University of New South Wales Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of New South Wales Law Journal |
|
[2] It was accepted that a federation of the colonies would involve the establishment of national institutions of government: a federal Parliament, a federal executive and a federal judicature. It would also involve delineation of the powers of the governments of the federation.
[3] The draft of the Constitution that was finally agreed upon[3] made provision for a federal Parliament, the members of whose two Houses would be elected. All the original States of the federation would be equally represented in the Parliament’s Upper House, the Senate. The Constitution also included provisions concerning the relationships between the two Houses; for example, in relation to Money Bills, and the resolution of deadlocks between them.
[4] The provisions in the Constitution regarding the executive branch of government were somewhat spare, though to some extent they reflected provisions of a kind that already appeared in the colonial constitutions. Section 61 declared that the executive power of the Commonwealth was vested in the Queen, and was exercisable by the Governor-General as the Queen’s representative. There were to be federal ministers of state, formally appointed by the Governor-General to administer Commonwealth departments. The ministers were to be or become members of the federal Parliament.
[5] They were to be members ex officio of the federal Executive Council, a body whose function was to advise the Governor-General.[4] It was implicit, in the several provisions in relation to the executive branch of government, that ministers would be accountable to the Parliament, but no attempt was made to spell out constitutional conventions regarding formation of ministries and their dismissal. No mention was made of the office of Prime Minister or of Cabinet.
[6] The third branch of Commonwealth government for which the Constitution made provision was the judicature. The framers of the Constitution recognised that there would need to be at least one central federal court and that some matters could arise for judicial decision which should be treated as federal matters. The one essential federal court was the High Court of Australia (‘High Court’), to be established by the Parliament. Once established, that court would have an entrenched original jurisdiction in five matters, among them matters between States, and matters in which the Commonwealth was a party.[5] The Parliament was authorised to grant the High Court additional original jurisdiction in four other matters, including matters arising under any of the laws of the Commonwealth.[6]
[7] The federal Parliament was also authorised to establish other federal courts and to grant them jurisdiction in any of the federal matters. Jurisdiction in federal matters might also be granted to the courts of the States.[7]
[8] The central and essential federal court, the High Court, was not only to be a court with jurisdiction in federal matters. Under s 73 of the Constitution, it was also to be a court of appeal to which people might resort when dissatisfied with judgments of State courts, even in non-federal matters. That provision has enabled the High Court to develop a uniform body of common law within the federation.
[9] The Constitution for the Australian federation was one under which the legislative powers of the federal Parliament were limited to specified subjects, a number of them being ones affecting commercial activities and dealings.[8] The Parliaments of the States were to retain concurrent power to legislate with respect to most of the matters in the federal list, subject to the important proviso, expressed in s 109, that if a State law was inconsistent with a federal law, the latter should prevail. Some of the federal legislative powers were qualified by a requirement that they not be used so as to discriminate between States (or parts thereof) or give preference to only one or some of the States.[9]
[10] It was clearly intended that the Commonwealth should be a free trade zone. States were stripped of their power to levy customs duties. The power to levy taxes of that kind, and also excise duties, was reposed exclusively in the federal Parliament.[10] The customs duties imposed by the Commonwealth had to be uniform and once they were imposed, ‘trade, commerce and intercourse among the States’, s 92 declared, ‘shall be absolutely free’. Section 92 was to prove to be a section on which litigants would frequently rely when challenging the validity of legislation.
[11] The decision by the framers of the Constitution that the
Commonwealth alone should have power to levy customs and excise duties presented
problems about the extent to which the
Commonwealth should levy taxes by these
means, and how it should deploy the revenues so derived. Chapter IV of the Constitution, entitled
‘Finance and Trade’, included provisions that seemed to assure to
the States a share of the revenues derived
from such taxes. Among them was a
provision, s
96, which was designed to allow the Commonwealth to deal with problems
which could arise from strict application of the formulas for
distribution of
the revenues among the States. Section 96 stated
that:
During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.
