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AUSTRALIAN HISTORICAL CONTEXT

Australia settled by Aboriginal people 40,000 years ago.

1770 Captain James Cook mapped much of eastern Australia, named it

New South Wales and claimed it for King George.

1788 The First Fleet arrives and establishes NSW as a penal colony.

Military dictatorship under Governor.

Although Capt. Arthur Phillip instructed to take possession of the land

‘with the consent of the natives’ he seems to have made no effort to do

this.

The basis for colonization was the concept of ‘terra nullius’: land of no

one. Under International law this allowed two things: British Crown

acquired sovereignty over the land and the laws of Britain, as far as

applicable, were applied.

Free settlers arrive, prisoners complete their sentences or pardoned,

Australian children born. People of the colonies begin asking for

responsible and representative government.

1824 Van Diemen’s Land becomes a separate colony.

1828 English law formally ‘received’ in NSW via the Australian Courts Act

(Imp). All common law and statute received and subsequent British

legislation would apply if expressly provided for.

1829 WA established, granted responsible government in 1890.

1836 SA settled as a free colony.

1851 Victoria (Port Phillip District of NSW) separated as a new colony.

1850’s NSW, VIC and SA granted ‘responsible government’ by London.

1856 Tasmania renamed and granted responsible government.

1859 QLD separates from NSW

1837 British Treaty of Waitangi with Maori people of NZ. A resource for

claims of Maori rights, no equivalent Australian document.

Britain created a confederation of Canadian provinces (1867) via British

North America Act and keen to see Australian colonies federate but

colonies in no hurry.

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VIC made rich from gold. When this ran out they established

manufacturing industries that they were keen to protect. NSW a believer

in free trade. Many years of tension between free traders v protectionists

over custom tariffs at colony borders.

1890’s economic crisis begins attempts to federate. Primary reasons for

federation were issues of commerce and defence.

1890 & 1891 conventions on federation were inconclusive but a draft

Constitution written.

WA did not initially agree to federate but changed their mind in time to be

an original state.

1897 & 1898 Discussions were renewed and a draft referenda accepted in

all Australian colonies. Taken to London for approval and enactment as a

British Act of Parliament. Some changes were made: Privy Council

(British wanted it kept to maintain ties and protect British property

interests). Bill passed in 1900. Came into effect as:

Commonwealth of Australia Constitution Act 1900 (Imp) on 1 January

1901

SA gives NT to Commonwealth at Federation.

In the early years the States and Commonwealth were quite distinct

entities, and very independent.

Nature of the Commonwealth confusing. Still part of the Empire and

designated a ‘dominion’. When war declared by Britain in 1914 Australia

regarded itself as at war.

Commonwealth had power over defence and this gave it extensive

mobilisation power. Although under British command Australian forces

had their own generals. At Versailles Peace Conference Australia had it’s

own seat. Australia had come closer to nationhood through war.

1920 Engineers’ Case: (decided by judges not party to the drafting of the

Constitution) a new era in constitutional interpretation. Previous judges

had interpreted it as though it implies guarantees of State immunity from

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Commonwealth law. This was swept away by the argument that the

Constitution should be read as a simple statute.

Engineers’ started an expansive interpretation of Commonwealth powers,

which has tilted the balance of federation in favour of the Commonwealth.

1931 Statute of Westminster (UK) Britain would only legislate for the

dominions at their request. Australia did not immediately adopt it.

Great Depression

Sir Isaac Isaacs (constitutional founding father, High Court judge and

Australian) put forward as Governor-General. Britain hesitates but agrees.

1939 Britain declares war on Germany and Japan. Australia therefore

automatically at war, head off to Middle East. Fall of Singapore

Australians return home and look to Britain for support, not forthcoming.

Australia adopts Statute of Westminster after the war (retrospective to

1939) and turns to US for defence.

Commonwealth seized control of the State’s income tax collection power

and has never given it back.

WWII end: Australia enacts a Citizenship Act (1948). Signs ANZUS defence

treaty (with NZ and USA).

Labor government tries to nationalize the banks but High Court and Privy

Council say no, contrary to s.92. State Banking Case 1947: Could the

Commonwealth nationalize the banks? Was essentially taking over all

banking within the state and forcing the state authorities to bank with the

Commonwealth. The act was not valid. The Constitution provided for the

continued co-existence of the State executive, as separate from the

Commonwealth. The federal system itself imposed a restraint on the

power to control the states.

Labor out, Menzies in for 17 years. Fear of communism spreading,

Menzies passes an act banning the Communist Party. Communist Party

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Case: Act unconstitutional as it breached the separation of powers.

Menzies arranges a referendum but defeated.

