Australian Constitutional Law: Foundations and Theory

Description

Brief contents Preface Table of cases Table of statutes 1 The Idea of a Constitution 2 Australian Constitutionalism: An Overview 3 A Parliamentary System of Government: The Idea of a Responsible Executive 4 Role of the Upper House in Parliamentary Democracy 5 The Representative Principle in Australian Constitutionalism 6 Separation of Powers: Australia’s Asymmetric Model 7 Separation of Judicial and Non-judicial Powers: Defining Judicial Power 8 The Rules that Separate Judicial and Non-Judicial Powers: The Prohibitions 9 Rules of Separation: The Exceptions 10 Interpreting Commonwealth Legislative Powers: Textualism, Originalism or Underlying Principles? 11 Federal–State Relations 12 Trade, Commerce and Industrial Relations 13 Taxation, Appropriation and Spending 14 The International Powers of the Commonwealth: Defence and External Affairs 15 Constitutional Rights and Freedoms 16 Constitutional Change Index Contents Preface Table of Cases Table of Statutes 1 The Idea of a Constitution 1.1 Meanings of ‘Constitution’ 1.2 Constitution as Paramount Law 1.3 Constitution as the System of Government 1.3.1 Flexible Constitutions 1.4 Constitution in the Philosophical Sense 1.5 Objections to the Rule of Law 1.5.1 Objection 1: The Rule of Law is Inefficient as Compared with the Rule of Persons 1.5.2 Objection 2: The Rule of Law is Oppressive 1.5.3 Objection 3: The Rule of Law is not Possible 1.6 Advantages of the Rule of Law and Constitutionalism 2 Australian Constitutionalism: An Overview 2.1 Introduction 2.2 The Common Law Doctrine of Legality 2.3 Rule of Law 2.4 Judicial Review 2.4.1 Judicial Review of Executive Action 2.4.2 Judicial Review of Legislation 2.4.3 Judicial Review of Primary Legislation in Australia 2.4.4 Standing and Judicial Review 2.5 Separation of Powers 2.6 Representative and Responsible Government 2.7 Federal Division of Powers 2.8 A Word of Caution 3 A Parliamentary System of Government: The Idea of a Responsible Executive 3.1 Representative Democracy 3.2 Presidential and Parliamentary Forms of Democracy 3.3 Emergence of Responsible Government in England 3.4 Introduction of Parliamentary Democracy to Australia 3.5 Responsible Government in the Commonwealth Constitution 3.5.1 The Sources and Extent of the Executive Power of the Commonwealth 3.5.2 Parliamentary Control of Executive Power 3.5.3 The Crown does not Exercise Executive Power Directly 3.5.4 Prerogatives and Statutory Executive Powers are Exercised on Advice of Responsible Ministers 3.5.5 Government by Prime Minister and Cabinet 3.5.6 Collective Responsibility of the Cabinet 3.5.7 Individual Ministerial Responsibility 3.6 Non-Executive Powers of the Governor-General 3.6.1 Appointment of Prime Minister 3.6.2 Dismissal of Prime Minister 3.6.3 Dissolution of Parliament 3.6.4 Prorogation and Summoning of Parliament 3.7 When the Governor-General Must Follow Advice 3.8 State of Responsible Government Today 4 Role of the Upper House in Parliamentary Democracy 4.1 Bicameralism and Responsible Government 4.2 Government’s Responsibility to the Upper House 4.3 Express Limitations on Upper House Powers 4.4 Are there Unwritten Limitations on Upper House Powers? 4.5 Upper House Power to Deny the Government Money to Conduct Routine Administration 4.6 Upper Houses and Legislation Appropriating Money Other than for Routine Administration 4.7 Resolution of Disagreements Between the House of Representatives and the Senate 4.7.1 Section 57 is Mandatory and its Observance is Justiciable 4.7.2 Does s 57 Threaten Bicameralism? 