[13] While
economic considerations figured prominently in the deliberations of the framers
of the Constitution,
they were not the only ones. Another concern was the inability of the individual
Australian colonies to defend themselves against
attacks or threatened attacks
by foreign nations which had, of late, made excursions into the south-west
Pacific region. That particular
concern was addressed in the Constitution by a
provision that gave the federal Parliament power to make laws with respect to
the ‘defence of the Commonwealth and of
the several States’, and
which effectively ensured that the defence of the nation would be primarily the
responsibility of
the federal
government.[12]
[15] The method by which the Constitution might be altered was prescribed by s 128. Broadly, this section provided that the Constitution could be amended if a Bill for amendment was passed by both Houses of the federal Parliament, and was subsequently approved by an overall majority of electors and by a majority of electors in a majority of States voting at a referendum. Section 128 also made provision whereby an Amending Bill passed by only one of the Houses could eventually be submitted to the electors.[14]
[16] In fact, alterations to the Constitution have been few. Since Federation, there have been only 19 occasions on which constitutional referendums have been held. On these occasions, a total of 43 Bills have been submitted to the electors. But only eight of the proposed alterations have been approved by the requisite electoral majorities. Seven of those changes were endorsed by majorities in all six States.[15] Five of the proposed changes submitted to referendum were approved by an overall majority of electors, but not in a majority of States.[16] Thirteen proposals were supported by 47 per cent to 49 per cent of all Australian electors.[17] In one case, a Bill for alteration of the Constitution was supported by 62.2 per cent of all electors, but by majorities in only three of the States.[18]
[17] The number of proposals for constitutional amendment submitted to electors does not reflect the number of changes that have been proposed in Bills, introduced in the federal Parliament. Up to the 1983-84 session of the Parliament, a total of 109 such Bills had been introduced.[19] Twenty-six of them were submitted to the electors but were rejected. Of the remaining 83 Bills, four lapsed, usually at the second reading stage. Seven Bills were passed by both Houses, but the Government of the day decided not to submit them to referendum.[20] In seven other cases, a writ for referendum was issued but was subsequently revoked.[21]
[18] The matters which have been the subject of Bills for alteration of the Constitution have been various. A little over 60 of the Bills introduced up to the 1983-84 session covered the distribution of legislative powers. (They included four Bills providing for interchange of powers.) Only two of the Bills in this category were approved at referendums: one to enlarge the federal Parliament’s power to legislate with respect to social services (1946); the other to enable the Parliament to legislate specifically for Aboriginal people (1967). Other Bills introduced up to the 1983-84 session included several relating to electoral matters, the terms of Parliament, and relationships between the two Houses. The last occasion on which changes to the Constitution were approved by the requisite majorities of electors was in 1977. Other post-1945 proposals for change that were approved related to the method by which casual vacancies in the Senate were to be filled, participation of Territory electors in constitutional referendums, and the age of retirement for federal judges.[22]
[19] The record of constitutional referendums has clearly demonstrated that the process of amendment prescribed by the Constitution makes it difficult for federal governments to secure the constitutional changes they desire. The record also suggests that proposals for change are unlikely to be approved by electors unless they have received bipartisan support. When electors are presented with a ‘no’ as well as a ‘yes’ case, a significant number of them will probably vote ‘no’. Many of those who vote ‘no’ may do so simply because they are bamboozled by the material put before them. This includes not only the ‘yes’ and ‘no’ cases but the full text of the proposed amendment.[23]
[20] Very few electors will be familiar with the provisions of the Constitution. A survey conducted on behalf of the Constitutional Commission in April 1987 indicated that only 53.9 per cent of those surveyed (approximately 1 100) knew that there is a written federal Constitution. The survey showed that the respondents most aware of the existence and significance of this Constitution were males over the age of 35 years who had left school at 17 years of age or over and who were in full-time employment as white-collar workers. Nearly 70 per cent of the respondents in the 18-24 age group were not even aware of the existence of a written Constitution.[24]
[21] A
lack of familiarity on the part of most Australian electors with the Constitution and its
significance can be attributed in large part to the character of that Constitution. It does not, as
does the Constitution of the United States of America, include a Bill of
Rights that declares the rights of individuals vis-à-vis agencies
of government.[25] Its
language, it has been observed,
is less straightforward than that of most constitutions. This makes the Constitution difficult or impossible to teach in schools or to become an acknowledged part of the political culture of the nation, as constitutions can in other societies. Our Constitution remains too much a mystery to those who should be its masters.[26]
[23] On 19 December 1985, the Acting Prime Minister and Attorney-General, the Hon Lionel Bowen MP, announced that the Federal Government had decided to establish a commission to undertake a far reaching review of the federal Constitution.[28] The members of the Constitutional Commission were to be Sir Maurice Byers CBE QC, a former Solicitor-General of the Commonwealth; the Hon Sir Rupert Hamer KCMG, a former Premier of Victoria; the Hon Justice J L Toohey AO, then a judge of the Federal Court of Australia;[29] the Hon E G Whitlam AC QC, who had been Australia’s Prime Minister between 1972 and 1975; Professor Leslie Zines, a professor of law at the Australian National University; and myself, then a professor of law at Monash University. Sir Maurice Byers was appointed chairperson.
