Constitutional Law Notes What is a Constitution?



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Constitutional Law Notes
What is a Constitution?

  • Constitutional government is a government that as a Constitution which limits the powers of political authorities and is not susceptible to easy modification or abrogation

  • Constitution as Paramount Law

    • A law overriding all other laws (laws must comply with the Constitution or will be deemed invalid)

      • Will not be able to be amended through an ordinary statute

    • Determines the power of each area of government (separation of powers)

    • Usually found in written form – one or more documents

    • Will include – details of the key branches of government (their composition and power), protected rights and freedoms, procedure of changing the Constitution

  • Constitution as the actual system of government (living Constitution)

    • Need to consult supplementary legislation, conventions and relevant judicial proceedings

    • Many areas of government are not specified in the Constitution but have developed through convention (e.g. the Australian Constitution makes no mention of the Prime Minister)

    • Constitution in actual operation (a country may have a very good written Constitution but the experience of the society does not reflect the Constitution if judges/politicians are corrupt)

  • Constitution in the Philosophical Sense

    • The realization of an ideal (never fully realised)

    • Designed to limit/contain power and implement the rule of law

  • The Unwritten Constitution – a constitutional government may exist without a written constitution

    • E.g. the United Kingdom – government derives their composition, powers, privileges and basic procedures from ancient custom and common law, conventional practice and a few defining statutes

    • Parliament is supreme – legislation cannot be questioned by the courts

  • Mixture of ideas – Westminster system from the UK, the written form, federalism, separation of powers and judicial review from the USA

  • Dicey – constitutional law includes “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State”

  • Ideal Constitution – constitutional stability (hard to change), representative democracy, separation of power, federal distribution of power, protects basic rights and liberties

Separation of Powers

  • Sections of the Constitution vests the three great powers into three different branches of government

    • s.1 – legislative power vested in Parliament (Queen, Senate and HoR)

    • s.61 – executive power vested in the Queen (exercised by GG)

    • s.71 – judicial power vested in High Court, other federal courts and other courts (State Courts) (known as CH III Courts)

  • This ideal is impossible to achieve completely

    • E.g. Separation of powers does not completely exist in Australia – the executive has majority support in HoR, the executive organized the legislative agenda (the executive control what Bills are passed), High Court allows legislature wide law making power, judges are appointed by the executive and removable by Parliament

  • The HC has condoned integration of the legislative and executive power but is strict on separation of judicial and non-judicial powers




  • Legislative Power

    • Capacity to change existing legal relations (creating new rules – must apply generally (or to a class), not an individual)

    • Legislative power is distributed between Federal and State level

    • Legislation that involves matters of policy or principle should be made by Parliament (not the Executive)

  • Executive Power

    • Extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth

    • Most commonly – accomplishing physical tasks within the limits of the law (e.g. carrying out public work on Crown land using funds already appropriated for the purpose)

    • Police power – keep the peace and investigate and prosecute criminals. Police officers have no power to violate a citizen’s rights without the authority of law

    • Military power – power to declare war and peace, deploy the nation’s military forces

    • Foreign Affairs power – power to conduct relations with other nations and international organisations and make treaties with foreign States (treaties must be adopted by legislation to become domestic law)

    • Contracts power – power to enter into contracts to achieve the purposes of government (can’t create legal relations unilaterally, only consensually)

    • Power to alter legal relations unilaterally or coercively – power to create new legal relations or modify existing legal relations without the consent of the affected person (e.g. licences, authorisations, approvals and other regulatory orders)  Quasi-Judicial Power

      • Different from legislative power in that while it allows the creation of new legal rights, these rights are not general and only apply in the particular case




  • Judicial Power

    • ‘The power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, wether the rights relate to life, liberty or property.’ The exercise of this power does not begin until ‘some tribunal which has the power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action’ – per Griffith CJ, Huddart, Parker & Co Pty Ltd v Moorehead (1909) at p.357.

