Government powers under a Federal Constitution : constitutional law in Australia PDF
Preview Government powers under a Federal Constitution : constitutional law in Australia
Government Powers under a Federal Constitution Constitutional Law in Australia *Pyke-Prelims.indd 1 5/01/2017 11:23 am Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA ASIA PACIFIC Thomson Reuters Thomson Reuters Eagan Sydney United States of America Australia LATIN AMERICA EUROPE Thomson Reuters Thomson Reuters São Paulo London Brazil United Kingdom *Pyke-Prelims.indd 2 5/01/2017 11:23 am Government Powers under a Federal Constitution Constitutional Law in Australia John Pyke BSc (Hons) (Syd), LLB (UNSW), LLM (Syd) LAWBOOK CO. 2017 *Pyke-Prelims.indd 3 5/01/2017 11:23 am Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry A Catalogue-in-Publication entry is available upon request from the National Library of Australia ISBN 978 045 5238999 © Thomson Reuters (Professional) Australia Limited 2017 This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All Commonwealth legislative material is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. For reproduction or publication beyond that permitted by the Copyright Act 1968 (Cth), permission should be sought in writing from the current Commonwealth Government agency with the relevant policy responsibility. This edition is up to date as of 1 December 2016. Editor: Puddingburn Publishing Services Pty Ltd Product Developer: Lucas Frederick Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: www.pefc.org *Pyke-Prelims.indd 4 5/01/2017 11:23 am Preface I suppose the best description of what I have tried to write here is a “critical textbook”. Certainly it is in the first place a textbook, in that I expect most of the readers will be students formally studying Constitutional Law, and my first aim has been to explain the law as it is, as comprehensively as necessary and as accurately as possible. However, there is a danger in emphasising the law as it is — as Kris Shaffer says, “Nothing enshrines an idea quite like printing it in a textbook”.1 I have known lawyers who react with a degree of shock to any new development in the law, not because they think it is bad as against some higher principles but just because it is different from what they were taught by some revered teacher, or from what they read in some authori- tative textbook, years ago while they were still capable of absorbing new ideas. Most of my readers may be students now, but in future years they will be lawyers or even politicians and judges, and I do not want my description of the law as it is in late 2016 — however accurate it may be — to fossilise into their view of the law as it ought to remain for all eternity. So I have also emphasised that our understanding, and the High Court’s under- standing, of the effects of the Commonwealth Constitution have changed and may continue to change in the future. In places I have made suggestions as to how I think the law will develop, in a few places I have made suggestions as to how I think it should develop, and in the final chapter I have made a bold suggestion or two as to how the text of the Constitution could or should be amended. However, I hope I have made the division between statements of the law as it is, predictions of the law as it possibly will become, and my opinions as to the law as I think it should become, absolutely clear. There are, of course, some values underpinning Constitutional Law which we would like to think of as eternal — constitutionalism, the rule of law, and representative democracy. The most interesting change that has occurred in the 40 years since I studied law is that these values have recently been given greater weight by the High Court in cases interpreting the Constitution. The old fight about whether the Commonwealth’s legislative powers should be limited to preserve States’ “rights” has been settled (as Quick and Garran predicted it would be),2 and the interest for the future lies in seeing how far 1 Kris Shaffer; “The Critical Textbook”, at http://www.digitalpedagogylab.com/hybridped/critical-textbook/. 2 See 17.70. v *Pyke-Prelims.indd 5 5/01/2017 11:23 am Preface the new emphases on things like the freedom of political communication and the Kable doctrine can be developed. Mention of the Kable doctrine reminds us of the fact that the Constitution funda- mentally limits the powers of the Commonwealth and the States, in different ways but in almost equal measure. The way this book is divided into Parts is intended to reflect that fact, and to remind readers that there is no such thing as a “sovereign” legislature in this country. Instead, there is a national supreme law, which we, the sovereign people, can change if we want to (subject to the quibbles spelled out in 5.90). I hope that readers will find the book interesting, informative and provocative in the sense that it provokes them to think. I would like to thank David Barker for first suggesting that I might like to write a book on this topic, rather than just ranting on the Web and then for suggesting to Robert Wilson that Thomson Reuters might like to publish it. Pip Findlay and her staff at Puddingburn Publishing Services deserve thanks and congratulations for editing and indexing the book under fairly tight time constraints. And — far from least — I must thank my wife Jennie for having supported me in many ways over 41 years, and, by her lively interest in everything and by her dietary guidance, helping to keep me young(ish) even as I grow older. John Pyke December 2016 vi *Pyke-Prelims.indd 6 5/01/2017 11:23 am Contents Preface v Table of Cases xix Table of Statutes xxxvii PART A Constitutional Concepts and Their History 1 Chapter 1 The