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Perspectives on the Constitution

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Perspectives on the Constitution Topic 1: Perspectives on the Constitution In 1999 a constitutional referendum vote was held for the purpose of establishing a republic in Australia Australia was uninhabited, Terra Nullius The Australian Courts Act 1828 (UK) established that the laws of England were applicable to conditions in Australia The Australian Constitution Act 1842 was the first time that some steps were taken to representative government in Australia Soon Australian colonies were able to draw up their own constitution bills The final constitution bill was approved by the Federal Convention 1898 Commonwealth of Australia Constitution Act 1900 Received the royal assent on July 1900 and the Commonwealth of Australia was proclaimed to come into existence on 1st of January 1901 Colonial context of the introduction of English Laws Australia’s constitutional system has evolved from the initial introduction of English laws to the ‘settled colony’ Based on terra nullius Which has now been repudiated by the HC in Mabo v Queensland (2) The Australian Constitutions Act 1850 gave to the Australian colonies the power to draw up their own constitutional documents These Constitutional Acts established responsible government in the colonies Beginnings of federal government As the states each had their own constitutional documents, there was a need felt to establish some sort of general assembly or a central legislative authority to deliberate and legislate on matters of common interest A convention of the Australian colonies was held in Sydney in 1883 Recommended that the UK establish a federal authority in Australia- Federal Council of Australasia Act 1885 This act made provisions for an executive body and a legislature This was the first major step amongst the colonies The Sydney Convention 1891 In 1890 NSW joined the federal movement The convention also approved the framing of a federal Constitution Spelt out the nature of the three organs of the federal government Bicameral Parliament comprising the House of Representatives and the Senate The federal executive was to be headed by the GG who would have appointed advisors The judicial power was to be reposed in a High Court of Appeal Referenda and enactment of the Constitutional Bill If the Constitution Bill was approved in referenda in three or more colonies it would be submitted to the UK parliament for enactment Received royal assent on July 9 1900 The Commonwealth of Australia was finally proclaimed to come into existence on 1 January 1901 Commonwealth Constitution, Statute of Westminster, and Australia Act Colonial Laws Validity Act 1865 (UK)- Australia was not independent at 1900 but a self-government colony’ within the British empire The Statute of Westminster Act 1931 (UK) repealed the doctrine of repugnancy enacted by CLVA, gave the power to alter or repeal British statutes that applied in Australia The Australia Act 1986 fully terminated UK parliaments power to legislate for Australia The sequence of independence was achieved through an evolutionary process S 128- the constitution is capable of amendment by the procedure which involves the Australian people, without reference to the United Kingdom- can hold referendums S 61- the Commonwealth Constitution vested executive power in the monarch and was made exercisable by the GG The provisions of Statute of Westminster 1931, declaration of Commonwealth Parliament’s capacity to enact all kinds of all laws were sufficient to confer independence as well as the Australia Act 1986 The long process whereby Australia achieved, first autonomy and then independence will not be complete until Australia becomes a republic Section 128- holding of referendums The Commonwealth Constitution can be amended only by a law passed by the Commonwealth Parliament and approved by the majority of leaders in Australia Must be passed by an absolute majority of both houses of the Commonwealth Parliament Passed by a majority of voters nationally and voters in a majority of the states The time period of submitting a proposed law for alteration of the constitution after it’s passage in parliament is not less than two months and not more than six months If there is a disagreement between the two houses the G-G can still submit the proposed law to the voters Must be approved by the majority of the electors in that state The Referendum (Machinery Provisions) Act 1984 (Cth) A referendum for changing the Constitution is held in accordance with the procedures set out in this act Since federation s 128 has not been very effective in bringing about desired change Of 44 proposed laws, only eight were successful A certain orthodoxy is that Australia is a frozen continent Must be passed by absolute majorities in both houses of parliament and passed by people at a referendum in which there must be a majority of voters nationally and a majority of voters in a majority of states voting in favour for it Haven’t been very successful in Australia Republic Since 1993 two successive governments have tried to establish a republic in Australia Australia is a monarchy not a republic The Queen is the Head of State in Australia The Constitution should be amended so as to clearly define and delimit the powers of the head of state so that the Australian people know precisely the powers and duties of the head of state that they are being called upon to elect Two issues whether we should become a republic and what model of republicanism should be put to the voters to consider against the current system of government Bipartisan Model The referendum was held on 6th November 1999, voters were asked to vote yes or no on two proposals By large majorities Australians voted no to both proposals Although Australia is an independent country, its legal identity is that of a constitutional monarchy Topic 2: Constitutional Concepts Parliamentary Sovereignty Means the supremacy of the parliament to enact legislation to the exclusion of the other organs of government Dicey was the most vigorous advocate of parliamentary sovereignty was AV Dicey Dicey- views that it should be seen as more to be a constitutional supremacy Modern parliamentary models do not conform to his model His conception of Parliament was that British Constitution parliament had the right to make or unmake any laws Positive and negative Extraterritoriality A feature of a law that enables it to have an operation outside the territory of the enacting legislature S 51 (i) trade and commerce S 51 (xx) fisheries in Australian waters S 51 (xxix) on external affairs Historically linked with the statute of Westminster 1931- section 3 enacted the competence of the Commonwealth to make extraterritorial laws New South Wales v Commonwealth (Seas and Submerged Lands Case) Several issues relating to the rights of the Cth over the territorial sea and the continental shelf came before the HC Seas and Submerged Lands Act 1973 The majority found the Act valid therefore the Cth had sovereignty over the territorial sea from the low water mark to three nautical miles seawards and also had sovereign rights over the continental shelf Cannot act inconsistently to the Act such as directing, regulating conduct or activities in that area Separation of Powers Requires that governmental powers be distributed among the legislature, the executive and the judiciary The judicial power of the Cth is vested by and exercised under Chap III Lim – the parliament could not interfere with the judicial process by attempting to direct that judicial power A strict separation of judicial and non-judicial powers were upheld by the HHB in R v Kirby: Ex Parte Boilmakers Society of Australia (boilmakers case) The Cth Act authorised the commonwealth to exercise the powers to make industrial awards and enforce those awards. Found the vesting of judicial and non-judicial functions in the CCCA was impermissible under the Commonwealth. The majority of the HC decided that the CCCA could not validly excercise the judicial power of the Commonwealth Attempts to overcome the rigidity of the boilmakers case, has seen the laying down of exceptions to its application Wheat Case: The interstate Commission could not be invested with ‘judicial power’ Topic 3: The High Court and Judicial Review Judicial Review is a review or scrutiny of a governmental action in a judicial forum. The Australian constitutional system has recognised that the HC is vested with judicial review since the earliest days of federation Judicial review of legislation is the practice by which the court reviews the legality or constitutionality of a statute passed by the legislature HC undertakes examination of the validity Nowhere in the constitution does it specifically mention that the HC has the power to engage in judicial review (not specifically vested) It was argued that it was introduced by history and sustained in acquiescence It was the intent of the framers of the constitution-judicial review is a fundamental intention of the framers Judicial power is the power to adjudicate on controversies relating to the constitution and the law If inconsistent with constitution it will declare it (the Act) invalid S 75 and 76 of the constitution require the HC to give judgements only with respect to subject matters set out in these sections Interpretation and enforcement of Constitution HC justices are appointed by the GG and retirement age is 70 years A justice in the HC can only be dismissed by the GG Excused for misbehaviour or incapacity S 71: the number of justices prescribing the HC must be at least three, number of seven S 71 states that judicial
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