MLL323 CONSTITUTIONAL LAW EXAM NOTES

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1 MLL323 CONSTITUTIONAL LAW EXAM NOTES Legislation codes: Australia Act 1986 Aus Act Colonial Laws Validity Act 1865 (UK) Commonwealth of Australia Constitution Act - Cth Constitution Constitution Act 1975 (Vic) - CA (Vic) Trade Practices Act 1974 (Cth) - TPA Table of Contents TOPIC 1 INTRODUCTION TO AUSTRALIAN CONSTITUTIONALISM... 5 SOURCES OF AUSTRALIAN CONSTITUTIONAL LAW... 6 FUNDAMENTALS OF AUSTRALIAN CONSTITUTIONALISM... 7 FEDERALISM... 7 THE DOCTRINE OF THE SEPARATION OF POWERS... 8 RESPONSIBLE GOVERNMENT... 8 JUDICIAL REVIEW... 9 PARLIAMENTARY SOVEREIGNTY CONTRASTED WITH PARLIAMENTARY SUPREMACY... 9 THE RULE OF LAW... 9 TOPIC 2 PARLIAMENT AND LEGISLATIVE PROCEDURES THE STRUCTURE OF PARLIAMENT STATE PARLIAMENT VICTORIA COMMONWEALTH PARLIAMENT DURATION AND MEMBERSHIP OF PARLIAMENT APPOINTMENT (COMMONWEALTH CONSTITUTION) SUBSEQUENT LEGISLATIVE AMENDMENTS TO APPOINTMENT CASE FOCUS: WESTERN AUSTRALIA V COMMONWEALTH (TERRITORIAL SENATORS CASE) DURATION OF VIC PARLIAMENT DURATION OF CTH PARLIAMENT MEMBERS OF PARLIAMENT: QUALIFICATIONS AND DISQUALIFICATIONS CTH: QUALIFICATIONS AND DISQUALIFICATIONS VIC: QUALIFICATIONS AND DISQUALIFICATIONS CASE FOCUS: SYKES V CLEARY (NO 2) ADJOURNMENT, PROROGATION AND DISSOLUTION STANDARD LEGISLATIVE PROCEDURE (CTH AND STATE) STANDARD PROCEDURE MAJORITIES COMMONWEALTH LEGISLATIVE PROCEDURES ALTERNATIVE PROCEDURES (DEADLOCK) CASE FOCUS: VICTORIA V COMMONWEALTH (PMA CASE) (1975) CASE FOCUS: CORMACK V COPE (1974) CASE FOCUS: WESTERN AUSTRALIA V COMMONWEALTH (TERRITORIAL SENATORS CASE) RESTRICTIVE PROCEDURES (ALTERATION OF THE CTH CONSTITUTION) SPECIAL PROCEDURES (FINANCIAL LEGISLATION)

2 SPECIAL PROCEDURES: NON-COMPLIANCE WITH PROCEDURES AND FORMS: S 53, 54 AND 56 CTH CONSTITUTION SPECIAL PROCEDURES: NON-COMPLIANCE WITH FORM: S 55 CTH CONSTITUTION CASE FOCUS: AIR CALEDONIE V COMMONWEALTH STATE LEGISLATIVE PROCEDURES HOW TO ANSWER A VIC RESTRICTIVE PROCEDURE QUESTION: RESTRICTIVE PROCEDURES (MANNER AND FORM PROVISIONS) CASE FOCUS: WEST LAKES LTD V SOUTH AUSTRALIA CASE FOCUS: ATTORNEY-GENERAL (WA) V MARQUET (2003) TOPIC 3: CHARACTERISATION CASE FOCUS: AMALGAMATED SOCIETY OF ENGINEERS V ADELAIDE STEAMSHIP CO LTD ( ENGINEERS CASE ) JUMBUNNA COAL MINE NL V VICTORIAN COAL MINERS ASSOCIATION (JUMBUNNA PRINCIPLE). 25 PRINCIPLES OF CONSTITUTIONAL INTERPRETATION INTERPRETIVE TECHNIQUES HCA USES THE PROCESS OF CHARACTERISATION THE CHARACTERISATION TEST: SUFFICIENCY OF CONNECTION DUAL CHARACTERISATION CHARACTERISATION SUB-TEST: PROPORTIONALITY CASE FOCUS: THOMAS V MOWBRAY (2007) HCA TOPIC 4: FINANCIAL AND ECONOMIC POWERS S 51(II) CTH CONSTITUTION: TAXATION POWER WHAT IS A TAX? FEE FOR SERVICE V TAX SPENDING AND APPROPRIATION POWERS S 96 CTH CONSTITUTION ( THE GRANTS POWER ): INDIRECT SPENDING POWER OF CTH CASE FOCUS: SA V COMMONWEALTH (1942) HCA FIRST UNIFORM TAX CASE CASE FOCUS: VIC V COMMONWEALTH (1957) HCA SECOND UNIFORM TAX CASE S 81 CTH CONSTITUTION ( APPROPRIATION POWER ): NOT A SPENDING POWER OF CTH, MERELY A RESERVATION OF PUBLIC FUNDS CASE FOCUS: PAPE V FEDERAL COMMISSIONER OF TAXATION (2009) HCA S 51(XX): THE CORPORATIONS POWER QUESTION 1: WHAT KINDS OF CORPORATIONS CAN CTH LEGISLATE FOR AND REGULATE? A TRADING CORPORATION A FINANCIAL CORPORATION QUESTION 2: WHAT KINDS OF ACTIVITIES OF FOREIGN, TRADING AND FINANCIAL CORPORATIONS CAN THE CTH LEGISLATE FOR AND REGULATE? CASE FOCUS: NEW SOUTH WALES V COMMONWEALTH (WORK CHOICES CASE) (2006) THE PROCESS OF COMPANY FORMATION (INCORPORATION) CASE FOCUS: NEW SOUTH WALES V COMMONWEALTH (INCORPORATION CASE) (1990) TOPIC 5: EXTERNAL AFFAIRS MATTERS EXTERNAL TO AUSTRALIA CASE FOCUS: NEW SOUTH WALES V COMMONWEALTH (SEAS AND SUBMERGED LANDS CASE) (1975) CASE FOCUS: POLYUKOVICH V COMMONWEALTH (1991) CASE FOCUS: XYZ V COMMONWEALTH (2006)

