Australian constitutional law#Freedom of political communication

{{See also|Constitution of Australia#History}}

Constitutional law in the Commonwealth of Australia consists mostly of that body of doctrine which interprets the Commonwealth Constitution. The Constitution itself is embodied in clause 9 of the Commonwealth of Australia Constitution Act, which was passed by the British Parliament in 1900 after its text had been negotiated in Australian Constitutional Conventions in the 1890s and approved by the voters in each of the Australian colonies. The British government did, however, insist on one change to the text, to allow a greater range of appeals to the Privy Council in London.{{cite web |url=http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_18jun08.pdf |title=The Privy Council – an Australian Perspective |author=The Honourable Murray Gleeson |author-link=Murray Gleeson |date=18 June 2008 |publisher=High Court of Australia}} It came into force on 1 January 1901, at which time the Commonwealth of Australia came into being.

The Constitution created a framework of government some of whose main

features, and sources of inspiration, were the following:{{Cite book|last=Aroney|first=Nicholas|url=https://www.cambridge.org/core/books/constitution-of-a-federal-commonwealth/E685089E543B0D14B22136FD7FEA922D#fndtn-information|title=The constitution of a federal commonwealth : the making and meaning of the Australian constitution|date=2009|publisher=Cambridge University Press|isbn=978-1-139-12968-8|location=Cambridge, UK|oclc=774393122}}{{cite book|last1=Williams|first1=George|title=Blackshield and Williams Australian Constitutional Law and Theory|last2=Brennan|first2=Sean|last3=Lynch|first3=Andrew|publisher=Federation Press|year=2014|isbn=978-1-86287-918-8|edition=6|location=Leichhardt, NSW|pages=77–88}}{{Cite news|last1=Aroney|first1=Nicholas|last2=Kincaid|first2=John|title=Analysis {{!}} Comparing Australian and American federal jurisprudence|language=en-US|newspaper=Washington Post|url=https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/12/comparing-australian-and-american-federal-jurisprudence/|access-date=2020-11-04|issn=0190-8286}}James A. Thomson, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1673&context=lawreview American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law], 30 J. Marshall L. Rev. 627 (1997)Zelman Cowan, [https://digitalcommons.law.buffalo.edu/buffalolawreview/vol4/iss2/2 A Comparison of the Constitutions of Australia and the United States], 4 Buff. L. Rev. 155 (1955).{{Cite web|last=Evans|first=Harry|date=December 2009|title=The Other Metropolis: The Australian Founders' Knowledge of America|url=https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/~/link.aspx?_id=62157B3AE2F04D79A23615AA882A326B&_z=z|access-date=2020-11-04|website=Papers on Parliament No. 52|language=en-AU}}

• constitutional monarchy (British and existing colonial models)
• federalism (United States model)
• parliamentary, or "responsible", government (British and existing colonial models)
• distinct textual separation of powers (US model)
• direct election to both Houses of Parliament (then a novelty)
• Governor-General as a representative of a monarch (existing colonial models, notably Canada)
• requirement of a referendum for amendment of the Constitution (Swiss model)
• only very limited guarantees of personal rights (rejection of the US model)
• judicial review (US model)

{{Main|Judicial review in Australia}}

The process of judicial review – the ability of The High Court of Australia to declare legislation unconstitutional and therefore invalid – has its origin in American experience, where the right of the Supreme Court of the United States to strike down legislation deemed incompatible with the Constitution was first asserted by the Supreme Court itself in the seminal case of Marbury v. Madison in 1803. Although completely foreign to both British and Australian colonial experience, the framers of the Australian Constitution clearly intended that the practice would take hold in Australia, and even expressly adverted to it in the Constitutional text (in section 76). This power of judicial review of legislation for conformity with the Constitution has been exercised almost exclusively by the High Court of Australia, and almost invariably with a full bench of all its members, such as in the Communist Party case.{{cite AustLII|litigants=Australian Communist Party v The Commonwealth (Communist party case)|year=1951|court=HCA|num=5|parallelcite=(1951) 83 CLR 1}}. See also {{cite AustLII|litigants=Pape v Commissioner of Taxation|year=2009|court=HCA|num=23|parallelcite=(2009) 238 CLR 1}}. Influence from American jurisprudence has occurred in specific cases.{{Cite journal|last=KEYZER|first=PATRICK|title=The Americanness of the Australian Constitution: The Influence of American Constitutional Jurisprudence on Australian Constitutional Jurisprudence: 1988 to 1994 |date=2000|url=https://www.jstor.org/stable/41053826|journal=Australasian Journal of American Studies|volume=19|issue=2|pages=25–35|jstor=41053826 |issn=1838-9554}}[http://www.austlii.edu.au/au/journals/UQLawJl/2007/21.pdf COMPARATIVE LAW IN AUSTRALIAN CONSTITUTIONAL JURISPRUDENCE], NICHOLAS ARONEY[http://www.law.uwa.edu.au/__data/assets/pdf_file/0010/3090565/CHAPTER-2.pdf UNITED STATES INFLUENCE ON THE AUSTRALIAN LEGAL SYSTEM], THE HON ROBERT FRENCH AC{{Cite news|last1=Aroney|first1=Nicholas|last2=Kincaid|first2=John|title=Analysis {{!}} Comparing Australian and American federal jurisprudence|language=en-US|newspaper=Washington Post|url=https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/12/comparing-australian-and-american-federal-jurisprudence/|access-date=2020-11-06|issn=0190-8286}}

A brief overview of the other listed features will provide a background for the doctrinal developments examined below.

{{Main|Monarchy in Australia}}

Australia is a constitutional monarchy.{{cite web|url=http://australianpolitics.com/democracy/terms/constitutional-monarchy.shtml|title=Key Terms: Constitutional Monarchy|access-date=9 July 2010|publisher=australianpolitics.com| archive-url= https://web.archive.org/web/20100808021532/http://australianpolitics.com/democracy/terms/constitutional-monarchy.shtml| archive-date= 8 August 2010 | url-status= dead}} Although the term "Head of State" is not used in the Constitution, it was intended that the Commonwealth (like the colonies) would continue to recognise the British Sovereign. "The Queen" (meaning Queen Victoria, defined to include "Her Majesty's heirs and successors in the sovereignty of the United Kingdom"), was one of the three elements of Parliament, along with the Senate and the House of Representatives (section 1). Today, the King of Australia has replaced the King of the United Kingdom within Australia's parliament, but they happen to be the same person. The Monarch is represented in Australia by an appointed Governor-General. The executive power is vested in the Governor-General "as the Queen's representative" (section 61), as is the command-in-chief of the armed forces (section 68).

The Australian Constitution provides the Governor-General with a number of powers, including; the power to dissolve Parliament (Sections 5, 57), the power to refuse assent to bills presented to her (section 58) and the power to dismiss the government Ministers (section 64).,{{cite web |url= http://www.aph.gov.au/library/pubs/rn/1997-98/98rn24.htm |title=Research Note 24 1997–98 – Powers of the Head of State of Australia and South Africa |author1=Ireland, Ian |author2=Magarey, Kirsty |name-list-style=amp |publisher=Parliamentary Library of Australia |date=23 January 1998 |archive-url=https://web.archive.org/web/20110629153724/http://www.aph.gov.au/library/pubs/rn/1997-98/98rn24.htm |archive-date=29 June 2011}} however, the practical use of such powers is restricted by constitutional convention, which mandate the Governor General to act on ministerial advice, except in exceptional circumstances. Because the conventions are not written in The Constitution, the limits of the Governor General's powers are unclear. Convention does, however, allow The Governor General to exercise some powers without ministerial advice in exceptional circumstances. These powers are known as reserve powers.{{cite web|url=http://www.aph.gov.au/library/pubs/rn/1997-98/98rn25.htm|title=Research Note 25 1997–98 – The Reserve Powers of the Governor-General|author=Downing, Susan |publisher=Parliamentary Library of Australia |date=23 January 1998 |archive-url= https://web.archive.org/web/20100726170040/http://www.aph.gov.au/library/pubs/rn/1997-98/98rn25.htm |archive-date= 26 July 2010 |url-status= dead}}

The reserve powers allow The Governor General to commission a Prime Minister when no party, or coalition of parties has a majority of seats in The House of Representatives and the power to dismiss a Prime Minister, who has been subject to a vote of no confidence in the House of Representatives.{{r|reserve}}

The reserve powers may also include the power to dismiss a Prime Minister who is engaging in persistent illegal action (Governor Sir Philip Game of New South Wales dismissed Premier Jack Lang on this ground in 1932). However, it remains controversial whether they include the power to dismiss a Prime Minister who, while retaining the confidence of the House of Representatives, is not able to get the annual supply Bill passed by the Senate, as happened during the Australian constitutional crisis of 1975 when the Governor-General acted against the advice of Ministers.{{r|reserve}}

The role of the Monarch is today even more circumscribed and amounts only to appointing (and, in theory, dismissing) a Governor-General on the advice of the Prime Minister, as well as performing (by invitation) certain ceremonial functions when personally present in Australia. See Constitutional history of Australia for further details on the development of the monarch's role in relation to Australia.

