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Edited By: Cheryl Saunders, Adrienne Stone

From: The Oxford Handbook of the Australian Constitution

Edited By: Cheryl Saunders, Adrienne Stone

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From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 09 August 2020

(p. 1095) Index

A
Aboriginal peoples see First peoples
adjudication techniques, 535–6
administrative law see judicial review
constitutional writs 705
developments in migration law 703–4
future developments 721–3
impact of reforms in 1970s and 1980s 701–3
irrationality and unreasonableness 719–21
jurisdictional error 704–5, 717
Kable and Kirk 718–19
law/ merits distinction 707–8
legality principle and rule of law 706–7
legislative curtailment of judicial review 709–16
procedural fairness 668–9
rejection of deference 708–9
Section 75(v) 697–701
admiralty and maritime law
US model 880
agencies 602–5
amicus curiae 455, 553–4
appellate jurisdiction
High Court of Australia 456, 554–6, 741–2, 881–2
Privy Council 13, 63, 94–5, 98, 105, 134, 417, 898
State Courts of Appeal 453, 659
appropriation 609–12, 625–8, 801
‘Assimilation’ policies 30
Australian Capital Territory
ACT Self-Government Act 1988 310
co-operative schemes 827–8
horizontal fiscal equalization 800
Marriage Equality Act Case 9, 207, 490
representation in Senate 538
seat of national government 411
Supreme Court 660
B
bicameralism
‘Braddon clause’ 792–3
C
campaign finance 1009–10
caretaker conventions 225–6
chameleon doctrine 681
citizenship
adoption of separate Australian citizenship 108, 116, 207, 346, 419
‘constitutional citizenship’ 350–1
constitutional interpretation 349–51
constitutional reform 355–6
Convention debates 340–1, 1057
dual citizenship 20
First peoples
access to entitlements of citizenship 30, 38–9, 42
views at time of federation 87
jus sanguinis principle 207
jus soli principle 207
naturalization and aliens power 343–9, 418–9
non-citizens 253, 256–7, 344, 703, 924, 947
non-discrimination 1057–61
pre-1948 position 12, 108, 207, 342
relationship with federalism 406
‘subjects of the Queen’ 340–1
‘the people of the Commonwealth’ 351–4
civil and political rights 913–14
(p. 1096) co-operative federalism
definition 808
determining validity of co-operative arrangements 822–5
convention debates 87–8
historical context 857
interpretation by High Court 874–7
models 857–8
philosophical underpinnings 743–4, 812, 857
‘political slogan’ 807
provisions 865–6
scope for action under Australian Constitution 815–21
techniques
grants 849
reference power 847
mirror legislation 848–9
colonialization see settlement
comity between Australian courts 781–2
common law
‘common law constitutionalism’ 191–2, 376–7
constitutional interpretation 960–1
declaratory theory 178
evolution of common law 177–8, 198–200
federal jurisdiction 895–6
High Court development of Australian common law 453
legality principle 706, 1071–75
legislative adoption 200–1
meanings 190–1
methodology 117–8, 267–8
prerogative powers and rights 201–2
principles of interpretation 203–4
reception by Australian legal system 194–7, 761–2
rule of law 170
single common law of Australia 197–8, 658, 781, 880–1
sovereignty 192–4
terms in text of Constitution 204–8
unwritten constitutional rules 231–3
Commonwealth Constitution
Inclusion of Chapter III 363–4
legal constraints on government 367
new national polity 364–6
protection of rights 367–70
significance 362
comparative constitutional law
apex courts 450–1
constitutionalism
American model 359–60
British model 358–9
Legal constitutionalism 358
Political constitutionalism 358, 361
Rule of law 170
Common law constitutionalism 191–2
controversy 262, 479
development of Australian constitutional law 272–3,
economic union 831–3
exposition of Constitution 268–72
increasing role 22
‘political questions’ 515–9,
separation of judicial power 677–8, 880–4
significance to constitutional design 262–8
use in constitutional reasoning 479
constitutional evolution
brevity of original text 123–7
‘extreme originalism’ 120
impact of constitutional actors
beginning of an indigenous constitutional culture 133–6
money 136
impact of Australian court system and High Court’s rulings 139–42
meaning and scope 121–2
‘moderate originalism’ 120–1
procedures
Constitutional Conventions 130–1
‘co-operative constitutional evolution’ 128
direct popular participation 131–3
formal amendment procedure 129
Section 51(xxxvii) 128
Section 51(xxxviii) 128–9
constitutional implications
(p. 1097) as unwritten constitutional rules 210, 214, 233–4
controversy 482–4
judicial reasoning 479–80, 525, 957
political communication 956–8
religious freedom 1039
representative government 994
rights protection 914–15
state legislative power subject to constitutional implications 110
Constitutions of separate colonies 81
executive government 587–8
High Court approach to interpretation
expansion of Chapter III 372–6
legality principle 376–7
protection of political rights 370–2
impact on first peoples
Referendum in 1967 48–51
contemporary debate 51–3
legality principle 1084–93
overview 357–8
political constitutionalism 358, 361
relationship with common law 191–2
construction and interpretation
applicable rule of law 175–6
constitutional implications
as unwritten constitutional rules 210, 214, 233–4
controversy 482–4
judicial reasoning 479–80, 525, 957
political communication 956–8
