Australia has, mercifully, been spared from revolutionary changes of grundnorm or “rules of recognition”, with their consequential appeals to “necessity”, of the sort which have plagued courts in Pakistan, lJganda, Ghana, Nigeria, Zimbabwe, the Seychelles and Grenada, among others. But that has not meant that arguments based upon extra-constitutional powers and prohibitions have been absent from Australian constitutional jurisprudence. Human ingenuity being what it is, commentators and even judges, undaunted by the absence of a tenable constitutional argument, have occasionally resorted to extra-constitutional notions.

This paper explores the boundary between constitutional rules and principles and extra-constitutional political notions. That boundary is, of course, indistinct because the constitution includes implied powers and prohibitions. Hence, opinions will inevitably differ as to whether a particular power or prohibition is implied in the Constitution and, thus, is constitutionally conferred or imposed, or alternatively arises (if at all) extra-constitutionally.

Opening the Federal Government’s National Conference on Legislative and Award Restrictions to Women’s Employment in October 1986, the Prime Minister, Mr Hawke, reaffirmed the government’s commitment to equal employment opportunity, based on the belief that merit should be the major principle in determining employment and promotion. Yet he recognised that at present there are many obstacles to the achievement of that goal. One particular obstacle which limits women’s opportunities to participate fully in the workforce is the existence of a range of Federal and State legislative, regulatory and award provisions, which exclude women from certain occupations or industrial processes, prevent their advancement and contribute to a concentration of women at the bottom end of the labour market.

Occupational health and safety legislation in particular, is littered with discriminatory provisions. They relate to such matters as the handling of heavy weights, shiftwork, the provision of special amenities and facilities, lead processing, industrial processes, underground mining, and apprenticeship.

Under the provisions of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), the Seat of Government (Administration) Act 1910 (Cth) (the Administration Act) and other Acts which contain parallel provisions, either House of the Commonwealth Parliament can disallow virtually any delegated legislative instrument laid on the table. Originally however, there were no disallowance provisions in the 1901 version of the Interpretation Act although, even then, disallowance machinery had been introduced into specific Bills, particularly those of a fiscal nature.

The principle that all federal regulations be subject to disallowance by resolution of either Chamber originated in the Senate and it was eventually achieved by a Senate amendment to the Interpretation Act in 1904. The rationale was simple and compelling – without such a procedure, a Minister who can make regulations obtains a larger power of legislation in that respect than the Senate itself possesses.

John Locke defined political power·in part as “a Right of making Laws with Penalties of Death, and consequently all less Penalties ... ”. Capital punishment, and a wide range of barbaric penalties, are no longer with us. Of the forms of punishment that remain, imprisonment is generally recognized as the most serious. Although generally overlooked deportation must rank not far behind. Like imprisonment, deportation can result in considerable hardship and suffering, not only to the person subjected to the measure, but to his or her family and friends. Losing the right to live in what one regards as one’s homeland can be seen as even more serious a deprivation than losing one’s liberty.

Given the significance of the measure, it is necessary to consider not just the specific conditions under which the state is entitled to deport someone, but more fundamentally, who it is entitled to deport. As a constitutional issue, debate in Australia has centred on the question of how the Commonwealth’s immigration power is to be interpreted.

Constitutional law—Commonwealth—Legislative power—Implied limitations—Power to bind States—Power to bind State authorities—Discriminatory law—Invalidity of law—Commonwealth Constitutions 51(xxxv)—Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth).

Industrial law—Commonwealth—Conciliation and arbitration—Legislative power—Implied limitations—Power to bind States—Power to bind State authorities—Discriminatory law—Extent to which discrimination authorised—Commonwealth Constitution s 51 (xxxv)—Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth).