   #copyright

Australian constitutional law

2007 Schools Wikipedia Selection. Related subjects: Geography of Oceania
(Australasia)

   Australian constitutional law is the area of the law of Australia
   relating to the interpretation and application of the Constitution of
   Australia. Several major doctrines of Australian constitutional law
   have developed.

   For the story of how Australia evolved from a set of British colonies
   to an independent nation, see constitutional history of Australia. For
   a briefer outline of the basic structure of the Constitution, see
   Commonwealth of Australia Constitution Act. For an overview of
   constitutional law generally, see constitutional law.

The Constitution and the High Court

   Constitutional law in the Commonwealth of Australia consists mostly of
   that body of doctrine which interprets the Commonwealth Constitution.
   The Constitution itself is embodied in clause 9 of the Commonwealth of
   Australia Constitution Act, which was passed by the British Parliament
   in 1900 after its text had been negotiated in Australian Constitutional
   Conventions in the 1890s and approved by the voters in each of the
   Australian colonies. (The British government did, however, insist on
   one change to the text, to allow a greater range of appeals to the
   Privy Council in London.) It came into force on January 1, 1901, at
   which time the Commonwealth of Australia came into being.

   The Constitution created a framework of government some of whose main
   features, and sources of inspiration, were the following:
     * constitutional monarchy (British and existing colonial models)
     * federalism (United States model)
     * parliamentary, or "responsible", government (British and existing
       colonial models)
     * distinct textual separation of powers (US model)
     * direct election to both Houses of Parliament (then a novelty)
     * requirement of a referendum for amendment of the Constitution
       (Swiss model)
     * only very limited guarantees of personal rights (rejection of the
       US model)
     * judicial review (US model)

   This last feature - the ability of the courts to declare legislation
   unconstitutional and therefore invalid - is itself the source of the
   body of constitutional doctrine examined in this article. It has its
   origin in American experience, where the right of the Supreme Court of
   the United States to strike down legislation deemed incompatible with
   the Constitution was first asserted by the Supreme Court itself in the
   seminal case of Marbury v. Madison in 1803. Although completely foreign
   to both British and Australian colonial experience, the framers of the
   Australian Constitution clearly intended that the practice would take
   hold in Australia, and even expressly adverted to it in the
   Constitutional text (in section 76). This power of judicial review of
   legislation for conformity with the Constitution has been exercised
   almost exclusively by the High Court of Australia, and almost
   invariably with a Full Bench of all its members.

   A brief overview of the other listed features will provide a background
   for the doctrinal developments examined below.

Constitutional monarchy

   Australia is a constitutional monarchy. Although the term " Head of
   State" is not used in the Constitution, it was intended that the
   Commonwealth (like the colonies) would continue to recognise the
   British Sovereign. "The Queen" (meaning Queen Victoria, and defined to
   include "Her Majesty's heirs and successors in the sovereignty of the
   United Kingdom"), was one of the three elements of Parliament, along
   with the Senate and the House of Representatives (section 1). Today the
   Queen of Australia has replaced the Queen of the United Kingdom within
   Australia's parliament, though they happen to be the same person. The
   Monarch is represented in Australia by an appointed Governor-General.
   The executive power is vested in the Governor-General "as the Queen's
   representative" (section 61), as is the command-in-chief of the armed
   forces (section 68).

   The text of the Constitution assigns sweeping powers to the
   Governor-General, e.g., to dismiss Parliament (sections 5 and 57), to
   refuse assent to Bills passed by Parliament (section 58), and to
   appoint and dismiss government Ministers (section 64). At the time the
   Constitution was drafted and adopted, though, it was understood that
   constitutional convention would limit the exercise of these powers. A
   governor-general, like the former Governors of the Colonies, would only
   act on ministerial advice except in extreme circumstances.

   However, this reliance on constitutional convention, rather than the
   constitutional text, means the limits of the Governor-General's powers
   are unclear. Powers that can be exercised without or against
   ministerial advice are called " reserve powers". They certainly include
   the power to commission a Prime Minister, except that where a
   particular party or coalition of parties has a majority of seats in the
   House of Representatives and an acknowledged parliamentary leader, that
   person must, by convention, be chosen. They probably include the power
   to dismiss a Prime Minister who has been subject to a vote of no
   confidence in the House of Representatives and who refuses to either
   resign or advise the calling of an election.

   The reserve powers may also include the power to dismiss a Prime
   Minister who is engaging in persistent illegal action (Governor Sir
   Philip Game of New South Wales dismissed Premier Jack Lang on this
   ground in 1932). However, it remains extremely controversial whether
   they include the power to dismiss a Prime Minister who, while retaining
   the confidence of the House of Representatives, is not able to get the
   annual supply Bill passed by the Senate, as happened in 1975: see
   Australian constitutional crisis of 1975. Despite the drama of that
   event, it is worth bearing in mind that this is the only occasion on
   which a Governor-General has acted against the advice of his Ministers.

