Chapter 1Basic Concepts

OutlineNation StateInstitutions of GovernmentConstitutional LawConstitutionsUnited KingdomLegal CompetenceSources of LawConstitutional PrinciplesDemocracyFederalismResponsible GovernmentConstitutional DevelopmentAustralian ConstitutionAustralian Government

The powers that be are ordained by God.1

OutlineThis book explains the basic principles of constitutional law. The underlyingacademic philosophy is this: before a student acquires a deep understanding of asubject it is first necessary to understand the basics. This book enables studentsto wade carefully into the shallow end of the constitutional law, before divinginto deep end with the major textbooks. To do this the book states the basicprinciples in a clear and simple way, while at the same time as it places thoseprinciples in a coherent overall framework for the subject. The purpose of thischapter is to provide a foundation by discussing some fundamental concepts thata reader needs to understand to make sense, or to make better sense, of the restof this book.

There are general advantages in knowing the constitutional structure of Australiawhen working in the legal system. There are very specific advantages for legalresearch and this chapter points to some of these advantages at appropriateplaces.

1. St Paul Romans 13:1

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Nation StateThe primary importance of a constitution is that it contains the rules ofgovernance for a nation state. In some cases a nation state may have politicalentities inside it. For example, Australia, has states, and Canada, has provinces;these political entities have their own constitution that blend into the overallconstitution.

Whatever difficulties there may be in defining a nation state there is generallylittle difficulty in identifying a nation state. Few would doubt thattechnologically advanced and politically stable countries such as France,Germany, the United States, the United Kingdom, Australia and New Zealandare nations states. Difficulties about identification arise in two situations. First,there can be difficulties in the situation where a ‘group’ of people have somecontrol over territory but have neither the institutions of, nor indeed the notionof, government, as we now understand this term.2 Second, there may bedifficulties in identifying a nation state where there has been some majorupheaval such as conquest, civil war or revolution. Where the population hasbeen subjugated, no matter how brutal or illegitimate the regime, recognition asa nation by the international community will follow. But in the interim theremay be doubts about its status.

Institutions of GovernmentIntroduction

Institutions of government in a nation state make law and make law work. Themajor institutions are the head of state, legislatures, courts and executivegovernment. It is an advantage to understand these institutions in a generic orabstract way before becoming acquainted with the details of the actualinstitution of government in Great Britain and Australia.

1. Types of InstitutionsAs stated, there are four main institutions of state. These are the head of state,the legislature, the judiciary (courts) and the executive government. It isimportant to understand two things about institutions – their composition inbroad terms and their powers including the sources of their power as well as thenature and extent of the powers conferred by those sources.

Head of StateThe head of state can comprise either one or two offices. If there are two officesthe usual arrangement is that one head is substantially or totally the titular,

2. This problem gave rise to the fictional extension of the doctrine of terra nullius toAustralia - see Chapter 3.

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formal and ceremonial head of state while the other is the political head andexercises real power. Conventionally, though, in these cases the titular head isregarded as ‘the’ head of state. If there is one office then that office holderperforms both functions – they exercise titular, formal and ceremonial, as wellas political functions.

In a republic the office is typically entitled ‘President.’ If there are two heads ofstate the political office holder is the Prime Minister or perhaps Premier. In amonarchy the head of state is the King or Queen, in Britain referred to in itsconstitutional capacity as the Crown. In former colonies such as Australia andNew Zealand a Governor General represents the British Crown. Where acountry is a federation such as Australia with a central Commonwealthgovernment and regional government called State there is a Governor torepresent the Crown in each State.3

In a Westminster system the political head of state is a prime minister (and inthe Australian states the office is that of premier). While the Crown technicallyholds much executive and legislative power, it exercises this power only advice;it exercises executive power on the political advice of the prime minister or apremier, it exercises its legislative power on advice from the legislature and itsjudicial power on advice from the Judicial Committee of the Privy Council.

Obviously a head of state has whatever power the constitution confers on them.From a practical perspective, the most relevant powers will consist of powerssuch as the following:1. Power to assent to a bill of the legislature.2. Power to appoint judges and administrative officials.3. Power to make decisions that have some legal effect. In some cases exerciseof this power involves authorising some instrument.

LegislatureLegislatures make law. In Westminster systems the legislature is referred to asparliament. Other names are used in other systems. ‘Congress’ is a popular namebeing used in India and the United States.

There are several reasons that knowledge of the legislature can come to theforeground in working with law or in legal research. First, it is necessary toknow the composition of the legislature that makes a statute in order to knowhow and where to look for sources of debate on a particular statute. These

3. There are two tables in the Appendix that relate to the Crown – Table 1 Kings andQueens and their Regnal Years and Table 2 Abbreviations for Kings and Queens.

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debates are relevant because they throw light on the policy behind the statute.Policy is a directly relevant source of argument for interpreting a statute. It isalso relevant to social or historical research. Second, a country that has a federalsystem of government has multiple legislatures. This has consequences whenone is trying to locate a statute on a topic. It is then necessary to know whichlegislature has, or which legislatures have, power to pass the statute. Obviouslyit is necessary to be familiar with this to know where to look for the statute orstatutes.

CourtsCourts decide cases. Cases involve three types of dispute involving issues oflaw, fact and discretion. To the extent that a case decides issues of fact ordiscretion it is rarely of interest to lawyers. By contrast cases that decide issuesof law are of major importance because they constitute a precedent and becausethey may contain references to other useful information. For example, they arelikely to refer to other cases on the same topic or to secondary sources on thetopic.

In most common law jurisdictions courts are arranged in a hierarchy so that alitigant who loses a case at one level in the hierarchy may appeal to a court atthe next level. Typically this hierarchy has three levels – a court of first instance,an intermediate appellate court and a final appellate court. These can be set outin a table showing three matters:1. The three levels.2. The names given to the major courts at these three levels in the Australiajurisdictions. 3. The names given to these courts in other select jurisdictions by way ofillustration of the diversity of names given to courts.Here is the table:

Court NamesFinal Appellate CourtAustralia High Court of Australia4 Other Jurisdictions Supreme Court,5 House of Lords,6 Privy Council7 Intermediate Appellate CourtAustralia Court of Appeal,8 Court of Criminal Appeal,9 Full Court10

Other Jurisdictions Appellate Court11

4. This is the final appellate court in Australia.5. This is the final appellate court in the United States, India, and the United Kingdom. 6. This was the final appellate court in the United Kingdom until 2009, when the SupremeCourt Act 2009 (UK) replaced it with the Supreme Court of the United Kingdom.7. This is the final appellate court in the United Kingdom for British colonies and someformer colonies.

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Courts of First InstanceAustralia Supreme Court,12 Federal Court13

Other Jurisdictions High Court of Justice14

Diagram 1.1 Hierarchy of Courts

Typically a case that decides a question of law will be decided initially in a courtof first instance. It may then be taken on appeal to the intermediate appeal courtand possibly after that to the final appellate court. This has a major consequencefor research. If one finds a case on a question of law it is necessary to be awarethat there may be reports of the case at one, two or three of these levels, so aresearcher must check for this. Clearly, some knowledge of the court systemmakes it easier for a researcher to search for this information.

ExecutiveThere are two major reasons that some knowledge of the structure, compositionand powers of executive government comes to the foreground. First, a personmay wish to make a freedom of information (FOI) application, that is, they askto see or obtain copies of documents which are in the possession of theexecutive government. To do this, it is necessary to know which official holdsthe documents. Second, there is the case of the discretion. Sometimes a statutewill authorise the exercise of a discretion by an official in the executive arm ofgovernment. For several reasons it may be necessary to know the identity of thisofficial, and their place or role in the executive government:1. Prior to the exercise of the discretion, a client may wish to have discussionand negotiation with the official, or make submissions about its exercise, in anendeavour to have the discretion exercised in their favour. 2. If the discretion is exercised in an unfavourable manner the client may seekreasons for the decision and contemplate review of the discretion.

8. This label is used in many jurisdictions including the United Kingdom, New SouthWales, Queensland and Victoria.9. Sometimes the Appellate Court or Court of Appeal handles criminal cases. Where itdoes not do so, there may be a separate Court of Criminal Appeal.10. In Australia, for example, it is common for an appellate court to be constituted by a fullbench of the court of first instance. Several judges (often three, but it can be five andoccasionally seven) are selected to constitute the full bench for the purpose of exercisingjurisdiction of the court to hear appeals from itself. Constituted this way, the court is said tosit in banco, ie on a bench (to accommodate the several judges).11. This, for example, is the name of the appellate court in Illinois.12. This is the name of the major courts of first instance including all of the Australianstates.13. Australia and the United States, both federations, have a federal court which hearsdisputes involving laws passed by the central government in the federation, the United Statesgovernment and the Commonwealth (of Australia) government.14. This is the name of the major court of first instance in the United Kingdom.

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2. Provisions for InstitutionsProvisions regulating the four institutions – namely the head of state, thelegislature, the executive and the judiciary – are conveniently described in theirlegal form by reference to five characteristics. These provisions establish theinstitutions, name them, provide for their composition, confer their powers andlay down procedures for the exercise of their powers.

Establishment ProvisionsEstablishment provisions establish the institutions of government. Under thebest drafting practice a statute creates an institution explicitly. For example s5 ofthe Federal Court of Australia Act 1976 (Cth) establishes the Federal Court ofAustralia. It says: ‘A federal court, to be known as the Federal Court ofAustralia, is created by this Act’.

An alternative means is to create an institution by oblique or implicit reference.To illustrate this, section 1 of Article I of the United States Constitution createsthe United States Congress by incidental syntax which vests legislative power inthe Congress. It provides: ‘All legislative Powers herein granted shall be vestedin a Congress of the United States, which shall consist of a Senate and House ofRepresentatives’.

Establishment provisions have an unusual quality. While most legal rules areframed as conditional statements (when certain types of facts occurconsequences follow) establishment provisions are generally unconditional.They just establish the institution in question. For this reason they are typicallybrief, being the one-liners of constitutional law.

Naming ProvisionsA statute creating an institution will typically name it. This statutory baptisminto the fold of constitution law may take either of two forms:1. Direct Conferment of Name. The statute may confer the name directly inwhat amounts to a civil baptism. In the illustration above, s5 of the FederalCourt of Australia Act 1976 (Cth) establishes the Federal Court of Australia anddeclares that is it ‘to be known as the Federal Court of Australia’. 2. Indirect Conferment of Name. The statute may not confer a name directly. Itmay do so indirectly. An example is given above with section 1 of Article I ofthe United States Constitution. As it creates the national legislature of the UnitedStates it describes it as a ‘Congress of the United States’. This is ambiguous inthat it is part name and part function. In practice, the institution is commonlyknown as the ‘United States Congress’.

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Composition ProvisionsIn bare form an establishment provision establishes an institution. But for aninstitution to function it needs to have a composition. This can be on two levels.

First, an institution may be composed of other institutions. To illustrate this,section 1 of Article I of the United States Constitution provides that the‘Congress of the United States’ shall consist of two institutions namely ‘a Senateand [a] House of Representatives’. (In truth, in some sense at least, the Presidentis also a component of Congress because the President is given a power to vetolegislation in section 7 of Article 1 of the Constitution.)

