| Australia |
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Australia Image File history File links Size of this preview: 777 × 600 pixelsFull resolution (788 × 608 pixel, file size: 640 KB, MIME type: image/png) poop File history Legend: (cur) = this is the current file, (del) = delete this old version, (rev) = revert to this old version. ...
Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
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| | Federal Government The Commonwealth of Australia is a constitutional monarchy, a federation, and a parliamentary democracy. ...
| | Executive | | Legislative Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
Elizabeth II (Elizabeth Alexandra Mary Windsor; born 21 April 1926) is Queen of sixteen sovereign states, holding each crown and title equally. ...
Michael Jeffery, the current Governor-General of Australia The Governor-General of Australia is the representative in Australia of Australias head of state, Queen Elizabeth II, Queen of Australia, who lives in the United Kingdom. ...
Major-General Philip Michael Jeffery, AC, CVO, MC, GCL (born 12 December 1937) is the 24th Governor-General of Australia. ...
Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
John Winston Howard (born 26 July 1939) is an Australian politician and the 25th Prime Minister of Australia. ...
The Cabinet of Australia (whose members also serve in the Executive Council of Australia) is the council of senior ministers, responsible to parliament. ...
The Federal Executive Council is the formal body holding executive authority under the Australian Constitution. ...
A legislature is a type of representative deliberative assembly with the power to adopt laws. ...
| | 1901 - 1972 - 1974 - 1975 - 1977 - 1980 - 1983 - 1984 - 1987 - 1990 - 1993 - 1996 - 1998 - 2001 - 2004 - 2007 - The main entrance to Parliament House in Canberra, with the flag mast visible. ...
Australian Senate chamber Entrance to the Senate The Senate is the upper of the two houses of the Parliament of Australia. ...
Australian House of Representatives chamber Entrance to the House of Representatives The Australian House of Representatives is one of the two houses (chambers) of the Parliament of Australia. ...
Elections in Australia gives information on elections and election results in Australia. ...
This article deals with elections to the Australian Parliament. ...
The Australian House of Representatives is elected from 150 single-member districts called Divisions. ...
Federal elections for the inaugural Parliament of Australia were held in Australia on March 29 and March 30, 1901 following the establishment of the Federation of Australia. ...
Federal elections were held in Australia on December 2, 1972. ...
Federal elections were held in Australia on May 18, 1974. ...
Federal elections were held in Australia on December 13, 1975. ...
Legislative elections were held in Australia on December 10, 1977. ...
Legislative elections were held in Australia on October 18, 1980. ...
Federal elections were held in Australia on March 5, 1983. ...
Legislative elections were held in Australia on December 1, 1984. ...
Legislative elections were held in Australia on July 11, 1987, between Prime Minister of Australia Bob Hawke, leader of the Australian Labor Party, Opposition Leader John Howard, leader of the Liberal Party of Australia, and National Party of Australia leader Ian Sinclair. ...
Legislative elections were held in Australia on March 24, 1990. ...
Federal elections were held in Australia on March 13, 1993. ...
Legislative elections were held in Australia on 2 March 1996. ...
Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
Legislative elections were held in Australia on 9 October 2004. ...
The next general election for the Parliament of Australia is expected to take place in November or early December 2007, although technically it can be held as late as 19 January 2008. ...
| | | Judicial The Politics series Politics Portal This box: In law, the judiciary or judicial is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes. ...
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| | State and territory governments High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ...
Courtroom 1 in the High Court in Canberra. ...
The states and territories of Australia make up the Commonwealth of Australia under a federal system of government. ...
| | Executive Legislative The Governors of the Australian states are the representatives in the six states of Australia of Australias head of state, Queen Elizabeth II. The Governors perform the same constitutional and ceremonial functions at the state level as does the Governor-General of Australia at the national level. ...
The Premiers of the Australian states are the heads of the executive governments in the six states of the Commonwealth of Australia. ...
A legislature is a type of representative deliberative assembly with the power to adopt laws. ...
ACT - NSW - NT - Qld. -
SA - Tas. - Vic. - WA The Parliaments of the Australian states and territories are legislative bodies within the federal framework of the Commonwealth of Australia. ...
Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
Capital Canberra Government Constitutional monarchy Administrator none Chief Minister Jon Stanhope (ALP) Federal representation - House seats 2 - Senate seats 2 Gross Territorial Product (2006) - Product ($m) $19,167 (6th) - Product per capita $57,303/person (1st) Population (End of November 2006) - Population 333,667 (7th) - Density 137. ...
The form of the Government of New South Wales is prescribed in its Constitution, which dates from 1856, although it has been amended many times since then. ...
Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
Queensland Government Logo The Government of Queensland is commonly known as the Queensland Government. ...
The form of the Government of South Australia is prescribed in its Constitution, which dates from 1856, although it has been amended many times since then. ...
The coat of arms of Tasmania. ...
The form of the Government of Victoria is prescribed in its Constitution, which dates from 1855, although it has been amended many times since then. ...
The formation of the Government of Western Australia is prescribed in its Constitution, which dates from 1890, although it has been amended many times since then. ...
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| | Local government Australia has two tiers of subnational government: state (or territory) government and local government. ...
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| | Political parties Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
Democrats - Greens - Labor Party -
Country Liberal Party - Family First Party -
Liberal Party - National Party The Australian Democrats, who are often known simply as The Democrats in Australia, are a progressive social liberal party. ...
The Australian Greens, commonly known as The Greens, is the Green political party in Australia. ...
This article needs additional references or sources for verification. ...
In Australian politics, the Country Liberal Party (CLP) is the Northern Territory equivalent to the Liberal and National parties - the Country part of the partys name is a relic of when the National Party was called the Country Party. ...
The Family First Party (FFP/F1) is a political party in Australia, with policies that generally mirror socially conservative and family values. ...
This article needs additional references or sources for verification. ...
The National Party of Australia is an Australian conservative political party, which claims to represent rural voters. ...
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| | Foreign relations RG Casey House, Canberra, is the headquarters of the Department of Foreign Affairs and Trade, the department responsible for the formulation and enactment of Australian foreign policy. ...
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| | Republicanism Republicanism in Australia is the movement to change Australias status as a constitutional monarchy (a Commonwealth Realm) to a republican form of government (a Commonwealth republic). ...
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Other countries · Atlas
Politics Portal
view • talk • edit | SWEET Information on politics by country is available for every country, including both de jure and de facto independent states, inhabited dependent territories, as well as areas of special sovereignty. ...
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed. // This article or section does not cite its references or sources. ...
Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
For the story of how Australia evolved from a set of British colonies to an independent nation, see constitutional history of Australia. For a briefer outline of the basic structure of the Constitution, see Commonwealth of Australia Constitution Act. For an overview of constitutional law generally, see constitutional law. // Main article: Australian federation After European settlement in 1788, Australia was politically organized as a number of separate British colonies, eventually six in all. ...
The Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia) is the primary constitutional text of the Commonwealth of Australia. ...
The French Declaration of the Rights of the Man and of the Citizen, whose principles still have constitutional value Constitutional law is the study of foundational or basic laws of nation states and other political organizations. ...
The Constitution and the High Court
Constitutional law in the Commonwealth of Australia consists mostly of that body of doctrine which interprets the Commonwealth Constitution. The Constitution itself is embodied in clause 9 of the Commonwealth of Australia Constitution Act, which was passed by the British Parliament in 1900 after its text had been negotiated in Australian Constitutional Conventions in the 1890s and approved by the voters in each of the Australian colonies. (The British government did, however, insist on one change to the text, to allow a greater range of appeals to the Privy Council in London.) It came into force on January 1, 1901, at which time the Commonwealth of Australia came into being. The Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia) is the primary constitutional text of the Commonwealth of Australia. ...
Type Bicameral Houses House of Commons House of Lords Speaker of the House of Commons The Right Honourable Michael Martin MP Lord Speaker Hélène Hayman, Baroness Hayman, PC Members 1377 (646 Commons, 731 Peers) Political groups (as of May 5, 2005 elections) Labour Party Conservative Party Liberal Democrats...
In Australian history, the term Constitutional Convention refers to five distinct gatherings. ...
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. ...
is the 1st day of the year in the Gregorian calendar. ...
Year 1901 (MCMI) was a common year starting on Tuesday (link will display calendar) of the Gregorian calendar (or a common year starting on Monday [1] of the 13-day-slower Julian calendar). ...
