WEEK 1- LAW2111

CONSTITUTIONAL
LAW

Dr Nadirsyah Hosen PhD

Senior Lecturer
Monash Law School
Room: 223 (Clayton)
Email:
nadirsyah.hosen@monash.edu
1

Course Information
Moodle
Teaching
Contact Details
Taping (only Stream 2)
Tutorials start at week 6
2

Assessment
Compulsory Assessment
Tutorial Participation = 10%
Compulsory Research assignment of 1,500 words = 30%
Final exam of 2 hours writing time, and 30 minutes reading and
noting time = 60%

Tutorial Assessment:
10% of mark in total, as follows:
Tutorial attendance worth 5%
Tutorial participation worth 5%
3

Reading Guide
Introductory reading
Prescribed text
Sarah Joseph and Melissa Castan, Federal Constitutional Law: A
Contemporary View (4th ed., LBC, 2014) (Joseph and Castan)

Highly Recommended Casebook:

Tony Blackshield and George Williams, Australian Constitutional
Law and Theory: Commentary and Materials (6th ed.,
Abridged, Fed Press, 2014)
4

Pre-class activities: prescribed reading. If you dont read, you

wont know what I am talking about.
In class: lecture and discussion
Post-class activities: tutorial

READING GUIDE
Sets out instructions, anticipated schedule of classes.
Its only a guide: There are other cases and materials that may be mentioned in
lectures that are not listed in the Reading Guide. If those cases are referred
to in the prescribed textbook or are otherwise asterisked, they are
prescribed reading. If those cases are not referred to in the prescribed
textbook, they are optional reading you may choose to read them, but are
not expected to read them. Not every case that is in your prescribed
textbook and that is discussed in class is listed in the Reading Guide
because this would make the Reading Guide too unwieldy.
Structure of the lecture might not strictly follow the reading guide. Your notes should draw on your reading, the
lectures and your own analysis. PowerPoints are signposts, indicative for your wider reading.

WE WILL LEARN THAT .

The Constitution does not mean what it says
The Constitution does not say what it means
The Constitution says some things without actually saying them
The Constitution fails to say things that might be important
The Constitution says certain things that contradict each other
(Irving, 2004)

Who really had the power to commit Australias troops to Iraq or

Syria?
How the government can detain asylum seekers without trial?
Who would be in charge in a national emergency?
Whether it would be unconstitutional to ban flag burning?

AUSTRALIAN FLAG

The flag itself is not protected by the Constitution. That is to say, there is
no constitutional provision setting out what the national flag should be.
The flag is not even mentioned.
What is now the Australian flag was the winner in a nation-wide
competition, sponsored by a newspaper in 1901, but it was not officially
adopted as the national flag until the first Flag Act in 1953. That Act, like
all others, is subject to the Constitution.
You may be surprised to learn that the Constitution does not mention
other important issues.
Despite the fact that many Australian ignore about it, why constitution
matters?

10

WHY CONSTITUTION DOES

MATTER: ALAN WRIGHT AND
JOEL PLAYER

11

CONSTITUTION IS NOT ONLY

ABOUT POLITICS
The ACT act defines "marriage" for its own purposes as "the union of 2
people of the same sex to the exclusion of all others, voluntarily entered
into for life", other than a marriage "within the meaning of" the federal
Marriage Act.
However, at the High Court, it held unanimously that the whole of the
ACT's same-sex marriage act was "inconsistent" with the federal Marriage
Act 1961 and "of no effect".
The inconsistency identified was twofold. First, the definition of "marriage"
in the ACT act was inconsistent with that in the Marriage Act. Second, the
ACT act could not nevertheless operate concurrently with the Marriage
Act, since the Marriage Act was intended to be "a comprehensive and
exhaustive statement of the law with respect to the creation and
recognition of the legal status of marriage".
12

The case that I briefly explained here is to illustrate how the

Constitution could affect our lives. When explaining the case, I
refer to some terms and issues that we are going to examine in
detail in this Unit: relationship between federal, states and
territories, concurrent powers, covering the fields in section 109,
and how the High Court examine the term marriage based on what
our founding fathers had in mind, or whether the Court is prepared
to extend such definition. This is the area of constitutional
interpretation.

13

WHAT IS A CONSTITUTION
The Constitution is the legal document upon which the
Commonwealth of Australia was founded at federation in 1901
The Constitution was written by elected delegates at a Federal
Convention that met in Adelaide, Sydney and Melbourne, and ran
for almost a full year, from 1897 to 1898. At its completion, it was
put to a referendum of the voters in each of the colonies in 1899
(and in 1900 in Western Australia). The voters approved it, and the
colonial parliaments also accepted it, and so (because the colonies
were part of the empire) it was then taken to London, where the
United Kingdom Parliament passed it as an Act.

