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1. Outline of Constitutional Documents and their History a. Australian History:
Law in Australia since 1788: In 1788, military rule was established in Australia in NSW (the only colony at
the time). Other colonies were established gradually with a governor and a military. Law making powers were:
i. The Governor of each colony made any other laws that were needed if there was no suitable English
law.
ii. Doctrine of Terra Nullius: All English Laws apply to all colonies automatically.
1. English settlers needed to decide on how much of the English law applies to the new colony.
2. Australia is a settled colony, not conquered.
Conquered country was one that was overtaken by another country, meaning that it already has
inhabitant and a society.
Settled country was one that was uninhabited and then occupied by another country.
Even though there were inhabitants, the settlers decided on “settled” because according to the
English, for a country to be inhabited, there has to be:
Cultivate soil
Have permanent habitations
Have a recognizable legal system
Aborigines and TorresSI didn’t fill any of the above requirements.
Hence, applied Terra Nullius meaning:
Land belonging to no one, AND
English laws are automatically applied.
Consequences of Terra Nullius:
All Abos and TSI were bound to English law
Abo laws weren’t recognized even for disputes arising amongst them
Abos and TSI personal rights were significantly reduced.
English claimed all land to them
Abos and TSI had no right to claim land and no native title
o Native title to land means to have the right to live on it and use it for it’s
traditional purposes.
b. Development of modern Australia was based on the following three areas:
1. Dev. of the court system
Upon settlement in 1788, NSW had two courts: criminal and civil courts practically dominated
by the military.
Second Charter of Justice in 1814: As more free European people settled, the need for a more
sophisticated court system, which is free from military influence, was required. So, the Charter
was passed in England to expand the court system.
Supreme Court to consider matters of inheritance, equity and more complex civil
cases
Justices of the Peace to maintain peace and determine sentences
A Governor’s Court to hear civil cases involving property of over fifty pounds.
A Lieutenant Governor’s Court to hear civil cases involving property of less than
fifty pounds.
Third Charter of Justice/NSW Act in 1823: It gave the set up of the new court system we now
know. BUT, criminal matters were still dominated by the military because officers were the
only people who could be jurors in a criminal case.
1847: Full trial by Jury was granted.
2. Dev. of the parliamentary system
Today we have nine parliaments, which are responsible for statute law: 6 state parliaments, 2
territorial parliaments and 1 Commonwealth/Federal parliament
Military rule, 1788: No parliament when Australia was first colonized. Colonies governed by
English Law and the governor of each colony made laws.
Legislative Council (LC), 1823: NSW Act passed by the English government, did set up a
legislative council of five to seven men to advise the Governor about laws that needed to be
made. It had power to make laws for the ‘peace, welfare and good government of the colony.’
Only the Governor could initiate bills in the LC. First, a bill had to be certified by the Chief
Justice as not being repugnant to the laws of England as applied in the colony. Colonial laws
had to be sent to the British Government and could be disallowed by the King within 3 years of
their enactment.
Executive Council: In 1828, LC expanded and included and EC which was empowered to reject
proposed laws and advise the NSW governor.
Representative government, 1842: Australian Constitutions Act (No 1) 1842 (UK) introduced
representative government, which was the first time where citizens had a voice in what, they
wanted the government to do. Men with a certain amount of property could ELECT the 36
members to the LC. Two-thirds were elected BUT still 1/3rd of the LC was appointed by the
Governor. The Governor’s role was reduced to assenting to bills. Assent on some types of bills
had to be reserved for the King. Laws no longer had to be certified by the Supreme Court but
could be struck down for repugnancy if challenged.
Self-Government, 1853: Self-Government or Responsible Government was granted by the
English to the Australian colonies. Self-government meant that each colony had its own
parliament, which could make laws for the colony. Members were elected by those eligible to
vote. These colonial parliaments are very similar to the ones existing today. Australian colonies
drafted their own Constitutions after being empowered by the Australian Constitutions Act (No
2) 1850 (UK).
NSW Constitution 1855 established two Houses: Legislative Council appointed for life. No
maximum number – so could be swamped. Legislative Assembly directly elected. Ministers to
be Members of Parliament and responsible to it.
Federation, 1901: By that time, each colony had developed its own laws about tax, trade and
several other matters. Each colony also had their own currency. However, four issues emerged
during the 1890s which were: Defence, Trade, Immigration and Nationalism. It was crucial for
Australia to have a central government to deal with those issues. Hence, a Federal Government
was established on 1 January 1901. This government makes laws to the whole of Australia while
each state retains its power to make laws about matters affecting its own state.
1885 – Federal Council of Australasia but NSW did not join.
1889 – Tenterfield speech: Parkes proposes federation.
1890 – Melbourne Conference: Agreement to hold convention to draft a federal
Constitution.
1891 – Convention: 7 representatives appointed by the Parliament of each colony
and 3 from NZ. Constitution first drafted on board the Lucinda and the draft
Constitution sent to colonies for consideration.
1897 – Federation revived by elected Convention.
o NSW, Vic, SA and Tas elected 10 delegates each
o WA appointed delegates instead
o Qld and NZ did not attend
o New Constitution was drafted and put to referendum.
o Referendum failed to receive a big enough majority in NSW. Compromises
were made at Premier’s Conference. Fresh referenda passed. Bill was taken
to the UK for enactment and UK passed the Commonwealth of Australia
Constitution Act 1900 (UK) making Australia a federation and giving
Australia a Constitution.
Colonial innovations:
Male and Universal Suffrage
o Votes for all men: In 1856, South Australia granted men over the age of 21
the right to vote in elections. Before this, only men with a certain amount of
property or income were allowed to vote. Other colonies followed.
o Universal Suffrage: UnSu means that all adults have the right to vote in
parliamentary elections (Women, minorities, aboriginal people etc.)
3. Legislative independence of Australia
The Australian Courts Act 1828: This was an English statute, which stated that after 1828 no
new laws passed by the English parliament would apply to Australia unless specifically stated.
Any laws made before 1828, still apply. Two issues remained, colonies cannot amend English
laws which were prior to 1828 and, make laws repugnant to English laws which were still
applicable to Australia.
The Australian Constitutions Act (No 2) 1850 (UK): This separated Victoria from NSW and
provided for later separation of Queensland. Colonies were empowered to enact their own
Constitutions and establish bicameral legislatures with responsible government, but the bill had
to be reserved for royal assent.
