Editor’s Note: Today we publish the 2016 Report on Australian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Anne Carter and Anna Dziedzic, Centre for Comparative Constitutional Studies (CCCS), Melbourne Law School, with assistance from CCCS researchers Artemis Kirkinis, Kalia Laycock-Walsh, and Marcus Roberts
2016 witnessed several relatively uncommon political events in Australia, including a double dissolution election, a public dispute between the nation’s two highest Law Officers, and legal proceedings over electoral eligibility and processes. These political developments informed the work of the High Court, which heard cases concerning changes to voting methods, the validity of an Electoral Roll ‘suspension period,’ and the eligibility of two Senators. The Court’s constitutional jurisprudence in 2016 on these and other matters (outlined in Part IV below) confirms that the Court’s approach to interpretation remains firmly tied to the text and structure of the Constitution. Outside the judicial realm, debate over constitutional change to recognise Australia’s Indigenous peoples continued, but with little consensus as to the scope of the proposal to be put to referendum.
II. The Constitution and the Court
The Australian Constitution was created in 1901 when the colonies established by British settlers came together in a federation. The Constitution provides for a parliamentary system of government, broadly based on the Westminster system. It establishes a federal system in which powers are divided between the Commonwealth and six states.
A distinctive feature of the Australian Constitution is that it does not include a Bill of Rights. Rights are instead protected by the constitutional separation of powers, the common law, and the democratic legislative process. While the Constitution contains a few discrete rights-protective provisions – including trial by jury and compensation on just terms for acquisition of property – these provisions are not framed or interpreted in the same manner as civil and political rights in other jurisdictions. Certain rights, such as the freedom of political communication, have been implied into the Constitution by the High Court.
The High Court of Australia is the final court of appeal from all federal and state courts. The High Court also has original jurisdiction in constitutional matters (but no capacity to issue advisory opinions) and special jurisdiction to hear electoral disputes. The High Court has the power to invalidate laws that do not comply with the Constitution. The Court comprises seven judges, who are appointed to serve until the age of 70, subject to removal by a special parliamentary procedure. Final hearings before the High Court involve both detailed written submissions and oral argument. Judges may write their own separate judgments and may join with other judges to write joint reasons. Unanimous decisions are relatively rare.