Federation to Popular Sovereignty

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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. 122-127 (Chapter 3, section 3); 206-211 (Chapter 5, section 2); 127-131 (Chapter 3, sections 4-5 to ten lines from bottom of 131); 141-150 (Chapter 3, sections 7-8).

Federation

Road to federation

[1]Bicameral legislature and responsible government emerged in the colonies by 1855. The movement towards federation came from Britain’s Colonial Secretary, Earl Grey, who tried to introduce a Bill which later became the Australian Constitutions Act 1850.

Reasons for and against federation

  • Economic - Tariff issues:
    • Removal of inter-colonial tariffs could improve trade.
    • However, NSW in favour of free trade, whilst Victoria favoured protectionist tariffs to help ailing sectors following the gold rush. The complications associated with tariffs were that they were a large source of income for the states.
  • Political - Distribution of population:
    • There was a disproportionate distribution of the population.
    • Smaller colonies feared being politically overpowered by the larger.
    • Larger colonies feared having to subsidise other smaller colonies.
  • Security - Fear of common enemies:
    • Expansion of German and French powers in the South East Asia Pacific region was feared.
    • Federation would increase the colonies’ security via a national defence force.
  • Services:
    • Federation would entail better access to telegraphic services, roads and mail, and immigration services.

Model of government

By the 1890’s, a series of conventions were held where comparative models (Canada, US, Switzerland) were examined. The Constitution of Australia combined the American concept of a Senate (which represents the States equally) with the Westminster system of government by which the government (with its ministers sitting in Parliament), need to maintain a majority of seats in the elected lower House (which represents the overall population).

Appeal rights

The UK insisted wanted to retain the appeal rights (appeal to the Privy Council for High Court decisions). It was ultimately decided that in Constitutional matters, interpretation would be limited to the High Court, while other matters could be appealed to the Privy Council. However, the Federal Parliament could limit the matters upon which such an appeal would be allowed.

Individual rights

[2]Andrew Inglis Clark (Tasmanian Attorney-General) attempted to establish a Bill of Rights based on the 14th amendment of the US. Whilst a Bill of Rights was rejected, he did secure the inclusion of s 80 (trial by jury) and s 116 (freedom of religion) in the Constitution. He also pushed for an inclusion of a provisio based upon the 14th amendment of the US Constitution (what would be s 110), which resulted in the more limited s 117 (protection from laws that impose a disability or discrimination based on State residence).

George Williams[3] described the refusal of the delegates to include s 110, or a Bill of Rights:

  • Theoretical reasons:
    • Dicey’s argument that civil liberties can be adequately protected through the common law and political processes without the incorporation of guarantees of rights in a written constitution.
    • Inclusion of a Bill of Rights would reflect poorly upon Australia’s civilization – these rights are self evident, a Bill of Rights would be like saying ‘murder is illegal’.
  • Real reason:
    • Delegates wanted to retain the States’ power to discriminate on the basis of race
    • “The debate on clause 110 undermined any pretence that the framers were generally concerned to foster human rights.
    • “Their intention was in fact the opposite: to ensure that the Australian Constitution did not prevent the colonies…from continuing to enact racially discriminatory legislation.[4]
    • Quoting the Premier of Western Australia: “there is a feeling all over Australia against the introduction of coloured people.[5]

Creation of the Federation

The Australian nation was created as a federation on 01/01/1901. The main tenets of the Constitution were highlight by the Constitutional Commission[6]:

  • Borrowed elements from the US Constitution:
    • Both a Federal Government and State Governments, each with its own governmental institutions.
    • A distribution of authority between Federal and State Governments.
    • A judicial authority appointed by the Federal Government to provide judicial review of powers.
    • The supremacy of federal laws over State laws in cases of inconsistency.
    • The entrenchment of these features in a rigid framework that is difficult to alter.
  • The Constitution also reflects its Federal nature:
    • Fair and equal treatment of states by the Federal government states
    • Fair treatment of inter-state citizens.
    • Equal representation in the Senate.

Benefits of Federalism

[7]Federalism secures democracy and human rights through the notions of voice and exit.

  • Voice: It is easier for individuals to participate in the small political units that make up a federation rather than a massive unitary government.
  • Exit: if an individual is dissatisfied with his treatment by a State government, he can simply go to another State.

A few more issues were pointed out by Brian Galligan and Cliff Walsh[8]:

  • For the most part, the Australian founders focused more on the practical issue of getting the support of all the colonies rather than a detailed exposition of federalism and its advantages. However, this is not to say the Constitution is thus void of such consideration.
  • Federalism provides a robust constitutional system that anchors pluralist democracy – enhances democratic participation through a dual citizenship (State and Federal).
  • Federalism enables the national strength of a large nation to be added to the enhanced participatory qualities of small democratic States.
  • The justification for having States does not depend on them producing different policies to one another – this doesn’t derogate from the inherent value of enhanced democratic participation.