1855 – UK approved to NSW Constitution, but cut out the bits removing reservation and
disallowance, maintaining UK powers over the colony. Disallowance means that colonial
laws/bills could still be disallowed by the Queen even if the colonial governor approved it and
reservation means that certain bills and laws had to be reserved for the Queen’s assent and the
colonial governor can’t do anything about it. The attempt to entrench the Constitution was
undone by the UK, meaning that it was made flexible which can be changed and amended by
ordinary laws.
The Colonial Laws Validity Act 1865 (UK): Now colonies can amend, repeal and make laws
that were repugnant to English laws that applied to Oz. Except colonies cannot make laws
repugnant to the statutes that specifically extended to the colonies, which applied by paramount
force. Any colonial law that was repugnant to a UK law of paramount force was of no effect.
Section 5 of Colonial Laws Validity Act 1865 permitted the amendment of laws with respect to
the constitution, powers or procedures of the Parliament subject to ‘manner and form’. Manner
and form requirements “restrict the legislative powers of the Parliament by requiring that laws
on certain topics may only be enacted by a special more difficult procedure”. It was later re-
enacted in s 6 of the Australia Act 1986 (Cth).
Commonwealth of Australia Constitution Act 1900 (UK): Australia became a federation.
Section 9 of this Act, which is a UK Act passed by the Westminster Parliament, established the
Australian Commonwealth Constitution. ''The Commonwealth'' shall mean the Commonwealth
of Australia as established under s6 of Commonwealth of Australia Constitution Act 1900 (UK).
The Statute of Westminster 1931:
Australia remained a colony (later renamed a ‘Dominion’). Australia could not
enter into political treaties, it could not declare war or peace, it did not have its own
diplomatic representation and had no international personality. The Privy Council
was the highest court. British legislation could still override Commonwealth and
State laws. The Colonial Laws Validity Act 1865 applied to Commonwealth Laws
(Skin Wool Case, 1926 BW 108). Commonwealth and State laws could still be
disallowed by the King/Queen and certain bills still had to be reserved.
Statute of Westminster was enacted to give effect to Balfour Declaration that
Dominions (colonies) are equal in status with the UK (BW 110).
S 2 – Dominion laws can now override UK laws that previously applied by
paramount force (except the Commonwealth of Australia Constitution Act).
Doesn’t apply to Australian State laws, which remain invalid if repugnant.
S 3 – Dominion (colonies) laws now have an extra-territorial effect.
S 4 – No UK legislation to apply to the Dominions without their request and
consent.
S 8 – Commonwealth Constitution remain entrenched meaning can only be
repealed or amended by special provisions, beyond the ordinary legislative
process = Nothing in the State of Westminster authorises the
Commonwealth to override the Commonwealth Constitution.
Does not extend the Cth’s legislative power over the States
It made the Federal Parliament became totally independent of the English
parliament. BUT this didn’t apply to STATE parliaments.
The Australia Act 1986 (Cth):
States remained subject to the Colonial Laws Validity Act 1865 and the doctrine
of repugnancy. (The States wanted the CLVA to continue to apply because it
allowed them to entrench aspects of their Constitutions.)
There are 2 Australia Acts which terminated residual ties with the UK
o Australia Act 1986 (Cth) was enacted by the Commonwealth Parliament
under s 51(xxxviii) of the Constitution at the request and consent of all
State Parliaments.
o Australia Act 1986 (UK) was enacted by the Westminster Parliament at the
request and consent of the Commonwealth Parliament.
Both Included:
o Together the Acts terminated the ability of the UK to legislate as part of
Australian law ever again (s 1)
o States were liberated from the repugnancy doctrine and the CLVA was
repealed (ss 2 and 3)
o States were given extra-territorial power (s 2(1))
o The ability to entrench certain provisions (manner and form) was
preserved, otherwise it would have been lost with the repeal of the CLVA
(s 6)
o The Queen’s role regarding the States is largely delegated to the Governor.
The Queen retains the power to appoint and remove State Governors, but
acts on the advice of the State Premier (s 7). Queen was unhappy by this.
o The reservation of State bills or disallowance of State laws has been
terminated (ss 8 and 9) (but not re Cth).
o No more UK involvement in State constitutional matters (s 10). The
United Kingdom is now a ‘foreign power’ (Sue v Hill (1999) BW 121)
o Appeals and advisory opinions from the State Supreme Courts to the Privy
Council were terminated (s11).
The only remaining possibility of a Privy Council appeal is under s
74 of the Commonwealth Constitution if the High Court were to
give a certificate permitting it.
The Court has said that it will not do so.
The High Court is now at the apex of the Australian judicial system
(BW 118-21)
o All power to change constitutional documents now is in Australian hands –
s 15.
Australia Acts and Statute of Westminster can be amended by
Commonwealth legislation enacted with the request and consent of
all the States.
This provides a potential method for amending or repealing the
covering clauses in the Commonwealth of Australia Constitution
Act, which are otherwise preserved by s 8 of the Statute of
Westminster.
It is unlikely that s 15 could be used to amend the Constitution itself,
as this would clash with s 128 of the Constitution and be politically
untenable.
Sue v Hill (1999)
o Hill stood for Senate in QLD in 1998 federal election, but disqualified
because she had not renounced her UK citizenship.
o Hill argued that so long as the UK retained any residual influence upon
legislative, executive or judicial processes in Australia, it could not be
regarded as “foreign” to Australia.
o Majority High Court held that since the Australia Act 1986, the UK
retains no such influence, therefore rendering it “a foreign power.”
o No one who is the subject of a foreign power is eligible for election to
Senate or House of Representatives: Australian Constitution s 44(i).
2. Constitutional basis of Australian law I. Constitution: structure and themes
a. What is a Constitution? i. Definition
A Constitution is a fundamental law, which provides the source of power for the making of all other laws
and binds everyone/body in the Commonwealth. (Section 5 Commonwealth of Australia Constitution
Act 1900 (UK)). It is the supreme law in Australia. It provides the whole basis of government in Australia.