1954 Boilermakers’ case: emphasizes the separation of powers holding

that only a Chapter 3 court can exercise judicial power and that a court

can only exercise judicial power. Hybrid Arbitration Court was

unconstitutional.

1967 Referendum giving the Commonwealth power to legislate for

Indigenous people (before this under State control exc. NT)

1972 Whitlam in. 1974 referendum to give Commonwealth power over

prices/income was defeated. Double dissolution under s.57, Labor

returns with a reduced majority. Joint sitting passes several bills.

1975 Territorial Senators’ Case holds that the legislation allowing the

territories Senators was valid. Was the act allowing 2 senators each from NT and

Act invalidated by s 7 or authorized by s 122? 4:3 held it was valid. s. 122 spoke

to the possibility of allowing representation; s 7 did not speak for all time. Was

really about weighing up the values of democracy/representation (s122) or

states rights (s7). Second Territory Senators’ Case 1977: Composition of the

High Court has changed, QLD tries their luck again. 5:2 upheld.

s 7 was read down as providing only for the initial composition of the Senate,

rather than its composition for all time. s 122 allowed the creation of territorial

senators to the extent and on the terms which it thinks fit.

Should there be Senators from the territories in the Senate? [Discuss with reference to the First Territorial Senators Case]

Western Australia v Commonwealth (First Territory Senators Case) (1975)

High Court of Australia

Whitlam Government tried to pass the Senate (representation of Territories) Act

1973, which was designed to install two Senators from each Territory. After

legislation was blocked Whitlam endeavored to use section 57 to pass the bill. The

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legislation was blocked by the Senate so the government used the special procedure in

s.57 of the constitution to pass it.

Commonwealth argued that it could use

S.122 Government of territories: The Parliament may make laws…to allow the representation

of such territory in either House of Parliament to the extent and on the terms which it thinks fit. However, the WA and NSW governments argued that the constitution must be read as

one coherent document, meaning that s.122 is subject to Section 7 which is exhaustive

and implies that the Senate can only ever provide representation for the States:

S.7 The Senate: The Senate shall be composed of senators for each State,

directly chosen by the people of the State, voting, until the Parliament otherwise provides, as

one electorate.

(Majority) Mason, McTiernan, Murphy and Jacobs JJ] held that the Act was valid

and that Section 122 should be read separately from Section 7. Therefore Senators

from the territories were given the same rights as those from states. The majority

outlined three reasons for their decision:

1. Contrast between S.121 and S.122 S121 allows the Parliament to establish states and the extent of their representation in parliament, whereas S.122 allows the Parliament to make laws for any territory and allow “representation of such territory in either House of Parliament”. 2. Voteless Territory Senators would deprive Section 122 of any

significant meaning Despite S.7 implying that any Senators from territories would not be allowed to vote, this would deprive S.122 of any significant content. Rather, S.7 should define the initial nature of the Senate. 3. No concern of Territory Senator’s swamping the Senate This is would require consent from the Senate itself, which is unlikely to be obtained. Mason J held that “the Senate and House of Representatives importance to the people of the Territories is no less than their importance to the people of the States. It is contrary to the democratic theme of the Constitution that Parliament not be able to allow representation in either house.” (Minority) Barwick CJ, Gibbs J and Stephen J held that Section 122 should be

read in light of Section 7 and Senator’s from the Territories would have fewer rights

than those from the states. The reasons given are:

1. Representation should be read in context of entire Constitution

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Section 7 implies that the Senate is the ‘states’ house and hence, only representation

and therefore Section 122 must be given a meaning in accordance with that structure.

2. “Representation” per Section 122 does not necessarily imply voting

power However, after the First Territory Senators case was decided, the composition of the High Court changed, with Aickin J being appointed on the retirement of McTiernan J who voted in the majority. Queensland v Commonwealth (Second Territory Senators case) (1977)

High Court of Australia

Only two years after the First Senators case was decided the Queensland government brought an action attempting overturn the ruling. The catalyst for the action was the appointment of Aickin J who was thought to hold that Senate (Representatives of Territories) Act 1973 would be invalid. [Majority] Mason, Murphy, Jacobs, Gibbs and Stephen JJ [5-2] held that the

principle from the 1st Territory Senators tax case is still valid. Gibbs and Stephen JJ

moved from the minority in the earlier case to the majority here. They reasoning was

that:

“Whilst the High Court can overrule its own decisions, it must do so only after careful consideration and the retirement of a Justice should not be grounds to review and earlier decision as that would be to defeat the expectations of the people of the territories.” Per Gibbs and Stephen JJ Exam Conclusion

It is argued that Constitution interpretation must take into account the context of the Constitution framework and the principles that it enshrines. The Commonwealth Constitution establishes a representative democracy, and individuals, whether they be from States or Territories, must be represented in both houses of Parliament. Therefore, section 122 can be read literally to imply Territories can be represented in the Senate. Hence, even though Section 7 makes no mention of Territories, Mason J in the First Territory Senator’s Case held that the Constitution was frames with the notion of “prospective possibility of territory representation.” However, it should also be noted, that in the Second Territory Senators Case, Gibbs and Stephen JJ held that the Territories would be represented simply because they were unwilling to reverse a recent decision.