   The role of the Queen is nowadays even more circumscribed, and amounts
   only to appointing (and, in theory, dismissing) a Governor-General on
   the advice of the Prime Minister, as well as performing (by invitation)
   certain ceremonial functions when she is personally present in
   Australia. See Constitutional history of Australia for further details
   on the development of the monarch's role in relation to Australia.

   The importance of constitutional conventions in this area means that
   Australia cannot be said, strictly, to operate entirely under a written
   constitution, but has to some extent a system like the British
   unwritten constitution. However, it would be a mistake to exaggerate
   the importance of this aspect of Australia's constitutional
   arrangements, because:
     * the reliance on constitutional convention is confined almost
       entirely to the relations between the Queen/Governor-General and
       the Ministers of State; and
     * more completely written constitutional systems also develop binding
       conventions: for instance, popular election to the Electoral
       College of the United States, though not mandated by the United
       States Constitution, has probably become a binding norm.

Federalism

Division of powers

   The Constitution sets up the Commonwealth of Australia as a federal
   polity, with specific powers confered on the Federal Parliament. The
   State Parliaments are not assigned specific enumerated powers; rather
   the powers of their predecessor colonial Parliaments are continued
   except insofar as they are expressly withdrawn or vested exclusively in
   the Federal Parliament by the Constitution. An alternative model, the
   Canadian, in which it is the regional (State) units who are assigned a
   list of enumerated powers, was rejected by the framers.

   The bulk of enumerated powers are contained in section 51 and section
   52. Section 52 powers are ‘exclusive’ to the Commonwealth (although
   some section 51 powers are in practice necessarily exclusive, such as
   the power with respect to borrowing money on the public credit of the
   Commonwealth in paragraph (iv), and the power to legislate with respect
   to matters referred to the Commonwealth by a State in paragraph
   (xxxvii)). By contrast, the subjects in section 51 can be legislated on
   by both state and Commonwealth parliaments. However, in the event of
   inconsistency or an intention by the Commonwealth to cover the field
   the Commonwealth law prevails by section 109.

   Both concurrent ( section 51) and exclusive (section 52) powers are
   stated to be "subject to this Constitution". As a result, the
   Commonwealth's law-making power is subject to the limitations and
   guarantees in the Constitution (both express and implied). For example,
   section 99 forbids the Commonwealth from giving preference to any State
   or part of a State "by any law or regulation of trade, commerce, or
   revenue". And as discussed below, an implied guarantee of freedom of
   political communication has been held to limit the Commonwealth's power
   to regulate political discourse.

   The list of powers assigned to the Federal Parliament is quite similar
   to that assigned by the United States Constitution to the Congress, but
   is in some respects broader: for instance, it includes "astronomical
   and meteorological observations", "weights and measures", marriage and
   divorce, and interstate industrial relations. The interpretation of
   similar heads of power – for instance the Trade and Commerce Power in
   Australia and the Commerce Clause in the US - has in some cases been
   different.

   The constitution also provides some opportunities for Federal-State
   co-operation: any State can "refer" a "matter" to the Commonwealth
   Parliament, and the Commonwealth Parliament can exercise, "at the
   request or with the concurrence of the Parliaments of all the States
   directly concerned", any power which, at the time of Federation, could
   be exercised only by the British Parliament.

Parliamentary structures

   Representation in the House of Representatives is based on population
   and ‘original states’ have equal numbers in the Senate. The two houses
   are equal in power except for certain restrictions in financial
   matters. For example, the Senate may not amend a supply Bill, although
   as the Australian constitutional crisis of 1975 demonstrates, it may
   apparently refuse to pass such a Bill altogether; Bills to impose
   taxation or appropriate revenue may not originate in the Senate; and
   the Senate may not amend a Bill so as to increase taxation.

   Again, federalism is evident in the process of constitutional
   amendment, which requires that the Bill to amend the Constitution be
   approved by a majority of electors overall and a majority of electors
   in a majority of States (that is, four out of the six).

   Additionally, amendments "altering the limits" of a State or
   diminishing its proportional representation in Parliament require the
   approval of electors in that State.

Parliamentary government

   It was assumed by the framers, in line with British and local colonial
   tradition, that the effective government would consist of Ministers who
   were members of Parliament and " responsible", that is, answerable, to
   it, and that the continued existence of the government would depend on
   it maintaining the confidence of at least the lower house of the
   legislature.

   These arrangements, however, are only hinted at in the text of the
   Constitution. There is a requirement (section 64) that the "Queen's
   Ministers of State", who are nominally appointed by the
   Governor-General, be or swiftly become members of either House of
   Parliament. The existence of the Prime Minister and Cabinet, and the
   requirement for them to have the confidence of the House of
   Representatives, are not mentioned. Nonetheless, these have been
   fundamental features of Australian constitutional practice from the
   start.

Separation of powers

   The constitution features a distinct separation of powers. Legislative
   power is dealt with in Chapter I, and is vested in the Federal
   Parliament (section 1). Executive power is dealt with in Chapter II,
   and is vested in the Governor-General as the Queen's representative
   (section 61). The judicature is dealt with in Chapter III, and is
   vested in the Federal High Court and "in such other federal courts as
   the Parliament creates, and in such other courts as it invests with
   federal jurisdiction" (section 71).