Second, an institution ultimately needs human members. Hence compositionprovisions need to identify these members. In doing so they will specify suchthings as their qualifications and disqualifications, the method and proceduresfor becoming a member,15 terms of service, and the means by which a member’sservice can be terminated. To illustrate, section 2 of Article 1 of the UnitedStates Constitution makes provisions concerning members of the House ofRepresentatives as follows: ‘The House of Representatives shall be composed ofMembers chosen every second Year by the People of the several States, and theElectors in each State shall have the Qualifications requisite for Electors of themost numerous Branch of the State Legislature’.

Provisions Conferring PowersIntroductionTwo sorts of provisions define the powers of legislatures, courts and executivegovernment. Some provisions confer power – these are here labelledauthorisations. Some provisions deny or take away power – these are herelabelled prohibitions.

AuthorisationsIn the simple case an authorisation of power is made by a provision that simplyand directly confers legislative power. For example s51 of the AustralianConstitution provides that ‘The Parliament shall have power to make laws’ onsome specified topics. Sometimes, however, the provision is not simple ordirect. For example s71 of the Australian Constitution refers to courts that ‘theParliament creates’. By this means s71 confers power to legislate to createcourts.

15. The two common means for becoming a member of a government institution areelection (often by the populace) and selection by some authority. There is a third method inthe British constitution where the office of King or Queen is filled on a hereditary basis.

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In the United States Constitution legislative power is conferred by a doublestranded operation in section 8 of Article I. First, it confers powers on theCongress in relation to a list of subjects, in most cases without specifying that itis a legislative power. These provide as follows:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay theDebts and provide for the common Defence and general Welfare of the United States; but allDuties, Imposts and Excises shall be uniform throughout the United States;To borrow money on the credit of the United States;To regulate Commerce with foreign Nations, and among the several States, and with the IndianTribes;To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptciesthroughout the United States;To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weightsand Measures;To provide for the Punishment of counterfeiting the Securities and current Coin of the UnitedStates;To establish Post Offices and Post Roads;To promote the Progress of Science and useful Arts, by securing for limited Times to Authors andInventors the exclusive Right to their respective Writings and Discoveries;To constitute Tribunals inferior to the supreme Court;To define and punish Piracies and Felonies committed on the high Seas, and Offenses against theLaw of Nations;To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures onLand and Water;To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Termthan two Years;To provide and maintain a Navy;To make Rules for the Government and Regulation of the land and naval Forces;To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrectionsand repel Invasions;To provide for organizing, arming, and disciplining the Militia, and for governing such Part ofthem as may be employed in the Service of the United States, reserving to the States respectively,the Appointment of the Officers, and the Authority of training the Militia according to thediscipline prescribed by Congress;To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding tenMiles square) as may, by Cession of particular States, and the acceptance of Congress, become theSeat of the Government of the United States, and to exercise like Authority over all Placespurchased by the Consent of the Legislature of the State in which the Same shall be, for theErection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

The second strand throws a cloak of legislative authorisation over all of thesepowers. It provides that the Congress ‘shall have Power’: ‘To make all Lawswhich shall be necessary and proper for carrying into Execution the foregoingPowers, and all other Powers vested by this Constitution in the Government ofthe United States, or in any Department or Officer thereof’. Thus it becomesclear that the Congress is authorised to make laws on these topics.

An illustration of a provision that confers jurisdiction on a court to hear cases

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comes from s75 of the Australian Constitution. It confers judicial power in theform of original jurisdiction, on the High Court. It says:

In all matters –(i)Arising under any treaty;(ii) Affecting consuls or other representatives of other countries;(iii)In which the Commonwealth, or a person suing or being sued on behalf ofthe Commonwealth, is a party;(iv) Between States, or between residents of different States, or between aState and a resident of another State;(v) In which a writ of Mandamus or prohibition or an injunction is soughtagainst an officer of the Commonwealth;the High Court shall have original jurisdiction.

ProhibitionsProhibitions are the reverse of powers – they deprive an institution of power.They forbid a legislature to legislate on certain matters, they forbid a court tohear certain types of cases or they forbid an official or institution in executivegovernment to exercise a certain power. One common reason for a constitutionto contain prohibitions is to protect human rights. Some Constitutions have acollection of such prohibitions to protect human right, the collection beinglabelled a bill of rights. A bill of rights protects these rights by denyinginstitutions of governments the powers to take action that infringe the rightsspecified in the various clauses of the bill.16

In its most direct and simple form a prohibition restrains the institution fromexercising power that would infringe a designated liberty. A classic example isthe First Amendment (or Amendment 1 in strict terminology) of the UnitedStates Constitution. It is addressed to the Congress and provides as follows:‘Congress shall make no law respecting an establishment of religion, orprohibiting the free exercise thereof; or abridging the freedom of speech, or ofthe press; or the right of the people peaceably to assemble, and to petition theGovernment for a redress of grievances’.

Sometimes a prohibition is imposed in less direct form. For example s92 of theAustralian Constitution provides that ‘trade, commerce and intercourse amongthe States whether by means of internal carriage or ocean navigation shall beabsolutely free’. This creates a prohibition by forbidding any action by anyinstitution of government (and possibly also by a citizen) that infringes thisright.16. To illustrate, the first ten amendments to the United States Constitution, formally calledAmendments 1-10 and popularly called the first to the tenth amendment are commonlyknown as the Bill of Rights because they contain prohibitions aimed at protecting rights.

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Procedural ProvisionsProcedural provisions (also called procedural or adjectival laws) determineprocedures for institutions to follow when exercising their powers. Theseprocedures can be either internal (that is for running the institution) or external(that is for the institution to use in doing its business), although externalprocedures tend to attract more attention. The consequence of not using thecorrect procedure can be that the resulting exercise of the power is invalid. Therationale for this is that power is conferred on an institution to be exercisedproperly according to procedures, not in breach of those procedures.

Procedural law, as regard to external procedures, is concerned with how rights,duties and liabilities can be enforced in the courts or before an official ortribunal. It is therefore ancillary to substantive law. Procedural law for courtsand tribunals consists of three main branches of law which are traditionallycalled procedure, pleading and evidence:1. Procedure tells a party, a court or tribunal the steps that they must take ormay take in order to bring, defend or hear an action. 2. Pleading is the part of procedure that tells a party the documents that theymust prepare, file and serve to set out the details of his or her allegation, ordefence to an allegation. 3. Evidence tells a party how they can prove their case. The law of evidencetells a party what is and is not admissible as evidence to prove facts.

Procedure, therefore, provides the rules of the contest for the parties, and for thecourt or tribunal. Procedures may be judicial or administrative, they may beoptional or mandatory. They may also be followed by, or required of, a court, atribunal, a body, an office holder or a citizen. They can be general provisions forall cases, special provisions for a particular type of case or a mixture. Usuallythe steps are in sequence or have consequences. Hence the best way to learn andunderstand procedural law is to know the sequence and the consequences.

Some procedures are considered of fundamental importance in rendering justice.For example, common law requires that any decision that can adversely affect aperson must generally be made according to the rules of natural justice. In theUnited States, Amendment 5 to the Constitution famously wraps up proceduralfairness in two simple words by requiring courts to observe and apply ‘dueprocess’. Some procedures, though, are merely forms and formalities that can bereadily met. So much is this the case that even if a party initially makes amistake they can usually rectify it.

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Sources of PowerAny constitution must logically possess some source of power. To appearlegitimate it needs at least to create an appearance that it possesses authority toimpose a system of government on citizens. Ideally there is something morethan mere illusion. Source of power, however, is more a jurisprudential questionthan a question of written law. Claims that are made for it will obviously dependon the historical, social and political circumstances in which the foundersframed the constitution.

Where there is an ancient constitution such as there is in the United Kingdomthe claim may be lost in the mists of time. In any event, the way in whichtheorists seek to articulate the claim will typically change over time. Forexample, in medieval times before the Reformation and under the influence ofthe tenets of natural law the King ruled ‘non sub homine, sed sub deo et sublege’ that is, not under some human power but under God and the law. The law,however, was not a human creation but the divine will which ordained howhumans should behave, so the law was really God’s expression of temporalauthority.

By contrast, the United States Constitution, which was formulated following asuccessful revolution against Great Britain, is simple, explicit and emphaticconcerning its source of power. It provides right up front, in the Preamble, asfollows:

We the People of the United States, in Order to form a more perfect Union, establishJustice, insure domestic Tranquility, provide for the common defence, promote the generalWelfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain andestablish this Constitution for the United States of America.

This is strong and clear. The constitution rests on secular authority. It is thecreation and the property of ‘the People of the United States’. It is they who‘ordain and establish’ the ‘Constitution for the United States of America’. It isinteresting that, as late as 1956, the United States enacted the CongressionalRecord Act 1956 (US), which instituted as the national motto the words ‘In GodWe Trust’. (These words now appear on United States currency.)

This statutory profession of faith and trust enacted in the Congressional RecordAct 1956 seemed to add a sacred claim to political authority. This sacred claimcould either support or rival the secular claim to political authority establishedby the Preamble. The practice of inserting the national motto ‘In God We Trust’on United States currency was challenged in the courts on the basis that itoffended the First Amendment, which performs several functions, the relevant

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one here being to separate church and state.17 This challenge was dismissed bythe United States Court of Appeals for the Ninth Circuit which said ‘It is quiteobvious that the national motto and the slogan on coinage and currency In GodWe Trust has nothing whatsoever to do with the establishment of religion. Its useis of patriotic or ceremonial character and bears no true resemblance to agovernmental sponsorship of a religious exercise … [I]t is excluded from FirstAmendment significance because the motto has no theological or ritualisticimpact. As stated by the Congressional report, it has ‘spiritual and psychologicalvalue’ and ‘inspirational quality’.18

Constitutional LawNature of Constitutional Law

Constitutional law is the law that establishes, (that is, constitutes), empowersand regulates institutions of government. The major institutions of governmentin a democratic system based on the United Kingdom or Westminster model, arethe Crown as the head of state, the parliament, the executive governments andthe courts. This is the basis of government in Australia,

Sources of Constitutional LawIntroductionConstitutional law consists, like other areas of law, of statutes, which inAustralia include the Commonwealth and State Constitutions, delegatedlegislation and common law. But because of its history and special nature asfundamental law, constitutional law has some sources of law not shared by otherareas of law. These are parliamentary sovereignty, the royal prerogative,conventions and the rules regulating procedures in parliament. Apart from thesesources of law there are two secondary sources of constitutional law that needsome attention, namely opinions of text writers and opinions of the ColonialSecretary.

17. Amendment 1 Freedom of Religion, Press, Expression was ratified on 15 December1791. It provides in full: ‘Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; orthe right of the people peaceably to assemble, and to petition the Government for a redress ofgrievances.’18. Aronow v United States 432 F2d 242, 243 (9th Cir 1970)

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StatutesMost prominent among the statutes in the constitution are the CommonwealthConstitution19 and State Constitutions20. There are numerous others; some of themost important in each jurisdiction are the Electoral Acts, which regulateparliamentary elections, Freedom of Information Acts, the Acts establishing andregulating courts and the Interpretation Acts.

