Published on 23/05/2007

The Commonwealth Parliament

5.1 Description

The federal movement

· There were a number of pressures that pushed Australians towards a federal system, a system which would graft new, national, political institutions onto the existing and separate colonial structures.

· Few ppl believed that a single, central govt was practicable because Australia was vast, her population was thinly distributed, and communication systems were not well developed.

· Australian constitution needed to be voted for - only 2nd constitution in the world to come into effect on a basis of a referendum of its ppl.

· In 1899 a secret Premiers Conference amended the constitution - all states voted yes, the next year delegates went to London to ask the Imperial Parliament to pass the constitution as an Act for Australia, British parliament passed the Act, Queen Victoria gave Royal Assent and it came to be in 1901.

· According to s 1 of the Commonwealth Constitution, the Parliament of the Commonwealth consists of the Queen, the senate and the House of Reps. The senate is to ‘be composed of senators for each State, directly chosen by the ppl of the state’; while the House of Reps is to ‘be composed of members directly chosen by the ppl of the Commonwealth’.

5.2 Structure
5.2.1 Queen and Governor-General

The Crown

· The powers of the Queen under the Commonwealth Constitution are exercised by the Governor- General for practical purposes.

· Described in s 2 of the constitution as ‘Her majesty’s representative in the Commonwealth’, capable of exercising those powers which the ‘Queen may be pleased to assign to him’ - many powers are expressly vested in the Governor-General by the Commonwealth Constitution:

- S 61: ‘the executive power of the Commonwealth … is exercisable by the Governor–General as the Queen’s representative’.

· Some functions which only the Queen might exercise include:

- The formal appointment of the Governor-General: s 2

- The ‘disallowance’ of legislation passed by the Commonwealth Parliament: s 59

- The withholding of Commonwealth bills or reserving them for assent: s58

- The giving of assent to legislation which must, under the Constitution, be ‘reserved for the Queen’s pleasure’: s 60

· s 74, refers to the only class of legislation which must be so reserved; any legislation which would limit appeals from the High Court of Australia to the Privy Council - though with the passage of the Privy Council (Appeals from the High Court) Act 1975 (Cth), no such appeals may be taken without a certificate of the High Court in which it has indicated that it will not issue such a certificate: Kirmani v Captain Cook Cruises Pty Ltd (1895); this constraint has ceased to have ant practical operation.

· Apart from those exceptions, the governor-general deals with most part routine functions of the Crown -Queen’s official secretary in 1975 indicated that the Queen would not intervene in the constitutional crisis immediately after 11 November 1975.

5.2.2 Senate

* s 7 and 24 of the Commonwealth Constitution (and several associated provisions) appear to assume that senators and members of the House represent the States or the people of the States.
* In 1922 the Parliament legislated to allow the Northern Territory one member of the House of Reps, a member with no right to vote in any of the House’s proceedings.
* That member was given a limited vote in 1936, and a similar representation was allowed to the ACT in 1948.
* The two Territory members voting rights were extended to full voting rights in 1966 (for ACT) and 1968 (for the NT).
* In 1973 the ACT was given a second member, also with full voting rights, and in 1974 legislation was passed through the double dissolution procedure (that is, despite the opposition of the senate) giving each Territory two senators with full voting rights.
* Validity of this legislation was upheld by the High Court in Western Australia v Commonwealth, the First Territorial Senators case, and in Queensland v Commonwealth, the Second Territorial Senators case.