religious freedom 1039
representative government 994
rights protection 914–15
state legislative power subject to constitutional implications 110
Engineers’ Case 138, 867
international law
controversy 250–3
effect of treaties 254–9
interpretation of money provisions
appropriation 791
financial assistance 791–2
modern relevance 805–6
‘surplus revenue’ 790–2
judicial power 372–6
judicial review 489–90
legality principle
as unwritten constitutional rule 231–2
‘common law constitutionalism’ 376–7
content 1071–75
controversy 1079–84
development of principle 1076–9, 1084–93
overview 1069–71
relationship with legitimacy 323–37
protection of political rights 370–2
property rights
‘acquisition of property’ 1018–19
‘on just terms’ 1017
question of legitimate purposes 1014–16
scope of constitutional protection 1014–15
reflection of ‘legal spirit’ 188–9
religion
coherent approach to interpretation 1051–52
definitional difficulties 1036–39
free exercise 1045–50
non-establishment 1041–43
‘reserved powers’ doctrine 788–90
role of common law
principles of construction 203–4
temporal aspects 199–200
terms in text of Constitution 204–8
courts
absence of comprehensive definition 643
development of Australian court system 139–42
components of Australian system
High Court of Australia 654–5
lower federal courts 655–6
State Supreme Courts 657–9
territory courts 659–61
tribunals 661–2
due process
at State level 942–7
Convention debates 930–1
federal guarantee 936–42
future issues 947
judicial review 931–3
(p. 1098) legitimacy 949–51
separation of powers 933–6
essential features
independence and impartiality 663–8
open justice 669–70
procedural fairness 668–9
reasoned decisions 670–1
fair trial
as aspect of legality 1074
basis in common law 200
informing constitutional implications 233
procedural fairness 668–9
as a rights-related implication 915
High Court of Australia see High Court of Australia
history
federal judicature 651–3
relationship with Crown 646–51
International Court of Justice (ICJ) see International Court of Justice (ICJ)
judicial reasoning see Judicial reasoning
judiciary see judiciary
overview 643–6
proposals for ‘native courts’ 75–6
review of executive power 776–7
Crown
Commonwealth executive power 629–30
constitutional meaning 114
historical relationship with courts 647–5
impact on constitutional design 381–7
law of succession 115
prerogative power 202, 238, 420, 590–1
republican movement see republicanism
relationship with Governor-General 116–17
‘subjects’ 340–3
D
defamation
Constitutional implications 159–61
relationship with freedom of political communication 917–18, 960–1
delegation
executive government 599–601
legislative power 622–4
ministerial responsibility 599, 615
departmental secretaries 601–2
discrimination see non-discrimination
due process
Convention debates 930–1
fair trial
as aspect of legality 1074
basis in common law 200
informing constitutional implications 233
procedural fairness 668–9
as a rights-related implication 915
future issues
convergence 948
legitimacy 949–51
at State level 942–7
Kable doctrine 943–5
S 157 and Kirk 945–7
federal guarantee 936–42
adjustment of separation principle 936
contested scope 939–40
executive and legislative powers 940–2
general guarantee 936–7
procedural norms 937–8
implied protections 928–30
judicial review 931–3
Communist Party Case 932–3
legality principle 1073
legitimacy 949–51
separation of powers 933–6
Boilermakers’ Case 933–5
federal judicial power 935–6
E
economic rights 911–12
economic union
Constitutional provisions 834–6
co-operative techniques
grants 849
mirror legislation 848–9
reference power 847
historical drivers
emergence of national economy 837
globalization 837
mobilization during war 836–7
section 92 837–40
sections 51(ii) and 99 840–3
(p. 1099) relationship with globalization
‘external affairs’ in section 51(xxix) 850
proliferation international influences 850–2
taxing powers 833–4
US model 832–3
elections see federal elections
entrenchment see legislative power
equality see non-discrimination
Executive Councils 592–3
executive government
international relations 5
key actors
Executive Councils 592–3
Governor-General 591
Ministers 607–9
Departmental secretaries 601–2
Queen 590–1
Ministers
advisers 598–9
allocation of executive responsibility 595–8
appointment 593–5
control and delegation 599–601
role of constitutional conventions 214–16
scope and application of conventions
caretaker conventions 225–6
controversy 229–30
exercise of Governor-General’s powers 221–3
ministerial responsibility 223–5
role of conventions after 1975 227–9
State executive 286–8
executive power
agencies 602–5
control and co-ordination
financial controls 609–13
regulatory activity 613–15
constitutional significance 615–16
inherent executive power
appropriation and spending 625, 801
separation of powers 632–40
State sphere 641
prerogative powers 522–4
relationship with judicial power 681, 782–3
review of executive action 470, 776–7
expression see freedom of expression
F
fair trial, right to
as aspect of legality 1074
basis in common law 200
informing constitutional implications 233
procedural fairness 668–9
as a rights-related implication 915
Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI) 42–3
federal elections
campaign finance 1009–10
group voting tickets 999–1000
McKinlay Case 985–90
Mulholland case 997–9
non-discrimination 993–6
political communication 1010–11
