Constitutional Law: Federalism, Powers and Rights
Structure
Australia is a federation under the Commonwealth of Australia Constitution Act. The Commonwealth has enumerated powers; the states have general legislative power subject to inconsistency under s 109. Key heads of power include corporations (s 51(xx)), external affairs (s 51(xxix)), and taxation (s 51(ii)).
Doctrines
Understand the separation of powers, responsible government, and the implied freedom of political communication. Characterisation asks whether a law is with respect to a head of power, considering its legal and practical operation. The Melbourne Corporation principle limits laws that impair state capacity. Chapter III courts exercise judicial power; non-judicial detention raises Chapter III issues.
Rights
There is no general bill of rights in Australia. Rights are protected through implication (political communication), statutory charters in some jurisdictions, and common law presumptions.
Traps
- Confusing the corporations power with the trade and commerce power.
- Forgetting that s 109 invalidates inconsistent state laws only to the extent of inconsistency.
- Treating the implied freedom as a personal right rather than a limit on legislative power.
- Missing that state constitutions can be amended by ordinary legislation except where entrenched.
Worked example
A Commonwealth law restricts political advertising during elections. It is valid only if it is reasonably appropriate and adapted to a legitimate end compatible with representative government, and proportionate. The test is structured: does the law burden political communication, is the purpose legitimate, and is the burden proportionate?