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Australian Constitutional LawThis article deals in some detail with the development of several major doctrines in Australian constitutional law, with a special eye on those which relate to Australia's evolution as a modern nation-state, and those which relate to human and civil rights. This development is of some significance because Australia has the fourth-oldest still-operative written constitution in the world: only those of the United States, Canada and Switzerland are older. It is also a good illustration of the interplay between a written constitution and the common law. For the story of how Australia evolved from a set of British colonies to an independent nation, see constitutional history of Australia. For a briefer outline of the basic structure of the Constitution, see Commonwealth of Australia Constitution Act. For an overview of constitutional law generally, see constitutional law. The Constitution and the High Court Constitutional law in the Commonwealth of Australia consists mostly of that body of doctrine which interprets the Commonwealth Constitution. The Constitution itself is embodied in clause 9 of the Commonwealth of Australia Constitution Act, which was passed by the British Parliament in 1900 after its text had been negotiated in Australian Constitutional Conventions in the 1890s and approved by the voters in each of the then British colonies in Australia. (The British government did, however, insist on one change to the text, to allow a greater range of appeals to the Privy Council in London.) It came into force on January 1, 1901, at which time the Commonwealth of Australia came into being. The Constitution created a framework of government some of whose main features, and sources of inspiration, were the following: - constitutional monarchy (British and existing colonial models)
- federalism (United States model)
- parliamentary, or "responsible", government (British and existing colonial models)
- distinct textual separation of powers (US model)
- direct election to both Houses of Parliament (then a novelty)
- requirement of a referendum for amendment of the Constitution (Swiss model)
- only very limited guarantees of personal rights (rejection of the US model)
- judicial review (US model)
This last feature - the ability of the courts to declare legislation unconstitutional and therefore invalid - is itself the source of the body of constitutional doctrine examined in this article. It has its origin in American experience, where the right of the Supreme Court of the United States to strike down legislation deemed incompatible with the Constitution was first asserted by the Supreme Court itself in the seminal case of Marbury v. Madison in 1803. Although completely foreign to both British and Australian colonial experience, the framers of the Australian Constitution clearly intended that the practice would take hold in Australia, and even expressly adverted to it in the Constitutional text (in section 76). This power of judicial review of legislation for conformity with the Constitution has been exercised almost exclusively by the High Court of Australia, and almost invariably with a Full Bench of all its members. A brief overview of the other listed features will provide a background for the doctrinal developments examined below. Constitutional monarchy The term "Head of State" nowhere appears in the Constitution, but it was obviously intended that the new Commonwealth, like the States (that is, former colonies) of which it was formed, would continue to recognise the British Sovereign. "The Queen" (meaning Queen Victoria, and defined to include "Her Majesty's heirs and successors in the sovereignty of the United Kingdom"), is one of the three elements of Parliament, along with the Senate and the House of Representatives (section 1). She is represented in the Commonwealth by a Governor-General, who is appointed by her and exercises her powers and functions "during the Queen's pleasure". The executive power is vested in the Governor-General "as the Queen's representative" (section 61), as is the command-in-chief of the armed forces (section 68). The Constitution assigns sweeping powers to the Governor-General, e.g. to dismiss Parliament (sections 5 and 57), to refuse assent to Bills passed by Parliament (section 58), and to appoint and dismiss government Ministers (section 64). However, it was universally understood at the time the Constitution was drafted and adopted that the Queen and her representative would exercise their powers only on the advice of Ministers except in a few very unusual circumstances: this was in accordance with the constitutional convention that had developed in the United Kingdom over hundreds of years, and had also come to be applied to the Governors of the Australian colonies. Therefore almost all the powers and functions nominally assigned to the Governor-General or the Queen were in reality assigned to the government of the day. But because the monarchical reliance on ministerial advice has always been a convention rather than a rule of strict law, it has never been entirely clear what its limits are. The powers that can be exercised without or against ministerial advice are called "reserve powers". They certainly include the power to commission a Prime Minister, except that where a particular party or coalition of parties has a majority of seats in the House of Representatives and an acknowledged parliamentary leader, that person must, by convention, be chosen. They probably include the power to dismiss a Prime Minister who has been subject to a vote of no confidence in the House of Representatives and who refuses to either resign or advise the calling of an election. The reserve powers may also include the power to dismiss a Prime Minister who is engaging in persistent illegal action (Governor Sir Philip Game of New South Wales dismissed Premier Jack Lang on this ground in 1932). And it remains extremely controversial whether they include the power to dismiss a Prime Minister who, while retaining the confidence of the House of Representatives, is not able to get the annual supply Bill passed by the Senate, as happened in 1975: see John Kerr for details. Despite the drama of that event, it is worth bearing in mind that this is the only occasion on which a Governor-General has