Week 1: Introduction to Australian Constitutional Law
Prescribed reading: 1-4, 122-131, 141-145.
Chapter 1 Foundations
Representative government means government by the people through their elected representatives.
Responsible government means that the executive arm of government is responsible to Parliament for its
Powers of government divided by a „separation of powers which allocates legislative, executive and judicial
These allocations are subjects to checks and balances, including the ability of the courts to exercise a power
of judicial review to strike down laws inconsistent with the constitution.
Constitutional law is defined as:
o Including “all rules which directly or indirectly affect the distribution or the exercise of the sovereign
power in the state”.
o More recently, it has be defined as a document setting out “the rules governing the composition,
powers and methods of operation of the main institutions of government, and the general principle
applicable to their relations to the citizens”.
o Constitutions are concerned with establishing a governmental chain of command and limiting its
power (Blackshield and Williams, 2).
o Constitutional law refers to „the set of laws, rules and practices that create the basic institutions of the
state, and its component and related parts, and stipulate the powers of those institutions and the
relationship between the different institutions and between those institutions and the individual‟
(House of Lords Constitution Committee, First Report, para 20).
Written and unwritten constitutions
Constitutional law may be „written‟ – whereby it is written down in a single document, as is the case with the US, India
and South Africa. It can also be „unwritten‟, where there is no actual document, which specifically sets out
constitutional law, as is the case with the UK.
Australia‟s constitutional law is considered to be both „written‟ and „unwritten‟. This is because the Constitution is
supplemented by other acts such as the Statute of Westminster 1931 (Imp) and The Australia Act 1986 (Cth), as well
as unwritten conventions and the common law.
Flexible and non-flexible constitutions
Constitutional law may be „flexible‟, which means that constitutional law can be changed by ordinary acts of
parliament. It can also be „rigid‟, which means that changing it requires a more difficult and complex procedure than
ordinary laws (for example, a referendum).
Australia‟s constitutional law is „rigid‟, because s 128 requires a more complex process to make alterations to the
The process under s 128 is called a double majority referendum. It requires:
Absolute majority in Parliament (passed in both houses)
Majority of people, in a majority of states (double majority)
The individual State Constitutions, however, are „flexible‟ and can be changed by any ordinary act of Parliament.
Constitutionalism and Judicial Review
Where a rigid and written constitution sets limits on legislative powers, the question of whether those limits
have been transgressed into legal questions.
The Australian Constitution assumes that, where a statute is enacted by an Australian parliament that
exceeds the power recognised or conferred by the Constitution, or infringes on some express or implied
constitutional limitation, any court has the power to declare the enactment to be unconstitutional and
In order for legislation passed by the Commonwealth Parliament to be valid, it must be made in accordance
with a head of power in section 51 of the Constitution.
The legislation must also not breach a limitation on Commonwealth power e.g. the implied freedom of political
communication. The High Court determines whether a head of power, and whether or not it breaches a limitation on
Commonwealth power supports legislation.
Chapter 3 Path to Independence
Patrick Parkinson, Tradition and Change in Australian Law
From 1788-1855, the development of constitutional law had progressed to a stage where out of the original
penal colony of NSW, there had emerged a number of colonies each of which a bicameral legislature and
The Statute of Westminster
The Statute of Westminster 1931 (Imp) freed the Commonwealth from Imperial restrictions by excluding the
operation of the Colonial Laws Validity Act and thereby the repugnancy doctrine.
The statute also removed any restrictions upon Commonwealth legislative power arising under the
Section 2 of the Statute of Westminster provided that the Colonial Laws Validity Act did not apply to Australia.
However, under s 4 the British parliament could still legislate for Australia, but only with the „request and
consent‟ of the Commonwealth Parliament.
The Commonwealth Parliament could not enact laws inconsistent with British legislation (except under s 8, it
could not alter or repeal the Australian Constitution); while any territorial limit on its legislative powers was
brought to an end by s 3.
Under s 2, once Australia had „adopted‟ the Statute, neither the repugnancy doctrine nor the Colonial Validity
Act could restrict the powers of the Commonwealth Parliament.
The fact that an Act was repealed in the UK did not extend to Australia since it did not comply with the
„request and consent‟ requirements of s 4.
The Statute of Westminster left two impediments to full Australian legal independence. First, under s 4, the UK
could still legislate for the Commonwealth, albeit at the Commonwealth‟s „request and consent‟. Secondly, the
States were still bound by the doctrines of repugnancy and extraterritoriality.
The doctrine of repugnancy (s 2 in the Colonial Laws Validity Act 1865 (Imp)) meant that if Australian legislation is
inconsistent (repugnant) to that of the UK, it is invalid. It was originally thought that the repugnancy doctrine would
cease to apply now because the Commonwealth of Australia Constituti