[24] The Commission was assisted by five advisory committees, the members and chairs of which were to be appointed by the Attorney-General.[30] These advisory committees were to report to the Commission on the following broad topics: the Australian judicial system; distribution of powers; executive government; individual and democratic rights under the Constitution; and trade and national economic management. Lawyers were strongly represented on these advisory committees.[31] The Commission and the advisory committees were assisted by a secretariat based in Sydney.[32]
[25] The Commission and its advisory committees did their utmost to encourage members of the general public, and also of governmental agencies, to express their views on the matters on which they were commissioned to inquire. The advisory committees conducted public hearings in a number of venues throughout the nation. Approximately 4 000 written submissions were received. The only State government that responded by way of a substantial written submission was that of Queensland. The parties then represented in the federal Parliament chose not to make submissions.[33]
[26] In late January 1988, the Attorney-General asked the Commission to provide him with a report on a number of matters that had already been considered by the Commission and upon which their views were more or less concluded. That first report was sent to the Attorney-General on 28 April 1988. It included 17 Draft Bills for alteration of the Constitution. In May 1988, the Attorney-General introduced four of the Bills into the House of Representatives.[34] They had, by early June 1988, been passed by both Houses of the federal Parliament. All four proposals were resoundingly rejected by electors voting at a referendum held on 3 September 1988.
[27] It may be wondered why the Federal Government
decided in 1988 to seek a few amendments to the Constitution before it
had received the final report of the Constitutional Commission, and before there
was adequate opportunity for that final
report to be considered by interested
persons and organisations. The terms of reference of the Commission required
that a final report
be presented on or before 30 June 1988. The Commission met
that deadline and its final report dealt with considerably more matters
than had
been dealt with in its first report. It was, indeed, the most comprehensive
review of the
Constitution that had ever been undertaken. The Federal
Government’s decision to seek amendments to the Constitution, based on only
some of the Commission’s recommendations in the Commission’s first
report, seems to have stemmed mainly
from a desire that the Australian
electorate should have an opportunity to vote on some proposals for
constitutional change, thought
to be of a relatively uncontroversial nature, in
the year of the bicentenary of European settlement in Australia. The Federal
Government
clearly did not anticipate the extent to which the four proposals for
amendment in 1988 would be opposed by those in a position to
influence public
opinion. Following the defeat of all of the four proposals submitted to
referendum in 1988, the Federal Government
made no attempt to seek
implementation of any of the other proposals made by the Constitutional
Commission. Though published, the
Commission’s report was effectively
shelved.
