Five Things to Know About the Australian Constitution

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Five Things to Know about the Australian Constitution Have you ever wanted to know:

r r r r

Who really had the power to commit Australia’s troops to Iraq? How the government can detain asylum seekers without trial? Who would be in charge in a national emergency? Why the Senate would be weakened if the double dissolution provisions were removed? r Whether it would be unconstitutional to ban flag burning? In this excellent new book, Helen Irving delves into the mystery that is the Australian Constitution by discussing the major national debates of recent years. Many people want to understand and take part in the debate about constitutional issues but they face a significant hurdle: the Constitution is almost impenetrable. In many of its sections, it does not mean what it says, nor does it say what it means. There are many myths in circulation about what the Constitution says and as many assumptions about what it does. Helen Irving, one of this country’s foremost constitutional experts, shows where the mystery lies, putting various constitutional confusions to rest, and inviting a general audience into an understanding of the issues that were once reserved for experts. Helen Irving is one of this country’s pre-eminent commentators on constitutional matters. She is the author and editor of several books including To Constitute a Nation; The Centenary Companion to Australian Federation; Unity and Diversity: A National Conversation and, with Stuart Macintyre, No Ordinary Act: J. A. La Nauze on Federation and the Constitution. She is an Associate Professor in the Faculty of Law at the University of Sydney, where she teaches constitutional law and theory.

Five Things to Know about the Australian Constitution HELEN IRVING

   Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  , UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521603706 © Helen Dorothy Irving 2004 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2004 - -

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Contents

Acknowledgments Introduction

page vi 1

1 The Constitution does not mean what it says

11

2 The Constitution does not say what it means

31

3 The Constitution says some things without actually saying them

52

4 The Constitution fails to say things that might be important

72

5 The Constitution says certain things that contradict each other

92

Conclusion: The Constitution could say what it means and mean what it says (if we wanted it to)

108

Appendix: The Constitution Further reading Index

117 157 159

v

Acknowledgments

Although this is not a ‘lawyers’ book’, many friends and colleagues in the legal community have been instrumental (perhaps without knowing it) in inspiring or assisting it. I would like to thank, most warmly, Michael Coper, Jolyon Ford, Peter Gerangelos, John Pyke, Anne Twomey, George Williams, Jeremy Webber, and John Williams. The Faculty of Law at the University of Sydney has also been a tremendous source of support. Much of the manuscript was written at Harmer’s Haven in the summer holiday company of my family, and many ideas were tried out on, or drawn out of them. I am, as ever, grateful to Stephen Gaukroger, Cressida and Hugh Gaukroger, and Estelle Farrar. Donald Horne, who has thought about the Constitution for many years, has been the single greatest source of ideas, encouragement, and constructive criticism. Finally, I can say without any exaggeration, that I cannot imagine having completed this book without the support and assistance of Kylie Brass. Helen Irving Associate Professor in Law University of Sydney January 2004

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Introduction

Who commands Australia’s troops? Do Australians have the right to burn their flag? Should the powers of the Senate be curtailed? When should a Governor-General resign? What constitutional ‘rights’ do asylum-seekers have? Are retrospective laws unconstitutional? Who would be in control in a national emergency? All of these questions have been asked, in the midst of controversy, in the first years of the twenty-first century. The answers may be surprising. They lie in Australia’s Constitution – one way or another.

What is the Constitution? The Constitution is the legal document upon which the Commonwealth of Australia was founded at federation in 1901. It can be thought of as a type of ‘contract’ or ‘compact’ between the people of the six Australian States (or colonies, as they were previously called). The colonies were self-governing in the nineteenth century, but they chose to come together, to create a federal nation, and thus to do things on a larger scale (like defence, trade, and immigration) more effectively than they could on their own. The Constitution was written by elected delegates at a Federal Convention that met in Adelaide, Sydney and Melbourne, and ran for almost a full year, from 1897 to 1898. At its completion, it was put to a referendum of the voters in each of the colonies in 1899 (and in 1900 in Western Australia). The voters approved it, and the colonial parliaments also accepted it, and so (because the colonies were part of the empire) it was then taken to London, where the United Kingdom Parliament passed it as an Act. 1

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Five things to know about the Australian Constitution

The Constitution was, thus, the work of Australians, but was given legal form in Britain. The significance of its enactment by Britain was very much greater in the past than it is now – indeed Australia’s constitutional relationship with Britain is now almost entirely a matter of past history – but the Constitution still retains the words that suggest that the link is strong. (We consider many of these words in this book.) The Constitution sets out what Australia’s institutions of national government are to be: its first three chapters describe the Parliament, the Executive, and the ‘Judicature’ (or judiciary). Very significantly, section 51 in Chapter I lists things that the Commonwealth Parliament can do. The Parliament can make laws with respect to a range of subjects: trade between the States and with other countries; taxation; postal services; defence; lighthouses; marriage and divorce; certain welfare benefits; immigration; ‘external affairs’, and so on. In principle, all other powers are left to the States. In its fourth chapter, the Constitution describes the trading and financial relations between the Commonwealth and the States. Its fifth chapter sets out certain limitations on what the States can do; followed by a sixth chapter saying how it is possible to create new States in Australia (this has never happened). Chapter VII is only really of interest now because it says that the federal capital has to be in New South Wales. The final chapter – chapter VIII – contains only one section. Section 128 says how the Constitution can be altered, that is, by a referendum in which a majority of the Australian voters, and a majority of all the States, approve of a proposed alteration. We will look at details of these chapters as we go along. What the sections of these eight chapters do, essentially, is describe (and ordain) the institutions of Australia’s parliamentary democracy. They also distribute powers across the different levels: between the three different arms of the Commonwealth Government (Parliament, Executive, Judiciary), and also between the Commonwealth and the States. They say, in places, what the limitations on these powers are. This very short (and mostly succinct) document, thus, sets out where power lies, who can use it, and how it can be exercised. Strangely, despite its importance, many people know very little

Introduction

3

about it. And yet, increasingly, people have been asking questions about the way in which power is exercised in Australia. Often these are constitutional questions.

Governments can only do what the Constitution permits In Australia, every year, disputes arise that demand a constitutional resolution. Handled by legal specialists and settled in the courts, mostly they go unnoticed by the public. But from time to time, controversies occur, drawing the country’s attention to its Constitution. These raise major national questions about whether acts of government or parliament, decisions or actions of officials are ‘constitutional’, that is to say, whether they are authorised by the ultimate source of law and power in Australia. The Constitution is that source. A Constitution like Australia’s is a powerful thing. It is the overriding and supreme determinant – the final tie-breaker – on questions of law. It shapes the way in which policies are put into effect by government; it determines what sort of laws can be made and, directly and daily, it affects the lives of all who live within its reach. The first, and most fundamental thing one needs to know about the Constitution, is that governments can only do what the Constitution permits. A breach of the Constitution – through an attempt to wield powers that it does not grant or to exceed the limits of those that it does – cannot stand. Such an attempt is ‘unconstitutional’. It is unlawful. Those who hold power in Australia – parliaments, governments, public officers, courts – can only use that power as the Constitution permits. For example, if a State established its own defence force (unless approved by the Commonwealth Parliament) this would be unconstitutional, since the Constitution forbids it (see section 114 of the Constitution, at the back of the book). It is as certain as night follows day that a challenge would be brought against it in the High Court of Australia. The Court would rule that it was unconstitutional, and that ruling would have the force of law, overriding the State and preventing its continuing on its path. From the last years of the twentieth century, the Constitution has been almost constantly in the public eye. A referendum in

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1999 asked the Australian people whether they wanted to change Australia from a constitutional monarchy into a republic. The proposal was defeated. The issue was put aside. But that was about a proposal for change. Since that time, one after the other, issues have arisen about the Constitution’s powers as they exist now. Should the twenty-third Governor-General, Peter Hollingworth, have been dismissed in mid-2003 for actions he had taken, or failed to take, in the past, and, if so, who had the power to dismiss him? Who decided to commit Australia’s troops to the invasion of Iraq early in that same year? Should the powers of the Senate be diminished, to make the minor parties less of an irritant to government? Is flag-burning so ‘un-Australian’ and repugnant that it should be made a criminal offence? How can the government simply ‘excise’, or cut out, four thousand islands from Australia’s migration zone, as it did in late 2003? Many people in the media as well as the public wanted to make sense of these questions. To hold a fully informed opinion, one needed (as quickly became apparent) more than knowledge of the events themselves. An understanding of the constitutional context – what the Constitution did or did not permit – was necessary. There was, however, a difficulty. With controversies such as these it is rare for the answer to be straightforward. Although the Constitution determines, ultimately, how they should be resolved, it is frequently difficult to understand how it does this without being a specialist (and even the specialists can disagree). To find an answer in the Constitution itself – like solving a cryptic crossword – is a mysterious process for the uninitiated.

Australia’s Constitution is powerful, but mysterious Many Australians, perhaps most, have never seen the Constitution. It is certain that most have never read it. This, however, is not the main reason for the mystery. The reality is, most people would be none-the-wiser if they did read the Constitution. In fact most would be more mystified after they had read it than before. Certainly some parts (like section 114) are clear and intelligible. Few people would have difficulty in

Introduction

5

knowing whether a State Government could raise and maintain its own defence force after reading that section. But very large parts of the Constitution are not clear in this way. They are mysterious, not because the language is particularly opaque or arcane – the language of Australia’s Constitution is, in fact, reasonably straightforward. But much of the Constitution does not mean what it says. Equally, in large parts, it does not say what it means. It says some things without actually saying them, and other things that fundamentally contradict each other. It is silent on certain significant matters that, in the twenty-first century, may be important. And yet, the Constitution is Australia’s fundamental law, and belongs to all Australians.

Some parts are out of date The Constitution created a single Australian people and turned a continent (and its islands) into a nation. It is among the oldest of the world’s functioning constitutions and this is much to its credit. But, being over one hundred years old, it is now out of date (as might be expected), in at least a number of ways. A few of its parts are missing references to technological or material changes that have occurred since 1901 but were not anticipated at the time. For example, the defence power (section 51 (vi)) refers to the ‘naval and military defence of the Commonwealth’ and does not mention the air force. Air transport only became a real possibility two years after federation. Bearing in mind that the Commonwealth can only do what the Constitution permits, how, then, does Australia have its own air force? Simply because it is accepted that the power to make laws for Australia’s ‘naval and military’ defence also extends to the air. Some other parts of the Constitution themselves anticipate change and make allowance for modern needs in legislation. The Commonwealth has always had the power to make laws about ‘postal, telegraphic and telephonic’ services (section 51 (v)). The telephone had just become a reality in the 1890s, and the Constitution’s framers sensed that other wonderful inventions in communications might be around the corner. With this in mind,

6


they added the words ‘other like services’. This left it open for the Commonwealth Parliament to pass laws for future communications services. The High Court has had to determine whether ‘other like services’ includes, for example, radio and television (it does) or newspaper publication (it doesn’t) but, while some tricky definitional issues may arise, it is clear that the section is open-ended. Up-dating through interpretation is permitted and is effectively all that is needed. Similarly, many sections of the Constitution include the expression ‘until the Parliament otherwise provides’. This means that certain procedures or a particular exercise of power were constitutionally required when the Commonwealth began, but that the Parliament could subsequently pass Acts altering them in any way it wished. For example, section 30 states that the qualifications of electors for Commonwealth Parliament are to be based on the States’ franchise laws, until the Parliament otherwise provides. The new Commonwealth Parliament (elected under State laws) passed its own Electoral and Franchise Acts in 1902. Under the Franchise Act, among other things, women were henceforth able to vote in Commonwealth elections, even though they were not yet eligible in all the States. Other parts of the Constitution are out of date because they were only meant to be temporary, to make the transition from the pre-federation arrangement (where the colonies were separate, selffunding, and self-governing) to the post-federation arrangement (where they are semi-autonomous States of the Commonwealth of Australia). Section 88, for example, says that ‘Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth.’ That section was out of date as soon as there was a national customs rate for all imports into Australia (by the end of 1901). It has no further relevance. Over the years, still other parts have become ‘dead letters’ because they refer to Australia’s imperial relations with Britain, and the British empire no longer exists. Section 59, for example, says that ‘The Queen may disallow any law within one year from the Governor-General’s assent’. That section (which was never actually used) ceased to operate in the 1930s after the UK Parliament

Introduction

7

passed an Act ending any British interference in the laws of the self-governing parts of the empire.

Other parts have always been mysterious Many of the Constitution’s dated parts once meant exactly what they say, but no longer do, or no longer have any force. This, however, explains only a small part of the mystery that is Australia’s Constitution. First, we need to understand the task the framers of Australia’s Constitution faced. They did not set out to be misleading. They had the very difficult job of finding a clear and succinct way of describing complex things. They had to balance precision in language with a comprehensive coverage of all the things that were necessary in creating a new nation, at the same time as providing for the Constitution’s operation in the future. They brought together parts of the English constitutional tradition with American federal principles and Australian practices. They had to make sure their words were legally sound. They had to respond to a set of complex demands and expectations. But the reality is that many sections of the Constitution never meant what they say, nor have they ever said what they mean. A good number were never even intended to. The Constitution has the classic features of the modern mystery – it is full of false clues, characters who are not what they appear, hidden evidence, trails that lead to dead ends. Unless we know this, we cannot answer the controversial national questions of our times. We cannot understand our own Constitution. People love mysteries. Many (who knows?) may be satisfied with an unintelligible Constitution; some may even believe that the majesty of the law is kept intact through mystery. The secret of the English constitution, it was said in the nineteenth century, was the penumbra that surrounded it; to let in too much daylight would destroy its ‘magic’. But the English constitution is unwritten and it lacks the overriding power of Australia’s. There is surely something a little bizarre about a powerful, written Constitution – one that determines the laws under which we all live – falling into

8


this category. Even the best of mysteries need unravelling at some point.

What this book is about The principal purpose of this book is to delve into the mysteries of Australia’s Constitution. It unravels some, and shows that others can only be understood as mysteries. It does not either advocate or oppose change, or concern itself with how the Constitution might be amended, but it sets out things just as they are. Nor is it a comprehensive guide to the Constitution or constitutional law in detail, but an exploration of the constitutional answers to pressing national questions. Its focus is the controversies that have shaken Australia in recent years, as a lens through which to explore fundamental questions about the whole Constitution. The prominence of some of the topics of controversy does not necessarily correspond to their degree of constitutional importance. Many people in Australia would hold that the practices surrounding the office of GovernorGeneral, for example, are relatively unimportant in the scale of things. The constitutional arrangements for Australia’s fiscal relations, or its international standing, may indeed be more important, having a greater impact upon our lives than the appointment or removal of the Queen’s representative. But the fact is, the office of Governor-General has attracted an enormous amount of attention over the last few years, and to explain the constitutional side to the story takes a good deal of time. Even if this seems disproportionate to the importance of the office, it cannot be skimped. It is, as will become clear, also a useful window onto much else in the Constitution. This book does not suggest that the Constitution can be made ‘easy’. Some parts of it are almost impenetrable. To explain the meaning of other parts can be challenging, and to follow the explanation may take patience. Readers who want to know the constitutional answers to only one or two questions should dip in where it interests them. Others should take a deep breath, throw their shoulders back, and imagine themselves setting out on a journey, not quite as daunting as that from Hobbiton to Mordor, but one that also

Introduction

9

requires a taste for detailed description and enigmatic language, tolerance of difficult moments, faith, and perseverance.

Several things to note before beginning There are several different forms of law in Australia. These sit within a hierarchy. First, there is the ‘common law’: the body of law found in the judgments of courts, but not set down in any other legal document. Secondly, there is the law that is made by parliaments. That is known as ‘statute law’; it is found in Acts of Parliament, also called statutes or legislation. Acts of Parliament frequently sit alongside the common law, but they can always override or supplant it, so long as that is their clear intention. At the top of the hierarchy is the Constitution. It is not made by, nor can it be altered by either judges or by legislation. It can trump any Act. ‘Constitutional law’ is the body of the decisions that are made when the constitutional validity of an Act or government action is disputed in the courts. When the Australian colonies federated in 1901, they gave the name ‘Commonwealth’ (meaning ‘common good’) to the new Australian nation. The Constitution is, therefore, called the ‘Commonwealth Constitution’, as is the Parliament and the Government, and so on, of Australia. The term ‘federal’ is also used for this national level. For example, we almost always talk of ‘federal elections’ and often of the ‘federal parliament’, ‘federal government’, and so on. It means the same thing as Commonwealth. The ‘Commonwealth’ of nations (best known today through the Commonwealth Games) which was formed in the inter-war years out of the old British empire, is something completely different. Australia is a member of that Commonwealth. It is also a Commonwealth in its own right. There is a copy of the Constitution at the back of this book. It begins with the heading An Act to constitute the Commonwealth of Australia, and is followed by eight ‘Covering Clauses’, numbered 1 to 8. Number 9 reads: ‘The Constitution of the Commonwealth shall be as follows.’ Then follow sections 1 to 128, in simple numerical order. A reference to a ‘section’ of the Constitution is to this particular list. The Covering Clauses are clearly distinguished as ‘clauses’. So much for the history, sections and clauses, but what about the vibe?

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Those who have seen the Australian film comedy The Castle will remember Dennis Denuto, the incompetent but well-meaning solicitor, who resorts to talking about ‘the vibe’ of the Constitution because he needs to find a particular section in it, but cannot read roman numerals. (Those who have not seen the film should treat themselves and get it out on video!) Whether or not there is a ‘vibe’ remains an open question. But it is true, as Denuto found, that in a couple of places there are sub-sections in roman numerals. Section 51, for example, has thirty-nine, numbered from (i) to (xxxix). The numbering should not dismay, however; content-wise, the list is succinct, and mostly simply expressed. The reader may indeed be pleasantly surprised to see how brief the whole Constitution is, and how short most of the individual sections are. Along with the relatively ‘ordinary’ language, this is one of its real strengths as a written document. But one doesn’t have to read the whole thing, brief as it is, nor become an expert in constitutional law to get a sense of how the Constitution operates in Australian life. It is sufficient to know five things.

Chapter 1

The Constitution does not mean what it says On the first sitting day of the parliamentary year, 4 February 2003, the Australian Prime Minister, John Howard, rose to his feet to announce to fellow members of the House of Representatives that ‘the Australian Government has authorised the forward positioning of elements of the Australian Defence Force to the Persian Gulf’. The Government, he told them, ‘will not make a final decision to commit to military conflict unless and until it is satisfied that all achievable options for a peaceful resolution have been explored’. Little more than a month later the Prime Minister informed the Parliament that Australian troops had already begun fighting. Then, in a carefully constructed Address to the Nation, he told the Australian people that ‘the Government has decided to commit Australian forces to action to disarm Iraq’. He set out the situation as he saw it: Iraq’s continued defiance of United Nations resolutions, its possession of weapons of mass destruction, its pursuit of a nuclear capability, its support of international terrorism, and its aggression, even towards its own people, posed a real threat to Australia. It had been, Howard concluded, ‘a very difficult decision for the Government but a decision which is good for Australia’s long-term security and the cause of a safer world’. On each occasion, parliamentary debate followed the Prime Minister’s announcement, with non-government members questioning the decision and challenging the Government. Indeed, on 5 February, a censure motion was moved against it in both Houses of Parliament. It succeeded in the Senate (where the Government lacks a majority), along with a vote of no confidence in the Prime Minister. This was an unprecedented event in the Commonwealth Parliament’s history. The Leader of the Opposition in the Senate, 11

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John Faulkner, declared the vote to have shown that Howard ‘does not have the mandate of the Parliament to deploy these troops’. On 20 March, the Senate passed a vote condemning the war and calling for the troops to come home. It was high and newsworthy drama. But it went nowhere. There was never a need for a ‘mandate’. The matter was not in the Parliament’s hands. When Members of Parliament heard the news, they did so with the rest of Australia, after the event. At the beginning, the invasion of Iraq was initiated by the United States. Australia was a partner in the post-war ANZUS defence alliance, and a friend of the US administration. Australia, said the Prime Minister in his Address, must not only protect itself, but also meet its commitments as an ally. The country was divided. Many Australians wholeheartedly agreed with him. They were well satisfied that the Iraqi regime was a threat both to its own people and to the ‘western’ world of which Australia (despite its geography) is a part. Others adamantly did not. Opponents remained unpersuaded of the nature or extent of the threat and they wanted more, or more convincing, evidence.

Who gave the order to invade Iraq? Many people also wanted to know how the Prime Minister could make such a momentous decision without, it seemed, any other Australian involvement or any discussion, except with members of his Cabinet (and, of course, the President and Secretary of State of the United States). For good or evil, Australia would be spending large sums of its revenue, risking servicemen’s and women’s lives, and potentially opening itself up to reprisals by supporters of the Iraqi leader, Saddam Hussein. Although the Prime Minister in his speech referred to what the Members of Parliament and ‘every Australian’ wanted, the decision (as he made clear all along) had been made elsewhere. The Australian Government had decided. But where did the power to do so come from? As the Constitution is the ultimate source of all official power in Australia, many turned first to that document for an answer. It appeared straightforward. Section 68 of the Constitution makes the following, direct statement:

Does not mean what it says

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The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative. At face value it looks simple and unambiguous. Like the President of the United States, the Governor-General has the constitutional power to command his country’s troops. This is what the words say. He could (or so it seems) have ordered them to fight in Iraq. He could have ordered them to return. And more than just the words support such an interpretation. There is a significant absence of words. Missing is an expression that can be found elsewhere in the Constitution and that one might expect to find in section 68: ‘Governor-General in Council’. It means that the Governor-General can only act on the advice of the Government (see section 63). The ‘Council’, or ‘Federal Executive Council’, is the formal name given to the regular meetings that take place between Ministers of government and the Governor-General. These meetings are significant. The Governor-General is advised by the government; he follows this advice and performs certain actions (such as signing bills passed by Parliament, or executive orders or proclamations or regulations). These legal ‘instruments’ can have no effect in law, unless they have been given ‘vice-regal’ assent. In practice, with very rare exceptions (discussed in Chapter 4 of this book), GovernorsGeneral always follow the advice of their governments. But section 68 does not say that the command in chief of the defence forces is ‘vested in the Governor-General in Council’. Without these final two words, it would appear to mean that the Governor-General can command the defence forces at his own initiative, without taking or following the Government’s advice. What then of the other expression – ‘as the Queen’s representative’? This now has no more than historical significance, but the history is none the less important. Because the Queen is always required to follow the advice of her government (and was, at the time the Constitution was written), the expression ‘as the Queen’s representative’ actually meant that the Governor-General was required to follow the advice of the British Government when it came to command of the defence forces. In

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1901 Australia was part of the British empire and was self-governing in all of its own internal affairs. Defence, however, was thought of as an external, imperial matter. The British authorities wanted a common and centralised approach to defending the empire. Section 68 of the Australian Constitution was, therefore, written in such a way as to reflect imperial policy. The Governor-General was specifically to be the representative of (that is, to take advice from) Britain when it came to defence. But the British empire was beginning to unravel even by 1914. While British strategy still shaped Australia’s defence policy, Australia’s commitment to war that year was its own choice, and its troops were under Australian command. In the peace negotiations that followed the First World War, Australia was represented both as a part of the empire, and as an independent player. Along with the other Dominions, the Australian Prime Minister, Billy Hughes, signed the Treaty of Versailles in 1919 under his own name. This was to be the first great signal of Australia’s emergence from under the imperial umbrella, of its emerging status as a member of the international community in its own right. The empire is now long gone. Britain no longer has any powers over Australian law or policy. Although the words in the Constitution have not been altered, they stand now as nothing more than a historical record. The Queen (that is, the British Government) is no longer relevant to section 68. But Australia still has the Queen. What a tangled web this makes. If the Constitution meant exactly what it said, the Governor-General would still need to act as ‘as the Queen’s representative’, but only in a purely formal sense. He is still the Queen’s representative, not because he still has to follow British advice, but because that is what he is called. As section 2 of the Constitution says: A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.


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He is, it seems, freer than ever. He could command the defence forces by himself. He could have ordered the troops to go to Iraq. He could have prevented them from going. But in reality, he could not. In practice, we ignore what the Constitution says (since it doesn’t mean what it says). Peter Hollingworth, Governor-General in the first part of 2003, could not exercise the power that the Constitution appears to give him. In fact, he seems to have had no role at all in the matter. He does not appear even to have taken part in the decision. He issued no commands. The decision to commit troops to war and the command for them to go are, of course, two different matters. The first decision is made by the executive government. The Constitution says that the Queen and the Governor-General are head of the Executive (section 61), but this statement is normally treated as irrelevant. It is the Cabinet, chaired by the Prime Minister, that makes executive decisions. The decision to go to war is made by the Cabinet, and the declaration that Australia is at war has always been made by the Australian Prime Minister. In the two World Wars, this has followed a declaration by the British Prime Minister. Despite what it says in section 68, however, it was not the Governor-General who went on radio, as Prime Minister Robert Menzies did in 1939, to perform his ‘melancholy duty’ of informing Australians that they were now at war. It was the Prime Minister, thus, who made the announcement of Cabinet’s decision to join the invasion of Iraq. But who gave the order? The answer is found not in the Constitution, but in the Commonwealth Defence Act. Australia’s troops are under the command of the Minister for Defence. The relevant section of the Act reads: The [Defence] Minister shall have the general control and command of the Defence Force, and the powers vested in the Chief of the Defence Force, the Chief of Navy, the Chief of Army and the Chief of Air Force . . . shall be exercised subject to and in accordance with any directions of the Minister. This may seem sensible and perfectly reasonable. The Defence Minister is, after all, the responsible member of government. He

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is the one to take responsibility and is held accountable for decisions concerning defence strategy and the deployment of Australia’s troops. But constitutionally, it is still a little curious. All Australian law is ultimately subject to the Constitution. The Defence Act (somewhat redundantly) says this itself. Parliaments cannot make legislation unless it is permitted by the Constitution. Any Act of Parliament that is contrary to the Constitution is unlawful. The fact that the Defence Act gives the power of command of Australia’s defence forces to the Defence Minister (and not to the Governor-General) is not necessarily unconstitutional. But it shows that some things work in Australia because we ignore what the Constitution says. One need not be too literal-minded or precious about the matter. It has long been accepted that the military command ‘exercised’ by the Monarch or by the Governors in countries around the British empire, was purely ceremonial. Even before the Constitution was written, it was understood that Governors, like the Queen, would never act independently in matters of defence. ‘Commander in chief’ was nothing more than a title. The Governors’ role, if they played one at all, was ceremonial: dressing up in military regalia, inspecting the troops, giving awards for distinguished service, and so forth. Nevertheless, it remains a little odd that those who want to know where the authority to command Australia’s troops comes from, not only can find no direct answer in the Constitution, but can only learn it by indirect means (and a good deal of research). Even observing what happened in practice did not help. Cabinet first discussed the matter. The Defence Minister no doubt played an important part in this discussion. Exactly what he said will not be known until 2034 (as Cabinet minutes are only released to the public by the National Archives of Australia thirty years after the event). The Prime Minister (rather than the Governor-General, or Defence Minister) then made the announcement. The Parliament did not take part at all in the decision. The United States Constitution states that the President is commander-in-chief of the defence forces; it gives Congress the power to declare war. Unlike in Australia, the President really does command the troops. He can independently commit them to


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battle, but he is expected to seek congressional authorisation first. In October 2002, President Bush got approval from Congress ‘to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq’. The Australian Constitution gives the Parliament the power to make laws for the defence of Australia. This does not, however, extend to laws about the commitment of the defence forces to conflicts overseas. The Constitution does not say anything about where the power to declare war lies. It is assumed that this is part of the executive power (section 61). There is no constitutional requirement for the Australian Parliament to give its blessing to anyone – Governor-General, Minister for Defence or Prime Minister – before Australian troops are committed to war. There is no constitutional need even to debate the decision before it is made. The announcement that Australian troops were to be sent to Iraq was made without reference to the Constitution. This does not mean that it was unconstitutional. All we know is that it did not (and was not expected to) follow what the Constitution actually says. What is the point, some might ask, of having section 68 in the Constitution? None at all, it seems. If the meaning of section 68 of the Constitution were really to reflect current practice, it would need to say something like this:∗ The command in chief of the defence forces of the Commonwealth is vested in the Minister for Defence. And another section would need to be added. Something like this: The executive power of the Commonwealth extends to the declaration of war, and to the deployment of Australian defence forces in overseas operations, as determined by the executive government. However, in the event of a war following a catastrophic terrorist attack (see Chapter 4), the Governor-General just might have to follow the literal wording of a number of sections of the Constitution which are, in normal practice, not taken to mean what they say. When might he need to do this? That remains to be seen. ∗

Readers should note that, where I have written alternative versions of constitutional sections, as here, this is done to clarify the ‘real’ meaning of the section. It is not an attempt at constitutional drafting, and makes no claims to legal precision.