acted against the advice of his Ministers (all Governors-General have to date been male). The role of the Queen is nowadays even more circumscribed, and amounts only to appointing (and, in theory, dismissing) a Governor-General on the advice of the Australian Prime Minister, as well as performing (by invitation) certain ceremonial functions when she is personally present in Australia. See Constitutional history of Australia for further details on the development of the monarch's role in relation to Australia. The importance of constitutional conventions in this area means that Australia cannot be said, strictly, to operate entirely under a written constitution, but has to some extent a system like the British unwritten constitution. But it would be a mistake to exaggerate the importance of this aspect of Australia's constitutional arrangements, because: Federalism The Constitution sets up the Commonwealth of Australia as a federal polity, with powers divided between the Federal and the State governments. The model of federalism chosen was the American one, in which the Federal legislature is given a list of specific powers, with all the unenumerated residue being reserved to the States. (Only very brief consideration was given to adopting the opposite, Canadian, model, in which it is the regional units who are assigned a list of enumerated powers.) The list of powers assigned to the Federal Parliament is also quite similar to that assigned by the United States Constitution to the Congress, but is in some respects broader: for instance, it includes "astronomical and meteorological observations", "weights and measures", marriage and divorce, and interstate industrial relations. It also provides some opportunities for Federal-State co-operation: any State can "refer" a "matter" to the Commonwealth Parliament, and the Commonwealth Parliament can exercise, "at the request or with the concurrence of the Parliaments of all the States directly concerned", any power which, at the time of Federation, could be exercised only by the United Kingdom Parliament. However, most of these powers are assigned not exclusively to the Federal Parliament, but "concurrently", which means that the States can still legislate on these subjects themselves. Any possible conflict is resolved by section 109, which reads "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid". There is also a much smaller list of powers granted exclusively to the Commonwealth Parliament. Both sets of powers, concurrent (section 51) and exclusive (section 52), are stated to be "subject to this Constitution", which is to say, subject to the limitations and guarantees contained elsewhere in the document. One of these limitations (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". Federalism is also evident in the structure of the Parliament. As in the United States, whereas representation in the House of Representatives is based on population, each State gets equal representation in the Senate. (To be precise, only original States are guaranteed equal representation. To date the only States are the original six. If and when the Northern Territory achieves Statehood, it is likely, on the basis of its very small population, to get fewer than the 12 Senate seats currently held by each original State.) The Senate has equal power with the House of Representatives except for certain restrictions in financial matters: essentially, financial Bills cannot originate in the Senate, and may only be passed or rejected, but not amended, there: see John Kerr for an account of the events of 1975, when the Senate refused to pass the government's annual supply Bill. Again, federalism is evident in the process of constitutional amendment, which requires that the Bill to amend the Constitution be approved by a majority of electors overall and a majority of electors in a majority of States (that is, four out of the six). Additionally, amendments "altering the limits" of a State or diminishing its proportional representation in Parliament require the approval of electors in that State. Parliamentary government It was assumed by the framers, in line with British and local colonial tradition, that the effective government would consist of Ministers who were members of Parliament and "responsible", that is, answerable, to it, and that the continued existence of the government would depend on its maintaining the confidence of at least the lower house of the legislature. These arrangements, however, are only hinted at in the text of the Constitution. There is a requirement (section 64) that the "Queen's Ministers of State", who are nominally appointed by the Governor-General, be or swiftly become members of either House of Parliament. The existence of the Prime Minister and Cabinet, and the requirement for them to have the confidence of the House of Representatives, are not mentioned. Nonetheless, these have been fundamental features of Australian constitutional practice from the start. Separation of powers? Textually at least, the Constitution features a distinct separation of powers. The legislative power is dealt with in Chapter I, and is vested in its first section (section 1) in the Federal Parliament. The executive power is dealt with in Chapter II, and is vested in its first section (section 61) in the Governor-General as the Queen's representative. The judicial power is dealt with in Chapter III, and is vested in its first section (section 71) in the High Court and "in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction". On the other hand, as already mentioned, the Queen/Governor-General is one element of the Parliament as well as heading up the executive, and the Ministers of State who "advise" the Governor-General are actually required to be or become members of Parliament. The result has been that, while there is no significant separation of the legislative and executive powers (the "political branches"), the High Court has, over its history, developed an increasingly stringent doctrine of the separation of the judicial power from the other two. This is discussed further below. Direct election to both Houses of Parliament The Constitution required direct election of members to both Houses of Parliament from the beginning (sections 7 and 24). This was a novelty at the time, since the national upper houses with which the framers were best