A norm is an ‘ought’ proposition something ought to be done
Norms can be both legal and non-legal/moral
Legal norm = a norm that has validity conferred by another valid norm (behind every legal norm lies another legal norm)
E.g. A police officer has the authority to fine you for speeding. He gets that authority from an Act of Parliament. That Act is valid as under the Constitution, the Parliament has the power to make such a law. The Constitution obtained its validity from a UK law. That UK law is binding, as the Parliament is supreme (the furthest you can push this is to the basic norm – a political fact)
The whole system is based on a basic norm (e.g. s.128 of the Constitution) – usually found in the Constitution
The basic norm can be changed by revolution or by peaceful agreement
Evolution of Australian Independence
1788-1823: There was no legislature in the colonies. The colonies were governed by the Governor (had legislative and executive power) who was responsible to the Colonial Secretary who was responsible to the British Parliament
1823-1828: The Legislative Council of NSW was established – established to give the Governor advice, which the Governor had to act on. The British Parliament retained legislative power
Australian Courts Act 1828: Deprived the Governor the power to legislate against the will of the Legislative Council (prior the Governor only had to consult with the LC). English law applied in the colony as it existed on the 25h of July 1828 (after then, only imperial laws apply by ‘paramount force’ – if it expressly or by necessary implication extended to the colony)
1828-1865: Every colony obtained its own Constitution via a Constitution Act and obtained a legislature.
Colonial Laws Validity Act 1865 (CLVA):
A UK Act will apply in a colony if it is extended by express words or necessary intendment (s.1)
Colonial laws that are repugnant to UK Acts extending to the colony are void and inoperative (s.2)
Colonial legislatures have power to make laws with respect to (a) legislatures and (b) the constitution, powers and procedures of the legislature (s.5)
Colonial laws must observe manner and form requirements in legislating with respect to s.5(b)
Federation – 1900: 6 colonies were federate under the Commonwealth of Australia Constitution Act 1900 (UK) – CACA.
s.9 of the CACA states that the Cth Constitution shall be as follows and sets out s.128.
The UK Parliament retained the power to make laws for the Cth and the States.
Australia gained dominion status – has their own legislature but stays within the British Empire.
There were two ways to amend the Constitution – s.128 referendum or an Act of UK Parliament amending the CACA
Statute of Westminster Adoption Act 1942: Act enacted by the UK Parliament in 1921. Had to be adopted by the Australian Parliament to be effective in Australia – adopted in 1942.
The CLVA does not apply to the dominions (s.2)
A dominion has extra-territorial power (s.3)
No UK Act will extend to a Dominion unless the Dominion requested and consented to it (s.4)
Such a request must be made by the Cth Parliament and Government (s.9)
Can the UK Parliament repeal the Statute of Westminster?
The UK Parliament is said to be sovereign
Could the UK Parliament repeal ss. 4 and 9 and legislate for Australia even without a request
It is unlikely that the Australian Courts and other authorities would recognised such a repeal
Also, politically – the basic norm may have changed to s.128 because the power to request is subject to control under s.128 by constitutional amendment
Australia Act 1986:
The object of the Australia Act was to sever the remaining constitutional limits to the UK (except the monarchy)
To remove doubts about the validity, an identical Act was passed by both the UK and Australian Parliament
4 stage process:
Each State Parliament enacted the Australia Act (Request) Act to give the Cth power under s.51(xxxviii) to enact the Australia Act
The Cth enacted the Australia Act 1986 (Cth)
The Cth passed the Australia Act (Request) Act (Cth) to request the UK Parliament to enact and identical Act to the Australia Act (Cth)
The UK Parliament enacted the identical Australia Act 1986 (UK)
(3) Nothing in (1) prevents the exercise by Cth Parliament of any power conferred upon it by a constitutional amendment under s.128
Requirement of s.128:
Process:
A bill to amend the Constitution must originate in one of the Houses
The bill must be passed by an absolute majority of each house (majority of ALL MP’s – not just the present MP’s)
If the bill is deadlocked (when one House passes the Bill twice and the other House rejects it twice), the Governor-General may refer it to a referendum (there must be an interval of at least 3 months between the first rejection and the second passing)
Failure to pass or passing with unaccepted amendment equates to a rejection (e.g. if the Senate doesn’t reject the Bill but waits it out without taking any action)