Note that each state also have their own Constitution.
ii. Constitution as a document:
1. The term ‘Constitution’ sometimes refers to a particular formal document of a country – eg the
Constitution of the United States of America or the Constitution of the Commonwealth of Australia. 2. It may also refer to a wider range of laws, which deal with the establishment, and operation of the
primary institutions of government – the legislature, the executive and the judiciary. Hence electoral
laws, laws establishing kame and laws concerning the powers of the head of state, may all be regarded
as part of the ‘Constitution’ in this broader sense. Conventions may also fall within this sense of the
Constitution.
iii. A Constitution usually does the following: 1. Establishes the institutions of government (Bicameral parliament: House of Representatives and
Senate, legislative body, executive offices, the bureaucracy and courts). 2. Grants them powers and limits those powers. 3. Defines how they interact and their relationship with the people (i.e election) 4. Deals with finances (raising and spending them). 5. Deals with individual rights or freedoms. 6. Responsible Government based on Westminster system. 7. Federation based upon US system 8. Constitution is contained in s 9 of Commonwealth of Australia Constitution Act 1900 (UK)
iv. Constitution entrenched:
1. Meaning that it can only be amended by a referendum 2. Referendum’s result should have an overall majority and majority in a majority of States s 128
b. A binding Constitution
i. Featured in the Constitution document 1. It is conferred and imposed from on high (eg God, a Sovereign or a colonial master). 2. It was established by a legal process in which existing polities took part (eg polities coming together
to form a federation). ii. Popular/Political Sovereignty:
The Australian Constitution is binding because of popular/political sovereignty 1. Definition 1: It finds its source in an act of the will of the people (either directly through a referendum
or indirectly through a constitutional convention, constituent assembly or other representative
political process). It is tacitly supported by the people, as signified by their obedience to it. It is
binding by way of convention. 2. Definition 2: It was the people who first approved the Constitution in each colony in a referendum
before its enactment. The power to amend or repeal it rests with the people, through referenda. It is
the continuing acquiescence (compliance, consent) of the people in its supremacy that gives it binding
force. 3. Critiques to sovereignty:
If sovereignty lies in those who enacted or can amend or repeal a Constitution, the
question of where sovereignty lies in Australia is complex. The body that enacted the Constitution, which is the Westminster Parliament, can
no longer amend or repeal it. The people have power to amend or repeal it, but first a bill must be passed by
Parliament (or one House of it) and it must be approved by a majority overall and
a majority in a majority of states. Hence representative government and federalism
affect the people as the source of sovereignty. S 15 of the Australia Acts also permits broad constitutional change through the
Commonwealth and State Parliaments. It is therefore more accurate to say that the people are sovereign through their
elected representatives and as federally arranged.
4. Case Law on Popular Sovereignty:
Deane J in Theophanous v Herald & Weekly Times: The present legitimacy of
the Constitution “lies exclusively in the original adoption (by referenda) and
subsequent maintenance (by acquiescence) of its provisions by the people.” Unions NSW v NSW (2013), French CJ, Hayne, Crennan, Kiefel and Bell JJ at
[17] referred to representative government as signifying that sovereign power
resides in the people and Keane J at [135] based the requirement for the free flow
of political communication on the need to ‘preserve the political sovereignty of
the people of the Commonwealth
iii. Aboriginal Sovereignty
1. After the partial recognition of indigenous rights in Mabo, the indigenous people of Australia have
attempted to push towards indigenous ‘sovereignty’. These attempts were rebuffed by the courts in
(Coe v Cth (No 1)
2. The High Court has taken the view that the acquisition of sovereignty over Australia is an ‘act of
state’ which cannot be challenged in the courts As the courts derive their existence and powers
from the Constitution and the sovereignty that is its source, they do not have the capacity to
overturn that sovereignty. They are bound by the Constitution that established them.
3. 'The Aboriginal people are subject to the laws of the Commonwealth… They have no legislative,
executive or judicial organs by which sovereignty might be exercised…the contention that there is
in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible
to maintain in law'.
4. The decision of Mabo (No 2) rejects the notion that any the indigenous have sovereignty which is
adverse to the Crown’s. Native title is under the ‘paramount sovereignty of the Crown’.
c. Separation of powers i. The concept:
Separation of powers is an important provision of the Constitution. It means that power is distributed
between the three arms of government, that is, the executive, the legislature and the judiciary. 1. Legislature: is the arm of government responsible for passing Acts of Parliament. It is composed of
the elected members of parliament and the Queen.
2. Executive: is the arm of government responsible for putting the laws passed by the legislature into
effect. It consists mainly of the various government departments and the Executive Council and is
responsible for much delegated legislation.
3. Judiciary: is the arm of government responsible for applying the law to individual cases. It settles
disputes. The judiciary is another term for the court system and judges or magistrates.
ii. How it works: 1. In the United States all three arms of government are separated. Eg the President and his or her
Cabinet are not members of the Congress. 2. In Westminster-based systems of responsible government, the executive is formed from those
holding majority support in the lower House of Parliament. Hence there is no strict separation of
powers between the executive and the legislature. 3. The judiciary, however, maintains strict separation from the other branches and their powers.
Maintenance of the Constitution and the rule of law; and protection of
individual rights
Rationalised by the need to police the distribution of
powers, to uphold the Federation
The courts can rule on the validity of legislation but
cannot make the laws in the same way that Parliament
can.
4. Separation of powers is crucial because it means that no one group has all the power. Separation of
powers protects society against corruption and undemocratic processes. 5. Dispersal of power between the 3 branches of the Constitution – legislature, executive and
judiciary NOT replicated in State Constitutions No strict separation between legislature and executive, e.g.
o Ministers are MPs (Members of Parliament) o Parliament can delegate legislative power to the executive: Victorian
Stevedoring v Dignan – executive given extremely broad powers to
regulate o The executive plays a substantial role in dispute resolution
d. Division of powers i. In a federal system, power is also divided between states and the Commonwealth.
ii. This means that legislative, executive and judicial powers are divided between the states and the federal
government. The state has control over some areas, such as police, while the Cth controls others, such as
immigration.
e. Federal system i. The Concept
1. It’s a system of government that has one central government to deal with matters pertaining to the
whole nation, as well as state governments to deal with matters pertaining to each state.
2. USA and Australia have federal systems of government while Britain has a unitary system of
government, where there is one central government only. This deals with all legislative matters for
the whole country.
