1. Outline of Constitutional Documents and their History a. Australian History:

Law in Australia since 1788: In 1788, military rule was established in Australia in NSW (the only colony at

the time). Other colonies were established gradually with a governor and a military. Law making powers were:

i. The Governor of each colony made any other laws that were needed if there was no suitable English

law.

ii. Doctrine of Terra Nullius: All English Laws apply to all colonies automatically.

1. English settlers needed to decide on how much of the English law applies to the new colony.

2. Australia is a settled colony, not conquered.

Conquered country was one that was overtaken by another country, meaning that it already has

inhabitant and a society.

Settled country was one that was uninhabited and then occupied by another country.

Even though there were inhabitants, the settlers decided on “settled” because according to the

English, for a country to be inhabited, there has to be:

Cultivate soil

Have permanent habitations

Have a recognizable legal system

Aborigines and TorresSI didn’t fill any of the above requirements.

Hence, applied Terra Nullius meaning:

Land belonging to no one, AND

English laws are automatically applied.

Consequences of Terra Nullius:

All Abos and TSI were bound to English law

Abo laws weren’t recognized even for disputes arising amongst them

Abos and TSI personal rights were significantly reduced.

English claimed all land to them

Abos and TSI had no right to claim land and no native title

o Native title to land means to have the right to live on it and use it for it’s

traditional purposes.

b. Development of modern Australia was based on the following three areas:

1. Dev. of the court system

Upon settlement in 1788, NSW had two courts: criminal and civil courts practically dominated

by the military.

Second Charter of Justice in 1814: As more free European people settled, the need for a more

sophisticated court system, which is free from military influence, was required. So, the Charter

was passed in England to expand the court system.

Supreme Court to consider matters of inheritance, equity and more complex civil

cases

Justices of the Peace to maintain peace and determine sentences

A Governor’s Court to hear civil cases involving property of over fifty pounds.

A Lieutenant Governor’s Court to hear civil cases involving property of less than

fifty pounds.

Third Charter of Justice/NSW Act in 1823: It gave the set up of the new court system we now

know. BUT, criminal matters were still dominated by the military because officers were the

only people who could be jurors in a criminal case.

1847: Full trial by Jury was granted.

2. Dev. of the parliamentary system

Today we have nine parliaments, which are responsible for statute law: 6 state parliaments, 2

territorial parliaments and 1 Commonwealth/Federal parliament

Military rule, 1788: No parliament when Australia was first colonized. Colonies governed by

English Law and the governor of each colony made laws.

Legislative Council (LC), 1823: NSW Act passed by the English government, did set up a

legislative council of five to seven men to advise the Governor about laws that needed to be

made. It had power to make laws for the ‘peace, welfare and good government of the colony.’

Only the Governor could initiate bills in the LC. First, a bill had to be certified by the Chief

Justice as not being repugnant to the laws of England as applied in the colony. Colonial laws

had to be sent to the British Government and could be disallowed by the King within 3 years of

their enactment.

Executive Council: In 1828, LC expanded and included and EC which was empowered to reject

proposed laws and advise the NSW governor.

Representative government, 1842: Australian Constitutions Act (No 1) 1842 (UK) introduced

representative government, which was the first time where citizens had a voice in what, they

wanted the government to do. Men with a certain amount of property could ELECT the 36

members to the LC. Two-thirds were elected BUT still 1/3rd of the LC was appointed by the

Governor. The Governor’s role was reduced to assenting to bills. Assent on some types of bills

had to be reserved for the King. Laws no longer had to be certified by the Supreme Court but

could be struck down for repugnancy if challenged.

Self-Government, 1853: Self-Government or Responsible Government was granted by the

English to the Australian colonies. Self-government meant that each colony had its own

parliament, which could make laws for the colony. Members were elected by those eligible to

vote. These colonial parliaments are very similar to the ones existing today. Australian colonies

drafted their own Constitutions after being empowered by the Australian Constitutions Act (No

2) 1850 (UK).

NSW Constitution 1855 established two Houses: Legislative Council appointed for life. No

maximum number – so could be swamped. Legislative Assembly directly elected. Ministers to

be Members of Parliament and responsible to it.

Federation, 1901: By that time, each colony had developed its own laws about tax, trade and

several other matters. Each colony also had their own currency. However, four issues emerged

during the 1890s which were: Defence, Trade, Immigration and Nationalism. It was crucial for

Australia to have a central government to deal with those issues. Hence, a Federal Government

was established on 1 January 1901. This government makes laws to the whole of Australia while

each state retains its power to make laws about matters affecting its own state.

1885 – Federal Council of Australasia but NSW did not join.

1889 – Tenterfield speech: Parkes proposes federation.

1890 – Melbourne Conference: Agreement to hold convention to draft a federal

Constitution.

1891 – Convention: 7 representatives appointed by the Parliament of each colony

and 3 from NZ. Constitution first drafted on board the Lucinda and the draft

Constitution sent to colonies for consideration.

1897 – Federation revived by elected Convention.

o NSW, Vic, SA and Tas elected 10 delegates each

o WA appointed delegates instead

o Qld and NZ did not attend

o New Constitution was drafted and put to referendum.

o Referendum failed to receive a big enough majority in NSW. Compromises

were made at Premier’s Conference. Fresh referenda passed. Bill was taken

to the UK for enactment and UK passed the Commonwealth of Australia

Constitution Act 1900 (UK) making Australia a federation and giving

Australia a Constitution.

Colonial innovations:

Male and Universal Suffrage

o Votes for all men: In 1856, South Australia granted men over the age of 21

the right to vote in elections. Before this, only men with a certain amount of

property or income were allowed to vote. Other colonies followed.

o Universal Suffrage: UnSu means that all adults have the right to vote in

parliamentary elections (Women, minorities, aboriginal people etc.)

3. Legislative independence of Australia

The Australian Courts Act 1828: This was an English statute, which stated that after 1828 no

new laws passed by the English parliament would apply to Australia unless specifically stated.

Any laws made before 1828, still apply. Two issues remained, colonies cannot amend English

laws which were prior to 1828 and, make laws repugnant to English laws which were still

applicable to Australia.

The Australian Constitutions Act (No 2) 1850 (UK): This separated Victoria from NSW and

provided for later separation of Queensland. Colonies were empowered to enact their own

Constitutions and establish bicameral legislatures with responsible government, but the bill had

to be reserved for royal assent.