   However, the Queen is an element of the Parliament as well as being
   head of the executive; and the Ministers of State who "advise" the
   Governor-General are actually required to be or become members of
   Parliament.

   While there is no significant separation of the legislative and
   executive powers (the "political branches"), the High Court has
   developed an increasingly stringent doctrine of the separation of the
   judicial power from the other two.

Direct election to both Houses of Parliament

   The Constitution required direct election of members to both Houses of
   Parliament from the beginning (sections 7 and 24). This was a novelty
   at the time, since the national upper houses with which the framers
   were best acquainted were chosen by other means: indirect election by
   the State legislatures (United States Senate before the Seventeenth
   Amendment in 1913), executive appointment for life (Canadian Senate),
   or hereditary succession (United Kingdom House of Lords).

Referendum for constitutional amendment

   The text of the Constitution was not presented to the British
   Parliament for formal enactment until it had been approved by the
   electors of the colonies.

   On the same principle, any amendment to the Constitution requires
   approval at a referendum, by the process set out in section 128 of the
   Constitution. A double majority – a majority of electors and of a
   majority of states – is required.

   Constitutional referendums were based on the Swiss practice. However,
   the Swiss use of the popular initiative in constitutional amendment was
   not followed, so that constitutional alterations, although they must be
   approved by the people, can only be initiated by Parliament.

   The use of the referendum in initially adopting the Constitution, and
   its requirement for constitutional amendment, has been cited by
   justices of the High Court to argue that the Constitution is
   fundamentally based on popular sovereignty (rather than on the
   supremacy of the British Parliament, which is its technical legal
   foundation). This doctrine has achieved greater prominence since the
   cessation, in 1986, of all authority of that Parliament over Australia:
   see Constitutional history of Australia for details.

   There have been 44 proposals for constitutional amendment put to the
   people since Federation. Of these, only 8 have passed.

The growth of central power

   Probably the most obvious development in Australian constitutional law
   has been the steady growth in the power of the federal government
   relative to the states. Several factors could account for this,
   including:
     * doctrines of constitutional interpretation which favour a broad
       reading of Commonwealth powers
     * the "fiscal imbalance" between the Commonwealth and the States (see
       Constitutional basis of taxation in Australia)
     * the development of new areas of competence which did not exist at
       Federation, and which have fallen to the Commonwealth
     * the growing importance of legislative areas that were always
       Commonwealth powers (for example, external affairs and trading
       corporations)
     * constitutional amendment or referral by the States
     * the willingness of Australian governments, including self-styled
       supporters of States' rights, to exercise their powers to the full

Centralising interpretations

Reserved State Powers Doctrine and the Engineers case

   Prior to 1920 the “ reserved State powers” doctrine and "implied
   inter-governmental immunities" were used to preserve state power.
   Reserved state powers holds that the Constitution should be read in a
   restrictive way so as to preserve as much autonomy as possible for the
   States. Implied intergovernmental immunities holds that Commonwealth
   and States are immune to each other’s laws and cannot mutually regulate
   each other’s governmental apparatus.

   In 1920 the Engineer’s case (after changes in the composition of the
   Court) swept away this doctrine. The court now insisted on adhering
   only to the language of the constitutional text, read as a whole, in
   its natural sense, and in light of the circumstances in which it was
   made: there was to be no reading in of implications by reference to the
   presumed intentions of the framers.

   As a result, the constitution is no longer read in a way which attempts
   to preserve the power of the states.

Broad interpretation of Commonwealth Powers

   Even before the Engineer’s case, a line of judicial reasoning asserted
   that Commonwealth powers should be interpreted broadly rather than
   narrowly wherever possible^2.

   After Engineers, this approach was reinforced. For example, Section
   109, regarding inconsistency between Commonwealth and State laws, was
   broadly interpreted. Commonwealth law prevails not only where
   inconsistent obligations are imposed, but where Commonwealth
   legislation evinces an intention to "cover the field" by being the
   whole law on a particular subject^3. The Commonwealth can "manufacture"
   inconsistency by expressly stating that its legislation is intended to
   cover the field. ^4 However, an issue in the Workplace Relations
   Challenge currently before the High Court is whether the Commonwealth
   can "clear the field" by stating an intention that State laws are not
   to apply even if the Commonwealth does not enact other laws in their
   place.

   The Commonwealth can only legislate with respect to an enumerated head
   of power, This does not mean that the law must be solely, or even
   predominantly, directed at that head of power. As long as it can be
   "fairly characterized" as a law with respect to an enumerated power, it
   is irrelevant that it could also be categorised as a law regarding some
   other subject matter. ^5.

   Likewise, Parliament's motivation in passing the law is irrelevant.^6
   An example is environmental legislation. The Constitution does not
   provide the Commonwealth Parliament with any power to control the
   environment or its use. Nonetheless, a very broad-ranging environmental
   protection Act could be passed relying on a combination of powers such
   as interstate and international trade, corporations, taxation, foreign
   affairs and so on. The law can be supported by those powers although
   Parliament intended it to be an ‘environmental law’. Particularly in
   the last two decades, many Acts of very wide-ranging effect have been
   passed on just these bases, in fields as diverse as environment
   protection, privacy, and anti-discrimination, fields in which the
   Commonwealth has no direct power.