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Why did the Governor-General resign? The Governor-General may not have been in the loop on Iraq, but it was not long before he himself became the subject of another intense controversy, this time a local one. Three months after Australian troops set up base in Qatar en route to Baghdad, Peter Hollingworth, Governor-General of Australia, appeared before an excited huddle of journalists and made the following statement: It is with deep regret and after much thought that I have today advised the Prime Minister that I wish to resign from the office of Governor-General of the Commonwealth of Australia. I have asked him to put the necessary arrangements in place to advise Her Majesty the Queen. The announcement was not unexpected. Anticipated by most Australians for some weeks, many had been calling for it for much longer. Indeed, the Governor-General seemed to have been stumbling towards some sort of crisis, almost from the moment of his appointment in mid-2001. The very announcement that Hollingworth, an Archbishop of the Anglican Church, was to become Governor-General had been controversial. Some thought it inappropriate, even unconstitutional, for a churchman to hold the position (this is discussed later in the book). But that was not the issue that brought the Governor-General down. Hollingworth explained in his resignation speech: Despite the misplaced and unwarranted allegations made against me as Governor-General, it is clear that continuing public controversy has the potential to undermine and diminish my capacity to uphold the importance, dignity and integrity of this high office that I have been privileged and proud to occupy. I cannot allow that to occur. By the time of his resignation, the ‘allegations’ were multiplying. Hollingworth, it was said, had failed, while Archbishop, to take appropriate action against a priest who was under his authority in his diocese and who was known to have had sexual relations with an under-age girl. There were other accusations about


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Hollingworth’s own sexual conduct during his early years in the church, and these had even reached (and been dismissed by) the courts. But the Governor-General’s attempts to explain his point of view did not succeed in quelling the cries for his resignation. If anything, they seemed to confirm the impression of a man out of touch with current values. The controversy turned on the question: did Hollingworth do anything in his past that had a bearing upon his capacity to perform his functions in the present? His resignation put the lid on the matter. As he said, ‘continuing public controversy’ was incompatible with the office. The Governor-General resigned, was replaced, and the media caravan moved on. But how many people had fully understood what had happened? How many could really have said why the Governor-General should resign? In reality, the issue was much larger than Hollingworth’s own alleged failings. Yet it was treated almost exclusively as the trial of one particular man, and a matter that could be settled simply with his removal. Much more significant were these questions: who is the Governor-General? What are his powers? Who decides whether he should go or stay? The answer, it might be thought, lies in Australia’s Constitution. As we have seen, section 2 says the Governor-General is appointed by the Queen. He is ‘Her Majesty’s representative’ in Australia. If this is the case, why did John Howard, as Prime Minister, make the announcement in June 2001 that Hollingworth would replace Sir William Deane as Governor-General of Australia? Why did Hollingworth then first advise the Prime Minister of his resignation, and not the Queen? Why, in his resignation speech, did he go on to say: ‘I have asked the Prime Minister to call on me tomorrow so that we might discuss transitional arrangements’? The fact is, in this (as in many respects) the Constitution does not mean what it says. It is the Prime Minister who appoints the Governor-General, and the Prime Minister who advises the Queen of the appointment. The choice of Governor-General is purely a matter for Australia’s Prime Minister. It should not be thought that the Queen plays no part at all. She does have a walk-on role. She issues and signs the GovernorGeneral’s Commission – something like a letter of appointment – a

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new one for each new appointment, naming the individual Governor-General. Once this has been done, the appointee takes an oath (or affirmation) to be ‘faithful and bear true allegiance to Her Majesty’ and is sworn in by the Chief Justice of the High Court of Australia (or another High Court judge). Then, as new Governor-General, he himself issues a proclamation declaring that he has assumed office. The Commission and proclamation are published in the Commonwealth Gazette (an official record of, among other things, all Acts of Parliament, regulations, executive orders, and executive proclamations). Section 2 of the Constitution gives the Governor-General ‘such powers and functions of the Queen as Her Majesty may be pleased to assign to him’. No official description of these powers and functions can be found in any document, but the ‘position description’ (such as it is) appears in the so-called ‘Letters-Patent’. The original LettersPatent, drafted by the British Government, were issued and signed by Queen Victoria (on the British Government’s advice) in October 1900. They were amended in 1984 at the initiative of the Australian Government (and signed by both the Queen and, this time, the Australian Prime Minister, Bob Hawke). The new Letters-Patent set out in detail how a ‘stand-in’ is to be appointed to act on the Governor-General’s behalf in the case of his inability to perform his duties. They conclude: ‘We reserve full power from time to time to revoke, alter or amend these LettersPatent as We think fit.’ ‘We’ is, of course, the royal plural, an echo of the constitutional fiction that the Queen herself determines the powers and functions of the office, although in reality she acts only on the Prime Minister’s advice. The terms and conditions of appointment – salary, superannuation, allowance for the Governor-General’s spouse (and what happens in the event that there has been more than one spouse) – are set out in a purely Australian document, an Act of the Australian Parliament: the Governor-General Act of 1974. In all of this, nothing at all gives the Prime Minister the power to choose the Governor-General. That he does so is merely a matter of practice, or ‘convention’. If the Constitution’s words were to come into line with the actual practice, they would need to say something


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like: A Governor-General shall be appointed by the Prime Minister, and commissioned by the Queen. But it is uncertain how the rest of section 2 would need to be written. For example, there is nothing, anywhere, including in the Constitution, to say exactly how long the Governor-General’s term of office should be. The rule of thumb is said to be five years (although where this rule derives from is uncertain – only six out of twenty-four Governors-General have actually had five-year terms). A shorter term, or an extension of the term is quite possible, subject to Prime Ministerial discretion. Sir William Deane’s term, which began in February 1996, was extended for four months by the Prime Minister, John Howard, to avoid a change between the major events of the centenary of federation (in January and May 2001). The term of the current Governor-General, Major General Michael Jeffery, is only three years, to make up the balance of what would have been Hollingworth’s five-year term. Nothing required this, however, nor is there anything to stop Jeffrey’s term being extended if the Prime Minister later decides. There is nothing even to say that the Governor-General should not be appointed ‘for life’. To terminate his term before it is fully served is, however, another matter.

Should the Governor-General have been dismissed? Nothing, anywhere, in the Constitution or any of the surrounding documents, or in any event in Australia’s history, tells us anything at all about the grounds for a Governor-General’s ‘removal’. This again fits the fiction that the Queen actually appoints the GovernorGeneral and that he holds office ‘during the Queen’s pleasure’. What motivates her to make her choice, for how long it will continue to please, and what subsequently may cause displeasure, are not meant to be inquired into. Hollingworth withdrew, giving his own reasons. In doing so, he drew attention to this ‘silence’ in the Constitution. What would have happened had he not resigned? Nobody could say for certain whether the accusations that had been levelled against him would

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have amounted to ‘grounds’ for his removal. The Queen would not, and could not, have commented. The Prime Minister alone had the power (although no document actually says this) to decide. ‘Public controversy’ had made it impossible for Hollingworth to continue. But, in the Prime Minister’s view, there were ‘no grounds . . . to recommend to The Queen that Dr Hollingworth’s appointment be terminated’. Would Howard have considered the continuing controversy enough of a reason ultimately to make this recommendation, had the matter not been concluded by the Governor-General’s own action? Few Australian Governors-General have resigned before their commission expired, but to do so is not unprecedented. The very first Governor-General, Lord Hopetoun, requested the withdrawal of his commission in 1902, only eighteen months after assuming office, at the end of a long-running dispute with the Australian Government over his salary. Section 3 of the Constitution sets out certain things about the Governor-General’s salary, including that it ‘shall be ten thousand pounds’ annually, until the Parliament decides otherwise. Hopetoun considered this sum insufficient to cover the travel around the nation and the social functions he thought appropriate to the office. However, although Prime Minister Edmund Barton was sufficiently sympathetic to make his case for him in Parliament, the Parliament declined to increase it. Hopetoun was a former Governor of Victoria, and a popular figure. His departure was regarded as a sorrowful occasion. The controversy was about the nature of the office itself, and not in the least about the past or present conduct of the individual. Had he given in on the matter of his salary, there was no question of his removal. No Governor-General has ever actually been ‘sacked’. What sort of conduct would merit such a thing? As things stand, we do not know. When Hollingworth quit, many called for prior ‘background checks’ on future appointments. But what would a Prime Minister be looking for? Who would do the checking, and who would provide the information? ASIO? The police? Neighbourhood Watch? The fact is, the Governor-General’s role and powers are themselves uncertain, and it is difficult, therefore, to know whether the


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past record has any real bearing on his performance. It is even hard to say when and how a Governor-General has behaved inappropriately in office. The Constitution sets out the grounds for removing a federal Judge (see section 72 (ii) – ‘proved misbehaviour or incapacity’) as well as the manner of removal (by the Parliament), but what would these words mean if they applied to the Queen’s representative? The Hollingworth affair did not really throw any light on this question. Soon after assuming office, on 9 October 2003, the new Governor-General, Michael Jeffrey, made a speech marking the centenary of the High Court of Australia. It included the extraordinary observation that the Australian Prime Minister ‘has the right to advise Her Majesty the Queen to revoke the Governor-General’s commission should the Governor-General speak in a partisan political manner or become unfit to hold the office’. Where this assertion came from, it is impossible to say. Nothing in any official document, or any historical precedent, would allow us to be so confident about the ‘grounds’ for removal. Some Governors-General, especially recently, have commented, both directly and indirectly, about government policy. Deane, Hollingworth, and even Jeffrey himself, have all spoken about political matters. Have they been politically ‘partisan’? Who is to decide? And in any case, what is there to say that the Governor-General who is, after all, constitutionally an integral part of the nation, should not express political views? On the other hand, if the GovernorGeneral’s powers are granted on the same footing as the Queen’s, this must include the tradition of impartiality on executive matters. But on this the Constitution itself is silent. If the Constitution were to reflect actual practice, it would probably say something like this: The term of office of the Governor-General shall be as determined by the Prime Minister. The Governor-General’s commission may be withdrawn by the Queen before the expiry of his term, on the recommendation of the Prime Minister. As things stand, no words could be added to say on what grounds, if any, the Governor-General’s commission should be withdrawn. We simply do not know what these might be.

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Standing in for the Governor-General In his resignation speech, Peter Hollingworth also said: ‘I have asked the Prime Minister to call on me tomorrow so that we might discuss transitional arrangements.’ What he had in mind can only have been a chat about the date of his stepping down, whether he could stay on in the official residence, Government House, while he prepared to leave, and so forth. It cannot have been about the transition process or the choice of ‘caretaker’ in the office, since that at least is set down in various documents, including briefly in the Constitution itself. In terms of formalities, what followed Hollingworth’s resignation was, at least a little clearer than the reason for it. Section 4 of the Constitution says that the Queen may appoint a person ‘to administer the Government of the Commonwealth’. Authorised by this section, a ‘dormant’ commission exists, waiting to spring into action. The current Letters-Patent (see above) set out the actual arrangements for releasing the spring, and replacing a Governor-General in office. The most senior of the six State Governors (that is, the Governor who has been in office for longest) is entitled to become ‘Administrator of the Commonwealth’, appointed by Her Majesty to perform the Governor-General’s role. When Hollingworth actually resigned, things went reasonably smoothly, and, after the event, the Prime Minister said that the whole unhappy affair had shown just how well the arrangements worked. There had been a brief period, however, when what was to happen was not quite so clear. At first the Governor-General had only stood aside, withdrawing from official duties pending the results of a legal investigation into allegations made against him. But, in fact, there had been no provision anywhere for temporarily commissioning the Administrator in such circumstances. Previously, the Letters-Patent had merely referred to ‘absence out of Australia, death, incapacity or removal’. For the appointment of the Administrator in other circumstances to be legal, an urgent amendment was needed, and so on 15 May 2003, the words ‘in the event of the Governor-General having absented himself temporarily from office for any reason’ were quickly added. Strangely, while there is a section in the Constitution (section 126) for the


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Governor-General to appoint a deputy or deputies and recourse to this section might have simplified matters, it has not happened.

A powerful office or a rubber stamp? The Governor-General would be a powerful man, if (as we saw with section 68) the Constitution actually meant what it said. But in many, perhaps most, respects regarding the Governor-General, it does not. This is not to say that the Governor-General is without power. In fact, he exercises significant executive power. The GovernorGeneral meets regularly with members of government – serving as Chair of the so-called ‘Federal Executive Council’ – and while he acts upon advice, he can (at least in theory) decide whether to take it or not. Among the regular functions he performs are signing legislation and ‘issuing’ executive orders or proclamations. Most Governors-General have automatically put their signature to such documents, just as a functionary with a rubber stamp might do. Others have asked questions of the Ministers beforehand, and sought to ensure that what they were signing was legally sound. Some few, it is said, even exchanged opinions about the issues at hand. Whichever approach they choose, this remains a critical function because bills cannot become Acts – they cannot be law – until they get the ‘Vice-Regal assent’, that is to say, until they are signed by the Governor-General. This function is, however, not directly mentioned in the Constitution. In an interview on the ABC’s 7.30 Report soon after Peter Hollingworth’s resignation, John Howard was questioned about his intentions regarding the next Governor-General: ‘What’, asked Kerry O’Brien, ‘will you do differently this time to make sure that such an important appointment does not go wrong in the way this one has?’ The Prime Minister replied: It’s not going to be constitutionally different. I’m going to adopt the same approach that my Labor and Liberal predecessors have adopted . . . [with] the final recommendation to the Queen coming from the Prime Minister . . . [T]hat’s our system.

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If you read the Constitution without any other knowledge, you would find this a puzzling answer. The Prime Minister’s description of the process of appointment was accurate, but the practice he described is already ‘constitutionally different’ – that is to say, it is quite different from what is described in the Constitution itself. In practice, as we have seen, the Australian Prime Minister nominates the Governor-General. But the departure from what the Constitution says does not simply lie here. The story has not ended yet. Being ‘constitutionally different’ is nothing new. The Constitution says that the Governor-General is appointed by the Queen and is the Queen’s representative, but the Monarch’s role has in fact always been purely formal. The Queen or King used to be advised by the British Government as to whom to appoint, and always followed this advice. The Constitution, thus, has never meant what it says about the appointment. Until the late 1920s, the Governor-General’s role included advising the British Government about Australian matters, and he had the constitutional power (see sections 58 and 59) to withhold his assent to Australian bills pending British approval. He served as a type of reporter to Britain, a conduit of information about Australian affairs. This was the role of all the Governors in the ‘Dominions’ (Australia, Canada, New Zealand, and South Africa), as those parts of the British empire that had become self-governing were called. Although the Australian Constitution did not say so, the Governor-General ‘represented’ the British Government (it does say, however, in section 3, that the Governor-General’s salary is to be paid out of Australian revenue). In the decade following the First World War, the practice changed (although the words of the Constitution did not). A British declaration in 1926 announced that Britain and the Dominions were ‘autonomous Communities within the British Empire, equal in status, in no way subordinate one to another’. This was followed by a British Act of Parliament in 1931 – the Statute of Westminster – setting out that (unless requested) Britain could no longer make any laws for the Dominions. From around this time, Australia’s Governors-General were, in practice chosen by the Australian Prime Minister. Strictly speaking, there was no further need for them to be appointed from


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among British candidates, although it took some time for this to be accepted. The first Governor-General chosen exclusively by an Australian Prime Minister was also the first Australian-born Governor-General. Sir Isaac Isaacs was one of the Constitution’s framers, a former Victorian politician and, just before his appointment, Chief Justice of the High Court. His choice by Labor Prime Minister James Scullin provoked considerable controversy in both Australia and England, and even the King made his displeasure clear. An Australian, it was said, would have political ties; he would be caught up in political issues, and could not serve impartially and with probity. But Scullin dug his heels in, and Isaacs went on to occupy the office, performing his duties with distinction from 1931 until 1936. For the following two decades, things reverted to form, and although Australian Prime Ministers did the choosing, they mostly nominated British Governors-General. From 1965, however, although nothing in the Constitution indicates either way, all Governors-General have been Australian and the idea of an appointment from outside Australia has now become unimaginable. Although the Constitution continues to say (in section 58) that the Governor-General can ‘reserve’ Australian bills for ‘Her Majesty’s’ pleasure (meaning that he could withhold his assent until the British Government considered whether the proposed Australian legislation conflicted with British imperial law), the Governor-General ceased to be a representative of the British government. Paradoxically, for a time, he became more of a genuine, or personal, representative of the Monarch. He reported directly to the King or Queen about Australian matters. Some GovernorsGeneral were to find this unique relationship valuable, even (in the words of the twenty-first Governor-General, Bill Hayden) ‘consoling’. Reporting to the long-reigning Queen rather than the transient Government may appear to have been a more powerful role, but it was not. As the Monarch has no independent constitutional powers and can only act on the advice of the British Government, this meant in practice that the Australian Governor-General could not ask anything of the Monarch, but simply kept him or her informed. In turn, the Monarch could not instruct him. His role became – like the Queen’s – one defined by protocol and ceremony. Cutting

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ribbons, opening events, being patron of charitable organisations, greeting visiting dignitaries and the heads of state of other countries, farewelling troops and welcoming them home again – make up a large part of the Governor-General’s duties (although Prime Ministers sometimes choose to do these things, too). In other respects – signing bills into law, for example – the Governor-General also acts like the Queen. That is, he acts purely on the advice of the Australian Government. Except the Constitution still sets out certain powers to be exercised by the Governor-General. Constitutionally, the GovernorGeneral is a powerful person. If the literal wording of the Constitution were followed, the Governor-General alone could decide who formed government and could terminate their office ‘at his pleasure’. Section 68, as we have seen, still describes him as holding the ‘command in chief’ of the defence forces. If the Constitution actually meant what it said, a military dictatorship would be possible.

How foreign can Britain be? The Constitution has never meant what it says in these important respects. However, there are a good number of things that it used to mean, but no longer does. Part of this picture includes things the Constitution once really meant, but no longer means, despite what it actually says. Australia has always been self-governing and in control of its own domestic affairs. It was independent, even from the start, to a much greater extent than many think and than the Constitution itself suggested (and still suggests). Britain had very little interest in what Australians wanted to do inside Australia. Still, it maintained (or attempted to maintain) authority over external or international policy, and in return Australians got both the protection of Britain’s defence forces and the advantage of British trade. Ties of history and affection also bound the two countries (although there were periods of disaffection and estrangement). The whole of Australia’s Constitution assumes that Australia was, and would remain, part of the British empire. Much has changed since 1901. Although the Constitution suggests the opposite, Britain is now a ‘foreign’ country. Things are


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done differently there. The sun has set upon the empire. It was once possible for Australians to live and work or study in Britain without a visa and whenever they wished, and vice versa. Visitors went through the fast immigration lanes at each other’s international terminals. Reciprocal rights are no longer automatically accorded to citizens of the two countries. Australia does not follow British law. Over the years, both British and Australian Parliaments have passed Acts, one by one ruling out any legislative interference by Britain in Australia. Appeals from Australian courts can no longer be heard in the Privy Council in London. The Queen has a separate title, ‘Queen of Australia’, for matters Australian, in addition to her British title. Australia’s trade no longer gets or gives British preference; its primary defence alliance is no longer with Britain. And much more. But the Constitution itself, like Rip Van Winkle, has slumbered on, registering none of these changes. The constitutional limits of this relationship were finally tested in 1999 in a case in the High Court. It grew, as big things often do, out of something seemingly small. Heather Hill, candidate for the One Nation party, had been elected as a senator for Queensland in 1998. She was about to take her seat in Parliament. Then someone noticed something. At the time she stood for election, she had held dual nationality: Australian and British. Section 44 (i) of the Constitution states, among other things, that any person who is ‘a subject or a citizen of a foreign power . . . shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives’. It was not until 1992 that the meaning of these words was first tested. A constitutional challenge resulted in the disqualification of Phil Cleary, the successful candidate in a by-election that year, as well as a ruling that several among the unsuccessful candidates had been ineligible to stand. Included were two men who held, respectively, dual Swiss–Australian, and Greek–Australian nationality. They were, the High Court decided, citizens of a ‘foreign power’. There were ineligible. It seemed quite straightforward. But neither man was British. Could the words ‘foreign power’ extend to Britain? Britain, whose Queen is ‘vested’ with Australia’s legislative and executive powers (see sections 1 and 61)? Whose parliament breathed legal life into Australia’s Constitution in 1900?

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The very same power, thus, that authorised the words of section 44 itself? Yes, said the Court. Australia is now an independent nationstate, a separate member of the international community. Britain no longer has any influence on Australia’s law in any form. Once it was not foreign, but now it is. Although the Constitution did not originally intend it, by disqualifying citizens of ‘a foreign power’, that is now what its words actually mean. It is both strange and yet not surprising that none of this was picked up in the debate surrounding the republican referendum that very same year. The High Court declares Britain a ‘Foreign Power’! Surely something could have been made of this by either side? Not surprisingly, neither did, perhaps because the explanation of how and why the Court had done this was far from campaignpackageable, despite the fact that it drew attention to a glaring anomaly. ‘The Crown’ is in the Constitution’s Preamble; references to the Queen and ‘Her Majesty’s pleasure’ are scattered throughout the Constitution. Yet Britain is now ‘foreign’. The contradiction can be resolved (sort of), however, if we recognise that the Queen is now ‘Queen of Australia’ and that the words of the Constitution appearing to give her power do not mean what they say.

Chapter 2

The Constitution does not say what it means Before Peter Hollingworth resigned, he told the Prime Minister of his intention, and the Prime Minister then told the Queen. It would have been extraordinary had the sequence been different. But, nothing in the Constitution (or any other relevant document) required the Prime Minister to act as the go-between. His part in the Governor-General’s appointment and removal, as we have just seen, is not described in the Constitution. But that’s not all: the ‘Prime Minister’ is not described in the Constitution. He is not even mentioned in the Constitution. The very words do not appear. Not anywhere. Nor does the word ‘Cabinet’. Section 61 simply says that the executive power (that is, government) of the Commonwealth is exercised by the Queen and the Governor-General. We know that, in practice, it is not. The discrepancy, however, cannot be explained by showing that this section of the Constitution used to be accurate, but is now out of date. When it comes to its description of the Executive, the Constitution has never meant what it says. Nor was it intended to. The Commonwealth of Australia has always had a Prime Minister and a Cabinet of Ministers. These institutions are a core part of our parliamentary system.

