(p. 1095)
Index
A
adjudication techniques, 535–6
administrative law see judicial review
developments in migration law 703–4
future developments 721–3
impact of reforms in 1970s and 1980s 701–3
irrationality and unreasonableness 719–21
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
admiralty and maritime law
appellate jurisdiction
State Courts of Appeal 453,
659
‘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
B
bicameralism
C
caretaker conventions 225–6
citizenship
‘constitutional citizenship’ 350–1
constitutional interpretation 349–51
constitutional reform 355–6
First peoples
access to entitlements of citizenship 30,
38–9,
42
views at time of federation 87
jus sanguinis principle 207
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
determining validity of co-operative arrangements 822–5
interpretation by High Court 874–7
scope for action under Australian Constitution 815–21
comity between Australian courts 781–2
common law
constitutional interpretation 960–1
federal jurisdiction 895–6
High Court development of Australian common law 453
legislative adoption 200–1
prerogative powers and rights 201–2
principles of interpretation 203–4
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
comparative constitutional law
constitutionalism
Legal constitutionalism 358
Political constitutionalism 358,
361
Common law constitutionalism 191–2
development of Australian constitutional law 272–3,
exposition of Constitution 268–72
‘political questions’ 515–9,
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
impact of Australian court system and High Court’s rulings 139–42
‘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(xxxviii) 128–9
constitutional implications
political communication 956–8
representative government 994
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
protection of political rights 370–2
political constitutionalism 358,
361
relationship with common law 191–2
construction and interpretation
applicable rule of law 175–6
constitutional implications
political communication 956–8
representative government 994
state legislative power subject to constitutional implications 110
interpretation of money provisions
financial assistance 791–2
legality principle
as unwritten constitutional rule 231–2
‘common law constitutionalism’ 376–7
relationship with legitimacy 323–37
protection of political rights 370–2
property rights
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
‘reserved powers’ doctrine 788–90
role of common law
principles of construction 203–4
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
due process
separation of powers 933–6
essential features
independence and impartiality 663–8
procedural fairness 668–9
fair trial
as aspect of legality 1074
informing constitutional implications 233
procedural fairness 668–9
as a rights-related implication 915
history
relationship with Crown 646–51
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
relationship with Governor-General 116–17
D
defamation
Constitutional implications 159–61
relationship with freedom of political communication 917–18,
960–1
delegation
ministerial responsibility 599,
615
departmental secretaries 601–2
due process
fair trial
as aspect of legality 1074
informing constitutional implications 233
procedural fairness 668–9
as a rights-related implication 915
federal guarantee 936–42
adjustment of separation principle 936
executive and legislative powers 940–2
separation of powers 933–6
federal judicial power 935–6
E
economic union
Constitutional provisions 834–6
historical drivers
emergence of national economy 837
mobilization during war 836–7
sections 51(ii) and 99 840–3
(p. 1099)
relationship with globalization
‘external affairs’ in section 51(xxix) 850
proliferation international influences 850–2
executive government
international relations 5
key actors
Departmental secretaries 601–2
Ministers
allocation of executive responsibility 595–8
role of constitutional conventions 214–16
scope and application of conventions
caretaker conventions 225–6
exercise of Governor-General’s powers 221–3
ministerial responsibility 223–5
role of conventions after 1975 227–9
executive power
control and co-ordination
constitutional significance 615–16
inherent executive power
appropriation and spending 625,
801
relationship with judicial power 681,
782–3
F
fair trial, right to
as aspect of legality 1074
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
voting rights
Roach v Electoral Commissioner 1004–09
federal principle 856
Constitutional provisions 859–63
High Court interpretation 871–7
federalism
appointment of High Court justices 461–2
co-operative federalism 808–9
determining validity of co-operative arrangements 822–5
interpretation by High Court 874–7
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
economic union
Constitutional provisions 834–6
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
historical perspectives 651–3
impact of reform in 1970’s and 1980’s 701–3
State Supreme Courts 657–9
federation
contemporary debates 80–1
First peoples
applicable law imposed by settlers 63–9
Assimilation’ policies 30
constitutional reform
‘Aborigines’ referendum in 1967 48–51
contemporary debates 51–3
legal basis for colonization 28
political participation 42–5
proposals for ‘native courts’ 75–6
recognition
Expert Panel on Constitutional Recognition 32
relations between first peoples and colonists 56–7
rights and freedoms 37–40
freedom of expression
political communication
‘burden’ on political communication defined 966–70
constitutional implication 956–8
‘effective burden’ defined 970–1
limitations on freedom 971–7
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
retention of powers after referendum 227
H
High Court of Australia
appointment of justices
distribution among States 461–2
by Governor-General in Council 461
political affiliations 462–3
comparison to US Supreme Court 450–1
control of own docket 457–8
Court of Disputed Returns 467–8
criticisms of jurisprudence 144–6
giving effect to judicial decisions 181
judicial tenure and remuneration 465
jurisdiction
Commonwealth matters 173–4
method
analysis and adjudication 534–9
parties
participation of interveners 551–3
procedure