3. Australia drew on the US federal system in creating its own. It is sometimes referred to as a
‘Washminster’ system, combining responsible government from Westminster and federalism from
Washington.
ii. Key features of federal systems: 1. The Centre: Institutions (political, legal and administrative) with authority (subject to the
division of powers meaning political, legal and admin are divided amongst Federal and State)
over the whole territory of a nation state. 2. Regions (e.g. States): Institutions with authority over the geographical area into which the nation
is divided 3. Division of power 4. A Constitution: A written legal document outlining these arrangements, which cannot be
amended by either the Centre or Regions at their own discretion 5. Set of rules for resolving conflict between Centre and Regions 6. Judicial authority to interpret and enforce these rules on the basis of their conformity with the
Constitution.
iii. Australian “Cooperative” Federalism
1. States
Retained their own Constitutions subject to Cth Constitution (ss 106, 107)
Gave up some of their powers to the new entity
o S 106: Saving of State Constitution: The Constitution of each State of
the Cth shall, subject to this Constitution, continue as at the
establishment of the Cth… until altered in accordance with the
Constitution of the State
o S 107: Saving of Power of State Parliaments: Every power of the
Parliament of a Colony which has become... a State, shall, unless it is
by this Constitution exclusively vested in the Parliament of the Cth or
withdrawn from the Parliament of the State, continue as at the
establishment of the Cth…
NSW Constitution Act 1902 (NSW) s 5
o The Legislature shall, subject to the provisions of the Cth of Australia
Constitution Act, have power to make laws for the peace, welfare and
good government of NSW in all cases whatsoever.
2. Distribution of legislative power
Powers of the Commonwealth Parliament listed in
o s 51 (concurrent) - Australian Constitution states the areas over which the
Cth has jurisdiction, while state constitution give general law making
powers to the states.
a. s 109: valid Commonwealth law prevails over State law
o Constitution provides 4 types of legislative power:
a. Specific powers: these are the areas of law-making that are
specifically mentioned in the Constitution as belonging to the federal
government. These are nearly all listed in section 51 and include
banking, immigration, defence and marriage.
b. Residual powers: these are powers that the states retained after
federation. These are not mentioned in the Constitution but became
the states’ powers because the Constitution does not give them to the
Cth. Residual powers include crime, law enforcement and education.
c. Exclusive powers: These are the areas of law-making over which the
federal government has exclusive power. That is, only the federal
government make laws about these areas, which include defence,
bank notes and coinage, immigration and customs and excise duties.
(listed in section 52 of the Const.)
d. Concurrent powers: These are areas over which both the states and
the Cth have legislative power. Many areas in section 51 of the
Constitution are areas over which the state can also make laws. These
include banking, taxation and company law.
i.e: Section 109 of the Constitution provides that if both Federal and
state governments make laws on the same subject, and these laws are
inconsistent with each other, the federal law will prevail.
States have power to make laws for the peace, welfare and good government of
the State
High Court interprets and enforces the Cth Constitution
Federalism in the Cth Parliament
o Each State has an equal number of seats in the Senate (12) plus 2 for each
of the NT and ACT
Other federal elements, e.g.:
o S 51 (2) Taxation power “but so as not to discriminate between states”
o S 99: Cth shall not by any law of trade, commerce or revenue, give
preference to one State over another
o S 117: No discrimination against residents of another state
o S 118: Full faith and credit shall be given throughout the Cth to the laws
and judicial proceedings of every State
o S 92: Trade within the Cth to be free
f. Responsible Government - The Westminster System i. Responsible Government
1. Def: Ministers (executive) must be members of parliament (legislative) (s64 Cth Con)
Which means People control their government expressed through the lower house.
Government are held accountable by the people during elections
In the meantime, each house of Parliament which is acting in the shoes of the people who
elected them, holds the government accountable
2. The Constitution can only be formally amended by referendum.
3. US don’t have responsible government as the President is elected separately from Congress.
Bill a democrat faced a House of representative and a Senate both controlled by Republicans.
4. The Constitution does not mention either the Prime Minister or the Cabinet
i.e. the 2 central features of our government emerged by convention
g. Parliamentary Sovereignty i. The Concept:
1. “Parliament can make or unmake any law it chooses” –AV Dicey and Bryce
2. A parliament cannot bind future parliaments
3. No court or other body can hold a statute made by parliament invalid
In UK, special case because of EU laws which override UK ones.
ii. The role of “the people” is limited to voting at elections so there is no legal or effective means of
challenging the government (e.g When Howard had majority in both upper and lower houses he pushed
through with work choices 05-06. Despite its lack of popularity people had no effective legal means to
challenge it before election).
1. Electors are the political sovereigns
2. Parliament is the legal sovereign (powers of law making unrestricted by legal limits)
iii. Limitation of Parliamentary Sovereignty
1. If a law is entirely absurd such an act of genocide or murdering all blue eyed babies then significant
number of electors will simply disregard and disobey the law. In such instances the political system
will be under turmoil and will collapse.
2. Society influences on the character of Parliament such as morality, societal beliefs and
environmental & political circumstances.
iv. Application in Australia
1. Australian laws were subordinate not sovereign because of its colonial status
2. Cth Constitution limits parliaments’ powers both State and Cth (s92)
3. “Manner and form” requirements in the States
4. No Australian parliament is fully sovereign, because the federal system divides this
sovereignty
5. Non-constitutional laws are immediately invalidated
6. Subject to the distribution of powers and constitutional prohibitions, Parliaments are free to
legislate as they wish and Courts cannot strike down laws for being ‘bad policy’, ‘crazy’ or not for
‘peace, order and good government’.
7. Courts have left open, however, the question of whether there are fundamental common law rights
that even the Parliament cannot deviate from.
8. Parliament cannot bind a future Parliament applies in Australia, except to the extent that provisions
can be entrenched under ‘manner and form’ mechanisms or by constitutional change.
9. THUS, Parliamentary sovereignty in Australia is extremely limited.
h. Rule of law i. Concept of the rule of law
1. The ‘rule of law’ includes a bundle of different propositions and theories. At its most basic, it is
that the law applies to everyone, including the executive government and must be administered
fairly.
2. According to Dicey:
Absolute supremacy of government by law as opposed to government by fiat
Government can operate only if they have specific legal authority
Person can be punished for breach of law and not otherwise
3. According to Lord Bingham said that the rule of law means that ‘all persons and authorities within
the state, whether public or private, should be bound by and entitled to the benefit of laws publicly
and prospectively promulgated and publicly administered in the courts’ (BW 24). Sub-rules are:
The law must be accessible and so far as possible intelligible, clear and
predictable.
Legal rights and liabilities should ordinarily be resolved by the application of law
not discretion.
Laws should apply equally to all, except to the extent that objective differences
permit differentiation.
The law must afford adequate protection of fundamental human rights.
There must be means for resolving civil disputes without prohibitive cost or
inordinate delays.
