Topic 2 Constitutional Government

YEAR 12 LEGAL

THE REASONS FOR FEDERATION

1.

– Vic and WA had large tariffs. Trade is

2.

– fear of invasion from France/Germany.

3.

– concerns over cheap Pacific Island under s51(27). One of the first acts of the new federal parliament was the Immigration Restriction Act 1903 ….. Otherwise known as the White Australia Policy

THE REASONS FOR FEDERATION

4.

Transport & Communication

For ease of transport especially as it pertained to defence and railways (s51(32) and (34)) Communication a federal power s51(5) 5.

Industrial Relations

– in response to maritime and shearers’ strikes in late 1890’s (now s51(35)) 6.

Nationalism and common culture

– Sir Henry Parkes (Father of Federation) made an address at Tenterfield in 1889 = “a nation for a continent and a continent for a nation” 7.

Guarantees for the smaller colonies

– Equal representation in the Senate (s7) and discrimination of states prohibited under s117 and s99. Also the states constitutions, powers and laws were protected by ss106,107 & 108

HOW DID FEDERATION OCCUR?

a) b) c) Why did it take so long for the colonies to federate?

Geographical distance = made it very hard to communicate and meet 1850’s self-govt = colonies unwilling to relinquish this power so ‘soon’ after getting it Fear of NSW and Vic dominance

EARLY DEVELOPMENTS

1847 1867 1885 1888 1889 Earl Grey encouraged a central law-making body Canada federated Federal Council attempted Edwards report into defence Parkes’ Tenterfield address Conventions were held in Sydney and Melbourne in 1890 and 1891.

In 1897 conventions were held in Adelaide and Melbourne where a draft constitution was developed by Barton, Downer, Griffith and O’Connor.

THE PROCESS OF FEDERATION

Referenda = Colonial parliaments passed the draft constitutions then a referendum was held in 1898. NSW did not obtain sufficient majority. 2 nd referendum in 1899 passed (except WA did not hold one until July 1900!) 9 th July 1900 = UK Parliament passed the Commonwealth of Australia Constitution Act with 2 concessions  Keep Colonial Laws Validity Act (UK)  Keep appeals to the Privy Council 17 th September 1900 = Queen Victoria proclaimed the bill 1 st January 1901 = Proclamation Edmund Barton appointed first PM (William Lyne pencilled in but he lacked key support) Elections held 29/30 March 1901 for House of Reps and Senate (Barton won) 9 th of May 1901 federal Parliament sat for the first time (in Melbourne, moved to Canberra 9 th May 1927 and new Parliament House on 9 th of May 1988)

IS AUSTRALIA AN INDEPENDENT NATION?

Australia still had steps to independent nationhood  1931 Statute of Westminster removed the Colonial Laws Validity Act (UK)  1986 Australia Acts (UK) made the High Court, not the Privy Council, the final court of appeal The final stage would be a republic (failed referendum in 1999)

c)

STRUCTURE OF CONSTITUTION

a)

b)

The Australian Constitution is the set of rules and practices by which the nation is governed and has three aspects The

pre-amble

= sets out guiding aims and values (WA, NT and ACT missing)

Constitutional Rules

= explicitly in constitution to establish what the commonwealth can & cannot do with its powers. 8 chapters and 128 sections. These rules can only be changed under referendum s128

Constitutional Conventions

cannot be enforced.

= not codified or “unwritten rules” followed based on Westminster tradition. Failure to follow

CONVENTIONS

Some examples of conventions are    The term Prime Minister does not appear in the constitution. But PM is the leader of the majority party in the House of Reps GG acts on the advice of the Executive (PM and Cabinet). This is often done in Executive Council meetings The Senate always passes the Budget (supply bill). But if they don’t, there is no recourse = see Whitlam and the Dismissal

CONVENTIONS

SECTION 5 & 32 58 62 & 64 CONSTITUTION GG controls opening and closing of parliament CONVENTION GG acts on the advice of the PM GG give their assent to bills GG always assents to the bills GG shall appoint the executive Leader of party with majority in H of R becomes PM and then appoints his/her Cabinet

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

THE CONSTITUTION IS TO FULFIL MANY FUNCTIONS An indissoluble federation Admission of new states Preservation of state powers Separation of powers Constitutional monarchy Free trade zone Division of legislative powers Creation of the High Court Human Rights Referendum

1. THE INDISSOLUBLE NATURE OF THE FEDERAL SYSTEM Australia is described as an ‘indissoluble federation’ This means no state can arbitrarily leave the Commonwealth