    • Two key aspects- existence of a controversy and the capacity to determine the controversy conclusively

    • Judicial power is controlled power – it’s exercise is based on authoritative legal materials (rules, principles, conceptions and standards)

    • Judicial power of the Cth is vested almost exclusively in CH III courts

    • Key question when it comes to judicial power – is the relevant power characterised as judicial power

    • Jurisdiction (is the matter one in relation to which the judge may act?) – no court has unlimited jurisdiction (s.73 – appellate jurisdiction, s.74 - original jurisdiction in respect to certain subjects, s.76 – Parliament can confer additional original jurisdiction)

    • Effect – declare rights and duties of litigants according to established law but not altering legal positions (incremental changes)


Elements of Judicial Power (each must exist for the power to be deemed judicial)

    • Controversy

      • Must be a controversy between two parties (either the Crown and a subject or between two subjects)

      • Controversy is absolutely necessary  Ch III defines federal jurisdiction in relation to matters (Re Judiciary Act interpreted the term ‘matter’ to refer to a controversy concerning a right, duty or liability

      • The dispute must be brought before the court – the court does not go out of their way to bring a matter before them

      • The Question of Standing – judicial power can only be exercised when a controversy is brought before the court by a person entitled to do so. The person has locus standi – a personal interest in the matter greater than the public

        • The Attorney-General has standing to bring an action to defend a public right

    • Rights, Liberty and Property

      • The controversy must concern ‘rights, liberty or property’

      • Two elements: rights must be - existing rights and basic rights

      • Pre-Existing Rights

        • Must decide controversy according to existing rights and obligations, not create new rights and obligations – Tasmanian Breweries Case (1970)

        • This means that judges don’t make law – this is arguable. However, if judges do make law it is different to law made by the legislature (they can’t make law on any matter they want – limited to the controversy at hand – and must observe the rule of natural justice)

      • Basic Rights

        • R v Quinn (1977) – judicial power is exercised only with respect to ‘basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom.’

        • Problem – what rights are considered basic?

    • Conclusiveness

      • Capacity to give a binding or authoritative decision (whether subject to appeal or not)

      • The court/tribunal doesn’t necessarily have to possess the ability to enforce its own decisions – R v Davison (1954)

      • Court of Record – a court that has the power to both make determinations and enforce them (Alexander’s Case (1918))

      • Doctrine of res judicata – the matter cannot be litigated again by the same litigants

      • Doctrine of functus officio – the decisions cannot be varied by the same tribunal except in very limited circumstances

      • Doctrine of collateral attack – the decision made within jurisdiction cannot be questioned in a collateral proceeding

      • De novo hearings – the decision must not be subject to a de novo hearing (when a court rehears both the evidence and legal submissions

        • Brandy v HREOC (1995) – stated the requirements of a de novo hearing

          • The original decision is not enforceable because the aggrieved party failed to appeal

          • There is no onus to appeal

          • To enforce the decision, a new action must commence in a proper court

          • Prosecutor must lead all the evidence – no discretion, it is a new action

          • The court must rehear the case on facts and law

            • If all of these conditions are met, the initial decision is not conclusive

    • Non-Consensual

      • Both parties don’t need to consent to go to court



  • Chameleon Power

  • R v Quinn – the power vested in the registrar to cancel the registration of a trade mark was non-judicial. However, in Farberfabriken, the court held this power to be constitutional. Why?

  • A chameleon power is judicial when vested in a court and is non-judicial when vested in some other body

  • Principle of contradiction – you can’t say something is and isn’t at the same time – condemned in Visnic v ASIC (2007) and Alberran (2007)

Separation of Legislative & Executive Powers

    • Weak separation – the executive usually controls the HoR, parliament can delegate wide legislative power to the executive, the GG can summon/prorogue (suspend)/dissolve parliament

    • Victorian Stevedoring Co and General Contracting Co v Dignan (1931)

      • The separation was initially weak – but has been further weakened by the court

      • s.3 (which allowed the GG to make regulations on all aspects of waterside employment) challenged based on unconstitutional delegation of legislative power

      • s.3 was upheld – reasons: responsible government is a safeguard, parliament can repeal bad executive law

      • Court suggested 2 limitations to delegated legislation:

        • Must not be too wide that legislation can’t be characterized

        • Must not amount to abdication of power

    • Legislative Standards Act – lay down standards about delegating legislative power (laudable, not binding – not Constitutional)



Separation of Judicial and Non-Judicial Power

  • The High Court is very strict in ensuring that judicial power is not given to other bodies and that non-judicial power is not given to courts

  • Rationale:

