Hanks Australian constitutional law : materials and commentary

Full Title
Copyright
Preface
Acknowledgments
Table of Cases
Table of Statutes
Table of Contents
	Chapter 1 An Introduction to Australian Constitutional Law
		Introduction
		The Nature, Forms and Enforcement of Constitutional Law
			Constitutions and ‘the rule of law’
			Constitutions as ‘higher’ or ‘paramount’ laws
				State Constitution Acts are not ‘higher laws’
				The common law in Australia
			Enforcement of constitutional law
				A mainly judicial function
				Judges and ‘counter-majoritarianism’
				What Australian constitutions do and don’t say about their enforcement
				How (and why) the High Court of Australia became the final authority as to the constitutionality of legislation and government action
			Consequences of unconstitutionality
			Constitutional conventions
		Sources of Australian Constitutional Law
			The contribution of history
			The longevity of Imperial power in Australia
				Imperial power to legislate and the problem of ‘repugnancy’ of local laws
				Colonial Laws Validity Act 1865
				Privy Council appeals
				Balfour Declaration 1926 and Statute of Westminster 1931
			The Australia Acts
		Federalism
			A federal compact
			Co-operative federalism
		Parliamentary Government and Sovereignty
		Territorial Limits on Legislative Power
			State parliaments
			Commonwealth Parliament
		Representative and Responsible Government
			Responsible government
			Representative government
		The Separation of Powers
			The political theory of a separation of powers
			Legislative and executive powers — the Commonwealth
			Legislative and executive powers — states
	Chapter 2 The Parliaments and Legislative Procedures
		Introduction
			Parliamentary government in the colonies
			Legislative assemblies in the territories
		The Structures
			New South Wales
			Queensland
			South Australia
			Tasmania
			Victoria
			Western Australia
			Northern Territory
			Australian Capital Territory
			Norfolk Island
			Restructuring parliaments
			Commonwealth Parliament
				The federal movement
		Duration of Parliament
			State parliaments
				New South Wales
				Queensland
				South Australia
				Tasmania
				Victoria
				Western Australia
			Territory legislative assemblies
				Northern Territory
				Australian Capital Territory
			Commonwealth Parliament
			Adjournment, prorogation and dissolution
		Members of Parliament: Qualifications and Disqualifications
		Voting for Parliament: The Franchise
			Removal of income and property qualifications for men
			Enfranchising women
			The new Commonwealth’s first electoral act
		The Distribution of Seats
		Parliamentary Privileges
			Commonwealth Parliament
			State and territory parliaments
				New South Wales
				Queensland
				South Australia
				Tasmania
				Victoria
				Western Australia
				The territories
		Standard Legislative Procedure
			Introduction
			The legislation
			Standing orders
			Royal assent
			Reservation
			Disallowance
		Special Procedures (Financial Legislation)
			State parliaments
			Commonwealth Parliament
			The Senate’s deferral of supply: 1975
			Non-compliance with procedures and forms: ss 53, 54 and 56
			Non-compliance with form: s 55
		Alternative Procedures
			State parliaments
			The legislation
			Commonwealth Parliament
		Restrictive Procedures
			State parliaments
			The legislation
			Commonwealth Parliament
				Background: an inflexible Constitution
		Judicial Review of the Legislative Process
	Chapter 3 Constitutional Interpretation and Characterisation
		Introduction
		Constitutional Interpretation
			Different approaches
			What approach has been adopted by the High Court?
				Judicial views on interpretive method
				Rejection of all-embracing theory
			Key dimensions of the court’s approach to constitutional interpretation
				The Engineers’ rules of interpretation
				The Jumbunna principle: interpreting provisions broadly
				The relationship of one Commonwealth power to another
				Meanings not tied to 1900
				Use of history
				The influence of precedent and overruling earlier constitutional decisions
				Drawing implications
				Use of comparative and international law when interpreting the Constitution
			The political dimensions of constitutional interpretation
		Characterisation
			Characterising a law
			Sufficient connection
				Subject matter powers vs purposive powers
				Core area vs incidental area of subject matter powers
				Establishing a sufficient connection
			Dual characterisation
			The relevance of legislative purpose to characterisation
			Proportionality and characterisation
	Chapter 4 Commonwealth Legislative Powers
		Trade and Commerce Power
		Corporations Power
		External Affairs
			Matters geographically external to Australia
			Implementation of international agreements
			Matters of international concern
			Relations with other countries
		The ‘Races’ Power
			The original s 51(xxvi)
			The 1967 referendum
			Proposals to replace s 51(xxvi)
			Judicial interpretation of s 51(xxvi)
				‘[T]he people of any race’
				‘… for whom it is deemed necessary to make special laws’
				Laws discriminating against Indigenous Australians
				Kartinyeri v Commonwealth
			Should the Constitution prohibit racially discriminatory laws?