Significance of Constitutions and Constitutional Law 2 1.1 Constitutions: the source of government power and of enforceable limits on that power 2 1.2 The constitutionalist mind-set 4 1.3 Practical applications of constitutional law — not just a game for Crown lawyers 4 1.4 The law as it is and the law as it might become 8 Chapter 2 Sources of Constitutional Ideas 11 2.1 Context and overview 11 2.2 Lofty principles from classical times 11 2.3 English constitutional history 13 2.4 Revolutionary concepts — a written Constitution and judicial review of legislation 24 2.5 The Swiss idea — popular control of the amending process 28 2.6 Democracy — an Ancient Greek idea brought to perfection in the colonies 28 Further Reading 30 Chapter 3 The Colonisation of Australia and the Development of Six Self- governing Colonies 31 3.1 Context and overview 31 3.2 The right to colonise, as stated and practised by Europeans 31 vii *Pyke-Prelims.indd 7 5/01/2017 11:23 am Contents 3.3 The foundation and early development of the colonies — Governors, Legislative Councils and Supreme Courts 36 3.4 Responsible government — an idea whose time had come 38 3.5 Features of the colonial Constitutions 40 3.6 The “CLV Act” — theoretical subordination but substantial independence confirmed 44 Issue for Discussion 47 Further Reading 47 Chapter 4 Federation and the Drafting of the Commonwealth Constitution 49 4.1 Context and overview 49 4.2 From the earliest suggestions to Parkes’s Tenterfield speech 49 4.3 The first Constitutional Convention, 1891 51 4.4 Federation Leagues, the Corowa resolution and the Premiers’ Plan 52 4.5 Australasian Federal Convention 1897–98 53 4.6 Referendums and Sir George Reid’s tactics of bluff/blackmail 54 4.7 Enactment in London 55 Further Reading 56 Chapter 5 Australian Independence — From the Sovereignty of the UK Parliament to the Sovereignty of the People 57 5.1 Context and overview 57 5.2 Australia’s evolution to independence 57 5.3 Why is the Constitution binding now, and who is the sovereign? 67 5.4 Other constitutional consequences of independence — modern attitudes replace colonial presumptions 72 Further Reading 72 PART B General Principles of Constitutional Law and Litigation 75 Chapter 6 The Constitution as Supreme Law, and an Outline of its Provisions 76 6.1 Method of amendment 76 6.2 The Constitution as supreme law (the source, above which no stream can rise) 77 6.3 A tour of the Constitution; basic structure and features 78 Chapter 7 Constitutional Litigation 85 7.1 Context and overview 85 7.2 Jurisdiction to interpret the Constitution 85 viii *Pyke-Prelims.indd 8 5/01/2017 11:23 am Contents 7.3 The need for a “matter” 87 7.4 Standing 88 7.5 The names of parties — do governments have legal personality? 91 7.6 Remedies 92 7.7 When to seek a remedy — Court’s reluctance to interfere in the parliamentary process 93 7.8 Costs 94 Chapter 8 General Principles of Interpretation of the Commonwealth Constitution 95 8.1 Context and overview 95 8.2 A statute but something more than a statute 95 8.3 The force of precedent 98 8.4 Can the meanings of words change? 100 8.5 Implications from text and structure 103 8.6 Severance, reading down, and interpretation to save validity 104 8.7 Political, and yet not political 108 Issue for Discussion 111 Further Reading 111 PART C General Constitutional Doctrines Applying to Commonwealth and States 113 Chapter 9 The Executive Branch — Governors, Ministers, Executive Councils and Cabinets 114 9.1 Context and overview of Part C 114 9.2 The “dignified parts of the Constitution” transplanted to Australia 115 9.3 The “efficient parts” also transplanted; Governors receiving “advice” that they must take 116 9.4 Need for Ministers to be Members of Parliament; Ministerial responsibility 121 9.5 Collective decision-making or dictation by the Prime Minister/ Premier? 123 9.6 Governor’s role as part of Parliament; questions relating to assent 124 9.7 The Governor as the watchdog of responsible government — the reserve powers 127 9.8 A note on terminology — Crown, government, public service, instrumentalities 135 Further Reading 136 ix *Pyke-Prelims.indd 9 5/01/2017 11:23 am Contents Chapter 10 Sources of Executive Power 137 10.1 Context and overview 137 10.2 “Vesting” of power in the executive governments, and the nature of executive power 137 10.3 A direct, and broader, source of Commonwealth executive power in s 61? 140 10.4 Division of power between Commonwealth and State executives 143 Issue for Discussion 145 Further Reading 145 Chapter 11 Limits on Executive Power; Parliamentary Control of Finance and the Rule of Law 147 11.1 Context and outline 147 11.2 Parliamentary control of taxation and spending 147 11.3 Subjection of the executive to control by law — the rule of law 151 Further Reading 168 Chapter 12 General Rules as to the Extent of Legislative Power — Four Non-limits 169 12.1 Context and overview 169 12.2 Delegated legislation 170 12.3 Retrospective laws 175 12.4 Extraterritorial laws 177 12.5 Laws that breach doctrines of international law 188 Further Reading 191 Chapter 13 Partial Protection of Human Rights by Interpretive Techniques and Quasi-Constitutional Doctrines 193 13.1 Context and outline 193 13.2 Protection of human rights expressed in or implied from the Constitution 194 13.3 Rights recognised at common law — a “quasi-constitutional”, “common law Bill of Rights”? 196 13.4 Quasi-constitutional Human Rights Acts or Charters — compromises between rights and the powers of parliaments 200 Further Reading 202 Chapter 14 The Constitutional Freedom of Political Discussion 203 14.1 Context and overview 203 14.2 The implication discovered 204 x *Pyke-Prelims.indd 10 5/01/2017 11:23 am
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