Other benefits include:

  • Division of powers guarantees the government will not become too large or oppressive. Rival levels of government, each with their own democratic franchise, set a major barrier to the concentration of political power in too few hands.
  • Federalism also provides a check on ‘unconstitutional’ exercises of power outside the right of a Parliament to legislate.
  • The slowness of legal decision-making processes places an emphasis on the concept of ‘due process’, limiting arbitrary action by the Parliament.
  • Citizens of federal states have more remedies and political resources to draw upon (appeal to the High court etc).

Criticism of Federalism’s ability to protect human rights

[9]

  • The defences mentioned about are lacking evidence – no cases were cited.
    • The defence of states’ rights has hardly provided a theme for those concerned with the rights on indigenous.
  • The defences mentioned above confuse individual rights with those of the states.
    • Most intergovernmental conflicts meant limitations on power of the state government.

Evolution of federations

[10]Federations always evolve. They can evolve in two ways:

  • Centripetal – towards the centre, more power to Federal Parliament
  • Centrifugal – away from the centre, more power to component States.

The evolution of the Australian federalism has generally been centripetal, with the Commonwealth Parliament acquiring more and more power. This has usually been because the High Court has determined that the Commonwealth Parliament needs more power in order to meet national needs, especially during times of war.

The centripetal evolution has often been criticised. However, there have been opinions that it should be taken further[11]:

  • If national Parliament is to resolve problems that states can’t handle (as Australians seem to want), constitutional change is needed.
  • Commonwealth Parliament needs to be able to make general laws rather than just specific.
  • This wouldn’t diminish power of States, unless they have been operating poorly.
    • No sensible government would want to interfere with a State that’s running well.
    • But if a State is not operating well, and going from bad to worse, why shouldn’t the Commonwealth government be able to intervene?
  • This would be less undemocratic than State governments appointing administrators to run dysfunctional councils.

Independence

Remnants of the Colonial Legacy

[12]The creation of Australia through the passing of the Commonwealth of Australia Constitution Act 1900 (Imp) did not legally facilitate Australia’s independence from the British Parliament. True, British law was no longer automatically received into Australia, yet the colonial legacy continued to place limits on the act through the doctrines of repugnancy and extraterritoriality.

Repugnancy

[13]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 Constitution Act impliedly repeals the Colonial Laws Validity Act when there is an inconsistency.

However, The High court decided that the repugnancy doctrine continues to apply in Union Steamship Co of New Zealand v Commonwealth[14]:

  • Provisions of the Navigation Act 1912 (Cth) were invalid through repugnancy to the Merchant Shipping Act 1894 (Imp).
  • This conclusion was reached despite s 98 of the Constitution.

The decision in Union Steamship is odd considering that, a couple of months earlier, the court took a different view in Commonwealth v Limerick Steamship Co Ltd[15]:

  • s 39(2) of the Judiciary Act 1903 (Cth) (excludes the possibility of appeals to the Privy Council in constitutional cases) was valid.
  • It was not repugnant to Judicial Committee Act 1844/Australian Courts Act 1828 (Imp) because the power to enact s 39(2) was conferred by the Commonwealth of Australia Constitution Act (Imp).
  • Applied the law of “assuming two imperial enactments conflict, the later must prevail”.

This ruling meant that whenever there is an Imperial statute which gives rise to repugnancy, it will be impliedly repealed (to the extent of its inconsistency with the grants of power in the Commonwealth Constitution). Effectively, this means the repugnancy doctrine has ceased to apply to Australia.

The question arises, why then did this reasoning didn’t apply in Union Steamship Co of New Zealand v Commonwealth? An explanation was attempted in Commonwealth v Kreglinger & Fernau Ltd (Skin Wool Case)[16], which also dealt with s 39(2) of the Judiciary Act 1903 (Cth):

  • Regulations dealt with in Merchant Shipping Act 1894 (Imp) applied to non-Australian ships, whereas the issue of s 39(2) is concerned with purely Australian affairs.

Extraterritoriality

[17]There are two interpretations of the doctrine of extraterritoriality:

  • Broad: An exercise of colonial legislative power is invalid unless its operation has sufficient connection with the geographical area of the legislating colony.
  • Narrow: A colony’s laws can never have any operation outside its territorial borders.

As colonies of the British Empire, Parliaments had no extraterritorial legislative functions at all. Some version of the doctrine of extraterritoriality continued to applied to the Commonwealth Parliament until the adoption of the Statute of Westminster 1931 (UK), and to the State Parliaments until the adoption of the Australia Act 1986 (Cth).

The orthodox view regarding the extraterritorial power is mentioned in Hodge v The Queen[18]:

  • Local legislature is supreme within its limits of subjects, with the same authority as the imperial Parliament would have under like circumstances.
  • The question becomes how far the law-making power can extend beyond its geographical borders.

Under international law, a state can sometime legislate extraterritorially (i.e. Crimes (Child Sex Tourism) Amendment Act 1994 (Cth) permits prosecution of Australians for offences committed outside its borders). It should also be noted that s 51 of the Constitution impliedly confers the power to legislate extraterritorially (i.e. s 51 (i) provides a power to make laws regarding “trade and commerce with other countries”).

