Commonwealth Parliament

Commonwealth Constitution

Imperial legislationAn Act to constitute the

Commonwealth of Australia [9th July 1900]

63&64 Victoria, Chapter 12Short title:Commonwealth of

Australia Constitution Act

Table of Provisions Preamble: The Constitution Chapter I. The Parliament (s. 1 to 60)

– Part I - General (s. 1 to 6) – Part II - The Senate (s. 7 to 23) – Part III - The House of Representatives (s. 24 to 40) – Part IV - Both Houses of the Parliament (s. 41 to 50) – Part V - Powers of the Parliament (s. 51 to 60)

Chapter II. The Executive Government (s. 61 to 70) Chapter III. The Judicature (s. 71 to 80) Chapter IV. Finance and Trade (s. 81 to 105A) Chapter V. The States (s. 106 to 120) Chapter VI. New States (s. 121 to 124) Chapter VII. Miscellaneous (s. 125 to 127) Chapter VIII. Alteration of the Constitution (s. 128) The Schedule

Source: Australian Parliament House website

s1 Constitution

1.The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth."

Three Elements

Queen/Governor-GeneralSenate/Upper HouseHouse of Representatives/Lower

House

Queen/Governor-General

2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

1975 letter from Queen’s secretary

“As we understand the…Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen in Australia.”

Express powers of the Governor-General

• S5: the power to summon, prorogue and dissolve Parliament;

• S56: the power to recommend the passage of money bills;

• S57: the power to dissolve both houses of Parliament in a deadlock;

• S58: the power to assent to legislation; and • S61: the executive power of the Commonwealth is

vested in the Queen, and is exercisable by the Governor – General.

• S64: The Governor- General appoints Ministers • S68: Commander in Chief of the military forces• S72: appoints judges of federal courts

Limits on the power of the G-G

s2: “subject to this Constitution”– Constitutional monarchy

Responsible government– the Queen (and her delegate) do not exercise

their powers without ministerial advice. – Ministers are in turn responsible to

Parliament for their advice and the functioning of the departments they supervise.

Royal Assent58. When a proposed law passed by both

Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure. The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.

Assent has become an automatic, inevitable response.

Discretionary power of G-G

Prerogative or reserve powersss 61 and 51(xxxix)Includes:

– power to appoint a Prime Minister in a hung Parliament

– power to dismiss a Prime Minister where the House of Representatives has passed a motion of “no confidence” in the Prime Minister; and

– The power to refuse to dissolve the House of Representatives contrary to Ministerial advice.

Part II – The Senate7. The Senate shall be composed of senators for

each State, directly chosen by the people of the State, voting, … as one electorate. …Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators. The senators shall be chosen for a term of six years,…

Victoria v The Commonwealth (1975) 134 CLR 81 (at 121 –2) per Barwick CJ

“It is evident from the terms of the Constitution that the Senate was intended to represent the States, parts of the Commonwealth, as distinct from the House of Representatives which represents the electors throughout Australia. It is often said that the Senate has, in this respect, failed its purpose. This may be so, due partly to the party system and to the nature of the electoral system; but even if that assertion be true it does not detract from the constitutional position that it was intended that proposed laws could be considered by the Senate from a different point of view from that which the House of Representatives may have taken. The Senate is not a mere house of review; rather it is a house which may examine a proposed law from a standpoint different from that which the House of Representatives may take.”

Term of office

s13: 6 year termss24: nexus provisionTerritorial Senators - 3 year termsContinuous bodyTerm commences 1 July following

election

Territorial Senators

Territorial Senators in a States House?

122. The Parliament may make laws for the government of any territory … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

First Territorial Senators Case

Senate (Representation of Territories) Act 1973 (Cth)

Western Australia v Commonwealth (1975) 134 CLR 201

Mason, McTiernan, Jacobs and Murphy JJ – legislation valid

Barwick CJ, Gibbs and Stephen JJ - invalid

Part III - House of Representatives24. The House of Representatives shall be

composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. The number of members chosen in the several States shall be in proportion to the respective members of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:

(i.) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of senators:

(ii.) The number of members to be chosen in each State shall be determined by dividing the number of people of the State, as shown by the latest statistics of the Commonwealth, by the quota; …But notwithstanding anything in this section, five members at least shall be chosen in each Original State.

Legislative Power

s51“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to …”

39 ennummerated powersPowers may be exclusive or

concurrent

Exclusive/concurrent powers

An exclusive power is one which can only be exercised by one government (federal or state); a concurrent power is one in respect of which both state and federal governments may legislate.

State/Federal powers

107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

Exclusive powers:

s52- Federal power to regulate federal property and public service;

s90 – Federal power to make laws imposing duties of customs and excise and granting bounties;

ss111,112 – Federal power to make laws with respect to Commonwealth territories.

Powers withdrawn from States

s115 – Federal power with respect to coinage

s114 – Federal power to raise and maintain military forces for the defence of the Commonwealth

Matters, by their nature, exclusive

s51(iv) – borrowing moneys51(xix) – naturalisations51(xxiv) – service and execution of

processs51(xxv) – recognition of State laws and

recordss51(xxx) – relations with Pacific islandss51(xxxii) – control of railways for

defence purposess51(xxxiii) – acquisition of State railwayss51(xxxviii) – exercise of Imperial powers51(xxxix) – incidental power

Concurrent powers include:

51(i) – trade and commerce51(ii) – taxation, apart from

customs and excise51(vi) – defence51(vii) – lighthouses51(viii) – Astronomical and

meteorological observations51(ix) - Quarantine

Concurrent powers:

51(x) – Fisheries51(xi) – census and statistics51(xiii) – banking51(xiv) – insurance51(xv) – weights and measures51(xvi) – Bills of exchange51(xvii) – Bankruptcy51(xviii) – Copyright etc

Concurrent powers:

51(xix) – aliens51(xx) – corporations51(xxi) – marriage51(xxii) – divorce and matrimonial

causes51(xxiii) – pensions etc51(xxviii) – influx of criminalsetc

Residual State powers

Everything not mentioned is in the residual power of the States.