provisions 980–5
voting rights
absence of express right 1000–02
Roach v Electoral Commissioner 1004–09
federal principle 856
Constitutional provisions 859–63
content 877–8
historical context 857–9
High Court interpretation 871–7
federalism
appointment of High Court justices 461–2
co-operative federalism 808–9
convention debates 87–8
determining validity of co-operative arrangements 822–5
definition 808
historical context 857
interpretation by High Court 874–7
models 857–9
philosophical underpinnings 743–4, 812, 857
‘political slogan’ 807
provisions 865–6
scope for action under Australian Constitution 815–21
Commonwealth spending powers 801–5
(p. 1100) composition and structure of institutions
House of Representatives 749–52
Senate 745–9
distribution of powers
executive government 738–41
judiciary 741–3
overview 733–4
economic union
Constitutional provisions 834–6
federal principle 859–863
fundamental themes
agreement between constituent people of constituent colonies 730–3
composition and structure of the governing institutions 745–52
independence and interdependence 743–4
power to amend Constitutions 752–6
judiciary
adoption of American federal judicial model 671
federal courts 655–6
historical perspectives 651–3
impact of reform in 1970’s and 1980’s 701–3
separation of powers 679, 684–9
State Supreme Courts 657–9
territory courts 659–61
legislative power 565
meanings 757–8, 854–5
State Constitutions see State Constitutions
taxing powers 793–6
federation
Constitutional Conventions 8, 87–9, 94–5
contemporary debates 80–1
four-phases 83–5
finance see money
First peoples
apology 31–2
applicable law imposed by settlers 63–9
Assimilation’ policies 30
constitutional reform
‘Aborigines’ referendum in 1967 48–51
contemporary debates 51–3
Crown authority 28–9
jurisdiction 69–73
legal basis for colonization 28
Mabo Case 49
non-discrimination 1061–67
political participation 42–5
property rights 39–40
proposals for ‘native courts’ 75–6
‘Reconciliation’ 31
recognition
Expert Panel on Constitutional Recognition 32
State constitutions 306
relations between first peoples and colonists 56–7
rights and freedoms 37–40
treaty-making 35–7
Uluru Statement 53–5
foreign law
dual citizenship 20
judicial reasoning 484–5
freedom of expression
political communication
‘burden’ on political communication defined 966–70
constitutional implication 956–8
‘effective burden’ defined 970–1
fundamental elements 958–61
impact of Lange case 961
Lange case 962
limitations on freedom 971–7
McCloy test 962–6
origins 954–6
relationship with representative and responsible government 917–18
G
Governor-General
appointment of High Court justices 461
departmental secretaries 601–2
delegation of power to ministers 593
‘Dismissal’ controversy 229–30
exercise of powers 221–3
(p. 1101) relationship with Crown 386
retention of powers after referendum 227
H
High Court of Australia
advisory opinions 458–9
appointment of justices
distribution among States 461–2
gender 463–4
by Governor-General in Council 461
political affiliations 462–3
comparison to US Supreme Court 450–1
composition 558
control of own docket 457–8
Court of Disputed Returns 467–8
criticisms of jurisprudence 144–6
educative role 508–9
fact-finding 545–8
federal jurisdiction
design 898–902
federal authority 894–5
giving effect to judicial decisions 181
independence 459–60
judicial conduct 465
judicial tenure and remuneration 465
jurisdiction
advisory opinions 458–9
appellate jurisdiction 456, 554–6
Commonwealth matters 173–4
original jurisdiction 173–4, 454–5, 539–43, 886–91
method
analysis and adjudication 534–9
interpretative method 489–90
parties
amicus curiae 553–4
participation of interveners 551–3
procedure
advocacy 556–8
commencement of proceedings and pleadings 543–4
remittal to federal court 544–5
role of counsel 559
review of executive power 470
review of legislative power 468–9
standing 545–8
status as apex court 452–4
House of Representatives
composition and structure 749–52
human rights
international law
international human rights law 438–44
treaty obligations 239
implied constitutional protections 141
legality principle 1087
mandatory sentences 252, 298
State constitutions 281
Uluru Statement 45
I
independence
Australia Acts 1986 110–2
constitutional provisions
constitutional amendment 100
date of independence 115–16
giving effect to independence 108–9
meaning 97
significant events
continuing attachment to British Empire 104–5
Imperial Conferences 1923–30 105–6
Statute of Westminster 1931 107–8
remaining links to Britain 116–18
indigenous peoples see First peoples
inherent executive power
appropriation and spending 625, 801
live issue in State sphere, a 641
separation of powers 632–40
intergovernmental agreements
Commonwealth grants 798–800
constitutional provisions 834–6
techniques
reference power 847
mirror legislation 848–9
grants 849
International Court of Justice (ICJ) 437
acceptance of jurisdiction 434
elected members of 437
litigation involving Australia
Japanese whaling case 2014 436
Nuclear Test cases 1973 434–5
(p. 1102) East Timor case 1991 435–6
Nauru case 1989 435
Seizure and Detention of Certain Documents and Data Case 436–7
international law
constitutional interpretation 15, 250–3
implementation of human rights 438–44
relationship with territorial integrity 34, 41
terra nullius doctrine 57
treaty-making 237–40
treaty obligations
domestic implementation 248–50
effect in domestic law 241–7
effect on legislative interpretation 254–9
High Court jurisdiction 454
international relations
Imperial oversight provisions 386
independence 97
international institution-building
League of Nations 427–9
Rome Statute 433
United Nations 429–32
interveners 551–3
J
judicature see courts
judicial power see also jurisdiction
constitutional role 779–80
Kable doctrine 373–4
review of executive power 776–7
separation of judicial power
development of underlying principles 675–8
federalism 689–95
future of doctrine 695
implicit constitutional recognition 672–3
origin of doctrine 673–5
protection of individual rights 684–9, 922–5
relationship with legislative and executive powers 741–3, 782–3
two limbs of doctrine 678–84
State constitutions 288–91
judicial reasoning
accepted methods
analysis of precedent 478–9
implications 479–80
non-legal reasoning 481–2
primacy of text 474–5
purpose and context 475–6
reference to history of Constitution 477–8
constitutional implications 479–80
degree of indeterminacy 486–7
disagreement and controversy about applications
implications 482–4
precedent 484–6
‘legalism’
approach to constitutional reasoning 10, 475–7, 535–6
High Court’s preference for 144, 956
significance 161
meaning 472
non-legal reasoning 481–2
‘political questions’ doctrine 525–7
precedent 478–9
primacy of text
Engineers’ Case 474–5
purpose and context 475–6
textual indeterminacy 125
use of history 477–8
judicial review
administrative law
constitutional writs 705
future developments 721–3
irrationality and unreasonableness 719–21
jurisdictional error 704–5, 717
law/merits distinction 707–8
legislative curtailment of judicial review 709–16
rejection of deference 708–9
methods of review 488–9
protection of due process
Communist Party Case 932–3
review of executive power 470
review of legislative power 466–9
(p. 1103) judiciary. See Courts and High Court of Australia
jurisdiction
challenges to jurisdiction over Indigenous people 69–73, 75–6
concept 884–5
entrenched supervisory jurisdiction 777–9
courts 898
High Court of Australia
appellate jurisdiction 456, 554–6
lower federal courts 655–6
State Supreme Courts 657–9
territory courts 659–61
control of own docket 457–8
Court of Disputed Returns 468
in Commonwealth matters 173–4
‘matters’ listed in section 75 173–4, 539–43, 886–91
original jurisdiction 173–4, 454–5, 539–43, 886–91
laws to be applied 895–6
matters
under sections 75(iii) and (v) 173–4, 886–91
under sections 76(i) and (ii) 891–2
US origins 880–4
judicial review 488
jurisdictional error as benchmark concept 704–5
litigation before ICJ 434
origins, scope, and purposes of Section 75(v) 698–9
tribunals 661–2
jury trial 913
justiciability
conventions 218
High Court’s supervisory jurisdiction 511–15
Marbury v Madison 511
intergovernmental agreements 524
‘matter’ requirement 527–30
meaning and scope 510–11, 531–2
parliamentary privileges 519–22
‘political questions’ doctrine
Australia 517–19, 525–7
United States 515–16
prerogative powers 522–4
standing 530–1
K
Kable doctrine
expansion of Chapter III 233, 275, 483, 373–4, 718–9
federal jurisdiction 901–2
implied due process at State level 943–5
L
Lange Test 962
‘legalism’
approach to constitutional reasoning 10, 475–7, 535–6
Engineers’ case 138, 956
High Court’s preference for 144, 956
significance 161
legislative power
adoption of common law 200–1
Australia Acts 1986
key provisions 110–12
legal and political impacts 111–12
termination of residual links 110
citizenship 343–9
co-operative federalism 808–815, 822–9
conferral of power 767–71
creation of Commonwealth in 1901 764–5
distribution of powers 734–8
economic union
provisions in Constitution 835
referral of legislative power under section 51(xxxix) 847–8
section 92 837–40
sections 51(ii) and 99 840–3
effect of international law on interpretation 254–9
first Constitutional Convention 1891
equality of chambers 88–9
powers in relation to money bills 89–90
High Court control
money bills 468–9
(p. 1104) powers and privileges of Parliament 469–70
validity of legislation 466–7
impact of ‘referendum in 1967 49–50
implied limitations 773–6
independence, 97–102, 109
comparative constitutional law 265
judicial review
election cases 507–8
nature and extent of powers 491–2
restrictions on freedom of political communication 501–7
restrictions on interstate trade 500–1
lack of bill of rights 153–4
property rights
problem of regulatory expropriations 1019
two purposes of section 51(xxxi) 1029–32
relationship with judicial power 782–3
separation of powers
appropriation and spending 625–8
constitutional framework 620–2
delegated legislation 622–4
State constitutions
entrenchment of certain provisions 300
extraterritorial competence 303–5
limited powers of entrenchment 297–9, 301–3, 299–300
nature of State legislative power 771–3
grant of power 296–7
taxation 787–8
taxing powers
‘non-interference’ principle 796
State revenues 793
uniform tax scheme 1942 793–4
treaty obligations 248–50
local government
establishment 761
State constitutions 306–7
M
McCloy Test 962–6
ministerial responsibility
control and delegation 599, 615
implicit in Constitution 123–4
scope and application of conventions 219, 223–5
Ministers
advisers 598–9
allocation of executive responsibility 595–8
appointment 593–5
control and co-ordination 607–9
control and delegation 599–601
federal principle 861
money
appropriation and spending 625–8
