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Why is Australia’s Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence

Published online by Cambridge University Press:  24 January 2025

G J Lindell
G J Lindell*
Affiliation:
Faculty of Law, Australian National University
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Extract

The enactment of legislation to sever the remaining constitutional links between the United Kingdom and Australia makes it desirable to address the question as to why Australia's Federal Constitution should be regarded as an instrument of higher law and thus legally binding. The answer which one gives to that question may be significantly different to the answer which a lawyer is likely to have given when the Commonwealth of Australia Constitution Act 1900 (UK) was enacted.

A possible answer to the question was suggested by Sir Owen Dixon in a well known lecture delivered by him:

The framers of our own federal Commonwealth Constitution (who were for the most part lawyers) found the American instrument of government an incomparable model. They could not escape from its fascination. Its contemplation damped the smouldering fires of their originality. But, although they copied it in many respects with great fidelity, in one respect the Constitution of our Commonwealth was bound to depart altogether from its prototype. It is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions. In the interpretations of our Constitution this distinction has many important consequences. We treat our organs of government simply as institutions established by law, and we interpret their powers simply as authorities belonging to them by law. American doctrine treats them as agents for the people who are the source of power and their powers as authorities committed to them by a principal. From this arises the theory that powers may not be delegated; that the agent selected by the principal to exercise a function of government may not transfer any part of his authority to some other person or body, a theory which finds no place in our system.

Type
Research Article
Information
Federal Law Review , Volume 16 , Issue 1 , March 1986 , pp. 29 - 49
Copyright
Copyright © 1986 The Australian National University

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Footnotes

The author wishes to thank Professor Leslie Zines and Associate Professor George Winterton for their comments on an earlier draft of this article.

References

1 Referred to in this article as the “Constitution Act”. Except where indicated otherwise references to “the Constitution” are to be taken as references to the Australian Federal Constitution embodied in cl 9 of the Constitution Act.

2 SirDixon, O, “The Law and the Constitution” (1935) 51 LQR 590, 597Google Scholar.

3 Kirmani v Captain Cook Cruises (1985) 59 ALJR 265, 302-303 and contrast Dawson J in the same case: ibid 310. According to Murphy J also in the same case:

The authority for the Australian Constitution then [1 January 1901] and now is its acceptance by the Australian people: ibid 276.

See also Thomson, J A, “The Australian Constitution: statute, fundamental document or compact” (1985) 59 Law Institute Journal 1199Google Scholar.

4 An issue canvassed in J A Thomson, supra n 3.

5 Crisp, L F, Australian National Government (3rd ed reprint 1975) 12Google Scholar. Voting was voluntary. See also Scott, Bennett, Federation (1975) 19CrossRefGoogle Scholar.

6 See generally Castles, A C, “The Reception and Status of English Law in Australia” (1963) 2 Adelaide Law Review 1 especially 2-5Google Scholar and also Windeyer, W J V, Lectures on Legal History (2nd ed, Revised 1957) 303-307Google Scholar.

7 R v Burah (1873) 3 AC 889; Hodge v R eg (1883) 9 AC 117.

8 A C Castles, supra n 6, 24. There had been doubts expressed by others as to the ability of local parliaments to alter or repeal English law which had been received upon settlement of the Australian Colonies. Ibid 22-23 and see generally 22-28.

9 Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130, 155-156 per Higgins J.

10 Quick, J & Garran, R, The Annotated Constitution of the Australian Commonwealth (1901) 350-352Google Scholar.

11 Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130. The contrary view of Murphy J first elaborated in Bistricic v Rokov (1976) 135 CLR 552, 565-567 did not find acceptance with other judges of the High Court: eg see China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 181 per Barwick CJ, 194 per Gibbs J, 207-215 per Stephen J, 240 per Aickin J, and contra-236-239 per Murphy J.

12 An authority effectively symbolised by the opening words of the US Constitution:

We the People of the United States ... do ordain and establish this Constitution for the United States of America.