4.7.3 Strategic Use of the s 57 Procedure 4.7.4 The Cooling-Off Period 4.7.5 Effect of Non-Compliance with s 57 4.8 Resolution of Disagreements Between State Houses 5 The Representative Principle in Australian Constitutionalism 5.1 The Representative Principle in the Commonwealth Constitution 5.2 The Crown as Part of the Legislature 5.3 The Composition of the Senate 5.3.1 The Senate as a States’ House: Equal Representation of the Original States 5.3.2 The Continuity of the Senate: Rotational Elections 5.3.3 The Nexus Rule: A 2:1 Ratio with the House of Representatives 5.3.4 Method of Electing Senators 5.4 The Composition of the House of Representatives 5.4.1 Interplay of the Nexus Rule, the Proportionality Rule and the Minimum Representation Rule 5.5 How Representative are Australia’s Legislatures? 5.5.1 Suffrage 5.5.2 Compulsory Voting 5.5.3 Equal Choosing Power 5.5.4 The Form of the Ballot Paper 5.5.5 The Right to be Chosen: Who Can be Elected to Parliament? 5.6 Representation of Territories 6 Separation of Powers: Australia’s Asymmetric Model 6.1 Introduction 6.2 The Three Powers 6.2.1 Aspects of Power 6.2.2 Legislative Power 6.2.3 Executive Power 6.2.4 Judicial Power 6.3 Models of Separation of Powers 6.3.1 The Presidential Model of Separation 6.3.2 The Parliamentary Model of Separation 6.4 The Erosion of the Separation of Powers in the Modern State 6.4.1 The Dilution of the Executive–Legislative Division: The Problem of Executive Law Making 6.4.2 The Rise of the Quasi-Judicial Tribunal: The Problem of the Legislating Judge 6.5 Separation of Powers in the Australian States 6.5.1 Parliament May Delegate Legislative Power but not Abdicate It 6.5.2 Ad hominem Laws: The Problem of Legislative Judgments 6.5.3 The Doctrine of Institutional Integrity of State Courts 6.5.4 Constitution of State Courts 6.5.5 Jurisdiction of State Supreme Courts 6.5.6 Procedure in State Courts 6.6 Snapshot of the Australian Parliamentary Model of Separating Powers 7 Separation of Judicial and Non-judicial Powers: Defining Judicial Power 7.1 Three Aspects of Judicial Power 7.1.1 Jurisdiction 7.1.2 The Judicial Function or Mode 7.1.3 Effect of Adjudication 7.2 The Umbra of Judicial Power 7.2.1 Controversy 7.2.2 Rights, Liberty and Property 7.2.3 Conclusiveness 7.2.4 Non-consensual Nature of Judicial Power 7.3 The Penumbra of Judicial Power 7.3.1 Theory of Innominate Powers 7.3.2 The Theory of ‘Chameleon’ Powers 7.3.3 Limiting Judicial Power to ‘Basic Rights’ 7.3.4 Historically Determined Judicial Power 7.3.5 Mitigating the Problems of the Penumbra 8 The Rules that Separate Judicial and Non-judicial Powers: The Prohibitions 8.1 Judicial Power of the Commonwealth Shall Not be Vested in Bodies Not Designated in Chapter III 8.2 Judicial Power May be Vested Only in Courts in the Strict Sense 8.3 Federal Courts that Exercise Judicial Power Must Conform to s 72 8.4 A Court Must Not Abdicate Federal Jurisdiction, Although it May Delegate Part of it Under Certain Conditions 8.5 Judicial Powers Not Within Chapter III Must Not be Vested in the High Court or Other Federal Courts 8.6 Federal Courts Cannot Exercise State Judicial Power Except in Cases of ‘Accrued Jurisdiction’ 8.7 Parliament Must Not Vest Non-Judicial Power in Chapter III Courts 8.8 State Parliaments Must Not Vest in State Courts Non-Judicial Powers That are Incompatible with Their Exercise of Federal Judicial Power 8.9 Parliament Must Not Remove From Courts Jurisdiction That the Constitution has Directly Vested in Them 8.9.1 Appellate Jurisdiction 8.9.2 Original Jurisdiction 8.9.3 The Case of Privative Clauses 8.9.4 Privative Clauses in the States 8.10 Parliament Must Not Direct the Way Courts Exercise Judicial Power 8.10.1 Indirectly Altering the Course of Judicial Proceedings 8.10.2 Judicial Power and the Law of Evidence: Limits of Legislative Direction 8.11 The Ban on Bills of Attainder and Ex Post Facto Punishment 9 Rules of Separation: The Exceptions 9.1 The Persona Designata Rule 9.2 Judicial Power with Respect to Military Offences by Service Personnel May be Vested in Courts Martial 9.2.1 The Basis of the Rule 9.2.2 The Limits of the Judicial Power that can be Conferred on Courts Martial 9.2.3 How the Limitation is Implemented 9.2.4 The Simultaneous Jurisdiction of Courts Martial and Civil Courts in Respect of the Same Act 9.2.5 Are Peculiarly Military Offences Beyond the Purview of Chapter III Courts? 