campaign finance 1009–10
Commonwealth spending powers 801–5
control of public finances 609–13
co-operative federalism 817–19
economic union
globalization 850–2
negative economic union 836–43
positive economic union 843–9
theoretical concepts 831–6
federal interpretation of money provisions
appropriation 791
financial assistance 791–2
modern relevance 805–6
‘surplus revenue’ 790–2
impact on constitutional evolution 136
intergovernmental Commonwealth grants 798–800
intergovernmental public borrowing 797
key issues 784–5
legislative power
limits on legislative authority 861–2
taxation 787–8
political donations 972–3
reciprocal responsibility 864–5
‘reserved powers’ doctrine 788–90
revenue distribution
Braddon clause, 792–3
State Grants Act 796–7
State control of finance 285–6
tax powers
‘Braddon clause’ 792–3
challenge to the State Grants Act 796–7
‘non-interference’ principle 796
(p. 1105) State revenues 793
transfer of powers to Commonwealth 786–7
uniform tax scheme 1942 793–4
N
National Aboriginal Conference (NAC) 43–4
National Aboriginal Consultative Committee (NACC) 43
National Congress of Australia’s First Peoples 45
nationhood
constitutional evolution 128
federal jurisdiction 898
independence 108
inherent executive power 633–4, 636, 640–1, 801
unity 420–4
New South Wales
challenge to the State Grants Act 796–7
co-operative federalism 828–9
development of separate colonial constitutions 81
emergence of Commonwealth of Australia 80, 94
establishment of convict colony 59–60
financial default 818
freedom of intercourse among States 409, 411
law imposed by settlers 63–9
reception of English common law 194–6
State constitution
bicameralism 283–4
control of finance 285–6
establishment in 19th century 360–1
executive structure 286–8
indigenous recognition 306
judiciary 288–91
legislative power 296–305
legislature 282
local government 306–7
origins of current constitutional order 279
parliamentary terms 283
status 291–6
non-discrimination
absence of guarantee 1054–57, 1067–8
appointment of High Court justices
distribution among States 461–2
gender 463–4
political affiliations 462–3
Commonwealth of Australia Constitution Act 1900 157
economic union 833–4
First peoples
Aboriginal people as a “race” 51
constitutional guarantees 39–41
Expert Panel on Constitutional Recognition 32
impact of UNDRIP 45
legal protections regarding religion 40
realization of socio-economic rights 38
Referendum Council 45
shift towards ‘Assimilation’ policies 30
freedom of intercourse among States 410–11
repeal of express discrimination against Aboriginal people 30–1
rights protection in Constitution 913–14
scope for co-operative federalism under Australian Constitution 820
non-establishment of religion 1041–45
Northern Territory
First peoples 29, 39, 51–2
future constitutional changes 309–10
Supreme Court 660
O
open courts 669–70
oral argument see advocacy
P
parliamentary privileges
High Court jurisdiction 469
judicial review 286
non-justiciability 519–22
Parliaments
bicameralism
resolution of deadlocks 283–4
responsible government at the State level 10
(p. 1106) rights protection 918–20
Senate’s modern role 565
use of delegated legislation 328
composition and structure of federal institutions
House of Representatives 749–52
Senate 745–9
development of separate colonial constitutions 81
distribution of powers
executive government 738–41
legislative power 734–8
first Constitutional Convention 1891
equality of chambers 88–9
powers in relation to money bills 89–90
High Court control of powers and privileges 469–70
importance 563–4
independence and interdependence 743–4
representative government
deep commitment 566–7
federal Parliament 568–70
provisions in Constitution 567–8
responsible government
fundamental feature 574
impact of adopted practices 577–80
provisions in Constitution 574–7
State parliaments
bicameralism 283–4
control of finance 285–6
legislature 282
parliamentary terms 283
unwritten constitutional rules 217
participation see Political participation
political communication
‘burden’ on political communication
explicitly political communication 967–8
matters indirectly relevant to voter choice 969–70
non-verbal communication 967
possible subject of future laws or policies 968–9
constitutional implication 956–8
defamation 960–1
‘effective burden’ 970–1
federal elections 1010–11
incivility and insult 974–7
Lange Test 958–9, 961–962
McCloy Test 962–6
origins 954–6
politics, money, and ‘enhancement regulation’ 972–3
representative and responsible government 917–18
political participation
citizenship 351–4
composition and structure of federal institutions
House of Representatives 749–52
political donations 1009–10
Senate 745–9
constitutional evolution 131–3
Court of Disputed Returns 467–8
differing perspectives 1111–12
federal principle 859–61
First peoples
referendum in 1967 48–51
ATSIC Act 44–5
FCAATSI 42–4
NAC 43–4
NACC 43
National Congress of Australia’s First Peoples 45
Referendum Council 45
independence after Imperial Conferences 108
popular sovereignty 317–23
principle of legality 1089
legislative power over federal elections
concerns over group voting tickets 999–1000
McKinlay Case 985–90
Mulholland case 997–9
non-discrimination 993–6
power and choice 991–3
provisions in Constitution 980–5
the ‘one people’ 418–20
political communications 1010–11
power over federal elections
relevance to rule of law 170–1
representative government 566–7