There is an argument, backed by academic and judicial authority,21 that not allActs of parliament should be treated in the same way. Acts perform differentfunctions, eg in private law and public law, and deal with different subjects.Therefore, it is not appropriate, and ‘involves too great a degree of rigidity toplace all Acts of parliament in one single class or on the same level.’22 On thisbasis it is appropriate to treat an important constitutional statute as ‘sui generis,[and therefore] calling for principle of interpretation of its own, suitable to itscharacter as already described. This would occur without it being necessary toaccept and apply of all the presumptions that are relevant to legislation in fieldsof private law.’23 In some cases, if not many cases, this will lead to a generousinterpretation in order to avoid the ‘austerity of tabulated legalism.’24

Common LawThere are three categories of constitutional rule founded on or connected withcommon law:1. Ordinary rules of common law. Some examples are the rules for statutoryinterpretation, and the doctrines of natural justice and ultra vires, which apply toall courts and many administrative decision makers. 2. Rules for interpreting statutes. The most prominent and important of theseare the cases interpreting the power of the Commonwealth Parliament in s51 andother sections of the Commonwealth Constitution. In addition some writers treatsovereignty of parliament and the royal prerogative as part of the common law25

although they are here treated separately. 3. Rules for the operation of common law. These are the principles of ratiodecidendi, which focuses on establishing the rule for which a case is a precedent19. Constitution of Queensland 2001 (Qld), Constitution Act 1902 (NSW), Constitution Act1975 (Vic), Constitution Act 1934 (Tas), Constitution Act 1934 (SA), Constitution Act 1889(WA)20. Commonwealth of Australia Act (1900) (UK)21. Minister of Home Affairs v Fisher [1980] AC 319, Riley v Attorney General [1983] 1AC 719, W Friedmann (1948) 26 Can BR 1277, 1291, Keith (1985) 15 VULR 29, 41-4422. Minister of Home Affairs v Fisher [1980] AC 319, 32723. Minister of Home Affairs v Fisher [1980] AC 319, 32924. Minister of Home Affairs v Fisher [1980] AC 319, 32925 . SA de Smith Constitutional and Administrative Law 4th ed 1981 by H Street and RBrazier, Penguin, pp 35-36

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and the rules of stare decisis, which can require one court to follow or at leastpay good attention to prior decisions of courts.

Sovereignty of Parliament As a source of constitutional law parliamentary sovereignty is sui generis, that isspecial or unique, although it has some affinity to conventions and common law.The point is that sovereignty exists as a doctrine – it does not depend on statute,common law and delegated legislation, although it has been acknowledged anddiscussed by the courts. It depends on acceptance.

Royal Prerogative The royal prerogatives are recognised by, and in that sense a part of, commonlaw although the royal prerogative existed before common law was ever made.

Conventions Conventions are unenacted rules of constitutional practice. These are notdirectly enforceable by the courts, and for this reason they are not laws ifjudicial enforcement is considered an element of law. Conventions apply mainlyin regulating responsible government and the relationships between Ministersand the Crown.

Regulation of Procedure in ParliamentThe various rules regulating procedure in parliament are the rules and standingorders made by the Houses of Parliament themselves, rulings of the Speaker andthe practice of Parliament.

Opinions of Text WritersSometimes a court will take heed of the views of text writers. There are severalreasons for this. First, the writer may be regarded as an eminent lawyer and hisor her considered opinion therefore is worth heeding. The other two reasons aremore applicable where the textbook is old – the writer may be expressing a viewcommonly held at the time of writing, or the writer may be relying on an uncitedcase that is no longer available.

Reliance on the opinion of text writers raises three questions: first, when shouldreliance be made, second, how much reliance should be made and third, for whatpurpose should reliance be made? The answers to these questions depend on anumber of interrelated factors, of which the following are some examples.Where the point is ancient then often of necessity or general conveniencereliance may have to be made on ancient writers. Thus in Milirrpum v Nabalcoreliance was made on Blackstone’s Commentaries to determine principles

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related to acquisition of land by the Crown on colonisation.26 For similar reasonsreference has been made to text writers on questions concerning peerage,27 theroyal prerogative,28 the law of treason,29 acts of state30 or the jurisdiction ofEnglish courts in British protectorates.31 On question of privilege and practice ofthe United Kingdom Parliaments reference is made to Erskine May’s,Parliamentary Practice. Where questions arise about the practice andconventions of cabinet government, then two reasons of necessity require courtsto look at text writers and other secondary sources. First, conventions are notdirectly litigated so there is not much case law on them, hence there is need toresort to text books and commentaries. Second, the actual practices ofgovernment in this area can be known only from biographies of participants andtheir autobiographies, letters, speeches and conversations.

In Australia, even modern text writers may be quoted either to illustrate orprovide a summary of a principle, or persuasively for a point of view. One textis used authoritatively, Quick and Garran The Annotated Constitution of theAustralian Commonwealth. These authors wrote is just after federation. It is acomprehensive annotation of the Commonwealth Constitution, and it indicatessome of the rationale for the sections of the Constitution, although the passageof time may have changed both perspectives and problems. Among modernwriters Professor Geoffrey Sawer is universally regarded as pre-eminent for hisfluent style and illuminating insight.

Opinions of the Colonial SecretaryDuring the life of the British Empire it was often necessary for colonialgovernments to obtain advice from the Colonial Office on points ofconstitutional law and especially on those concerned with the relationship ofGreat Britain with her colonies. This obviously gives these opinions a cogencythat those of text writers normally do not have, because they are not onlydirected towards the solution of specific problems, but more than likely wereacted on. Moreover the mere fact of their having been acted on would often beenough to perpetuate a regard for their validity. These opinions, however, mightoften be tainted with the bias of those whose concern was more withgovernment than with laws.

26. Milirrpum v Nabalco (1971) 17 FLR 14127 . Re Parliamentary Election for Bristol South East [1964] 2 QB 25728 . Burmah Oil Co v Lord Advocate [1965] AC 7529 . Joyce v DPP [1946] AC 34730 . Nissan v Attorney General [1970] AC 17931 . Ex parte Mwenya [1960] 1 QB 241

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An interesting illustration both of this bias and of the power that the ColonialOffice could wield with these opinions, is illustrated in comments on thedoctrine of extraterritorial legislative incompetence. This doctrine said thatparliaments of a colony had only limited power to enact statutes that operatedoutside the territory of the colony: ‘It was the practice that evolved out of theseopinions which eventually influenced the courts, who followed, but did notinvent, doctrines such as that of colonial legislative territoriality. Salmond,unable to discover any satisfactory rationalisation for the doctrine, disputed itsvery existence, and regarded it as a mere will-of-the-wisp pursued by the textwriters through a handful of obscure and unsatisfactory cases in which it appearsand disappears in circumstances that render its identification and examinationextremely difficult.32 Unfortunately for his argument, the apparition hadsufficient substance to curb colonial governments in all manner of ways; andwhat was not so apparent when he wrote, but has become more obvious as therecords have become available, is that extraterritoriality as a concept wasdeveloped first, and certainly more fully, in the Colonial Office and colonialcorrespondence than it was in court decisions.’33

ConstitutionsNature of Constitutions

The term ‘constitution’ can be confusing because it has three meanings, to wit,the law regulating government, a document (typically a statute) that containssome of these rules and the system of government created by the rules.

Meaning 1. Constitution: Rules of Government‘Constitution’ has a wide meaning by which it refers to all of the laws or rulesregulating government. In this sense constitution is the same as constitutionallaw. As a matter of necessity every nation must have a constitution in this senseof the term; that is, it must have rules that regulate government.

Meaning 2. Constitution: Document with Some Rules of GovernmentConstitution is used in a narrow sense to mean a document or statute, called orlabelled a Constitution, which includes some of the rules that regulategovernment. The document is called the ‘Constitution’ because the rules itincludes are basic or important constitutional rules. Because Constitution in thissense is a proper noun it is should be spelt with an upper case ‘C.’34 This has the

32. Salmond ‘Law Quarterly Review’ of 1917, p.17,33. DP O‘Connell, A Riordan (1971) Opinions on Imperial Constitutional Law Law BookCo, p vi.34. The usage of having Constitution refer to a Constitution statute may not operate on s106of the Constitution. Each of the seven governments in the Australian federation has aConstitution. For the Commonwealth it is called just the Constitution although it is contained

Chapter 1 Basic Concepts 17

helpful consequence of distinguishing this meaning of constitution from theother two, but even without this punctuation aid, the context would usually makeclear which meaning is intended.

In fact most but not all nations have a Constitution in the sense of a documentlabelled ‘Constitution’ that contains some of those rules. Australia, in fact, has aConstitution for the Commonwealth35 and a Constitution for each of the sixstates.36 Why this is so can be understood by examining the reasons for having aConstitution.

First, there is the reason for a state to have a document embodying fundamentalrules. When a state undergoes radical changes in government due to revolution,invasion, decolonisation or simply sweeping and fundamental reorganisation, toeffect these changes it is necessary to enact them in written form. As mostnations have undergone such changes at some time their constitution includes adocument embodying the fundamental rules. To give some obvious examples,two World Wars ravaged then politically reconstituted much of Europe,revolutions have occurred in many countries including the three major powers,China, the United States of America and the USSR, and most parts of the thirdworld have been decolonised. An example of sweeping and fundamental changemade voluntarily is Australia. Until 1901 Australia was six separate Britishcolonies, each with their own government and their own Constitution. In thatyear the colonies entered a federal union to become the Commonwealth ofAustralia. The United Kingdom parliament implemented this change by enactingthe Commonwealth of Australia Constitution Act. Section 9 of this statuteenacted the Constitution for the Commonwealth (and to some extent for thefederation). It runs from s1 to s128. This means that the fully tally ofConstitutions in Australia consists of the six state Constitutions and the

in another document – it is authorised and enacted by s9 of the Commonwealth of AustraliaConstitution Act, an Act of the United Kingdom parliament passed in 1900. For each state, theConstitution, although originally authorised by Britain is now enacted in an Act of the stateparliament – for Queensland the Constitution of Queensland 2001, for New South Wales theConstitution Act 1902, for Victoria the Constitution Act 1975, for Tasmania the ConstitutionAct 1934, for South Australia the Constitution Act 1934, and for Western Australia theConstitution Act 1889.35. The United Kingdom parliament passed the Commonwealth of Australia ConstitutionAct (63 & 64 Vict c 12) has nine sections. Section 9 enacted the Constitution for theCommonwealth (and to some extent for the federation). It runs from s1 to s128.36. These are the state Constitutions – for Queensland the Constitution of Queensland2001, for New South Wales the Constitution Act 1902, for Victoria the Constitution Act 1975,for Tasmania the Constitution Act 1934, for South Australia the Constitution Act 1934, andfor Western Australia the Constitution Act 1889.

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Constitution of the Commonwealth set up by s9 of the Commonwealth ofAustralia Constitution Act.

Second, there is the reason that the document containing fundamental rules iscalled a Constitution. To understand this, first appreciate that there is no legalnecessity that a document embodying fundamental rules about government becalled a Constitution. It can be a constitution by nature but not by name. It canbe called anything that those who make it choose, but commonly this documentembodying fundamental rules is called Constitution because usage andassociation have hallowed the term. A Constitution document sets outfundamental rules of government. It then constitutes both citizen and the state,and is therefore fittingly called a Constitution. Thus history provides theopportunities for a Constitution and usage provides the name.