    • Federalist: independent judiciary to maintain federal division (an independent judiciary can only be achieved if the judicial power is separated from other powers)

    • Libertarian: checks and balances and judicial independence




  • KEY PROVISION: s.71 – The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

  • s.72 – the tenure and remuneration of federal judges

  • s.73 – the appellate jurisdiction of the High Court

  • s.75-76 – the original jurisdiction of the High Court

  • s.77 – the Parliament’s power to define and invest federal jurisdiction in federal and State courts




  • The High Court seeks to invest judicial power in only CH III Courts and prevent the vesting of non-judicial power in these courts



Prohibitory Rules

  1. Judicial power of the Cth shall not be vested in bodies not designated in CH III

  • Such bodies = High Court, Federal Courts (Federal Court, Family Court, Federal Magistrates Court) and State Courts in which Parliament vests federal judicial power)

  • Boilermakers Case (1956) – established this rule: the language of the Constitution prevents the possibility of vesting judicial power in other bodies

  1. Judicial power may be vested only in courts in the strict sense

  • A body is regarded as court if its main function or functions are judicial – Alexander’s Case (1918)

  1. Federal courts that exercise judicial power must conform to s.72

  • The court must be constituted as provided in s.72 – Alexander’s Case

  • Requirements: federal judges are appointed by the Governor-General; removal can only be done by the Governor-General on an address of both houses of parliament on the grounds of proved misbehaviour or incapacity; remuneration of judges must be fixed and not diminish

  • Tenure for life (until 70) – can’t appoint judges for fixed terms (Alexander’s Case)

  1. A court may delegate judicial power but must not abdicate judicial power

  • Relieve the court from some of their work by assigning non-contentious aspects of jurisdiction to officials who are not judges

  • Harris v Caladine (1991) – Held that delegation of judicial powers to those who are not judges (e.g. registrars) is valid providing that:

    • The delegation is not so extensive that it can no longer be said that judges constitute the court

    • The delegation must not be inconsistent with the obligation of the court to act judicially, and the decisions must be subject to review or appeal by a judge

  • The structure of the Court must not change

  • The person the power is delegated to must be an official of the court

  1. Judicial powers not within CH III must not be vested in the High Court or other federal courts

  • Re Judiciary Act (1921) – s.88 of the Act gave power to the HC to determine the validity of laws referred to it by the Governor General. It was held that as the power was judicial power outside of CH II, it was not exercisable by the High Court

  • The express vesting of some powers means the exclusion of other powers

  1. Federal courts cannot exercise State judicial power except in cases of ‘accrued jurisdiction’

  • Federal courts can exercise State judicial power in cases in which both Federal and State jurisdiction arise in the same controversy

  1. Parliament must not vest non-judicial power in CH III courts

  • Boilermakers Case - the reasoning that judicial power cannot be vested in bodies that are not CH III courts due to the express vestment of such power in CH III courts must be applied to legislative and executive power (non-judicial power). As non-judicial power is expressly vested in other bodies, this means they cannot be vested in CH III courts.

  • There are exceptions. There is a difference between Federal and State courts in respect to this: (more non-judicial power can be given to State courts than to federal courts)

    • Non-judicial power may be given to State courts providing that it is not incompatible with the exercise of federal judicial power (Kable, Fardon, Baker)

    • Non-judicial power can’t be given to the HC or federal courts unless it’s incidental to the exercise of judicial power (Bond, Thornton, Davison)




  1. State Parliaments must not vest in State courts non-judicial powers that are incompatible with their exercise of federal judicial power

  • There is an absence of an explicit separation of powers in State Constitutions – allows State courts to exercise non-judicial power

  • Alexander’s Case – State Parliaments can give State courts non-judicial powers providing they do not threaten the character of the courts as bodies that primarily perform judicial function and do not undermine the courts’ capacity to exercise federal judicial power by diminishing public confidence

  1. Parliament must not remove from courts jurisdiction that the Constitution has directly vested in them

  • Appellate Jurisdiction – s.73 has jurisdiction to hear appeals from all judgments from the original jurisdiction of the High Court, any other federal court, State Supreme Court, or any court – this right to appeal to the High Court cannot be removed (Cockle v Isaksen (1958))

  • Original Jurisdiction under s.75 cannot be removed – Lim v Minister of Immigration (1992)

