Introduction

The 1948 Universal Declaration on Human Rights (UDHR) begins with the striking claim that the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. According to Johnson and Symonides, the Declaration ‘recognizes the fundamental unity of all members of the human family and their inherent dignity and diversity, and proclaims that the human genome is, symbolically, the heritage of humanity’ (1998, 84). Mary Ann Glendon (2001) has similarly spoken of ‘the spirit of the preamble, the spirit with which the document opens, the affirmation of the unity of the human family’ (qtd in Ramcharan and Ramcharan 2019, 223). The term ‘human family’ deliberately evokes images of the most intimate of human relationships: bonds of marriage, nurture of children, ties of kinship. Rather than use words that individualise and universalise in abstract terms (e.g. ‘human beings’, ‘humanity’, ‘homo sapiens’), the Declaration describes humanity as an extended family, knit together by ties that are personal, natural and communal.

Despite this language, the rights enshrined within the Declaration and other international instruments, such as the 1966 International Covenant on Civil and Political Rights (ICCPR), have generally been understood in a way that prioritises the rights of individuals. This is not only the case in relation to the liberty rights affirmed by the UDHR and the ICCPR, but is also affirmed through increasingly influential understandings of equality rights to non-discrimination as protecting individual selfidentity. In such analyses, the concept of human dignity is often cited as fundamental, but in a way that connects it immediately with individual autonomy. This emphasis on individual autonomy underplays the familial, societal and communal framing of the leading international human rights instruments. A close examination of these instruments shows them to presuppose a social ontology in which human beings are not merely isolated individuals, but constituted as members of communities at familial, local, regional, national and global scales.

An exploration of this communal embedding of the dignity of all members of the human family has implications for how international human rights are understood, particularly in controversial cases where the rights of human beings conceived as individuals have to be harmonised with the rights of human beings living in community with others.

Introduction

The previous chapters have covered the federal legislature and Executive. Chapter I of the Constitution vests the legislative power of the Commonwealth in the federal Parliament, to be constituted by the Queen and the two houses of Parliament. Chapter II of the Constitution vests the executive power of the Commonwealth in the Queen, to be exercised by the Governor-General as the Queen’s representative. Chapter III of the Constitution vests the judicial power of the Commonwealth in three categories of courts: the High Court of Australia; other federal courts that the Parliament creates; and such other courts that it invests with federal jurisdiction, principally the courts of the constituent States.

The creation of the federal judicature by Chapter III of the Constitution was intended to give effect to two primary objectives. Firstly, from the 1840s there had been various suggestions, from the Colonial Office in the United Kingdom and the colonies, regarding the creation of a court of appeal for Australasia that would replace the Privy Council as the ultimate court of appeal from the superior courts of the colonies. When the delegates to the Constitutional Conventions met to discuss the terms of the proposed federal compact, the creation of a general court of appeal, and its relationship to the Privy Council, naturally fell for consideration. Secondly, the establishment of an effective federal system would not be complete without the creation of a judicial arm of government. As Alfred Deakin said at the 1890 Australasian Federation Conference preceding the Constitutional Conventions of the 1890s, ‘[w]hat we shall require will be, not simply some Federal Court of Appeal to hear cases after they have been dealt with in the courts of the colony, but a Federal Judiciary, with Federal Courts in all the colonies’. It was essential and vital that the federal tier of government possess each of the ‘three great arms of state’.

Introduction

Section 61 of the Constitution declares that the ‘executive power of the Commonwealth’ is ‘vested in the Queen’ and that it ‘extends to the execution and maintenance’ of the ‘Constitution’ and the ‘laws of the Commonwealth’. The executive power of the Commonwealth is thus composed of several elements. Its exact content and ambit is one of the most pressing and complex issues in Australian constitutional law.

