Table of Contents Chronology of Events ...... 4 History- 1788 to 1900 ...... 5 Plenary ‘sovereign’ Parliaments ...... 5 History- Towards Federation- 1880 to 1990 ...... 6 Federation (1901)...... 7 Commonwealth of Australia Constitution Act 1900 (Imp) ...... 7 Post Federation- 1901 to 1986 (Parliamentary Sovereignty) ...... 8 ‘Balfour Declaration 1926’ [1.3.9E] ...... 8 Statute of Westminster 1931 (UK) [1.3.11E] ...... 8 The Australia Acts ...... 8 The Rule of Law...... 10 Constitutional Conventions ...... 10 Responsible Government ...... 10 Separation of Powers ...... 11 Federalism ...... 12 Parliament & Legislative Procedures ...... 12 Terminology ...... 12 Parliament & Legislative Procedures (Commonwealth) ...... 13 Senate (Upper House) ...... 13 Composition ...... 13 Duration ...... 13 House of Representatives ...... 13 Composition ...... 13 Duration ...... 14 Senate Representation by Territories ...... 14 Membership ...... 15 Parliamentary Qualifications ...... 15 Disqualification ...... 15 Disputed Elections ...... 16 Standard Procedure for Passing Legislation (Commonwealth) ...... 16 1. House of Representatives stage ...... 17 2. Senate stage ...... 17 3. Royal assent stage ...... 17 Standing Orders (Intramural processes) s50 ...... 17 Double Dissolutions Triggers ...... 18 ‘Fails to pass’ ...... 18 Australian Constitution 1901 (Imp) s 57 Summary ...... 20 Victoria v Commonwealth (1975)(the PMA Case) ...... 20 Cormac v Cope ...... 20 Western Australia v Commonwealth (territorial senators case) ...... 20 Restrictive Procedures (Cth) ...... 21 Introduction ...... 21 Question of Preamble ...... 21 Senates Deferral of Supply ...... 22 Flaws in the drafting of s 53 ...... 22 Non Compliance with Procedures and Form – “proposed laws”...... 22 Section 53 ...... 22 Section 54 ...... 23 Non Compliance with Procedures and Form – “laws” s 55- Tax Bills ...... 23 Section 55 ...... 23 Parliament & Legislative Procedures (Victoria)...... 23 Legislative Assembly (Lower House) ...... 24 Composition ...... 24 Duration ...... 24 Council (Upper House) ...... 24 Composition ...... 24 Duration ...... 24 Membership ...... 24 Restrictive Procedures (Victoria) ...... 24 Step 1: Is the restrictive procedure a valid ‘manner and form’ restrictive procedure? ...... 25 Step 2: Is the subsequent Act a law concerning the ‘constitution, powers or procedure of the Parliament’? ...... 25 Step 3: Is the restrictive procedure doubly entrenched? ...... 25 CHARACTERISATION ...... 26 Heads of power ...... 26 Express powers ...... 26 Pre-Engineer’s Case ...... 26 Implied Immunities Doctrine (Now defunct per Engineers Case) ...... 26 Reserve Powers Doctrine ...... 26 Post-Engineers’ Case ...... 28 General Principles ...... 28 Contemporary Approaches to Characterisation ...... 28 1) Scope the subject matter of a constitutional ‘head of power’ ...... 29 2) Nexus between the legislation and the head of power ...... 29 Incidental Powers ...... 30 Purpose...... 31 Proportionality Test...... 31 Purposive Powers ...... 32 Relevance RE: Constitutional Limitation ...... 33 Summary for Characterisation ...... 34 FINANCIAL AND ECONOMIC POWERS ...... 34 Taxation Powers - s51(ii) ...... 34 Distinguish between tax and fee for service or license fee ...... 35 Cth powers to tax generally ...... 35 State powers to re taxation ...... 36 Spending Powers - ss96 and s81 ...... 37 Section 96 grants (indirect spending) ...... 37 Section 81 Appropriation Power (direct spending) ...... 39 Corporations Power- s51(xx) ...... 41 EXTERNAL AFFAIRS AND EXTRATERRITORIALITY ...... 44 Introduction ...... 44 The Extraterritorial Power ...... 44 Relations with other Nations...... 46 Extraterritorial Competence of the States ...... 47 Implementation of Treaties ...... 48 Matters of International Concern ...... 53 THE EXECUTIVE ...... 54 Composition of the Executive ...... 54 The Crown ...... 54 The Governor General ...... 54 Governor ...... 55 Ministry ...... 55 Federal Executive Council ...... 56 Government Departments ...... 56 Statutory agencies ...... 57 The Executive: Constitutional Conventions ...... 57 The Executive: Key Provisions ...... 58 Section 61: Executive Power ...... 58 Section 62: Federal Executive Council ...... 58 Section 63: Provisions referring to Governor-General ...... 58 Section 64- (Entrenches Responsible Gov.) ...... 58 Section 65: Number of Ministers ...... 58 Section 66: Salaries of Ministers ...... 58 Section 67: Appointment of civil servants ...... 59 Section 68: Command of naval and military forces ...... 59 Section 69: Transfer of certain departments ...... 59 Section 70: Certain powers of Governors to vest in Governor-General ...... 59 Executive Powers ...... 59 Powers conferred by the Constitution ...... 60 Powers conferred by statute ...... 60 Prerogative Powers ...... 61
