The Law Handbook 2024

6 Section 1: Understanding our laws and courts 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. Constitutional rights 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). Changing constitutions 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)). Aboriginal constitutional recognition, treaty legislation and the First People’s Assembly 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 ’)