Federation as the will of the people

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


Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 207-230 (Chapter 9).


  • This chapter deals with Federation and the Federal Constitution as the will of the people. It also delves into how successful the Constitution is, along with the associated doctrines maintaining the rule of law in Australia.

Moving towards Federation

[1] Federation can be defined as a system of independent political communities that coordinate and resolve to form a common government to solve national problems. It is a partnership in government with a central authority to look after national and international issues and for localised governments to examine local issues.

  • The Australian Constitution which created the Federation came out of a referendum; however there was long argument prior to this when in 1880 Henry Parkes, then Premier of NSW, put forward idea of a Federal council.
    • In 1889, he made a speech to call for central parliament, a PM and a cabinet rather than a Federal council - from here he was known as the Father of Federation.
  • The mentality for federation was cultivated by:
    • German annexation of New Guinea (a defence issue, it is easier to defend as a whole nation than as individual states),
    • trade concerns,
    • immigration issues in trying to limit who could come to the colonies (there was a sense racism - Gold Rush and focus on Chinese) and
    • a growing sense of uniform national identity.
  • The 1891 convention was attended by NZ also and a constitution was formed which later lapsed - NZ decided to leave it alone.
  • It wasn't until 1897 where the first session of National Australasian Convention drafted the Constitution, and in 1898 voters voted YES to the constitution except for NSW.
  • There was then a secret Premiers Conference in 1899 to amend it to satisfy NSW and Queensland - a second referendum was held and everyone voted yes.
    • delegates were sent to ask the imperial parliament to pass the constitution as an act for Australia, since only Britain could do so as the ultimate authority over all the colonies.
  • The Australian Constitution, and thus the Federation came into effect January 1 1901.

The Right to Vote in Australia

[2]The right to vote federally originated from the right to vote in each state, within the Constitution this is upheld in s41. Originally, it was mainly men who could vote, women and Indigenous Australians were not given suffrage (though in SA and WA women were allowed to vote in the Federation referenda prior to Federation).

  • In NSW people living on charity were not allowed to vote - this excluded Aboriginal men who lived on reserves who would otherwise have been allowed to vote.
  • Queensland specifically restricted Aboriginals from voting but allowed half-castes to vote
  • Western Australia specifically restricted it.
  • In South Australia, there was no specific restriction, but there was a requirement for any voter to have resided in a certain area for a certain period of time.
  • After Federation, the Commonwealth Parliament came about and passed the Commonwealth Franchise Act 1902 (Cth), providing for universal adult suffrage for elections, but no aboriginal natives could be placed on the electoral roll. Therefore, women had gained the right to vote in Federal elections' (though not necessarily state elections - it took years for all the states to grant suffrage).
    • Woman suffragists included Rose Scott, who became secretary of the Woman Suffrage League. These suffragists campaigned for the right to vote in both the States and the Federal elections.
    • Interestingly, the when women received the right to vote, under s16 and s34 of the Constitution, this also meant that women had the right to stand for election. This is confirmed in the Commonwealth Electoral Act 1918 (Cth).
      • • Edith Cowan was the first woman to be elected to Parliament.
  • Indigenous people had to wait until 1962 when the Commonwealth Electoral Act 1962 (Cth) gave all Indigenous People the right to vote.

The Federal Constitution

The Relationship with Britain

[3] Despite the signing of the Constitution, Australia was still a dominion of Britain under the Colonial Laws Validity Act 1895 (Imp). This can easily be seen in the fact that the Constitution is an Imperial act: Commonwealth of Australia Constitution Act (UK). However, after the adoption of the Statute of Westminster, in 1942 there was the severance of control of the Imperial Parliament, at which point the Constitution became the central reference point.

Power and the Constitution

[4] The Constitution is the most important legal document in giving the framework of the legal system, as well as defining the power given to the government.

  • The Federal Constitution sets out powers and limitations of government - it doesn’t actually mention a PM or a cabinet, but sets up a Federal Executive Council to advise the Governor General, and provides for ministers to sit in parliament. This has been interpreted in a way that has defined our modern political system.
  • It set up a senate (upper house) modelled on the American Senate, designed to protect state interests by originally providing six seats for each state to try and make sure the more populous states would not dominate policy decisions
  • The first three chapters of the Constitution imply the doctrine of the Separation of Powers with the three heads being ‘The Parliament’, ‘The Executive Government’ and ‘The Judicature’.
    • In R v Kirby (the Boilermakers' case) [5] the High Court said that: 'The Consitution...is based on a separation of the functions of government, and the powers which it confers are divided into three classes...'. This means that each head should not interfere with the other heads of government - though due to the diluting of American and British systems, there is a intertwining of the executive and the legislature in the fact that the government (executive) remains in the legislature. The real separation is between judicial and other powers such as administrative powers.
  • Another prominent limitation of power is the Westminster based doctrine of responsible government.