3 CASE FOCUS: THOMAS V MOWBRAY (2007) EXTRATERRITORIAL COMPETENCE OF THE STATES: CAN THEY MAKE LAWS FOR PERSONS OR MATTER SITUATED OR OCCURRING OUTSIDE THEIR BORDER? CASE FOCUS: THOMAS V MOWBRAY (2007) RELATIONS WITH OTHER COUNTRIES INTERNATIONAL TREATY IMPLEMENTATION WHAT IS THE SCOPE OF THE TREATY IMPLEMENTATION ASPECT OF THE EXTERNAL AFFAIRS POWER? CASE FOCUS: COMMONWEALTH V TASMANIA (TASMANIAN DAMS CASE) (1983) CASE FOCUS: VICTORIA V COMMONWEALTH (INDUSTRIAL RELATIONS ACT CASE) (1996) TOPIC 6: THE EXECUTIVE THE CROWN (CTH AND STATE) THE CTH EXECUTIVE MINISTERS AND THE CROWN RESPONSIBLE GOVERNMENT AND THE RESERVE POWERS CTH EXECUTIVE POWER THE POWER TO DO THE BUSINESS OF GOVERNMENT PREROGATIVE POWERS CASE FOCUS: RUDDOCK V VADARLIS (2001) NATIONHOOD POWER CASE FOCUS: DAVIS V COMMONWEALTH (1988) COMMONWEALTH CAPABILITIES CASE FOCUS: PAPE V COMMISSIONER OF TAXATION (2009) TOPIC 7: INCONSISTENCY AND INTERGOVERNMENTAL IMMUNITIES SECTION 109: RESOLVING INCONSISTENCY BETWEEN CTH AND STATE LAWS WHAT IS A LAW FOR THE PURPOSES OF S 109? WHAT IS THE MEANING OF INVALID FOR THE PURPOSES OF S 109? DIRECT AND INDIRECT INCONSISTENCY CASE FOCUS: CLYDE ENGINEERING CO LTD V COWBURN (1926) (THE WATERSHED CASE) SUMMARY: THREE TYPES OF S 109 INCONSISTENCY EXPRESS INTENTION TO DISPLACE STATE LAW (OR COVER THE FIELD ) THERE MUST BE A REAL CONFLICT... ERROR! BOOKMARK NOT DEFINED. CTH AND STATE CRIMINAL LAWS CAN CTH RETROSPECTIVELY REMOVE S 109 INCONSISTENCY? INTERGOVERNMENTAL IMMUNITIES INTRODUCTION STATE LAWS AND THE CTH (AND THEIR INSTRUMENTALITIES) CASE FOCUS: RE RESIDENTIAL TENANCIES TRIBUNAL OF NSW AND HENDERSON; EX PARTE DEFENCE HOUSING AUTHORITY CTH LAWS AND THE STATES (AND THEIR INSTRUMENTALITIES) AN IMPLIED FEDERALISM PROHIBITION (AN EXCEPTION OF THE ENGINEERS RECIPROCAL RULE). 59 THE MELBOURNE CORPORATION PRINCIPLE CLARIFIED: CLARKE V COMMISSIONER OF TAXATION (2009) TOPIC 8: CONSTITUTIONAL RIGHTS AND FREEDOMS INTRODUCTION EXPRESS RIGHTS S 51 (XXI): JUST TERMS FOR THE ACQUISITION OF PROPERTY

4 CASE FOCUS: MINISTER OF STATE FOR THE ARMY V DALZIEL CASE FOCUS: NEWCREST MINING WA LTD V COMMONWEALTH SECTION 51 (XXXI) AND SECTION SECTION 80: TRIAL BY JURY SECTION 116: FREEDOM OF RELIGION CASE FOCUS: ATTORNEY-GENERAL (VIC) (EX REL BLACK) V COMMONWEALTH (THE DOGS CASE) SECTION 117: FREEDOM FROM INTERSTATE DISCRIMINATION CASE FOCUS: STREET V QUEENSLAND BAR ASSOCIATION IMPLIED CONSTITUTIONAL RIGHTS AND FREEDOMS THE IMPLIED RIGHT TO FREEDOM OF POLITICAL COMMUNICATION CASE FOCUS: LANGE V AUSTRALIAN BROADCASTING CORPORATION THE FIRST LIMB OF THE LANGE TEST CASE FOCUS: MONIS V R THE SECOND LIMB OF THE LANGE TEST CASE FOCUS: MCCLOY V NEW SOUTH WALES VOTING IN FEDERAL ELECTIONS CONSTITUTIONALLY REQUIRED FRANCHISE AN IMPLIED RIGHT TO VOTE? CASE FOCUS: ROACH V ELECTORAL COMMISSIONER TOPIC 9: SEPARATION OF POWERS THE COMMONWEALTH SEPARATION OF JUDICIAL POWER CASE FOCUS: R V KIRBY; EX PARTE BOILERMAKERS SOCIETY OF AUSTRALIA (BOILERMAKERS CASE) EXCEPTIONS AND QUALIFICATIONS TO THE STRICT SEPARATION OF JUDICIAL POWER PREVENTATIVE (INVOLUNTARY) DETENTION AND CHAPTER III OF THE CONSTITUTION CASE FOCUS: CHU KHENG LIM V MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS A SEPARATION BETWEEN LEGISLATIVE AND EXECUTIVE POWERS? THE STATES STATE JUDICIAL POWER AND THE KABLE PRINCIPLE THE CONTEMPORARY STATUS OF THE KABLE PRINCIPLE IN AUSTRALIAN CONSTITUTIONAL LAW... ERROR! BOOKMARK NOT DEFINED. THE KABLE PRINCIPLE CASE FOCUS: NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC V BRADLEY CASE FOCUS: FARDON V ATTORNEY-GENERAL (QLD) CASE FOCUS: FORGE V AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION THE RESURGENCE OF KABLE SINCE THE KABLE PRINCIPLE NEW DIRECTIONS CASE FOCUS: KIRK V INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CASE FOCUS: WAINOHU V NEW SOUTH WALES STATE LEGISLATIVE AND EXECUTIVE POWERS

5 Topic 1 Introduction to Australian Constitutionalism * matter anywhere in constitution, means a legal controversy. The Australian Constitution is our fundamental law and primary source of power in Australia. It also distributes this power between the different arms and levels of government. Public power is controlled and limited by law and democratic government. HCA, through its power of judicial review, ensures that government action is sanctioned by the Constitution. Vic Constitution ordinary act of Parliament, which can be amended or repealed by later legislation passed by a simple majority. Cth Constitution - establishes framework and institutions of Commonwealth: o Ch1 parliament o Ch 2 - executive o Ch 3 judicature (the courts) o Established