Chronology of Events 1215 – Signing of the Magna Carta by King John. Limiting arbitrary exercise of royal power = birth of rule of law. No person could be arbitrarily arrested or imprisoned by the Monarch. 1265 – First assembly called a ‘Parliament’ summoned by Simon de Montfort. 1628 – Parliament produces the Petition of Right. Denying the Crown power to levy changes upon, imprison or punish anyone without due process of law. 1642 – English Civil War. Revolutionary wars between Crown and Parliament. 1646 – Parliament is recognised as the supreme law-maker in England. 1688 – Glorious revolution. Bill of Rights is passed. Crown cannot suspend the law, only Parliament can impose taxes. 1701 – Act of Settlement: independence of the judiciary is established. 1788 – First Fleet arrive in Australia. Australia founded as a Penal Colony. 1800’s – the UK act of imperialism. UK was the supreme, superior entity. • The colonies in Australia had powers to do anything they wanted unless: • RUPUGNANT – to the UK law in which it would be disallowed 1828 – Australian Courts Act: official date of reception of all English laws. 1842 – Australian Constitution Act (UK) passed. Colonies given power to draft their own Constitutions. 1855 – Victorian Constitution is passed. 1865 – Colonial Laws Validity Act. • Passed as a consequence of Benjamin Boothby invalidating as many colonial laws as possible on the grounds that they offended fundamental principles of English Law. (saw the UK act of RUPUNGANT abolished) 1890s – Move towards federation. • Defense & trade concerns. Constitutional conventions in Adelaide (1891), Sydney & Melbourne (1897 & 1898). 1901 – Australian Constitution is proclaimed. Commonwealth of Australia Constitutional Act 1900 (UK) 1926 – Declaration of Balfour. 1931 – Statute of Westminster (UK). Severing the Federal Parliament away from British interference. 1942 – Statute of Westminster Adoption Act (Cth). 1986 – Australia Acts. Severing the State Parliaments away from British interference. 1999 – Referendum on the Australian Republic fails.
History- 1788 to 1900 • Australian Constitutional history begins in 1788 o No indigenous constitutional history o No recognition of aboriginal government or prior sovereignty o Current discussion about reforming Constitution to include indigenous peoples in Constitution
• Terra nullius (contra Mabo (No.2) [1992]) o Reception of English law (both statute and common law and English constitutional law) to extent applicable in the Australian colonies. o Until 1828 date of reception of English law determined by common law. o Australian Courts Act 1828 (Imp) - Deemed date of reception of English law - Confirmation of power of Imperial Parliament to enact legislation for Australia
• 1788 → 1850 to 1890s evolution from penal settlement and executive government to responsible government and parliamentary democracy based on British system e.g. o NSW Act 1823 (Imp) re Legislative Council o Australian Constitutions Act (No. 2) 1850 (Imp) → empowers the then states (Victoria, NSW and Tasmania) o 1855 ‘responsible government’ established in NSW, Vic & Tas o 1856 SA o 1859 Qld o 1890 WA - Modelled on Westminster system (U.K) - ‘Bicameral’ legislature;
• Victoria separated in 1851: o ‘Bicameral’ Victorian Parliament in 1855; o Passage of Constitution Act 1855 (Imp) (formed basis of Victorian Constitution until 1975).
Plenary ‘sovereign’ Parliaments • Plenary ‘sovereign’ Parliaments → R v Burah (1878) 3 App Case 889 o ‘plenary powers of legislation, as large, and of the same nature, as those of the Imperial Parliament itself’. Plenary means full power. So these colonial states had the same power as the imperial parliament. • Enact legislation on any topic. o Not constrained by entrenched rights. o Override common law o Executive government beholden to parliament (responsible government)
• Vic Constitution: o There shall be established in Victoria … One Legislative Council and One Legislative Assembly, to be severally constituted in the Manner herein-after provided; and Her Majesty shall have Power, by and with the Advice and Consent of the said Council and Assembly, to make Laws in and for Victoria, in all Cases whatsoever.
➢ Limits to colonial parliamentary 1. Doctrine of Repugnancy (Colonial Laws Validity Act 1865 (UK)) o Inconsistency & Boothby (SA, 1853-67) on grounds of inconsistency with British laws: subordinate parliaments cannot legislate on laws that are ‘inconsistent with laws of England’ o Narrowed concept of repugnancy to statute law only and only if ‘extended’ to colonies: the law enacted by the UK could only be overridden by the colonial states if it had not mentioned that the law specifically applied to that specific colonial state. 2. Territorial limits o i.e. ‘peace, order and good government’ of colony (contra UK Parliament) o Legislative power can only apply to colonial territory, whereas UK did not have territorial boundaries 3. Disallowance by monarch o Theoretical power of the monarch to disallow legislature 4. Reservation for assent by Monarch o Instructions for what can be assented on o Even if rules of reservation were broken the legislation is still valid
History- Towards Federation- 1880 to 1990 • Political Movement favouring uniting of colonies and national government for Australian continent. • Tenterfield Oration of 1889 by Henry Parkes and 1890 Colonial Conference.
➢ Reasons for Federation: 1. Defence: o Needed national government that could coordinate all the Australian colonies in wartime 2. Economic: o Create internal free trade zone o Tariffs restricted trade and movement among the colonies o Different railway gauges o Section 92 ‘trade, commerce, and intercourse among the States … shall be absolutely free’. 3. Nationalism and idealism e.g. Henry Lawson: o Australian impressionism o National Pride 4. Racism & ‘White Australia’ policy o Fear of people from other cultures
• ‘Founding Fathers’ o Henry Parkes; o Alfred Deakin (1st Cth A-G and 2nd PM) o Samuel Griffiths (drafter of 1st draft; 1st Chief Justice; pro states) o Andrew Inglis Clark (favoured US Bill of Rights) o Edmund Barton (1st PM; 1st High Court) o Isaac Isaacs (Cth A-G; CJ; G-G; centralist).
