This chapter examines section 117 of the Australian Constitution, which prohibits States from discriminating against residents in other States. Section 117 is a peculiar provision. It is not a limitation on power that invalidates offending laws: it confers an immunity on some individuals (namely, those who are Australians resident in a State, but not those who are non-Australians resident in a State or anyone resident in a territory or overseas) from offending laws. The basic methodology for determining whether section 117 applies involves a comparison of the position of the plaintiff in two scenarios. The first scenario is the actual situation of a plaintiff. The second scenario is the hypothetical situation of the plaintiff being a resident in the State alleged to have discriminated against the plaintiff. If the treatment of the plaintiff in both scenarios by the State would be the same, then there is no discrimination and section 117 does not apply. If the treatment of the plaintiff in both scenarios would be different, then there is discrimination on the ground of State residency and section 117 renders the plaintiff immune from the offending law.

This chapter examines the external affairs power. Section 51(xxix) of the Australian Constitution grants the Commonwealth Parliament power to make laws with respect to ‘external affairs’. The external affairs power has three key components and is both a subject-matter and purpose power. The external affairs power empowers the Commonwealth to make laws with respect to the subject-matters of: (1) international relations; and (2) matters geographically external to Australia. The external affairs power also empowers the Commonwealth to make laws for the purpose of: (3) implementing Australia’s international legal obligations. The power has enabled the Commonwealth to regulate matters as diverse as aviation safety standards, racial discrimination and terrorist activity.

This chapter presents an introduction to Australian constitutional law. This chapter begins by examining the various forms a Constitution can take and the purposes a Constitution may serve. This chapter also examines the process by which Australia achieved constitutional independence from the United Kingdom. This chapter considers the more conceptual questions of why the Australian Constitution was binding in 1901 and why the Australian Constitution is binding today. This chapter also considers a number of key principles underlying the Australian Constitution: the rule of law, federalism, responsible government, and parliamentary supremacy. This chapter concludes with a consideration of the place of Aboriginal and Torres Strait Islander peoples in Australian constitutionalism.

This chapter examines an implied restriction on power: the implied freedom of political communication. The Australian Constitution establishes a system of representative and responsible government. The High Court has explained that because freedom of political communication is necessary for such a system to function it follows that laws that impermissibly burden communication about political matters must be invalid. The High Court has developed a three-stage framework of analysis for assessing the validity of laws challenged for breach of the implied freedom. That framework requires examining whether the law has the effect of burdening political communication, whether the purpose of the law is legitimate, and whether the operation of the law is proportionate. The High Court has been clear that the implied freedom is a restriction on power, rather than an individual right, and that it protects only communication about governmental and political matters rather than freedom of speech more broadly.

This chapter examines the scope of the Commonwealth’s power to impose taxation.The tax power enables the Commonwealth to raise revenue, as well as to indirectly regulate behaviour by using taxes to encourage or discourage behaviour. In general terms, a tax is a compulsory exaction of money for public purposes enforceable by law and which is not a fine or pecuniary penalty, a fee for service or a fee for a licence. The Constitution imposes special rules about the procedure for enacting federal tax laws, which are not justiciable, and special rules about the content of federal tax laws, which are justiciable. The Constitution also makes the power to impose duties of customs and excise an exclusively federal power, thereby limiting the power of the States to impose taxes on goods.

This chapter examines the process of constitutional alteration and the scope of the race power in section 51(xxvi) of the Australian Constitution. The race power was altered by referendum in 1967 and provides a useful case study in the way in which alteration of a constitutional provision affects its meaning. Section 128 provides that the Constitution may be altered only by a law approved by the electors voting in a referendum. The electors’ approval must be expressed by way of double majority: any constitutional alteration must be approved by a majority of electors nationwide and by a majority of electors in a majority of States. In 1967, such a double majority was achieved to alter the scope of the race power by extending its scope to include Aboriginal and Torres Strait Islander Australians. Aboriginal and Torres Strait Islander Australians were originally excluded from the scope of the race power. Contemporary controversy has focused on whether the race power is limited to laws beneficial to the people of any race or whether the race power extends to laws that are detrimental to the people of any race.