The Constitution created a framework of government some of whose main features, and sources of inspiration, were the following:
- constitutional monarchy (British and existing colonial models)
- federalism (United States model)
- parliamentary, or "responsible", government (British and existing colonial models)
- distinct textual separation of powers (US model)
- direct election to both Houses of Parliament (then a novelty)
- requirement of a referendum for amendment of the Constitution (Swiss model)
- only very limited guarantees of personal rights (rejection of the US model)
- judicial review (US model)
This last feature - the ability of the courts to declare legislation unconstitutional and therefore invalid - is itself the source of the body of constitutional doctrine examined in this article. It has its origin in American experience, where the right of the Supreme Court of the United States to strike down legislation deemed incompatible with the Constitution was first asserted by the Supreme Court itself in the seminal case of Marbury v. Madison in 1803. Although completely foreign to both British and Australian colonial experience, the framers of the Australian Constitution clearly intended that the practice would take hold in Australia, and even expressly adverted to it in the Constitutional text (in section 76). This power of judicial review of legislation for conformity with the Constitution has been exercised almost exclusively by the High Court of Australia, and almost invariably with a Full Bench of all its members. For the comic series, see Monarchy (comics). ...
The Politics series Politics Portal This box: Political federalism is a political philosophy in which a group of members are bound together (Latin: foedus, covenant) with a governing representative head. ...
Alternative meanings: Parliamentary system, Parliament (band), Parliament (cigarette). ...
The Politics series Politics Portal This box: Separation of powers, a term coined by French political Enlightenment thinker Baron de Montesquieu[1][2], is a model for the governance of democratic states. ...
An election is a decision making process where people choose people to hold official offices. ...
Elections Part of the Politics series Politics Portal This box: A referendum (plural: referendums or referenda) or plebiscite (from Latin plebiscita, originally a decree of the Concilium Plebis) is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. ...
It has been suggested that Judicial Review in English Law be merged into this article or section. ...
Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas Politics Portal The Supreme Court of the United States (sometimes colloquially referred to by the acronym...
Holding Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. ...
It has been suggested that Judicial Review in English Law be merged into this article or section. ...
High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ...
A brief overview of the other listed features will provide a background for the doctrinal developments examined below.
Constitutional monarchy -
Australia is a constitutional monarchy. Although the term "Head of State" is not used in the Constitution, it was intended that the Commonwealth (like the colonies) would continue to recognise the British Sovereign. "The Queen" (meaning Queen Victoria, and defined to include "Her Majesty's heirs and successors in the sovereignty of the United Kingdom"), was one of the three elements of Parliament, along with the Senate and the House of Representatives (section 1). Today the Queen of Australia has replaced the Queen of the United Kingdom within Australia's parliament, though they happen to be the same person. The Monarch is represented in Australia by an appointed Governor-General. The executive power is vested in the Governor-General "as the Queen's representative" (section 61), as is the command-in-chief of the armed forces (section 68). Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
Queen Elizabeth II, is the Head of State of 16 countries including: the United Kingdom, Canada, Australia, Jamaica, New Zealand and the Bahamas, as well as crown colonies and overseas territories of the United Kingdom. ...
Victoria (Alexandrina Victoria; 24 May 1819 – 22 January 1901) was the Queen of the United Kingdom of Great Britain and Ireland from 20 June 1837, and the first Empress of India from 1 May 1876, until her death on 22 January 1901. ...
The main entrance to Parliament House in Canberra, with the flag mast visible. ...
Michael Jeffery, the current Governor-General of Australia The Governor-General of Australia is the representative in Australia of Australias head of state, Queen Elizabeth II, Queen of Australia, who lives in the United Kingdom. ...
The text of the Constitution assigns sweeping powers to the Governor-General, e.g., to dismiss Parliament (sections 5 and 57), to refuse assent to Bills passed by Parliament (section 58), and to appoint and dismiss government Ministers (section 64). At the time the Constitution was drafted and adopted, though, it was understood that constitutional convention would limit the exercise of these powers. A governor-general, like the former Governors of the Colonies, would only act on ministerial advice except in extreme circumstances. A bill is a proposed new law introduced within a legislature that has not been ratified, adopted, or received assent. ...
A minister or a secretary is a politician who heads a government ministry or department (e. ...
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. ...
A governor is an official who heads the government of a colony, state or other sub-national state unit. ...
However, this reliance on constitutional convention, rather than the constitutional text, means the limits of the Governor-General's powers are unclear. Powers that can be exercised without or against ministerial advice are called "reserve powers". They certainly include the power to commission a Prime Minister, except that where a particular party or coalition of parties has a majority of seats in the House of Representatives and an acknowledged parliamentary leader, that person must, by convention, be chosen. They probably include the power to dismiss a Prime Minister who has been subject to a vote of no confidence in the House of Representatives and who refuses to either resign or advise the calling of an election. A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. ...
A reserve power is a power that may be exercised by the head of state of a country in certain exceptional circumstances. ...
Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
A motion of no confidence, also called a motion of non-confidence, a censure motion, a no-confidence motion, or simply a confidence motion, is a parliamentary motion traditionally put before a parliament by the opposition in the hope of defeating or embarrassing a government. ...
The reserve powers may also include the power to dismiss a Prime Minister who is engaging in persistent illegal action (Governor Sir Philip Game of New South Wales dismissed Premier Jack Lang on this ground in 1932). However, it remains extremely controversial whether they include the power to dismiss a Prime Minister who, while retaining the confidence of the House of Representatives, is not able to get the annual supply Bill passed by the Senate, as happened in 1975: see Australian constitutional crisis of 1975. Despite the drama of that event, it is worth bearing in mind that this is the only occasion on which a Governor-General has acted against the advice of his Ministers. A reserve power is a power that may be exercised by the head of state of a country in certain exceptional circumstances. ...
Air Vice-Marshal Sir Philip Woolcott Game (March 30, 1876–February 4, 1961) was a British Royal Air Force commander and Governor of New South Wales, Australia. ...
John Thomas Lang (December 21, 1876 - September 27, 1975) was a prominent Australian politician during the early twentieth century. ...
A Motion of Confidence is a motion of support proposed by a government in a parliament or other assembly of elected representatives to give members of parliament (or other such assembly) a chance to register their confidence in a government. ...
Loss of Supply occurs where a government in a parliamentary democracy is denied a supply of treasury or exchequer funds, by whichever house or houses of parliament or head of state is constitutionally entitled to grant and deny supply. ...
The secretary of the Governor-General, David Smith, announcing the dissolution of Parliament on November 11th, 1975. ...
The role of the Queen is nowadays even more circumscribed, and amounts only to appointing (and, in theory, dismissing) a Governor-General on the advice of the Prime Minister, as well as performing (by invitation) certain ceremonial functions when she is personally present in Australia. See Constitutional history of Australia for further details on the development of the monarch's role in relation to Australia. Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
// Main article: Australian federation After European settlement in 1788, Australia was politically organized as a number of separate British colonies, eventually six in all. ...
The importance of constitutional conventions in this area means that Australia cannot be said, strictly, to operate entirely under a written constitution, but has to some extent a system like the British unwritten constitution. However, it would be a mistake to exaggerate the importance of this aspect of Australia's constitutional arrangements, because: A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. ...
This article is part of the series Politics of the United Kingdom Parliament Crown House of Lords Lord Chancellor House of Commons Speaker Prime Minister Cabinet Government Departments Scottish Parliament Scottish Executive National Assembly for Wales Welsh Assembly Government Northern Ireland Assembly Northern Ireland Executive Local government Greater London Authority...
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. ...
The United States Electoral College is the electoral college that chooses the President and Vice President of the United States at the conclusion of each Presidential election. ...
The United States Constitution is the supreme law of the United States of America. ...
Federalism
Division of powers -
The Constitution sets up the Commonwealth of Australia as a federal polity, with enumerated limited specific powers conferred on the Federal Parliament. The State Parliaments are not assigned specific enumerated powers; rather the powers of their predecessor colonial Parliaments are continued except insofar as they are expressly withdrawn or vested exclusively in the Federal Parliament by the Constitution. An alternative model, the Canadian, in which it is the regional (State) units who are assigned a list of enumerated powers, was rejected by the framers. On 1 January 1901 the Australian nation emerged as a federation. ...