The importance of constitutional conventions in this area means that Australia cannot be said, strictly, to operate entirely under a written constitution, but has to some extent a system like the British unwritten constitution. However, it would be a mistake to exaggerate the importance of this aspect of Australia's constitutional arrangements:

• the reliance on constitutional convention is confined almost entirely to the relations between the Queen/Governor-General and the Ministers of State; and
• more completely written constitutional systems also develop binding conventions: for instance, popular election to the Electoral College of the United States, though not mandated by the United States Constitution, has probably become a binding norm.

{{Main|Federalism in Australia}}

The Constitution sets up the Commonwealth of Australia as a federal polity, with enumerated limited specific powers conferred on the Federal Parliament. The State Parliaments are not assigned specific enumerated powers; rather the powers of their predecessor colonial Parliaments are continued except insofar as they are expressly withdrawn or vested exclusively in the Federal Parliament by the Constitution. The framers rejected an alternative model, the Canadian,{{cite AustLII|HCA|57|1904|litigants=Deakin v Webb |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1904/57.pdf (1904) 1 {{abbr|CLR|Commonwealth Law Reports}} 585]}} at p. 606 per Grifith CJ, Barton & O'Connor JJ. which has been described as "an allocation of exclusive powers to both levels of government, not concurrent powers."{{cite CanLII|litigants=Canadian Western Bank v. Alberta|link=Canadian Western Bank v. Alberta|year=2007|source=scc|num=22|pinpoint=par. 32|parallelcite=[2007] 2 SCR 3|date=31 May 2007|courtname=auto|juris=}}

The bulk of enumerated powers are contained in section 51 and section 52. Section 52 powers are 'exclusive' to the Commonwealth (although some section 51 powers are in practice necessarily exclusive, such as the power with respect to borrowing money on the public credit of the Commonwealth in paragraph (iv), and the power to legislate with respect to matters referred to the Commonwealth by a State in paragraph (xxxvii)). By contrast, the subjects in section 51 can be legislated on by both state and Commonwealth parliaments. However, in the event of inconsistency or an intention by the Commonwealth to cover the field the Commonwealth law prevails (section 109).

Both concurrent (section 51) and exclusive (section 52) powers are stated to be "subject to this Constitution". As a result, the Commonwealth's law-making power is subject to the limitations and guarantees in the Constitution (both express and implied). For example, section 99 forbids the Commonwealth from giving preference to any State or part of a State "by any law or regulation of trade, commerce, or revenue". And as discussed below, an implied guarantee of freedom of political communication has been held to limit the Commonwealth's power to regulate political discourse.

The list of powers assigned to the Federal Parliament is quite similar to that assigned by the United States Constitution to the Congress, but is in some respects broader: for instance, it includes "astronomical and meteorological observations", marriage and divorce, and interstate industrial relations. The interpretation of similar heads of power – for instance the Trade and Commerce Power in Australia and the Commerce Clause in the US – has in some cases been different.

The constitution also provides some opportunities for Federal-State co-operation: any State can "refer" a "matter" to the Commonwealth Parliament, and the Commonwealth Parliament can exercise, "at the request or with the concurrence of the Parliaments of all the States directly concerned", any power which, at the time of Federation, could be exercised only by the British Parliament.

Representation in the House of Representatives is based on population and ‘original states’ have equal numbers in the Senate. The two houses are equal in power except for certain restrictions in financial matters. For example, the Senate may not amend a supply Bill, although as the Australian constitutional crisis of 1975 demonstrates, it may defer or refuse to pass such a Bill altogether; Bills to impose taxation or appropriate revenue may not originate in the Senate; and the Senate may not amend a Bill so as to increase taxation.

Again, federalism is evident in the process of constitutional amendment, which requires that the Bill to amend the Constitution be approved by a majority of electors overall and a majority of electors in a majority of States (that is, four out of the six).

Additionally, amendments "altering the limits" of a State or diminishing its proportional representation in Parliament require the approval of electors in that State.

It was assumed by the framers, in line with British and local colonial tradition, that the executive government would consist of Ministers who were members of Parliament and "responsible", that is, answerable, to it, and that the continued existence of the government would depend on it maintaining the confidence in the House of Representatives.

These arrangements, however, are only hinted at in the text of the Constitution. There is a requirement (section 64) that the "Queen's Ministers of State", who are nominally appointed by the Governor-General, be or swiftly become members of either House of Parliament. The existence of the Prime Minister and Cabinet, and the requirement for them to have the confidence of the House of Representatives, are not mentioned. Nonetheless, these have been fundamental features of Australian constitutional practice from the start.{{cite web |url=http://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/Practice6/Practice6HTML?file=Chapter9§ion=07&fullscreen=1 | title=House of Representatives Practice |edition=6th |publisher=Parliament of Australia |access-date=12 September 2012}} More recently, the principle of responsible government was reinforced by the High Court of Australia which upheld orders for a Minister of the government to table documents in the NSW Legislative Council after he refused to do so.{{cite AustLII|litigants=Egan v Willis|court=HCA|num=71|year=1998|parallelcite=(1998) 95 CLR 424}}; {{cite AustLII|litigants=Egan v Chadwick |court=NSWCA |num=176 |year=1999 |parallelcite=(1999) 46 NSWLR 563 |courtname=auto}}

{{Main|Separation of powers in Australia}}

The Constitution features a distinct separation of powers. Legislative power is dealt with in Chapter I, and is vested in the Federal Parliament (section 1). Executive power is dealt with in Chapter II, and is vested in the Governor-General as the Queen's representative (section 61). The judicature is dealt with in Chapter III, and is vested in the Federal High Court and "in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" (section 71).

However, the Queen is an element of the Parliament as well as being head of the executive; and the Ministers of State who "advise" the Governor-General are actually required to be or become members of Parliament.

While there is no significant separation of the legislative and executive powers (the "political branches"), the High Court has developed an increasingly stringent doctrine of the separation of the judicial power from the other two.{{cite AustLII|litigants=R v Kirby; Ex parte Boilermakers' Society of Australia ("Boilermakers' case")|year=1956|court=HCA|num=110|parallelcite=(1956) 94 CLR 254}}.
See also {{cite BAILII |year=1957 |court=UKPC |num=4 |format=1 |litigants=Attorney-General (Commonwealth) v The Queen |parallelcite=[1957] AC 288; (1957) 95 CLR 529 |courtname=auto |juris=Australia}}.{{cite AustLII|litigants=Re Wakim; Ex parte McNally |year=1999|court=HCA|num=27|parallelcite=(1999) 198 CLR 51173}}{{cite AustLII|litigants=White v Director of Military Prosecutions |year=2007|court=HCA|num=29|parallelcite=(2007) 231 CLR 570}}.

The Constitution required direct election of members to both Houses of Parliament from the beginning (sections 7 and 24). This was a novelty at the time, since the national upper houses with which the framers were best acquainted were chosen by other means: indirect election by the State legislatures (United States Senate before the Seventeenth Amendment in 1913), executive appointment for life (Senate of Canada), or a combination of appointment for life and hereditary succession (British House of Lords).

{{Main|Referendums in Australia}}

The text of the Constitution was not presented to the British Parliament for formal enactment until it had been approved by the electors of the colonies.

