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This article deals in some detail with the development of several
major doctrines in Australian constitutional law, with a special eye
on those which relate to Australia's evolution as a modern
nation-state, and those which relate to human and civil rights. This
development is of some significance because Australia has the
fourth-oldest still-operative written constitution in the world: only
those of the United States,
Canada and Switzerland are older. It is
also a good illustration of the interplay between a written
constitution and the common law.
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 then British
colonies in Australia. (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
The term "Head of State" nowhere appears in the Constitution, but
it was obviously intended that the new Commonwealth, like the States
(that is, former colonies) of which it was formed, 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"), is one of the three elements of
Parliament, along with the Senate and the
House of Representatives (section 1). She is represented in the
Commonwealth by a Governor-General,
who is appointed by her and exercises her powers and functions "during
the Queen's pleasure". 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 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).
However, it was universally understood at the time the Constitution
was drafted and adopted that the Queen and her representative would
exercise their powers only on the advice of Ministers except in a few
very unusual circumstances: this was in accordance with the
constitutional convention that had developed in the United Kingdom
over hundreds of years, and had also come to be applied to the
Governors of the Australian colonies. Therefore almost
all the powers and functions nominally assigned to the
Governor-General or the Queen were in reality assigned to the
government of the day.
But because the monarchical reliance on ministerial advice has always
been a convention rather than a rule of strict law, it has never been
entirely clear what its limits are. The 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). And
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 John Kerr for details.
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 (all Governors-General have to date been male).
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
Australian 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. But it would be a mistake to
exaggerate the importance of this aspect of Australia's constitutional
arrangements, because:
Federalism
The Constitution sets up the Commonwealth of Australia as a
federal polity, with powers divided between the Federal
and the State governments. The model of federalism chosen was the
American one, in which the Federal
legislature is given a list of specific powers, with all the
unenumerated residue being reserved to the States. (Only very brief consideration was given to adopting the opposite, Canadian, model, in which it is the regional units who are assigned a list of enumerated powers.)
The list of powers assigned to the Federal Parliament is also 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. It 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 United Kingdom Parliament.
However, most of these powers are assigned not exclusively to the
Federal Parliament, but "concurrently", which means that the States
can still legislate on these subjects themselves. Any possible
conflict is resolved by section 109, which reads "When a law of a
State is inconsistent with a law of the Commonwealth, the latter shall
prevail, and the former shall, to the extent of the inconsistency, be
invalid". There is also a much smaller list of powers granted
exclusively to the Commonwealth Parliament.
Both sets of powers, concurrent (section 51) and exclusive (section 52), are stated to be "subject to this Constitution", which is to say,
subject to the limitations and guarantees contained elsewhere in the
document. One of these limitations (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".
Federalism is also evident in the structure of the Parliament. As in
the United States, whereas representation in the House of
Representatives is based on population, each State gets equal
representation in the Senate. (To be precise, only original States are guaranteed equal representation. To date the only States are the original six. If and when the Northern Territory achieves Statehood, it is likely, on the basis of its very small population, to get fewer than the 12 Senate seats currently held by each original State.) The
Senate has equal power with the House of Representatives except for
certain restrictions in financial matters: essentially, financial
Bills cannot originate in the Senate, and may only be passed or
rejected, but not amended, there: see John Kerr for an account of
the events of 1975, when the Senate refused to pass the government's
annual supply Bill.
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
its 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?
Textually at least, the Constitution features a distinct
separation of powers. The legislative power is dealt with in
Chapter I, and is vested in its first section (section 1) in the
Federal Parliament. The executive power is dealt with in Chapter
II, and is vested in its first section (section 61) in the
Governor-General as the Queen's representative. The judicial power
is dealt with in Chapter III, and is vested in its first section
(section 71) in the High Court and "in such other federal courts as
the Parliament creates, and in such other courts as it invests with
federal jurisdiction".
On the other hand, as already mentioned, the Queen/Governor-General is
one element of the Parliament as well as heading up the executive, and
the Ministers of State who "advise" the Governor-General are actually
required to be or become members of Parliament.
The result has been that, while there is no significant separation of
the legislative and executive powers (the "political branches"), the
High Court has, over its history, developed an increasingly stringent
doctrine of the separation of the judicial power from the other two.
This is discussed further below.
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). As will be
seen, the requirement for direct election has been cited by the High
Court in support of an implied right of freedom of communication on
political matters.
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 then-colonies. (To be more precise, Western Australia held out, so that covering clause 3 provided that Western Australia would form part of the Commonwealth only if "Her Majesty is satisfied that the people of Western Australia have agreed thereto"; they did and she was.)
On the same principle, any amendment to the Constitution requires
approval at a referendum (as explained above, with a double-majority requirement). This was (uniquely in the Constitution)
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 United Kingdom 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.
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.