acquainted were chosen by other means: indirect election by the State legislatures (United States Senate before the Seventeenth Amendment in 1913), executive appointment for life (Canadian Senate), or hereditary succession (United Kingdom House of Lords). As will be seen, the requirement for direct election has been cited by the High Court in support of an implied right of freedom of communication on political matters. Referendum for constitutional amendment The text of the Constitution was not presented to the British Parliament for formal enactment until it had been approved by the electors of the then-colonies. (To be more precise, Western Australia held out, so that covering clause 3 provided that Western Australia would form part of the Commonwealth only if "Her Majesty is satisfied that the people of Western Australia have agreed thereto"; they did and she was.) On the same principle, any amendment to the Constitution requires approval at a referendum (as explained above, with a double-majority requirement). This was (uniquely in the Constitution) based on the Swiss practice. However, the Swiss use of the popular initiative in constitutional amendment was not followed, so that constitutional alterations, although they must be approved by the people, can only be initiated by Parliament. The use of the referendum in initially adopting the Constitution, and its requirement for constitutional amendment, has been cited by justices of the High Court to argue that the Constitution is fundamentally based on popular sovereignty (rather than on the supremacy of the United Kingdom Parliament, which is its technical legal foundation). This doctrine has achieved greater prominence since the cessation, in 1986, of all authority of that Parliament over Australia: see Constitutional history of Australia for details. There have been 44 proposals for constitutional amendment put to the people since Federation. Of these, only 8 have passed. No Bill of Rights The Constitution contains nothing like the comprehensive guarantees of civil and political rights found in the United States Bill of Rights together with the Fourteenth and Fifteenth Amendments, or the Canadian Charter of Rights and Freedoms. Factors sometimes cited for this include faith in the common law's protection of rights and a belief that a powerful Senate would effectively resist overzealous governments. Despite this general attitude, the Constitution does contain protection for some specific rights. These include: - freedom of religion, and prohibition of religious tests for Federal offices (section 116)
- trial by jury in Federal cases tried on indictment (section 80)
- "just terms" for the compulsory "acquisition" of property by the Commonwealth (section 51(xxxi))
- an ambiguously worded prohibition on discrimination against residents of other States (section 117)
All but the last of these have been read down by the High Court, at least relative to the content of the corresponding United States guarantees. On the other hand, since the 1990s the High Court has been developing a jurisprudence of rights said to be implied in the text and structure of the Constitution. These developments are discussed below. In addition, a constitutional requirement that "trade, commerce, and intercourse among the States ... shall be absolutely free" (section 92) was, for a time, interpreted as a guarantee of some degree of freedom from economic regulation by either Commonwealth or State Parliaments. The reference to "intercourse", on the other hand, has always been understood as guaranteeing a right to movement across State boundaries. The growth of central power Probably the most obvious development in Australian constitutional law has been the steadily continuing growth in the power of the Federal government relative to the States. Several factors can be given to account for this, including: - doctrines of constitutional interpretation which favour a broad reading of Commonwealth powers
- the enormous "fiscal imbalance" between the Commonwealth and the States
- the development of important areas of competence which did not exist at Federation and which have fallen to the Commonwealth
- constitutional amendment or referral by the States
- the growth in Australia's international presence and hence treaty commitments
- the willingness of Australian governments, including self-styled supporters of States' rights, to exercise their powers to the full
Centralizing interpretations In the first two decades of its existence, the High Court adopted a doctrine of "reserved State powers" combined with "implied inter-governmental immunities". The essence of the first part of the doctrine was that grants of power to the Commonwealth in the Constitution should be read in a restrictive way so as to preserve as much autonomy as possible for the States. The essence of the second part of the doctrine was that the Commonwealth and States were immune to each other's laws, and could not mutually regulate each other's governmental apparatus: for instance, they could not tax the wages of each other's employees, or force each other's employees to submit to compulsory industrial arbitration. There was little basis in the text of the Constitution for this doctrine, although the judges who developed it had all been active members of the Constitutional Conventions, and believed that it was implied in the nature of federalism itself. The doctrine was swept away in the 1920 decision in the Engineers1 case (after changes in the composition of the Court). The Court now insisted on adhering only to the language of the constitutional text, read as a whole, in its natural sense, and in light of the circumstances in which it was made: there was to be no reading in of implications by reference to the presumed intentions of the framers. In particular, since there is no mention of "reserved State powers", only one express inter-governmental immunity (regarding property taxes: section 114), and an express provision asserting the superiority of valid Commonwealth laws over inconsistent State laws (section 109), there was no longer any room for the doctrine previously asserted in favour of the States. Even in the days of the "reserved State powers" doctrine, there had been a line of judicial reasoning which asserted that Commonwealth powers should be interpreted broadly rather than narrowly