So do you cite to the British Act, s. 9, or just ‘Constitution of Australia, s. ##’, or ‘Constitution of Australia, s. ##, as enacted by the Commonwealth of Australia Act, (U.K.) 63 & 64 Vict., c. 1900’, or what? Are the first 8 sections of the British Act considered to be part of the Australian Constitution?
I’m afraid I’m not much help either. We need Princhester or someone to happen along with the facts. From memory, it’s just cited as “Section [whatever] of The Constitution”, but don’t bet your house on that until we get somebody who’s sure.
It’s been a while since I’ve had to do this at Uni, but my copy of Constitutional Law in Australia (Second Edition) by Peter Hanks, and published in 1996 by LexisNexis/Butterworths, cites the Constitution of the Commonwealth of Australia as “Commonwealth Constitution s X”.
In other words, it’s taken as read that you’re referring to the Constitution of Australia, and not the constitution of, say, the State of Massachusetts in the US. If you wanted to cite another Commonwealth’s constitution, you’d use something like “Constitution of the Commonwealth of (Wherever), s X”.
My understanding of the general principles surrounding general legal citations in Australia is that you’d cite the Australian Constitution as “s X The Commonwealth of Australia Constitution Act 1900 (Imp)” if you wanted to be ultra-formal about the whole thing and refer to the original legislation which enacted it, but when I was at Uni, the version in the textbook was considered more than acceptable, and was the version used by pretty much everyone, IIRC.
No doubt a Commonwealth Law-Talking Guy (or Gal) will be along in due course to give us the Official answer, though!
You can also refer to the 128 parts of the Constitution as “sections”, e.g.: “Section 128 deals with how the Constitution is amended.” Some of the sections are divided into parts with roman numerals, and these are referred to as “placitums” (I haven’t seen the word “placita” used). The heaviest use of this word is in referring to Section 51, which enumerates the powers of the Parliament, e.g., “Placitum xx of Section 51 is usually referred to as the ‘Corporations Power’.”
This is a reference to the wonderful movie The Castle, the plot of which turns around (among other things) the Constitution - s 51(xxxi) – or, at least, the “vibe” of that placitum.
Believe it or not, in my first year of law school, The Castle was shown to our Property Law class.
Flash forward two years, to just last February, when I’m participating in a competitive moot. At issue are two sections of the Canadian constitution. A member of the other team, who was in our first-year Property class, is speaking on rebuttal, and makes reference to “the vibe” of a certain section. Everybody–judges, our side, the students in the gallery–gets the joke.
And his side wins. Not sure if his remarks were helped by referring to “the vibe” or not, but they obviously didn’t hurt.
The movie has given (at least) two standard slang expressions to the world of practicing lawyers in Australia.
A Dennis Denuto is a hapless but nice suburban lawyer who is way out of his depth.
And most famously, “It’s the vibe” which is of course the standard sarcastic comment to make about someone’s floundering inability to explain why something means what they want it to mean.
I see your law school story and raise you by a Federal Court of Appeal story. I had an appeal in 2006 against a Sydney silk who is infamous for rambling emotional claptrap bereft of logic or (accurate) citation of facts in evidence. He was desperately trying to fend off penetrating questions from an unsympathetic bench while explaining why a section of the Constitution helped his case. At one point he started to say, “Well, your honours, its…” and then paused. Without missing a beat my silk muttered, sotto voce, “… the vibe”
To give him his due, our opponent has a sense of humour and did crack a smile, and the whole bench had a difficult job keeping poker faced. Needless to say, our opponent moved on from that point rather quickly.
Thanks for the comments, everyone. I don’t think referring to it just as “Commonwealth Constitution” would work in a Canadian publication - not many here know that usage, and would probably be thinking about the Commonwealth of Nations.
Maybe something like “Commonwealth of Australia Constitution”, followed by the relevant section number? And no cite to the original British Act?
Either “Commonwealth of Australia Constitution” or “Australian Constitution” would work outside Australia. And it’s not required to cite the British Act, unless you are specifically referring to the covering clauses which are not part of the Constitution.
It’s unlike the Canadian situation, where the Canadian Constitution was for a long time referred to as the “British North America Act”, until it was patriated as the “Constition Act 1867”. The Australian Constitution always was under Australian control, so never needed to be patriated, except perhaps for the covering clauses.
If those covering clauses ever needed to be amended, it’s debatable how they could be changed. One way might be for the Australian Parliament to request the UK Parliament to amend them.
The possible need to amend a covering clause arose about a decade ago during the debate about Australian becoming a republic, when it was argued that s. 2 of the Commonwealth of Australia Constitution Act 1900 might need to be changed:
That section might limit how the Australian monarchy could be abolished and replaced by an office such as President of Australia. Or it might not: I think expert opinion is divided. In any case, if an amendment were thought necessary, after Australians had voted in a referendum to abolish the Australian monarchy, I’m sure the UK Parliament would be cooperative
Whatever happened to the perfectly good “penumbra?”
I always thought you talked about the penumbra of ammendment/section/article/whatever x gives us the right to… for example teh penumbra of the US first ammendment is the right of freedom of expression.
Not sure if his remarks were helped by referring to “the vibe” or not, but they obviously didn’t hurt.