This chapter examines how Chapter III of the Australian Constitution protects the institutional integrity of Chapter III courts. This doctrine is often called the Kable doctrine after the name of the case in which it was first established. The doctrine holds that it is beyond power for any Parliament to impair the institutional integrity of a Chapter III court by depriving it of any of the defining characteristics of a court.

This chapter examines the trade and commerce power. Section 51(i) of the Australian Constitution grants the Federal Parliament power to make laws with respect to two subject-matters: (1) international trade and commerce; and (2) inter-State trade and commerce.

This chapter examines the Federal Parliament as an institution through focusing on its composition. The Australian Constitution prescribes that the Federal Parliament consists of the monarch, a Senate and a House of Representatives. The Constitution provides that senators are chosen from each State but also provides that the laws may be enacted granting parliamentary representation to the Territories. The High Court has read these provisions together to permit senators to be chosen from the Territories. The Constitution also sets out various grounds which disqualify a person from being chosen or serving as a parliamentarian.

This chapter examines section 51(xxxi) of the Australian Constitution, which functions as: (1) a head of federal legislative power empowering the Commonwealth to compulsorily acquire property from individuals and States; and (2) as a limitation on federal legislative power restricting the power of the Commonwealth to acquire property otherwise than on just terms. The High Court has given a broad interpretation of the concept of ‘property’, which includes the full range of property rights recognised by the general law, such as real and personal property, intellectual property, and choses in action. The High Court has also given a broad interpretation to the concept of ‘acquisition’, but has emphasised that mere deprivation or taking of property without some countervailing benefit accruing to another does not amount to an acquisition.

This chapter examines an important limitation on federal power: the limited guarantee of religious freedom provided by section 116 of the Australian Constitution. Section 116 prohibits federal laws, but not State laws, from: (1) establishing any religion; (2) imposing any religious observance; and (3) prohibiting the free exercise of any religion. Section 116 also prohibits religious tests for holding any office or public trust under the Commonwealth, whether that religious test is imposed by law or otherwise. There are very few cases considering section 116, with the consequence that the case law is not well developed. Section 116 was included in the Australian Constitution to ensure that the Federal Parliament would not be able to pass laws in respect of religion. There had been a concern from some religious minorities that federal laws might be enacted requiring people to participate in mainstream Christian observances.

This chapter examines the scope of federal judicial power. Chapter III of the Australian Constitution sets out a comprehensive regime for the exercise of federal judicial power. This means that federal judicial power can be exercised only in the way prescribed by Chapter III. There is no comprehensive definition of ‘judicial power’, although there are some functions that are always judicial in nature and some functions that are never judicial in nature. Federal jurisdiction – that is, the exercise of federal judicial power – is limited to the subject-matters set out sections 75 and 76 of the Constitution and also limited to ‘matters’ respecting those subject-matters.

This chapter examines the executive power of the Commonwealth. The provisions of the Constitution concerning the structure of the Federal Executive Government and the exercise of federal executive power do not fully describe how the Federal Executive Government operates in practice. Those provisions need to be understood in light of the conventions of responsible government governing the actual operation of the Federal Executive Government and the exercise of its powers. The Federal Executive Government cannot be treated as if it is an ordinary legal person with capacity to act as it pleases subject only to the general law. The Federal Executive Government can only exercise powers which it lawfully possesses. Federal executive power includes powers derived from the Royal Prerogative, powers derived from Australia’s status as a nation, and powers conferred on the Federal Executive Government by statute.

This chapter examines two related heads of power: the immigration power in section 51(xxvii) and the aliens power in section 51(xix) of the Australian Constitution. Immigration is concerned with the act of a non-Australian entering into Australia and the process of an immigrant becoming absorbed into the Australian community so that they are no longer an immigrant. Whether a person is an immigrant is largely a question of fact. By contrast, alienage is a legal status. Within the limits of the concept of ‘alien’, Parliament has power to determine who is and is not an alien. The contemporary position is that an alien is anyone who is a non-citizen. The aliens power includes the power to take away citizenship so as to turn a citizen into an alien. The case law shows that all immigrants are aliens but that not all aliens are immigrants. Both heads of power can be used to regulate the conduct of individuals, including providing for their deportation. Because the meaning of the concepts involved is clearer, Parliament nowadays tends to rely on the aliens power to support legislation dealing with migration and related policy areas.