1975 Constitutional Crisis:

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o Whitlam gets into government (1972) after 23 years of

Liberal/National coalition.

o Australia had missed the 1960’s social change. The Labor party

had many reforms they wanted to institute. In 1973 oil price

doubles overnight and there is massive unemployment/inflation.

Whitlam not equipped to deal, had a high spending agenda that

could not be delivered and was not in control of the Senate.

o 1974 Double dissolution. Whitlam remained in power with a

reduce majority and still no control of the Senate. Media against

him.

o Scandals: Jim Cairns, sex scandal and government borrowing by

unusual means, Whitlam orders minister to stop, he doesn’t.

o Whitlam unpopular and opposition (Fraser) tried to force an

election. Had numbers in the Senate and decided to block supply

bills, which provided the money for the government to function.

Under s 53 the Senate can’t vary/amend supply bills. Convention

has always been that the Senate does not block supply bills.

o Fraser keeps deferring the supply bills but not rejecting them.

They are not returned to the House of Reps but continue to sit with

the Senate. Fraser keeps calling for an election. Deferring bills

made easier by two Labor vacancies, which were replaced by non-

sympathetic fill ins (subsequently changed in constitution).

o Government refuses to resign.

o Governor-General Kerr: old Labor man and former Supreme Court

judge. Seeks advice from Chief Justice Barwick, (Attorney-General

under Menzies), as well as the current attorney-general. Barwick

said he had the right under the constitution to dismiss the PM and

call an election. High Court judges do not usually give advisory

opinions but the constitution is silent on advice to G-G. Kerr saw

Barwick but not in his official capacity as a High Court judge.

o Kerr worried that Whitlam would run out of money and rely on

IOU’s as Lang did in NSW. Kerr believed it was in his hands to solve

the crisis.

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o Kerr fearful that if he spoke to Whitlam he would be dismissed.

The G-G is appointed by the Queen on the advice of the executive,

and would be dismissed on their advice.

o 11 November 1975: Last day to dissolve parliament and have an

election before Xmas. Whitlam had intended on calling a half-

senate election, was to propose that to Kerr. Was to see Kerr at

12noon, arrived 15 mins late.

o Fraser to see Kerr at 12.10, arrives early.

o Kerr sees Whitlam first and invoked his power under the

Constitution (s 64) and dismissed the PM. Kerr’s argument: a

government that cannot secure supply must resign/dismissed.

True for House of Reps but not for the Senate. Whitlam always had

the confidence of the House of Reps.

o Kerr appointed Fraser as PM on the condition that he passed the

supply bills, then called an election.

o House of Reps pass a bill of no confidence in Fraser.

o Senate passed the supply bills and the parliament dissolved. Fraser

won the election. Once supply bills were passed the crisis was over

and Whitlam could have been reinstated.

o Speaker of the House of Reps makes appointment to see Kerr at

4pm, too late. Calls the Palace, the palace say that the Queen will

not interfere, for Australians to resolve. Queen’s rep does

something that the Queen herself refuses to do!

o Kerr’s official trigger was s 57 that bills had been rejected twice,

not the supply bills but other bills, and s 5 G-G can dissolve House

of Reps at any time. S 64 G-G can appoint who he chooses and s 67

a reserve power to refuse a double dissolution. By the letter of the

constitution he acted legally. BUT convention was otherwise.

o Whitlam lost the election. Fraser wins with an increased majority

o Is it proper to dismiss a PM who has the confidence of the House of

Reps?

o Is it proper for the Senate to refuse to pass supply bills?

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o Challenges our notion of responsible government. A no confidence

motion but Fraser stays in. Judicial advice to Kerr is inappropriate,

must have independent legal advice. Were Kerr’s actions

justicible? Could Whitlam have got an injunction? Or is it good we

don’t have judicial review, better to leave it to the political process.

Senate was wrong not to pass supply bills.

o Why do we still have a constitution that says ‘at the G-G’s

pleasure’?

1977 Constitutional amendments passed. Judges to retire at 70 (no life

tenure) and codification of the convention that Senate vacancies are filled

by a member of the same party.

1974 Racial Discrimination Act passed (based on signing the Convention

on the Elimination of Racial Discrimination).