Ministers and decision-makers must exercise their powers reasonably, in good
faith, for the purpose for which they were conferred and within their limits.
Adjudicative procedures should be fair.
The State must comply with its international obligations
ii. Enforcement of the rule of law
1. Some aspects of the rule of law are constitutionally entrenched through:
Ch III of the Constitution concerning courts and the exercise of judicial power
s 75(v) of the Constitution concerning judicial review of administrative action.
2. Some aspects aren’t entrenched, but will be applied by the courts as part of the common law.
3. Some aspects are supported by the courts through statutory interpretation
iii. Rule of Law v/s Parliamentary sovereignty
1. Query whether the parliament is the sovereign as they make the laws or is the law the sovereign
that is parliament’s power is also effectively derived from the law itself. According to Dicey:
“sovereignty of Parliament favours the supremacy of the law of the land”
although they may appear to oppose each other as a form of check and balances
but law of the land is the true sovereign.
Parliament can only exercise its power through statutes which must be created
following the proper process (which require deliberation) and then interpreted by
the courts.
English parliaments have never (except during revolutions) exercised direct
executive power to appoint executive governments.
2. Reconciling the rule of law and parliamentary sovereignty through:
The principle of legality is the legal ideal that requires all law to be clear,
ascertainable and non-retrospective. So governments must find lawful authority
for every action they take (from the above sub-rules). It requires decision makers
to resolve disputes by applying legal rules that have been declared beforehand,
and not to alter the legal situation retrospectively by discretionary departures from
established law.
i. Human rights and the rule of law i. How are human rights currently protected?
1. International Law
Australia has ratified ICCPR (International Covenant on Civil & Political
Rights) but it is not legally incorporated into legislation.
2. Common Law
Right to privacy, freedom of speech, found in past precedents that judges will
continuously develop
ii. Human rights come from the judges themselves. Judges will interpret statutory
legislation and where ambiguity exists international Human Rights law or treaties
are examined. E.g. Mabo – non-discrimination is a basic principle of international
law, and everyone is entitled to basic human rights.
3. Legislation
Human Rights and Equal Opportunity Commission Act formed a body
conciliating complaints by individuals, intervene in cases of significance and
produce reports on rights. However, they are not able to determine complaints
because they are not part of the judicial system. They are only able to inquire
report and intervene in court.
Anti-discrimination laws (Racial Discrimination Act and Sex Discrimination
Act) apply external affairs power to create legislation power not given to
government under constitution
ACT & Vic Statutory Charters of Rights
4. Constitution:
No Bill of Rights in the Australian Constitution, but there are a few express
rights. These include:
o S 117 – the right to be free from discrimination for residence in another
state – this is a positive right of greater extend than any other in the
Constitution.
o S 80 – the right to trial by jury
o S 116 – the right to freedom of religion
o S 41 – the right to vote
o There are also implied rights in the Australian Constitution. The Lange
case stated that a right to freedom of political communication is implied
in our constitution
o Freedom of speech: implemented by the High Court in 1992. The
reasoning of the HCA was that the Constitution provided representative
government, so there’s right to freedom of communication. Otherwise the
notion of representative government can’t work. (Andrew Theophanous v
the Herald and Weekly times; Thomas Gregory Stephens and Others v
West Australian Newspapers)
ii. Statute law and parliaments:
1. Courts do not impute to the legislature an intention to abrogate or curtail fundamental rights of
freedoms unless such an intention is clearly manifested by unmistakeable and unambiguous
language. General words will rarely be sufficient. Unless words are not clear, we have the
presumption that legislation wont abrogate on human rights.
2. Statute law and non-interference by the law are the two main ways human rights are protected in
Australia. Parliaments have legislated a wide range of human rights issues but not all international
conventions have been given legislative force.
3. Courts interpret the statutes made by the parliament. Common law and court decisions:
Potter v Minahan (1908):
o FACTS - Word immigrant in Immigration restriction Act 1901 interpreted
as excluding Australian born people returning from overseas thus
preventing appellant was treated an immigrant.
o HELD - Court rejected that and held that it is unlikely that legislature would
overthrow fundamental principles, infringe rights of common law without
expressing clear intention to do so.
Coco v The Queen (1994)
o FACT – Coco’s conviction for attempted bribery of federal police quashed
by High Court. Evidence obtained through secret listening device installed
in Coco’s factory by disguised police.
o ISSUE: Invasion of Privacy Act (QLD) authorised installation. AFP Act
(CTH) negated need for authorisation.
o HELD – neither of above could authorise unlawful entry by means which
the device had been installed because there is a presumption that legislation
had not intend so as to protect fundamental rights of individuals unless there
is a clear implication that authority’s entry was intended. Invasion of
Privacy Act (QLD) authorised installation perhaps construed as allowed
to install but entry is a separate issue. In applying the same principle, noted
that the purpose was to force Parliament to face up to the impact of its laws
upon human rights. The Courts would not interpret laws expressed in
general terms as abrogating from or curtailing rights, freedoms or
immunities. The clear intention of the Parliament must be shown.
Momcilovic v The Queen (2011)
o French CJ said of the principle of legality: ‘It protects within constitutional
limits, commonly accepted ‘rights’ and ‘freedoms’. It applies to the rules of
procedural fairness in the exercise of statutory powers. It applies to statutes
affecting courts in relation to such matters as procedural fairness and the
open court principle, albeit its application in such cases may be subsumed
in statutory rules of interpretation which require that, where necessary, a
statutory provision be read down so as to bring it within the limits of
constitutional power. It has also been suggested that it may be linked to a
presumption of consistency between statute law and international law and
obligations.’
In the context of human rights: MIEA v Teoh: A narrow conception of
ambiguity should be rejected. If the language of legislation is susceptible of a
construction which is consistent with the terms of an international instrument
to which Australia is a party, that construction should prevail. This is a canon
of interpretation and does not import international law into municipal law.
II. Constitutional Amendment
a. Rigid v/s Flexible i. Rigid
1. A Constitution may be rigid – i.e. it can only be amended by a special procedure and it overrides all other
laws. Constitutions of federations are normally rigid so that one level of government cannot unilaterally
change the rules establishing the federation. (Eg, USA, Canada, Australia.)
2. A rigid constitution is one under which fundamental laws cannot be changed in the same manner as
ordinary laws
ii. Flexible:
1. A Constitution may be flexible. It may be able to be changed by ordinary legislation and it may also be
impliedly overridden by later legislation. In some cases it may not be even formalised in a document. (Eg,
UK and New Zealand.)