direct effects on rights 915–17
federal Parliaments 568–70
High Court interventions 571–3
(p. 1107) indirect effect on rights 917–18
provisions in Constitution 567–8
responsible government
direct effects on rights 915–17
indirect effect on rights 917–18
right to vote
no express right 1000–02
Roach v Electoral Commissioner 1004–09
‘political questions’ doctrine
Australia 517–19
judicial reasoning 525–7
United States 515–16
prerogative powers 201–2, 420. See Executive power
justiciability 522–4
separation of powers 640
principle of legality
see also rule of law
administrative law 706–7
content 376–7, 1071–5
development 1079–93
origins and evolution 1076–79
overview 1069–71
relationship with legitimacy 323–37
unwritten constitutional rules 231–2
privative clauses 375, 470, 711–13
privileges
parliamentary privileges
judicial review 286
non-justiciability 519–22
property rights
central interpretive issues
‘acquisition of property’ 1018–19
‘on just terms’ 1017
question of legitimate purposes 1014–16
scope of constitutional protection 1014–15
two purposes of section 51(xxxi) 1029–32
common law protection 195
express guarantee in Constitution 1013–14
First peoples
first test case 33
limited recognition 34
Mabo Case 49
Native Title Act 1993 31
pressure for reform 39
protection offered by section 51(xxxi) 40
problem of regulatory expropriations 1020–29
proportionality
judicial reasoning 486
judicial review 500
Q
Queensland
amendment of entrenched provisions by Australia Acts 1986 113
co-operative federalism in practice 828–9
early permanent settlements 60
greater constitutional traction for first peoples 39–40
participation in the 1897–98 sessions 317
State constitution
control of finance 285–6
executive structure 286–8
indigenous recognition 306
judiciary 288–91
legislative power 296–305
legislature 282
local government 306–7
origins of current constitutional order 279–80
parliamentary terms 283
preamble 282
status 291–6
unicameralism 305
R
race
colonial culture 810
damaging symbolism 51
dated provisions of Constitution 8
non-discrimination 1061–67
section 51(xxvi) 18, 29
proposed referendum to expunge constitutional references 1089
right to vote 11, 87
reasoned decisions 670–1
(p. 1108) reciprocal responsibility
historical context 863–5
interpretation by High Court 874–7
provisions in Constitution 865–6
‘Reconciliation’ 30–1
referendumsadoption of Constitution 472
colonial Enabling Acts 11–12
constitutional evolution 17, 129–33
democratic credentials of popular sovereignty 317–23
constitutional reform in 1967 42–3, 48–51, 54–5
republic 19
provisions in the Commonwealth Constitution 100
remnants of colonial relationship 113
repeal of express discrimination against Aboriginal people 30–1
retention of Governor-General’s powers 227
Western Australia approval of draft Constitution 94
religion
definitional difficulties 1036–39
free exercise
interpretation of section 116 1045–50
restrictions 1050–51
funding of chaplaincy services 148–9
principle of legality 1073
non-establishment
interpretation of section 116 1041–43, 1044–45
protection for first peoples 40
provisions in Constitution
constitutional oddity 1033–34
history and context of section 116 1035–36
representative government 566–7
federal Parliaments 568–70
High Court interventions 571–3, 586
provisions in Constitution 567–8
structural features of government
direct effects on rights 915–17
indirect effect on rights 917–18
republicanism
descriptors of Australian republicanism
constitutional republic 392–8
theorized republic 399–404
‘the other Australian sentiment’ 388–91
future constitutional changes 308–9
impact of monarchical Constitution 381–7
opposition to independence 101
Paine’s Rights of Man 85
‘reserved powers’ doctrine 788–90
Engineers’ case 789
responsible government
colonial governments in mid-nineteenth century 763–4
federal principle 853
fundamental feature 574
High Court interventions 580–6
impact of adopted practices 577–80
provisions in Constitution 574–7
separation of powers 628–9
structural features of government
direct effects on rights 915–17
indirect effect on rights 917–18
right to vote
discriminatory provisions 11, 87
principle of legality 1089
no express right 1000–02
Roach v Electoral Commissioner
constitutional right to vote 1004–05
right to maximum voting participation 1006–09
rights and freedoms
absence of bill of rights
history and development of current situation 907–9
underlying rationale 909–11
brevity of Constitution text 126–7
Constitutional provisions
civil and political rights 913–14
economic rights 911–12
overview 911
due process
debate during Constitutional Convention 930–1
future issues 947–51
implied due process at State level 942–7
implied federal guarantee 936–42
implied protections 928–30
judicial review function 931–3
(p. 1109) principle of legality 1073
no express guarantee 928
separation of powers 933–6
establishment of Commonwealth Constitution in 1900 367–70
expansion of Chapter III 372–3
fair trial
aspect of legality 1074
buttressing by Constitution 1078
constitutional implications 233
due process guarantee 930–1
rights-related implications 915
role of common law 200
First peoples
absence of an equality guarantee 40–1
Federal Council for the Advancement of Aborigines and Torres Strait Islanders 42–4
greater constitutional traction 39–40
rights 37–8
no entrenched guarantee of equality 39