By declaring that the executive power is vested in the Queen, the framers of the Constitution understood that, subject to the Constitution, this incorporated the various powers customarily exercised by British monarchs as recognised by the common law. Andrew Inglis Clark put it this way:

William Harrison Moore further maintained, without apparent qualification, that:

The executive power of the Commonwealth extends to the ‘execution’ of the Constitution. This reinforces the primacy of the Constitution as the ultimate source of Commonwealth governmental authority within the federation. That the power also extends to the execution of Commonwealth laws reflects the principle, noted in Chapter 2, that the Constitution accords a certain normative priority to the role of the Parliament in legislating and holding the Executive Government to account, a role that is fundamental to responsible government and important in establishing the rule of law. This feature of the executive power also reflects the federal nature of the Constitution, for in this respect the power is limited to the execution of Commonwealth laws the subject matter of which is limited by ss 51 and 52 and 122.

Introduction

On 1 January 1901, the colonies together formed ‘a Federal Commonwealth under the name of the Commonwealth of Australia’ based upon the continuance of the colonies in a new political form. Each constituent State maintained its colonial constitutional heritage – its Constitution and governmental structures – with the only qualifications to this being those in the Commonwealth Constitution necessitated by Australia’s federal union. Therefore, rather than being ‘subordinate’, the six States were accorded a hybrid ‘original’ and ‘continuing’ status.

Previous chapters have shown how the colonies were integral to the formation of the Commonwealth, how the States are integral to the representative character of the Commonwealth Parliament, and how the distribution of legislative, executive and judicial power under the Commonwealth Constitution presupposes the prior existence of the colonies as the fundamental constituents of the federation. Other vital aspects of the Constitution address the legal relationship between the Commonwealth and the States, and even the limits on legislative power that are contained in the Constitution are shaped fundamentally by its character as the constitution of a federal commonwealth. This chapter traces the Australian States’ constitutional ancestry. It explores what the ‘continuing’ constitutional status of the States and their constitutions means, including an analysis of the constitutional powers and limitations pursuant to which they function. The chapter also touches on the implications for the States of proposals for constitutional reform.

Introduction

Section 61 of the Constitution proclaims that the executive power of the Commonwealth is ‘vested in the Queen’. Australia is a constitutional monarchy, and ‘the Crown’ is therefore at the apex of the Executive Government of the nation. As the preamble to the Constitution records, the people of the Australian colonies agreed to unite ‘under the Crown of the United Kingdom’. Provision was also made in the Constitution Act that references to the Queen would ‘extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom’. The current reference to the Queen in the Constitution indicates that the present ruling monarch presides over the government of the Commonwealth in her capacity as Queen of Australia. The Queen’s ‘Royal style and title’ in Australia is ‘Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth’. At her Coronation on 2 June 1953, the Queen swore an oath to govern the peoples of Australia and her other realms ‘according to their respective laws and customs’. This reference is significant, for it is apt to include the conventions of parliamentary responsible government as they operate in Australia.

This book is about the history, principles and interpretation of the Australian Constitution. It is based on the conviction that federalism is one of the Constitution’s most important organising principles. The Constitution itself refers to the Australian polity as a ‘federal commonwealth’, by which was meant that the Commonwealth of Australia was to be federal in its foundations, its institutions and its powers, and that its development into the future would be dependent upon its federal character and design. As to its foundation in 1901, the Australian Constitution is based upon the consent of the people of the six colonies that would become the constituent States of the federation. As to its institutions, the Commonwealth of Australia consists of a Parliament that represents the people of the States (in the Senate) and the people of the Commonwealth as a whole (in the House of Representatives), an Executive Government that is responsible to that Parliament, and a federal supreme court, called the High Court of Australia, that is responsible to ensure that the Parliament and the Executive Government function within the bounds of the Constitution. As to its powers, the Commonwealth Parliament is limited to making laws with respect to a list of specified matters, the executive powers of the Commonwealth are said to extend only to the maintenance and execution of the Constitution and of laws enacted by the Commonwealth Parliament, and the judicial power of the Commonwealth is again limited to specified matters. At the same time, the Constitutions, institutions and powers of the States are preserved and continued, subject only to certain overriding provisions of the Commonwealth Constitution, validly enacted Commonwealth laws, certain activities of the federal Executive, and decisions of the High Court of Australia on appeals from State courts.