Why do we have a Prime Minister? The Prime Minister is the political leader who gets the support of a majority of the members of the House of Representatives (usually by winning a majority of seats in the House of Representatives at an election). The Cabinet – the senior Ministers – meets in secret, 31

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and decides on how to turn party policy into proposed legislation, or bills. These bills are then put to the Parliament. Support for the Government is normally signified in the dayto-day parliamentary business of voting for bills in the House of Representatives. Bills appropriating money from the Treasury are particularly significant, because a government cannot continue to govern without funds. Usually (but not necessarily) a Prime Minister and his or her government stand or fall together. The ultimate test lies in the Prime Minister’s ability to survive a motion of no confidence. If such a motion is moved in the House and a majority opposes it, the Prime Minister is said to retain ‘the confidence’ of the Parliament. One who has lost the confidence – most dramatically signified by the success of such a motion – must resign. A new Prime Minister, or a new Government (if the Government itself is opposed by a majority) must then be chosen. The Governor-General makes this choice from ‘the floor of the parliament’, by seeking advice from the leader of the party (or coalition of parties) who is now supported by the majority. If a Prime Minister does not want to be replaced and tries to avoid it by advising the Governor-General to call an early election (in the hope of being re-elected), the Governor-General can decline, and appoint a new Prime Minister anyway. If, however, the Governor-General is not satisfied that there is any leader who can clearly command and hold the confidence of the House, he may dissolve it and call an election. Following an election – routine or otherwise – the Governor-General will either take advice from the last Prime Minister or decide independently which party can form government. The ‘convention’ is that the Government is formed by the party (or coalition of parties) that has won a majority of seats in the House. The Constitution means this, but says none of it. It describes the Parliament and the manner of electing MPs in some detail. It sets out (in section 24), for example, the system for calculating the ‘quota’ – the number – of members of the House of Representatives for each of the individual States, depending on the size of their population. While section 5 starts by saying that the Governor-General decides how long the sessions of Parliament shall run, the rest of the section sets out when and (at a minimum) how often the Parliament must

Does not say what it means

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sit. Along with a couple of others (sections 28 and 32) this serves as a guide to calculating how long there is to be between federal elections (a maximum of three years) and from when to start counting. So long as we understand that the Constitution does not always mean what it says, and ignore the statement in these sections that suggest the Governor-General independently determines when an election shall be held, this part of the Constitution is a reasonably accurate guide to what happens in practice. But, for the bigger picture, the Constitution is either misleading or unhelpful. It does not say what it means our parliamentary system to be. Australia has, and is meant to have, a Government consisting of a Prime Minister, a Cabinet and other Ministers. The Government is formed by those who hold the majority in the ‘lower’ House of Parliament. There is an official Opposition, led by the leader of the party that has the support of the next largest number of members of the House of Representatives, and standing as the ‘alternative’ to the incumbent government. Government and Opposition are deeply and historically embedded institutions in the type of parliamentary system Australia has. Offices in Parliament House, salaries, entitlements, staff, recognition in parliamentary procedure and Standing Orders, and much more are all geared around the existence of the Prime Minister and Leader of the Opposition. None of this, however, is described (or even mentioned) in the Constitution, although this is what it ‘intends’. The closest we get is in section 64, which says (in its third paragraph) that no ‘Minister of State’ shall hold office for longer than three months ‘unless he is or becomes a Senator or a member of the House of Representatives’. What this means – so long as we ignore the part that says that the Governor-General appoints these Ministers (or ‘officers’) and that they hold office during his ‘pleasure’ – is that members of Government in Australia must also be elected as Members of Parliament. They cannot be appointed (as, for example, they are in the United States) from outside the Parliament. The idea is that of so-called ‘responsible government’ – that the Government is ‘responsible’ to or accountable to the Parliament (meaning, its Ministers can be questioned, called to account, or subjected to a vote of no confidence) and as Members of Parliament, accountable to the people who elect them.

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Section 64 is mysteriously worded, and says only indirectly what it means, but it stands as the one and only statement in the Constitution that Australia is to have a parliamentary system based on the British model. Britain does not have a written constitution, but follows instead a range of constitutional traditions, or ‘conventions’ which are thought to have the same force they would have if written. In writing their own Constitution, Australians were reluctant to set down the unwritten practices they had borrowed from Britain. With the exception of section 64 – not much of an exception, really – they chose to leave these practices as they were in Britain, as ‘conventions’ to be followed. So, the Prime Minister is an unwritten convention, and so is the practice of choosing the Prime Minister as the leader of the party who ‘commands the confidence’ of the House of Representatives. A significant part of Australia’s written Constitution is actually unwritten. If it said what it meant, section 61 of the Constitution would need to say: The executive power of the Commonwealth is vested in the Governor-General in Council and is exercisable by the Prime Minister and Cabinet. A further section (or sections) would need to be added, saying something like this: A Prime Minister shall be appointed by the Governor-General from among, and holding the confidence of the Members of the House of Representatives. And, The Prime Minister shall preside over meetings of the Cabinet. Section 64 may need to be slightly re-worded to say (among other things): The Governor-General in Council shall appoint Ministers of State to administer such departments of State as the Governor-General in Council may establish. Such Ministers shall hold office as the Prime Minister determines; their appointment may be terminated by the Governor-General in Council.

Unwritten rules and children overboard There are other unwritten conventions attached to the idea of ‘responsible government’. These include the ‘rule’ that a Minister is responsible for his or her department, for the actions taken and the advice given by the public servants who work under him or her.


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Ministers who make a significant mistake, or mislead the Parliament by giving an incorrect account of departmental matters (even if they had no prior knowledge of the error) are expected to resign from their ministerial portfolio. The idea is that the public service ‘serves’ every government impartially and professionally. It does not come and go with governments, but remains in service, as a body of accumulated experience and expertise. Being unelected, the public servants cannot be ‘responsible’ or accountable to the public for their actions. The Minister is elected, and therefore can be. Behind this network of practices and principles, is the principle of democratic control of government. However, this view of the public service and the conventions surrounding it – once at the heart of responsible government – is now questioned by many, including those in government itself, and no longer routinely enforced. Ministers rarely resign for misleading the public or the Parliament and even less often (if at all) for a departmental mistake. The ‘children overboard’ affair in late 2001 illustrates this shift. While the immediate controversy about illegal immigrants and border protection overshadowed the constitutional issues, the latter were not insignificant. Briefly, on 6 October, near Christmas Island, the HMAS Adelaide intercepted an unauthorised boat, dubbed the ‘SIEV IV’ (Suspected Illegal Entry Vessel no. 4). Its intention was to prevent those on board from reaching Australian territory. Had they done so, they would have been entitled to ask for refugee status. The following day, as the boat sank, the Adelaide picked up its 230 passengers and crew, some of them from the sea. Already, however, through a complicated chain of ‘Chinese whispers’, the Secretary of the Immigration Department had heard (or thought he had heard), and had informed the Immigration Minister, Philip Ruddock, that children on the boat had been thrown overboard. The action represented, it was hinted, a deliberate attempt to manipulate Australian authorities into letting the people come onto land. The story was immediately circulated to the media and public outrage was swift and fierce. The Prime Minister denounced the asylum seekers, as did other members of Government, including the

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then Defence Minister, Peter Reith. Reith even produced photos of children in the water. It was proof, he said, of what the departmental Secretary had told the Minister. The photos were instant front-page news. In fact, as soon became clear to everyone including the Ministers, the story was false. Defence officers and other departmental personnel had denied the claims as soon as they heard them. No one had seen, or reported, children being thrown overboard. What the photos showed were children in life-jackets, floating in the water after the SIEV IV sank. Soon afterwards, a multi-party Senate Committee inquiry into this ‘Certain Maritime Incident’ confirmed this later version. Nothing, however, followed. The Ministers responded by blaming their sources of advice, both in their Departments and among the members of the Navy who had taken part in the operation. They did nothing more. Under the rules of ‘responsible government’, they would have been expected to shoulder the blame and resign. Their failure to do so is not the only recent example, nor have such ‘breaches’ been confined to any one party in government in the recent past. Strictly speaking, the old ‘rules’ may no longer operate. They may have ceased to be constitutional conventions. It may now be more appropriate to speak of Australia’s system as ‘parliamentary government’ rather than ‘responsible’ government. This is one of the mysteries, perhaps difficulties, of having ‘unwritten’ parts in the Constitution. We do not know whether, or when, a departure from its practices is actually unconstitutional. Is an unwritten constitution (as the joke goes) really not worth the paper it’s written on? What are the limits? If Australia stopped having a Prime Minister and Cabinet, this would certainly be ‘unconstitutional’, at least as things stand today. But for a Minister no longer to resign for misleading the public or the Parliament does not seem to have crossed that line. In this respect, if the Constitution does not say what it means, it also does not say what it does not mean, and it doesn’t say either loudly enough. The problem is, not only does the Constitution fail to mention these things – this might not matter if it were ‘unwritten’ in all respects – but it says other things that suggest the opposite. It says, as we have seen, that a Governor-General, appointed by the


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Queen and holding office at her pleasure, chooses the government. We assume that these words will normally be ignored, although they have not always been. In the very early years of the Commonwealth, governments were formed and fell ‘on the floor’ of the Parliament with some frequency; that is, leaders lost support of the majority in the House of Representatives, because party alliances were much looser and members changed sides with few inhibitions. The Governor-General had to decide, then, which new leader had enough support to form government. It happened again in 1942. But a more recent, and more dramatic example is at hand.

What happens when unexpected things happen? On 17 December 1967, Australia literally lost its Prime Minister. As a group of friends looked on, Harold Holt swam out into a turbulent ocean on Victoria’s coast, and was never seen again. The rescuers quickly realised that he had drowned, but they could not find his body. Deputy Prime Minister, John McEwen, was at hand to stand in, as he had done when Holt was overseas. But there was a hitch (or two). McEwen was not the leader of the governing party, the Liberal Party of Australia, but of their minor Coalition partner, the Country Party. There could be no ‘automatic’ succession. Governor-General Richard Casey was confronted with a constitutional dilemma. When should he officially assume that Holt had died? And whom should he commission to replace him? The problem was, the Deputy Prime Minister could not abide the Deputy Liberal leader, William McMahon. And others in the Liberal Party were not so keen either. So, while the Liberals squabbled over who should be their new leader, McEwen made it absolutely clear to the Governor-General that he would not serve with McMahon. Had McMahon been chosen, the coalition would have ruptured, and the Liberals may have been unable to govern. An alternative Prime Minister, someone who could command the confidence of the Parliament, would have had to be found. The constitutional questions were multiplying. Within two days of Holt’s disappearance, Casey had made his decision. He swore in McEwen as Prime Minister. Three weeks later, the Liberals elected John Gorton (rather than McMahon) as their

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leader, thus averting a further crisis. McEwen stepped down and Casey commissioned Gorton. The Governor-General’s decisions were made by him alone, in the exercise of his constitutional powers and without advice (for who could advise him?). The events were dramatic, but they represented a relatively uncontroversial use of the reserve powers, that is, his powers to act without or contrary to government advice (see Chapter 3 of this book). Eight years passed. During that time, Gorton was forced by his own party to resign as Prime Minister, and McMahon was chosen, after all, in his place. In December 1972, the Liberals lost power, and the Labor Party, under Prime Minister Gough Whitlam, formed government. By 1975, things on the constitutional scene were not moving smoothly at all. The Constitution suggests (in section 64) that it is the GovernorGeneral who decides whether, and how long a Government is to remain in office. In practice its words are ignored, and Governments normally advise him when an election should take place. Normally, that is, except when the reserve powers are exercised. In November 1975, the Governor-General, Sir John Kerr, dismissed Whitlam and his Government, although they still held the ‘confidence’ of the House of Representatives. Kerr did so, essentially, because the Government was unable to secure ‘supply’, that is to say, unable to get the Senate to pass the necessary bills for the ordinary money needed to continue governing. Section 83 of the Constitution says ‘No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law’ and this means that an appropriation of money must be passed as an Act by both Houses of Parliament in the routine fashion. In 1975, the Senate was persisting in delaying a vote on the supply bills, and the Government’s money was starting to run out. The Governor-General believed this to be a crisis of sufficient gravity to call upon his reserve powers. Having dismissed Whitlam, Kerr then appointed the Leader of the Opposition, Liberal Party leader Malcolm Fraser, as caretaker Prime Minister, and, on Fraser’s advice, he called full elections of both Houses. The election was held in December that year and resulted in a landslide victory for the Liberal Party. The caretakers became the elected government. Constitutional life, more or less, went back to normal.


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But the constitutional questions remained. Did the GovernorGeneral really have the power to do what he did? There is nothing in the words of the Constitution to say that he could not. There is nothing to say that he had to follow any particular course of action either, or that having started, he was required to go along the particular path he chose. There is nothing definitive in the ‘unwritten’ Constitution either. Kerr’s actions were major departures from certain conventions, and certainly from any precedent in Commonwealth politics (although there is a State precedent; in 1932, Jack Lang, Premier of New South Wales, was dismissed by the State’s Governor, Sir Philip Game, for refusing to submit to a Commonwealth scheme to recover the interest on his State’s loans). The events of 1975 caused a dramatic polarisation of opinion at the time, and have been surrounded by controversy ever since. Since then, the reserve powers have remained in their box and the ‘unwritten constitution’ has been followed. But 1975 made people a little curious, even nervous, about the potential for their re-emergence. What would happen if the Governor-General chose to exercise all, or permanently to exercise, his powers, exactly as they are described in the Constitution? What if, for example, he treated the words in section 64, saying that the Ministers ‘shall hold office during [his] pleasure’, as a literal grant of power, allowing him to remove a government that did not happen to ‘please’ him? It would create a huge crisis, that much is certain. Would his actions be legal? Surely not. But why not? Could the High Court even rule on whether they were? Traditionally, the exercise of the ‘prerogative’ – powers that are inherent to the office of the Monarch or the Governor-General – could not be challenged in the courts. As things stand, we don’t really know what words should be put in the Constitution, if it were to say here what it means, because what the Constitution means in this regard remains uncertain.

Why is the High Court so powerful? Why not just go to the High Court and ask the judges? We can’t. The Court does not answer ‘what if?’ questions. It cannot give advice on hypothetical problems. It will only rule on real or concrete

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disputes. The role of the High Court includes, among other things, interpreting the Constitution, to determine whether an Act or action is authorised by one or more of its provisions. If, in the judgment of the Court, it is not, it is therefore unlawful. It cannot operate, or continue if it has already begun. It must be reversed or withdrawn. From where does the High Court itself get this power – a power, effectively, to overrule decisions taken by the Government or by the democratically elected Parliament? Nothing can be greater than the Constitution; it must get its powers, too, from that source. In themselves, however, the words of the Constitution do not say exactly where this power lies. Section 76 of the Constitution says that the Commonwealth Parliament may make laws conferring ‘jurisdiction’ on the High Court regarding, among other things, matters ‘arising under this Constitution, or involving its interpretation’. That is to say, it may pass an Act conferring powers on the Court to hear and determine the legality of certain matters, including constitutional questions. The Parliament did this many years ago. The High Court’s jurisdiction, therefore, includes constitutional interpretation. But what is to say that ‘interpretation’ can lead to the invalidation of an Act of Parliament? Interpretation might, after all, mean merely that the High Court advises the Government that an Act or action does not conform to the Constitution, and then leaves it to government to decide what to do, or to explain themselves to the electors. This question was asked about the powers of the Supreme Court of the United States in 1803 (exactly one hundred years before the High Court of Australia was established). In a celebrated case, Marbury v Madison, it was affirmed – by the Supreme Court itself – that the power to determine constitutional questions was also a power to declare laws invalid. The framers of Australia’s Constitution assumed that the High Court’s role would be similar. They were certain – and the High Court has always assumed that this was correct – that the words of the Constitution, albeit without saying so, meant this. The Constitution is supreme. No act or action of governments or parliaments that is contrary to the Constitution can be considered lawful. Someone has to decide. This matter has fallen to the High Court.


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Assuming that Australians want the Court to continue as a constitutional umpire, the absence of words in the Constitution directly saying this – saying what it means, and what its framers certainly intended – may be surprising. If the Constitution were to say that the Court had this power, the words from section 76 (i) might need to be put in section 75, and that section might need to include something like this: The High Court shall have original jurisdiction, in all matters arising under this section, to hear and determine questions as to the conformity of any law to this Constitution. Any law determined not to be in conformity to this Constitution shall be invalid or inoperative.

How do the judges know what the Constitution means? And this raises another question. Just how does – and how should – the High Court interpret the Constitution? This is a complex question, and fortitude is needed to get through it (some readers, therefore, may wish to skip this section), but in order to know what the Constitution ‘means’, one needs to have some idea of how the Court goes about interpreting it. For an ordinary Act of Parliament, the Court looks at the plain and ‘natural’ meaning of the words, and takes this to be their meaning. ‘Lighthouses’ doesn’t mean ‘hotels’. ‘Fisheries’ doesn’t mean ‘farms’. But words and sentences can often have several meanings. Those who draft legislation are not always able to avoid ambiguity. Think of the phrase: ‘Do not set bush on fire. Fine $500.’ Imagine this appeared on a notice in a camping ground. The words could mean either: it is forbidden to set fire to bushland, or, it is forbidden to place a bush on a fire that is already alight. Both meanings are suggested, but the second is clearly absurd. It couldn’t possibly have been intended by those who wrote the notice. A court will attempt to avoid such absurdities in interpreting the law. If a person who had merely placed a bush on a campfire were charged with an offence, the charge would surely be dismissed. There are other ‘rules’ of interpretation. If an injustice or a deprivation of rights would result from a particular meaning, the courts will try to avoid this (unless the Act makes it very clear that this

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is intended). If a meaning is definitely implied by the words, that meaning will be followed. If the words are either unclear or ambiguous, and it is not obvious what was actually intended, then a court may look for other evidence of the intentions of those who wrote the Act: for example, in speeches made by the relevant Minister when the Act was introduced (as a bill) into Parliament. Courts will always attempt to uncover the meaning that best reflects an Act’s purpose. So far, so good. This ordinary approach is often followed for interpretation of the Constitution. However, the Constitution is not an ordinary Act. Its words may not be particularly opaque, but their meaning is sometimes less than clear. For example, section 92 says that trade and commerce ‘among the States . . . shall be absolutely free’. What can this mean? Free of what? No charges for goods traded? How ‘absolute’ is ‘absolutely’? No regulation of any sort – no trading licences, for example? Are people constitutionally free to trade in drugs or contraband? Throughout the twentieth century, the High Court pondered over these words again and again (until they finally decided in 1988 that ‘absolutely free’ simply meant: free of protectionist tariffs or ‘burdens’). To give effect to the ‘natural’ meaning of some sections of the Constitution might also lead to constitutional chaos (as we have seen, for example, with the Governor-General’s powers). But even if all the words were clear, even if they all meant exactly what they said, they could not cover all the possible alternatives. For example, ‘fisheries in Australian waters beyond territorial limits’ (section 51 (x)). A fishery may be an area of water where fishing takes place, and the definition of a ‘fish’ may be simple. But does the term extend to areas where crayfish or prawns are caught? Could we expect the Constitution to list every relevant species so that no questions of interpretation ever arose? Surely not. But this is not the only issue. The Constitution is the foundation of the Australian Commonwealth. All legislation and executive acts are ultimately subject to it. Just how it is interpreted makes a critical difference. If ‘absolutely free’ meant there can be no trading licences, this would have a very different effect on people’s lives from the effect it would have if it meant simply that States can’t impose tariffs on other States’ goods in order to give a competitive advantage to their


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own industry. An individual trader’s business or a State’s industry policy might depend upon the meaning given to these words. The Constitution cannot be altered easily (as an Act can) if the words seem to say one thing, but people don’t like it. How should such a mighty instrument be approached, then? If treating it like an ordinary Act of Parliament does not (always) work, what else should the Court do? Should it try to determine what its framers originally intended when they wrote it, over one hundred years ago? Or make it reflect the values and needs of the current generation? Over the years, some judges have preferred one approach, and some the other. Some have favoured implications from the whole Constitution – like Dennis Denuto’s ‘vibe’. Others have stuck very closely to the words under consideration in an individual case. For example, the first type of judge would ask of a law made under section 51 (x): what is the overall scheme set down in the Constitution? How do fisheries fit into this scheme? The second would ask: what precisely is a ‘fishery’? How broad is the term? Does it include, for example, ‘fishing’ for crayfish? Nothing much may hang on this kind of case. But what, for example, does the Constitution mean by ‘defence’? As we have seen, the Commonwealth Parliament has a power (under section 51 (vi)) to make laws with respect to ‘naval and military defence’ and this now includes air defence. The meaning of the term is anything but insignificant, and just how far it extends is growing in importance by the day, as we learn to confront terrorist threats. For example, might a law that bans a particular political party when the country is not at war be a law for the ‘defence’ of the Commonwealth? The power over ‘defence’ is quite limited during peacetime, the High Court has said in the past. But the days when wars were ‘declared’ and when wartime and peacetime were easily separated may be a thing of the past. Still, if the defence power allowed internal measures to be taken in Australia outside of declared war, where would these stop? Is ‘the war on terror’, for example, actually a war? What if an Act of Parliament were passed closing all the universities because the government thought that student protests were likely to encourage terrorism and were a threat to Australia’s ‘defence’? Currently, the Court would be very

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likely to find this unconstitutional. It would probably regard the Act as exceeding the limits of the meaning of ‘defence’. This issue is discussed further in Chapter 4 of this book. The Constitution could scarcely set out all the possible challenges to defence and say whether the Commonwealth could or could not meet them, or describe all the possible ways it might do so. The debate about what it, and other sections, mean will, thus, go on. This is also, significantly, a debate about how you approach finding the meaning in the first place. The Constitution does not directly reveal how it wishes to be interpreted.

Losing London The High Court has always had the power to interpret the Constitution. But, at the start of its life, it was not alone. Section 74 of the Constitution gave the Court the final word only in a particular type of constitutional dispute – inter se disputes – concerning, broadly, the question: who has the power to make certain laws, the Commonwealth or the States? These have been the bulk of all the constitutional disputes in the life of the Commonwealth. Other sorts of dispute – for example, whether a law infringed the requirement for trade and commerce to be ‘absolutely free’ – could previously either have been settled in the High Court alone, or gone on appeal to the Judicial Committee of the Privy Council in London. The Privy Council was (and still remains for some countries) the highest court of appeal in the empire. (It is referred to as ‘the Queen in Council’ or ‘Her Majesty in Council’ in section 74). In other types of dispute – over criminal and civil matters – appeals could go to the Privy Council without constitutional restrictions. These could go directly from the Supreme Courts, or via the High Court. In this limited respect, a British court still had some control over the shape of Australian common law, and indeed some limited control over the Constitution itself. However, section 74 also allowed the Commonwealth Parliament to bring such appeals to an end and, little by little, over the twentieth century, it did. The section is, to all intents and purposes, a ‘dead letter’. It sits there, with the other ‘spent’ sections, saying things that it no longer means.


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The jurisdiction of the High Court over all Australian law, including the Constitution is now final, although the words of the Constitution remain stuck in their 1901 groove. If the Constitution really said what it now meant, the whole of section 74 would probably be deleted.

What of the people? One crucial, indeed fundamental, thing that the Constitution means without actually saying so (or at least without explicitly saying so) is that the Australian people are sovereign. The source of all Australian law is the Australian people. Legitimate power comes from the bottom up, and not from the top down. It is derived from and authorised by popular consent. Its source is democratic, not autocratic or monarchical or theocratic. This principle is expressed in a number of ways in the Constitution: in the statement in the Preamble that ‘the people . . . have agreed to unite in one indissoluble federal Commonwealth’; in the provisions for direct election of members of the Houses of Parliament, and most significantly in the statement in section 128 that the Constitution can only be altered by popular referendum. However, while the Constitution means that the people are sovereign, it does not say this: and, indeed, in places it seems to say the opposite. It says, for example (section 1), that the ‘legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen’, as well as the Senate and House of Representatives. In section 61, the executive power of the Commonwealth is said to be ‘vested in the Queen’ and to be exercisable by her representative, the Governor-General. Neither government, nor the people, are even mentioned. Many other provisions, as we have seen, refer to the Governor-General’s powers, as if he were head of government (or even – if we literally believed what they said – dictator of the Commonwealth). Many others refer to the Queen as if she actually exercised power. Section 59, for example, says that the Queen may disallow laws that have been passed by the Parliament – a hereditary monarch can overturn laws made by the elected representatives of the Australian people!

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Much of this was never intended to be read literally, and can be put in the category of things that the Constitution says but does not mean. A great deal of what it actually does mean is found in the constitutional conventions surrounding the Parliament and Government (such as the convention of having a Prime Minister and Cabinet) and at the foundation of these is the principle of popular sovereignty. That Australia is a democracy – going hand in hand with the sovereignty of the people – is also not directly stated in the Constitution. However, it is clear that any non-democratic form of government in Australia would be unconstitutional. In saying this, of course, we must once again overlook the references to the Queen’s or the Governor-General’s exercising or embodying governmental power (neither of them is democratically chosen). We must pretend they do not exist, and look at the sections that describe the choice of Australia’s parliamentary representatives.

Democracy in the Constitution Chapter I of the Constitution, ‘The Parliament’, contains sections setting out the regularity of parliamentary sittings (or ‘sessions’). It describes the process for determining the number of representatives to which each State is entitled; it sets out the frequency of elections, among other things. Very importantly, it also contains several sections that are the key to the fundamentally democratic nature of the Commonwealth. Sections 7 and 24 include the words ‘directly chosen by the people’, for the Senate and the House of Representatives, respectively. This means that both Houses must be popularly elected, and cannot be appointed or indirectly chosen (not even by another elected body, such as an electoral college or parliaments). Plural or multiple voting is ruled out (section 8) so that, for example, holding property in more than one electorate does not entitle a person to vote more than once. To be qualified to stand for election to either House one must be eligible to vote in Commonwealth elections, and a ‘subject of the Queen’ (this category of citizenship no longer exists, and the term is now usually taken to mean an Australian citizen). There are


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no unusual age limitations, or property qualifications, or gender exclusions. (There are some specific exclusions: see section 44). Members of Parliament are paid a salary (section 48). This makes it possible for people who do not have independent sources of income (who does these days?) or lucrative part-time jobs, to sit in Parliament without starving. All this adds up to a pattern for democracy. Although it seems quite ordinary now, in 1901 it was a world ‘first’. In no other nation were both Houses of Parliament directly elected (even in the United States, senators were appointed up until 1913). The popular referendum for constitutional alteration (section 128) was employed in only one other country, Switzerland. In addition to the 1902 Commonwealth Act which enfranchised Australian women, and many innovations in electoral procedure, all of this made Australia the most advanced democracy in the world for its time. Democratic standards move on, of course. A number of things might be added or altered or phrased differently, if the Constitution were being written today. That would be a matter for debate and discussion. It is certain that however it was re-worked (short of a total revolution) Australia would retain a democratic Constitution. In many sections, even in its ‘vibe’, the Constitution is democratic. It means to be, without actually saying so.

The rule of law Sovereignty of the people and democratic government lie at the heart of Australia’s Constitution. But their exercise cannot be absolute. There are limits. The Parliament cannot do just anything, or pass just any kind of Act, simply because it was elected. For a start, the laws the Australian people can make (or authorise their representatives to make) are framed by, and thus limited by, the Constitution. Democratic sovereignty also rests upon the rule of law. The rule of law is a long-established doctrine. Under it, all persons (including those who make and enforce the law) are subject to the law and the law must apply equally to all. Laws must be regular; they cannot be arbitrary; they must be general, prospective and knowable in advance.

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Australia, it is often said, is a democracy under the rule of law. However, the place of the rule of law in the Constitution is not entirely settled. If a power granted by the Constitution were exercised by the Parliament in a way that breached the rule of law, would this still be ‘constitutional’? What if the Parliament passed a law exempting the members of the Prime Minister’s family from prosecution if they failed to pay tax? This would be contrary to the rule of law, but it is uncertain how it would be unconstitutional. There are some clearer examples, however. It is certain that the Parliament would be acting unconstitutionally if it attempted to usurp the role of the judiciary – for example, if it passed a law criminalising the actions of a named individual or with the express purpose of imprisoning or punishing an individual (this type of archaic law is known as a ‘bill of attainder’). This would breach the rule of law principle that laws must be general and apply to all equally. But the Constitution doesn’t actually say this. The breach would lie in the fact that determining guilt and punishing offenders by detention is not a legislative power. It is a judicial power, something only the courts can do.