  1. Parliament must not direct the way courts exercise judicial power

  • Parliament cannot direct the manner and outcome of the exercise of judicial power

  • Legislation should not impose a judgment on the court (Calder v Bull) or intervene in judicial proceedings

  1. The ban on bills of attainder and ex post facto punishment

  • Basic doctrine – it is lawful to do whatever the al woes not forbid

  • Retrospective laws are not permitted – Polyukhvich v Commonwealth (1991)


Permissive Rules

  1. The persona designate rule

  • Non-judicial power can be vested in a judge in his/her personal capacity – Hilton v Wells (1985)

  • Grollo v Palmer (1995) imposed two conditions:

    • Compatibility condition – compatible with the judge’s capacity to perform further judicial functions (time) and with the court’s responsibility (confidence)

    • Consent condition – the judge must consent to being given the power unless it is incidental to judicial power

  1. Judicial power with respect to military offences by service personnel may be vested in courts martial

  • Power outside CH III, thus can be given to a military tribunal – White v Director of Military Prosecutions (2007)

  • A service offence can also be a ‘civil’ offence triable under a CH III court (e.g. assault of a civilian while on duty)

  • What is a service offence? - E.g. desertion in times of war, insubordination, drunkenness on duty, unlawful discharge of a weapon. Two theories:

    • Service status theory – triable by court marital if committed by a military servicemen even if it does not concern military discipline

    • Service connection theory – triable by court martial only if connected to the purpose of maintaining military discipline (majority of judges like this theory but some disagreement – e.g. Alpert (2004) – rape by a service personnel while on recreational leave, triable by court martial)



  1. Parliament may exercise judicial power in relation to its own powers, privileges and immunities

  • Contempt of Parliament – influencing a member one way or another, giving false evidence to a committee of Parliament, stopping a member from getting to Parliament (Parliament decides what is contempt)

  • With these acts – parliament can exercise judicial power in relation to them (s.49 - Parliament may declare its own privileges – Parliamentary Privileges Act)

  1. Superior courts may make rules of procedure

  • Legislative in character – power of courts to regulate their own procedure (general rules of conduct

  • R v Davison (1954) – making procedural rules is ‘an extreme example of a function that may be given to courts as an incident of judicial power or dealt with directly as an exercise of legislative power’


Separation of Powers in State Constitutions

  • State Constitutions do not recongise separation of powers to any degree - courts did not recognize any separation until Kable v DPP (1996)

  • State Parliaments can delegate but not abdicate legislative power

  • HC’s doctrine of institutional integrity (DII) has effected a degree of separation of powers. 4 aspects:

    • Grant of Incompatible Jurisdiction – State legislature must not grant a State court a power that is incompatible with its role as a court exercising federal judicial power

      • E.g. - Kable v DPP (1996) – legislation allowed the court to issue a detention order if it was likely that Kable would commit an act of violence - giving the court the power to make detention orders makes the court an instrument of government policy (undermines public confidence/independence) – this is incompatible with the federal judicial power vested in them)

    • Depriving Supervisory Jurisdiction – State Supreme Courts have the power to confine inferior courts to the limits of their jurisdiction by granting relief (usually by writ of certiorari) on the grounds of jurisdictional error (an error leading to the court exceeding its legal power)

      • State parliament can’t deprive Supreme Courts of this power – Kirk v Industrial Court of New South Wales (2010)

    • Integrity of the constitution of courts should not be affected– excessive acting appointment would distort the character of the court as an independent and impartial body (this is not constitutional – tenure until 70)

    • State law leading to failure of natural justice – basic requirements are impartiality and reasonable hearing

      • Gypsy Jokers (2008); K-Generation (2009) – possible for court to receive criminal intelligence and not give this information to the defendant


Commonwealth-State Relations

  • The relationship between Cth and State government is a crucial part of the constitutional framework

  • Federation is evident throughout the Constitution

  • Cth and States have defined areas of power – there is a possibility of conflict

    • s.51 – enumerated powers of the Cth

    • Some powers are exclusive to Cth – s.52 and some other ones scattered throughout the Cth (e.g. ss. 90 and 122)

    • Some powers are exclusive to States as they are not explicitly given to the Cth – Residual Powers (s.107)

    • Some powers are concurrent – s.51  this raises the possibility of conflict
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