This chapter considers both the foundations for, and the content of, the High Court's authority in Australia. It focuses principally on the current authority of the High Court, but with reference to some aspects of its history. The chapter first explains the Court's constitutional status as Australia's apex court, performing the role of both constitutional court and ultimate appellate court for both federal and State matters. It next outlines the institutional features of the Court that underpin its authority, in particular its composition and independence. The chapter then examines the Court's authority to enforce constitutional limits through judicial review of legislative action. Lastly, the chapter considers the Court's authority to review executive action and the constitutional foundation for that role.
This chapter examines the uneasy relationship between the Australian Constitution and membership of the Australian polity. Unlike some constitutions, the Australian Constitution contains no mention of ‘citizenship’. Instead, formal membership of the Australian community is determined by reference to the constitutional categories of ‘subjects of the Queen’ and ‘people of the Commonwealth’ and through the legislative definition of citizenship under federal law. These peculiar features of the Australian context reflect what is generally assumed to be the modest role of the Constitution in determining national identity and the fact that Australia was not an independent nation at the time of the Constitution's drafting. Developments in legislation, constitutional jurisprudence, and mooted constitutional amendments all point towards a greater role for the Constitution in determining Australian ‘citizenship’ in the future.
This chapter considers the meaning of the term ‘common law’ and its application in the context of Australian federalism. It discusses some views on common law vis-à-vis the Constitution, as well as the history of the development of common law in Australia. The common law of Australia includes the choice of law rules. The common law choice of law rules select which of the competing State or Territory laws is the lex causae. They apply either directly in the court of the forum, or where federal jurisdiction is exercised, as ‘picked up’ by operation of section 80 of the Judiciary Act 1903 (Cth). A further significant aspect of the development of the common law of Australia is its illustration of the temporal character of the common law.
Jeffrey Goldsworthy and Lisa Burton Crawford
This chapter explains how constitutionalism developed and how it currently operates in Australia. It first explains the historical developments whereby Australia combined elements of the British and American models of constitutionalism, which employ legal and political constitutionalism in very different ways. The chapter then describes three main stages in the development of Australian constitutionalism. The first was the establishment in the nineteenth century of colonial Constitutions, which employed a predominantly political form of constitutionalism and, upon federation in 1900, became the Constitutions of the six Australian States. The second was the establishment of the Commonwealth Constitution in 1900, which necessarily blended elements of political and legal constitutionalism. The third consists of more recent innovations by the High Court that have expanded the role of legal constitutionalism. Each development has built on its predecessor, resulting in a distinctive combination of political and legal constitutionalism.
This chapter examines the design of Australia's federal system. Two historical propositions affirmed in the preamble to the Constitution are central to this conception. These are, firstly, that the Constitution was predicated on an agreement between the people of the Australian colonies and, secondly, that the intention was to unite the colonies into an indissoluble federal commonwealth. The Australian Constitution does not rest upon the consent of an already consolidated people; nor does it create a unitary state. It is the result of an agreement among several mutually independent political communities and it establishes a federal system of government that preserves their continuing existence as self-governing polities.
This chapter explores how guarantees of due process in Australia are implemented. It first examines the unsuccessful attempt in the 1890s to incorporate an express due process clause in the Australian Constitution. The chapter next looks at the High Court's historical recognition that Chapter III of the Constitution incorporates judicial review of the validity of legislative and executive action and a separation of federal judicial power. It then examines how, in recent decades, the Court has distilled a group of due process guarantees binding on the Commonwealth and the states from this institutional framework. Finally, the chapter considers key issues in future development of Australian due process law.
This chapter considers the extent to which the Australian Constitution protects the right of individuals to equality and non-discrimination. It is concerned solely with the extent to which the Constitution forbids the passing of laws that discriminate against individuals or that subject individuals who are the same in relevant respects to different treatment. As the chapter shows, the Constitution neither expressly nor impliedly contains a guarantee of general legal equality for individuals. It does, however, prohibit one kind of discrimination against individuals, namely, discrimination on the ground of out-of-State residence. Furthermore, there are some respects in which the Constitution expressly contemplates inequality, including race-based inequality—a singular fact that has been taken to defeat the notion that the Constitution contains an implied guarantee of equality.
