Australian constitutional law


Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.

Background

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 1 January 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:
The process of judicial review – the ability of The High Court of Australia to declare legislation unconstitutional and therefore invalid – 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. 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, such as in the Communist Party case. Influence from American jurisprudence has occurred in specific cases.
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 would continue to recognise the British Sovereign. "The Queen", was one of the three elements of Parliament, along with the Senate and the House of Representatives. Today, the King of Australia has replaced the King of the United Kingdom within Australia's parliament, but 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", as is the command-in-chief of the armed forces.
The Australian Constitution provides the Governor-General with a number of powers, including; the power to dissolve Parliament, the power to refuse assent to bills presented to her and the power to dismiss the government Ministers., however, the practical use of such powers is restricted by constitutional convention, which mandate the Governor General to act on ministerial advice, except in exceptional circumstances. Because the conventions are not written in The Constitution, the limits of the Governor General's powers are unclear. Convention does, however, allow The Governor General to exercise some powers without ministerial advice in exceptional circumstances. These powers are known as reserve powers.
The reserve powers allow The Governor General to commission a Prime Minister when no party, or coalition of parties has a majority of seats in The House of Representatives and the power to dismiss a Prime Minister, who has been subject to a vote of no confidence in the House of Representatives.
The reserve powers may also include the power to dismiss a Prime Minister who is engaging in persistent illegal action. However, it remains 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 during the Australian constitutional crisis of 1975 when the Governor-General acted against the advice of Ministers.
The role of the Monarch is today even more circumscribed and amounts only to appointing a Governor-General on the advice of the Prime Minister, as well as performing certain ceremonial functions when 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:
  • 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 enumerated limited specific powers conferred 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. The framers rejected an alternative model, the Canadian, which has been described as "an allocation of exclusive powers to both levels of government, not concurrent powers."
The bulk of enumerated powers are contained in section 51 and section 52. Section 52 powers are 'exclusive' to the Commonwealth, and the power to legislate with respect to matters referred to the Commonwealth by a State in paragraph ). 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.
Both concurrent and exclusive 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. 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", 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 defer or 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.
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 executive 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 in the House of Representatives.
These arrangements, however, are only hinted at in the text of the Constitution. There is a requirement 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. More recently, the principle of responsible government was reinforced by the High Court of Australia which upheld orders for a Minister of the government to table documents in the NSW Legislative Council after he refused to do so.