1855 – UK approved to NSW Constitution, but cut out the bits removing reservation and

disallowance, maintaining UK powers over the colony. Disallowance means that colonial

laws/bills could still be disallowed by the Queen even if the colonial governor approved it and

reservation means that certain bills and laws had to be reserved for the Queen’s assent and the

colonial governor can’t do anything about it. The attempt to entrench the Constitution was

undone by the UK, meaning that it was made flexible which can be changed and amended by

ordinary laws.

The Colonial Laws Validity Act 1865 (UK): Now colonies can amend, repeal and make laws

that were repugnant to English laws that applied to Oz. Except colonies cannot make laws

repugnant to the statutes that specifically extended to the colonies, which applied by paramount

force. Any colonial law that was repugnant to a UK law of paramount force was of no effect.

Section 5 of Colonial Laws Validity Act 1865 permitted the amendment of laws with respect to

the constitution, powers or procedures of the Parliament subject to ‘manner and form’. Manner

and form requirements “restrict the legislative powers of the Parliament by requiring that laws

on certain topics may only be enacted by a special more difficult procedure”. It was later re-

enacted in s 6 of the Australia Act 1986 (Cth).

Commonwealth of Australia Constitution Act 1900 (UK): Australia became a federation.

Section 9 of this Act, which is a UK Act passed by the Westminster Parliament, established the

Australian Commonwealth Constitution. ''The Commonwealth'' shall mean the Commonwealth

of Australia as established under s6 of Commonwealth of Australia Constitution Act 1900 (UK).

The Statute of Westminster 1931:

Australia remained a colony (later renamed a ‘Dominion’). Australia could not

enter into political treaties, it could not declare war or peace, it did not have its own

diplomatic representation and had no international personality. The Privy Council

was the highest court. British legislation could still override Commonwealth and

State laws. The Colonial Laws Validity Act 1865 applied to Commonwealth Laws

(Skin Wool Case, 1926 BW 108). Commonwealth and State laws could still be

disallowed by the King/Queen and certain bills still had to be reserved.

Statute of Westminster was enacted to give effect to Balfour Declaration that

Dominions (colonies) are equal in status with the UK (BW 110).

S 2 – Dominion laws can now override UK laws that previously applied by

paramount force (except the Commonwealth of Australia Constitution Act).

Doesn’t apply to Australian State laws, which remain invalid if repugnant.

S 3 – Dominion (colonies) laws now have an extra-territorial effect.

S 4 – No UK legislation to apply to the Dominions without their request and

consent.

S 8 – Commonwealth Constitution remain entrenched meaning can only be

repealed or amended by special provisions, beyond the ordinary legislative

process = Nothing in the State of Westminster authorises the

Commonwealth to override the Commonwealth Constitution.

Does not extend the Cth’s legislative power over the States

It made the Federal Parliament became totally independent of the English

parliament. BUT this didn’t apply to STATE parliaments.

The Australia Act 1986 (Cth):

States remained subject to the Colonial Laws Validity Act 1865 and the doctrine

of repugnancy. (The States wanted the CLVA to continue to apply because it

allowed them to entrench aspects of their Constitutions.)

There are 2 Australia Acts which terminated residual ties with the UK

o Australia Act 1986 (Cth) was enacted by the Commonwealth Parliament

under s 51(xxxviii) of the Constitution at the request and consent of all

State Parliaments.

o Australia Act 1986 (UK) was enacted by the Westminster Parliament at the

request and consent of the Commonwealth Parliament.

Both Included:

o Together the Acts terminated the ability of the UK to legislate as part of

Australian law ever again (s 1)

o States were liberated from the repugnancy doctrine and the CLVA was

repealed (ss 2 and 3)

o States were given extra-territorial power (s 2(1))

o The ability to entrench certain provisions (manner and form) was

preserved, otherwise it would have been lost with the repeal of the CLVA

(s 6)

o The Queen’s role regarding the States is largely delegated to the Governor.

The Queen retains the power to appoint and remove State Governors, but

acts on the advice of the State Premier (s 7). Queen was unhappy by this.

o The reservation of State bills or disallowance of State laws has been

terminated (ss 8 and 9) (but not re Cth).

o No more UK involvement in State constitutional matters (s 10). The

United Kingdom is now a ‘foreign power’ (Sue v Hill (1999) BW 121)

o Appeals and advisory opinions from the State Supreme Courts to the Privy

Council were terminated (s11).

The only remaining possibility of a Privy Council appeal is under s

74 of the Commonwealth Constitution if the High Court were to

give a certificate permitting it.

The Court has said that it will not do so.

The High Court is now at the apex of the Australian judicial system

(BW 118-21)

o All power to change constitutional documents now is in Australian hands –

s 15.

Australia Acts and Statute of Westminster can be amended by

Commonwealth legislation enacted with the request and consent of

all the States.

This provides a potential method for amending or repealing the

covering clauses in the Commonwealth of Australia Constitution

Act, which are otherwise preserved by s 8 of the Statute of

Westminster.

It is unlikely that s 15 could be used to amend the Constitution itself,

as this would clash with s 128 of the Constitution and be politically

untenable.

Sue v Hill (1999)

o Hill stood for Senate in QLD in 1998 federal election, but disqualified

because she had not renounced her UK citizenship.

o Hill argued that so long as the UK retained any residual influence upon

legislative, executive or judicial processes in Australia, it could not be

regarded as “foreign” to Australia.

o Majority High Court held that since the Australia Act 1986, the UK

retains no such influence, therefore rendering it “a foreign power.”

o No one who is the subject of a foreign power is eligible for election to

Senate or House of Representatives: Australian Constitution s 44(i).

2. Constitutional basis of Australian law I. Constitution: structure and themes

a. What is a Constitution? i. Definition

A Constitution is a fundamental law, which provides the source of power for the making of all other laws

and binds everyone/body in the Commonwealth. (Section 5 Commonwealth of Australia Constitution

Act 1900 (UK)). It is the supreme law in Australia. It provides the whole basis of government in Australia.