The notorious case of Kable Upholding the rule of law is not always easy, particularly when it protects people who don’t appear to deserve it. In 1994, the imminent release of a prisoner in New South Wales, Gregory Kable, was causing alarm. Kable had been convicted of killing his wife. While in prison, he wrote letters, threatening to harm members of his family, including his own children, once he was free. The story got out, and ran in the media, with cries for the Government to do something. In response, the New South Wales Parliament passed what it called the ‘Community Protection Act’ designed to keep Kable in detention more or less indefinitely. Under the Act, the Supreme Court of NSW was asked to determine every six months whether Kable was still likely to commit a serious act of violence, and if they thought he was, to issue a detention order against him. In other words, he was to be kept in prison, without trial, and for a crime he had not (yet) committed. The Act stated that ‘the need to protect the community [was] to


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be given paramount consideration’; it referred specifically to Kable, and ruled out ‘the making of a detention order against any other person’. It was challenged in the High Court, on the grounds that it involved a legislative interference in a constitutionally protected judicial function. The Court agreed that what the Supreme Court was asked to do went beyond the appropriate exercise of the judicial power. It found the Act to be unconstitutional, and Kable was released. In 2004, a similar Act – Queensland’s Dangerous Prisoners (Sexual Offenders) Act – has also been the subject of a challenge. Once again, the question – how do you balance community protection against individual rights? – will be asked. The constitutional question, however, is put a little differently. It is concerned with how far governments can interfere in matters that constitutionally belong to the court. Section 71 of the Constitution says that the ‘judicial power of the Commonwealth’ is ‘vested in’ the High Court and certain other courts. This is taken to be an exhaustive list. Neither the Parliament nor the Executive can exercise judicial power. The section also means that the power must be exercised ‘judicially’, and this includes adherence to the rule of law. The courts alone are able to enforce the law. However, laws preventing people taking appeals to the courts from a tribunal or challenging executive decisions, are not regarded as a breach of the Constitution, unless they amount to an attempt to take away the High Court’s constitutional jurisdiction. The High Court has a right to hear disputes about the actions or decisions of officers of the Commonwealth (including Government Ministers). What the courts can and cannot do has become a very live issue in recent times. The Parliament has amended the Migration Act, in the attempt to rule out legal challenges to executive decisions made under the Act. The point of these amendments has been to prevent unsuccessful applicants for immigration or refugee status in Australia going to the courts to challenge adverse decisions made by the Minister for Immigration, or the Refugee Review Tribunal. The amendments have been effective in ruling out appeals to all the courts, except the High Court. As all Acts of Parliament must conform to the Constitution, no Act can take away the High Court’s

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constitutional jurisdiction. The result of these amendments is that immigration and refugee appeals are now only able to go to the High Court, and the number of cases of this kind rose by more than two hundred per cent in the following year.

Are retrospective laws unconstitutional? In early 2004, the detention of David Hicks and Mamdouh Habib at Guantanamo Bay in Cuba was once again in the public arena. Along with more than 600 nationals of other countries, the two Australians had been held without charge for two years since their arrest during the United States’ war against the Taliban in Afghanistan. Calls were being made for the men to be returned to Australia, but one of the obstacles, it seemed clear, was the lack of any Australian laws under which they might be prosecuted. The idea was then briefly floated that retrospective terrorist laws might be passed, to create a crime of their conduct and back-date it to the time before their arrest. Then they could be charged if they returned. The proposal was strenuously criticised by lawyers, among others. The Prime Minister quickly declared that retrospective laws were unfair and, he implied, unacceptable in Australian law. Many people may have got the impression that such laws were actually unconstitutional. But retrospective laws are not, in fact, unconstitutional in Australia. While the United States Constitution forbids Congress to pass any ‘ex post facto Law’, there is no clear constitutional impediment to retrospectivity in Australia. The Commonwealth has no direct powers to make criminal laws, but it can create criminal offences in its exercise of another power; for example, it has power over customs, and its customs laws may include criminal penalties for importing banned goods or substances. Taxation laws are similar, as are a good number of other areas of Commonwealth power. If the offences are retrospective this is not in itself an obstacle. The Commonwealth has passed retrospective taxation laws. In 1988, it created a retrospective criminal offence to give effect to international law (exercising the ‘external affairs’ power, section 51 (xxix) of the Constitution). This was the War Crimes Act, which was back-dated to the start of the Second World War, and allowed for the prosecution of former Nazis and their supporters who were


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found to be living in Australia. The first person to be tried under this Act, a naturalised Australian citizen, Ivan Polyukhovich, was charged with committing war crimes in the Ukraine while it was under German occupation. He challenged the Act’s validity in the High Court. Although an objection was made to its retrospective status, it was not held to be unconstitutional. (Polyukhovich was later acquitted for lack of evidence). Some people believe that retrospective laws breach the principle that the Government cannot interfere in the exercise of judicial power. This view has not, up to now, been supported by the High Court.

Constitutional equality? Equality before the law is a key principle of the rule of law. It is protected by the common law in Australia, but is not stated anywhere in the Constitution. Nor does the Constitution actually intend it. Section 117 of the Constitution says that no ‘subject of the Queen’ can suffer discrimination under the laws of one State merely on the grounds of his or her residence in another State. This, however, is only a very limited form of equality. It would not stop a law that exempted the Prime Minister’s family from prosecution if they failed to pay tax. The High Court has ruled that there is no general statement of legal equality in the Constitution, and nor is there a guarantee that Australia’s democracy requires equal weight to be given to everyone’s vote. In places, the Constitution appears to be positively undemocratic and non-egalitarian. It suggests that executive and legislative power can be wielded by non-elected persons (the Queen and the Governor-General) – but we get around this by ignoring what it says in these sections. That Australia is a democracy under the rule of law may be one of those things that the Constitution means, but does not actually say. It may also come under the heading of things that the Constitution fails to say that might be important (see Chapter 4 of this book).

Chapter 3

The Constitution says some things without actually saying them By late 2002, debate about Australia’s defence and foreign policy was hotter than it had been for years. International strategies against regimes considered sympathetic to terrorism were being added to border-protection and local anti-terrorism measures. Australian troops had taken part in the United States’ mission to topple the Taliban leadership in Afghanistan. Australia was poised to join the invasion of Iraq. From these major national issues, as we have seen, many constitutional questions arose. And, as so often with grand dramas, there were smaller offshoots. One, fittingly, concerned the status of the Australian flag.

Burning the flag As a protest against the Government’s policy, a young student in Melbourne, Elizabeth O’Shea, burned an Australian and an American flag outside her university. A storm of comment and criticism immediately followed. Editorials were written denouncing O’Shea’s actions, talk-back radio ran hot, and members of government joined in the protest. And, as could be expected, there were copy-cat flag-burnings, by other students in other universities. John Anderson, Deputy Prime Minister (and Leader of the National Party), was so disturbed that he called immediately for legislation banning flag burning or ‘desecration’. The Prime Minister was more circumspect about the wisdom of such legislation. He acknowledged that there was more to the issue than just how offended people were. Flag-burning, Howard said, was ‘repugnant’, but, he added, ‘I guess it is part of the sort of free

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Says some things without saying them

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speech code we have in this country.’ What he did not say was that the ‘code’ is found in Australia’s Constitution. One thing must be cleared up first. The flag itself is not protected by the Constitution. That is to say, there is no constitutional provision setting out what the national flag should be. The flag is not even mentioned. As we have seen with the case of the Prime Minister (who is also not mentioned), a failure to be mentioned does not in itself stop something being part of the ‘unwritten constitution’. As it happens, however, the flag is not. It is in fact simply the product of an Act of Parliament. Had there been a ‘constitutional’ flag, it would have been the one that was used in 1901 anyway – that is, the Union Jack. What is now the Australian flag was the winner in a nation-wide competition, sponsored by a newspaper in 1901, but it was not officially adopted as the national flag until the first Flag Act in 1953. That Act, like all others, is subject to the Constitution. The Constitution’s principal purpose is to set out the institutions and ‘arms’ of Australian government (Parliament, Executive, and Judiciary), and to say which of the levels of government (Commonwealth or State) is permitted to exercise particular powers. It says very little about national symbols. For the most part, it also says little about individual rights and freedoms. There is no bill of rights. There are, however, certain constitutional limits on the exercise of powers. Some of these limits take the form of ‘rights’ or freedoms, protecting the citizen from encroachment by government. Some of these ‘rights’ are found in the words of the Constitution (for example, section 116 prohibits the Commonwealth from making laws imposing or restricting religious observance). Some other ‘rights’ or freedoms are found, by implication, in between the lines of the Constitution. They are implied. In this respect, the Constitution says certain things without actually saying them outright. Foremost among these is the freedom of political speech. There are no actual words protecting free speech in the Constitution. The freedom is implied. It arises in this way: the opening lines of sections 7 and 24 of the Constitution include the words ‘directly chosen by the people’.

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The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. and The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth . . . This means that Members of Parliament are to be directly and popularly elected. No appointment, or indirect election (such as, for example, an electoral ‘college’) is permitted. Here’s how it works: The people choose their representatives. This is required by the Constitution. But what does the Constitution require for there to be a choice? A voter needs to know more than just the names of candidates standing for election. A choice cannot be genuine unless it is fully informed. It cannot be informed unless there is a free circulation of information about the range of alternatives on offer, and about the things which candidates for Parliament are proposing to do. Voters need to know not only what a political party stands for, but also to have any other information relevant to assessing whether a party’s policies are worthy of support. That information must be communicated and discussed freely. Relevant information has, potentially, very few limits. So, political ideas and information must also be freely circulated. This means that, in using the expression ‘chosen by the people’, the Constitution requires that the circulation of information needed to make a choice shall not be restricted. In the words of one of the High Court judges, Justice (later Chief Justice) Brennan, in 1992: It would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments . . . Freedom of public discussion of government . . . is not merely a desirable political privilege; it is inherent in the idea of a representative democracy.


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By implication, then, the words ‘directly chosen’ require a freedom of speech, discussion or communication about political matters. This is not the same as being part of the ‘unwritten’ Constitution. It is something that arises necessarily from words that are already there. Imagine a sign, for example, in a building saying ‘Please extinguish the lights when leaving’. These words selfevidently and necessarily imply that persons leaving will turn the lights off at the switch, and will leave them off. It would be absurd to claim that the sign permitted you to smash the lights or remove the bulbs in order to extinguish them, or that you could turn them off and then immediately turn them back on again before you left, just because it didn’t say ‘leave them off’. So, although the Constitution does not say it in so many words, it actually ‘says’, by necessary implication, that free speech about political matters is constitutionally guaranteed. The things that the freedom of political communication protects are extensive. ‘Political’ is not confined to election material or election times, nor is it limited to information about Australian politics. ‘Speech’ may also take the form of action, such as protesting or demonstrating. A law, made either by a State or Commonwealth Parliament which had the purpose of prohibiting or inhibiting political communication, would be unconstitutional. Laws which have this effect indirectly, but which are designed for another purpose (so long as it is a legitimate purpose – public safety, for example) are not necessarily unconstitutional. But the principle stands: Australia has a constitutional guarantee of freedom of political speech (although you would never know it just by looking at the Constitution itself). The men who painted ‘No War’ in red paving paint on the crest of the Sydney Opera House in March 2003 were certainly making a political statement. Unlike the actions of an ordinary graffitist, theirs was, without a doubt, a form of ‘symbolic speech’. It is highly unlikely, however, that a court would see them as exercising a constitutionally protected right. The public property offences under which they were charged were not designed to suppress political communication, and the actual purpose – protecting property – is surely regarded as legitimate.

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Americans are free to burn their flag But what of burning the Australian flag? An individual flag may well be private property; therefore the usual issues of destroying public property, endangering public safety, and suchlike, may be irrelevant. It is certain that O’Shea’s protest was a form of political communication or speech. The very reason she burnt the flag was in order to get a political point across. And it is equally certain that if Australia had a law banning such actions, it would inhibit this form of ‘speech’. Would it nevertheless be constitutional? In the United States questions such as these have been asked on more than one occasion. In the late 1980s, protesters who burned the Stars and Stripes were prosecuted under a Texan law prohibiting the desecration of ‘venerated objects’. The Supreme Court found that this law infringed the constitutionally guaranteed freedom of speech, and was therefore invalid. Soon after, the federal Congress made it an offence specifically to desecrate or destroy the American flag. Again, the Supreme Court ruled against the law. Although many Americans regard their flag with the deepest reverence, burning it as a form of protest is protected by the First Amendment of the United States Constitution, which prohibits Congress from making laws ‘abridging the freedom of speech, or of the press.’ No freedom is absolute, and there are always occasions when it is legitimate for a government to impose limits. It might be dangerous, for example, to burn a flag outside a petrol station. It might, therefore, be reasonable to prohibit such ‘speech’ in this particular location. Sheltering people from offence is, however, not a legitimate reason for suppressing speech. As one of the judges of the United States Supreme Court said: ‘If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’ Australia’s implied freedom of political communication does not go as far as the First Amendment. Still it is significant. When, during a visit to Australia in 2003, United States President George Bush faced members of the Commonwealth Parliament who were protesting against his country’s foreign policy, he commented, with a smile: ‘I love free speech.’ He was using an American reflex, but on the right Australian track.


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The High Court has invalidated laws inhibiting the freedom of political communication. It has ruled, for example, that a Commonwealth law restricting political advertising on radio and television breached the implied freedom and was therefore unconstitutional. It has ruled that a law making it an offence to criticise members of the Industrial Relations Commission was similarly unconstitutional. It has also found that a state law preventing people from entering the Victorian wetlands during the duck-shooting season without a licence, did have the effect of inhibiting political communication. Protesters who wanted to collect the bodies of dead native birds for display to the media were unable to do so. However, the Court found that the law was legitimate, because its purpose was to protect people’s safety, and it was not excessive. Would the High Court find legislation banning flag burning to be unconstitutional? Or would the law be found to have another, legitimate purpose? What would that be? We still do not know, although the story may not quite be over. In early 2003 a young man was arrested for burning an Australian flag in Perth. His charge was soon dropped, since the Western Australian public prosecutor was advised that the charge would be found unconstitutional. A bill banning flag burning was then quickly introduced into the Western Australian Parliament by the Leader of the Opposition. And later that year, two Liberal Party backbenchers put a ‘private member’s bill’ (that is, a bill that does not come from government) before the Commonwealth Parliament. The bill had the aim of making it an offence to ‘desecrate or otherwise dishonour’, burn, mutilate or otherwise destroy the flag ‘without lawful authority’. It now seems unlikely that these bills will proceed through either House of Parliament and unlikely therefore for them ever to become law. But in the event that they did and their constitutional status were challenged (as it would very likely be), that would be the opportunity for the High Court to speak. As the Court cannot give an opinion about hypothetical questions, we must wait until an actual dispute arises. We can be certain, however, that any dispute about the constitutional validity of such an Act would turn upon the implied freedom of political communication. What the Constitution says without actually saying it would be the question.

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What do we mean by ‘defence’? There is an altogether routine way in which the Constitution also says certain things without actually saying them. It lies in the powers that are given to the Commonwealth Parliament. In deciding which level of government would get certain powers, the framers’ idea was that some things were self-evidently ‘national’ and others were obviously a matter for the States. The Commonwealth would have exclusive control over those things which could really only be done at a national level. Defence, customs duties, currency, and control of Commonwealth property came under this list. Some other things that were suited to national control might also be done by the States, or done by them for a while until the Commonwealth took over. Things that did not require national regulation and were better handled at the local or regional level, were left to the States. The Commonwealth was not supposed to interfere in state matters. The States, as we know, cannot set up their own defence forces. They are not permitted to impose customs duties on imported goods or excise duties on local goods (see section 90). They cannot coin money (section 115). Both the Commonwealth and the State Parliaments may make laws about a range of things: lighthouses, immigration, marriage, for example. But if there is an inconsistency between a Commonwealth and a state law, the Commonwealth law prevails. Most of the Commonwealth’s powers are set out in section 51 (and most of these are ‘concurrent’, that is, available also to the States). The section begins by saying that the Parliament can make laws ‘for the peace, order and good government of the Commonwealth with respect to’. Then follows a list of subjects. Where, for example, it says ‘lighthouses, lightships, beacons and buoys’, it means that the Commonwealth Parliament can pass laws for building or regulating lighthouses (in almost any way it likes). Complicated issues may arise (is a lighthouse just anything the Commonwealth designates?; what if, for example, it declared that hotels should be called ‘lighthouses’, and started to regulate hotels? Would this be lawful?). Where an issue arises whether or not a Commonwealth law is actually a law ‘with respect to’ one of these subjects, the High Court is usually asked to decide the matter. But


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mostly it is quite clear where the power lies – the vast bulk of all legislation is undisputed. In Australia over the last few years, interest in a couple of the Commonwealth’s powers has greatly increased. With the rise of world terrorism since 11 September, and the growing movement of people seeking refuge outside their own country, security and ‘border protection’ are now top items for political debate. The defence power (section 51 (vi)) and the immigration power (section 51 (xxvii)) are under the national microscope. One after the other, special legislative measures to deal with the threat of terrorism are appearing. Many, such as new public emergency procedures, have been taken by State governments. At the Commonwealth level, among other things, the powers of ASIO (Australian Security Intelligence Organisation) to detain and question people have been extended. Terrorist suspects can now be interrogated for longer periods than before, and persons who are believed to have relevant information can be detained for questioning, with the threat of imprisonment if they do not cooperate. Surveillance and information gathering have been enhanced. The Commonwealth’s powers are, however, limited. Only a range of indirect ways for dealing with terrorism is available – there is no constitutional power over, for example, ‘homeland security’. Defence would seem to be the ‘go-to’ power, but as we have seen, it is more restricted than many might imagine. Obviously the power allows the maintenance of a defence force, and the deployment of Australian troops in enemy combat and external defence procedures. When Australia is at war, the Commonwealth can regulate all sorts of aspects of life within the country, so long as this is demonstrably necessary for defence. During the Second World War, for example, the Commonwealth regulated the price of bread, the marketing of fruit, Christmas advertising, the fabric used for Boy Scouts’ uniforms, and much more, in the name of defence. But in time of peace, the Commonwealth cannot just declare certain measures to be necessary for Australia’s defence. For example, continued petrol rationing in the years after the Second World War was found to be unconstitutional, although the Commonwealth believed it was necessary due to the impact of the war on petrol supplies. If the defence power could be used to justify laws after the war for everything that had been affected by the war, the High

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Court warned, ‘the result would be . . . [n]early all the limitations imposed upon the Commonwealth by the carefully framed Constitution would disappear.’ Nor can the defence power be used to pre-determine guilt and punishment. In 1950, the Menzies Government tried to ban the Communist Party of Australia in the name of defence. Its legislation, among other things, included sanctions against any person ‘declared’ by the Attorney-General to be a Communist. This law, the High Court found, exceeded the scope of the defence power in peacetime, and was therefore unconstitutional. How far the power reaches depends upon the level and degree of threat. In wartime, it swells to mighty dimensions and in peace, it shrinks back. Even during periods of so-called ‘Cold War’ (as the Communist Party case illustrates), the defence power is relatively weak. Similarly, the ‘war on terror’ is not a full-scale ‘war’, and is unlikely to permit great expansion. What the Commonwealth can do against terrorism with the defence power is still largely restricted to external defence. (The executive power (section 61) may permit quite a lot of measures against terrorism, but its scope is still uncertain.) The Constitution cannot speak for itself. The High Court must be its mouthpiece. All of this is what the Constitution ‘says’ through its words ‘the naval and military defence of the Commonwealth’, without actually saying it.

How do you lose four thousand islands? For all these reasons, the defence power cannot be employed against people on rickety boats, sailing illegally into Australian waters. But the immigration power can. The Commonwealth can pass laws setting the number of immigrants allowed to come to Australia in any one year, and the qualifications or skills, they are required to have. It can decide on the quota of refugees, if any, that Australia will take. It can do these, and many other things that may not appear obvious from the Constitution’s simple words ‘immigration and emigration’. The Commonwealth can, for example, reduce the territory that is included in Australia’s ‘migration zone’.


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If a non-citizen lands on one of Australia’s islands – that is, unless the territory has been ‘excised’ – he or she has the right to apply for a temporary visa, to be processed as a potential refugee. Under international and local law, every country has responsibility for all the people on its own territory. Australia is no exception. Its specific responsibilities towards asylum-seekers arise from its own legislation, passed to give effect to the United Nations Refugee Convention. Australia is a signatory, but merely signing or ratifying a convention doesn’t make it binding. International law only applies in Australia once the Parliament has adopted it in an Australian Act. There is no legal obligation to do this. Many conventions have been ratified by the Government but still remain outside Australian law. The Refugee Convention, however, is not one. Under Australian law, then, people who apply for refugee status are able to stay for a while. They would normally be placed in a Detention Centre and from there (although it might take years to get a final decision) they would apply to the Minister for Immigration, and then, if the Minister’s decision was unfavourable, perhaps to the Refugee Review Tribunal, even ultimately the High Court in seeking to establish their claim. If they were found to have a ‘wellfounded’ fear of persecution in their own country, for reasons of race, religion, nationality, membership of a particular social group, or political opinion, they would have the right to remain, at least temporarily, and to live freely in the Australian community. The excision of an island means that a refugee claim (or any immigration application) cannot be made on this part of Australia’s territory. It has become an ‘excised offshore place’. In late August 2001, a Norwegian freighter, the Tampa, picked up more than four hundred ‘boat people’ from a sinking ship in international waters not far from Australian territory. Adhering to the laws of the sea, the captain then did what he judged to be best to save people he considered in peril. He brought his ship into Australian waters close to Christmas Island, seeking help. The Australian Government refused to let it dock, and SAS troops boarded it. The very last thing the Government wanted was for the people on board to set foot on Australian territory. With the law as it stood before the ‘excision’ solution had been adopted, they would have had the right to apply for refugee status.

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So there they sat for more than two weeks, unable to land, unable to leave, waiting to learn their fate. Would they be admitted onto the island for processing? Would they be expelled and sent back to sea? Would they be taken elsewhere? Who would decide – the Australian courts, or the Government? These were hard and dramatic questions. Over the next few weeks they polarised the Australian community.

The constitutional ‘solution’ On the very day of 11 September 2001, the Federal Court first found that the Government’s actions in holding the people on the Tampa were unlawful; then one week later, it overturned its own decision. By this time, the border protection issue had got tangled up with questions about terrorist incursions. The desire to ‘send a message’ to people smugglers; the fear that terrorists might find a way into Australia through the refugee ‘trade’; a determination to assert Australia’s sovereign control of its territory; and the need to recognise international obligations, provided a frantic cocktail of imperatives for the Government. Among the solutions found was to pay the governments of Pacific islands like Nauru to hold the people from the Tampa while their claims were processed through the United Nations’ refugee agency. These people would, thus, be off Australian soil and out of Australia’s hands (but not pockets). They could return to being, as they had begun, a legal problem for the international community, albeit one financed by Australia. More than two years later, the process is still being worked through. The ‘Pacific Solution’ attracted a great deal of publicity (not to mention controversy). But it was a political solution, a temporary deal between governments. The constitutional spin-offs from the Tampa affair are less well known. One involved an attempt by the Government to prevent any legal challenge against the actions, past and future, of Commonwealth officers towards unauthorised boats in Australian waters. The first ‘Border Protection’ bill was drafted and introduced so hurriedly into the Parliament, and its provisions were so sweeping, that it might even have permitted the Navy to board and search Australian boats without warrant, and without legal redress. The bill did not survive the instant barrage of criticism. It was modified, amended, and eventually passed. In its new form


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it simply, and retrospectively, legalised the Navy’s actions over the Tampa. Still the constitutional principles remain important. What the original bill said was this: no action by any Commonwealth officer regarding boats in Australian waters can be challenged in the courts. What section 75 (v) of the Constitution says is this: the High Court has the power to hear challenges against ‘an officer of the Commonwealth’. (The challenge is made through applying to a court for certain ‘writs’: ‘Mandamus’ is a court order compelling a public officer to perform his or her duty; ‘prohibition’ is an order forbidding a public officer from doing something; an ‘injunction’ stops something being done while other legal matters are clarified.) No Act of Parliament can override the Constitution. No Act could ever prevent the High Court from exercising its powers. Nothing in the Constitution says that the right to apply to the Court is exclusive to Australian citizens. Anyone affected by the actions of a Commonwealth officer can, if they have a legal grievance, seek a ruling from the Court. So an ingenious new solution to the Tampa dilemma was quickly found. If access to the High Court could not be denied to those already in Australia, it might be possible to stop them from getting into ‘Australia’ in the first place. Preventing them from physically setting foot on the land was one way, but it was far from easy. There were, after all, so many islands in the relevant waters, and constant surveillance of every single one is simply impossible. Preventing the territory on which they arrived from being counted as Australian soil for the purposes of visa claims was another. The solution was the excision of islands from Australia’s ‘migration zone’. Although the land was still ‘Australia’ for all other purposes, once this was done, handling such people would no longer be Australia’s responsibility. In the immediate wake of the Tampa crisis, Christmas Island, Cocos Island and Ashmore Reef were excised from the zone. For a time the waters remained calm, and boat people stayed away from Australia. Then in November 2003, the lull was broken. Fourteen Kurdish men on a ‘people smuggling’ boat from Indonesia landed on Melville Island, asking for asylum (or not actually asking, depending on the conflicting reports of what they said in their limited English). Their boat was pushed back into the sea, the Navy arrived, access to the island was shut down, and the men

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were returned to Indonesia. The Australian Government got the Migration Act out again, and wielded their excision scissors, this time with a vengeance. Melville was retrospectively cut out of the zone, and the four thousand islands quickly joined it. When Prime Minister John Howard said during the controversies of 2001 that ‘we decide who comes here and the circumstances in which they come’, he was constitutionally on solid ground. There is nothing in the Constitution to prevent the immigration power being employed in such a way, and nothing to say that intending immigrants or refugees are entitled to regard all Australian territory as a site for making applications to stay in Australia. As it happened, the islands were soon restored to the zone, but not because of any limitations in the Constitution as such. Indeed, something of the opposite. A majority of senators opposed the way the excision was done, and the Senate has the constitutional power to reject a bill, or amend it, or send it back to the House of Representatives. It also has the power to disallow regulations made under an Act. The table of excised islands was in the form of regulations. The Senate used its power, and thereby denied the ‘excision’ legal force. In doing so, it poured fuel on the Prime Minister’s desire to alter the Constitution, to make such obstruction impossible in the future. In the end, as so often in Australian political life, constitutional change is the only option. It is also (as we see in the Conclusion) the hardest.

