MLL323 – Constitutional Law Exam Notes and Cases Contents Page Topic 1 – Constitutional Concepts Page 6: History of Australian Constitution Page 7: Four Fetters Page 8: Federation Page 9: Post-Federation (1901-) Page 10: Parliamentary Sovereignty Page 11: Rule of Law Page 12: Individual Ministerial Responsibility Topic 2 – The Executive Page 15: Terminology Page 16: Important Conventions Page 17: Sources of Executive Powers Page 18: Prerogatives Page 19: Case: Tampa Case Page 20: Implied Nationhood Power Page 21: Test for Proportionality Page 22: State Executive Power Page 23: Whitlam Dismissal 1975 Page 25: Outcome of Whitlam Dismissal Topic 3 – The Legislative Page 27: Structure of Commonwealth Legislature Page 28: Case: First Territory Senators Case Page 29: Structure of Victorian Legislature Page 30: Duration of Parliaments Page 31: Case: Sykes v Cleary (1992) Page 32: Case: Sue v Hill (1999) Page 33: House of Representatives Page 34: Summary of Commonwealth Parliament Page 35: Summary of Victorian Parliament Topic 4 – Legislative Procedures Page 37: Passage of Bill through Parliament Page 38: Double Dissolution Page 39: PMA Case Page 40: Commonwealth Restrictive Legislative Procedures Page 41: Section 53 Page 42: Section 55 Page 43: State Restrictive Procedures Page 44: Marquet Case Page 45: Victoria Page 48: Senate’s Deferral of Supply Topic 5 – The Judiciary Page 50: Chapter III Constitution Page 51: Judciciary in Victoria Topic 6 – Characterisation Page 53: Doctrine of Implied Immunities Page 54: Engineers Case Page 55: Heads of Power Page 56: Incidental Range Page 57: Fairfax Case Page 58: Case: Thomas v Mowbray Topic 7 – Financial and Economic Powers Page 61: Commonwealth Taxation Powers Page 62: Limitations Page 63: State Tax Powers Page 64: First Uniform Tax Case Page 65: Second Uniform Tax Case Page 66: AAP Case Page 67: Pape Case Page 69: Work Choices Case Page 70: Incorporation Case Topic 8 – External Affairs and Extraterritoriality Page 72: External Affairs Power Page 73: Tasmanian Dams Case Page 74: Industrial Relations Case Page 75: International Concern Topic 9 – Inconsistency and Intergovernmental Immunities Page 76: Tests for Inconsistency Page 77: Covering the Field Page 78: Relevant Factors Page 79: Intergovernmental Immunities Page 80: Major Case Law Page 83: Crown Immunity and Statutory Construction Topic 10 – Constitutional Rights and Freedoms Page 85: General Principles Page 86: Newcrest Mining Case Page 87: Requirements Page 88: Express Rights Page 89: Religion as an Express Right Page 90: Relevant Case Law Page 91: Discrimination on State Residence Page 92: Implied Rights Page 93: Implied Right to Political Communication Page 94: Lange Case Page 96: Lange Test Page 97: McClay Case Page 98: Proportionality Test Topic 11 – Separation of Powers Page 101: Principle 1 Page 102: Principle 2 Page 103: Commonwealth Separation of Powers Page 104: Persona Designata Page 105: Preventative Detention Page 106: Lim Case Page 107: Al Kateb Case Page 108: Relationship between Legislative and Executive Power Page 109: City of Collingwood Case Page 110: Major Case Law Page 113: Summary of Kable Principle Topic 4 Legislative Procedures Standard Legislative Procedures Quorum Senate: 1/3 (Section 22) House of Representatives: 1/3 (Section 39) Legislative Council: 1/3 (Section 32, CA 1975 (Vic)) Legislative Assembly: 1/2 (i.e. 20) Passage of a Bill Through Parliament 1. Legislation must be passed by the House of Representatives. 2. Legislation must be passed by the Senate. 3. The legislation must gain Royal Assent. Stage 1: House of Representatives 1. Bill is initiated into the House of Representatives (powers to do this lie under s51 and s52) 2. Legislation must be passed with at least 1/3 of the number of members: s39 3. Procedure is based on a simply majority from members present. 4. The speak also has a casting vote: s 40. Stage 2: Senate 1. Senate has the power to review, approve and amend the legislation given to the Senate: s 53. 2. Majority of members must be present: s 23. Stage 3: Royal Assent - Crown’s role is very limited - The Constitution recognises no power in the Crown to amend Bills passed by the two houses. - The Governor-General may return Bills to one of the houses with a recommendation for amendment: s 58. - Even this power was intended to have limited operation Options available to the Governor-General: Section 58 1. Give royal assent; 2. Withhold royal assent; 3. Reserve the Bill ‘for the Queen’s pleasure’. Section 58: ‘Withholding’ - Intended to deal with inaccuracies which may have crept into legislation - Used 14 times Note: Cannot assent to part of legislation (because may radically alter the Bill) Alternative Procedures Commonwealth Alternative Legislative Procedures - Section 57 - PMA Case (1975) - Territory Senators No 1 (1975) Commonwealth Restrictive Procedures: Section 128 Commonwealth Special Procedures: Section 53, 54, 55 Section 57: Double Dissolution Process of Double Dissolution 1. The House of Representatives passes the bill. 2. The Senate reject, or fails to pass the bill, or passes the bill with amendments to which the House of Reps will not agree. 