Note that each state also have their own Constitution.

ii. Constitution as a document:

1. The term ‘Constitution’ sometimes refers to a particular formal document of a country – eg the

Constitution of the United States of America or the Constitution of the Commonwealth of Australia. 2. It may also refer to a wider range of laws, which deal with the establishment, and operation of the

primary institutions of government – the legislature, the executive and the judiciary. Hence electoral

laws, laws establishing kame and laws concerning the powers of the head of state, may all be regarded

as part of the ‘Constitution’ in this broader sense. Conventions may also fall within this sense of the

Constitution.

iii. A Constitution usually does the following: 1. Establishes the institutions of government (Bicameral parliament: House of Representatives and

Senate, legislative body, executive offices, the bureaucracy and courts). 2. Grants them powers and limits those powers. 3. Defines how they interact and their relationship with the people (i.e election) 4. Deals with finances (raising and spending them). 5. Deals with individual rights or freedoms. 6. Responsible Government based on Westminster system. 7. Federation based upon US system 8. Constitution is contained in s 9 of Commonwealth of Australia Constitution Act 1900 (UK)

iv. Constitution entrenched:

1. Meaning that it can only be amended by a referendum 2. Referendum’s result should have an overall majority and majority in a majority of States s 128

b. A binding Constitution

i. Featured in the Constitution document 1. It is conferred and imposed from on high (eg God, a Sovereign or a colonial master). 2. It was established by a legal process in which existing polities took part (eg polities coming together

to form a federation). ii. Popular/Political Sovereignty:

The Australian Constitution is binding because of popular/political sovereignty 1. Definition 1: It finds its source in an act of the will of the people (either directly through a referendum

or indirectly through a constitutional convention, constituent assembly or other representative

political process). It is tacitly supported by the people, as signified by their obedience to it. It is

binding by way of convention. 2. Definition 2: It was the people who first approved the Constitution in each colony in a referendum

before its enactment. The power to amend or repeal it rests with the people, through referenda. It is

the continuing acquiescence (compliance, consent) of the people in its supremacy that gives it binding

force. 3. Critiques to sovereignty:

If sovereignty lies in those who enacted or can amend or repeal a Constitution, the

question of where sovereignty lies in Australia is complex. The body that enacted the Constitution, which is the Westminster Parliament, can

no longer amend or repeal it. The people have power to amend or repeal it, but first a bill must be passed by

Parliament (or one House of it) and it must be approved by a majority overall and

a majority in a majority of states. Hence representative government and federalism

affect the people as the source of sovereignty. S 15 of the Australia Acts also permits broad constitutional change through the

Commonwealth and State Parliaments. It is therefore more accurate to say that the people are sovereign through their

elected representatives and as federally arranged.

4. Case Law on Popular Sovereignty:

Deane J in Theophanous v Herald & Weekly Times: The present legitimacy of

the Constitution “lies exclusively in the original adoption (by referenda) and

subsequent maintenance (by acquiescence) of its provisions by the people.” Unions NSW v NSW (2013), French CJ, Hayne, Crennan, Kiefel and Bell JJ at

[17] referred to representative government as signifying that sovereign power

resides in the people and Keane J at [135] based the requirement for the free flow

of political communication on the need to ‘preserve the political sovereignty of

the people of the Commonwealth

iii. Aboriginal Sovereignty

1. After the partial recognition of indigenous rights in Mabo, the indigenous people of Australia have

attempted to push towards indigenous ‘sovereignty’. These attempts were rebuffed by the courts in

(Coe v Cth (No 1)

2. The High Court has taken the view that the acquisition of sovereignty over Australia is an ‘act of

state’ which cannot be challenged in the courts As the courts derive their existence and powers

from the Constitution and the sovereignty that is its source, they do not have the capacity to

overturn that sovereignty. They are bound by the Constitution that established them.

3. 'The Aboriginal people are subject to the laws of the Commonwealth… They have no legislative,

executive or judicial organs by which sovereignty might be exercised…the contention that there is

in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible

to maintain in law'.

4. The decision of Mabo (No 2) rejects the notion that any the indigenous have sovereignty which is

adverse to the Crown’s. Native title is under the ‘paramount sovereignty of the Crown’.

c. Separation of powers i. The concept:

Separation of powers is an important provision of the Constitution. It means that power is distributed

between the three arms of government, that is, the executive, the legislature and the judiciary. 1. Legislature: is the arm of government responsible for passing Acts of Parliament. It is composed of

the elected members of parliament and the Queen.

2. Executive: is the arm of government responsible for putting the laws passed by the legislature into

effect. It consists mainly of the various government departments and the Executive Council and is

responsible for much delegated legislation.

3. Judiciary: is the arm of government responsible for applying the law to individual cases. It settles

disputes. The judiciary is another term for the court system and judges or magistrates.

ii. How it works: 1. In the United States all three arms of government are separated. Eg the President and his or her

Cabinet are not members of the Congress. 2. In Westminster-based systems of responsible government, the executive is formed from those

holding majority support in the lower House of Parliament. Hence there is no strict separation of

powers between the executive and the legislature. 3. The judiciary, however, maintains strict separation from the other branches and their powers.

Maintenance of the Constitution and the rule of law; and protection of

individual rights

Rationalised by the need to police the distribution of

powers, to uphold the Federation

The courts can rule on the validity of legislation but

cannot make the laws in the same way that Parliament

can.

4. Separation of powers is crucial because it means that no one group has all the power. Separation of

powers protects society against corruption and undemocratic processes. 5. Dispersal of power between the 3 branches of the Constitution – legislature, executive and

judiciary NOT replicated in State Constitutions No strict separation between legislature and executive, e.g.

o Ministers are MPs (Members of Parliament) o Parliament can delegate legislative power to the executive: Victorian

Stevedoring v Dignan – executive given extremely broad powers to

regulate o The executive plays a substantial role in dispute resolution

d. Division of powers i. In a federal system, power is also divided between states and the Commonwealth.

ii. This means that legislative, executive and judicial powers are divided between the states and the federal

government. The state has control over some areas, such as police, while the Cth controls others, such as

immigration.

e. Federal system i. The Concept

1. It’s a system of government that has one central government to deal with matters pertaining to the

whole nation, as well as state governments to deal with matters pertaining to each state.

2. USA and Australia have federal systems of government while Britain has a unitary system of

government, where there is one central government only. This deals with all legislative matters for

the whole country.