Meaning 3. Constitution as a System of GovernmentThis meaning of constitution derives from the first meaning wherebyconstitution means all of the rules regulating government. This meaning refers toa system of government. This entails a shift in meaning from the rules ofgovernment to the form of government created by the rules.

CommentSomething relevant to the distinction between the first and second meaning ofconstitution is a commonly made observation that certain constitutional featuresin Australia such as the office of Prime Minister or the principles of responsiblegovernment are not stated in the constitution. This assertion rests on a failure torecognise something that was explained above – while the term constitution canmean legal rules regulating government there are two versions of this meaning –(i) the complete set of rules and (ii) a document that sets out some of those rules.The complete set of rules does include the practices, customs and conventionsthat create responsible government and the office of Prime Ministers. Whilethese and other matters are omitted from the written statutory constitutions theyare emphatically part of the constitution in the wider sense of the complete set ofrules regulating government.

Functions of a ConstitutionA constitution (in the sense of the collection of rules that regulate government)will perform a number of functions as this discussion will reveal/

Establishing Institutions of GovernmentA Constitution will generally establish institutions of government such as thehead of state along with a legislature such as a parliament, courts and executivegovernment.

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Empowering Institutions of GovernmentA Constitution will confer and define the powers of institutions of governmentby telling the institutions what they can and cannot do. That is, it defines thepowers of the institutions of government, such as parliament, courts, tribunalsand officials and bodies who make up the executive government. There are twotypes of provisions, powers and prohibitions:Powers. A power confers authority on these institutions to take some action – ittells a government what it can do. Prohibitions. A prohibition denies a power to a government – it tells agovernment what it cannot do. A prohibition prohibits the exercise of a power,or prohibits the exercise of a power in certain circumstances or in a certain way.One of the common reasons for a constitution to prohibit the exercise of poweris to protect human rights. The constitution will provide that a governmentcannot exercise power in a way that interferes with human rights. A collection ofsuch provisions in a constitution is referred to as a bill of rights.

Obviously what a government can legally do derives from the operation of allpowers and all prohibitions. The net result – the grants of power less theprohibitions on those powers – constitutes the amount of power that thegovernment, or an institution of government, has.

Circumstances for Exercising PowerThe constitution may prescribe the circumstances in which a power can beexercised. For example, some powers can be exercised in specifiedcircumstances, for example in case of war, riot, emergency or need.

Procedures for Exercising PowerThe constitution may specify procedures that a body or official must observe toexercise their powers. Generally they must observe these procedures in order toexercise the power legally and effectively.

Rule of LawThe significance of these functions of constitutions derives from the rule of law.This is the basic proposition for the rule of law: government must be carried outaccording to law, and not the whim of those who rule. The law that tells agovernment what it can and cannot do is, of course, the constitution.

Classification of ConstitutionsThere are three common classifications of constitutions, namely written andunwritten, flexible and rigid, and federal and unitary.

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Written and Unwritten ConstitutionsNature of Written ConstitutionsOne classification of constitutions is written and unwritten. Written constitutionrefers not to a complete constitution in writing, but to a constitution that includesa Constitution document or statute. Unwritten constitution therefore means thatthere is no Constitution document; it does not mean that the rules are necessarilyunwritten. Both the British and the Australian constitutions include written aswell as unwritten sources. Written parts are numerous statutes and delegatedlegislation. In one sense common law is also written since it is contained inwritten judgments. In another sense it is not written in that the full text of it isnot formally enacted but harvested and gleaned from both the letter and thespirit of many judgments. Unwritten parts are practices and conventions andsome fundamental doctrines and principles such as sovereignty, the prerogativeand even precedent itself.

Readers can see from this account that the distinction between written andunwritten is ill expressed. In our context it is usually raised to contrast theUnited Kingdom whose legislative powers derive not from a Constitutiondocument but from the unenacted doctrine of parliamentary sovereignty, with aConstitution like that of the Commonwealth of Australia which catalogueswithin its four corners most of the powers and procedures of the Commonwealthparliament. Characteristics of Written ConstitutionsFrequently, at least some provisions of a written Constitution will have tworelated characteristics. Some provisions will be fundamental in that they makebasic provision for government by establishing a head of state and organs ofgovernment such as a legislature, administrators and courts. Some provisionswill be a higher form of law in that they authorise other laws or make provisionsabout laws in such a way that laws that do not conform to these provisions areconstitutionally invalid. Usually three requirements are necessary to make aprovision a higher law. First, the provision must purport to control the form,content or procedure for making a law (or for that matter, an executive orjudicial decision or action). Second, the Constitution must require some specialprocedure for amendment. Without this procedure, a statute that is inconsistentwith the Constitution could be construed as creating an implied exception to therelevant provision with which it does not comply.37 Third, there has to be a bodythat can judge that the particular Act, or executive or judicial action, isunconstitutional. Usually this body will be a court and the court’s function inthis regard is called judicial review.

37. McCawley v The King [1920] AC 691

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Content of Written ConstitutionsFrom one perspective a written constitution can contain as much or as little asthe framers wish to include. While this states the fundamental possibility, thecommon position is that the content of a written constitution will reflect thereasons that made the written constitution necessary or desirable. Usually awritten constitution is necessary to establish a system of government or to makesweeping changes to an existing system of government. If the aim is merely toget a government up and running then the bare minimum is to establish alegislature because the legislature is able to pass laws to meet otherconstitutional needs, for example, to establish courts. But the aim is notnecessarily so confined; sometimes the desire will be to establish a governmentof a particular kind and with certain characteristics in which case theConstitution will contain more than provisions establishing a legislature. Theseprovisions may vary in such matters as how specific or general they are, orwhether they provide something, or provide for it or allow it, eg by authorisingthe parliament to provide it by legislation. Moreover, they will vary if they areestablishing a government from the ground up or merely grafting something onto an existing system. Also, they will usually be greatly affected by thecircumstances which brought the Constitution into being – enabling the solutionto the problems of one age to become the constitutional orthodoxy for the next.

For all these and other reasons it is not possible to make confidentsgeneralisations about the content of Constitutions. Nevertheless it is possible tolist some types of provisions that are likely inclusions:1. Basic Organs of Government. Commonly a Constitution will establish alegislature, a court system, executive government and a head of state. Theprovisions will also deal with their composition, powers and procedures.2. Raising and Spending of Money. These provisions are highly relevant to thefunction and scope of government because lack of money is a limitation ongovernment activity.3. Armed Forces. The armed forces are usually the greatest physical forceavailable to a government. Control of the armed forces enables a government toprotect itself against external and internal aggression, that is, revolt. At the sametime, the Constitution of a country that believes in liberty of the subject anddemocracy will usually try to curtail the action of the armed forces so that theyare not used improperly against citizens.4. Liberty of the Subject. One way in which an attempt is made to protect theliberty of the subject is to insert a provision in the Constitution forbiddinglegislative (and possibly administrative and judicial) action that infringes certainstated liberties. Such a provision is commonly called a Bill of Rights.

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5. Special Issues. A Constitution is likely to attempt to deal with what werespecial issues at the time the Constitution was passed. These issues are diverse.For example, where a country is divided on ethnic or religious lines thenprovisions may try to ensure that the majority does not overbear a minority. InAustralia, one of the big issues in the 1890’s before federation was tradebetween the colonies (later to be states in the federation). Was it to be free orwould colonies protect their own products from competition? Section 92 of theConstitution met and dealt with this problem. Section 92 declared that ‘trade(and) commerce among the States shall be absolutely free’.6. Ideological Pronouncements. These are provisions that have symbolic butpossibly not substantive effect. Examples from the Commonwealth of AustraliaConstitution Act are (i) the preamble which says: Whereas the people of NewSouth Wales, Victoria, South Australia, Queensland and Tasmania, humblyrelying on the blessing of Almighty God have agreed to unite in one indissolubleFederal Commonwealth and (ii) s51 which authorises the Parliament to makelaws for the peace, order and good government, of the Commonwealth withrespect to a number of designated topics.38

7. Transitional and Temporary Provisions. These serve the obvious purpose ofgetting the new government up and running and also dealing with matters caughtup under the former Constitution.

Flexible and Rigid ConstitutionsAnother classification of constitutions is flexible and rigid, or as it isalternatively stated, controlled and uncontrolled.39 Broadly, the division ofconstitutions into flexible and rigid refers to how easily the constitution can bechanged. In this context ‘constitution’ usually refers to a (written) Constitutiondocument. One major reason for this is that it is legally hard to make rigidunwritten rules not in the Constitution; conversely, in Australia legally it isrelatively easy to make rigid rules written in a constitution statute. Thus inpopular language people with a cause dear to their heart urge the Government to‘write’ it into the Constitution in order to ‘guarantee’ it.

Although the classification is posed as a sharp distinction between flexible andrigid Constitutions, the proper question is not whether, but how easily, or to

38. An ideological pronouncement in a statute, although not a Constitution, is s31(2) of theActs Interpretation Act 1954 (Qld) which says: ‘In the case of the demise of Her Majesty(whom may God long preserve) the name of Her Majesty’s successor according to law for thetime being shall be substituted in the form of oath of allegiance prescribed by subsection oneof this section instead of the name of Her Majesty.’ This is now repealed. So passes themajesty of the law.39. These latter terms were used by Lord Birkenhead in McCawley v The King [1920] AC691, 704

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what extent, a Constitution can be changed. In other words flexible and rigid aregenerally not absolute qualities, but questions of degree. And the question is notasked to the Constitution as a whole in all cases but possibly to its individualprovisions because different provisions may have different means of alteration.The relevant questions are as follows:1. Are there any provisions of the Constitution that neither the people nor thelegislature can alter?2. Where a provision can be altered, which is usually the case, can thelegislature alter it by an ordinary statute passed in the ordinary way? Or does itrequire a special procedure? The common forms of special procedures arespecial majorities and approval by electors at a referendum.3. When a provision can be altered by a special procedure, how easily inpractice can that procedure be fulfilled?

An example frequently offered of a completely flexible constitution is that of theUnited Kingdom since it has no Constitution document and has, according toconventional wisdom, no restrictions on changing its constitution. This assertionis largely true but is qualified by parliamentary sovereignty. Sovereignty of theUnited Kingdom parliament may be completely or substantially rigid in that itcannot be formally changed, it would seem, by parliament. Moreover sincesovereignty must reside in parliament, there must be some constraints on theextent to which the composition of parliament can be changed, although theseconstraints are not precisely identified.

A constitution considered to be controlled or rigid is the Constitution of theCommonwealth of Australia. It is contained in s9 of the Commonwealth ofAustralia Constitution Act, which a statute of the United Kingdom Parliament.The only way to change the Constitution is by a special provision in s128 of theConstitution itself. Section 128 requires that a statute that amends theConstitution must pass one of the houses of parliament and then by approved bythe people at a referendum.

