constitutional monarchy.
Federalism -
-
Preamble; joined all the colonies (Western Australia given another year to decide) Free trade (s 92 – no tariffs, taxes between states), defence (still protected by British empire) and geographic size (used American system) States still have own Parliament, government and judicature o s 51 Cth powers, any others are state residual powers States’ constitution can be amended or repealed like any other law, at Commonwealth level require double majority (Majority in House of Representatives and majority of all voters plus majority of states [referendum] s 128) s 109 Commonwealth law prevails over State law in case of inconsistency o State law becomes inoperative. Stays in statute until Commonwealth law repealed or amended and then state law goes back to being operative
Separation of powers -
Divide powers to prevent one arm taking all the public power for themselves (limits public power) Implied separation (split into chapters in Constitution) S 1, s 61 and s 71 set out the powers of each Blurring: Executive are members of Parliament and are chosen by Parliament (crossmembership) Law is made by Parliament, administered by the executive and interpreted by the judiciary
Responsible Government -
Government is accountable & answerable to Parliament (Ministers) Must take questions from House and Senate Parliament has the money, Executive has the power Only Parliament can authorise taking money from treasury Governor-General must act on the advice of the government, so long as they have the numbers in the lower house Members of Parliament elected by the people
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Government must have a legal source of power to make decisions, otherwise power is invalid
Judicial Review -
High Court can strike down/invalidate legislation that is unconstitutional o Renders law “invalid ab initio”- as if it had never been made Judicial review important in federation as an impartial umpire is needed to determine whether government has gone beyond its power Judicial tenure s 72 Parliament can lower retirement age but cannot make higher. Those already serving during law change continue til 70 etc. (Constitution Alteration [Retirement of Judges] 1977) Statute over common law (outcome of English Civil War) No judicial review in UK and US (Only political)
Parliamentary Sovereignty v Supremacy -
Sovereignty; Parliament can make or unmake any law irrespective of subject matter Political remedy; Vote Parliament out Legal remedy; High Court judicial review Neither Australian commonwealth nor state parliaments are sovereign due to judicial review s51, s 52, s 106, s 109 S 128 Constitution may be altered by law passed with “double majority” o Majority in the House of Representatives then referendum (majority of all voters in Australia + majority of all states)
The rule of law -
Nobody is above the law Everyone is equal in the eyes of the law o Commonwealth cannot set up national religion Law governs the country, not governed by a single individual or group (arbitrary decision making)
Topic 2: The executive (Crown, Commonwealth, Government)
Commonwealth level -
Queen
GG
Ministers
Public servants
Governor- General is head of executive Ministers and their departments make, implement and administer government policy s 2 GG appointed by the Queen on advice of Prime Minister, may be dismissed by PM s 61 Queen’s executive power is exercised by her representative, GG Has a legal personality ‘the Crown’ – Can sue, be sued, make contracts Ministers are members of Executive Council, advisors to GG o EC is a formal constitutional body; ratifies decisions made by ministers (rubberstamping)
o
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s 64 Ministers must sit in Parliament (responsible government, participate in question time) The ministry is responsible to parliament for its running of the government 12 Cabinet Ministers (most senior ministers); make decisions, develop policy; courts cannot review cabinet decisions, cabinet confidentiality
Dismissal of the Whitlam Government (1975) -
-
Senate refused to pass money bills until government agreed to an election for the House of Reps o Government holds while it has a majority in the lower house (elected by the people) o Senate has an equal number of senators per state (part of constitution deal so that larger states e.g. NSW and VIC would not have more power than smaller ones) Government refused, PM asked GG to force Senate to pass bill or hold a half-senate election PM had lost confidence with very hostile Senate but still had majority in the House of Reps GG did not try to resolve the conflict but instead determined that it was deadlocked and could never be resolved (Half-senate election would not have been a timely resolution) Double dissolution means that both houses are up for election; General election, only lower house Senate can reject money Bills, make government go without money (s 53). Drafted as a compromise to smaller states for federation. Strong convention (common practice) that Senate would not refuse a democratically legitimate government
Commonwealth executive sources of power Fundamental Public Law principle: Every power exercised/ action taken by the executive government must be sourced to a legal power provided by the constitution, statute or common law Reserve power - Dissolving Parliament, Withholding assent to Bills - Governor-General can act independently without ministerial advice ACTION Cth Constitution VIC Constitution Force dissolve Parliament s 5 & 57 s 8(2) Refuse dissolve Parliament s 5 & 57 s 8(2) Dismiss Prime s 64 s 50 Minister/Premier
Appoint premier
s 64
s 50
Prerogative power - Inherent, belonging to the Crown at common law, ensuring all affairs works with Constitution and in public interest - Appoint judges, enter treaties, declare war, right to priority in debt payment, request extradition, exclude non-citizens from entering territory, power to pardon offenders
Barton v Commonwealth (1974) -
Any relevant prerogative powers of the English Crown were transferred to the EC in 1901, the date the constitution became operative Second half of s 2 is a dead letter, all powers transferred at federation
Ruddock v Vadarlis (2001) – Full Court Federal Court
-
Tampa case; Norwegian cargo ship picked up asylum seekers on way to Australia High Court agreed that prerogative power existed to not let “aliens” into Australian waters or territory Migration Act did not trump/overrule prerogative power as it did not explicitly displace power o Must be express, clear intention to displace