commencement of proceedings and pleadings 543–4
remittal to federal court 544–5
review of executive power 470
review of legislative power 468–9
status as apex court 452–4
House of Representatives
composition and structure 749–52
human rights
international law
international human rights law 438–44
implied constitutional protections 141
I
independence
Australia Acts 1986 110–2
constitutional provisions
constitutional amendment 100
giving effect to independence 108–9
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
inherent executive power
appropriation and spending 625,
801
live issue in State sphere, a 641
intergovernmental agreements
constitutional provisions 834–6
International Court of Justice (ICJ) 437
acceptance of jurisdiction 434
litigation involving Australia
Japanese whaling case 2014 436
Nuclear Test cases 1973 434–5
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 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
international institution-building
J
judicial power see also jurisdiction
review of executive power 776–7
separation of judicial power
development of underlying principles 675–8
implicit constitutional recognition 672–3
relationship with legislative and executive powers 741–3,
782–3
judicial reasoning
accepted methods
analysis of precedent 478–9
non-legal reasoning 481–2
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
‘legalism’
High Court’s preference for 144,
956
non-legal reasoning 481–2
‘political questions’ doctrine 525–7
primacy of text
purpose and context 475–6
textual indeterminacy 125
judicial review
administrative law
future developments 721–3
irrationality and unreasonableness 719–21
law/merits distinction 707–8
legislative curtailment of judicial review 709–16
rejection of deference 708–9
protection of due process
Communist Party Case 932–3
review of executive power 470
review of legislative power 466–9
jurisdiction
challenges to jurisdiction over Indigenous people 69–73,
75–6
entrenched supervisory jurisdiction 777–9
courts 898
High Court of Australia
lower federal courts 655–6
State Supreme Courts 657–9
control of own docket 457–8
Court of Disputed Returns 468
in Commonwealth matters 173–4
matters
under sections 76(i) and (ii) 891–2
jurisdictional error as benchmark concept 704–5
litigation before ICJ 434
origins, scope, and purposes of Section 75(v) 698–9
justiciability
High Court’s supervisory jurisdiction 511–15
intergovernmental agreements 524
parliamentary privileges 519–22
‘political questions’ doctrine
K
Kable doctrine
federal jurisdiction 901–2
implied due process at State level 943–5
L
‘legalism’
High Court’s preference for 144,
956
legislative power
adoption of common law 200–1
Australia Acts 1986
legal and political impacts 111–12
termination of residual links 110
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
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
validity of legislation 466–7
impact of ‘referendum in 1967 49–50
implied limitations 773–6
comparative constitutional law 265
judicial review
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
nature of State legislative power 771–3
taxing powers
‘non-interference’ principle 796
uniform tax scheme 1942 793–4
local government
State constitutions 306–7
M
ministerial responsibility
control and delegation 599,
615
implicit in Constitution 123–4
scope and application of conventions 219,
223–5
Ministers
allocation of executive responsibility 595–8
control and co-ordination 607–9
money
appropriation and spending 625–8
Commonwealth spending powers 801–5
control of public finances 609–13
co-operative federalism 817–19
economic union
negative economic union 836–43
positive economic union 843–9
theoretical concepts 831–6
federal interpretation of money provisions
financial assistance 791–2
impact on constitutional evolution 136
intergovernmental Commonwealth grants 798–800
intergovernmental public borrowing 797
legislative power
limits on legislative authority 861–2
political donations 972–3
reciprocal responsibility 864–5
‘reserved powers’ doctrine 788–90
State control of finance 285–6
tax powers
challenge to the State Grants Act 796–7
‘non-interference’ principle 796
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
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
freedom of intercourse among States 409,
411
law imposed by settlers 63–9
reception of English common law 194–6
State constitution
establishment in 19th century 360–1
executive structure 286–8
indigenous recognition 306
origins of current constitutional order 279
non-discrimination
appointment of High Court justices
distribution among States 461–2
political affiliations 462–3
Commonwealth of Australia Constitution Act 1900 157
First peoples
Aboriginal people as a “race” 51
constitutional guarantees 39–41
Expert Panel on Constitutional Recognition 32
legal protections regarding religion 40
realization of socio-economic rights 38
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
future constitutional changes 309–10
O
P
parliamentary privileges
High Court jurisdiction 469
Parliaments
bicameralism
resolution of deadlocks 283–4
responsible government at the State level 10
use of delegated legislation 328
composition and structure of federal institutions
House of Representatives 749–52
development of separate colonial constitutions 81
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
independence and interdependence 743–4
representative government
provisions in Constitution 567–8
responsible government
impact of adopted practices 577–80
provisions in Constitution 574–7
unwritten constitutional rules 217
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
incivility and insult 974–7
politics, money, and ‘enhancement regulation’ 972–3
representative and responsible government 917–18
political participation
composition and structure of federal institutions
House of Representatives 749–52
constitutional evolution 131–3
Court of Disputed Returns 467–8
First peoples
National Congress of Australia’s First Peoples 45
independence after Imperial Conferences 108
principle of legality 1089
legislative power over federal elections
concerns over group voting tickets 999–1000
power over federal elections
relevance to rule of law 170–1