The Politics series Politics Portal This box: Political federalism is a political philosophy in which a group of members are bound together (Latin: foedus, covenant) with a governing representative head. ...
The bulk of enumerated powers are contained in section 51 and section 52. Section 52 powers are ‘exclusive’ to the Commonwealth (although some section 51 powers are in practice necessarily exclusive, such as the power with respect to borrowing money on the public credit of the Commonwealth in paragraph (iv), and the power to legislate with respect to matters referred to the Commonwealth by a State in paragraph (xxxvii)). By contrast, the subjects in section 51 can be legislated on by both state and Commonwealth parliaments. However, in the event of inconsistency or an intention by the Commonwealth to cover the field the Commonwealth law prevails by section 109. Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth) Parliament. ...
Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth) Parliament. ...
In Australia, legislative power is held concurrently by the Commonwealth and the States. ...
Both concurrent (section 51) and exclusive (section 52) powers are stated to be "subject to this Constitution". As a result, the Commonwealth's law-making power is subject to the limitations and guarantees in the Constitution (both express and implied). For example, section 99 forbids the Commonwealth from giving preference to any State or part of a State "by any law or regulation of trade, commerce, or revenue". And as discussed below, an implied guarantee of freedom of political communication has been held to limit the Commonwealth's power to regulate political discourse. Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth) Parliament. ...
The list of powers assigned to the Federal Parliament is quite similar to that assigned by the United States Constitution to the Congress, but is in some respects broader: for instance, it includes "astronomical and meteorological observations", "weights and measures", marriage and divorce, and interstate industrial relations. The interpretation of similar heads of power – for instance the Trade and Commerce Power in Australia and the Commerce Clause in the US - has in some cases been different. The United States Constitution is the supreme law of the United States of America. ...
Type Bicameral Houses Senate House of Representatives President of the Senate President pro tempore Dick Cheney, (R) since January 20, 2001 Robert C. Byrd, (D) since January 4, 2007 Speaker of the House Nancy Pelosi, (D) since January 4, 2007 Members 535 plus 4 Delegates and 1 Resident Commissioner Political...
Section 51(i) of the Australian Constitution enables the Commonwealth government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. ...
Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, reads as follows:The Congress shall have Power . ...
The constitution also provides some opportunities for Federal-State co-operation: any State can "refer" a "matter" to the Commonwealth Parliament, and the Commonwealth Parliament can exercise, "at the request or with the concurrence of the Parliaments of all the States directly concerned", any power which, at the time of Federation, could be exercised only by the British Parliament.
Parliamentary structures Representation in the House of Representatives is based on population and ‘original states’ have equal numbers in the Senate. The two houses are equal in power except for certain restrictions in financial matters. For example, the Senate may not amend a supply Bill, although as the Australian constitutional crisis of 1975 demonstrates, it may apparently refuse to pass such a Bill altogether; Bills to impose taxation or appropriate revenue may not originate in the Senate; and the Senate may not amend a Bill so as to increase taxation. Loss of Supply occurs where a government in a parliamentary democracy is denied a supply of treasury or exchequer funds, by whichever house or houses of parliament or head of state is constitutionally entitled to grant and deny supply. ...
The secretary of the Governor-General, David Smith, announcing the dissolution of Parliament on November 11th, 1975. ...
Again, federalism is evident in the process of constitutional amendment, which requires that the Bill to amend the Constitution be approved by a majority of electors overall and a majority of electors in a majority of States (that is, four out of the six). // Federal Referendums In Australia, referendums are nationwide polls held to approve government-proposed changes to the Australian constitution. ...
Additionally, amendments "altering the limits" of a State or diminishing its proportional representation in Parliament require the approval of electors in that State.
Parliamentary government It was assumed by the framers, in line with British and local colonial tradition, that the effective government would consist of Ministers who were members of Parliament and "responsible", that is, answerable, to it, and that the continued existence of the government would depend on it maintaining the confidence of at least the lower house of the legislature. Alternative meanings: Parliamentary system, Parliament (band), Parliament (cigarette). ...
A Motion of Confidence is a motion of support proposed by a government in a parliament or other assembly of elected representatives to give members of parliament (or other such assembly) a chance to register their confidence in a government. ...
These arrangements, however, are only hinted at in the text of the Constitution. There is a requirement (section 64) that the "Queen's Ministers of State", who are nominally appointed by the Governor-General, be or swiftly become members of either House of Parliament. The existence of the Prime Minister and Cabinet, and the requirement for them to have the confidence of the House of Representatives, are not mentioned. Nonetheless, these have been fundamental features of Australian constitutional practice from the start. Judicial High Court Lower Courts Constitution State and territory governments Executive Governors and Administrators Premiers and Chief Ministers Legislative Parliaments and Assemblies State electoral systems ACT - NSW - NT - Qld. ...
A cabinet is a body of high-ranking members of government, typically representing the executive branch. ...
A Motion of Confidence is a motion of support proposed by a government in a parliament or other assembly of elected representatives to give members of parliament (or other such assembly) a chance to register their confidence in a government. ...
Separation of powers -
The constitution features a distinct separation of powers. Legislative power is dealt with in Chapter I, and is vested in the Federal Parliament (section 1). Executive power is dealt with in Chapter II, and is vested in the Governor-General as the Queen's representative (section 61). The judicature is dealt with in Chapter III, and is vested in the Federal High Court and "in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" (section 71). The doctrine of separation of powers refers to the separation of the legislature, the executive and the judiciary. ...
The Politics series Politics Portal This box: Separation of powers, a term coined by French political Enlightenment thinker Baron de Montesquieu[1][2], is a model for the governance of democratic states. ...
A legislature is a governmental deliberative body with the power to adopt laws. ...
Under the doctrine of the separation of powers, the executive is the branch of a government charged with implementing, or executing, the law. ...
The judiciary, also referred to as the judicature, consists of the system of courts of law for the administration of justice and to its principals, the justices, judges and magistrates among other types of adjudicators. ...
However, the Queen is an element of the Parliament as well as being head of the executive; and the Ministers of State who "advise" the Governor-General are actually required to be or become members of Parliament.
While there is no significant separation of the legislative and executive powers (the "political branches"), the High Court has developed an increasingly stringent doctrine of the separation of the judicial power from the other two.
Direct election to both Houses of Parliament The Constitution required direct election of members to both Houses of Parliament from the beginning (sections 7 and 24). This was a novelty at the time, since the national upper houses with which the framers were best acquainted were chosen by other means: indirect election by the State legislatures (United States Senate before the Seventeenth Amendment in 1913), executive appointment for life (Canadian Senate), or hereditary succession (United Kingdom House of Lords). An election is a decision making process where people choose people to hold official offices. ...
Federal courts Supreme Court Chief Justice Associate Justices Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Politics Portal The United States Senate is one of the two chambers of the bicameral United States Congress, the...
Amendment XVII in the National Archives Amendment XVII (the Seventeenth Amendment) of the United States Constitution was passed by the Senate on June 12, 1911 and by the House on May 13, 1912. ...
The Senate of Canada (French: Le Sénat du Canada) is a component of the Parliament of Canada, along with the Sovereign (represented by the Governor General) and the House of Commons. ...
The House of Lords is the upper house of the Parliament of the United Kingdom and is also commonly referred to as the Lords. The Sovereign, the House of Commons (which is the lower house of Parliament and referred to as the Commons), and the Lords together comprise the Parliament. ...
Referendum for constitutional amendment -
The text of the Constitution was not presented to the British Parliament for formal enactment until it had been approved by the electors of the colonies. // Federal Referendums In Australia, referendums are nationwide polls held to approve government-proposed changes to the Australian constitution. ...
On the same principle, any amendment to the Constitution requires approval at a referendum, by the process set out in section 128 of the Constitution. A double majority – a majority of electors and of a majority of states – is required. Elections Part of the Politics series Politics Portal This box: A referendum (plural: referendums or referenda) or plebiscite (from Latin plebiscita, originally a decree of the Concilium Plebis) is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. ...
Constitutional referendums were based on the Swiss practice. However, the Swiss use of the popular initiative in constitutional amendment was not followed, so that constitutional alterations, although they must be approved by the people, can only be initiated by Parliament. initiative, see Initiative (disambiguation). ...