This chapter is about Australian constitutional evolution. It concerns the meaning, the processes, and the possibilities of constitutional change in Australia. ‘Constitutional evolution’ here means the transformation of the Australian constitutional system from its original form in 1901 into different forms until it reached the form we know today, by an aggregation of changes over time. These changes have mostly occurred in the constitutional space for which the written Constitution originally provided, with the result that, from 1901 until now, the Constitution has provided the framework for the Australian federation. The Constitution, as enacted by the British Parliament and as formally amended by popular referenda, has been critical to this evolutionary process; but the changes in the constitutional system, though consistent with the written text, have not been required by it.
This chapter traces the way in which freedom of expression is recognized in Australian constitutional law. The absence of a provision protecting freedom of expression is just one aspect of a widely noted feature in the Australian Constitution, yet the full picture is considerably more complicated. Freedom of expression has long had a foothold in Australian constitutional law. In 1992, the High Court of Australia developed a doctrine known as ‘the freedom of political communication’ which, to some extent, operates like a guarantee or right of freedom of expression. The chapter considers the extent to which the freedom of political communication resembles an explicit and generally expressed right of freedom.
This chapter identifies the origins, content, and operation of federal jurisdiction in Australia. In the United States the creation of federal jurisdiction was the necessary concomitant of the establishment of the judicial arm of federal government. The same could not be said of the conditions for Australian federalism. Federalism Australian-style did not require a federal system of courts. Further complicating the issue was the ‘autochthonous expedient’: the facility provided to Parliament for the use of State courts to exercise federal jurisdiction. Hence the chapter also seeks to suggest that the discordance between the concept and purpose of federal jurisdiction left the High Court with the challenging task of conceptualizing ‘judicial federalism’. In executing that task, High Court jurisprudence has presented differing conceptions of the place of State courts within the federal judicial system.
This chapter discusses the federation of Australia, which has been described as ‘the greatest political achievement in Australian history’. In fact, this achievement transcended intercolonial rivalries, disparate fiscal policies, and other inequalities and distinctions between the Australian colonies, and personal and political antagonisms. The embodiment of federation, the Australian Constitution, a ‘political instrument’, furthermore combines constitutional monarchy, separate legislative, executive, and judicial powers as in the United States of America, and responsible parliamentary government modelled on the Westminster system and democracy. Federation required national sentiment and a national vision. It also required a willingness to accept compromise to further that national vision, tempered by widespread acceptance of continued dependence on Britain.
This chapter sets out some key political ideas that underpin the Australian Constitution. Australia has a somewhat distinctive constitutional culture. It has a rigid, written Constitution of long standing and that is frequently litigated. As a result, there is a flourishing constitutional jurisprudence. However, with a handful of exceptions, the Constitution, and ideas around constitutional values or ideals, play relatively little role in Australian public and political debate. This has generated a sense of the Constitution itself as a prosaic, even arid, legal text. This chapter presents a counterpoint to such perceptions. It also shows how a technical document that has operated within, and to some extent strengthened, a legalistic constitutional jurisprudence, can be understood to be a source of affirmative constitutional value to which that jurisprudence gives genuine expression.
This chapter examines the notion of ‘independence’ in the Australian context. In Australia, there was no definitive act in creating an independent nation, as in other countries. There is no ‘Independence Day’ to celebrate, as no one knows exactly when the balance tipped from being a dependency of the British Crown or a self-governing Dominion, to an independent sovereign nation. Independence was administered in small doses—sometimes sought, sometimes imposed, and often neglected. The chapter discusses the ways in which Australia had attained independence depending on what definition of the term is used—when Australia attained its separate Crown, when it began exercising independence, when it ceased being dependent on the British Crown, and so on. In addition, the chapter explores the ways in which Australia does not quite meet the definition of independence, as it still retains some links to its colonial past.
