Australian Constitutional Law

The defence of superior orders is not new. However, within Australia, its statutory codification is lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) provides a neat catalyst to expand the defence and look at possible manners in which it can be constructed. Utilising a theoretical case study of Australian Defence Force members killing a possible terrorist, this article addresses the key elements of the defence-what an order is, when can it be constructed as being manifestly unlawful and what does reasonable and necessary force mean for Australian Defence Force members.

This undergraduate essay of mine explores whether the 1975 Dismissal of Prime Minister Gough Whitlam by the Governor-General Sir John Kerr was constitutionally valid. The essay considers the extent of the reserve powers of the Governor-General, the underlying constitutional principles of responsible government and federalism, and existing High Court jurisprudence.

Received 87%

This article explores the viability for the executive power to authorise the use of the Australian Defence Force (ADF) domestically, through the lens of military intervention in industrial action. It has become practice, when discussing the executive power, to delineate between breadth and depth-the latter of which is somewhat controversial. The article first looks at possible courses of action that can be taken under the Defence Act 1903 (Cth), before highlighting the apparent gap where the ADF is placed in domestic situations that might require coercion or force, but the situation does not meet the "domestic violence" threshold required under Pt IIIAAA. It then discusses the non-statutory executive power-namely, the internal security prerogative and the implied nationhood power. The article concludes by advocating for statutory empowerment and protection for ADF members.

This article considers how a First Nations Voice to Parliament, if carefully designed, could strengthen the land-based sovereignty and autonomy of First Peoples in Australia. It critiques the proposals presented in the Indigenous Voice Co-design Process' Interim Report released January 2021 for its emphasis on the role of government and existing structures. It responds to Indigenous critiques of the Uluru Statement from the Heart, while arguing for a constitutionally enshrined Voice to Parliament that respects and defers to First Nations' Country-based authority.

Constitutional recognition of Aboriginal and Torres Strait Islander peoples re-emerged on the political agenda in 2010. Yet, no government has committed to a specific proposal and debate still rages on the precise content and form of recognition. A significant element of that debate centres on the race power under s 51(xxvi) of the Constitution. The orthodox position is that the race power permits the Parliament to enact legislation that imposes a disadvantage on Aboriginal and Torres Strait Islander peoples But is this the case? This comment will trace the Court’s jurisprudence on the race power, noting that this critical question remains open. It will then suggest a recent decision of the Court raises the possibility that — subject to an appropriate vehicle — restraining the scope of the race power may not require a referendum.

This paper aims to address the emerging forms of online protest that have come to be known  as  ‘electronic  civil  disobedience’,  or  more  simply  defined  -  protests  of
Hacktivism. To do this, a brief analysis of what Hacktivism means will be addressed followed by a series of case studies from both Australia and abroad to help illustrate both the diversity and effectiveness of Hacktivist techniques and campaigns.

Following  this,  a  brief  analysis  of  the  current  law  in  Australia  will  be  outlined, namely the Cybercrimes Act 2001, (the Act) with a critique of its criminal provisions. In  particular,  attention  shall  be  given  to  how  the  provisions  are  being  used  to prosecute Hacktivists. Particular attention will be paid to the effect of the sentencing regime  contained  within  the  Act  which  results  in  more  extensive  punishment  for
protests committed online as opposed to off-line and as such this paper will address the nature of the absolute liability offences contained within the Act and argue that such liability is unreasonable in the special circumstances of Hacktivism

Finally,  questions  as  to  whether  such  provisions  are  reasonably  appropriate  and adapted  to  serve  a  ‘legitimate  end’  and  whether  they  act  to  burden  Hacktivists Constitutional  guarantee  of  freedom  of  communication  (and  whether  Hacktivists have  such  a  guarantee  with  respect  to  political  matters  at  all),  shall  also  be discussed.

Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political communication under the Australian Constitution. Legislation such as the Crimes Act 1914 (Cth) ('Crimes Act'), the Australian Security Intelligence Organisation Act 1979 (Cth) ('ASIO Act') and the Australian Border Force Act 2015 (Cth) ('Border Force Act') makes it an offence to reveal certain types of information obtained as a Commonwealth officer. The Public Interest Disclosure Act 2013 (Cth) ('PIDA') offers limited protection to whistleblowers in the Commonwealth public sector, but this protection does not extend to information relating to intelligence operations. We argue that blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other. The courts should read down these laws to protect disclosures that hold significant public interest for discussion and debate over government policy or the performance of government officials.

All countries worldwide have a form of criminal justice system whereby a series of organizations work together so as to apprehend, prosecute, defend, sentence and punish those that have been involved in a criminal act. In most countries we are used to seeing law enforcement agencies, attorney generals, judges, courts of law and prisons all contributing towards the better enhancement of the working cooperation within the criminal justice system. However, such procedures may not always be fully applicable in certain countries and such evidence will be shown in this study (Advisory Commission on Intergovernmental Relations, 1993).

There is a puzzle regarding the place of s 96 in the Australian Constitution. The grants power conferred by the section currently plays a very prominent role in federal arrangements. However, the section reads like a transitional provision, containing the words until the Parliament otherwise provides. It appears in the midst of other transitional provisions and its drafting history suggests it was not intended to be permanent. There is also a puzzle, raised by several justices in Williams v. Commonwealth, about the interaction of s 96 with the Commonwealth spending power under s 61. This article responds to these puzzles by exploring how the fiscal powers of the Commonwealth would operate if s 96 were treated as merely transitional. We argue that construing the section in this way would resolve some tensions in the constitutional framework, as well as having salutary consequences for Australian federalism.

Section 116 of the Australian Constitution limits the ability of the Commonwealth to legislate in respect of religion. It provides: 'The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.' The limited case law on s 116 holds that the word 'for' means 'for the purpose of' such that improper legislative purpose is the test for invalidity rather than a consideration of whether an impugned law has the effect of doing one of the things prohibited by s 116. This article argues that the 'for the purpose of' interpretation is misconceived and therefore that the improper purpose test is wrong.


The article begins in part II by examining the significance attributed to purpose in the High Court’s case law on s 116. Part II shows how two competing interpretations of the word ‘for’ – ‘for the purpose of’ and ‘with respect to’ – have emerged in the case law and examines the reasoning offered by the High Court for the eventual adoption of the purposive interpretation. Part III of the article then examines the drafting history of s 116 and argues that the framers of the Constitution did not use the word ‘for’ with any intention of importing a purposive element into s 116 and that the use of the word ‘for’ turns out to be an accident of drafting. In part IV, the article argues that the improper purpose test is inconsistent with the general purposes prompting the inclusion of s 116 in the Constitution. The framers of the Constitution were seeking to limit the scope of the subject matters with respect to which the Commonwealth might legislate. Part V argues that the purposive interpretation of the word ‘for’ is inconsistent with the High Court’s contemporary approach to constitutional interpretation, which holds that prohibitions on power should not be interpreted narrowly or restrictively but rather interpreted with all the generality with which the used will admit. In Part VI, the article argues that the improper purpose test suffers from analytical problems in practice because recent High Court case law suggests that a law has the purpose of doing all the things it in fact does or is likely to do. Part VI also shows how a number of judges who adopted the purposive interpretation have in their application of that test focused on the effects of impugned laws. Part VII offers some concluding observations about how the word ‘for’ in s 116 should be understood.

From Plato's Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. Through a qualitative analysis of the legal status of preambles in different common law and civil law countries, the article highlights a recent trend in comparative constitutional law: the growing use of preambles in constitutional adjudication and constitutional design. The article also explores the theory of preambles and their functions. It examines the legal status of the U.S. preamble and shows how the U.S. preamble remains the most neglected section in American constitutional theory. The article then presents a typology for determining the legal status of preambles: a symbolic preamble, an interpretive preamble, and a substantive preamble. While focusing on Macedonia, Israel, Australia, and the Treaty of Lisbon, the article discusses the sociological function of preambles in top-down and bottom-up constitutional designs.