Fiscal imbalance

   At the time of Federation, the colonies' main source of revenue
   consisted of customs and excise duties ( income tax being still a newer
   notion). Since one of the main reasons for Federation was to create a
   common market, inevitably authority over these taxes was vested
   exclusively in the Commonwealth Parliament (section 90). It was
   acknowledged that this would create a situation where the Commonwealth
   would raise much more money than it could spend, whereas the States,
   being still responsible for most areas of law and of social
   infrastructure, would need to spend much more money than they could
   raise (the problem now known as " vertical fiscal imbalance"). Although
   the framers were able to agree on a formula for distribution of the
   Commonwealth's surplus to the States in the first few years after
   Federation, they could not agree on a long-term formula. Accordingly,
   section 96 of the Constitution provides that the Commonwealth
   Parliament "may grant financial assistance to any State on such terms
   and conditions as it thinks fit".

   One result of this has been that the Commonwealth has been able to make
   grants to the States on terms so specific as to amount to the virtual
   takeover of particular fields of competence. For instance, although the
   Constitution gives the Commonwealth no express power over education, by
   means of "tied grants" it has in fact become paramount in the field of
   tertiary education. Although any state has the option to refuse a
   grant, the consequences of doing so make this unattractive. Similarly,
   the Commonwealth has become dominant in the field of public hospitals,
   and a major player in the field of roads and other major
   infrastructure.

   The Commonwealth has also come to monopolise income tax (see
   Constitutional basis of taxation in Australia. Once the advantages of
   income tax were recognized, both the Commonwealth and the States levied
   income taxes. However, during World War II, the Commonwealth government
   decided to take over the collection of income taxes, and return some
   proceeds to the States as grants. The Commonwealth passed legislation
   to levy income tax at a nation-wide rate similar to the previous
   combination of Commonwealth tax and the various state taxes. Separate
   legislation then granted section 96 monetary grants to states provided
   the State did not levy income taxes. In practice, it would be difficult
   for States to continue taxing.

   This arrangement was twice challenged by the States in the High Court,
   and twice upheld^6,7. In Victoria v Commonwealth ("the Second Uniform
   Tax case") (1957) 99 CLR 575 the taxation part of the scheme was valid
   based on the taxation power, and the grants held valid on the basis of
   the words ‘terms and conditions’ of section 96.

   States are also at the mercy of the High Court's definition of an "
   excise duty," which states cannot levy. The High Court has long stated
   the definition in terms such as "an inland tax on a step in production,
   manufacture, sale or distribution of goods". However, it does not
   include a mere fee for a licence to carry on a particular business or
   profession. Accordingly, the States had for a long time levied, with
   the compliance of the High Court, "business franchise fees" on
   retailers of products, particularly liquor and tobacco products. These
   "franchise fees" were mostly calculated according to the value of the
   retailer's sales in a specific preceding period, rather than on the
   value of goods currently being sold. Although these seem similar to
   excise duties, a series of High Court precedents had effectively
   "quarantined" such fees from disallowance in the areas of liquor
   retailing, tobacco retailing, and petrol distribution. In 1997, by a
   bare majority, the High Court decided that this area of doctrinal
   quarantine was incoherent with the rest of the law relating to excise
   duties, and removed it^8. The immediate result was the loss of some $5
   billion (Australian) in the annual revenues of the States and
   Territories.

   In 1999 the Commonwealth Parliament passed legislation introducing a
   new broad-based Federal indirect tax, the Goods and Services Tax; the
   revenue from this tax was to go entirely to the States and Territories,
   in exchange for their abolishing a range of other indirect taxes. By
   this stage, the financial dependence of the States on the Commonwealth
   had become almost complete.

New areas of competence

   The development of various technologies during the twentieth century
   also added to the power of the centre.

   Section 51(v) of the Australian Constitution gives the Commonwealth
   Parliament power over "postal, telegraphic, telephonic, and other like
   services". With little controversy, this power now covers radio,
   television, satellite, cable, and optic fibre technologies.

   A greater struggle occurred over Commonwealth legislation in the field
   of aviation. Commonwealth regulation is based on the interstate and
   international trade and commerce power. Prima facie, it does not cover
   intrastate aviation. However, a purely intrastate aviation industry is
   no longer economically feasible and separate systems of state
   regulation pose safety concerns. As a result, the High Court held that
   all aviation has an interstate character, placing it within
   Commonwealth legislative power.

   Another example concerns intellectual property. Although the
   Constitution gave the Commonwealth Parliament power over "copyrights,
   patents of inventions and designs, and trade marks", the enormous
   growth of electronic media content has given this power a much wider
   scope than could possibly have been envisaged at Federation.

