79.
people, and with established territory[1]. In this primary sense of "the Commonwealth", which the preamble to the Constitution describes as an "indissoluble Federal Commonwealth", the membership is of all the people and not merely the subsets such as statutory citizens, subjects or electors[2]. The Constitution contains inherent limits upon the extent to which legislatures can fracture the membership of the political community of the body politic such as by exclusion of those people who were, and remain, necessary members of the body politic[3] or by imposition of unjustified restraints upon the participation by the people in the operation of the body politic[4].
213 In its primary sense, the body politic described as "the Commonwealth" is a legal entity or right-holder. It has a legal body or corpus like a body corporate and it represents the people who are its members. Maitland described it as a "corporation aggregate"[5]. As Griffith CJ said in The Commonwealth v Baume[6], "the body politic … [although] not a corporation or body corporate in the sense in which those words are used in [s 102 of the Common Law Procedure Act 1899 (NSW)] … stands for the Crown as representing the whole community". The body politic of the Commonwealth has legislative, executive and judicial functions[7]. The expression "Crown in right of the Commonwealth" is commonly used to
- ↑ Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 366–368; Lumb, "'The Commonwealth of Australia' – Constitutional Implications" (1979) 10 Federal Law Review 287 at 289.
- ↑ Rowe v Electoral Commissioner (2010) 243 CLR 1 at 93 [279]; Arcioni, "The Core of the Australian Constitutional People – 'The People' as 'The Electors'" (2016) 39 University of New South Wales Law Journal 421 at 443–444. See also DJL v Central Authority (2000) 201 CLR 226 at 277–278 [134]; Love v The Commonwealth (2020) 94 ALJR 198 at 247 [249], 258 [295], 259 [304]–[305], 277 [406]–[407], 283–284 [434]; 375 ALR 597 at 656, 670, 672, 695–696, 704.
- ↑ See Love v The Commonwealth (2020) 94 ALJR 198; 375 ALR 597.
- ↑ Cheatle v The Queen (1993) 177 CLR 541 at 560–561; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Electoral Commissioner (2010) 243 CLR 1.
- ↑ Maitland, "The Crown as Corporation" (1901) 17 Law Quarterly Review 131 at 140.
- ↑ (1905) 2 CLR 405 at 413.
- ↑ New South Wales v The Commonwealth (Work Choices Case) (2006) 229 CLR 1 at 120 [194].
