Principle (b): Constitutional validity

Overview

Senate standing order 23(3)(b) requires the committee to scrutinise each instrument as to whether it appears to be supported by a constitutional head of legislative power and is otherwise constitutionally valid.

The committee's consistent view is that questions of legal validity, including constitutional validity, are ultimately for the courts to determine, and that it is therefore not the committee's role to make determinative statements about such matters. Nevertheless, there may be certain circumstances where it is appropriate to raise constitutional concerns or draw constitutional questions to the attention of the Senate.

Under this principle, the committee will typically be concerned with:

  • whether grants and programs specified in instruments made under the Financial Framework (Supplementary Powers) Act 1997 and the Industry Research and Development Act 1986 appear to be supported by a constitutional head of legislative power; and
  • instruments which raise questions as to whether they:
    • may breach the separation of powers doctrine embodied in the Constitution; or
    • may restrict the constitutionally protected freedom of political communication.

Constitutional heads of legislative power

Instruments specifying expenditure

Explanatory statements to instruments that authorise expenditure on specified grants and programs (usually made under the Financial Framework (Supplementary Powers) Act 1997 or the Industry Research and Development Act 1986) should:

  • clearly identify each constitutional head of legislative power that is relied on to support expenditure on the relevant grant or program; and
  • explain how each identified constitutional head of legislative power supports the grant or program, drawing on relevant jurisprudence where appropriate.

Where numerous constitutional heads of legislative power are relied upon, the explanatory statement should include sufficient information to establish how the identified heads of power provide authority for the entirety of the relevant grant or program.

Other constitutional matters

Examples of other constitutional matters that the committee may raise under scrutiny principle (b) are outlined below.

Separation of powers

Where it appears that an instrument may infringe the separation of powers doctrine embodied in Chapter III of the Constitution, the committee will look to the explanatory statement for an explanation of how the instrument complies with the requirements of the doctrine. For example, where an instrument confers non-judicial functions or powers on a Commonwealth court or federal judicial officer, the explanatory statement should set out whether the functions or powers are to be exercised by the court or judicial officer acting in a non-judicial (e.g. personal) capacity.

Implied freedom of political communication

Where an instrument raises a question as to whether it may restrict the constitutionally protected implied freedom of political communication, the committee expects the instrument's explanatory statement to address how the instrument does not impermissibly restrict this freedom with reference to relevant jurisprudence. For example, where an instrument limits political discourse, the explanatory statement should provide an explanation on how the freedom of political communication, which extends to communication necessary for the effective operation of representative and responsible government, is not fettered.

Explanatory statement checklist

The following checklist summarises the types of information which should be included in the instrument’s explanatory statement under scrutiny principle (b).

Instruments specifying expenditure

Where an instrument specifies expenditure, the explanatory statement should:

  • clearly identify each constitutional head of legislative power that is relied on to support expenditure on the relevant grant or program;
  • explain how each identified constitutional head of legislative power supports the grant or program, drawing on relevant jurisprudence where appropriate; and
  • where numerous constitutional heads of legislative power are relied on, explain how the identified heads of power provide authority for the whole of the grant or program.
Separation of powers

Where an instrument confers non-judicial functions or powers on a federal court or judicial officer, the explanatory statement should include an explanation of how the instrument complies with the separation of powers doctrine embodied in the Constitution.

Implied freedom of political communication

Where an instrument raises a question as to whether it may restrict the constitutionally protected implied freedom of political communication, the explanatory statement should address how the instrument does not impermissibly restrict the freedom, drawing on relevant jurisprudence where appropriate.

Track this Committee