no impact when nation created in 1901 29
progress in late 20th century 30–1, 39
shift towards ‘Assimilation’ policies 30
unwillingness of parliaments to intrude 38
freedom of expression
essential requirement of democratic government 953–4
principle of legality 1073
matters to be developed 977–8
origins 954–6
political communication 954–77
freedom of intercourse among States 409–11
human rights
impact on constitutional fabric 445
implementation of international law 15, 438–44
implied constitutionally protected interests 141
principle of legality 1087
mandatory sentences 252, 298
State constitutions 281
treaty obligations 239
Uluru Statement 45
Indigenous rights to land 76–7
judicial review
restrictions on freedom of political communication 501–7
restrictions on interstate trade 500–1
tests for guaranteed freedoms 499–500
lack of bill of rights 148–9, 153–4
principle of legality 1073–74, 1077–1093
non-discrimination
appointment of High Court justices 461–2, 462–3, 463–4
Commonwealth of Australia Constitution Act 1900 157
economic union 833–4
First peoples 30, 32, 38, 39–41, 45, 51
freedom of intercourse among States 410–11
no general constitutional guarantee 1067–68, 1054–57
privileges and immunities conferred by citizenship 1057–61
race discrimination 1061–67
repeal of express discrimination against Aboriginal people 30–1
rights protection in Constitution 913–14
scope for co-operative federalism under Australian Constitution 820
opaque and diffuse approach 927
overview of constitutional approach 905–7
political participation
campaign finance 1009–10
citizenship 351–4
federal institutions 745–52
constitutional evolution 131–3
Court of Disputed Returns 467–8
federal elections 980–1000
federalism 859–61
First peoples 41–5, 48–51
independence after Imperial Conferences 108
political communications 974–7, 1010–11, 1110
popular sovereignty 317–23
power over federal elections 980–1000
relevance to rule of law 170–1
(p. 1110) representative government 566–73, 915–18
responsible government 915–18
right to vote 1000–09
the ‘one people’ 418–20
property rights
common law protection 195
section 51(xxxi) 1013–14
central interpretive issues 1014–29
two purposes of section 51(xxxi) 1029–32
First peoples 31, 33, 34, 39–40, 49
protection of political rights 370–2
religion
coherent interpretation 1051–52
definitional difficulties 1036–39
free exercise 1045–51
funding of chaplaincy services 148–9
section 116 1033–36, 1041–45
principle of legality 1073
protection for first peoples 40
representative and responsible government
direct effects on rights 915–17
indirect effect on rights 917–18
role of unwritten constitutional rules 231–3
Section 117 of Constitution 411–14
separation of judicial powers 684–9
structural features of government
bicameralism 918
constitutional implications 914–15
federalism 921
relevance 914
rule of law 926–76
separation of powers 921–5
rule of law
administrative law 706–7
assumption upon which the Constitution framed 1086
changes to generally applicable rules
judge-made law 177–8
statute law 178–80
compliance with judicial decisions
migration cases 183–6
spending 182–3
federal jurisdiction 898
generally applicable rules 175–7
giving effect to judicial decisions 181
jurisdiction of High Court 173–4, 452
meaning and scope 169–71
reflection of ‘legal spirit’ 188–9
relevant features of Constitution
establishment of federal system 171
judicial power 172
responsible government 172
system of representative government 170–1
rights protection 926–76
role of government 186–8
S
self-determination
First peoples 30
Senate
delegated legislation 328, 348, 624, 628, 920
composition and structure 745–9, 865, 918–921
mechanisms for resolving deadlocks 283–4
responsible government 10
rights protection 918–20
relationship to federalism 565
separation of powers
administrative bodies 776
executive government
constitutional framework 628–31
delegation from legislature 622–4, 639, 1073
inherent executive power 632–40
State level 780
independence and impartiality of judiciary 667–8
judiciary
Boilermakers’ case 677–8
development of underlying principles 675–8
federalism 689–95
future of doctrine 695
(p. 1111) implicit constitutional recognition 672–3
origin of doctrine 673–5
protection of individual rights 684–9
two limbs of doctrine 678–84
legislative power
appropriation and spending 625–8
constitutional framework 620–2
protection of due process
Boilermakers’ Case 933–5
federal judicial power 935–6
rights protection
Constitutional provisions 921–2
forms of protection 922–4
impediment to legislative protection 924–5
settled constitutional principle 617–20
three-way separation of powers 617–18
settlement
changing historical perspectives 57–8
colonial enthusiasm for democracy in Australia 85–7
creation of ‘native courts’ 75–6
debates about the justice of imperial expansion
applicable law imposed by settlers 63–9
law and philosophical underpinnings 61–2
early permanent settlements 60–1
early seafarers and explorers 59
establishment of convict colony of New South Wales 59–60
European colonization as dominant influence 56
federalism based on agreement of colonies 730–3
Indigenous rights to land 76–7
introduction of British laws 58–9
John Boston’s ‘levelling practices’ 379–80
jurisdiction over crimes between Indigenous people 69–73
plurality of laws on the Australian continent 73–5
response to Aboriginal peoples 60–1
terra nullius doctrine 57
South Australia
