Brew Basics: The Constitution

5 mins

We cover off on a foundation document that most Australians don’t get to read in their lifetime—the Australian Constitution!

The Australian Constitution is a ‘fundamental law’ of Australia and binds all institutions that it creates. Any law, whether passed by the Commonwealth Parliament or the State Parliaments, is invalid if it goes against the Constitution. In Lord of the Rings terminology, the Constitution is the one ring that rules them all!

While there are plenty of nuances in Constitutional law (and frankly, most of them fall into the *yawn* category)—this blog post will only touch on a couple of key concepts.

Concept 1. Federalism

The Constitution was passed as a British Act of Parliament in 1900 and came into effect on 1 January 1901 at Federation. It is the fundamental legal document creating the Commonwealth of Australia as we know it today. Back in the day, it also converted the six colonies into the six States of Australia.

An important aspect of the Constitution is that it establishes a federal government and distributes lawmaking powers between the central government (Federal) and the regional governments (States).

Notably, section 51 of the Constitution tells us that the Federal Parliament has the power to “make laws for the peace, order, and good government of the Commonwealth”. It goes on to tell us the areas—they include (non-exhaustively):

  • taxation
  • postal, telegraphic, telephone, and other like services (wonderful that this was drafted broadly enough to cover the NBN)
  • currency, coinage, and legal tender
  • weights and measures
  • bankruptcy and insolvency
  • copyrights, patents of inventions and designs, and trademarks
  • marriage
  • divorce and matrimonial causes
  • immigration and emigration.

While this isn’t a complete list of areas that the Federal Parliament can make, but following on from last week’s blog post on legislation, it explains why certain laws are Federal—and others State. Matters of bankruptcy and insolvency, for example, are dealt with in the Federal Corporations Act 2001 (Cth).

There is another way of thinking about all this. If the Constitution tells us that the Federal Parliament has the power to make laws about a particular matter, then you can be sure that the States can’t make laws about that matter.

So now you know what “Federalism” is about.

Concept 2. Separation of powers

In terms of structure, the Constitution doesn’t read like the most exciting document on Earth, and it was never intended to be.

Chapters I, II and III of the Constitution confer powers of the legislature, executive and judiciary respectively. Each of the “three arms of government” has an important role to play, at least in our system, in ensuring that there is the right balance of powers. Part of the reason? So they can “keep tabs on” each other and ensure that no one arm has too much power.

  • Chapter I – The Parliament has the power to make laws.
  • Chapter II – The Executive has the power to administer laws and carry out the business of government, through government departments such as the Department of Defence, and regulatory agencies like the Australian Securities and Investments Commission (or ASIC).
  • Chapter III – The Judicature has the power to … well, determine legal disputes!

The distinction between legislative and executive power can be a little bit of a non-distinction. This is because a majority government not only has the power to make laws but also direct the exercise of powers under those laws. A simple way of understanding this is that the Prime Minister (who is part of the Executive) is also a Member of Parliament.

The important separation of power is the one between the Parliament/Executive and the Judicature. The Courts ultimately provide protection against the unlimited use of power by those in power, but not always—as you will see later on.

Concept 3. Not a Bill of Rights

Some time ago, I heard a story of a self-represented litigant who decided to cite a few provisions from a Constitution to make his case in the Victorian Court of Appeal. He got through the first couple of sentences before a judge had to break it to him that it was the US Constitution he was referring to.

You already know this, but as you can imagine it causes a great deal of confusion in some quarters. The Australian Constitution is NOT the US Constitution. Unlike the US Constitution or the Japanese Constitution—it does not come with a Bill of Rights. It is perhaps the reason that most Australians don’t treat their Constitution with reverence like the Americans or Japanese do.

If you live in Victoria, you can rely on the Charter of Human Rights and Responsibilities Act 2006 (Vic)—effectively our Bill of Rights—in relation to laws of the Victorian State. However, no such protection extends to matters involving Commonwealth law.

Concept 4. The Crown

Not the popular Netflix series.

Australia is ultimately still a constitutional monarchy, which means that there are these odd references to the Queen and the Governor-General (the Queen’s representative) in the Constitution.

In practice, the Queen’s role is symbolic rather than active and the Governor-General generally acts on the advice of Ministers. The only controversy arose in 1975, when the Governor-General at the time, Sir John Kerr, used his “reserve powers” to dismiss then Prime Minister Whitlam.

Concept 5. State powers

The Constitution is silent on the types of matters that States can make laws about. It means that whatever doesn’t fall within section 51 (as discussed above) will fall into the domain of State lawmaking,  such as schools and hospitals.

Section 109 is particularly important. It tells us that “[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” Again, one ring to rule them all!

Case law

If you get the chance to read the Constitution, you’ll find that it tells you a fair bit, but not enough to understand how it works in practice. Unfortunately, you can’t get around reading Constitutional law cases themselves—which provide an interpretation of each of the sections. It is not exactly light reading.

I’d like to take you to one case, which perhaps is one of the most interesting of them all—Al-Kateb v Godwin (2004) 219 CLR 562.

This case was about whether it was constitutional to keep a person in indefinite detention under Australian migration laws.

Mr Al-Kateb was a stateless person who arrived in Australia without a visa. He was taken into immigration detention and applied for a visa. His visa application ultimately failed. He wrote to the Minister asking to be removed from Australia, but this also didn’t happen—because no country would take Mr Al-Kateb. The conclusion was that there was “no real likelihood or prospect of removal … in the reasonably foreseeable future”.

Unfortunately, this case is not exactly a shining example of the law protecting human rights. The High Court found that the Migration Act 1958 (Cth) was not intended to have a punitive effect—but rather that Parliament had the right to make laws in relation to naturalization and aliens (s 51(xix)), and immigration and emigration (s 51(xxvii)) under the Constitution. Further, that interpreting the Constitution did not involve adopting the rules of international law (including matters of human rights). Mr Al-Kateb had, unfortunately, fallen between the cracks and was effectively living in limbo.

In a blow to human rights advocates, the majority of the High Court ultimately found that there was no Constitutional invalidity—and that it was up to Parliament to write different laws if it so intended:

“Whether statelessness calls for a different treatment, as it may well do for practical and humanitarian reasons, is a matter for the legislature and not for the courts.”

In this sense, having a Bill of Rights is not necessarily a bad idea.

Image credit (main) // Mike Meyers

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