Keith Mack
Australian constitutional law is the area of law relating to the interpretation and application of the Constitution of Australia. The Constitution is the supreme law of Australia and is superior to legislation passed by the Commonwealth or State Parliaments. It establishes a federal system of government, distributing powers between the central government (the Commonwealth) and regional governments (the six former colonies which became autonomous states). The Constitution does not include a bill of rights, and instead, rights are protected by common law and statute law. The Constitution can only be changed with the approval of the Australian people through a referendum.
| Characteristics | Values |
|---|---|
| Interpretation and application of the Constitution of Australia | N/A |
| Legal cases handled by the High Court of Australia | N/A |
| Developed from doctrines interpreting the Commonwealth Constitution | N/A |
| Passed by the British Parliament in 1900 | N/A |
| Approved by voters in referendums in 1898, 1899, and 1900 | N/A |
| Given formal legal status by the Commonwealth of Australia Constitution Act 1900 | N/A |
| Commonwealth's law-making power is subject to limitations and guarantees in the Constitution | Express and implied |
| Federal system of government | Distributed powers between central government and regional governments |
| Expressly enumerates the legislative powers of the Commonwealth Government | Sections 51 and 52 |
| States retain the power to legislate on all other matters | N/A |
| Separate chapters on Legislature, Executive, and Judiciary | Preserves the doctrine of separation of powers |
| May be altered by law passed by Commonwealth Parliament following a referendum | Section 128 |
| Does not include a Bill of Rights | N/A |
| Rights protected by common law and statute law | N/A |
| Power to provide social services | Unemployment benefits, sickness benefits, maternity allowances, child endowment, and medical and dental services |
| Power over "external affairs" | Australia's foreign relations |
| WorkChoices legislation | Applies to employees of constitutional corporations |
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What You'll Learn
The Constitution's absence of a Bill of Rights
Australia is the only democratic country in the world without a national bill or charter of rights. A Bill of Rights is a list of the most important rights belonging to a country's citizens, usually passed as a law through parliament. While Australia does not have a national bill, the Australian Capital Territory, Queensland, and Victoria have their own human rights laws.
The Australian Constitution is the source of some civil and political rights. For example, the right to a trial by jury for federal offences and the right to practice a religion without interference from the Australian Government are two civil and political rights mentioned in the Constitution. The High Court of Australia interprets the Constitution and has found implied rights in the document. For instance, the High Court has found that, because the Constitution establishes a representative democracy in Australia, individual citizens must have an implied right to freedom of political communication.
When the Australian Government commits to an international human rights treaty, it must incorporate the treaty into Australian law. However, this does not happen automatically. A bill that puts the international agreement into action needs to be passed by the Australian Parliament, or state or territory parliaments. If agreed to, the bill becomes Australian statute law. The Human Rights (Parliamentary Scrutiny) Act 2011 established the Parliamentary Joint Committee on Human Rights, which is responsible for scrutinising all bills introduced to the Australian Parliament to ensure they are compatible with the seven core human rights treaties Australia has agreed to.
The absence of a Bill of Rights in Australia's Constitution has been noted by leading Australian lawyers when discussing the document with domestic and international audiences. In 2007, Geoffrey Robertson QC observed that Australia's "judges and lawyers are still of the highest calibre". Despite the absence of a Bill of Rights, Australia's Commonwealth Constitution, which was passed by the British Parliament in 1900, includes a list of powers assigned to the Federal Parliament, similar to that assigned by the United States Constitution to the US Congress.
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The role of the High Court of Australia
The High Court of Australia is the highest court in the country's judicial system. It was established in 1901 by Section 71 of the Constitution, and its authority is derived from Chapter III of the Australian Constitution, which grants it (and other courts created by Parliament) judicial power over the Commonwealth. The court consists of seven justices, including a chief justice, who are appointed by the governor-general on the advice of the attorney-general and with the approval of the prime minister and Cabinet. Justices hold their positions permanently until their mandatory retirement at age 70, unless they choose to retire earlier. The only constitutional requirement for appointment is that the appointee be under the age of 70. Further qualifications were introduced by statute in 1979, including that an appointee be a judge of a federal, state, or territory court or have been an Australian legal practitioner for at least five years.
The High Court exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. It interprets and applies the law of Australia, deciding cases of special federal significance, including challenges to the constitutional validity of laws. The court also hears appeals, by special leave, from federal, state, and territory courts. The special leave process does not apply when the court elects to exercise its original jurisdiction, though it typically delegates its original jurisdiction to Australia's inferior courts.