Introduction

The formation of the Australian federation in 1901 presupposed the prior existence of the six colonies as independent, self-governing political communities. The federal union of those colonies involved the establishment of a federal government, to which particular powers were granted; but apart from those specific surrenders, the general principle was that the existing powers, privileges and territorial rights of the colonies would remain as they were prior to federation.As the Premier of New South Wales, Henry Parkes, put it in one of the principal resolutions adopted by the Federal Convention of 1891:

A year earlier, at the inter-colonial Conference held in Melbourne, it had similarly been resolved that any federation of the colonies would have to occur ‘on principles just to the several colonies’. Parkes’s resolution made it clear that it would be for the colonies themselves to determine what those principles would be, in line with the proposition that the federation must rest upon the agreement and consent of its constituent States. Each colony could thus be assured that its territorial rights would be secured and its legislative powers preserved. Charles Kingston, who would later become Premier of South Australia, put it this way:

Introduction

As noted in Chapter 4, the Australian Constitution is primarily concerned with establishing the institutional foundations of a federal commonwealth. The demarcations and limitations on power imposed by the Constitution are therefore chiefly directed to federal considerations of one kind or another. The Constitution does not contain a general bill of rights because the prevailing view, at the time it was drafted, was that appropriately operating systems of representative and responsible government at a Commonwealth and State level would, on the whole, provide adequate protection for civil and political rights. This reflected the general view that had motivated the framers of the United States Constitution in 1787; that is, before pressure from Antifederalists compelled Federalist leaders such as James Madison to agree to the insertion of ten amendments to the Constitution which have since come to be known as the Bill of Rights. As Denis Galligan has explained:

Introduction

The Commonwealth Parliament is the first of the three principal institutions of government established by the Australian Constitution. Its pre-eminence in the Constitution is not accidental. It is mentioned first not only due to its inherent importance as an institution, but also on account of the normative priority of legislative power over the other powers of government, associated with the principle of the rule of law. Quick and Garran put it this way:

On this view, there can be no executive or judicial power without a pre-existing law to enforce, interpret and apply, and the usual source of this law is an exercise of legislative power by the Parliament. The Parliament is thus conceived as having a temporally prior role in making the law which it is the function of the Executive and the courts to administer. If read literally, this would mean that unless the Parliament legislates, the Executive Government and the Judiciary will simply have nothing to do. While an important principle is at stake here, Quick and Garran’s statement cannot be taken quite literally, because parliamentary statutes are not the only kind of law which has to be administered and applied. The relevant law is the whole body of constitutional, statutory and common law operating in Australia at a Commonwealth, State and Territory level.

Introduction

Chapter 8 introduced the architecture of the federal judicature set out in Chapter III of the Constitution. Central to the operation of the federal judicial system is s 71 of the Constitution which vests ‘the judicial power of the Commonwealth’ in the High Court, ‘such other federal courts as the Parliament creates’ and ‘such other courts as it invests with federal jurisdiction’. This is in contrast to the investiture of federal legislative power by s 1 in the Commonwealth Parliament and the vesting of Commonwealth executive power by s 61 of the Constitution.

This plan for the distribution of governmental power – legislative, executive and judicial – across the three arms of the federal government – the legislature, the executive and the judiciary – has had an enormous impact on the design of federal government institutions and the allocation of power across government decision-makers. Of particular interest to this chapter is the separate identification of Commonwealth judicial power and its allocation to the courts referred to in s 71. From this allocation of power, the High Court has established two fundamental principles about the exercise of Commonwealth judicial power. The first is that only courts referred to in s 71 can exercise Commonwealth judicial power. The second is that courts exercising Commonwealth judicial power can only exercise judicial power and also non-judicial power that is incidental to the exercise of judicial power.