2. “one under which every law of every description can legally be changed with the same ease and in the
same manner by one and the same body” (A V Dicey)
iii. Mixed:
1. A Constitution may also have a mix of rigid and flexible provisions. (Eg, Australian States.) State
constitutions are ordinary Acts of Parliament, which can be (impliedly) amended by later acts of
parliament
iv. Debate on RIGID constitution:
Yes - Security- offers protection
Yes - Defeats purpose of having Constitution if it can be easily changed
Yes- Don’t want fundamental issues to be changed/affected by the politics of the day
Yes - Maintenance of federation. States will not want to sign up for a federation that can be easily
changed
No - Adaption to change because expectation of communities in the past and present is different.
No - The Constitution needs to keep up with that change in the expectation
b. Amending the Commonwealth Constitution i. Historical background
1. Canada’s Constitution was amended by the Westminster Parliament until 1982. 2. United States Constitution is amended by a proposal passed by a 2/3 majority in both Houses of Congress
and the approval of three quarters of the States (either through State legislatures or State Conventions). 3. UK amends its Constitution by ordinary legislation. 4. Australia was revolutionary in instituting the referendum as a means of amending the Constitution (adopting
the Swiss innovation).
ii. Section 128 of the Constitution 1. “This Constitution shall not be altered except in the following manner: 2. It applies to all formal amendments of the Constitution
a. (but note that the application of the Constitution can still be altered by s 51(xxxvii), 51(xxxviii)
and s 105A). 3. It applies to ‘this Constitution’
a. arguably not the covering clauses in the Commonwealth of Australia Constitution Act. b. This remains a matter of contention. The covering clauses and preamble can now be altered
through s 15 of the Australia Acts 1986.”
iii. Steps for amendment 1. A fundamental ideal needs to be change or settled i.e recognition of Aboriginal Australian in the Constitution 2. This isn’t just dumped on the people and they vote on it, the referenda proposal is submitted to parliament. 3. Before the proposal goes to the people for voting, either of the two things needs to happen:
a. Be passed by an absolute majority of each House of the Commonwealth Parliament, and be
submitted to referendum not less than 2 months nor more than 6 months later; OR b. Be passed by an absolute majority in ONE House, and after 3 months the same occurs again
meaning only ONE House passes the proposal. Subsequently, it is submitted by the Governor-
General to a referendum. i. The other House rejects it or fails to pass it, or passes it with unacceptable
amendments. ii. The Governor-General acts upon ministerial advice, so the Government controls what
goes to referendum and can prevent the Senate putting something to a referendum. iii. Neither the people nor the States can initiate a referendum. iv. Note 1988 proposal by Constitutional Commission for States to put matters to
referenda v. Note arguments re citizens’ initiated referenda and the problems to which they give
rise.
4. A Yes/No question/case is prepared by politicians who voted for or against the proposal, and is sent to all
voters/households. People either approve or don’t. There is no ‘No’ box/option unless at least one
parliamentarian voted against it.
5. Voting is compulsory and it should be passed by a majority of the people as a whole, and by a majority
of the people in a majority of the states 6. If approved, the law must be presented to the Governor General for the Queen’s assent 7. Fine tuning the process:
a. The Australian government cannot simply repeal s128 using ordinary legislation and then
effect amendment. Since s128 is doubly entrenched, it, itself, can only be amended in the
manner and form which it prescribes. b. It can be called off, even after the bill has passed, if the Government decides not to go ahead
(see 1966 and 2013). c. It can be held at the same time as a general election or separately. More than one referendum
question can be put at a referendum.
iv. Reasons for the failure of Commonwealth referenda 1. The referendum proposal was ill-considered or badly explained. 2. Constitutional amendments are necessarily technical in nature and voters vote against proposals that they
don’t understand. ‘Don’t know – vote No’ 3. Voters are wary of entrenching things in the Constitution if they might have unexpected consequences or be
interpreted differently in the future by the courts. 4. Voters have a stronger desire to keep what they have rather than to risk it in the hope that change will bring
something better - the ‘status-quo bias’. 5. Most referendum proposals have been perceived as giving advantages to the Commonwealth Government
(sometimes political advantages). 6. The proposal is considered to be unfair (eg Communist referendum). 7. Too many things are sometimes mixed into the one question (if just one aspect was objected to, the voter
would then vote against the entire question – see 1988 referendum). 8. Oppositions see the failure of a referendum as a government defeat, so they oppose proposals they had
previously supported, whip up hysteria and raise spurious (fake) concerns, just to get a backlash against the
Government (eg 1937 referendum re aviation). 9. States frequently do not support reforms because they involve increasing Commonwealth power and
therefore campaign against them. 10. One of the consequences of the failure to achieve formal constitutional change to amend the Constitution is
that the High Court has been more inclined to change it by way of constitutional interpretation in order to
keep it updated and relevant. The HCA interpret the Constitution in a way, which is flexible. When they do
that, a referendum wouldn’t be as beneficial. a. Many defeated referenda (eg referenda to give the Commonwealth greater power over industrial
relations or corporations) have effectively been reversed by High Court interpretation giving
those powers to the Commonwealth anyway. b. Some (eg Justice Callinan) see this as the Court usurping the power of the people and therefore
anti-democratic.
v. Manner and Form 1. At the Commonwealth level, the only way to entrench matters is to include them in the Constitution (or
perhaps the Australia Acts 1986). a. Otherwise, the Commonwealth Parliament has full power to amend or repeal any laws that it
validly makes (subject to s 51(xxxvii) and s 51(xxxviii)). 2. The Commonwealth Parliament cannot require a special majority for the amendment of its laws, as this
would be contrary to ss 23 and 40 of the Constitution. (s23 majority of the Senate/s40 majority for House
of rep). a. While the Flags Act 1953 (Cth) says that a referendum is needed to change the flag OR the GST
legislation says that the States must agree to any change in the rate and base of the GST - Neither
is legally effective. b. The Commonwealth Parliament can amend these laws by ordinary legislation.
vi. British Leftovers?
1. Our Constitution is still contained in s 9 of a British Act of Parliament. 2. Section 59 of the Constitution still allows the Queen to disallow any Commonwealth law within one year of
assent. 3. Section 60 provides for bills to be ‘reserved for the Queen’s pleasure’. 4. Covering clause 2 provides that references to the Queen ‘shall extend to Her Majesty’s heirs and successors
in the sovereignty of the United Kingdom’. 5. The parliamentary oath is made to ‘the [King or Queen of the United Kingdom of Great Britain and Ireland
for the time being], Her heirs and successors according to law’.
