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.