The use of the referendum in initially adopting the Constitution, and its requirement for constitutional amendment, has been cited by justices of the High Court to argue that the Constitution is fundamentally based on popular sovereignty (rather than on the supremacy of the British Parliament, which is its technical legal foundation). This doctrine has achieved greater prominence since the cessation, in 1986, of all authority of that Parliament over Australia: see Constitutional history of Australia for details. Pooybuttpular sovereignty is the doctrine that the state is created by and therefore subject to the will of its people, who are the source of all political power. ...
Parliamentary sovereignty or Parliamentary supremacy is the concept in British constitutional law that a parliament has sovereignty. ...
// Main article: Australian federation After European settlement in 1788, Australia was politically organized as a number of separate British colonies, eventually six in all. ...
There have been 44 proposals for constitutional amendment put to the people since Federation. Of these, only 8 have passed.
The growth of central power Probably the most obvious development in Australian constitutional law has been the steady growth in the power of the federal government relative to the states. Several factors could account for this, including: - doctrines of constitutional interpretation which favour a broad reading of Commonwealth powers
- the "fiscal imbalance" between the Commonwealth and the States (see Constitutional basis of taxation in Australia)
- the development of new areas of competence which did not exist at Federation, and which have fallen to the Commonwealth
- the growing importance of legislative areas that were always Commonwealth powers (for example, external affairs and trading corporations)
- constitutional amendment or referral by the States
- the willingness of Australian governments, including self-styled supporters of States' rights, to exercise their powers to the full
The constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51(ii), section 90, section 53, section 55, and section 96. ...
Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to external affairs. In recent years, most attention has focused on the use of the power to pass legislation giving...
Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to foreign corporations, and trading for financial corporations formed within the limits of the Commonwealth. This power has become known as the...
Section 51(xxxvii) of the Australian Constitution permits the Commonwealth to legislate on matters referred to the Commonwealth by any state. ...
Centralising interpretations
Reserved State Powers Doctrine and the Engineers case -
Prior to 1920 the “reserved State powers” doctrine and "implied inter-governmental immunities" were used to preserve state power. Reserved state powers holds that the Constitution should be read in a restrictive way so as to preserve as much autonomy as possible for the States. Implied intergovernmental immunities holds that Commonwealth and States are immune to each other’s laws and cannot mutually regulate each other’s governmental apparatus. The reserved State powers, also called reserved powers, is a doctrine used in the interpretation of the Constitution of Australia. ...
The reserved State powers, also called reserved powers, is a doctrine used in the interpretation of the Constitution of Australia. ...
In 1920 the Engineer’s case (after changes in the composition of the Court) swept away this doctrine. The court now insisted on adhering only to the language of the constitutional text, read as a whole, in its natural sense, and in light of the circumstances in which it was made: there was to be no reading in of implications by reference to the presumed intentions of the framers. The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited and Others (1920) 28 CLR 129 [1920] HCA 54 (commonly known as the Engineers Case) was a landmark Australian court case decided in the High Court of Australia on August 31, 1920. ...
As a result, the constitution is no longer read in a way which attempts to preserve the power of the states.
Broad interpretation of Commonwealth Powers Even before the Engineer’s case, a line of judicial reasoning asserted that Commonwealth powers should be interpreted broadly rather than narrowly wherever possible2. The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited and Others (1920) 28 CLR 129 [1920] HCA 54 (commonly known as the Engineers Case) was a landmark Australian court case decided in the High Court of Australia on August 31, 1920. ...
After Engineers, this approach was reinforced. For example, Section 109, regarding inconsistency between Commonwealth and State laws, was broadly interpreted. Commonwealth law prevails not only where inconsistent obligations are imposed, but where Commonwealth legislation evinces an intention to "cover the field" by being the whole law on a particular subject3. The Commonwealth can "manufacture" inconsistency by expressly stating that its legislation is intended to cover the field. 4 However, an issue that was raised, without being conclusively resolved, in the Workplace Relations Challenge was whether the Commonwealth can "clear the field" by stating an intention that State laws are not to apply even if the Commonwealth does not enact other laws in their place. In Australia, legislative power is held concurrently by the Commonwealth and the States. ...
New South Wales & Ors v Commonwealth is a High Court of Australia case challenging the constitutional validity of the federal governments WorkChoices legislation. ...
The Commonwealth can only legislate with respect to an enumerated head of power, This does not mean that the law must be solely, or even predominantly, directed at that head of power. As long as it can be "fairly characterized" as a law with respect to an enumerated power, it is irrelevant that it could also be categorised as a law regarding some other subject matter. 5.
Likewise, Parliament's motivation in passing the law is irrelevant.6 An example is environmental legislation. The Constitution does not provide the Commonwealth Parliament with any power to control the environment or its use. Nonetheless, a very broad-ranging environmental protection Act could be passed relying on a combination of powers such as interstate and international trade, corporations, taxation, foreign affairs and so on. The law can be supported by those powers although Parliament intended it to be an ‘environmental law’. Particularly in the last two decades, many Acts of very wide-ranging effect have been passed on just these bases, in fields as diverse as environment protection, privacy, and anti-discrimination, fields in which the Commonwealth has no direct power. Section 51(i) of the Australian Constitution enables the Commonwealth government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. ...
Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to foreign corporations, and trading for financial corporations formed within the limits of the Commonwealth. This power has become known as the...
Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to external affairs. In recent years, most attention has focused on the use of the power to pass legislation giving...
Fiscal imbalance - See also: Constitutional basis of taxation in Australia
At the time of Federation, the colonies' main source of revenue consisted of customs and excise duties (income tax being still a newer notion). Since one of the main reasons for Federation was to create a common market, inevitably authority over these taxes was vested exclusively in the Commonwealth Parliament (section 90). It was acknowledged that this would create a situation where the Commonwealth would raise much more money than it could spend, whereas the States, being still responsible for most areas of law and of social infrastructure, would need to spend much more money than they could raise (the problem now known as "vertical fiscal imbalance"). Although the framers were able to agree on a formula for distribution of the Commonwealth's surplus to the States in the first few years after Federation, they could not agree on a long-term formula. Accordingly, section 96 of the Constitution provides that the Commonwealth Parliament "may grant financial assistance to any State on such terms and conditions as it thinks fit".. The constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51(ii), section 90, section 53, section 55, and section 96. ...
Tax rates around the world Tax revenue as % of GDP Economic policy Monetary policy Central bank Money supply Fiscal policy Spending Deficit Debt Trade policy Tariff Trade agreement Finance Financial market Financial market participants Corporate Personal Public Banking Regulation A tax is a financial charge or other levy imposed on...
Tax rates around the world Tax revenue as % of GDP Economic policy Monetary policy Central bank Money supply Fiscal policy Spending Deficit Debt Trade policy Tariff Trade agreement Finance Financial market Financial market participants Corporate Personal Public Banking Regulation An income tax is a tax levied on the financial income...
A customs union is a free trade area with a Common External Tariff. ...
Fiscal imbalance can refer to: Vertical fiscal imbalance Horizontal fiscal imbalance See also Fiscal equalization Vertical fiscal imbalance in Canada Canada Health and Social Transfer Equalization payments Transfer payment This is a disambiguation page — a list of articles associated with the same title. ...
One result of this has been that the Commonwealth has been able to make grants to the States on terms so specific as to amount to the virtual takeover of particular fields of competence. For instance, although the Constitution gives the Commonwealth no express power over education, by means of "tied grants" it has in fact become paramount in the field of tertiary education. Although any state has the option to refuse a grant, the consequences of doing so make this unattractive. Similarly, the Commonwealth has become dominant in the field of public hospitals, and a major player in the field of roads and other major infrastructure.
The Commonwealth has also come to monopolise income tax (see Constitutional basis of taxation in Australia. Once the advantages of income tax were recognized, both the Commonwealth and the States levied income taxes. However, during World War II, the Commonwealth government decided to take over the collection of income taxes, and return some proceeds to the States as grants. The Commonwealth passed legislation to levy income tax at a nation-wide rate similar to the previous combination of Commonwealth tax and the various state taxes. Separate legislation then granted section 96 monetary grants to states provided the State did not levy income taxes. In practice, it would be difficult for States to continue taxing. Tax rates around the world Tax revenue as % of GDP Economic policy Monetary policy Central bank Money supply Fiscal policy Spending Deficit Debt Trade policy Tariff Trade agreement Finance Financial market Financial market participants Corporate Personal Public Banking Regulation An income tax is a tax levied on the financial income...