federal system of government (central government and state government) o Recognised the colonies as independent States within the Commonwealth. Written constitution not required to be a nation state (UK and NZ don t have written higher law constitutions). So, why does Aus? Framers thought necessary to establish federal system of government (and US system which some of our principles are based, has a written constitution). Cth Constitution supreme law, meaning that Cth Constitution trumps any and all other laws in Australia and all Australian laws, whether legislation, equity or CL must be compatible with Cth Constitution. The consequence of it not being compatible is that it can be invalidated (although it is not automatically invalidated as must go through HCA for determination). Public law considered to be constitutional law and administrative law. At CL principle of negative liberty as Aus citizens free do to, say anything we like, or make any decision subject to law. In public law, however, exactly the opposite to the principle of negative liberty applies. Any arm of government (courts, executive, parliament) cannot make any decision or take any action unless authorised or permitted to do so by a source of valid law. American Constitution war, fighting the British and won, constitution born out of revolution. US has bill of rights (10 amendments to their constitution) which reflected fundamental distrust of government, enacted bill to place constitutional limitations on power of government. Bill of Rights significance is that its entrenched in constitution and are therefore protected and any subsequent legislation that is inconsistent can be invalidated. Also confers extraordinary powers on US judiciary. Aus Constitution drafters weren t revolutionaries in American sense. Relevant as those who drafted American were distrustful of government because of their experience with the British. Those who drafted Aus Constitution were white English men (no women were allowed) of property who had a fundamental faith in parliamentary government. Aus does not have bill of rights because the drafters believed in parliamentary government. Political philosophical view of the constitution is how can it be legitimate when significant parts of society (women, aboriginals), were not involved in its drafting. Vic has charter of human rights (almost in lieu of bill of rights). Aus Constitution enacted by Westminster parliament (by simple majority) in 1900 to come into operation 1 Jan Clause 9 Aus Constitution is one section of one British act of parliament enacted by simple majority. Parliamentary sovereignty defining characteristic of UK means that Westminster parliament has power to make or unmake any law whatsoever irrespective of subject matter (Venn Dicey could enact a law that all blue-eyed babies must be killed at birth). If a parliament is truly sovereign then any law cannot be called into question by any other arm of government, including the courts (no judicial remedy) BUT remedy available would be voting that government out in the next election (political remedy). NZ is the same. What it also means for Aus is that there is a possibility that a law enacted in UK could affect Aus (as is one section of one act of UK sovereign parliament), i.e. it could repeal clause 9 of Cth Constitution. 5

6 Aus parliament is not sovereign. If Aus became a republic (authority for constitution from the people known as popular sovereignty, which is why US constitution begins with We, the people ) which would separate us from UK then Aus wouldn t be affected by the consequences of UK s parliamentary sovereignty. Sources of Australian Constitutional Law 1701 Act of Settlement: establishes the independence of the judiciary; judges to serve during good behaviour and can only be removed by a request from both houses of parliament. o In Aus, judges have tenure until the age of First Fleet arrive in Australia Australian Courts Act Official date of reception of all English laws and statutes in NSW & Van Diemens Land (including Vic & Qld); WA 1829, SA 1836, ACT & NT o Increased the size of the Legislative Council and constrained the power of the Governor Australian Constitutions Act (UK) passed