Where our laws come from

The Commonwealth of Australia and each Australian state and territory have their own constitutions. Under these constitutional arrangements, the head of state is the Queen of Australia, who is also the Queen of the United Kingdom and the head of the Commonwealth of Nations (formerly called the British Commonwealth). The Governor-General and state governors are her representatives. They are appointed by the Queen, but she does so on the basis of advice provided by the relevant head of government (i.e. the prime minister or premier).

The Commonwealth and state constitutions appear to provide extensive powers to the Queen’s representatives. However, these powers are exercised in accordance with ministerial advice (except in relation to a very narrow range of issues known as the ‘reserve powers’).

The reserve powers are generally accepted to be:

• the power to appoint a government;
• the power to reject advice to dissolve parliament;
• the power to dismiss a government.

State governors and the Governor-General appoint governments, usually from the party that has won an election or has the confidence of the lower house (Victoria: the Legislative Assembly; federal: the House of Representatives).

The power of the state governors and the Governor-General to dismiss an elected government is subject to dispute as a result of that power being used in 1975 to dismiss the federal Labor Whitlam government. Some argue that the power to dismiss a government does not exist or should not exist. However, without that power, there is no alternative means of removing a government from office in most constitutions, even when the government has lost the confidence of the lower house or has lost an election.

Although the bulk of their activities are exercised in accordance with ministerial advice, state governors and the Governor-General are not necessarily merely ‘rubber stamps’; they can still play an important role with their ‘three rights’. These three rights are:

• the right to be consulted;
• the right to encourage;
• the right to warn.

The right to warn should be exercised when a state governor or the Governor-General considers that the government is taking an unwise course of action, or if a governor or the Governor-General intends to dismiss a government. As the former Governor of Victoria, Richard McGarvie, put it:

It is a cardinal principle that a governor should never ‘ambush’ a premier – should never exercise the reserve power without having given the premier adequate warning that it may be exercised.

The federal parliament – and the parliament of each state (other than Queensland) – is made up of two houses: the upper house and the lower house. The federal and state parliaments have two essential functions. The first function is determining which party is to form government. This task is performed by the lower house as that house has been, historically and in most Australian parliaments is, the more representative of the two houses. The second function of parliament is passing legislation. All Commonwealth and state legislation must be passed by each House of Parliament and be approved by the Queen’s representative before becoming a law.

The extent of the power of Australian parliaments to make laws is detailed in the Commonwealth of Australia Constitution Act 1900 (Cth) (‘Australian Constitution’) and state constitutions, such as the Constitution Act 1975 (Vic).

The Commonwealth legislative powers are listed in the Australian Constitution and most are not exclusive to the Commonwealth. The Commonwealth legislative powers include defence, taxation, marriage, trade and commerce, immigration and lighthouses.

The states do not have a list of legislative powers, but their constitutions provide the legislative power to make laws ‘for the peace, order and good government of the state’ or, in Victoria’s case, ‘in and for Victoria in all cases whatsoever’ (see s 16 Constitution Act 1975 (Vic)). These are broad powers to make laws about all matters relating to the state. Also, despite what appears to be the limiting or qualifying nature of the words ‘peace, order and good government’, the High Court decided in Union Steamship Company of Australia Pty Ltd v King [1998] HCA 55 that those words do not have a qualifying effect.

There is, therefore, an overlap between Commonwealth and state legislative powers, which can lead to inconsistent Commonwealth and state laws. If a state law is inconsistent with a Commonwealth law, section 109 of the Australian Constitution states that the Commonwealth law prevails. Section 109 also states that where there is an inconsistency between state and Commonwealth law, the state law is ‘invalid’. However, the High Court has interpreted this to mean that the state law is not, in fact, invalid, but is only inoperative while the inconsistency remains (see Carter v Egg & Egg Pulp Marketing Board (Vic) (1942) 66 CLR 577).

If a parliament makes a law that is outside the powers set out in the relevant constitution, then the validity of that law can be challenged. Sections, whole parts, or a complete Act can be declared invalid if the courts find it unconstitutional; that is, the relevant constitution did not give parliament the power to make that law.

Disputes about interpreting the Australian Constitution can only be resolved in the High Court.