3. Australia drew on the US federal system in creating its own. It is sometimes referred to as a

‘Washminster’ system, combining responsible government from Westminster and federalism from

Washington.

ii. Key features of federal systems: 1. The Centre: Institutions (political, legal and administrative) with authority (subject to the

division of powers meaning political, legal and admin are divided amongst Federal and State)

over the whole territory of a nation state. 2. Regions (e.g. States): Institutions with authority over the geographical area into which the nation

is divided 3. Division of power 4. A Constitution: A written legal document outlining these arrangements, which cannot be

amended by either the Centre or Regions at their own discretion 5. Set of rules for resolving conflict between Centre and Regions 6. Judicial authority to interpret and enforce these rules on the basis of their conformity with the

Constitution.

iii. Australian “Cooperative” Federalism

1. States

Retained their own Constitutions subject to Cth Constitution (ss 106, 107)

Gave up some of their powers to the new entity

o S 106: Saving of State Constitution: The Constitution of each State of

the Cth shall, subject to this Constitution, continue as at the

establishment of the Cth… until altered in accordance with the

Constitution of the State

o S 107: Saving of Power of State Parliaments: Every power of the

Parliament of a Colony which has become... a State, shall, unless it is

by this Constitution exclusively vested in the Parliament of the Cth or

withdrawn from the Parliament of the State, continue as at the

establishment of the Cth…

NSW Constitution Act 1902 (NSW) s 5

o The Legislature shall, subject to the provisions of the Cth of Australia

Constitution Act, have power to make laws for the peace, welfare and

good government of NSW in all cases whatsoever.

2. Distribution of legislative power

Powers of the Commonwealth Parliament listed in

o s 51 (concurrent) - Australian Constitution states the areas over which the

Cth has jurisdiction, while state constitution give general law making

powers to the states.

a. s 109: valid Commonwealth law prevails over State law

o Constitution provides 4 types of legislative power:

a. Specific powers: these are the areas of law-making that are

specifically mentioned in the Constitution as belonging to the federal

government. These are nearly all listed in section 51 and include

banking, immigration, defence and marriage.

b. Residual powers: these are powers that the states retained after

federation. These are not mentioned in the Constitution but became

the states’ powers because the Constitution does not give them to the

Cth. Residual powers include crime, law enforcement and education.

c. Exclusive powers: These are the areas of law-making over which the

federal government has exclusive power. That is, only the federal

government make laws about these areas, which include defence,

bank notes and coinage, immigration and customs and excise duties.

(listed in section 52 of the Const.)

d. Concurrent powers: These are areas over which both the states and

the Cth have legislative power. Many areas in section 51 of the

Constitution are areas over which the state can also make laws. These

include banking, taxation and company law.

i.e: Section 109 of the Constitution provides that if both Federal and

state governments make laws on the same subject, and these laws are

inconsistent with each other, the federal law will prevail.

States have power to make laws for the peace, welfare and good government of

the State

High Court interprets and enforces the Cth Constitution

Federalism in the Cth Parliament

o Each State has an equal number of seats in the Senate (12) plus 2 for each

of the NT and ACT

Other federal elements, e.g.:

o S 51 (2) Taxation power “but so as not to discriminate between states”

o S 99: Cth shall not by any law of trade, commerce or revenue, give

preference to one State over another

o S 117: No discrimination against residents of another state

o S 118: Full faith and credit shall be given throughout the Cth to the laws

and judicial proceedings of every State

o S 92: Trade within the Cth to be free

f. Responsible Government - The Westminster System i. Responsible Government

1. Def: Ministers (executive) must be members of parliament (legislative) (s64 Cth Con)

Which means People control their government expressed through the lower house.

Government are held accountable by the people during elections

In the meantime, each house of Parliament which is acting in the shoes of the people who

elected them, holds the government accountable

2. The Constitution can only be formally amended by referendum.

3. US don’t have responsible government as the President is elected separately from Congress.

Bill a democrat faced a House of representative and a Senate both controlled by Republicans.

4. The Constitution does not mention either the Prime Minister or the Cabinet

i.e. the 2 central features of our government emerged by convention

g. Parliamentary Sovereignty i. The Concept:

1. “Parliament can make or unmake any law it chooses” –AV Dicey and Bryce

2. A parliament cannot bind future parliaments

3. No court or other body can hold a statute made by parliament invalid

In UK, special case because of EU laws which override UK ones.

ii. The role of “the people” is limited to voting at elections so there is no legal or effective means of

challenging the government (e.g When Howard had majority in both upper and lower houses he pushed

through with work choices 05-06. Despite its lack of popularity people had no effective legal means to

challenge it before election).

1. Electors are the political sovereigns

2. Parliament is the legal sovereign (powers of law making unrestricted by legal limits)

iii. Limitation of Parliamentary Sovereignty

1. If a law is entirely absurd such an act of genocide or murdering all blue eyed babies then significant

number of electors will simply disregard and disobey the law. In such instances the political system

will be under turmoil and will collapse.

2. Society influences on the character of Parliament such as morality, societal beliefs and

environmental & political circumstances.

iv. Application in Australia

1. Australian laws were subordinate not sovereign because of its colonial status

2. Cth Constitution limits parliaments’ powers both State and Cth (s92)

3. “Manner and form” requirements in the States

4. No Australian parliament is fully sovereign, because the federal system divides this

sovereignty

5. Non-constitutional laws are immediately invalidated

6. Subject to the distribution of powers and constitutional prohibitions, Parliaments are free to

legislate as they wish and Courts cannot strike down laws for being ‘bad policy’, ‘crazy’ or not for

‘peace, order and good government’.

7. Courts have left open, however, the question of whether there are fundamental common law rights

that even the Parliament cannot deviate from.

8. Parliament cannot bind a future Parliament applies in Australia, except to the extent that provisions

can be entrenched under ‘manner and form’ mechanisms or by constitutional change.

9. THUS, Parliamentary sovereignty in Australia is extremely limited.

h. Rule of law i. Concept of the rule of law

1. The ‘rule of law’ includes a bundle of different propositions and theories. At its most basic, it is

that the law applies to everyone, including the executive government and must be administered

fairly.

2. According to Dicey:

Absolute supremacy of government by law as opposed to government by fiat

Government can operate only if they have specific legal authority

Person can be punished for breach of law and not otherwise

3. According to Lord Bingham said that the rule of law means that ‘all persons and authorities within

the state, whether public or private, should be bound by and entitled to the benefit of laws publicly

and prospectively promulgated and publicly administered in the courts’ (BW 24). Sub-rules are:

The law must be accessible and so far as possible intelligible, clear and

predictable.

Legal rights and liabilities should ordinarily be resolved by the application of law

not discretion.

Laws should apply equally to all, except to the extent that objective differences

permit differentiation.

The law must afford adequate protection of fundamental human rights.

There must be means for resolving civil disputes without prohibitive cost or

inordinate delays.

