Constitutional Law

Application of law to occupied foreign land

Conquest – forcible invasion – existing laws continue to apply

Cession – treaty over land – existing laws continue to apply

Settled – sparsely populated or inhabited by uncivilized population – laws of occupier apply

Australia was deemed to have been settled. Aboriginal people seen to be nomadic and have transient possession.
The land was terra nullius (belonging to no one). There was no recognition of customary law – so English law applied.

Mabo (No 2) established Native Title – a right derived from customary law, not common law, granting title if there was connection with the land

The Constitution

Constitutional Amendment

Manner and form restrictions

Double entrenchment

Constitutional Conventions

Unwritten customs that are obeyed – e.g. Governor-General doesn’t have much power

Prerogative Powers

Powers of the Crown – e.g. to declare war

Persona Designata

Non-judicial functions can’t be assigned to courts, but can be assigned to judges

Judicial Review

Courts have the power to invalidate laws which are inconsistent with the constitution
However, the power is limited as they can only hear cases brought before them and don’t have any enforcement power (unlike the executive)

Coups

Courts can recognise a new regime, even though their validity is based on the old regime

Voting and Elections

Commonwealth Electoral Act provides for:

Compulsory voting
Preferential voting
Eligibility for election

Chapters of the Australian Constitution


Chapter I – Parliament	Exclusive powers – of Commonwealth Concurrent – shared Residual powers – of States
	Section 51 (xxix) – External Affairs power, including implementing treaties Section 51 (xxvi) – Races power, for the protection of a particular race Section 51 (vi) – Defence power, is a purpose-based not subject-matter power, so the law must be for achieving the defence of Australia and must be proportionate. Extends to post-war consequences and terrorism (including domestic terrorism). During peacetime, a significant connection with defence must be demonstrated. Section 51(i) – trade and commerce with other countries and among the states (freedom of interstate trade) Section 51(ii) – taxation Section 96 – Grants to States, often tied Melbourne Corporation Case – Cth should not be able to burden or impair States
Chapter II – Executive

Chapter III – Judicature

Chapter IV – Finance and Trade

Federal and State Constitutional Powers

Constitutional Amendment

State constitutions can be amended, subject to manner and form restrictions which limit the way in which amendment can occur
Double entrenchment – rule around amendment of the manner and form restriction
Federal constitution requires a referendum to be changed