• Constitutional Conventions: o First Convention: Sydney 1891: agreement that Australia should federate o Second Convention: 1st session, Adelaide (1897); 2nd session, Sydney (1897) & 3rd session, Melbourne (1898)
• Note exclusion of: o Working class/Labor Movement o Non protestants o Aboriginals or non-White people o Women
• Referendums (Plebiscites) 1899 & 1900 (W.A). • Negotiations with British & Passage of Commonwealth of Australia Constitution Act 1900 (Imp) on 9th July 1900
Federation (1901) Commonwealth of Australia Constitution Act 1900 (Imp) • Preamble- records that people have agreed to unite as one indissoluble Federal Cth under the crown- (incorporates federalism and constitutional monarchy) • 9 sections ‘covering clauses’ • Covering Clause 9 (Australian Constitution)
➢ Features of the Constitution • 8 Chapters – Chapter I (‘The Legislature’) – Chapter II (‘The Executive’) – Chapter III (‘The Judicature) – Chapter IV (‘Finance and Trade) inc s 92 – Chapter V (‘The States’) • Preservation of State Constitutions (s 106); • State legislative power (s 107) • Inconsistency (s 109) – Chapter VI (‘New States’) – Chapter VII (‘Miscellaneous’) – Chapter VIII (s 128) • referendum and ‘double majority’ • frozen continent’ (Geoff Sawer) → 44/8; contra Constitution Act 1975 (Vic) → basis for ‘popular sovereignty’ argument
• Appraisal o Pragmatic. o Few rights (5 express and ? implied). o Remarkably stable but seriously out of date. o Context as important as text.
• Scope for constitutional interpretation i.e. o Originalism o Literalism o Progressive interpretation (‘living tree’) Post Federation- 1901 to 1986 (Parliamentary Sovereignty) ‘Balfour Declaration 1926’ [1.3.9E] • This was the formal recognition of the autonomy of the Commonwealth executive government • It established that the dominions of UK were autonomous • Established that the UK would not legislate for the dominions, only if the dominions had requested it (the imperial parliament) to do so • It also established that the GG was not a representative of the King or Queen. Statute of Westminster 1931 (UK) [1.3.11E] • Adoption by Australia in 1941 (Statute of Westminster Adoption Act 1941) • This only effected the federal government and not the States. • The Statute was enacted in 1931 however was not adopted until by the Commonwealth Parliament (s10), until 1942 which occurred with the passage of the Statute of Westminster Adoption Act 1942 (adoption backdated to September 3rd 1939). • WWII- cultural and political shift under John Curtin PM. By 1940’s politically changing landscape in Australia • The Statute effectively solidified Australia’s position as an independent country. • The statute abolished the rule that a law would be invalid if it was repugnant to UK law. • S2(1) declared that the Colonial Laws Validity Act 1985 (UK) did not apply anymore. This Act effectively stated that if the dominion’s laws were repugnant to the UK law relating to that colony then they would be deemed void. • s2(2) confirmed that no law of a dominion would be held to be invalid for the reason of repugnance to any law of the UK. • Also gave the Australian Parliament the power to repeal or amend any UK law which had previously been applied to it. s2(2) • s3 stated that the Commonwealth had full extraterritorial power. • Thus, as of the 3rd of September 1939, the Commonwealth was legally free from the UK Parliament. • Statute of Westminister 1931 (UK) o s 1 re ‘dominions (i.e. Commonwealth, not States); o s 2 re Colonial Laws Validity Act 1865 (Imp) inapplicable to Commonwealth legislature; o s 3 full extraterritorial power; o s 4 re renunciation of UK legislative power except where requested; o s 8 re Constitution.
The Australia Acts • Despite the passing of the Statute of Westminster, the States remained subservient to the UK. For example, in China Ocean Shipping v SA the HC found SA legislation invalid due to its inconsistency with an 1984 UK merchant shipping law. ( • The Australia Acts 1986 were therefore passed, giving the States complete independence from the UK. The legislative scheme of the Australia Act 1986 (Cth) with regard to the States was very similar to that applied to the Commonwealth by the SoW. Most pertinently, s1 terminated the power of the UK Parliament to legislate for any of the States. ( • S 15 entrenched the Australia Act and the SoW by stating that they could only be amended under s128 (i.e. referendum) or with the consent of all of the States. A return to British rule was therefore effectively made impossible. The Australia Acts were thus given constitutional status under s15. = Complete legal independence from the UK. ( • On another minor note, the Australia Acts made the HC the highest court of appeal in Australia. The Privy Council was no longer a part of our legal system and was not binding on our courts; s11. Appeals technically can still be made to the Privy Council but only from the High Court and only upon the issuing of a certificate from that court. The HC has, however, indicated that they will never issue such a ceritifcate; Kirmani v Captain Cook Cruises. ( • The passing of the Act was validated under s51(xxxviii) which allows the Commonwealth Parliament to legislate in areas of UK power if they gain the consent of all of the States. The consent of the States was evidently given. ( • Position of States unaltered until Australia Acts: o Australia Acts (Request) Act 1985 (Vic) → o Australia Act 1986 (Cth) (s 51(xxxviii)) & Australia (Request and Consent) Act 1985 (Cth); o Australia Act 1986 (U.K.) →commenced 3/3/86.
