Constitutionalism and the rule of law

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Australia is governed by the Australian Constitution. Main aspects of the constitution include:

  • Representative government - the people elect their representatives.
  • Responsible government - the executive government is answerable to the Parliament and therefore the electors as well.
  • Federalism - government power is spread between the state and federal governments.
  • Separation of power - three arms of government are separated as follows:
    • Legislative - the parliament passes laws.
    • Executive - the government & public servants (police, RTA etc) who carry out the law.
    • Judicial - the courts, who interpret the law.
  • Judicial review - courts have the right to invalidate laws as unconstitutional. This seemingly ultimate power is restricted because:
    • Courts can only strike out laws which are brought before them in dispute.
    • Courts would lose respect if they went against the Parliament.
    • Courts have no actual way of enforcing their ruling (dependent on the executive).
  • Rigid constitution - the Constitution cannot be changed simply by passing a law. A double majority referendum is needed:[1]
    • Absolute majority in Parliament (passed in both houses)
    • Majority of people, in a majority of states (Double Majority)
  • A mix of a 'written' and 'unwritten' constitution - the Constitution is supplemented by other statutes as well as constitutional conventions and the common law.

This topic is within Principles of Public Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 1-12 (Chapter 1, sections 1-3).

Supplementary Material: Mat 1B (Tomkins, French, Tamanaha, Turpin & Tomkins).

Introduction - Constitutional Law

[2] Australia came into being through the Commonwealth of Australia Constitution Act 1900 (Imp). This gave effect to our Constitution. Our constitution borrows ideas from both the UK and the US models:

  • UK (focus - establish a chain of command):
    • Representative Government – Government by the people through their elected representatives.
    • Responsible Government – The executive branch of government is responsible to Parliament (and therefore the electors too) for its actions .
  • US (focus - protect people from the government by diffusing power):
    • Federalism – government power is allocated among different political and territorial units
    • Separation of Powers – allocates Executive, Legislative and Judicial powers to different institutions.
    • Judicial Review – judicature has the power to strike down laws which are deemed inconsistent with the Constitution.

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 Constitution.

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.

Judicial review

[3] Judicial review is the power of the courts to strike down laws which are inconsistent with the constitution. It is a way of ensuring that parliaments operate within constitutional limits. Judicial Review is common in systems which employ a ‘written’ and ‘rigid’ constitution.

This power of Judicial Review was explored first in the US case, Marbury v Madison[4] in which it was established that:

  • Laws that are inconsistent with the constitution will be declared invalid and ignored.

Judicial Review - a shift in power?

The power of Judicial Review raises questions with regards to the balance of power in the political system and especially with regards to the supreme authority. These issues were discussed by JR Lucas in The Principles of Politics[5]:

  • The Supreme Court has the power to interpret statutes
    • Its interpretations often go beyond what the framers of the Constitution had in mind.
    • Its decisions are effective (bar one historical exception)
  • Is it thus the Sovereign body of the US?
  • No, it is restricted because:
    • It can only judge a case that been brought before it (can’t decide to interpret a law until it comes up in a case)
    • Powers of interpretation are wide, but not infinitely wide – if it seemed to abuse its power, it would lose respect.

In addition, there is the fact that the courts themselves don’t have the power to enforce their judgments – they must be enforced through the executive. An example is given in Worcester v Georgia[6]:

  • Court ruled a particular legislation was unconstitutional – indigenous tribes could not be driven off their land.
  • President Andrew Jackson decided not to enforce the ruling, and the indigenous tribes were driven off their land anyway.

However, this is the only case to date where a ruling went unenforced. The opposite example is Brown v Board of Education[7] where military support was dispatched by the executive to enforce the ruling. Both of these cases support the notion that the courts are ultimately not a threat to the political system, because it does not have control over the means of force (police, army).

In Australia, the Constitution does not expressly confer a power of Judicial Review. However, this power is declared to be self evident and included in the conventions, as said in Australian Communist Party v Commonwealth (Communist Party Case)[8]. This is further reflected in s 30 of the Judiciary Act 1903 (Cth) and s 76 of the Constitution.