On the same principle, any amendment to the Constitution requires approval at a referendum, by the process set out in section 128 of the Constitution. A double majority – a majority of electors and of a majority of states – is required.

Constitutional referendums were based on the Swiss practice. However, the Swiss use of the popular initiative in constitutional amendment was not followed, so that constitutional alterations, although they must be approved by the people, can only be initiated by Parliament.

The use of the referendum in initially adopting the Constitution, and its requirement for constitutional amendment, has been cited by justices of the High Court to argue that the Constitution is fundamentally based on popular sovereignty (rather than on the supremacy of the British Parliament, which is its technical legal foundation). This doctrine has achieved greater prominence since the cessation, in 1986, of all authority of that Parliament over Australia: see Constitutional history of Australia for details.

There have been 44 proposals for constitutional amendment put to the people since Federation. Of these, only 8 have passed.

Probably the most obvious development in Australian constitutional law has been the steady growth in the power of the federal government relative to the states. Several factors could account for this, including:

• doctrines of constitutional interpretation which favour a broad reading of Commonwealth powers
• the "fiscal imbalance" between the Commonwealth and the States (see Constitutional basis of taxation in Australia)
• the development of new areas of competence which did not exist at Federation, and which have fallen to the Commonwealth
• the growing importance of legislative areas that were always Commonwealth powers (for example, external affairs and trading corporations)
• constitutional amendment or referral by the States
• the willingness of Australian governments, including supporters of States' rights, to exercise their powers to the full

{{Main|Reserved State powers}}

Prior to 1920 the "reserved State powers" doctrine and "implied inter-governmental immunities" were used to preserve state power. Reserved state powers holds that the Constitution should be read in a restrictive way so as to preserve as much autonomy as possible for the States.{{cite AustLII|litigants=Attorney-General for NSW v Brewery Employees Union of NSW (Union Label Case)|year=1908|court=HCA|num=94|parallelcite=(1908) 6 CLR 469}}. Implied intergovernmental immunities holds that Commonwealth and States are immune to each other's laws and cannot mutually regulate each other's governmental apparatus.{{cite AustLII|litigants=D'Emden v Pedder|year=1904|court=HCA|num=1|parallelcite=(1904) 1 CLR 91}}.

In 1920, the Engineer's case (after changes in the composition of the Court) swept away this doctrine.{{cite AustLII|litigants=Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case)|year=1920|court=HCA|num=54|parallelcite=(1920) 28 CLR 129}}. The court now insisted on adhering only to interpreting a statute "expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole".{{r|Engineers}} There was to be no reading in of implications by reference to the presumed intentions of the framers.

As a result, the constitution is no longer read in a way which attempts to preserve the power of the states.

Even before the Engineer's case,{{r|Engineers}} a line of judicial reasoning asserted that Commonwealth powers should be interpreted broadly rather than narrowly wherever possible.{{cite AustLII|litigants=Jumbunna Coal Mine NL v Victorian Coal Miners' Association|year=1908|court=HCA|num=95|parallelcite=(1908) 6 CLR 309}}.

After Engineers,{{r|Engineers}} this approach was reinforced. For example, Section 109, regarding inconsistency between Commonwealth and State laws, was broadly interpreted. Commonwealth law prevails not only where inconsistent obligations are imposed, but where Commonwealth legislation evinces an intention to "cover the field" by being the whole law on a particular subject.{{cite AustLII|litigants=Ex parte McLean|year=1930|court=HCA|num=12|parallelcite=(1930) 43 CLR 472}}; see also {{cite AustLII|litigants=Clyde Engineering Co Ltd v Cowburn|year=1926|court=HCA|num=6|parallelcite=(1926) 37 CLR 466}} The Commonwealth can "manufacture" inconsistency by expressly stating that its legislation is intended to cover the field.{{cite AustLII|litigants=Wenn v Attorney-General (Victoria)|year=1948|court=HCA|num=134|parallelcite=(1948) 77 CLR 84}}. However, an issue that was raised, without being conclusively resolved, in the Workplace Relations Challenge was whether the Commonwealth can "clear the field" by stating an intention that State laws are not to apply even if the Commonwealth does not enact other laws in their place.{{r|WorkChoices}}

The Commonwealth can only legislate with respect to an enumerated head of power, This does not mean that the law must be solely, or even predominantly, directed at that head of power. As long as it can be "fairly characterized" as a law with respect to an enumerated power, it is irrelevant that it could also be categorised as a law regarding some other subject matter.{{cite AustLII|litigants=Actors and Announcers Equity Association v Fontana Films Pty Ltd|year=1982|court=HCA|num=23|parallelcite=(1982) 150 CLR 169}}; See also: {{cite AustLII|litigants=Fairfax v Commissioner of Taxation|year=1965|court=HCA|num=64|parallelcite=(1965) 114 CLR 1}}.

Likewise, Parliament's motivation in passing the law is irrelevant.{{r|1stTax}} An example is environmental legislation. The Constitution does not provide the Commonwealth Parliament with any power to control the environment or its use. Nonetheless, a very broad-ranging environmental protection Act could be passed relying on a combination of powers such as interstate and international trade, corporations, taxation, foreign affairs and so on. The law can be supported by those powers although Parliament intended it to be an 'environmental law'. Particularly in the last two decades, many Acts of very wide-ranging effect have been passed on just these bases, in fields as diverse as environment protection, privacy, and anti-discrimination, fields in which the Commonwealth has no direct power.

{{See also| Constitutional basis of taxation in Australia}}

At the time of Federation, the colonies' main source of revenue consisted of customs and excise duties (income tax being still a newer notion). Since one of the main reasons for Federation was to create a common market, inevitably authority over these taxes was vested exclusively in the Commonwealth Parliament (section 90). It was acknowledged that this would create a situation where the Commonwealth would raise much more money than it could spend, whereas the States, being still responsible for most areas of law and of social infrastructure, would need to spend much more money than they could raise (the problem now known as "vertical fiscal imbalance"). Although the framers were able to agree on a formula for distribution of the Commonwealth's surplus to the States in the first few years after Federation, they could not agree on a long-term formula. Accordingly, section 96 of the Constitution provides that the Commonwealth Parliament "may grant financial assistance to any State on such terms and conditions as it thinks fit".

One result of this has been that the Commonwealth has been able to make grants to the States on terms so specific as to amount to the virtual takeover of particular fields of competence. For instance, although the Constitution gives the Commonwealth no express power over education, by means of "tied grants" it has in fact become paramount in the field of tertiary education. Although any state has the option to refuse a grant, the consequences of doing so make this unattractive. Similarly, the Commonwealth has become dominant in the field of public hospitals, and a major player in the field of roads and other major infrastructure.

The Commonwealth has also come to monopolise income tax. Once the advantages of income tax were recognised, both the Commonwealth and the States levied income taxes. However, during World War II, the Commonwealth government decided to take over the collection of income taxes and return some proceeds to the States as grants. The Commonwealth passed legislation to levy income tax at a nationwide rate similar to the previous combination of Commonwealth tax and the various state taxes. Separate legislation then granted section 96 monetary grants to states if the State did not levy income taxes. In practice, it would be difficult for States to continue taxing.

This arrangement was twice challenged by the States in the High Court and twice upheld.{{cite AustLII|litigants=South Australia v Commonwealth ("the First Uniform Tax case")|year=1942|court=HCA|num=14|parallelcite=(1942) 65 CLR 373}}.{{cite AustLII|litigants=Victoria v Commonwealth ("the Second Uniform Tax case")|year=1957|court=HCA|num=54|parallelcite=(1957) 99 CLR 575}}. In the Second Uniform Tax case the taxation part of the scheme was held to be valid based on the taxation power, and the grants held to be valid on the basis of the words 'terms and conditions' of section 96.{{r|2ndTax}}

States are also at the mercy of the High Court's definition of an "excise duty," which states cannot levy. The High Court has long stated the definition in terms such as "an inland tax on a step in production, manufacture, sale or distribution of goods". However, it does not include a mere fee for a licence to carry on a particular business or profession. Accordingly, the States had for a long time levied, with the compliance of the High Court, "business franchise fees" on retailers of products, particularly liquor and tobacco products.