The nature and ambit of the Commonwealth’s non-statutory executive power under s 61 of the Constitution is now the subject of heavy debate. The contest is between those who argue that s 61 should be interpreted consistently with Australia’s character and status as a modern and federal nation (‘the inherent view’), and those who give greater emphasis to Australia’s common law heritage and the role of the royal prerogative (‘the common law view’). This article critically analyses both these viewpoints, and considers whether there is scope for reconciling their core propositions. Drawing on the broader notion of the symbiotic relationship between the Constitution and the common law, and its application to the dynamic between s 61 and the prerogative, it is contended that a more balanced conception of the Commonwealth’s non-statutory executive power is achievable. It is argued that, if the supporters of the common law view accept that the Commonwealth’s non-statutory executive power may be released from the traditional limitations placed on the English Crown and thereby adapted to suit a modern and federal context, an indigenous version of the prerogative may be retained as the measure of the ambit of this power. An indigenous prerogative reconciles the core propositions of the inherent view and the common law view and therefore supports the principal contention of this article.

In an article entitled "A Republican Tradition for Australia?", George Williams suggested that civic republicanism in anything like the American sense is neither possible nor particularly desirable for Australia. By recognizing that republicanism is a tradition deeply rooted  in the history of Western political thought, Williams helps to take the debate over republicanism beyond the then officially-sponsored nativist campaign to rid Australia of its "foreign" Queen.

Unfortunately, Williams misunderstands the essential nature of both  republicanism and monarchy. He assumes that monarchy can be abolished simply by removing  the Queen as Australia's head of state. Monarchy literally means the rule of one but the one who rules may be one person, one assembly, one party, or even one God. Even the principle of popular sovereignty is infused with a monarchal logic.

Similarly, Williams, much like Phillip Pettit, on whose work he draws, understands republicanism either as an ideology or as a form of government.  This response to Williams argues that republicanism is better understood as a conditionally operative schema of civic action, such as is provided by the federal principle.

The ability to deport or cancel the visas of non-citizens, regardless of the length of their residency in Australia, remains a controversial topic. Whilst it re ects long-standing Australian policy, the widening scope of s 501 of the Migration Act 1958 (Cth) should provoke re ection and criticism. The legislative provision empowers the Minister for Immi- gration, Citizenship, Migrant Services and Multicultural Affairs with a non-delegable, non-reviewable and non-compellable discretion to expel from Australia those deemed not to be of good character. I explore the history of the character test in Australia, highlighting the relevant inter- national and domestic legal frameworks with a particular focus on visa holders to whom Australia owes non-refoulement obligations, followed by key issues arising from the current regime: the potential inconsistency of domestic legislation with international law; the inherent irrationality of assessing future risk; and the consequences of mandatory detention. I will then explore the current review process and its legal and practical barriers, before concluding with select solutions.

A century after it was delivered, the High Court's judgment in the Engineers' Case continues to cut off Australian federalism jurisprudence from the insights of American federalism cases.  The High Court should abandon this comparative legacy.  American federalism jurisprudence—particularly the jurisprudence seeking to protect key political safeguards of federalism—can provide important insight and ideas for developing the High Court's federalism docket.  This is particularly the case in the High Court cases considering the effect of Section 96 grants on Australian federalism.

Could the implied freedom of political discourse protect the expression of a minister of religion, who the Sydney Anglican Diocese declined to relicense because of his expressing views on marriage equality? While it may be thought that, typically, 'burdened' expression about contemporary 'political' topics readily falls within the protective scope of the implied freedom of political discourse under Australia's Constitution, this paper challenges that understanding. First, can speech be constitutionally 'political' and therefore fall within the protective scope of the implied freedom of political discourse if the expression is about hermeneutics? Secondly, can the implied freedom protect speech when the relevant expression is not burdened by a law but is instead restricted by a church decision? Thirdly, and relatedly, is there a constitutional rule or principle under Australian law which would cause Australian courts to be reluctant to intervene in decisions of churches, even on 'political' topics?