One nation? The fact that the Constitution says such things without actually saying them is unsurprising. It would be impossible for it to set out in every respect how the Parliament’s powers could or should be used. If it did, it would also mean that the Government was severely limited in how it put its policies into effect. Nevertheless, the excision of Australia’s islands was a bit of a puzzle. To what extent is Australia ‘one nation’? Is there a single Australian territory? What if the whole of Tasmania were ‘excised’ from the Commonwealth for migration purposes? When Edmund Barton said in 1893 that federation would make ‘a nation for a continent, and a continent for a nation’ – forgetting to mention Australia’s islands – was he right in ways that he could


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not have foreseen? There is nothing to say that uniform laws are constitutionally required, even within the continent of Australia. The ‘migration zone’ could become as small as, say, Sydney harbour or the Hobart CBD. What sort of a nation is Australia, then? Shouldn’t Commonwealth laws and entitlements be the same wherever you are? The constitutional answer is no. The Constitution prohibits the Commonwealth from making some unevenly distributed laws, but only with regard to trade, commerce, revenue or taxation, and only where these give preference to or discriminate against a State. There is nothing requiring it to pass laws that are uniform in any other respect. On the other side of the coin, the Commonwealth can venture into areas that were once thought to belong to the individual States alone. It can pass uniform (or, alternatively, variable) national legislation if it wants to, where once there were different state schemes. One way it can do this is through the ‘external affairs’ power. It might be imagined that this would help to deal with the ‘boat people’ problem, but it doesn’t. ‘External’ means, effectively, things geographically outside Australian territory (including territorial waters). Counted among things ‘external’ are international agreements or treaties. The executive government (through section 61) can sign or ratify treaties (or conventions, as the United Nations’ agreements are usually known) and the Commonwealth Parliament can pass laws putting them into effect in Australia. Many international treaties deal with things in respect of which the Commonwealth does not have another power.

Saving the wilderness The environment is an example. The Commonwealth has a couple of direct powers touching on environmental law. It can pass laws regulating quarantine (section 51 (ix)), as well as fisheries in Australian waters beyond territorial limits (section 51 (x)). It has limited powers over river water (see section 100). But the concept of a single natural environment was not in circulation in the 1890s, and it is doubtful anyway that the framers of Australia’s Constitution would have treated it as a national matter back then, even if it had been.

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The Commonwealth has no constitutional powers over land, or trees, or energy, or the general use of rivers. Normally, these are purely – and constitutionally – matters for the States. When the Commonwealth has no constitutional power, the ‘default’ setting is in the hands of the States. How then, in 1983, did the Commonwealth pass a law preventing the Tasmanian Government from building a dam to generate electricity on the Gordon below Franklin River? The answer lies in the external affairs power. The area of Tasmania in question was untouched wilderness. Some years earlier, it had been listed on the World Heritage list (under the United Nations Convention for the Protection of the World Cultural and Natural Heritage). Had it not been, it is doubtful that things would have turned out as they did. But Australia was a signatory to the Convention. The Commonwealth Parliament was therefore able to pass its law, and give effect to the Convention’s purpose within Australia. Protecting the Tasmanian wilderness under threat from the proposed dam was one of the ways of doing this. Despite outrage from the Tasmanian Government and the federal Opposition the High Court found that this was, effectively, what the Constitution said. The external affairs power can be drawn upon by the Commonwealth to pass all sorts of laws, if it wants, dealing with things covered by international treaties or conventions. Human rights laws, for example, come under this heading (although nothing else in the Constitution suggests that the Commonwealth has a power over this sort of subject). The Racial Discrimination Act of 1975, and the Sex Discrimination Act of 1984, are such laws. Indeed the external affairs powers reaches into anything geographically ‘external’ to Australia (although Australian laws only operate within Australia). Filling out what this section says, would make it look something like: The Parliament shall . . . have power to make laws for the peace, order and good government of the Commonwealth with respect to: ... (xxix) External Affairs including matters with respect to which the Commonwealth is otherwise unable to exercise power.


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Forcing the hand of the States? There is another angle. If you look through section 51 (plus the much smaller list of ‘exclusive’ powers in section 52), you will see a long list of subjects: lighthouses, defence, immigration and external affairs, and so on. However, you will fail to find several things that the Commonwealth routinely does – things that are subject to Commonwealth policy, and for which there have long been Commonwealth departments. Education is an example. Nowhere in the Constitution is there a Commonwealth power over education. Yet we know that there is a Commonwealth Department of Education (currently called ‘DEST’: the Department of Education, Science and Training). We know, from the controversy in early 2004 aroused by the Prime Minister’s claim that state schools fail to teach ‘values’, that the Commonwealth is closely interested in school education, and that it funds both state and private schools. We know that the Commonwealth Minister for Education is the responsible Minister when it comes to Australian universities. The universities are subject to Commonwealth, not State, policy. We also know that the Commonwealth can only do things that the Constitution authorises. How, then, does this happen? Section 96 is the answer. Section 96 gives the Commonwealth the power to grant ‘financial assistance’ to the States, that is, to give grants ‘on such terms and conditions as the Parliament thinks fit’. Some grants are general purpose (funded through the Grants Commission) and have no conditions attached to them. Many are granted for a specific purpose. For example, since the 1960s, the Commonwealth has funded the States’ universities, and the terms and conditions it attaches are found in the higher education policy of the Commonwealth government of the day. Many other things – hospitals, roads, and much more – that would otherwise be a matter for the States alone are funded by the Commonwealth and subject to its conditions. As the Commonwealth raises much more revenue than the States, and more than it requires for its own purposes, it has considerable power to use this section. The States are always free to refuse the conditions, and therefore to forfeit the grant. This does happen

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occasionally. In late 2003, the States were threatened with financial penalties for failing to comply with Commonwealth policy on liquor sales, electricity pricing and taxi deregulation. New South Wales Premier Bob Carr said that his State would only comply ‘with a gun pointed at our head’, but Queensland Premier Peter Beattie insisted that he would not back down. (Queensland had already lost more than a quarter of a million dollars for refusing to comply with Commonwealth demands for water reform.) The States, however, need money, and they have fewer sources of revenue than the Commonwealth; to refuse a grant is rare. In this way, although the Constitution does not actually say so, the Commonwealth is able to expand its powers beyond what is set out in the Constitution. One of the major reasons the States need grants from the Commonwealth is because the Constitution prevents them from collecting certain sorts of revenue, and they are restricted in regard to others. Section 90 says that ‘the power of the Parliament to impose duties of customs and of excise . . . shall become exclusive’. This means that only the Commonwealth is entitled to collect both customs duties and ‘excises’ (which are ‘inland’ taxes on manufacture, production or distribution of goods). Since 1997, because of the High Court’s interpretation of this section, the States have also been constitutionally prohibited from extracting ‘franchise fees’ from retailers of products like tobacco and petrol. Since 1942, the Commonwealth alone has collected income tax. Although the States can also collect income tax (under section 51 (ii) which is ‘concurrent’), they agreed to give up doing this (or were as good as forced to, some say), under an arrangement where the Commonwealth gave grants in return. Other forms of state revenue are limited. (This is one reason the States are increasingly coming to depend upon gambling taxes.) This situation – where the States have many constitutional ‘duties’ providing services, like the police force, roads, hospitals, but have a relatively small pot of revenue that they can control – is known as the ‘vertical fiscal imbalance’. It has been the source of dispute and complaint for decades. The power of the Commonwealth to control state policy through terms and conditions attached to its grants is a core part of the picture.


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If section 96 were filled out, it would read something like: . . . the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit including with respect to matters over which the Commonwealth is unable otherwise to exercise power.

Is same-sex marriage unconstitutional? Another – less well-known – approach lies in the so-called ‘reference power’ in section 51 which says: The Parliament shall . . . have power to make laws for the peace, order and good government of the Commonwealth with respect to: ... (xxxvii) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States . . . The States, thus, can ‘refer’, or hand over the power to the Commonwealth to make laws for specific things which the Commonwealth otherwise cannot regulate. For example, the Commonwealth has a marriage and divorce power (section 51 (xxi) and (xxii)), but it only has power over ‘the custody and guardianship’ of children born of a legal marriage. It has no power regarding children whose parents have never been married. When the Federal Family Court was set up in 1975, there was a dilemma. The Court was designed to handle, among other things, child custody disputes, through a single, national process. Many children, however, did not have parents who were married according to law. In order for custody arrangements for these children to be settled in the Family Court, the States had to refer their relevant powers to the Commonwealth. Dramatic changes in demographics, values and societal arrangements have been experienced in Australia in the post-war decades, as in all comparable countries. There is no evidence that the process of change has finished, nor that the legal and social conundrums it creates are about to end. Constitutional law will continue to be caught up in such intensely personal questions. Where do same-sex

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couples stand constitutionally? Could the Commonwealth change the marriage law, to make it apply equally to same-sex couples and heterosexuals? At present, marriage is understood as a union between a man and a woman, but is this necessary? What does ‘marriage’ essentially mean? All the Constitution says, after all, is ‘marriage’. Is marriage something like a ‘lighthouse’, with a particular identity and purpose? Or is it more like ‘trade and commerce’ – a type of relationship which may cover or include all sorts of things? Could marriage be just anything the Commonwealth decides? Technically, the States also have the constitutional power to pass marriage laws (‘marriage’ is not exclusive to the Commonwealth). However, when both the Commonwealth and the States pass laws on the same subject, if there is any inconsistency between them it renders the state law invalid (see section 109). The States cannot, therefore, pass marriage laws that are different from the Commonwealth’s. However, they are free to legalise gay and lesbian relationships if they wish (as Tasmania did in 2002), but these would not be recognised as actual ‘marriages’ in law. If the Family Court were to be able to hear disputes between such couples in the event of their separation, the States would need to refer their powers over same-sex unions. The point is that the reference power, like section 96, allows the list of Commonwealth powers to be expanded, without the Constitution’s actually saying what these new powers are, and without formal constitutional alteration (that is, without a referendum). Depending on your point of view, it is either a devious way of giving new powers to the Commonwealth without a referendum, or of allowing the Constitution to adapt to the needs of a modern nation.

How same-sex unions are protected under the Constitution There is another story to tell regarding Tasmania, same-sex couples and the extension of Commonwealth powers. Tasmania may have been the first Australian State to recognise gay unions in law, but it was also the last to decriminalise them. The story progresses in


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several steps. First, in 1924, two offences were added to the Tasmanian Criminal Code: ‘indecent practice between male persons’ and ‘carnal knowledge . . . against the order of nature’. These sat on the books, for decades. Second, in 1992, the Commonwealth, drawing on the external affairs power, ratified a section of the International Covenant on Civil and Political Rights that allows individuals to take complaints about human rights violations to the UN Human Rights Committee. Third, soon after, although the Tasmanian law had not be enforced for many years, Nicholas Toonen, a homosexual man living in Tasmania successfully sought a declaration from the Committee that the offences were violations of privacy. Fourth, drawing again on the external affairs power, the Commonwealth passed the Human Rights (Sexual Conduct) Act in 1994. Tasmania refused to budge. Fifth, Toonen and another gay activist, Rodney Croome, then brought a case before the High Court seeking a declaration of inconsistency between the Tasmanian law and the new Commonwealth law. Before proceeding (for reasons that need not worry us) the High Court had to rule on whether it could actually hear the case. It could. The next step would be a ruling on the law itself. As inconsistent state laws are invalid, the likelihood that the Court would find against the Tasmanian law was high. Sixth, with the writing on the wall, the Tasmanian Parliament repealed these relevant sections of the Criminal Code. Within five years, under a new government, it had legislated to allow the registration of same-sex marriages. The Commonwealth has no general power over criminal law. The UN Human Rights Committee cannot interfere in a country’s business, or take any independent action; it can only advise. Yet, the Commonwealth could force a change in Tasmania’s criminal law. It did so, via the words ‘external affairs’.

Chapter 4

The Constitution fails to say things that might be important Two hundred and two people, including eighty-eight Australians, died in Bali on 12 October 2002, when two nightclubs frequented by tourists were blown up by terrorist bombers. Five days later, the Prime Minster, the Deputy Prime Minister, and the Leader of the Opposition travelled together in the same RAAF plane to attend a service in Bali for the Australians who had died. At the very same time, the Governor-General, Peter Hollingworth, was en route to Egypt for an anniversary commemoration of the El Alamein battle of the Second World War. The Head of State (for want of a better term, at present), the head of government, deputy head of government, and the alternative leader of government, were all out of the country at the same time. What would have happened if all those on board the Prime Minister’s plane had been killed, either in an accident or an attack? What if, in the crisis that inevitably followed, the Governor-General was unable immediately to return to Australia? What if the Bali bombing had been part of a campaign against Australian targets and he had also perished? On this particular occasion, although the nation would have been in a state of shock, the ‘succession’ could have been settled reasonably quickly. As is authorised by the Constitution, the Governor-General’s ‘Letters-Patent’ of 1984 (see Chapter 1), make provision for a person to assume the executive administration of the Commonwealth when the Governor-General is absent, has died or become incapacitated. In such an event, the most senior – that is, the longest-serving – of the State Governors is entitled to act as ‘Administrator of the Commonwealth’. If the most senior Governor is unavailable, the next takes up the reins, and the next after that, in order of length of 72

Fails to say important things

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service. In 2003, while Peter Hollingworth was standing aside and after his resignation, Sir Guy Green, Governor of Tasmania, stood in for him. As Administrator, he assumed the normal functions of the Governor-General until Michael Jeffrey was sworn in as the twenty-fourth Governor-General. Sir Guy temporarily stopped being Governor, and the Greens (husband and wife) shared Government House with the Hollingworths for a while. It worked out reasonably smoothly. Something similar would have happened (without the house sharing) had tragedy struck the Governor-General during his absence overseas in October 2002. And a similar process would be followed now. Sir Guy retired in 2003, and Lieutenant-General John Sanderson of Western Australia became the longest-serving State Governor. Sanderson would pick up the reins were something to happen to Jeffrey.

What happened in Tasmania in the meanwhile? A small digression is needed here, before we consider other emergency scenarios. What was happening in Tasmania during Sir Guy’s time in Canberra? A Deputy Governor was performing his duties. There, as in the other States (except South Australia), the Chief Justice of the Supreme Court is, ex officio, Lieutenant-Governor (i.e. Deputy). The most senior of the State’s judges acts as head of the state executive. But what about the separation of powers? The goal of this doctrine, which was developed more than two centuries ago and is followed in many countries, is to prevent the monopoly or abuse of power. Power is required to be exercised by different branches of government. ‘Checks and balances’ operate, and the accumulation of power in a few hands is prevented. The ‘founding fathers’ of the United States were particularly impressed with the doctrine, and they built their Constitution around it. Isn’t it an important principle in Australian politics too? What about the rule that a man should not be a judge in his own cause? Shouldn’t the different branches of government be acting as checks and balances on each other? What, then, if a legal issue came before the Supreme Court of Tasmania concerning the conduct of the

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Tasmanian Government during the period when the Chief Justice was serving as Lieutenant Governor? He might of course excuse himself from hearing such a case (as a judge can do, when there is a conflict of interest), but this would be a temporary solution. It would not answer the constitutional question.

The separation of powers In the Commonwealth Constitution (although it does not say so) the separation of powers is important. The branches or ‘arms’ of government are separated: this is literally indicated by the Constitution’s lay-out, as well as by its words. The Constitution is separated into different chapters, the first three of which have titles ‘The Parliament’, ‘The Executive’, and ‘The Judicature’. Each begins with a statement about power and the different institutions in which it resides. The ‘legislative power’ is ‘vested in a Federal Parliament’; the executive power ‘is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative’; the ‘judicial power’ is ‘vested in a Federal Supreme Court, to be called the High Court of Australia’, and so on. Separation between the Parliament and Executive is not clear-cut. As we have seen, all Government Ministers (members of the Executive) are constitutionally required to be Members of Parliament. The Executive meets in Cabinet outside the Parliament, but its members are also within the Parliament. The two arms of government overlap, rather than stand apart. The famous ‘separation of powers’, therefore, is not absolute in Australia. However, it is sometimes forgotten that the purpose of the separation is to check as well as to ‘balance’ power. Requiring Ministers to be elected means that the actions of the executive government can be checked by another arm of government. They are ‘responsible’ or accountable to the Parliament, and thereby accountable to the public. In theory at least, they cannot abuse power without this being made known to the public, and without risking loss of office. For the principle of balance, Chapter III of the Constitution is particularly important. The ‘judicial power’ – the power to make binding decisions about the law as it stands – can only be exercised at the Commonwealth level by judges of federal courts. Members


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of the Executive (or administrative bodies, like tribunals) are constitutionally prohibited from exercising such power. It works in both directions. With some limited exceptions, federal court judges cannot perform non-judicial duties or exercise non-judicial powers, such as executive or administrative powers. Public confidence in the independence of the judiciary is also at stake, if judges are asked to do things that are really a matter for governments. The Constitution’s separation of judicial power also applies in certain ways to the State Supreme Courts. Is the arrangement with the Administrator of the Commonwealth, then, a breach of the separation of powers? It is an interesting conundrum, and one that is bound to attract more attention in the future.

What would happen if terrorists struck Australia? There are other conundrums. What if both the Governor-General and the Prime Minister died or became incapacitated at the same time? The Letters-Patent contemplate such an event. The Deputy Prime Minister or the next most senior Minister ‘who is in Australia and available to make such a request’ would request the senior State Governor to take over the administration of the Commonwealth. Unlike in the United States, where the President and Vice-President never fly together, when the official party went to Bali, the Prime Minister and his Deputy were on the same plane. The Treasurer, Peter Costello, remained in Australia, however, and had been nominated to act in the Prime Minister’s place. If the lives of all members of the Australian party had been lost, Costello would have requested the Governor of Tasmania to assume administration. The Liberal Party would have met immediately and chosen a new leader, and Sir Guy would have sworn him in as Prime Minister of Australia. The new Prime Minister would then have advised the Queen on a replacement for the Governor-General. It could all have happened quite quickly. The government of the Commonwealth would (at least constitutionally) have returned to normal. What, however, if the attack had occurred in Australia itself? It is not inconceivable. We should not forget that something of this

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kind really happened in Britain well before 11 September 2001 (but much more recently than Guy Fawkes’s Gunpowder Plot in 1605). On the night of 12 October 1984, the IRA exploded a bomb in the Grand Hotel, Brighton, where the British Conservative Party was meeting. Its intention was to kill Prime Minister Margaret Thatcher and all her Cabinet. In the event, they survived the blast, but five people were killed and many others were injured. If all members of Australia’s Government perished in such an attack, there would be no one left to advise the Governor-General. He would need to exercise his ‘reserve powers’ (as he did when Harold Holt died). That would be fine so long as the GovernorGeneral himself was still alive. But what if there was an attack on Parliament House during a ceremonial opening of the Parliament, when all the Ministers and the Governor-General were together in the same place at the same time? Or an attack on Government House during the swearing-in of a new Ministry by the Governor-General following a regular election? These are not impossible scenarios. They concern real and regular occasions when all the members of government, as well as the Governor-General, are together in the one building. The Letters-Patent say that the Administrator shall not assume office ‘except at the request’ of a Minister. Constitutionally, a Member of Parliament cannot become a Minister of State without being ‘appointed’ by the Governor-General (section 64), and no Member of Parliament can take his or her seat without taking an oath before the Governor-General, or someone he has authorised (section 42). In practice, the Ministers are chosen by the party that wins government, and the Governor-General is informed of who they are. His role is to swear in the Ministers, who then assume office. But they cannot assume office until they are sworn in. If the GovernorGeneral had died (and had not appointed a Deputy, as is currently the case), there would be no one to swear in a new Minister, and no Minister, therefore, to request the Administrator of the Commonwealth to step in to fill the Governor-General’s shoes. In such an event, we cannot be certain what would happen. Perhaps the Chief Justice of the High Court (who normally swears in the Governor-General) would swear in a new Ministry. But


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how would he choose them? Perhaps the most senior Governor would assume administration of the Commonwealth without waiting for a request. He or she could then choose a Prime Minister from any remaining Members of Parliament, or perhaps first advise the Queen on a replacement for the Governor-General. But would the Queen herself break convention and appoint a new GovernorGeneral without the advice of the Prime Minister? If she did, she would be exercising the power that section 2 of the Constitution appears to give her. But that section, we know, doesn’t mean what it says. Either way, the new Governor-General would then choose a new Prime Minister who would advise him on what to do next. In the event that there were no Members of Parliament available from among whom to choose a Prime Minister, or an insufficient number to form a quorum of the Parliament (see section 39), he could set in train a full election of the House of Representatives (section 33). The new senators could either be elected in the same election, or replaced by nominees of the State Parliaments (section 15). In such a scenario, the Constitution would ‘work’ but only because certain powers and procedures that are required by other documents were ignored, or because the usual practice of ignoring what the Constitution says was not followed. The other point is that the non-constitutional documents which frame the GovernorGeneral’s office – the Letters-Patent, the Commission, the GovernorGeneral Act, and also the Federal Executive Handbook – are only constitutional documents in a very broad sense, but they are not part of the Constitution itself. They are not set in stone; they can readily be altered by the Government (or by the Queen, on the advice of the Government) or by the Parliament, without a referendum. The Constitution, however, can only be altered (see Chapter 5 of this book) by popular approval at a referendum. It is a much more permanent, or at least stable, record of where the power lies, of who gets to exercise it, and of what the limits on this power are to be. Although we can find some answers to questions about handling national emergencies in a range of documents (if we know where to look), we have no certain source in the Constitution. This may be important.

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Just what do we mean by ‘defence’? These extreme events are, thankfully, unlikely to happen. However, it has been said by governments, and on more than one occasion, that a terrorist attack of some sort in Australia is now likely. As in most other countries, measures are being taken in the hope of preventing it. The Commonwealth intelligence-gathering organisation ASIO has had its powers extended for the next five years, allowing suspects and those who may have information about potential terrorist acts, to be questioned under conditions that would previously not have been permitted. Briefly, a person may now be held in detention for questioning by officers of ASIO without arrest or charge, for up to seven days. Questioning may continue (with appropriate breaks) for eight hours at a time. The detainee has no right to silence, and no right to notify another person (not even family members) that he or she is being held. The right to a lawyer is limited. A warrant from the Attorney-General is, however, required, and such a warrant must have been granted by an ‘issuing authority’ who is a judge or a magistrate. These new powers are much less draconian than the Government originally intended, because the Senate forced it to amend its proposals in exchange for passing the bill (see Chapter 5). Even as they are, the powers are still highly controversial. For some people they amount to an alarming erosion of Australia’s civil liberties. For others they are a necessary and reasonable response to a real national threat. Getting the balance right between liberty and security is a fundamental challenge in any democracy, and the difficulty increases as the threat does. Our concern here is not with this controversy, but with the constitutional question: where does the power come from? As there is no clear provision in the Constitution to deal with terrorism or emergencies, and criminal law is largely a matter for the States, how does the Commonwealth manage to pass such laws in the first place? The answer is complex. The defence power, as we have seen, is normally limited to defence preparation in Australia and to the external defence of Australia’s territory. It can be employed to make Australian laws beyond the Commonwealth’s regular powers, but only where there


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is an immediate and substantial threat to national security. In times of declared war, the threat is unequivocal and the power is therefore very broad. But even then (like all section 51 powers) the defence power remains ‘subject to’ the Constitution. The Commonwealth cannot do something that the Constitution prohibits. The normal limits on power apply.

Love triumphs (with some help from the Constitution) During the Second World War, for example, there was a regulation requiring civilians to apply for a permit if they wanted to travel by train, and in their application they had to state the purpose of their trip. A young woman in Sydney, Dulcie Johnson, wanted to visit her fianc´e who was on shore-leave from the Navy in Perth. Her application was rejected, but she was so determined to see him that she set off across Australia none the less. She got as far as Kalgoorlie where she was arrested and brought before a magistrate, charged with the offence of travelling without permission. Much to the Government’s dismay (and probably astonishment), the regulation was found to have infringed a constitutional right, and the High Court upheld the magistrate’s decision. Section 92 states that intercourse (meaning movement) among the States must be ‘absolutely free’. Dulcie Johnson had crossed several State borders. She was free to do so. As Justice Starke of the High Court said: ‘It is immaterial’ that the purpose of the regulation was ‘for the public safety or defence of the Commonwealth if it [infringed] the right guaranteed and protected by the provisions of section 92’. Even in wartime, the Commonwealth could not assume powers that the Constitution prohibits. Australia is currently engaged in a ‘war on terror’ but it is not at war. The defence power can be drawn upon in time of peace, to maintain Australia’s defence forces, but if it is to permit the regulation of ordinary life in Australia, the immediate and substantial threat to national security must be established very clearly, and the bar is set very high. Even then, the constitutional limits on Commonwealth power apply. There are, however, other possible sources of constitutional power for dealing with terrorism. As we have seen, the

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Commonwealth can make laws with respect to ‘external affairs’, and this extends to anything geographically external to Australia, including international conventions or treaties. International agreements have no force of their own accord in Australia, even when they are signed and ratified by the executive government. But their terms can be incorporated into Australian law by Acts of Parliament and once this is done, they can give the Commonwealth the power to regulate all sorts of things otherwise denied to it. For example, the United Nations Convention for the Suppression of Unlawful Seizure of Aircraft was ratified by Australia and incorporated into the Crime (Aviation) Act. The Convention on the Suppression of Terrorist Bombings was signed by the Australian Government following the events of 11 September 2001, and incorporated into the Extradition Act. The potential for further application of conventions is wide, so long as the Commonwealth does not use them purely to increase its own powers. The ‘reference power’ (discussed in Chapter 2 of this book) has also come to the Commonwealth’s aid, with the States referring their powers to prosecute terrorists to the Commonwealth Parliament. The executive power (section 61) also authorises certain laws for the security of the Commonwealth. Are the new ASIO powers constitutionally sound? How much further can they go? Until the matter is tested, we cannot be entirely sure. And this failure of the Constitution to say something that would provide certainty may also be important.