If passed by both Houses – the Bill shall be submitted to a referendum between 2 and 6 months after it has passed (everyone in States and Territories that are eligible to vote at normal elections can vote)
The Bill must be approved by a double majority – a majority of all voters and majority in a majority of States
If the amendment either (a) diminished the representation of the State in either House; or (b) alters the limits (boundaries) of a State – the approval of the affected States is essential
A Bill approved at a referendum must be presented to the GG for royal assent
Constituent Power after 1986
UK Parliament has no constituent power (request provision in Statute of Westminster Act was repealed)
Can the UK Parliament repeal the Australia Act (UK) and change the Constitution? – Unlikely as the basic norm has changed
s.128 is the only source of constituent power in Australia
Argued that s.15 creates a second source of constituent power (s.15 states that the Australia Act can only be amended by an Act of the Cth Parliament onrequest or with concurrence of all State Parliaments)
Step 1: Cth Parliament would amend s.15(1) of the Australia Act (UK) on request of all States to grant the Cth Parliament the power to amend the Constitution by the same procedure
Would read: ‘This Act or the Statute of Westminster 1931 or the Constitution of the Commonwealth of Australia … may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States …’
Step 2: Parliament under s.15(1) would enact amendments of the Constitution on request of all the States
Note: the Australia Act (Cth) cannot be used as it was made under s.51(xxxviii) which is subject to the Constitution
Arguments against Professor Gilbert’s argument: s.15 is in a hierarchical relationship to s.128 and s.128 is the Basic Norm of the Constitution
Relevance of Jackson v Her Majesty’s Attorney-General (Fox Hunting Case) [2006]
Parliament Act 1911 (UK) stated that a Bill rejected by the Lords over 3 sessions in 2 years may be enacted by the Queen and Commons
A bill was passed by Common in 1947 to reduce the time that the Lords could delay Bills (from three sessions over two years to two sessions over one year). After the Lords rejected this Bill in 3 sessions over 2 years, the Queen and Common enacted the Bill Parliament Act 1949
The Hunting Act banned cruel forms of fox hunting – it was passed under the Parliament Act 1949 after the House of Lords resisted it in 2 sessions over one year
Jackson challenged the validity of the Parliament Act 1949 – argued that the 1911 Act could only be changed by the triumvirate (not just the Queen and Commons)
The House of Lords (the Court) declared both the Parliament Act 1949 and the Hunting Act as valid key reason: there had been a shift in the Basic Norm – the Parliament Act 1949 had been treated as being valid over such a long period
This decision gives some credit to Prof. Gilbert’s theory – unlikely to be followed I Australia due to s.128
Can Australia Become a Republic?
s.128 can be used to amend the Constitution but not the Commonwealth of Australia Constitution Act (has 9 sections – the 9th section introduces the Constitution to be as follows)
CACA cannot be changed by recourse to s.51(xxxviii) in a way that alters the Constitution as the powers are ‘subject to the Constitution’ (thus subject to s.128)
s.51(xxxviii): subject to this Constitution … ‘the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia’
It may not be necessary to repeal or amend the CACA:
It may be sufficient if the Constitution is amended under s.128 to substitute a local Head of State in place of the Queen and Governor-General
What about the preamble? ‘Whereas the people of NSW, Vic, SA, Qld and Tas … have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.’ the preamble is not part of the Act (only used to aid in interpretation in case of doubt; thus, the preamble may be ignored)
Secession is only possible by amendment of s.3 of the CACA (established the Cth constituting the 6 original States)
CACA can only be amended by the UK Parliament on request and consent of the Cth Parliament
Request provision was repealed by the Australia Act 1986 there doesn’t seem to be a legal way in which a State can secede
1933 – more than 2/3 of voters in WA voted in favour of secession. A petition was sent to Britain and received by a joint committee of the House of Lords and Commons. Held that such a petition was not receivable according to convention in the absence of a request by the Cth government.
Reference re Secession of Quebec [1998] – held that the province of Quebec had no constitutional right of unilateral secession. However, if the people of Quebec democratically decided to secede, the federal and other provincial governments have a constitutional duty to negotiate the terms of a possible secession
A State may separate by force and establish its own Basic Norm – highly unlikely as the State would struggle to gain recognition as a nation at international law