6. Section 74 permits appeals from the High Court to the Privy Council: where the High Court provides a
certificate, and requires that any law limiting appeals to the Privy Council ‘shall be reserved by the
Governor-General for Her Majesty’s pleasure’.
vii. Example 1: Republic referendum
1. A republic for Australia would mean having someone other than the monarch as our head of state, with few,
if any changes to our current democratic and law-making processes.
2. In 1993 Paul Keating proposed a republic to be established on 1 January 2001.
3. The Fed. Gvt. appointed a committee to look at the options of Australia becoming a republic. Matters to be
resolved which were suggested, include:
a. Who would be our new head of state?
i. If the Queen, and thus the GG, was no longer our head of state, we would have to find
another head of state. Most likely a president like Germany, Ireland, US and France.
His election would be either:
1. Elected by a 2/3rd majority of Parliament as ahs been suggested
2. Elected by the people
Problem with this is that the president would be elected along
political party lines which cast doubt on his impartiality.
3. Elected by State and Federal parliaments as in Germany
b. Powers of the Head of state:
i. People who support the idea of a republican Australia generally see the Australian
president as having similar powers to the GG.
ii. Powers include:
1. Allowing the current unwritten conventions to remain.
2. Changing the Const. so that there’s an automatic double dissolution if the
Senate fails to pass supply.
3. Removing completely the Senators’ right to reject or delay supply
4. Allowing a head of state to dismiss a government but only when it has
breached the Const. by drawing funds that haven not been approved.
iii. There was a concern, however, that this would give the President a direct public
mandate not held by the Prime Minister who is only elected by his or her electorate
(and party-room). This could result in conflict and the exercise of reserve powers to
dismiss a government or refusal assent to bills that were contrary to the platform on
which the President was elected, causing political instability.
iv. Proposed s 59 stated that the President shall act upon the advice of the Federal
Executive Council meaning Ministers but may exercise a reserve power of the
Governor-General in accordance with the constitutional conventions relating to the
exercise of that power.
v. The President had to be qualified to be a Member of Parliament and not be a member
of a political party. The term of office was to be five years. He could be dismissed by
the Prime Minister with immediate effect (although approval had to be sought from
the House of Representatives within 30 days if it had not earlier been dissolved).
c. State to cut ties with the monarchy?
i. States can still retain ties with the monarchy despite a national referendum to making
Australia a republic. But this is unlikely because:
1. A majority of states must agree to a referendum
2. The monarch needs to agree himself too!
3. The referendum making Australia a republic could contain a provision
disallowing states from retaining the monarchical ties.
d. The Queen and the Republic
i. The Queen is part of State Constitutions and a constituent part of most State
Parliaments. If a Commonwealth referendum instantly removed the Queen from her
constitutional role in the States, the States would not be able to fill the gap if their
Parliaments could not operate or if they needed a referendum to put in place new
provisions.
ii. Section 7 of the Australia Acts 1986 states that the State Governor is the Queen’s
representative in the State. The States can’t change this unilaterally. The States all
passed legislation under s 15(1) of the Australia Acts 1986 to amend s 7 to allow them
to cut off their links with the Queen and become republics. This legislation was only
to take effect if the Commonwealth referendum passed. As it failed, the change was
never made.
iii. The States also offered to legislate under s 15(1) to allow the repeal of the existing
preamble and the covering clauses. The Commonwealth declined the offer and said
it would simply re-print the Constitution without them.
e. How would Australia become a republic?
i. This can happen only if the Const. is amended. Amendment should follow section
128 of the Const. But very few referendums happen in Australia.
ii. To have a successful referendum to make Australia a republic, two problems would
have to be overcome:
1. Before a referendum can be put to the people, both houses of Parliament
have to pass/assent a bill putting the question/s necessary to change the
Const. into referendum.
2. More than a third of the 127 provisions in the Const. contain references to
the Queen or the GG. All those need to change, and to change the Const.,
we need a referendum and it would be complex to administer a referendum
for 127 provisions.
One solution could be to put one referendum question asking people
if they want the Const. changed so that Australia could become a
republic.
3. Federal government has proposed that there be a People’s Convention on
the republic in 1997. This convention would be a meeting of delegates from
across the country. Half od the delegates would be elected by the people and
the other half appointed by the government (states, federal, territorial)
4. The convention agreed upon a model for the popular nomination of the
President, with short-listing by a committee.
The Prime Minister would then nominate a person from the short list,
seconded by the Leader of the Opposition, for approval by a joint
sitting of both Houses.
Support of a two-thirds majority would be required for the President
to be chosen.
The intention was to include an element of popular participation at
the nomination stage as well as bipartisan (government and
opposition) cooperation so that the person chosen was not a partisan
for either side.
f. Arguments in the ‘No’ case against the republic included:
i. This type of republic was untried, unworkable, undemocratic and elitist.
ii. The politicians will appoint the President, not the people.
iii. Don’t know? – Vote ‘No’
iv. A puppet for President! Vote ‘No’ (based upon the fact that the PM can dismiss the
President).
v. Keep the status quo! – Vote ‘No’ (arguing that certainty and stability would be
threatened by change.)
g. Results of the republic referendum
i. The republic referendum also failed, receiving only about 45% approval and not
achieving a majority in any State.
1. It was defeated by a combination of monarchists and republicans who
supported a directly elected President and argued that there would soon be
a further referendum to achieve this. They were wrong.
2. The referendum was least successful in Labor Party working-class
electorates and tended to be most successful in electorates with high levels
of education.
viii. Example 2: Preamble Referendum
1. Prime Minister Howard proposed the insertion of a preamble in the Constitution itself, drafted by himself
and poet Les Murray. The first draft referred to the:
a. ‘equal sovereignty’ of Australia’s citizens and asserted that ‘Australians are free to be proud of
their country’. It mentioned mateship, excellence, enrichment and fairness.
b. It concluded: ‘Australia’s democratic and federal system of government exists under law to
preserve and protect all Australians in equal dignity which may never be infringed by prejudice
or fashion or ideology nor invoked against achievement’.