Adrienne Stone and Cheryl Saunders
This introductory chapter places the Australian Constitution in a comparative perspective. It does so both to throw light on Australian constitutional law and practice and to identify ways in which Australian constitutionalism contributes to the present store of global constitutional experience. The chapter then contrasts features of the Australian constitutional system that are broadly familiar in constitutional democracies elsewhere which exhibit characteristics of Australian constitutional law that are more distinctive. A reflection on the ways in which the Australian constitutional system currently is grappling with change or might need to do so in the foreseeable future is also provided. In addition, this chapter explains the seven broad concepts around which the chapters in this volume have been organized. Finally, the chapter briefly touches on aspects of the methodology by which this volume was brought together and expresses thanks to the people who have contributed to its publication.
This chapter analyses the Australian judicature as a whole, as well as the individual courts that comprise it. It begins with a survey of the development of the common law conception of a court. The chapter next identifies four characteristics that have emerged as central to the definition of a court. These are: decisional independence and impartiality, the provision of procedural fairness, the dispensation of justice in open court, and the provision of reasons for decisions. Here, the evolution of the modern conception of a court reveals an apparent paradox from which the modern institution derives its strength, purpose, and identity: a sovereign's courts are independent of that sovereign.
This chapter examines the notion of ‘justiciability’ in Australia. In this chapter, justiciability is understood as referring to issues considered appropriate and capable of being subject to judicial resolution and relief. The primary function of courts is to resolve legal disputes. Constitutional law questions, of their nature, tend to overlap with political, social, moral, and economic issues. Disputes in these areas may raise issues which courts are not well-suited to resolve. Further, there may be a concern about whether a case presents a real controversy for determination which is in dispute between the parties before the court, which is appropriately raised by those parties, and/or which is capable of being quelled in whole or part by judicial remedy. Such issues are linked in the Australian constitutional context to the interwoven requirements that there be a ‘matter’ before the court capable of determination by exercise of the ‘judicial power of the Commonwealth’.
This chapter identifies and explores the relationship between the common law principle of legality and the Australian Constitution. To this end, the chapter considers in some detail how the courts might use the Constitution to provide a stronger normative justification for the principle, better fix the content of the rights it operates to protect, and inform how it is applied. The analysis undertaken is based on the view that much of the recent (and likely future) development of the principle in Australia—indeed the principles of statutory interpretation more generally—may well be constitutionally driven. To do so, the present status of the principle of legality is outlined in this chapter. Its evolution in Australian law and the key points of doctrinal controversy and methodological disagreement are also traced and identified.
This chapter focuses on the national institution variously called the ‘federal Parliament’, the ‘Australian Parliament’, or the ‘Commonwealth Parliament’. It highlights three constitutional meta-principles as having significance for the institution of Parliament. These three—federalism, representative government, and responsible government—have been particularly influential in determining the institutional trajectory of the Parliament. Hence, this chapter uses them to organize a discussion of key structural features. The latter two meta-principles are further taken as useful lenses through which to examine notable innovations, challenges, and constraints that contribute to an understanding of the institution. This chapter thus reveals that Parliament itself has had a significant and ongoing influence upon the structures through which representative government gains expression, even while the High Court has intervened periodically to enforce perceived baseline requirements.
This article begins with discussions of what constitutional law is and general views on the place of constitutional law. It then considers the role of constitutional law versus ordinary law, and the political process that makes and executes it in certain specific and contested areas. In particular, it discusses rights protection and the structure of government; private law and the conduct of private individuals; and entitlements to state protection and socio-economic benefits.
John M. Williams
This chapter discusses and evaluates the various approaches to republicanism in Australia. It first briefly outlines Australia's current monarchical Constitution, highlighting the textual ties to the monarchy and those aspects that confirm Australia's status as something less than constitutionally independent. The chapter then deals with three faces of Australian republicanism. It explores a number of manifestations of Australian independence that have shaped the narrative that has simultaneously advanced and retarded the republican debate. Afterward, this chapter explores the technical steps and alterations that have emerged with the republican debate in the late 1990s. It highlights key influences on this debate and in particular the quest for a ‘minimalist’ republic. Finally, the chapter briefly investigates the future direction of Australian republicanism.