Separation of Powers

[9] The doctrine of the Separation of Powers purports to prevent the exercise of arbitrary or tyrannical power. It does so by dividing powers between various independent institutions. In other words, rather than one person holding all the power (like in a dictatorship), power is spread between separate people. The power of the state is usually separated into three different arms:

  • Legislative (or lawmaking) power - this is the power to pass laws. It is entrusted to Parliament.
  • Executive power - this is the power to enforce or carry out the laws passed by Parliament. It is entrusted to the government, and the public servants which the government employ (police, public teachers and doctors, the RTA, etc).
  • Judicial power - this is the power to interpret and judge according to the law made by parliament. It is entrusted to the courts and judges.

Imagine if the Police Commissioners (members of the executive) were also judges (members of the judiciary). This would mean they could arrest anyone and then convict them automatically, thus exercising arbitrary power. By keeping the executive and the judiciary separate, we limit the possibility of arbitrary use of power.

The doctrine of Separation of Powers is discussed in the following texts:

Baron de Montesquieu - The Spirit of the Laws

[10] If the legislative and executive powers are infused in the same institution, there can be no liberty. The same applies when the judiciary is not separated from the legislative and executive.

  • No separation between judiciary and legislature - citizens would be subject to arbitrary control; the judge would be then the legislator.
  • No separation between judiciary and executive - judges might behave with violence and oppression.

Owen Wood Phillips & Paul Jackson - Constitutional and Administrative Law

[11] Separation of powers can be explained as follows:

  • Legislative –
    • Making, altering or repealing laws
    • Necessary in order to create law which meets modern conditions.
  • Executive –
    • Carrying on of government according to law
    • Framing of policy
    • Choice of the manner in which the law may be made to render that policy possible.
  • Judicial –
    • Interpretation of the law
    • Its application by rule or discretion to the facts of particular cases.
  • The categories tend to be blurred. For example, the Constitution requires the executive to be members of the legislative.
  • Complete separation of powers would bring government to a standstill.
  • What the doctrine must be taken to advocate is the prevention of tyranny by the conferment of too much power on any one person or body, and the check of one power by another.

Gerald Carney - Separation of Powers in the Westminster System

[12] There is no current constitutional system which has complete separation of powers.

  • The strict doctrine is only a theory – gives way to the realities of government where some overlap is inevitable.
  • Whilst this overlap exists, a system of checks and balances has developed.
  • The naming of the three first chapters of the Australian Constitution (The Parliament, The Executive Government, The Judicature) implies this separation of powers.

The overlap mentioned is the fact that in the Westminster system, ministers (executive) are required to sit in Parliament (legislative). This is to adhere to the concept of Responsible Government. This is also present in the Australian system, as according to s 64 of the Constitution.

Supplementary Materials

USG notes: we have not been able to complete summaries for the supplementary materials yet. Please make sure you read them on your own. If you have notes on this information, PLEASE help us out by sending it to us at info@unistudyguides.com or by contacting us here.

End

This is the end of this topic. Click here to go back to the main subject page for Federal Constitutional Law.

References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. The Constitution, s 128
  2. Textbook, pp. 1-3
  3. Textbook, pp. 3-8
  4. 5 US (1 Cranch) 137 (1803)
  5. JR Lucas, The Principles of Politics, in Textbook, pp. 6-7
  6. 31 US (6 Peters) 515 (1832)
  7. 349 US 294 (1955)
  8. (1951) 83 CLR 1
  9. Textbook, pp. 8-12
  10. Baron de Montesquieu, The Spirit of the Laws, (transl Thomas Nugent, Hafner Press, 1949) in Textbook, p. 9
  11. Owen Hood Phillips and Paul Jackson, Constitutional and Administrative Law, (Sweet and Maxwell, 7th ed 1987) in Textbook, pp. 9-10
  12. Gerald Carney, "Separation of Powers in the Westminster System" Legislative Studies (Vol 8, No 2, Autumn 1994), 59 in Textbook, pp. 10-1
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