[29] Several of the Commission’s recommendations concerned the distribution of legislative powers between the Commonwealth and the States and would, if adopted, have resulted in an increase in the Commonwealth’s powers. It seemed to the Commission that some provisions of the Constitution relating to distribution of powers were ‘out of step with the economic, social and political needs and realities of Australian life or with the role Australia plays as an independent sovereign nation’.[39] Some of the proposed changes involved extension of existing Commonwealth legislative powers; for example, in relation to means of communication, intellectual property, family law matters, industrial relations, provision of social welfare, trade and commerce, and corporations.[40] Other recommendations involved addition to the federal list of entirely new subjects; for example, defamation, accident compensation and rehabilitation, and nuclear material, nuclear energy and ionising radiation.[41] The so-called ‘races power’[42] would have been displaced by a provision authorising the federal Parliament to make laws with respect to Aboriginal and Torres Strait Islander peoples, rather than to persons of any race. None of these changes involved diminution of the concurrent legislative powers of the States, though they would have enhanced the capacity of the federal Parliament to enact laws that would override inconsistent State laws by force of s 109 of the Constitution.
[30] Two recommendations of the Commission would, if adopted, have removed from the federal Parliament its exclusive power to make laws in respect of two matters, being the power to make laws for places acquired by the Commonwealth for public purposes[43] and the power under s 90 to levy duties of excise. High Court interpretations of s 90, both before and after 1988, have tended to debar States from levying a wide variety of indirect taxes. States might well have favoured the amendment proposed by the Commission.[44] On the other hand, States might have opposed other recommendations the effect of which would have been to subject State Parliaments to the same limitations on the exercise of their legislative powers as apply to the federal Parliament. Some such limitations related to democratic rights and processes,[45] some to the tenure of judicial officers,[46] and some to individual rights and freedoms.[47]
[31] It seemed to the Constitutional Commission that one of the matters they were expected to address was whether the Constitution should be amended to include a comprehensive charter of individual rights and freedoms of the kind contained in many modem constitutions. One of the advisory committees had, after all, been charged to consider that very question. The Commission was well aware of the fact that the pros and cons of an entrenched Bill of Rights was a matter on which opinions have differed, not least because of the powers that such instruments confer on unelected judiciaries to strike down legislation enacted by democratically elected legislatures.
[32] The Commission received the report of the Advisory Committee on Individual and Democratic Rights in July 1987. That committee advised adoption of an entrenched Bill of Rights and presented a draft of such a document. The Commission did not, however, find this draft altogether satisfactory and they decided to consider the whole matter more or less afresh. The Bill of Rights they eventually recommended was a modified version of the Canadian Charter of Rights and Freedoms 1982. There was, however, a difference of opinion among the five members of the Commission as to whether the provisions of the proposed Australian Bill of Rights should, like the Canadian Charter, include a provision which would enable legislatures to enact legislation which was expressed to operate notwithstanding the substantive provisions of the Charter. Three members of the Commission considered that there should be no such override provision.[48]
[33] Although
Australian electors have not, to date, had an opportunity to vote on whether the
federal Constitution
should be amended so as to incorporate an entrenched Bill of Rights, binding all
Australian governments, the proposed amendments
submitted to them in 1988
included ones which, had they been approved, would have expanded three existing
rights and freedoms. Those
three rights and freedoms bind the Commonwealth
only.[49] The amendments
proposed in 1988 would simply have extended them so as to bind the States and
the Territories. The ‘no’
case presented to electors in respect of
these amendments was not, some may think, entirely well-informed or
rational.
[35] While
the Commission clearly did not endorse any changes in the Constitution that would
allow its provisions to be altered by parliamentary majorities – even
special ones – it did see merit in the
existing provision in s 51(xxxvii) of the
Constitution, whereby
the federal Parliament may acquire additional legislative powers in respect of
matters not within the federal list, and
do so upon reference by State
Parliaments of powers invested exclusively in them. The Commission considered it
desirable that the
reference power be counterbalanced by a constitutional
provision that would allow the federal Parliament to designate any of the
matters within its exclusive legislative powers as matters with respect to which
the State Parliaments may make
laws.[50]
[37] Some years after the Constitutional Commission had reported, the question of whether Australia should remain a constitutional monarchy was re-activated. A peoples’ convention – the 1998 Constitutional Convention – was assembled to consider the issue.[54] Those attending the convention were generally in favour of Australia becoming a republic, though there were differences of opinion among them on how the new Head of State – a President – should be chosen. At the ensuing constitutional referendum, electors were afforded an opportunity to express their views. The proposed alterations to the Constitution put before them were extensive and they may have been perplexing to many electors. Electors could not, however, have been left in doubt about the central issue to be decided by them: it was, essentially, whether they wished Australia’s Head of State to be a President, chosen for a term of five years, by two-thirds of the members of federal Parliament.[55] An overall majority of the electors voted ‘no’; but among them there would certainly have been some who, though pro-republican, thought that the President should be elected directly by electors, rather than by their elected representatives.