These "franchise fees" were mostly calculated according to the value of the retailer's sales in a specific preceding period, rather than on the value of goods currently being sold. Although these seem similar to excise duties, a series of High Court precedents had effectively "quarantined" such fees from disallowance in the areas of liquor retailing, tobacco retailing, and petrol distribution. In 1997, by a bare majority, the High Court decided that this area of doctrinal quarantine was incoherent with the rest of the law relating to excise duties and removed it.

{{cite AustLII|litigants=Ha v New South Wales|year=1997|court=HCA|num=34|parallelcite=(1997) 189 CLR 465}}; see also {{cite AustLII|litigants=Matthews v Chicory Marketing Board (Vic)|year=1938|court=HCA|num=38|parallelcite=(1938) 60 CLR 263}}. The immediate result was the loss of some $5 billion (Australian) in the annual revenues of the States and Territories.

In 1999, the Commonwealth Parliament passed legislation introducing a new broad-based Federal indirect tax, the Goods and Services Tax; the revenue from this tax was to go entirely to the States and Territories in exchange for abolishing a range of other indirect taxes. By this stage, the financial dependence of the States on the Commonwealth had become almost complete.

The development of various technologies during the twentieth century also added to the power of the centre. Section 51(v) of the Australian Constitution gives the Commonwealth Parliament power over "postal, telegraphic, telephonic, and other like services". With little controversy, this power now covers radio, television, satellite, cable, and optic fibre technologies.

A greater struggle occurred over Commonwealth legislation in the field of aviation. Commonwealth regulation is based on the interstate and international trade and commerce power. Prima facie, it does not cover intrastate aviation. However, a purely intrastate aviation industry is no longer economically feasible and separate systems of state regulation pose safety concerns.{{clarify|date=July 2020}} As a result, the High Court held that all aviation has an interstate character, placing it within Commonwealth legislative power. In 1937 a referendum was submitted to the people giving the Commonwealth power over aviation, and that the referendum was rejected by the people. The rejection of a power by the people has never persuaded the Court that the Commonwealth should not exercise the power.

Another example concerns intellectual property. Although the Constitution gave the Commonwealth Parliament power over "copyrights, patents of inventions and designs, and trade marks", the enormous growth of electronic media content has given this power a much wider scope than could possibly have been envisaged at Federation.

The Commonwealth power has been extended by four constitutional amendments. An amendment in 1910 and an amendment in 1928 allowed the Commonwealth to take over and manage state debts. An amendment passed in 1967 gave the Commonwealth power over Aboriginal affairs, which has had a significant effect particularly in the pastoral and central regions of Australia.

An amendment passed in 1946 gave the Commonwealth power to provide a wide range of social services. This included unemployment and sickness benefits, maternity allowances, child endowment, and medical and dental services. Apart from defence, social services is the largest area of Commonwealth expenditure. Along with the grants power, it is the basis for the Medicare scheme of universal health insurance.

The High Court decided that the corporations power was not broad enough to cover incorporation itself.{{cite AustLII|litigants=NSW v Commonwealth (Incorporation case)|year=1990|court=HCA|num=2|parallelcite=(1990) 169 CLR 482}}. This decision threatened the validity of Australian companies incorporated under commonwealth law. The states used 'the referral power' to refer the power over incorporation to the Commonwealth Parliament.

{{Main|Section 51(xxix) of the Australian Constitution}}

The Constitution gives the Commonwealth Parliament power over "external affairs". Originally this power had little content, because Australia's foreign relations were managed by the United Kingdom. As Australia gained independence and international personality, so did the significance of this power.

Australia's relations with other countries fall directly under the subject of external affairs.{{cite AustLII|litigants=R v Sharkey|year=1949|court=HCA|num=46|parallelcite=(1949) 79 CLR 121}}{{cite AustLII|litigants=Commonwealth v Tasmania (the Tasmanian Dams Case)|year=1983|court=HCA|num=21|parallelcite=(1983) 158 CLR 1}}. It includes relations with other British Dominions and further extends to relations with international organisations.

{{cite AustLII|litigants=Koowarta v Bjelke-Petersen|year=1982|court=HCA|num=27|parallelcite=(1983) 153 CLR 168}}. The pursuit and advancement of friendliness with foreign governments is another vital aspect under the external affairs power.{{cite AustLII|litigants=Thomas v Mowbray|year=2007|court=HCA|num=33|parallelcite=(2007) 233 CLR 307}}. The High Court has held that the power covers the regulation of conduct that takes place outside Australia, suggesting that mere externality to Australia could enliven the power.{{cite AustLII|litigants=Polyukhovich v Commonwealth (War Crimes Act Case)|year=1991|court=HCA|num=32|parallelcite=(1991) 172 CLR 501}}. In particular, Commonwealth legislation of 1998 that retroactively criminalised war crimes committed during World War II in Europe by Australian citizens was held a valid exercise of the external affairs power.{{r|Polyukhovich}}

The power has also been held to extend to the implementation of international treaties, even if the subject matter of the treaty is otherwise not within Commonwealth power. In the case of Koowarta v Bjelke-Petersen,{{r|Koowarta}} the High Court found that the Commonwealth had the power to implement the United Nations Convention on the Elimination of All Forms of Racial Discrimination in the form of the Racial Discrimination Act. In the case of Tasmanian Dams Case,{{r|Dams}} the High Court has upheld Commonwealth legislation forbidding the Tasmanian government from proceeding with a dam that would have submerged an area of Tasmanian government-owned land that had been declared a World Heritage Area under the World Heritage Convention to which Australia is a party.{{r|Dams}}{{cite AustLII|litigants=Richardson v Forestry Commission|year=1988|court=HCA|num=10|parallelcite=(1988) 164 CLR 261}}. Land use is otherwise a State responsibility.

More recently, the external affairs power has been used to remove the States' power to criminalise male homosexual activity. This followed an adverse report by the Human Rights Committee on Tasmanian provisions. The Human Rights Committee was established under the International Covenant on Civil and Political Rights, to which Australia is a party. Rather than challenge the resulting Commonwealth Human Rights (Sexual Conduct) Act of 1994, the Tasmanian Parliament repealed the legislation in question.See also [http://www1.umn.edu/humanrts/undocs/html/vws488.htm Toonen v Australia (1994) UNHCR]

Although it would appear that there is an open-ended potential for the Commonwealth to encroach on areas of traditional State competence through the external affairs power, to date it has been used with some discretion, if only because the use of the power in this way inevitably excites considerable political controversy.{{or|date=July 2020}}

{{Main|Section 51(xx) of the Australian Constitution}}

The corporations power allows the Commonwealth to legislate on "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". Although the width of the expression "trading or financial corporations" has never been authoritatively settled, it appears that it covers at least all commercial enterprises carried out under the corporate form.{{cite AustLII|litigants=R v Federal Court of Australia; Ex parte WA National Football League|year=1979|court=HCA|num=6|parallelcite=(1979) 143 CLR 190}}.

As corporations have come to dominate the economy, the practical scope the corporations power has increased. For example, in 2005 the Commonwealth Parliament enacted the WorkChoices legislation,{{Cite web |url=https://www.legislation.gov.au/Details/C2005A00153 |title=Workplace Relations Amendment (Work Choices) Act 2005 |date=12 December 2006 |publisher=Commonwealth of Australia}} which, relying primarily on the corporations power, seeks to create a uniform national industrial relations system to the exclusion of both the States' and the Commonwealth's own industrial relations systems. Previous systems were based on the 'conciliation and arbitration' power. The new legislation applies to all employees of a "constitutional corporation." A constitutional corporation is a corporation within the meaning of section 51(xx) of the Constitution. The legislation also applies to employees of the Commonwealth and its agencies, and some others. The expected coverage of this law is approximately 85% of the Australian workforce. That proportion is likely to increase as employers who operate as sole traders or in partnerships incorporate to take advantage of the new legislation's relatively "employer-friendly" provisions.