applicable law imposed by settlers 67–8
co-operative federalism in practice 828–9
constitutional change for first peoples 36
development of separate colonial constitutions 81
early permanent settlements 60
progress towards federation 92
progress for first peoples 39
responsible government in mid-nineteenth century 763–4
State constitution
control of finance 285–6
executive structure 286–8
indigenous recognition 306
judiciary 288–91
legislative power 296
legislature 282
local government 306–7
origins of current constitutional order 279
parliamentary terms 283
status 291–6
unwritten constitutional rules 217
sovereignty
see also independence
applicable law imposed by settlers 62–5
constitutional interpretation 253
creation of Commonwealth in 1901 765
First peoples
Crown authority over first peoples 28–9
impact of Federation 29
Indigenous legal systems 33–4
UN developments 34
impact of globalization 37
importance of co-operative federalism 814
independence 97
independence of new Australian Commonwealth 90–1
popular sovereignty 317–23
plurality of laws on the settled continent 74
ultimate sovereignty to amend the Constitution 192–4
(p. 1112) standing
Constitutional litigation 549–51
justiciability 530–1
State constitutions
see also federalism
basis of content 280–1
colonial constitutions in 19th century 360–2
contents
bicameralism 283–4
control of finance 285–6
executive structure 286–8
judiciary 288–91
legislature 282
parliamentary terms 283
preambles 282
future changes
new States in the federation 309–10
republic movement 308–9
secession 310–11
importance 277–8
legislative power
entrenchment of legislation 300
extraterritorial competence 303–5
limited powers of entrenchment 297–9
nature of State legislative power 771–3
possible grounds for effective entrenchment 301–3
single and double entrenchment distinguished 299–300
legislative competence 296–7
origins of current constitutional order 278–80
power to amend 752–6
reform models
abolition of the Queensland Legislative Council in 1922 305
indigenous recognition 306
local government 306–7
separation of powers 641
status
Australia Acts 1986 295–6
until federation 291–5
taxing powers 788
supremacy of Parliament
applicable rule of law 175–6
emergence of Commonwealth of Australia 80
operation of common law rules 213
T
Tasmania
applicable law imposed by settlers 63
co-operative federalism in practice 828–9
development of separate colonial constitutions 81
early permanent settlements 60
progress towards federation 92
responsible government in mid-nineteenth century 763–4
State constitution
bicameralism 283–4
control of finance 285–6
executive structure 286–8
indigenous recognition 306
judiciary 288–91
legislative power 296–305
legislature 282
local government 306–7
origins of current constitutional order 279
parliamentary terms 283
status 291–6
taxing powers
‘Braddon clause’ 792–3
challenge to the State Grants Act 796–7
limits on legislative authority 861–2
no constitutional immunity from Commonwealth legislation 795
‘non-interference’ principle 795–6
State constitutions 787–8
State revenues 793
uniform tax scheme 793–4
terra nullius doctrine 35, 47, 57
territory courts 659–61
treaties
domestic implementation 248–50
effect on Constitutional interpretation 250–3
effect in domestic law 241–7
effect on legislative interpretation 254–9
First peoples 28, 32–7
High Court jurisdiction 454
(p. 1113) Makarrata Commission 54
omitted from Constitution 237–8
positive influence on economic union 850–1
significance of Mabo case 77
Statehood 426
trial by jury 913
tribunals
impact of reform in 1970s and 1980s 701–2
separation of powers 678, 682
U
Uluru Statement 32, 36, 53–5
unity
common law 658, 880–1
common national identity 382
constitutional unity 376
economic union 408, 811, 831
founders’ conception of polity 155
freedom of intercourse among States 409–11
impact of demographic changes 405–6
‘inconsistency’ between legal commands 414–17
power to make special laws 407–8
nationhood 420–4
Imperial unity 425
prohibition of discrimination 1057
restrictive view of economic union 835
Section 117 of Constitution 411–14, 536, 1060
uniform quality of justice 417–18
unwritten constitutional rules
constitutional conventions 214–30
caretaker conventions 225–6
exercise of Governor-General’s powers 221–3
ministerial responsibility 223–5
State Constitutions 292, 359
constitutional implications 233–4
meaning and scope 210–14
overview 209–10
perceived failures 229–30
practices acquiring status of conventions 216–20
relationship with common law 231–3
responsible government 574–586
V
Van Diemen’s Land see Tasmania
Victoria
constitutional change for first peoples 36
co-operative federalism 828–9
early permanent settlements 60
emergence of Commonwealth of Australia 80–1, 92–3
responsible government in mid-nineteenth century 763–4
State constitution
bicameralism 4
control of finance 285–6
executive structure 286–8
indigenous recognition 306
judiciary 289–90
legislative power 296
local government 306–7
origins of current constitutional order 279
parliamentary terms 283
preamble 282
status 291–6
voting see right to vote
W
Western Australia
continuing difficulties with federation 94
settlement 60, 278
State constitution
executive structure 286–8
indigenous recognition 306
legislative power 296, 300
legislature 282
origins of current constitutional order 279–80
parliamentary terms 283
preamble 282