[38] The republican cause is certainly not dead and it is
very likely that electors will, in the near future, have another occasion
to
vote on the monarchy-republic issue.
[40] Of the changes recommended by the Constitutional Commission, the ones that might be given high priority are those for removal of outmoded and expended provisions and for alteration of the process for amendment of the Constitution. Some of the difficulties arising from the current division of legislative powers between the Commonwealth and the States may, to an extent, be surmounted by reference of State legislative powers to the Commonwealth (pursuant to s 51(xxxvii) of the Constitution), or by cooperative arrangements that result in the enactment of complementary federal and State legislation. But without constitutional amendments, nothing can be done to overcome some other difficulties presented by the Constitution. For example, short of constitutional amendment, nothing can now be done to counter the High Court’s recent decision in Re Wakim; Ex parte McNally[56] that the Constitution does not permit the State jurisdiction of State courts to be cross-vested in federal courts, even if the federal Parliament approves such an arrangement.
[41] It is possible (perhaps even likely) that over the next decade there will be further public debate about whether the Constitution should be amended so as to incorporate a charter of fundamental rights and freedoms. No doubt there will continue to be opposition to the entrenchment of such an instrument in the Constitution, mainly on the ground that it would greatly enhance the powers of unelected judiciaries. It is nonetheless open to the federal Parliament, in exercise of its external affairs power,[57] to enact legislation to incorporate into domestic law provisions designed to implement Australia’s obligations under a number of international instruments, for example the International Covenant on Civil and Political Rights (‘ICCPR’).[58] The UK’s Human Rights Act 1998 (UK) might serve as a model for such legislation.[59] Yet another model which might be thought worthy of emulation is the New Zealand Bill of Rights Act 1990 (NZ). Neither of these enactments, it should be said, allows courts to hold parliamentary legislation invalid. Both, however, require courts to have regard to certain norms in their interpretations and applications of domestic laws.
[42] Australian judges are, I surmise, less likely to be discomforted by having to apply enactments of the kind exemplified by the UK’s Human Rights Act 1998 (UK) and the New Zealand Bill of Rights Act 1990 (NZ) than they would be if the Constitution incorporated a charter of rights and freedoms, contraventions of which would oblige them to hold government acts (including legislation) to be unconstitutional. Justices of the High Court, in particular, should by now be acutely sensitive to the criticisms that their judgments may attract when they adjudge legislation to be invalid on the ground that it infringes some right or freedom which they have found to be implied in the Constitution.[60]
[43] The High Court does not, of course, have any official role to play in the processes that may result in formal amendment of the Constitution. But, in the discharge of its functions, the Court must rule on what the Constitution means: what it permits, what it requires and what it prohibits. Issues which the Court has to decide may sometimes concern the constitutionality of government measures that have been adopted to deal with developments that could not have been envisaged by the framers of the Constitution. Generally, however, the Court has interpreted the grants of legislative power to the federal Parliament in a generous fashion, and without regard to what could and could not have been within the contemplation of the framers of the Constitution. Indeed, some rulings of the Court have suggested that some amendments that federal governments had sought in earlier years were not necessary to arm the federal Parliament with the powers which were sought.[61]
[44] One of the legislative powers originally given to the federal Parliament, which has proved to be one that enables that Parliament to enact legislation on matters not otherwise with its powers, is the power conferred by s 51(xxix) to make laws with respect to ‘external affairs’. This provision has been interpreted by majorities in the High Court in such a way as to permit the federal Parliament to enact legislation to implement Australia’s international obligations, even when these obligations relate to the content of Australian domestic laws, including State laws, on subjects which otherwise fall within the exclusive province of the States.[62] The States have, not surprisingly, been concerned about the uses which may be made of this power, particularly since they have no constitutionally assured role in determining whether Australia should become a party to international instruments. By its ratification of international instruments, the executive branch of the Commonwealth can effectively enlarge the legislative powers of the federal Parliament, and by force of s 109 of the Constitution, ensure that its legislation is paramount.[63]
[45] The federal Constitution has imposed some express inhibitions on the uses that State Parliaments might make of their legislative powers.[64] But to those express inhibitions the High Court has added some implicit inhibitions. For example, in Kable v Director of Public Prosecutions (NSW),[65] a majority of the Justices of the Court held that the Constitution prohibits State Parliaments from enacting legislation that invests in State courts powers or functions of a non-judicial character if the powers or functions so invested are incompatible with the exercise by State courts of any of the judicial powers of the Commonwealth. The impact of this implied constitutional limitation on State legislative powers is somewhat uncertain, but it may necessitate review of State legislation under which powers which are not, strictly speaking, of a judicial character have been invested in bodies recognisable as State courts.