On 14 November 2006, the High Court by a 5-to-2 majority upheld the validity of the WorkChoices legislation{{r|WC Act}} against all the challenges that had been made to it in an action brought by each of the States and mainland Territories, as well as certain trade unions.{{cite AustLII|litigants=NSW v Commonwealth (WorkChoices case)|year=2006|court=HCA|num=52|parallelcite=(2006) 229 CLR 1}}. The single majority judgment, while it did not expressly adopt, waved aside all the objections that had been argued against the "object of command" test for the validity of the exercise of the corporations power. Accordingly, the judgment suggests that, henceforth, it may be a sufficient basis of validity that Federal legislation be specifically addressed to constitutional corporations ("A constitutional corporation must...", "A constitutional corporation must not..."), without any additional requirement that the legislation also address some aspect of the status or activities of corporations which is specific to such entities.{{or|date=July 2020}} If this is correct, then given the preponderant role of corporations in the modern economy, the possibility exists for substantial Federal control of the greater part of the economy, with little if any regard to the traditional constitutional "heads of power".

To a very large extent, the Constitution leaves it to Parliament to determine both the High Court's original jurisdiction (section 76), and the exceptions to, and conditions on, its power to hear appeals (section 73). However, the Constitution grants the Court some original jurisdiction directly, without the possibility of Parliamentary limitation (section 75). This includes matters in which "a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth".

In recent years, the Parliament has all but eliminated the possibility of appeal against many decisions in the area of migration, especially in regard to applications for refugee status. However, since the Parliament is not constitutionally able to limit or abolish access to the High Court for the purpose of applying for one of these "constitutional writs", such applications have become a major means of challenging migration decisions.{{cite web |url=http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj25mar11.pdf |title=The Role of the Courts in Migration Law |author=Chief Justice Robert French |author-link=Robert French |publisher=High Court |date=25 March 2011}} In 2014–15 94% of the applications for constitutional writs involved immigration matters.{{cite web |url=http://www.hcourt.gov.au/assets/corporate/annual-reports/hca-annual-report-2014-15.pdf |title=High Court of Australia Annual Report 2014-15 |publisher=High Court |page=19}}

The Constitution contains no comprehensive set of human rights guarantees. Factors sometimes cited for this include faith in the common law's protection of rights and a belief that a powerful Senate would effectively resist overzealous governments. The Constitution does contain protection for several specific rights. These include:

• right to vote in Commonwealth elections if one can vote in State ones (section 41)
• freedom of religion, and prohibition of religious tests for Federal offices (section 116)
• trial by jury in Federal cases tried on indictment (section 80)
• "just terms" for the compulsory "acquisition" of property by the Commonwealth (section 51(xxxi))
• an ambiguously worded prohibition on discrimination against residents of other States (section 117){{cite AustLII|litigants=Henry v Boehm|year=1973|court=HCA|num=32|parallelcite=(1973) 128 CLR 482}}{{cite AustLII|litigants=Street v Queensland Bar Association|year=1989|court=HCA|num=53|parallelcite=(1989) 168 CLR 461}}

All but the last of these have been read down by the High Court, at least relative to the content of the corresponding United States guarantees. On the other hand, since the 1990s the High Court has been developing a jurisprudence of rights said to be implied in the text and structure of the Constitution.

In addition, a constitutional requirement that "trade, commerce, and intercourse among the States ... shall be absolutely free" (section 92) was, for a time, interpreted as a guarantee of some degree of freedom from economic regulation by either Commonwealth or State Parliaments. The reference to "intercourse", on the other hand, has always been understood as guaranteeing a right to movement across State boundaries.

Although express protections for human and civil rights in the Constitution are scant, and have mostly been read down, some protections have been created by the High Court through its jurisprudence on the separation of powers and through its findings of rights implied by the text and structure of the constitutional document.

As mentioned, there are five rights which the Constitution guarantees against the Commonwealth – religious freedom, trial by jury, "just terms" compensation, free trade between the states, and protection against discrimination based on the state an individual lives in. (A referendum proposal to amend the Constitution to clarify these rights and to make them good also against the States was defeated in 1988.) As will be seen, guaranteed access to the High Court can itself amount to an important right. And the guarantee of free trade and commerce was for a time interpreted as something like an individual right.

{{Main|Section 116 of the Constitution of Australia}}

The Constitution states that 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 religious test shall be required as a qualification for any office or public trust under the Commonwealth" (section 116).

In determining what is considered a religion, the High Court has adopted a broad approach; demonstrating an unwillingness to create a limiting definition.

{{cite AustLII|litigants=Church of the New Faith v Commissioner of Pay-roll Tax (Scientology case)|link=|year=1983|court=HCA|num=40|parallelcite=(1983) 154 CLR 120}}.

The prohibition on establishing any religion has had nothing like the impact that the corresponding ban on making a law "respecting an establishment of religion" in the

First Amendment to the United States Constitution has had in that country. The High Court, in rejecting a challenge to Federal funding of church schools,

{{cite AustLII|litigants=Attorney-General (Vic); Ex Rel Black v Commonwealth (DOGS Case)|year=1981|court=HCA|num=2|parallelcite=(1981) 146 CLR 559}}. seemed to take the view that nothing less than an explicit establishment of a State Church as the official religion of the Commonwealth would come within the terms of the prohibition.

Section 116 also protects the right of a person to have no religion by prohibiting the Commonwealth from "imposing any religious observance".{{cite AustLII|HCA|12|1943|litigants=Adelaide Co of Jehovah's Witnesses Inc v Commonwealth |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1943/12.pdf (1943) 67 {{abbr|CLR|Commonwealth Law Reports}} 116]}}) at p. 123 per Latham CJ.

{{Main|Section 51(xxxi) of the Constitution of Australia}}

The Constitution gives the Commonwealth power "with respect to ... the

acquisition of property on just terms" in Section 51(xxxi). By contrast, the Fifth Amendment to the United States Constitution

contains a prohibition: "nor shall private property be taken ... without just compensation". The differences between acquisition and taking, and between terms and compensation, combined with the fact that the Australian provision is expressed as a positive grant of power coupled with a limitation, have been read so as to weaken the Australian guarantee relative to the American one.

The use of the term "acquisition" has been interpreted so as to require that the Commonwealth (or some other party for a Commonwealth purpose) actually acquire possessory or proprietary rights over the property in question, or at least some benefit: the mere extinguishment of a person's proprietary rights by the Commonwealth (or a prohibition on effectively exercising them) is insufficient to amount to an acquisition.{{r|Dams}}{{r|Koowarta}}{{r|Richardson}} And "just terms" has been taken to mean something less than "just compensation"; in particular, it does not necessarily require payment to the owner of the value of the property when it was compulsorily acquired{{cite AustLII|litigants=Kingswell v The Queen|year=1985|court=HCA|num=72|parallelcite=(1985) 159 CLR 264}}.

The Australian film The Castle addresses this issue.

{{excerpt|Section 117 of the Constitution of Australia}}

The constitutional guarantee that a trial on indictment for a federal offence must be by jury (section 80) has been rendered virtually worthless because the High Court has decided that it is applicable only to a trial that proceeds formally by way of indictment, and it is completely in Parliament's discretion to decide which offences are triable on indictment and which are not. This narrow view is confirmed in the majority judgement of Kingswell v the Queen.{{r|Kingswell}} Powerful dissents to the effect that the section must be given some substantive meaning (the trial of offences of some specific degree of gravity must be by jury) have not prevailed.{{r|Kingswell}}

On the other hand, where Parliament has prescribed jury trial, the Court has been willing to impose some content on that notion. In particular, it has insisted that conviction by a jury for a Federal offence must be by the unanimous agreement of the jurors – a majority verdict will not suffice.{{cite AustLII|litigants=Cheatle v The Queen|year=1993|court=HCA|num=44|parallelcite=(1993) 177 CLR 541}}.{{cite AustLII|litigants=R v Bernasconi|year=1915|court=HCA|num=13|parallelcite=(1915) 19 CLR 629}}.{{cite AustLII|litigants=Brownlee v The Queen|year=2000|court=HCATrans|num=687}}.