13 Australia Act 1986 (Cth) s 10; Australia Act 1986 (UK) s 10.

14 (1979) 145 CLR 172, 183. See also Mason Jin New South Wales v Commonwealth (the Seas and Submerged Lands case) (1975) 135 CLR 337, 469.

15 According to the view of Murphy J the independent status was attained at the time of Federation but as indicated before this view has yet to gain the acceptance of other members of the High Court.

16 Referred to in this article as the “Statute of Westminster”. The latter enactment took effect in Australia from 3 September 1939 as a result of the Statute of Westminster Adoption Act 1942 (Cth).

17 Section 2.

18 Section 8.

19 Sub-section 9(1).

20 Section 4. The view has been taken that it was sufficient if the relevant British Act “expressly declared that the Dominion has requested, and consented to, the enactment thereof' (italics added): Manuel v Attorney-General [1982] 3 WLR 821.

21 Australia Act 1986 (UK). The preamble of that Act recites that the Act was passed at the request and with the consent of the Parliament and Government of the Commonwealth of Australia as well as with the concurrence of the States of Australia. The request of the Commonwealth Parliament and Government was declared in the Australia (Request and Consent) Act 1985 (Cth), and that of the States in the Australia Acts (Request) Act 1985 passed by the Parliament of each State: see NSW Act No 109/1985, QLD No 69/1985, SA No 95/1985, TAS No 99/1985, VIC No 10203/1985, and WA No 65/1985. The Commonwealth Parliament passed a substantially identical version of the Australia Act in pursuance of s 51(xxxviii), at the request of the Parliaments of all the Australian States: see Australia Act 1986 (Cth) and the State Acts referred to above.

22 Australia Act 1986 (UK) s 15. The latter provisions envisage that any Act of the Parliament of the Commonwealth, passed for this purpose, can only be passed at the request or with the concurrence of the Parliaments of all States: sees 15(1). This was not intended to limit or prevent the use of s 128 of the Constitution to confer upon the Federal Parliament the power to amend or repeal the provisions of the Australia Act: see sub-ss 15(1) and 15(3). By implication it may be argued that this precludes the use of s 51(xxxviii) ors 128 in any other way. This may have interesting implications for a State Parliament which approaches the Commonwealth Parliament for assistance in removing a “manner and form” limitation contained in the constitution of that State. It is doubtful whether s 15 of the Australia Act 1986 (Cth) could be construed as limiting the future exercise of either s 5l(xxxviii) ors 128 in the way adverted to above. That Act is, primarily at least, based on s 51(xxxviii) which, like all other powers contained ins 51 is prefaced by the words “subject to this Constitution”. The Act could not therefore alter the terms of s 128 without itself having been passed in accordance with the procedure set out in s 128.

Support for the view that s 51(xxxviii) cannot be used to amend the Constitution can be found in R Graycar and K McCullock, “Gilbertson v South Australia - The Case for s 5l(xxxviii)?” (1977) 6 Adelaide Law Review 136, 141; Sir A, Bennett QC “Can the Constitution be Amended Without a Referendum” (1982) 56 ALJ 358Google Scholar; Booker, K, “Section 51(38) of the Constitution” (1981) 4 UNSWLJ 91, 96, 110Google Scholar n 34; Winterton, G, “Comment on Section 51(38) of the Constitution and Amendment of the Covering Clauses” (1982) 5 UNSWLJ 327, 330Google Scholar n 7. The contrary view was suggested in Howard, C, “Constitutional Amendment: Les uns from Past Experiences” (1973) 45 Australian Quarterly 35, 40-41CrossRefGoogle Scholar.

23 Australia Act 1986 (Cth) s 12; Australia Act 1986 (UK) s 12. In additions 1 of both Acts provides:

No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory.

24 Australia Act 1986 (Cth) s 3; Australia Act 1986 (UK) s 3. The inability of a State Parliament to ignore “manner and form” limitations provided for in s 5 of the Colonial Laws Validity Act 1865 (UK) is reproduced in s 6 of the British and Australian versions of the Australia Act.

