Part VI Federalism, Ch.36 Federal Jurisdiction

This chapter identifies the origins, content, and operation of federal jurisdiction in Australia. In the United States the creation of federal jurisdiction was the necessary concomitant of the establishment of the judicial arm of federal government. The same could not be said of the conditions for Australian federalism. Federalism Australian-style did not require a federal system of courts. Further complicating the issue was the ‘autochthonous expedient’: the facility provided to Parliament for the use of State courts to exercise federal jurisdiction. Hence the chapter also seeks to suggest that the discordance between the concept and purpose of federal jurisdiction left the High Court with the challenging task of conceptualizing ‘judicial federalism’. In executing that task, High Court jurisprudence has presented differing conceptions of the place of State courts within the federal judicial system.

Part V Separation of Powers, Ch.28 The Separation of Judicial Power

This chapter discusses the separation of judicial power principle in Australia. First, it considers the history of the principle and whether it was intended or assumed by the Constitution's drafters. Next, the chapter examines the evolution of the principle in the High Court's jurisprudence, as well as its underlying rationales. Hereafter, this chapter considers the practical ramifications of the principle, and the methods and techniques adopted by the High Court to respond to some of its ‘inconvenient’ consequences. Finally, the chapter considers two of the core underlying rationales in the context of controversial issues in contemporary jurisprudence. It analyses the separation of judicial power principle and the protection of individual rights, in addition to the separation of judicial power principle and federalism. The chapter concludes by briefly commenting on likely future developments.

Part IV Practice and Process, Ch.22 Justiciability

This chapter examines the notion of ‘justiciability’ in Australia. In this chapter, justiciability is understood as referring to issues considered appropriate and capable of being subject to judicial resolution and relief. The primary function of courts is to resolve legal disputes. Constitutional law questions, of their nature, tend to overlap with political, social, moral, and economic issues. Disputes in these areas may raise issues which courts are not well-suited to resolve. Further, there may be a concern about whether a case presents a real controversy for determination which is in dispute between the parties before the court, which is appropriately raised by those parties, and/or which is capable of being quelled in whole or part by judicial remedy. Such issues are linked in the Australian constitutional context to the interwoven requirements that there be a ‘matter’ before the court capable of determination by exercise of the ‘judicial power of the Commonwealth’.

Part IV Practice and Process, Ch.21 Standards of Review in Constitutional Review of Legislation

This chapter explores the High Court's jurisdiction in Australia to review legislation for constitutional validity. Every Australian court of competent jurisdiction has the power to declare a law of the Commonwealth or of a State void because of transgressing the Constitution. The High Court, which is the ultimate court of appeal in Australia, is the authoritative and final interpreter of the Constitution. Though this authority is not expressly stated in the Constitution, it can be discerned through various sources. Furthermore, the methods of review vary according to both the nature of the constitutional head of power under which legislation is said to have been enacted, as well as whether the challenge to the validity of the legislation is based upon its restrictive effect upon a constitutionally protected freedom. These freedoms are not individual rights or freedoms, but instead effect a restriction or limitation on the legislative power of the Commonwealth.

Part III Themes, Ch.18 Australia in the International Order

This chapter offers an account of Australia's engagement with the international legal order, through different aspects of the relationship: designing international institutions, litigating in the World Court, and implementing international standards. These are only fragments of the full picture, but they illustrate both Australia's embrace of and distancing from the international legal order. Australia's relationship with the international legal order overall is marked by a deep strand of ambivalence. It has played both the part of a good international citizen as well as that of an international exceptionalist. In some fields, Australia has engaged creatively in international institution-building, even if with a wary eye to protect certain Australian interests. In other areas, particularly human rights, the relationship is distinctly uneasy, with Australia appearing to believe that international standards should regulate others and that it is somehow above scrutiny.

Part III Themes, Ch.17 Unity

This chapter considers national unity in Australia. It focuses first upon the absolute freedom of intercourse among the States of which section 92 of the Constitution commands. The chapter then turns to the absence of disability or discrimination required by section 117. Next, it considers the operation of section 109 not only to adjust relations between Commonwealth and State legislatures but to meet the entitlement of ‘the ordinary citizens … to know which of two inconsistent laws he is required to observe’. Here, reference is made to the uniform quality of justice throughout the Commonwealth which these ‘ordinary citizens’ would be entitled to expect. Finally, the chapter discusses the relationship between ‘the people’, the franchise, and citizenship, and what on occasion has been identified as the implied ‘nationhood’ legislative power of the Parliament, or ‘nationhood’ as an attribute of the executive power of the Commonwealth.

Part III Themes, Ch.13 Legitimacy

This chapter charts the uneven progression since federation of popular sovereignty as a legitimating force in Australian constitutionalism. It describes how the sociological and moral facts which lie outside the constitution, but which shape our understanding of its legitimacy, can come to be incorporated within the constitution, and to shape our understanding of its law. The chapter begins with the particular conception of popular sovereignty that the Constitution introduced into the regime. This was a political rather than a juridical conception; a fact determining legitimacy rather than legality. But the chapter reveals that the boundary between legitimacy and legality is a porous one. In a wide variety of ways, conceptions of legitimacy influence standards of legality. The course of that influence is then traced through the twentieth century before the chapter returns to arguments presented by Sir Edmund Barton on the last day of the Australasian Federal Conventions in 1898.

Part I Foundations, Ch.5 Evolution

This chapter is about Australian constitutional evolution. It concerns the meaning, the processes, and the possibilities of constitutional change in Australia. ‘Constitutional evolution’ here means the transformation of the Australian constitutional system from its original form in 1901 into different forms until it reached the form we know today, by an aggregation of changes over time. These changes have mostly occurred in the constitutional space for which the written Constitution originally provided, with the result that, from 1901 until now, the Constitution has provided the framework for the Australian federation. The Constitution, as enacted by the British Parliament and as formally amended by popular referenda, has been critical to this evolutionary process; but the changes in the constitutional system, though consistent with the written text, have not been required by it.

Part VII Rights, Ch.44 Legality

This chapter identifies and explores the relationship between the common law principle of legality and the Australian Constitution. To this end, the chapter considers in some detail how the courts might use the Constitution to provide a stronger normative justification for the principle, better fix the content of the rights it operates to protect, and inform how it is applied. The analysis undertaken is based on the view that much of the recent (and likely future) development of the principle in Australia—indeed the principles of statutory interpretation more generally—may well be constitutionally driven. To do so, the present status of the principle of legality is outlined in this chapter. Its evolution in Australian law and the key points of doctrinal controversy and methodological disagreement are also traced and identified.

Part VII Rights, Ch.42 Religion

This chapter turns to section 116 of the Commonwealth Constitution in Australia, which prohibits the Commonwealth from legislating in respect of religion. After an overview of the history and context of section 116, this chapter examines the way that the High Court has interpreted the term ‘religion’, the free exercise clause, and the establishment clause. The definitional issue brings the Court closest to the usual interpretative exercise relevant to other constitutional and statutory provisions. Its case law in this area has been more sophisticated and detailed than has been in the other two areas. With respect to religious freedom and non-establishment, the Court has had a focus on technical aspects of interpretation, parliamentary sovereignty, and limitations of the role of the courts that have allowed it to avoid the necessity of engaging in the deeper, more complex issues that arise in similar constitutional contexts.