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Australian
Law
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shape
This page offers an outline of the national and state
Constitutions, statute law and common law.
It covers -
introduction
Australia's constitutional frameworks reflect the nation's
basis as a federation rather than a unitary state, its
UK heritage (including the significance of common law
and progressive disentanglement from the imperial embrace)
and the influence of constitutional law in other nations
(in particular the model provided by the US federal constitution).
Overall, constitutional law in Australia encompasses -
- formal
constitutions at the national and state levels (eg the
Commonwealth Constitution 1901 and the Victorian state
Constitution Act 1975)
- Australian
and overseas statutes regarding constitutional matters
(eg the UK Statute of Westminster Act 1931
and Commonwealth Australia Act 1986)
- court
decisions that interpret the Constitutions and statutes,
and that provide the basis for the ongoing development
of common law.
The
following pages discuss the emergence of the national
Constitution and its evolution over the past century,
before considering particular government responsibilities
at the national and state/territory levels and highlighting
major constitutional decisions by Australian courts. Other
parts of this site consider specific areas such as privacy
in more detail.
statute and common law
Both the national and state Constitutions are broad, concerned
with overall responsibilities and with lawmaking mechanisms
rather than supplying an exhaustive code of civil and
criminal law. Powers identified in the national Constitution
are thus given effect through -
- statute
law, ie enactments passed by the national legislature
(variously known as the Commonwealth Parliament, Australian
Parliament and Federal Parliament)
- delegated
legislation ('ordinances', 'statutory rules' or 'regulations')
that are an administrative convenience authorised by
and implementing statute law
- common
law, ie decisions by courts interpreting those statutes
on the basis of precedent provided by earlier courts,
guidance about the intention of the legislative drafter
(which might be extrinsic or intrinsic to the particular
statute) and reference to the Constitution.
Common
law remains of significance across Australia in both civil
and criminal law.
In the absence of a justiciable Bill of Rights - one that
is constitutionally binding rather than merely aspirational
- judicial interpretation to elicit rights (such as an
implied right of political communication) through a positive
reading of the Constitution is also important in addressing
community concerns about human
rights and restraining an executive equipped with
tools unenvisaged iby the federalists of the 1890s.
the national Constitution
The Australian Constitution - An Act to constitute
the Commonwealth of Australia (63 & 64 Victoria
- Chapter 12) - is a 1900 enactment of the UK Parliament,
one that as discussed later in this profile ensconces
a hereditary (and Episcopalian) monarch as both Australian
head of state and source of the executive power.
It comprises -
-
Preamble
- The Constitution
-
Chapter
I - The Parliament (sections 1 to 60)
- Part
I - General (s 1 to s 6)
-
Part II - The Senate (s 7 to s 23)
-
Part III - The House of Representatives (s 24 to
s 40)
-
Part IV - Both Houses of the Parliament (s 41 to
s 50)
-
Part V - Powers of the Parliament (s 51 to s 60)
- Chapter
II - The Executive Government (s 61 to s 70)
-
Chapter
III - The Judicature (s 71 to s 80)
-
Chapter
IV - Finance and Trade (s 81 to s 105A)
-
Chapter
V - The States (s 106 to s 120)
-
Chapter
VI - New States (s 121 to s 124)
-
Chapter
VII - Miscellaneous (s 125 to s 127)
-
Chapter
VIII - Alteration of the Constitution (s 128)
referenda and constitutional change
As the following page notes, the compromises that resulted
in establishment of the 1901 national Constitution embodied
anxieties about the 'working class' (or about cities versus
'the bush') and about the influence of smaller states
such as Tasmania. Some compromises have inhibited explicit
reworking of the Constitution, which involves national
referenda under Chapter VIII. Arguably the Constitution
has been freed, on occasion, from its fin de siecle
cage by intergovernmental agreements (notably during periods
of military and economic crisis) and by interpretation
on the part of the High Court.
Federal constitutional referenda have been held on nineteen
occasions (regarding an aggregate 44 discrete amendments).
Only eight of those 44 proposals have been carried -
-
Senate Elections (12 December 1906) - minor alterations
concerning Senate elections and terms of Senators
-
State Debts (13 April 1910) - allowed Commonwealth takeover
of State debts
-
State Debts (17 November 1928) - formalised the position
of the Loan Council
-
Social Services (28 September 1946) - gave the Commonwealth
power to provide certain social services
-
Aborigines (27 May 1967) - gave the Commonwealth power
to make laws for Aboriginal people resident in the States
and to include all Aboriginal people in the national
census
-
Casual Vacancies (21 May 1977) - aimed at ensuring that
a replacement Senator should be from the same party
as the departing Senator
-
Territory Votes (21 May 1977) - gave residents of the
Australian Capital Territory and the Northern Territory
the right to vote in constitutional referendums
-
Retirement of Judges (21 May 1977) - provided for a
retirement age for all federal judges.
state constitutions
Much activity in Australia occurs in the sphere of state/territory
law rather than Commonwealth law and, as discussed in
later pages of this profile, many services are delivered
by the individual state/territory governments rather than
by Canberra.
The Australia states have discrete constitutions, legislatures,
executives and courts.
Those constitutions in principle impose fewer restraints
on the executive than that of the national Constitution.
They also do not feature the restrictions that inhibit
ready amendment of the national Constitution.
They include -
-
Constitution Act 1902 (NSW) | here
- Constitution
of Queensland 2001 (Qld) | here
- Constitution
Act 1934 (SA) | here
- Constitution
Act 1934 (Tas) | here
- Constitution
Act 1975 (Victoria) | here
- Constitution
Act 1889 (WA) | here
The
following Commonwealth Acts serve as constitutions for
the two major Territories, discussed later
in this profile -
- Australian
Capital Territory (Self-Government) Act 1988 |
here
- Northern
Territory (Self-Government) Act 1978 | here
conventions
Key constitutional disagreements at the national and state
levels have turned on observance or breach of convention,
ie uncodified traditional practice in matters such as
taking or seeking advice,
appointment of judges
or replacement senators,
calling of elections
and behaviour within parliament.
Some breaches have simply established a new convention
(or resulted in codification). Others have gained a tactical
advantage but in the long term are seen as a regrettable
abuse of unwritten rules.
studies
Orientations regarding of the national Constitution include
Bede Harris' superb A New Constitution for Australia
(London: Cavendish 2002) and crisp Essential
Constitutional Law (London: Cavendish 2004), Leslie
Zines' The High Court & the Constitution
(Sydney: Butterworths 1997) and Constitutional Change
in the Commonwealth (Cambridge: Cambridge Uni Press
1991), Reflections on the Australian Constitution
(Leichhardt: Federation Press 2003) edited by Robert French,
Geoffrey Lyndell & Cheryl Saunders, Australian
Constitutional Landmarks (Cambridge: Cambridge Uni
Press 2003) edited by HP Lee & George Winterton and
Australian Constitutional Law & Theory - Commentary
& Materials (Leichhardt: Federation Press 2006)
by Tony Blackshield & George Williams.
The salient work on the state constitutions is Gerard
Carney's The Constitutional Systems of the Australian
States and Territories (Cambridge: Cambridge Uni
Press 2006). It is supplemented by Greg Taylor's The
Constitution of Victoria (Leichhardt: Federation
Press 2006) and State Constitutional Landmarks
(Leichhardt: Federation Press 2006) edited by George Winterton.
Other points of entry to the literature on Australian
constitutional law are highlighted in the preceding page
of this profile and - on a thematic basis - in the following
pages.
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