Ministers and decision-makers must exercise their powers reasonably, in good

faith, for the purpose for which they were conferred and within their limits.

Adjudicative procedures should be fair.

The State must comply with its international obligations

ii. Enforcement of the rule of law

1. Some aspects of the rule of law are constitutionally entrenched through:

Ch III of the Constitution concerning courts and the exercise of judicial power

s 75(v) of the Constitution concerning judicial review of administrative action.

2. Some aspects aren’t entrenched, but will be applied by the courts as part of the common law.

3. Some aspects are supported by the courts through statutory interpretation

iii. Rule of Law v/s Parliamentary sovereignty

1. Query whether the parliament is the sovereign as they make the laws or is the law the sovereign

that is parliament’s power is also effectively derived from the law itself. According to Dicey:

“sovereignty of Parliament favours the supremacy of the law of the land”

although they may appear to oppose each other as a form of check and balances

but law of the land is the true sovereign.

Parliament can only exercise its power through statutes which must be created

following the proper process (which require deliberation) and then interpreted by

the courts.

English parliaments have never (except during revolutions) exercised direct

executive power to appoint executive governments.

2. Reconciling the rule of law and parliamentary sovereignty through:

The principle of legality is the legal ideal that requires all law to be clear,

ascertainable and non-retrospective. So governments must find lawful authority

for every action they take (from the above sub-rules). It requires decision makers

to resolve disputes by applying legal rules that have been declared beforehand,

and not to alter the legal situation retrospectively by discretionary departures from

established law.

i. Human rights and the rule of law i. How are human rights currently protected?

1. International Law

Australia has ratified ICCPR (International Covenant on Civil & Political

Rights) but it is not legally incorporated into legislation.

2. Common Law

Right to privacy, freedom of speech, found in past precedents that judges will

continuously develop

ii. Human rights come from the judges themselves. Judges will interpret statutory

legislation and where ambiguity exists international Human Rights law or treaties

are examined. E.g. Mabo – non-discrimination is a basic principle of international

law, and everyone is entitled to basic human rights.

3. Legislation

Human Rights and Equal Opportunity Commission Act formed a body

conciliating complaints by individuals, intervene in cases of significance and

produce reports on rights. However, they are not able to determine complaints

because they are not part of the judicial system. They are only able to inquire

report and intervene in court.

Anti-discrimination laws (Racial Discrimination Act and Sex Discrimination

Act) apply external affairs power to create legislation power not given to

government under constitution

ACT & Vic Statutory Charters of Rights

4. Constitution:

No Bill of Rights in the Australian Constitution, but there are a few express

rights. These include:

o S 117 – the right to be free from discrimination for residence in another

state – this is a positive right of greater extend than any other in the

Constitution.

o S 80 – the right to trial by jury

o S 116 – the right to freedom of religion

o S 41 – the right to vote

o There are also implied rights in the Australian Constitution. The Lange

case stated that a right to freedom of political communication is implied

in our constitution

o Freedom of speech: implemented by the High Court in 1992. The

reasoning of the HCA was that the Constitution provided representative

government, so there’s right to freedom of communication. Otherwise the

notion of representative government can’t work. (Andrew Theophanous v

the Herald and Weekly times; Thomas Gregory Stephens and Others v

West Australian Newspapers)

ii. Statute law and parliaments:

1. Courts do not impute to the legislature an intention to abrogate or curtail fundamental rights of

freedoms unless such an intention is clearly manifested by unmistakeable and unambiguous

language. General words will rarely be sufficient. Unless words are not clear, we have the

presumption that legislation wont abrogate on human rights.

2. Statute law and non-interference by the law are the two main ways human rights are protected in

Australia. Parliaments have legislated a wide range of human rights issues but not all international

conventions have been given legislative force.

3. Courts interpret the statutes made by the parliament. Common law and court decisions:

Potter v Minahan (1908):

o FACTS - Word immigrant in Immigration restriction Act 1901 interpreted

as excluding Australian born people returning from overseas thus

preventing appellant was treated an immigrant.

o HELD - Court rejected that and held that it is unlikely that legislature would

overthrow fundamental principles, infringe rights of common law without

expressing clear intention to do so.

Coco v The Queen (1994)

o FACT – Coco’s conviction for attempted bribery of federal police quashed

by High Court. Evidence obtained through secret listening device installed

in Coco’s factory by disguised police.

o ISSUE: Invasion of Privacy Act (QLD) authorised installation. AFP Act

(CTH) negated need for authorisation.

o HELD – neither of above could authorise unlawful entry by means which

the device had been installed because there is a presumption that legislation

had not intend so as to protect fundamental rights of individuals unless there

is a clear implication that authority’s entry was intended. Invasion of

Privacy Act (QLD) authorised installation perhaps construed as allowed

to install but entry is a separate issue. In applying the same principle, noted

that the purpose was to force Parliament to face up to the impact of its laws

upon human rights. The Courts would not interpret laws expressed in

general terms as abrogating from or curtailing rights, freedoms or

immunities. The clear intention of the Parliament must be shown.

Momcilovic v The Queen (2011)

o French CJ said of the principle of legality: ‘It protects within constitutional

limits, commonly accepted ‘rights’ and ‘freedoms’. It applies to the rules of

procedural fairness in the exercise of statutory powers. It applies to statutes

affecting courts in relation to such matters as procedural fairness and the

open court principle, albeit its application in such cases may be subsumed

in statutory rules of interpretation which require that, where necessary, a

statutory provision be read down so as to bring it within the limits of

constitutional power. It has also been suggested that it may be linked to a

presumption of consistency between statute law and international law and

obligations.’

In the context of human rights: MIEA v Teoh: A narrow conception of

ambiguity should be rejected. If the language of legislation is susceptible of a

construction which is consistent with the terms of an international instrument

to which Australia is a party, that construction should prevail. This is a canon

of interpretation and does not import international law into municipal law.

II. Constitutional Amendment

a. Rigid v/s Flexible i. Rigid

1. A Constitution may be rigid – i.e. it can only be amended by a special procedure and it overrides all other

laws. Constitutions of federations are normally rigid so that one level of government cannot unilaterally

change the rules establishing the federation. (Eg, USA, Canada, Australia.)

2. A rigid constitution is one under which fundamental laws cannot be changed in the same manner as

ordinary laws

ii. Flexible:

1. A Constitution may be flexible. It may be able to be changed by ordinary legislation and it may also be

impliedly overridden by later legislation. In some cases it may not be even formalised in a document. (Eg,

UK and New Zealand.)