The constitutional basis of taxation in Australia is based on a group of powers in the Australian Constitution: sections 51(ii), section 90, section 53, section 55, and section 96. ...
Combatants Allied powers: China France Great Britain Soviet Union United States and others Axis powers: Germany Italy Japan and others Commanders Chiang Kai-shek Charles de Gaulle Winston Churchill Joseph Stalin Franklin Roosevelt Adolf Hitler Benito Mussolini Hideki TÅjÅ Casualties Military dead: 17,000,000 Civilian dead: 33,000...
This arrangement was twice challenged by the States in the High Court, and twice upheld6,7. In Victoria v Commonwealth ("the Second Uniform Tax case") (1957) 99 CLR 575 the taxation part of the scheme was valid based on the taxation power, and the grants held valid on the basis of the words ‘terms and conditions’ of section 96. Victoria v Commonwealth (1957) 99 CLR 575 (the Second Uniform Tax case) is a High Court of Australia case that affirmed the Commonwealth governments ability to impose a scheme of uniform income tax, ultimately arising in a vertical fiscal imbalance in the spending requirements and taxing abilities of the...
States are also at the mercy of the High Court's definition of an "excise duty," which states cannot levy. The High Court has long stated the definition in terms such as "an inland tax on a step in production, manufacture, sale or distribution of goods". However, it does not include a mere fee for a licence to carry on a particular business or profession. Accordingly, the States had for a long time levied, with the compliance of the High Court, "business franchise fees" on retailers of products, particularly liquor and tobacco products. These "franchise fees" were mostly calculated according to the value of the retailer's sales in a specific preceding period, rather than on the value of goods currently being sold. Although these seem similar to excise duties, a series of High Court precedents had effectively "quarantined" such fees from disallowance in the areas of liquor retailing, tobacco retailing, and petrol distribution. In 1997, by a bare majority, the High Court decided that this area of doctrinal quarantine was incoherent with the rest of the law relating to excise duties, and removed it8. The immediate result was the loss of some $5 billion (Australian) in the annual revenues of the States and Territories. Tax rates around the world Tax revenue as % of GDP Economic policy Monetary policy Central bank Money supply Fiscal policy Spending Deficit Debt Trade policy Tariff Trade agreement Finance Financial market Financial market participants Corporate Personal Public Banking Regulation A tax is a financial charge or other levy imposed on...
In 1999 the Commonwealth Parliament passed legislation introducing a new broad-based Federal indirect tax, the Goods and Services Tax; the revenue from this tax was to go entirely to the States and Territories, in exchange for their abolishing a range of other indirect taxes. By this stage, the financial dependence of the States on the Commonwealth had become almost complete.
New areas of competence The development of various technologies during the twentieth century also added to the power of the centre.
Section 51(v) of the Australian Constitution gives the Commonwealth Parliament power over "postal, telegraphic, telephonic, and other like services". With little controversy, this power now covers radio, television, satellite, cable, and optic fibre technologies. S51(v) of the Australian Constitution: Postal, Telegraphic, Telephonic and like Services This is a part of Section 51 of the Australian Constitution that gives the Commonwealth power to legislate on postal, telegraphic, telophonic, and other like services. The High Court has taken a flexible approach to interpreting this provision...
A greater struggle occurred over Commonwealth legislation in the field of aviation. Commonwealth regulation is based on the interstate and international trade and commerce power. Prima facie, it does not cover intrastate aviation. However, a purely intrastate aviation industry is no longer economically feasible and separate systems of state regulation pose safety concerns. As a result, the High Court held that all aviation has an interstate character, placing it within Commonwealth legislative power. It is interesting to note here that in 1937 a referendum was submitted to the people giving the Commonwealth power over aviation, and that the referendum was rejected by the people. The rejection of a power by the people has never persuaded the Court that the Commonwealth should not exercise the power. Section 51(i) of the Australian Constitution enables the Commonwealth government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. ...
Another example concerns intellectual property. Although the Constitution gave the Commonwealth Parliament power over "copyrights, patents of inventions and designs, and trade marks", the enormous growth of electronic media content has given this power a much wider scope than could possibly have been envisaged at Federation. For the 2006 film, see Intellectual Property (film). ...
New powers The Commonwealth power has been extended by four constitutional amendments. A amendment in 1910 and a amendment in 1928 allowed the Commonwealth to take over and manage state debts. An amendment passed in 1967 gave the Commonwealth power over Aboriginal affairs, which has had a significant effect particularly in the pastoral and central regions of Australia. The referendum of the 13 April 1910 approved an amendment to the Australian constitution. ...
The referendum of the 17th November, 1928 approved an amendment to the Commonwealth of Australia and its states. ...
The referendum of 27 May 1967 approved two amendments to the Australian constitution relating to Indigenous Australians. ...
An amendment passed in 1946 gave the Commonwealth power to provide a wide range of social services. This included unemployment and sickness benefits, maternity allowances, child endowment, and medical and dental services. Apart from defence, social services is the largest area of Commonwealth expenditure. Along with the grants power, it is the basis for the Medicare scheme of universal health insurance. Constitution Alteration (Social Services) 1946 proposed to extend the powers of government over a range of social services. ...
Medicare is Australias publicly-funded, universal health scheme, providing affordable treatment by doctors and in public hospitals for all citizens and permanent residents except for those on Norfolk Island. ...
The High Court decided that the corporations power was not broad enough to cover incorporation itself. 9. This decision threatened the validity of Australian companies incorporated under commonwealth law. The states used ‘the referral power’ to refer the power over incorporation to the Commonwealth Parliament. Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to foreign corporations, and trading for financial corporations formed within the limits of the Commonwealth. This power has become known as the...
Section 51(xxxvii) of the Australian Constitution permits the Commonwealth to legislate on matters referred to the Commonwealth by any state. ...
The external affairs power -
The Constitution gives the Commonwealth Parliament power over "external affairs". Originally this power had little content, because Australia's foreign relations were managed by the United Kingdom. As Australia gained in independence and international personality, so did the significance of this power. Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to external affairs. In recent years, most attention has focused on the use of the power to pass legislation giving...
The High Court has held that the power covers the regulation of conduct that takes place outside Australia. In particular, it was held sufficient to criminalise as war crimes conduct in Europe during World War II conducted by Australian citizens resident in Australia. 11. (Note that the Commonwealth has no general criminal jurisdiction.) In the context of war, a war crime is a punishable offense under International Law, for violations of the laws of war by any person or persons, military or civilian. ...
Combatants Allied powers: China France Great Britain Soviet Union United States and others Axis powers: Germany Italy Japan and others Commanders Chiang Kai-shek Charles de Gaulle Winston Churchill Joseph Stalin Franklin Roosevelt Adolf Hitler Benito Mussolini Hideki TÅjÅ Casualties Military dead: 17,000,000 Civilian dead: 33,000...
The power has also been held to extend to the implementation of international treaties, even if the subject matter of the treaty is otherwise not within Commonwealth power. In the case of Koowarta v Bjelke-Petersen, the High Court found that the Commonwealth had the power to implement the United Nations Convention on the Elimination of All Forms of Racial Discrimination in the form of the Racial Discrimination Act. In the case of Commonwealth v Tasmania, the High Court has upheld Commonwealth legislation forbidding the Tasmanian government from proceeding with a dam that would have submerged an area of Tasmanian government-owned land that had been declared a World Heritage Area under the World Heritage Convention to which Australia is a party12. Land use is otherwise a State responsibility. A treaty is a binding agreement under international law concluded by subjects of international law, namely states and international organizations. ...
Koowarta v Bjelke-Petersen was a significant court case decided in the High Court of Australia on May 11, 1982. ...
The foundation of the U.N. The United Nations (UN) is an international organization whose stated aims are to facilitate co-operation in international law, international security, economic development, social progress and human rights issues. ...
The Convention on the Elimination of All Forms of Racial Discrimination (CERD) is a United Nations convention adopted and opened for signature and ratification by United Nations General Assembly resolution 2106 (XX) December 21, 1965, and which entered into force January 4, 1969. ...
The Racial Discrimination Act 1975 is a statute passed by the Parliament of Australia under the Government of former Labor Prime Minister Gough Whitlam. ...
Commonwealth v Tasmania (1983) 158 CLR 1, (popularly known as the Tasmanian Dam Case) was a significant Australian court case, decided in the High Court of Australia on July 1, 1983. ...
