The Volokh Conspiracy

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Comparing Australian and American federal jurisprudence


Of all the federal countries considered in our edited volume, Courts in Federal Countries: Federalists or Unitarists? (University of Toronto Press 2017), the two having the most similar constitutions are, arguably, Australia and the United States.

The main reason for this is that Australians modeled their 1901 constitution on the American example. (For a book-length discussion, see here.)

The Australian federation, like the American, was formed through an agreement among delegates of distinct, self-governing states. Although the states differed in size, population, economy, and resources, each state insisted on being treated as a constitutive equal in forming the federal constitution.

This insistence on the equality of the states, combined with a desire to create a federal government that would represent the people of the federation as a whole, meant that in both countries the federal legislature consists of a House of Representatives and a Senate. Members of the first are elected from each state in proportion to that state's population; in the second, each state is represented by the same number of senators (in Australia, it is currently 12 senators for each state, while the two mainland territories have two senators each).

The distribution of powers between the federal and state governments assumes that the states retained the powers they had at federation, subject only to the specific powers conferred on the federal government.

Many of the most important powers conferred on the federal legislature are essentially the same, or very similar, to those in the United States: taxation; trade and commerce with other countries and among the states; borrowing money; naturalization; bankruptcy; coinage; weights and measures; postal services; copyrights and patents; and defense. The list of powers in Australia is longer and more detailed, but the basic structure and logic are the same.

Like its American counterpart, Australia's constitution is initially divided into distinct chapters dealing with the legislative, executive, and judicial branches. The separation of powers-especially the separation of judicial power-is an important principle in Australian constitutional law.

The High Court of Australia consists of seven justices. Like the U.S. Supreme Court, it exercises judicial review. The principle decided in Marbury v. Madison has always been regarded as axiomatic in Australian constitutional law.

There are some important differences of course. Federal executive power in Australia is vested in Britain's queen and exercised by a governor-general formally appointed by the queen. But, consistent with Westminster tradition, executive powers are exercised strictly on the advice of Australia's prime minister and other ministers who have the support and confidence of the House of Representatives. Elected politicians are the real locus of executive power.

Moreover, Australia has no national bill of rights, only a few scattered guarantees. Yet, even here, the U.S. model was influential. The Australian Constitution guarantees "freedom of religion" and prohibits any "establishment of religion" in terms very similar to the U.S. First Amendment.

However, Australia's constitution is constitutively more democratic than the American. At its founding, the Constitution was approved by the people of each state, voting in referenda. Reflecting this, the preamble to the Constitution recites that "the people" of each state "agreed to unite in one indissoluble Federal Commonwealth." The federation was expressed to be indissoluble lest America's experience with secession ever be contemplated in Australia.

The democratic theme is further expressed in the Constitution by the declaration that the two houses of the legislature are to be "chosen by the people" and by the requirement that the Constitution can be amended only by a "majority of electors" in both the federation as a whole and a majority of the states.

Given these similarities, with certain important differences, the way the two constitutions have been interpreted by the courts offers an interesting study in the influence of textual language, structural relationships, historical intentions, and political values on constitutional interpretation generally. (For more detail, see here).

In both countries, the idea that certain powers were 'reserved' to the states influenced the courts in their early days, only to be eclipsed by the view that each power conferred on the federal legislature is to be interpreted as widely as the language used can reasonably sustain, without considering what is left over to the states.

The basis for this approach in Australia is the view that the Constitution derived its legal force from enactment by the British Parliament and obtains continuing legitimacy from the support of the Australian people considered as an undifferentiated whole. This view was articulated in the landmark Engineers case, which held that the federal government could employ its industrial arbitration power (s. 51(xxxv)) to regulate the employment conditions of state employees (Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd, (1920) 28 C.L.R. 129, 153).

More recently, the Court has interpreted the "corporations" power (s. 51(xx)) as allowing the federal government to regulate any corporate activities, including contracts with employees, despite the deliberately limited federal power to regulate employment relations through industrial arbitration (s. 51 (xxxv)). Similarly, the "external affairs" power (s. 51(xxix)) has been interpreted to enable the federal government to legislate in areas outside of its enumerated sec. 51 powers in order to implement treaties.

Nonetheless, both countries have also developed intergovernmental immunities doctrines that aim to protect both the federal and the state governments from undue interference and to maintain the independence of each, at least to some extent. Australia's high court has opined that the states must continue to exist "as separate governments … exercising independent functions" (Melbourne Corporation v. Commonwealth, (1947) 74 CLR 31, 83).

Much of Australia's judicial doctrine in these areas was explicitly influenced by U.S. Supreme Court decisions. Yet, despite similarities in judicial interpretation, important differences remain.

Partly because the Australian list of federal powers is much longer than the American, less emphasis has been placed on Australia's commerce power. Australian justices have insisted that the 'commerce' regulated under the 'interstate trade and commerce' power really have an interstate character.

In cases concerning legislative district apportionment, American decisions such as Baker v. Carr and Wesberry v. Sanders have been argued before Australia's High Court. However, the Court has followed the reasoning of the dissenting justices in those American cases, thus rejecting any implication that districts must have virtually the same population.

Likewise, in interpreting the non-establishment clause, Australia's court has maintained the older American view that the clause prohibits the establishment of an official "state church" but allows non-discriminatory aid to be given to religious schools and other organizations. There is no "entanglement" doctrine in Australian constitutional law.

When interpretations of the two constitutions are compared, despite important similarities, the influence of differences in politics, history, and context is also apparent. The two countries are excellent test cases for comparing federal constitutions precisely because they are so similar and yet different.

(We thank the government of Québec and Forum of Federations for financial and logistical support in producing this book.)