[46] In the performance of its role as Australia’s ultimate
constitutional court – sometimes as the first and last court
to decide
issues arising under the
Constitution – the High Court has put flesh upon the bare bones
of that Constitution.
Though it has done so only when justiciable issues have been raised before it,
and typically only when the constitutionality of
some governmental measure has
been challenged by a party, the Court has, by reason of its role as the ultimate
constitutional court,
shown that it has a capacity to reshape the Constitution, albeit without
formal amendment of the text. Absent such formal amendments, there may be
increasing pressures on the Court to adopt
interpretations of the text that are
perceived to be in tune with contemporary circumstances and needs. But among the
Justices of
the Court at any one time there may be quite sharp differences of
opinion about the extent to which it is proper for them to be guided
by
considerations such as what are thought to have been the intentions of the
framers of the Constitution[66]
and assumptions implicit in the text of the Constitution, including ones
about the ‘proper’ balance between federal and State
powers.[67]
[48] The experience of that Commission may, however, suggest to some that, in future, reviews of the Constitution (or some aspects of it) should not be assigned to bodies established solely by the Commonwealth executive, but rather should be assigned to a body established pursuant to enactments of all the Australian legislatures, including those of the self-governing Territories of the Commonwealth. Governments would surely find it less easy to ignore or shelve recommendations for constitutional change emanating from something recognisable as a peoples’ constitutional convention than they would the recommendations of a body like the Constitutional Commission, the members of which were appointed solely by the executive government of the Commonwealth – and likewise the members of the Commission’s advisory committees.
[49] Those who favour the establishment of what are broadly described as peoples’ conventions to review the Constitution, or aspects of it, may seek to advance their arguments by reference to the several conventions that were assembled in the last decade of the 19th century to consider a constitution for a federal union of the Australian colonies. Viewed in retrospect, those conventions cannot be regarded as truly representative ones. Moreover, analyses of the recorded debates at those conventions reveal that the main architects of the Constitution were politicians, many of them lawyers, elected to political offices under a restrictive franchise.
[50] The Constitutional Commission that deliberated between late 1985 and 1988 was certainly unlike those assemblies at which a constitution for a federation of the Australian colonies was forged. None of its members was elected. None of the statements made by its members in the course of meetings are recorded by verbatim reports of what they said, in public sessions. Meetings of the Commission were held in camera and reports of those meetings were recorded only in minutes (deposited ultimately in federal archives). The minutes, and also the published reports of the Commission’s deliberations will, however, reveal very few differences of opinion among members (including among members who were identifiable as persons associated with particular political parties).
[51] Any further review of the Constitution which is
undertaken in the near future must surely take the Final Report of the
Commission as a starting point. That report provides a valuable overview of
the Constitution as it
stood in 1988 and of the ways that it has been interpreted. It also provides
information about previous proposals for constitutional
change. Many of the
Commission’s recommendations could not be regarded as contentious or
opposed on any rational grounds. In
this 21st century, the case for
some refashioning of the
Constitution may be increasingly hard to resist.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/50.html