LAWS1116 L3, 2011



The rule of law

  • Everyone is subject to the same law. Your status is irrelevant.

Constitutionalism and judicial review

  • A form of the rule of law. It is the idea that government will be governed by the law in a fairly strong way.
  • Governments are held accountable through the judiciary.
  • Judicial review may have a broader meaning, not just to hold the government to account, but also holding the legislatures to account.
  • The judiciary may only act as defined in the Constitution

The separation of powers

  • The separation of powers is implied in the Constitution.

Representative and responsible government

  • The system of democracy where parliament is made up of people directly chosen by the people and the executive is accountable to parliaments.


  • A system where government power is divided into central and regional governments.
  • A division of power between central organs of government and regional organs of government
  • Federation – comes from Latin word to mean connection between independent political communities to come together through treaties
    • The political communities retain independent existence
    • Simply agree to unify themselves
  • States represented by the senate, each state no matter the population have the same amount of representative senators in the senate
  • Notion of free trade among the states important concept of Australian Federalism – sense of unity
  • Federation came about due to the agreement by the people of the federation to do so

Five aspects of Australian federalism

Formation: Creation of the federation by compact among the peoples of the states.

  • Political communities come together to be united under a treaty (agreement to unify but retaining independent living).

Representation: of the people and the states.

Distribution of powers: between the federation and the states.

  • Legislative powers
  • Executive powers
  • Judicial powers

Economic union: free trade among the states.

  • One of the driving motivations for federation.
  • Seen in the European Union: grounded on the idea that it should be free trade zone.

Amendment: of the constitution by the people of the federation and the states.

  • Constitution might need to be changed in the future.

Models of federalism

  • United States of America 1789
    • Australia used the idea of House of Reps and Senate – allocation of powers etc but did not adopt the presidential system.
  • Switzerland 1848
    • Did not join the EU.
    • Believed in direct democracy (decisions made by your direct voting), in contrast to representative democracy. Swiss Constitution can only be amended by referenda supported by the majority of voters in the majority of states (cantons).
  • Canada 1867
    • Both part of the Commonwealth.
    • Established their constitution while still under authority of Britain as a colony
    • Carved out a middle ground between independence and keeping ties with Britain
    • Australia took from them the idea of developing a constitution that at first adhered to British principles but set up a system where Australia could become increasingly independent
  • Germany 1871

Theories of federalism

  • Montesquieu, The Spirit of Laws (1970)
    • Several smaller States agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body … As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.
    • There are benefits in being small and in being large.
  • Madison, Federalist No 39 (1788)
  • Bryce, The American Commonwealth (1889)
  • Freeman, History of Federal Government (1893)
  • Dicey, Introduction to the Study of the Law of the Constitution (1897)


  • Again reinforces the idea that there was an agreement, they were not forced to unite
  • “Commonwealth” rather than “republic” as said by Montesquieu
    • We were always a Commonwealth (goods of society owned by the public) but the issue of whether we should be a Republic only arose in 1999
    • The two however are very similar

The Australian colonies

  • Pre-existing colonies
    • Established prior to federation
    • Integrative federation
  • Local self-government
    • Representative and responsible government
    • Separation from New South Wales
    • Colonies far away from Sydney wanted local self-government that reflected their own needs
    • Independence from Britain.

The objectives of federation

  • Common defence
  • Economic union
    • Some benefits of trade.
  • Nationalism
  • Local self-government.

The federal pact

  • Parties
    • British Parliament
    • Colonial governments
    • Colonial legislatures
    • Peoples of the colonies/ states
    • People of the nation
  • Decision-making rules
    • Unanimity
    • Majority
    • Required co-operation of all the premiers of all the states in order to establish agreement to federate


  • Constitution preserved state parliaments (s 106)
  • Adopted parliamentary responsible government rather than presidential
  • Commonwealth parliament
    • Senate (s 7)
    • House of Representatives (s 24)
  • Responsible government
    • Prime Minister accountable to Parliament.
    • Responsibility to the lower house: nationalising effect.
    • Equal state representation in a powerful Senate.
    • Compromise over money bills (s 53).
  • How does Parliament hold the Executive accountable? Budget (supply bill), which authorises the Executive to spend money. Parliament may not spend any money without the supply bill.

Financial and economic union

  • Distribution of financial powers
    • State taxing and spending powers (s 106)
    • Federal powers
      • Taxation (s 51(ii))
      • Spending (ss 81, 83)
      • Federal control of customs and excise (s 90)
  • Economic union
    • Freedom of interstate trade (s 92)

Legislative powers

  • Continuing state legislative powers
    • Federal Constitution, ss 106, 107 and 109
    • Australia Acts, ss 1-3, 5
    • Constitution of Queensland 2001, s 8
    • Constitution Act 1867 (Qld), s 2
  • Enumerated federal legislative powers
    • Constitution, ss 51, 52: Defence, external affairs, interstate trade and commerce, marriage, lighthouses, telegraphs
  • s 109: Repugnancy.
  • Commonwealth legislature only has power to legislate for certain things e.g. defence, interstate (but not within state) trade
  • Everything not mentioned was given to the states
  • States and commonwealth legislative power is concurrent
    • Some powers of the commonwealth the states have also e.g. marriage laws
  • However commonwealth law always prevails over state law in any inconsistency

Testing federal laws

  • First inquiry: power.
    • Can the law be characterised as being ‘with respect to’ a matter listed in ss 51 and 52?
  • Second inquiry: prohibition.
    • Is the law contrary to an express or implied limitation on the Commonwealth?

General process

  • First inquiry:
    • Characterise the federal law
    • Interpret the relevant head (or heads) of power
    • Decide whether the federal law (as characterised) falls within the head of power (a interpreted)
  • Second inquiry:
    • Is the law contrary to an express or implied limitation?
      • Express: ss 51(xxxi) (just terms), 80 (jury trial), 92 (free trade), 116 (freedom of religion).
      • Implied: Intergovernmental immunities, freedom of political communication.


  • Referendum: Dual majority
    • Formal amendment (s 128, para 1)
  • Referendum: Unanimity
    • Representation of states (s 128, para 5)
  • Parliamentary unanimity
    • Imperial powers (s 51(38))
      • Deliberately phrased the section to give Commonwealth capacity to exercise the powers of the British Parliament (a catch-all power) so long as it has the consent of all the affected States.
    • Australia Acts and Statute of Westminster (s 15)