{{Main|Section 92 of the Constitution of Australia}}

The constitutional requirement that "trade, commerce, and intercourse amongst the States ... shall be absolutely free" (section 92) was for a considerable time interpreted as a guarantee of some degree of freedom from government regulation. A notable example of this line of jurisprudence was the High Court's disallowance of a Commonwealth Act which had the aim of nationalising the banking industry.{{cite AustLII|litigants=Bank of NSW v Commonwealth (the Bank Nationalisation Case)|year=1948|court=HCA|num=7|parallelcite=(1948) 76 CLR 1}}.{{cite AustLII|litigants=McCarter v Brodie|year=1950|court=HCA|num=18|parallelcite=(1950) 80 CLR 432}}.{{cite AustLII|litigants=North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW|year=1975|court=HCA|num=45|parallelcite=(1975) 134CLR 559}}.

In 1988 following the decision in Cole v Whitfield,{{cite AustLII|litigants=Cole v Whitfield|year=1988|court=HCA|num=18|parallelcite=(1988) 165 CLR 360}}. which was notable also for the Court's willingness to use the transcripts of the Convention debates as an aid to interpretation, the Court unanimously decided that what the section prohibited, in relation to interstate trade and commerce, were only "discriminatory burdens of a protectionist kind".{{r|Cole}}{{cite AustLII|litigants=Bath v Alston Holdings Pty Ltd|year=1988|court=HCA|num=27|parallelcite=(1988) 165 CLR 411}}. That is, the section did no more than guarantee "free trade" (in the conventional sense) among the States. But in relation to "intercourse" (i.e. personal movement between States), the Court suggested that the scope of the guarantee would be much wider, and may even, in relation to some forms of such intercourse, be truly absolute.{{cite AustLII|litigants=Castlemaine Tooheys Ltd v South Australia|year=1990|court=HCA|num=1|parallelcite=(1990) 169 CLR 436}}.{{cite AustLII|litigants=Betfair Pty Limited v Western Australia|year=2008|court=HCA|num=11|parallelcite=(2008) 234 CLR 418}}.{{cite AustLII|litigants=Sportsbet Pty Ltd v New South Wales|year=2012|court=HCA|num=18|parallelcite=(2012) 249 CLR 298}}.

Implied rights are the political and civil freedoms that necessarily underlie the actual words of the constitution but are not themselves expressly stated directly in the constitution.{{r|Rowe}} The High Court has held that no implication can be drawn from the Constitution which is not based on the actual terms of the Constitution, or on its structure.{{cite AustLII|litigants=McGinty v Western Australia|year=1996|court=HCA|num=48|parallelcite=(1996) 186 CLR 140}}. Since the 1990s the High Court has discovered rights which are said to be implied by the very structure and textual form of the Constitution.{{cite journal|last1=Burns |first1=R |title=Political Discussion as a Defence to Defamation: Lange v Australian Broadcasting Commission |url=http://www.austlii.edu.au/au/journals/HCRev/1997/13.html |journal=[1997] High Court Review 13|year=1997 }} Chief amongst these is an implied right to freedom of communication on political matters. In addition, some protections of civil liberties have been the result of the High Court's zealous attempts to safeguard the independence of, and confidence in, the Federal judiciary.

{{main article|Freedom of political communication}}

Two cases decided in 1992 established a new implied right to freedom of communication on political matters. The first case, Nationwide News Pty Ltd v Wills, concerned a Federal provision criminalising the "bringing into disrepute" of members of an industrial relations tribunal, and a prosecution under that provision of a person who had published a

newspaper article repeatedly describing such members as "corrupt" and "compliant".{{cite AustLII|litigants=Nationwide News Pty Ltd v Wills|link=Nationwide News Pty Ltd v Wills|year=1992|court=HCA|num=46|parallelcite=(1992) 177 CLR 1}};
See also {{cite AustLII|FCAFC|80|2009|litigants=Suntory (Aust) Pty Ltd v Commissioner of Taxation |courtname=auto}} The second case, Australian Capital Television Pty Ltd v Commonwealth, concerned a Federal attempt to ban political advertising on radio and television during election periods and to strictly control it at other times, via a system of "free time" entitlements.{{cite AustLII|litigants=Australian Capital Television Pty Ltd v Commonwealth|link=Australian Capital Television Pty Ltd v Commonwealth|year=1992|court=HCA|num=45|parallelcite=(1992) 177 CLR 106}}.

In both cases, the majority of the High Court reasoned that, since the Constitution required direct election of members of the Federal Parliament, and since moreover the Ministers of State were required to be or swiftly become members of that Parliament, the result was that "representative democracy is constitutionally entrenched". That being so, freedom of public discussion of political and economic matters is essential to allow the people to make their political judgments so as to exercise their right to vote effectively. Furthermore, since "public affairs and political discussion are indivisible", it is impossible to limit this necessary freedom to purely Federal issues:

it applies also to issues which might be the preserve of the State or local levels of government. Therefore, there is implied in the Constitution a guarantee of freedom of communication on all political matters.{{r|F20}}

The Court stressed that this freedom is not absolute, but the result in both cases was that the relevant Federal legislation was struck down. In the latter case, some strong dissents to the effect that limiting expenditure on political advertising in the electronic media might actually enhance representative democracy did not prevail.

Both these cases concerned the validity of Federal legislation. But two years later, the Court extended the implied guarantee into the area of private law, by holding that it also applied to limit the statutory and common law of defamation. A former chairman of a Commonwealth Parliamentary Committee on Migration claimed to have been defamed by a newspaper which had published a letter accusing him of bias, in his official capacity, towards people of his own ethnic background.{{cite AustLII|litigants=Theophanous v Herald & Weekly Times Ltd|link=|year=1994|court=HCA|num=46|parallelcite=(1994) 182 CLR 104}}.{{r|F21}} By trial, it was conceded that the accusation was false. However the Court accepted a "constitutional defence" which was said (by three Justices) to operate when otherwise defamatory statements concerning the fitness of a public official to hold office were published without knowledge of, or recklessness as to, their falsity, and when publication was reasonable in the circumstances.

This case, however, and a series of following cases, failed to produce a clear statement of the operative principle which commanded the support of a majority of the Court. But in 1997 in Lange v Australian Broadcasting Corporation which involved the alleged defamation of a former Prime Minister of New Zealand a unanimous Court did state the operative principle. It rejected the "constitutional defence" of the migration-bias case just discussed, and instead expanded the scope of "qualified privilege", requiring the defendant to have actively taken reasonable steps to verify the accuracy of the published material, and also, in most circumstances, to have given the defamed person an opportunity to respond.

{{cite AustLII|litigants=Lange v Australian Broadcasting Corporation|link=Lange v Australian Broadcasting Corporation|year=1997|court=HCA|num=25|parallelcite=(1997) 189 CLR 520}}.{{r|F22}} On the other hand, the Court made it clear that the qualified privilege may extend to discussion concerning the United Nations and other countries, even where there is no direct nexus with the exercise of political choice in Australia. In McCloy v New South Wales, the High Court further endorsed the view that a qualified freedom of political communication exists and provided an updated and more detailed legal test.{{cite AustLII|HCA|34|2015|litigants=McCloy v New South Wales |courtname=High Court |date=7 October 2015 |parallelcite=(2015) 257 CLR 17}}.

The constitutional guarantee of freedom of political communication is, prima facie, far more restricted than the generalised guarantee of

freedom of speech and of the press in the First Amendment to the United States Constitution. But it remains to be seen whether a suitable expansion of the notion of "political communication" may not lead, in time, to a similar result. In the migration-bias case, some of the Justices, while being careful to quarantine "commercial speech without political content", seemed to imply that the scope of "political speech" may nevertheless be very broad indeed. Mitchell Landrigan goes as far as arguing that the exception to the Anti-Discrimination Act 1977 (NSW) permitting the exclusion of women from ordination as priests infringes the right of women to "rise to positions from which they may take part in political speech as [politically persuasive] religious leaders."{{cite journal|last=Landrigan |first=Mitchell |url=http://www.austlii.edu.au/au/journals/AltLawJl/2009/52.html |title=Voices in the Political Wilderness: Women in the Sydney Anglican Diocese |journal=Alternative Law Journal|year=2009 |doi=10.1177/1037969X0903400307 |s2cid=220052381 |url-access=subscription }} Any such constitutional protection would depend on a court finding that the anti-discrimination laws, first, effectively burdened political speech (as relevant to the Commonwealth Parliament) and, secondly, disproportionately burdened such speech.

