Module 2: Constitutional Theory
Constitutional Interpretation• Is the Constitution to be treated like any other statute?
i. Is the CC a ‘higher’ or ‘paramount’ law?
ii. ii. Is the CC to be treated just like any other statute, or does it have a different (and superior) status?
a. How does one ascertain the purpose of the Act and the intention of the legislators? Is it possible and appropriate to do this regarding the CC? What, if any, extraneous materials may be utilised?
b. This remains contested ground.
• Several broadly accepted sources that may be used as reference points when interpreting the CC. These sources include:
i. The text of the CC itself ii. The structure of the text
iii. The original meaning or purpose of the text
iv. Prior judicial decisions about the meaning of the text v. Common law interpretative techniques
vi. The broader tradition of constitutionalism.
• In addition to the words of the CC itself, theoretical assumptions and principles that underpin the CC highlighted above may assist and inform constitutional interpretation.
• In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object: Acts Interpretation Act 1901 (Cth) at s 15AA(1)
• Consequently, purposive approaches to statutory interpretation is mandated under Commonwealth legislation.
i. Commonwealth of Australia Constitution Act 1900 (Imp)
a. S5 – ‘The Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and the people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State…’
ii. This section manifests one of the key assumptions upon which the document was framed – the rule of law.
a. S9 – CC
Module 5: Executive Power
Executive Power• • Section 61 of the Commonwealth Constitution provides:
i. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
• Assumptions, implications and unwritten conventions deriving respectively from the doctrine of responsible government and from the principle of the rule of law both ‘form part of the fabric upon which the written words of the Constitution are superimposed.’
• Nature and ambit of the executive power arising from the textual ambiguity of Section 61 has been difficult to define, and therefore contestable.
• Consider the initial drafting:
i. [executive power] Shall extend to all matters with respect to which the legislative powers of the Parliament may be exercised, excepting only matters, being within the legislative powers of a State, with respect to which the Parliament of that State for the time being exercises such powers.
ii. It seems apparent that the intention was that Commonwealth executive power was to follow the distribution of legislative powers, but that is not clear in the final draft.
• Two key powers within executive power…
i. The power to execute, or to act in ‘execution’, of the Constitution and federal laws renders the executive with what is classified as ‘statutory executive power’
ii. The second power derives from the Commonwealth’s ability to ‘maintain’ the
Constitution, which has been interpreted to mean and extend to a power to act without legislative authorisation. This power is often referred to as ‘non-statutory executive power’.
• When the Commonwealth acts without legislation, there is no ‘measuring-rod’ in s 61 against which the constitutionality of such action may be tested (Wool Tops Case (1922) 31 CLR 421, 442 per Isaacs J).
• Thus, the provision leaves this great power ‘described but not defined’ and therefore ‘shrouded in mystery’. Some light has been shed by Pape and Williams.
• Non-statutory executive power – what is it? Historically, characterised as the prerogative powers