9.3 Judicial Powers May be Exercised by Statutory Authorities Entrusted with the Disciplinary Control of the Public Service 9.4 Parliament May Exercise Judicial Power in Relation to its Own Powers, Privileges and Immunities 9.5 Superior Courts May Make Rules of Procedure 9.5.1 The Inherent Power of Superior Courts to Make Rules of Procedure 9.5.2 Parliament’s Power to Make Law With Respect to Procedure 9.5.3 Does Delegated Rule-Making Power Supersede or Suspend Inherent Power to Make Rules? 9.5.4 Do Superior Courts Have Power to Regulate the Procedure of Inferior Courts? 10 Interpreting Commonwealth Legislative Powers: Textualism, Originalism or Underlying Principles? 10.1 Theories of Interpretation 10.1.1 Interpretation in the High Court 10.2 Interpreting Commonwealth Powers 10.2.1 The High Court’s Early Approach 10.2.2 Interpreting the Engineers Case 10.3 Balancing Commonwealth and State Powers 10.3.1 The Expansion of the Commonwealth 10.3.2 The Evolving Constitutional Context 10.3.3 The Growth of External Affairs 10.4 Constitutional Implications 10.4.1 Federalism and Implied Rights 10.5 A Dworkinian High Court? 11 Federal–State Relations 11.1 Introduction 11.2 Constitutional Guarantee of the Existence of the States 11.3 The Australian Scheme of Distributing Legislative Powers 11.3.1 Subjects Exclusively Within the Legislative Power of the Commonwealth 11.3.2 Subjects that are Concurrently Within the Legislative Power of Commonwealth and State Parliaments 11.3.3 The Province Over Which State Parliaments have Exclusive Legislative Power 11.3.4 Legislative Power that is Denied to Both States and the Commonwealth 11.4 Resolution of Conflicts Between Federal and State Law: The Operation of s 109 11.4.1 Conflicts Can Occur Only Between Valid Laws 11.4.2 Meaning of ‘Law’ in s 109 11.4.3 Types of Inconsistency 11.4.4 The Effect of Inconsistency on State Law 11.5 Scope and Limits of Commonwealth Legislative Powers: The Shifting Standards 11.5.1 The Early High Court: Implied Immunities and Reserved Powers 11.5.2 The Doctrine of the Engineers Case 11.5.3 Expansionary Consequences of the Engineers Doctrine 11.5.4 The Roll-Back of the Engineers Doctrine and the Rise of the Model of Limited Powers 11.5.5 Implied Limitations Arising from the Federal Structure (the Melbourne Corporation Rule) 11.6 Implied Limits on State Power 11.7 Further Limitations on Commonwealth Legislative Powers 11.7.1 Limitations Derived from the Rule of Law Ideal 11.7.2 Limitations Imposed by the Separation of Judicial and Non-Judicial Powers 11.7.3 Representative Democracy and Freedom of Communication 11.8 Connectivity and Proportionality 11.8.1 The Case of the Defence Power 11.8.2 The Test of Appropriateness and Adaptation 11.9 Conclusions 12 Trade, Commerce and Industrial Relations 12.1 Economic Underpinning of Federations 12.1.1 Vertical Fiscal Balance 12.1.2 Horizontal Fiscal Balance 12.1.3 Economic Conditions for a Successful Federation 12.2 Freedom of Interstate Trade, Commerce and Intercourse 12.2.1 A Brief History of ‘Absolute Freedom’ 12.2.2 Cole v Whitfield: The New Beginning 12.2.3 Further Implications Not Noted in Cole v Whitfield 12.2.4 National Markets and the Re-Emergence of the Individual 12.3 Freedom of Interstate Intercourse 12.3.1 Freedom of Interstate Intercourse is an Individual Entitlement 12.3.2 Freedom of Intercourse is Not Absolute 12.3.3 The Test Where the Same Activity Amounts to Trade as Well as Intercourse 12.4 Commonwealth’s Trade and Commerce Power: s 51(i) 12.4.1 Scope of the Power 12.4.2 The Impact of the Engineers Doctrine on the Trade and Commerce Power 12.5 Corporations Power 12.5.1 Trading Corporations 12.5.2 Financial Corporations 12.5.3 Foreign Corporations 12.5.4 What Kinds of Law can be Made With Respect to Constitutional Corporations? 