wherever possible2. But Engineers allowed this approach full sway, and subsequent developments reinforced it. Eventually, "inconsistency" between Commonwealth and State laws came to be found not only where (for instance) they imposed mutually inconsistent obligations (such as to do a thing and not to do a thing), but also where the Commonwealth legislation evinced an intention to "cover the field", that is, to be the whole law on a particular subject3. Finally, it appears to have become accepted that the Commonwealth can "manufacture" inconsistency by expressly stating that its legislation is intended to cover the field4. By the express terms of the Constitution, the Federal Parliament is limited to making laws "with respect to" one of the enumerated heads of power. However, it has been held that this does not mean that the law in question must be solely or even predominantly directed at that head of power. As long as it can be "fairly characterized" as a law with respect to x (where x is one of the enumerated powers), it does not matter if it can also be described as a law with respect to one or more other subject matters, even if those subject matters are not included among the enumerated powers5. Likewise, it does not matter what the Parliament's motivation was in passing the law6. An example is environmental legislation. Although the Constitution does not provide the Commonwealth Parliament with any power to control the environment or its use, a very broad-ranging environmental protection Act can still be passed relying on a combination of powers with respect to interstate and international trade, corporations, taxation, foreign affairs and so on. It is irrelevant that the motivation for such legislation is to protect the environment rather than to regulate trade, corporate activities, etc. Particularly in the last two decades, many Acts of very wide-ranging effect have been passed on just these bases, in fields as diverse as environment protection, privacy, and anti-discrimination, fields in which the Commonwealth has no direct power. Fiscal imbalance At the time of Federation, the colonies' main source of revenue consisted of customs and excise duties (income tax being still a new-fangled notion). Since one of the main reasons for Federation was to create a common market, it was inevitable that authority over these taxes was vested exclusively in the Commonwealth Parliament (section 90). It was acknowledged that this would create a situation where the Commonwealth would raise much more money than it could spend, whereas the States, being still responsible for most areas of law and of social infrastructure, would need to spend much more money than they could raise (the problem now known as "vertical fiscal imbalance"). Although the framers were able to agree on a formula for distribution of the Commonwealth's surplus to the States in the first few years after Federation, they could not agree on a long-term formula. Accordingly, section 96 of the Constitution provides that the Commonwealth Parliament "may grant financial assistance to any State on such terms and conditions as it thinks fit". One result of this has been that the Commonwealth has been able to make grants to the States on terms so specific as to amount to the virtual takeover of particular fields of competence. For instance, although the Constitution gives the Commonwealth no express power over education, by means of "tied grants" it has in fact become paramount in the field of tertiary education. (Of course any State has the option not to accept the grants and their associated conditions, but this would leave it with a very impoverished tertiary education sector relative to other States.) In like manner, the Commonwealth has become dominant in the field of public hospitals, and a major player in the field of roads and other major infrastructure. The Commonwealth has also come to monopolize income tax. Once the advantages of this form of taxation had come to be recognized, both the Commonwealth and the States levied their own income taxes. However, during World War II, the Commonwealth government decided to take over the collection of income taxes, and to return a share of the proceeds to the States via the grants mechanism. It did this by passing a series of Acts which levied income tax at a rate which was roughly equivalent, in each State, to the amount previously levied by both the Commonwealth and that State (though in fact uniform throughout the country); the Commonwealth would then give back to each State, via a section 96 grant, roughly its former share of the proceeds, provided the State did not itself levy an income tax in that year. In the circumstances, it would have been political suicide for any State to attempt to levy its own income tax. This arrangement was twice challenged by the States in the High Court, and twice upheld6,7, in part using the reasoning discussed above that Commonwealth powers (in this case, with respect to "taxation") should be read broadly, and that the Commonwealth's motivation for passing any particular legislation is irrelevant. The arrangement survives to this day. On the other front, the States are also at the mercy of the High Court's definition of an "excise duty" (which, it will be recalled, the States are not permitted to levy). The High Court has long stated the definition in terms such as "an inland tax on a step in production, manufacture, sale or distribution of goods". However, it does not include a mere fee for a licence to carry on a particular business or profession. Accordingly, the States had for a long time levied, with the compliance of the High Court, "business franchise fees" on retailers of, especially, liquor and tobacco products; these "franchise fees" were mostly calculated according to the value of the retailer's sales in some specific preceding period (rather than on the value of goods currently being sold). Although these might reasonably look like excise duties thinly disguised, a series of High Court precedents had effectively "quarantined" such fees from disallowance in the areas of liquor and tobacco retailing, as well as distribution of petroleum products. In 1997, by a bare majority, the High Court decided that this area of doctrinal quarantine was incoherent with the rest of the law relating to excise duties, and removed it8. The immediate