State Constitutions are regarded as fairly flexible in that for the most part theystate parliaments can freely amend them, but there are two exceptions. First, theCommonwealth Constitution puts limits on the power of state parliaments.Second, some special procedures can be and have been imposed on StateParliaments. The source of these procedures was originally located in s5 of theColonial Laws Validity Act 1865 but it now resides in s6 of the Australia Act1986 (Cth).

One final comment may be helpful. In Australia, although the underlying pointis of wider application, control could be put on constitutions because power is

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derived from the United Kingdom (an assertion to be qualified later). As theUnited Kingdom confers power on Commonwealth and state parliaments it cantherefore impose limits and procedures on those powers and stipulate how thelimits and procedures may be altered. Thus the grant of power in theconstitutions is conditional, and the control on a constitution derives fromconditions imposed by the grant.

Federal and Unitary ConstitutionsFederation is not a precise concept but the essence of a federation is some sort ofdivision of constitutional power between a central government and regionalgovernments. More particularly, the divided power should include legislativepower, and the central and regional governments should have at least a degree ofindependence. Australia, like Canada and the United States, has a federalconstitution; by contrast New Zealand has a unitary constitution.

United KingdomRelevance

The United Kingdom has what is described as a Westminster system ofgovernment (which is explained below). The United Kingdom establishedgovernment in Australia. All of this means that the United Kingdom looms largein Australian constitutional law for at least two reasons:1. Derivation of Power. In a linear sense all constitutional power in Australiaderives from the United Kingdom. The United Kingdom established Australia asa set of six colonies. The United Kingdom enacted the Commonwealth ofAustralia Constitution Act 1900 to create a federation of the six colonies under anew national government called the Commonwealth of Australia. When thesecolonies achieved unity within a federation and a major sense of nationhood, theUnited Kingdom enacted the Statute of Westminster 1931 and the Australia Act1986 to finish (or almost finish) the task of granting formal constitutionalindependence to Australia.40 2. Westminster System. Government in Australia is largely based on theinstitutions, principles and practices of the Westminster system of government.The major point of difference is that the United Kingdom has a unitary systemof government while Australia has a federal system.

40. The major qualifications are two fold. 1. The reigning monarch in the United Kingdomis still Australia’s head of state. For some this makes Australia subservient. For others thisgives a free and independent Australia a sense of ancestry from a nation that gave the modernworld democracy, the industrial revolution, civil liberties and an outstanding achievements inscience, the arts and literature. 2. Queen Victoria enacted Australia’s constitution by and withthe advice and consent of the British parliament.

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TerminologyThere are three sets of terms that need to be explained. Some terms relate to thepolitical entity known as the United Kingdom, some terms relate to the labelsused to describe the statutes of this political entity and there is the termWestminster system.

Political EntitiesThese were several formal steps in the development of the political entity that isnow commonly known as the ‘United Kingdom’, which is a union of England,Wales, Scotland and Northern Ireland. These are the steps:1. England. Up to 1536 the political entity was England.2. Britain. England enacted the Laws in Wales Act 1536. This incorporatedWales. The resulting entity was called Britain. 3. Great Britain. Britain incorporated Scotland by enacting the Union withScotland Act 1706. The entity, now consisting of England, Wales and Scotland,was called Great Britain.41 4. United Kingdom of Great Britain and Ireland. Great Britain enacted theUnion With Ireland Act 1800. The new entity was called the United Kingdom ofGreat Britain and Ireland.5. United Kingdom of Great Britain and Northern Ireland. The parliamentenacted the Government of Ireland Act 1920, leaving only Northern Ireland inBritish hands. The new entity became the ‘United Kingdom of Great Britain andNorthern Ireland’. Commonly this is abbreviated to just ‘United Kingdom’.42

Nevertheless, Britain, Great Britain, England and their adjectival forms are stillsometimes used. Although not technically correct if they are used to refer to thewhole of the United Kingdom, they are justified by usage.StatutesIf one wanted to be terminologically precise one would refer to statutes of thepolitical entity now called the United Kingdom by the appropriate adjective toreflect the state of the entity at the time the statute was enacted, that is England,Britain, Great Britain and United Kingdom. In practice, though, it is notnecessary to be as precise as this because the use of these terms is oftenindiscriminate. In the simple case you can refer to all statutes as UnitedKingdom statutes; you can vary this if you want to emphasise the then state ofthe United Kingdom and call them English, British or Great British. There is afurther term for these statutes, namely ‘imperial’, which is the adjective fromempire. This is commonly used to describe the British parliament or its statuteswhen one refers to it in relation to a parliament of Britain’s colonies ordominions. Although the sun has finally set on this empire the term is still used.This label is most often used when one is writing about colonies and wishes to41. Union With Scotland Act 1706 Preamble, art 142. Interpretation Act 1978 s22(1), Sch 2 para 5(a)

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designate a statute that the United Kingdom enacted for its colonies or formercolonies as distinct from a statute that it enacted for domestic consumption.

Westminster SystemSometimes the system of government in the United Kingdom is referred to asthe Westminster system. Westminster refers to the City of Westminster(geographically within London) where the British parliament and courts have satfor centuries. Thus, as was also the case with Champagne and Burgundy, theplace of origin has become the label. The term Westminster is relevant toAustralia (and other former colonies of Britain) for a simple reason. Asexplained, when Britain established self-government in the colonies itestablished a Westminster system of government.

Legal CompetenceThe operation of all types of law, including constitutional law, depends on legalcompetence because an actor must be legally competent in order to perform anaction that has legal effect. To be legally competent an actor needs two qualities.First, they must have legal personality. To have legal personality they must be ahuman person, a government or a corporation. Second, they must have legalcapacity to perform the action. Most legal persons have full legal capacity butsome persons have limitations on their legal capacity.

Legal PersonalityTo have legal personality means that one is recognised by the legal system as aperson and hence is potentially capable of having legal capacity. One cantherefore, in principles, perform acts that have legal consequences for both theperformer and other parties. Three entities have legal personality:1. Humans. Each human has legal personality.2. Corporations. A corporation is an artificial legal person. There are two majortypes of corporations, government corporations formed government businessand business corporations formed to do business. The standard means offorming a corporation is by statute. Some statutes provide a standard procedurefor creating a business corporation. The major statute for incorporating businessfirms is the Corporations Act 2001 (Cth). For government corporations thegovernment in question may enact a statute to create and regulate a corporationto do government business or regulation. In addition the Crown has power tocreate a corporation by charter although this does not commonly happen inAustralia.

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3. Governments. At common law a government automatically has legalpersonality as a body politic.43 This means that the governments of theCommonwealth, of each of the six states, of the Northern Territory, of NorfolkIsland and of the Australian Capital Territory all have legal personality and cantherefore make legal transactions. Generally speaking foreign governments alsohave legal personality.

Local government is not included in this provision. Local government does,however, have legal personality. It does so because the States enact statutes thatconfer corporate status on local government councils.

Legal CapacityTo perform a legal action that has legal effect or consequences, an actor needs tohave not only legal personality, but also sufficient legal capacity to perform theact in question. A person may have full legal capacity. This means that they canperform any legal act such as acquiring rights and incurring liabilities, acquiring,owning and disposing of property, making a contract or a will, and committing acrime or a tort. A person may also have limited legal capacity, which means thatthere are some legal acts that they cannot do.

Since a corporation has legal personality it can own property and enter contracts.However a corporation is limited to engaging in those classes of transactionsthat it is authorised to do by its enabling instrument – this determines its legalcapacity. Commonly a corporation formed for government purposes willtypically have strictures on its powers in order to confine its types of actions tothose that relate to the function that the corporation is intended by thegovernment to perform. Typically the scope and limits on the power of astatutory corporation formed for government purposes will be set out in thestatute that establishes the corporation.

Sources of LawFor most areas of law there are two major sources of law namely statutes (orstatute law) and common law. Constitutional law has these sources and somespecial sources of its own. In constitutional law there are some other specialtypes of law namely conventions and rules for parliament called rule or standingorders of parliament.

StatutesParliaments enact laws called statutes. Each statute is a package of legal rules.Sometimes a statute authorises an official or a body to make a form of

43Acts Interpretation Act 1901 (Cth) s22(1)(a), Interpretation Act 1987 (NSW) s21

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subsidiary law known as delegated legislation. Its purpose is to flesh out thedetails of the statute.

As explained above, in constitutional law there is a special type of statute that islabelled ‘Constitution’.44 To avoid confusion at this point it will help to remindthe reader that there is another meaning of the word ‘constitution’. This meaningusually spells ‘constitution’ with a lower case ‘c’. In this sense a constitutionconsists of all of the rules that regulate the operation of government. These rulescome from all of the sources described here namely statute, common law,conventions and the rules of parliament. These rules obviously include the ruleslocated in the special statute that is labelled ‘Constitution’.

Common LawCommon law consists of legal rules made by judges in the course of deciding adispute in a case. Common law is an old form of law and dates back to thetwelfth century in England. It had its origins in customary law, which hadexisted for centuries prior to that. Essentially judges chose the best customaryrules for dealing with a problem and blended them into common law, so calledbecause the judges applied it everywhere so that it was common rightthroughout the realm.

ConventionsNature of ConventionsAs a source of law conventions have four salient characteristics. First, they didnot originate as enactments as is the case with statute law nor aspronouncements in judgments as is the case with common law. They grew out ofpractices in the parliamentary and government arena. Second, they apply only inthe realm of constitutional law, particularly to responsible government. Forexample the rule that a government resign if it loses its majority in the lowerhouse is based on convention – there is not a statute or common law rule thatrequires it. As another example, the office of Prime Minister is based onconvention. Third, conventional wisdom has it that conventions are not directlyenforced by the courts or by the Houses of Parliament (although both of theseinstitutions recognise conventions). Instead their coercive nature rests on theirbeing regarded as binding by those to whom they apply. In practice theparticipants in responsible government generally abide by them withoutquestion. Fourth, conventions regulate the operation of constitutional power.

44. Chapter 2 Constitutions

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Transportation of ConventionsConventions of the United Kingdom constitution were transported into Australiawhen representative government was established. The Constitutions of the thenAustralian colonies did not spell out the rules of responsible governmentbecause it was assumed that the newly established governments would adopt thenecessary conventions, which they did, although some provisions in theConstitutions clearly envisaged that there should be a Westminster system ofresponsible government.

Origin of ConventionsThe existence of this unusual source of law is explained by its origin.Conventions were not the result of any instantaneous creation or of anyconscious and deliberate attempt to form them. Conventions arose throughpractice and out of necessity. They represented a hindsight view ofconstitutional progress. It was normally not until the convention was well settledthat it was recognised. It was necessary because in principle virtually alllegislative, executive and judicial power rests in the Monarch. Centuries ago thiswas not only the legal theory but also the practice, subject to a general notionthat the King should be advised in his business by the leading men in the land.As the actual exercise of legislative, executive and judicial power graduallypassed from the King personally, to the King’s Parliament, Ministers and judgesthere was no accompanying change in basic legal theory. Legislation was stillenacted by the King although in practice he did it ‘by and with the advice andconsent of the Lords spiritual and temporal, and the Commons in Parliamentassembled’. Executive power was still wielded by the King although in practicehe lent his name to the actions and decisions of his Ministers. Similarly, justicewas still dispensed in his name although in practice it was done by the judges hecommissioned. This shift in the actual exercise of power giving rise to thedisparity between constitutional theory and practice was given both anexplanation and a legal blessing by describing it as a constitutional convention.However, as the British constitution developed, the operation of conventionsexpanded to include not only the traditional task of restraining Royal power butwas applied to regulate various institutions of government, and in later days toregulate the relations between the paramount government of Great Britain andthe subordinate governments of her colonies. To illustrate this, once a colonyachieved self government a convention came into play to the effect that theParliament of Great Britain would generally not enact legislation for the formercolony unless the colony had specifically requested and consented to thelegislation.