This includes– Agriculture– Courts– Factories and shops– Health– Land

Residual State powers:

MiningMunicipal institutionsPolicePrisonsEducationTrade and commerce within a Stateetc

Referral of State powers

S51(xxxvii)– Corporations Act 2001 (Cth)

Cf Application scheme– Competition and Consumer Act 2010

(Cth)

State/Federal Powers

Residual State Power

Concurrent Powers

Exclusive Federal Power

Conflict State/Federal

109. 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.

Inconsistency

Must be inconsistent lawsInconsistency may be:

–Direct – both laws can’t be obeyed; or

- one law takes away a right or privilege conferred by the other

- Indirect – Commonwealth has ‘covered the field’

‘Cover the field’

Clyde Engineering v Cowburn (1926) 37 CLR 466

– Direct inconsistency, and covered the field

Viskauskas v Niland (1982) 153 CLR 280

– No direct inconsistency, covered the field

University of Wollongong v Metwally (1984) 158 CLR 447

– Indirect inconsistency can be cured, but not retrospectively

Viskauskas v Niland

“There is no direct inconsistency between the Commonwealth Act and the NSW Act – it is obviously possible for a person to obey both laws by refraining from committing any act of racial discrimination. However, it is now clearly established that there may be inconsistency within s109 although it is possible to obey both the State law and the Commonwealth law. In Clyde Engineering Co. Ltd v Cowburn, Isaacs J said that “if a competent legislature expressly or impliedly evinces its intention to cover the whole field that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.”

Viskauskas v Niland

“The Commonwealth Parliament has chosen the course of itself legislating to prohibit racial discrimination, and having done so it can only fulfil the obligation cast upon it by the Convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not …admit the possibility that a State law might …detract from the efficacy of the Commonwealth law. The subject matter of the Commonwealth Act suggests that it is intended to be exhaustive and exclusive…”(291)

University of Wollongong v Metwally

“Parliament cannot exclude the operation of s109 by providing that the intention of the Parliament shall be deemed to have been different from what it actually was and that what was in truth an inconsistency shall be deemed to have not existed.” per Gibbs CJ at [9]

Brennan J:

“It is impossible to suppose that s109 could so operate as to attribute to a State law no legal force and effect in its application to acts, matters and things that occurred or existed prior to the amendment to the Commonwealth law and, after the amendment, to acknowledge that the State law had full force and effect in its application to the same acts, matters and things.” [5]

Growth of Commonwealth power

High Court is responsible for interpreting the Constitution – and the legislative powers conferred by the Constitution.

Doctrine of ‘reserved powers’ and inter-governmental immunity.

Engineers Case

The Amalgamated Society of Engineers v Adelaide Steamship Co (1920) 28 CLR 129

Engineers doctrine promotes the Commonwealth

Commonwealth powers to be read fully, and not read down to protect interests of States.

Tied grants

96. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

Federal Roads Case

Victoria v The Commonwealth (1926) 38 CLR 399

DOGS CaseAttorney-General (Vic) ex rel.

Black v The Commonwealth (1981) 146 CLR 559

Williams v Commonwealth [2012] HCA 23

at 148

With respect to the significance of s 96 in the federal structure, the following passage from the reasons of Barwick CJ in the AAP Case is in point:

"Section 96 ... has enabled the Commonwealth to intrude in point of policy and perhaps of administration into areas outside Commonwealth legislative competence. No doubt, in a real sense, the basis on which grants to the claimant States have been quantified by the Grants Commission has further expanded the effect of the use of s 96. But a grant under s 96 with its attached conditions cannot be forced upon a State: the State must accept it with its conditions. Thus, although in point of economic fact, a State on occasions may have little option, these intrusions by the Commonwealth into areas of State power which action under s 96 enables, wear consensual aspect.”

External Affairs power

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

(xxix.) External Affairs:

Tasmanian Dam case

Commonwealth v Tasmania (1983)158CLR1

4/3 decisionMason, Murphy, Brennan and Deane

JJ: Commonwealth could give effect to any international treaty obligation imposed by a bona fide international agreement or by customary law on any subject.

Deane J at 805:

“Circumstances could well exist in which a law which procured or ensured observance within Australia of the spirit of a treaty or compliance with an international recommendation or pursuit of an international objective would properly be characterised as a law with respect to external affairs, notwithstanding the absence of any potential breach of defined international obligations or of the letter of international law”

Chapter VIII. Alteration Of The Constitution.

128. This Constitution shall not be altered except in the following manner:--The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after … the proposed law shall be submitted in each State and Territory to the electors…. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes….And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent….

Growth of Federal powerConstitution:

– S128– S51(xxxvii)

Co-operation:– COAG process– Co-operative scheme– Application scheme

High Court:– Engineer’s case– S109/’cover the field’– S96– S51(xxix)