New powers

   The Commonwealth power has been extended by four constitutional
   amendments. A amendment in 1910 and a amendment in 1928 allowed the
   Commonwealth to take over and manage state debts. An amendment passed
   in 1967 gave the Commonwealth power over Aboriginal affairs, which has
   had a significant effect particularly in the pastoral and central
   regions of Australia.

   An amendment passed in 1946 gave the Commonwealth power to provide a
   wide range of social services. This included unemployment and sickness
   benefits, maternity allowances, child endowment, and medical and dental
   services. Apart from defence, social services is the largest area of
   Commonwealth expenditure. Along with the grants power, it is the basis
   for the Medicare scheme of universal health insurance.

   The High Court decided that the corporations power was not broad enough
   to cover incorporation itself. ^9. This decision threatened the
   validity of Australian companies incorporated under commonwealth law.
   The states used ‘the referral power’ to refer the power over
   incorporation to the Commonwealth Parliament.

The external affairs power

   The Constitution gives the Commonwealth Parliament power over "external
   affairs". Originally this power had little content, because Australia's
   foreign relations were managed by the United Kingdom. As Australia
   gained in independence and international personality, so did the
   significance of this power.

   The High Court has held that the power covers the regulation of conduct
   that takes place outside Australia. In particular, it was held
   sufficient to criminalise as war crimes conduct in Europe during World
   War II conducted by Australian citizens resident in Australia. ^11.
   (Note that the Commonwealth has no general criminal jurisdiction.)

   The power has also been held to extend to the implementation of
   international treaties, even if the subject matter of the treaty is
   otherwise not within Commonwealth power. In the case of Koowarta v
   Bjelke-Petersen, the High Court found that the Commonwealth had the
   power to implement the United Nations Convention on the Elimination of
   All Forms of Racial Discrimination in the form of the Racial
   Discrimination Act. In the case of Commonwealth v Tasmania, the High
   Court has upheld Commonwealth legislation forbidding the Tasmanian
   government from proceeding with a dam that would have submerged an area
   of Tasmanian government-owned land that had been declared a World
   Heritage Area under the World Heritage Convention to which Australia is
   a party^12. Land use is otherwise a State responsibility.

   More recently, the external affairs power has been used to remove the
   States' power to criminalise male homosexual activity. This followed an
   adverse report by the Human Rights Committee on Tasmanian provisions.
   The Human Rights Committee was established under the International
   Covenant on Civil and Political Rights, to which Australia is a party.
   Rather than challenge the resulting Commonwealth Human Rights (Sexual
   Conduct) Act of 1994, the Tasmanian Parliament repealed the legislation
   in question.

   Although it would appear that there is an open-ended potential for the
   Commonwealth to encroach on areas of traditional State competence
   through the external affairs power, to date it has been used with some
   discretion, if only because the use of the power in this way inevitably
   excites considerable political controversy.

The corporations power

   The corporations power allows the Commonwealth to legislate on "foreign
   corporations, and trading or financial corporations formed within the
   limits of the Commonwealth". Although the width of the expression
   "trading or financial corporations" has never been authoritatively
   settled, it appears that it covers at least all commercial enterprises
   carried out under the corporate form.

   As corporations have come to dominate the economy, the practical scope
   the corporations power has increased. For example, in 2005 the
   Commonwealth Parliament enacted the WorkChoices legislation, which,
   relying primarily on the corporations power, seeks to create a uniform
   national industrial relations system to the exclusion of both the
   States' and the Commonwealth's own industrial relations systems.
   Previous systems were based on the ‘conciliation and arbitration’
   power. The new legislation applies to all employees of a
   "constitutional corporation." A constitutional corporation is a
   corporation within the meaning of section 51(xx) of the Constitution.
   The legislation also applies to employees of the Commonwealth and its
   agencies, and some others. The expected coverage of this law is
   approximately 85% of the Australian workforce. That proportion is
   likely to increase as employers who operate as sole traders or in
   partnerships incorporate in order to take advantage of the new
   legislation's relatively "employer-friendly" provisions. The
   legislation is currently the subject of the Workplace Relations
   Challenge in the High Court.

Protection of rights

No Bill of Rights

   The Constitution contains nothing like the comprehensive guarantees of
   civil and political rights found in the United States Bill of Rights
   together with the Fourteenth and Fifteenth Amendments, or the Canadian
   Charter of Rights and Freedoms. Factors sometimes cited for this
   include faith in the common law's protection of rights and a belief
   that a powerful Senate would effectively resist overzealous
   governments.

   Despite this general attitude, the Constitution does contain protection
   for some specific rights. These include:
     * freedom of religion, and prohibition of religious tests for Federal
       offices (section 116)
     * trial by jury in Federal cases tried on indictment (section 80)
     * "just terms" for the compulsory "acquisition" of property by the
       Commonwealth (section 51(xxxi))
     * an ambiguously worded prohibition on discrimination against
       residents of other States (section 117)

   All but the last of these have been read down by the High Court, at
   least relative to the content of the corresponding United States
   guarantees. On the other hand, since the 1990s the High Court has been
   developing a jurisprudence of rights said to be implied in the text and
   structure of the Constitution. These developments are discussed below.