The High Court plays a crucial role in interpreting the Australian Constitution, particularly when there is uncertainty or ambiguity about its meaning. This includes interpreting the Commonwealth Constitution, which consists of a body of doctrine that interprets the Constitution. The court's decisions can have a significant impact on the power dynamics between the federal government and the states, with doctrines of constitutional interpretation favouring a broad reading of Commonwealth powers.
The High Court's workload has grown significantly over time, particularly from the 1960s onwards, leading to proposals for the establishment of more federal courts as permitted under the Constitution. The court has also experienced periods of anomaly, such as during World War II when the Chief Justice, Sir John Latham, served as Australia's first ambassador to Japan, and Owen Dixon served as Australia's minister to the United States in Washington. Despite these anomalies, the High Court of Australia remains a pivotal institution in the country's legal system, ensuring the interpretation and enforcement of the nation's constitutional law.
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The law-making powers of the Commonwealth
Constitutional law in the Commonwealth of Australia interprets the Commonwealth Constitution, embodied in clause 9 of the Commonwealth of Australia Constitution Act. This Act was passed by the British Parliament in 1900, following negotiations in Australian Constitutional Conventions in the 1890s and approval by voters in each Australian colony.
- Trade and commerce with other countries and among the States, with specific provisions for interstate industrial relations
- Taxation, without discrimination between States or parts of States
- Borrowing money on the public credit of the Commonwealth
- Postal, telegraphic, telephonic, and other similar services
- The naval and military defence of the Commonwealth and control of the forces to execute and maintain Commonwealth laws
- Lighthouses, lightships, beacons, and buoys
- Astronomical and meteorological observations
- Banking, including State banking extending beyond state limits, the incorporation of banks, and the issue of currency
- Recognition throughout the Commonwealth of state laws, public acts, records, and judicial proceedings
- Acquisition of property on just terms for any purpose for which the Parliament has power to make laws
- Control and acquisition of railways for naval and military purposes, with the consent of the respective State
- Railway construction and extension with the consent of the respective State
- Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond individual states
The Commonwealth's law-making powers are subject to limitations and guarantees outlined in the Constitution, such as Section 99, which forbids the Commonwealth from giving preference to any State or part thereof in matters of trade, commerce, or revenue. Additionally, an implied guarantee of freedom of political communication limits the Commonwealth's power to regulate political discourse.
Over time, the power of the federal government relative to the states has grown. This shift can be attributed to various factors, including doctrines of constitutional interpretation that favour a broad reading of Commonwealth powers. For example, an amendment passed in 1946 expanded the Commonwealth's powers to encompass a wide range of social services, including unemployment and sickness benefits, maternity allowances, and health services, forming the basis for the Medicare scheme.
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The federal system of government
Australia's constitutional law is based on a federal model, with a national government and six states forming a federation. This system was established by the
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The legislative powers of the Commonwealth Government
The Constitution expressly outlines the legislative powers of the Commonwealth Government, primarily in sections 51 and 52. These powers include "astronomical and meteorological observations", marriage and divorce, and interstate industrial relations. The Commonwealth Parliament also has power over "external affairs", although this initially had little substance as Australia's foreign relations were managed by the United Kingdom. An amendment passed in 1946 further expanded the Commonwealth's powers, allowing it to provide a wide range of social services, including unemployment benefits, sickness benefits, and universal health insurance.
The Constitution also includes limitations on the Commonwealth's law-making powers. For example, Section 99 forbids the Commonwealth from giving preference to any state or part of a state "by any law or regulation of trade, commerce, or revenue". Additionally, an implied guarantee of freedom of political communication limits the Commonwealth's ability to regulate political discourse.
The legislative powers of the Commonwealth take precedence over those of the states. Section 109 of the Constitution states that if the Commonwealth and a State Parliament pass laws on the same subject, the Commonwealth law prevails in the event of any inconsistency. This has contributed to the steady growth in the power of the federal government relative to the states.
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Frequently asked questions
Constitutional law in Australia is the area of law relating to the interpretation and application of the Constitution of Australia.
The Constitution of Australia is the supreme law of the country, superior to legislation passed by the Commonwealth or State Parliaments. It is divided into 8 chapters and 128 sections and came into being in 1901 with the federation of the former colonies into the Commonwealth of Australia.
The primary source of Australian constitutional law is the Constitution itself, which is mostly interpreted by the Commonwealth Constitution.
The High Court of Australia is the highest court in the Australian judicial system and is responsible for interpreting the Constitution, deciding its meaning, and settling disputes between the Australian and state governments.
The Constitution can only be amended with the approval of the Australian people. A proposed change must be approved by Parliament and then voted on by Australians in a referendum, requiring a majority of voters in a majority of states and across the nation.