14

THE BIG PICTURE: VIDEO

Parliamnetary
Sovereignty

Rule of Law

s 128
Amendment
s117 rights of
residents in
states

Federal
nature

power over
territories

state
constitutions

Preamble
States and
Territories

Constitution

s96 grants
s92 trade
commerceand
intercourse to
be free

Ch I
Parliament

General

s109
inconsistency

Senate

Trade,
finance

elections &
qualificatons

customs
duties, excise,
bounties

House of
Representatives
Ch II
Executive

powers
Governor
General

appropriations
& spending

Ch III
Judiciary
civil
servants,
military

appointments

appeallate
jurisdiction

Ministers

original
jurisdiction

trial by jury

15

FUNDAMENTAL CONCEPTS
Parliamentary sovereignty
The rule of law
Constitutional conventions
Bicameralism
Representative Government
Responsible Government
Parliamentary control of supply
Separation of Powers
Federalism
16

PARLIAMENTARY
SOVEREIGNTY
No express recognition in Cth
Constitution so where does it come
from?
Is parliamentary sovereignty absolute in
Australia?

Sovereignty of the people and democratic government lie at the

heart of Australias Constitution. But their exercise cannot be
absolute. There are limits. The Parliament cannot do just anything,
or pass just any kind of Act, simply because it was elected.
For a start, the laws the Australian people can make (or authorise
their representatives to make) are framed by, and thus limited by,
the Constitution.
Therefore, the first, and most fundamental thing one needs to know
about the Constitution, is that governments can only do what the
Constitution permits.

18

PARLIAMENTARY
SOVEREIGNTY - LIMITS
Enumerated powers at Cth level:
Ss 51, 52: Commonwealth Parliament may make laws
with respect to 42 topics only.

Express restrictions
Eg s 92: Trade, commerce and intercourse between the
States shall be absolutely free.

Judiciary determines whether Parliament has acted

within power.

THE RULE OF LAW

The bedrock of the classical ideal of constitutional government, and
hence of freedom, is a particular conception of the rule of law. It is
said that the rule of law is a necessary condition of
constitutionalism.
So what is the rule of law? To be honest, the term rule of law has
no fixed meaning. It originated in normative writings on law and
government, by scholars like Dicey, Raz, Fuller, etc and each
tailored the term to fit his or her vision of the ideal or just state.

20

What does rule of law mean?

No universal definition modern ideal; theories include:
Embodiment of the
sovereigns will.
Thomas Hobbes 1588-1679
Law has authority over
government guards
against unfettered
government discretion.
Jean-Jacques Rousseau
1712-1778

No man is punishable or can

be made to suffer except for
a distinct breach of law.
Albert Van Dicey 1835-1922
People should obey the law
and be ruled by it.
Joseph Raz 193921

RULE OF LAW
8 elements of rule of law which is essential for the efficacy of any system of legal rules
(1) all laws should be prospective, open and clear;
(2) laws should be relatively stable;
(3) the making of specific legal orders or administrative directives should be guided by open, stable clear and
general rules;
(4) the independence of the judiciary must be guaranteed;
(5) the principles of natural justice must be observed if the law is to be able to guide action;
(6) the courts should have the power to examine the actions of the other branches of government, to
determine whether they conform with the law;
(7) the courts should be accessible, so that a persons ability to vindicate legal rights is not made illusory by
long delays or excessive costs;
(8) the discretion of law-enforcement agencies should not be allowed to pervert the law.
Joseph Raz, The Rule of Law and Its Virtue (1977) 93 Law Quarterly Review, 198.
22

RULE OF LAW IN A NUTSHELL

No one is
above the law
Equality of all
before the
law

https://
www.youtube.com/watch?v=IZDd2v18v
fw
23

CONVENTIONS
You may be surprised to find out that some of the most important component
in our Constitution are based on conventions. The textbook mentions how ss.
5, 58 and 64 regarding the power of the Governor General actually become
limited by conventions.
Other example is Section 72 which states: The Justices of the High Court and
of the other courts created by the Parliament.. shall be appointed by the
Governor-General in Council.
In practice, judges are appointed by the Cabinet. The Governor-General
simply rubber stamps the decision at a meeting of the Executive Council.
There is no known instance of the Governor-General attempting to influence
these decisions.
But there is no definitive list of conventions, so their content is sometimes
controversial. As you are aware, the 1975 constitutional crisis is illustrative.
24

1975 CRISIS
The Whitlam Governments budget failed to pass through a Senate
controlled by the Opposition. One view is that the Senate breached
convention by its unprecedented failure to pass a supply bill. The
alternative view is that the Whitlam Government breached
convention by failing to resign when it could not guarantee supply.
The Governor-General resolved the crisis by sacking the Whitlam
government and forcing a double dissolution. This debate has never
been conclusively resolved.
Another problem is that if an Australian government breaches a
constitutional law, it may be punished by, for example, decisions of
the High Court which struck down the legislation. By contrast, the
breach of constitutional conventions does not attract any legal
sanctions. It is only moral or political obligation to follow the
conventions.