➢ Australia Act 1986 (Cth) • Section 1 terminates “right” of U.K. Parliament to legislate for States or Commonwealth (replaces Statute of Westminster 1931, s 4); • Section 2 re extraterritoriality re State Parliaments • Section 3 re inapplicability of Colonial Laws Validity Act 1865 to any subsequent legislation of State (compare Statute of Westminster 1931, s 2 re Commonwealth) (e.g. abolition of repugnancy for States except for Statute of Westminster 1931 and Commonwealth of Australia Constitution Act 1900 (Imp) (see s 5); • Section 6 ‘manner and form’ provision. • Section 7 provides that: o Crown’s powers re state are exercised by Governor, not Queen (s 7(1), (2)) o Except power of appointment (s7(3)) o Advice to Queen given by Premier (cf British Government) (s 7(5)) • Sections 8 and 9 re disallowance and reservation re State laws • Section 11: abolition of appeals to Privy Council o Appeals from courts exercising federal jurisdiction abolished in 1968 (Privy Council (Limitation of Appeals) Act 1968 (Cth)) [1.2.9] o All appeals from High Court abolished in 1975 (Privy Council (Appeals from the High Court) Act 1975 (Cth) [1.2.9]. o Section 11 effectively abolishes final avenue of appeal from state Supreme Courts to Privy Council in matters of state jurisdiction. • Section 15 entrenchment [1.2.32] o Either by alteration of Constitution under s 128; or o Section 51(xxxviii) procedure.
• Conclusion: - Australia is now completely legally autonomous and independent through a process of evolution. - Governor-General is now representative of Australian Government, not British Government - Parliaments not bound by UK Parliament - High Court not bound by British precedent. - Full legal independence not achieved until 1986. - Symbolic independence still not achieved because our head of state, the Queen of Australia also the Queen of the UK. - Queen Elizabeth II signs her Assent to the Australia Act on 2 March 1986 at Government House, Canberra, with David Reid, Secretary to the Executive Council (left) and Prime Minister Bob Hawke. The Rule of Law • According to Albert Venn Dicey, the rule of law embodied the notion that all people are equal before the law. • According to Dicey, the rule of law has three main facets; 1. That people are free from capricious government decision-making, a protection of the individual from hostile discrimination on the part of the political power. Dicey would remark that Englishmen were “ruled by law and law alone; a man may be punished for a breach of the law but he can be punished for nothing else”. Implicit in Dicey’s reasoning is that the law should be stable and non- discriminatory. 2. That people are equal in the eyes of the law, that the governors will be subject to the same laws as the governed 3. That the absence of a bill of rights encourages the protection of human rights through a bottom up model, where the source of these rights stems from the people rather than a legal code
• Recognised in covering Clause 5 CC: • ‘This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth... ‘ • Joseph Raz has elaborated on this concept to include the requirement that the administrative authorities apply both “statutory and common law faithfully, openly and in a principled way”
Constitutional Conventions • Constitutional conventions are customs or practices that are habitually followed by government who are under a moral or political obligation to follow them (S. Joseph) • A breach of a convention does not attract any legal sanction • As the text of the constitution is scant, the ‘holes’ have been filled by the development of conventions, eg; o It is a convention that the Governor-General acts on the advice of the government of the day. This convention has only been broken once when Governor-General Kerr sacked the Whitlam government. • Considering the stagnant nature of the Constitution, these conventions allow the development of the law and bestow upon the government the wide discretion it requires to govern effectively. • Constitutional conventions- neither expressed in statute nor enforced by courts • May qualify practical operation of formal rules or regulate activities left uncontrolled by formal rules.
Responsible Government • The doctrine of responsible government is implicitly recognised in the Australian Constitution. o Australian Constitution 1901 (Imp) s 64 – where the GG must act on advice of ministers so long as the government of the day commands a majority in the HoR. o The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth (s 61). • Operates by convention • Under the doctrine of ‘responsible government’, the executive is responsible to the legislature. - GG acts on advice of PM and Cabinet; - The government will only remain in power while they command the majority in the House of Reps, the government in not drawn from the Senate. • Responsible used as a synonym for accountable. Government is accountable to parliament. • In theory, governor general exercises all the powers of executive. - In practice, only does things that are advised to do by the cabinet. • PM and party must hold the confidence of their party. If they lose the confidence, they lose office. Must resign. - Lower house is dominated by the political party that has the majority of the seats and can control. - Is a majority in senate necessary? Not in legal sense. They still form government. But it will be difficult to pass legislation if the lower house does not have the majority in the upper house.
• Collective ministerial responsibility important for constitutional law • Individual ministerial responsibility important for administrative law. – Only collective ministerial responsibility can determine fate of a government.
Separation of Powers • Legislature (s 1) (makes laws) o Commonwealth & State parliaments • Executive (s 61) (administers laws) o Commonwealth Government (headed by the Governor General- advised by the executive council comprised of the PM and ministers) and departments and other agencies of government. o Cth executive power- includes powers accorded by common law (prerogative power) as well as powers derived from legislation. • Judiciary (s 71) (interprets the laws) o System of courts including the High Court
• This doctrine prescribes that the functions of the three arms of government be clearly and institutionally separated. • The separation of powers ensures that the three arms of government operate as checks and balances upon each other so that no one governmental arm unduly harms the interests of the governed. • However, in Australia the executive is drawn from the majority in the legislature, so there is no clear separation of powers. • Only a partial separation of power exists in Australia, as there is no strict separation between the parliament and the executive. • Australian Constitution 1901 (Imp) s 64 = ‘All Government ministers must be drawn from and accountable to the Parliament’ • This heightens the importance that the judiciary be free from political alliances. • The distinction between the executive and the legislature has become increasingly blurred. Section 64 of the Constitution requires that Commonwealth ministers (i.e. the executive) are drawn from the legislature, therefore mandating some degree of institutional merger between these two arms of government. Federalism • Federalism refers to the power to govern publicly is divided between two levels of government, State and Commonwealth. • Federalism is a governmental trait unique to Australia which was not adopted nor inherited from the UK system. In Australia, however, the States retain some powers which are constitutionally invested and therefore cannot be interfered with by the Federal parliament. • An example of such a right is that under s92, which guarantees that trade between the states will be free of federal interference. • The US system provided the most influential precedent in establishing a federal system in Australia. For example, a US-style upper house designed to protect the States, also called the Senate, was adopted. The US system of distributing power whereby enumerated powers were conferred on the central government, and the residual powers left to the regional governments, was also incorporated. The US system was therefore a much more influential factor than that of the UK system. • Early constitutional decisions tended to favour the preservation and enhancement of the powers of the States; R v Barger. • Now, however, the balance of power between the federal partners has for a long time swung inexorably in favour of the Commonwealth. The prevailing interpretations of the tax power, the grants power, and the prohibition of States’ powers to impose excise duties in s90 have left financial resources and powers disproportionately in the hands of the Commonwealth. It could therefore be argued that while Australia remains a federation, the States’ abilities to meaningfully exercise their powers are increasingly dependant on a good faith attitude to practical federalism on the part of the central government.