First Territorial Senators case

* It found adequate constitutional support for the legislation in s122 of the Clth Constitution, which authorises the Cmlth Parliament to “allow the representation of [a] Territory in either House of Parliament to the extent and on the terms to which it thinks fit”.
* Mason J found, apart from s 122, ‘overwhelming force’ in the argument that s 7 and associated sections of the Constitution indicated ‘that the Senate is a States’ house and that a senator is necessarily a senator from a State’ - s 24 had similar force in argument indicating that the House of Reps was to consist only of members from the states - s 122 was clear and to read it down so as to preserve the character of the Senate as a States’ house would ‘deprive the s122 power of significant content. Notwithstanding the wide and general words by which it is conferred’.
* Mason J said, the solution to the apparent contradiction between s 122 and ss 7 and 24 was to see ss 7 and 24 as interim provisions, prescribing the composition of the two houses until the Parliament decided to allow representation to a Territory under s 122, a reading which would give authority to ‘the course of constitutional development’.
* Murphy J held that the “fundamental constitutional doctrine” of democracy demanded the result of the case: “ It is contrary to the democratic theme of the Constitution that Parliament should be not be able to allow representation by membership in either House to Territories at the time and on the terms which the Parliament considers appropriate”.
* On the other hand, the minority justices stressed the fundamental character of s 7 of the Cmlth Constitution, and its associated provisions - the senate was intended to be exclusively composed of senators from the states.
* Minority gave s 122 a restricted reading, and would have allowed the Clth Parliament to legislate only for the representation of the Territories in the Senate by non-voting representatives.
* Geoffrey Sawer stated, ‘the practical reality is that the senate is an instrument in the hands of the parties in the Parliament as a whole’.
* The decision in the First Territorial Senators case may have sanctioned no fundamental change in the nature of the Senate; though it did allow, at the elections of 13 December 1975, the size of the senate to grow from 60 to 64 senators; but of the four newly created places, two were won by the new government and two by the opposition.
* Under the single transferable vote system (proportional representation), a party would need to gain two-thirds of the votes cast, plus one vote, to win both Senate places in a Territory - the Senate (Representation of Territories) Act 1973.
* However, the decision might threaten the longer term integrity of the Senate - if the Cmlth Parliament has a complete discretion to add Territory representatives, it could provide more than the modest number of reps specified in current legislation.
* s 57 provides for the passage of legislation despite the opposition of the Senate, that section also provides a political safeguard, in the form of a dissolution of and a general election for both houses.

Second Territorial Senators case

· Territory representation in the Senate (and, as a corollary, in the House of Reps) must now be regarded as entrenched, following the High Court’s decision in Queensland v Commonwealth, the Second Territorial Senators case - majority of court refused to overrule the First Territorial Senators case.

5.2.3 – House of Representatives

· Disagreement between the two houses of the Commonwealth Parliament is designed into the systems for their election - senators are elected for terms of six years (s 7 and 13), members of the House of Reps for a maximum of three years (s 28). Half the members of the Senate are elected every three years (s 13), while elections for the House of Reps may be held at any interval that does not exceed three years from the House’s first meeting following the last election (s 28).

· The original states given equal representation in the Senate (thus devaluing the degree of representation afforded to voters in the large States) (s 7), but the members of the House of Reps returned from the States are “in proportion to the respective numbers of their people”(s 24).

· s 24 also states that each state cannot have fewer than 5 electorates, and therefore elected members, no matter how low its population may fall.

· In the Senate, the representation for the states is equal regardless of population - there are currently 147 members of the Lower House, a figure which has increased periodically owing to the fact that s 24 of the constitution requires that the number of state members be twice that of the Senate.

· The method of election for the house is by the preferential voting system.

· The political composition of the two houses is likely to reflect quite different electorates, with the state reflecting a distribution of political interests several years older than that reflected in the House and skewed towards the political values of the smaller States.

· Prospect of conflict has been heightened by the Parliament’s adoption of different electoral systems: the House is elected on the basis of single member electorates, while the senate is elected on the basis of state-wide proportional representation.

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5.3 Legislative powers
5.3.1 Enumerated specific powers

* The Commonwealth legislature are set out in s 51 – they are specific powers rather than general ones, although even these specific powers have been expressed with some generality.
* They should be contrasted with the powers of state parliaments which are general rather than specific - this is a product of the desire of the states to remain autonomous.
* The specific powers of the Commonwealth are those which the founders at the time thought were important for the central gov’t to have - few are exclusive to the Commonwealth, rather they are ‘concurrent’ powers in that both states and Commonwealth may legislate in these areas.
* The constitution can restrict some state powers:

- s 90: states cannot make legislation which imposes customs and excise.

- s 114: nor can they raise defence forces without the Commonwealth Parliament’s consent.