Dealing with emergencies There are, of course, a multitude of things that the Constitution does not say. If a disaster were so catastrophic that all the normal offices and institutions were disabled or destroyed, then responses would have to be improvised. We cannot know in advance what these would be, and nor can we provide constitutional arrangements for all the fanciful scenarios we might come up with. The Constitution does not tell us what should happen if Australia were invaded by aliens from outer space. We know only that if constitutional procedures were followed, like most emergencies, it would be handled by the individual State Governments.


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The Commonwealth has no general emergency powers. It has a power over defence and, under the Defence Act, military personnel may be employed in a limited way in civilian contexts. Powers to deal nationally with an emergency, and a clear indication of who may employ those powers, might well be another of those things that the Constitution fails to say that could prove important. If, in an emergency, the normal source of advice through Ministers of government was disabled, the Governor-General might need to act by literally taking the Constitution to mean what it says about his powers. In such an event, he would be exercising his so-called ‘reserve powers’. These are powers to act without or contrary to government advice. Of their very nature they are uncertain. Some people remain unconvinced that they actually exist – that is, they do not believe that there are any occasions on which the Governor-General can legitimately act without or contrary to government advice (as in Britain, where the Queen cannot take any independent executive action at all). Others believe that the reserve powers are a reality, or at least a necessity, although there is a good deal of room for disagreement about their actual character. What gives the Governor-General the power to take ‘reserve’ action, if indeed he has this power? Principally, it is the statement in the Constitution that the executive power of the Commonwealth is exercisable by the Governor-General ‘as the Queen’s representative’ (but the Queen herself has no reserve powers). Sections of the Constitution, as we have seen, appear to give the GovernorGeneral power to appoint and dismiss Ministers and the power to call elections when he wants. These powers are not required to be exercised ‘in Council’ (that is, on ministerial advice). However, they are (almost) always exercised as if they were. The Constitution is normally taken not to mean what it says. But, when the reserve powers come into play, it is taken to mean it.

The reserve powers What sorts of occasion might this be? Other than unforeseen tragedies, like the disappearance of Prime Minister Holt, it is thought (by many) that the reserve powers could only be

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appropriately deployed when a government was acting unconstitutionally, and persisted in doing so. The Governor-General might dismiss a Prime Minister if, for example, the latter decided that he enjoyed his job so much that he didn’t fancy holding an election in the foreseeable future, even though three years had passed since the last one. This would be contrary to section 28: ‘Every House of Representatives shall continue for three years from the first meeting of the House, and no longer.’ Or the Prime Minister was clinging to office despite losing the support of the majority of the members of the House of Representatives. Or the government was spending money that it had not legally ‘appropriated’, contrary to section 83: ‘No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.’ Action might be needed on these occasions. They would represent major, and dangerous breaches of the democratic principles underlying Australian government. But, who would decide whether the Government’s action was unconstitutional? Speaking on the centenary of the High Court in October 2003, the Governor-General, Michael Jeffrey, expressed the view that ‘the Prime Minister can have his commission withdrawn by the Governor-General if he loses the confidence of the Parliament or is in material breach of the Constitution’. From where this view arose is uncertain, but, if it is accurate, it raises as many questions as it solves. How would we know if the Prime Minister’s actions were ‘in material breach of the Constitution’? Questions of constitutionality are normally a matter for the High Court. Could the Court deliberate and then advise the GovernorGeneral? This would be tricky. It might take some time, and it is far from certain that the High Court could do it anyway. Could the Governor-General make the decision himself? After all, if the reserve powers exist, their very point is to allow the GovernorGeneral to make decisions without advice. But how would he know when the time was right to act? Most Governors-General have not been constitutional experts, and they are certainly not required to be constitutional experts. And even if an individual Governor-General were – as Sir Ninian Stephen and Sir William Deane (both former Judges of the High Court) were – constitutional decisions are


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normally treated as too important to be made by one person; they are never made by a single Judge of the High Court. Furthermore, a breach of the Constitution may be a breach of something that the Constitution means but doesn’t actually say. The Constitution doesn’t say, as we know, that the Prime Minister is required to have the ‘confidence’ of the House of Representatives (although it is taken to mean this, and Jeffrey’s statement about grounds for dismissal assumed it). Should the GovernorGeneral make a decision about the constitutionality of a government’s actions based on his understanding of conventions, or should this be confined to breaches of something the Constitution actually says, such as in section 83? But in the case of a convention, how can the Governor-General be certain that departure from it is a breach of the Constitution? It would certainly be a major breach for a Prime Minister to attempt to govern without the support of the majority of the House of Representatives (and he probably couldn’t get very far anyway, since he would be unable to get legislation supporting appropriation of money from the Treasury through Parliament. If he tried to appropriate money without legislation, he would be in clear breach of section 83.) But, what if the government did something that seemed a bit dubious from a constitutional point of view, without being clearly or obviously ‘unconstitutional’? What if the Prime Minister decided that he, rather than the Governor-General, would open sessions of Parliament? What if he moved into Government House in Canberra, and, in addition, refused to make provisions for the Governor-General to live somewhere else? Would these actions be serious enough for the reserve powers to be employed? Probably not, at least in the eyes of most people. But what if the Governor-General himself considered them to be fundamental breaches of constitutional conventions (equivalent to attempting to govern without majority support of the House of Representatives), and was so outraged that he moved to dismiss the Prime Minister? There is nothing in the Constitution to say whether he would be right or wrong. These issues are not easily settled. The official committee appointed by Prime Minister Paul Keating to look into the republic question in 1994 – the Republic Advisory Committee – spent a

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lot of time trying to work out whether the reserve powers existed, and if so what they were and when they should be deployed. It concluded that they did exist, but that the circumstances could not be defined conclusively. These powers should be left just as they are, ‘uncodified’ – that is to say, unwritten. The Committee acknowledged that this left things uncertain, but it felt that the current situation ran fewer risks than the attempt to set down in precise words what these uncertain powers are. The point is, again, that the Constitution itself does not say anything about these powers. This might be important.

Does Australia have a Head of State? It is difficult to talk about the Governor-General without, again and again, coming up against a problem. It’s all very well to point to his powers, but what exactly is he? The Constitution says in section 2 that he is ‘Her Majesty’s representative in the Commonwealth’. It states in section 61 that the executive power of the Commonwealth is ‘vested in’ the Queen, but is exercisable by the Governor-General. It sets out various things that he is empowered to do. But nowhere in the Constitution is his ‘office’ actually named. This mattered less in the past, when imperial relations and practices were still intact, than it does now. The Governor-General represented the Monarch, and ‘Monarch’ was the name of the person who occupied an office whose character and limits were well enough understood. But the expression ‘Her Majesty’s representative’ is not very helpful as a description these days, for all the reasons we have seen. What is he now? Is he Australia’s Head of State? This question was repeatedly asked – and answers were tossed back and forth like tennis balls – during the republican debate in the 1990s. The republican argument went like this: in a republic, all power comes from the bottom up. There is ‘government of the people, by the people, and for the people’ (as Abraham Lincoln said). In a monarchy, powers reside in a single person, and come from the top down. Australia has a Head of State who occupies the office not by democratic choice, but by inheritance. All the references to the Queen in the Constitution confirm this. The monarchist argument went like this: the Queen is not Australia’s Head of State – the Governor-General is. The Queen has


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no constitutional powers, either in England or Australia. Australia is completely independent, and in no way subordinate or subject to British authority. It is a ‘disguised republic’ (as Walter Bagehot said). Power already comes from the people, from the bottom up. All the powers that the Constitution appears to confer upon the Queen are now either spent, or are exercised by the Governor-General. The republicans replied: if the Governor-General really is Australia’s Head of State, let’s change the Constitution so it says this. The monarchists responded: since the Governor-General really is the Head of State, nothing needs to change. The irony in this debate did not go unnoticed – republicans fiercely asserting that the Queen was important; and monarchists equally fierce in declaring that she was not. The Constitution does not throw any direct light on this matter. It says that the Commonwealth is ‘under the Crown’ and describes the Queen as having a range of powers (powers she does not actually exercise, and did not, in fact, exercise even in 1901). It says that the Governor-General is her representative. It says that the executive power of the Commonwealth is ‘vested in the Queen’. But it does not employ the words ‘Head of State’ anywhere, in any of its sections. This doesn’t necessarily settle things, however, because a good deal of what the Constitution says is unwritten. The words ‘Prime Minister’ cannot be found in it either. That doesn’t stop Australia having a Prime Minister. ‘Head of State’ is the generic name given to the national office that sits at the top of government in many countries. On the face of things, the conclusion might seem unambiguous. If there is an Australian Head of State, the Queen must be it. She is described in the Constitution as ‘vested’ with Australia’s executive power. Furthermore, since 1953 she has had the title ‘Queen of Australia’. Her relationship with Australia, as Queen, is intended to be similar to her relationship with Britain. On the other hand, even as Queen of Australia, Elizabeth II does not ‘embody’ or exercise any executive powers in Australia, other than to ‘sign off’ the Prime Minister’s recommendation for an appointment for Governor-General. On the third hand, however, if she happened to be in Australia at a time when executive business (like assenting to parliamentary bills) was being done, or when the Parliament were to be opened, she would be entitled to

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do it. But, on the fourth hand, although she has done it, even in the quite recent past, she is unlikely to be asked these days. Her visit would probably be timed with a lull in parliamentary or executive business.

Who should have opened the Olympic Games? A little test of who was Head of State occurred in 2000, when the Sydney Olympics Games were soon to begin. Who was to open them? The Charter of the International Olympics Committee says that the Games ‘shall be proclaimed open by the Head of State of the host country’. When the Olympics were held in Melbourne in 1956, the Duke of Edinburgh did this, but on his wife’s behalf. Why wouldn’t she (or a member of the royal family) do it again? There was a dilemma. If Elizabeth II was Head of State in 1956, was she still the Head of State in 2000? And if she wasn’t, when did she cease to be? If the Governor-General was invited to do it instead, would he do it as her representative, or as Head of State in his own right? Whomever was chosen, it appeared that the decision might give us the verdict. The matter was very delicate in the climate just after the republic referendum of November 1999. The Prime Minister, John Howard, offered to step in and perform the ceremony himself. But – this much at least is constitutionally certain – the Prime Minister is not Australia’s Head of State. He (or she) is the leader of the party with majority support in the House of Representatives. The Prime Minister is the head of government, and does not represent or ‘embody’ the nation as a whole. Howard’s offer did not receive public endorsement. The popular preference was Sir William Deane, twenty-second Governor-General, and in the event it was he who opened the Games. Did this make him Head of State, or was he only representing the Head of State? According to some, he was both. Australia has two Heads of State, says former secretary to the Governor-General, Sir David Smith – both a ‘symbolic’ Head in the Queen, and a ‘constitutional’ Head in the Governor-General. Perhaps we do; or perhaps we have none. The absence of anything in the Constitution that could clear this up, once and for all, might be important.


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A final word about the Governor-General’s powers In addition to his constitutional powers, and his reserve powers, the Governor-General is the bearer of certain so-called ‘prerogative powers’. These ancient powers were once the inherent powers of the King or Queen: exercisable by ‘prerogative’, unable to be challenged or questioned in law. The executive government has inherited most of these powers, with the Governor-General holding what remains of the Monarch’s own prerogative. Mostly these concern harmless little functions, like conferring honours and making awards. They are done on the basis of advice (although the Queen has her own personal honours to distribute, as well as some other personal ‘prerogatives’ to enjoy, like the ancient right to eat swan!). But others are more serious: acts of clemency and the conferral of pardons, are among the prerogatives that are far from insignificant. Some of the old prerogatives, such as declaring war and peace, entering contracts, and signing treaties, have been taken over by the executive (although the Constitution doesn’t actually say this). We don’t clearly know which are now executive powers, and which are still in the Vice-Regal prerogative. If the reserve powers were ever codified, the prerogative powers might need to join them.

Can a head of church be Head of State? If we do not know exactly what the Governor-General is, or what his powers ‘really’ are, and we do not know on what occasions he should exercise them; if we do not know what sort of qualifications a person should hold to be appointed as Governor-General and what sort of conduct constitutes grounds for removal, then we cannot be certain of the answer to another major question that arose from former Governor-General Peter Hollingworth’s appointment in June 2001. Hollingworth was a church leader. This, in one obvious sense, was the problem. He had been in a position of authority over clergymen in an era when it was more or less accepted that sexual misconduct among clergy would be hushed up or covered over. He became Governor-General at a time when such misconduct, and the manner in which church leaders had handled it in the past,

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were very much a matter of public scrutiny and outrage. This shift in social expectations and standards set the scene, in a sense, for the public controversy that was to dog Hollingworth’s office from the start. But there was a another question – a constitutional one. Should a church leader have been appointed Governor-General in the first place? The Constitution says nothing about the qualifications of an appointee, and perhaps it does not need to. But it does say something that raised questions about this particular appointment. Section 116 of the Constitution says: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. This section was included in the Constitution to reflect, at a national level, the official policy of secularism that had been adopted in the Australian colonies before federation. Its intention was that (unlike in the UK) there should be a clear separation between church and state in Australia. Having agreed to include a reference to God in the Preamble (‘humbly relying on the blessing of Almighty God’), the framers of the Constitution wanted to avoid the conclusion that Australia had an official religion. They were concerned about the rise of sectarianism in some of the colonies and hoped to avoid its spread in the new Commonwealth. Was it, therefore, ‘unconstitutional’ to appoint a church leader as Governor-General? Not in any direct sense. It did not breach a provision in the Constitution, nor even one of the unwritten conventions that are taken to be a part of the Constitution (like the convention that the Prime Minister is the leader who has the majority support of the House of Representatives). But did it breach the ‘spirit’ of the Constitution? Did it weaken or erode the section’s intention of keeping church and state separate in Australia? There is a further question. Whom does the Governor-General represent? In the first three decades of the Commonwealth’s life, it was the British authorities; then the Monarch. Slowly, and without


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formal constitutional change, and although he is in practice appointed by the Prime Minister, the Governor-General has come to represent – if anything – the nation, or even the Australian people. The nineteenth Governor-General, Sir Zelman Cowen, said that his role was ‘to help interpret the nation to itself’. This is a big ask. It is impossible for one person to ‘represent’ (in the sense of embody) all the characteristics of Australia’s diverse population. Does a white Governor-General (as they have all been) represent Aboriginal Australians? Does a male Governor-General (as they have all been) represent Australian women? Does an elderly Governor-General represent young Australians? And so on. But every person is either male or female, indigenous or nonindigenous, young or old. As the Governor-General is not chosen to ‘represent’ any particular group, it may not matter what his physical characteristics are. But a head of a church does have a constituency. He also has a formal authority that comes with this office. As a church leader he ‘represents’ the members of his religion, while a man does not ‘represent’ all members of his sex simply by being a man. Hollingworth was an Anglican archbishop. Only twentytwo per cent of those Australians who profess to follow a religion identify as Anglicans. Could he represent all religious Australians, let alone all other Australians, as he is expected to do these days? Would it have been more obviously ‘unconstitutional’ if a Catholic Archbishop or a Jewish Rabbi, or even more so, a Mufti of the Muslim faith, had been appointed as Governor-General? We don’t know the answers. We don’t know if the principle that church and state should be separate – that is to say, that government and the law should be secular, and religious authority should not be the basis of constitutional authority – extends to an implied prohibition on (unelected) church leaders exercising official power. Since the Governor-General holds reserve powers and these are potentially unconstrained, this silence might be important. There is a further significance. The Constitution rests upon the sovereignty of the people and (at least to an extent) the rule of law. If the people are sovereign – that is, if their consent is the ultimate authority for government – and a core part of the principle of democratic sovereignty is that power must not be derived from another source, it may be inappropriate for a church leader

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(who represents divine power) to hold a position of constitutional power. This might only be of symbolic importance. But symbolism can be extremely powerful in a nation’s life.

What are our constitutional rights? A Constitution cannot say everything. Even if it could, this would probably not be desirable. Many things we might want it to say today would quickly go out of date. Some things, however, are sufficiently important to need saying in a form that is clear, stable and relatively permanent. The examples above are cases where the Constitution fails to say certain things that might prove important. There are also many examples of things that people who are not familiar with the Constitution might believe it does say, but upon which it is ‘silent’. There is no bill of rights. There is no statement about Australian citizenship, nor anything about what it means to be a citizen. Although there is a requirement that the Parliament be chosen by regular, direct election there is no constitutional ‘right’ for citizens to vote. (Don’t be fooled by section 41. It appears to be some sort of guarantee, but the High Court has said that it only applied to those who had the vote before 1901.) There is an implied freedom of political communication, but no broad right to free speech. All the other rights we might know of in the United States Constitution – due process, the right to silence, equality before the law, the right to bear arms – are absent. There are historical explanations, but the absence of a bill of rights still provokes much debate, and has been the subject of many official inquiries. It is an on-going source of comment in the media in recent times. Some Australians are ardent proponents of such a bill. The Australian Capital Territory even adopted one which came into force in 2004. Opponents are equally committed to resisting such developments. The literature is voluminous. This book is not concerned with the merits of the debate. It notes simply that the Constitution fails to say much about individual rights, and for many people this silence is important. The Constitution is not completely devoid of ‘rights’, however. Section 117 prohibits discrimination on the grounds of residence


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by one State against residents of another State (the expression it employs – ‘subject of the Queen’ – is now out-of-date). Section 51 (xxxi) – the ‘star’ of The Castle – allows the Commonwealth to acquire property, but requires it to pay ‘just terms’ when it does. ‘Property’ includes all sorts of things – leases and contracts, for example – in addition to simple ‘real’ property. Certain Commonwealth crimes must be tried before a jury (section 80). Religious worship, as well as the right not to worship, are protected against Commonwealth interference. Trade and commerce among the States must be ‘free’, and freedom of interstate movement, or ‘intercourse’, is protected. A few other freedoms and rights arise by implication. The freedom of political communication, as we have seen, is one. People are also protected from being imprisoned without the decision of a court (because the judicial power of the Commonwealth can only be exercised by courts). In other words, the Government or its officers cannot themselves order detention as a form of punishment, nor can they keep people in detention without judicial authorisation. (What, then, about the asylum-seekers held in Detention Centres around the country? Their detention is not regarded as punitive – they are not being punished by imprisonment. As noncitizens (or ‘aliens’), they are held for processing purposes, and this is constitutionally authorised by the ‘immigration’ and ‘aliens’ powers of sections 51 (xix) and 51 (xxvii).) At the moment, everyone – citizens and non-citizens – can benefit from most, although probably not all, of the rights and freedoms found in the Constitution. If ever Australians adopt a bill of rights in their Constitution, they should decide whether they want all the rights to extend to everyone in Australia, or only to legal citizens. Modern bills of rights around the world tend to make this clear. That too may be one of the important things for the Constitution to say that is currently left unsaid.

Chapter 5

The Constitution says certain things that contradict each other The Constitution is not a bible. Nor is it a work of art. It was written over a hundred years ago by mortal men who had competing ideas and values, who were under pressure from different sectors of the community, and who knew that time and life were short. Certain disputes could go on forever without resolution. If there were no compromises, federation would never happen. And if they aimed at nothing less than perfection, the Constitution would never be written. As it was, it took ten years (on and off) to finish the process. The final version was completed in Melbourne, in February 1898. Anyone who has been in Melbourne in that month would know what it can be like, and this particular February was worse than usual. Record temperatures day after day, hot northerly winds blowing through the city, and the smell of smoke from bushfires invading the Parliament House chamber where the framers were working. There was, of course, no air conditioning (and no one wore shorts and sandals!). Tempers got literally hotter and hotter. It was remarkable that they got their work done at all, and astonishing that they managed it with as much good sense and care as they did. Once it was finished, as the Hansard of the debates of the 1898 Federal Convention records, there was a sense of great relief and exhilaration. For all these reasons, although the Constitution has worked well (often, however, because in practice it is ignored) it was not a flawless document, even at the start. It contains certain inconsistencies and some sections that are not as well drafted or polished as they might have been (although nothing anywhere near as convoluted as 92

Says contradictory things

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section 15, added in 1977, following the successful referendum of that year). Such flaws are inevitable in any human work. The ‘contradictions’ are, however, a different matter. These arise because Australia’s Constitution was built around two principles that were actually known to be contradictory. They were not, at the time, thought compatible. To ‘marry’ them was considered by some to be impossible, and to do so was regarded by most as a daring experiment. These principles were ‘responsible government’ and federalism. Under the first (the British form of government) the popular, or lower House of Parliament is meant to be ‘sovereign’ – that is to say, to have the ultimate power in making laws. Government was formed in the lower house, and in theory at least, no other body (no other chamber of Parliament or tribunal, or court) could override Acts that had been passed by the House of Commons. There was no written constitution, and therefore no ‘judicial review’ of legislation.

A unique union Under federalism (the United States’ form of government), the Houses of Parliament were equal; one house represented the people of the nation, and the other represented the States. There was a written Constitution. Acts of Parliament were subject to a superior authority – the Constitution – as interpreted by the courts. For the first time in history, the Australian Constitution joined these principles together, uniting responsible government and federalism (for better or worse, for richer or poorer). The Government was to be formed in the House of Representatives, representing the Australian people. Government Ministers were required to be elected as ordinary Members of Parliament, and therefore to be responsible, or accountable to Parliament, and ultimately to the people. There was also to be a Senate equally representing the States. Although Ministers may be senators, the Government is not formed in the Senate (and the unwritten convention is that the Prime Minister is never a senator). The Senate cannot be more than half

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the size of the House of Representatives (section 24), and it has no constitutional role in the formation of government. Despite this, it may still prevent the Government from getting its proposed legislation passed. It may even prevent the Government from governing. With one exception, the Constitution gives the Senate ‘equal power with the House of Representatives in respect of all proposed laws’ (section 53). All proposed legislation, thus, has to be passed by both Houses of Parliament before it becomes law. The exception is that money bills cannot be introduced into, or amended by, the Senate. Still, money bills have to be passed by both Houses in order to become law. The Senate is not required to pass them, and it can even reject them. Control of revenue is critical to be able to govern, but the House of Representatives can only control its expenditure up to a point. The principle of responsible government means that governments are formed in the majority house and that they alone decide how to govern; the principle of federalism means that the States are equal partners in government. These principles contradict each other. This ‘contradiction’ is embedded in the heart of Australia’s Constitution. The marriage of responsible government and federalism has always created tensions, but for the most part it has worked relatively well, as a matter of balance rather than discord. The prediction made in 1891 by one of the delegates to the first Federal Convention that federalism would either ‘kill’ responsible government or be killed by it, has not been borne out in practice. But there have been problems. Discord occurred in a major way in 1975, when the Opposition-controlled Senate refused to grant ‘supply’ to the Whitlam Government (see Chapter 4). More recently, governments have become concerned about the frequency with which the Senate’s powers have been used to block ordinary bills coming through the House of Representatives.

Should the Senate be tamed? The framers of the Constitution recognised that co-equal powers for both Houses of Parliament created the potential for a ‘deadlock’. If the Government introduces a bill, it will pass in the House of


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Representatives, because the Government always has the numbers in that House. But the Senate might repeatedly reject it, or amend it in ways that the Government does not accept. Government would become impossible if this happened frequently. A mechanism to break such a deadlock was therefore devised by those who framed the Constitution. If, after two attempts to get its legislation passed by the Senate (with a certain period of time between the attempts), the Government is still thwarted, then the Governor-General can ‘dissolve’ both Houses, that is, call a full election in which all the House of Representatives seats and all the Senate places are up for grabs. The election will, one way or another, break the deadlock. Section 57 sets out the procedure to be followed: if the Government is returned following the election and the Senate still refuses to pass the deadlocked bill (or bills), a joint sitting of both Houses may take place to vote on the bill(s). If the Government has the numbers – as it is likely to have, when both houses are combined – it will get its bills through, and these will become Acts of Parliament and therefore, law. If the re-elected Government has lost interest in the bills, it is under no obligation to do this. If the Government is not returned, the new Government will probably have no interest in introducing bills proposed by the old one. By 2003, the Howard Government had got sick of the Senate’s blocking of its legislation, and (as others have done before it) it raised the idea of altering this section. In a paper produced to facilitate discussion, it said that the Senate’s powers effectively represented a ‘permanent veto on the legislative agenda of the Government of the day’. Section 57 was not workable, and constitutional reform was ‘needed to rebalance the relationship’ between the two Houses of Parliament. Two options were canvassed: one, allowing for a joint sitting without a special election (or any election at all), where a bill had been blocked by the Senate twice during the ordinary life of Parliament; the second allowing for a joint sitting after an ordinary election. Both would dispense with the need for a double dissolution election. A solution like this, the Discussion Paper concluded, would ‘more faithfully reflect . . . the will of the people and the intentions of those who drafted the Constitution’.

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What did the framers intend? This is an interesting statement. What were the intentions of the Constitution’s framers? Some of them – in particular, the majority of the framers from New South Wales and Victoria – wanted a much weaker Senate than they got. They would have considered Howard’s proposal not to go far enough. Many were doubtful about having equal numbers of senators for each State, because they thought it undemocratic for small populations to get the same representation as large. Others, however, in particular from the smaller colonies, wanted the Senate to be stronger than it ended up being. They thought that it should be able to initiate and amend money bills, just like ordinary legislation, without any limitations. The double dissolution ‘solution’ to deadlocks, as we find it now in the Constitution, was hammered out by the delegates after one of the longest and most exhausting sessions in the whole Federal Convention. All sorts of alternative mechanisms were suggested, including a popular referendum with a direct vote on the deadlocked legislation which would, it was thought, sound out ‘the will of the people’. But the double dissolution was chosen, because it would serve both as a ‘test’ of the matter, and as an opportunity to affirm the Government’s program, even ‘punish’ a recalcitrant Senate. Some of the framers reluctantly accepted the solution because they knew that, unless there was compromise, the Convention would be defeated and federation abandoned. In fact, section 57 as it now stands is not exactly the same as it was when the Convention concluded its work. In 1898, the first referendum on the ‘Constitution Bill’ (as it was called before it became law) took place in four colonies. Had it been successful, federation could have gone ahead at that point, but in the event it was defeated in New South Wales. This was a serious set-back. In January 1899, the Premiers of the colonies met, to try to find a way of moving forward. At the instigation of the NSW Premier, George Reid, and in order to make it more appealing to the voters of his State, they agreed to several alterations to the Constitution Bill. Once these were put through their Parliaments, they agreed to hold a second referendum.