first step towards representative government in Australia. Increased the size of the Legislative Council and two-thirds to be elected. Colonies given power to draft their own Constitutions Victorian Constitution is passed. o Created a new entity the State of Vic. o Enacted by Westminster Parliament see preamble. o Vic Constitution of 1975 is the same as that of 1855 but consolidated. o S 106 & 107 Cth Constitution recognises the existence of State constitutions Colonial Laws Validity Act passed as a consequence of Benjamin Boothby invalidating as many colonial laws as possible on the grounds that they offended fundamental principles of English Law. o Colonial parliaments given increased powers over time to legislate by Westminster parliament. o Westminster would sometimes pass legislation stating that its legislation was to apply to Aus colonies. o If there was a conflict between Westminster law and colonial law, the Westminster law would trump the colonial law. o Boothby was judge of SASC and revered and thought all English law was supreme and tried to vindicate wherever possible English CL against colonial law. o Boothby caused a crisis by invalidating SA laws on the basis that they offended English CL and did so wherever possible (including Real Property Act which established the system of Torrens Title). o Westminster considered it such a crisis that it had to pass Colonial Laws Validity Act to give colonies authority to legislate on any subject matter (with a few exceptions) unless Westminster enacts an act of paramount importance (which colonies had to follow over their own). 1890s Move towards federation spurred on by defence and trade concerns among the colonies. Constitutional Conventions held in Adelaide (1891), Sydney and Melbourne (1897 & 1898) Australian Constitution is proclaimed. o 1 Jan 1901 created a new nation, Cth of Australia, colonies transferred into States. o o o Preamble an indissoluble federal Commonwealth under the Crown. S 106 recognises continuation of States and constitutionalises the existence of the States. If ever any attempt to break up or abolish States, s 128 procedure would need to be followed. subject to this constitution means that State constitutions are protected but they operate and exist subject to Cth Constitution. S 122 provides legislative blank cheque to parliament re the territories. Legal creation of the territories was facilitated through legislation supported by this section. Cth still retains extraordinary power over the territories and could pass legislation by simple majority to abolish the territories. 6

7 ACT origin - Syd and Mel couldn t agree where national capital would be but eventually decided to create territory (under the control of Cth) for national capital location. NT origin was originally part of SA Declaration of Balfour o 1920 s Canadians and other dominions (but not Aus) wanted greater legal and political independence from Britain Statute of Westminster (UK) o Applied to Canada, NZ, South Africa and Aus (referring only to Aus Cth level of parliament, not State, although States were invited to come under this statute, but States were highly distrustful of Cth parliament so preferred to maintain a relationship with British parliament). o S 2 provided that no law of Aus would be invalidated if it conflicted with English law. Constraints created by Colonial Laws Validity Act were removed by this Act but only at Cth level, not State level. Cth parliament had full power to legislate as a result. o S 3 could not legislate extra-territorially (i.e. unlawful in Aus for citizens to engage in sexual crimes in Asia) (Aus law that seeks to regulate or impose regulations on persons or activities outside of Australia). o 1942 Cth parliament gave effect to this Statute Statute of Westminster Adoption Act (Cth) o 1942 Cth parliament gave effect to this Statute. o S 3 - Sections 2 6 of the Imperial Act entitled Statute of Westminster 1931 (which act is set out in the schedule) are adopted and the adoption shall have effect from 3 September Australia Acts o Effectively the Statute of Westminster, for the States. o Identical legislation was passed by both UK and Aus Cth. o S 1 after enactment no act of English