Commonwealth and State Powers

[6]The Federal Constitution divides power between Federal and State levels - state powers are limited by s106 and s107 and Commonwealth powers are defined (and thus also limited by) s51.

  • Commonwealth powers are specific,that is, the Commonwealth can ONLY legislative under the powers conferred to it by s51. On the otherhand, as mentioend, the states have plenary power, state powers are general - a product of their desire to remain autonomous.
    • However, most of the specific powers of the Commonwealth are concurrent to state powers, so that the state can legislate for these issues also. However, some, called exclusive powers are completely restricted (such as customs and excise issues, defence issues and coining money - see s114 and s115). Furthermore, where state legislation is inconsistent with that of the Commonwealth, the Commonwealth legislation will prevail (s109.
    • The balance of power over the 20th century has shifted towards the commonwealth.
  • The Commonwealth has some powers that aren’t subject-specific, such as ability to make tied money grants to states on individual terms (s96).
  • All powers which lie with the States and not with the Commonwealth are called residual powers.

Rights in the Constitution

[7]Remarkably, the Constitution protects almost no rights at all.

  • s41 seems to give a right to vote; however it has been determined in cases such as R v Pearson [8] that this section is now obsolete - it only applied to people who were over 21 and entitled to vote in their state in 1902. It does not protect the right to vote today.
  • The right to trial by jury appearing in s80 has been read down to be almost no right at all as per R v Archdall and Roskrug; ex parte Carrigan v Brown [9].
  • s116 seems to provide a kind of protection to religious tolerance when talked about the ‘free exercise of any religion’. However this has only been held to apply to the Commonwealth, not the States.
  • s117 guarantees equal treatment of state residents.
  • s51 (xxxi) provides the need for 'just terms' for the Commonwealth to acquire a citizen's property.
  • The Australian Capital Territory (ACT) has become the only Australian jurisdiction to enact a Bill of Rights for its people, outlining fundamental values.
  • Some rights are seen to be implied within the Constitution, such as the implied right of political free speech in Nationwide News Pty Ltd v. Wills [10] and Australian Capital Television Pty Ltd v. Commonwealth [11]. This was confirmed in Lange v Australian Broadcasting Corporation [12].

Changing the Constitution

[13] As dealt with in the previous chapter, changing the Constitution involves 'manner and form' restrictions.

  • The Federal Constitution provides a manner and form provision for changing any part of it. s128 requires that a majority of the electors in Australia as a whole and in a majority of States have to vote for the change, making the Federal Constitution a particularly rigid.
    • An example of the rigidity of the Constitution can be seen in the referendum for Australia becoming a republic. Issues about whether Australia should become a republic rather than a constitutional monarchy arose and in 1999 there was a referendum. A total of 45% answered yes to the actual question and 42% answered yes to the preamble regarding the Governor General being replaced by President. Since this was not a majority, the law was not passed.

Federalism in Action

[14] It has been noted that parliamentary sovereignty and responsible government are the main doctrines restaining abuse of power in a state system, and the separation of powers performs a similar role at a Federal level. However, since state courts exercise federal jurisdiction, it shows that the separation of powers does not operate in the state domain. This issue arose in both Kable v Director of Public Prosecutions (NSW) [15] and Fardon v Attorney-General for the State of Queensland [16].


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. 207-210
  2. Textbook, pp. 210-214
  3. Textbook, pp. 214-215
  4. Textbook, pp. 215-216
  5. (1956) 94 CLR 254
  6. Textbook, pp. 216-217
  7. Textbook, pp. 217-218
  8. (1983) 152 CLR 254
  9. (1828) 31 CLR 128
  10. (1992) 177 CLR 1
  11. (1992) 177 CLR 106
  12. (1997) 189 CLR 520
  13. Textbook, pp. 218-220
  14. Textbook, pp. 220-230
  15. (1997) 189 CLR 51
  16. [2004] HCA 46
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