12.5.5 Corporations and Industrial Relations 12.5.6 Limits of the Corporations Power 12.6 Industrial Relations Power 12.6.1 Conciliation and Arbitration as the Sole Means 12.6.2 Existence of a Dispute 12.6.3 Meaning of Industrial Dispute 12.6.4 Extension Beyond the Limits of Any One State 13 Taxation, Appropriation and Spending 13.1 Taxation and Constitutionalism 13.2 Sources of Taxation Power 13.3 What is a ‘Tax’? 13.3.1 Compulsory Exaction of Money 13.3.2 Public Authority 13.3.3 Public Purpose 13.3.4 Pecuniary Penalties are not Taxes 13.4 Customs and Excise Duties 13.4.1 Licence Fees as a Source of State Revenue 13.4.2 Consumption Tax 13.5 Substantive Limit on the Taxation Power: The Rule Against Discrimination 13.6 Procedural Limits on the Taxation Power 13.6.1 Taxation Laws Cannot Originate in the Senate 13.6.2 The Senate Cannot Amend Taxation Laws, but May Reject Them 13.6.3 Laws Imposing Taxation Must Deal Only with Taxation: The Rule Against Tacking 13.6.4 The One Subject Rule 13.7 Appropriation 13.7.1 Appropriations for the Ordinary Annual Services of Government 13.7.2 Purposes of the Commonwealth 13.7.3 Specificity of Purpose 13.8 Commonwealth Grants Power 13.9 Intergovernmental Agreement on the Reform of Commonwealth–State Financial Relations 14 The International Powers of the Commonwealth: Defence and External Affairs 14.1 The Defence Power 14.1.1 The Defence Power in Wartime 14.1.2 The Defence Power in Peacetime 14.2 The External Affairs Power 14.2.1 The Geographical Power 14.2.2 The Treaty Power 14.2.3 The International Relations Power 14.3 External Affairs and Federalism 15 Constitutional Rights and Freedoms 15.1 Rights and Freedoms 15.1.1 Hohfeld’s Conceptions of Right and Freedom 15.1.2 Positive and Negative Freedoms 15.2 The Hierarchy of Rights and Freedoms 15.2.1 Common Law Rights 15.2.2 Statute Law Rights 15.2.3 Constitutional Rights 15.3 The Threshold Problem of Standing 15.4 Section 51(xxxi): The Right to Compensation on Just Terms for Property Acquired by the Commonwealth 15.4.1 Property 15.4.2 Acquisition 15.4.3 Just Terms 15.4.4 Purposes for Which Private Property May be Acquired 15.4.5 Section 51(xxxi) Applies to Grants Under s 96 15.4.6 The Case of Taxation 15.5 The Right to a Fair Trial Before Deprivation of Life, Liberty or Property 15.5.1 The Scope of the Right 15.5.2 The Ban on Executive Deprivations of Liberty and Property 15.5.3 The Ban on Bills of Attainder (Nullum Crimen, Nulla Poena Sine Lege) 15.5.4 The Right to Trial by Jury 15.6 The Right to Equality Before the Law 15.6.1 Non-Discrimination on Religious Grounds 15.6.2 Non-Discrimination on Grounds of Residency 15.7 Freedom of Political Communication 15.7.1 The Basis of the Freedom 15.7.2 The Scope of the Freedom 15.7.3 Permissible Restrictions on the Freedom 15.7.4 The Expanded Defence of Qualified Privilege 15.7.5 A Personal Right or a Restriction on Power? 15.8 Freedom of Association 16 Constitutional Change 16.1 Some Theoretical Issues 16.1.1 Rigidity and Flexibility 16.1.2 Forms of Constitutional Change in the Australian Federation 16.1.3 Revolutions and Constitutional Change 16.1.4 ‘Basic Norm’ of the Constitution 16.1.5 Can a Sovereign Body Limit Itself? 16.2 Constitutional Alteration: The Commonwealth 16.2.1 Evolution of Australian Independence 16.2.2 Constitutional Alteration Under s 128: The Referendum Route 16.2.3 The Legal Status of the Constitution of the Commonwealth of Australia Act 16.2.4 The Australia Act 1986 as a Source of Constituent Power 16.2.5 Implications of the Fox Hunting Case 16.2.6 The Constituent Potential of s 51(xxxvii) 16.2.7 The Constituent Potential of s 51(xxxviii) 16.3 Constitutional Alteration: The States 16.3.1 Constitutional Change Bypassing State Parliaments 16.3.2 Constituent Power of State Parliaments 16.3.3 Constitutional Change by Implication: McCawley’s Case 16.3.4 Manner and Form Limitations 16.3.5 Can State Parliaments Bind Themselves? 16.3.6 The Question of Remedies Index