1980’s QLD refuses to sell land to Aboriginal group. Group sues QLD

premier under the RDA and the High Court held Koowarta v Bjelke-

Petersen that RDA a valid law and QLD in breach. The race power

(s.51xxvi) not sufficient head of power but s.51(xxix) external affairs is.

1983 Hawke Labor government pledges to stop hydroelectric dam in

Tasmania. Used UN Convention on World Heritage to legislate to protect

it. High Court held (4:3) that this was a valid exercise of the ‘external

affairs’ power (s.51xxix). Could also have used the Corporations power

(s51xx).

1986 Australia Acts passed by Commonwealth, Britain and the States

making clear that Australia was now a fully independent country.

Terminated British parliament’s power over the Commonwealth, States

and Territories, removed extraterritorial limitations on States, abolished

appeals to the Privy Council, removed British parliamentary approval for

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certain State legislation and reinforced that the Queen and her rep act on

the advice of the local government not the British.

1990 High Court holds that that Commonwealth cannot enact a

comprehensive Corporation Act as the ‘corporations power’ does not

include the power to incorporate companies.

1992 ACTV case held that the Constitution has an implied freedom of

political communication.

1992 Mabo v Queensland held that terra nullius was not good law and

that indigenous people enjoyed a form of ‘native title’ if it could be proved

and had not been extinguished. Requires continuous

occupation/ownership, very difficult to prove. Was not a mainland case.

Mabo decision did not question the validity of the reception of English law

into Australia, was totally legal in international law at the time. Native

Title Act 1993 provided recognition and procedure to claim. Wik Case

1996 decided that pastoral leases did not extinguish native title but

prevailed over it until completed.

1999 Referendum on the republic and new preamble. Both defeated.

1999 GST introduced. Money collected by the Commonwealth and

returned to the States.

Howard Government intensifies the Labor policy of mandatory detention.

High Court in Al-Khateb v Godwin held that the indefinite detention of an

alien is lawful.

2005 Work Choices upheld by the High Court in 2006 under the

corporations power, stretching it very wide.

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Constitution meant to be a minimal commonwealth enabling the States to

function very much as before but it has developed very much in a

different direction. High Court interpretation has done what amendments

could not. Successful annexation of most sources of revenue together with

s.96 (Commonwealth can impose any condition on financial grants) have

tilted in favour of the Commonwealth.

THE CONSTITUTION

An Act to constitute the Commonwealth of Australia

Preamble: ‘rely on the blessing of Almighty God’

‘agreed to unite in one indissoluble Federal Commonwealth’

‘provide for the admission’

‘enacted by the Queen’

Note: Preamble does not form part of the Constitution’s text, it explains why the

act is being made. Meaningless, any amendment to the preamble has no legal

repercussions. Any acknowledgment of indigenous people is symbolic only.

1. Cited as Commonwealth of Australia Constitution Act.

Meaning that our Constitution is actually the statute of a foreign power.

3. The Queen shall appoint a Governor General.

9. Constitution is contained within this section of the Act.

CHAPTER I: THE PARLIAMENT

The Constitution is mainly about creating a new level of government for

Australia with restrictive powers.

PART I: GENERAL (GOVERNOR- GENERAL & THE QUEEN)

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1. …legislative power of the commonwealth shall be vested in a Federal

parliament which shall consist of the Queen, a Senate and a House of

Representatives…

Note: the Queen is part of the parliament but is represented by the G-G

2. …a G-G appointed by Queen shall be her majesty’s representative

and shall and may exercise…subject to the Constitution, such powers

and functions of the Queen as Her Majesty may be pleased to assign…

Note: G-G is the Queen’s rep, not head of State in own right. G-G is appointed

by letters patent and holds office at the Queen’s pleasure, but is also subject

to the Constitution.

In reality the G-G holds office at the PM’s pleasure and by convention acts

only on ministerial advice, except for ‘reserve powers’

G-G is part of parliament but also exercises executive power (all acts

require royal assent).

5. …G-G may appoint such times for holding the sessions of the

parliament…may prorogue the parliament…may dissolve the House of

Representatives.

Note: G-G fixes sessions of parliament at the PM’s suggestion.

Under s 5 the G-G determines the parliamentary sessions, and may

prorogue (end a session)

The G-G may dissolve the House of Reps at any time but may only dissolve

the Senate as part of a ‘Double Dissolution’. (s 57). Both houses may be

dissolved (double dissolution) under s 57 if conditions exist.

Are these powers of the G-G exercised on ministerial advice? Convention

says yes but the Constitution does not!

Some scholars believe that the power to dissolve/ refuse to dissolve and

the power to appoint/dismiss a PM are ‘reserve’ powers that do not need

to be exercised on ministerial advice BUT these powers, in a democracy,

should not be in the hands of an unelected official.

THE LEGISLATURE/PARLIAMENT: ENACTS LAWS