MLL 323 CONSTITUTIONAL LAW

TOPIC 1 AN INTRODUCTION TO AUSTRALIAN CONSTITUTIONALISM LECTURE GUIDE

Welcome to MLL 323 Constitutional Law. In this unit we examine both the Australian and Victorian Constitutions and the principles that inform their history, structure and operation. It is a difficult unit, a world away from the law subjects that can be mastered with a set of rules and a good memory. However, its complexity and breadth make for a course that I think is both interesting and challenging.

I like to think of Constitutional Law as the Law of Kings and the King of Laws. Our constitutional heritage is inextricably linked with that of the United Kingdom and the constitutional monarchy that was born in the aftermath of the English Civil War. That seminal event carved out the many institutions and principles that still dominate our constitutional landscape today. In this sense, Constitutional Law is the Law of Kings. In addition, the Australian Constitution is our fundamental law. It is the primary source of legal authority, the blueprint for government and the document which defines the relationship between Australians and their public institutions, all in one. For example, all legislation - whether Commonwealth, State or Territory - must be sourced to and consistent with the Australian Constitution. Similarly, the High Court now recognises that the common law must also conform to the Constitution. In this sense, the Australian Constitution is literally the King of Laws.

In order to assist students to better understand and (hopefully) enjoy Constitutional Law, I intend to post on DSO a lecture guide for each topic in the course. These guides will be posted on the weekend before each topic. Please see the weekly timetable posted on DSO to see what materials are covered in each week of lectures. The lecture guides are just that, guides. They are not a substitute for the diligent reading of cases and other assigned

materials but rather a further resource to assist in your studies.

Introduction

Before we jump headlong into the cases, it is worth taking a moment to consider what is in fact a Constitution and why do countries have one? Many consider Australias constitutional heritage rather plain and uninspiring when compared with the dramatic events that unfolded firstly in Europe and then the Americas and in more recent times in Africa and Asia. Therefore, it might be worth thinking about these fundamental questions in relation to the events that, for example, unfolded in East Timor in the lead-up to its independence in May 2002. Through the successful though tragic independence referendum (in terms of loss of life) in 1999, East Timor became a sovereign state. It would no longer be a province of Indonesia. The interim government and its many advisers then completed the drafting of a new Constitution. It drew heavily from the Constitution of Portugal and also the great constitutional traditions of the United States and other republics. Thinking about having to build a new nation from the ground up should bring into sharp relief the reasons for having a Constitution. In the case of East Timor the primary goals were to establish a political system that was democratic and stable and a legal system that was independent and corruption-free. In many respects these are the goals of any system of constitutional government and, if realised, foster an inclusive society that lives by the rule of law.

How do you involve a society in the drafting of a Constitution? What is the danger of excluding certain groups of people from that process?

George Williams has pointed out the less than inclusive process that took place during the 1890s when the Australian Constitution was drafted:

At the referendums of 1899 and 1900 the draft constitution was supported by a majority

of voters in each colony. Voting was voluntary, with only 60% of the people eligible to vote at the referendums doing so. Large sections of the community were also excluded from voting, including most women and many of Australias Aboriginal peoples Overall, only a small percentage of Australians actually cast a vote in favour of the draft constitution. In New South Wales, Queensland and Tasmania the figure was below 10%.

In contrast, after the fall of apartheid in South Africa its new Constitution of South Africa emerged after a comprehensive and exhaustive process of explanation to and consultation with its citizens.

Sources of Australian Law

It is quite humbling when one realises that the entire Australian Constitution is contained in ONE section of a British statute the Australian Constitution Act 1900 (UK)! It still remains the case in 2011. Further, it raises the rather startling issue of whether it would be still possible for the UK Parliament to still amend our Constitution! It is an accepted principle of law that a Parliament can unmake what it has made. In addition, the Brits still cling closely to the notion of parliamentary sovereignty which in essence states that the UK Parliament has the power to make or unmake any law whatsoever, irrespective of its subject matter. Presumably this would include the Australian Constitution Act 1900 (UK)?

For example, lets say in 10 years time we have another referendum on the issue of whether Australia should become a republic and again it fails. (Have a quick read of the referendum requirement in s 128 of the Australian Constitution) The Australian Government is fed up with this constitutional inertia and asks the UK Parliament to pass an Act to amend the Australian Constitution. The UK Parliament passes the relevant legislation and the Australian Government then proudly announces that Australia is no longer a constitutional monarchy but a proud and independent republic!

Are there any legal impediments to such a course of action? How is the issue of Australias sovereignty relevant? Would the wording of s 128 help or hinder the actions of the UK Parliament? Who in Australia would ultimately decide the legality or otherwise of the actions of the UK Parliament?

In addition, have a look at s 1 of the Australia Act 1986 (Cth).

Other important sources of Australian constitutional law include the State Constitution Acts, the Statute of Westminster and the Australia Acts. Although we remain a constitutional monarchy some commentators claim that the passage of the Australia Acts in 1986 marked the final severing of all legal ties with the UK. What leads them to such a conclusion? Do you agree? What was the importance of the Australia Acts for the States of Australia? Is there a difference between legal and political independence?