   In addition, a constitutional requirement that "trade, commerce, and
   intercourse among the States ... shall be absolutely free" (section 92)
   was, for a time, interpreted as a guarantee of some degree of freedom
   from economic regulation by either Commonwealth or State Parliaments.
   The reference to "intercourse", on the other hand, has always been
   understood as guaranteeing a right to movement across State boundaries.

   Although express protections for human and civil rights in the
   Constitution are scant, and have mostly been read down, some
   protections have been created by the High Court through its
   jurisprudence on the separation of powers and through its findings of
   rights implied by the text and structure of the constitutional
   document.

Express rights

   As mentioned, there are three rights which the Constitution guarantees
   against the Commonwealth - religious freedom, trial by jury, and "just
   terms" compensation. (A referendum proposal to amend the Constitution
   to clarify these rights and to make them good also against the States
   was defeated in 1988.) As will be seen, guaranteed access to the High
   Court can itself amount to an important right. And the guarantee of
   free trade and commerce was for a time interpreted as something like an
   individual right.

Freedom of religion

   The Constitution states that the Commonwealth "shall not make any law
   for establishing any religion, or for imposing any religious
   observance, or for prohibiting the free exercise of any religion, and
   no religious test shall be required as a qualification for any office
   or public trust under the Commonwealth" (section 116).

   The prohibition on establishing any religion has had nothing like the
   impact that the corresponding ban on making a law "respecting an
   establishment of religion" in the First Amendment to the United States
   Constitution has had in that country. The High Court, in rejecting a
   challenge to Federal funding of church schools^13, seemed to take the
   view that nothing less than an explicit establishment of a State Church
   as the official religion of the Commonwealth would come within the
   terms of the prohibition.

"Just terms" compensation

   The Constitution gives the Commonwealth power "with respect to ... the
   acquisition of property on just terms" in Section 51(xxxi). By
   contrast, the Fifth Amendment to the United States Constitution
   contains a prohibition: "nor shall private property be taken ...
   without just compensation". The differences between acquisition and
   taking, and between terms and compensation, combined with the fact that
   the Australian provision is expressed as a positive grant of power
   coupled with a limitation, have been read so as to weaken the
   Australian guarantee relative to the American one.

   The use of the term "acquisition" has been interpreted so as to require
   that the Commonwealth (or some other party for a Commonwealth purpose)
   actually acquire possessory or proprietary rights over the property in
   question, or at least some benefit: the mere extinguishment of a
   person's proprietary rights by the Commonwealth (or a prohibition on
   effectively exercising them) is insufficient to amount to an
   acquisition^12. And "just terms" has been taken to mean something less
   than "just compensation"; in particular, it does not necessarily
   require payment to the owner of the value of the property when it was
   compulsorily acquired^14.

Trial by jury

   The constitutional guarantee that a trial on indictment for a Federal
   offence must be by jury (section 80) has been rendered virtually
   worthless, because the High Court has decided that it is only
   applicable to a trial which proceeds formally by way of indictment, and
   it is completely in Parliament's discretion to decide which offences
   are triable on indictment and which are not. Powerful dissents to the
   effect that the section must be given some substantive meaning (e.g.
   that the trial of offences of some specific degree of gravity must be
   by jury) have not prevailed^14.

   On the other hand, where Parliament has prescribed jury trial, the
   Court has been willing to impose some content on that notion. In
   particular, it has insisted that conviction by a jury for a Federal
   offence must be by the unanimous agreement of the jurors - a majority
   verdict will not suffice^15.

Access to the High Court

   To a very large extent, the Constitution leaves it to Parliament to
   determine both the High Court's original jurisdiction (section 76), and
   the exceptions to, and conditions on, its power to hear appeals
   (section 73). However, the Constitution grants the Court some original
   jurisdiction directly, without the possibility of Parliamentary
   limitation (section 75). This includes matters in which "a writ of
   Mandamus or prohibition or an injunction is sought against an officer
   of the Commonwealth".

   In recent years, the Parliament has all but eliminated the possibility
   of appeal against many decisions in the area of migration, especially
   in regard to applications for refugee status. However, since the
   Parliament is not constitutionally able to limit or abolish access to
   the High Court for the purpose of applying for one of these
   "constitutional writs", such applications have become a major means of
   challenging migration decisions. In fact these applications now
   constitute the bulk of the Court's work.

Freedom from economic regulation?

   The constitutional requirement that "trade, commerce, and intercourse
   amongst the States ... shall be absolutely free" (section 92) was for a
   considerable time interpreted as a guarantee of some degree of freedom
   from government regulation. A notable example of this line of
   jurisprudence was the High Court's disallowance of a Commonwealth Act
   which had the aim of nationalizing the banking industry^16.

