Academic literature on the topic 'Commonwealth of Australia Constitution;intentions of the framers'

In this article, the authors explore the concept of judicial activism and its application in the Australian domestic cases of Australian Capital Television Pty Ltd v Commonwealth and Love v Commonwealth, and in the US case of Obergefell v Hodges. The article highlights the devastating effects of judicial activism on legal interpretation, arguing that such activism compromises the doctrine of separation of powers and affects the realisation of the rule of law, resulting in a method ofinterpretation that incorporates personal biases and political opinion, thus ignoring the original intent of the framers of the Australian Constitution. Moreover, the article highlights that implementing a federal Bill of Rights might further exacerbate these ongoing problems concerning judicial activism in Australia.

The thesis examines the speeches and debates in the Australasian Federation Conference of 1890, and the Australasian Federal Conventions of 1891 and 1897-8 for the purpose of establishing what the framers of the Commonwealth Constitution understood to be the meaning and purpose of the individual sections of the Constitution upon which they were called upon either to support or oppose. The particular matters involved in the examination are the manner and form in which the principles of responsible government were incorporated into the constitution, and the relationship of these principles to the powers of the Senate; the crisis in the 1891 Convention in relation to the powers of the Senate over money bills; the significance of the difference in composition of the Convention of 1891 compared with that of 1897-8; the significance of the classification of the Constitution as an indissoluble federation under the Crown; the principles of responsible government and the provisions of s.57 in the context of the deadlock over Supply in 1975; the meaning and purpose of s.41 preserving the rights of voters qualified to vote in State elections for the lower Houses, and the misconceptions in relation thereto the position of aborigines under the Constitution; the meaning and purpose of the special laws power in the light of the 1967 Constitutional referendum, and its interpretation bU the High Court in the Hindmarsh Island Bridge case; the relationship of the intentions of the framers of the Constitution to the interpretation bu the High Court of the Financial Clauses of the Constitution, and the provisions of s.92; and the meaning and purpose of the external affairs power, and the corporations power as understood bu the framers of the Constitution.

The thesis examines the speeches and debates in the Australasian Federation Conference of 1890, and the Australasian Federal Conventions of 1891 and 1897-8 for the purpose of establishing what the framers of the Commonwealth Constitution understood to be the meaning and purpose of the individual sections of the Constitution upon which they were called upon either to support or oppose. The particular matters involved in the examination are the manner and form in which the principles of responsible government were incorporated into the constitution, and the relationship of these principles to the powers of the Senate; the crisis in the 1891 Convention in relation to the powers of the Senate over money bills; the significance of the difference in composition of the Convention of 1891 compared with that of 1897-8; the significance of the classification of the Constitution as an indissoluble federation under the Crown; the principles of responsible government and the provisions of s.57 in the context of the deadlock over Supply in 1975; the meaning and purpose of s.41 preserving the rights of voters qualified to vote in State elections for the lower Houses, and the misconceptions in relation thereto the position of aborigines under the Constitution; the meaning and purpose of the special laws power in the light of the 1967 Constitutional referendum, and its interpretation bU the High Court in the Hindmarsh Island Bridge case; the relationship of the intentions of the framers of the Constitution to the interpretation bu the High Court of the Financial Clauses of the Constitution, and the provisions of s.92; and the meaning and purpose of the external affairs power, and the corporations power as understood bu the framers of the Constitution.

Thesis (Ph. D.)--University of Sydney, 2001.
Title from title screen (viewed Apr. 24, 2008). Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy to the Dept. of History, Faculty of Arts. Degree awarded 2001; thesis submitted 2000. Includes bibliography and of tables of cases. Also available in print form.

The Commonwealth of Australia is a federation of six states, whose constitution was enacted by the United Kingdom Parliament in 1900, when Australia was part of the British Empire. The six states had previously been separate British colonies, each with its own constitution that continued in force after 1900, although subject to the new federal constitution. The authority of the United Kingdom Parliament to change Australian law was not formally terminated until 1986, when the Australia Act was passed by both the United Kingdom and the Commonwealth Parliaments. The fundamental documents of Australian constitutional law therefore comprise the federal constitution, the Australia Act, and the six state constitutions. This chapter looks at Australia's constitution and its origins and structure, judicial interpretation of the federal constitution, judicial review, High Court and its judges, problems and methods of constitutional interpretation, causes of interpretive difficulties, sources of interpretive principles, current interpretive methodology, extrinsic evidence of framers' intentions and purposes, ‘structural’ principles and implications, separation of powers, balance between legitimate and illegitimate creativity, and institutional and cultural factors underlying constitutional interpretation.

This chapter traces the development of judicial review in Australia, which was modeled on the U.S. system of judicial review. Australian judicial review evolved out of a need for an umpiring body in federalism and separation of powers cases. Indeed, the original purpose of the Australian High Court under the Australian Constitution was to umpire federalism disputes between the Commonwealth and the six Australian states, which predated the federal government of Australia; and to ensure that the traditionally guaranteed rights and freedoms of British subjects under the common law and responsible parliamentary government were respected regarding Australia’s citizens. The Australian Constitution does not have a Bill of Rights or an enumerated Judicial Review clause, but it does limit and enumerate the broad powers of the Australian federal government. The Framers of the Australian Constitution, like the Framers of the U.S. Constitution, assumed that the courts would have the power of judicial review. As a result, there is, in Australia, judicial review in federalism and separation of powers umpiring cases but not in Bill of Rights cases since there is essentially no Australian Bill of Rights.