The growth of central power
Probably the most obvious development in Australian constitutional law
has been the steadily continuing growth in the power of the Federal
government relative to the States. Several factors can be given to
account for this, including:
- doctrines of constitutional interpretation which favour a broad reading of Commonwealth powers
- the enormous "fiscal imbalance" between the Commonwealth and the States
- the development of important areas of competence which did not exist at Federation and which have fallen to the Commonwealth
- constitutional amendment or referral by the States
- the growth in Australia's international presence and hence treaty commitments
- the willingness of Australian governments, including self-styled supporters of States' rights, to exercise their powers to the full
Centralizing interpretations
In the first two decades of its existence, the High Court adopted a
doctrine of "reserved State powers" combined with "implied
inter-governmental immunities". The essence of the first part of the
doctrine was that grants of power to the Commonwealth in the
Constitution should be read in a restrictive way so as to preserve as
much autonomy as possible for the States. The essence of the second
part of the doctrine was that the Commonwealth and States were immune
to each other's laws, and could not mutually regulate each other's
governmental apparatus: for instance, they could not tax the wages of
each other's employees, or force each other's employees to submit to
compulsory industrial arbitration. There was little basis in the text
of the Constitution for this doctrine, although the judges who
developed it had all been active members of the
Constitutional Conventions,
and believed that it was implied in the nature of federalism
itself.
The doctrine was swept away in the 1920 decision in the
Engineers1 case (after changes in the composition of the Court). 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. In particular, since there is no
mention of "reserved State powers", only one express
inter-governmental immunity (regarding property taxes: section 114),
and an express provision asserting the superiority of valid
Commonwealth laws over inconsistent State laws (section 109), there
was no longer any room for the doctrine previously asserted in favour
of the States.
Even in the days of the "reserved State powers" doctrine, there had
been a line of judicial reasoning which asserted that Commonwealth
powers should be interpreted broadly rather than narrowly wherever
possible2. But Engineers allowed
this approach full sway, and subsequent developments reinforced it.
Eventually, "inconsistency" between Commonwealth and State laws came
to be found not only where (for instance) they imposed mutually
inconsistent obligations (such as to do a thing and not to do a thing), but also where the Commonwealth legislation evinced an
intention to "cover the field", that is, to be the whole law on a
particular subject3. Finally, it appears to
have become accepted that the Commonwealth can "manufacture"
inconsistency by expressly stating that its legislation is intended to
cover the field4.
By the express terms of the Constitution, the Federal Parliament is
limited to making laws "with respect to" one of the enumerated heads
of power. However, it has been held that this does not mean that the
law in question 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 x (where x is one of the enumerated powers), it does not matter if it can also be described as a law with
respect to one or more other subject matters, even if those subject
matters are not included among the enumerated
powers5.
Likewise, it does not matter what the Parliament's motivation was
in passing the law6. An example is
environmental legislation. Although the Constitution does not provide
the Commonwealth Parliament with any power to control the environment
or its use, a very broad-ranging environmental protection Act can
still be passed relying on a combination of powers with respect to
interstate and international trade, corporations, taxation, foreign
affairs and so on. It is irrelevant that the motivation for such
legislation is to protect the environment rather than to regulate
trade, corporate activities, etc. 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 new-fangled notion). Since one of the main reasons for
Federation was to create a common market, it was
inevitable that 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. (Of course any State has the option not to accept the grants and their associated conditions, but
this would leave it with a very impoverished tertiary education sector
relative to other States.) In like manner, 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 monopolize income tax. Once the
advantages of this form of taxation had come to be recognized, both
the Commonwealth and the States levied their own income taxes.
However, during World War II, the Commonwealth government decided
to take over the collection of income taxes, and to return a share of
the proceeds to the States via the grants mechanism. It did this by
passing a series of Acts which levied income tax at a rate which was
roughly equivalent, in each State, to the amount previously levied by
both the Commonwealth and that State (though in fact uniform throughout the country); the Commonwealth would then give back to each
State, via a section 96 grant, roughly its former share of the
proceeds, provided the State did not itself levy an income tax in
that year. In the circumstances, it would have been political suicide
for any State to attempt to levy its own income tax. This arrangement
was twice challenged by the States in the High Court, and twice
upheld6,7, in part using the reasoning
discussed above that Commonwealth powers (in this case, with respect to "taxation") should be read broadly, and that the Commonwealth's motivation for passing any particular legislation is irrelevant. The arrangement survives to this day.
On the other front, the States are also at the mercy of the High
Court's definition of an "excise duty" (which, it will be recalled, the States are not permitted to 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, especially, liquor and tobacco products; these
"franchise fees" were mostly calculated according to the value of the
retailer's sales in some specific preceding period (rather than on the value of goods currently being sold). Although these might
reasonably look like excise duties thinly disguised, a series of High
Court precedents had effectively "quarantined" such fees from
disallowance in the areas of liquor and tobacco retailing, as well as
distribution of petroleum products. 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 it8. 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
Almost fortuitously, the development of various technologies during
the twentieth century also added to the power of the centre.
The Constitution gave the Commonwealth Parliament power over "postal,
telegraphic, telephonic, and other like services". As radio,
television, satellite, internet, cable and optic fibre technologies
became available, these were subsumed under this description, and
therefore placed under Federal power, with relatively little
controversy.