Elabana Falls is in Lamington National Park, part of the Central Eastern Rainforest Reserves World Heritage site in Queensland, Australia. ...
More recently, the external affairs power has been used to remove the States' power to criminalise male homosexual activity. This followed an adverse report by the Human Rights Committee on Tasmanian provisions. The Human Rights Committee was established under the International Covenant on Civil and Political Rights, to which Australia is a party. Rather than challenge the resulting Commonwealth Human Rights (Sexual Conduct) Act of 1994, the Tasmanian Parliament repealed the legislation in question. The Human Rights Committee is a group of 18 experts who meet three times a year to consider the five-yearly reports submitted by United Nations member states on their compliance with the International Covenant on Civil and Political Rights. ...
The Human Rights Committee is a group of 18 experts who meet three times a year to consider the five-yearly reports submitted by United Nations member states on their compliance with the International Covenant on Civil and Political Rights. ...
Parties to the ICCPR: members in green, non-members in grey The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966 and entered into force on 23 March 1976. ...
Although it would appear that there is an open-ended potential for the Commonwealth to encroach on areas of traditional State competence through the external affairs power, to date it has been used with some discretion, if only because the use of the power in this way inevitably excites considerable political controversy.
The corporations power -
The corporations power allows the Commonwealth to legislate on "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". Although the width of the expression "trading or financial corporations" has never been authoritatively settled, it appears that it covers at least all commercial enterprises carried out under the corporate form. Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to foreign corporations, and trading for financial corporations formed within the limits of the Commonwealth. This power has become known as the...
As corporations have come to dominate the economy, the practical scope the corporations power has increased. For example, in 2005 the Commonwealth Parliament enacted the WorkChoices legislation, which, relying primarily on the corporations power, seeks to create a uniform national industrial relations system to the exclusion of both the States' and the Commonwealth's own industrial relations systems. Previous systems were based on the ‘conciliation and arbitration’ power. The new legislation applies to all employees of a "constitutional corporation." A constitutional corporation is a corporation within the meaning of section 51(xx) of the Constitution. The legislation also applies to employees of the Commonwealth and its agencies, and some others. The expected coverage of this law is approximately 85% of the Australian workforce. That proportion is likely to increase as employers who operate as sole traders or in partnerships incorporate in order to take advantage of the new legislation's relatively "employer-friendly" provisions. WorkChoices, or the Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Workchoices) Act 2005, came into effect in March 2006. ...
On 14 November 2006, the High Court by a 5-to-2 majority upheld the validity of the WorkChoices legislation against all the challenges that had been made to it in an action brought by each of the States and mainland Territories, as well as certain trade unions28. The single majority judgment, while it did not expressly adopt, waived aside all the objections that had been argued against the "object of command" test for the validity of the exercise of the corporations power. Accordingly, the judgment suggests that, henceforth, it may be a sufficient basis of validity that Federal legislation be specifically addressed to constitutional corporations ("A constitutional corporation must...", "A constitutional corporation must not..."), without any additional requirement that the legislation also address some aspect of the status or activities of corporations which is specific to such entities. If this is correct, then given the preponderant role of corporations in the modern economy, the possibility exists for substantial Federal control of the greater part of the economy, with little if any regard to the traditional constitutional "heads of power". WorkChoices, or the Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Workchoices) Act 2005, came into effect in March 2006. ...
Protection of rights
No Bill of Rights The Constitution contains nothing like the comprehensive guarantees of civil and political rights found in the United States Bill of Rights together with the Fourteenth and Fifteenth Amendments, or the Canadian Charter of Rights and Freedoms. Factors sometimes cited for this include faith in the common law's protection of rights and a belief that a powerful Senate would effectively resist overzealous governments. Image of the United States Bill of Rights from the U.S. National Archives and Records Administration. ...
Amendment XIV in the National Archives The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments (known as the Reconstruction Amendments), intended to secure rights for former slaves. ...
Amendment XV in the National Archives 1870 celebration of the 15th amendment as a guarantee of African American rights 1867 drawing depicting the first vote by African Americans Amendment XV (the Fifteenth Amendment) of the United States Constitution provides that governments in the United States may not prevent a citizen...
The Charter, signed by Prime Minister Pierre Trudeau in 1981. ...
Despite this general attitude, the Constitution does contain protection for some specific rights. These include:
- right to vote in Commonwealth elections if you can vote in State ones (section 41)
- freedom of religion, and prohibition of religious tests for Federal offices (section 116)
- trial by jury in Federal cases tried on indictment (section 80)
- "just terms" for the compulsory "acquisition" of property by the Commonwealth (section 51(xxxi))
- an ambiguously worded prohibition on discrimination against residents of other States (section 117)
All but the last of these have been read down by the High Court, at least relative to the content of the corresponding United States guarantees. On the other hand, since the 1990s the High Court has been developing a jurisprudence of rights said to be implied in the text and structure of the Constitution. These developments are discussed below. The Declaration of the Rights of Man and of the Citizen guarantees freedom of religion, as long as religious activities do not infringe on public order in ways detrimental to society. ...
This article or section does not cite any references or sources. ...
In the common law legal system, an indictment (IPA: ) is a formal charge of having committed a most serious criminal offense. ...
Lady Justice or Justitia is a personification of the moral force that underlies the legal system (particularly in Western art). ...
In addition, a constitutional requirement that "trade, commerce, and intercourse among the States ... shall be absolutely free" (section 92) was, for a time, interpreted as a guarantee of some degree of freedom from economic regulation by either Commonwealth or State Parliaments. The reference to "intercourse", on the other hand, has always been understood as guaranteeing a right to movement across State boundaries.
Although express protections for human and civil rights in the Constitution are scant, and have mostly been read down, some protections have been created by the High Court through its jurisprudence on the separation of powers and through its findings of rights implied by the text and structure of the constitutional document. Human rights are rights which some hold to be inalienable and belonging to all humans. ...
Civil rights or positive rights are those legal rights retained by citizens and protected by the government. ...
Lady Justice or Justitia is a personification of the moral force that underlies the legal system (particularly in Western art). ...
Express rights As mentioned, there are three rights which the Constitution guarantees against the Commonwealth - religious freedom, trial by jury, and "just terms" compensation. (A referendum proposal to amend the Constitution to clarify these rights and to make them good also against the States was defeated in 1988.) As will be seen, guaranteed access to the High Court can itself amount to an important right. And the guarantee of free trade and commerce was for a time interpreted as something like an individual right. The Declaration of the Rights of Man and of the Citizen guarantees freedom of religion, as long as religious activities do not infringe on public order in ways detrimental to society. ...
This article or section does not cite any references or sources. ...
Freedom of religion The Constitution states that the Commonwealth "shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth" (section 116).
The prohibition on establishing any religion has had nothing like the impact that the corresponding ban on making a law "respecting an establishment of religion" in the First Amendment to the United States Constitution has had in that country. The High Court, in rejecting a challenge to Federal funding of church schools13, seemed to take the view that nothing less than an explicit establishment of a State Church as the official religion of the Commonwealth would come within the terms of the prohibition. The Bill of Rights in the National Archives The First Amendment to the United States Constitution is a part of the United States Bill of Rights. ...
Nations with state religions: Buddhism Islam Shia Islam Sunni Islam Orthodox Christianity Protestantism Roman Catholic Church A state religion (also called an official religion, established church or state church) is a religious body or creed officially endorsed by the state. ...
"Just terms" compensation The Constitution gives the Commonwealth power "with respect to ... the acquisition of property on just terms" in Section 51(xxxi). By contrast, the Fifth Amendment to the United States Constitution contains a prohibition: "nor shall private property be taken ... without just compensation". The differences between acquisition and taking, and between terms and compensation, combined with the fact that the Australian provision is expressed as a positive grant of power coupled with a limitation, have been read so as to weaken the Australian guarantee relative to the American one. Section 51(xxxi) of the Australian Constitution provides that the parliament has the power to make laws for the peace, order and good government of the Commonwealth with respect to: The acquisition of property on just terms from any State or person for any purpose in respect of which the...
This article does not cite any references or sources. ...