• There are seven autonomous governments in Australia; the federal government and the six state level governments • The territories are under the exclusive control of the federal government, that these territories exist at the grace of the federal government pursuant to s 122 • This was demonstrated in 1997 when the federal government overrode the NT’s euthanasia legislation • This model of Federalism was based upon the US model, and accordingly the Senate was enacted as a guardian of the States rights. • Acts to discourage the centralization of power, and allows more access to the decision making process. • However, the stringent party discipline shows that senators are more likely to vote along party lines than in the interests of their constituency.
Parliament & Legislative Procedures Terminology • Summoning of parliament by Crown e.g. – Australian Constitution s 5 – Constitution Act 1975 (Vic) s 20 • Minimum of one sitting per year (s 6; Constitution Act 1975 (Vic) s 41) (Period of Personal Rule 1629-40) • Adjournment of sittings by parliament • Prorogation (termination of session) & dismissal of parliament & summoning to new session. All bills lapse, parliamentary privileges (all Bills lapse, parliamentary privileges). • (Irrevocable) dissolution & election of new parliament
Parliament & Legislative Procedures (Commonwealth) Senate (Upper House) Composition • Composed of Senators from each state- directly chosen by people of the state • The Senate was conceived as the ‘State’s House’ Section 7 of the Constitution states that senators ‘shall be chosen directly by the people of the State’ giving rise to a proportional representative voting system. • Constitution (s7) provides for equal State representation in the Senate • Parliament is authorised to increase the amount of senators as long as the membership of the HoR is increased accordingly s 7, 27(initially 6 senators per State, now 12) • Is voted via Proportional voting -one electorate- system of voting • Consequently - Tasmania- 10th of population of NSW- yet still have same amount of senators- a senate vote in Duration • Section 7 re fixed terms (6 years) • Section 13 re rotation (3 years) • Senators are elected for 6 years. Half retire and face re-election at each House of Representative election. • A double dissolution can be called where the two houses are deadlocked for at least three months; s57. • Electoral cycle in the senate is a 6 year term – thus at least two cycles of the HOR who have max 3 year terms. • Half senators stand up for election at each Federal election- (Half Senate and whole of the HOR at every Federal election) • Exception---dissolution of both houses of parliament • S7- mandates that the senate starts term on 1st July of year and ends at the end of the 6 year term- (or 3 year) • Certified by governor- demonstrate that senate conceived as a states house
• Filling of casual vacancies by party allegiance (s 15) - Breach of convention in 1975 - Lead to 1977 amendment
House of Representatives Composition • Section 24 of the Constitution provides that members of the House of Representatives shall be comprised of members ‘directly chosen by people of the Commonwealth’. ( • Constitutional - connection (NEXUS) b/w number in the HOR and Senate- must be as near to double that in the Senate ( • Where in the senate each state votes as one electorate- the number of members in the HOR should be proportionate to the respective numbers of their people ( • Electorate lines drawn to represent this principle- thus more electoral divisions will equal more members ( • Cant have a HOR seat that extends over the boundaries of single state ( • The composition of House of Representatives is determined by the Commonwealth Electoral Act 1918: • Membership approximately twice the size of the Senate.s24 ( • Allocation of members is directly proportional to the population of each state. ( • Minimum five members per state, but the Parliament can increase this number. ( • Members must be chosen from one state (cannot be in two states) ( • Preferential voting system. ( Duration • S28- maximum term of 3 years (no minimum)- but may be sooner dissolved by the GG • The government has the right to decide when to hold the election • HOR has a max term of 3 years senate fixed term of 6 years with half for election in 3 years • Thus don’t have to have the HOR and Senate elections at the same time • 1960’s – Menzies- 3 Half senate elections • Since 1970’s – accepted wisdom to avoid half senate elections- constitutionally can • S13- election for the senate 1 year before become vacant- vacancy comes up on the first of July • Whilst electing HOR will be given the opportunity to elect half the Senate- places will become vacant on the 1st July 2008. • HOR- will have to convene within 30 days of election being finalized • Senate 2007- nothing change- until 1st July 2008
Senate Representation by Territories • The Whitlam government amended the Commonwealth Electoral Act 1918 to give citizens in Territories Senate representation. • A joint sitting of the Commonwealth Parliament in 1974 passed the Senate (Representation of Territories) Act 1973. • The Act gave the AC T and Northern T erritory two senators. • The Senate (Representation of Territories) Act 1973 was twice challenged in the High Court
