COMPARATIVE CONSTITUTIONAL LAW

Class 10: Australia

Constitution’s Origins and Structure

Canadian Charter of Rights

• Sections 11, 13, 15, 16

Summary: Canadian Constitutional System and Interpretation

• More decentralized federal system than U.S.; the result of Privy Council’s refusal to consult legislative history

• Living Tree metaphor has led to a dynamic interpretation of Charter of Rights and broader interpretation of many rights than in U.S.

• Fundamental unwritten principles have been recognized; constitution has been viewed holistically as based on values independent from text

• Originalism is little used in Canada compared to U.S.

FEDERAL CONSTITUTION

• Like U.S. and Canada

AUSTRALIAN federation 6 states 2 mainland territories (7 others)

VERY HOT, ARID 3% ARABLE

AUSTRALIAN CONSTITUTIONAL ORIGINS

• Contrast with U.S. and Canada

1900

• Enactment of Australian Constitution in Commonwealth of Australia Constitution Act 1900, 63 & 64 Vic., c. 12.

• Drafted at constitutional conventions in 1890s by representatives of 6 colonies

• Approved by voters at referenda in each colony

Full independence

• 1942 Statute of Westminster Adoption Act

• 1986 Australia Act enacted by U.K. Parliament and Australian federal Parliament and state parliaments (terminated PC as final court of appeal, terminated power of UK Parliament to legislate over States)

POPULAR OR STATE SOVEREIGNTY?

• Is the Australian constitution seen as the product of the agreement of the people of Australia as a whole, the people of the Australian states, as an agreement of the States, or a statute? Contrast with position in U.S. and Canada

A MODERN DEMOCRACY

• A republic? Or a constitutional monarchy? Contrast with U.S. and Canada

Constitutional Monarchy

Constitutional Monarchy

• Role of Queen and Governor-General very similar to counterparts in Canada; operate under similar constitutional conventions (so they are responsible to elected government headed by Prime Minister)

• Convention leads to similar vagueness and incompleteness re executive branch in Canadian and Australian constitutions

• Australian Constitution not entirely written

Republican Movement

• Majority of Australians favor a republic

• November 1999 referendum failed

A Combination System

• Westminster system of responsible government

• American-style federalism (divide legislative, executive, judicial powers between state and federal levels)

• Was this a bad strategic choice?

LEGISLATIVE BRANCH

• House of Representatives and directly elected Senate (U.S. model not H.L. model)

• Proportional representation/compulsory voting

• Liberal/National Party/Country Liberal coalition since 1996 (currently control both Houses)

SEPARATION OF POWERS

• Advisory opinions permitted? (Contrast to U.S. and Canada)

• Executive-legislative separation?

• Judicial independence?

AMENDMENT

• Contrast amendment procedures with U.S. and Canada

AMENDMENT

• Contrast amendment procedures with U.S. and Canada AUSTRALIA: Requires federal legislation and approval by majority of voters nation-wide and in a majority of states

• Swiss model

• Only Parliament can call a referendum

U.S. Amendment Article V

• The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate

Canada Part V 1982 Constitution Act

• Most amendments subject to 7-50 formula (resolutions of the Senate and House of Commons; and resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces).

• Some require unanimous consent, others consent of only one province

AMENDMENT

• How many times has the Australian Constitution been amended (compare with U.S. and Canada)

AMENDMENT

• How many times has the Australian Constitution been amended (compare with U.S. and Canada) 8 times out of 42 proposals in 18 referenda

RIGHTS

• Compare rights provisions in Australian and Canadian and U.S. Constitutions

1988 REFERENDUM

• Defeated 4 proposals for more rights in constitution (not full-fledged bill of rights)

• Yes vote only between 30 and 37%

RIGHTS

• Compare rights provisions in Australian and Canadian and U.S. Constitutions Why are rights so limited? Doctrine of parliamentary sovereignty: parliament as best doctrines of liberty. Natural rights, not utilitarian view. Desire for strong government

AMENDMENT

• How many times has constitution been amended (compare with U.S. and Canada) 8 of 44 proposals (U.S. 27 Amendments, Canada 10 amendments)

JUDICIAL REVIEW

• Contrast with U.S. and Canada

COMPARE AND CONTRAST

• Australian High Court, U.S. Supreme Court and Supreme Court of Canada

• Jurisdiction, judiciary, leave to appeal, number of cases heard, number of judges, how they are appointed, background, # women and minority justices?

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

• All Commonwealth realms had right of appeal to Privy Council in England. Some retained this after independence but many began to find it out of tune with their values

IMPACT OF PRIVY COUNCIL IN AUSTRALIA

• Compare with that of Canada

• See section 74 (inter se), 76

SECTION 74

• High Court has power to decide “the limits inter se of the Constitutional powers of the Commonwealth and those of any State” and must consent to an appeal to Privy Council

ABORIGINAL SOVEREIGNTY

• No constitutional recognition to this or to treaties between British government/settlers and aboriginals

• Aboriginals have no special status or rights under constitution

• Native land title to land recognized in Mabo case as common law right and rejected terra nullius legal fiction – but accepted that Crown had acquired full sovereignty

• Compare Canada and U.S. Constitutions

Canada: Section 35

• The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.