2. ADMISSION OF NEW STATES

Chapter 6 deals with new states – s121 deals with the admission of new states (NZ was a possibility) s124 deals with the formation of new states (states combining for instance)

3. THE PRESERVATION OF STATE POWERS

 s106 protects state constitutions   s108 protects the laws of the states 

4. THE SEPARATION OF POWERS

Not explicitly stated in the constitution but    s1 gives legislative power to the federal parliament s61 gives executive power to the GG (by convention exercised by the executive govt) s71 gives judicial power to the High Court     s1 - 60 deal with the legislative arm of govt s61 – 70 deal with the executive arm of govt (but done mainly through convention) s71 – 80 deal with the judicial arm of govt Thus 80 of the 128 sections deal with the LEJ The High Court in the

Boilermakers case

stated that a govt body cannot Despite the doctrine there is much interaction and influence between all three arms

5. CONSTITUTIONAL MONARCHY

The ALS operates under the Queen (represented in Australia by the GG) as Head of State (s2) The G-G’s role is ruled mainly by convention and they act on the advice of the PM and Cabinet

CONSTITUTIONAL MONARCHY

-

Legislative power of GG

Head of parliament (ss1, 2) Prorogues and dismisses parliament (s5) Issues writs for elections (s32) Assents to bills (s58) Submits constitutional alteration bills (s128) -

Executive power

Appoints executive govt (s67) -

Judicial power

Appoints federal judges (s72(i)) and dismisses on the address of parliament (s72(ii)) -

Reserve powers

Unclear but under s64 the GG can sack the PM who cannot guarantee supply – The Dismissal of Gough Whitlam It's Time

6. FREE TRADE ZONE

Under s92 of the constitution “trade and commerce between the states must be free” See

Bond Brewing case

The commonwealth has exclusive power over customs and excise under s90 See

Walter Hammond v NSW (This assists financial dominance for the commonwealth and later helps their legislative power using s96)

7. DIVISION OF LEGISLATIVE POWER

Legislative power is divided between the commonwealth and the states Exclusive C’th Concurrent States Residual Specific Powers Prohibited Powers

DIVISION OF LEGISLATIVE POWER

Specific Powers

are those mentioned in the constitution

Concurrent powers

are those which can be made by either the commonwealth or the states (s109 deals with inconsistency) e.g. tax s51(2), marriage s51(21) and corporations s51(20)

Exclusive powers

can only be made by the commonwealth and are set out in s52 but also in s51 e.g. defence s51(6) and external affairs s51(29)

Prohibited powers

currency) restrain the law making ability of the commonwealth (s116 religion, s100 abridging water use) or the states (s114 armies, s115 Non-specific powers are those not in the constitution and are the

residual power

of the states e.g. environment, criminal law. These are protected by s107 but can transferred under s51(37) e.g. ex-nuptial children

8. CREATION OF A HIGH COURT

Originates from s71 of the constitution.

Judicial independence is set out in s72    s72(i) appointment by G-G s72(ii) permanency of tenure – can only be dismissed on the address of parliament for proved misbehaviour or mental incapacity s72(iii) fixed remuneration

CREATION OF A HIGH COURT

The Full Court of the High Court (3 to 5) sits in its appellate jurisdiction to hear appeals on criminal and civil matters Appellate jurisdiction is set out in s73 and the High Court is the final court of appeal in Australia (applicants must seek leave to appeal) The Full Bench of the High Court (all 7) sit to hear its original jurisdiction over the interpretation of the constitution Original jurisdiction is set out in s75 = disputes between govts (inter se) s76 = interpreting the constitution (ultra vires)

 

HIGH COURT’S INTERPRETATION

The referendum process has been hard to achieve. The constitution is kept alive and breathing by High Court interpretation.

The division of legislative power can be altered by High Court interpretation (

Engineer’s case

1920 – began the shift to federal power) Ultra Vires dispute =

Brislan’s case

and the interpretation of the s51(5) phrase ‘other like services’ to include ‘radios’ (see also

Jones case

for TV’s) Inter se dispute =

Uniform Tax case

and the interpretation of the s51(2) phrase ‘discriminate between the states’

BRISLAN’S CASE

In 1935 Mrs Dulcie Williams was fined under the Wireless Telegraphy Act (Cth) for not having paid a licence fee for owning a radio Mrs Williams challenged the commonwealth’s power to make laws about radios (she claimed it was ‘ultra vires’) s51(5) gave the power to the federal parliament to make laws about ‘postal, telegraphic, telephonic and other like services’ The High Court believed this phrase included radios (not around in 1901!). Hence the commonwealth law was valid and Mrs Williams had to pay her fine.