• CASE: Western Australia v Commonwealth (First Territorial Senators case) 1975 • Clash between s7 and s122 of the constitution • S7- the senate shall be composed of senators from each state – (does not expressly say territory) • Senate members did not have full representation in the senate- given senate positions but did not have full voting rights- up until, 1974 • Whitlam Government in 1973- created Territory representation in the senate with full voting rights. • Territory senators- only sit for one term of HOR (Max 3 years) – no fixed 6 year term • 2 members from the ACT and NT • State Governments- controlled by conservative parties- challenged legislation in HC • Challenge on basis of s7- only says states- thus exhaustively defines the constitution of the senate • S122- T erritories power • Under s122 can legislate to allow for the representation of such territories in either house—triumphs s7 FACTS: • Concerned legislation passed during a joint sitting of the House of Representative and Senate following a double dissolution that gave the Territories Senate representation. • The Senate (Representation of Territories) Act 1973 was passed that allowed for the election of two Senators from each Territory with all of the same powers and immunities of the State senators. • Some state attorney generals challenged the validity of legislation passed by the joint sitting. • WA challenged the validity under s7 of the Constitution. QUES TION: • • The central legal question was whether senators from the Territories should have equal rights to state senators. HELD: • A 4/3 majority of the High Court (McTiernan, Mason, Jacobs and Murphy JJ) upheld the validity of the Senate (Representation of Territories) Act 1973. (Judgment lead by Mason) • The majority held that s122 of the Constitution validated the legislation. • Section 122 authorises Parliament to ‘allow the representation of [a] Territory in either House of the Parliament to the extent and on the terms which it thinks fit’. • They further held that the overall democratic theme of the Constitution demanded that the Territories receive some degree of representation in the Senate. • The Constitution was meant to create ‘an indissoluble federal government”, thus no distinction between States and Territories rights • The Constitution was meant to be flexible to ensure it remained CON TEMPOR AR Y • Thus, the M AJORI T Y favoured democracy while the minority favoured states rights • It is possible that the Federal Government could increase the number of Territorial Senators exponentially following the decision. • Mason J – have to read s7 in light of s122- all that s7 does is say that at federation the senate shall be composed of senators from each state and s122 implies that the founding fathers intended that over the course
Membership Parliamentary Qualifications • Members of the House of Representatives and the Senate require the same qualifications to hold office (note the similar rules apply to members of the Legislative Assemble and Council in Victoria). • Qualifications for the Senate are the same as those for the HoR; s16. • The qualifications under s34 of the Constitution (as modified by s163 of the Commonwealth Electoral Act 1918) include: o 18 years age requirement; s163 o The member must be an Australian citizen and voter.s42 o A member of one House cannot be chosen as a member of the other house s 43 o Both members and Senators must make and subscribe before the GG a oath of allegiance set forth in the Constitution s 42
Disqualification i) Allegiance to foreign power (s 44(i)) • Sue v Hill (1999): after enactment of Australia Acts 1986 UK is now a ‘foreign power’ • This should not be used to bar an Australian citizen that has taken all reasonable steps to divest themselves of all conflicting allegiances Skyes v Cleary • These reasonable steps will turn on the individual circumstances of the individual, the foreign law, and the extent of the connection between the person and the foreign power. • The disqualifications in s 44 (i) are constitutionally embedded and cannot be directly overruled by Parliamentary legislation. • Legislative changes to duel nationality make it easier for the High Court in the future to read down prohibitions in s 44 (i) against members holding foreign citizenship. • It should be noted that courts in Sykes and Hills’ cases concluded that the prohibition in s 44(i) is not absolute, because if the candidates in those cases had taken steps to renounce their foreign citizenship, but failed in this endeavour, they would not have offended s 44(i). • Changes to the dual citizenship rules make it easier for future courts to find that merely holding foreign citizenship does not offend the spirit of s 44.
ii) Attained by treason or ‘convicted and under sentence’ for offence punishable by 1 years jail or more (s 44(ii))
iii) Those with undercharged bankruptcies (s 44(iii)) iv) Holds office for profit under the Crown (s 44(iv)) • Skyes v Cleary o Cleary Victorian State School teacher (office of profit under crown) o Leave without pay at time of nomination & poll o Resigned immediately before declaration of poll o Any person who holds any office of profit under the Crown … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives:
v) Direct or indirect pecuniary interest in any agreement with Cth Public Service (s 44(v)) • Re Day (No 2) (2017) o Intended to prevent possible conflicts of interest between role as Federal Parliamentarian and personal financial interests o Could be direct or indirect pecuniary interest o Could include share ownership o Qualification re ‘membership’ of public company
• Section 45: “If a senator or member of the House of Representatives: (i) becomes subject to any of the disabilities mentioned in the last preceding section; or (ii) takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or (iii) directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State; his place shall thereupon become vacant”.
Disputed Elections • Section 47 re disputed elections o “Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises”. • Commonwealth Electoral Act 1918 (Cth), s 353 o “The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise”. • High Court or Federal Court sitting as Court of Disputed Returns.