This chapter examines the legislative powers of the States. The chapter explains that the legislative powers of the States pre-date the Australian Constitution, were made subject to the Australian Constitution but otherwise continued in force at Federation, and were confirmed by the Australia Act 1986. In general terms, the States possess plenary legislative power that allows them to make and unmake any laws they want. That power extends to amending State Constitution Acts by ordinary legislation. The plenary power of the States is subject to the possibility of restrictive procedures that regulate the way in which certain types of laws must be passed, but which do not prohibit the passing of those laws. The States also have power under the Australian Constitution to refer power to make laws to the Commonwealth Parliament and thereby expand the practical scope of federal legislative power.

This chapter examines the extent to which detention otherwise than as punishment for a crime is constitutionally permissible. Chapter 17 explained that only Chapter III courts may exercise federal judicial power, and Chapter 16 explained that punishment is an exclusively judicial function. There is a general presumption that detention serves punitive purposes. It follows that a federal law may not authorise the Federal Executive Government to detain a person for punitive purposes otherwise than as a judicially-imposed punishment. A body of case law has developed explaining the extent to which detention otherwise than as punishment for a crime is constitutionally permissible. The basic proposition is that detention for non-punitive purposes is not judicial in character, and that this remains so even if the conditions of detention are prison-like or harsh. Detention must be limited to what is reasonably necessary for non-punitive purposes, otherwise the presumption that detention is punitive in character will apply and render the detention unconstitutional. Most of the case law concerns immigration detention, but the general principles are not limited to that context.

This chapter examines the guarantee section 92 provides for freedom of inter-State trade, commerce and intercourse. While the High Court previously interpreted section 92 as providing for two separate guarantees (one guaranteeing freedom of inter-State trade and commerce, and one guaranteeing freedom of inter-State intercourse) with different analytical frameworks, section 92 is now understood as being a composite provision having two limbs – the inter-State trade and commerce limb and the inter-State intercourse limb – with a common analytical framework for determining whether a law contravenes the provision. The guarantee of freedom of inter-State trade and commerce ensures free trade within Australia. It operates to invalidate discriminatory burdens of a protectionist kind imposed on inter-State trade and commerce. The guarantee of freedom of inter-State intercourse ensures freedom of movement from one State to another. It operates to invalidate all discriminatory burdens on inter-State intercourse. It also operates to invalidate disproportionate incidental burdens on inter-State intercourse.

This chapter examines key aspects of constitutional method. First, this chapter considers constitutional interpretation, which is concerned with working out what the terms and provisions of the Constitution mean and how they apply. Secondly, this chapter considers the technique of characterisation, which is concerned with working out whether a law is one with respect to a head of legislative power or a prohibition on legislative power. Finally, this chapter considers the nature and consequences of constitutional invalidity.

This chapter examines the idea of separation of judicial power. There is a strict separation of federal judicial power arising from Chapter III of the Australian Constitution. There is no strict separation of State judicial power. Chapter III has the effect: (1) that federal judicial power can be exercised only by courts; and (2) that federal courts can exercise only federal judicial power. However, judges of federal courts acting in their capacity as private individuals may be granted non-judicial functions in limited circumstances. By contrast, nothing in Chapter III or in State Constitutions requires that State judicial power be exercised only by courts.

This chapter examines the capacity of the Federal Executive Government to spend money. The ability to spend is important to the functioning of government because of the need to pay public service salaries and to the implementation of government policies because many policy areas require large amounts of spending. Consistent with principles of responsible government, public funds are subject to parliamentary control through two constitutional requirements. First, all government revenue must be held in a single Consolidated Revenue Fund. Secondly, funds in the Consolidated Revenue Fund can be accessed only if appropriated by law. Funds that have been lawfully appropriated from the Consolidated Revenue Fund may be expended by the Federal Executive Government only if some law authorises that expenditure. Parliament also has power to grant funds to States on such terms and conditions as Parliament thinks fit. This power is regularly used to pay the States to implement policies that the Commonwealth lacks constitutional power to implement itself.