result was the loss of some $5 billion (Australian) in the annual revenues of the States and Territories. In 1999 the Commonwealth Parliament passed legislation introducing a new broad-based Federal indirect tax, the Goods and Services Tax; the revenue from this tax was to go entirely to the States and Territories, in exchange for their abolishing a range of other indirect taxes. By this stage, the financial dependence of the States on the Commonwealth had become almost complete. New areas of competence Almost fortuitously, the development of various technologies during the twentieth century also added to the power of the centre. The Constitution gave the Commonwealth Parliament power over "postal, telegraphic, telephonic, and other like services". As radio, television, satellite, internet, cable and optic fibre technologies became available, these were subsumed under this description, and therefore placed under Federal power, with relatively little controversy. A greater struggle attended the Commonwealth's eventual pre-eminence in the field of aviation, but the result was the same. The Commonwealth's regulation of this area is based on its power over international and interstate trade and commerce. It does not therefore extend, prime facie, to purely intrastate aviation. But because a purely intrastate aviation industry is no longer economically feasible, and because separate State regulation of any such industry might pose safety concerns in an environment dominated by international and interstate aviation (and therefore may be "inconsistent" with such regulation in the sense described above), the result has been to leave regulation of aviation virtually entirely in the hands of the Commonwealth. Another example concerns intellectual property. Although the Constitution gave the Commonwealth Parliament power over "copyrights, patents of inventions and designs, and trade marks", the enormous growth of electronic media content has given this power a much wider scope than could possibly have been envisaged at Federation. New powers Four constitutional amendments have expressly enlarged the Commonwealth's powers. Amendments passed in 1910 and 1928 allowed the Commonwealth to take over and manage State debts. An amendment passed in 1967 gave the Commonwealth power over Aboriginal affairs, which has had a significant effect particularly in the pastoral and central regions of Australia. But most significantly in terms of the growth of Commonwealth powers and functions, an amendment passed in 1946 gave the Commonwealth power to provide a wide range of social services such as unemployment and sickness benefits, maternity allowances, child endowment, and medical and dental services. This has developed into the largest area of Commonwealth expenditure apart from defence; together with the grants power already discussed, it is the basis for the Medicare scheme of universal health insurance. After the High Court had decided that the Commonwealth's power over "foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth" did not extend to control over the incorporation itself of such entities9, and after a co-operative Federal-State scheme to overcome this limitation was also rejected10, the States were finally willing to take a step they had long been reluctant to take, namely to "refer" a significant matter (i.e. power over incorporation) to the Commonwealth Parliament. In this way, in 2001, the Federal Parliament's power over corporations law became complete, subject to the theoretical possibility of one or more States withdrawing their referral. The external affairs power The Constitution gives the Commonwealth Parliament power over "external affairs". Originally this power had little content, because Australia's foreign relations were managed by the United Kingdom. But as Australia gained in independence and international personality, so did the potential scope of this power. The High Court has held that the power covers the regulation of conduct that takes place outside Australia: in particular, it was held sufficient to criminalize as war crimes, on the part of persons who by then were Australian citizens resident in Australia, certain conduct that took place in Europe during World War II11. (Note that the Commonwealth has no general criminal jurisdiction.) The power has also been held to extend to the implementation of international treaties, even if the subject matter of the treaty is otherwise not within Commonwealth power. For instance, the High Court has upheld Commonwealth legislation forbidding the Tasmanian government from proceeding with a dam that would have submerged an area of Tasmanian government-owned land that had been declared a World Heritage Area under the World Heritage Convention to which Australia is a party12. (Land use is otherwise a State responsibility.) More recently, the external affairs power has been used to remove the States' power to criminalize male homosexual activity, following an adverse report on Tasmanian provisions to that effect by the Human Rights Committee established under the International Covenant on Civil and Political Rights, to which Australia is a party. Rather than challenge the resulting Commonwealth Human Rights (Sexual Conduct) Act of 1994, the Tasmanian Parliament repealed the legislation in question. (Again, the criminal law generally, and regulation of sexual conduct specifically, is otherwise a State matter.) Although it would appear that there is an open-ended potential for the Commonwealth to encroach on areas of traditional State competence through the external affairs power, to date it has been used with some discretion, if only because the use of the power in this way inevitably excites considerable political controversy. Protection of rights Although express protections for human and civil rights in the Constitution are scant, and have mostly been read down, some protections have been created by the High Court through its jurisprudence on the separation of powers and through its findings of rights implied by the text and structure of the constitutional document. Express rights As mentioned, there are three rights which the Constitution guarantees against the Commonwealth - religious freedom, trial by jury, and "just terms" compensation. (A referendum proposal to amend the Constitution to clarify these rights and to make them good also against the States was defeated in 1988.) As will be seen, guaranteed access to the High Court can itself amount to an important right. And the guarantee of free trade and commerce was for a time interpreted as something like an individual right. Freedom of religion The Constitution states that the Commonwealth "shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth" (section 116). The prohibition on establishing any religion has had nothing like the impact that the corresponding ban on making a law "respecting an establishment of religion" in the First Amendment to the United States Constitution has had in that country. The High Court, in rejecting a challenge to Federal funding of church schools13, seemed to take the view that nothing less than an explicit establishment of a State Church as the official religion of the Commonwealth would come within the terms of the prohibition. "Just terms" compensation The Constitution gives the Commonwealth power "with respect to ... the acquisition of property on just terms" (section 51(xxxi)). By contrast, the Fifth Amendment to the United States Constitution contains a prohibition: "nor shall private property be taken ... without just compensation". The differences between acquisition and taking, and between terms and compensation, combined with the fact that the Australian provision is expressed as a positive grant of power coupled with a limitation, have been read so as to weaken the Australian guarantee relative to the American one. The use of the term "acquisition" has been interpreted so as to require that the Commonwealth (or some other party for a Commonwealth purpose) actually acquire possessory or proprietory rights over the property in question, or at least some benefit: the mere extinguishment of a person's proprietary rights by the Commonwealth (or a prohibition on effectively exercising them) is insufficient to amount to an acquisition12. And "just terms" has been taken to mean something less than "just compensation"; in particular, it does not necessarily require payment to the owner of the value of the property when it was compulsorily acquired14. Trial by jury The constitutional guarantee that a trial on indictment for a Federal offence must be by jury (section 80) has been rendered virtually worthless, because the High Court has decided that it is only applicable to a trial which proceeds formally by way of indictment, and it is completely in Parliament's discretion to decide which offences are triable on indictment and which are not. In effect, it has been reduced to the tautology "The trial of offences which the Parliament has declared must be by jury must be by jury". Powerful dissents to the effect that the section must be given some substantive meaning (e.g. that the trial of offences of some specific degree of gravity must be by jury) have not prevailed14. On the other hand, where Parliament has prescribed jury trial, the Court has been willing to impose some content on that notion. In particular, it has insisted that conviction by a jury for a Federal offence must be by the unanimous agreement of the jurors - a majority verdict will not suffice15. Access to the High Court To a very large extent, the Constitution leaves it to Parliament to determine both the High Court's original jurisdiction (section 76), and the exceptions to, and conditions on, its power to hear appeals (section 73). However, the Constitution grants the Court some original jurisdiction directly, without the possibility of Parliamentary limitation (section 75). This includes matters in which "a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". In recent years, the Parliament has all but eliminated the possibility of appeal against many decisions in the area of migration, especially in regard to applications for refugee status. However, since the Parliament is not constitutionally able to limit or abolish access to the High Court for the purpose of applying for one of these "constitutional writs", such applications have become a major means of challenging migration decisions. In fact these applications now constitute the bulk of the Court's work. Freedom from economic regulation? The constitutional requirement that "trade, commerce, and intercourse amongst the States ... shall be absolutely free" (section 92) was for a considerable time interpreted as a guarantee of some degree of freedom from government regulation. A notable example of this line of jurisprudence was the High Court's disallowance of a Commonwealth Act which had the aim of nationalizing the banking industry16. Finally, however, in a (rare) unanimous 1988 decision which was notable also for its willingness to use the transcripts of the Convention debates as an aid to interpretation, the Court decided that what the section prohibited, in relation to interstate trade and commerce, were only "discriminatory burdens of a protectionist kind"17. That is, the section did no more than guarantee "free trade" (in the conventional sense) among the States. But in relation to "intercourse" (i.e. personal movement between States), the Court suggested that the scope of the guarantee would be much wider, and may even, in relation to some forms of such intercourse, be truly absolute. Implied rights Since the 1990s the High Court has discovered rights which are said to be implied by the very structure and textual form of the Constitution. Chief amongst these is an implied right to freedom of communication on political matters. In addition, some protections of civil liberties have been the result of the High Court's zealous attempts to safeguard the independence of, and confidence in, the Federal judiciary. Freedom of political communication A pair of cases decided in 1992 established a new implied right to freedom of communication on political matters. The first case concerned a Federal provision criminalizing the "bringing into disrepute" of members of an industrial relations tribunal, and a prosecution under that provision of a person who had published a newspaper article repeatedly describing such members as "corrupt" and "compliant"18. The second case concerned a Federal attempt to ban political advertising on radio and television during election periods and to strictly control it at other times, via a system of "free time" entitlements19. In both cases, the majority of the High Court