2. “one under which every law of every description can legally be changed with the same ease and in the

same manner by one and the same body” (A V Dicey)

iii. Mixed:

1. A Constitution may also have a mix of rigid and flexible provisions. (Eg, Australian States.) State

constitutions are ordinary Acts of Parliament, which can be (impliedly) amended by later acts of

parliament

iv. Debate on RIGID constitution:

Yes - Security- offers protection

Yes - Defeats purpose of having Constitution if it can be easily changed

Yes- Don’t want fundamental issues to be changed/affected by the politics of the day

Yes - Maintenance of federation. States will not want to sign up for a federation that can be easily

changed

No - Adaption to change because expectation of communities in the past and present is different.

No - The Constitution needs to keep up with that change in the expectation

b. Amending the Commonwealth Constitution i. Historical background

1. Canada’s Constitution was amended by the Westminster Parliament until 1982. 2. United States Constitution is amended by a proposal passed by a 2/3 majority in both Houses of Congress

and the approval of three quarters of the States (either through State legislatures or State Conventions). 3. UK amends its Constitution by ordinary legislation. 4. Australia was revolutionary in instituting the referendum as a means of amending the Constitution (adopting

the Swiss innovation).

ii. Section 128 of the Constitution 1. “This Constitution shall not be altered except in the following manner: 2. It applies to all formal amendments of the Constitution

a. (but note that the application of the Constitution can still be altered by s 51(xxxvii), 51(xxxviii)

and s 105A). 3. It applies to ‘this Constitution’

a. arguably not the covering clauses in the Commonwealth of Australia Constitution Act. b. This remains a matter of contention. The covering clauses and preamble can now be altered

through s 15 of the Australia Acts 1986.”

iii. Steps for amendment 1. A fundamental ideal needs to be change or settled i.e recognition of Aboriginal Australian in the Constitution 2. This isn’t just dumped on the people and they vote on it, the referenda proposal is submitted to parliament. 3. Before the proposal goes to the people for voting, either of the two things needs to happen:

a. Be passed by an absolute majority of each House of the Commonwealth Parliament, and be

submitted to referendum not less than 2 months nor more than 6 months later; OR b. Be passed by an absolute majority in ONE House, and after 3 months the same occurs again

meaning only ONE House passes the proposal. Subsequently, it is submitted by the Governor-

General to a referendum. i. The other House rejects it or fails to pass it, or passes it with unacceptable

amendments. ii. The Governor-General acts upon ministerial advice, so the Government controls what

goes to referendum and can prevent the Senate putting something to a referendum. iii. Neither the people nor the States can initiate a referendum. iv. Note 1988 proposal by Constitutional Commission for States to put matters to

referenda v. Note arguments re citizens’ initiated referenda and the problems to which they give

rise.

4. A Yes/No question/case is prepared by politicians who voted for or against the proposal, and is sent to all

voters/households. People either approve or don’t. There is no ‘No’ box/option unless at least one

parliamentarian voted against it.

5. Voting is compulsory and it should be passed by a majority of the people as a whole, and by a majority

of the people in a majority of the states 6. If approved, the law must be presented to the Governor General for the Queen’s assent 7. Fine tuning the process:

a. The Australian government cannot simply repeal s128 using ordinary legislation and then

effect amendment. Since s128 is doubly entrenched, it, itself, can only be amended in the

manner and form which it prescribes. b. It can be called off, even after the bill has passed, if the Government decides not to go ahead

(see 1966 and 2013). c. It can be held at the same time as a general election or separately. More than one referendum

question can be put at a referendum.

iv. Reasons for the failure of Commonwealth referenda 1. The referendum proposal was ill-considered or badly explained. 2. Constitutional amendments are necessarily technical in nature and voters vote against proposals that they

don’t understand. ‘Don’t know – vote No’ 3. Voters are wary of entrenching things in the Constitution if they might have unexpected consequences or be

interpreted differently in the future by the courts. 4. Voters have a stronger desire to keep what they have rather than to risk it in the hope that change will bring

something better - the ‘status-quo bias’. 5. Most referendum proposals have been perceived as giving advantages to the Commonwealth Government

(sometimes political advantages). 6. The proposal is considered to be unfair (eg Communist referendum). 7. Too many things are sometimes mixed into the one question (if just one aspect was objected to, the voter

would then vote against the entire question – see 1988 referendum). 8. Oppositions see the failure of a referendum as a government defeat, so they oppose proposals they had

previously supported, whip up hysteria and raise spurious (fake) concerns, just to get a backlash against the

Government (eg 1937 referendum re aviation). 9. States frequently do not support reforms because they involve increasing Commonwealth power and

therefore campaign against them. 10. One of the consequences of the failure to achieve formal constitutional change to amend the Constitution is

that the High Court has been more inclined to change it by way of constitutional interpretation in order to

keep it updated and relevant. The HCA interpret the Constitution in a way, which is flexible. When they do

that, a referendum wouldn’t be as beneficial. a. Many defeated referenda (eg referenda to give the Commonwealth greater power over industrial

relations or corporations) have effectively been reversed by High Court interpretation giving

those powers to the Commonwealth anyway. b. Some (eg Justice Callinan) see this as the Court usurping the power of the people and therefore

anti-democratic.

v. Manner and Form 1. At the Commonwealth level, the only way to entrench matters is to include them in the Constitution (or

perhaps the Australia Acts 1986). a. Otherwise, the Commonwealth Parliament has full power to amend or repeal any laws that it

validly makes (subject to s 51(xxxvii) and s 51(xxxviii)). 2. The Commonwealth Parliament cannot require a special majority for the amendment of its laws, as this

would be contrary to ss 23 and 40 of the Constitution. (s23 majority of the Senate/s40 majority for House

of rep). a. While the Flags Act 1953 (Cth) says that a referendum is needed to change the flag OR the GST

legislation says that the States must agree to any change in the rate and base of the GST - Neither

is legally effective. b. The Commonwealth Parliament can amend these laws by ordinary legislation.

vi. British Leftovers?

1. Our Constitution is still contained in s 9 of a British Act of Parliament. 2. Section 59 of the Constitution still allows the Queen to disallow any Commonwealth law within one year of

assent. 3. Section 60 provides for bills to be ‘reserved for the Queen’s pleasure’. 4. Covering clause 2 provides that references to the Queen ‘shall extend to Her Majesty’s heirs and successors

in the sovereignty of the United Kingdom’. 5. The parliamentary oath is made to ‘the [King or Queen of the United Kingdom of Great Britain and Ireland

for the time being], Her heirs and successors according to law’.