UNIFORM TAX CASE

In 1942 the commonwealth passed a law that in effect let them collect all income tax (meaning the states could no longer get it) SA challenged the federal Act as they believed under s51(2) the commonwealth could pass laws about tax, but were limited ‘so as not to discriminate between states’. The new law disadvantaged the states hence they believed the tax law was discriminatory.

The High Court said that as ALL the states were disadvantaged by the new law, it wasn’t discriminating as they were all equally affected.

The High Court distinguished discrimination against all the states, and discrimination between the states Hence the law was valid and the federal parliament gained financial dominance over the states So the federal parliament can pick on the states…. As long as they pick on all of them equally!!!!

HIGH COURT INTERPRETATION

   s80 of the constitution gives the right to a trial by jury for federal offences The High Court, in the case of guilty, not a majority decision

Cheatle v The Queen

(1993), found this right meant a unanimous verdict of In the

Boilermakers case

(1956) the High Court supported the notion of the separation of powers by deciding that a government body (arbitral tribunal) could not also exercise judicial power

9. PROVISION OF HUMAN RIGHTS

There is no bill of rights (rejected in a 1988 referendum). But there are some rights in our constitution Express rights

Political Legal Civil Levy

  = right to vote (s8, 30), MHR’s directly elected by people (s24), referendum (s128) = trial by jury (s80) – Cheatle v The Queen guilty jury verdict must be unanimous, claims against the commonwealth go to High Court (s76)

Economic

= free trade (s92), compulsory acquisition on just terms (s51(31)) = freedom of religion (s116) Implied rights High Court found an implied right to freedom of political communication in the cases

Adban

and

Theophanous

(Duckshooters) case Lawrence Levy was a Victorian Animal Rights activist who disrupted the opening of the duckshooting season. He was arrested for his actions and appealed his conviction in the High Court. The High Court extended the principle of “free speech” to include actions as well as words.

Statutory rights Protected under statutes made under (for example) external affairs s51(29) signing of international treaties e.g. Racial Discrimination Act 1975 (Cth)

10. REFERENDUM

1.

2.

3.

4.

Only the people of Australia can alter the constitution under s128 (direct democracy) Consultation Passage through parliament (must pass both houses but just one if UH obstructs same bill twice after 3 months) Referendum = 2 – 6 months after bill. Must have ‘double majority’ (a majority of states and majority overall) Post-referendum = G-G assents to successful bill. Changes made and notified through govt gazette a) b) c) d) Why the low success rate? (only 8 of 44 successful) Lack of bipartisan support State powers at risk Dual criteria Community attitude of apathy and scepticism

GLOBAL LINKS

International Law = system of rules governing relationship between sovereign nations Treaty = official agreement between nations (bilateral) or nations and UN (multilateral conventions)

THE REASONS FOR SIGNING INTERNATIONAL TREATIES  Trade reasons (globalisation)  Security and defence issues  Environmental concerns (whaling)  Human rights and equality (children, racial)  Where a problem cannot be adequately addressed by a country acting alone (for example, in relation to ozone depletion or the depletion of migratory fish stocks)

HOW DOES A TREATY BECOME A DOMESTIC LAW?

Executive signs a treaty under s61 = ratification Signing a treaty does not give effect to domestic law (but

might

expectation of such a right –

Teoh

) give a limited Parliament can then legislate on this treaty under s51(29) = incorporation The bill is debated through parliament as per bicameral scrutiny 1996 reforms  must be tabled in parliament for 20 days first  National Interest Analysis required  Joint Standing Committee on Treaties (JSCOT)  Treaties Council established (PM and Premiers)

SO IT’S KIND OF LIKE THIS?

