Relationship with other provisions
The usual interpretation of the territories power is that it is a plenary power which is not limited by other provisions in the Constitution, notably section 51. The High Court has revisited its interpretations of section 122 over the years leading to what David Mossop, a judge of the ACT Supreme Court, described as a lack of "a coherent body of doctrine" guiding interpretation of the section. [2]
Territory courts
A court created for a Territory under the territories power is not a "court created by Parliament" for the purposes of Chapter III of the Constitution, even if the law constituting the court was passed by the Federal Parliament. [3] [4] This means that the protections of judicial tenure or the mandatory retirement found in section 72 do not apply to judges of Territory courts. [3] Indictable criminal offences against the law of a Territory do not have to be heard before a jury as section 80 requires of an indictable Commonwealth offense. [5] Despite this separation of the Territory courts from the other courts, a law which confers a non-judicial power incompatible with the exercise of federal judicial power would be invalid under the rule in Kable . [6]
Creation of territory legislatures
The High Court views territory legislatures to be "new legislative powers" akin to historic colonial legislatures created by the British Parliament. [7] [8] That is to say that, although territory legislatures derive their power from federal law, they are not delegated federal legislative power. A consequence of this is that the territory parliaments are not exercising federal legislative power and cannot enact laws that are exclusive to the federal parliament, such as excises under section 90 of the Constitution. [7] [9]
"Just terms" compensation in the territories
In the earlier part of the 20th century, the High Court ruled that the "just terms" compensation requirement that applies when the Commonwealth compulsorily acquires property under section 51(xxxi) also does not apply in the territories. [10] That said, the Self-Government Acts of the Australian Capital Territory and the Northern Territory include similar "just terms" clauses restricting the powers of those Territories' parliaments. [11] [12] However, more recent High Court decisions have cast doubt on this proposition. In the 2009 case Wurridjal, the High Court appeared to overrule the earlier cases with respect to compulsory acquisitions of Aboriginal land in the Northern Territory. [13] In May 2023, the Full Federal Court endorsed a broader reading of Wurridjal in the Yunipingu case which suggests that the "just terms" requirement applies to acquisitions of property in the territories. [14]
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.
The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.
The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substantially derived from that of the English legal system, which superseded Indigenous Australian customary law during colonisation. Australia is a common-law jurisdiction, its court system having originated in the common law system of English law. The country's common law is the same across the states and territories.
The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws; all independently of each other. The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the Australian political system, with little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature; a fusion.
Section 109 of the Constitution of Australia is the part of the Constitution of Australia that deals with the legislative inconsistency between federal and state laws, and declares that valid federal laws override inconsistent state laws, to the extent of the inconsistency. Section 109 is analogous to the Supremacy Clause in the United States Constitution and the paramountcy doctrine in Canadian constitutional jurisprudence, and the jurisprudence in one jurisdiction is considered persuasive in the others.
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Section 51(xxxi) is a subclause of section 51 of the Constitution of Australia. It empowers the Commonwealth to make laws regarding the acquisition of property, but stipulates that such acquisitions must be on just (fair) terms. The terms is sometimes referred to in shorthand as the 'just terms' provision.
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Re Wakim; Ex parte McNally was a significant case decided in the High Court of Australia on 17 June 1999. The case concerned the constitutional validity of cross-vesting of jurisdiction, in particular, the vesting of state companies law jurisdiction in the Federal Court.
Section 51(vi) of the Australian Constitution, commonly called the defence power, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to the defence of Australia and the control of the defence forces. The High Court has adopted a different approach to the interpretation of the defence power, which emphasises the purpose of the legislation, primarily the defence of Australia, rather than the subject matter.
Strickland v Rocla Concrete Pipes Ltd, also known as the Concrete Pipes Case, is a High Court of Australia case that discusses the scope of the corporations power in section 51(xx) of the Australian Constitution. This was an important case in Australian constitutional law because it overruled the decision in the earlier case of Huddart, Parker & Co Pty Ltd v Moorehead, which held that the corporations power only extended as far as the regulation of their conduct in relation to their transactions with or affecting the public. Since this case, the Commonwealth has had at least the ability to regulate the trading activities of trading corporations, thus opening the way for an expansion in Commonwealth power.
In Kruger v Commonwealth, decided in 1997, also known as the Stolen Generation Case, the High Court of Australia rejected a challenge to the validity of legislation applying in the Northern Territory between 1918 and 1957 which authorised the removal of Aboriginal children from their families. The majority of the bench found that the Aboriginals Ordinance 1918 was beneficial in intent and had neither the purpose of genocide nor that of restricting the practice of religion. The High Court unanimously held there was no separate action for a breach of any constitutional right.
D'Emden v Pedder was a significant Australian court case decided in the High Court of Australia on 26 April 1904. It directly concerned the question of whether salary receipts of federal government employees were subject to state stamp duty, but it touched on the broader issue within Australian constitutional law of the degree to which the two levels of Australian government were subject to each other's laws.
New South Wales v Commonwealth, commonly known as the Wheat case, or more recently as the Inter-State Commission case, is a landmark Australian judgment of the High Court made in 1915 regarding judicial separation of power. It was also a leading case on the freedom of interstate trade and commerce that is guaranteed by section 92 of the Constitution.
In Australia, the doctrine of intergovernmental immunity defines the circumstances in which Commonwealth laws can bind the States, and where State laws can bind the Commonwealth. This is distinct from the doctrine of crown immunity, as well as the rule expressed in Section 109 of the Australian Constitution which governs conflicts between Commonwealth and State laws.
Section 51(xxvii) of the Constitution of Australia grants the Commonwealth Parliament the power to make laws with respect to "immigration and emigration." Historically, it was the principal legislative power in support of Australia's immigration scheme, which is now embodied in the Migration Act 1958 (Cth).
Roche v Kronheimer is an early case in which the High Court considered the defence power and external affairs power of the Commonwealth under the Australian Constitution and the Parliament's power to delegate certain legislative powers to the Executive. The Court concluded that Federal Parliament had the power to implement the Treaty of Versailles under the defence power and to delegate that implementation to the Governor-General. Higgins J also saw it as a valid exercise of the external affair power.
SS Kalibia v Wilson, was the first decision of the High Court of Australia on the extent of the power of the Australian Parliament to make laws about shipping and navigation, including the Admiralty jurisdiction of the High Court. The High Court held that the power was limited to overseas and interstate trade and commerce. There was no separate power about navigation and shipping.
The full text of Constitution of Australia at Wikisource
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