This article argues that the reasoning in Attorney-General (Vic) ex rel Black v Commonwealth, the sole High Court case on the meaning of the establishment clause of s 116 the Constitution, is too narrow and requires reconsideration. It begins that process of reconsideration and argues that the proper meaning of the establishment clause encompasses at least the following three propositions. First, the establishment clause prohibits federal expenditure for religious purposes such as religious activities. Secondly, the establishment clause prohibits the Commonwealth from instituting programs that result in a religion or multiple religions becoming identified with the Commonwealth. Thirdly, the establishment clause prohibits the Commonwealth from instituting programs that result in a religion or multiple religions becoming identified with the states and territories. The article concludes by testing the Australian Government’s National School Chaplaincy and Student Welfare Program against those three propositions.

Both the principle that the constitution derives its ultimate authority from the sovereignty of the people and the nationhood power were developed by the High Court in the context of Australia’s emergence as an independent nation. Although this shared provenance suggests the possibility of a more significant connection between the two doctrines, such a connection has not been developed in Australian constitutional jurisprudence. The heavily criticised judgment of French J in the Tampa decision appears to allude to such a connection, but the relevant reasoning is ambiguous and either left undeveloped or implicitly rejected in subsequent High Court cases. This paper critically examines the relationship between popular sovereignty and the nationhood power on two levels. In the first instance, the paper investigates whether it is even coherent to seek to provide a normative ground for the nationhood power in popular sovereignty. The paper then considers whether such a justification is consistent with Australian constitutional doctrine. Unsurprisingly, the weight of constitutional principle and doctrine supports the general subjection of the executive to prior legislative authorisation, rather than a robust non-statutory executive power grounded in popular sovereignty. While this conclusion is predictable in an Australian context, a detailed examination of the relationship between the weaker conception of popular sovereignty operative in the reasoning of High Court and the nationhood power nonetheless reveals some important underlying assumptions of current doctrinal orthodoxy.

This article argues that the religious tests clause of s 116 of the Australian Constitution should be conceived of as an anti-discrimination provision embracing a distinction between direct and indirect religious tests equivalent to the distinction between direct and indirect discrimination in other bodies of law. In other words, a religious test exists where there is discrimination, either directly or indirectly, on the ground of religion. The article develops this interpretation using a functionalist comparative analysis with other bodies of law, including European human rights law, American equal protection jurisprudence and Australian anti-discrimination law.

Foreign State and non-State actors attempting to interfere in the domestic affairs of others is not a new phenomenon; nor, too, is the use of information as a resource, environment and weapon in warfare. However, historically there have been some buffer zones.

This has all changed. Now, rather than simply writing a message on stone at popular watering holes, foreign interference operations (IOs) can leverage the ubiquity of the Internet in order to deliver personally tailored, micro-targeted messages to individuals in their homes.  The changing nature of warfare has led, formally and informally, to practitioners of the Profession of Arms to claim that grey zone operations unfairly exploit the gaps between peace and war, exploiting the vulnerabilities of Western democracy – free speech – in an unacceptable manner.

This paper looks to explore this notion, and opines that rhetoric claiming conflicts fought in ‘the grey zone’ are somehow unacceptable fails to grapple with the basic concept of armed conflict and competition – to win. In order to demonstrate this point, it is first necessary to canvass what is meant by the concept of ‘grey zone’. To do so requires, axiomatically, covering ‘traditional’ legal frameworks of peace and war and exploring how this binary distinction has shaped legal thinking since Rome. It will then look to unpack the underlying logic in identifying something as being ‘acceptable’ and ‘unacceptable’ exploitations in war, demonstrating that even through the Eurocentric lens of chivalry – a high water mark in the idea of unacceptable exploitation – the exploitation of traditional legal thresholds was more than acceptable. Finding that it is unsafe to maintain a moralistic stance to security threats, and that the current strategic framework is inappropriate, it then addresses what domestic remedies are available for the Australian Government to take, under the Australian Constitution.

In its decision in the political advertising case in 1992 the High Court of Australia purported to discover a constitutional right to freedom of communication. That right was said to have been violated by a Commonwealth law imposing certain limits on paid  political advertising during election campaigns. It is not at all obvious that the civic quality of political discourse would have been damaged by such a ban.