   Finally, however, in Cole v Whitfield, which was notable also for its
   willingness to use the transcripts of the Convention debates as an aid
   to interpretation, the Court unanimously decided that what the section
   prohibited, in relation to interstate trade and commerce, were only
   "discriminatory burdens of a protectionist kind"^17. That is, the
   section did no more than guarantee " free trade" (in the conventional
   sense) among the States. But in relation to "intercourse" (i.e.
   personal movement between States), the Court suggested that the scope
   of the guarantee would be much wider, and may even, in relation to some
   forms of such intercourse, be truly absolute.

Implied rights

   Implied rights are the political and civil freedoms that necessarily
   underlie the actual words of the constitution but are not themselves
   expressly stated directly in the constitution. Since the 1990s the High
   Court has discovered rights which are said to be implied by the very
   structure and textual form of the Constitution. Chief amongst these is
   an implied right to freedom of communication on political matters. In
   addition, some protections of civil liberties have been the result of
   the High Court's zealous attempts to safeguard the independence of, and
   confidence in, the Federal judiciary.

Freedom of political communication

   A couple of cases decided in 1992 established a new implied right to
   freedom of communication on political matters. The first case,
   Nationwide News Pty Ltd v Wills, concerned a Federal provision
   criminalising the "bringing into disrepute" of members of an industrial
   relations tribunal, and a prosecution under that provision of a person
   who had published a newspaper article repeatedly describing such
   members as "corrupt" and "compliant"^18. The second case, Australian
   Capital Television Pty Ltd v Commonwealth, concerned a Federal attempt
   to ban political advertising on radio and television during election
   periods and to strictly control it at other times, via a system of
   "free time" entitlements^19.

   In both cases, the majority of the High Court reasoned that, since the
   Constitution required direct election of members of the Federal
   Parliament, and since moreover the Ministers of State were required to
   be or swiftly become members of that Parliament, the result was that
   "representative democracy is constitutionally entrenched". That being
   so, freedom of public discussion of political and economic matters is
   essential to allow the people to make their political judgments so as
   to exercise their right to vote effectively. Furthermore, since "public
   affairs and political discussion are indivisible", it is impossible to
   limit this necessary freedom to purely Federal issues: it applies also
   to issues which might be the preserve of the State or local levels of
   government. Therefore, there is implied in the Constitution a guarantee
   of freedom of communication on all political matters.

   The Court stressed that this freedom is not absolute, but the result in
   both cases was that the relevant Federal legislation was struck down.
   In the latter case, some strong dissents to the effect that limiting
   expenditure on political advertising in the electronic media might
   actually enhance representative democracy did not prevail.

   Both these cases concerned the validity of Federal legislation. But two
   years later, the Court extended the implied guarantee into the area of
   private law, by holding that it also applied to limit the statutory and
   common law of defamation. A former chairman of a Commonwealth
   Parliamentary Committee on Migration claimed to have been defamed by a
   newspaper which had published a letter accusing him of bias, in his
   official capacity, towards people of his own ethnic background^20. By
   trial, it was conceded that the accusation was false. However the Court
   accepted a "constitutional defence" which was said (by three Justices)
   to operate when otherwise defamatory statements concerning the fitness
   of a public official to hold office were published without knowledge
   of, or recklessness as to, their falsity, and when publication was
   reasonable in the circumstances.

   This case, however, and a series of following cases, failed to produce
   a clear statement of the operative principle which commanded the
   support of a majority of the Court. But in 1997 (in Lange v Australian
   Broadcasting Corporation which, curiously, involved the alleged
   defamation of a former Prime Minister of New Zealand^21) a unanimous
   Court did state the operative principle. It rejected the
   "constitutional defence" of the migration-bias case just discussed, and
   instead expanded the scope of "qualified privilege", requiring the
   defendant to have actively taken reasonable steps to verify the
   accuracy of the published material, and also, in most circumstances, to
   have given the defamed person an opportunity to respond. On the other
   hand, the Court made it clear that the qualified privilege may extend
   to discussion concerning the United Nations and other countries, even
   where there is no direct nexus with the exercise of political choice in
   Australia.

   The constitutional guarantee of freedom of political communication is,
   prima facie, far more restricted than the generalized guarantee of
   freedom of speech and of the press in the First Amendment to the United
   States Constitution. But it remains to be seen whether a suitable
   expansion of the notion of "political communication" may not lead, in
   time, to a similar result. In the migration-bias case, some of the
   Justices, while being careful to quarantine "commercial speech without
   political content", seemed to imply that the scope of "political
   speech" may nevertheless be very broad indeed.

Right to due process?

   As mentioned above, the fact that the Constitution prescribes a system
   of "responsible", or parliamentary, government means that there can be
   no meaningful separation of the legislative and executive powers,
   despite their distinct textual separation in the Constitution. However,
   the same consideration does not militate against a separation of the
   judicial power from the other two, and in fact the High Court has come
   to insist on this with some force. It has also held that the separation
   of the judicial power implies that a body exercising that power must do
   so in a manner that is consistent with traditional notions of what
   constitutes judicial process. The result may be a limited
   constitutional guarantee of due process.

