1. LAW2211/5211 Constitutional law
Module 1 Weeks 1-2
Introduction to Australian Constitutional Law
Professor Anthony Gray, Course Leader

2. Administration Course Leader: Professor Anthony Gray
Contact Me:
Prescribed Textbooks: Blackshield and Williams Australian Constitutional Law and Theory Abridged (7th ed, Williams et al, 2018), Anthony Gray Criminal Due Process and Chapter III of the Australian Constitution (2016) package available from bookshop at discounted price
Assessment: 50% assignment/moot, 50% exam (ONL students), 10% class participation/40% assignment or moot, 50% exam (ONC students)
Class is discussion based rather than a traditional lecture
Will summarise class discussion and upload to study desk each week

3. Nature of Constitutional Law
. What is a Constitution?
. What is public law?
. What does the Australian Constitution do?
. Some important principles of public law:
(a) separation of powers
Legislative power, executive power, judicial power
Each acts as a check and balance on others
Very important in current constitutional law, although never a complete separation

4. Principles of Public Law
Rule of Law
Two aspects
No arbitrary exercise of power – exercise of power only pursuant to statute, carefully defined by statute
Equality under the law
. Example using police powers eg police arrest someone because the person ‘looks’ like a criminal

5. ‘Washminster System’
. Australia’s constitutional arrangements are a hybrid of two models – the United Kingdom system (Westminster), and the United States system (Washington), hence the term ‘Washminster system’
. Features of Westminster system
(a) doctrine of parliamentary supremacy
(b) unwritten Constitution/conventions
(c) limited role of monarchy
(d) rule of law

6. Washminster system (e) unitary state (f) independent public service
(g) representative government
(h) responsible government
(i) independent judiciary
(j) limited separation of powers
(k) no entrenched bill of rights
(l) parliamentary control of finances

7. United States System . Rejection of parliamentary supremacy
. Full judicial review
. Robust bill of rights
. Written constitution
. Federalism
. Strong separation of powers
. Representative government, Congress control of finances

8. Features of the Australian Constitution
. Created 1901, colonies pre-existed the federal government, reflecting the birth of a nation
. Written in 1890s in a series of Conventions
. Created nation primarily for trade reasons and to strengthen defence of land from foreign invasion
. In the past colonial/state laws, federal laws could not be inconsistent with UK law, could not amend UK law – progressively abolished through 20th century, essentially Australia is now a legally independent nation (though with the British monarch as Head of State)

9. Australian Constitution
. Document helps determine which level of government in Australia has power to pass laws of a particular kind
. S51 of the Australian Constitution – very important, sets out list of topics over which federal government has power to make laws
. Any Commonwealth law must be justified by at least one of these heads of power
. States have residue

10. Judicial Review
. Does the court have a role in determining whether a law is constitutionally valid?
. UK model – typically no, courts can’t declare a statute to be contrary to the constitution
. US model – yes
. Australia – yes, adopted US approach of Marbury v Madison where US Supreme Court confirmed its jurisdiction to review the legal validity of legislation and acts done pursuant to legislation – ‘judicial review’

11. Determining whether a law is constitutionally valid or not?
. Our main task as constitutional lawyers
. Not about whether we like the law, whether it is a good law
. A law by the Federal Government – is it supported by a ‘head of power’? Primarily in s51
. Is it consistent with other express restrictions in the Constitution eg s55, 80, 99, 116, 117?
. Discussion Point: Ideally, what should the feds do, and what should states do?

12. Determining whether a law is constitutionally valid or not?
. State law
. Qld Constitution authorises state laws ‘for the peace, welfare and good government of the state’
. These are not limiting words (Union Steamship v King) ie you can’t invalidate a law because you argue it is not for the peace, welfare etc
. Is it inconsistent with a valid Commonwealth law? (if so, invalid under s109 to extent of inconsistency)
. Is it consistent with the Commonwealth Constitution (eg ss90, s92 limit certain state laws)

13. Interpretation Issues – Commonwealth Constitution
. how do we interpret the words when there is not much guidance in the text eg federal government has power with respect to “corporations” in s51(20) – what is the extent of its power to do so?
. Importance of intention of those who wrote the Constitution? Originalism, literalism, ‘living tree’ progressivism
. Broad interpretations v narrow interpretations, centralism vs states rights; Engineers Case
. Relevance of comparative/international law
. Substance and form
. ‘activism’ vs ‘judicial conservatism’ and the role of judges