representative government 566–7
direct effects on rights 915–17
High Court interventions 571–3
provisions in Constitution 567–8
responsible government
direct effects on rights 915–17
indirect effect on rights 917–18
right to vote
Roach v Electoral Commissioner 1004–09
‘political questions’ doctrine
principle of legality
relationship with legitimacy 323–37
unwritten constitutional rules 231–2
privileges
property rights
central interpretive issues
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
protection offered by section 51(xxxi) 40
problem of regulatory expropriations 1020–29
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
executive structure 286–8
indigenous recognition 306
origins of current constitutional order 279–80
R
race
dated provisions of Constitution 8
proposed referendum to expunge constitutional references 1089
(p. 1108)
reciprocal responsibility
interpretation by High Court 874–7
provisions in Constitution 865–6
‘Reconciliation’ 30–1
referendumsadoption of Constitution 472
colonial Enabling Acts 11–12
democratic credentials of popular sovereignty 317–23
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
free exercise
interpretation of section 116 1045–50
funding of chaplaincy services 148–9
principle of legality 1073
protection for first peoples 40
provisions in Constitution
history and context of section 116 1035–36
representative government 566–7
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
‘the other Australian sentiment’ 388–91
future constitutional changes 308–9
impact of monarchical Constitution 381–7
opposition to independence 101
‘reserved powers’ doctrine 788–90
responsible government
colonial governments in mid-nineteenth century 763–4
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
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
brevity of Constitution text 126–7
Constitutional provisions
civil and political rights 913–14
due process
debate during Constitutional Convention 930–1
implied due process at State level 942–7
implied federal guarantee 936–42
judicial review function 931–3
separation of powers 933–6
establishment of Commonwealth Constitution in 1900 367–70
expansion of Chapter III 372–3
fair trial
buttressing by Constitution 1078
constitutional implications 233
due process guarantee 930–1
rights-related implications 915
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
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
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
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
non-discrimination
Commonwealth of Australia Constitution Act 1900 157
freedom of intercourse among States 410–11
privileges and immunities conferred by citizenship 1057–61
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
constitutional evolution 131–3
Court of Disputed Returns 467–8
independence after Imperial Conferences 108
relevance to rule of law 170–1
property rights
common law protection 195
central interpretive issues 1014–29
two purposes of section 51(xxxi) 1029–32
protection of political rights 370–2
religion
funding of chaplaincy services 148–9
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
constitutional implications 914–15
separation of powers 921–5
rule of law
assumption upon which the Constitution framed 1086
changes to generally applicable rules
compliance with judicial decisions
generally applicable rules 175–7
giving effect to judicial decisions 181
reflection of ‘legal spirit’ 188–9
relevant features of Constitution
establishment of federal system 171
responsible government 172
system of representative government 170–1
S
Senate
mechanisms for resolving deadlocks 283–4
responsible government 10
relationship to federalism 565
separation of powers
administrative bodies 776
executive government
constitutional framework 628–31
inherent executive power 632–40
independence and impartiality of judiciary 667–8
judiciary
development of underlying principles 675–8
protection of individual rights 684–9
legislative power
appropriation and spending 625–8
constitutional framework 620–2
protection of due process
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
executive structure 286–8
indigenous recognition 306
origins of current constitutional order 279
unwritten constitutional rules 217
sovereignty
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
Indigenous legal systems 33–4
impact of globalization 37
importance of co-operative federalism 814
independence of new Australian Commonwealth 90–1
plurality of laws on the settled continent 74
ultimate sovereignty to amend the Constitution 192–4
State constitutions
colonial constitutions in 19th century 360–2
contents
executive structure 286–8
future changes
new States in the federation 309–10
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
reform models
abolition of the Queensland Legislative Council in 1922 305
indigenous recognition 306
status
Australia Acts 1986 295–6
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
executive structure 286–8
indigenous recognition 306
origins of current constitutional order 279
taxing powers
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
terra nullius doctrine 35,
47,
57
treaties
domestic implementation 248–50
effect on Constitutional interpretation 250–3
effect in domestic law 241–7
effect on legislative interpretation 254–9
High Court jurisdiction 454
omitted from Constitution 237–8
positive influence on economic union 850–1
significance of Mabo case 77
tribunals
impact of reform in 1970s and 1980s 701–2
U
unity
common national identity 382
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
prohibition of discrimination 1057
restrictive view of economic union 835
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
constitutional implications 233–4
practices acquiring status of conventions 216–20
relationship with common law 231–3
V
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
executive structure 286–8
indigenous recognition 306
origins of current constitutional order 279
W
Western Australia
continuing difficulties with federation 94
State constitution
executive structure 286–8
indigenous recognition 306
origins of current constitutional order 279–80