The use of the term "acquisition" has been interpreted so as to require that the Commonwealth (or some other party for a Commonwealth purpose) actually acquire possessory or proprietary rights over the property in question, or at least some benefit: the mere extinguishment of a person's proprietary rights by the Commonwealth (or a prohibition on effectively exercising them) is insufficient to amount to an acquisition12. And "just terms" has been taken to mean something less than "just compensation"; in particular, it does not necessarily require payment to the owner of the value of the property when it was compulsorily acquired14.
Trial by jury The constitutional guarantee that a trial on indictment for a Federal offence must be by jury (section 80) has been rendered virtually worthless, because the High Court has decided that it is only applicable to a trial which proceeds formally by way of indictment, and it is completely in Parliament's discretion to decide which offences are triable on indictment and which are not. Powerful dissents to the effect that the section must be given some substantive meaning (e.g. that the trial of offences of some specific degree of gravity must be by jury) have not prevailed14. In the common law legal system, an indictment (IPA: ) is a formal charge of having committed a most serious criminal offense. ...
This article or section does not cite any references or sources. ...
On the other hand, where Parliament has prescribed jury trial, the Court has been willing to impose some content on that notion. In particular, it has insisted that conviction by a jury for a Federal offence must be by the unanimous agreement of the jurors - a majority verdict will not suffice15.
Access to the High Court To a very large extent, the Constitution leaves it to Parliament to determine both the High Court's original jurisdiction (section 76), and the exceptions to, and conditions on, its power to hear appeals (section 73). However, the Constitution grants the Court some original jurisdiction directly, without the possibility of Parliamentary limitation (section 75). This includes matters in which "a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". This does not cite any references or sources. ...
In law, an appeal is a process for making a formal challenge to an official decision. ...
In English law, the prerogative writs are a class of writs originally available only to the Crown, but which were later made available to the kings subjects through the courts. ...
A writ of mandamus or simply mandamus, which means we order in Latin, is the name of one of the prerogative writs and is a court order directing someone, most frequently a government official, to perform a specified act. ...
A writ of prohibition, in the United States, is an official legal document drafted and issued by a supreme court or superior court to a judge presiding over a suit in an inferior court. ...
Look up Injunction in Wiktionary, the free dictionary. ...
In recent years, the Parliament has all but eliminated the possibility of appeal against many decisions in the area of migration, especially in regard to applications for refugee status. However, since the Parliament is not constitutionally able to limit or abolish access to the High Court for the purpose of applying for one of these "constitutional writs", such applications have become a major means of challenging migration decisions. In fact these applications now constitute the bulk of the Court's work. Net migration rates for 2006: positive (blue), negative (orange) and stable (green). ...
Freedom from economic regulation? The constitutional requirement that "trade, commerce, and intercourse amongst the States ... shall be absolutely free" (section 92) was for a considerable time interpreted as a guarantee of some degree of freedom from government regulation. A notable example of this line of jurisprudence was the High Court's disallowance of a Commonwealth Act which had the aim of nationalizing the banking industry16. Lady Justice or Justitia is a personification of the moral force that underlies the legal system (particularly in Western art). ...
Finally, however, in Cole v Whitfield, which was notable also for its willingness to use the transcripts of the Convention debates as an aid to interpretation, the Court unanimously decided that what the section prohibited, in relation to interstate trade and commerce, were only "discriminatory burdens of a protectionist kind"17. That is, the section did no more than guarantee "free trade" (in the conventional sense) among the States. But in relation to "intercourse" (i.e. personal movement between States), the Court suggested that the scope of the guarantee would be much wider, and may even, in relation to some forms of such intercourse, be truly absolute. Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18 was a landmark High Court of Australia decision where the Court overruled the long-held notion that the words absolutely free in Section 92 of the Australian Constitution protected a personal individual right of freedom in interstate trade. ...
Free trade is an economic concept referring to the selling of products between countries without tariffs or other trade barriers. ...
Right to vote? In June 2007 the High Court will hear a case that Commonwealth legislation passed in 2006, which disenfranchises prisoners from voting, contravenes sections 7 and 24 of the Constitution which state that the Senate and the House of Representatives "shall be composed of members directly chosen by the people". The case is being brought by Vickie Roach who is serving a four year gaol term for negligently causing serious injury in a car accident and her legal team comprising Ron Merkel, QC and Michael Pearce, SC. In the past High Court Judge Michael Kirby has written that "...in Australia, there may be a basic right to vote implied in the text of the constitution itself".[1][2] This article is about Australian High Court judge Michael Kirby. ...
Implied rights Implied rights are the political and civil freedoms that necessarily underlie the actual words of the constitution but are not themselves expressly stated directly in the constitution. Since the 1990s the High Court has discovered rights which are said to be implied by the very structure and textual form of the Constitution. Chief amongst these is an implied right to freedom of communication on political matters. In addition, some protections of civil liberties have been the result of the High Court's zealous attempts to safeguard the independence of, and confidence in, the Federal judiciary.
Freedom of political communication A couple of cases decided in 1992 established a new implied right to freedom of communication on political matters. The first case, Nationwide News Pty Ltd v Wills, concerned a Federal provision criminalising the "bringing into disrepute" of members of an industrial relations tribunal, and a prosecution under that provision of a person who had published a newspaper article repeatedly describing such members as "corrupt" and "compliant"18. The second case, Australian Capital Television Pty Ltd v Commonwealth, concerned a Federal attempt to ban political advertising on radio and television during election periods and to strictly control it at other times, via a system of "free time" entitlements19. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 is a High Court of Australia case that deals with a number of issues regarding the Australian Constitution, including freedom of interstate intercourse (section 92), the implied freedom of political communication, and the role of proportionality. ...
Australian Capital Television v Commonwealth was a significant court case decided in the High Court of Australia on September 30, 1992. ...
In both cases, the majority of the High Court reasoned that, since the Constitution required direct election of members of the Federal Parliament, and since moreover the Ministers of State were required to be or swiftly become members of that Parliament, the result was that "representative democracy is constitutionally entrenched". That being so, freedom of public discussion of political and economic matters is essential to allow the people to make their political judgments so as to exercise their right to vote effectively. Furthermore, since "public affairs and political discussion are indivisible", it is impossible to limit this necessary freedom to purely Federal issues: it applies also to issues which might be the preserve of the State or local levels of government. Therefore, there is implied in the Constitution a guarantee of freedom of communication on all political matters.
The Court stressed that this freedom is not absolute, but the result in both cases was that the relevant Federal legislation was struck down. In the latter case, some strong dissents to the effect that limiting expenditure on political advertising in the electronic media might actually enhance representative democracy did not prevail.
Both these cases concerned the validity of Federal legislation. But two years later, the Court extended the implied guarantee into the area of private law, by holding that it also applied to limit the statutory and common law of defamation. A former chairman of a Commonwealth Parliamentary Committee on Migration claimed to have been defamed by a newspaper which had published a letter accusing him of bias, in his official capacity, towards people of his own ethnic background20. By trial, it was conceded that the accusation was false. However the Court accepted a "constitutional defence" which was said (by three Justices) to operate when otherwise defamatory statements concerning the fitness of a public official to hold office were published without knowledge of, or recklessness as to, their falsity, and when publication was reasonable in the circumstances. “Libel†redirects here. ...
This case, however, and a series of following cases, failed to produce a clear statement of the operative principle which commanded the support of a majority of the Court. But in 1997 (in Lange v Australian Broadcasting Corporation which, curiously, involved the alleged defamation of a former Prime Minister of New Zealand21) a unanimous Court did state the operative principle. It rejected the "constitutional defence" of the migration-bias case just discussed, and instead expanded the scope of "qualified privilege", requiring the defendant to have actively taken reasonable steps to verify the accuracy of the published material, and also, in most circumstances, to have given the defamed person an opportunity to respond. On the other hand, the Court made it clear that the qualified privilege may extend to discussion concerning the United Nations and other countries, even where there is no direct nexus with the exercise of political choice in Australia. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 is a High Court of Australia case that deals with the implied freedom of political communication in the Australian Constitution. ...
The constitutional guarantee of freedom of political communication is, prima facie, far more restricted than the generalized guarantee of freedom of speech and of the press in the First Amendment to the United States Constitution. But it remains to be seen whether a suitable expansion of the notion of "political communication" may not lead, in time, to a similar result. In the migration-bias case, some of the Justices, while being careful to quarantine "commercial speech without political content", seemed to imply that the scope of "political speech" may nevertheless be very broad indeed. Look up prima facie in Wiktionary, the free dictionary. ...