reasoned that, since the Constitution required direct election of members of the Federal Parliament, and since moreover the Ministers of State were required to be or swiftly become members of that Parliament, the result was that "representative democracy is constitutionally entrenched". That being so, freedom of public discussion of political and economic matters is essential to allow the people to make their political judgments so as to exercise their right to vote effectively. Furthermore, since "public affairs and political discussion are indivisible", it is impossible to limit this necessary freedom to purely Federal issues: it applies also to issues which might be the preserve of the State or local levels of government. Therefore, there is implied in the Constitution a guarantee of freedom of communication on all political matters. The Court stressed that this freedom is not absolute, but the result in both cases was that the relevant Federal legislation was struck down. In the latter case, some strong dissents to the effect that limiting expenditure on political advertising in the electronic media might actually enhance representative democracy did not prevail. Both these cases concerned the validity of Federal legislation. But two years later, the Court extended the implied guarantee into the area of private law, by holding that it also applied to limit the statutory and common law of defamation. A former chairman of a Commonwealth Parliamentary Committee on Migration claimed to have been defamed by a newspaper which had published a letter accusing him of bias, in his official capacity, towards people of his own ethnic background20. By trial, it was conceded that the accusation was false. However the Court accepted a "constitutional defence" which was said (by three Justices) to operate when otherwise defamatory statements concerning the fitness of a public official to hold office were published without knowledge of, or recklessness as to, their falsity, and when publication was reasonable in the circumstances. This case, however, and a series of following cases, failed to produce a clear statement of the operative principle which commanded the support of a majority of the Court. But in 1997 (in a case which, curiously, involved the alleged defamation of a former Prime Minister of New Zealand21) a unanimous Court did state the operative principle. It rejected the "constitutional defence" of the migration-bias case just discussed, and instead expanded the scope of "qualified privilege", requiring the defendant to have actively taken reasonable steps to verify the accuracy of the published material, and also, in most circumstances, to have given the defamed person an opportunity to respond. On the other hand, the Court made it clear that the qualified privilege may extend to discussion concerning the United Nations and other countries, even where there is no direct nexus with the exercise of political choice in Australia. The constitutional guarantee of freedom of political communication is, prima facie, far more restricted than the generalized guarantee of freedom of speech and of the press in the First Amendment to the United States Constitution. But it remains to be seen whether a suitable expansion of the notion of "political communication" may not lead, in time, to a similar result. In the migration-bias case, some of the Justices, while being careful to quarantine "commercial speech without political content", seemed to imply that the scope of "political speech" may nevertheless be very broad indeed. Right to due process? As mentioned above, the fact that the Constitution prescribes a system of "responsible", or parliamentary, government means that there can be no meaningful separation of the legislative and executive powers, despite their distinct textual separation in the Constitution. However, the same consideration does not militate against a separation of the judicial power from the other two, and in fact the High Court has come to insist on this with some force. It has also held that the separation of the judicial power implies that a body exercising that power must do so in a manner that is consistent with traditional notions of what constitutes judicial process. The result may be a limited constitutional guarantee of due process. The judicial power of the Commonwealth is vested, in Chapter III of the Constitution, in the High Court and such other courts as the Parliament creates or invests with Federal jurisdiction (section 71). In Australian constitutional jargon, such courts are called "Chapter III courts". The members of Chapter III courts can only be removed by the Governor-General on an address from both Houses of Parliament on the ground of proved misbehaviour or incapacity, and otherwise hold office until the age of 70 (section 72). (Judicial office was originally for life; the age limit was introduced by a referendum in 1977.) In separate cases in 191522 and 191823, the High Court held that "judicial power" (essentially, the power of interpretation of the law and enforcement of decisions) could not be invested in anything other than a Chapter III court, and specifically, in anything other than a body whose members have life tenure. Conversely, in the Boilermakers' Case of 195624, the Court held that Chapter III courts could not be invested with anything other than judicial power. (By this decision, the system of industrial arbitration that had been in place for 30 years, and which involved judges of the Conciliation and Arbitration Court acting in both a judicial and an administrative capacity, was overturned.) To some extent the rigour of this doctrine was softened by the Court's subsequent acceptance that judges could, constitutionally, be assigned functions in their personal capacity as judges rather than as members of a Chapter III court. But this raised the question of which such functions were compatible with the simultaneous holding of Federal judicial office. The answers offered by the Court have been controversial and have involved some very fine distinctions: for instance, it has held that a power to authorize telephone interceptions is compatible25, while a power to make recommendations concerning the protection of land which might be of heritage significance to Aboriginals is not compatible26. The most striking application (and extension) of