Federalism -
-
Preamble; joined all the colonies (Western Australia given another year to decide) Free trade (s 92 – no tariffs, taxes between states), defence (still protected by British empire) and geographic size (used American system) States still have own Parliament, government and judicature o s 51 Cth powers, any others are state residual powers States’ constitution can be amended or repealed like any other law, at Commonwealth level require double majority (Majority in House of Representatives and majority of all voters plus majority of states [referendum] s 128) s 109 Commonwealth law prevails over State law in case of inconsistency o State law becomes inoperative. Stays in statute until Commonwealth law repealed or amended and then state law goes back to being operative
Separation of powers -
Divide powers to prevent one arm taking all the public power for themselves (limits public power) Implied separation (split into chapters in Constitution) S 1, s 61 and s 71 set out the powers of each Blurring: Executive are members of Parliament and are chosen by Parliament (crossmembership) Law is made by Parliament, administered by the executive and interpreted by the judiciary
Responsible Government -
Government is accountable & answerable to Parliament (Ministers) Must take questions from House and Senate Parliament has the money, Executive has the power Only Parliament can authorise taking money from treasury Governor-General must act on the advice of the government, so long as they have the numbers in the lower house Members of Parliament elected by the people
-
Government must have a legal source of power to make decisions, otherwise power is invalid
Judicial Review -
High Court can strike down/invalidate legislation that is unconstitutional o Renders law “invalid ab initio”- as if it had never been made Judicial review important in federation as an impartial umpire is needed to determine whether government has gone beyond its power Judicial tenure s 72 Parliament can lower retirement age but cannot make higher. Those already serving during law change continue til 70 etc. (Constitution Alteration [Retirement of Judges] 1977) Statute over common law (outcome of English Civil War) No judicial review in UK and US (Only political)
Parliamentary Sovereignty v Supremacy -
Sovereignty; Parliament can make or unmake any law irrespective of subject matter Political remedy; Vote Parliament out Legal remedy; High Court judicial review Neither Australian commonwealth nor state parliaments are sovereign due to judicial review s51, s 52, s 106, s 109 S 128 Constitution may be altered by law passed with “double majority” o Majority in the House of Representatives then referendum (majority of all voters in Australia + majority of all states)
The rule of law -
Nobody is above the law Everyone is equal in the eyes of the law o Commonwealth cannot set up national religion Law governs the country, not governed by a single individual or group (arbitrary decision making)
Topic 2: The executive (Crown, Commonwealth, Government)
Commonwealth level -
Queen
GG
Ministers
Public servants
Governor- General is head of executive Ministers and their departments make, implement and administer government policy s 2 GG appointed by the Queen on advice of Prime Minister, may be dismissed by PM s 61 Queen’s executive power is exercised by her representative, GG Has a legal personality ‘the Crown’ – Can sue, be sued, make contracts Ministers are members of Executive Council, advisors to GG o EC is a formal constitutional body; ratifies decisions made by ministers (rubberstamping)
o
-
s 64 Ministers must sit in Parliament (responsible government, participate in question time) The ministry is responsible to parliament for its running of the government 12 Cabinet Ministers (most senior ministers); make decisions, develop policy; courts cannot review cabinet decisions, cabinet confidentiality
Dismissal of the Whitlam Government (1975) -
-
Senate refused to pass money bills until government agreed to an election for the House of Reps o Government holds while it has a majority in the lower house (elected by the people) o Senate has an equal number of senators per state (part of constitution deal so that larger states e.g. NSW and VIC would not have more power than smaller ones) Government refused, PM asked GG to force Senate to pass bill or hold a half-senate election PM had lost confidence with very hostile Senate but still had majority in the House of Reps GG did not try to resolve the conflict but instead determined that it was deadlocked and could never be resolved (Half-senate election would not have been a timely resolution) Double dissolution means that both houses are up for election; General election, only lower house Senate can reject money Bills, make government go without money (s 53). Drafted as a compromise to smaller states for federation. Strong convention (common practice) that Senate would not refuse a democratically legitimate government
Commonwealth executive sources of power Fundamental Public Law principle: Every power exercised/ action taken by the executive government must be sourced to a legal power provided by the constitution, statute or common law Reserve power - Dissolving Parliament, Withholding assent to Bills - Governor-General can act independently without ministerial advice ACTION Cth Constitution VIC Constitution Force dissolve Parliament s 5 & 57 s 8(2) Refuse dissolve Parliament s 5 & 57 s 8(2) Dismiss Prime s 64 s 50 Minister/Premier
Appoint premier
s 64
s 50
Prerogative power - Inherent, belonging to the Crown at common law, ensuring all affairs works with Constitution and in public interest - Appoint judges, enter treaties, declare war, right to priority in debt payment, request extradition, exclude non-citizens from entering territory, power to pardon offenders
Barton v Commonwealth (1974) -
Any relevant prerogative powers of the English Crown were transferred to the EC in 1901, the date the constitution became operative Second half of s 2 is a dead letter, all powers transferred at federation
Ruddock v Vadarlis (2001) – Full Court Federal Court
-
Tampa case; Norwegian cargo ship picked up asylum seekers on way to Australia High Court agreed that prerogative power existed to not let “aliens” into Australian waters or territory Migration Act did not trump/overrule prerogative power as it did not explicitly displace power o Must be express, clear intention to displace