parliament would any longer apply to Cth, States or Territories (prospectively not retrospectively). o S 2 extra-territorial operation of State law. o S 3 Colonial Validity Laws Act shall not apply to any act enacted by the States after commencement of the Australia Act (prospectively not retrospectively). o House of Lords - was most senior Court in UK hierarchy and our courts considered their decisions to be de facto binding. Sat above many Commonwealth hierarchy s (Aus, Canada, NZ) o Privy Council highest court in Aus (also Caribbean, Canadian, Indian) judicial hierarchy. Was legislated out in 1960 s, however, until Australia Acts was period of time in Aus where at State level you could either go to the HCA or Privy Council. o S 11 confirms no longer could you appeal from State supreme court to Privy Council. o Ensured Australia s legal independence from UK. o Gradual development of Aus legal independence from UK, HCA started to develop notion of popular sovereignty. o S 15 - Australia Acts are given constitutional status, as well as performing constitutional function. S 15 provides that Statute of Westminster and Australia Act are not to be repealed or amended except in accordance with s 128 Cth Constitution or by legislation passed under s 51(xxxviii) Cth Constitution Referendum on the Australian Republic fails o S 128 referendum provision, text of Cth Constitution changes. o HCA decisions change in interpretation of provisions. Fundamentals of Australian Constitutionalism Federalism Aus has a federal system of government. It divides public power between two levels of government, State and Commonwealth. Founding fathers took some principles from the US constitution. The move toward federation of the colonies in 1980 was accelerated over trade and defence. 7

8 Although intra-colonial rivalries were high, it was understood that a more open trade between the colonies held the key to long-term prosperity. Chapter IV of the Cth Constitution is devoted to finance and trade with s 92 and its decree that trade, commerce and intercourse between the States shall be absolutely free. Murray, CJ described federation in the following way: o The union to which the people of what were formerly self-governing colonies agreed was a federal union, and the colonies became States of the new federation. Each State retained its own Constitution and its own organs of government: legislative, executive and judicial. This division of power between a central government and the governments of the State or provinces is the essence of a federation. Preamble to Cth Constitution colonies federate together under UK. Defence was main concern, colonies wanted the protection of UK. Unilateral system of government wouldn t work in Aus as it did in UK given our large geographical area. How could a State succeed (separate) from Cth? Could do so by referendum (although need majority in their State and majority in other original States), particularly WA as it is not included in the preamble. S 106 recognises continuation of States and constitutionalises the existence of the States. If ever any attempt to break up or abolish States, s 128 procedure would need to be followed. subject to this constitution means that State constitutions are protected but they operate and exist subject to Cth Constitution. S 51 lists 39 subject matters on which Cth parliament can legislate. States can legislate on the unexpressed residuary. Most powers in s 51 are concurrent legislative powers, meaning States can also legislate in these areas, however, S 109 provides that where there is an inconsistency between Cth and State, Cth law prevails. The doctrine of the separation of powers Separation of powers is implicit from separate formal chapters for parliament, executive and judiciary in Cth Constitution. Purpose of separation of power is to seek to divide public power to ensure that one arm of government (or even one person) does not cause a tyranny. Provides a better chance of having a fully functioning federal government. No nation in the world has a pure separation of powers. A pure separation would involve 3 arms of government and no overlap in terms of power and jurisdiction and no cross-membership. Every nation