Conventions, then, are products of history forming a part of unwrittenconstitutional law. As noted above, conventions regulate the operation of power,

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so that their effect is to restrain the exercise of power in the Constitution or toensure that power will be exercised only in a particular way. An example comesfrom the Monarch’s power to consent to legislation. The convention is that theywill always exercise their power in this regard, in normal circumstances anyway,by giving their assent to legislation that has passed both Houses of Parliament inthe proper manner.

A final point to be considered about the nature of conventions is the question ofwhy conventions are observed. Because conventions are not enforceable anysanctions that attach to them are obviously of a non-political nature. Some, aswe shall see later, like those relating to ministerial responsibility, depend fortheir enforcement on political opportunism. However, with others the sanction isgreater. A breach of a convention by the government may arouse strong publicopposition that will be reflected in a decline in support at the next election, andin extreme cases it could stir a rebellion.

Illustrations of Constitutional ConventionsTo further explain conventions it will be helpful to illustrate some of the majorones:1. Judicature. The King originally dispensed justice personally when they heldtheir court. Over time a practice developed that hardened first into a conventionbut then into a rule of law that the King does not dispenses justice personally butdoes so only through the judges whom they have commissioned.45 There is,however, a glimpse of the notion of the King holding court in the rule that alitigant in a colony has a final appeal in their case to the British Crown. Inpractice the Judicial Committee of the Privy Council, which is composed ofsenior judges, hears the appeal. In former times when the Privy Council wroteits judgment in a case it would indicate how it had decided the case then add thewords ‘and we will so humbly advise Her Majesty’.2. Legislature. In the legislative sphere, the King is formally the legislator. Thatsaid, the convention is that the King, when legislating, does so with the adviceand consent of the Lords and Commons. However, the notion that the twoHouses of Parliament are the real legislators is so deeply entrenched in theminds of constitutional lawyers that the convention, as it is commonly stated, isthat the King will not refuse to give her consent to bills passed by the twoHouses of Parliament except in extraordinary circumstances.3. Executive. Conventions are at the heart of executive government. There arereally three conventions that link the will of the electorate with the power of theKing. The first is that the King will exercise prerogative powers, which include45. Prohibitions Del Roy (1572-1616) 12 Co Rep 63, 77 ER 1342. Chief Justice EdwardCoke decided the case in 1607. Coke CJ said ‘the King in his own person cannot adjudge anycase’.

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power to summon and dissolve parliament, entering or stopping criminalprosecutions, pardoning offenders and the general conduct of foreign policy,only on the advice of their Cabinet. The second convention is that the King willchoose ther Prime Minister and other Ministers from among the leaders of theparty or group with a majority in the Lower House. Thirdly, the Ministry isaffected by the convention that it resign should it lose the confidence of theLower House on an important bill or financial one and similarly it will resign ifdefeated in an election. Also, both individual Ministers and the Ministrycollectively are responsible to the Lower House for the conduct of governmentbusiness, and it is a convention that if the Lower House expresses a lack ofconfidence in either an individual Minister, or in the Ministry collectively thenthe Minister or the whole Ministry, as the case may be, should resign.4. Relations with Former Colonies. In the field of relations between the UnitedKingdom and other members of the British Commonwealth that are formercolonies, the main convention is that the Parliament of the United Kingdom willnot legislate for a former colony unless it has its request and consent. Thisconvention is now given statutory expression, if not statutory force, in theStatute of Westminster so far as some former colonies are concerned. It isobviously this convention that keeps dormant the otherwise paramount power ofthe United Kingdom Parliament. Similarly, in executive matters, the Queen isrepresented in her former colonies by a Governor or Governor General who isnot the representative of the British government but of the Queen only. Byconvention, they are appointed on the advice of the Prime Minister or Premier ofthe country or State concerned and, once appointed, they act only on the adviceof the government of that country or State.

Conventions in AustraliaAs the Commonwealth and States received a Westminster-style government theconventions of the British Constitution were given to them. To some extent theconventions were just imported with the establishment of a Westminster-stylegovernment but they also rest partly on express statutory provisions and on theexecutive instruments giving instructions to the Governors. Additionally withinthe context of the various Constitutions some home grown conventions mayhave arisen.

Rules for ParliamentA parliament is master of its own house. Some parts are run by convention orpractice. For other parts parliament makes its own set of rules that arecommonly called ‘Rules’ or ‘Standing Orders’.

32 Chapter 1 Basic Concepts

Constitutional PrinciplesThree basic constitutional principles are the sovereignty of parliament, the ruleof law and separation of powers. These are discussed in later chapters.46

DemocracyGovernments in Australia claim to be democratic. This form of democracy,which is attempted in most of the western world, involves self-government asthe central notion. This is implemented by giving citizens a regular choice todetermine who will be members of parliament and able to exercise the majorconstitutional power, the power to enact a statute. In countries such as Australia,with a Westminster system of government, this choice at elections also involvesa choice of executive government because the party that wins a majority of seatsin the lower house of parliament forms ‘the Government.’ It has a majority ofseats in the lower house of parliament and thus access to considerable legislativepower. The Ministers of state are appointed from its ranks. As Ministers they arein charge of one or more government departments.

There are several features of the constitution as it is written and practised thatmodify the claims to democracy – lack of sufficient access to governmentinformation on which to make an informed choice, lack of access to the meansto convey opinions and to debate those opinions because the broadcasting mediais under oligopoly control (as a matter of strict government policy), the electoralsystem’s not giving equal value to all votes (for example governments can anddo win elections by targeting the swinging voters in the swinging seats), theexistence and operation of professional lobbyists who can pressure agovernment in a way that the ordinary citizen cannot, the privileged position ofthe major political parties under electoral funding laws that shield them fromelectoral competition (making the funding laws a protection racket), and theirresponsibility induced by federalism where the Commonwealth governmentdoes not have sufficient constitutional power to carry out its responsibilities asthe national government.

FederalismAfter Britain claimed Australia in 1788 it established six separate self governingBritish colonies – New South Wales, Victoria, Tasmania,47 South Australia,Queensland and Western Australia. This was the position until 1901 when thesix colonies united in a federation. This happened because in 1900 the British

46. Chapters 10-1447. Tasmania was originally called Van Diemen’s Land. The Privy Council changed itsname in 1855. The Tasmanian legislature enshrined its new name in statute by enacting theDesignation of the Colony Act 1855.

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government enacted the Commonwealth of Australia Constitution Act. Thisstatute created a new government for the whole nation, called theCommonwealth government, and united the existing self governing colonies asstates in the newly formed federation.

A federation is in strong contrast to a unitary system. Under a unitary systemthere is one government and thus one parliament, one executive government andone court system. By contrast, a federation is a system of government in whichgovernment power is divided between a central government and regionalgovernment. In Australia, the central government, formed at federation, is calledthe Commonwealth of Australia. This government has power to deal with somematters for the whole of Australia. The regional governments are the sixcolonies which are now states of the federation – under this federal arrangement,the colonies retained their separate identity and became states of the federationand retained their names, that is, New South Wales, Queensland, Victoria,Tasmania, South Australia and Western Australia. State governments havegeneral but limited powers to regulate matters within their own state.

In Australia, under the federal system of government power legislative,executive and judicial powers are shared and divided between a Commonwealthgovernment and six State governments. Thus the Commonwealth and the stateseach have their own vice-regal representative (Governor General or Governor)parliament, executive government and court system.

Responsible GovernmentGovernments in Australia operate on a system of responsible government basedon the British system at Westminster. The British system is largely based onconventions or constitutional practices rather than statute law or common law. InAustralia responsible government was achieved to a small extent by expressprovisions in the Constitutions of the states and the Commonwealth, but evenmore so by implication. That is, it was simply accepted by all concerned that theconventions of responsible government applied when each Australian colonywas given self government and when the Commonwealth of AustraliaConstitution Act created the Commonwealth government.

The essence of responsible government is that the executive government isresponsible to parliament. The constitution does not see Parliament as merely acollection of individuals, but as consisting of groups, alliances, coalitions orparties. Following an election the party with a majority of seats in the lowerhouse forms the ‘Government’ and takes charge of executive government. Fromits ranks come Ministers of the Crown, who are in charge of the various

34 Chapter 1 Basic Concepts

government departments. As such they exercise the many powers that statutesconfer on the Minister who is administering the government department.Collectively, Ministers or an inner group of them constitute Cabinet, whichmakes major policy decisions.

In this way the government has executive power and, because it has a majorityin the lower house of parliament, has substantial legislative power as well.Because the government has both executive power and control of the lowerhouse, it can implement its policies by executive action and, subject to theresponse of the upper house, by legislation.

Ministers remain in office, and a government remains in power, only so long asthey have the confidence of the lower house. In practical terms this means that ifthe government loses its majority (most likely as a result of losing an election) itmust resign. By convention, it must then resign and permit the opposition toform a government. This convention is the basis of responsible government.

While elections are the most basic implementation of responsible government,its operation extends beyond them. Between elections, according to theory, agovernment is responsible to parliament through its Ministers. In the firstinstance this responsibility rests pm the opportunity members of parliamenthave to question Ministers. In the last resort, if parliament is not satisfied with agovernment or Minister, it may compel resignation by refusal of supply, byrejecting a major piece of legislation or by a vote of no confidence.

Unfortunately some of this appealing scheme is largely theoretical. Becauseparty discipline is strong, it is almost unknown that parliament itself will forcethe resignation of a government or Minister. At best what happens is thatgovernment leaders will themselves compel an individual Minister to resign toavoid the political heat that their misbehaviour has generated.

Constitutional DevelopmentIntroduction

Laws and institutions of government in Australia were established or ultimatelyauthorised by Britain.48 Hence any account of them must commence with an

48. Britain or Great Britain refers to England and Scotland, while the United Kingdom isshort for the United Kingdom of Great Britain and Northern Ireland. Sometimes the system ofgovernment is referred to as the Westminster system, a name that simply derives from the factthat for centuries the British courts and parliament have sat at Westminster – as withChampagne and Burgundy, the place of origin has become the label. Another term is‘imperial’, which is normally used to describe the British parliament when it is referred to inrelation to a parliament of Britain’s colonies or dominions. While the four adjectives - British,

Chapter 1 Basic Concepts 35

examination of the British constitution. In essence, the fundamental propositionis that from the perspective of the legal system, Australia commenced as aBritish colony. At the time Britain colonised Australia the major institutions ofgovernment in Britain were the Crown, parliament, executive (Ministers of theCrown and government departments) and courts. According to Britishconstitutional doctrine, parliament had sovereign or unlimited power to makestatutes, and so, could legislate for colonies and establish government. Otherpower to deal with colonies was vested in the Crown – for example, it couldestablish representatives (a Governor or Governor General) and confer on themits executive powers, called prerogatives. Although the Crown had inherentpower to do this, its power was inferior to, and subject to, that of parliament.