Standard Procedure for Passing Legislation (Commonwealth) • Section 1 of the Constitution gives the Federal Parliament legislative powers, while s15 of the Victorian Constitution invests similarly. • There are several steps in the passing of legislation at federal level: 1. The legislation must be passed by the HoR. 2. The legislation must be passed by the Senate. • Each of the three steps are required for legislation to become an enforceable law. • Legislation that fails to follow the basic procedures does not acquire the force of law. 1. House of Representatives stage • The first step in the passing of legislation at the federal level is the initiation by the House of Representatives. • The HoR is given the power to initiate legislation under s51 and s52. • The legislation must pass the HoR with a of at least 1/3 total number of members; s39. • The procedure is based on a simple majority vote from the members present (keeping in mind that the legislation must be passed by at least a third of the HoR). • The speaker also has a casting vote; s40. 2. Senate stage • The power to review, approve and amend legislation is given to the Senate; s53. • Again, a majority of present members must vote to pass the legislation (s23), subject to the proviso that the majority constitutes at least one third of the total number of senators (the quorum); s22. 3. Royal assent stage • Assent to or approval of legislation by the Crown is an integral part of the legislative process. But the Crown has a very limited role in the making of legislation. • The Constitution recognizes no power in the Crown to amend Bills passed by the houses of Parliament • There is a power for the GG to return Bills to one of the houses of the Commonwealth Parliament with a recommendation for amendment (s58), but even this power was intended to have very limited operation – to enable ‘inaccuracies or discrepancies [which] have crept into’ legislation to be corrected with a minimum of formality. • The Governor General thus has no discretion to amend Bills, and basically has three options: s58 o To give royal assent; o To withhold assent; or o Intended to deal with inaccuracies which may have crept into legislation • To reserve the Bill ‘for the Queen’s pleasure’. • In reality, the function of the Crown in assenting to legislation cannot be described as an independent one. Legislation is given the royal assent because the current ministry advises the GG or the G to assent. • Assent is a formal act, an automatic and inevitable response to the prompting of the government of the day. • If part of a bill cannot be assented to, then the entire bill must be returned as the Queen (through the GG) cannot assent to sections of a bill R v Commissioner for Transport; Ex parte Cobb & Co Ltd 19963 QLD Full Supreme Court
Standing Orders (Intramural processes) s50 • Pursuant to s50, each House of Parliament may make rules in respect to: i. The mode in which its powers, privileges and immunities may be exercised; and ii. The order and conduct of its business and proceedings. • The well-established legal view is that these procedures are non-justiciable, and that their enforcement is left to the houses of Parliament; Edinburgh & Dalkeith Railway v Wauchope.
Double Dissolutions Triggers • Failure to comply with this section will make the law invalid PMA as per Gibbs J • Double dissolutions are used when there is a deadlock between the HoR and the Senate quorum
The procedure is as follows: 1. The HoRs passes the bill 2. The senate rejects, or fails to pass the bill, or passes the bill with (unacceptable) amendments to which the HoRs will not agree 3. Three months has passed and the HoRs again passes the bill. This is the 3 months between the Senate rejecting and the HoRs again passing the bill PMA 4. The Senate again rejects or fails to pass the legislation for the second time 5. The GG may dissolve the houses The dissolution cannot occur within six months of “the expiry of the House of Representatives by effluxion of time” 6. After the convocation of the new Parliament, the HoRs again passes the bill 7. The Senate again rejects or fails to pass the legislation 8. Then there is a joint sitting 9. If the bill gains an absolute majority (which it will because of the superior numbers in the HoRs) 10. The bill is prepared for royal assent and becomes law
‘Fails to pass’ • This is not the absence of a positive act of the Senate • It will refer to an omission on behalf of the Senate after allowing a reasonable amount of time for consideration of the legislation (Barwick CJ in PMA) • “The Senate ought to answer whether or not it will pass the Bill or make amendments to it for the consideration of the House: that the time has arrived for the Senate to take a stand with respect to the Bill. If that time has arrived and the Senate rather than take a stand merely prevaricates, it can properly be said at that time to have failed to pass the Bill” (Barwick CJ). • Do not look at what the senate says, look at what they have done • You need at least a interval of at least 3 months to determine when the senate has failed to pass the bill. • Difficult to identify precisely when the bill has failed to pass. • The power to dissolve both Houses of Parliament is given to the GG under s57 where the preconditions prescribed by the section have been met and the life of the House of Representatives is not due to expire within the next six months. • If the Senate twice fails to pass or amend legislation in ways that the House of Representatives find unacceptable then: i. Three months must elapse from the time the Senate first rejects or fails to pass the Bill until its reintroduction into the House of Representatives; ii. The GG may dissolve the House of Representatives and the Senate simultaneously; iii. The dissolution cannot take place if there is six months or less before the expiry of the House of Representative’s term. • If the new Senate (after an election) still fails to pass or amend legislation, the GG may convene a Joint Sitting of Parliament. • Members from both Houses may deliberate and vote together on the contentious legislation at the joint sitting. The legislation must pass by an absolute majority of the total number of members of both houses of Parliament. • The question of whether of or not the court has jurisdiction over Instrumental process has arisen in a line of cases.
