A Constitution is a supreme law of a country. It contains the fundamental rules that constitute the country and its institutions. The Constitution defines the power of the entities and the limits of that power. It also describes the country’s political system. Australia has Federal Constitution and State Constitution. Every citizen is protected by parliamentary representation and responsible government Kruger v Commonwealth . Constitution interpretation is done by human beings therefore the understanding varies according to individual differences.
The Making of Constitution
The empirical statute told Australians that their Constitutions are supreme law of the new Commonwealth. Australia agreed that empirical parliament would legislate for Australians. Legally binding and fundamental character of the Constitution is found of preamble of the Constitution Act. Section 109 of the Constitution, under which State law which are inconsistent with valid common law are effectively rendered inoperative for duration of the inconsistent but able to take affect if the Commonwealth statute is repealed or amended to remove the inconsistency.
Commonwealth Constitution
In 1977, the High Court held that it must integrate common law rules to comply with the supreme constitution. It objected in alia line of cases which suggested and alternative approaches to the consistent two bodies of law, the constitution may have the same affect of the common law on its legislation by sticking down of the inconsistent rules. It is evident in case of Lange v Australia Broadcasting Corporation . This case also highlights the development of the common law in Australia cannot run counter to constitutional imperatives.
Section 51
The corporation power (Section 51 (xx)) confers power to the Commonwealth in respect to trading and financial corporations. On the basis of this power the Commonwealth attempted, in 1989, to enact comprehensive legislation on corporations in Australia.
In The Corporations Case the High Court held that the corporations’ power related to the power to regulate existing corporations. Therefore, the power did not support legislation prescribing incorporation processes.
However, having different sets of rules in each jurisdiction for the establishment of companies, and different registers for the existence of companies, created red-tape and legal hurdles for business. After the incorporation case, the states agreed to refer powers to the Commonwealth. The current Corporations Act 2001 is, in part, supported by this referral of power. The referral also allowed the passage of the Australian Securities and Investment Commission Bill.
Reserved Power.
The Constitution gives the right to the Governor General to a number of specific powers .However there are powers that the Governor General may, in certain situations exercise without Ministerial advice. These ‘discretionary powers’ are known as reserve power .It adopted the restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to preserve the residual powers of the States. The doctrine of reserved powers was overturned by the High Court of Australia in 1920 by Amalgamated Society of Engineers v Adelaide Steamship Co Ltd .Since the Engineers case the, the Commonwealth’s constitutional powers have been interpreted as plenary powers, that is powers that are unqualified by any implied reservation of powers to the states. In Victoria v The Commonwealth it has been described by Justice Windeyer as a natural result of twenty years of the development of Australia as one country of national laws to meet national needs and that it cannot be regarded as a correction of antecedent errors. But even today it cannot be denied that the federal idea continues to exert an influence on constitutional interpretation.