* Over the 20th Century, the balance of power between states and Cmlth has gradually shifted to Cmlth.
* States can make legislation about almost anything, where the Commonwealth has a specific power and makes legislation which is inconsistent with state legislation, s 109 of the constitution provides that the state legislation must give way to the extent of the inconsistency.
* s 53 declares that the Senate may not amend “proposed laws imposing taxation”, nor will they originate in the Senate - outlines a notion that the lower house of parliament is to be superior to the upper house in financial legislation. A problem is the omission from s 53 of any expression of the Senate’s power to refuse to pass financial legislation as this section also declares that the Senate has equal power with the House of Reps “in respect of all proposed laws”, except as provided in s 53.
* s 54 and 55 express rules against ‘tacking’, designed to protect the Senate against exploitation of its limited powers over certain categories of financial legislation.
* Whereas all appropriation legislation must originate in the House of Reps after a message of recommendation from the Governor-General (ss 53 and 56), it is only an appropriation bill for the ordinary annual services of the Government which is beyond amendment by the Senate and which must not contain any extraneous matter (ss 53 and 54).
* s 57 authorises the Governor-general to “dissolve the Senate and the House of Reps simultaneously” where the preconditions described by the section have been met and the life of the House of Reps is not due to expire within the next 6 months - In the words of the provision, the preconditions to a double dissolution of House and Senate are:

- if the house of reps passes any proposed law, and

- the senate rejects or fails to pass it, or passes it with amendments to which the House of Reps will not agree, and

- if after an interval of 3 months the House of Reps, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and

- the senate rejects or fails to pass it, or passes it with amendments to which the House of Reps will not agree…

* s 57 is a provision which allows for the passage of legislation on which the two houses are ‘deadlocked’ if the govt of the day is prepared to risk its life in a general election; a provision which has be used once (1974) to achieve the passage of such legislation; and a provision which has more frequently been used by the govt as a means (or an attempted means) of gaining control of the Senate.

5.3.2 Exclusive and concurrent powers

* s 106 and s 107 confirm existence of the states but make it clear that they are bound by the constitution.
* s 109 outlines that if there is an inconsistency between state and cmlth legislation, state legislation must give way to the extent of the inconsistency.
* When the constitution was drawn up, the intention was to allow the Cmlth Government to control only a few powers like defence, customs, coinage and post and telegraph services - these were called exlclusive powers.
* The Concurrent powers were to be controlled by both the Cmlth and the States with Federal-law overulling State law in cases of disagreement.
* Residual Powers are not in these two groups, were to be left under state control, although there have been few changes.
* There have been several changes in the way the powers are divided and shared - states have given up their powers in some fields to the cmlth, though in many fields the responsibility still rests on the states, the Cmlth’s powers to borrow and tax are leading it to play an increasingly important part.
* One of the main sources of political debate in Australia is this confusion between Federal and State powers: both sides argue about their responsibilities and often blame the other when things go wrong or do not get done.

5.3.3 Inconsistency of Commonwealth and State legislation

    * s 109: Where both the Commonwealth and the States enact conflicting legislation in one of these fields, the Cmlth is held to prevail under this section.

    * The function of s 109:

- Confirms the legislative supremacy of the Federal Parliament over the State Parliaments with respect to concurrent powers.

- Eliminates conflicts of law that may arise between State and Federal laws operating in the same field.

- Allows the Cmlth to determine whether it might allow State laws to operate in areas that might otherwise be the subject of Federal laws.

- “laws” in s 109 refer to the Acts of State or Federal Parliament.

    * Tests of inconsistency applied by the High Court:

- “cover the field” – A federal law evinces an express or implied intention to provide an exhaustive statement over the relevant subject matter

    * Direct inconsistency:

- Where it is impossible to simultaneously obey both State and Federal law

- Where one law takes away a right or privilege conferred by another.

    * Viskauskas v Niland (1982)

-         There is no direct inconsistency between the Commonwealth Act and the NSW Act – it is obviously possible for a person to obey both laws by refraining from committing any act of racial discrimination. However, it is now clearly established that there may be inconsistency within s 109 although it is possible to obey both the State law and the Commonwealth law.

-         According to Dixon J. in Victoria v The Commonwealth: “…if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.”

