COMPOSITION & ELECTION OF FEDERAL
Constitutional Right to Vote?
The constitution already has a pre-determined right answer
to any legal problem, and the judges task is to find that
predetermined answer by
There is no indication that the Oil- affected Wildlife Treaty has not been entered into
bona fides. Moreover, the doctrine of bona fides would at best be a frail shield, and
available in rare cases.1
To enliven the external affairs power, the t
The Australian Constitution establishes a system of representative government.
S 7: Senators are directly chosen by the people of the State.
S 24: Members of House of Representatives are directly chosen by th
Characterisation requires a 2 stage process ( 2 aspects)
1) look at the law. What powers, privileges, immunities etc it creates?
2) Practical & legal effects of the law, and its relationship with the head of power.
Once characterized the law, is
Victoria: The Convention must embody precise
obligations rather than mere vague aspirations.
Tasmanian Dams: Convention must be bona fide.
Stephen J in Koowarta: Subject matter must be of
international concern. (dont need Convention)
Tasmanian Dam: Int
SOCIAL & ECONOMIC UNION
[Look for law discriminating against out-of-State resident]
S 117: A subject of the Queen, resident in any State, shall
not be subject in any other State to any disability or
discrimination which would not be equally a
The doctrine of intergovernmental immunities protects the
federal system of government that the Constitution establishes.
DEmden v Pedder: The two levels of government
established by the Constitution (Cth & State) are immune
Since legislative power is held by both the Cth and the
States, there must be some method for resolving conflicts
between Cth and State laws.
S 109: When a State law is inconsistent with a
Commonwealth law, the latter shall prevail, and th
NATURE OF CONSTITUTIONAL POWERS
Separation of Powers
The first 3 chapters of the Constitution are headed The
Parliament, The Executive Government and The
Judicature, each beginning with a section (ss 1, 61, 71)
EXTERNAL AFFAIRS POWER
But Mason CJ: It is not for the Court to satisfy itself
that Australia has an interest/concern in matters outside
the country Parliaments decision to legislate shows
conclusively that Australia has an interest/concern in
S 51(xx): Parliament has power to make laws with respect
to foreign corporations, and trading/financial corporations
formed within the limits of the Commonwealth.
Laws regulating Other Persons connected to Trading
S 51(xxvi): Parliament can make laws with respect to the people
of any race, for whom it is deemed necessary to make special
Kartinyeri v Cth: (1) Legislation can be with respect to a
s 51 subject matter without operating on everything i
LEGISLATIVE POWER & CHARACTERISATION
Banking in s 51(xiii) means a matter forming part of
the commercial economic and social organisation of
Murphyores Inc v Cth: s 51(i) allows Parliament to
prohibit, regulate & control the importation &
IMPLIED FREEDOM OF POLITICAL COMMUNICATION
Doctrine of Freedom of Political Communication
Nationwide News v Wills; ACTV v Cth: The Constitution
implies a freedom of political communication, because:
Ss 7 & 24 prescribe a system of representative