 The executive govt negotiating a treaty to sign is like 

Meeting a girl you like

 Signing the treaty (ratification) is like 

Asking her out on a date

 Tabling your intention is like  

Asking her to marry you

Incorporating into domestic is like 

Marrying her

INTERNATIONAL LAW AND THE CONSTITUTION

There are only two references to international law in the constitution; s51(29) external affairs power s75(1) High Court has jurisdiction over “all matters arising under a treaty” High Court cases already discussed include

Koowarta Tasmanian Dams Lemonthyme and Southern Forests

Treaties homepage

INTERNATIONAL CRIMINAL COURT (ICC)

 Established under the UN’s Rome Statute in 1998  Federal parliament passed the International Criminal Court (Consequential Amendments) Act 2002 to exercise the principle of “complementarity”  This means anything that the ICC has jurisdiction to hear (such as genocide cases), Australian courts will also have jurisdiction

INTERNATIONAL COURT OF JUSTICE

 ICJ is the judicial body of the UN  Settles international disputes about international law  e.g. Australia has threatened to take Japan to the ICJ concerning whaling  Other examples might involve asylum seekers, disputes over territory and maritime borders  ICJ decisions are not binding on Australian courts (they may be persuasive though)

 How has the Australian Legal System protected the rights of indigenous people since the 1967 referendum?



The 1967 constitutional amendments



Discrimination Legislation



Native Title

HOW DOES THE ALS PROTECT INDIGENOUS RIGHTS?

Legislative Arm Executive Arm Judicial Arm

Native Title Act Racial Discrimination Act PM apology Dept of Aboriginal Affairs Native Title tribunal NT Intervention Mabo Wik Koowarta

1967 AMENDMENTS

1967 referendum altered two parts of our constitution s127 abolished – Aboriginal people did not use to ‘count’ in census calculations for the purpose of allocating seats of govt and federal grants s51(26) the people of any race other than the Aboriginal race This meant the commonwealth now could make legislation about the Aboriginal people

DISCRIMINATION LEGISLATION

In response to the UN treaty to abolish all forms of discrimination the Australian parliament passed the Racial Discrimination Act in 1975 (under s51(29)) – see

Koowarta decision

This made it unlawful to treat someone less favourably because of their race, colour or ethnic origin The Racial Hatred Act in 1995 made offensive behaviour based on race unlawful

IT’S JUST THE VIBE…….

TERRA NULLIUS AND NATIVE TITLE

In

Mabo (No. 2)

the High Court found the following: 1. Terra nullius (the presumption that Australia was a ‘land of no-one’) was a mistake (but too late to fix it now) 2. Native title could exist under 2 conditions - If the land had not had native title extinguished (i.e. it remained ‘vacant land’) - If the people claiming native title could prove a continuing connection to that land To codify this decision, the federal parliament passed the Native Title Act in 1993 In response to the ensuing

Wik

decision (pastoral leases did not extinguish Act to secure pastoral leases being able to co-exist with native title

ARE THERE ANY SPECIALISED COURTS?

  Nunga courts in SA better serve the needs of the community and make courts less culturally alienating to Aboriginal people.

     Aboriginal Court deals only with Aboriginal people who plead guilty to an offence. The magistrate sits off the bench, more at eye-level with the offender. The offender sits at the bar table with his/her lawyer and may have a relative sitting with him/her. Once the prosecutor and the defence counsel have had their say, the offender, the family and community members, or the victim (if present), have a chance to speak to the magistrate. The magistrate may ask them questions to help him/her in the sentencing process. Family and community members are encouraged to attend. At Port Adelaide, the attendance rate for Aboriginal people to the Nunga Court has been over 80%. This is higher than normal. The attendance for Aboriginal people in other courts tends to be below 50%.

INDIGENOUS IMPRISONMENT RATES Also operating are the Koori Court in Vic and the Murri Court in Qld

CRITICAL ANALYSIS

 Although Australia’s constitutional system of government has been relatively stable, there have been many suggestions for its reform.  Role of High Court  Shifting Power Balance  Bill of Rights  Republic

HOW HAVE HIGH COURT DECISIONS IMPACTED AUSTRALIA'S SYSTEM OF GOVT?

  Separation of Powers – Rights -

Boilermakers Adban, Levy, Teoh, Mabo

 Has the High Court gone too far?

 “Yes” Argument:  Not democratically elected  Adban: Reading between the lines goes beyond founding fathers’ intentions  Teoh: HCt ignoring law  Referendum procedure is there to change

HAS THE HIGH COURT GONE TOO FAR?

 “No” argument  Supporting UN treaties and international obligations  Founding fathers gave HCt the power under s76 to interpret and adapt  Referendum procedure means it is difficult to change  Mabo: Need to protect indigenous rights to land

THE SHIFTING POWER BALANCE

Initially the idea of federation was that of co operative federalism. Cth States However over time this has dramatically changed due to several reasons.