this "incompatibility" doctrine, however, has involved the Supreme Court of the State of New South Wales. (Recall that in the Australian model of federalism, the Parliament may invest State courts with Federal jurisdiction: this "autochthonous expedient", in the words of High Court Justice Sir Owen Dixon, was essentially an economy measure in a country of small population. It has been extensively used.) This rather extraordinary case27 concerned a criminal law passed by the New South Parliament and directed at a single named individual (somewhat in the manner of a Bill of attainder). The individual was a prisoner (under State law) whose sentence was about to expire but who was alleged to have made threats against the safety of various persons, to be carried out when released. The State Parliament enacted a law, applying only to him, which authorized the Supreme Court of New South Wales to make "preventive detention orders" for periods up to six months, with the possibility of renewal. The orders were to be made if the Court was satisfied, "on the balance of probabilities", that the person to whom the Act applied was "more likely than not to commit a serious act of violence". It is clear that, had the Federal Parliament passed such an Act, it would be found invalid, as being in effect a legislative judgment, and so in violation of the constitutional separation of the judicial power. However, the High Court found that the separation of powers was not a feature of the New South Wales constitution, and so the State Act was not invalid on that ground. The Act was found invalid, however, on the ground that, since the Supreme Court of New South Wales had been invested with Federal jurisdiction, it must not be required to perform a function which is "incompatible" with the exercise of the judicial power of the Commonwealth. To that extent, the States are not free to legislate as they please with respect to their own courts. And a requirement to order the "preventive detention" of someone who has not been charged with any criminal offence was found "incompatible" with the exercise of Federal judicial power. In this rather circuitous manner, the High Court has found a limited constitutional guarantee of due process. Conclusion This article has focused on only two, albeit important, areas of Australian constitutional law: the expansion of Federal power at the expense of the States, and the constitutional protection of rights. These two areas are of interest both in themselves and when compared to developments in other Federal systems. As to the expansion of Federal power, it is probably true that the end result has been similar to that achieved in other Federal systems, though with differences of degree - in particular, the States of Australia have ended up with far less financial and legal independence than those of the United States. But the particular constitutional provisions and doctrines which have contributed to this end have been quite different in many particulars. As to the constitutional protection of rights, Australia's position is unique, in being the only industrialized Federal state (and almost the only industrialized state) without a substantial, constitutionally entrenched, Bill of Rights. Despite this, human and civil rights (at least as regards citizens, and with some qualifications in practice, if not in theory, for the indigenous population) are probably as well protected in Australia as in any other country. This may be evidence (along with the examples of countries such as the United Kingdom and New Zealand) that constitutional protection of rights is ultimately less important than the existence of widespread latitudinarian attitudes. It remains to be seen whether this will continue to be true in an international climate dominated by the fear of terrorism, and if not, whether the High Court's cautious development of a jurisprudence of implied rights will be sufficient to meet the need. Footnotes Use your browser's Back button to return to the place of reference. Note: All cases cited are decisions of the High Court of Australia. "CLR" stands for the Commonwealth Law Reports, "ALR" for the Australian Law Reports. Each case also has a link to the full text online at the Australian Legal Information Institute (AustLII). 1Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 AustLII
2Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 AustLII
3Ex parte McLean (1930) 43 CLR 472 AustLII
4Wenn v Attorney-General (Victoria) (1948) 77 CLR 84 AustLII
5Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 AustLII
6South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 AustLII
7Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 AustLII
8Ngo Ngo Ha v New South Wales (1997) 146 ALR 355 AustLII
9New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 AustLII
10Re Wakim; Ex parte McNally (1999) 163 ALR 270 AustLII
11Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 AustLII
12Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 AustLII
13Attorney-General (Victoria); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 AustLII
14Kingswell v The Queen (1985) 159 CLR 264 AustLII
15Cheatle v The Queen (1993) 177 CLR 541 AustLII
16Bank of NSW v Commonwealth (Bank Nationalization Case) (1948) 76 CLR 1 AustLII
17Cole v Whitfield (1988) 165 CLR 360 AustLII
18Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 AustLII
19Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 AustLII
20Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 AustLII
21Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 AustLII
22New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 AustLII
23Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 AustLII
24R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254 AustLII
25Grollo v Palmer (1995) 184 CLR 348 AustLII
26Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island Case) (1996) 138 ALR 220 AustLII
27Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577 AustLII
References - Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed., Federation Press, Annandale NSW, 2002)
- John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths, Sydney, 1901 2002)
- Leslie Zines, The High Court and the Constitution (4th ed., Butterworths, Sydney, 1997)
External links Constitutional law of Australia
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