The ban was justified by invoking a hitherto unknown doctrine of popular sovereignty. The majority decision simply ignores the doctrine of parliamentary sovereignty rooted in the historic supremacy of the Crown.In its place, the court asserts the supremacy of the law, as embodied in judicial decisions over the legislative will of parliament.

There is something more than a little opportunistic about the use of a pseudo-republican discourse of popular sovereignty whose most obvious constitutional consequence is to enhance the law-making power of Her Majesty's judges. Until the court recognizes the constitutional dangers inherent in concentrated corporate power and the growth of global media empires, talk of any freedom of political communication amounts to little more than self-interested judicial cant.

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further prot...

The need for delegated authority and delegated decision making has been recognised as a necessity for modern administrative practice. Yet, with the rise of machine learning tools, it is necessary to start to grapple with the appropriateness of delegating decisions, about humans, to machines. This paper seeks to address from technical, legal and legal policy perspectives the viability of delegated decision making, and the process by which accountability and transparency can be retained.

This paper examines the words and deeds of Hugh Mahon (1857-1931) on issues of race and seeks to resolve the apparent paradox between Mahon’s progressive views on Aboriginal rights and his overtly racist and restrictive attitude towards Asian immigration.

The modern democratic state embodies the concept of the state as a service. For this reason, the administration of public property is one of the major issues related to the efficiency of public authority. Common law countries and post-Soviet countries have completely different legal explanations and bases for public property. This article takes a comparative approach, showing similarities and differences in the public property regimes in these two systems. This article investigates why the two systems have different approaches to public property issues and how the differing experiences result in differing implementation. Australia and Russia have been chosen as examples of a common law system and the post-Soviet system, respectively. In addition to property regimes, this paper also discusses federalism issues. An analysis of these countries' historical development permits a significant enhancement of the philosophical and legal understanding of property, especially public property. Protection of private property in Russia was very strong by 19 th century standards. However, the Russian Empire fell behind in questions of public property compared to its protection of private property, and also compared to other systems outside of Russia. Some aspects of dealing with the most critical natural resources expand public property regulation issues into the constitutional sphere. Public property issues need constitutional justification in both Australia and Russia. However, Russia has constitutional provisions that provide the categories of property rights existing in its domestic law, while a great deal of effort was required in Australia to create the constitutional basis for water resources administration.

What are constitutional values and where do they come from? One plausible answer to this question is that constitutional values reflect the functions or purposes of the Constitution and its provisions. However, this response raises the further question of where those functions or purposes themselves come from. This chapter argues that at least some of the functions or purposes that give rise to constitutional values properly derive from contemporary beliefs and attitudes about the Constitution, rather than the intentions of its framers. I begin by examining the concept of a function as it applies to legal texts and other artifacts. I explore the relationship between functions and intentions, showing how functions can arise from contemporary beliefs and attitudes, not just authorial intentions. I discuss the implications of this argument for the notion of ordinary meaning, explaining how the role of contemporary context in shaping the meaning of constitutional texts creates a problem for originalism. I then introduce the idea of constitutional narratives, showing how this helps to make sense of the role of contemporary practices in grounding constitutional values. I argue that constitutional narratives can provide a sound basis for constitutional implications (even when not grounded in authorial intentions). I conclude with a brief comment on functionalist theories of constitutional interpretation.

The religious tests clause of s 116 of the Australian Constitution prohibits religious tests for any office or public trust ‘under the Commonwealth’. The few cases decided by the High Court concerning the religious tests clause, including most recently Williams v Commonwealth (‘School Chaplains Case’), provide no explanation of what the expression ‘under the Commonwealth’ might mean. This paper seeks to develop an interpretation of the expression ‘under the Commonwealth’ as it is used in the religious tests clause that is meaningful, avoids undesirable and perverse outcomes, reconciles the existing cases and is consistent with s 116’s drafting history. The paper argues that an office or public trust will be ‘under the Commonwealth’ for the purposes of the religious tests clause when the office or public trust stands in a familial relationship with the federal government, understood as encompassing not just its executive arm but also its legislative and judicial arms.

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and 'rights' provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.