1. HIGH COURT INTERPRETATION

The High Court’s interpretation of s51(5) in

Brislan

expanded the commonwealth’s power at the expense of the states.

Recently the interpretation of s51(20) “the corporations power” has been criticised for being too broad (Workchoices legislation)

EXTERNAL AFFAIRS

Tasmanian Dams case

Here the Tasmanian parliament had a law to dam the Franklin River for the purpose of hydro-electricity.

Federal parliament had a law preventing the river from being dammed.

The Tasmanian govt challenged the validity of the federal law (ultra vires) in the High Court under s76 as it was an environmental law, and this was a residual power of the states.

However recently the federal govt had signed the Franklin River to the World Heritage List.

The Federal govt claimed making laws further to this Listing made the law an “external affair”. Thus they believed their law was not ‘environmental’ as such, but was to be valid under s51(29)

TASMANIAN DAMS CASE

The High Court agreed with the federal govt. By putting the river on the World Heritage List it became an external affair. Hence laws to this effect were valid (intra vires) under s51(29).

Thus the federal law was valid, the Tasmanian law invalid (under s109) and the river was protected.

In the affair.

Lemonthyme

case, the High Court went further and said even if the federal govt were considering putting something on the World Heritage List (here a forest) it became an external

EXTERNAL AFFAIRS

Tasmanian Parliament Residual Power Commonwealth Parliament  X X Environmental Laws  Constitutional s51 “Heads of Power”

KOOWARTA

The

Koowarta

decision also strengthened the commonwealth’s position. Here the Qld govt had a law discriminating against Aboriginal people obtaining leases.

The federal parliament passed the Racial Discrimination Act further to its signing of the UN treaty to eliminate all forms of discrimination.

Thus, the federal Act was valid under s51(29) and the Qld Act invalid under s109.

2. FINANCIAL DOMINANCE

The commonwealth gained financial dominance over the states after the

Uniform Tax case (see also Ha’s case – excise taxes)

s96 allows the commonwealth to lend money to the states on “conditions as [they] see fit” The High Court decided in the power s96

Federal Roads Aid case

that the commonwealth could impose legislative conditions on the states when using their grants

3. REFERENDUM ALTERATION

Although long and costly, the alteration of the constitution has been used to shift legislative power from the states to the commonwealth 1928 1946 1967 s105A borrowing of money s51(23A) social security s51(26) aboriginal affairs

4. REFERRAL OF POWERS

Ex-nuptial children (born outside of wedlock) was a residual power as it was not something socially accepted in 1901.

In 1987 SA referred its power to make laws about ex nuptial children to the commonwealth under s51(37) This gave the commonwealth the power to make laws over both nuptial and ex-nuptial children In 2010 SA joined the other states in referring power over de facto relationships

5. ROLE OF THE SENATE

The Senate was established as the “States’ House” where Senators were to represent their state Party politics has seen this change, as Senators vote less and less in line with their state allegiance For example

Uniform Tax case

6. S109 INCONSISTENCY RULE

Before 1959 states had power over marriage and divorce.

In 1959 the federal parliament enacted the Matrimonial Causes Act (under s51(22)) and in 1961 the Marriage Act (under s51(21)) Both of these acts over-rode any state legislation due to s109

7. UNCHALLENGED LEGISLATION

If the commonwealth were to make a law about the Murray River (evidently a state residual environmental power), but no states challenged its validity, then the Act is valid.

Unchallenged legislation remains valid. For example the legislation establishing the Snowy River Mountain Scheme

8. CO-OPERATIVE FEDERALISM

 Where the states agree to make uniform laws  Gun control  Road traffic rules  Corporations laws

SHOULD AUSTRALIA HAVE A BILL OF RIGHTS?

      “Yes” Argument Need to meet international obligations Rights of minorities are not protected Individual rights abused (Haneef, Hicks) Most other nations have a bill of rights HCt protection relies on people affording the court case      “No” Argument Sufficient rights in the constitution HCt can imply rights as per Adban Legislation protects rights (RDA, EOA) Rights should be determined by legislative arm not judicial (can vote law-makers out if they offend rights)

SHOULD AUSTRALIA BECOME A REPUBLIC?

 “Yes” Argument  Outdated  Foreign Head of State  Vote for “President”  Or can appoint  Chance to rewrite the constitution and federal system arrangements  “No” Argument  Trusted system  Many historical ties (Westminster system)  Has worked and provided stable govt  $ cost of change  Some models of republic not popular – can’t agree