Comparative Constitutional Law

Class 11September 27, 2006

Australian Constitutional Interpretation I

WRAP-UP

• Federal constitution

• Modern democracy/constitutional monarchy

SEPARATION OF POWERS

• Advisory opinions permitted? (Contrast to U.S. and Canada)NO

• Executive-legislative separation?• Judicial independence? See s. 72

(appointed until age 70 (amended from life in 1977), can’t be removed except by both Houses of Parliament on ground of proved misbehavior or incapacity, salaries can’t be reduced while in office)

AMENDMENT

• Contrast amendment procedures with U.S. and Canada

AMENDMENT

• Contrast amendment procedures with U.S. and Canada AUSTRALIA: Requires federal legislation and approval by majority of voters nation-wide and in a majority of states

U.S. Amendment Article V

• The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate

Canada Part V 1982 Constitution Act

• Most amendments subject to 7-50 formula (resolutions of the Senate and House of Commons; and resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces).

• Some require unanimous consent, others consent of only one province

AMENDMENT

• How many times has the Australian Constitution been amended (compare with U.S. and Canada)

RIGHTS

• Compare rights provisions in Australian and Canadian and U.S. Constitutions

RIGHTS

• Compare rights provisions in Australian and Canadian and U.S. Constitutions Why are rights so limited? Doctrine of parliamentary sovereignty: parliament as best doctrines of liberty. Natural rights, not utilitarian view. Desire for strong government

AMENDMENT

• How many times has constitution been amended (compare with U.S. and Canada) 8 of 44 proposals (U.S. 27 Amendments, Canada 10 amendments)

JUDICIAL REVIEW

• Contrast with U.S. and Canada

COMPARE AND CONTRAST

• Australian High Court, U.S. Supreme Court and Supreme Court of Canada

• Jurisdiction, judiciary, leave to appeal, number of cases heard, number of judges, how they are appointed, background, # women and minority justices?

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

• All Commonwealth realms had right of appeal to Privy Council in England. Some retained this after independence but many began to find it out of tune with their values

IMPACT OF PRIVY COUNCIL IN AUSTRALIA

• Compare with that of Canada

• See section 74 (inter se), 76

AUSTRALIAN CONSTITUTIONAL INTERPRETATION

• What problems exist for interpreters of the Australian constitution?

• Positivist or normativist?

• Originalist or “living tree”?

• Compare to U.S. and Canada

AUSTRALIAN CONSTITUTIONAL INTERPRETATION

• Formalism

• Literalism

• Engineers

Sir Samuel Walker Griffith

• First Chief Justice of the High Court (1903-1919)

High Court: First Sitting (1903)

Justice O’Connor

• Served on High Court 1903-1912

• Former Senator• Favored Federation• Involved in

Constitutional convention

Sir Edmund Barton

• First Prime Minister of Australia (1901-1903)

• Protectionist• Work defusing first

international cricket riot in 1879 (he was umpiring) led to start of his political career

• Leading federalist in NSW at time of constitutional conventions

Justice Higgins

• Served as justice on the High Court 1906-1929

Justice Isaac Isaacs

• Served on the High Court 1906-1930

• Difficult, uncollegial• Radical• Later appointed

Governor-General• Opposed to Zionism