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One of the alterations was to section 57. In the original version, a bill could be passed in a joint sitting only by three-fifths of the members voting. At Reid’s insistence, this was changed to ‘an absolute majority’, that is to say, more than fifty per cent of the total number of members, regardless of how many were actually present in the chamber. This increased the likelihood that the House of Representatives would win the vote, and gave greater weight to the principle of responsible government. However, it was not the original ‘intention’ of the framers. The point is, there was no single intention. Some framers favoured responsible government more than federalism. Some favoured federalism. Only one person – and then only in 1891, at the very first Convention – seriously proposed a non-federal form of government, that is, a single or ‘unitary’ government, as was found at the time in Britain. All of the rest (there were eighty-three in all) believed that a federation was the only acceptable form of government for the colonies, and a federal nation (as in the United States) would be Australia’s destiny. A federal system required representation of the States in the Parliament. Given the strong commitment to individual colonial autonomy, it would have been simply impossible to have had anything other than equal state representation in Australia. The compromise which gave the Senate almost equal powers with the House of Representatives, but limited its powers a little with respect to money bills, was wrung out of the Convention with as much blood, sweat and tears as could possibly have been expended. If governments cannot always get their legislation through Parliament because of the Senate’s veto, this is the result of Australia’s design as a federation with a parliamentary government. It is a type of power-sharing arrangement.

Shifting the balance of power The proposed alterations as set out in the Discussion Paper would have changed this. The first proposal would give the House of Representatives the power to pass legislation without Senate approval at all, and with only a relatively small delay (three months) after a Senate rejection. It would effectively mean that the Senate

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no longer had a ‘veto’ power. If a government used the joint sitting provision whenever the Senate either rejected a bill or delayed passing it for any significant time, it would make the Senate’s powers purely advisory. Currently, when the Senate considers a bill to be contentious, it often sends it to a Senate committee for consideration (and, among other things, the committee may receive public submissions on the bill). Under the first proposal in particular, a Senate committee’s recommendations might be ignored. To send a bill to a committee might even be treated as a failure to pass it, and might be grounds for a joint sitting. The Senate’s powers would become much more like those of the House of Lords in England, which these days can only delay passing a bill, and which has no real power to stop its becoming law. The second proposal would have a similar effect, but with a greater delay, and without the certainty that the Government would still be in power after the election. Is it ‘the will of the people’ (as the paper puts it) that the Senate’s current powers should be weaker? The fact is the Senate blocks Government bills because the majority of senators (these days) are members of non-government parties. The senators are elected by the Australian people, and they tend to have different ideas about legislation than the Government. Elections tend to produce different results for the different Houses of Parliament. It is rare nowadays for the party that wins a majority of seats in the House of Representatives, also to win the majority of places in the Senate. This may be because people deliberately distinguish between the houses in the way they vote. It may be because of the different voting systems.

The non-constitutional side of the story Members of the House of Representatives are elected as single members, one per electorate. For a candidate to be successful, he or she must obtain more than fifty per cent of the vote in that electorate. The Senate, in contrast, is elected from a multi-member electorate: each State is the electorate for twelve senators (although normally only six are chosen at a time, except in a double dissolution election). For both House and Senate elections, second, third (and so on) preferences indicated by voters on the ballot paper are counted


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if there is no candidate with enough votes to be elected outright at the start. For a candidate to get elected to the Senate, he or she must achieve a ‘quota’ – roughly, one-sixth (or, for a double dissolution election, one-twelfth) of one hundred per cent (i.e., of the total vote). A party that gets two ‘quotas’ gets two senators, and so on. The idea behind this system of ‘proportional representation’ is that the number of seats a party or independent candidates get in the Senate is in proportion to their level of support in the population. The quota is much smaller than the fifty per cent-plus that is needed by a candidate to win a place in the House of Representatives. The result, therefore, is that the major parties always dominate the House of Representatives, whereas the minor parties or independents get into the Senate relatively easily. These senators, then, often hold the ‘balance of power’. That is, they can join forces with either the Government or the opposition senators, and – despite their small numbers – they can ensure that a bill is either passed or defeated. They can extract concessions out of the Government in return for a promise of support. It is this outcome that the Howard Government has found particularly irksome. None of this, however, is set in stone. Electoral systems are a matter of Commonwealth legislation, not a constitutional requirement. Proportional representation (with distribution of preferences) was only adopted for Senate elections in 1949, and it could be dropped, or changed by amendment to the legislation. A return to a simple ‘first-past-the-post’ system could replace it, and this would almost certainly eliminate many of the minor senators, and have the likely effect of increasing the strength of government. Or the ‘quota’ could be set by legislation, for example, so that a candidate needed a fixed percentage of the primary votes (before preferences) before they could be elected. Such amendments would, of course, have to be passed by Parliament, and no doubt the minor party and independent senators would oppose them. But if the Government had the support of the Opposition, they could not prevent its passage into law. Would this be the ‘will of the people’? How would we know? Public reaction might be tested, but that would have no automatic effect. If a majority of people were willing to vote for a minor party that promised

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to bring back proportional representation, then we might be confident that we knew the public’s position. But that would be a long shot.

What does ‘representation’ require? Support for minor parties in the Senate under the current electoral system might also be regarded as the people’s ‘will’. The outcome of elections is not the same thing as the powers available to the winning candidates. Proportional representation operated for close to thirty years without regularly producing a ‘hostile’ Senate – that is, a collection of senators, the majority of whom are unlikely routinely to support the Government. Minor parties have always been around, and have always stood candidates for election to Parliament. What has changed is their profile in Australian society. They still get a statistical minority of the votes, but they now get enough recognition and support for this to translate into the number of extra votes that is needed to make the difference between winning and losing. It may seem that the presence of ‘hostile’ minor parties in the Senate is here to stay, and will be a feature of Australian political life forever. Such things, however, like all movements in politics, are subject to the winds of change and history. The point is: the powers of the Senate are constitutionally ‘entrenched’. The contradiction between powers of government and powers of the Senate is at the heart of Australia’s Constitution. It is not the product of the devious Democrats or greedy Greens. It lies there because of the historical agreement to marry two contradictory principles: responsible government and federalism. As the Government’s 2003 Discussion Paper points out, the Senate does not ‘represent’ the States in the obvious sense. The twelve senators do not routinely (or perhaps ever) vote with each other on questions affecting their home States. Except for the rare Independents (like Brian Harradine, who votes as he thinks is best for his State of Tasmania), they vote as members of the party to which they belong. But ‘representation’ is not as simple as this. There are other ways in which the Senate does represent the States. The Constitution guarantees to each of them an equal number, regardless of


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population size. Tasmania, the smallest State, would never have had the full complement of senators if numbers were allocated by population. This would make Tasmania’s voice and its presence in the national capital much smaller. It might more easily be overlooked by the larger States. Western Australia, already disadvantaged by its geographical distance from the federal capital, would be in a similar position. Some might think this is reasonable, that representation should be based on population size alone. The point is that equal representation and a strong Senate were included in the Constitution, not in order to give minor parties power over governments, but as the expression of the federal principle upon which the Constitution was built. To change this may be desirable. That is a matter for debate. But those who propose change must recognise that it would have a major impact upon the constitutional balance. It would go some way towards removing the contradictions in the Constitution, that is true – contradictions, it is also true, that were deliberately included in it.

Where do the territories fit in? Other contradictions are less fundamental, but are still striking. Constitutionally, the people of the Commonwealth territories are in an anomalous, even uncomfortable position. The constitutional guarantees that extend to the States do not automatically reach them, and nor are they protected by the limits to which the Commonwealth must otherwise conform. The Commonwealth has almost untrammelled power to make laws for its territories. Section 122 says: ‘The Parliament may make laws for the government of any territory . . .’, meaning almost any laws it likes. This does not necessarily amount to oppression. Laws that are especially favourable may also be made for them. Preferential treatment that the Commonwealth is prohibited from giving to a State may be given to a Territory. It does, however, mean that the ‘rights and freedoms’ found in the Constitution (for example, the guarantee of trial by jury for certain Commonwealth crimes) are not automatically enjoyed by territorians.

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Why was the Northern Territory’s euthanasia law overturned? It also means that laws made by the governments of the selfgoverning territories themselves (the ACT, the Northern Territory, and Norfolk Island) are, in a sense, only made on sufferance. The Commonwealth Parliament may over-ride or over-turn Territory law (as Britain could once do for its self-governing parts of the empire, including the Australian colonies). In 1995, for example, the Northern Territory Legislative Assembly passed a law legalising euthanasia – the Rights of the Terminally Ill Act. It was the first such law in Australia, and it generated immense debate and division among politicians, as in the rest of Australian society. In 1997, following a ‘conscience vote’ in the Commonwealth Parliament it was overridden by a Commonwealth Act. The Territory had no power to prevent this happening. The territories also have no guarantee of representation in the Commonwealth Parliament. Since 1973 both the Northern Territory and the ACT have had two senators each and a couple of members in the House of Representatives. This was achieved through Commonwealth legislation – it is not guaranteed in the Constitution. Indeed, the constitutional power to create positions in the Senate for the territories was actually the subject of a challenge in the High Court. Section 7 of the Constitution states that the Senate ‘shall be composed of senators for each State, directly chosen by the people of the States’. This, it was argued by those who brought the challenge, means that the States, and only the States, have a constitutional right to senators. In response, it was pointed out that section 122 says unambiguously that the Parliament ‘may allow the representation of [a] territory in either House of the Parliament to the extent and on the terms which it thinks fit’. There is a clear contradiction between the two sections – one section gives senators to the States alone; the other says that the territories can also have senators. It is a contradiction that seems to have gone unnoticed by the Constitution’s framers. To the relief of the territories, the High Court accepted the latter argument.


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The right to take part in a referendum, on the other hand, is constitutionally guaranteed to the territorians (or, at least, to those who have representation in the House of Representatives, which depends upon legislation; this therefore, may be something of a thin ‘guarantee’). In 1977, a referendum on whether they should be permitted to vote in referendums, was successful. Section 128 of the Constitution was altered accordingly (it altered itself). The votes of those territorians who take part in a referendum are, however, only counted once – they are included in the count of the whole nation’s vote, which is the first majority hurdle over which a referendum must leap. The second requires a majority of the electors in a majority of the States, and in this, the territories don’t count. Only the States do.

What if a Territory turns into a State? A Territory can become a State, and this can be done simply through Act of Commonwealth Parliament. In 1998, the people of the Northern Territory voted in their own referendum on the proposal to make the Territory a State (they voted against it). Such a referendum was not actually required by the Constitution, although it was politically sensible. However, even if a territory became a State, while certain constitutional protections would then extend to it, its people would have no guarantee of equal representation in the Parliament. They would certainly be entitled to have their own members in the House of Representatives and Senate, but the constitutional guarantee of the same number of senators as the existing six States would not extend to them, and nor would they be guaranteed a minimum of five House of Representatives members. The number of their members would be based on population size alone. The Constitution, in sections 7 and 24, guarantees an equal number of senators and a minimum of five Members of the House of Representatives, but this applies only to the ‘original’ States, that is, to those States that joined at the origin of the Commonwealth in 1901. This is because the Australian Commonwealth was, and remains, essentially the product of an agreement between the selfgoverning colonies. The colonies were the parties to the ‘contract’.

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They extracted agreements and concessions out of each other as the price of concluding it and thereby bringing about federation. Their agreement was embedded in the Constitution. As the Constitution’s Preamble puts it – as the people of the colonies ‘have agreed to unite in one indissoluble Federal Commonwealth . . . [b]e it therefore enacted.’ Later parties could not expect to cut any deals, or enjoy any guarantees. And yet, the original agreement to federate involved the people of what are now the territories. At the time, the Northern Territory was part of South Australia, and South Australia was one of the ‘original States’. The Territory was represented in the South Australian Legislative Assembly. Its people – men and women, Aboriginal and non-Aboriginal – voted in the referendums on the Constitution Bill (and they voted overwhelmingly in favour). The Constitution even includes ‘the northern territory of South Australia’ in its definition of ‘The States’ (in covering clause 6). It became a Commonwealth Territory (and lost the rights it enjoyed as part of South Australia) only in 1911. The people of the ACT also voted, as electors of New South Wales, in the Constitution Bill referendums. Section 125 of the Constitution requires the federal capital to be in New South Wales, but the site for Canberra was not chosen until 1908 and the ACT was only carved out of the State by legislation one year later. Those people who lived in the area that was ‘surrendered’ to the Commonwealth (see section 111) then lost the rights they had enjoyed as residents of New South Wales. Even if one only counts those who were original parties to the constitutional contract – if history is to count – it seems a little questionable not to include these territories as full parts of the Commonwealth. And yet, a great deal else in the Constitution suggests that they are not. If there is a paradox, it arises again because the Constitution is built around two contradictory principles: the principle that the Commonwealth is a single nation, and the principle that it is, at the same time, a federation. This means that the State and the Commonwealth parliaments have different powers, and different ways of being represented. They are, in effect, in a perpetual struggle with each other, and forms of cooperation (while quite common) do not come naturally.


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But where does this leave the territories? Who – constitutionally speaking – are their people? Are they members of the Commonwealth, as the people of the States are (as well as being people of their States), or are they a different type of constitutional entity? Do they have the full rights enjoyed by other Australian citizens? Is there a common Australian ‘citizenship’? Not necessarily.

What’s happening on Norfolk Island? Norfolk Island, is a curious example. Self-governing since 1979 when a Commonwealth Act gave it an Administrator (appointed by the Governor-General in Council) and a nine-member elected Legislative Assembly, the island is best known as a beautiful tourist destination. But its strange and unique constitutional status came to public attention in 2002 as the result of a tragedy. A young woman was murdered on the island – the first murder reported there in 150 years. Amazingly, the identity of every possible suspect was known. Indeed (although the murder remains unsolved), the name of every person on the island on the day in question was on record. How was this possible? Although it is part of Australia and the islanders are Australian citizens, Norfolk has its own migration policy. The number, and even the characteristics of those who live there, are strictly controlled. Some people live there by right. These are the descendants of the original Pitcairn Islanders – a handful of the mutineers from the Bounty in 1789, who fled to that tiny island, escaping the law, and taking a number of Tahitian women with them. Those who remained on Tahiti were found soon after, taken back to England for trial, and punished. Some were executed. It was many years before the Pitcairn mutineers were finally tracked down. By then, only one survivor remained (an old man and a reformed character, he was spared the noose). But the children and grandchildren lived on in Pitcairn. In 1856, the residents of Pitcairn were resettled on Norfolk, a former recidivists’ penal settlement of New South Wales. Their descendants now ‘claim’ that island and make up around forty-three per cent of the population of some 1800 people. Under Norfolk law, a fixed number of non-Pitcairners also live there, but they have no legal right to do so. While they can leave,

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they cannot sell their property or business to a person who has not already been authorised to fill the ‘vacancy’ on the island. Under the island’s migration law, it is impossible for outsiders, even other Australians, simply to move there. To purchase property on the island does not entitle any person, whether Australian or not, to live there. To qualify as a voter for the Legislative Assembly, a period of residency much longer than in any other electorate is demanded. To work there requires a permit, subject to strict conditions. Indeed, just to visit, Australians have to carry their passports with them, as if they were going overseas. This, of course, was how there was a record of all on the island on the day of the murder. Norfolk has other special laws. The islanders don’t pay Commonwealth tax. In return, they are not entitled to Medicare benefits. They have no representation in the Commonwealth Parliament, but they can enrol in any federal electorate where they can demonstrate a close connection, and they do get some Commonwealth benefits. The Australian dollar is the currency in circulation. The Federal police provide the local police force (it was they who investigated the murder). To some it is a sheltered paradise; to others a place of relative deprivation. Over the years there have been a series of Commonwealth inquiries into conditions on the island. The Human Rights and Equal Opportunity Commission (HREOC) has concluded that the islanders are being denied their human rights freely to sell their property and move from the island. In 2003 a government inquiry was set up, looking into claims that Norfolk was governed undemocratically. This peculiar ‘gated’ community is part of Australia (although some on Norfolk continue to dispute this). Yet, Australians who do not live there are, effectively, foreigners. How is this possible, if Australia is a nation under a single Constitution? Section 117 of the Constitution rules out local laws discriminating against fellow Australians on the grounds of residence. It only applies, however, to the laws of a State, and does not protect anyone from discrimination under the laws of a Territory. The territories are themselves free to pass discriminatory laws, but only because the Commonwealth permits them. As we have seen, Section 122 of the Constitution allows the Commonwealth to


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make any laws it likes for its territories, unhindered by any other provisions in the Constitution. It can provide for them to have their own governments, but it can also take their powers away, or restrict them. Laws for the territories can be quite different from anything found in the rest of Australia. The territories can be turned into States, but they cannot do this for or by themselves. An Act of the Commonwealth Parliament (and that alone) is required (section 121). As new States they would not have the same constitutional rights as the ‘original’ States do. The reality is, the Constitution does not ‘follow the flag’. There is no single Australian ‘nation’ from a constitutional point of view. There is no common ‘citizenship’. Because there are only limited prohibitions on Commonwealth discrimination against parts of Australia, and because the Commonwealth is free from constitutional restrictions in regard to the territories, the Constitution suggests in fact the very opposite. The Preamble says that ‘the people . . . have agreed to unite in one indissoluble Federal Commonwealth’. Australia is both a single commonwealth and a federal commonwealth. It is a democracy, built on the principle of popular sovereignty and the rule of law. Yet not all its citizens have equal rights to democratic participation. This worries many people, but if the Commonwealth were to interfere too much in the business of its territories, and even more so of its States, that would create a greater outcry. If the Constitution’s parts appear contradictory, that is exactly what they are.

Conclusion: The Constitution could say what it means and mean what it says (if we wanted it to) A Constitution needs to be stable. It should not be altered too frequently, and probably not too easily. As the supreme source of power, and the fundamental framework for a nation’s political and legal institutions, it has a permanence that ordinary laws or Acts of Parliament do not have. Like most written Constitutions, Australia’s was intended to be relatively inflexible. At the same time, it was not designed to be rigid. For one thing, the Constitution’s framers did not know, and could not have known, how well it would work in practice. Adjustments might have been needed quite quickly, simply because things turned out differently from the way that the framers could have anticipated, even with the best will in the world. They also knew that the needs and values of the Australian people would evolve and they had faith in the wisdom of future generations. They understood that people should not be perpetually bound by the words of a generation long-gone. As the Government’s Discussion Paper on the powers of the Senate puts it, the Constitution ‘is not immutable. It was consciously designed with a mechanism for change, the referendum process.’ The mechanism is described in section 128: ‘This Constitution shall not be altered except in the following manner.’ A bill (a ‘proposed law’) for altering the Constitution must go through the Parliament, and then be ‘submitted to the electors’ whose vote is counted in two ways. For a referendum to succeed, a majority of all the votes in the Commonwealth is required. The vote across the whole nation is therefore first calculated. Secondly, the vote is calculated across the States. Success requires a majority of the vote in a majority of the States (that is, four out of the six States). If both majorities are 108

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achieved, the alteration goes ahead. Before it does, however (so section 128 says), the bill ‘shall be presented to the GovernorGeneral for the Queen’s assent’. Only a minority of the proposals for constitutional alteration have successfully got through this obstacle course. Forty-four questions have been put to the voters, asking for their approval to change the Constitution. Of these, only eight have actually passed. One alteration each was approved in 1906, 1909, 1928, 1946, and 1967. The most recent was in 1977, when a record three were made. Since that time, a senator who dies or resigns in office must be replaced by a member of his or her own party (section 15); High Court judges must now retire at seventy (section 72); and voters in the territories are permitted to vote in referendums (section 128). Referendums were held in 1988 and 1999, but these joined the long list of failures. Australia is both a nation and a federation of States, and this federal principle is well captured in the ‘double majority’ requirement. Australians, it seems, go along with it.

Did the Aborigines get ‘citizenship’ in 1967? The year 1967 saw the celebrated ‘Aboriginal rights’ referendum. The result remains astonishing. More than ninety per cent of the voters as a whole, and every State, voted ‘Yes’ (people in the territories could not vote in referendums at that time). To what did they agree? It is commonly believed that the referendum gave Aboriginal people the right to vote. This is incorrect, but it is an understandable confusion. Aboriginal people were able to vote in all the colonies except Queensland and Western Australia before 1901. They were disenfranchised for Commonwealth elections by an Act of the Commonwealth Parliament in 1902. In 1962, however, this Act was amended and they were granted the vote for Commonwealth elections. Aboriginal people themselves voted in the 1967 referendum. Even if it had been otherwise, the large and heavy mechanism of a referendum would not have been needed. Qualifications and eligibility of voters are a matter for ordinary legislation. The relevant Acts of Parliament alone were what needed to be changed, rather than the Constitution. So, what did happen in 1967? The referendum removed part of one section of the Constitution and the whole of another. Previously,

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section 51 (xxvi) had permitted the Commonwealth to make ‘special laws for the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’. Although the Commonwealth was previously able to make special laws for the Aboriginal people in its territories (in the Northern Territory, for example), it could not make national laws for them. In 1967, the words other than the aboriginal race were struck out. The Commonwealth now has a general power to legislate for Aboriginal affairs across the nation (Native Title legislation, for example, is a ‘special law’). Secondly, the whole of section 127 was deleted. This section read: ‘In reckoning the numbers of people of the Commonwealth or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.’ Various reasons for the inclusion of this section can be identified – that is, there were several ‘intentions of the framers’, as the Discussion Paper put it. One was to prevent Aborigines being counted in state populations so that a State’s entitlement to seats in the House of Representatives would be based on its white population alone. Another was to prevent individual States from claiming a larger share of Commonwealth revenue than they would otherwise have had (since, at one point in drafting the Constitution, state grants were to be made per capita). Another was the simple and widespread sense that the Aboriginal people were not part of the new Commonwealth, not parties to the constitutional ‘contract’ (the official definition of ‘Aboriginal’ was, however, different in 1901; it was much narrower than it is now).

Why do referendums fail? It is sometimes thought that a significant number of the thirty-six unsuccessful proposals were defeated only by the second majority – that is, that they got a majority of the votes of the whole nation, but not of the States. In fact, only five of the unsuccessful referendums fell on that second hurdle. It is sometimes also thought that the smaller (less populous) States are stubbornly inclined to vote against referendum proposals, but this is not self-evident. Western Australia and Queensland have voted ‘Yes’ more often than either New South Wales or Victoria. It is also often thought that Australians are much less willing to

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change their Constitution than people in other countries. This is doubtful. The United States Constitution has only had twenty-seven amendments, with seventeen of these occurring since 1791 when the ten first amendments were adopted together as the US Bill of Rights. Seventeen in two hundred years, compared to eight in Australia in one hundred years is roughly the same. We do not know exactly what makes the difference between a successful referendum question and an unsuccessful one. What the 1967 referendum demonstrates is that when people feel strongly about the need for constitutional change, they are prepared overwhelmingly to support it. What of ‘the Queen’s assent’? This is another of those constitutional expressions that does not mean what it says. Originally, it meant that the British Government had to be advised of a successful referendum outcome, and that Government then looked at the proposal in the light of imperial interests before permitting the Governor-General to sign the referendum bill into law (in the same way that bills, reserved ‘for the Queen’s pleasure’ or disallowance, as set out in sections 59, were actually looked at by the British Government, rather than the Queen, for consistency with imperial laws). Once the Governor-General ceased to report or take advice from the British Government and Britain had no power to disallow or interfere with Australian legislation, the words became irrelevant. (It should be noted, though, that even when it did have the power, no Commonwealth bills were ever disallowed by Britain, and no proposed constitutional alteration was ever refused British assent.) If the Constitution has gone on largely unaltered, this is not so much because it is impossible to alter, or because the British have interfered with attempts to change it, or because the small States have voted together and systematically thwarted the larger States, or even because governments have been particularly reluctant to make proposals for change, but because the people have voted against them. In this simple sense, then, it has been the people’s will.

The whole Constitution, or nothing but the Constitution? This might seem an appropriate place to write ‘The End’. But (alas!) things are never quite so simple. The Constitution was written in Australia, and approved by a majority of the Australian people in

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referendums in 1899 (and, in Western Australia, in 1900) but it was passed into law as an Act of the British Parliament. Technically, the ‘Constitution’ is Clause 9 of the Act. It has the heading ‘The Constitution of the Commonwealth shall be as follows’. Eight ‘Covering Clauses’ dealing with a range of preliminary matters – definitions and such like – precede it. But in practice the Covering Clauses have always been treated as part of the Constitution. The High Court has referred to them as such. If, as section 128 says, the Constitution ‘shall not be altered except’ by referendum, can a referendum alter the whole of the document we call the Constitution? No one has ever claimed that the ‘Act to constitute the Commonwealth of Australia’ was an ordinary Act, and that Britain could simply go ahead and alter it, just as and when it wanted. But some believe that section 128 only applies to Clause 9 and a few still maintain that Britain, and Britain alone, can amend the whole Act. This, when you consider it, creates a constitutional Catch-22. British law no longer has any application in Australia, but from this perspective the Constitution is still part of British law. If it is British law, it can no longer operate, but if it is Australian law, Britain can no longer alter it (although the Constitution continues to suggest that it can): if it could, successful referendums should still go to ‘the Queen’ for assent before the Constitution is altered. And so on.

Is secession possible? None of this might matter, except that proposals to change things found in or affected by the Covering Clauses have been put to the Australian voters in the past (and are likely to be put again). The first, which interests Western Australians in particular, but concerns all Australians nevertheless, is the secession question. Can a part of the Commonwealth break, or secede from, the rest of Australia? Western Australians seem to have a higher awareness of the Constitution than the people of other States. They often talk of secession, and in the 1930s tried seriously to achieve it. A state plebiscite in 1933 overwhelmingly endorsed the proposal and a massive petition in its favour was collected. Representatives of the Western Australian Government took the petition (in a specially carved box made of

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local timber) to the British Parliament in London, asking to be released from the Commonwealth. Long-standing grievances (over funding, in particular) were at the root of this, but the State also tried to make a constitutional case. Having passed the Constitution Act, they said, Britain could simply amend it, at the request of a party subject to it. It could take out the references to Western Australia, and release that State from the federal compact. The Constitution could not be binding. The Act could not bind the Crown, and furthermore, a ‘contract’ could not bind the parties if the contract had been breached. Western Australia, they said, had been reluctant to join in the first place, and had been deceived by the lure of false promises. (A historical note is needed here: the Constitution’s Preamble does not mention Western Australia among the colonies whose people agreed to unite in ‘one indissoluble federal Commonwealth’. The referendum on the Constitution Bill was not held in that colony until three weeks after the Act had been passed. However, Covering Clause 3 says that Western Australia can join, if its people agree, within one year after the passage of the Act. Men and women were eligible to vote in WA; both the turnout and the percentage of ‘Yes’ votes were a record high. The historical interpretation of their own commitment to joining the Commonwealth was, thus, a little shaky.) The Western Australian case for secession failed. A British parliamentary committee concluded that, while technically it had the power to alter its own Act, it could not engineer a break by one from the Commonwealth. The State was a part of the Commonwealth – it was only a State by being part of the Commonwealth – and its constitutional bonds were not with Britain. If Western Australia wanted to secede, it had to take its case to Canberra. Only if the Commonwealth agreed, could secession then be contemplated. There was no chance of this happening. But, even if it had agreed, nothing in the Constitution says how this could be done and, indeed (as the Commonwealth Government had reminded Western Australia on more than one occasion) if it suggests anything, it is that it cannot. The Preamble refers to an ‘indissoluble federal Commonwealth’. The words were included by the Constitution’s framers to avoid the conflict that had led to the American Civil War in the 1860s and as a disclaimer against the Confederate view that the States were free to leave the union if

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the federal ‘contract’ was breached. The intention of the framers and the word ‘indissoluble’ seem clear enough.