25

Other basic concepts that we need to know at this week is

representative and responsible governments. In
constitutional cases, you may find out that the High Court refer to
these two basic concepts frequently.
The concept of representative government means that laws are
made with the consent of those who are subject to the law, through
their representatives.
Responsible government is a system of government in which the
executive, the administrative arm of government, is responsible to
the legislature. In turn, the members of legislature are responsible
to the people at elections
26

BICAMERALISM

Commonwealth

Parliament

Senate
House of
Representativ
es

Executive

Judiciary

What mechanisms exist to hold the

Commonwealth Parliament to account?
What textual foundations do these
mechanisms have?

REPRESENTATIVE
GOVERNMENT
S7

The Senate shall be composed of senators for

each State, directly chosen by the people of the
State, voting, until the Parliament otherwise
provides, as one electorate.
S 24
The House of Representatives shall be
composed of members directly chosen by the
people of the Commonwealth, and the number
of such members shall be, as nearly as
practicable, the number of the senators.

RESPONSIBLE GOVERNMENT
Drawn from
Responsible
to
Ministers

Parliament
Responsible to
Elected by
Responsible
to
Public service

People

SEPARATION OF POWERS

Parliament
Chapter I

Executive
Chapter II

Judiciary
Chapter III

FEDERALISM AND
LEGISLATIVE POWER
Cth legislative power

S 52
S 109

S 51

Cth legislative power

S 52
S 51

Self
governing
acts

State constitution

Territory selfgovernment act

State legislative power

Territory legislative power

S 122

GENERAL QUESTIONS
1. What are the functions of a constitution?
2. How is a constitution different from an
ordinary statute?

3. How much do Australians know or care

about the Constitution?

33

PREAMBLE OF THE
CONSTITUTION
The format
The history
The values
The vision
Do we have them in our Preamble?

34

COMPARING PREAMBLES
South African Constitution Preamble

US Constitution Preamble
We the People of the United
States, in Order to form a more
perfect Union, establish
Justice, insure domestic
Tranquility, provide for the
common defence, promote the
general Welfare, and secure
the Blessings of Liberty to
ourselves and our Posterity, do
ordain and establish this
Constitution for the United
States of America.

We, the people of South Africa,

Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country;
and
Believe that South Africa belongs to all who live in it, united in our
diversity.
We therefore, through our freely elected representatives, adopt
this Constitution as the supreme law of the Republic so as to
Heal the divisions of the past and establish a society based on
democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which
government is based on the will of the people and every citizen is
equally protected by law;
Improve the quality of life of all citizens and free the potential of
each person; and
Build a united and democratic South Africa able to take its rightful
place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
God sen Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

35

OVERVIEW OF THE
CONSTITUTION
a.

Identify at least one thing that surprised you at having been

included in the text of the Constitution. Consider why it was
included.

b.

Identify at least one feature that you think is lacking. Consider

why it was not included and why you think it should be.

36

BREAKING THE COLONIAL TIES

1931:
The Statute of Westminster Act 1931
(Imp) provided for dominion
parliaments to assume full legislative
competency.
1942:
The Statute of Westminster Adoption
Act 1942 (Cth) provided that the
Colonial Laws Validity Act 1865 (Imp) no
longer applied to the Commonwealth of
Australia.
1986:
The Australia Act 1986 (Imp) and
Australia Act 1986 (Cth) repealed the

SUMMARY TIMELINE
1788 Arrival of English, est of colony, terra nullius,
settlement
1800s Official reception of English law, validity of NSW law
1901 Federation: Constitution, new nation, States,
institutions
1942 Statute of Westminster
1986 Australia Acts
1992 Mabo, some recognition of Indigenous laws, terra
nullius gone
1999 Republic Referendum
2008 we are sorry!
38

CONSTITUTIONAL CHANGE
S 128: Procedure for a referendum
Majority of people in a majority of states
Majority overall

Is this a high or a low threshold, relative to other

countries?
Should Australia become a republic?

WHAT NOW?
The Constitution is out of date
How to make it as a living constitution?
Up-dating through interpretation is permitted and is effectively all
that is needed

40

Judicial review
Constitution is supreme
Judicial interpretation of Constitution
Invalidation of laws
Importance of judicial independence
Apolitical judiciary? Judicial appointment
DR JULIE DEBELJAK

41

THE CONSTITUTION IS ALL ABOUT POWER

Discuss, making reference to the structures of government and
basic concepts that are contained in the Constitution
1. ss 1-2, 51-2
2. ss 7, 24, 128
3. ss 61-4
4. ss 71-2
5. ss 106, 107 and 109

42

REMEMBER: WE WILL LEARN

THAT .
The Constitution does not mean what it says
The Constitution does not say what it means
The Constitution says some things without actually saying them
The Constitution fails to say things that might be important
The Constitution says certain things that contradict each other

43