Victoria v Commonwealth ‘PMA CASE’ (HC, 1975) • Challenge to Petroleum and Minerals Authority Act 1973 • Argued (by Cth) o Resolutions of Senate on 13/12/73 = failure to pass or rejection o Comments by senators both within and outside Senate relevant - “As I think is probably well known, it is the intention of the Liberal Party Opposition to oppose totally this Bill, and it will be voting against it”. o Interval of three months from 1st passing by House of Representatives (Step 1) o Words of s 57 directory not mandatory o Non-justiciable
• Justiciable and mandatory because: o Statutory powers and statute is fundamental law o High Court is ‘guardian of Constitution’ and has obligation to ensure law making prescribed by Constitution followed o Court has power ultimate to decide whether facts satisfied (cf G-G)
• Resolution of Senate on 13/12/73 ≠ failure to pass because co equal chamber, not mere ‘house of review’ • Definition of failure to pass (see p 178-9) o “It seems to me that the word "fails" in s. 57 involves the notion that a time has arrived when, even allowing for the deliberative processes of the Senate, the Senate ought to answer whether or not it will pass the Bill or make amendments to it for the consideration of the House: that the time has arrived for the Senate to take a stand with respect to the Bill. If that time has arrived and the Senate rather than take a stand merely prevaricates, it can properly be said at that time to have failed to pass the Bill” (Barwick CJ). • Only look at actions of senate not actions of senators
• Three months does not run from Step 1: o Plain English o Role of Senate (contra Jacobs J) • PMA Act invalid
• Lawfulness of Double Dissolution (note obiter dicta) • Barwick CJ o Joint sitting ‘although not void, not lawful’ o Joint sitting had no power o No power to dissolve. • Other justices o Section 12, 32 operate independently o Dissolution, election and summoning of new Parliament all valid
Western Australia v Commonwealth (Territorial Senator’s case) (1975) • The question arose as to whether or not s57 imported a requirement that the GG act promptly once the necessary requisites were present. • The court unanimously (Barwick, Gibbs, McTiernan, Stephen, Mason, Jacobs, Murphy) held that there was no basis on which such a requirement could be read into s57. • Barwick CJ intimated that the GG’s act to double dissolution of the parliament should be ‘proximate to the time that the difference (between the houses) emerged’. • However this does not represent the majority view. Argument FAILED • It was also questioned whether legislation could be ‘stockpiled’ to be passed during the joint sitting, if there is no time limit/constraint. • The court held that the joint sitting may deliberate on and pass more than one Bill. • A government, whose legislative program is being frustrated by a hostile Senate, is not obliged to invoke s57 separately for each element in that program (following Cormack v Cope). • HOWEVER, the double dissolution must be proclaimed in respect of each Bill which the government wishes to pass in the joint sitting. Unless they are proclaimed, the passed laws will be deemed invalid due to the failure to go through the s57 procedure; PMA.
Australian Constitution 1901 (Imp) s 57 Summary Victoria v Commonwealth (1975)(the PMA Case) • An invalid bill (failure to comply with s57 requirements) that was a DD trigger for a DD election then it wont invalidate the DD election = DDE based on issuing of writ not the Bill.
Cormac v Cope • A double dissolution power does not have to be exercised within a specified time after a legislative deadlock has occurred. o Itthereforepermitsthestockpilingofdouble- dissolutiontriggersbyagovernmenttobeusedata politically opportune time of their choosing
Western Australia v Commonwealth (territorial senators case) • Second argument: Delay between s57 trigger + the DD election= Stockpile argued by the states that once the trigger is made = must go straight to an election. • Held: Rejected the argument – the text of s57 indicates no time frame for the DD election. • Therefore the Government had hold onto them and choose when to go to an election. • Therefore nothing stops a Government stockpiling 20 unpopular bills, wait for an opportune moment (polls start being strong for them) force the DD election (dissolution of parliament) and push them through to a joint sitting of parliament. = No constitutional limit (only a political limit).
• Validity of the double dissolution election? • Validity of subsequent joint sitting? • Obiter dictum, what if, it was only the one bill that had been challenged in the HC • 6 bills, 4 were not challenged, of the two that were 1 failed (PMA) and 1 survived (Territories) • What if the PMA was the only bill that triggered the double dissolution election and joint sitting • What happens if the only bill that triggered the double dissolution and joint sitting? Different judges put different emphasis on different things, Justice Mayson says that the HC has always had a role in assessing the validity of legislation. The court will not look at the validity of an election and the validity of a joint sitting. Joint sitting might be lawful but might not been valid however the court will never interfere with whether the actual sitting is actually valid. • Justice Gibbs himself said that the election would never be interfered because it is entrenched in section 12 of the constitution.
Restrictive Procedures (Cth) Introduction • Restrictive procedures refer to the checks and balances that keep the separation of powers, responsible government and federation principles intact. • The Constitution is drafted precisely for this purpose. • The Commonwealth Constitution can only be altered pursuant to s128. • The Constitution is not a normal piece of legislation and cannot be amended in the same way McCawley v R Section 128 stipulates that ‘The Constitution must not be altered except in the following manner’: i. A Bill proposing to amend the Constitution must pass by an absolute majority of both Houses of Parliament. ii. Within 6 months of passage through the Senate, the Bill must be approved by a referendum. iii. Referendums require a majority of votes in a majority of states to pass (i.e. a double majority). iv. Once bills are approved by referendums they are presented to the Governor General for royal assent. • Absolute majority = majority of all members not just those present. • The 1977 referendum was used to amend itself, allowing the voters of the Territories to be counted. • The Territories will be counted in the overall majority, but not the majority of states requirement • Section 128 is NOT the only mechanism for altering the Australian Constitution. Please read s 51(xxxvi) and the provisions where the words “until the Parliament otherwise provides” (ss 3, 7, 10, 22, 29, 30, 31, 34, 39, 46-8, 65-67, 73, 87, 93, 96 and 97) • Not constitutionally required that a referendum happen at the same time as a general election.
Question of Preamble • Section 128 can theoretically be used to amend any part of the Constitution. However, there is an untested argument that the basic institutions presupposed in the Preamble are not changeable. o But there were proposed changes to the preamble in the 1996 referendum, therefore it is likely that it would be constitutional – although untested • The Preamble recites that the people of five colonies (NS W , Victoria, Queensland, S A and T asmania) ‘have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom’. • It would thus be argued that Australia’s Constitution could not be altered to remove the Queen as our monarch. It would however seem that the s128 power is plenary in nature and could be used to alter any part of the Constitution. • Covered by the Preamble- Abolish the High Court (separation of powers), Remove the vote, Abolish the monarchy