Australian constitutional law

This power of judicial review of legislation for conformity with the Constitution has been exercised almost exclusively by the High Court of Australia, and almost invariably with a full bench of all its members, such as in the Communist Party case.

[15] The role of the Monarch is today even more circumscribed and amounts only to appointing (and, in theory, dismissing) a Governor-General on the advice of the Prime Minister, as well as performing (by invitation) certain ceremonial functions when personally present in Australia.

Nonetheless, a very broad-ranging environmental protection Act could be passed relying on a combination of powers such as interstate and international trade, corporations, taxation, foreign affairs and so on.

Since one of the main reasons for Federation was to create a common market, inevitably authority over these taxes was vested exclusively in the Commonwealth Parliament (section 90).

However, during World War II, the Commonwealth government decided to take over the collection of income taxes and return some proceeds to the States as grants.

The High Court has long stated the definition in terms such as "an inland tax on a step in production, manufacture, sale or distribution of goods".

In 1997, by a bare majority, the High Court decided that this area of doctrinal quarantine was incoherent with the rest of the law relating to excise duties and removed it.

However, a purely intrastate aviation industry is no longer economically feasible and separate systems of state regulation pose safety concerns.

On 14 November 2006, the High Court by a 5-to-2 majority upheld the validity of the WorkChoices legislation[43] against all the challenges that had been made to it in an action brought by each of the States and mainland Territories, as well as certain trade unions.

Factors sometimes cited for this include faith in the common law's protection of rights and a belief that a powerful Senate would effectively resist overzealous governments.

[36][37][40] And "just terms" has been taken to mean something less than "just compensation"; in particular, it does not necessarily require payment to the owner of the value of the property when it was compulsorily acquired[51] The Australian film The Castle addresses this issue.

[55][56][57] The constitutional requirement that "trade, commerce, and intercourse amongst the States ... shall be absolutely free" (section 92) was for a considerable time interpreted as a guarantee of some degree of freedom from government regulation.

In the latter case, some strong dissents to the effect that limiting expenditure on political advertising in the electronic media might actually enhance representative democracy did not prevail.

A former chairman of a Commonwealth Parliamentary Committee on Migration claimed to have been defamed by a newspaper which had published a letter accusing him of bias, in his official capacity, towards people of his own ethnic background.

But in 1997 in Lange v Australian Broadcasting Corporation which involved the alleged defamation of a former Prime Minister of New Zealand a unanimous Court did state the operative principle.

It rejected the "constitutional defence" of the migration-bias case just discussed, and instead expanded the scope of "qualified privilege", requiring the defendant to have actively taken reasonable steps to verify the accuracy of the published material, and also, in most circumstances, to have given the defamed person an opportunity to respond.

[73][74] On the other hand, the Court made it clear that the qualified privilege may extend to discussion concerning the United Nations and other countries, even where there is no direct nexus with the exercise of political choice in Australia.

In McCloy v New South Wales, the High Court further endorsed the view that a qualified freedom of political communication exists and provided an updated and more detailed legal test.

[77] In 1975 two judges of the High Court suggested that these requirements may amount to a right to vote, holding "the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether ... anything less than this could be described as a choice by the people.

[83] The validity of the disenfranchisement was challenged by Vickie Roach who was serving a four-year gaol term for negligently causing serious injury in a car accident and her legal team comprised Ron Merkel, QC and Michael Pearce, SC.

[84] In 2007 the High Court held in Roach v Electoral Commissioner that the requirement that members be "directly chosen by the people" conferred a limited "right to vote".

[85][86] The 2006 legislation[83] was again considered in Rowe v Electoral Commissioner, where the High Court held that amendments restricting the enrolment of voters once an election has been called were also invalid.

[66] * The High Court subsequently held that closing the electoral roles 7 days after the issuing of writs was not a burden on the constitutional mandate that members of Parliament be directly chosen by the people.

The members of Chapter III courts may not be removed except by the Governor-General on an address from both Houses of Parliament on the ground of proved misbehaviour or incapacity; they otherwise hold office until the age of 70.

In Kruger v Commonwealth (1997) the High Court considered claims by members of the Stolen Generation,[95] including that their removal and subsequent detention without due process was in contravention of the Constitution.

Toohey, Gaudron and Gummow JJ held that the removal of Indigenous children was not the exercise of judicial power, hence no question of due process arose.

[91] Kable v Director of Public Prosecutions (1996)[99][106] concerned a criminal law passed by the New South Parliament and directed at a single named individual (somewhat in the manner of a Bill of attainder).

The State Parliament enacted a law, applying only to him, which authorised the Supreme Court of New South Wales to make "preventive detention orders" for periods up to six months, with the possibility of renewal.

It is clear that, had the Federal Parliament passed such an Act, it would be found invalid, as it was in effect a legislative judgment and so violated of the constitutional separation of the judicial power.

The Act was found invalid, however, on the ground that since the Supreme Court of New South Wales had been invested with federal jurisdiction, it must not be required to perform a function "incompatible" with the exercise of the judicial power of the Commonwealth.