From these British origins of Australia, a number of consequences flow:1. In a linear sense all constitutional power is derived from Britain.2. Major institutions of government in Australia – the Crown as head of state,parliaments, executive and courts – are modelled on those of Britain.3. Like British law, Australian law consists of statutes and common law. 4. Apart from being a model for its law, Britain actually provided Australia withlaw in two ways: 4.1 It is part of British law that, when a colony is settled, the settlers bring tothe colony as much of the domestic statute law and common law of Britain as iscapable of applying to the colony. This gave the colony some start up law. 4.2 In addition to this law received on settlement, the British parliament haspower to enact statutes especially for its colonies. Such statutes are said to applyby paramount force. There is a handful of such statutes operating in Australia.5. While Australia is no longer a British colony, in some senses Australia is stillconstitutionally dependent on Britain because Britain established government inAustralia. For example, under s128 of the Constitution the people and theparliament can alter the Constitution only if the Australian people approve thestatute to change it at a referendum. This procedural restriction binds in lawbecause it was imposed on Australia by the British parliament.

ColoniesAustralia began its European phase in 1788 as a British colony. Initial settlementwas at Sydney to found the colony of New South Wales. After a number of othersettlements were made in the first few decades of the 19th century, theAustralian continent consisted of six separate British colonies – New SouthWales, Queensland, Victoria, Tasmania (originally called Van Diemen’s

English, United Kingdom and imperial - have these differences in meaning, they are usedalmost indiscriminately to describe statutes of the Westminster parliament operating inAustralia.

36 Chapter 1 Basic Concepts

Land),49 South Australia and Western Australia. On settlement, in accordancewith the law regulating colonies, each colony automatically received thecommon law and statute law of England in so far as it could be applied there.

Government in the ColoniesDuring the nineteenth century Great Britain established responsible andrepresentative government in each of the six Australian colonies, and establishedit along similar lines in each colony. In the second half of the nineteenth centuryBritain directly or indirectly gave each colony a written Constitution. Theinstitutions of government in the colonies were the similar to those in Britain.The Constitutions gave them their own parliament and executive with a systemof responsible government. Each colony had a Governor representing the Crownas head of state, a parliament, executive government with Ministers andgovernment departments, and a judicial system in which the main court was theSupreme Court.

Although the colonies were subject to the British Parliament and Crown, theyenjoyed a large measure of self government. Some of this independence restedsimply on non interference by Britain, but part of it came from the ColonialLaws Validity Act 1865 which gave or confirmed significant legislative power tocolonial parliaments, while also asserting the overriding power of the Britishparliament.

ParliamentEach of the colonial parliaments had general power conferred by this, or asimilar, formula: ‘The parliament shall have power to make laws for the peace,welfare and good government of the colony.’ Despite the general wording ofthis formula conferring power, it was subject to a number of restrictions:1. As a general principle of British constitutional law, colonial parliaments couldenact a statute that operated outside the colony only if there was a sufficientlystrong connection between the statute and the colony. This restriction is knownas the doctrine of extra territorial colonial legislative incompetence. 2. Colonial parliaments could not legislate in a way that was inconsistent withBritish statutes applying by paramount force. There were only a handful of suchstatutes.3. Initially there was some suggestion that colonial parliament could notlegislate inconsistently with British common law and statue law received onsettlement, although this was probably a minority view; in any event Britainenacted the Colonial Laws Validity Act 1865 which removed any doubts on this49. Tasmania was originally called Van Diemen’s Land. The Privy Council changed itsname in 1855. The Tasmanian legislature enshrined its new name in statute by enacting theDesignation of the Colony Act 1855.

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question by expressly conferring power on colonial legislature to enact suchstatutes.

Executive GovernmentMinisters of the Crown carry out executive government. Generally a Minister isthe political head of one or more government departments. Executivegovernment in Australia operated and still operates as a system of responsiblegovernment based on the lines of the British system at Westminster. To a smallextent some express provisions in the Constitutions achieved this – theseprovisions intimated and presupposed such a system. But even more so it wasachieved by implication. That is, it was widely accepted by the participants thatthe colonies would operate under a system of responsible government; and oncethe government was established the participants accepted that the conventionsand practices of responsible government that had developed in Britain applied totheir government.

The essence of responsible government is that executive government isresponsible to parliament. This is achieved by putting executive government inthe hands of the party which has a majority in the lower house of parliament –from their ranks come Ministers who are in charge of the various governmentdepartments. In this way, the government has executive power and, because ithas a majority in the lower house of parliament, has substantial legislative poweras well. Ministers remain in office only so long as they have the confidence ofthe lower house. In practical terms, this means that if the government loses itsmajority it must resign.

CourtsEach Australian colony had a Supreme Court endowed with similar powers tothe British courts at Westminster. This involved wide jurisdiction to hear legaldisputes. As part of British constitutional law there was a final appeal from theSupreme Court to the Privy Council.50

LawLaw in the colonies included consisted of two main types, statutes and commonlaw:1. Statutes. There were three kinds of statutes – colonial statutes and two typesof British statutes: 1.1 Colonial Statute. There were statutes made by the colonial parliament. 50. Several statutes have now effectively abolished appeals to the Privy Council from theHigh Court and state courts – the Privy Council (Appeals from the High Court) Act 1975(Cth), the Privy Council (Limitation of Appeals) Act 1968 (Cth) and s11 of the Australia Act1986 (Cth).

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1.2 British Statutes Applying by Paramount Force. Paramount statutes arethose that apply directly to a colony. These were statutes that specifically anddirectly for colonies in general or for a specific colony. Britain enacted a handfulof such statutes that apply to Australia. 1.3 British Statutes Received on Settlement. These statutes are some of theordinary domestic statutes of Britain. These applied to the Australian coloniesby the operation of a common law principle: when Britain established a colonythe colony received as a one off grant as much of the then existing statute law(and common law) as could apply to the colony. In most cases the Australianlegislatures have repealed these statutes or enacted their provisions in localstatutes.2. Common Law. Some common law rules applied to the Australian colonies bythe operation of the same common law principle that transported British statutesto the colonies: when Britain established a colony the colony received as a oneoff grant as much of English common law (and statute law) as could then applyto the colony. Subsequently, Australian courts have built on this common law byadopting other British rules, and by developing some Australian rules thatdeparted from their British equivalents.

FederationPrior to federation, Australia consisted of six independent self-governingcolonies. Although these colonies were on the same continent, were of Britishorigin and had similar institutions of law and government, they had no formalconnection with one another. After intensive discussion and debate during the1890s, the six Australian colonies agreed to unite in a federation. Their plan wasto set up a federation consisting of the six colonies as states of the federationwith responsibility for some matters in their own state, and a new central andnational government with responsibilities in other matters for the whole nation.Following this intensive debate the six colonies requested the United Kingdomgovernment to enact a statute to implement their plan for a federation forAustralia.

In response to this request the United Kingdom Parliament enacted theCommonwealth of Australia Constitution Act of 1900. It commenced operationon 1 January 1901. This Act has nine sections. Section 9 authorises theConstitution that runs from s1 to s128. Since there are two sets of sections, todistinguish one from the other the sections of the Commonwealth of AustraliaConstitution Act are referred to as covering clauses, and the sections of theConstitution just as sections.

Chapter 1 Basic Concepts 39

Commonwealth of AustraliaThe Commonwealth of Australia Constitution Act performed several relatedfunctions – it established a new nation, the Commonwealth of Australia, itestablished a national government called the Federal, Commonwealth orAustralian Government, it conferred on this government legislative, executiveand judicial power, and it established a federation by making each of the sixcolonies a state in the new federation. In addition to the States there wereprovisions in the Constitution for territories.51

The Act achieved all this in the following way. First, covering clause 3authorised the Queen to establish by proclamation the Commonwealth ofAustralia. The proclamation was made on 17 September 1900 and took effect increating the federation on 1 January 1901.52

Second, various sections of the Constitution provided, or made provision for,institutions of government for the new Commonwealth government:* Head of State. Section 2 provided for a Governor General to be the Queen’srepresentative. * Parliament. Section 1 created a new Commonwealth parliament and vested init the legislative power of the Commonwealth. A number of sections of theConstitution then defined this legislative power, the principal ones being ss 51and 52. * Executive. Section 61 and subsequent sections provided for the executivegovernment of the Commonwealth. Section 61 itself vested executive power inthe Queen to be exercised by the Governor General as the Queen’srepresentative. Other provisions following s61 provided, or provided for, aFederal Executive Council (which was to be the formal constitutionalembodiment of cabinet), Ministers of state and government department. * Courts. Section 71 of the Constitution created the High Court of Australia andvested in it the judicial power of the Commonwealth. It also authorised theCommonwealth parliament to create other federal courts and to confer federaljudicial power on these other federal courts and state courts. The matters withinthe Commonwealth’s judicial power were set out in ss 75 and 76 of theConstitution.

StatesBy a combination of provisions the colonies became states of the federation.Covering clause 6 effectively renamed the six Australian colonies as states.Section 106 of the Constitution preserved state Constitutions, s107 preserved the51. There is a table of abbreviations for the various jurisdictions in the Appendix. It is Table3 Abbreviations for Jurisdictions.52. The text of this proclamation is set out in the preliminary pages of this book.

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powers of state parliament and s108 preserved existing state laws, but subject ineach case to any inroads to these made by or under the Constitution itself. So theeffect was that the colonies continued as states of the federation, and theirinstitutions of government remained in tact, but with some diminution of theirpowers and operations made necessary in order to accommodate the newCommonwealth government.

TerritoriesSection 122 of the Constitution establishes another entity in addition to theCommonwealth and the states in the form of a territory of the Commonwealth.Section 122 provides that the Commonwealth may acquire a territory in any ofthree ways. It may be ‘surrendered by any State to and accepted by theCommonwealth’, it may be ‘placed by the Queen under the authority of andaccepted by the Commonwealth’, or it may be ‘otherwise acquired by theCommonwealth’.

The Parliament may make laws for the government of any territory surrenderedby any State to and accepted by the Commonwealth, or of any territory placedby the Queen under the authority of and accepted by the Commonwealth, orotherwise acquired by the Commonwealth, and may allow the representation ofsuch territory in either House of the Parliament to the extent and on the termswhich it thinks fit.

Constitutional AmendmentsSection 128 authorised amendments to the Constitution. Amendments have to bepassed by at least one house of parliament, and be approved at a referendum byan overall majority of voters and by a majority of voters in a majority of states.

IndependenceAlthough federation gave Australia much of the appearance of nationhood as theCommonwealth of Australia, in formal terms Australia was a colony, even if itwas self governing. Australia obtained something approaching full constitutionalindependence by two pieces of legislation:1. The Statute of Westminster 1931 (UK) was the first formal charter ofindependence for the Commonwealth government, although this independencewas qualified. 2. Because this independence was qualified the Commonwealth and stategovernments sought and obtained the enactment by the United Kingdom of theAustralia Act 1986. Australia enacted its own Australia Act 1986, which was invirtually identical terms to its British counterpart.