25 Australia Act 1986 (Cth) s 2 Australia Act 1986 (UK, s 2).

26 Ibid ss 5, 6. The view has been taken that s 106 of the Constitution provides a further legal reason why the States are bound to comply with a “manner and form” limitation: Western Australia v Wilsmore [1981] WAR 179.

27 [1952) (2) SA 428. See also Bribery Commissioner v Ranasinghe [1965) AC 172.

28 Ibid 464.

29 Ibid 468. The basic obstacle which prevented the South African Parliament from disenfranchising the black and coloured voters in the Cape Colony was finally removed by legislation which was upheld in Collins v Minister for the Interior [1957) (1) SA 552 (Appellate Division).

30 As well as the power to make Jaws which operate extra-territorially, which need not be fully discussed here. The re-definition of the legislative power granted to the State Parliament under sub-s 2(2) of both the Australian and British version of the Australia Act may still require that such laws have a connection with the State of the enacting legislature even though the State Parliaments are given all legislative powers that the Parliament of the United Kingdom might have exercised at the commencement of those Acts. This is because the powers of the United Kingdom Parliament referred to are those “for the peace, order and good government of [that] State”. A similar qualification appears in the provisions of sub-s 2(1).

31 See eg Attorney-General for N.S.W. v Brewery Employees' Union of N.S.W. (1908) 6 CLR 469, 508; R v President of the Commonwealth Conciliation and Arbitration Commission; ex parte Association of Professional Engineers of Australia (1959) 107 CLR208, 267 cf R v Federal Court of Australia; ex parte W.A. Football League (1979) 143 CLR 190, 233-234.

32 Zines, L (ed) Commentaries on the Australian Constitution (1977) 34, 56-58Google Scholar and generally Chapter 1.

33 Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920) 28 CLR 129.

34 Victoria v Commonwealth (1971) 122 CLR 353, 396.

35 Ibid 396-397.

36 L Zines, supra n 32, 24 where the passage quoted in the text was set out. The passage was taken from His Honour's judgment in Commonwealth v The Colonial Combing Spinning and Weaving Co Ltd (1922) 31 CLR 421, 438. Also of relevance are the observations of Isaacs J in Commonwealth v Kreglinger and Fernau Ltd (1926) 37 CLR 393, 413:

Constitutions made, not for a single occasion, but for the continued life and progress of the community, may and indeed must be affected in their general meaning and effect by what Lord Watson ... calls 'the silent operation of constitutional principles ... '

37 See Thomson, J A, “Altering the Constitution: Some Aspects of Section 128” (1983) 13 FLRev 323CrossRefGoogle Scholar where extensive reference is made to the writing on the subject.

38 This may be the case in relation to much of what is contained in the covering clauses in the Constitution Act, especially if most of the provisions are seen as transitional in character and as only necessary to bring the Constitution into existence so that it can operate according to its tenor. Its tenor includes of course the wide powers of alteration contained in s 128. Support for this view may be found in R Lumb, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) 9 FLRev 148, 158-163.

39 The opening words of the section read: “This Constitution shall not be altered except in the following manner ... “.

40 Western Australia v Wilsmore [1981] WAR 179.

41 Barwick CJ in New South Wales v Commonwealth (the Seas and Submerged Lands case) (1975) 135 CLR 337, 372, and China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 182; Murphy J in Commonwealth v Queensland (1975) 134 CLR 298, 336-337 and Bistricic v Rokov (1976) 135 CLR 552, 566. See also J Quick and R Garran supra n 10, 930. Contra Western Australia v Wilsmore [1981] WAR 179.

42 Canaway, A P, “The Safety Valve of the Constitution” (1938) 12 ALJ 108Google Scholar and note the following remarks made by the Privy Council in Attorney-General for the Commonwealth v Colonial Sugar Refining (the Royal Commissions case) (1913) 17 CLR 644, 656, which were adverted to by the same author:

No doubt the Act of 1900 contains large powers of moulding the Constitution. Those who framed it intended to give Australia the largest capacity of dealing with her own affairs without coming to the mother Parliament.