   The judicial power of the Commonwealth is vested, in Chapter III of the
   Constitution, in the High Court and such other courts as the Parliament
   creates or invests with Federal jurisdiction (section 71). In
   Australian constitutional jargon, such courts are called "Chapter III
   courts". The members of Chapter III courts can only be removed by the
   Governor-General on an address from both Houses of Parliament on the
   ground of proved misbehaviour or incapacity, and otherwise hold office
   until the age of 70 (section 72). (Judicial office was originally for
   life; the age limit was introduced by a referendum in 1977.)

   In separate cases in 1915^22 and 1918^23, the High Court held that
   "judicial power" (essentially, the power of interpretation of the law
   and enforcement of decisions) could not be invested in anything other
   than a Chapter III court, and specifically, in anything other than a
   body whose members have life tenure. Conversely, in the Boilermakers'
   Case of 1956^24, the Court held that Chapter III courts could not be
   invested with anything other than judicial power. (By this decision,
   the system of industrial arbitration that had been in place for 30
   years, and which involved judges of the Conciliation and Arbitration
   Court acting in both a judicial and an administrative capacity, was
   overturned.)

   To some extent the rigour of this doctrine was softened by the Court's
   subsequent acceptance that judges could, constitutionally, be assigned
   functions in their personal capacity as judges rather than as members
   of a Chapter III court. But this raised the question of which such
   functions were compatible with the simultaneous holding of Federal
   judicial office. The answers offered by the Court have been
   controversial and have involved some very fine distinctions: for
   instance, it has held that a power to authorize telephone interceptions
   is'” compatible^25, while a power to make recommendations concerning
   the protection of land which might be of heritage significance to
   Aboriginals is not compatible^26.

   The most striking application (and extension) of this "incompatibility"
   doctrine, however, has involved the Supreme Court of the State of New
   South Wales. (Recall that in the Australian model of federalism, the
   Parliament may invest State courts with Federal jurisdiction: this
   "autochthonous expedient", in the words of High Court Justice Sir Owen
   Dixon, was essentially an economy measure in a country of small
   population. It has been extensively used.)

   Kable v Director of Public Prosecutions (NSW) ^27 concerned a criminal
   law passed by the New South Parliament and directed at a single named
   individual (somewhat in the manner of a Bill of attainder). The
   individual was a prisoner (under State law) whose sentence was about to
   expire but who was alleged to have made threats against the safety of
   various persons, to be carried out when released. The State Parliament
   enacted a law, applying only to him, which authorized the Supreme Court
   of New South Wales to make "preventive detention orders" for periods up
   to six months, with the possibility of renewal. The orders were to be
   made if the Court was satisfied, "on the balance of probabilities",
   that the person to whom the Act applied was "more likely than not to
   commit a serious act of violence".

   It is clear that, had the Federal Parliament passed such an Act, it
   would be found invalid, as being in effect a legislative judgment, and
   so in violation of the constitutional separation of the judicial power.
   However, the High Court found that the separation of powers was not a
   feature of the New South Wales constitution, and so the State Act was
   not invalid on that ground.

   The Act was found invalid, however, on the ground that, since the
   Supreme Court of New South Wales had been invested with Federal
   jurisdiction, it must not be required to perform a function which is
   "incompatible" with the exercise of the judicial power of the
   Commonwealth. To that extent, the States are not free to legislate as
   they please with respect to their own courts. And a requirement to
   order the "preventive detention" of someone who has not been charged
   with any criminal offence was found "incompatible" with the exercise of
   Federal judicial power. In this rather circuitous manner, the High
   Court has found a limited constitutional guarantee of due process.

Conclusion

   This article has focused on only two, albeit important, areas of
   Australian constitutional law: the expansion of Federal power at the
   expense of the States, and the constitutional protection of rights.
   These two areas are of interest both in themselves and when compared to
   developments in other Federal systems.

   As to the expansion of Federal power, it is probably true that the end
   result has been similar to that achieved in other Federal systems,
   though with differences of degree - in particular, the States of
   Australia have ended up with far less financial and legal independence
   than those of the United States. But the particular constitutional
   provisions and doctrines which have contributed to this end have been
   quite different in many particulars.

   As to the constitutional protection of rights, Australia's position is
   unique, in being the only industrialized Federal state (and almost the
   only industrialized state) without a substantial, constitutionally
   entrenched, Bill of Rights. Despite this, human and civil rights (at
   least as regards citizens, and with some qualifications in practice, if
   not in theory, for the indigenous population) are probably as well
   protected in Australia as in any other country. This may be evidence
   (along with the examples of countries such as the United Kingdom and
   New Zealand) that constitutional protection of rights is ultimately
   less important than the existence of widespread latitudinarian
   attitudes. It remains to be seen whether this will continue to be true
   in an international climate dominated by the fear of terrorism, and if
   not, whether the High Court's cautious development of a jurisprudence
   of implied rights will be sufficient to meet the need.
   Retrieved from "
   http://en.wikipedia.org/wiki/Australian_constitutional_law"
   This reference article is mainly selected from the English Wikipedia
   with only minor checks and changes (see www.wikipedia.org for details
   of authors and sources) and is available under the GNU Free
   Documentation License. See also our Disclaimer.