Each minister must be a member of one of the Houses of Parliament, so they can be subject to scrutiny from, and be responsible to, parliament. This is an essential element of the Westminster system and is expressly required in many of the Australian constitutions, as in section 64 of the Australian Constitution.

The Australian Constitution contains few express rights; these are limited to:

• the right to vote (s 41);
• property can only be acquired on just terms (s 51(xxxi));
• trial by jury (s 80);
• trade, commerce and intercourse among the states shall be ‘absolutely free’ (s 92);
• freedom of religion (s 116);
• immunity to out-of-state residence discrimination (s 117).

This limited range of rights has also been generally subject to restrictive judicial interpretation – as seen in R v Pearson; Ex parte Sipka (1983) 152 CLR 254 and R v Archdall (1928) 31 CLR 128.

However, there are also some implied restrictions on legislative power that the courts have derived from the terms of the Australian Constitution. The most significant restriction is the implied freedom of political communication (see Lange v ABC (1997) 189 CLR 520).

This covers ‘political discussion’, which includes ‘discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office’ (see Theophanous v Herald & Weekly Times Ltd [1994] HCA 46). The court has also identified a broader implied right to vote (see Roach v AEC (2007) 233 CLR 162).

The Australian Constitution is ‘entrenched’ and can only be changed by the successful passage of a referendum by a majority of voters and a majority of voters in a majority of states (s 128 Australian Constitution). This makes changing the Australian Constitution very difficult. There have been 44 attempts to amend the Australian Constitution since 1901 and only eight have been successful.

However, most state constitutions are Acts of parliament that are changeable by normal legislation. Some states have introduced forms of entrenchment for some of the constitutional provisions. Of the states, Victoria has the greatest degree of entrenchment; many of the provisions in the Victorian Constitution are only alterable by a referendum; some other provisions can only be changed by a 60 per cent majority in both Houses of Parliament; while other provisions require an absolute majority of each house (s 18 Constitution Act 1975 (Vic)).

The Australian Constitution gives little recognition to Indigenous issues. However, in 1967 some of the regrettable elements about Indigenous Australians were removed from the Australian Constitution. For example, section 127 was removed, which prevented Indigenous Australians from being counted in censuses.

Some Australian states have added provisions to their constitutions (i.e. Victoria, New South Wales and South Australia) or have references in the constitutional preamble (i.e. Tasmania) that acknowledge Aboriginal people. However, the effect of these acknowledgments is questionable as the provisions specify that they do not give rise to legal rights and entitlements (s 1A(3) Constitution Act 1975 (Vic); s 2(3) Constitution Act 1902 (NSW); s 2(3) Constitution Act 1934 (SA)).

There is also no treaty with Australia’s indigenous population. However, Australia’s first treaty legislation was passed by the Victorian Parliament in June 2018. The Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) (‘ATPAV Act’) was written in consultation with more than 7500 Aboriginal Victorians. The ATPAV Act establishes guiding principles for a treaty negotiation process between the state of Victoria and an Aboriginal representative body.

Aboriginal Victorians have elected a First People’s Assembly to be the representative body to guide treaty negotiations. The assembly is comprised of 33 Victorian Traditional Owners. Of these Traditional Owners, 12 were nominated by the Traditional Owner groups and the remaining 21 were elected from five regions. A quota ensured that female members were included in the assembly. All Traditional Owners aged 16 or more in Victoria were eligible to vote for the members of the assembly. Aboriginal people whose traditional country is outside of Victoria, but who have lived in Victoria for three of the past five years were also eligible to vote.

The purpose of the ATPAV Act is to establish a framework for the negotiation of a treaty between the state of Victoria and Aboriginal Victorians that:

• recognises historic wrongs; 
• addresses ongoing injustices;
• helps heal wounds;
• supports reconciliation;
• brings pride to Victorians;
• has a positive impact for Victoria;
• promotes the fundamental human rights of Aboriginal people, including the right to self-determination;
• acknowledges the importance of culture to Aboriginal identity;
• enhances the laws of Victoria.

The guiding principles for treaty negotiations are:

• self-determination and empowerment;
• fairness and equality;
• partnership and good faith;
• mutual benefit and sustainability;
• transparency and accountability.