43 Supra n 22.

44 Perhaps it stands a greater chance of acceptance at a time far removed from the present, although it does need to be recalled that the Constitutions of the United States, and now Canada, provide for a method of constitutional alteration under which the approval of central and regional legislatures suffices without also having to obtain the approval of the people at a referendum: United States Constitution art 5, Canada Act 1982 (UK) ss 38-49, respectively. It would remain however a surprising effect of the arrangements which were primarily designed to end the residual colonial links between the Australian States and the United Kingdom and one which was clearly not highlighted at the time those links were terminated. The writer has not found it necessary to reach a concluded view on whether the possibility discussed in the text will prove to be legally sound.

45 Brennan J had occasion to deal with the difficulties involved in determining whether the relevant legislation merely “amends” or “repeals” other legislation in the context of dealing with the power to legislate conferred bys 2(2) of the Statute of Westminster in Kirmani v Captain Cook Cruises (1985) 59 ALJR 265, 291-292.

46 Sir Byers QC, M in “Conventions Associated with the Commonwealth Constitution” (letter to the Editor) (1982) 56 ALJ 316, 318Google Scholar, and in Current Constitutional Problems in Australia (Centre for Research on Federal Financial Relations, 1982), 55; RD, Lumb, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) 9 FLRev 148, 154-158Google Scholar. Compare the obiter dictum in R v Minister for Justice and Attorney-General; ex parte Skyring (Supreme Court of Queensland, 17 February 1986, unreported decision of Connolly J):

It resembles the situation which arose in the 1970s when a Government of the Commonwealth toyed with the notion of obtaining amendments of the Constitution of the Commonwealth by overriding Imperial legislation. Despite the reservations expressed by Professor Lumb ... in point of legal theory, such legislation may well have been effectual, if Her Majesty's Government in the United Kingdom could have been persuaded to introduce it and if the Imperial Parliament had agreed to enact it, although, in political terms, it would have been seen as a fundamental breach of faith with the Australian people. (ibid 5-6)

47 A similar view was taken in relation to the analogous question concerning the continuation of Privy Council appeals in countries which became independent from the United Kingdom: see Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246, 253, 258-259 where Gibbs J referred to Ibralebbe v R [1964] AC 900. The other judges in the former case agreed with Gibbs J except for Murphy J who dissented.

48 Supra n 22.

49 W Edel, A Constitutional Convention (1981) (viii).

50 Ibid 1.

51 Thomson, J A, “The Australian Constitution: statute, fundamental document or compact” (1985) 59 Law Institute Journal 1199Google Scholar. See also University of Wollongong v Metwally (1985) 59 ALJR 48, 59 where Deane J considered that “the Australian Federation was and is a union of people” and that this should affect the construction of constitutional provisions so that they may be viewed as “ultimately concerned with the governance and protection of the people from whom the artificial entities called the Commonwealth and States derive their authority”. This led him to treats 109 “as protecting the individual from injustice”. This approach, however, is likely to conflict with that advocated by the present writer below at p 44. See also the reference to the Privy Council cases mentioned below at p 46 and also the reference to the Parliament being “sovereign” and its “legislative powers being “plenary” by Mason J (dissenting) in the Metwally case ibid 54. The latter case is convincingly criticised in Ch 15 of the forthcoming second edition of L Zines, The High Court and the Constitution (1981).

52 Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920) 28 CLR 129, 148.

53 A matter specifically adverted to by Sir Owen Dixon in the remarks quoted at the outset of this article: above p 28.

54 Attorney-General for New South Wales v Brewery Employees' Union (1908) 6 CLR 469, 61l.

55 (1983) 153 CLR 297, 314.

56 (1908) 6 CLR 309, 367-368. See also R v Public Vehicles Appeal Tribunal (Tasmania); ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207, 225.