Important apparatus for the functioning of Australias political system is also contained in the Commonwealth Electoral Act 1918 (Cth). This Act tells us who can and cant vote in Commonwealth elections and also establishes the system for voting and the allocation and distribution of parliamentary seats. However, unlike the Australian Constitution or the Australia Acts it is not entrenched by a provision like s 128. Consequently, its provisions can be amended or abolished by ordinary parliamentary legislation.

How might a ruthless Commonwealth Government exploit this situation for its own benefit? (hint: see the definition of gerrymander) Would there be any legal or political remedy against a government that engaged in such action? (legal remedy = court action, political remedy = vote them out!)

The judicial decisions of the High Court concerning the interpretation of our Constitution are another important source of constitutional law in Australia. Indeed, Gareth Evans

stated that the High Court have in practice borne the primary responsibility for adjusting the constitution to the reality of social and economic change. If so, is the High Court then offending s 128 of the Constitution?

Fundamentals of Australian constitutionalism

The successful study of Constitutional law in no small part depends on a thorough understanding of the principles and concepts outlined in Topic 1 of the study guide from pp 5-9 and how they inform and influence our system of constitutional government. They are the principles and concepts that flesh out the bare bones of Australias constitutional structure to which we shall return again and again throughout the course.

Why does a federal system of government require a written constitution? (compare the Constitutions of Australia and the United States with the largely unwritten Constitution of the UK)

Does the fact that the Victorian Constitution fails to formally recognise a separation of powers pose any potential problems/dangers for the citizen?

The following comments by John Waugh regarding the Kennett (Victorian) Government of the 1990s may be of interest:

Over the term of the Kennett government to July 1998, parliament passed 130 acts that specifically limited the jurisdiction of the [Victorian] Supreme Court.

Interestingly enough, the relative numbers were not much different for the Bracks/Brumby Labor Governments.

What do these kinds of figures reflect? Is it always a bad thing to limit the jurisdiction of a court?

In topic 11 we will explore in greater detail the potential consequences of the State Constitutions failing to recognise a separation of powers. For example, most controversially, it permits the Victorian Parliament to exercise judicial power or vest this power in a body other than an established court.

What implications might this have for democracy, judicial independence and the protection of the rights of the citizenry?

The most British of constitutional features may well be the doctrine of responsible government. Along with a bicameral Parliament, it remains the defining characteristic of the Westminster System. Walter Bagehot called it the efficient secret. As the government of the day (the Executive) is drawn from the Parliament and through party discipline will usually control the Parliament (at least the Lower House) in theory it ensures smooth passage of the governments legislation through the Parliament. However, in Australia, the government of the day will not always control the Senate. While the responsible government equation still holds, its efficiency in the Bagehot sense is not so complete. For example, at present neither of the parties in government in Victoria and Commonwealth level controls both Houses of Parliament.

Why do think Sir Robert Menzies called responsible government the ultimate guarantee of justice and individual rights? In reality, do you think the Executive (government) is responsible to the Parliament and ultimately the people as the doctrine of responsible government (and Menzies) suggests or is it the other way around an elective dictatorship as one English judge has provocatively put it?

Our High Court, like the United States Supreme Court, has the power of judicial review. Some commentators bristle at what they perceive to be the democratic deficit inherent in the power of judicial review. The notion that seven, unelected judges have the power 6

to strike down laws that have been passed by a democratically elected Parliament that represents, at least in theory, the will of the people. For the most part, no such power exists in the UK or in France. With one exception, the House of Lords cannot invalidate primary legislation while the Constitutional Court in France does examine the constitutionality of legislation but before it has been enacted by the Parliament not after as is the case in Australia and the United States.

Why do you think the High Court has the power of judicial review? Is it undemocratic? What other options exist for scrutiny of parliamentary legislation other than judicial review?

The notions of parliamentary sovereignty and the rule of law were first developed by the great English public lawyer Albert Venn Dicey. Parliamentary Sovereignty still remains the dominant legal characteristic of the English constitutional system while the rule of law has become synonymous with democratic, stable and accountable government a fundamental organising principle (or at least goal) for most political systems.

Are the two concepts, as understood by Dicey, at odds? What do you think the rule of law has come to mean in 2011?

The overthrow of the constitutional system that occurred in Fiji in 2000 was characterised as a serious breakdown in the rule of law. The democratically elected government was taken hostage at gunpoint, the Constitution unilaterally suspended with a military administration eventually seizing power after the hostages were released. In what sense did the Fiji crisis involve a breakdown in the rule of law? What role if any do you think the Fiji courts have in such an explosive situation? Would you consider the legal and political actions of President Robert Mugabe in

Zimbabwe in the last decade to be a breakdown in the rule of law? (note: Many of the Mugabe policies have been enshrined in/authorised by parliamentary legislation)

DAN MEAGHER