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With all of this done, the major remaining qualification to Australia’sindependence is that its basic constitutional statutes, the Commonwealth ofAustralia Constitution Act, the Statute of Westminster 1931 and the AustraliaAct 1986 are statutes of the United Kingdom parliament.

Australian ConstitutionSometimes the expression the Australian constitution is used to mean theCommonwealth Constitution but here it means constitution in the broad senseand therefore refers to all the laws regulating government in Australia.

Government in Australia achieved its present shape in 1901 when the sixseparate colonies joined together in a federal system of government, pursuant tothe Commonwealth of Australia Constitution Act of 1900, an Act of the UnitedKingdom Parliament. This Act established a new nation, the Commonwealth ofAustralia, a national government called the Federal, Commonwealth orAustralian Government, conferred on the government legislative, executive andjudicial power, and continued the existence of the colonies as states in the newfederation. After federation the major constitutional developments were (i) theStatute of Westminster 1931, which is the charter of independence for theCommonwealth government, although this independence was qualified and (ii)the Australia Acts, which virtually completed Australia’s independence.

There are three major features of the Australian constitution. First, constitutionalpower was originally derived from Britain. Second, government in Australia ismodelled on that of Britain. Australia has the Crown (represented by theGovernor General and Governors), parliaments, executive and courts whichfunction in a similar way to their British counterparts. Australia also has thesame types of law as Britain, namely statutes and common law. Third, Australiahas a federal system of government where legislative, executive and judicialpower is divided between the Commonwealth and the states. TheCommonwealth has its parliament, executive and courts exercising legislative,executive and judicial power; and the states each have a parliament, anexecutive and courts. Politically, power is divided between the Commonwealthand the states. Geographically, the country is mainly divided mainly into sixstates, but also into three special areas under Commonwealth control –territories,53 the seat of government54 and places acquired by the Commonwealthfor public purposes55. A federal system such as Australia’s where power isdivided between Commonwealth and states contrasts with a unitary system of

53. Constitution s12254. Constitution s52(i) 55. Constitution s52(i)

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government such as that of New Zealand, which has one parliament, oneexecutive and one court system.56

Against this background we can now summarise the contents of the Australianconstitution. The starting point consists of a list of Constitutions.

1. ConstitutionsThe Commonwealth and states each have a Constitution (meaning a statute thatis labelled ‘Constitution’). For the Commonwealth it is contained in s9 of aUnited Kingdom Act, the Commonwealth of Australia Constitution Act. Foreach state, the Constitution, although originally authorised by Britain, is now inan Act of the state parliament. Here are the constitutions:

Statute JurisdictionConstitution of Queensland 200157 QueenslandConstitution Act 190258 New South WalesConstitution Act 197559 VictoriaConstitution Act 193460 TasmaniaConstitution Act 193461 South AustraliaConstitution Act 1889 Western Australia

Diagram 1.2 State Constitutions

2. United Kingdom StatutesThere are several United Kingdom statutes that have been or are a part ofAustralia’s Constitution. The diagram below sets out the major constitutionalstatutes that the United Kingdom has enacted:

Australian Constitutions Act 1850Colonial Laws Validity Act 186562

Commonwealth of Australia Constitution Act (1900)

56. The United Kingdom is a mixture of unitary and federal characteristics. There is acentral government that rules the country but there is some devolution of power. (i) NorthernIreland has its own parliament although it was suspended during the ‘troubles’: Governmentof Ireland Act 1920, Northern Ireland (Temporary Provisions) Act 1972. (ii) Scotland has itsown legal system as provided in The Union with Scotland Act 1706, and since 1999 has hadits own parliament.57. This statute replaced the Constitution Act 1867.58. This statute replaced the New South Wales Constitution Act 1855.59. This statute replaced the Constitutions Act of 1855.60. This statute replaced the Tasmanian Constitution Act 1854.61. This statute replaced the Constitution Act 1855-56.62. The Australia Act 1986 repealed the Colonial Laws Validity Act 1865. Some of itsprovisons, though, have been reenacted in other statutes.

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Australian States Constitution Act 1907Statute of Westminster 1931Australia Act 1986Diagram 1.3 United Kingdoms Constitutional Statutes

3. Commonwealth and State StatutesThere are statutes of the Commonwealth and state parliaments dealing withmatters such as elections, courts and the public service. Some of these statuteshave also authorised delegated legislation.

4. Common Law PrinciplesThere are some common law principles that deal with constitutional matters.

5. Constitutional ConventionsThere are constitutional conventions that originated centuries ago in the UnitedKingdom. These conventions were implicitly imported into Australia by theestablishment of Westminster type governments. These conventions providemost of the rules for the operation of responsible government, for example, therule that a government must resign when it is defeated at an election. 6. Rules Regulating ParliamentSome of the rules regulating the United Kingdom Parliament have been invokedby the Australian parliament and, in addition, the Australian parliaments havealso made some of their own.

Flexible or Rigid?Finally, there is the question as to whether the Australian constitution is flexibleor rigid. The answer is it is a mixture. As explained below s128 of theCommonwealth Constitution requires an Act amending the Constitution to beapproved at a referendum, which can be difficult to obtain – in this substantialway the Constitution is considered rigid or controlled. Thus the Commonwealthgovernment and the federal division of power, that it makes, are rigid. Bycontrast, other parts of the Commonwealth constitution and the Stateconstitutions are also flexible subject to one exception.63 The exception is thatunder s6 of the Australia Act 1986 certain parts of state constitutions may bemade rigid or controlled – and a few parts have been made rigid in this way.

63. McCawley v The King [1920] AC 691

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Australian GovernmentInstitutions of Government

IntroductionThere are institutions of government that make law and make law work. Theseinstitutions carry out the three formal constitutional functions of governmentnamely legislation, administration and adjudication. Legislation means makinglaws, administration means administering and enforcing laws and adjudicationmeans resolving disputes. Although these functions are not precisely defined ordefinable, three of the major institutions of government relate to these functions.These are parliament, executive government, and courts. The other majorinstitution is the Crown, which is the head of state and thus presides over allthree institutions.64

CrownThe Crown is now largely a figurehead but centuries ago was the principal organof government exercising legislative, executive and judicial power. In Australiathe Governor General represents the Crown in the Commonwealth65 and aGovernor represents the Crown in each of the six states.

ParliamentsParliaments make laws called Acts or statutes. There are 10 legislative bodies inAustralia – the parliaments of the Commonwealth and the six states, and thelegislatures of the Australian Capital Territory, the Northern Territory andNorfolk Island.

ExecutiveExecutive government administers laws, makes policy (which may beimplemented by passing a statute), and is generally responsible for the businessof government. It also has a number of powers, most of which are conferred bystatute. Two of the main powers are (i) power to make delegated legislation, and(ii) power to exercise a discretion conferred by statute, for example, to grant alicence or a pension.

CourtsThe main function of courts is to adjudicate disputes between parties. Theseparties may be private individuals, business corporations, governmentcorporations or governments themselves. The dispute is determined by

64. This account of the division of constittuional power into legislative, executive andjudicial is the traditional view. Chapter 13 Separation of Powers explains the defects in thisclassification and proposes an alterntative way of classifying governmental power andfunctions.65. Constitution s2

Chapter 1 Basic Concepts 45

substantive law and conducted in court under provisions laid down by the rulesof procedure, pleading and evidence.

Legal disputes involve three kinds of issues. There may be issues of fact – whichversion of a disputed fact is true? There may be issues of law – which meaningof an ambiguous provision is legally correct or which version of a common lawrule is correct. There may issues over a discretion – a discretion by definitionallows a choice of outcomes or decisions and the question arises as to what isthe best way to make that choice.

The immediate effect of a court’s adjudication of a dispute is to resolve thedispute between the parties. However the dispute can have further consequencesif it involves a question of law. In resolving these disputes courts can also makelaw in two ways. First, they interpret statutes and in that sense add to or definestatute law (and delegated legislation). Second, in the area where no statute lawor delegated legislation applies, courts make and interpret the common law.Common law consists of principles of law formulated by the judges to resolvedisputes. Once these principles are formulated then generally they will befollowed in subsequent cases, although they are subject to modification anddevelopment

Functions of GovernmentThere is debate among philosophers about the source of authority that agovernment has, but at least it is clear that we need government to performcertain functions. For convenience the functions of government can be dividedinto two basic kinds – instrumental and symbolic. This distinction is notabsolute and the two constantly interact, but it is still a useful distinction foranalysing a complicated thing such as the state.

Instrumental functions refer to the actions of the state in determining whatpeople can and cannot do either by themselves, with other people, or withresources. When law is used instrumentally it creates, allocates and reallocatespowers, rights, duties, opportunities and property in resources, and therebyaffects the material world, and human and social behaviour. The two of themajor instrumental functions of the state are (i) economics, that is, providing forthe production and distribution of goods and services, and (ii) protection ofliberty including maintaining law and order.

Yet law can also have what is termed symbolic effect, which is the effect it hason mental processes – it affects not just the outer world of behaviour andresources but the inner world of the mind. Used symbolically, law affects suchthings as ideology, ideas, beliefs, values, perceptions, attitudes, awareness,

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emotions, feelings and consciousness, and may have a ceremonial and ritualfunction. Symbolic matters are intangible things, which concern not our bodiesor our resources, but our minds. In a pluralist society such as Australia it is hardto obtain widespread agreement on most things. Since our society favoursfreedom of belief, thought and action, there is a confined role for symbolism. Toavoid conflict, symbolism should be confined to areas of widespread agreementand not unreasonably intrude on people’s fundamental beliefs.

In summary, there are three major functions of the state – two instrumentalfunctions which are economic and libertarian, and a symbolic function. Thesetwo instrumental functions are necessary for people to live and to live togetherin a society; the symbolic function is inevitable because humans are highlysymbolic creatures.

Changing the System of GovernmentThe Australian constitution is both flexible and rigid. Section 128 of theCommonwealth Constitution requires an Act amending the Constitution to beapproved at a referendum.66 It empowers the Commonwealth parliament toamend the Constitution but specifies that a referendum of Commonwealth votersmust approve such a law by two majorities:1. A majority of voters. An amendment made in 1977 allows voters in theterritories to be included when assessing whether an overall majority has beenobtained. 2. A majority of voters in a majority of states. Since there are now six states thismeans it is necessary to obtain a majority of voters in at least four states.

Since the approval required by s128 has been hard to obtain, the Constitution isconsidered rigid or controlled. Thus the Commonwealth government, and thefederal division of power which it makes, are rigid.

By contrast, other parts of the Commonwealth constitution and the Stateconstitutions are flexible subject to one exception.67 Being flexible a Stateparliament can amend the State Constitution by a statute passed in the ordinaryway. The exception is that under s6 of the Australia Act 1986 certain parts ofstate constitutions may be made rigid or controlled – and a few parts have beenmade rigid in this way.

66. There are also special procedures for amending the Statute of Westminster and theAustralia Act in s15 of the Australia Act. 67. McCawley v The King [1920] AC 691