3. Three months has passed and the House of Representatives again passes the bill (i.e. 3 months since the Senate rejects and HoRs passes the bill). 4. The Senate rejects or fails to pass the legislation for the second time. 5. The Governor-General may dissolve the houses (the dissolution cannot occur within six months of the expiry of the House of Reps 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. There is a joint sitting 9. If the bill gains an absolute majority 10. The bill is prepared for royal assent and becomes law. Dominance of Lower House - House of Representative initiation - Numbers @ joint sitting (absolute majority & remember nexus) Joint Sitting ‘One off’ - Joint sitting can only consider those bills which have passed through steps 1 to 7 - Parliament reverts to bicameral legislature pre and post joint sitting - Only one joint sitting (6 & 7 August 1974) & absolute majority Case: Victoria v Commonwealth (PMA Case) 1975 Commonwealth Argued 1. Resolutions of Senate on 13/12/73 = failure to pass or rejection 2. Comments by senators both within and outside Senate relevant 3. Interval of three months from 1st passing by House of Representatives (Step 1) 4. Words of s 57 directory not mandatory 5. Non-justiciable - Resolution of Senate on 13/12/73≠ failure to pass because co equal chamber, not mere ‘house of review’ - Only look at actions of senate not actions of senators Three months does not run from Step 1: - Plain English - Role of Senate (contra Jacobs J) Justiciable and mandatory because: - Statutory powers and statute is fundamental law - High Court is ‘guardian of Constitution’ and has obligation to ensure law making prescribed by Constitution followed - Court has power ultimate to decide whether facts satisfied (cf G-G) Lawfulness of Double Dissolution Barwick CJ - Joint sitting ‘although not void, not lawful’ - Joint sitting had no power - No power to dissolve. Other justices - Section 12, 32 operate independently - Dissolution, election and summoning of new Parliament all valid Case: Western Australia v Commonwealth (First Territory Senators Case)e Passage of the Bill - 1st passed (Step 1) 30/5/73 - Rejected (Step 2) 7/6/73 - Passed 2nd time (Step 3) 27/8/73 - Rejected by Senate 2nd time (Step 4) 14/11/73 - Double dissolution 11th April 1974 (Step 5) Argued: Too great interval between steps 4 & 5 (“stockpiling”) Majority: No time limit (cf Barwick) Case: Cormack v Cope (1974) Held - Refusal to issue injunction to prevent joint sitting - Indicated proper remedy was to challenge subsequent legislation Barwick CJ: The discretion to intervene should not be exercised because an adequate remedy would be available once the legislative process was concluded. Commonwealth Restrictive Legislative Procedures Section 128: Referendum Features Include - Parliamentary initiation - Absolute majority - Passage by one House - Referendum & double majority - Role of Territories (1977 referendum) - State boundaries or representation Success rate: History 8/44 including 3 out of 4 in 1977. - Double majority - Apathy & negative argument & need for bipartisanship (e.g. 1999 republic referendum) Current issues: - Preamble (i.e. issues with aboriginal people) - Republic; - Local government; - Repeal of ‘race’ power Money bills include: - Tax bills (i.e. raising money) - Appropriation bills i.e. authorising expenditure of money Section 53: Initiation of Money Bills Qualifications: - Initiation of money bills (i.e. appropriation & tax bills) - Amendment of tax bills and appropriation bills for ‘ordinary annual services of government’ but subject to right of Senate to return bill (also deferral) (e.g. ‘blocking supply’ (1975)) - Senate may not amend any proposed law so as to increase any proposed charge or burden on the people Example: Clerk of Senate’s advice re PUP Senators amendment to Carbon Tax Repeal Bill on 10 July 2014. Note: No legal authority re appropriation bill for ‘ordinary annual services of government’ - Conventional view is that it involves government expenditure on matters of settled policy where no new development or capital expenditure involved Case: Air Caledonie v Commonwealth (1988) Facts - Migration Amendment ACt 1987 (Cth) (“the Amending Act”) s 7 inserts s 34A in Migration ACt 1958 (Cth) - Imposes an “arrival tax”; collected by airlines and airlines owe debt to Commonwealth Commonwealth Argued 1. Section 34A does not impose tax because fee for a service; 2. Amending Act only deals with the imposition of taxation → no problem of tacking → s 55 not violated. Outcome - Section 34A does impose tax at least re Australian citizens - Re Amending Act deals only with imposition of taxation - 1st paragraph of s 55 has two limbs 1st Limb: Reference to ‘laws’ in s 55 refers to laws as exist on statute book.