The constitutional framework of the states and the move to independence

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This article is a topic within the subject Introducing Law & Justice.

Contents

Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 183-206 (Chapter 8).

Introduction

In this chapter, we look at the operation of parliaments in the States as they developed from the governments of each colony in the early years of Australia's self-governance.

Constitutional framework of the States and the relationship with Britain

[1] This section deals with the early relationship between the colonies and the Imperial Parliament.

  • By 1860, the colonies (except WA) ran like Britain. The governor represented the Monarch; parliament had two houses; government was formed in the lower house and the upper house was a check on it and the laws of repugnancy inhibited parliament’s legislative freedom.
    • However the colonies passed legislation ahead of Britain, such as suffrage legislation in South Australia.
  • Furthermore, the colonies set up bicameral systems (two Houses).
  • However, these constitutional arrangements were still initially subservient to Britain.

Underlying principles of the Parliament

[2] There were three doctrines that the constitutional framework of the states was based on (as inherited from Britain):

  1. Doctrine of Parliamentary Sovereignty
    • This doctrine was famously coined by AV Dicey to mean that parliament has 'the right to make or unmake any law [3]. It also meant that no court could question this right OR question the validity of a law.
  2. Doctrine of Responsible Government
    • This doctrine says that ministers are to be held responsible for their personal acts and the conduct of their department. They are then responsible to the Parliament, who are responsible to the electors
  3. Independent Judiciary
    • The Judiciary was created completely independent to the Parliament (in the same way as per the Separation of Powers doctrine in a federal context).

Bicameralism

[4] Bicameralism means that there are two houses of parliament. This originates from Britain with the lower, elected House of Commons and non-elected, hereditary House of Lords (the Upper House).

  • In NSW the lower house is the Legislative Assembly and the upper house is the Legislative Council.
  • Federally we have the House of Representatives and the Senate.
  • Queensland is a unicameral system without an upper house due to excessive conflicts in passing Bills in 1915 leading to the abolishing of the Legislative Council.
  • The benefit of having a bicameral system is that it allows for a "review" of Bills before they are made into law. The function of the lower house is to draft the Bills, which are then voted on. If it passes in the lower house, the upper house still has veto power to send it back to the lower house if they believe it needs to be adjusted. In this way the upper house acts as a safeguard to potentially politically motivated laws where one party usually has a majority in the lower house, since it is usually rarer to have a large majority in the upper house.

Powers of the Parliament

[5] The true roots of parliamentary power lie in the 1688 Bill of Rights - in England, when parliament won the civil war, the issue was whether parliament could bind itself.

  • It was easier in Britain for parliament to be immune from the courts because there was no written constitution - in Australia, however, the parliaments had written constitutions and the courts could scrutinize it.
  • State governments gave parliament the ability to make laws for the ‘peace, welfare and good governance’ of the State - the debate is about what this phrase means, although the courts have held this is a grant of plenary (unlimited) power.

Limiting the Power of the States

[7] Until 1986, State Parliamentary power was restricted by the Commonwealth constitution, the Colonial Laws Validity Act (UK) from 1865 which effectively made the Governor reserve some bills and take it past the British government first.

  • In 1907, the Australian States Constitution Act 1907 (UK) set out how British parliament could disallow colonial legislation. This essentially meant that the British Parliament had the ultimate authority - it could disallow colonial legislation.
  • In 1926, the Balfour Declaration was made, declaring that dominions were autonomous rather than subordinates and that the governor was no longer an agent of the British crown. Now, the dominion government had full power to enter treaties, with the Crown acting on the advice of the dominion government.

Changing the Constitution - Manner and Form Restrictions

[8] Manner and form restrictions are the most important ways that parliamentary sovereignty is held in check so as to avoid an abuse of legislative power.

  • The States are said to have flexible Constitutions, since they can be changed through a normal piece of legislation, rather than needing a referendum as per changing the Federal Constitution. However, the major restrictions on changing the constitutions in the states comes through manner and form restrictions of s5 of the Colonial Laws Validity Act 1865 (Imp) (as upheld in s6 of the Australia Act 1986 (Cth) which refer to specific procedural requirements that must be adhered to in order to change/make laws. An example would be where a provision in a law states that in order to repeal the law, there must be a referendum. In this way, ONLY a referendum can repeal the law.
    • A question one may ask is then, why wouldn't the government of the time repeal the provision giving the manner and form restriction and thus repeal the law without further restriction? The answer is that in many cases there is double entrenchment to also protect the restricting provision through a manner and form provision by noting that any change to the section must be via a certain procedure. For example, consider s7 of the NSW Constitution, which in (1) gives the manner and form restriction, then in (6) entrenches the provision itself.

NB: As mentioned above, When the Australia Act severed ties with the Colonial Laws Validity Act, it made sure to reinstate the ‘manner and form’ proviso in s6, which also expresses that non-compliance will mean that the law “shall be of no force or effect”, which invalidates the effect of the law, but still allows the State Parliament plenary power to enact the law. Thus after 1986, we use the Australia Act for manner and form.

Moving Towards Independence

[10] As time passed, Australia's legal system became more and more independent.

  • In 1931, the British Parliament passed the Statute of Westminster which claimed that no law of England would be directly applied unless it was explicitly requested by Australia. This was adopted by the Commonwealth via the Statute of Westminster Adoption Act 1942 (Cth); however the States did not adopt this act and thus remained bound by the Imperial laws.
    • Another limitation of the states was the use of the Privy Council in London as the final court of appeal - it was the ultimate arbiter of common law for Australia.
  • In 1968, appeals from all courts exercising federal jurisdiction was terminated under the Privy Council (Limitation of Appeals) Act 1968 (Cth), which was expanded in 1975 in the Privy Council (Appeals from the High Court) Act 1975 (Cth) to include all from the High Court of Australia other than s74 certificate matters (matters between the States and Federal Government).
  • In 1978, the High Court considered whether it would be bound by the Privy Council in the famous case Viro v The Queen [11].
  • Despite this case, it was still theoretically possible to appeal to the Privy Council - this, along with the doctrine of paramount force, meant that before the states could be seen as truly independent of the UK, something would need to be done.
  • All this thus led to the final detachment from Britain in the Australia Act 1986 (Cth) with the simultaneous acts in the States and the British Parliament. The Australia Act can be seen here.

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, pp. 185-199
  2. Textbook, pp. 185-187
  3. AV Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed,1962 Reprint,p 39.
  4. Textbook, pp. 187-188
  5. Textbook, pp. 188-192
  6. (1988) 82 ALR 43
  7. Textbook, pp. 192-193
  8. Textbook, pp. 193-197
  9. (1931) 44 CLR 395
  10. Textbook, pp. 200-206
  11. (1978) 141 CLR 88
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