{{main article|Suffrage in Australia}}

The Constitution is silent as to many aspects of the democratic process, leaving these details to be provided by Parliament. The Constitution does however require in sections 7 and 24 that the members of Parliament be "directly chosen by the people".[http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/xx7.html section 7] and [http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s24.html section 24] Commonwealth of Australia Constitution. In 1975 two judges of the High Court suggested that these requirements may amount to a right to vote, holding "the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether ... anything less than this could be described as a choice by the people."{{Cite AustLII |litigants=Attorney-General (Cth); Ex rel McKinlay v Commonwealth|year=1975 |court=HCA |num=653|parallelcite=(1975) 135 CLR 1}} per McTeirnnan & Jacobs JJ at [6]. In 1983 the High Court took a limited view of the right to vote in R v Pearson; Ex parte Sipka.{{Cite AustLII |litigants=R v Pearson; Ex parte Sipka |year=1983 |court=HCA |num=6 |parallelcite=(1983) 152 CLR 254}} The High Court Judge Michael Kirby, writing extrajudicially in 2000, said that "...in Australia, there may be a basic right to vote implied in the text of the constitution itself".{{cite web|url=http://www.michaelkirby.com.au/images/stories/speeches/2000s/vol47/2001/1720-UPHOLDING_FRANCHISE%2C_ABR.doc |title=Upholding The Franchise |author=The Hon Justice Michael Kirby |work=(2001) 21 Australian Bar Review 1 |archive-url=https://web.archive.org/web/20130426062558/http://www.michaelkirby.com.au/images/stories/speeches/2000s/vol47/2001/1720-UPHOLDING_FRANCHISE%2C_ABR.doc |archive-date=2013-04-26 |url-status=live |issn=0814-8589 }} Prior to 2006 prisoners were only disenfranchised if they were serving sentences of three years or more.{{cite web|title=Section 93(8)(b) Commonwealth Electoral Act 1918 |url=https://www.legislation.gov.au/Details/C2005C00337/Html/Text#para3718 |publisher=Commonwealth of Australia |date=16 May 2005}}{{cite web |url=http://www.aph.gov.au/Library/pubs/cib/2003-04/04cib12.pdf |title=Inside outcasts: prisoners and the right to vote in Australia |author=Jerome Davidson |publisher=Parliamentary Library of Australia |date=24 May 2004 |archive-url=https://web.archive.org/web/20040706124454/http://www.aph.gov.au/Library/pubs/cib/2003-04/04cib12.pdf |archive-date=6 July 2004}} 2006 legislation sought to disenfranchise all prisoners, regardless of the length of their sentence.{{cite web|title=Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) |date=July 2007 |url=https://www.legislation.gov.au/Details/C2006A00065 |publisher=Commonwealth of Australia}} The validity of the disenfranchisement was challenged by Vickie Roach who was serving a four-year gaol term for negligently causing serious injury in a car accident and her legal team comprised Ron Merkel, QC and Michael Pearce, SC.{{cite news |url=http://www.theage.com.au/news/national/prisoner-goes-to-high-court-to-win-right-to-vote/2007/04/24/1177180651410.html |author=Kenneth Nguyen |title=Prisoner goes to High Court to win right to vote |newspaper=The Age |page=3 |date=25 April 2007}}

In 2007 the High Court held in Roach v Electoral Commissioner that the requirement that members be "directly chosen by the people" conferred a limited "right to vote".{{cite AustLII|litigants=Roach v Electoral Commissioner|year=2007|court=HCA|num=43|parallelcite=(2007) 233 CLR 162}}. In principle, these words guaranteed qualified universal franchise, and limited the Federal government's legislative power to limit that franchise. The court held that removing right to vote for serious misconduct was acceptable and that the previous legislation was valid, however imprisonment failed as a method of identifying serious criminal misconduct such that the 2006 amendments{{r|2006Act}} were invalid.{{r|Roach}}{{cite web |url=http://hrlrc.org.au/html/s02_article/article_view.asp?id=168&nav_cat_id=145&nav_top_id=62 |title=Prisoners and the Right to Vote: Roach v AEC and Commonwealth of Australia |publisher=Human Rights Law Resource Centre |archive-url=https://web.archive.org/web/20080306073019/http://www.hrlrc.org.au/html/s02_article/article_view.asp?id=168&nav_cat_id=145&nav_top_id=62 |archive-date=6 March 2008}}

The 2006 legislation{{r|2006Act}} was again considered in Rowe v Electoral Commissioner, where the High Court held that amendments restricting the enrolment of voters once an election has been called were also invalid.{{cite AustLII|litigants=Rowe v Electoral Commissioner|year=2010|court=HCA|num=46|parallelcite=(2010) 243 CLR 1}}. * '' The High Court subsequently held that closing the electoral roles 7 days after the issuing of writs was not a burden on the constitutional mandate that members of Parliament be directly chosen by the people.{{Cite AustLII|litigants=Murphy v Electoral Commissioner|year=2016|court=HCA|num=36}}. The right to vote does not involve a corresponding right not to vote.{{cite AustLII|litigants=Holmdahl v Australian Electoral Commission (No 2)|year=2012|court=SASCFC|num=110}}. The High Court rejected a challenge to the 2016 Senate voting changes holding that both above the line and below the line voting were constitutionally valid methods for the people to choose their Senators.{{Cite AustLII|litigants=Day v Australian Electoral Officer for the State of South Australia|year=2016|court=HCA|num=20}}.

As mentioned above, the fact that the Constitution prescribes a system of "responsible", or parliamentary, government means that there can be no meaningful separation of the legislative and executive powers, despite their distinct textual separation in the Constitution. However, the same consideration does not militate against a separation of the judicial power from the other two, and in fact the High Court has come to insist on this with some force. It has also held that the separation of the judicial power implies that a body exercising that power must do so in a manner that is consistent with traditional notions of what constitutes judicial process. The result may be a limited constitutional guarantee of due process.

The judicial power of the Commonwealth is vested, in Chapter III of the Constitution, in the High Court and such other courts as the Parliament creates or invests with Federal jurisdiction.{{Cite Legislation AU|Cth|act|coaca430|Constitution|71}} Judicial power and Courts.{{refn|name=Expedient|High Court Justice Sir Owen Dixon described the power of the Australian Parliament to invest State courts with Federal jurisdiction as an "autochthonous expedient", essentially an economy measure in a country of small population.{{r|Boilermakers}}}} In Australian constitutional jargon, such courts are called "Chapter III courts". The members of Chapter III courts may not be removed except by the Governor-General on an address from both Houses of Parliament on the ground of proved misbehaviour or incapacity; they otherwise hold office until the age of 70.{{Cite Legislation AU|Cth|act|coaca430|Constitution|72}} Judges' appointment, tenure, and remuneration. Judicial office was originally for life; the age limit was introduced by a referendum in 1977.