				Effect of the Commonwealth Racial Discrimination Act on the states and state laws
				Proposed constitutional reform
		Defence Power
			Anti-terrorism laws
			Discipline of defence force members
			Preparation for war
			The power during wartime
	Chapter 5 Commonwealth Financial Powers
		Taxation Power
			The general definition of a tax
			A compulsory exaction or charge
			Public authority
			Public purposes
			Fees for services and related payments
			Fines and penalties
			Taxes must not be arbitrary
			Non-compliance with form: s 55
			Characterisation and s 51(ii)
		Excise Duties
		Commonwealth Grants
			The Uniform Tax cases
			Specific purpose grants
			Limitations on s 96
		Commonwealth Power to Spend
	Chapter 6 Federalism: The Legal Relations
		Inconsistency of Laws
			Federal supremacy
			Requirement of valid and operative laws
			What is a ‘law’ for the purposes of s 109?
			The common law is not ‘law’ for the purposes of s 109
			‘Inconsistent’
				The orthodox tests
				Two added layers of complexity: operational inconsistency and the ‘vary, detract from or impair’ test
				There must be a ‘real conflict’
			The tests applied
			Express intention to displace state law (or ‘cover the field’)
			Express intention to avoid inconsistency
			‘Invalid’
			Inconsistency between Commonwealth and territory laws
		Intergovernmental Immunities
			Foundation of intergovernmental immunities
			The ‘reserved powers’ doctrine
			Erosion of the two doctrines
			Commonwealth laws and state governments
			State laws and the Commonwealth
			State laws and Commonwealth places
		Intergovernmental Co-Operation: Involvement of Officials
			Commonwealth–state ‘bucket’ schemes
			Commonwealth officials performing functions under state law
			Performance of functions under Commonwealth law by state officials
		Express Prohibitions On Commonwealth Discrimination against the States
			‘Between States’
			The meaning of discrimination and preference
	Chapter 7 The Executive
		Introduction
			The law and convention of ‘the Crown’
			‘The Crown’: a term with many meanings
		The Sovereign and her Australian Representatives
			The Queen and Commonwealth of Australia
				Sovereign, sovereignty and citizenship
				Elizabeth the Second, Queen of Australia
				The law of royal succession
				‘Demise of the Crown’
				The Queen, the Commonwealth and the Governor-General
			The Queen, the states and their Governors
				Is there a Queen of Queensland (and of each other state)?
				The office of Governor since colonial times
				The Australia Acts and 1986 Letters Patent
		Responsible Government and the ‘Reserve Powers’
			Responsible government
				Responsibility, mandate and representation
				Principles of responsible government and their limitations
				Conventional actors and institutions of responsible government
				Parliament’s ‘scrutiny function’
				Reconciliation of competing conventions
				Constitutional acknowledgment of responsible government
				‘Caretaker conventions’
			Reserve powers of the Queen’s representatives
				Formation of a government where there is a ‘hung’ parliament
				Dismissing a First Minister who has lost the confidence of the house
				Refusing a dissolution of parliament
				Dismissing a government that acts illegally?
				Sources of advice for a sovereign’s representative contemplating exercise of a ‘reserve power’
				Constitutional provisions relating to the ‘reserve’ powers
		The Executive arm of Government
			What kind of legal creature is a government?