Statute of Westminster

[19]The Statute of Westminster 1931 (UK) was a landmark of national independence. s 2 freed the Commonwealth Parliament (but not the State Parliaments) from imperial restrictions by excluding the operation of the Colonial Laws Validity Act and thereby the repugnancy doctrine and the doctrine of extraterritoriality. True, s 4 empowered the British Parliament to legislate for Australia, but only with the “request and consent” of the Commonwealth Parliament.

s 10 provided that the act did not apply automatically to Australia. Australia eventually adopted it through the Statute of Westminster Adoption Act 1942 (Cth), which backdated the adoption to 1939 (start of WWII).

The Australia Act

[20]The Australia Act 1986 (Cth) was finally severed all legal ties with the UK. It completely ended the application of Imperial laws to the Australian States and:

  • s 1 – ended the ability of British Parliament to legislate for Australia
  • s 2 – removed the doctrine of extraterritoriality for the State Parliaments
  • s 3 – removed the doctrine of repugnancy for the State Parliaments
  • s 11 – completely removed the ability to appeal to the Privy Council

In Sue v Hill[21], the High Court decided that the UK retains no residual influence upon legislative, executive or judicial processes in Australia – it is considered a ‘foreign power’:

  • Legislative:
    • s 1 of the Australia Act 1986 (Cth) severs legislative links between the UK and Australia.
    • This section is well within the powers of the Commonwealth Parliament, by virtue of s 51(xxxviii) of the Constitution.
  • Executive:
    • UK has admitted that it would be against constitutional practice for British ministers to tender advice to the Crown for the appointment of Australian ministers (as was once the custom) – no executive influence.
    • Executive UK decisions, such as entering military alliances and acceding to treaties have no legal consequence on us. Therefore, no executive influence.
  • Judicial:
    • s 11 terminated the possibility of appealing to the Privy Council.

Other effects of the Australia Act

[22]s 15 provides that the Commonwealth could ultimately amend or repeal both the Statute of Westminster and the Australia Act itself.

  • This led to the suggestion that this would allow the amendment or repeal of s 8 of the Statute of Westminster which would mean that the Constitution could be amended without a referendum. This, however, is not true.
  • Besides the fact that this superficial suggestion runs contrary to the idea of Popular Sovereignty, if the Australia Act and the Statute of Westminster did in fact have that effect, then they would be invalid because they would be inconsistent with s 128 of the Constitution.

s 6 effectively reenacted s 5 of the Colonial Laws Validity Act 1865 (imp) which allowed manner and form requirements. This issue was discussed in Attorney-General (WA) v Marquet[23].

Popular Sovereignty

Popular sovereignty is a concept which entails that the legitimacy and legal authority of a state is derived solely through the will and consent of its people.

Legal validity of the Constitution

The Australian Constitution was enacted by the Imperial Parliament and therefore it could be argued that it derives its validity through British Sovereignty.[24] Sir Owen Dixon noted that unlike the American Constitution, our Constitution “is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions.[25]

However, the opening preamble of the Constitution states that ”the people of New South Wales, Victoria, South Australia, Queensland and Tasmania…have agreed to unite in one indissoluble Federal Commonwealth…”. The preamble suggests that the political legitimacy of the Constitution was also established due to its popular approval and acceptance by the Australian people. The concept of Popular Sovereignty is also supported by s 128, which enables the Australian people to amend their Constitution, thus illustrating their sovereign power.


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References

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

  1. Patrick Parkinson, Tradition and Change in Australian Law (LBC Information Services, 2nd ed 2001) in Textbook, pp. 122-5
  2. Textbook, pp. 125-6
  3. George Williams, Human Right Under the Australian Constitution (Oxford University Press, 1999) in Textbook, pp. 126-7
  4. George Williams, Human Right Under the Australian Constitution (Oxford University Press, 1999) in Textbook, p. 127
  5. George Williams, Human Right Under the Australian Constitution (Oxford University Press, 1999) in Textbook, p. 127
  6. Constitutional Commission, Final Report of the Constitutional Commission, (AGPS, 1988), Vol 1, in Textbook, pp. 206-7
  7. Textbook, p. 208
  8. Brian Galligan and Cliff Walsh, “Australian Federalism Yes or No?”, in Textbook, pp. 207-8
  9. James Gillespie, “New Federalisms”, in Textbook, pp. 209-10
  10. Textbook, p. 211
  11. Tony Abbott, Battlelines (Melbourne University Press, 2009) in Textbook, p. 211
  12. Textbook, p. 127
  13. Textbook, pp. 127-8
  14. (1925) 36 CLR 130
  15. (1924) 35 CLR 69
  16. (1926) 37 CLR 393
  17. Textbook, pp. 129-30
  18. (1883) 9 App Cas 117
  19. Textbook, p. 130
  20. Textbook, p. 141
  21. (1999) 199 CLR 462
  22. Textbook, pp. 143-4
  23. (2003) 217 CLR 545
  24. Textbook, p. 145
  25. Sir Owen Dixon, “The Law and the Constitution” (1935) 51 Law Quarterly Review 590 in Textbook, p. 145
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