2. The proposed preamble was re-drafted after much criticism and ridicule. The final version remained
controversial because:
a. Many Aboriginal people rejected the description of their relationship with their lands and waters
as one of ‘deep kinship’.
b. It also included a proposed s 125A, which prohibited the preamble from being considered in
interpreting the Constitution or any law in force in the Commonwealth in order to keep all
Australians equal.
3. The preamble referendum failed miserably, getting significantly less support than the republic. Les Murray
said that the ‘people in their mercy took it out and shot it’.
ix. Example 3: Aborigines and the Commonwealth Constitution
1. Historical Background
a. In 1938, there was a meeting amongst 38 nations to find a solution for the many thousands of
Jews fleeing Nazi Germany. Sir Thomas White, the Australian Minister at the Conference
suggested that we would help. Hence, the great migration program started which changed the
face of Australia.
b. The White Australia policy had to be abolished and no political party opposed as Australia
needed thousands and thousands of people. So issues of race or religion needed to be outside
political fray.
c. The constitution had to toned down on the racism:
i. In 1901, s 127 of the Constitution provided: ‘In reckoning the numbers of the people
of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal
natives shall not be counted.’
1. This did not prevent Aboriginal people from voting or from being citizens
or even stop them from being counted in the census (in which many were
counted, from the first census).
2. Aboriginal people were only excluded from being counted in population
figures in relation to transition financial matters and in the distribution of
seats between the States.
ii. In 1901, s 51(xxvi) of the Constitution provided that the Commonwealth Parliament
could make laws with respect to: the people of any race, other than the aboriginal race
in any State, for whom it is deemed necessary to make special laws.
1. The above is saying two very racist things:
First that each race can have a special law which doesn’t apply to a
different race. So the law isn’t applied uniformly on everybody.
Second, aboriginal people are clearly and categorically marginalized
by the Constitution
2. In the initial Constitution, Aboriginal Australians and Torres Strait Islanders
had been excluded from Commonwealth legislative competence because it
was believed that regulation of these peoples was the province of the States.
iii. The 1967 Referendum did two things:
1. It removed the words “other than the aboriginal race in any State” from
Section 51(xxvi) which then allowed the Commonwealth to make laws for
any racial group.
2. The Referendum of 1967 also removed totally Section 127.
2. The main racist issues in the Constitution
a. Issue 1: Aboriginal people are not recognized under the constitution.
b. Issue 2: The new s51 implies that laws should be made on the basis of race.
i. Parliament could make special laws, which only apply to a particular race.
ii. It allowed the Commonwealth to make special laws with respect to race, which could
be to their benefit or to their detriment
iii. The change did not give Aboriginal people the vote (which they had), make them
citizens (which they always were, if born in Australia) or give them ‘rights’
c. Issue 3: Section 25 says: If any State law prohibits a certain race from voting in parliamentary
elections, then they won’t be counted in any census (meaning when government counts the
number of people living in a State or country).
d. Issue 4: The Constitution doesn’t not include anti-discrimination racial clause.
3. Minor reforms
a. Aboriginal people have been recognised in the State Constitutions of Victoria, Queensland,
New South Wales and South Australia (and recognition is proceeding in Western Australia).
BUT This occurred by way of ordinary legislation, so the public never noticed and never gave
their approval.
b. Non-justiciability clauses (clauses that can’t be touched by the courts) were included in the State
Constitutions so that the recognition clauses could not be used in constitutional or statutory
interpretation or to establish new rights.
c. In 2007 both John Howard and Kevin Rudd promised a referendum on constitutional
recognition if they won the election. Rudd won but did not hold a referendum. The 2010 election
resulted in a hung Parliament. The Independents and the Greens, in their agreement to support
a Gillard Government, required that a referendum on constitutional recognition be held within
the term of the Parliament.
d. Gillard appointed an Expert Panel, which reported in early 2012. Its recommendations never
received the formal support of the Gillard/Rudd Governments or the Abbott Government, but
have been the subject of ongoing discussion. A Joint Select Committee has since been
examining the proposals and reported in 2015.
4. Suggestions
a. The Panel proposed:
i. the repeal of s 25 of the Constitution;
ii. the repeal of s 51(xxvi) of the Constitution;
iii. the insertion of a new s 51A (with its own preamble) to give power to Parliament to
make laws with respect to ‘Aboriginal and Torres Strait Islander peoples’;
iv. the insertion of an anti-racial discrimination provision in a new s 116A; AND
v. the insertion of a new s 127A recognizing Aboriginal and Torres Strait Islander
languages as the original Australian languages, as well as English as the national
language.
b. The proposed s51:
i. Recognising that the continent and its islands now known as Australia were first
occupied by Aboriginal and Torres Strait Islander peoples;
ii. Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander
peoples with their traditional lands and waters;
iii. Respecting the continuing cultures, languages and heritage of Aboriginal and Torres
Strait Islander peoples;
iv. Acknowledging the need to secure the advancement of Aboriginal and Torres Strait
Islander peoples;
the Parliament shall, subject to this Constitution, have power to make laws for the
peace, order and good government of the Commonwealth with respect to Aboriginal
and Torres Strait Islander peoples.
c. Need for a new head of power:
i. If the race power is removed, there will be no head of power to support laws with
respect to native title and the protection of cultural heritage, such as sacred sites.
1. Example: Aboriginal and Torres Strait Islanders Heritage Protection Act,
ATSIC Legislation, the Act establishing the Council for Aboriginal
Reconciliation and various Acts regulating the grant of Native Title and
legislation setting up Native Title bodies.
2. If the race power is struck down the above examples would cease to exist
ii. Indigenous Australians are concerned that the power not be used in an adversely
discriminatory or oppressive way.
1. One possible way of achieving this is to make the head of power purposive
in nature.
For example, the Commonwealth Parliament could be given a power
to make laws for the purpose of preserving, protecting, developing
or sustaining Aboriginal and Torres Strait Islander heritage, cultures
and languages and the relationship of Aboriginal and Torres Strait
Islander peoples with their traditional lands and waters.
d. The proposed new s 116A would provide
i. (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds
of race, colour or ethnic or national origin.
ii. (2) Subsection (1) does not preclude the making of laws or measures for the purpose
of overcoming disadvantage, ameliorating the effects of past discrimination, or
protecting the cultures, languages or heritage of any group.
iii. It risks moving the referendum debate away from Indigenous recognition to issues
regarding bills of rights, conflicting rights, who is protected, the extent of the
exemption and whether laws protecting groups within a race (eg women and children)
would be allowed.
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