In separate cases in 1915,{{cite AustLII|litigants=New South Wales v Commonwealth (Wheat Case)|link=New South Wales v Commonwealth (1915)|year=1915|court=HCA|num=17|parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1915/17.pdf (1915) 20 {{abbr|CLR|Commonwealth Law Reports}} 54]}}. and 1918,{{cite AustLII|litigants=Waterside Workers' Federation of Australia v J W Alexander Ltd |year=1918|court=HCA|num=56|parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1918/56.pdf (1918) 25 {{abbr|CLR|Commonwealth Law Reports}} 434]}}. the High Court held that "judicial power" (essentially, the power of interpretation of the law and enforcement of decisions) could not be invested in anything other than a Chapter III court, and specifically, in anything other than a body whose members have life tenure. In Kruger v Commonwealth (1997) the High Court considered claims by members of the Stolen Generation,Aboriginal and Torres Strait Islander children who had been systematically removed from their families by the Australian Federal and State government agencies: {{cite web|archive-url=https://webarchive.nla.gov.au/awa/20051229130000/http://pandora.nla.gov.au/pan/55165/20051230-0000/www.humanrights.gov.au/bth/additional_resources/bth_guide/bth.pdf |archive-date=29 December 2005 |url=http://www.humanrights.gov.au/bth/additional_resources/bth_guide/bth.pdf |title=Community Guide |year=1997 |work=Bringing Them Home |publisher=Human Rights and Equal Opportunity Commission}}{{cbignore|bot=medic}} including that their removal and subsequent detention without due process was in contravention of the Constitution.{{cite AustLII|HCA|27|1997|litigants=Kruger v Commonwealth (Stolen Generation case) |parallelcite=(1997) 190 CLR 1 |courtname=auto}}. Dawson J,{{rp|p. 61}} and McHugh J,{{rp|p. 142}} held that the Constitution contained no general guarantee of due process of law. Toohey, Gaudron and Gummow JJ held that the removal of Indigenous children was not the exercise of judicial power, hence no question of due process arose.{{cite AustLII|HCA|27|1997|litigants=Kruger v Commonwealth |parallelcite=(1997) 190 CLR 1}} per Toohey J at p. 84, Gaudron J at p. 110 and Gummow J at p. 162.

The converse of the separation of powers is the decision of the High Court in Boilermakers' Case in 1956, that Chapter III courts cannot be invested with anything other than judicial power.{{r|Boilermakers}}See also {{cite AustLII|litigants=Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan|year=1931|court=HCA|num=34|parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1931/34.pdf (1931) 46 {{abbr|CLR|Commonwealth Law Reports}} 73]}}.{{r|Kable}}By this decision, the system of industrial arbitration that had been in place for 30 years, and which involved judges of the Conciliation and Arbitration Court acting in both a judicial and an administrative capacity, was overturned. To some extent the rigour of the separation of powers doctrine was softened by the Court's subsequent acceptance that judges could, constitutionally, be assigned functions in their personal capacity as judges rather than as members of a Chapter III court.{{r|F24}}{{As of|2017|6}} judges of the Federal Court have been appointed as the President of the Fair Work Commission, Iain Ross, and President of the Administrative Appeals Tribunal, John Logan. But this raised the question of which such functions were compatible with the simultaneous holding of Federal judicial office. The answers offered by the Court have been controversial and involved some very fine distinctions: for instance, it has held that a power to authorise telephone interceptions is compatible,{{r|F26}} while a power to make recommendations concerning the protection of land which might be of heritage significance to Aboriginals is not compatible.{{r|F27}}{{cite AustLII|litigants=Al-Kateb v Godwin|year=2004|court=HCA|num=37|parallelcite=(2004) 219 CLR 562}}. The most striking application (and extension) of this "incompatibility" doctrine, however, has involved the Supreme Court of the State of New South Wales, a court that may be invested with Federal jurisdiction.{{r|Expedient}} Kable v Director of Public Prosecutions (1996){{cite AustLII|litigants=Kable v Director of Public Prosecutions (NSW)|link=Kable v Director of Public Prosecutions (NSW)|year=1996|court=HCA|num=24|parallelcite=(1996) 189 CLR 51}}{{r|F28}} concerned a criminal law passed by the New South Parliament and directed at a single named individual (somewhat in the manner of a Bill of attainder).

The individual was a prisoner (under state law) whose sentence was about to expire but who was alleged to have made threats against the safety of various persons, to be carried out when released. The State Parliament enacted a law, applying only to him, which authorised the Supreme Court of New South Wales to make "preventive detention orders" for periods up to six months, with the possibility of renewal.{{Cite Legislation AU|NSW|num_act|cpa1994n77297|Community Protection Act 1994}}. The orders were to be made if the Court was satisfied, "on the balance of probabilities", that the person to whom the Act applied was "more likely than not to commit a serious act of violence".

It is clear that, had the Federal Parliament passed such an Act, it would be found invalid, as it was in effect a legislative judgment and so violated of the constitutional separation of the judicial power. However, the High Court found that the separation of powers was not a feature of the New South Wales constitution, so the State Act was not invalid on that ground.

The Act was found invalid, however, on the ground that since the Supreme Court of New South Wales had been invested with federal jurisdiction, it must not be required to perform a function "incompatible" with the exercise of the judicial power of the Commonwealth. To that extent, the States are not free to legislate as they please with respect to their own courts. A requirement to order the "preventive detention" of someone who has not been charged with any criminal offence was found "incompatible" with the exercise of Federal judicial power. In this rather circuitous manner, the High Court has found a limited constitutional guarantee of due process.

{{Portal|Australia}}

• Australian Constitution
• Constitutional history of Australia
• Separation of church and state in Australia
• Separation of powers in Australia
• Federalism in Australia
• Referendums in Australia
• Section 51 of the Australian Constitution – federal heads of power

:** Trade and Commerce Power; Corporations Power; External Affairs Power

• Section 109 of the Australian Constitution – inconsistency between state and federal laws

{{reflist|refs=

See also {{cite web |author=Williams, George |author-link=George Williams (lawyer) |title=The State of Play in the Constitutionally Implied Freedom of Political Discussion and Bans on Electoral Canvassing in Australia |publisher=Parliamentary Library of Australia |year=1996–97 |url=http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp10}}

see also {{Cite AustLII|litigants=Bass v Roberts|year=2000|court=SADC|num=35}};
{{Cite AustLII|litigants=Adelaide v Corneloup|year=2011|court=SASCFC|num=84}};
{{Cite AustLII|litigants=Monis v The Queen|year=2013|court=HCA|num=4|parallelcite=(2013) 249 CLR 9}};
{{Cite AustLII|litigants=Unions NSW v NSW|year=2013|court=HCA|num=58|parallelcite=(2013) 252 CLR 530}};
{{Cite AustLII|litigants=Gibbs v Christies Beach Sports & Social Club (No 1)|year=2000|court=SADC|num=28}}

See also {{cite AustLII|litigants=Brandy v Human Rights & Equal Opportunity Commission|year=1995|court=HCA|num=10|parallelcite=(1995) 183 CLR 245}}

{{cite AustLII|litigants=Grollo v Palmer |year=1995|court=HCA|num=26|parallelcite=(1995) 184 CLR 348}};

{{cite AustLII|litigants=Wainohu v New South Wales |link=Wainohu v New South Wales|year=2011|court=HCA|num=24|parallelcite=(2011) 243 CLR 181}};

{{cite AustLII|litigants=Hilton v Wells |link= |year=1985|court=HCA|num=16|parallelcite=(1985) 157 CLR 57}};

{{cite AustLII|litigants=KS v Veitch (No 2) |link= |year=2012|court=NSWCA|num=266}};

{{cite AustLII|litigants=Gypsy Jokers Motorcycle Club INC v Commissioner of Police [No2] |link= |year=2008|court=WASC|num=166}}

{{cite AustLII|HCA|18|1996|litigants=Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (Hindmarsh Island case) |parallelcite=(1996) 189 CLR 1}}

See also {{Cite AustLII|litigants=Kable v State of NSW|year=2012|court=NSWCA|num=243}};
{{Cite AustLII|litigants=Fencott v Muller|year=1983|court=HCA|num=12|parallelcite=(1983) 152 CLR 570}};
{{Cite AustLII |litigants=Kirk v Industrial Relations Commission |link=Kirk v Industrial Relations Commission |year=2010 |court=HCA |num=1 |parallelcite=(2010) 239 CLR 531}};
{{Cite AustLII |litigants=Attorney-General [NT] v Emmerson |link= |year=2014 |court=HCA |num=13 |parallelcite=(2010) 253 CLR 393}}

}}

• Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed., Federation Press, Annandale NSW, 2002)
• John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths, Sydney, [1901] 2002)
• Leslie Zines, The High Court and the Constitution (4th ed., Butterworths, Sydney, 1997)
• Greg Craven, "Conversations with the Constitution" (1st ed, UNSW Press, Sydney, 2004)

• [https://web.archive.org/web/20061004014032/http://scaleplus.law.gov.au/html/pasteact/1/641/top.htm Full text of the Constitution] from the Australian Attorney-General's Department

{{Constitution of Australia}}

{{DEFAULTSORT:Australian Constitutional Law}}