			The legal institutions of the executive
				Core executive institutions
				Constitutional provisions and Letters Patent
				Statutory authorities and government-owned or controlled companies
				Outsourcing of government functions
		Executive Powers, Rights and Privileges
			Sources (or origins)
				Legislation
				Common law
				Constitutional instruments
			Executive powers
				State
				Commonwealth
			Constitutional mechanisms for control and accountability of executive action
			Executive rights and privileges
			Executive ‘immunities’ and ‘the rule of law’
				Application of legislation and private law to the executive
				Application of statutory regimes to the executive
				Liability of ‘the Crown’ to private law suits and judgment enforcement
				Crown servants, agents, contractors and others acting under government orders
	Chapter 8 The Australian Judicial System
		Introduction
		Separation of Commonwealth Judicial Power
			Establishing the separation of judicial power principles
			Defining judicial power
			Application of the separation of judicial power principles
				Only courts can exercise Commonwealth judicial power
				Courts cannot exercise non-incidental non-judicial power
			Exceptions to the separation rules
		Commonwealth Judicial Power and Federal Jurisdiction
			‘Matters’
			The heads of federal jurisdiction — ss 75 and 76
				Section 75(iii) and (iv): government parties
				Section 76(ii): arising under laws made by parliament
				Section 75(v): officer of the Commonwealth
				Section s 76(i) and the power of judicial review
				Section 75(i) — treaties
			Accrued jurisdiction
			The exclusivity of Ch III as a source of original jurisdiction — cross-vesting of state jurisdiction
		Federal Courts
			Power to define jurisdiction
			Exercise of federal jurisdiction by court officers other than judges
			Persona designata
		State Courts Exercising Federal Jurisdiction
			Investiture of federal jurisdiction
			The place of state courts in the federal system
				Parliament’s power over state courts
				Which members of a state court can exercise federal jurisdiction?
			Chapter III limitations on state legislative power
				The development of the Kable principles
				Kable refined
				Independence and impartiality
				Procedural fairness
				New directions for the Kable principles
		Territory Courts
		The High Court’s Appellate Jurisdiction
			‘Judgments, decrees, orders, and sentences’
			‘Exceptions’ and ‘regulations’
			Appeals to the Privy Council
	Chapter 9 Express Rights and Freedoms
		Introduction
		‘The Australian Reluctance about Rights’
		Rights and Freedoms and the States
		Freedom of Interstate Trade, Commerce and Intercourse
			Trade and commerce
			A clash of visions
			Cole v Whitfield — a new start
			Section 92 and the modern economy
			An expanded operation for s 92 — national markets?
			Freedom of intercourse
		Acquisition of Property
			Section 51(xxxi): role and relationship to other Commonwealth powers
			What constitutes ‘property’?
			Acquisition where property interest taken by others
			Acquisition vs regulation of property
			Resolving or adjusting competing claims
			Rights inherently susceptible to variation
			No acquisition where just terms incongruent
			Just terms
		Jury Trial
			‘Law of the Commonwealth’
			‘Trial on indictment’
			The elements of the ‘offence’ to be tried by jury
			Jury waiver
			The requirements of a s 80 jury trial
			Concluding observations
		Religious Freedom
			Introduction
			Relationship between ss 116 and 122 — does s 116 apply to laws made under the territories power?
			‘Religion’
			‘Establishing any religion’
			‘Prohibiting the free exercise of any religion’
			No religious test for any office under the Commonwealth
		Interstate Discrimination
			Introduction
			The High Court’s decision in Street
			Street applied in subsequent cases
	Chapter 10 Implied Rights and Freedoms
		Introduction
		The Nature of Implied Rights and Freedoms
		Rights Implied from the System of Representative and Responsible Government Established by the Constitution
			The implied freedom of political communication: origins and derivation
			The implied freedom of political communication: expansion and disagreement
			The High Court’s unanimous acceptance of the implied freedom of political communication
			What is ‘political communication’ for purposes of the implied freedom of political communication?
			The first limb of the Lange test
			The second limb of the Lange test
				Reformation
				When is the end or purpose of a law not ‘legitimate’ in the relevant constitutional sense?
				The reasonably appropriate and adapted test and proportionality
			The implied freedom of political communication and the distinctive Australian conception of representative government
			The implied freedom of political communication and discretionary power
			Freedom of movement and freedom of association
			Voting in federal elections
				Constitutionally required franchise — an implied right to vote in federal elections?
				Compulsory system of preferential voting
		Rights Derived from Chapter III of the Constitution
			Legal equality (as substantive due process)
			Due process
			Involuntary detention — the Lim principle
			Control orders, preventative detention and the courts
Index