6. Section 74 permits appeals from the High Court to the Privy Council: where the High Court provides a

certificate, and requires that any law limiting appeals to the Privy Council ‘shall be reserved by the

Governor-General for Her Majesty’s pleasure’.

vii. Example 1: Republic referendum

1. A republic for Australia would mean having someone other than the monarch as our head of state, with few,

if any changes to our current democratic and law-making processes.

2. In 1993 Paul Keating proposed a republic to be established on 1 January 2001.

3. The Fed. Gvt. appointed a committee to look at the options of Australia becoming a republic. Matters to be

resolved which were suggested, include:

a. Who would be our new head of state?

i. If the Queen, and thus the GG, was no longer our head of state, we would have to find

another head of state. Most likely a president like Germany, Ireland, US and France.

His election would be either:

1. Elected by a 2/3rd majority of Parliament as ahs been suggested

2. Elected by the people

Problem with this is that the president would be elected along

political party lines which cast doubt on his impartiality.

3. Elected by State and Federal parliaments as in Germany

b. Powers of the Head of state:

i. People who support the idea of a republican Australia generally see the Australian

president as having similar powers to the GG.

ii. Powers include:

1. Allowing the current unwritten conventions to remain.

2. Changing the Const. so that there’s an automatic double dissolution if the

Senate fails to pass supply.

3. Removing completely the Senators’ right to reject or delay supply

4. Allowing a head of state to dismiss a government but only when it has

breached the Const. by drawing funds that haven not been approved.

iii. There was a concern, however, that this would give the President a direct public

mandate not held by the Prime Minister who is only elected by his or her electorate

(and party-room). This could result in conflict and the exercise of reserve powers to

dismiss a government or refusal assent to bills that were contrary to the platform on

which the President was elected, causing political instability.

iv. Proposed s 59 stated that the President shall act upon the advice of the Federal

Executive Council meaning Ministers but may exercise a reserve power of the

Governor-General in accordance with the constitutional conventions relating to the

exercise of that power.

v. The President had to be qualified to be a Member of Parliament and not be a member

of a political party. The term of office was to be five years. He could be dismissed by

the Prime Minister with immediate effect (although approval had to be sought from

the House of Representatives within 30 days if it had not earlier been dissolved).

c. State to cut ties with the monarchy?

i. States can still retain ties with the monarchy despite a national referendum to making

Australia a republic. But this is unlikely because:

1. A majority of states must agree to a referendum

2. The monarch needs to agree himself too!

3. The referendum making Australia a republic could contain a provision

disallowing states from retaining the monarchical ties.

d. The Queen and the Republic

i. The Queen is part of State Constitutions and a constituent part of most State

Parliaments. If a Commonwealth referendum instantly removed the Queen from her

constitutional role in the States, the States would not be able to fill the gap if their

Parliaments could not operate or if they needed a referendum to put in place new

provisions.

ii. Section 7 of the Australia Acts 1986 states that the State Governor is the Queen’s

representative in the State. The States can’t change this unilaterally. The States all

passed legislation under s 15(1) of the Australia Acts 1986 to amend s 7 to allow them

to cut off their links with the Queen and become republics. This legislation was only

to take effect if the Commonwealth referendum passed. As it failed, the change was

never made.

iii. The States also offered to legislate under s 15(1) to allow the repeal of the existing

preamble and the covering clauses. The Commonwealth declined the offer and said

it would simply re-print the Constitution without them.

e. How would Australia become a republic?

i. This can happen only if the Const. is amended. Amendment should follow section

128 of the Const. But very few referendums happen in Australia.

ii. To have a successful referendum to make Australia a republic, two problems would

have to be overcome:

1. Before a referendum can be put to the people, both houses of Parliament

have to pass/assent a bill putting the question/s necessary to change the

Const. into referendum.

2. More than a third of the 127 provisions in the Const. contain references to

the Queen or the GG. All those need to change, and to change the Const.,

we need a referendum and it would be complex to administer a referendum

for 127 provisions.

One solution could be to put one referendum question asking people

if they want the Const. changed so that Australia could become a

republic.

3. Federal government has proposed that there be a People’s Convention on

the republic in 1997. This convention would be a meeting of delegates from

across the country. Half od the delegates would be elected by the people and

the other half appointed by the government (states, federal, territorial)

4. The convention agreed upon a model for the popular nomination of the

President, with short-listing by a committee.

The Prime Minister would then nominate a person from the short list,

seconded by the Leader of the Opposition, for approval by a joint

sitting of both Houses.

Support of a two-thirds majority would be required for the President

to be chosen.

The intention was to include an element of popular participation at

the nomination stage as well as bipartisan (government and

opposition) cooperation so that the person chosen was not a partisan

for either side.

f. Arguments in the ‘No’ case against the republic included:

i. This type of republic was untried, unworkable, undemocratic and elitist.

ii. The politicians will appoint the President, not the people.

iii. Don’t know? – Vote ‘No’

iv. A puppet for President! Vote ‘No’ (based upon the fact that the PM can dismiss the

President).

v. Keep the status quo! – Vote ‘No’ (arguing that certainty and stability would be

threatened by change.)

g. Results of the republic referendum

i. The republic referendum also failed, receiving only about 45% approval and not

achieving a majority in any State.

1. It was defeated by a combination of monarchists and republicans who

supported a directly elected President and argued that there would soon be

a further referendum to achieve this. They were wrong.

2. The referendum was least successful in Labor Party working-class

electorates and tended to be most successful in electorates with high levels

of education.

viii. Example 2: Preamble Referendum

1. Prime Minister Howard proposed the insertion of a preamble in the Constitution itself, drafted by himself

and poet Les Murray. The first draft referred to the:

a. ‘equal sovereignty’ of Australia’s citizens and asserted that ‘Australians are free to be proud of

their country’. It mentioned mateship, excellence, enrichment and fairness.

b. It concluded: ‘Australia’s democratic and federal system of government exists under law to

preserve and protect all Australians in equal dignity which may never be infringed by prejudice

or fashion or ideology nor invoked against achievement’.