The Bill of Rights in the National Archives The First Amendment to the United States Constitution is a part of the United States Bill of Rights. ...
Right to due process? As mentioned above, the fact that the Constitution prescribes a system of "responsible", or parliamentary, government means that there can be no meaningful separation of the legislative and executive powers, despite their distinct textual separation in the Constitution. However, the same consideration does not militate against a separation of the judicial power from the other two, and in fact the High Court has come to insist on this with some force. It has also held that the separation of the judicial power implies that a body exercising that power must do so in a manner that is consistent with traditional notions of what constitutes judicial process. The result may be a limited constitutional guarantee of due process. Alternative meanings: Parliamentary system, Parliament (band), Parliament (cigarette). ...
The judicial power of the Commonwealth is vested, in Chapter III of the Constitution, in the High Court and such other courts as the Parliament creates or invests with Federal jurisdiction (section 71). In Australian constitutional jargon, such courts are called "Chapter III courts". The members of Chapter III courts can only be removed by the Governor-General on an address from both Houses of Parliament on the ground of proved misbehaviour or incapacity, and otherwise hold office until the age of 70 (section 72). (Judicial office was originally for life; the age limit was introduced by a referendum in 1977.)
In separate cases in 191522 and 191823, the High Court held that "judicial power" (essentially, the power of interpretation of the law and enforcement of decisions) could not be invested in anything other than a Chapter III court, and specifically, in anything other than a body whose members have life tenure. Conversely, in the Boilermakers' Case of 195624, the Court held that Chapter III courts could not be invested with anything other than judicial power. (By this decision, the system of industrial arbitration that had been in place for 30 years, and which involved judges of the Conciliation and Arbitration Court acting in both a judicial and an administrative capacity, was overturned.) The Queen v. ...
To some extent the rigour of this doctrine was softened by the Court's subsequent acceptance that judges could, constitutionally, be assigned functions in their personal capacity as judges rather than as members of a Chapter III court. But this raised the question of which such functions were compatible with the simultaneous holding of Federal judicial office. The answers offered by the Court have been controversial and have involved some very fine distinctions: for instance, it has held that a power to authorize telephone interceptions is compatible25, while a power to make recommendations concerning the protection of land which might be of heritage significance to Aboriginals is not compatible26.
The most striking application (and extension) of this "incompatibility" doctrine, however, has involved the Supreme Court of the State of New South Wales. (Recall that in the Australian model of federalism, the Parliament may invest State courts with Federal jurisdiction: this "autochthonous expedient", in the words of High Court Justice Sir Owen Dixon, was essentially an economy measure in a country of small population. It has been extensively used.)
Kable v Director of Public Prosecutions (NSW) 27 concerned a criminal law passed by the New South Parliament and directed at a single named individual (somewhat in the manner of a Bill of attainder). The individual was a prisoner (under State law) whose sentence was about to expire but who was alleged to have made threats against the safety of various persons, to be carried out when released. The State Parliament enacted a law, applying only to him, which authorized the Supreme Court of New South Wales to make "preventive detention orders" for periods up to six months, with the possibility of renewal. The orders were to be made if the Court was satisfied, "on the balance of probabilities", that the person to whom the Act applied was "more likely than not to commit a serious act of violence". Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51; [1996] HCA 24 was a significant case decided in the High Court of Australia regarding the Chapter III rights in the Constitution and the scope of power of state courts vested with federal jurisdiction. ...
A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial. ...
It is clear that, had the Federal Parliament passed such an Act, it would be found invalid, as being in effect a legislative judgment, and so in violation of the constitutional separation of the judicial power. However, the High Court found that the separation of powers was not a feature of the New South Wales constitution, and so the State Act was not invalid on that ground.
The Act was found invalid, however, on the ground that, since the Supreme Court of New South Wales had been invested with Federal jurisdiction, it must not be required to perform a function which is "incompatible" with the exercise of the judicial power of the Commonwealth. To that extent, the States are not free to legislate as they please with respect to their own courts. And a requirement to order the "preventive detention" of someone who has not been charged with any criminal offence was found "incompatible" with the exercise of Federal judicial power. In this rather circuitous manner, the High Court has found a limited constitutional guarantee of due process.
Conclusion This article has focused on only two, albeit important, areas of Australian constitutional law: the expansion of Federal power at the expense of the States, and the constitutional protection of rights. These two areas are of interest both in themselves and when compared to developments in other Federal systems.
As to the expansion of Federal power, it is probably true that the end result has been similar to that achieved in other Federal systems, though with differences of degree - in particular, the States of Australia have ended up with far less financial and legal independence than those of the United States. But the particular constitutional provisions and doctrines which have contributed to this end have been quite different in many particulars.
As to the constitutional protection of rights, Australia's position is unique, in being the only industrialized Federal state (and almost the only industrialized state) without a substantial, constitutionally entrenched, Bill of Rights. Despite this, human and civil rights (at least as regards citizens, and with some qualifications in practice, if not in theory, for the indigenous population) are probably as well protected in Australia as in any other country. This may be evidence (along with the examples of countries such as the United Kingdom and New Zealand) that constitutional protection of rights is ultimately less important than the existence of widespread latitudinarian attitudes. It remains to be seen whether this will continue to be true in an international climate dominated by the fear of terrorism, and if not, whether the High Court's cautious development of a jurisprudence of implied rights will be sufficient to meet the need.
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This article has been tagged since April 2007. - ^ Kenneth Nguyen, Prisoner goes to High Court to win right to vote, "The Age", p.3, April 25 2007.
- ^ Prisoners and the Right to Vote: Roach v AEC and Commonwealth of Australia, from the Human Rights Law Resource Centre, (accessed April 25 2007).
Cases cited Use your browser's Back button to return to the place of reference.
Note: All cases cited are decisions of the High Court of Australia. "CLR" stands for the Commonwealth Law Reports, "ALR" for the Australian Law Reports. Each case also has a link to the full text online at the Australian Legal Information Institute (AustLII).
1Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 AustLII
2Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 AustLII
3Ex parte McLean (1930) 43 CLR 472 AustLII
4Wenn v Attorney-General (Victoria) (1948) 77 CLR 84 AustLII
5Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 AustLII
6South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 AustLII
7Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 AustLII
8Ngo Ngo Ha v New South Wales (1997) 146 ALR 355 AustLII
9New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 AustLII
10Re Wakim; Ex parte McNally (1999) 163 ALR 270 AustLII
11Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 AustLII
12Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 AustLII
13Attorney-General (Victoria); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559 AustLII
14Kingswell v The Queen (1985) 159 CLR 264 AustLII
15Cheatle v The Queen (1993) 177 CLR 541 AustLII
16Bank of NSW v Commonwealth (Bank Nationalization Case) (1948) 76 CLR 1 AustLII
17Cole v Whitfield (1988) 165 CLR 360 AustLII
18Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 AustLII
19Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 AustLII
20Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 AustLII
21Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 AustLII
22New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 AustLII
23Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 AustLII
24R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94 CLR 254 AustLII
25Grollo v Palmer (1995) 184 CLR 348 AustLII
26Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island Case) (1996) 138 ALR 220 AustLII
27Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577 AustLII
28New South Wales v Commonwealth of Australia [2006] HCA 52 AustLII
Bibliography - Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed., Federation Press, Annandale NSW, 2002)
- John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths, Sydney, [1901] 2002)
- Leslie Zines, The High Court and the Constitution (4th ed., Butterworths, Sydney, 1997)
See also -
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The Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia) is the primary constitutional text of the Commonwealth of Australia. ...
// Main article: Australian federation After European settlement in 1788, Australia was politically organized as a number of separate British colonies, eventually six in all. ...
The doctrine of separation of powers refers to the separation of the legislature, the executive and the judiciary. ...
On 1 January 1901 the Australian nation emerged as a federation. ...
// Federal Referendums In Australia, referendums are nationwide polls held to approve government-proposed changes to the Australian constitution. ...
Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth) Parliament. ...
Section 51(i) of the Australian Constitution enables the Commonwealth government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. ...
Section 51(xx) of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to foreign corporations, and trading for financial corporations formed within the limits of the Commonwealth. This power has become known as the...
Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to external affairs. In recent years, most attention has focused on the use of the power to pass legislation giving...
In Australia, legislative power is held concurrently by the Commonwealth and the States. ...
External links - Full text of the Constitution from the Australian Attorney-General's Department
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