A greater struggle attended the Commonwealth's eventual pre-eminence
in the field of aviation, but the result was the same. The
Commonwealth's regulation of this area is based on its power over
international and interstate trade and commerce. It does not therefore
extend, prime facie, to purely intrastate aviation. But because a
purely intrastate aviation industry is no longer economically
feasible, and because separate State regulation of any such industry
might pose safety concerns in an environment dominated by
international and interstate aviation (and therefore may be "inconsistent" with such regulation in the sense described above), the
result has been to leave regulation of aviation virtually entirely in
the hands of the Commonwealth.
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
Four constitutional amendments have expressly enlarged the
Commonwealth's powers. Amendments passed in 1910 and 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.
But most significantly in terms of the growth of Commonwealth powers
and functions, an amendment passed in 1946 gave the Commonwealth
power to provide a wide range of social services such as unemployment
and sickness benefits, maternity allowances, child endowment, and
medical and dental services. This has developed into the largest area
of Commonwealth expenditure apart from defence; together with the
grants power already discussed, it is the basis for the Medicare
scheme of universal health insurance.
After the High Court had decided that the Commonwealth's power over
"foreign corporations, and trading and financial corporations formed
within the limits of the Commonwealth" did not extend to control over
the incorporation itself of such
entities9, and after a co-operative
Federal-State scheme to overcome this limitation was also
rejected10, the States were finally willing
to take a step they had long been reluctant to take, namely to "refer"
a significant matter (i.e. power over incorporation) to the
Commonwealth Parliament. In this way, in 2001, the Federal
Parliament's power over corporations law became complete, subject to
the theoretical possibility of one or more States withdrawing their
referral.
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. But as Australia gained in independence and international personality, so did the potential scope 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 criminalize as war crimes, on the part of persons who by then were Australian citizens resident in Australia, certain conduct that took place in Europe during World War II11. (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. For instance, 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 party12. (Land use is otherwise a State responsibility.)
More recently, the external affairs power has been used to remove the States' power to criminalize male homosexual activity, following an adverse report on Tasmanian provisions to that effect by the Human Rights Committee 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. (Again, the criminal law generally, and regulation of sexual conduct specifically, is otherwise a State matter.)
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.
Protection of rights
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 schools13, 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" (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 proprietory 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 acquisition12. 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 acquired14.
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. In effect, it has been reduced to the tautology "The trial of offences which the Parliament has declared must be by jury must be by jury". 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 prevailed14.
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 suffice15.
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 industry16.
Finally, however, in a (rare) unanimous 1988 decision which was notable also for its willingness to use the transcripts of the Convention debates as an aid to interpretation, the Court 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
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 pair of cases decided in 1992 established a new implied right to
freedom of communication on political matters. The first case
concerned a Federal provision criminalizing 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 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" entitlements19.
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 background20. 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 a case which, curiously, involved the alleged defamation of a former Prime Minister of New Zealand21) 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 191522 and 191823, 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 195624, 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 compatible25, while a
power to make recommendations concerning the protection of land which
might be of heritage significance to Aboriginals is not
compatible26.
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.)
This rather extraordinary case27 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.
Footnotes
Use your browser's Back button to return to the place of reference.
Note: All cases cited are decisions of the High Court of Australia.
"CLR" stands for the Commonwealth Law Reports, "ALR" for the
Australian Law Reports. Each case also has a link to the full text
online at the Australian Legal Information Institute (AustLII).
1Amalgamated Society of Engineers v Adelaide Steamship
Co Ltd (1920) 28 CLR 129 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1920/54.html)
2Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 AustLII (http://www.austlii.edu.au/au/cases/cth/high_ct/6clr309.html)
3Ex parte McLean (1930) 43 CLR 472 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1930/12.html)
4Wenn v Attorney-General (Victoria) (1948) 77 CLR 84 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1948/134.html)
5Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1982/23.html)
6South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1942/14.html)
7Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1957/54.html)
8Ngo Ngo Ha v New South Wales (1997) 146 ALR 355 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1997/34.html)
9New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1990/2.html)
10Re Wakim; Ex parte McNally (1999) 163 ALR 270 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1999/27.html)
11Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1991/32.html)
12Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1983/21.html)
13Attorney-General (Victoria); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1981/2.html)
14Kingswell v The Queen (1985) 159 CLR 264 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1985/72.html)
15Cheatle v The Queen (1993) 177 CLR 541 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1993/44.html)
16Bank of NSW v Commonwealth (Bank Nationalization Case) (1948) 76 CLR 1 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1948/7.html)
17Cole v Whitfield (1988) 165 CLR 360 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1988/18.html)
18Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1992/46.html)
19Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1992/51.html)
20Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1994/46.html)
21Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1997/25.html)
22New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1915/17.html)
23Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1918/56.html)
24R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1956/10.html)
25Grollo v Palmer (1995) 184 CLR 348 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1995/26.html)
26Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island Case) (1996) 138 ALR 220 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1996/18.html)
27Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577 AustLII (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1996/24.html)
References
- Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed., Federation Press, Annandale NSW, 2002)
- John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths, Sydney, [1901] 2002)
- Leslie Zines, The High Court and the Constitution (4th ed., Butterworths, Sydney, 1997)
External links
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