2. The proposed preamble was re-drafted after much criticism and ridicule. The final version remained

controversial because:

a. Many Aboriginal people rejected the description of their relationship with their lands and waters

as one of ‘deep kinship’.

b. It also included a proposed s 125A, which prohibited the preamble from being considered in

interpreting the Constitution or any law in force in the Commonwealth in order to keep all

Australians equal.

3. The preamble referendum failed miserably, getting significantly less support than the republic. Les Murray

said that the ‘people in their mercy took it out and shot it’.

ix. Example 3: Aborigines and the Commonwealth Constitution

1. Historical Background

a. In 1938, there was a meeting amongst 38 nations to find a solution for the many thousands of

Jews fleeing Nazi Germany. Sir Thomas White, the Australian Minister at the Conference

suggested that we would help. Hence, the great migration program started which changed the

face of Australia.

b. The White Australia policy had to be abolished and no political party opposed as Australia

needed thousands and thousands of people. So issues of race or religion needed to be outside

political fray.

c. The constitution had to toned down on the racism:

i. In 1901, s 127 of the Constitution provided: ‘In reckoning the numbers of the people

of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal

natives shall not be counted.’

1. This did not prevent Aboriginal people from voting or from being citizens

or even stop them from being counted in the census (in which many were

counted, from the first census).

2. Aboriginal people were only excluded from being counted in population

figures in relation to transition financial matters and in the distribution of

seats between the States.

ii. In 1901, s 51(xxvi) of the Constitution provided that the Commonwealth Parliament

could make laws with respect to: the people of any race, other than the aboriginal race

in any State, for whom it is deemed necessary to make special laws.

1. The above is saying two very racist things:

First that each race can have a special law which doesn’t apply to a

different race. So the law isn’t applied uniformly on everybody.

Second, aboriginal people are clearly and categorically marginalized

by the Constitution

2. In the initial Constitution, Aboriginal Australians and Torres Strait Islanders

had been excluded from Commonwealth legislative competence because it

was believed that regulation of these peoples was the province of the States.

iii. The 1967 Referendum did two things:

1. It removed the words “other than the aboriginal race in any State” from

Section 51(xxvi) which then allowed the Commonwealth to make laws for

any racial group.

2. The Referendum of 1967 also removed totally Section 127.

2. The main racist issues in the Constitution

a. Issue 1: Aboriginal people are not recognized under the constitution.

b. Issue 2: The new s51 implies that laws should be made on the basis of race.

i. Parliament could make special laws, which only apply to a particular race.

ii. It allowed the Commonwealth to make special laws with respect to race, which could

be to their benefit or to their detriment

iii. The change did not give Aboriginal people the vote (which they had), make them

citizens (which they always were, if born in Australia) or give them ‘rights’

c. Issue 3: Section 25 says: If any State law prohibits a certain race from voting in parliamentary

elections, then they won’t be counted in any census (meaning when government counts the

number of people living in a State or country).

d. Issue 4: The Constitution doesn’t not include anti-discrimination racial clause.

3. Minor reforms

a. Aboriginal people have been recognised in the State Constitutions of Victoria, Queensland,

New South Wales and South Australia (and recognition is proceeding in Western Australia).

BUT This occurred by way of ordinary legislation, so the public never noticed and never gave

their approval.

b. Non-justiciability clauses (clauses that can’t be touched by the courts) were included in the State

Constitutions so that the recognition clauses could not be used in constitutional or statutory

interpretation or to establish new rights.

c. In 2007 both John Howard and Kevin Rudd promised a referendum on constitutional

recognition if they won the election. Rudd won but did not hold a referendum. The 2010 election

resulted in a hung Parliament. The Independents and the Greens, in their agreement to support

a Gillard Government, required that a referendum on constitutional recognition be held within

the term of the Parliament.

d. Gillard appointed an Expert Panel, which reported in early 2012. Its recommendations never

received the formal support of the Gillard/Rudd Governments or the Abbott Government, but

have been the subject of ongoing discussion. A Joint Select Committee has since been

examining the proposals and reported in 2015.

4. Suggestions

a. The Panel proposed:

i. the repeal of s 25 of the Constitution;

ii. the repeal of s 51(xxvi) of the Constitution;

iii. the insertion of a new s 51A (with its own preamble) to give power to Parliament to

make laws with respect to ‘Aboriginal and Torres Strait Islander peoples’;

iv. the insertion of an anti-racial discrimination provision in a new s 116A; AND

v. the insertion of a new s 127A recognizing Aboriginal and Torres Strait Islander

languages as the original Australian languages, as well as English as the national

language.

b. The proposed s51:

i. Recognising that the continent and its islands now known as Australia were first

occupied by Aboriginal and Torres Strait Islander peoples;

ii. Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander

peoples with their traditional lands and waters;

iii. Respecting the continuing cultures, languages and heritage of Aboriginal and Torres

Strait Islander peoples;

iv. Acknowledging the need to secure the advancement of Aboriginal and Torres Strait

Islander peoples;

the Parliament shall, subject to this Constitution, have power to make laws for the

peace, order and good government of the Commonwealth with respect to Aboriginal

and Torres Strait Islander peoples.

c. Need for a new head of power:

i. If the race power is removed, there will be no head of power to support laws with

respect to native title and the protection of cultural heritage, such as sacred sites.

1. Example: Aboriginal and Torres Strait Islanders Heritage Protection Act,

ATSIC Legislation, the Act establishing the Council for Aboriginal

Reconciliation and various Acts regulating the grant of Native Title and

legislation setting up Native Title bodies.

2. If the race power is struck down the above examples would cease to exist

ii. Indigenous Australians are concerned that the power not be used in an adversely

discriminatory or oppressive way.

1. One possible way of achieving this is to make the head of power purposive

in nature.

For example, the Commonwealth Parliament could be given a power

to make laws for the purpose of preserving, protecting, developing

or sustaining Aboriginal and Torres Strait Islander heritage, cultures

and languages and the relationship of Aboriginal and Torres Strait

Islander peoples with their traditional lands and waters.

d. The proposed new s 116A would provide

i. (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds

of race, colour or ethnic or national origin.

ii. (2) Subsection (1) does not preclude the making of laws or measures for the purpose

of overcoming disadvantage, ameliorating the effects of past discrimination, or

protecting the cultures, languages or heritage of any group.

iii. It risks moving the referendum debate away from Indigenous recognition to issues

regarding bills of rights, conflicting rights, who is protected, the extent of the

exemption and whether laws protecting groups within a race (eg women and children)

would be allowed.