57 Compare Minister for Home Affairs v Fisher (1980) AC 319, 329. See also J A Thomson supra n 3.

58 Supra n 52. See Commonwealth v Tasmania (the Dam case) (1983) 57 ALJR 450, 487 per Mason J.

59 Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495, 550. See also ibid 539 per Mason J. The latter case was affirmed despite an attempt to reopen its correctness in R v Lambert; ex parte Plummer (1980) 146 CLR 447. Generally a head of power will not be given a restricte meaning merely because of the existence of another power but this does not mean that there may not be some cases where this will occur eg the presence of the requirement relating to “just terms” in the acquisition power (s 51(xxxi)) has been interpreted as excluding the acquisition of property under other heads of power in s 51 otherwise than in accordance with that requirement: L Zines, The High Court and the Constitution (1981) 21.

60 Tasmania v Commonwealth (1904) 1 CLR 329, 333; Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208, 213-214. Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120, 142-144 per Stephen J, and see now as to the reference which can be made to the Debates themselves as a means of ascertaining the purpose of provisions in the Constitution: Re Pearson; ex parte Sipka (1983) 57 ALJR 225, 227.

61 Winterton, G, Parliament, The Executive and the Governor-General (1983) generally 85-92Google Scholar and also the American authorities referred to in Notes 398, 403, and 437.

62 (1931) 46 CLR 73, 94.

63 Ibid 95. Those cases were R v Burah (1878) 3 AC 889, Hodge v The Queen (1883) 9 AC 117 and Powell v Appollo Candle Co (1885) 10 AC 282.

64 (1870) LR 6 QB 1, 20.

65 (1931) 46 CLR 73, 101-102.

66 Attorney-General for the Commonwealth v Colonial Sugar Refining (1913) 17 CLR 644, 656. See also the authorities referred to in J A Thomson supra n 3, 1202 n 32, and A Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed 1976) 10 n 11.

67 Victoria v Commonwealth (1971) 122 CLR 353, 370. His Honour's rejection of implications derived from the federal nature of the Constitution as a basis for the immunities enjoyed by the States was not accepted by a majority of the Court in that case (Menzies, Gibbs, Windeyer and Walsh JJ). The approach of the majority seems to have been accepted in the more recent case of Queensland Electricity Commission v Commonwealth (1985) 59 ALJR 699, 704 per Gibbs CJ; 708 per Mason J; 711, 713 per Wilson J; 721-722 per Deane J; 728 per Dawson J; c/715-717 per Brennan J.

68 Victoria v Commonwealth (1971) 122 CLR 353, 371.

69 Ibid 372.

70 Re Duncan; ex parte Australian Iron and Steel Pty Ltd (1983) 57 ALJR 649, 671 and cf Victoria v Commonwealth (1971) 122 CLR 353, 395-396 per Windeyer J who said:

As an agreement of peoples, British subjects in British Colonies, and the enactment thereafter by the sovereign legislature of the British Empire of a law to give effect to their wishes, the Australian federation can be described as springing from an agreement or compact. But agreement became merged in law. The word “compact” is still appropriate but strictly only if used in a different sense not as meaning a pact between independent parties, but as describing a compaction, a putting of separate things firmly together by force of law. The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia.

In Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920) 28 CLR 129 the majority remarked in passing that the Constitution was “the political compact of the whole of the people of Australia, enacted into binding law by the Imperial Parliament”.

71 See eg Australasian Federation Enabling Act 1896 (Vic). See also the remarks of Deane J in the case referred to above in n51.

72 Lumb, R D & Ryan, K W, The Constitution of the Commonwealth of Australia Annotated (3rd ed 1981) 31Google Scholar.

73 As was envisaged in the famous plan proposed by Dr J Quick at the Corowa Conference held in 1893, ibid 30 and R Garran, Prosper the Commonwealth (1958) 102-105.

74 Pursuant to sub-s 15(1) of the Australia Act 1986 (UK) discussed above pp 40-43.