What about Hutt River Province? What, then, about ‘Prince Leonard’ of Hutt River? Leonard Casley, a wheat farmer in Western Australia, claims that his ‘province’ (his farm) has actually seceded. In 1970 he served a notice of secession on the West Australian Premier, the Governor, the Prime Minister, and the Governor-General. He also notified the Queen. He remains convinced that, in taking these steps, he succeeded in separating Hutt River from Australia. But this was and remains little more than a constitutional gimmick, with no status in constitutional law. Subsequent attempts by individual property owners to ‘secede’, when, for example, their property was under threat of repossession, have ended, inevitably, in grief. But the absence of any direct and unambiguous statement either permitting secession or ruling it out (especially regarding a State), may perhaps be included among those things that the Constitution fails to say that might be important. The word ‘indissoluble’ is in the Constitution’s Preamble, and the Preamble is found at the top of the whole Act and not merely Clause 9. Is it part of the Constitution, or not? In practice, it has always been treated as part, but its status is uncertain in constitutional theory.

The Preamble What the Preamble actually is, and whether what it says matters, attracted some attention in 1999. Two questions were put in the referendum of that year. First, Australians were asked whether they wanted Australia to become a republic. This indirectly concerned the Constitution’s Preamble, which says that the Commonwealth is ‘under the Crown’. The second asked whether Australians wanted a ‘new’ Preamble. Had the republic referendum been successful, the Commonwealth would no longer have been ‘under the Crown’. Could a referendum remove these words from the Preamble? Even more significantly, could a referendum remove the whole of the Preamble? Many constitutional lawyers (including this writer) believe that it

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could. But there was sufficient uncertainty on the part of those who officially designed the proposals, for them simply to avoid the issue. The republic question asked for the voters’ approval to alter only words found in the Constitution (that is, Clause 9), and said nothing about the words ‘under the Crown’ in the Preamble. Had it been successful, Australia would have had a republican Constitution with a Preamble saying the opposite. Would the solution have been simply to ignore the Covering Clauses, or to print the Constitution henceforth without them? We do not know.

Where would a new Preamble go? Even more intriguing was the second referendum question, which asked Australians to approve of an entirely new Preamble. Many people had fun during that year writing Preambles of their own, or commenting on official proposals and drafts. All sorts of alternatives, most of them deeply idealistic or aspirational, were in circulation. Even the Prime Minister, John Howard, a committed monarchist, put pen to paper in a mood of idealism. The final version – the one Australian voters considered and then rejected – said a great deal about Australian commitments and values. But it said nothing much about the Constitution, and nothing at all about the republic or the Crown. It could not have mentioned the republic, of course, because had it succeeded while the republic question was defeated, then a second referendum would have been needed to alter the new Preamble’s words. Similarly, any monarchist reference in it would have ended up being inconsistent with the rest of the (amended) Constitution, if both proposals had succeeded. What none of the proposals took into account, however, was that the Constitution (or at least the Constitution Act) already has a Preamble. The referendum proposal was for a new Preamble, at the head of Clause 9. But what of the existing Preamble at the head of the Covering Clauses? Is it, or is it not the Constitution’s Preamble? The government and its constitutional advisers simply ignored the question. Had the preamble referendum been successful, Australia would have had a Constitution with two preambles. Had the republic question also succeeded, it would also have had a Constitution with two

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Preambles, neither of them saying anything at all about the republic, and one of them saying that the Commonwealth was ‘under the Crown’. If this sounds like a constitutional dog’s breakfast, it was! If one wants broad or fundamental constitutional change, there is no other way of clearing up the mess than (to mix metaphors) to take the bull by the horns and recognise that Britain has no further part to play in Australia’s constitutional story. The fact that the Constitution was originally an Act of the British Parliament is now irrelevant. The realities of historical change have to be recognised, and bold constitutional steps have to be taken (it may help to remember that England itself has done just this at times – in 1688, notably, its Parliament chose William III and Mary, as King and Queen, by-passing the constitutional rules of succession). Otherwise, Australia will have a Constitution whose status – or the status of one of its parts – will remain uncertain forever. The reality is, and has been for a good while, that Australians alone own their Constitution – all of it. They wrote it. Section 128 permits them to alter it.

The Constitution, just as it might be Australia has a Constitution, admirable in many ways, but incoherent in many others. In many of its parts, it fails to say what it means, or mean what it says. It is built around a fundamental contradiction, and it is silent on many things that might be important. It includes a significant amount of ‘dead wood’. It has only very rarely been altered by referendum. If it still works, this is because many of its provisions are ignored in practice, and many others have been adapted and dragged into the modern world by the High Court’s interpretation. The Constitution belongs to the Australian people, but it is almost impossible to understand by the majority of people without detailed guidance. This is not inevitable. If we want a new Constitution, we can achieve it by means of referendum. We can alter parts, or we can alter the whole thing. We could change its words – to make it say what it means and mean what it says – without changing anything else about it. We could keep the same Constitution, by changing the Constitution. Indeed, if we re-wrote it, we could finally have the Constitution we really have.

Appendix: The Constitution An Act to constitute the Commonwealth of Australia [9th July 1900]

(Preamble) WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, 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: And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen: Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:–

(Covering Clauses) 1. This Act may be cited as the Commonwealth of Australia Constitution Act. 2. The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom. 3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western 117

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Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth. 4. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act. 5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth. 6. “The Commonwealth” shall mean the Commonwealth of Australia as established under this Act. “The States” shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called “a State”. “Original States” shall mean such States as are parts of the Commonwealth at its establishment. 7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth. Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.

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8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act. 9. The Constitution of the Commonwealth shall be as follows:–

CHAPTER I. THE PARLIAMENT. PART I.–GENERAL. 1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called “The Parliament,” or “The Parliament of the Commonwealth.” 2. A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him. 3. There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the GovernorGeneral, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. The salary of a Governor-General shall not be altered during his continuance in office. 4. The provisions of this Constitution relating to the GovernorGeneral extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth.

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5. The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives. After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs. The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth. 6. There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

PART II.– THE SENATE. 7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate. Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators. The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.

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8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once. 9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State. The Parliament of a State may make laws for determining the times and places of elections of senators for the State. 10. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State. 11. The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate. 12. The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution. 13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.

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The election to fill vacant places shall be made within one year before the places are to become vacant. For the purpose of this section the term of service of a senator shall be taken to begin on the first day of July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election. 14. Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation. 15. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens. Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognised by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party. Where– (a) in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and

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(b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist); he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution. The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the GovernorGeneral. If the place of a senator chosen by the people of a State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State had become vacant after that commencement. A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, shall be deemed to have been appointed to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State that commenced or commences after he was appointed and further action under this section shall be taken as if the vacancy in the place of the senator chosen by the people of the State had occurred after that commencement. Subject to the next succeeding paragraph, a senator holding office at the commencement of the Constitution Alteration (Casual Senate Vacancies) 1977 who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office until the

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expiration of the term of service of the senator elected by the people of the State. If, at or before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, a law to alter the Constitution entitled “Constitutional Alteration (Simultaneous Elections) 1977” came into operation, a senator holding office at the commencement of that law who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office– (a) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and seventy-eight – until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law came into operation; or (b) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and eighty-one – until the expiration or dissolution of the second House of Representatives to expire or be dissolved after that law came into operation or, if there is an earlier dissolution of the Senate, until that dissolution. 16. The qualifications of a senator shall be the same as those of a member of the House of Representatives. 17. The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President. The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General. 18. Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.

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19. A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant. 20. The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate. 21. Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened. 22. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers. 23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

PART III.–THE HOUSE OF REPRESENTATIVES. 24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. The number of members chosen in the several States shall be in proportion to the respective members of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:– (i) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of senators;

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(ii) The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State. But notwithstanding anything in this section, five members at least shall be chosen in each Original State. 25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted. 26. Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election shall be as follows:– New South Wales:– twenty-three; Victoria:– twenty; Queensland:– eight; South Australia:– six; Tasmania:– five; Provided that if Western Australia is an Original State, the numbers shall be as follows:– New South Wales:– twenty-six; Victoria:– twenty-three; Queensland:– nine; South Australia:– seven; Western Australia:– five; Tasmania:– five. 27. Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives.

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28. Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General. 29. Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States. In the absence of other provision, each State shall be one electorate. 30. Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once. 31. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives. 32. The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives. After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof. 33. Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ. 34. Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:–

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(i) He must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen; (ii) He must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State. 35. The House of Representatives shall, before proceeding to the despatch of any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker. The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the GovernorGeneral. 36. Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence. 37. A member may by writing addressed to the Speaker, or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon shall become vacant. 38. The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House. 39. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.

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40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

PART IV–BOTH HOUSES OF THE PARLIAMENT. 41. No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. 42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution. 43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House. 44. Any person who– (i) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or (ii) Is attained of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or (iii) Is an undischarged bankrupt or insolvent; or (iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or (v) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth

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otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. But sub-section (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth. 45. If a senator or member of the House of Representatives– (i) Becomes subject to any of the disabilities mentioned in the last preceding section; or (ii) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or (iii) Directly or indirectly takes or agrees to take any fee or honourarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State; his place shall thereupon become vacant. 46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction. 47. Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House

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of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises. 48. Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat. 49. The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth. 50. Each House of the Parliament may make rules and orders with respect to– (i) The mode in which its powers, privileges, and immunities may be exercised and upheld; (ii) The order and conduct of its business and proceedings either separately or jointly with the other House.

PART V–POWERS OF THE PARLIAMENT. 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:– (i) Trade and commerce with other countries, and among the States; (ii) Taxation; but so as not to discriminate between States or parts of States; (iii) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;

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(iv) Borrowing money on the public credit of the Commonwealth; (v) Postal, telegraphic, telephonic, and other like services; (vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; (vii) Lighthouses, lightships, beacons and buoys; (viii) Astronomical and meteorological observations; (ix) Quarantine; (x) Fisheries in Australian waters beyond territorial limits; (xi) Census and statistics; (xii) Currency, coinage, and legal tender; (xiii) Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; (xiv) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) Weights and measures; (xvi) Bills of exchange and promissory notes; (xvii) Bankruptcy and insolvency; (xviii) Copyrights, patents of inventions and designs, and trade marks; (xix) Naturalization and aliens; (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) Marriage; (xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiii) Invalid and old-age pensions; (xxiiiA) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical,

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(xxiv)

(xxv)

(xxvi)

(xxvii) (xxviii) (xxix) (xxx) (xxxi)

(xxxii) (xxxiii)

(xxxiv) (xxxv)

(xxxvi) (xxxvii)

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sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances; The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; The people of any race, [other than the aboriginal race in any State – words deleted in 1967] for whom it is deemed necessary to make special laws; Immigration and emigration; The influx of criminals; External affairs; The relations of the Commonwealth with the islands of the Pacific; The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; The control of railways with respect to transport for the naval and military purposes of the Commonwealth; The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State; Railway construction and extension in any State with the consent of that State; Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; Matters in respect of which this Constitution makes provision until the Parliament otherwise provides; Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States,

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but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii) 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; (xxxix) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. 52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to– (i) The seat of the government of the Commonwealth, and all places acquired by the Commonwealth for public purposes; (ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government or the Commonwealth; (iii) Other matters declared by this Constitution to be within the exclusive power of the Parliament. 53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

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The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws. 54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. 55. Laws imposing taxation, shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only. 56. A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated. 57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with

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amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent. 58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure. The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.

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59. The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known. 60. A proposed law reserved for the Queen’s pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen’s assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen’s assent.

CHAPTER II. THE EXECUTIVE GOVERNMENT. 61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. 62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. 63. The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council. 64. The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the GovernorGeneral in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive

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Council, and shall be the Queen’s Ministers of State for the Commonwealth. After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. 65. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs. 66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year. 67. Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the GovernorGeneral in Council or by a law of the Commonwealth to some other authority. 68. The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative. 69. On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth:– Posts, telegraphs, and telephones; Naval and military defence; Lighthouses, lightships, beacons, and buoys; Quarantine. But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

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70. In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General, or in the GovernorGeneral in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.

CHAPTER III. THE JUDICATURE. 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. 72. The Justices of the High Court and of the other courts created by the Parliament– (i) Shall be appointed by the Governor-General in Council; (ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; (iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.

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The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment. A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General. Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions. A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation. 73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences– (i) Of any Justice or Justices exercising the original jurisdiction of the High Court;

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(ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) Of the Inter-State Commission, but as to questions of law only; and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court. 74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked,

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but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure. 75. In all matters– (i) Arising under any treaty; (ii) Affecting consuls or other representatives of other countries; (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) Between States, or between residents of different States, or between a State and a resident of another State; (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction. 76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter– (i) Arising under this Constitution, or involving its interpretation; (ii) Arising under any laws made by the Parliament; (iii) Of Admiralty and maritime jurisdiction; (iv) Relating to the same subject-matter claimed under the laws of different States. 77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws– (i) Defining the jurisdiction of any federal court other than the High Court; (ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) Investing any court of a State with federal jurisdiction. 78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

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79. The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes. 80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

CHAPTER IV. FINANCE AND TRADE. 81. All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution. 82. The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth. 83. No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law. But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament. 84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth.

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Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer. Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth. 85. When any department of the public service of a State is transferred to the Commonwealth– (i) All property of the State of any kind, used exclusively in connection with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary; (ii) The Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the

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manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth; (iii) The Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament; (iv) The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred. 86. On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth. 87. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one-fourth shall be applied annually by the Commonwealth towards its expenditure. The balance shall, in accordance with this Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth. 88. Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth. 89. Until the imposition of uniform duties of customs– (i) The Commonwealth shall credit to each State the revenues collected therein by the Commonwealth. (ii) The Commonwealth shall debit to each State– (a) The expenditure therein of the Commonwealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the State to the Commonwealth;

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(b) The proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth. (iii) The Commonwealth shall pay to each State month by month the balance (if any) in favour of the State. 90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety eight, and not otherwise. 91. Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods. 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation. 93. During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides–

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(i) The duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State; (ii) Subject to the last sub-section, the Commonwealth shall credit revenue, debit expenditure, and pay balances to the several States as prescribed for the period preceding the imposition of uniform duties of customs. 94. After five years from the imposition of uniform duties of customs, the Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth. 95. Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not originally imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth. But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and onefifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties. If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth. 96. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise

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provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit. 97. Until the Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an officer of the Commonwealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned. 98. The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State. 99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof. 100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. 101. There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder. 102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and

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unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission. 103. The members of the Inter-State Commission– (i) Shall be appointed by the Governor-General in Council; (ii) Shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity; (iii) Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office. 104. Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States. 105. The Parliament may take over from the States their public debts, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States. 105A. (1) The Commonwealth may make agreements with the States with respect to the public debts of the States, including– (a) the taking over of such debts by the Commonwealth; (b) the management of such debts;

150

(2) (3) (4) (5)

(6)

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(c) the payment of interest and the provision and management of sinking funds in respect of such debts; (d) the consolidation, renewal, conversion, and redemption of such debts; (e) the indemnification of the Commonwealth by the States in respect of debts taken over by the Commonwealth; and (f) the borrowing of money by the States or by the Commonwealth, or by the Commonwealth for the States. The Parliament may make laws for validating any such agreement made before the commencement of this section. The Parliament may make laws for the carrying out by the parties thereto of any such agreement. Any such agreement may be varied or rescinded by the parties thereto. Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State. The powers conferred by this section shall not be construed as being limited in any way by the provisions of section one hundred and five of this Constitution.

CHAPTER V. THE STATES. 106. The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution

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exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be. 108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State. 109. When 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. 110. The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State. 111. The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth. 112. After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth. 113. All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

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114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State. 115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts. 116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. 117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. 118. Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State. 119. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. 120. Every State shall make provisions for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

CHAPTER VI. NEW STATES. 121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment

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make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. 122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. 123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected. 124. A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

CHAPTER VII. MISCELLANEOUS. 125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown

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lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government. 126. The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the GovernorGeneral such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function. [127. Deleted in 1967.]

CHAPTER VIII. ALTERATION OF THE CONSTITUTION. 128. This Constitution shall not be altered except in the following manner:– The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other

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House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the GovernorGeneral may submit the proposed law as last proposed by the firstmentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the GovernorGeneral for the Queen’s assent. No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, “Territory” means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

SCHEDULE OATH. I, A. B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!

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AFFIRMATION. I, A. B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. (NOTE.– The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.)

Further reading

Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia, Oxford University Press, 2001. Michael Coper, Encounters with the Australian Constitution, CCH, 1988. Michael Coper and George Williams, Power, Parliament and the People, Federation Press, 1997. Brian Costar (ed.), Deadlock or Democracy? The Future of the Senate, UNSW Press, 2000. Gregory Craven, Secession: the Ultimate States Right, Melbourne University Press, 1986. Christopher Cunneen, King’s Men: Australia’s Governors-General from Hopetoun to Isaacs, Allen & Unwin, 1983. Brian Galligan, A Federal Republic: Australia’s Constitutional System of Government, Cambridge University Press, 1995. Murray Gleeson, The Rule of Law and the Constitution, ABC Books, 2000. Helen Irving (ed.), The Centenary Companion to Australian Federation, Cambridge University Press, 1999. Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution, Cambridge University Press, 1999. J. A. La Nauze, The Making of Australia’s Constitution, Melbourne University Press, 1972. J. A. La Nauze, No Ordinary Act: Essays on Federation and the Constitution, edited by Helen Irving and Stuart Macintyre, Melbourne University Press, 2001.

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Further reading

Geoffrey Lindell and Robert Bennett (eds) Parliament: The Vision in Hindsight, Federation Press, 2001. Cheryl Saunders, It’s Your Constitution: Governing Australia Today, Federation Press, 2003. Marian Sawer (ed.), Elections, Full, Free and Fair, Federation Press, 2001. David Solomon, The Political High Court, Allen & Unwin, 1999. John Summers, Dennis Woodward and Andrew Parkin (eds), Government, Politics, Power and Policy in Australia (7th edition), Longman, 2002. John Waugh, The Rules, Melbourne University Press, 1996. George Winterton, Monarchy to Republic, Oxford University Press, 1994. George Williams, Human Rights under the Australian Constitution, Oxford University Press, 1999. Information about, and copies of, the Statute of Westminster (1931) and the Australia Act (1986) – key Acts in confirming Australia’s sovereignty – can be found at .

Index

Aboriginal Australians and 1967 referendum 109 and Constitution 109 vote 109 ACT 90 Administrator of the Commonwealth 24, 72, 75 American Civil War 113 Anderson, John 52 ASIO 59, 78, 80 asylum seekers 60–1, 91 Australia, and United Kingdom 28–30, 44

Commonwealth, name of 9 Commonwealth Gazette 20 Commonwealth of Nations 9 Communist Party of Australia 60 Community Protection Act 1994 48 constitutional crisis of 1975 38–9, 94 Constitutional interpretation 40, 41–4 Costello, Peter 75 covering clauses of Constitution 112 Cowen, Sir Zelman 89 Crime (Aviation) Act 80 Croome, Rodney 71

Bali bombing 72 Barton, Edmund 22, 64 Beattie, Peter 68 ‘border protection’ 59, 62 Brennan, Justice Gerard 54 Britain, see United Kingdom Bush, President George (Junior) 17, 56

‘deadlocks’ in parliament 94 Deane, Sir William 21, 23, 82, 86 defence Act 15, 81 command 12–17 constitutional meaning 43, 58–60 Minister for 15 power 5, 78 and States 3 democracy, and the Constitution 46–7 Discussion Paper on Senate 2003 (see Senate) dominion status 26–8

Cabinet minutes 16 Carr, Bob 68 Casey, Richard 37 Castle, The 10, 91 Cleary, Phil 29 ‘children overboard’ affair 35 Christmas Island 35 Church and State 87–90 citizenship, dual 29 common law 9

education, and Constitution 67 elections Electoral Act 1902 6 electoral systems 98–100

159

160

Index

elections (cont.) proportional representation 99 qualifications of candidates for Parliament 46 qualification of electors 6 emergencies, and Constitution 80–1 environment, and Constitution 65–6 external affairs power 65, 66, 71, 80 Extradition Act 80 Family Court 69, 70 Faulkner, John 12 federal capital 2 Federal Court 62 judges 23 Federal Executive Council 13, 25 federalism 93–4 Federation 1, 7, 92, 96 flag, Australian 52–7 framers of Constitution 7, 94, 108 intentions 96–7 Franklin River 66 Fraser, Malcolm 38 freedom of speech 53–7 Game, Sir Philip 39 Gorton, John 37 Governor, State Lieutenant 73 Governor-General 8 Act 1974 20, 77 appointment 19–21, 26 and Britain 26 choice of Prime Minister 32 and church 87–90 Commission 77 death 75 Deputy 25 dismissal of Prime Minister 82–3 and elections 32 as Head of State 84 Letters-Patent 20–3, 24, 72, 76, 77 powers 13, 19, 20, 25 prerogative powers 39, 87

reserve powers 38, 39, 81–4 removal 21 term of office 21 grants to States 67 Green, Sir Guy 73 Guantanamo Bay 50 Habib, Mamdouh 50 Harradine, Brian 100 Hayden, Bill 27 Head of State 84 Hicks, David 50 High Court of Australia 39–41, 57, 59–60, 63, 66, 68, 71, 79, 90, 102 constitutional interpretation 40, 41–4 Hill, Heather 29 Hollingworth, Dr Peter 15, 23, 72 as church leader 87, 89 resignation 18–19, 24, 31, 73 Holt, Harold 37, 81 Hopetoun, Lord 22 House of Lords 98 Howard, John 11, 22, 25, 52, 64, 86, 95, 115 Hughes, Billy 14 Human Rights and Equal Opportunity Commission 106 Human Rights Committee (United Nations) 71 Human Rights (Sexual Conduct Act) 1994 71 International Covenant on Civil and Political Rights 71 Iraq war 11–13 and parliament 11–12 Isaacs, Sir Isaac 27 islands, excision of 60–4 Jeffrey, Major General Michael 21, 23, 73, 82 Johnson, Dulcie 79

Index

161

judges, Federal Court 23 judicial power 74, 91

Prince Leonard of Hutt River 114 Privy Council 44

Kable, Gregory 48 Keating, Paul 83 Kerr, Sir John 38

Queen 6, 13, 87, 111 and Governor-General’s appointment 19, 21, 77 of Australia 30, 85

Lang, Jack 39 laws, see common law, retrospectivity, statute law Letters-Patent (Governor-General) 20–3, 24, 72, 76, 77 McEwen, John 37 McMahon, William 37, 38 marriage, and Constitution 69–72 (see also Family Court) same-sex couples 69–71 Tasmania 70–1 Melville Island 63 migration Act 49 Norfolk Island 105–6 ‘migration zone’ 60, 63–5 Norfolk Island 105–6 Northern Territory 102, 103 O’Brien, Kerry 25 Olympic Games, Sydney 86 International Olympics Committee 86 Opera House 55 O’Shea, Elizabeth 52, 56 Opposition 33 ‘Pacific solution’ 62 Pitcairn Island 105 Polyukhovich, Ivan 51 postal services 5 preamble 45, 104, 107, 113, 114–16 Prime Minister death of 37, 75 office 31–4

Racial Discrimination Act 1975 66 Reference of State powers to Cth 69, 80 referendums 108–11 1898 96 1899 104 1967 109 1977 109 1999 3, 86 reasons for failure 110 and Territories 103 Refugee Review Tribunal 49, 61 Reid, George 96, 97 Reith, Peter 36 religion, and Constitution 53, 88–90 Republic Advisory Committee 83 Reserve Powers (see Governor-General) responsible government 33–6, 93, 97 retrospectivity of laws 50–1 rights, and ACT 90 and Constitution 90–1 freedom of speech 53–7 Ruddock, Philip 35 Sanderson, John 73 Scullin, James 27 secession 112–14 Hutt River Province 114 Western Australian 112–14 Senate 11, 64, 78, 93 framers’ intentions 96–7 and money bills 94 reform of (2003 Discussion Paper) 95–8, 101, 108

162

Index

separation of powers 73–5 Sex Discrimination Act 1984 66 speech, freedom of 53–7 symbolic 55 statute law 9 Statute of Westminster 26 sovereignty of people 45, 47–9, 89 States, new 103–4 Stephen, Sir Ninian 82 Tampa affair 61, 62, 63 taxation 68 television, and Constitution 6 Territories, and Constitution 101–7 and 1899 referendums 104 and Commonwealth Parliament 102 terrorism 59, 76, 78, 79–80 Thatcher, Margaret 76 Toonen, Nicholas 71 United Kingdom and Australia 28–30, 111–12, 116 constitution of 7, 34 and IRA 76 parliament 6

United Nations see also Human Rights Committee, International Covenant on Civil and Political Rights Convention for the Suppression of the Unlawful Seizure of Aircraft 80 Convention on the Suppression of Terrorist Bombings 80 Refugee Convention 61 United States of America Constitution 16, 50, 111 First Amendment 56 flag 56 President 16 President George Bush (Junior) 17 Senate 47 Supreme Court 40 ‘vertical fiscal imbalance’ 68 vibe, the 9, 43, 47 war declaration 15, 17 on terror 79–80 Second World War 59, 79 War Crimes Act 1988 50 Whitlam, Gough 38

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