with a separation of powers doctrine has some form of overlap, either in terms of membership or overlapping function and powers. No State constitution in Aus has a formal separation of powers. Raises some theoretical questions, such as: if one arm of government can legally and constitutionally exercise another arm of government power i.e. legislature could perform function of the judiciary by involving itself with litigation already on foot by enacting a law that determines the case through legislation. S 64 Cth Constitution mandates that Cth Ministers (members of the executive) are drawn from and accountable to the Parliament. This characteristic is known as responsible government and means that no strict separation of powers exists between the parliament and the executive in Aus. Responsible government Premised on ideal government is responsible to the parliament and ultimately to the people. Extraordinary party discipline in Aus can mean that this ideal is reversed (very uncommon that a member of a party would vote against a policy of its party) Fundamental but not expressed in Cth Constitution. Prime Minister leader of the government (elected by majority of lower house). Not stated in Constitution, created by constitutional convention (ongoing established political practice). Constitutional conventions are important and if not followed, remedy is a political one (such as voting the government out), not judicial. Doctrine itself implicitly recognised in Cth Constitution s 64. Members of executive government (Cabinet is the collection of most senior ministers and not mentioned in Constitution) are elected from members of Parliament. 8

9 Question time one important aspect of what Parliament gets in return for passing financial legislation (ministers have to attend to question time to answer questions and provide explanations). Whilst the power to do the business of government is (executive power) is formally vested in Governor-General by s 61, responsible government dictates that the Governor-General must act on the advice of ministers so long as the government of the day commands a majority in the House of Reps. Access to treasury finance is required in order to carry on the business of government. Keys to treasury are held by the Parliament under s 83 (budgets/appropriation bills) pass laws to spend treasury funds. Therefore, Executive Government has the power but Parliament has the money. This constitutional reality ensures government accountability to the Parliament and ultimately to Aus people. Presidential government if the opposite, can t be members of congress (more strict separation of legislative and executive powers). S 68 Governor-General in charge of Australia s armed forces. S 5 Governor-General also determines when Parliament sits. On text Cth Constitution appears to suggest GG is the most powerful person in Aus government. However, in reality GG does not exercise independent discretion on exercise of these powers, GG acts on advice of government of the day (ministerial advice) and just signs off on them, provides government is still in power (holds majority in lower house). GG still has some exceptional powers though, such as the ability to dismiss the government of the day. Judicial Review Judicial review is the power that permits a court to review and determine the constitutionality of legislative or administrative power. Enables HCA to strike down a Cth or State law if it offends or is not supported by the Cth Constitution. Consistent with the view that HCA is ultimate guardian of Cth Constitution. Review of ministerial action is administrative law. Parliamentary sovereignty contrasted with parliamentary supremacy No parliament in Aus is sovereign in Venn Dicey sense does not have unrestricted legislative power (see s 51 and s 52 Cth Constitution). What is sovereign is the Australian Constitution. Although Cth and States are not sovereign in Venn Decey sense, they are in theory, supreme over to other two arms of government (executive and judiciary). The rule of law Covering clause 5 of Cth Constitution implicitly recognises the rule of law noting that all laws apply to everyone in the Cth (Cth government, State government and citizens). 9