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5.3.4 Protection of individual rights under the Constitution

· The Commonwealth Constitution protects almost no rights at all - already considering the right to vote under s 41, but only to people who were over 21 and were entitled to vote in their own state in 1902: R v Pearson.

· s 116 appears to provide a kind of protection of religious tolerance:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religion test shall be required as a qualification for any office or public trust under the Commonwealth.

· However, although s 116 appears in the chapter entitled ‘states’ it has been read narrowly by the courts.

· s 117 guarantees equal treatment of state residents and s 51 (xxxi) provides for ‘just terms’ for the acquisition of property - each of these has been read narrowly and has not provided fertile ground for protection of rights.

· The ACT has recently become the only Australian jurisdiction to enact a Bill of Rights for its people - chief minister proposing the bill said: The human rights act will require all ACT laws to be interpreted having regard to the civil and political rights set out in the act. Unless a territory law explicitly overrides the human right in question, an interpretation which is inconsistent with human rights must be adopted by ACT courts, tribunals and decision-makers…

· Some rights have been implied in the constitution - such as the implied right of political free speech which the High Court held was implied in the Constitution in Lange v Australian Broadcasting Corporation (1997).

· Implied rights raise the interesting question of the restraint of power by law in a different way e.g. is it necessary to use s 128 of the constitution to remove it.

5.3.5 Commonwealth control of states’ areas of powers

· s 109- see above

· The Constitution confirms the existence of the states but makes it clear that the states are bound by it (ss 106 and 107).

· The Commonwealth does also have some powers which are not subject-specific - by s 96 the Commonwealth has the power to make tied money grants: ‘The parliament may grant financial assistance to any state on such terms and conditions as the Parliament thinks fit’.

· This allows the Commonwealth to control some things which might otherwise have been beyond their power, this takes the power of s 96 outside the limits of s 51 which is an important tool used by the Cmlth gov’t to push their policies into state boundaries.

· Some powers have extended in their scope for reasons which might not have occurred to the framers - e.g. in some cases the external affairs power has been used to support legislation which might otherwise have been seen to be outside the Commonwealth’s power: e.g. Tasmania v Commonwealth (the Tasmanian Dam case) (1983) - In the High Court, Tasmania argued that the legislation was invalid, but the Commonwealth contended that the use of the external affairs power allowed it to pass domestic laws to give effect to Australia’s obligations under international treaties. The High Court upheld the Commonwealth’s position.

· The High Court’s approach to the external affairs power has resulted in a substantial increase in the Commonwealth’s powers in relation to environmental matters.

· The paradigm of co-ordinate federalism was dismantled by the Engineers’ case - powers granted to the Commonwealth in the constitution would be interpreted more broadly, and not be constrained by considerations of what powers ought to be reserved to the States.

· Commonwealth powers were not to be read narrowly in order to preserve the historical and continued residual powers of the States, but rather read expansively – and only after doing so would the court then turn to the question of States’ residual powers.

· It opened the door to broader Commonwealth powers, indeed it has now been pushed further by a combination of principles of statutory interpretation embraced by the court.

· No matter what the motivation for a given Commonwealth law might be, and no matter that it may on closer inspection take on the characteristics of a subject matter not within the Cmlth’s jurisdiction, it may nonetheless pass the test of being “with respect to”.

· It can be seen that the Australian Federal Constitution becomes a composite construction of:

- Written document
- Unwritten convention; and
- Sometimes surprising interpretation by the High Court.

· Section 51 (xxix) of the Constitution gives the Commonwealth Parliament power to "make laws for the peace, order, and good government of the Commonwealth with respect to External affairs". This is "the external affairs power".

· This has been the most important ‘head of power’ for environmental matters over the past twenty years.

· The external affairs power allows the Commonwealth to pass laws that implement the terms of an international treaty which Australia has signed, or where the subject matter of the legislation is of ‘international concern.

5.3.5 Constitutional amendments

· The Commonwealth Constitution provides a manner and form provision for changing any part of it.

s 128 requires a majority of each house of parliament (or that the law be passed by one house twice) and then a majority of the electors in Australia as a whole and in majority of the states to vote for the change - making the Clth Constitution a particularly rigid Constitution and relatively few amendments to the Constitution have ever been passed.